ORIGINAL ARTICLE

S Otto
MB ChB, LLB, LLD

Department of Diagnostic Radiology
University of the Free State

Bloemfontein

Abstract
The following article serves as a guide-
line to the radiologist as to when, how
and where consent should be
obtained. It is clear that the full partic-
ipation of the patient in decision-mak-
ing must be obtained and that the
right of the person to self-determina-
tion is of utmost importance.

Introduction
Obtaining a patient's consent is

presently accepted as an obligatory
prerequisite for the performance of
any type of medical treatment, either
therapeutic or diagnostic in nature.
The doctrine of informed consent has
dominated the doctor-patient rela-
tionship worldwide for the past 50
years. Although this doctrine has been
widely acknowledged, it is frequently
ignored.

Human rights movements, espe-
cially in Western societies, have placed
a particularly high premium on an
individual's personal integrity and
right of self-determination. The
important underlying objective that
the doctrine of informed consent was
designed to serve is often overlooked

Consent to
treatment
or ignored, namely the protection of
the patient's fundamental rights of
personal autonomy and bodily
integrity.

Enabling patients to make treat-
ment choices that are informed by
their own and not their doctor's, the
medical profession's or even the
Government's values and goals is and
should be the objective of informed
consent. This is of specific importance
in South Africa with its ethnically, eco-
nomically and religiously heteroge-
neous population and its diverse cul-
tural and belief systems. People's lives
are richer and more complex than
their physical existence and wellbeing,

Obtaining informed consent is a
process of legal discussion including
the nature, purpose, risks, effects,
advantages and disadvantages of treat-
ment. Consent results in a contract
between the doctor and the patient
with correction of their unequal status
and creation of a therapeutic alliance
and symbiosis between law and medi-
cine working for health and quality of
life.

South African Law recognised a
person's free will to make an informed
decision in the case of Stoffberg v.
Elliot.'

'In the eyes of the law,every person
has certain absolute rights, which the
law protects. They are not dependent
on statute or upon contract, but they
are rights to be respected and one of
the rights is absolute security of the
person ... Any bodily interference with
or restraint of a man's person, which is
not justified in law, or excused in law

13 SA JOURNAL OF RADIOLOGY • June 2002

or consented to, is a wrong .. :
The absolute right to security, dig-

nity and privacy has also been recog-
nised in the Bill of Rights of the SOUtl1
African Constitution.' Informed con-
sent goes beyond a signed document
or a list of disclosures. The document
is mere evidence of the contract. In
general, even where a physician inter-
venes to the benefit of a patient, s/he
will not escape liability if s/he fails to
obtain the patient's consent. A voca-
tional right to treat and cure does not
justify medical treatment. This was
clearly stated in Stoffberg v. Elliot.

Legal aspects
surrounding

consent
Any therapeutic or diagnostic pro-

cedure fits the legal definition of
assault and is an unlawful act. The
mere fact that the interference with a
persons body is in the nature of recog-
nised medical treatment does not pro-
vide grounds for justification.

Consent can take two forms:
1. Consent to injury, e.g. when an

operation is performed, the patient
consented to the wound being inflict-
ed.

2. Consent to tl1erisk of injury, e.g.
consenting to the procedure well
knowing that it might have complica-
tions or side-effects - the patient vol-
untarilyassumes the risk. (Valenti no fit
iniurioï'

Requirements for
consent

The person giving consent
In principle consent must be given

by the prejudiced person himlhersel£
It can only be given by another person
in exceptional circumstances.



ORIGINAL ARTICLE

Consent must be given
voluntarily

Consent must be given freely and
without any constraint. Consent is
invalid if obtained through using phys-
ical force or if a patient has been per-
suaded by fraudulent misrepresenta-
tion.

If consent was obtained by an offer
of financial gain, it will be considered
not voluntary. nus raises the question
of consent for participation in research
projects where meal tickets or financial
rewards are offered.

The form of consent
In South African Law, no distinc-

tion is made between the validity of
written or implied consent. Written
consent usually supplies adequate
proof Implied consent can be accept-
ed in cases of non-invasive procedures
when a person capable of forming an
intent submits him/herself to treat-
ment without resistance or protest.

Capacity
The person who consents must be

able to understand and retain informa-
tion relevant to the decision, to believe
and validate the information and to
weigh the information in balance to
arrive at a decision.

The following aspects influence a
person's capability:

Age: In South African Law it is
accepted that a child above the age of
14 can form an intent. Thus any per-
son above the age of 14 years can con-
sent to non-invasive treatment. nus is
the age prescribed in the Termination
of Pregnancy Act.' This implies that the
confidentiality arising from the doctor-
patient relationship must be respected
from the age of 14 years.

Consent to operations and similar
invasive procedures can only be given

from the age of 18 years. This is pre-
scribed by the Child Care Act,' Section
39(2) authorises the Medical Superin-
tendent of an institution to consent in
the case of a life-threatening or impair-
ing condition that can lead to loss of life
or serious and permanent physical
injury or disability. Pleasenote that this
section does not allow consent when
unreasonably withheld by parents. In
these cases the Supreme Court, as
upper guardian for all children, must
be approached.

Mental capacity: Mentally ill per-
sons are not always incapable of mak-
ing decisions regarding their self-deter-
mination. The mere fact that a person
is institutionalised should not exclude
that person from making decisions
regarding his/her own person. Where
a patient is not able to form intent, the
Mental Health Ad prescribes a proce-
dure in this regard.

Married women: South African
Law does not restrict married women
from making their own decisions.'

Informed consent
Informed consent is more than get-

ting a paper signed or a list of disclo-
sures. The doctor has an obligation to
educate the patient regarding the diag-
nosis and the therapeutic options avail-
able, including the option of doing
nothing. It is a process in the form of a
discussion including the nature of
treatment, the purpose of the treat-
ment, the risks involved and the effects,
advantages and disadvantages of the
procedures. It is insensitive to obtain
consent the night before the procedure
is performed when the patient is under
emotional strain or even sedation. This
is the time when the patient needs
emotional support and encourage-
ment and not the time to hear a fear-
some list of possible complications.

14 SA JOURNAL OF RADIOLOGY • June 2002

During the discussion process the
patient must be given the opportunity
to reflect, to ask questions and to
change his/her mind. The issue of lan-
guage becomes most important. The
patient has the right to have the infor-
mation translated. The ability of the
patient to understand the controversies
surrounding the proposed treatment
must be taken into account.

The standard against which the
duty is measured has always been a
professional judgement measured by
what reasonable practitioners would
have disclosed after all surrounding
factors had been considered. nus was
confirmed by Judge Watermeyer in the
case of Richter and Another v. Estate
Hamman.'

The emphasis has, however, shifted
recently to accommodate the patient's
participation. It requires that sufficient
information should be furnished to a
patient to enable him to make an intel-
ligent decision relating to the treat-
ment. nus has been accepted in South
African Law in recent unreported cases
in the Western Cape Supreme Court as
well as in the United Kingdom and
Canada,"

A patient wants to hear five main
things:
• What is wrong with me?
• What caused it?
• What should I do about it?
• How much will it cost in time,

money, pain and disability?
• How long will it take?

The doctor obtaining the
consent

The referring doctor must obtain
the consent of the patient for the refer-
ral as well as for the procedure - this
includes available alternatives."

The radiologist accepting the
patient takes full responsibility for the



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ORIGINAL ARTICLE

treatment of the patient during the
specific procedure.

In Lymberyv. Jefferies,1 1 the patient
was referred for deep X-ray treatment
to a radiographer at Pretoria Hospital.
The patient sustained serious burns
that needed to be treated with skin
transplants. It was claimed that the
respondent had been negligent in
referring the appellant for treatment
well knowing that the person was not a
qualified radiologist, but a radiograph-
er. The appeal court upheld that: 'If a
Medical Practitioner or Surgeon advis-
es his patient to be treated by some
third person, either because it is a treat-
ment he cannot carry out himself or
which he is customary to entrust to a
third person, then the latter does not as
a general rule, act as the agent of the
Medical Practitioner or Surgeon."

The 'captain of the ship doctrine'
was not accepted in South African Law,
and it is according to Strydom and
Strauss" insupportable and should not
go further than the vicarious liability of
the employer in the employer-employ-
ee relationship.

Treatment of a
patient without

consent
A patient can be treated without

consent in the following circum-
stances:

1. Protection of the public interest,
e.g. when a person is suffering from a
contagious disease. Treatment might
even be given against the patient's
wishes.

2. In case of an emergency where
the patient is in a critical unconscious

condition. The principle used is the
doctrine of' negotiorum gestio' or spon-
taneous agency whereby the interven-
er acts on behalf of the other person.
Strydom and Strauss" set out the
requirements as follows: (l) there
must be a real emergency; (il) the
patient must be aware of the interven-
tion; (iil) the intervention must not be
against the desire of the patient; and
(iv) treatment must be undertaken
with the aim to serve the patient's best
interests.

The doctrine of
informed refusal
The patient also has the right to

obtain, refuse or postpone the proce-
dure and the physician must tolerate
what to him/her may seem capricious.
The patient's wishes must always be
respected, e.g. in the case of Jehovah's
Witnesses refusing blood transfusions.
This was also confirmed in Phillips v.
De Klerk, where the doctor
approached the Supreme Court with
an ex parte application to obtain per-
mission to give blood and the Court
set it aside."

Consent is lacking when the
patient is sedated, a language barrier
exists, it is obtained in a rush, if alter-
natives are not discussed, if the proce-
dure extends beyond the scope for
which consent was obtained, if it is not
understood and/or if any intimidation
or misrepresentation occur.

References
1. Stoffberg v Elliot 1923 CPD 148.
2. South African Constitution: Act 200 of 1993.
3. Romeinse Reg en Romeins-Hollandse Reg: De

Groot 335, 8; VOET 47, 10,4.

4. Choice of Termination of Pregnancy Act 92 of
1996.

5. Child Care Act Amendment 96 of 1996.
6. Mental Health Act 18 of 1973.
7. McQuoid-Mason and Strauss 17 LAWSA 1983:

147.
8. Richter and Another v Estate Hamman;

1976(3) SA226 (C) 232; 9-11.
9. Reibl v Hughes (1977) 78 DLR 3d 35, 52.

Male v Hopmans (1965) 54 DLR 2d 592,595
(1967) DLR 2d lOS, 113.

10. Strauss and Strydom 1967: 221.
Il. Limbery v Jefferies 1925 AD 236.
12. Strydom & Strauss 1967: 283 footnote 112.
13. Strydom & Strauss 1967: 238.
14. Phillips v De Klerk (1983) TPD (unreported).

Bibliography
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236.

5. McLean SAM, McKay AJ. Consent in medical
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6. Ott H. The right to know: Informed consent.
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16 SA JOURNAL OF RADIOLOGY. June 2002