EthiQal has contracts with several legal firms that have specialist medical law practices devoted to the defence of medical cases. In the category of dispute resolution, all are recognised leaders. Each has its own established track record of excellence in the field of medical litigation, having successfully defended healthcare professionals, hospitals and other medical services providers in civil actions for damages.

A short-term insurer is a company licensed to do business in terms of the Company’s Act 2008 and registered as a financial services provider (FSP) in terms of the FAIS Act, 37 of 2002, its Codes of Conduct and Board Notices. The short-term insurer underwrites policies in a manner that is compliant with the Short-Term Insurance Act, 53 of 1998. In doing so, the short-term insurer complies with market conduct and policyholder protection requirements implemented to protect the rights of you, the policyholder. Should you, for any reason, be unhappy with the service we have provided, you have recourse via the Ombudsman for Short-Term Insurance. The OSTI provide the insuring public and the short-term industry with a free, efficient and fair dispute resolution mechanism through an alternative dispute resolution process, applying the law and principles of fairness and equity.

A mutual is an organisation that is owned collectively by its members who are also its customers. For policyholders to enjoy the same legal protection as above, the mutual must be registered as a FSP.

It is thus important that policyholders obtain proof of FSP registration when purchasing professional indemnity cover.

We suggest that the response to such a request should consider both the patient anxiety and the legal requirements regarding the retention of personal information. The patient has a genuine concern regarding her personal medical information that she feels embarrassed about. Firstly, you need to understand what are the patient’s anxieties, why is she embarrassed? Give the patient reassurance regarding the ethical principle of confidentiality.

The second part to the conversation must involve discussing the similarities and differences between personal information, that makes up a health record, as defined by the HPCSA, and personal information as defined by POPIA.   The discussion is then followed by the reasons for keeping health records and under what conditions can health records be destroyed.

HPCSA and POPIA definitions

HPCSA

A health record is defined as any relevant record made by a healthcare practitioner at the time of or after a consultation and/or examination. A health record contains the information about the health of an identifiable individual recorded by a healthcare professional. A health record includes, handwritten notes, notes taken by previous practitioners, referral letters, laboratory, radiology, medicolegal, insurance reports, etc.

POPIA

General personal information is defined as information relating to an identifiable, living, natural person and where applicable, an identifiable, existing, juristic person. Personal information includes, full contact details, identity number, medical aid number, tax number, bank account details.
Special personal information includes health or sex life or any other biometric information, race, ethnicity, religious beliefs, etc.

POPIA categorises patient health records under ‘special personal information’ this implies that all health records are personal information. Health practices process both general and special personal information for their operational needs.

When a patient requests deletion of his/her personal information from the practice, health practitioners need to first determine which type of information was processed and which does the patient want deleted.

If the request includes destroying information that is also deemed a health record, HPCSA guidelines should be taken into consideration.

Collection and retention of personal information:

HPCSA

• To further the diagnosis or for ongoing clinical management of the patient.
• As direct evidence in litigation or for occupational disease or injury compensation purposes.
• To make case reviews possible.
• To promote good clinical and laboratory practices.
• To promote teaching and research.

POPIA

• For a specific, explicitly defined and lawful purpose related to a function or activity of the collecting party.
• Retention must not be longer than is necessary for achieving the purpose for which the information was collected.

POPIA’s reasons for collecting and retaining personal information are context specific, whereas HPCSA reasons are prescribed.

Health practices collect patient personal information for specific purposes. It is therefore imperative that health practices inform patients of the reasons why they are collecting their personal information and inform them of the conditions under which the information can be destroyed.

In the era of POPIA, it is advisable that practices must implement a POPIA informed consent form, which outlines the reasons for collecting personal information, how the information will be used, stored and the limitations for destroying the collected information.

Duration for retention of personal information/health records

HPCSA

• Must be retained for a period of not less than six years from the date they became dormant.
• Obstetric records must be retained until the child is 21 years the same applies to records for minors.
• Occupational Health and Safety records must be retained for a period of 20 years after treatment has ended.
• Some records may need to be kept for longer periods depending on the patient condition, for example, occupational lung diseases such as, asbestosis may take longer to manifest and therefore such records may need to be kept for a longer period.

POPIA

– Retention must not be longer than is necessary for achieving the purpose for which the information was collected.

– Personal information can be retained for longer if:

• retention is required or authorised by law
• retention is required by a contract between the parties
• the information is required for lawful purposes related to the activities of the party that has processed the personal information.

A patient requesting her medical information to be destroyed, using a POPIA reasoning will have to be informed about the HPCSA and Occupation Health and Safety Act legal requirements and if these requirements are also met, then the information can be destroyed.

Take-home message

• It is advisable that health practices must develop and implement a POPIA patient consent form that provides details for processing personal information, including access, retention, and disposal of records.

 Practices need to maintain a balance between the right to access to information and the right to privacy of information by ensuring compliance with the statutory requirements of POPIA and HPCSA’s ethical guidelines.

Considering patient and personal safety in the face of the evolving COVID-19 pandemic, many practitioners are considering virtual consultations as an avenue for the provision of their professional services.  To assist practitioners in their decision whether and how to implement, the following points may be helpful:

What qualifies as a remote consultation?

The HPCSA classifies remote consultations as telemedicine, which is defined as “the practice of medicine using electronic communications, information technology or other electronic means between a healthcare practitioner in one location and a healthcare practitioner in another location for the purpose of facilitating, improving and enhancing clinical, educational and scientific healthcare and research”.  Technologies that can be used in remote consultations include telephones, emails, text messaging and video conferencing amongst others.

Is there guidance from the HPCSA on remote patient-doctor consultations?

In view of the national state of disaster and the need for social distancing and self-isolation, the HPCSA has recently released a telemedicine guideline that is applicable during the COVID-19 pandemic and where telemedicine has been replaced with telehealth which includes amongst others, telemedicine, telepsychology, telepsychiatry and telerehabilitation. It states as follows:

• Telehealth should preferably be practiced in circumstances where there is already an established practitioner-patient relationship.  Where such relationship does not exist, practitioners may still consult using telehealth provided that such consultations are done in the best clinical interest of patients.
• Although practitioners may charge fees for consultations undertaken through telehealth platforms, the Council strongly cautions against practices that may amount to over-servicing, perverse incentives and supersession.
• Where practitioners are in doubt whether a telehealth consultation will be in the best interest of the patient, they are encouraged to advise patients to present themselves for a face-to-face consultation to seek assistance at a health care facility closest to them.

Do EthiQal’s professional indemnity policies provide cover for remote consultations?

There are no exclusions in our policies that would limit our obligations to defend and protect you in relation to potential liabilities that may arise from remote consultations.  If you are insured with us, you are covered within your benefit limits.

What do our medico-legal advisors say?

Our medico-legal team proposes that practitioners consider the following in terms of remote consultations during the COVID-19 pandemic:

• Define your reasons for conducting remote consultations within your specific practice and structure your approach around these.  For example, you may want to focus on keeping chronic patients who are vulnerable in terms of increased morbidity and mortality should they become infected at home; or you may wish to triage every patient prior to deciding whether a physical examination is required.
• Adhere as closely as possible to all other HPCSA ethical principles during remote consultations like the need for privacy, confidentiality, informed consent and record keeping and the requirements relating to these.
• It is advisable that before consulting patients remotely, the patient’s identity is verified.  Where relevant,
  
  
  • the patient must be informed of the reasons for remote consults;
  • the patient must be advised of the associated risks and limitations of such consultations;
  • the information provided should include your billing policies in this regard;
  • the patient must at a minimum give verbal consent that is documented.
• Record the technology used over and above the clinical records that must be kept.  Unless you are consulting patients well-known to you for purposes of routine follow-up, technologies where you can see the patient should be used.
• If you are contacted by a patient, assess the patient’s history and weigh up whether you can assess the patient adequately remotely.  Always be aware of the limits of what you can achieve via the phone or video link if you are unable, for example, to check a patient’s blood pressure or temperature (and they cannot reliably do this remotely). Where you have doubts, advise the patient of the most appropriate route to seek further medical assistance.
• If you are in self-isolation, you also need to be mindful of the limitations of the advice you can provide without immediate access to the patient’s medical records. You will need to consider whether a physical examination is necessary and have a plan in place for referral of the patient. This may be to a colleague in your practice if they are available to see the patient, the local hospital if appropriate or to another practice in the area if your practice is closed or the doctors cannot see additional patients.
• Use appropriate government prescribed referral pathways to refer patients that may call you and are exhibiting COVID-19 symptoms.

TAKE-HOME MESSAGE

• HPCSA guidelines have recently been expanded to make provision for remote consultations between patients and doctors during the COVID-pandemic.  We have summarized these changes in this document for your convenience so that you can readily familiarize yourself with the regulator’s position.
• Irrespective of the approach doctors choose in terms of remote consultations during the pandemic to assist patients in South Africa, our professional indemnity policies will respond to defend the practitioner’s actions in the event of a future complaint.
• The more considered a doctor is in the implementation of virtual consultations during this national state of disaster, the more likely future HPCSA and other complaints may be defended successfully, should these arise. We trust that doctors will proceed responsibly and with wisdom in this regard.