The application of the doctrine of informed consent in South African medical law: Reflections on significant developments in the case law
Authors: Marno Swart & Pieter Carstens
Affiliations: PhD Candidate in Medical Ethics and Law, University of Cambridge; Emeritus Professor of Medical Law and Criminal Law; Former Director of the Centre for Law and Medicine, University of Pretoria
Source: South African Law Journal, Volume 141 Issue 1, p. 45-83
The doctrine of informed consent is the foundation of the physician–patient relationship. This doctrine remains controversial despite its importance, and issues involving consent are frequently litigated. This article examines the application of the doctrine of informed consent in South African medical law as it has developed in South African case law. This examination first sets a normative background for consent as a ground of justification against a wrong ful act in either contract or delict (or both) that is significantly influenced by the Constitution of the Republic of South Africa, 1996. Against this normative background, a selected anthology of nine significant judgments by South African courts is analysed, with specific attention paid to the critical shift prompted by the promulgation of the Constitution. Finally, the analyses of the nine judgments are consolidated and collated to draw conclusions about the triumphs and failings of the South African courts, based on the normative background. This analysis reveals which aspects of the doctrine of informed consent have crystallised in South African medical law and which remain unclear.