An Alternative Approach to Informed Consent
Authors Anton Loggerenberg
Affiliations: Advocate of the High Court of South Africa
Source: South African Law Journal, Volume 135 Number 1, May 2018, p. 55 – 72
In this article I argue that the time-honoured approach to informed consent in South African medical law is unsound and fails to explain why liability is imposed as a consequence of a healthcare practitioner’s failure to obtain informed consent. I challenge this approach on the basis that a medical intervention performed with a patient’s express consent cannot amount to an assault merely because the healthcare practitioner omitted to disclose a material risk to the patient. Having regard to recent case law, an alternative approach is considered based on an omission which amounts to an actual wrong committed by a healthcare practitioner.