Informed consent to medical treatment: the basis of a claim and the standards of disclosure

The right to security and control over the body is described as an absolute right in South African common law. It is also regarded as one of the essential and foundational constitutional rights, together with the right to life and dignity. The importance that the boni mores or legal convictions of the community place on the right to bodily integrity and self-determination are reflected in the requirements for the justification ground of volenti non fit iniuria. The essential elements of volenti non fit iniuria are knowledge, appreciation and, finally, consent, which is a personal and subjective state of mind. When a doctor applies force to the body of a patient without the patient's informed consent, the use of assault, a specific type of iniuria in South African law, as a cause of action, reflects the importance that society places on the right to bodily integrity and self-determination. On the other hand, where the English breach of duty of care and negligence is used, the rights to bodily integrity and self-determination are undermined. It is recommended that South Africa adopts assault as a primary cause of action.