The KwaZulu-Natal High Court, sitting in Durban, had to grapple with the question of whether confidential medical reports pertaining to a woman’s psychological and medical condition should be disclosed as part of a bitter battle over custody of her children.
The husband and wife are embroiled in divorce proceedings and the husband turned to the court to ask that the clinic which is treating his wife make records regarding her condition available. He said this is needed to assess whether the wife is able to take care of their children.
The information he wanted included all her medical records relating to her treatment, including the results of any drug tests, psychological or psychometric testing.
He also wanted the notes relating to her treatment and the findings or recommendations of medical practitioners employed by the clinic, to be made available.
The parties, who are separated, are engaged in litigation relating to the primary residence of their two children. Each parent wants to have primary custody over the children.
The wife was admitted to and treated at the clinic and diagnosed with bipolar disorder and depression.
The husband claimed that apart from the diagnosis, she also has “anger issues” and was treated for drug and alcohol misuse.
The parties have made allegations and counter-allegations in relation to their respective suitability to be awarded primary residence.
Judge Jacqueline Henriques commented that it would appear that the 19-year relationship between the parties has been tumultuous, to say the least, and that they have over such period of time separated and reunited and attempted to resolve their marital issues with no success.
The husband earlier issued a subpoena on the clinic where his wife is being treated in a bid to obtain all her medical records, but the clinic refused.
The husband said given the fact that the best interests of the children had to be established, he was entitled to the information.
His lawyer argued that it is not enough to only know she was diagnosed with bipolar disorder. The lawyer said one would need to know what she had disclosed during the consultations and therapy sessions to understand her underlying behaviour and possible future behaviour.
The lawyer said that she appreciated the wife’s fear that what would be disclosed could be “used as ammunition” by the husband against her. But, she argued, to allay these concerns, these notes could be handed over to another medical professional.
The lawyer acting for the mother argued that although the best interests of the child are recognised, this cannot be seen to trump all rights to privacy.
She said disclosures are made in the context of a therapy session being regarded as “a safe space”, and if this court were to allow the therapy notes to be disclosed, it would result in a party being reluctant to seek the necessary therapy and professional help knowing that at some stage this could be disclosed for litigation purposes.
Judge Henriques said it is necessary that all private and confidential medical information should receive protection against unauthorised disclosure.
In another judgment the apex court said: “Private and confidential medical information contains highly sensitive and personal information about individuals. The personal and intimate nature of an individual's health information, unlike other forms of documentation, reflects delicate decisions and choices relating to issues pertaining to bodily and psychological integrity and personal autonomy.”
“A court must therefore carefully consider whether there is a genuine need for access to medical records sought…. Having considered the line of cases and applying the principles to the facts of this matter, I am of the considered view that an order for disclosure is warranted, albeit not in the form sought in the notice of motion,” the judge said.
She concluded that some sort of restriction has to be in place to protect the wife’s privacy and the disclosures that she has made during the course of therapy. Thus, she placed safeguards in place to protect the privacy and dignity of the wife.
She ordered the manager of the clinic where the wife is being treated to provide a medical report to either a clinical or forensic psychologist appointed by the husband, which discloses the medical treatment the wife is receiving, as well as her prognosis. The judge excluded the private conversations between the wife and the medical experts.