The application of the doctrine of informed consent in South African medical law: Reflections on significant developments in the case law

• Citation: (2024) 141 SALJ 45
• DOI: https://doi.org/10.47348/SALJ/v141/i1a4
• Published date: 13 February 2024
• Pages: 45-83
• Author: Swart, M.
• Date: 13 February 2024

45

https://doi.org/10.47348/SALJ/v141/i1a4

THE APPLICATION OF THE

DOCTRINE OF INFORMED CONSENT

IN SOUTH AFR ICAN MEDICAL L AW:

REFL ECTIONS ON SIGNIFICANT

DEVELOPMENTS IN THE CASE LAW

MARNO SWART†

PhD Candidate in Medical Eth ics and Law, University of Ca mbridge

PIETER CARSTENS‡

Emeritus Profe ssor of Medical Law and C riminal Law; Forme r Director of the

Centre for Law and M edicine, University of Pretor ia

The doctr ine of informed conse nt is the foundation of th e physician–pat ient

relationship. Thi s doctrine rema ins controversial d espite its importa nce, and issues

involving conse nt are frequently litigated. T his article e xamines the applic ation of

the doctrine o f informed consent in S outh African med ical law as it has de veloped

in South Afric an case law. This exa mination rst sets a n ormative backgroun d for

consent as a groun d of justication aga inst a wrong ful act in eithe r contract or delict

(or both) that is signi cantly inuence d by the Constitution of the R epublic of South

Africa, 1996. Against this n ormative backgrou nd, a selected anthology o f nine

signicant jud gments by South Afr ican courts i s analysed, with speci c attention

paid to the criti cal shift prompted by th e promulgation of the Con stitution. Finally,

the analyses of the nin e judgments are consol idated and collated to draw c onclusions

about the trium phs and failings of the Sou th African cour ts, based on the norm ative

background. T his analysis reveals w hich aspects of t he doctrine of infor med consent

have crystalli sed in South Africa n medical law and whi ch remain unclear.

Informed c onsent — patient autonom y — volenti non t iniur ia — duty

to disclose

I IN TRO DUCT ION

The prerequisite t hat lawfu l consent be given before a hea lthcare provider

admin isters treatment or performs a procedure is a cornerstone principle

of medical law.1 Nevertheless, i nformed consent, as a doctri ne of medical

law, remains contr oversial, consisti ng of several (often complicated) f acets.2

† BA LLB LLM (P retoria) M A (King’s Col lege, London). ht tps://orc id.o rg/

0000-0001-8863-2923.

‡ BLC LLB LLD (Pre toria).

1 Imogen Goold & Jona than Herr ing Great De bates in Medical L aw and Ethics

2 ed (2018) 29; Dieter Giesen Int ernational Medi cal Malpractice L aw: A Comparative

Law Study of Civ il Liability Arisin g from Medical Care (1988) 252 –4.

2 See for ex ample Ames Dhai & D avid McQuoid-Mason (ed s) Bioethics, Human

Rights and Health L aw: Principles and P ractice 2 ed (2020) 96; Goold & Herr ing op cit

note 1 at 29; Pieter Ca rstens & Debbie Pea rmain Fo undational Pri nciples of South

African Medi cal Law (200 7) 877; N J B Claasse n & T Verschoor Medical Negligen ce

(2024) 141 SALJ 45

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46 (2024) 141 THE SOUTH A FRICAN LAW JOURNA L

https://doi.org/10.47348/SALJ/v141/i1a4

This doct rine is the core and foundation of the relat ionship between a

patient and a physician. It stems from t he law and is regu lated by the

ethical r ules of the healthcare professions.3 The importation of this

doctrine into South Afr ican medical law resulted in a paradigm shift from

medical paternalism to patient autonomy.4 Although severa l established

legal and ethical ru les underpin this doct rine, there is often a gap bet ween

the normative ideal endorsed by it and the actual state of aair s as it

appears in pr actice.5 This is especial ly true for vulnerable patient s, such

as those with an intellect ual disability that reduces their capacity.6 Dhai

& McQuoid-Mason a rgue that the succe ssful interplay between human

rights a nd the rules of med ical ethics is crucial in providing adequate

healthcare services in a democratic and caring societ y.7 Consequently, a

burden rests on hea lthcare providers to ensure that their actions con form

to the requireme nts of professional ethic s and human right s and to interject

in South Afric a (1992) 57; F F W van Oosten The Doctr ine of Informed Con sent

in Medical La w (LLD thesi s, Universit y of South Afr ica, 1989) 11; Giesen ibid

at 252–3; S A Straus s & M J Strydom Di e Suid-Afrikaan se Geneeskundige R eg (1967 )

182.

3 Dha i & McQuoid-Ma son ibid at 95–6; Ca rstens & Pear main ibid at 8 77;

Giesen op cit note 1 at 252 –3.

4 Dhai & McQuoid-Mas on ibid at 95; Carsten s & Pearmai n ibid at 877. For a

general d iscussion of this sh ift see Goold & Her ring op cit note 1 at 11–12.

5 S ee for example Ebene zer Durojaye ‘Involunt ary ster ilisat ion as a form of

violence aga inst women in Afr ica’ (2018) 53 Journal of Asian and Af rican Studies 721;

Carsten s & Pearmai n ibid at 877–8; Nanci Pa lmer & Mark K aufma n

‘The ethic s of informed con sent: Implica tions for multic ultura l practice’ (2003) 12

Journal of Ethn ic and Cultural Diver sity in Social Work 1.

6 See for exa mple in the context of S outh Afric a: Durojaye op cit note 5

at 1; Willene Hol ness ‘Infor med consent for ster ilisat ion of women and girl s

with dis abilitie s in the light of t he Convention on the Ri ghts of Persons w ith

Disabil ities’ (2013) 27 Agenda 36; Sumaya Mall & L eslie Swar tz ‘Sexua lity, dis-

abilit y and human r ights: Strengthen ing healthcare for di sabled people’ (2012) 102

SA Medical Journal 792. Inter national ly see Anwu li Irene Of uani ‘Prot ecting

adolescent gi rls with i ntellectu al disabi lities f rom involuntar y steril isation in

Nigeria : Lessons f rom the Convention on the R ights of Person s with Disabi lities’

(20 17) 17 Africa n Human Rights L aw Journal 551; Ronli Sif ris ‘The involu ntary

steril isation of margi nalised women: Power, discr imination, a nd intersectional ity’

(2016) 25 Grith La w Review 45; John Tobin & Elliot Lu ke ‘The involuntar y, non-

therapeutic s terilisat ion of women and girls wit h intellectua l disability : Can it ever

be justie d?’ (2013) 3 Victoria Univ ersity Law and Ju stice Journal 27; Lau rent Servai s

‘Sexua l health car e in persons w ith intellec tual di sabilitie s’ (2006) 12 Mental

Retardation and D evelopmental D isabilities Resea rch Reviews 48; Dou glas S Diekem a

‘Involuntar y steri lization of pe rsons with men tal retar dation: An et hical an alysis’

(2003) 9 Mental R etardation and Development D isabilities Research Revie ws 22; Palmer

& Kaufm an ibid at 9; Eli zabeth Ki ngdom ‘Consent, coe rcion and consor tium:

The sexua l politics of steril isation’ (1985) 12 Journal of Law and Soc iety 19.

7 Dhai & McQuoid-Ma son op cit note 2 at 43.

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INFORM ED CONSENT IN SOU TH AFRICAN M EDICAL LAW 47

https://doi.org/10.47348/SALJ/v141/i1a4

(in their capac ity as advocates for and guardians of t heir patients) when the

actions of others within their eld do not conform to those standard s.8

This ar ticle will ex amine the medico -legal doctr ine of informed consent

— as South Af rican courts have articulated it — as a ma nifestation of

human rights and the rules of medical ethics.9 First, we contextual ise the

importa nce of consent as a defence again st a wrongful act w ithin the real m

of the physician– patient relationship, after which we discuss the eth ico-

legal ru les sustai ning the doct rine. Secondly, we undertake an in- depth

discussion of South African case law, analysing impor tant judgment s on

the doctri ne before and after the promulgation of the Constitution of the

Republic of South Af rica, 1996. Thirdly and na lly, we analyse t he case

law to expose our courts’ triumphs and failings.

This ar ticle wil l examine the doctrine of i nformed consent i n South

Afr ica through a multi -level but integrated approach.10 Thus , the regulat ing

framework (with the supreme provisions of the Constitution at its core)

will be distil led, facilitating t he bridgin g, in future court decisions, of

the gap between t he normative idea l of this doctrine and the act ual state

of aair s.

II THE DOCTRIN E OF INFORM ED CONSENT AS A

DEFENCE OR GROUND OF JUSTIFICATION AGAINST

A WRONGFUL ACT

In this part of the art icle, the doctri ne of informed consent in South

Afr ican medical law wi ll be put into context by briey ex amining t he legal

nature of the relationship bet ween physician and patient and by analysing

the ethico-leg al development away from med ical paternalism in f avour of

patient autonomy. Subsequently, the constitutional rig hts underpi nning

this doct rine will be exam ined to set the legal background ag ainst which

the case law will be ana lysed.

(a) The relationship bet ween physician and patient

The relationsh ip between physicia n and patient was traditionally viewed

as a subject matter situated in the realm of private law and belonging

exclusively to the law of obligations.11 The law of obligations, consi sting

8 Ibid.

9 This doc trine is u nderpinned b y several huma n rights , as wil l be discus sed

below. See for example Dav id McQuoid-Mason ‘An int roduction to a spects of

health law: B ioethical princ iples, human rig hts and the law’ (2008) 1 S outh African

Journal of Bio ethics and the L aw 7.

10 See t he explanation a nd importance o f this approach in Ca rstens & Pearm ain

op cit note 2 at 1–2.

11 Tracy Humby & L ouis Kotzé (eds) Inleid ing tot die Reg en Regsvaardig hede in

Suid-Afrika (2013) 174; Carstens & Pearm ain ibid at 283; S A Strau ss Doctor, Patient

and the Law: A Sel ection of Practic al Issues 3 ed (1991) 3.

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