Dutton - Medical Malpractice in SA

Unlawfulness (Wrongfulness) 53
condition and treatment is a waste of time because they do not understand the issues
anyway or that the stress of daily work-load of the physician demands that he can’t
concentrate his energies on more important goals. The person who consults a physician
is worried about his most precious assets: life, health, autonomy. He may already
have lost some of the most precious of human freedoms: freedom to move about and
freedom from the power of other persons. But a person’s increased vulnerability and
sickness-induced dependency should not be used as an excuse for more or less eliminating
his autonomy.’
The reality is that passing on information to people with lack of experience or
understanding can be difficult and time-consuming. But the law will not, for this
reason, tolerate proper consent not being obtained, or of the duty to do so being
circumvented or glossed over. Mere lip-service to foundational values of dignity,
equality, privacy and security of the person is unlikely to escape the opprobrium
of a legal system which regards those values as foundational. The task of obtaining
proper consent in these circumstances should be practised and refined, and techniques
developed so that communication is effective and efficient.
4.22 The nature and scope of the required consent
In South African law, for a patient’s consent to constitute a justification that
excludes the wrongfulness 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.
In Castell v De Greef, 143 the full bench of the Cape Provincial Division (per
Ackermann J) assessed the applicability of the doctrine of informed consent to
South African law. The Court endorsed the view 144 that, for consent to operate as
a defence, the following requirements, must be satisfied:
(a) the consenting party ‘must have had knowledge and been aware of the nature
and extent of the harm or risk’;
(b) the consenting party ‘must have appreciated and understood the nature and
extent of the harm or risk’;
(c) the consenting party ‘must have consented to the harm or assumed the risk’;
and
 (d) the consent ‘must be comprehensive, that is extend to the entire transaction
inclusive of all its consequences’. 145
Ackermann, J held: 146
‘In my view we ought, in South Africa, to adopt the above formulation laid down in
Rogers v Whitaker, 147 suitably adapted to the needs of the South African jurisprudence. It
is in accord with the fundamental right of individual autonomy and self-determination
143
1994 (4) SA 408 (C) at 425F–G.
144
Castell v de Greef 1994 (4) SA 408 (C) at 426.
145
Castell v de Greef 1994 (4) SA 408 (C) at 425 H–I (Referred to with approval in <Louwrens v
Oldwage 2006 (2) SA 161 (SCA) at [22]).
146
At 426.
147
[1993] 4 Med LR 79.