QUESTION 1
The relationship between a doctor or hospital on the one hand and the patient on the
other is normally contractual in nature. Consensus is usually required for a contract to
come into being, and in the context of medical law this means that legally acknowledged
consent normally is a prerequisite for a medical intervention to be lawful. There are also
other grounds of justification for a medical intervention when consent is absent. These
include
i. necessity
ii. negotiorum gestio
iii. statutory authority
iv. court order
The National Health Act 63 of 2003, section 7 also makes provision for treatment
without consent. Section 7 provides that a health service may be provided to a user
without his or her informed consent.
i. Statutory authority
statutory provisions include the following:
section 7(1)(d) of the National Health Act 61 of 2003 authorizing provision of a
health service where failure to treat the patient (or a group of persons which
includes the patient) poses a serious threat for public health (even where no
emergency exists)
section 37(2) of the Criminal Procedure Act 51 of 1977 authorising taking a blood
sample which may be relevant in criminal proceedings
Regulations 14 and 17 promulgated and published in GN R2438, GG 11014 of
30 October 1987 authorizing the compulsory examination, hospitalization and
treatment of persons suspected of carrying a communicable disease
Regulation 13 promulgated and published in GN R2438, GG 11014 of 30
October 1987 authorizing compulsory immunization in certain circumstances
ii. Court order
, A court order may justify treatment without a patient’s consent as long as it is not
against the patient’s will
iii. Cases on f Emergency
A doctor cannot be held liable if he or she acted reasonably in an emergency, but the
measures prove to be of no avail and the patient dies. In S V Kramer a catastrophe
occurred when an anesthetist failed to insert an endotracheal tube (a tube supplying
oxygen) correctly and the surgeon in vain applied desperate measures to try and save
the patient’s life. In our common law there are two grounds of justification for emergency
situations, namely necessity and negotiorum gestio
A. Necessity
In current South African law necessity (‘‘inevitable evil’’) is in fact regarded as a general
ground of justification. Necessity is a ground of justification for an act performed by a
person to protect that person’s own or another’s legally recognized interest, or the
public interest, against an already present or immediately threatening danger which
cannot be warded off in any other way. However, the person must not be legally obliged
to endure said danger, and the interest that is protected by the protective act must not
be disproportionate to the interest violated by the act
A characteristic of a typical emergency is that the interests of an innocent third party are
sacrificed to protect the interests of the person threatened. It is not a requirement for
necessity as a ground of justification that the patient was incapable of consenting, or
that the emergency intervention must be intended to serve the patient’s best interests.
Since necessity basically entails the objective weighing up of interests, and since even
an innocent third party’s interests may be sacrificed under necessity, it is clear that the
person acting in necessity need not honor the patient’s wishes in so doing
Necessity will be the ground of justification where the medical treatment of a person is
administered. directly in the interests of society at large. This occurs when the medical
treatment is necessary to prevent a dangerous disease from which the patient is
suffering from spreading to others, or to prevent healthy people from contracting a
disease which has reared its head in the community. Necessity consequently justifies
The relationship between a doctor or hospital on the one hand and the patient on the
other is normally contractual in nature. Consensus is usually required for a contract to
come into being, and in the context of medical law this means that legally acknowledged
consent normally is a prerequisite for a medical intervention to be lawful. There are also
other grounds of justification for a medical intervention when consent is absent. These
include
i. necessity
ii. negotiorum gestio
iii. statutory authority
iv. court order
The National Health Act 63 of 2003, section 7 also makes provision for treatment
without consent. Section 7 provides that a health service may be provided to a user
without his or her informed consent.
i. Statutory authority
statutory provisions include the following:
section 7(1)(d) of the National Health Act 61 of 2003 authorizing provision of a
health service where failure to treat the patient (or a group of persons which
includes the patient) poses a serious threat for public health (even where no
emergency exists)
section 37(2) of the Criminal Procedure Act 51 of 1977 authorising taking a blood
sample which may be relevant in criminal proceedings
Regulations 14 and 17 promulgated and published in GN R2438, GG 11014 of
30 October 1987 authorizing the compulsory examination, hospitalization and
treatment of persons suspected of carrying a communicable disease
Regulation 13 promulgated and published in GN R2438, GG 11014 of 30
October 1987 authorizing compulsory immunization in certain circumstances
ii. Court order
, A court order may justify treatment without a patient’s consent as long as it is not
against the patient’s will
iii. Cases on f Emergency
A doctor cannot be held liable if he or she acted reasonably in an emergency, but the
measures prove to be of no avail and the patient dies. In S V Kramer a catastrophe
occurred when an anesthetist failed to insert an endotracheal tube (a tube supplying
oxygen) correctly and the surgeon in vain applied desperate measures to try and save
the patient’s life. In our common law there are two grounds of justification for emergency
situations, namely necessity and negotiorum gestio
A. Necessity
In current South African law necessity (‘‘inevitable evil’’) is in fact regarded as a general
ground of justification. Necessity is a ground of justification for an act performed by a
person to protect that person’s own or another’s legally recognized interest, or the
public interest, against an already present or immediately threatening danger which
cannot be warded off in any other way. However, the person must not be legally obliged
to endure said danger, and the interest that is protected by the protective act must not
be disproportionate to the interest violated by the act
A characteristic of a typical emergency is that the interests of an innocent third party are
sacrificed to protect the interests of the person threatened. It is not a requirement for
necessity as a ground of justification that the patient was incapable of consenting, or
that the emergency intervention must be intended to serve the patient’s best interests.
Since necessity basically entails the objective weighing up of interests, and since even
an innocent third party’s interests may be sacrificed under necessity, it is clear that the
person acting in necessity need not honor the patient’s wishes in so doing
Necessity will be the ground of justification where the medical treatment of a person is
administered. directly in the interests of society at large. This occurs when the medical
treatment is necessary to prevent a dangerous disease from which the patient is
suffering from spreading to others, or to prevent healthy people from contracting a
disease which has reared its head in the community. Necessity consequently justifies
