Dutton - Medical Malpractice in SA

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Medical Malpractice in South African Law
pregnancy. 163 She must be advised by a medical practitioner 164 or a registered
midwife or registered nurse 165 to consult with her parents, guardian, family
members or friends before the pregnancy is terminated. Should the minor choose
not to consult as advised, the termination of the pregnancy shall not be denied
for that reason. Section 6 of the Choice on Termination of Pregnancy Act provides
that a woman who requests a termination of pregnancy from a medical
practitioner or a registered midwife or registered nurse shall be informed of her
rights under the Act by such person. 166
The constitutionality of the Choice on Termination of Pregnancy Act was
unsuccessfully challenged in Christian Lawyers Association v Minister of Health
(Reproductive Health Alliance as Amicus Curiae). 167 In dealing with the issue of
informed consent in terms of the Choice on Termination of Pregnancy Act,
the Court held that although ‘informed consent’ is not defined in the Act,
the concept rests on the three independent legs of knowledge, appreciation
and consent. 168 In respect of ‘knowledge’ the Court held that the Choice on
Termination of Pregnancy Act requires that the woman has full knowledge ‘of
the nature and extent of the harm or risk’; ‘appreciation’ implies more than
mere knowledge — the woman must also comprehend and understand the
nature and extent of the harm or risk and, that the ‘consent’ must be comprehensive
in that it must ‘extend to the entire transaction inclusive of its consequences.’
The Choice on Termination of Pregnancy Act does not specifically
provide that the child requesting termination of pregnancy must be sufficiently
mature and have the mental capacity to provide informed consent. However,
as appears from Christian Lawyers Association v Minister of Health (Reproductive
Health Alliance as Amicus Curiae), 169 inherent in the concept of ‘informed
consent’ is the notion that ‘valid consent can only be given by someone with
the intellectual and emotional capacity for the required knowledge, appreciation
and consent.’ 170
163
In terms of s 129(1) of the Children’s Act, the provisions of that section, (which deal with the
consent to medical treatment and surgical operation by children) are subject to s 5(2) of the
Choice on Termination of Pregnancy Act.
164
Section 1 of the Choice on Termination of Pregnancy Act defines a ‘medical practitioner’
as a person registered as such under the Medical, Dental and Supplementary Health Service
Professions Act, 56 of 1974.
165
Section 1 of the Choice on Termination of Pregnancy Act defines a ‘registered midwife’ and a
‘registered nurse’ as a person registered as such under the Nursing Act, 33 of 2005, and who
has in addition undergone prescribed training in terms of this Act.
166
See also s 5(3) of the Choice on Termination of Pregnancy Act.
167
2005 (1) SA 509 (T).
168
At 515. The Court referred with approval to Van Wyk v Lewis 1924 AD 438 at 451; Castell v De
Greef 1994 (4) SA 408 (C) at 425; C v Minister Correctional Services 1996 (4) SA 292 (T) at 300.
169
2005 (1) SA 509 (T).
170
Christian Lawyers Association v Minister of Health (Reproductive Health Alliance as Amicus Curiae)
2005 (1) SA 509 (T) at 516.