her rights to her medical records
16 August 2007
The legal team representing the Minister of Health, Dr Manto
Tshabalala-Msimang and Medi-Clinic today lodged an urgent application with the
Johannesburg High Court to compel the Sunday Times to return the copies of the
medical records concerning her two admissions at Cape Town Medi-Clinic.
The application comes after the Sunday Times refused to comply with the
letter of demand from the Minister's lawyers calling upon the newspaper to
return these documents on Tuesday. A criminal case of theft has been lodged by
Medi-Clinic with the Cape Town police, after the clinic discovered that the
documents had been stolen from their archives.
The Sunday Times publicly admitted in its edition of the 12 of August 2007
that it was in possession of these documents. The newspaper wrote in its
front-page story that: "the Sunday Times is in possession of documents related
to Tshabalala-Msimang's two hospital stays in 2005." It further stated in the
article that these medical files were given to unnamed doctors to assess for
the Sunday Times.
Dr Tshabalala-Msimang has submitted to court that the newspaper's access to
and possession of any of her medical records is an unlawful and
unconstitutional invasion of her rights. Section 17 of the National Health Act
states that "any person who without authority copies any part of a recordâ¦(or)
gains unauthorised access to a record or a record keeping system commits an
offence."
In the affidavit, Dr Tshabalala-Msimang submitted that: "The possession of
medical reports concerning my medical records, my medical condition and
treatment is unlawful and their (Sunday Times editor and reporters) refusal to
hand over the records and continue to use them for purposes that are a breach
of my constitutional right to privacy and to dignity makes it necessary for me
to seek the urgent assistance of this Honourable Court and to request the
necessary indulgence with regard to compliance with the provisions of the
uniform rules of Court."
Dr Tshabalala-Msimang said she was compelled "to seek urgent redress in
order to stem the harm being caused to me by the Respondentsâ unlawful
conduct."
The affidavit further argues that:
* Dr Tshabalala-Msimang has a clear right to prevent unauthorised and
unlawful access to and possession of her health and medical records.
* Medi-Clinic has, by virtue of its obligations under the common law and in
terms of, inter alia, Sections 13 and 17 of the National Health Act a clear
right to keep, maintain, secure and prevent unlawful access to and possession
of Dr Tshabala-Msimangâs health records.
* Both Dr Tshabalala-Msimang and Medi-Clinic have a clear right to have all
copies of medical records of her stay at the Cape Town Medi-Clinic returned to
them forthwith.
* Dr Tshabalala-Msimang has a right to have all copies of any record of her
medical condition and/or treatment which is unlawfully in the possession of the
editor and reporters of the Sunday Times returned to her forthwith.
The court papers have already been served on the Sunday Times.
Enquiries:
Sibani Mngadi
Cell: 082 772 0161
Issued by: Department of Health
16 August 2007
