A recent High Court judgment has reaffirmed an important principle: doctors in private practice are under no legal obligation to accept every patient seeking care.
This ruling highlights why it is essential for clinicians to understand when a doctor-patient relationship begins, and when they can lawfully decline to enter into one, write Dr Volker Hitzeroth, medico-legal consultant, Dr Yash Naidoo, dento-legal consultant, Dr Blesset Nkambule, medico-legal consultant and Dr Shivani Chirkut, medico-legal consultant, for Medical Protection.
They write:
The doctor-patient relationship is a cornerstone of clinical care. It bestows rights and responsibilities on both parties, facilitates trust, and enables good care. Over the past decades, this relationship has shifted from a paternalistic dynamic to one that prioritises patient autonomy.
While this evolution has deepened rapport and increased patient involvement, it has also brought higher expectations and occasional medico-legal risk.
Given this, it is critical to determine when the doctor-patient relationship is established. This is the point at which mutual obligations arise, and medico-legal exposure begins.
Differences between private and public sectors
In the private sector, many doctors in hospitals work as independent contractors. Private practitioners are generally free to decide whether to accept a patient unless an emergency exists or refusal would amount to discrimination on unconstitutional grounds (e.g, race).
The doctor-patient relationship in this context is often based on a contractual agreement, whether express or implied. However, even in the absence of a contract, doctors can face liability if their conduct is found wrongful, negligent, and causes harm to a patient.
The distinction between covering doctors and on-call specialists in private practice is important: covering doctors designated to provide care in a colleague’s absence assume immediate responsibility for those patients, while on-call specialists contacted about a new patient are not automatically obliged to accept them unless they agree to do so.
In the public sector, doctors are employed by the state, which has a constitutional duty to provide healthcare. This limits their discretion to refuse care, and refusal to treat is generally only acceptable in exceptional circumstances, such as when resources are exhausted.
Contractual vs Delictual Liability
In South African medical law, a patient’s claim against a doctor may arise from contractual or delictual liability.
• Contractual liability occurs when a doctor and patient enter into a legally binding agreement (express or implied) that the doctor will provide care with reasonable skill and diligence. If the doctor breaches this agreement, for example, by failing to provide agreed treatment or abandoning the patient without proper notice, the patient may sue for breach of contract.
• Delictual liability, by contrast, does not depend on the existence of a contract. It arises where a doctor wrongfully and negligently causes harm to a patient. The focus is on whether the conduct was wrongful, negligent and caused harm, and whether there was a legally recognised relationship giving rise to liability. Even in the absence of a contract, a doctor or healthcare provider may be held liable in delict for failing to act reasonably, such as performing a procedure negligently or failing to warn a patient of material risks.
In practise, claimant lawyers often frame medical negligence claims in both contract and delict, to cover all possibilities.
Welkovics v HPCSA
In Welkovics v HPCSA, the High Court considered whether Dr Norbert Welkovics, a private intensivist, was obliged to accept a self-funded patient for admission to the ICU.
At the time, Welkovics was the on-call intensivist for the private hospital. The casualty doctor phoned him, to “try his luck” as the casualty doctor put it, according to a telephone recording of their conversation, to ask whether Welkovics was accepting private patients.
In response, Welkovics asked whether the case constituted a medical emergency or was immediately life-threatening. After being assured that it was not, he declined to accept the patient for admission and gave no further instructions or clinical input.
The HPCSA had found Welkovics guilty of unprofessional conduct for declining the patient, but the High Court overturned that decision.
The court found:
• There was no existing doctor-patient relationship because Welkovics had not accepted responsibility for the patient’s care and had not given any treatment instructions.
• The patient’s condition, though serious, was not an emergency (as confirmed by the casualty doctor who stabilised the patient).
• Doctors in private practice may lawfully decline to accept patients outside emergencies or unconstitutional grounds for refusal (e.g, discrimination based on race).
The Welkovics judgment stressed that merely speaking to another clinician about a patient does not create a doctor-patient relationship. Instead, the relationship arises when a doctor takes active steps assuming responsibility for care.
In this case, the court concluded that Welkovics’ refusal was within his rights, noting broader systemic issues in the private healthcare sector affecting access for self-funded patients.
While there is no absolute black-and-white distinction between advice and treatment instructions, the courts have provided guidance.
In Welkovics v HPCSA, the court noted that Welkovics’ interaction with the casualty doctor was limited to determining whether the case constituted an emergency.
The doctors did not discuss the patient’s condition in detail, and no clinical directions were issued. This supported the finding that no doctor-patient relationship arose.
Life Healthcare v Suliman
In Life Healthcare v Suliman, the Supreme Court of Appeal indicated that a doctor-patient relationship – and any legal duty to treat – arises when the doctor accepts responsibility for the patient, for example, by agreeing to take over care or issuing treatment instructions.
General advice or a collegial discussion does not in itself necessarily create such a relationship, and each case will likely need to be determined on its own facts.
These cases highlight the importance of clear and well-documented communication, particularly when deciding not to accept a patient or when discussing care with colleagues.
Refusal to treat: rights and limits
Doctors may refuse to treat a patient if:
• The patient does not require emergency care.
• The refusal is not based on unconstitutional grounds.
• Conscientious objection applies (provided the patient is informed and promptly referred).
• The patient is abusive or sexually harasses the practitioner (see Section 20(4) of the National Health Act).
Once the relationship is established, however, the doctor must continue providing care until it is properly terminated, for example, by handing over to another competent colleague, discharging the patient, or the patient disengaging.
Conclusion
The doctor-patient relationship is one of healthcare’s foundational building blocks. It begins with the mutual agreement that the doctor agrees to assess and treat and the patient agrees to be treated. While the relationship is often implied, in certain situations – especially invasive procedures – explicit consent is required. Neither party can be forced or coerced into entering the relationship.
The High Court’s clarification in Welkovics, with the principles in Life Healthcare v Suliman, is a timely reminder for doctors in private practice to be mindful of when they are assuming responsibility for a patient, and when they can lawfully decline.
See more MPS columns in MedicalBrief archives:
Understanding why and how to manage patients' expectations
Doctors see benefits of telehealth — concerned some patients may get left behind
MPS supports Mediation Bill, but urges training and clear rules