Case Law

Date judgment was handed down Court Parties Summary
29 July 2020 Gauteng High Court Van der Walt v S (2020) ZACC 19 ConCourt set aside gynaecologist’s conviction and sentence on irregularities only.

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8 September 2015 Gauteng North Division, High Court Dorcus Nzimande v The MEC for Health Gauteng Delict –child injured during caesarean section by negligent doctors and wounds left untendered after birth.

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6 February 2015 Guateng Local Division, High Court Khoza v MEC for Health and Social development Gauteng Damages claim on behalf of a minor who suffered brain injury during birth at provincial hospital.

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11 December 2014 Constitutional Court H v Fetal Assessment Centre Delict - doctor's failure to inform child's pregnant mother of high risk of it being born with downs syndrome.
26 November 2014 Gauteng Local Division, High Court Lushaba v MEC for health , Guateng MEC liable for damages arising from birth of child with disability. State Officials also partially liable for high degree of incompetence and indifference towards case.

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25 November 2014 Supreme Court of Appeal Cecilia Goliath v The MEC for Health Eastern Cape Delict – Surgical Swab left inside patient resulting in infection and further surgery.

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8 October 2014 Supreme Court of Appeal MEC for Health Free State v DN Delict - Doctor claiming damages from MEC for injuries sustained during rape while on duty at hospital.

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How Informed is your consent?

In the past, the doctor patient relationship was very domineering over the patient. Medical paternalism dominated over patient autonomy. It was taken that the doctor had specialist knowledge that the patient before him or her did not have. Things have now changed. All healthcare providers need a legally acceptable reason to treat a patient, the ‘I know what’s best’ is no longer acceptable. It is the patient who must bear the risk of whatever treatment is given. Thus it is imperative that the patient should therefore have all of the information needed to make a decision on his medical care

Patient autonomy means that a patient is in control of his own body and is free to make his own decisions in matters concerning his own health. Consent is a natural element of this patient autonomy. It is submitted that various legal opinions and case law support the notion that as far as medical law is concerned, consent must amount to informed consent or it will be useless.

What is consent?

Consent occurs where a person legally capable of doing so agrees to an injury or harm or the risk of an injury or harm.
Informed consent in the context of medical care is essential and vital. The purpose of which is two-fold.

  1. Firstly it promotes the patients right to self-determination and;
  2. Secondly to place patients in a position where they are able to make rational choices about their own health and body

It is important to note that consent is a unilateral act and may be withdrawn at any stage preceding the defendant’s conduct.

The requirements for consent are as follows:

  1. Must be freely and voluntarily obtained
  2. Consent must be clear and unambiguous.
  3. The patient must be intellectually mature enough to appreciate the implications of his or her conduct.
  4. Consent may be given tacitly or expressly and it is not required that the consent be in written form although a written document could be used as evidence should a dispute arise.
  5. The consent must be for a treatment that is allowed by law. This means it may not be contra bonos mores.
  6. The patient must have full and comprehensive knowledge of the extent of the prejudice as well as the risk of prejudice.
  7. The person consenting must actually comprehend and understand the nature and extent of the risk involved.
  8. The person consenting must actually agree to the treatment with the required knowledge and an understanding of that knowledge.

It can thus be said that the corner stone’s of Consent is understanding, appreciation, acknowledgment and acceptance although the above eight principles are imperative to the concept of full informed consent. Each person who is about to undergo treatment or any medical procedure should ensure that the consent for that treatment is provided in full. If the principles of informed consent are adhered to, patients will be able to accept treatment or medical procedures with piece of mind.