By Mathew Grimbeek, Senior Counsel (LLB, LLM) Medico-Legal
Consent for a medical procedure is often treated as a formality. A signature on admission. A ticked box before theatre. A quick explanation while a patient is anxious, medicated, or overwhelmed. In 2026, that approach is not defensible, legally or ethically.
South African law requires that patients receive clear, understandable information about their treatment options, including risks, benefits, costs, and consequences. This is not optional—it is a legal and ethical obligation.
What valid consent actually requires
In practice, valid consent has several components that must all be present.
Capacity – The patient must be capable of understanding and deciding. Capacity is decision specific and can fluctuate (for example, in the setting of pain, fear, delirium, sedation, or acute illness). Where a patient cannot consent, the National Health Act regulates when someone else may consent and still requires that the patient be informed as far as possible.
Voluntariness- Consent must be free from coercion. Pressure can be subtle (rushed conversations, dismissing questions, or implying there is no real choice). If a patient feels trapped, you do not have a defensible consent process, even if you have a signed form.
Disclosure – Patients must be told what is proposed, why it is proposed, the material risks, and the reasonable alternatives (including no treatment). The National Health Act explicitly includes “benefits, risks, costs and consequences” in what must be communicated.
Understanding- Giving information is not the same as ensuring understanding. HPCSA guidance emphasises tailoring information to the patient’s level of literacy and comprehension and making sure the consent process is meaningful.
Specificity and currency- Consent is not a blanket permission slip for anything that follows. If the plan changes materially, the risk profile changes, or additional procedures are contemplated, consent must be revisited.
The disclosure standard (what you must warn about)
South African case law has long recognised a duty to disclose material risks so that consent is “unimpeachable”. Castell v De Greef remains a commonly cited authority for the principle that a patient must have knowledge and awareness of the nature and extent of the risk for consent to serve as a defence.
The practical takeaway is simple. If a risk would matter to a reasonable patient in that position, it should be discussed. If the patient asks about it, it must be discussed. If the risk is low probability but high impact (for example, paralysis, loss of fertility, stroke, death), it should be discussed. Documentation should reflect that it was discussed.
Real world pitfalls that still cause disputes
Certain patterns repeatedly show up in complaints, claims, and adverse patient experiences.
Over reliance on standard forms. A signed form may prove that a form was signed. It does not prove that the statutory and ethical duties were met. The National Health Act requires communication of options, risks, costs and consequences (not merely a signature).
Delegating the consent conversation to the wrong person. For complex interventions, the patient needs an explanation from someone who understands the procedure and can answer questions properly. Delegation can support the process, but it cannot replace professional accountability for meaningful disclosure.
Treating consent as once off. HPCSA guidance is explicit that informed consent is an ongoing, iterative process. If a patient’s condition changes, the procedure changes, or new information emerges, the consent conversation must be updated and recorded.
Language and comprehension gaps. If a patient does not understand the language used, or cannot process complex risk information in the moment, the consent process is fragile. The law expects communication “in a language which the user understands” and HPCSA expects practitioners to take literacy and understanding seriously.
Practical, defensible consent (what actually works)
If you want consent that protects patients and protects practitioners, do the basics exceptionally well.
- Treat consent as a conversation, not an event. Build it into consults, ward rounds, and pre procedure reviews.
- Use plain language. Replace jargon with simple explanations and check understanding.
- Use “teach back”. Ask the patient to explain in their own words what they understand the plan to be and what the key risks are.
- Document the substance, not just the signature. Note the material risks discussed, alternatives explained, questions asked, and the patient’s expressed preferences.
- Re confirm when circumstances change. If the plan changes, consent must change with it.