No Absolute Right to Treat

Generally, a medical practitioner does not have a right to treat a patient unless such patient consents to the treatment. This is borne from the common law & constitutional right to bodily integrity which the patient enjoys. Performing a medical operation on a person without their consent amounts to a serious assault for which the practitioner may be criminally prosecuted. Furthermore, a medical practitioner who treats or performs a medical operation on a person without the requisite consent may also be liable in a civil action for any damages with may arise therefrom.

The National Health Act however provides that there may be certain instances where a patient may be treated without their consent. These include where a failure to treat would result in a serious risk to public health and where, as a result of age, mental capacity, or an emergency situation the person is unable to consent. In the case of persons incapacitated by age or mental ability their legal guardian, curator or some other statutorily recognised person would have to consent.

Consent by Spouses
Spouses may consent independently to medical treatment or operations on themselves. The Constitution provides that everyone has the right to bodily and psychological automony, which includes the right to make decisions regarding reproduction.

The Choice on Termination of Pregnancy further stipulates that only the consent of the women undergoing the termination is required. Consent of the other spouse may be required where the doctor or hospital wishes to hold you liable for the costs of the procedure.

Consent in the Case of Children
In the case of minors (Below 18 years) seeking to undergo treatment or operation, consent is generally required from the parent or guardian. There are however certain legislative authorities which create an exception to this rule including the Children’s Act and the Choice on Termination Act. In terms of the latter Act, a minor female of any age may consent to the termination of her pregnancy without their parent’s or guardian’s consent provided such minor is sufficiently mature to give an informed consent.

Section 129 of the Childrens Act provides that:
(1) A child may be subjected to medical treatment or a surgical operation only if consent for such treatment or operation has been given in terms of (ss(2) – ss(7).
(2) A child may consent to his or her own medical treatment or the treatment of his/her child if –
(a) the child is over the age of 12 years; and
(b) the child is of sufficient maturity and has the mental capacity to understand the benefits, risks, social and other implications of the treatment.
(3) A child may consent to the performance of a surgical operation on him or her or his or her child if –
(a) the child is over the age of 12 years;
(b) the child is of sufficient maturity and has the mental capacity to understand the benefits, risks, social and other implications of the surgical operation;
and
(c) the child is duly assisted by his or her parent or guardian.
(4) The parent, guardian or caregiver of a child may consent to the medical treatment of the child if the child is –
(a) under the age of 12 years; or
(b) over that age but is of insufficient maturity or is unable to understand the benefits, risks and social implications of the treatment.
(5) The parent or guardian of a child may consent to a surgical operation on the child if the child is –
(a) under the age of 12 years; or
(b) over that age but is of insufficient maturity or is unable to understand the benefits, risks and social implications of the operation.

No Absolute Right to Treat

Generally, a medical practitioner does not have a right to treat a patient unless such patient consents to the treatment. This is borne from the common law & constitutional right to bodily integrity which the patient enjoys. Performing a medical operation on a person without their consent amounts to a serious assault for which the practitioner may be criminally prosecuted. Furthermore, a medical practitioner who treats or performs a medical operation on a person without the requisite consent may also be liable in a civil action for any damages with may arise therefrom.

The National Health Act however provides that there may be certain instances where a patient may be treated without their consent. These include where a failure to treat would result in a serious risk to public health and where, as a result of age, mental capacity, or an emergency situation the person is unable to consent. In the case of persons incapacitated by age or mental ability their legal guardian, curator or some other statutorily recognised person would have to consent.

Consent by Spouses
Spouses may consent independently to medical treatment or operations on themselves. The Constitution provides that everyone has the right to bodily and psychological automony, which includes the right to make decisions regarding reproduction.

The Choice on Termination of Pregnancy further stipulates that only the consent of the women undergoing the termination is required. Consent of the other spouse may be required where the doctor or hospital wishes to hold you liable for the costs of the procedure.

Consent in the Case of Children
In the case of minors (Below 18 years) seeking to undergo treatment or operation, consent is generally required from the parent or guardian. There are however certain legislative authorities which create an exception to this rule including the Children’s Act and the Choice on Termination Act. In terms of the latter Act, a minor female of any age may consent to the termination of her pregnancy without their parent’s or guardian’s consent provided such minor is sufficiently mature to give an informed consent.

Section 129 of the Childrens Act provides that:
(1) A child may be subjected to medical treatment or a surgical operation only if consent for such treatment or operation has been given in terms of (ss(2) – ss(7).
(2) A child may consent to his or her own medical treatment or the treatment of his/her child if –
(a) the child is over the age of 12 years; and
(b) the child is of sufficient maturity and has the mental capacity to understand the benefits, risks, social and other implications of the treatment.
(3) A child may consent to the performance of a surgical operation on him or her or his or her child if –
(a) the child is over the age of 12 years;
(b) the child is of sufficient maturity and has the mental capacity to understand the benefits, risks, social and other implications of the surgical operation;
and
(c) the child is duly assisted by his or her parent or guardian.
(4) The parent, guardian or caregiver of a child may consent to the medical treatment of the child if the child is –
(a) under the age of 12 years; or
(b) over that age but is of insufficient maturity or is unable to understand the benefits, risks and social implications of the treatment.
(5) The parent or guardian of a child may consent to a surgical operation on the child if the child is –
(a) under the age of 12 years; or
(b) over that age but is of insufficient maturity or is unable to understand the benefits, risks and social implications of the operation.