Dutton - Medical Malpractice in SA

54
Medical Malpractice in South African Law
to which South African law is moving. This formulation also sets its face against
medical paternalism, from many other species whereof South Africa is now turning
away. It is in accord with developments in Canada, the United States of America and
Australia, as well as judicial views on the continent of Europe … I therefore conclude
that, in our law, for a patient’s consent to constitute a justification that excludes the
wrongfulness of medical treatment and its consequences, a doctor is obliged to warn
a patient so consenting of a material risk inherent in the proposed procedure; a risk
being material if, in the circumstances of the particular case:
(a) a reasonable person in the patient’s position, if warned of the risk, would be likely
to attach significance to it; or,
(b) the medical practitioner is or should reasonably be aware that the particular patient,
if warned of the risk, would be likely to attach significance to it.
This obligation is subject to the so-called ‘therapeutic privilege, whatever the ambit of
the so-called “privilege” may today still be.’ 148
What a careful and responsible doctor will disclose depends on the circumstances
of the case. These will include, but not necessarily be restricted to, the
nature of the matter to be disclosed, the nature of the treatment and the desire
of the patient for information and the temperament and health of the patient. 149
The decision in Castell v de Greef is widely regarded as the locus classicus on
informed consent in South African law. However, the test formulated in Castell
has, somewhat surprisingly, never been expressly approved by the Supreme Court
of Appeal. What is more, the ‘reasonable doctor’ approach (expressly rejected by
the full bench in Castell), received a nod of approval in Louwrens v Oldwage. 150
This decision has attracted criticism and, it is submitted, must be viewed with
caution. 151 It should also be noted that the Supreme Court of Appeal did not
overrule the ratio in Castell v De Greef. In the final analysis, it is submitted that
the detailed and persuasive analysis of the principles governing the doctrine of
informed consent in South Africa set out in Castell v De Greef continue to correctly
set out the legal principles.
4.23 The consent of minors 152
An adjunct of the recognition of patient autonomy is an increasing awareness
and recognition of children’s capacity to make health-care decisions. 153 In addition
to the general provisions relating to informed consent to medical treatment
and surgical operations contained in section 129, the Children’s Act, 38 of 2005
specifically deals with the following issues relating to the health of children
148
Discussed below at 4.29.
149
F v R (1983) 33 SASR 189 at 191 (approved in the Australian case of Rogers v Whitaker [1993] 4
Med LR 79 at 51, which was in turn approved in Castell v De Greef 1994 (4) SA 408 (C) at 427).
150
2006 (2) SA 161 (SCA).
151
See, esp, Carstens and Pearmain Foundational Principles of South African Medical Law (2007
LexisNexis, South Africa) at 893; Wilson 2006 De Rebus, 25.
152
See generally, C J Davel & A M Skelton Commentary on the Children’s Act Revision Service 6
(Juta 2013) ch 7 ‘Protection of Children’, esp, ss 129–134.
153
See, e g article 12 of the United Nations Convention on the Rights of the Child.