Disclosing details about the medical treatment of a deceased public figure in a book: Who should have consented to the disclosures in Mandela’s Last Days?

Abstract

A recently published book by the head of Nelson Mandela’s medical team made personal disclosures about his treatment of the late president in his final years up until his death. The author claimed that he had written the book at the request of family members. This was contested by some family members and the executors of Mandela’s estate, and the book was subsequently withdrawn by the publishers. The Mandela book case raises ethical and legal questions about who should consent to publication of medical information about public figures after their death. The ethical rules of conduct of the Health Professions Council of South Africa (HPCSA) state that confidential information about a deceased person should only be divulged ‘with the written consent of his or her next of kin or the executor of his or her estate’. ‘Next of kin’ is not defined, however, and problems arise when family members and the executors are divided about giving such written consent. It is recommended that in such cases the specific order of priority for consent by relatives in the National Health Act be followed. However, conduct that is unethical under the rules of the HPCSA may not necessarily be actionable under the law. For instance, the law does not protect the confidentiality of deceased persons, and generally when people die their constitutional and common-law personality rights – including their right to privacy and confidentiality – die with them. This means that the next of kin or executors of the estates of deceased persons may not bring actions for damages on behalf of such persons for breaches of confidentiality arising after their deaths. The next of kin may, however, sue in their personal capacity if they can show that the disclosures were an unlawful invasion of their own privacy. Conversely, if the privacy of interests of the next of kin are not harmed where there has been publication without their consent, they will not be able to sue for damages.