Wednesday, September 26, 2007

Manto's advert and the Health Act

My take on the advert taken out by the Department of Health to criticise the High Court judgment which allowed the Sunday Times to comment on the Minister of Health's health records was published in the Business Day today. It can be accessed here. The crux of my argument:
This means section 14 forbids a newspaper from publishing anything about anyone’s treatment or stay in hospital — no matter how important that person may be or what that person may have done in hospital. I would argue that this section unjustifiably limits the right to freedom of expression because it is over-broad and, in effect, prohibits newspapers from uncovering corruption, maladministration or abuse of power if it relates to hospitals.

The allegation that the health minister had abused her power to jump the queue for a liver transplant is a case in point. It is exactly the role of a free press to uncover the abuse of power by the custodians of our constitution.

If the minister had in fact abused her power in such a despicable way — which is something she denies — the public interest would overwhelmingly require newspapers to publish this relevant information to allow voters to decide for themselves what to think of the government of the day and whom to vote for in the next election.

Yet, if a newspaper published allegations of such abuse of power and relied on the medical records of the minister, it would be contravening section 14 of the National Health Act and would be committing a criminal offence. Section 14 can thus in effect be used by public figures to prevent the publication of embarrassing and damning details about corruption and abuse of power. This makes the section overly broad and, I would contend, unconstitutional.


Michael Osborne said...

Pierre, is it even necessary to go so far as to say that s. 14 is unconstitutional?

If one, like the DOH, insists on literally interpreting s. 14, it generates plainly silly results. The section states that “all information concerning a user, including information relating to health status, treatment, or stay in a health establishment, is confidential.” A “user” is defined as s. 1 as “the person receiving treatment in a health establishment.”

Suppose you visit your brother who had been in hospital for a while (a “user”). You would not be entitled to later report to your mother that he had asked that she go feed his cat the next morning. That is because, read in isolation, the “plain meaning” of s. 14 leaves no room for (a) the conveying of “information” that has nothing to do with medical treatment; (b) implied consent of the “user”; (c) whether the “information” is, of its nature, personal.

The principles of interpretation tell us to avoid readings that generate patently absurd results. Guided by the what one can deduce was the intent of the legislator here, the parameters of common-law doctor-patient confidentiality, and the privacy values in the constitution, it should not be difficult to develop a sensible interpretation of s. 14 that would not necessarily be unconstitutional.

Pierre de Vos said...

Hopefully we will find the judge that will be able and willing to do that....

Africannabis said...

Mean time the impartial media / newspapers - happily accept payment from the high-handed morality of the DOH... for their propaganda.

Yes the media does create perceptions. Funny that you can buy perceptions if the bloody media won't carry your viewpoint.

You know fuckit - let the taxpayer pay.

Africannabis said...

Ooops fancy that - that China trip took so much Out Of me, those homeless people prayed for me when I got back...

Slippery story this O3 Club

sadly again tax money not going where the health is required!