No you don't: state to tackle Tiger over listeriosis data
Tiger Brands wants patients' medical records, but the Health Department says that's against the law
Tiger Brands wants the names and health information of every patient who contracted listeriosis, including what other diseases they had and autopsy information, say inside sources – but the Health Department has fired back, saying it would not be legally permissible.
In April, Tiger Brands used a Promotion of Access to Information (PAIA) request to wrest the data of the 967 patients, reported or identified since 2017, from the National Health Laboratory Service, according to Tiger Brands spokesperson Nevashnee Naiker.
However, department spokesperson Popo Maja has vowed it will defend the right to not hand over people’s private medical information to lawyers, while Health Minister Aaron Motsoaledi said: “Ordinarily it is not allowed by law. People won’t go to hospital if they know their records will be given to a third party. We will have to check with lawyers if we are obliged to give them the data.”
The number of people who are known to have contracted listeriosis has risen to 1,024, 199 of whom have died. Most victims were younger than 28 days.
An expert in medical law, who did not wish to be named, explained that when people access health facilities they do so knowing their medical information will be kept private “and not handed over to a food producer”.The National Health Act stipulates that “all information concerning a user, including information relating to his or her health status, treatment or stay in a health establishment, is confidential”.
Information may be shared, however, if the user consents to the disclosure in writing; a court order or any law requires disclosure; or where the non-disclosure of the information represents a serious threat to public health. Tiger Brands said the reason it needed the data was “obvious”: to check the claimants are legitimate. Naiker said: “In fulfilling its commitment to acting expeditiously and doing the right thing, Tiger Brands needs this information in order to assess the claims that have been made against it.”One insider speculated that the information requested was so detailed, it would allow Tiger Brands to argue that certain patients didn’t die of listeriosis since they had an underlying disease or were born prematurely.
People who contract listeriosis are either very young or old and have an underlying condition weakening their immune system.
But Tiger Brands has reiterated: “We will not shun our responsibilities.
“The legal process must follow its course, but, as we have also stated publicly before, Tiger Brands is committed to doing the right thing, and to acting expeditiously.”
An insider said: “The lack of autopsy results and the fact that some listeriosis patients didn’t have the strain that made them sick identified, could be used to argue to get Tiger Brands off the hook.”
The National Institute for Communicable Diseases (NICD) has only tested 521 samples to determine which sequence type of listeria caused the patients’ illness.About 85% of all patients had ST6, the strain found in the ready-to-eat meat at Tiger Brands’ Polokwane factory.An attorney at Shepstone &Wylie, Verlie Oosthuizen, said the Promotion of Personal Information Act (POPI), which protects people's data, is not yet in force. “I think that Tiger Brands may have grounds for a request [for patient names] in terms of PAIA. However, the department may also have grounds for the refusal. If Tiger Brands is legitimately trying to obtain the information in order to assist with the investigation of the listeriosis outbreak, then it may be entitled in terms of PAIA.“Obviously, Tiger Brands is going to have to show their bona fides and be transparent about the need to obtain the names. If they were happy to have ‘de-identified’ information about the patients – that is, no names or certain details – then they would not fall foul of POPI (if it were in force).”Naiker said Tiger Brands had also put in PAIA requests for more detailed scientific information about all of the NICD test results, but the company is not happy with what has been provided.
The institute “has yet to share its findings and the underlying basis for those findings with us”. The response “is incomplete as certain important information has still not been provided”. Discussions between Tiger Brands’ lawyers and the class-action lawyers are ongoing, attorney Richard Spoor said.