The Supreme Court of Appeal (SCA) has upheld the rights to patient confidentiality and ethics of University of Stellenbosch researcher Dr Regan Solomons.
The court dismissed the application by the Gauteng Health MEC for Solomons to hand over documentation and tapes related to various medicolegal actions mentioned in an article he had co-authored. At the time, Solomons was a Professor in the Department of the Paediatrics and Child Health within the Faculty of Medicine and Health Sciences at Stellenbosch University.
He was a co-author of an article titled, Intrapartum Basal Ganglia-Thalamic Pattern Injury and Radiologically Termed Acute Profound Hypoxic-Ischemic Brain Injury Are Not Synonymous. In the article, he was identified as the person to whom correspondence was to be addressed. The information required in the subpoena included names of parties, case numbers and judgments in various medicolegal actions referred to in the article. In addition, raw data, expert reports, medical records and MRI scans relating to cases referred in the article were also required to be handed over.
The respected academic was known for his groundbreaking research in the field of medical negligence and was highly regarded by his peers. However, his life took an unexpected turn on 21 May 2021 when the MEC issued a subpoena against him to hand over the data required for an action pertaining to a R29 million medical negligence claim.
Upon receiving the subpoena, Solomons was hesitant to comply as he believed it posed a threat to patient confidentiality and research ethics. The legal advisor of the university, Charmaine Wing, sent a letter to the State Attorney, explaining Solomons' position and requesting the withdrawal of the subpoena.
The MEC, feeling the urgency of the situation, filed an urgent application in the Gauteng High Court in Johannesburg to force Solomons to comply with the subpoena. Solomons' attorneys argued that he was bound by legislation to protect patient information and could not disclose it without proper consent or a court order. They also clarified that Solomons did not possess the documents requested in the subpoena, only de-identified data which he was willing to share.
The University of Stellenbosch. Picture: File
The high court ruled in favour of Solomons, stating that the application was futile as he did not have the documents sought and that his defense under Section 36 of the Superior Courts Act was valid. The court also noted that the subpoena was too broad and vague, making it unclear what specific information was being requested. The MEC was ordered to pay the costs of the application.
However, the MEC sought leave to appeal the decision, arguing that Solomons should still be compelled to disclose the whereabouts of the documents mentioned in the subpoena. The full court granted the appeal, leading to a hearing at the SCA.
During the hearing, the SCA questioned whether there was a live dispute between the parties, as Solomons had already stated that he did not possess the documents requested. The SCA found that there was no cause of action before the court of first instance and that the MEC's notice of motion had become academic.
The SCA concluded that the High Court should not have delved into the merits of the case since the cause of action had been extinguished. It then declined to consider the merits and struck the matter off the roll, again slapping the MEC with a cost order.
