Medical Treatment and Patient Consent

As a general rule, a patient must provide informed consent before any medical treatment or procedure may be performed. This principle was recognised in the landmark case of Stoffberg v Elliot 1923 CPD 148, and remains a fundamental component of South African medical law.

The requirement for informed consent is now codified in the National Health Act 61 of 2003 ("the Act").

What is Informed Consent?

The Act defines informed consent as consent for the provision of a specified health service given by a person with the legal capacity to do so and who has been properly informed as contemplated in section 6 of the Act.

Section 6 of the Act requires every healthcare provider to inform a patient of:

• the patient's health status, except where disclosure would be contrary to the patient's best interests;

• the range of diagnostic procedures and treatment options generally available;

• the benefits, risks, costs, and consequences associated with each option; and

• the patient's right to refuse treatment and the implications, risks, and obligations arising from such refusal.

Where reasonably possible, this information must be communicated in a language and manner that the patient understands, taking into account the patient's level of literacy and comprehension.

The Requirements for Valid Consent

The requirements for informed consent were considered in Castell v De Greeff 1994 (4) SA 408 (C), where the court held that:

• the patient must be aware of the nature and extent of the risk involved;

• the patient must understand and appreciate that risk;

• the patient must voluntarily consent to the treatment despite the risk; and

• the consent must cover the particular treatment and associated risks.

In addition, section 12(2) of the Constitution guarantees every person's right to bodily and psychological integrity, including the right to security and control over their own body. The doctrine of informed consent therefore serves to protect a patient's constitutional rights and personal autonomy.

Exceptions to the Requirement for Consent

Although informed consent is generally required, the National Health Act recognises certain circumstances in which healthcare services may be provided without the patient's consent.

Section 7 of the Act permits treatment without the patient's direct consent where:

• the patient is unable to provide informed consent, and consent is given by a person authorised by the patient, by law, or by a court order;

• the patient is unable to consent, and no authorised person is available, in which case consent may be obtained from the patient's spouse or partner, parent, grandparent, adult child, brother or sister in the order prescribed by the Act;

• treatment without consent is authorised by legislation or a court order;

• failure to treat the patient would pose a serious risk to public health; or

• any delay in treatment may result in the patient's death or irreversible damage to the patient's health and the patient has not expressly or impliedly refused the treatment.

The Act further requires healthcare providers to take all reasonable steps to obtain informed consent before relying on any of these exceptions.

Accordingly, where a patient is incapable of consenting and immediate treatment is necessary to save life or prevent serious and irreversible harm, the law permits treatment without consent.

Consequences of Failure to Obtain Informed Consent

Failure to obtain informed consent may expose a healthcare practitioner to legal liability.

Medical treatment performed without valid consent may constitute an unlawful infringement of a patient's bodily integrity and may give rise to a claim for damages. Depending on the circumstances, liability may arise in contract, delict, or both.

However, a distinction must be drawn between a lack of consent and negligent treatment. A patient may consent to a procedure yet still have a claim if the procedure is performed negligently.

Conclusion

The principle of informed consent is firmly entrenched in South African law and reflects the constitutional values of dignity, autonomy and bodily integrity. As a general rule, medical treatment may only be provided with a patient's informed consent. Although the law recognises limited exceptions in circumstances such as emergencies, healthcare practitioners remain under a duty to obtain consent wherever reasonably possible and to ensure that patients are adequately informed before making decisions concerning their healthcare. treatme 

Fraser Stockley

BCom Law; LLB

Partner at Le Roux Vivier Attorneys

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