In healthcare, the right to access medical information is critical in ensuring that patients receive the proper care they need. However, situations may arise where a patient is unable to consent due to illness, injury, or incapacity. In such circumstances, the question of whether family members, particularly the next of kin, can access medical information becomes a vital issue.

The right to privacy

In South Africa, the right to privacy is set out in Section 14 of the Constitution of the Republic of South Africa, 1996. This right extends to the protection and confidentiality of a person’s medical records, which are protected under the Protection of Personal Information Act 4 of 2013 (POPIA), the National Health Act 61 of 2003, and the Health Professions Council of South Africa (HPCSA) guidelines.

It is important to note that the Promotion of Access to Information Act 2 of 2000 (PAIA) sets out various restrictions on the right to access information. These limitations are designed to protect a person’s right to privacy, commercial confidentiality, and ensure effective governance while balancing this right with other rights outlined in the Bill of Rights. For example, PAIA protects the privacy of third parties who are individuals.

Family member access to patient health records

If a relative, other than a parent or legal guardian, wishes to access a medical record, they must first obtain the patient's consent. However, if the patient is unable to provide consent due to illness, unconsciousness, or another medical condition, the next of kin must follow the correct procedure.

Your roadmap to accessing medical records: A step-by-step approach

Who can authorise consent to treatment?

When a patient is unable to provide consent for a health service, Section 7 of the National Health Act makes provision for a hierarchy of individuals who are authorised to consent to treatment or the disclosure of medical records on the patient’s behalf. The hierarchy is as follows:

1. Any person authorised in writing by the patient or by way of court order.

2. Where no person is mandated or authorised to give such consent, the spouse or partner.

3. In the absence of such a spouse or partner, a parent, 

4. grandparent,

5. an adult child,

6. or a brother or sister.

Disclosing patient medical information

Obtaining patient consent for disclosing medical information is crucial to respecting privacy and autonomy. Healthcare practitioners must ensure patients understand the reasons, consequences, and recipients of disclosure. If a patient cannot consent, the National Health Act allows designated individuals to access their medical records to provide necessary treatment consent. Informed consent requires full disclosure of information.

Balancing patient privacy with access to records is complex, especially when a patient is incapacitated. The law protects confidentiality while permitting controlled access for next of kin, ensuring both patient rights and informed decision-making by family members.

Disclaimer: This article is the personal opinion/view of the author(s) and is not necessarily that of the firm. The content is provided for information only and should not be seen as an exact or complete exposition of the law. Accordingly, no reliance should be placed on the content for any reason whatsoever and no action should be taken on the basis thereof unless its application and accuracy has been confirmed by a legal advisor. The firm and author(s) cannot be held liable for any prejudice or damage resulting from action taken on the basis of this content without further written confirmation by the author(s).