Legal Talk

Giving "informed consent" to the doctor

It goes without saying that trust is a key component in the doctor patient relationship. The patient needs to trust the advice given by the medical practitioner relating to whatever medical intervention is required, be it surgical procedures or embarking on a particular medical treatment program are sound and would be effective.

Given the fact that much of the medical information may be too technical and perhaps confusing to a patient, our courts have over the years held that the medical practitioner must provide all the facts necessary to the patient to allow the patient to provide an informed consent.

The patient must be able to fully grasp the nature and extent of the harm or risk as well as the benefits of a particular medical intervention. Before any medical treatment is administered the consent of the patient must first be obtained. A patient has the right to refuse medical intervention. A case that went before the Supreme Court of Appeal involved the issue of informed consent.

The facts of the case briefly were as follows. Mrs. B sued her surgeon Dr. S, for damages after he performed a laparoscopic hernia repair on her. She claimed that the did not give the surgeon her informed consent.

She said he failed to give her sufficient information to enable her to give such informed consent for the surgery. The patient said that the surgeon did not tell her that the hernia repair could have been done through a laparotomy procedure and said his failure to give her the other option of a laparotomy resulted her giving uninformed consent to the laparoscopy procedure. Her colon was perforated during surgery and she suffered complications.

Expert testimony at the trial by specialist surgeons for both parties agreed that she was a high-risk patient, that the laparoscopy was the better option and that the procedure had been performed by the surgeon without negligence.

They also found that the doctor's post-operative management of the patient was acceptable. However what they could not agree on was whether or not the doctor obtained the patient's informed consent for the surgery.

Unfortunately the surgeon was unable to produce a written record of the details when the informed consent was obtained. After hearing the testimony of both parties, the court was satisfied that the surgeon's version was consistent with what a reasonable surgeon would have done and found that he was diligent and caring towards the patient.

The High Court dismissed the claim of negligence. Mrs. B took the judgment on appeal to the Supreme Court of Appeal. On 1 April 2019, the SCA handed down its judgment in which it agreed with the findings of the High Court and dismissed Mrs. B's claim with costs.

Medical practitioners are thus advised to make sure that they keep written records to confirm that they had obtained informed consent from their patients to avoid denials from the patients should the matter proceed to litigation later on.

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