Self-determination and the rights to bodily integrity and autonomous moral agency are now accepted as fundamental rights of every patient, and it is also accepted that health workers have a legal duty to obtain a patient’s informed consent for any medical intervention.
The courts have held in Castell v De Greef 1994 (4) SA 408 (C) that informed consent means that the patient has:

(i) Knowledge of the nature and extent of the harm or risk.
(ii) An appreciation and understanding of the nature of harm or risk.
(iii) Consented to the harm or assumed the risk of harm; and
(iv) Consented to the entire transaction, including all its consequences.

In addition, the patient must have legal capacity and the consent must not be contrary to public policy.When obtaining consent from a patient, it is crucial that the health care provider informs the patient in a language that the patient understands in addition to taking into account the persons level of literacy.

Furthermore, the consent must not be for acts which are contrary to public policy, and such person must have the legal capacity to give consent (i.e. not a minor or insane person). In other words, our legal system recognizes that all persons have a right to autonomy, which is essentially ones right to self-determination and is aimed at facilitating rational decision-making, by affording the individual an opportunity to evaluate the advantages and disadvantages of a proposed treatment in order to make an informed conclusion.

Medical practitioners have an obligation to inform their patient about treatment through use of vocabulary that is easily understandable. The doctor is also under a legal duty to warn a patient about any “material risks” inherent in the proposed treatment. Risks are material if:

(i) A reasonable person in the position of the patient when warned of the risk, would attach significance to it; and
(ii) A medical practitioner should reasonably be aware that the patient, if warned of the risk, would attach significance to it.

As a general rule, material risk disclosure involves weighing up the risks inhibiting the treatment of the patient against the need to obtain an informed consent.
A doctor need not tell the patient all the remote risk, however, should only disclose probable or possible risks of harm, which are considered as particularly serious.
The duty of disclosure by a medical practitioner of a patient’s diagnosis is however not always an absolute requirement. In circumstances where such disclosure would be detrimental to a patient, the doctor may rely on what is known as therapeutic privilege to withhold information i.e where a diagnosis would result in a patient being so despondent that the disclosure would likely undermine the treatment. This privilege is however not applicable in instances where the patient has expressly stated his consent as being conditional on being given a diagnosis of his condition, in which case such diagnosis must be made known to the patient and a failure of which would result in their being a lack of proper consent.

Is a medical practitioner permitted to depart from a medical procedure which a patient has consented to?

Generally, doctors are not entitled to depart materially from the treatment consented to by a patient, especially where that treatment is far more radical than that consented to by the patient.

A departure from treatment consented to is however justified in instances where it was impossible to make a diagnosis beforehand provided that:
(i) The extension is in accordance with good medical practice.
(ii) the extension takes place in good faith in order to alleviate the patient’s complaint.
(iii) the risk to the patient is not materially increased; and
(iv) it would be against the patient’s medical interests to first allow the person to recover from the anaesthetic in order to give consent to the operation being extended.

Self-determination and the rights to bodily integrity and autonomous moral agency are now accepted as fundamental rights of every patient, and it is also accepted that health workers have a legal duty to obtain a patient’s informed consent for any medical intervention.
The courts have held in Castell v De Greef 1994 (4) SA 408 (C) that informed consent means that the patient has:

(i) Knowledge of the nature and extent of the harm or risk.
(ii) An appreciation and understanding of the nature of harm or risk.
(iii) Consented to the harm or assumed the risk of harm; and
(iv) Consented to the entire transaction, including all its consequences.

In addition, the patient must have legal capacity and the consent must not be contrary to public policy.When obtaining consent from a patient, it is crucial that the health care provider informs the patient in a language that the patient understands in addition to taking into account the persons level of literacy.

Furthermore, the consent must not be for acts which are contrary to public policy, and such person must have the legal capacity to give consent (i.e. not a minor or insane person). In other words, our legal system recognizes that all persons have a right to autonomy, which is essentially ones right to self-determination and is aimed at facilitating rational decision-making, by affording the individual an opportunity to evaluate the advantages and disadvantages of a proposed treatment in order to make an informed conclusion.

Medical practitioners have an obligation to inform their patient about treatment through use of vocabulary that is easily understandable. The doctor is also under a legal duty to warn a patient about any “material risks” inherent in the proposed treatment. Risks are material if:

(i) A reasonable person in the position of the patient when warned of the risk, would attach significance to it; and
(ii) A medical practitioner should reasonably be aware that the patient, if warned of the risk, would attach significance to it.

As a general rule, material risk disclosure involves weighing up the risks inhibiting the treatment of the patient against the need to obtain an informed consent.
A doctor need not tell the patient all the remote risk, however, should only disclose probable or possible risks of harm, which are considered as particularly serious.
The duty of disclosure by a medical practitioner of a patient’s diagnosis is however not always an absolute requirement. In circumstances where such disclosure would be detrimental to a patient, the doctor may rely on what is known as therapeutic privilege to withhold information i.e where a diagnosis would result in a patient being so despondent that the disclosure would likely undermine the treatment. This privilege is however not applicable in instances where the patient has expressly stated his consent as being conditional on being given a diagnosis of his condition, in which case such diagnosis must be made known to the patient and a failure of which would result in their being a lack of proper consent.

Is a medical practitioner permitted to depart from a medical procedure which a patient has consented to?

Generally, doctors are not entitled to depart materially from the treatment consented to by a patient, especially where that treatment is far more radical than that consented to by the patient.

A departure from treatment consented to is however justified in instances where it was impossible to make a diagnosis beforehand provided that:
(i) The extension is in accordance with good medical practice.
(ii) the extension takes place in good faith in order to alleviate the patient’s complaint.
(iii) the risk to the patient is not materially increased; and
(iv) it would be against the patient’s medical interests to first allow the person to recover from the anaesthetic in order to give consent to the operation being extended.