Medical Law and Bioethics: Informed Consent and Confidentiality

Flashcards covering South African legal frameworks, acts, and court cases regarding informed consent, patient privacy, and medical confidentiality.

National Health Act No. 61 of 2003 (NHA)

The primary legislation that sets out the minimum requirements for an adult to give full informed consent in South Africa.

Full Knowledge (Informed Consent)

Requirement that a user is informed in an understandable language and literacy level about health status, diagnostic procedures, treatment options, benefits, risks, costs, and the right to refuse services.

Material Risk

A risk that a reasonable person in the position of the patient would attach importance to, and a health practitioner would reasonably be aware the patient would consider significant if warned about it.

Castell v De Greef 1994 (4) SA 408 (C)

The legal case that established the objective and subjective criteria for determining material risks and the concept of therapeutic privilege.

Therapeutic Privilege

The legal allowance for a doctor to withhold disclosure if it is considered seriously detrimental to the patient; it must be recorded with reasons in the patient's records.

Proxy Consent

Consent provided by a person authorized in writing by the patient, by law, or by a court order (such as a curator) when the patient is unable to give informed consent.

NHA Section 7 Priority Order

The legal sequence of family members who can give consent if the patient cannot: 1. Spouse/Partner, 2. Parent, 3. Grandparent, 4. Adult Child, 5. Brother/Sister.

Children’s Act 38 of 2005 (Section 129)

Legislation stating that a child of 12 years or older, if mature and able to understand risks, can consent to medical treatment unassisted, though surgery requires an additional parent/guardian signature.

Section 129(10) of the Children's Act

Prohibits parents or guardians from withholding consent for a child's medical treatment solely based on religious beliefs, unless a medically acceptable alternative exists.

Hay v B & Others 2003 (3) SA 492(W)

A court case involving a Jehovah’s witness where the court acted as the upper guardian of a minor to decide on treatment in the child’s best interests despite parental religious objections.

Medical Emergency

A dramatic, sudden situation or event endangering a person’s life or health, which may justify extending surgery without consent based on necessity.

Constitution Section 14

The section of the South African Constitution protecting the right to privacy, including security against searches, seizures, and the infringement of private communications.

NM and Others v Smith and Others 2007 (5) SA 250 (CC)

A Constitutional Court case regarding the disclosure of HIV status in a book without consent as a violation of the right to privacy.

Privileged Occasion

A legal defense for disclosing confidential information when there is a moral, legal, or social duty to share it with a person who has a reciprocal interest in receiving it.

Tarasoff v Regents of the University of California (1976)

A legal precedent establishing a practitioner's duty to disclose information based on necessity to save a known endangered third party's life.

POPI Act 4 of 2013

Legislation regulating the processing of personal information by private and public bodies and defining the rights of "data subjects."

Negligible Risk Threshold

Considered to be a $2\%$ risk according to Louwrens v Oldwage 2006, though statistics are not conclusive and individual patient needs must be considered.