Authors: Veronica Vurgarellis – Director & Member of the Management Board & Musa Zimu – Candidate Attorney
South Africans have a constitutional right to bodily integrity, which makes medical intervention without their consent unlawful – but does this give anyone the right to refuse testing or treatment for COVID-19?
The law is clear: No one may refuse medical intervention to treat COVID-19. While intervention against someone’s will may constitute a violation of their right to bodily integrity, given the devastating effects of an unabated COVID-19 spread on life, the health system and the economy, it goes without saying that such violation is reasonable and justifiable.
In this article we analyse the legal basis for reaching this conclusion.
South Africa became the first African country to roll out a comprehensive nationwide screening and testing programme to track and monitor the incidence of the COVID-19 disease. The government has announced the deployment of 67 mobile screening and testing vans along with 10,000 field workers in a bid to boost testing tenfold to 30,000 a day by the end of April.
It may seem a foregone conclusion that every South African displaying symptoms of COVID-19 would submit themselves to testing and treatment; however it remains a possibility that a person may, for whatever reasons, refuse testing and treatment.
Regulation 7(2) of the revised lockdown regulations issued in terms of the Disaster Management Act 57 of 2002 (Government Notice R480 of 29 April 2020) clearly provides that a person refusing to go to an isolation site or quarantine facility may be compelled by a court order issued by a magistrate, in whose jurisdiction such a person is, to quarantine themselves, to go to an isolation/quarantine facility, or submit to a medical examination.
Is this a justifiable intrusion of an individual’s right to bodily and psychological integrity? It appears that it may be in these times of crisis where the actions of one can place very many at risk.
The Constitutional Right to Freedom and Security of the Person
Section 12 of the Constitution (freedom and security of the person) provides the following in
subsection (2):
Everyone has the right to bodily and psychological integrity, which includes the right –
(a) to make decisions concerning reproduction;
(b) to security in and control over their body; and
(c) not to be subjected to medical or scientific experiments without their informed consent.
The constitutional right to bodily and psychological integrity undoubtedly arises when there is medical intervention against a person’s will. In the absence of clear regulations such as the lockdown regulations mentioned above, the question arises as to whether there is a legal basis for medical intervention against a person’s will that passes constitutional muster.
The Legal Basis for Medical Intervention
Our law acknowledges a person’s right to bodily autonomy, and any intervention without consent will be in violation of that right to make decisions about one’s own body and, on the face of it, unlawful unless there is a legally recognised ground of justification.
Simply put, medical intervention is in principle unlawful/wrongful if consent is absent, because it entails an infringement of the patient’s right to bodily integrity.
Consent is the most important ground of justification for medical intervention, but others that are legally recognised are necessity, statutory authority, court order and negotiorium gestio (spontaneous agency by a person who acts on behalf of and for the benefit of another without their authority or consent, and which excludes fault on the part of the person who acts).
General requirements for valid consent
In terms of the common law, legally valid consent to a medical intervention must fulfil certain requirements. These requirements have frequently been expressed in case law, most authoritatively in the often-quoted judgment of Chief Justice Innes in Waring and Gillow Ltd v Sherborne. Consent must:
not violate the good morals of society
be given in the proper form where such form is prescribed by law
be given freely and voluntarily
be clear and unambiguous
be comprehensive
encompass all three elements of consent (being full knowledge of the nature, diagnostic procedures, risks and costs of the procedure or treatment, appreciation thereof, and acquiescence thereto)
be given by a person legally capable to give consent. This does not mean s/he must have full legal capacity to act, but must be intellectually mature enough to appreciate the implications of the act, and must not be mentally ill or under the influence of an intoxicating substance.
Medical Interventions in the Absence of Consent
The mere fact that an intervention has been performed without informed consent does not necessarily mean that it was unlawful or wrongful. If another ground of justification is present, the intervention will be lawful. Section 7 of the National Health Care Act 63 of 2003 makes provision for treatment or intervention without the patient’s consent in certain circumstances. A health service may be provided to a user without his or her informed consent where:
The provision of the health service without informed consent is authorised in terms of any law (s 7(1)(c)).
An example relevant to the current COVID-19 crisis is regulation 7(2) of the gazetted lockdown regulations authorising compelled isolation, quarantine or medical examination.
The provision of the health service without informed consent is authorised in terms of a court order (s 7(1)(c)).
Annexure A of the lockdown regulations contains a template of a court order that a magistrate may issue to compel a person to submit to a medical examination or report to an isolation or quarantine facility.
Failure to treat the user (or a group of persons including the user) might result in a serious risk to public health (s 7(1)(d)).
This is an important consideration given the rapid spread of COVID-19 as a communicable disease and the vulnerability of South Africa as a nation with millions of people with compromised immune systems.
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 (s 7(1)(e).
Section 9 the National Health Care Act makes provision for hospitalisation of a patient without consent.
The Common Law Legal Basis for Medical Intervention
The common law recognises statutory authority or a court order as general grounds of justification, and it also recognises that medical interventions may be lawfully performed in circumstances where the requirements of necessity or negotiorum gestio are met. Negotiorum gestio is the ground of justification in our common law which is best suited to an emergency related exclusively to the interests of a patient and not to the interests of society. Where a situation of emergency exists that threatens the life or health of a patient who is unconscious and therefore unable to consent to the intervention, the medical professional acting to save the patient’s life or preserve their health will not be held liable for the infringement to the patient’s rights.
Necessity is a ground of justification for an act performed by a person to protect their own or another’s legally recognised interest, or the public interest, against an already present or immediately threatening danger which cannot be warded off in any other way. Where the medical treatment of a person is administered directly in the interests of society at large, necessity will most likely be the most relevant ground of justification. This occurs when the medical treatment is necessary to prevent a dangerous disease from which the patient is suffering from spreading to others, or to prevent healthy people from contracting a disease which has broken out in the community. Necessity justifies the treatment of persons suffering from a dangerous infectious disease and the vaccination of healthy persons in order to prevent the spread or outbreak of a dangerous epidemic such as COVID-19. The consent of the person to whom the treatment is given is irrelevant in such cases, and it may be administered even against their will.
Thus the lockdown regulations which allow for a person to be tested and treated for COVID-19 without their consent are supported by the common law and the National Health Care Act and do not violate the constitutional right to bodily integrity.
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