Medical Negligence Law South Africa
Medical Negligence Law in South Africa on the Topic of Informed Consent
Medical negligence law in South Africa is clear on the issue of informed consent. According to the medical laws of the country, the patient must provide informed consent regarding medical treatments. But what does informed consent mean and when is the lack thereof medical negligence according to the medical law in South Africa?
According to the Health Professions Council of South Africa (HPCSA) guidelines on ethical medical conduct, the practitioner must provide the patient with sufficient information regarding a particular course of treatment to ensure that the patient can make an informed decision. This also implies provision of the information and explanation thereof in terms that the patient can understand. The language used in explaining a procedure or medical treatment must be on a level that the patient can understand with consideration of the patient’s educational level, home language, belief system and values.
If the practitioner refrains from providing information to the patient regarding their health or treatment it is not in the best interest of the patient. As such, the action can be considered as medical negligence according to the medical laws of South Africa, subject to the other elements of medical negligence also being present.
The patient should be allowed access to their own medical record and informed consent should not be seen as a once-off action where after the practitioner can administer further related or unrelated treatments without getting informed consent from the patient.
Informed consent is not just about the treatment. The patient, according to the medical law in South Africa, has the right to information about the diagnosis, the condition, risks involved, possible alternative treatments, and possible outcomes of treatments. The patient also has the right to information about costs involved with various treatments.
With informed consent, the patient must understand the explanation and sufficient information must be provided to ensure the patient can make a decision whether to proceed with treatment or not. It must be voluntary. The doctor cannot force or put pressure on the patient to provide the consent. In such an instance, it can be considered medical negligence if the patient suffers medical harm as the result of the treatment provided. In certain cases, the consent must be in writing, for example with HIV testing. Though consent can be implied by the patient, it is best if the practitioner gets consent in writing.
The patient must be able to provide consent. As such, it can still be medical negligence if the doctor gets consent from a mentally ill or mentally disabled person regarding a complex procedure. It can also still be medical negligence if the patient is under heavy medication and then required to provide consent to treatment.
Where the patient is unable to provide informed consent in person, the doctor should seek consent from their guardian or the close relative who has authority to do so. In the case of tests, the patient must be informed as to the reason for testing and why the results are needed.
Where it is probable that the patient does not understand the explanation or arrangements, the practitioner should attempt to get an interpreter or person able to help explain the procedure in a way that the patient can understand.
Informed consent is a complex matter and if you believe that you have suffered medical damage as a direct result of the lack of informed consent, it is best to discuss the issue with an attorney who specialised in medical law in South Africa.
Information in this article is not intended as legal advice and is only for informational purposes. Please seek legal guidance from Adele van der Walt before relying on this information to make any legal decisions.