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Summary LMDF4814 - Consent to medical treatment
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- University Of The Freestate (UFS)
Medicina Forensis (LMDF4814) EXAM & TEST summaries including case discussions.
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UNIT 4CONSENT TO MEDICAL TREATMENT
INTRODUCTION
o A patient’s consent for the performance of any form of medical treatment, be it
therapeutic, non-therapeutic or diagnostic, is currently generally accepted as a
necessary prerequisite. Society places a high premium on the individual’s right to
physical integrity and to self- determination.
o In Stoffberg v Elliot - recognition is given to the individual’s personality and free will,
where the judge states as follows:
o In the eyes of the law every person has certain absolute rights which the law
protects.
o Not dependent on statute or on contract, but they are rights to be respected,
and one of these rights is absolute security to the person ... Any bodily
interference with or restraint of a man’s person which is not justified in law, or
excused in law or consented to, is a wrong ...
There are, however, certain exceptions to the rule that a patient must consent to any form of
treatment, namely:
Where he is compelled by statute to subject himself in the interest of public health to,
for example, inoculations, quarantine or other forms of treatment.
In the event of an emergency where a patient is brought to a physician in a
unconscious or semi-conscious condition.
Where a person is incapable (infans, youth or mentally ill) of giving informed consent.
It is important to note that even though the treatment was to the benefit of the patient, the
physician may still be held liable if prior consent was not obtained.
OBLIGATION TO CURE
Until the sixties, the general principle was that a doctor would not have been held legally
liable if he neglected to give assistance to a sick person where his presence could have
warded off death. (For example where a practitioner does not give assistance at the scene of
an accident.)
,This general principle contradicted the Geneva Declaration of 1948 (Modern version of the
Hippocratic Oath) whereby the doctor solemnly declares:
I will treat human life with the highest esteem ... even if I am threatened I will
not exercise my knowledge of medicine contradictory to the norms of
humanity.
o The doctor had a duty to take action in specific circumstances:
1. Where the doctor, by acting positively, creates a potentially dangerous
situation and then afterwards neglects to take steps to prevent the danger.
2. Where the doctor accepts control over a dangerous object and thereafter
neglects to exercise proper control over it.
3. Where the doctor is obliged by statute to take action.
4. Where the doctor is bound by agreement to take action.
Following the decisions in S v Russel ,Minister van Polisie v Ewels and Regal v African
Superslate , persons can now be held liable on the basis of an omission.
The test is now whether the omission, from an objective point of view, was reasonable.
Circumstnaces which will be taken into account:
The physician’s knowledge of the patient‟s condition. s condition.
The physician’s ability.
The physician’s own physical condition.
The availability of other physicians.
Professional ethics.
This test will be applied on a restricted basis where medical practitioners fail to intervene or
treat because:
Actions are specialised and doctors may doubt their skill and therefore not intervene.
A doctor may have so many patients that it will be against their interest if he accepts
more patients.
PROFESSIONAL RIGHT TO CURE
, The question whether a justification ground is present for a medical intervention is of great
importance where interventions against the will of the patient are at hand or where the
patient is unable to express his will.
It has been submitted that state recognition of the healing motive or customary law or the
“professional right” of the doctor can serve as justification grounds for a medical intervention
instead of consent. A professional right of a doctor to cure is not supported because it grants
the doctor a licence to arbitrarily intervene against the will of the patient.
South African law requires consent as a ground for justification.
Stofberg v Elliot
Castell v De Greef
Interference without the will of the patient is not necessarily unlawful, but interference
against the will of the patient is unlawful. The former can be justified by way of negotiorum
gestio. Consent as ground for justification is based on the maxim volenti non fit iniuria (to
him who consents no injury can occur).
Although from a medical point of view a medical intervention is usually to the benefit of the
patient, an intervention against the will of the patient, from a juridical point of view,
constitutes a violation of his right to self-determination and is thus a wrong or injury.
The National Health Act 61 of 2003 stipulates in section 7 that a health services may not be
provided to a user without his informed consent.
CONSENT TO PREJUDICE – GENERAL CRITERIA
This ground of justification is based on the individualism of a person. Whilst he is protected
from outside interference, the law does not protect him from the consequences of his own
personality or from the consequences of his voluntary deeds or carelessness. Maxims such
as volenti non fit iniuria do not, however, apply in unqualified sense. The criterion which
holds is whether what was consented to corresponds with the good morals (boni mores)
according to current norms of society.
In order to establish whether consent is contra bonos mores in a specific case the motives
and aims of both the doer and the prejudiced party must be taken into account.
THE TERM CONSENT
o It is a question of fact whether consent was given in a specific case or not. No fixed
form is required. Consent can be given expressly or tacitly. A patient can also state,
for fear of pain or other possible damaging consequence, that he does not wish to
undergo treatment, but nevertheless subjects himself to it. His tacit behaviour
indicates a state of mind that differs from the words used - actions speak louder than
words in this instance and the behaviour is thus conclusive.
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