1.8 Administrative remedies …
2.4.3 Pandie v Isaacs
Pandie v Isaacs 215is the only reported South African judgment dealing with involuntary sterilisation. It is included even though it does not deal with discrimination on the basis of HIV as it provides insight into the South African judiciary’s views on consent to a
sterilisation. In this case the Plaintiff instituted action against Dr Pandie, the Defendant (an obstetrician) for performing a sterilisation on her without her full informed consent.216 (i) Facts
The Plaintiff, was a 33 year old train driver at the time and had three children. She alleged that during her ante-natal visits to the Defendant she was asked on three different
occasions whether she considered being sterilised.217 She answered in the negative to this question.218 At the last ante-natal consultation on the 3rd November 2004 and on the day before the caesarean section and sterilisation she again indicated that she did not want to be sterilised.219 The Defendant then gave the Plaintiff a sealed envelope which he
instructed her to take to the hospital as part of her admission process.220 It later transpired that the envelope contained a letter to inform hospital staff that the Plaintiff was to
undergo a caesarean section and sterilisation.221 Before she signed the consent form for the operation the Plaintiff had asked for it to be amended to reflect that she did not want to be sterilised.222 She was advised to inform the Defendant of the change on the consent form.223
214 Ibid at paras 22.2.1-22.3.
215 Pandie v Isaacs (A135/2013, 1221/2007) [2013] ZAWCHC 123 (4 September 2013).
216 Isaacs v Pandie (12217/07) [2012] ZAWCHC 47 (16 May 2012) at para 1.
217 Ibid at para 6.
218 Ibid.
219 Ibid at para 7.
220 Ibid.
221 Ibid.
222 Isaacs v Pandie (12217/07) [2012] ZAWCHC 47 (16 May 2012) at para 7.
223 Pandie v Isaacs (A135/2013, 1221/2007) [2013] ZAWCHC 123 (4 September 2013) at para 12.
50 However, this discussion did not take place.224 The Plaintiff became aware that she had been sterilised when the theatre nurse held up a jar and shook the contents which were the severed portion of the fallopian tubes.225
(ii) Issues before the court
The Court was faced with one key issue, whether the legal obligations regarding the obtaining of consent before a sterilisation had been complied with.
(iii) Prior proceedings
The trial Court found that the defendant’s conduct was grossly negligent and unlawful and ordered him to pay R 410 172.35 in damages to the Plaintiff.226 The defendant appealed this judgment to the full bench of the Cape High Court.
(iv) Judgment
The Court held that consent for a sterilisation must be in writing as per the Sterilisation Act.227 Regulations accompanying the Act228 require the completion of two documents. The one being Form 1 of the Regulations and the other being the hospital’s standard consent form.229 It held further that performing a medical procedure without a patient’s informed consent was actionable.
If a defendant has acted with dolus (encompassing knowledge of the wrongfulness of his conduct) it could amount to a criminal assault but the Act does not make provision for the payment of damages for this type of violation. The court stated that the “interference with another person’s body has always been prima facie wrongful at common law”.230 In
addressing the complex overlap between a common law and statutory duty the Court relied on Steenkamp NO v Provincial Tender Board, Eastern Cape 2006 (3) SA 151 (SCA) where the SCA held that if the statute does not provide for a damages remedy, and if the Court were to infer a common law remedy this would be contrary to the statutory scheme.231
In applying the law to the facts the Court found that written consent is required by the Act but in this case it was absent.232 The Court observed that in the present case only one form was used namely the hospital consent form and this only provided consent for the
caesarean section.233 Furthermore, the Court held that the appellant’s version that he had
224 Isaacs v Pandie (12217/07) [2012] ZAWCHC 47 (16 May 2012) at paras 7, 8 & 9.
225 Ibid at para 10.
226 Ibid at para 90.
227 44 of 1998.
228 44 of 1998.
229 Pandie v Isaacs (A135/2013, 1221/2007) [2013] ZAWCHC 123 (4 September 2013) at para 41.
230 Ibid at paras 44-45.
231 Ibid at para 42.
232 Ibid at para 46.
233 Ibid at para 41.
51 obtained verbal consent was also improbable.234 Nevertheless, the Judge went onto hold that a prima facie wrongful act (failing to obtain written consent in compliance with the Act) could be legitimised by verbal consent even if it does not strictly comply with the Act.235 In this instance the appellant had performed the sterilisation in the genuine belief that she had consented to the procedure verbally at the last consultation therefore, he did not possess the requisite intention or dolus.236 The Court accepted that this approach to consent is was the prevailing practice in the appellant’s profession and thus the appellant’s conduct was not negligent.237 In this instance, liability for the failure to obtain consent should lie at the feet of the hospital staff who were negligent in relation to the obtaining of her written consent in the manner required by the Act.238 The Court concluded that it is unsatisfactory to hold a doctor liable where he has obtained informed oral consent but has failed to procure a written consent in accordance with the Act particularly as:239
i) The appellant did not stand to benefit financially nor was there any incentive to be gained by coercing the respondent into being sterilised;240
ii) Taking into account her age, the number of children and socio-economic status it is not unlikely that a woman in this position would refuse to be sterilised;241
iii) The referral letter written by the appellant requesting the hospital to prepare the
respondent for a caesarean section and tubal ligation would not have been written contrary to her wishes;242
iv) The appellant performed the tubal ligation under the genuine belief that her verbal consent was in place and 243
v) It is highly unlikely that the appellant would have insisted on going ahead with the sterilisation despite knowing that he did not have her consent as he would fall foul of the law and the Health Professions Council of South Africa.244
This led the Court to conclude that the respondent had consented to the sterilisation verbally and this absolved the appellant from liability in terms of a common law delictual claim.245 The appellant could not be liable in terms of the criminal law as the requisite mens
234 Ibid at para 51.
235 Ibid at para 34.
236 Ibid at para 46.
237 Ibid.
238 Ibid.
239 Ibid at paras 44-45.
240 Ibid at para 51 a.
241 Ibid at para 51.b.
242 Ibid at para 51.c.
243 Ibid at para 51.d.
244 Ibid.
245 Ibid at para 64
52 rea did not exist.246 Furthermore, given that the hospital staff had failed to inform the (gynaecologist) that Mrs Isaacs had refused to be sterilised or alternatively had withdrawn her written consent to be sterilised he could not be held liable for the negligence of the hospital staff. 247
2.5 Commissions of Enquiry
An alternative to litigation is an inquiry into the alleged abuse. This has been used in Slovakia.