Dutton - Medical Malpractice in SA

58
Medical Malpractice in South African Law
The defence of necessity has the following requirements:
(a) An emergency situation must exist or be imminent; 175
(b) the medical intervention must be performed in the best interests of society
(and may therefore apply even where it is against the patient’s wishes); 176
(c) it is not necessary that the patient was incapable of consenting (even where
the patient was capable of consenting or the medical intervention was against
the patient’s will, the defence of necessity may be available). 177
4.29 Therapeutic privilege
Our law recognises that, in a medical context and in order to protect a patient,
a medical intervention may be indicated, but disclosure of the information in
question to the patient would be more harmful than non-disclosure. However,
the concept must be used with caution, as it will not be allowed to be abused as
a false justification to not secure informed consent. A related principle is that of
the so-called ‘doctor’s dilemma’ where the doctor on the one hand may frighten
the patient into not having the operation if he informs the patient of the risks
and, on the other, should he fail to disclose the risks he may render himself liable
to an action for assault. 178
4.30 Statutory authority
There are various statutory provisions which justify a medical intervention or
disclosure of information. A detailed assessment of these provisions is beyond
the scope of this work. 179
4.31 Court order
Medical intervention may be justified by a court order. This may arise where
the religious or cultural beliefs of the patient or of his or her parent precludes
providing consent to the medical intervention. In Hay v B 180 the question of the
refusal by a patient’s parents to consent to a blood transfusion to be performed
on their infant child was held to be at odds with the child’s best interests and the
Court granted an order authorising the blood transfusion. In Clarke v Hurst NO 181
the patient was in a ‘persistent vegetative state’ with no prospects of improvement
and no possibility of recovery. The Court authorised the withholding of
medical or surgical treatment or the discontinuance of any treatment, notwithstanding
that such conduct may have hastened the death of the patient.
175
Crown Chickens (Pty) Ltd v Rocklands Poultry 2007 (2) SA 118 (SCA) at 123.
176
Carstens & Pearmain Foundational Principles of South African Medical Law (LexisNexis 2007) at
909.
177
Ibid.
178
Therapeutic privilege is now dealt with in s 8(3) of the National Health Act, 61 of 2003 and
s 30 of the Promotion of Access to Information Act, 2 of 2000.
179
See, e g, ss 37(2) and 225(2) of the Criminal Procedure Act 51 of 1977; s 7(1)(d) of the National
Health Act 61 of 2003; and ss 26, 27, 32, 33 and 40 of the Mental Health Care Act 17 of 2002.
180
2003 (3) SA 492 (W).
181
1992 (4) SA 630 (D).