The principle of informed consent
11 Jan 2022
A medical practitioner is required to get a patient’s informed consent before providing any health-related treatment or service. Failure to do so can constitute medical malpractice.
Nonetheless, failure to obtain proper informed consent may be fairly commonplace in South Africa’s hospitals.
A 2018 doctoral study of public hospitals in the EThekwini municipality, for example, found that, “healthcare professionals had limited knowledge regarding ethical and legal requirements for informed consent, and were partially compliant with current informed consent regulations.”
In this article, we explore the principle of informed consent in South African law. We also consider how it can contribute to medical malpractice claims.
The legal principle of informed consent in South Africa
Worldwide, the principle of informed consent plays an important role in protecting the rights of patients.
It protects individuals from being subjected to medical procedures or treatments they don’t want, and from agreeing to any procedure or treatment without being properly informed of associated risks and consequences.
In South Africa, legal requirements for obtaining informed consent are codified in Section 7 of the National Health Act 2003 (NHA).
What counts as informed consent?
Under the NHA, a doctor or other healthcare practitioner in South Africa must provide a patient with the following information before getting consent to a procedure:
- the patient’s health status (unless, based on substantial evidence, this disclosure isn’t in the patient’s best interests)
- available diagnostic procedures and treatment options for addressing the patient’s health issue(s)
- for each alternative, relevant benefits, risks and consequences
- the right of the patient to refuse treatment and relevant implications, risks and obligations.
As far as reasonably possible, the healthcare practitioner must ensure that the patient properly understands this information.
For example, the practitioner should communicate in the patient’s own language, where possible, and use suitable vocabulary, given the patient’s literacy level.
Exceptions to the requirement for informed consent
South African law defines certain exceptions to the requirement for informed consent.
A patient may be unable to provide informed consent, for example if he or she is unconscious.
Where this happens, consent may instead be provided by:
- another person mandated in writing by the patient or authorised by law to give consent on the patient’s behalf
- a family member (in order, a spouse or partner, parent, grandparent, adult child or sibling).
The requirement for informed consent may be waived if failure to treat the patient will pose a serious risk to public health.
It can also be waived if failure to treat could result in the patient’s death or irreversible damage to the patient’s health. However, this applies only if the patient has not refused the treatment or health service, either expressly or in a way implied by conduct.
Lack of informed consent and medical malpractice
A medical malpractice claim can be pursued if a medical procedure results in serious injury (or death) and the patient’s informed consent was not properly obtained.
This type of claim may be made against the State (in the case of a public hospital); a private hospital and/or individual healthcare practitioners.
Types of compensation claimed can include past and future medical expenses, past and future loss of earnings and general damages, in the case of severe or disfiguring injury.
Compensation for funeral expenses and for loss of support can also be claimed if a family member has died due to medical malpractice.
The first step to take if you have a malpractice claim
If you may have a medical malpractice claim, it’s vital to contact a suitably qualified attorney, ideally with experience in handling similar types of claims.
The attorney can assess the claim, provide important legal advice and represent your interests in legal proceedings and settlement negotiations.
DSC Attorneys specialises in medical malpractice claims and has extensive experience in handling cases involving failure to obtain informed consent. We work on a no win, no fee basis. Contact us for the best chance of receiving the compensation you deserve.
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(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)