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Failure to obtain informed consent – a criminal offence?

A plethora of literature suggests failure by a medical practitioner to obtain informed consent from a patient amounts to assault. However, writes attorney MS Khan in the SA Medical Journal, assault is a loaded concept in South African law.

The term “assault” is normally associated with a criminal activity. But it is well documented that a civil case can be levelled against a medical practitioner who fails to obtain informed consent from a patient.

Yet, the criminal law aspect has not been explored in the same level of detail. This article aims to delve deeper by outlining the requirements for assault as defined by common law, and to evaluate whether a criminal offence has actually been committed by a medical practitioner if proper informed consent were not obtained.

South African law has various instruments specifically providing for the right to informed consent, the Constitution being the the first port of call.

Section 12 (2) states that “Everyone has the right to bodily and psychological integrity, which includes the right – (a) to make decisions concerning reproduction; (b) to security in and control over their body; and (c) not to be subjected to medical or scientific experiments without their informed consent”.

The National Health Act also makes it abundantly clear a health service may not be provided to a patient without his/her informed consent, while SA case law also highlights the importance of informed consent.

UKZN’s David McQuoid-Mason, in an article, referred to Smith (Smith GH Cardiothoracic surgery), who observed that “obtaining proper informed consent is usually regarded as a time-consuming task … a diversion from the work for which a surgeon is uniquely qualified”.

He adds that is clear in law that there is a definite obligation on the healthcare practitioner’s part to ensure informed consent is obtained from a patient before operating on him/her.

The question is, what recourse is available to a patient whose right to informed consent has been violated? “In the absence of informed consent, an invasive medical intervention constitutes assault.”

There are three options available to an aggrieved patient: lay a charge against the healthcare practitioner with the Health Professions Council of SA (HPCSA), and/or (institute action against the healthcare practitioner in a civil court, and/or lay a criminal charge.

The former options have been utilised, and healthcare practitioners sanctioned accordingly.

The standard of proof in such circumstances is on a balance of probabilities: the complainant has to show his/her version of events is more probable than that of the defendant. The question of criminal liability for failure to obtain informed consent has not been dealt with in any kind of detail under SA law.

This article lays out the criteria for assault as defined by SA common law.

There is no outlining what an assault is under our legal system, hence we will extrapolate the elements of assault from case law, looking at two scenarios: failure to obtain informed consent for purposes of surgery, and failure to obtain informed consent in general.

The elements of the criminal law offence of assault will be applied to these situations to investigate whether such a charge can be upheld in a court of law.

What constitutes assault under criminal law?

Assault is “unlawfully and intentionally applying force to the person of another, or inspiring belief in that other person that force is immediately to be applied to him/ her”.

Essentially, there are three elements, which are: (1) unlawfulness; (2) force or apprehension of force; and (3) intention.

Each of these needs to be proven beyond a reasonable doubt by the state to secure a conviction of assault.

One could also be charged with assault with intent to do grievous bodily harm, depending on the nature of the harm, in which case the state would have to prove the following: assault; grievous bodily harm; and intent.

The element of force is relatively straightforward, and this includes unlawful touching, causing of bruising, wounding, breaking or mutilation.

Regarding intention, it’s important to note the accused must have “an intention to assault” (and to assault unlawfully): negligence will not be sufficient to sustain the charge.

This brings us to unlawfulness. “There are a number of circumstances in which assault is justified or treated by the law as not unlawful.”

The circumstance important to us is consent. Generally, consent is not a competent defence to an assault charge, but two circumstances are recognised as being valid – sports, like boxing for example, and “therapeutic surgical operations performed by the surgeon with the patient’s consent”.

This aspect requires further consideration. We know that it is trite in SA law that the type of consent required is informed consent. If this is lacking, does it mean the normally accepted defence of consent falls away?

Various aspects make up informed consent, and it is beyond the scope of this article to discuss these.

It is important to consider what happens if it is established that proper informed consent was not obtained. This, of course, would depend on the factual matrix with which a court may be presented.

Assume a surgeon performed an operation, and for whatever reason, failed to obtain informed consent from the patient in circumstances when this could and should have been done.

Here, force would have been applied, and thus this element would be satisfied. (S)he would have had the necessary intention to cause harm, by cutting open the patient, for example, but the question arising is: did (s)he have the intention to act unlawfully?

Dolus eventualis would suffice: did (s)he subjectively foresee the possibility of acting in an unlawful manner and causing harm to the patient, and did (s)he reconcile him or herself to that possibility?

If the answer is yes, then the element of intention will be satisfied. This element needs to be proven beyond a reasonable doubt.

Remember that negligence will not suffice, so it will be of no avail to the state to prove another healthcare practitioner would have acted differently in the circumstances.

The test is a subjective one. It’s difficult to know what one’s true or direct intention is, hence dolus eventualis is used to assist in this regard.

If these two elements are satisfied, we move on to whether the action was unlawful.

The healthcare practitioner would normally use consent as a defence, but if this were not complied with, then it would seem the practitioner’s conduct could potentially fall outside the ambit of what is protected by the law.

The other scenario outlined above was where informed consent was not obtained, but no surgery was performed.

For instance, a healthcare practitioner may have consulted with a patient and prescribed a certain course of action: e.g, recommended the patient stop eating dairy products, but did not explain other options available.

Applying the elements above, there is no force that has been applied, either directly or indirectly. To sustain a criminal conviction, all of the elements of assault must be satisfied and proven beyond reasonable doubt. Seeing the first element cannot be proven, it would be pointless continuing the exercise.

We have already outlined that for an assault conviction, the required form of fault is intention, and negligence will not suffice.

At best, the practitioner could be held liable for contravening the National Health Act, and there might be a civil action, provided the patient can prove the practitioner acted in a manner that resulted in harm.

Conclusion

The article considers the question of whether healthcare practitioners could be held criminally liable for assault if they fail to obtain informed consent from their patient,
And established that informed consent is an important principle provided for under our law.

On the issue of assault, the word is used is quite loosely used in the literature, and normally relates to instances involving a civil action.

This article focused on criminal liability, and outlined the core elements of
assault under of SA law: unlawfulness; force or apprehension of force; and intention.

We considered two scenarios: failure to obtain informed consent for surgery, and a situation where a healthcare practitioner prescribes a course of action without the patient’s informed consent. The state’s prospects of success in securing a conviction in the latter instance are virtually non-existent.

However, the former scenario gives rise to a situation where each of the elements could potentially be proven by the state.

But these need to be proven beyond reasonable doubt, and are not without significant challenges. The state would have to prove that the healthcare practitioner had the necessary intention, i.e, to act in a manner causing harm and to do so unlawfully, and they would also need to show that informed consent was not obtained.

Should they be able to do so, then for all intents and purposes, the failure to obtain informed consent would amount to the criminal law offence of assault.

M S Khan, LLB, LLM: Attorney of the High Court of South Africa; Lecturer, Steve Biko Centre for Bioethics, School of Clinical Medicine, Faculty of Health Sciences, University of the Witwatersrand.

 

SA Medical Journal article – Failure to obtain informed consent – is it a criminal offence? (Creative Commons Licence)

 

See more from MedicalBrief archives:

 

Informed consent is critical as elective surgery resumes — healthcare company

 

SCA dismisses patient’s appeal over informed consent

 

Orthopaedic pioneer kept thousands of bones without patient consent

 

The dos and don’ts in obtaining informed consent

 

 

 

 

 

 

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