Medicine and the Law
Failure to obtain informed consent – is it a criminal offence?
DOI:
https://doi.org/10.7196/SAMJ.2023.v113i9.759Keywords:
Informed consent, medical law, assaultAbstract
There is a plethora of literature that suggests that a failure by a medical practitioner to obtain informed consent from a patient amounts to assault. Assault is a loaded concept in South African (SA) law, and has applicability to both criminal and civil law. When one thinks of the term ‘assault’, it is normally associated with a criminal activity. It is well documented that a civil case can be levelled against a medical practitioner who fails to obtain informed consent from a patient. However, the criminal law aspect has not been explored in the same level of detail. This article aims to delve deeper into this aspect by outlining the requirements for assault as defined by the SA common law, and to evaluate whether a criminal offence has actually been committed by a medical practitioner in the event that proper informed consent was not obtained.
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