Confidentiality means that doctors, nurses, psychologists, dentists and other healthcare workers have a moral and legal duty to keep all information about patients confidential. Any information about the patient’s illness or treatment cannot be given to another person unless:

• The patient consents (agrees) to this
• The information is about the illness or treatment of a child – then health workers can tell others but only with the permission of the child’s parent or guardian
• The patient is dead – then the doctor must get permission from the next-of-kin (the person’s closest family)

EXAMPLE – THE McGEARY CASE

In the McGeary case, the Supreme Court of Appeal said that a doctor cannot tell other doctors about the HIV status of a patient without the patient’s consent. Mr McGeary applied for a life assurance policy. The insurance company told him to have an HIV test before they could approve his application. The doctor got the results of the test and told McGeary that he was HIV-positive. The next day the doctor played golf with another doctor and a dentist. During the game, they discussed AIDS and McGeary’s doctor told the other two that McGeary was HIV-positive. The news of McGeary’s condition spread around the small community. McGeary began a civil claim to get compensation from his doctor for breaking his rights to confidentiality. The Court said the doctor had to pay McGeary compensation for breaking his right to confidentiality. The Supreme Court of Appeal said that a doctor cannot tell other doctors about the HIV status of a patient without the patient’s consent.

SOME RULES ABOUT CONFIDENTIALITY

Telling other healthcare workers – A healthcare worker must get a patient’s permission before giving any of that patient’s medical information to another healthcare worker.

Telling a patient’s sexual partner – A healthcare worker may not tell the patient’s sexual partner that the patient has HIV, unless the partner appears to be at risk because the patient refuses to practice safer sex. The health care worker must counsel the patient on the need to tell their sexual partner and to practise safer sex. The health care worker must then warn the patient that if he or she does not tell their sexual partner or practise safer sex, then the health care worker will have to tell the partner about the person’s HIV status.

Telling a court – A court can order a health care worker to give them confidential information.

CONFIDENTIALITY AND OPENNESS

HIV/AIDS is not an open issue mainly because people living with the disease fear the prejudice and discrimination they will suffer if they tell people about it. Communities need to be educated about HIV and AIDS and the supportive role they can play in the lives of people living with the disease. In this way people may be encouraged to be open about their HIV status. Some people choose to be open about their HIV status to certain people but this does not mean they lose their right to confidentiality with a doctor, nurse, health care worker, employer or friend. A person’s personal right to privacy and confidentiality must always be respected.

WHAT CAN YOU DO IF A HEALTHCARE WORKER ABUSES YOUR RIGHT TO CONFIDENTIALITY?

You can complain to the Health Professions Council of South Africa (HPCSA). You can also make a civil claim for damages (compensation) against the healthcare worker, hospital or clinic, or any member of the public who has abused your rights. (See Resources)