Consent: A Cornerstone of Professional Ethics in Healthcare

In the landscape of medical ethics and professional conduct, informed consent stands as one of the most critical pillars safeguarding both patients and practitioners. It is not merely a bureaucratic requirement but a fundamental expression of respect for patient autonomy, dignity and trust in the healthcare relationship.

Understanding Informed Consent

According to Sam Varela, Principal Legal Risk Advisor and Admitted Attorney from Aon South Africa, informed consent defines the ethical and legal boundaries of professional medical services. “It is a process rooted in transparency, where patients are empowered with knowledge to make voluntary, educated decisions about their healthcare. This right is enshrined not only in the Health Professions Council of South Africa (HPCSA) guidelines but also in national legislation, including the Constitution of the Republic of South Africa.”

The relationship between a patient and a healthcare provider is one of inherent trust. “Respecting a patient’s right to choose—or refuse—treatment is essential to maintaining that trust. Medical professionals must ensure that patients are fully informed about their treatment options, including any less invasive alternatives. This information should be delivered in clear, comprehensible language, with ample opportunity for patients to ask questions and seek clarity,” she adds.

Legal and Ethical Dimensions

“From a legal perspective, the issue of consent extends beyond professional ethics into the realm of criminal law. There is an ongoing debate about whether a healthcare practitioner can face criminal prosecution for assault in instances where treatment is provided without consent. While such cases may be complex and the burden of proof significant, it remains a legal possibility under certain conditions,” Sam explains.

The South African Constitution reinforces this stance. Section 10 explicitly states: “Everyone has inherent dignity and the right to have their dignity respected and protected.”[1] Performing medical procedures without consent can be seen as a violation of this constitutional right, thereby opening the door to both civil and criminal liability.

The Role of the HPCSA and Ethical Guidelines

The HPCSA’s Booklet 4: Seeking Patients’ Informed Consent[2] – The Ethical Considerations offers detailed guidance on this topic. It emphasises that successful healthcare relationships are built on mutual trust and respect for patient autonomy. Practitioners are urged to honour a patient’s decision—regardless of the consequences—even if refusal of treatment could result in serious harm or death.

This booklet outlines various critical considerations, including:

• Evaluating a patient's mental capacity to give consent.
• Differences between express and implied consent.
• Special considerations for minors and children.

These guidelines are essential for navigating the often nuanced and sensitive nature of medical decision-making.

Emergency Situations

“Of course, healthcare providers may encounter scenarios where obtaining consent is not feasible,” says Sam. Section 7 of the HPCSA’s guidelines addresses this, stating: “In an emergency, where consent cannot be obtained, healthcare practitioners may provide treatment limited to what is immediately necessary to save life or prevent significant health deterioration.”[3]

“However, practitioners must still honour any known, valid advance directives refusing treatment. Once the emergency has passed, patients should be informed of what was done and why, as soon as they are able to understand,” Sam explains.

Legislative Framework

The National Health Act further supports the ethical administration of consent, with detailed provisions found in sections 6 through 9.[4] These laws work in tandem with HPCSA regulations to ensure that consent procedures are thorough, consistent and legally compliant. Yet, real-life scenarios are rarely clear-cut. Unique situations can challenge even the most experienced practitioner’s understanding of consent requirements.

Mitigating Risk Through Expert Guidance

Given the complexity of legal and ethical obligations surrounding informed consent, it is vital for healthcare professionals to seek guidance when in doubt. This includes consulting the HPCSA or legal professionals who specialise in healthcare regulation. Equally important is the role of a knowledgeable medical malpractice broker. Such professionals provide invaluable risk management advice, helping practitioners navigate intricate consent-related issues while ensuring they remain compliant with the multitude of relevant laws and codes of good practice.

“Informed consent is more than a formal procedure—it is a cornerstone of ethical, respectful and lawful medical care. For healthcare practitioners, a solid grasp of consent principles, bolstered by expert advice when needed, is essential for fostering trust, safeguarding patient rights and mitigating professional risk,” Sam concludes.