MBOMBELA – A visit to the doctor’s office usually entails the signing of a pack of papers. This is especially the case when a visit to the hospital or a specialist is required. The doctrine of informed consent is at the root of these agreements. Lowvelder consulted the Health Professionals Council of South Africa’s rules to explain two terms that often feature on these agreements. They are informed consent and exclusion clauses.
•What does informed consent entail?
Informed consent dictates that patients have the right to make their own medical decisions. Healthcare practitioners are required to give their patients sufficient information in a way that the patient can understand, to enable the patient to make informed decisions about his/her medical care.
According to this doctrine, every healthcare professional has a duty to inform patients of the range of diagnostic procedures and treatment options generally available to them as well as the benefits, risks, costs and consequences of each option. The National Patient’s Rights Charter emphasizes that every person has the right to be given full information about the nature of his or her illness and treatments. In short, each healthcare professional is expected to inform his patients with the care reasonably expected of someone with an equivalent qualification.
When healthcare professionals had to perform a procedure without the patient’s consent in an emergency, this conduct will not be unlawful if it was deemed necessary to preserve the patient’s health.
• If I have signed admission forms at a medical centre, does it constitute informed consent once and for all?
Although a doctor may request a patient to sign admission forms that contain these explanations, the practitioner is legally bound to ensure that the patient understands the full scope of what he/she is agreeing to. Where time has lapsed between the signing of the form and the patient’s operation, the healthcare practitioner must review the informed consent. Material changes in the patient’s treatment plan or the availability of new options may invalidate the patient’s existing consent.
• Does informed consent exclude liability on the medical center’s part if they make a mistake?
Many people confuse informed consent-forms with liability exclusion clauses. While informed consent clauses seek to assist in informing the patient and to confirm that the diagnosis, treatment and consequences thereof have been explained to the patients. Liability exclusion clauses, on the other hand, aim to protect the contractor from liability for death or injury caused by the practitioner.
• Are clauses that exclude liability legal?
The Consumer Protection Act prohibits the patients’ agreeing to unfair, unreasonable or unjust terms. Where the healthcare practitioner was grossly negligent, our courts have ruled that liability exclusion clauses would not serve to exclude the practitioner’s liability. Exclusion clauses that unfairly, unreasonably or unjustly protect hospitals or medical practitioners from liability for death or bodily or psychological injury caused by fault may be declared invalid and not binding on consumers. In light of every person’s constitutional right to life and bodily and psychological integritysuch a clause may also be regarded as unconstitutional. This, however, has not been confirmed in a court of law.
