Medical records and access thereto

Medical records are essential tools in the practice of medicine. They are important in the planning and monitoring of patient care and for the protection of the legal interests of patients, hospitals and doctors. There is a legal duty on doctors to maintain confidentiality and failure to do so may result in an action for invasion of privacy, defamation or even breach of contract. There are, however, exceptions to this rule. There are procedural remedies available to obtain access to medical records where they are relevant to civil or criminal proceedings. There are also constitutional provisions under the Interim and Working Draft Constitutions which may allow such access. The former only applies to records held by the state while the latter applies to both state and privately held records. Ownership of medical records usually vests in the doctor or institution treating the patient, but such ownership is custodial rather than absolute. Patient records should be accurate, objective and contemporaneous. The international trend is to allow patients to inspect their records and to allow them to make copies thereof. It is submitted that given the provisions of the Interim and Working Draft Constitutions the same should apply in South Africa.