Consent in South African medical law is regarded as a justification ground negativing wrongfulness in respect of delictual claims. The consent must be informed.
In the absence of properly informed consent any medical procedure is prima facie wrongful. Performing a medical procedure in the absence of properly informed consent also constitutes a violation of a patient’s constitutional right to bodily integrity in terms of section 12(2)(b) of the Constitution.
In the context of a contractual claim the absence of sufficiently informed consent constitutes a breach of contract giving rise to an action in damages.
In both the contractual and delictual settings for consent to operate as a defence the following requirements must be satisfied:
1.1 the consenting party must have had knowledge and been aware of the nature and extent of the harm or risk;
1.2 the consenting party must have appreciated and understood the nature and extent of the harm or risk;
1.3 the consenting party must have consented to the harm or assumed the risk;
1.4 the consent must be comprehensive, that is, extend to the entire transaction inclusive of its consequences.
In the medical context, there is simply no possibility of true consent, unless – because of the specialised nature of medical procedures – the patient has been adequately informed of the nature of the possible procedure, and the consenting party knows and appreciates what it is that he or she consents to.
In South African law the content of the consent required is regulated by statute. In Chapter 2 of the National Health Act, Act No 61 of 2003 (“the Act”), section 6 provides as follows:
“6. User to have full knowledge. – (1) Every health care provider must
inform a user of –
(a) the user’s health status except in circumstances where there is substantial evidence that the disclosure of the user’s health status would be contrary to the best interests of the user;
(b) the range of diagnostic procedures and treatment options generally available to the user;
(c) the benefits, risks, costs and consequences generally associated with each option; and
(d) the user’s right to refuse health services and explain the implications, risks, obligations of such refusal.
(2)The health care provider concerned must, where possible, inform the user as contemplated in subsection (1) in a language that the user understands and in a manner which takes into account the user’s level of literacy.” Section 7(1) of the National Health Act provides that a health service may not be provided to a user without the user’s informed consent, and then lists a number of exceptions which are not relevant to the present case.
Section 7(2) provides that a health care provider must take all reasonable steps to obtain the user’s informed consent. In terms of section 7(3), for the purposes of section 7 “informed consent” means consent for the provision of a specified health service given by a person with legal capacity to do so and who has been informed as contemplated in section 6.
There is some controversy as to whether the performance of a medical procedure without the requisite consent constitutes fault in the form of intent or negligence. In Castell v De Greeff (supra) the Full Bench of the Cape Provincial Division favoured the approach that the performance of a medical procedure in the absence of consent constitutes an assault. In Broudie v MacIntosh, the Supreme Court of Appeal expressed reservations about the construction that failure to adequately disclose risks associated with a procedure by a doctor
constitutes assault. The reservations were, however, expressed as obiter dicta and did not overrule the decision in Castell v De Greeff.
It is in any event negligent for a medical practitioner to perform a medical procedure without consent. It is not sufficient that the medical practitioner subjectively thought that he had the requisite consent, if that subjective consideration was not reasonable in the circumstances. In the context of the test for culpa, as expressed in Kruger v Coetzee it cannot be gainsaid that a medical practitioner in the position of Defendant ought to have known that the performance of the operation on the Plaintiff’s right-hand side would include additional physical insult to Plaintiff and a high probability that peritoneal tears would occur, with the possibility of further complications. A necessary step to strip the harm of its unlawful characteristic is to ensure that the patient understood the explanation for the procedure and the risks associated therewith, and consented to proceed with that procedure, rather than a more limited one.
The decision in Castell v De Greeff emphasized and introduced an approach in our law that favours patient autonomy over medical paternalism. The approach that a determination of the scope of the doctor’s duty to disclose is to be measured against the so-called “reasonable doctor” test in terms of which the determination of the legal duty to disclose is left to the judgment of doctors was expressly rejected in Castell v De Greeff.
In the latter case Ackerman, J, concluded that in our law for a patient’s consent to constitute a justification that excludes the element of wrongfulness in respect of medical treatment and its consequences, the doctor is obliged to warn a patient so consenting of a material risk inherent in the proposed treatment; the risk being material if, in the circumstances of the particular case: (a) a reasonable person in the patient’s position if warned of the risk would be likely to attach significance to it; or (b) the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.
A hospital consent document which is signed by a Plaintiff only is not a contract between the patient and the doctor.
In the United Kingdom clauses such as the extension clause in the hospital consent form in this case are no longer in use. It is highly questionable whether the clause would be enforceable.