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Accessing information disclosed to children

July 2014

It is generally accepted that most information disclosed to any person other than an attorney or legal representative can be disclosed in legal proceedings as it is not privileged nor does it constitute confidential information.

This principle is not constitutionally founded but rather emanates from South Africa's common law. The core principal of access to information has been legislatively recognised by the Promotion of Access to Information Act (PAIA) in terms of which information can be requested from public or private bodies upon the meeting of certain requirements.

While many people believe that the disclosures they make to medical practitioners are governed by the rule of privilege, South African case law shows this is not the case. In Botha v Botha 1972(2) SA 559, the court allowed the evidence of a medical practitioner, who had consulted with one of the parties, to be admitted in the matter so the court could determine which parent was more suitable to care for the children. In this matter the evidence of a medical practitioner and a psychologist was admitted despite objections by the party who was the patient of both. As judgement in this case was handed down many years before the development of the Constitution, the Children's Act and the Promotion of Access to Information Act, it would be interesting to see the extent to which this decision could be relied upon.

This presents a difficulty for various psychologists or social workers as they are bound by the rules published by the Health Professions Council of South Africa in terms of the Health Professions Act and the South African Council for Social Service Professions.

In terms of the National Health Act, all patients have the right to confidentiality. Health care practitioners, including psychologists, hold private and sensitive information about patients, which must not be given to others unless it is with the patient's consent or at the instruction of a court.

In terms of the Social Service Professions Act, all social workers are mandated to enact the Code of Ethics, in terms of which breaching a patient's confidentiality may be regarded as unethical and unprofessional conduct. As with psychologists, there are instances in which a social worker can disclose confidential information, including when subpoenaed by a court.

While there are often provisions which stipulate that confidential information can be disclosed by virtue of a court order, it is difficult for many medical practitioners to know where the line is to be drawn and whether they are going to be taken to court for refusing to divulge information. The concern about protecting a patient's information and disclosures is further exacerbated when the patient in question is a child.

When dealing with children and NGOs who assist children in litigious proceedings, I have been exposed to third parties who seek information disclosed by children to social workers and psychologists in the course of the proceedings. This is regrettable as the relationship established between the social worker or psychologist and the child would enable the child to feel comfortable disclosing information. This confidentiality is essential to maintain relationships. Furthermore, social workers and psychologists are often approached by victims and parents of victims of abuse on the basis that their communications and disclosures made during therapy or assessment will not be made available to third parties.

When faced with a third party who seeks confidential information about a child, practitioners can look to the legislature which is explicit on their rights. In terms of section 2 of the Children's Act, the objects include:

"(a) to promote the preservation and strengthening of families;
(b) to give effect to the following constitutional rights of children;

(ii) social services
(iii) protection from maltreatment, neglect, abuse or degradation; and
(iv) that the best interests of the child are of paramount importance in every matter concerning the child; "

The general principles expounded in section 6 of the Act stipulate that all the principals in section 6 apply to proceedings relating to a child. These principles include respecting, protecting, promoting and fulfilling the child's rights as set out in the Bill of Rights and the best interests of the child standard set out in section 7 of the Act.

The Best Interests of the Child Standard includes that the child's physical and emotional security and his or her intellectual, emotional, social and cultural development must be considered when any determination is made.

Interestingly, in section 13 of the Act, which deals with "Information on Health Care", the Act provides for every child to have the right to confidentiality regarding his or her health status except where maintaining such confidentiality is not in the best interests of that child. Health status is not defined but it could be argued that this extends to mental health and information pertaining thereto.

From the court's perspective, a court may call upon a specified person to assist in preparing a report and then appear before the court to give or produce evidence. However, the extent of the evidence that can be given is limited. The Act specifies that an expert may be required to present the findings of their investigation either in the form of oral evidence or by producing a report.

Section 6.3 of the Children's Act stipulates that a written report "on its mere production to the children's court hearing the matter is admissible as evidence of the facts stated in the report". However, section 63(3) does allow for the cross-examination of the author of the report if that person's rights are prejudiced by the report.

To understand the dire need for protection of children and child witnesses, section 170A of the CPA is to be considered. This section provides for the appointment of an intermediary to enable a child to give evidence through the intermediary.

This provision of the CPA was the subject of judicial comment in Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development 2009 (2) SACR 130 (CC) wherein the court stated that in making a determination, the best interests of the child must be the focus and in the same vein, that it is necessary to avoid undue mental stress or suffering. The court also noted that child witnesses are especially vulnerable and additional steps must be taken to protect them.

In the matter of Kerkhoff v Minister of Justice and Six Others 2011(2) SACR 109 GNP, Kerkhoff was facing various charges in the Brits Regional Court in relation to children. At the heart of this matter was the fact that these children had been interviewed by a social worker employed at the Teddy Bear Clinic in order to assist the Court in making a decision as to whether to invoke section 170A. The report produced indicated that the children should testify through an intermediary. Kerkhoff wanted the children to testify in open court and as such was intent on opposing the appointment of an intermediary. For this purpose, Kerkhoff sought the working papers of the social worker in order to question her findings. In opposition to the request, the social worker and the Teddy Bear Clinic claimed that these documents were confidential and that such confidentiality was necessary to ensure that families and children could approach the Teddy Bear Clinic without their trust or confidence being breached.

In considering whether the Teddy Bear Clinic and the social worker were obliged to make their process notes and summaries available, the court examined whether Kerkhoff had demonstrated a right to disclosure of the documents. It found that the applicant had not demonstrated a right to access the documents. His application was premised on the belief that they formed part of the docket to which he was entitled in terms of Shabalala and Others v Attorney-General of Transvaal and Another [1995] ZACC 12 and section 32(b) of the Constitution. The court disagreed and said that the rules in Shabalala do not pertain to such documents and that PAIA should be relied on when contending for the application of section 32.

While it is open to an interested person acting outside of litigious proceedings to bring an application for access to such information in terms of PAIA, the body receiving such a request could oppose it on the basis that it would breach the duty of confidence owed to the client or the child. The basis of this would be section 65 of PAIA which reads "The head of a private body must refuse a request for access to a record of the body if its disclosure would constitute an action for breach of a duty of confidence owed to a third party in terms of an agreement.”

While information pertaining to a child's physical or mental health or well-being must be made available to a person in whose care the child is, in terms of section 63 of PAIA, this information can only be disclosed where it is in the interests of the child. Further, PAIA dictates that if it is evident to the person who receives the request for disclosure that this would endanger the life or physical safety of an individual, the request must be refused.

This is another example of where matters must be considered on a case-by-case basis. The person receiving such a request for information should consider whether the requirements have been met, in form and substance; whether it is legally required that the information be disclosed and lastly, whether it would be in the child's best interests for that information to be disclosed. If the answer to any of those questions is no, the medical practitioner would be wise not to disclose the information.  

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