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Saturday, April 19, 2014

Patient Autonomy in South Africa


Autonomy and the right to self-determination in South Africa
Table of Contents
  1. Introduction.
  2. Autonomy and Self-determination.
2.1. Autonomy as a single principle.
2.2. Autonomy as a right.
2.3. Autonomy as a quality.
2.4. Health Professions Council of South Africa and Autonomy.
      3.   Medical Paternalism.
            3.1. For and Against Medical Paternalism.
                        3.1.1. For Paternalism.
                        3.1.2. Against Paternalism.
      4.   South African Law: The Constitution, legislation and case law.
            4.1. Overview.
                        4.1.1. The Constitution.
                        4.1.2. Legislation governing consent.
                        4.1.3. Case Law
            4.2. The Bill of Rights.
            4.3. Ethical guidelines regarding consent.
            4.4. Legislation governing consent.
                        4.4.1. Who may give informed consent?
                        4.4.2. Emergencies.
                        4.4.3. Statutory authority.
                        4.4.4. Court Order.
        5. Conclusion
        6. Declaration    
                       

                       

1.Introduction

In most medical ethics literature an autonomous person is said to be self-determining - to have control of his or her destiny[1]. In this essay I will define and discuss autonomy and self-determination. Having defined the terms I will then use all relevant laws and the Health Professions Council of South Africa's General Ethical Guidelines for Doctors, Dentists and Medical Scientists[2] and Seeking Patients Informed Consent: the Ethical Considerations[3]  and discuss autonomy and self-determination in health care practice in South Africa.

2.Autonomy and Self-Determination

Seedhouse contends that the principle of autonomy has, as a matter of fact, always inspired health work[4]. Illness or injury, for example a broken hand, is a physical impediment to autonomy and also an obstacle to physical development. Medical interventions seek not only to restore biological development but also to allow a person to move on in life without obstacle or hindrance to the ability to act autonomously. The whole point of humane treatment is to enable full persons to flourish as much as possible. While being just, not doing harm and doing positive good are all important to health care’s primary inspiration, I would suggest that autonomy is the central healthcare notion.

Under Western law (and as will be shown later, South African law is no different), touching a competent person for the purpose of a health care intervention requires consent from the person and this consent must involve having sufficient knowledge to understand the implications of what is proposed. Seedhouse identifies three different ways of defining autonomy:

2.1. Autonomy as a Single Principle
When autonomy is seen as a single principle it is defined rather narrowly as follows:
“the wishes of individuals ought to be respected,” or “patient control of decision-making.” Seedhouse points out that practitioners who define autonomy in this way will often separate patient welfare and patient autonomy and this then allows them to ask “does autonomy apply in this case, or is it better than the doctor decides?” This gives rise to paternalism, which I will discuss later.

2.2. Autonomy as a Right
When viewed as a right, autonomy is to declare that people capable of self-determination ought not to be manipulated, even if others believe this is in their best interest. While this is a satisfactory view of autonomy it is too simple because it regards autonomy as a single type of a thing which you either have or do not have.

2.3. Autonomy as a Quality
Seedhouse sees autonomy neither as a disembodied principle or a right partially separate from human beings, but rather as an intrinsic personal quality: “to be autonomous is to be able to do - to be able to do anything rather than nothing.”[5] Thought of in this way autonomy is a matter of degree - the better the quality of autonomy the more a person is able to do. A person becomes able to move more extensively in his/her life as her/his level of autonomy rises.

This understanding of autonomy makes it possible to create a clear distinction between creating autonomy and respecting autonomy and that respecting autonomy goes much deeper than just agreeing to the wishes of others. In a medical context respecting autonomy can come to mean no more than that the practitioner is neutral and does not place undue influence on the recipient of health care. Practitioners can come to believe that the main thing is to let the patient make up her own mind and that it is not up to the practitioner to tell the patient everything about his condition, believing that if he wants to know he will ask. When autonomy is seen as a quality, a practitioner will realise that a person's autonomy may not yet be of a quality that enables her to make a reasoned choice. Seedhouse suggests that if doctors think respecting autonomy merely means saying “over to you” whenever there are hard clinical decisions to be taken, they have things badly wrong. Superficially, it may seem as if a patient's right to exercise the principle is respected if she is left alone to decide to have a treatment or not. Certainly she will not be under pressure to do what clinicians would like, but without advice, support and education - and especially if she is upset and anxious - she may have little or no autonomy to exercise.

It thus makes good sense to see autonomy as the ability to do, to see it as a quality which we all possess to some degree, and to see it as a quality which can often be enhanced in a variety of ways. This makes it possible to work for autonomy without always having to do what another person requests. Seedhouse correctly suggests that creating autonomy - enhancing the human quality of doing - is basic to health care.

2.4. Health Professions Council of S.A. and Autonomy
The Health Professions Council of South Africa (HPCSA) takes this broader view of autonomy in its Ethical Guidelines booklets. Acknowledging that the practitioner is in a position of power over a patient[6] it goes on to warn against abusing this power and encourages the following[7]:
            respect patients’ privacy and dignity;
            respect their opinion;
give them the information they ask for or need and do this in a way they can best understand;
            do not withhold information that would be in their best interest;
respect the right of patients to be fully involved in decisions about their treatment and care and respect their right to refuse treatment.

In all these it is clear that the HPCSA encourages the creation of autonomy as well as the respecting of autonomy.

A perusal of the HPCSA booklet on informed consent[8] reinforces the idea of creating autonomy by calling for effective communication and the development of relationships of mutual trust and respecting patients’ autonomy even where a refusal may result in harm to themselves or in their own death. It calls for the provision of sufficient information regarding their specific condition and a recognition that the amount of information given to each patient (even for the same condition) will be patient specific. The guidelines regarding what information patients should be given before making a decision regarding consent is extensive and concludes with a section calling on practitioners to do their best to find out about patients’ individual needs and priorities and a call to not make assumptions about patients’ views. Practitioners are expected to respond honestly to any questions and to allow sufficient time for patients to make a decision and then to abide by their decisions.

3. Medical Paternalism.
Point 7 of Seeking Patients’ Informed Consent: The Ethical Considerations states “It is for the patient, not the healthcare practitioner, to determine what is in the patient's own best interests.” The ultimate decision to undergo or refuse a medical intervention lies with the patient and not with the practitioner. This applies even if the practitioner regards a refusal by the patient’s consent to treatment as grossly unreasonable and even if the patient's death might result. The practitioner cannot violate the patient's autonomy on the basis of “the patient’s-best-interest” and “the doctor knows best.” This practice on the part of practitioners is called paternalism and is defined by Benatar[9] as “taking actions or decisions on behalf of patients, if necessary without their permission, sometimes even with coercion, and is justified by the intention of serving their welfare.” He goes on to describe how paternalism has its roots in the Hippocratic tradition and includes the implicit assumptions that the doctor is benevolent and will only undertake actions not harmful to the patient, that the doctor is qualified to act on behalf of the patient and that explicit permission is not always necessary. The patient is considered to have insufficient medical knowledge and if seriously ill could even have diminished autonomy as a consequence of the physical, emotional and social effects of disease.

3.1. For and against Medical Paternalism
As will be seen later when the relevant laws are discussed, in South Africa patient autonomy as a fundamental right has been endorsed and medical paternalism rejected. Nonetheless there is often a strong temptation for some practitioners to be paternalistic - in other words for practitioners to give their perception of the person’s welfare a higher priority than the person's choice. In Principles of Health Care Ethics[10] editor Raanan Gillon devotes a chapter to argument in favour of paternalism in the doctor patient relationship by Shinebourne and Bush[11] and another to argument against paternalism in the doctor patient relationship by Robert Veatch.[12]

3.1.1. For Paternalism
Shinebourne and Bush suggest that it may not be desirable or even possible to exclude paternalism from medicine and that their support for paternalism is for some but not all aspects of paternalism. They define paternalism as “behaving towards someone as a father would towards his children, in other words with an absolute duty to safeguard the welfare and health of his child, to act always in the best interests of the child, to use his knowledge, skill and understanding to secure those interests, to take responsibility for decisions made and to be available to the best of his ability at all times when the child needed him.” They suggest this attitude does not imply not respecting autonomy. Using this definition they go on to suggest that paternalism is inevitable in medicine because full information cannot possibly be given in every situation. They ask “Can it seriously be argued that a middle-aged man with a cough should be told that he probably has a post nasal drip but could have inoperable cancer, tuberculosis or AIDS?”[13]

In arguing for a degree of paternalism they stress that in the majority of consultations between patients and doctors there is little place for paternalism, but that when doctors have earned and gained trust (and not abused or assumed it) they have no need to apologetically defend paternalism.

3.1.2. Against Paternalism
Veatch defines paternalism as behaviour that attempts to interfere with the autonomy of an individual without his or her consent for the express purpose of benefiting that individual. His understanding of autonomy is one which extends beyond freedom of action to encompass the idea of self-determination in accordance with a plan chosen by oneself. He acknowledges that for most of the 20th century the practice of medicine was paternalistic but that two major moral changes have rendered paternalism by physicians untenable and indefensible. These changes are firstly, the development of rule consequentialism and secondly, the deontological “right-making” principle of autonomy.

All the above points to the fact that there is not uniformity of belief regarding autonomy. Benatar goes so far as to suggest that “the concept of the patient as autonomous agent is philosophically suspect.”[14] Be that as it may, Dieter Giesen[15] rightly points out that “today at least some legal systems clearly prefer the patient's autonomy to medical paternalism. This view reflects the basic human right to self-determination which, in a broader context, is acknowledged in many parts of the world.” South Africa is one of those 'parts of the world' and an examination of our laws and ethical guidelines reveals that this right cannot be denied to a person just because he or she is sick. The fundamental principle of human autonomy and self determination in South Africa primarily guarantees a person’s (and a patient's) freedom from all unauthorised infringements of physical and psychological integrity. A patient's increased vulnerability and the dependency induced by sickness should not be used as excuses for more or less eliminating his or her autonomy even if the goal is the restoration of the patient's well-being. In the next section, where the Constitution and laws of South Africa are examined, I will show that patients remain entitled to respect as persons even if, without the practitioner's knowledge and skill, they are unable to recover by themselves - the patient's consent is an essential prerequisite for any medical procedure.

4. South African Law: The Constitution, Legislation and Case Law.

4.1. Overview
Rebecca Cooke[16] points out that it is a “legal recognition of only recent evolution that treatment choices are not to be medically dictated, but are to be medically informed personal choices made by patients as acts of self-determination. Physicians are increasingly required by law to afford patients’ respect as equals - capable of and responsible for making critical life decisions - by providing them the medical information they need to fully exercise choice.”

4.1.1. The Constitution
As a constitutional democracy, residents in South Africa live in a society which places a high value on self-determination and autonomy particularly in the area of health care.

 The Constitution[17]is the supreme law of the Republic. Carstens and Pearmain[18] suggest that the Constitution in general, and the Bill of Rights in particular, embody the spirit of the law, whilst the letter of it is left to other legislation and the common law. In discussing autonomy and self-determination in healthcare practice I will look first of all at the Bill of Rights and in particular at:
  • Section 9 which protects the right to equality;
  • Section 10 which protects the right to dignity;
  • Section 11 which protects the right to life;
  • Section 12 which protects the right to bodily integrity and not to be subjected       to medical experimentation without informed consent;
  • Section 14 which protects the right to privacy;
  • Section 27 which guarantees the right to access healthcare, reproductive health and access to emergency medical treatment
  • Section 28 which guarantees all children access to basic health care services.

4.1.2. Legislation Governing Consent.
Secondly, I will look at current South African legislation governing consent, which includes:
  • the National Health Act[19];
  • the Mental Health Care Act[20];
  • the Children’s Act [21]
  • the Choice on Termination of Pregnancy Act[22];
  • and the Sterilisation Act[23];
4.1.3. Case Law
Before moving to the Bill of Rights and South African legislation, I will identify some specific case law which is important in the area of autonomy and self-determination namely:
  • Castell v De Greef[24];
  • Soobramoney v Minister of Health[25];
  • Van Biljon v Minister of Correctional Services; B & Others v Minister of Correctional Services & Others[26];
  • Ministry of Health v Treatment Action Campaign[27];

Castell v De Greef is regarded (according to Carstens and Pearmain[28]) as the locus classicus in the area of informed consent. It introduced the doctrine of informed consent into South African medical law; it ousted medical paternalism in favour of patient autonomy; it treated lack of informed consent as an issue of assault and not of negligence; and it established the yardstick of the ‘reasonable patient’ as the test for informed consent and not that of the ‘reasonable doctor.’ Carstens and Pearmain[29] submit that the “principles pertaining to the application of the doctrine of informed consent in South African medical law, as stated in Castell v De Greef are ultimately indicative of the correct approach to be followed as it conforms with the fundamental right of individual autonomy and self-determination.”

In Soobramoney a 41 year old man sought to have renal dialysis provided to him at state expense, in the absence of which he would die. He claimed that his right to life and his right to emergency medical treatment were being denied. His request was declined for the reasons that due to scarcity of resources, access to renal dialysis was rationed and he did not meet the criteria for providing dialysis at state expense. Furthermore the court gave a narrower meaning to emergency treatment in defining it as sudden catastrophe or unexpected trauma.

In Van Biljon four prisoners diagnosed as HIV positive sort orders that they had the right to the provision, at state expense, of adequate medical treatment. Two of the prisoners had already been prescribed appropriate anti-retrovirals by medical practitioners but the other two had not had any antiretroviral treatment prescribed by the state. The High Court ruled that the two who had been on antiretroviral treatment were entitled to continue at state expense, but the two who had not been on antiretroviral treatment were not entitled to treatment. The ruling established that individuals are not entitled to specific remedies unless the state has already committed itself to the provision of specific benefits.

In Treatment Action Campaign the applicants had challenged the decision of the government to confine the dispensation of Nevirapine to 18 pilot sites (only two in each of South Africa's nine provinces) for the purpose of prevention of mother to child transmission of HIV (PMTCT). According to Ngwenya and Cook, in Socio-Economic Rights in South Africa[30], although the applicants had relied on several constitutional provisions the case turned on the interpretation and application of sections 27(1) and 27(2). The trial judge, Botha J, held that the programme adopted by the government fell short of a reasonable measure to realise the right of access to health care under section 27. The court further declared that the respondents had an obligation forthwith to plan and implement a comprehensive national program to prevent mother to child transmission of HIV. Ngwena and Cook state that “the state is not at liberty to ignore the needs of those who are in a crisis and in desperate need.”[31]

4.2. The Bill of Rights

In our Constitution there is no express mention of a broad right to health. Section 27(1)(a) provides for a right to have access to health care services. In Constitutional Law of South Africa[32]  David Bilchitz points out that this right does not provide for the general resources necessary to preserve and maintain health. In Soobramoney the Constitutional Court expressly refused to adopt an understanding of the right to health care services that would require the state to provide individuals with any immediate benefits, but instead held that sometimes the larger needs of society will override the specific needs of individuals. Thus the self-determination guaranteed by the Constitution is limited by the state's ability to provide.

The right to access health care services is not a direct right to healthcare services, but rather a right of access. Carstens and Pearmain point out that it is not a right to healthcare services per se[33]. It is a right to access and this distinction thus allows for the possibility of payment for health care services by those who can afford to do so. In the context of this essay, it is important to note that the right to access emphasises the responsibility of the individual for his or her own health status. A right that grants access implies that the holder of the right must also make some kind of an effort in order to obtain the services. Thus in the context of autonomy and self-determination in the area of healthcare practice, the individual’s first exercise of autonomy and self-determination is to decide to access health care services in the first place.

As mentioned above, although there is no direct right to health, there is a suite of rights which, when viewed collectively could be said to constitute a right to health. These rights are: the right to life[34]; the right to dignity[35]; the right to bodily and psychological integrity[36]; the right to privacy[37]; the right to an environment that is not harmful to health or well-being[38]; the right to emergency medical treatment and to access to health care services[39] and the right to sufficient food and water and social security[40]. The following are a few points to note regarding autonomy and self-determination in the above-mentioned rights:
  • Life: As the case of Soobramoney[41] made clear, the right to life cannot be extended to encompass the right to indefinitely evade death, no matter how self-determined we are to stay alive.
  • Dignity: When patients are so severely injured that they can no longer function as human beings, but remain biologically speaking alive, autonomy and self-determination still need to be respected.
  • Bodily and psychological integrity: The right to bodily and psychological integrity implies that the person may not be forced to receive medical treatment against his or her will. Autonomy and self-determination guarantee the right to choose and refuse treatment and this right implies a right to give or refuse informed consent.
  • Privacy: The physical examination of a person in a health care context is very much an invasion of privacy and such examination can only be lawfully conducted if that person waives the right to privacy for the purpose of the examination.

4.3. Ethical Guidelines regarding Consent

As mentioned previously, the first autonomous, self-determining decision a person makes in respect of health care is the decision to access health care services. Once within the healthcare system, it is in the area of informed consent that individuals primarily exercise autonomy and self-determination.

The HPCSA ethical guidelines[42] call on practitioners to respect a patient's privacy and dignity. Regarding informed consent they require: “give your patients the information they ask for or need about their condition, its treatment and prognosis. Give information to your patients in the way that they can best understand it. Refrain from withholding from your patients any information, investigation, treatment or procedure you know would be in their best interest. Apply the principle of informed consent as an ongoing process. Allow patients access to their medical records.” These are all essential elements in ensuring autonomy and self determination.

Furthermore the HPCSA guidelines state that “the South African courts have held that legally for a proper informed consent  the patient must have: knowledge of the nature or extent of the harm or risk; appreciated and understood the nature of the harm or risk; consented to the harm or assumed the risk; and the consent must have been comprehensive.”[43]The HPCSA further states that it is primarily the duty of the healthcare practitioner to discuss with the patient and obtain from the patient the informed consent[44]. The ethical guidelines further make clear that the healthcare practitioner must inform patients of the legislative requirement of supplying ICD-10 codes to medical aids and the inevitable loss of privacy which is a consequence of this requirement[45]. They must obtain consent to release these codes to the medical aids, preferably in writing, and this consent should constitute part of the informed consent.

4.4. Legislation Governing Consent

In discussing legislation governing consent, I am primarily following the structure and approach of Carstens and Pearmain, who in turn acknowledge that they follow the “foundational writings of Strauss and Van Oosten which undoubtedly remain the most important source references in this regard.”[46]

The purpose and function of informed consent is to ensure the patient's right to self-determination and freedom of choice and to encourage rational decision-making by enabling the patient to come to an enlightened choice either to undergo or refuse treatment. This calls for a patient centred approach which was first described in Castell v De Greef.[47] Part of this approach is to make patients aware of the diagnosis of their condition. The National Health Act[48] imposes a duty on doctors to inform patients of their health status and to then acquire consent to treatment that is freely and voluntarily given.

4.4.1.Who may give informed consent?

  • Informed consent may be given by adults provided they are sane and sober. According to the Children’s Act[49], anyone over the age of 18 years is competent to give consent. Marriage bestows majority and a woman under 18 years who is legally married can give consent.

  • Incapacitated patients, such as patients in a state of unconsciousness, intoxication, delirium, trance, shock or coma are incapable of giving consent.

  • Section 7(1) of the National Health Act[50] provides for proxy or substituted consent to medical interventions by someone else on behalf of the patient who cannot consent:
“Subject to section 8, a health service may not be provided to a user without the user’s informed consent, unless-
    (a) the user is unable to give informed consent and such consent is given by 
      A person-
(i) mandated by the user in writing to grant consent on his or her behalf; or
(ii) authorised to give such consent in terms of any law or court order;
(b)   the user is unable to give informed consent and no person is mandated or authorised to give such consent, and the consent is given by the spouse or partner of the user or, in the absence of such spouse or partner, a parent, grandparent, an adult child or a brother or a sister of the user, in the specific order as listed;
(c)    the provision of a health service without informed consent is authorised in terms of any law or court order ;
(d)  failure to treat the user, or group of people which includes the user, will result in a serious risk to public health; or
(e) any delay in the provision of the health service to the user might result in his or her death or irreversible damage to his or her health and the user has not expressly, impliedly or by conduct refused that service.”

  • The autonomy and self-determination of mentally ill patients in terms of informed consent are protected in the Mental Health Care Act[51] which makes it clear that a mentally ill person may generally be able to consent to healthcare. The mere fact that a person is mentally ill does not per se imply that the person is unable to consent. When a mentally ill patient is deemed incapable of giving consent, or is under the age of 18, proxy or substituted consent may be given. Section 17 of the Act dictates that every health care provider must, before administering treatment, inform a mental health care user in an appropriate manner of his or her rights.

  • Autonomy and self-determination are protected in marriage in that each spouse consents to their own medical interventions, including decisions regarding contraception, sterilisation and abortion.

  • Autonomy and self-determination in minors is protected in that once they have attained 14 years of age they are capable of consenting to any medical treatment. Parental consent is required for any treatment of minors under 14 years of age, and for surgical treatment under the age of 18. Carstens and Pearmain[52] discuss whether or not a minor over the age of 14 years who refuses indicated treatment can be compelled by his or her parents to undergo such treatment. They cite Van Oosten's opinion that “provided the minor has been fully informed about the consequences, risks, dangers and complications that may arise from his or her refusal, a competent minor's consent or refusal should conclude the matter.”

  • Autonomy and self-determination in the area of termination of pregnancy and sterilisation are covered in the Termination of Pregnancy Act 92 of 1996 and the Sterilisation Act 44 of 1998. A woman or child of any age can consent to a termination of pregnancy. If under 18, the attending healthcare professional must advise her to consult with her parents or other confidante, but she is not obliged to follow this advice[53]. A girl under 18 may not consent to a sterilisation.

  • The individual's right to autonomy and self-determination in the area of informed consent is not absolute and is superceded in the case of emergencies, statutory authority and court orders.

4.4.2.Emergencies
When, due to unconsciousness, delirium, shock or coma arising from indulgence or accident, it is impossible to obtain the patient's consent and medical treatment is required to save life or preserve health, treatment may proceed without consent provided the treatment cannot be delayed, and provided the patient is truly incapable of consenting. The treatment must be intended to be in the patient's best interest. Even in an emergency situation, a patient is, in terms of their right to self-determination, entitled to refuse life-saving treatment.

4.4.3.Statutory authority
There are instances where a medical intervention can be carried out irrespective of whether the patient consents to it. Examples include the taking of a blood sample which may be relevant to criminal proceedings[54]; medical treatment of a non-consenting person where failure to treat him or her would result in a serious risk to public health; disclosures of suspected child abuse; notification of abuse of aged persons and compulsory medical treatment of people suspected of being carriers of communicable diseases.

4.4.4. Court order
Resorting to a court order to override a patient's autonomy and self-determination should always be seen as a last resort, but is sometimes necessary in the case of minors where there is a dispute between parents and child, or between parents and doctor or where there is an unreasonable parental refusal to a medical procedure. The High Court is the upper guardian of all minor children and its guiding principle is always what is in the best interests of the child.

5. Conclusion

In my introduction I stated that in most medical ethics literature an autonomous person is said to be self-determining. In this essay I have argued in favour of autonomy as a quality which requires creation and respect. I have shown that the ethical guidelines of the HPCSA and the laws of South Africa demand a recognition of and respect for autonomy and self-determination on the part of healthcare practitioners toward their patients which requires a move away from medical paternalism towards informed decision-making on the part of patients. I pointed out that the right of access to health care places a responsibility on the individual to access that health care and that within the health care system autonomy is not absolute but can be superceded in certain circumstances.

In South Africa, individuals accessing healthcare should be assured that their right to autonomy and self-determination is assured.




[1] D Seedhouse Ethics the Heart of Healthcare 2 (1998) 151.
[2] HPCSA General Ethical Guidelines for Doctors, Dentists and Medical Scientists (2002).
[3] HPCSA Seeking Patients’ Informed Consent: The Ethical Considerations 2 (2007).
[4] Seedhouse op cit 179.    
[5] Seedhouse op cit 182.
[6] HPCSA General Ethical Guidelines for Doctors, Dentists and Medical Scientists 2.1.3.
[7] HPCSA General Ethical Guidelines for Doctors, Dentists and Medical Scientists 2.1 – 2.5.
[8] HPCSA Seeking Patients’ Informed Consent: The Ethical Considerations 2&3.
[9] S R Benatar ‘The changing doctor-patient relationship and the new medical ethics’ (1987) 5 SA Journal of Continuing Medical Education 27 27.
[10] R Gillon (ed) Principles of Health Care Ethics (1994).
[11] E Shinebourne & A Bush For Paternalism in the Doctor Patient Relationship in R Gillon (ed) Principles of Health Care Ethics 399-419.
[12] R Veatch Against Paternalism in the Patient – Physician Relationship in R Gillon (ed) Principles of Health Care Ethics (1994) 399-408.
[13] Shinebourne & Bush op cit: 402.
[14] Benatar op cit 30.
[15] D Giesen ‘From paternalism to self-determination to shared decision making’ Law and medicine 107,116 FAMH 7013 Binder.
[16] R Cook Gender, Health and Human Rights in J Mann S Gruskin M Grodin G Annas Health and Human Rights (1991) 258.
[17] Constitution of the Republic of South Africa 108 of 1996.
[18] P Carstens and D Pearmain Fundamental Principles of South African Medical Law (2007) 22.
[19] 61 of 2003.
[20] 17 of 2002.
[21] 38 of 2005.
[22] 92 of 1996.
[23] 44 of 1998.
[24] Castell v De Greef 1993 (3) SA 501.
[25] Soobramoney v Minister of Health  Kwazulu Natal 1998 (1) SA 765 (CC).
[26] Van Biljon v Minister of Correctional Services: B & Others v Minister of Correctional Services and Others 1997 (4) SA 441 (C),1997 (6) BCLR 789 (C). 
[27] Treatment Action Campaign v Minister of Health 2002 (5) SA 721 (CC).
[28] Carstens and Pearmain op cit 891.
[29] Carstens and Pearmain op cit 893.
[30] C Ngwena & R Cook Rights Concerning Health in C Brand and C Heyns (eds) Socio-Economic Rights in South Africa (2005) 138.
[31] Ngwena and Cook op cit 141.
[32] D Bilchitz Health in S Woolman et al (eds) Constitutional Law of South Africa 2 (2005) ch 56A – 5.
[33] Carstens and Pearmain op cit 41.
[34] Section 11 of the Constitution.
[35] Section 10 of the Constitution.
[36] Section 12(2) of the Constitution.
[37] Section 14 of the Constitution.
[38] Section 24(a) of the Constitution.
[39] Section 27(1)(a) of the Constitution.
[40] Section 27(1)(b) of the Constitution.
[41] Soobramoney v Minister of Health supra.
[42] HPCSA General Ethical Guidelines for Doctors, Dentists and Medical Scientists (2002) 2.2 and 2.3.
[43] HPCSA Seeking Patients’ Informed Consent: The Ethical Considerations 2 (2007) 4.1
[44] HPCSA Seeking Patients’ Informed Consent: The Ethical Considerations 2 (2007) 5.1
[45] HPCSA Seeking Patients’ Informed Consent: The Ethical Considerations 2 (2007) 18.1.
[46] Carstens and Pearmain op cit 877-924.
[47] Castell v De Greef supra.
[48] 61 of 2003 s6(1)(a).
[49] 61 of 2003.
[50] 17 of 2002.
[51] Carstens and Pearmain op cit 903.
[52] Criminal Procedures Act 51 of 1977 ss 37(2).
[53] In terms of sections 4 and 5(3) of the Choice on Termination of Pregnancy Act No. 92 of 1996.
[54] Criminal Procedures Act 51 of 1977 ss37(2).

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