Member of The Executive Council for Health Gauteng Province v Solomons [2023] ZAGPJHC 739; 2023 (6) SA 601 (GJ) (27 June 2023)

Background
The appellant is the defendant in a damages claim brought by a plaintiff on behalf of her minor child, alleging medical negligence in the plaintiff's labour which resulted in the baby being born with brain injury. The respondent is a co-author of a research paper that challenges the conventional understanding of a specific type of brain injury in infants and its causes. The appellant served a subpoena duces tecum on the respondent, requiring him to hand over documents related to the research paper for use in the main action. The respondent resisted compliance, citing confidentiality obligations towards his patients and lack of relevance of the documents.

The appellant then launched an application to compel the respondent's compliance with the subpoena. The respondent opposed the application, arguing that the documents sought were not in his possession and that, in any event, he was prohibited by law from disclosing patient information without patient consent or a court order.

The High Court dismissed the application, leading the appellant to appeal the decision.

Key Issues
1. Does a patient's right to privacy regarding confidential medical information override a party's right to access such information via a subpoena?
2. Are a patient's right to privacy and a medical practitioner's confidentiality obligations subservient to a litigant's public fair trial rights to obtain disclosure?
3. Did the court below err in not granting the declaratory relief sought by the appellant?
4. Did the respondent have an obligation to produce the documents or was his refusal to comply with the subpoena justified?
5. Did the appellant use the wrong procedure by issuing a subpoena instead of applying for a court order under the National Health Act?
6. Was the costs order against the appellant appropriate?

Relevant Legislative Framework
The National Health Act, 2003 and ethical guidelines for the health professions impose strict confidentiality obligations on medical practitioners regarding patient information. Disclosure is only permitted in limited circumstances: with patient consent, by court order, or in the interests of public health.

Declaratory Relief
The appellant sought a declaratory order confirming that the respondent had no lawful basis to claim confidentiality over the documents. The court dismissed this request, finding it unnecessary as there was no dispute about the legal framework governing confidentiality. The court also found that the appellant had failed to establish a need for the declaratory order. This decision was not appealed on substantive grounds.

Amended Relief & Obligation to Produce
The appellant also sought an order directing the respondent to reveal the whereabouts of the documents specified in the subpoena. This relief was premised on the assumption that the respondent was obliged to produce the documents in the first place. The court found that the respondent had a just excuse not to comply with the subpoena, given his confidentiality obligations.

Just Excuse' & Obligation to Produce
The court agreed with the respondent that there is a distinction between a party's right to obtain documents and the obligation of a subpoena recipient to produce them. While a party has a right to issue a subpoena, the recipient may refuse compliance with a 'just excuse', which includes confidentiality obligations. The court found that the respondent's refusal to comply was justified, as the documents sought were confidential by law. The appellant's argument that the documents were not confidential because they were public records was rejected. The court emphasised that court records are, by default, open to scrutiny, but their disclosure must be balanced with patients' rights to dignity and privacy.

Wrong Procedure
The court held that the appellant should have applied for a court order under the National Health Act rather than issuing a subpoena, as the Act requires judicial oversight for the disclosure of confidential patient information. The subpoena process circumvented this oversight and did not allow for the court to weigh the need for access against patients' privacy interests.

Costs Order
The court found that the costs order against the appellant was appropriate, as the respondent had been put to unnecessary expense in resisting the subpoena and application.

Conclusion
The appeal was dismissed, and the costs order of the court below was upheld. The judgment emphasises the importance of protecting patient confidentiality and the requirement for judicial oversight when seeking access to private medical information. Litigants must follow the procedure outlined in the National Health Act, rather than issuing subpoenas, to ensure patients' constitutional rights are respected.

The core legal principle underlying the decision is that patient confidentiality is a just excuse for non-compliance with a subpoena duces tecum under South African law. Medical practitioners are ethically and statutorily obliged to protect the confidentiality of patient information and may only disclose it in limited circumstances. Court records containing private medical information do not lose their confidential status and cannot be accessed via a subpoena without patient consent or a court order. Therefore, a litigant seeking such information must apply for a court order under the National Health Act, which requires the court to weigh the need for access against the patient's privacy interests. This judicial oversight is necessary to protect the constitutional rights to privacy and dignity.

Divine Inspiration Trading 205 (Pty) Ltd v Gordon and Others 2021 (4) SA 206 (WCC)

The respondent, a medical practitioner, was served with a subpoena duces tecum requiring him to produce patient information for use in litigation. He resisted compliance, citing confidentiality obligations. The applicant brought an application under s14(2)(b) of the National Health Act, seeking an order compelling disclosure.

Issue: Whether a medical practitioner could rely on patient confidentiality to resist compliance with a subpoena duces tecum issued in terms of Rule 38 of the Uniform Rules of Court, or whether Rule 38 constituted a 'law requiring disclosure' under s14 of the National Health Act.

Hockey AJ held that Rule 38 and s14(2)(b) of the National Health Act should be read together. Ethical rules are subject to the principles governing access to court records. Section 14 does not prevent a medical practitioner from complying with a subpoena duces tecum. The respondent was ordered to comply with the subpoena.

The case supports the principle that court records are open to the public and that patient confidentiality does not override the right of access to court records, including medical information. However, it is distinguishable from the case at hand as it involved an application under s14(2)(b) of the National Health Act, and the patient whose records were sought was a party to the litigation.