While the Protection of Personal Information (POPI) Act doesn't replace the HPCSA’s existing guidelines on safeguarding confidential patient data, POPI does affect all private and public organisations that process information such as names, addresses, email addresses, health information and employment history.
Some of the obligations placed on a medical practice under POPI are:
to only collect information for a specific purpose;
to apply reasonable security measures to protect the information collected;
to ensure all information collected is relevant and up to date;
to only hold as much as information as is required, and only for as long it is needed;
to allow the subject of the information to see it upon request.
Consent under POPI has to be specific, voluntary and informed. The burden of proof to show that consent was given falls on the practice, so it is advisable to keep some sort of record of consent given by a patient. In the case of a specialist who has been given a particular patient’s information from another healthcare professional, if providing a service to a patient the information can be held in the patient’s legitimate interest, as long as the patient is made aware of the purpose for which the information was collected.
Preserving the Information
All Medical Practices are expected, by law, to implement reasonable technical and organizational measures to ensure the information is protected from loss, damage, unauthorized destruction and unlawful access thereto.
Although there is no minimum standard set for the preservation of information, healthcare practitioners are expected to identify all reasonably forseeable internal and external risks and to establish appropriate safeguards. These safeguards need to be reviewed and updated regularly, especially when new risks are likely to emerge.
An example of a foreseeable risk would be an employee within a medical practice accessing private and personal information without being made aware that the information is to be kept strictly confidential at all times.
Dealing with an Information Leak
In the event of information being leaked, the practice will need to notify both the patient and the Information Regulator that the information has been accessed, in writing. The patient also needs to be advised about protective steps which could be taken. When notifying the patient ensure that the following information is given:
The possible consequences of the disclosure;
A description of the measures which will be taken to rectify the leak of information;
The identity of the individual who had unauthorised access to the information must be disclosed.
Failure to Comply with POPI
Failure to comply with POPI can lead to a complaint being lodged against a healthcare practitioner with the Information Regulator, or receiving a civil claim for payment of damages. One of the very serious implications can even be criminal prosecution which, if convicted, could result in a fine of up to R 10 million, a prison sentence of up to 10 years, or even both.
It is therefore extremely important for all people, companies and organisations handling health related information to assess their practices policies for handling health related and personal information.
Roxann van Rugge (LLB)
Return To Blog