Dutton - Medical Malpractice in SA

Unlawfulness (Wrongfulness) 57
4.26 Emergencies and other defences excluding the need for informed
consent
Generally, an adult in full possession of his or her mental faculties is capable
of providing informed consent for the performance of surgery or other medical
treatment. There are a number of situations which generally arise. The defences
of negotiorum gestio and necessity both exist in their own right, as does the notion
of therapeutic privilege. It is, for present purposes, convenient to deal with these
three issues in turn.
4.27 Negotiorum gestio
The law recognises that there are situations in which the patient is unconscious,
in a state of delirium, shock or a coma, or otherwise incapable of providing
informed consent. The principles governing negotiorum gestio (unauthorised
administration) may apply where it is impossible to obtain the patient’s consent
to a medical intervention and it is urgently necessary to save his or her life, or to
preserve his or her health. 171
The defence of negotiorum gestio has the following requirements: 172
(a) there must be a situation of emergency which necessitates the intervention
(that is, there must be an immediate threat to the patient which precludes
waiting for the patient to be in a position to consent); 173
(b) the patient must be incapable of consenting (the defence arises only where it
is impossible to procure the patient’s consent);
(c) the intervention must not be expressly prohibited or against the patient’s will
(the defence implies that the patient would have consented to the intervention
if he or she had been in a position to do so); and
(d) the intervention must be intended to be in the patient’s best interests (the
intervention must be intended to save the patient’s life or protect his or her
health).
4.28 Necessity
Necessity justifies conduct which protects one’s own or another’s legally recognised
interest which is endangered by the threat of harm. 174 Unlike the defence of
negotiorum gestio, the defence of necessity does not necessarily require that the
conduct be performed in the best interests of the individual patient, and broader
considerations of the best interests of society are relevant.
171
Carstens & Pearmain Foundational Principles of South African Medical Law (LexisNexis 2007) at
907, esp fn 235 and the authorities cited therein.
172
Carstens & Pearmain Foundational Principles of South African Medical Law (LexisNexis 2007) at
907–908.
173
Stoffberg v Elliott 1923 CPD 148; Esterhuizen v Administrator, Transvaal 1957 (3) SA 710 (T).
174
Whether the defence negates the unlawfulness of conduct or whether it excludes fault has
not been finally determined: Crown Chickens (Pty) Ltd v Rocklands Poultry 2007 (2) SA 118
(SCA) at [11]. However, in most cases, this will make no practical difference.