Introduction
The doctrine of informed consent is a legal concept which emanates from a branch of law known as medical law. This doctrine applies to health practitioners outlined in the Health Professions Act [Chapter 27:19]. Some of the commonly known health practitioners mentioned under the Health Professions Act are, medical doctors, dentists, psychologists, pharmacists. This list is non-exhaustive and a comprehensive list of health practitioners can be found under Schedule 1 of the Health Professions Act. This doctrine finds its roots in the idea that a human being is an autonomous being who can decide for himself or herself whether to undergo a specific medical intervention or procedure. The doctrine of informed consent finds support under section 52 of the Constitution of Zimbabwe Amendment (No 20). Furthermore, it places the importance of patient autonomy on a secure basis by expressly acknowledging the right to bodily and psychological integrity. This has resulted in the doctrine of informed consent being incorporated in legislation. The Public Health Act [Chapter 15:17] contains a provision relating to the doctrine of informed consent.
What is the doctrine of informed consent?
In layman’s terms the doctrine of informed consent can loosely be defined as the duty of a health practitioner to inform a patient of the nature, scope, consequences, risks, dangers, complications, benefits, disadvantages and prognosis as well as the alternatives to a medical intervention or procedure, to enable a patient to make an informed decision. In terms of section 35 of the Public Health Act, informed consent is defined as consent for the provision of a specified health service given by a person with legal capacity to do so and who has been informed as contemplated in section 34.
Duty to inform
Section 34 of the Act imposes a duty on a health practitioner to inform a user (a patient) of the following:
- The user’s health status except in circumstances where there is substantial evidence that the disclosure of the user’s health status would be contrary to the best interests of the user[2];
- the range of diagnostic procedures and treatment options generally available to the user[3];
- the benefits, risks, costs and consequences generally associated with each option[4]; and
- the user’s right to refuse health services and explain the implications, risks, obligations of such refusal.[5]
Section 34(2) of the Public Health Act goes further to state that a health practitioner must, where possible, inform the user/patient in a language that the user/patient understands and in a manner which takes into account the latter’s level of literacy. By requiring informed consent as a prerequisite for a valid medical intervention, our law rejects medical paternalism and protects the patient’s right of self-determination or autonomy. In case you are wondering what ‘medical paternalism’ means, it is when a health practitioner interferes with the patient’s ability to make a choice regarding their healthcare. For instance, if a doctor acts in a way that to his or her mind is in the best interest of the patient, but this action is not in line with the patient’s conviction and wishes, the doctor is acting in a paternalistic manner.
Exceptions to the doctrine of informed consent
There are exceptions where the health practitioner can act without the patient’s informed consent. Under section 34 of the Public Health Act, a health practitioner can decide not to disclose the patient’s health status to the patient if it is not in the best interest of the patient. Withholding information which would have had to be revealed to fulfil the doctrine of informed consent, in circumstances where revealing such information is not in the patient’s best interests is known as therapeutic privilege. Section 35 of the Public Health Act provides circumstances where health services can be provided without informed consent of the patient. The circumstances are as follows:
- where the user/patient is unable to give informed consent and such consent is given by a person mandated by the user/patient in writing to grant consent on his or her behalf or authorised to give such consent in terms of any law or court order[6];
- where the user/patient 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/patient or, in the absence of such spouse or partner, a parent, grandparent, an adult child or a brother or a sister of the user/patient, in the specific order as listed[7];
- where the provision of a health service without informed consent is authorised in terms of any law or court order[8];
- where a failure to treat the user/patient, or group of people which includes the user/patient will, in the reasonable opinion of the health practitioner, result in a serious risk to public health[9]; or
- where any delay in the provision of the health service to the user/patient might result in his or her death or irreversible damage to his or her health and the user/patient has not expressly or by conduct refused that service.[10]
Conclusion
A health practitioner is required to take all reasonable steps to obtain the user/patient’s informed consent before performing any medical intervention or procedure.[11] Failure to do so can result in criminal liability for the health practitioner.[12] Health practitioners must ensure that they comply with the provisions of section 34 of the Public Health Act.
The information and opinions expressed above are for general information only. They are not intended to constitute legal or other professional advice. For clarification, assistance or any questions please contact the author Kelvin Sabao, on email at: sabaokelvin@gmail.com
[1] Kelvin Sabao is a registered legal practitioner of the High Court of Zimbabwe.
[2] Section 34(1)(a) of the Public Health Act
[3] Section 34(1)(b) of the Public Health Act.
[4] Section 34(1)(c) of the Public Health Act.
[5] Section 34(1)(d) of the Public Health Act.
[6] Section 35(2)(a) of the Public Health Act.
[7] Section 35(2)(b) of the Public Health Act.
[8] Section 35(2)(c) of the Public Health Act.
[9] Section 35(2)(d) of the Public Health Act.
[10] Section 35(2)(e) of the Public Health Act.
[11] Section 35(3) of the Public Health Act.
[12] Section 35(4) of the Public Health Act provides that any health practitioner who fails to comply with subsections (2) and (3) shall be guilty of an offence and liable to a fine not exceeding level ten or imprisonment not exceeding one year or both such fine and such imprisonment.
Lex Amicus 