Access To Information Act 2 of 2000 regarding patient’s record and related reports.

Unitas v MM van Wyk [2006] SCA32(RSA).

Judgement delivered 27 March 2006.

Mr van Wyk (the deceased) was treated in Unitas hospital after he had undergone two operations to
excise septic tissue in an infected proctocolostomy wound. The deceased suffered from nausea and
continual vomiting while being treated in the high care unit by various medical specialists.

The deceased was transferred to Intensive care unit in a critical condition after he aspirated (vomit
was drawn into his lungs). As a result of the aspiration, the deceased’s oxygen supply to his brain was
affected, resulting in brain damage, and he died about one month later.

Mrs van Wyk’s attorney wrote a letter of demand on her behalf consisting of general allegations that the conditions in the hospital were unhygienic and that the nursing staff were incompetent, improperly trained unsympathetic and uncooperative. It is not clear how these general allegations are linked to her late husband’s death.Mrs van Wyk requested hospital records which included nursing care notes, which was made available to her.Dr Naude, a specialist physician with rooms at Unitas treated the deceased
during this admission at the hospital.

Dr Naude was a director of the multi-intensive care unit (ICU) and chairman of the body representing
the medical specialists practicing at Unitas. In this capacity he prepared a report on general nursing
conditions in the ICU and high care at Unitas hospital which is referred to as the “Naude report”.

In terms of the Promotion of Access to Information Act, information should be requested. According
to Section 50 of the Promotion to Access to Information Act 2 of 2000 a “requester” is entitled to records,
which by definition include any recorded information in possession of a private body if :

1. The information is required to the exercise or protection of any rights;
2. The requester complies with the procedural requirements of the Promotion of Access to Information Act,
   relating to the request for access to the information;
3. Access to the information requested cannot be refused on any ground for refusal contemplated in Chapter 4 of this Act.

Promotion of Access of Information Act 2 of 2000, Section 62 : Grounds for Refusal of Access to Records :

A provision of this chapter in trems of which a request for access to a record must or may or may not be refused,
must not be construed as:

• Limited in its application in any way by any other provision of this chapter in terms of which a request
  for access to a record must or may or may not be refused; and
• not applying to a particular record by reason that another provision of this chapter in terms of which a
  request for access to a record must or may or may not be refused, also applies to that record .

Promotion of Access of Information Act 2 of 2000, Section 70 : Mandatory disclosure in public interest :

Despite any other provision of this Chapter , the head of a private body must grant a request for access to a
record of the body contemplated in section 63(1), 64(1), 65, 66(a) or (b) , 67, 68(1) or 69(1) or (2)

As matters developed the contentions legal issue was whether Mrs van Wyk was entitled to a copy of the report Dr Naude compiled. Dr Naude was an expert for Mrs Naude as well. Unitas opposed this application stating thatMrs van Wyk had all the information which her experts would require in order to advise her. Dr Naude filed his answering affidavit neither opposing nor consenting to the order sought, and indicated that he will abide the court decision. Mrs Van Wyk alleged in her founding affidavit that the Naude report was the product of an investigation into nursing conditions at Unitas which was undertaken specifically as a result of her husband’s death.According to Unitas and Dr Naude this was not the case as the report was completed prior to Mrs van Wyk's death and was a general report regarding the quality and efficiency of nursing care in the ICU and high care of the Unitas hospital.

The Court a quo (Mojapelo J) granted the application against Unitas with costs. An “order by default” ordered Dr Naude to make available the Naude report. According to Judge Mojapelo, access to the Naude report will assist Mrs van Wyk in either proceeding with or abandoning the claim against Unitas hospital. Furthermore that it is in the interest of bona fida litigation that the parties should take this critical decision on the basis of essential information where available.
“The applicant may arguably be in possession of some information on the basis of which she may issue summons against the first respondent, there can be no doubt that the less the information she has, the higher the risk she runs of either formulating her claim incorrectly or even of proceeding with litigation when, with a fuller picture, she might decide not to ………………………..and avoid unnecessary litigation.”

In the cause of its judgment the court a quo referred to Section 23 of the 1993 Constitution and in Section 23 (read with Schedule 6) of the 1996 Constitution.

One of the objections raised by Unitas was that the providing of the Naude report to Mrs van Wyk would be contrary to Section 63(1) of Promotion of access to Information Act, in that Unitas would disclose personal information about members of Unitas nursing staff who were criticised in the report by name.

Mrs van Wyk conceded that her copy could be edited, by removing all names.

Promotion of Access of Information Act 2 of 2000, Section 63 : Mandatory disclosure of privacy of third party who is a natural person :

1. Subject to subsection (2), the head of a private body must refuse a request for access to a record of the body if its disclosure would involve the reasonable disclosure of personal information about a third party, including a deceased individual .
2. A record may not be refused in terms of subsection (1) insofar as it consists of information
   • about an individual who has consented in terms of section 72 or otherwise in writing to its disclosure to the requester concerned
   • already publicly available
   • that was given to the private body by the individual to whom it relates and the individual was informed by or on behalf of the private body, before it is given , that the information belongs to a class of information that would or might be made available to the public;
   • about an individual's physical or mental health, or well being, who is under the care of the requester and who is:
   • under the age of 18 years or
   • incapable of understandingthe nature of the request, and if giving access would be in the individuals best interests;
   • about an individual who is deceased and the requester is :
     • the individuals next of kin or
     • making the request with the written consent of the individual's next of kin or
   • about an individual who is or was an official of a private body and which relates to the position or function of the individual, including, but not limited to:
     • the fact that the individual is or was an official of the private body
     • the title , work address , work phone number and other similar particulars of the individual
     • the classification, salary scale or remuneration and responsibilities of the position held or services performed by the individuals and
     • the name of the individual on a record prepared by the individual in the course of employment
       
       
   Unitas no longer maintained that access to the Naude report would be contrary to any of the previous of section 62 and 70 of the Promotion of Access to Information Act. Unitas’ remaining ground of opposition was that Mrs van Wyk failed to establish that she required the Naude report to exercise or protect any right.
   

   Brand JA :

   The threshold requirement of assistance has been established. If the requester cannot show that the information will be of assistance for the stated purpose, access to that information will be denied.

   Mrs van Wyk did not require the Naude report to formulate her claim for the purposes of instituting action. Should the Naude report be of any relevance Mrs van Wyk could obtain it in terms of Rule 35 regarding discovery in terms of the High court Rules.According to Brand (JA) the Access of information Act is not intended to have any impact on the discovery procedure in civil cases.

   Pre action discovery should rather be the exception than the rule. Mrs van Wyk should have shown the “element of need” or “substantial advantage”. Mrs van Wyk should have shown from the outset what more knowledge she hoped to obtain by gaining access to the Naude report.

   Cameran JA :

   The Promotion of Access to Information act 2 of 2000 provides that access must be given to records held by private bodies if required so.

   In terms of the Interim Constitution, section 23 “Every person shall have the right to access to all information held by the state or any of its organ …………..”

   In applying the objects of the Promotion of Access to Information Act one should consider whether Mrs van Wyk demonstrated on element of need in relation to the report and whether the report will offer her a substantial advantage.

   “In my respectful view it is the applicant’s exposition of her case in her founding affidavit, and not her proceeding letter of demand ….. that should provide the basis for assessing her entitlement to access.”

   The test here is whether Mrs van Wyk was in a position to institute action against the hospital without the Naude report. “What she claims is that an institution – the hospital – failed in it’s functioning in ways that gave rise to the individual acts of negligence that caused her husband to die. She claims that a systemic, not individual, failure caused her loss”. In Cameron’s (JA) view the Naude report will illuminate the core of Mrs van Wyk’s claim and differs from Brand (JA).
   The Naude report will set out protocols and practices as well as problems with staff and training, as well as remuneration issues. This information will assess the ambit and viability of the claim.

   According to Cameron (JA) Mrs van Wyk has established a clear and substantial connection between her claim against the hospital and the contents of the Naude report.

   Cloete JA :

   In terms of Section 32(1) of the Constitution itself draws a clear distinction between any information held by the State and any information that is held by another person.

   “It was not argued that it was Mrs van Wyk’s case that Unitas failed in its essential functioning and Unitas has not had an opportunity to respond to an application for access to the report on this basis. It was by no means clear from her founding affidavit what case she sought to make out.

   “If access to the record such as the Naude report would merely be relevant to or helpful in the evaluation of a potential claim, but without the prospect that the information (or lack of it) in the record could be decisive, as in the present case, access under the Promotion of Access to Information Act should in my view be denied”.

   Conradie JA :

   “The only issue in dispute appears to be whether the aspiration was due to negligence on the part of the defendant’s staff”

   The inadequacies mentioned in the letter of demand regarding Unitas hospital and the treatment received by the staff, was never linked to Mr van Wyk’s cause of death, and with the facts at hand, Conradie (JA) could not see how Mrs van Wyk could link these aspects in any way.

   Conradie (JA) agreed with Brand and Cloete (JJA) that the Naude report, contained nothing about the treatment or cause of death. The Naude report was not necessary in making Mrs van Wyk’s decision in instituting action.
   

   Harms (JA) concurs with Conradie et Cloete (JJA).

   _______________
   

   ADELE VAN DER WALT (practising attorney specialising in medico legal cases)
   ADELE VAN DER WALT INC
   330 ARIES STREET/STRAAT WATERKLOOFRIF 0181
   PO BOX 1676 BROOKLYN SQUARE 0075
   E-MAIL : linda@avdw.co.za
   TEL :+27 12 460 3668
   FAX : +27 12 346 0680
   www.medicalnegligence.co.za/www.medicallaw.co.za
   

    

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