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 AFRICAN MEDICAL LAW:

REFLECTIONS ON SIGNIFICANT

DEVELOPMENTS IN THE CASE LAW

MARNO SWART†

PhD Candidate in Medical Ethics and Law, University of Cambridge

PIETER CARSTENS‡

Emeritus Professor of Medical Law and Criminal Law; Former Director of the

Centre for Law and Medicine, University of Pretoria

The doctrine of informed consent is the foundation of the physician–patient

relationship. This doctrine remains controversial despite its importance, and issues

involving consent are frequently litigated. This article examines the application of

the doctrine of informed consent in South African medical law as it has developed

in South African case law. This examination rst sets a normative background for

consent as a ground of justication against a wrongful act in either contract or delict

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

Africa, 1996. Against this normative background, a selected anthology of nine

signicant judgments by South African courts is analysed, with specic attention

paid to the critical shift prompted by the promulgation of the Constitution. Finally,

the analyses of the nine judgments are consolidated and collated to draw conclusions

about the triumphs and failings of the South African courts, based on the normative

background. This analysis reveals which aspects of the doctrine of informed consent

have crystallised in South African medical law and which remain unclear.

Informed consent — patient autonomy — volenti non t iniuria — duty

to disclose

I INTRODUCTION

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

administers treatment or performs a procedure is a cornerstone principle

of medical law.1 Nevertheless, informed consent, as a doctrine of medical

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

† BA LLB LLM (Pretoria) MA (King’s College, London). ht tps://orcid.o rg/

0000-0001-8863-2923.

‡ BLC LLB LLD (Pretoria).

1Imogen Goold & Jonathan Herring Great Debates in Medical Law and Ethics

2 ed (2018) 29; Dieter Giesen International Medical Malpractice Law: A Comparative

Law Study of Civil Liability Arising 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 Carstens & Debbie Pearmain Foundational Principles of South

African Medical Law (2007) 877; N J B Claassen & T Verschoor Medical Negligence

(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 doctrine is the core and foundation of the relationship between a

patient and a physician. It stems from the law and is regulated by the

ethical rules 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 several 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airs as it

appears in practice.5 This is especially true for vulnerable patients, such

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

& McQuoid-Mason argue that the successful interplay between human

rights and the rules of medical ethics is crucial in providing adequate

healthcare services in a democratic and caring society.7 Consequently, a

burden rests on healthcare providers to ensure that their actions conform

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

in South Africa (1992) 57; F F W van Oosten The Doctrine of Informed Consent

in Medical Law (LLD thesis, University of South Africa, 1989) 11; Giesen ibid

at 252–3; S A Strauss & M J Strydom Die Suid-Afrikaanse Geneeskundige Reg (1967)

182.

3 Dhai & McQuoid-Mason ibid at 95–6; Carstens & Pearmain ibid at 877;

Giesen op cit note 1 at 252 –3.

4 Dhai & McQuoid-Mason ibid at 95; Carstens & Pearmain ibid at 877. For a

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

5 See for example Ebenezer Durojaye ‘Involuntary sterilisation as a form of

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

Carstens & Pearmain ibid at 877–8; Nanci Palmer & Mark Kaufman

‘The ethics of informed consent: Implications for multicultura l practice’ (2003) 12

Journal of Ethnic and Cultural Diversity in Social Work 1.

6 See for example in the context of South Africa: Durojaye op cit note 5

at 1; Willene Holness ‘Informed consent for sterilisation of women and girls

with disabilities in the light of the Convention on the Rights of Persons with

Disabilities’ (2013) 27 Agenda 36; Sumaya Mall & Leslie Swartz ‘Sexuality, dis-

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

SA Medical Journal 792. Internationally see Anwuli Irene Ofuani ‘Protecting

adolescent girls with intellectual disabilities from involuntary sterilisation in

Nigeria: Lessons from the Convention on the Rights of Persons with Disabi lities’

(2017) 17 African Human Rights Law Journal 551; Ronli Sifris ‘The involuntary

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ed?’ (2013) 3 Victoria University Law and Justice Journal 27; Laurent Servais

‘Sexual health care in persons with intellectual disabilities’ (2006) 12 Mental

Retardation and Developmental Disabilities Research Reviews 48; Douglas S Diekema

‘Involuntary sterilization of persons with mental retardation: An ethical analysis’

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

& Kaufman ibid at 9; Elizabeth Kingdom ‘Consent, coercion and consortium:

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

7 Dhai & McQuoid-Mason 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 standards.8

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

— as South African courts have articulated it — as a manifestation of

human rights and the rules of medical ethics.9 First, we contextualise 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 ethico-

legal rules sustaining the doctrine. Secondly, we undertake an in-depth

discussion of South African case law, analysing important judgments on

the doctrine before and after the promulgation of the Constitution of the

Republic of South Africa, 1996. Thirdly and nally, we analyse the case

law to expose our courts’ triumphs and failings.

This article will examine the doctrine of informed consent in 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 distilled, facilitating the bridging, in future court decisions, of

the gap between the normative ideal of this doctrine and the actual state

of aairs.

II THE DOCTRINE OF INFORMED CONSENT AS A

DEFENCE OR GROUND OF JUSTIFICATION AGAINST

A WRONGFUL ACT

In this part of the article, the doctrine 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 between physician and patient and by analysing

the ethico-legal development away from medical paternalism in favour of

patient autonomy. Subsequently, the constitutional rights underpinning

this doctrine will be examined to set the legal background against which

the case law will be analysed.

(a) The relationship between physician and patient

The relationship between physician 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, consisting

8 Ibid.

9This doctrine is underpinned by several human rights, as will be discussed

below. See for example David McQuoid-Mason ‘An introduction to aspects of

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

Journal of Bioethics and the Law 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 & Louis Kotzé (eds) Inleiding tot die Reg en Regsvaardighede in

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

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

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