1. INTRODUCTION
The purpose of this discussion is to examine the plea of lack of informed consent as a basis for liability in a medical negligence claim. To this end, the discussion will first consider the framework governing informed consent in South African medical law and the competence of pleading assault where health care services were administered in the absence of informed consent, followed by an examination of the proper pleading of a claim founded on the absence of informed consent. It will then consider the legal requirements that must be established to succeed in such a claim. The discussion is informed by the recent judgment of the High Court of South Africa, Western Cape Division, in C.B v Zinn1, in which the court considered the legal principles governing informed consent in the context of medical negligence. The discussion will critically analyse the court’s application of the law to the material facts and evidence, as well as its final ruling. As a point of departure, a brief account of the factual background to C.B v Zinn is set out below
1.1 Brief factual background in C.B v Zinn
The plaintiff in this case was desirous of falling pregnant and consulted Dr Zinn, a gynaecologist and obstetrician. Dr Zinn diagnosed the plaintiff with a submucosal fibroid polyp and duly discussed performing a hysteroscopic myomectomy to remove the submucosal fibroid polyp. The hysteroscopic myomectomy was performed, and during the procedure, a uterine perforation occurred. Accordingly, and upon noting the uterine perforation, Dr Zinn performed a laparoscopy to assess the plaintiff’s pelvis for injury, whereupon a minor perforation was confirmed and repaired. However, the plaintiff’s bowel was perforated during repair of the uterine perforation, which resulted in the plaintiff developing peritonitis after she was discharged from the hospital. The plaintiff went back to the hospital for further examination, where she was found to be suffering from diaphoresis, tachycardia, and developing peritonitis. She accordingly underwent a pelvic ultrasound, after which an emergency laparotomy was performed.
The plaintiff argued that the surgical procedure had been performed on her without her informed consent and therefore constituted an assault. Furthermore, she alleged that a contract had been concluded between herself and Dr Zinn when she first consulted with him. In terms of this contract, Dr Zinn owed her certain legal duties, including the duty to explain the significance of the symptoms and signs of infection and/or peritonitis, as well as to take adequate steps to determine whether she was developing or had developed peritonitis during the course of 17 February 2018 or, at the latest, by the morning of 18 February 2018. The plaintiff alleged that Dr Zinn had wrongfully, unlawfully and negligently breached these duties.2
The issues to be determined were, accordingly, whether Dr Zinn’s conduct constituted an unlawful assault on the plaintiff and whether he had wrongfully and negligently breached the legal duties he owed to her.
2. THE FRAMEWORK GOVERNING INFORMED CONSENT IN SOUTH AFRICAN MEDICAL LAW AND THE COMPETENCE OF PLEADING ASSAULT IN THE ABSENCE OF INFORMED CONSENT
2.1 The National Health Act
The doctrine of informed consent is a fundamental principle of South African medical law, statutorily regulated by the National Health Act3 (the NHA) and rooted in the protection of patient autonomy and bodily integrity. At its core, the doctrine requires that a patient be furnished with adequate information concerning a proposed health service to enable them to make an informed decision as to whether to consent to or refuse such service. Its recognition in South African medical law reflects a departure from the traditional paternalistic approach to medical practice, under which medical practitioners exercised considerable authority over decisions concerning their patients’ health, towards an autonomy-based approach that recognises the patient as the ultimate decision maker in matters concerning their own body.4 This approach is consistent with the constitutional protection of bodily and psychological integrity afforded by section 12(2) of the Constitution, which encompasses the right to security in and control over one’s body.5 Accordingly, the performance of a medical intervention without the patient’s informed consent may, depending on the circumstances, give rise to a delictual claim, sometimes founded on assault.
Section 7 of the NHA, read with section 6 of the NHA, demonstrates what constitutes informed consent and what information is required to be furnished to the patient (healthcare user) in order for the user to make such informed consent. Accordingly, a health service may not be provided to a user without the user’s informed consent, subject to exceptions, among others, incapacity to consent.6 The NHA mandates every healthcare provider to take all reasonable steps to obtain the user’s informed consent.7
Informed consent for purposes of health care services is defined in the NHA to mean 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 6 of the NHA.8
Accordingly, section 6 of the NHA prescribes the information that a health-care provider is required to disclose to a user to enable them to make informed consent.
Every health care provider must inform a user of 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; the range of diagnostic procedures and treatment options generally available to the user; the benefits, risks, costs and consequences generally associated with each option; and the user’s right to refuse health services and explain the implications, risks, obligations of such refusal.9
The exception contemplated in section 6 of the NHA, which provides that a health- care provider may withhold information where there is substantial evidence that the disclosure of the user’s health status would be contrary to the user’s best interests, appears to be at odds with the doctrine of informed consent underpinning the essence of patient autonomy, particularly where the user has the capacity to give consent. In practice, this may give rise to difficulties, as the user’s best interests, as perceived by the health-care provider, may not necessarily accord with the user’s own perception of their best interests. This raises the question of whether a health-care provider should be permitted to withhold information from a user who has the capacity to make an informed decision concerning their own health care on the strength of the health care provider’s perceived notions of the user’s best interest. It remains to be seen how the courts will deal with this issue should it arise for determination.
2.2 Competence of pleading assault for lack of informed consent
The plaintiff in C.B v Zinn effectively argued that Dr Zinn had committed assault by performing the surgical procedure on her without her informed consent. Although the court did not rule that the surgical procedure had been performed without the plaintiff’s informed consent, it nevertheless considered the allegation of assault on the hypothesis that informed consent had been lacking. It is not surprising that the courts, including in C.B v Zinn10, have consistently expressed reservations about the practice of pleading assault in cases involving medical treatment administered without informed consent.11
Assault is a criminal offence, and for liability to ensue, its essential elements must be proven, namely the unlawful application of force, or the apprehension thereof, and the intention to commit the assault.12 While the Court accepted that medical treatment administered in the absence of informed consent infringes upon a patient’s bodily integrity, the requisite intention to assault may nevertheless be absent.13 Accordingly, the absence of informed consent does not, in itself, establish the intention required to sustain a claim based on assault. The use of the word ‘assault’ with reference to the administration of health services without informed consent is unnecessary and is apt to confuse.14 It is accordingly unnecessary and unavailing to plead assault in such cases.
2.3 The Legal Requirements for Establishing a Successful Claim Founded on a Lack of Informed Consent
Establishing informed consent or lack thereof was key to establishing the element of wrongfulness. The element of wrongfulness is determined by applying rules of law and, in some cases, through the exercise of judicial discretion.15 Certain rules, such as the rule that causing physical harm to another person through positive conduct is prima facie wrongful, create rebuttable presumptions of wrongfulness.16 It has become an entrenched principle of South African medical law that the provision of healthcare services has shifted from a predominantly paternalistic approach to one that prioritises patient autonomy. Accordingly, providing healthcare services to patients without their informed consent is prima facie wrongful. Although the court sought to determine whether Dr Zinn had performed the surgical procedure without the plaintiff’s informed consent, it did not expressly address the question as one relevant to establishing the element of wrongfulness. Nevertheless, its determination must be understood in that context. It is not uncommon for a court, as observed in many judgments, to determine wrongfulness without expressly stating its intention to do so.
The following three requirements must be proven by the plaintiff in order to establish lack of informed consent, namely, the doctor failed to disclose the nature of the procedure or its material risks such that the patient was uninformed when undergoing the procedure in question; the patient herself would not have undergone the procedure in question had she been properly informed; and that a reasonable person in the patient’s position would not have undergone the procedure if fully appraised of the material risks associated therewith.17 In other words, it is insufficient for a plaintiff to allege that she has suffered damages as a result of a health service having been performed on her without her consent; she must also plead and establish that she would not have consented to the procedure had she been duly informed. The plaintiff failed to allege facts and adduce evidence before the court to establish that she would not have consented to the surgical procedure had she been adequately informed of the relevant risks associated with the procedure.18
The plaintiff could therefore not successfully rely on the doctrine of informed consent, nor could she argue that the lack of informed consent constituted an assault upon her.
The findings thus far highlight the importance of proper pleading. Litigants are reminded that they are bound by and limited to their pleadings. The importance of pleading every possible cause of action in the alternative is particularly essential in civil litigation, as the concept of competent verdicts applies only in criminal proceedings. A diligent litigant in the plaintiff’s position would have gone further in her pleadings to allege not only that she had not been adequately informed but also that, for the reasons set out in her pleadings, she would not have proceeded with the procedure had she been properly informed.
What was left was accordingly to establish whether Dr Zinn’s conduct was negligent in the circumstances.
3. A CRITICAL ANALYSIS OF THE JUDGMENT IN C.B V ZINN
3.1 Whether Dr Zinn wrongfully and negligently breached his legal duties owed to the plaintiff
Accordingly, the final issue to be determined was whether Dr Zinn had wrongfully and negligently breached the legal duties he owed to the plaintiff. In other words, did he, among others, wrongfully and negligently fail to explain to the plaintiff the significant symptoms and signs of infection and/or peritonitis and to take any adequate steps to determine that she was developing or had developed peritonitis during the course of 17 February 2018 or, at the latest, by the morning of 18 February 2018?
For a delictual claim to succeed in law, the alleged conduct must have been the cause of the harm suffered and must be wrongful and negligent. The conduct (the surgical procedure) and the harm suffered (bowel perforation) were common cause.
Accordingly, the court had to determine whether the conduct was the cause (causation) of the harm and was wrongful and negligent in the circumstances.
3.1.1 Negligence
The court proceeded to determine whether Dr Zinn’s conduct in all circumstances fell short of that of a reasonable doctor in his position.
The test for negligence is whether a reasonable person, in the same position as the defendant, would have foreseen and prevented the harm concerned. 19 Negligence would be attributed if a reasonable person in the position of the defendant would have: (i) foreseen harm of the general kind that actually occurred; (ii) foreseen the general kind of causal sequence by which that harm occurred; (iii) taken steps to guard against it, and the defendant failed to do so.20
The court concluded, without systematically applying the test, that based on the evidence presented, Dr Zinn’s failure to adequately inform the plaintiff of the detailed symptoms to monitor post-surgery fell short of the standard of a reasonable gynaecologist and obstetrician in his position.21 However, the court held that such failure does not on its own suffice to establish any liability on the part of Dr Zinn. 22 I deal with this latter conclusion under discussion of the element of causation below.
3.1.2 Causation
The test for causation involves a two-pronged enquiry as laid out in the case of International Shipping Co (Pty) Ltd v Bentley: The first is a factual one and relates to the question as to whether the defendant’s wrongful act was a cause of the plaintiff’s loss. This has been referred to as ‘factual causation’. The enquiry as to factual causation is generally conducted by applying the so-called ‘but-for’ test, which is designed to determine whether a postulated cause can be identified as a causa sine qua non of the loss in question. In order to apply this test, one must make a hypothetical enquiry as to what probably would have happened but for the wrongful conduct of the defendant. This enquiry may involve the mental elimination of the wrongful conduct and the substitution of a hypothetical course of lawful conduct and the posing of the question as to whether upon such a hypothesis plaintiff’s loss would have ensued or not. If it would in any event have ensued, then the wrongful conduct was not a cause of the plaintiff’s loss; aliter, if it would not so have ensued. If the wrongful act is shown in this way not to be a causa sine qua non of the loss suffered, then no legal liability can arise. On the other hand, demonstration that the wrongful act was a causa sine qua non of the loss does not necessarily result in legal liability. The second enquiry then arises, viz whether the wrongful act is linked sufficiently closely or directly to the loss for legal liability to ensue or whether, as it is said, the loss is too remote. This is basically a juridical problem in the solution of which considerations of policy may play a part. This is sometimes called ‘legal causation’.23
The court in C.B v Zinn held that it may be onerous to prove a causal link in the context of a negligent omission than that of a commission and that, in determining this causal link, a flexible approach and common-sense approach should be adopted in applying the but-for test. In other words, one should ask the question: do the facts establish a sufficiently close link between the harm and the unreasonable omission.24
The evidence presented before the court established that there was no evidence to suggest that, had the plaintiff been admitted to hospital earlier, the bowel perforation would have been detected and repaired. In other words, even if Dr Zinn had adequately informed the plaintiff of the specific symptoms to monitor after surgery, the bowel perforation would nevertheless not have been detected. Any symptoms that may have manifested and been reported by the time of the plaintiff’s scheduled follow- up consultation with Dr Zinn, or even earlier, would not have altered the fact that the bowel perforation was at a stage at which it was formidable to detect.
The court’s conclusion that the failure to provide the plaintiff with a detailed explanation of the symptoms to look out for upon her discharge was, in itself, insufficient to establish liability on the part of Dr Zinn should be understood in the context of the court’s consideration of the element of causation, even though the court did not apply the test mechanically. The failure could not satisfy either leg of the causation test. It cannot be said that the failure was the conditio sine qua non for the bowel perforation that materialised, particularly because it had already been established that the perforation would not have been detected even if the plaintiff had been adequately informed of the symptoms to look out for. For the element of causation to be met, both legs on inquiry must be present.
In conclusion, the court held that the plaintiff had failed to discharge her onus of establishing negligence on the part of Dr Zinn. While this discussion agrees with the court’s decision, it differs with regard to the basis upon which that decision was reached. Negligence had, in fact, been established, as the court held that Dr Zinn had been negligent in failing to provide the plaintiff with a detailed explanation of the symptoms to look out for upon her discharge. In doing so, he had fallen short of the standard of conduct expected of a reasonable gynaecologist and obstetrician in his position. Accordingly, the conclusion should have been that the plaintiff failed to discharge her onus of proving that the negligent conduct was the cause of the harm she suffered and that, consequently, no liability could be imposed on Dr Zinn.
4. CONCLUSION
It has been established from the foregoing discussion that the incorporation of informed consent into South African medical law is consistent with the principles underpinning our constitutional democracy, including the values of freedom or autonomy. Accordingly, South African law prohibits healthcare providers from administering healthcare services to a user without the user’s informed consent. The National Health Act (NHA) establishes a framework outlining the information that must be provided to a user before they can consent to the healthcare services to be administered to them. The essence of informed consent is that individuals should have the autonomy to decide what happens to their own bodies.
It has therefore often been argued that when healthcare providers circumvent the decision-making autonomy of users by administering healthcare services without their informed consent, such conduct constitutes assault. However, although our courts recognise that such conduct infringes upon a user’s constitutional right to bodily and psychological integrity, it does not necessarily constitute assault in the absence of the specific intention required to establish assault. Accordingly, it is unnecessary for a plaintiff to characterise such conduct as assault in circumstances such as these merely to emphasise the gravity of the violation.
The NHA prescribes the information that must be provided to a user to enable them to give informed consent. Where a healthcare provider fails to provide the prescribed information, the plaintiff may institute an action against the healthcare provider for damages suffered as a result. However, case law has established that the mere failure to provide such information does not, in and of itself, render the healthcare provider liable. The plaintiff must establish that, had they been adequately informed, they would not have consented to the procedure.
Litigants are accordingly advised to draft their pleadings with sufficient particularity to ensure that every relevant aspect of their claim is addressed. A litigant who alleges that they were not informed of the procedure to be administered should not limit their pleadings to that allegation. Rather, they should go further and allege that, had they been adequately informed, they would not have consented to the procedure. The reason for this is simple: if a plaintiff pleads only that they were not informed of the procedure before it was administered, the court may find that, although the plaintiff was indeed inadequately informed, a reasonable person in their position would nevertheless have consented to the procedure had the necessary information been provided.
It is therefore prudent for a litigant to plead that, had they been properly informed, they would not have consented to the procedure for specific reasons particular to their circumstances. Such an approach affords the plaintiff the free rein to advance their own position rather than relying solely on what a hypothetical reasonable person in their position would have decided.
Written by Ms Vanessa Malemona, Candidate Legal Practitioner, Polokwane, and reviewed by Ms Manisha Maganbhai-Mooloo, Head of Litigation, Pretoria.
Footnotes
1 1724/2021) [2026] ZAWCHC 581 (7 October 2026).
2 C.B v Zinn 1724/2021) [2026] ZAWCHC 581 (7 October 2026) at Para 7
3 61 of 2003.
4 Marno Swart and Pieter Carstens The application of the doctrine of informed consent in South African medical law: Reflections on significant developments in the case law 2024 SALJ 45
5 Section 12(2)(b) – (c) of the Constitution of the Republic of South Africa, 1996.
6 Section 7(1) of the National Health Act 6 of 2003.
7 Section 7(2) of the National Health Act 61 of 2003.
8 Section 7(3) of the National Health Act 61 of 2003.
9 Section 6(1) of the National Health Act 61 of 2003.
10 C.B v Zinn 1724/2021) [2026] ZAWCHC 581 (7 October 2026) at Para 99
11 Broude v Mc Intosh and Others 1998(3) SA 60 (SCA) at 67 H – 68 G.
12 Burchell J Principles of Criminal Law 4 ed (2013) page 580.
13 C.B v Zinn 1724/2021) [2026] ZAWCHC 581 (7 October 2026) at Para 99.
14 Pandie v Isaacs (A135/2013, 1221/2007) [2013] ZAWCHC 123 (4 September 2013) at 34.
15 Fagan A ‘Rethinking Wrongfulness in the Law of Delict’ (2005) 122(1) Juta.
16 Index Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A) at 793J – 794A; Knop v Johannesburg City Council 1995 (2) SA 1 A at 26F – H; BOE Bank Ltd v Ries 2002 (2) SA 39 (SCA) at 46F – G.
17 Reibl v Hughes 1980 CanLii 23 (SCC); Somke v Ostrofsky [2013] ZAWCHC 82 (4 June 2013).
18 C.B v Zinn 1724/2021) [2026] ZAWCHC 581 (7 October 2026) at Para 105.
19 Kruger v Coetzee 1966 (2) SA 428 (a) at 430.
20 Mukheiber v Raath and Another at para 31.
21 C.B v Zinn 1724/2021) [2026] ZAWCHC 581 (7 October 2026) at para 140.
22 C.B v Zinn 1724/2021) [2026] ZAWCHC 581 (7 October 2026) at para 140.
23 International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) at 700.
24 Oppelt v Department of Health, Western Cape 2016 (1) SA 325 (CC) at para 48.