A frequent question asked is if informed consent is an important aspect in determining a medical negligence claim, and if a medical practitioner or medical service provider can be held liable for medical negligence if informed consent was not obtained from a patient.

What constitutes informed consent?

Informed consent is a process by which a medical practitioner or medical service provider informs and educates a patient about the risks, benefits and alternatives of a particular medical treatment or procedure. It is extremely important for the medical practitioner or medical service provider to ensure that the patient, whilst the patient is informed or educated, is competent to make a decision and will be able to provide voluntary consent. 

The legal basis of informed consent in South African Law  

Informed consent is grounded in the Constitution of South Africa, the National Health Act and in our common law. Medical practitioners or medical service providers have a duty to inform and educate patients about their treatment options, and to make sure that the medical practitioner or medical service provider obtained the patient’s consent before proceeding with any medical treatment or procedure. 

For informed consent to be considered valid it must include the following:

1. Disclosure by the medical practitioner or medical service provider of all relevant information about the treatment or procedure that they intend to administer on the patient, including risks, benefits and alternative procedures.
2. The patient’s consent must be voluntary, free from coercion or undue influence.
3. The patient must have the mental capacity to clearly understand the information and explanation provided to them to make an informed decision.

Our courts often consider medical negligence matters where the informed consent was not obtained. If a medical practitioner or medical service provider fails to obtain informed consent, they may be liable for a civil claim for damages or may be criminally charged with assault. 

Precedents in South African law

There are several South African court cases that have shaped the law on informed consent, where the courts held that a  medical practitioner or medical service provider has a duty to inform a patient about the risks and benefits of treatment and alternative procedures and emphasized the importance of informed consent and the need for medical practitioners or medical service providers to disclose all relevant information including risks and benefits and alternative procedures.

To summarize, informed consent is a crucial aspect of medical negligence claims in South Africa. Medical practitioners or medical service providers must at all times ensure that patients are fully informed and able to make decisions about their care and failure to obtain informed consent can lead to medical negligence claims, as well as criminal charges.

The above information regarding the importance of informed consent in medical negligence claims is only a summary. Should anybody consider instituting a claim for medical negligence against a medical practitioner or medical service provider, they will be well advised to consult an attorney that specializes in the field of medical negligence.

Lefevré Joubert specializes in medical negligence claims and can be contacted to assist clients in this complexed and specialised field of the law.