Dutton - Medical Malpractice in SA

Unlawfulness (Wrongfulness) 51
of the proposed treatment and its alternatives, including non-treatment. 129 A physician
may therefore be liable either where informed consent is totally lacking, or
where it has been inadequately given. 130 The doctrine of informed consent holds
that a patient’s consent to medical treatment is vitiated if he is given inadequate
information concerning the proposed treatment. The focus has increasingly
moved away from a doctor-centred approach to a patient-oriented one. 131
4.18 Refusal of treatment
An understanding of the nature and scope of the concept of informed consent
is usefully informed by a consideration of its antithesis: the right to refuse treatment.
South African law recognises an extensive right to refuse medical treatment.
132 The general rule, from which there are very few exceptions, is that a
person with full legal capacity cannot be forced to undergo medical treatment.
This applies regardless of whether or not the medical practitioner is of the view
that it would be in the patient’s best interests to undergo the treatment in question.
The patient may refuse medical treatment no matter how foolish or misguided
the refusal, and no matter how severe the consequences of refusing treatment
— even to the point of his or her death. 133
4.19 The patient’s autonomy and right to self-determination
Underlying the principles relating to informed consent and the right to refuse
treatment is the emphasis which our courts place on patient autonomy and the
right to self-determination. 134 Because a patient’s interests extend beyond purely
medical considerations, the patient may regard a particular treatment as undesirable
for personal, cultural or religious reasons which are not known to or shared
by the medical practitioner. From the narrow perspective of the medical issues
involved, the treatment may be indicated, but for broader reasons the patient
may regard the treatment as undesirable. Our courts, in keeping with the trend
in jurisdictions around the world, have shown a preference for the notion that ‘it
is clearly for the patient to decide whether he or she wishes to undergo the operation,
in the exercise of the patient’s fundamental right to self-determination.’ 135
4.20 The concept of informed consent 136
The most commonly encountered justification for medical intervention occurs
where a person has consented to the intervention. ‘Informed consent’ has, in
129
Giesen International Medical Malpractice Law (Martinus Nijhoff 1988) at 484.
130
Ibid.
131
Castell v de Greef 1994 (4) SA 408 (C) at 420G.
132
Castell v de Greef 1994 (4) SA 408 (C); Giesen International Medical Malpractice Law (Martinus
Nijhoff 1988).
133
Giesen International Medical Malpractice Law (Martinus Nijhoff 1988); Castell op cit at 421.
134
Castell 1994 (4) SA 408 (C).
135
Castell 1994 (4) SA 408 (C) at 420I.
136
The expression ‘informed consent’ may be, with some superficial justification, considered to
be tautologous. After all, one cannot validly consent without knowing what one is consenting