People generally rely on their doctor’s knowledge and expertise when it comes to making an informed decision about treatment or undergoing a procedure or not. This is a relationship of good faith and trust. Unfortunately, sometimes doctors get it wrong and fail to properly inform their patients of the inherent risks to a treatment or procedure. When does such failure amount to a lack of informed consent?

As early as 1923, in one of the earliest cases heard by the then Cape of Good Hope Provincial Division, in the case of Stoffberg v Elliot, our Courts have held that “[a] patient by entering a hospital does not submit himself to such surgical treatment as the doctors in attendance may consider necessary, and any operation performed without his consent is an unlawful infringement of his right to personal security entitling him to compensation for such damage as he has suffered”, making it clear that informed consent is required when any procedure is undergone. 

Obtaining informed consent may be initiated by communication between a medical practitioner and a patient, which may lead to an agreement or consent for care, treatment, or services. For this to happen, amongst other requirements, sufficient information must be provided to a patient to make an informed decision after understanding the nature of their decision. This is in line with everyone’s right to human dignity, autonomy and the right to bodily and psychological integrity. 

According to the South African Medical Association, some of the elements of informed consent include:

• It must be voluntary and without constraint.
• It must not conflict with public policy or the Constitution.
• The patient must be capable of consenting.
• There should be sufficient information on the diagnosis, proposed treatment, expected benefits, risks, alternative treatment and probable results etc. 

There may be circumstances where a patient may not be able or capable of providing informed consent. For example, the Children’s Act 38 of 2005 states that a child must be over the age of 12 years to consent to his or her medical treatment if the child is of sufficient maturity and has the mental capacity to understand the benefits, risks, social and other implications of the treatment.

In 2014 our Supreme Court of Appeal in the matter of Sibisi NO v Maitin held that in the past our courts have determined that the test to determine whether a medical practitioner was negligent by not disclosing a risk to a patient was whether a reasonable practitioner would have disclosed the risk or not. If the risk is too small and could not be foreseen, the doctor will not have been negligent by not disclosing it. However, the appellant urged the court to develop the common law and argued that “the test should rather be whether the reasonable patient, in her position, if warned of the risk, would attach significance to it”.

Later, in the case of Beukes v Smith the Supreme Court of Appeal stated that “[a] risk is regarded as material when a reasonable person in the patient’s position if warned of the risk, would likely attach significance to it; or where the medical practitioner is aware that the patient if warned, would likely attach significance to it”.

Although patients have a right to informed consent, it should also be understood that this is not absolute, and although a patient can have a case to sue for damages where informed consent was not obtained, where it can be proven that informed consent was provided this can affect your ability to claim for injury or damage resulting from a treatment or procedure. 

Should you however feel that informed consent was not present and that your doctor did not explain all the risks involved in your procedure or treatment, it would be prudent to discuss the merits of your case with your attorney or a medical malpractice specialist to help you ascertain whether there are grounds for claiming a lack of informed consent.

Disclaimer: This article is the personal opinion/view of the author(s) and is not necessarily that of the firm. The content is provided for information only and should not be seen as an exact or complete exposition of the law. Accordingly, no reliance should be placed on the content for any reason whatsoever and no action should be taken on the basis thereof unless its application and accuracy have been confirmed by a legal advisor. The firm and author(s) cannot be held liable for any prejudice or damage resulting from action taken on the basis of this content without further written confirmation by the author(s).