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Using Visual and Narrative Methods to Achieve Fair Process in Clinical Care
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Medicine and the Law.

M S Khan1

  • 1Attorney 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, Johannesburg, South Africa. siraaj100@gmail.com.

South African Medical Journal = Suid-Afrikaanse Tydskrif Vir Geneeskunde
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Summary

Failure to obtain informed consent from patients can constitute criminal assault in South African law. This article examines the legal requirements for assault and evaluates its applicability to medical practitioners lacking proper patient consent.

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Area of Science:

  • Medical Law
  • Criminal Law
  • South African Jurisprudence

Background:

  • Informed consent is a cornerstone of medical practice.
  • Failure to obtain informed consent can lead to civil liability for medical practitioners.
  • The criminal law implications of inadequate informed consent are less explored.

Purpose of the Study:

  • To analyze the common law definition of assault in South Africa.
  • To determine if a medical practitioner can commit criminal assault by failing to obtain informed consent.
  • To bridge the gap in legal scholarship regarding criminal liability for informed consent breaches.

Main Methods:

  • Review of South African common law definitions of assault.
  • Analysis of existing case law pertaining to medical malpractice and informed consent.
  • Legal interpretation of assault elements in the context of healthcare.

Main Results:

  • Assault in South African law requires an unlawful menacing or offensive touching.
  • The absence of informed consent can negate the lawfulness of a medical procedure.
  • Practitioners may face criminal charges if consent is not properly obtained, depending on the circumstances.

Conclusions:

  • The failure to obtain informed consent for medical treatment may indeed constitute criminal assault under South African common law.
  • This legal principle carries significant implications for medical practitioners' criminal liability.
  • Further judicial precedent is needed to fully clarify the scope of criminal assault in informed consent cases.