Medical practitioners are very familiar with the requirement to obtain informed consent (or in appropriate cases, informed refusal) before treating a patient.

It happens from time to time that a patient in a complaint to the Health Professionals Council of South Africa or a damages claim in the courts, alleges a failure to have obtained the patient’s informed consent. And on the understanding that there is no allegation of negligence on the part of the medical practitioner in providing the particular medical treatment.

In a judgment handed down by the Supreme Court of Appeal on 1 April 2019, in Beukes v Dr S J Smith (211/2018)[2019] ZASCA 48 (01 April 2019) (http://www.justice.gov.za/sca/judgments/sca_2019/sca2019-048.pdf) the court dealt with a claim for damages based on the alleged failure of the doctor to obtain informed consent. The patient alleged that the doctor failed to provide her with sufficient information to enable her to give informed consent for the laparoscopic hernia repair performed; had negligently omitted to inform her that the hernia repair could be done by way of a laparotomy procedure and that that resulted in her suffering damages as a result of a colon perforation during that procedure.

The patient was unsuccessful both in the high court and on appeal. The experts appearing for both parties agreed that :

• a laparoscopy was indicated and that there was no negligence in the performance thereof;
• the bowel perforation was not caused by negligence and that the doctor’s post- operation management was acceptable;
• the laparoscopy was the safer option for the patient.

The doctor gave evidence of having obtained oral consent from the patient following an explanation by him of the contemplated laparoscopy and the laparotomy option together with the attendant material risks. And had on the following day and shortly before the operation, obtained the patient’s written consent. The patient denied having been explained both procedures or having signed the written confirmation of consent form.

The appeal court held that several aspects supported the doctor’s version:

• The doctor’s demeanour and diligence was more consistent with the version that he would have explained the contemplated treating methods than not
• The medical records supported the doctor’s version rather than that version tendered by the patient
• The patient’s attempt to distance herself from the written consent and her evidence that the doctor made light of the laparoscopy as a fifteen to twenty minute procedure impugned her credibility, and was inconsistent with the doctor’s undisputed caring and diligent nature
• An entry made in the patient’s hospital records shows that she was “aware of the diagnostic procedure” that was to be performed on her the following morning. This suggests a more substantive discussion between her and the doctor than she was willing to admit
• The representations to the patient’s medical aid after the relevant consultation also revealed that the material risks and benefits attendant in the medical procedures occupied the doctor’s mind
• Nothing in the medical records contradicted the doctor’s evidence
• The patient’s response during cross-examination that she had lost a lot of memory was indicative of her poor recollective facilities

Accordingly, the appeal court found that there was no basis to overturn the factual finding of the trial court and that the doctor’s version was probable and the patient’s was not. In considering the law on informed consent, and the requirement that the patient must have had knowledge and must have appreciated the nature and extent of that harm or risk, the appeal court found that it was not in dispute that bowel perforation and wound infection were the material risks in relation to the two medical procedures under consideration and that it was reasonable that the patient, as a reasonable patient, would attach significance thereto and that the doctor would have been aware of that.

The court was satisfied that the evidence showed that the doctor did inform the patient of those risks and that the consent which the patient gave for the laparoscopy was consistent with what a reasonable person would have opted for immediately prior to the surgery.

The court was also assisted by expert evidence provided by experts for both of the parties. The court was satisfied that in light of the expert evidence the information imparted by the doctor to the patient which the lower court rightly accepted, meets the standard of a reasonable expert. It covered the range of surgical procedures and treatment options available to the patient and the associated benefit and the risks.

It could therefore not be said that there was negligence in relation to obtaining the informed consent from the patient.

Doctors would benefit from a closer reading of the judgment and the facts of the case which are a very useful object lesson in the appropriate steps for obtaining and evidencing informed consent and a neat and simple exposition of the requirements of informed consent in the context of the particular procedure, and in general.

Interestingly the patient would have probably failed in her claim in any event, in that it was unclear that the perforation and consequent sepsis would not have ensued even if a laparotomy had been performed.