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Communicable diseases

Occasionally, the principle of respecting a person’s right to autonomy comes into conflict with the rights of the larger society. The National Health Act 2003 addresses this situation by stating that health services should not be provided to users without their informed consent, unless “failure to treat the user, or group of people which includes the user, will result in a serious risk to public health”.20

The most common circumstance where this would apply is when an individual refuses to be examined or treated for a dangerous communicable disease. Regulations published under the National Health Act in 200821 make provisions for mandatory medical examination, isolation and quarantine of carriers, contacts and sufferers of specified communicable diseases. In such circumstances, individuals have to comply with medical examination and may be forcibly admitted to a health facility and put into quarantine even if they refuse to consent to any of these measures.

The regulations do not go so far as to make treatment mandatory, but an infected person who “wilfully refuses treatment” may be put into quarantine by order of the High Court. Similarly, the High Court may order carriers or susceptible contacts to be quarantined if they pose a threat to public health.

The regulations also make it mandatory for carriers, contacts and infected individuals to comply with instructions from health care providers regarding “precautionary measures to prevent or restrict the spread of an infection”.

End of life decisions

When patients are seriously ill and lack decisional capacity, others are obliged to make treatment decisions on their behalf; in the absence of an appropriate proxy decision-maker, this responsibility may fall to the patient’s doctor. The decision might include choosing not to intervene if a treatment or procedure would be burdensome and with little benefit to the patient (see HPCSA statement in Box 7).

Not all terminally ill patients lose their decisional capacity, and in this case the same principle applies as with treatment for all competent adults – healthcare professionals should respect and – as far as possible – comply with the patient’s wishes.

There are, however, limits to this obligation. Firstly, healthcare professionals are expressly forbidden – by medical ethics and the law – from honouring a patient’s or family’s request to intentionally hasten the patient’s death. Conversely, the HPCSA states that healthcare professionals are not obliged to comply with requests to continue treatment that they consider futile. In this situation, it advises giving the patient or family the choice of transferring to another institution where the treatment is available. If they refuse, and the futility of the treatment is confirmed by an independent healthcare practitioner, the health team may withhold or withdraw the treatment.22

Box 7: Terminally ill patients who lack decisional capacity

“The willful act by a healthcare professional to cause the death of a patient is unacceptable, notwithstanding whether or not such an act is performed at the request of the patient or his or her closest relatives or of any other person."

Source: HPCSA, Guidelines for the Withholding and Withdrawing of Treatment (2008), para 1.3