A Patient’s Right to Informed Consent

If you believe that you received medical treatment without having given your informed consent, learn more about a patient’s right to informed consent and how to get assistance here.

A patient must provide his/her informed consent for any medical treatment that he/she receives. The aforementioned principle was established in the matter of Stoffberg v Elliot, 1912 CPD, and has since formed a vital part of the South African legal system.

The requirements of informed consent were formulated in the matter of Castell v De Greeff, 1994 (4) SA 408 (C) A, as follow:

1. The patient must bear knowledge of the harm or risk, or must be aware thereof.
2. The patient must understand and appreciate the nature and extent of the harm or risk.
3. The patient must consent to the harm or risk.
4. The patient’s consent given must be intelligible, in other words, having the necessary knowledge of the risk or harm and understanding such risk or harm, the patient provides his/her consent which covers that risk or harm.

In addition to the cases provided above, the right to informed consent is recognised in section 12(2) of the Constitution which confirms every person’s right to bodily and psychological integrity. In the event that informed consent is not obtained, a person’s right to bodily and psychological integrity will be infringed, the infringement may however, in certain circumstances, be justified in law.

There are circumstances in which the patient’s informed consent may not able to be obtained, i.e., exceptions to the general rule of obtaining the patient’s informed consent. The exceptions to obtaining a patient’s informed consent are listed in section 7 of the National Health Act 61 of 2003, which includes, inter alia, incidents where a patient is unable to provide his/her consent and another person acting on the patient’s written authority provides such consent on the patient’s behalf. It is therefore important for both the healthcare provider and the patient to be aware of the requirements and exceptions to informed consent.

Should you believe that you received medical treatment without having given your informed consent, contact our Medical Negligence Department for assistance.

SOURCES:

1. Castell v De Greeff, 1994 (4) SA 408 (C) A;
2. “Preserving the Integrity of Medical-Related Information – How “Informed” is Consent?” (Vol 21) [2018] PER 38 by Mzukisi Niven Njotini (Accessed via SAFLII on 12 July 2022);
3. Stoffberg v Elliot, 1912 CPD;
4. The Constitution of the Republic of South Africa, 1996; and
5. The National Health Act 61 of 2003.

By: Marichelle Kuyper