In May 2025, the Gauteng Division of the High Court acquitted paediatric surgeon Professor Peter Beale of murder and fraud charges related to the deaths of three children in incidents dating back to 2012, 2016 and 2019. The children’s families expressed deep disappointment, saying that justice had not been served. They said they needed time to consider an appeal.
Their reaction was understandable. What was less clear, however, was whether the families were fully informed about criminal procedures. In criminal cases, it is the State, not the families, that decides whether to appeal. This moment revealed something deeper than legal disappointment.
It exposed a recurring problem in our legal system, one that extends beyond any single case. It forces us to ask whether criminalising medical error truly serves justice or merely creates new forms of harm.
South African law takes informed consent seriously, at least in healthcare. No doctor may treat a patient without explaining the risks, alternatives and consequences, and without obtaining voluntary agreement. This is not merely an ethical practice; it is a constitutional expression of dignity and autonomy.
Yet in legal practice, particularly in medical negligence cases, informed consent is often missing or quietly ignored. Lawyers litigate in cases where consent is central, yet apply only the thinnest version of consent to their own clients. A signed mandate or settlement instruction is sufficient. It should not be.
Medical negligence litigation is intended to deliver accountability and justice. In reality, it often causes deep harm to everyone involved: patients, doctors and lawyers. This harm is not accidental. It is built into a legal culture that remains quietly paternalistic.
When the law itself causes harm
Doctors have a term for harm caused by medical treatment: iatrogenesis. Legal scholars describe a parallel phenomenon: critogenesis, meaning harm caused by legal processes themselves. Medical negligence litigation is one of its clearest examples.
Doctors who are sued for negligence often experience anxiety, depression, shame and burnout. Even those ultimately cleared may suffer lasting damage to their professional identity. Some leave clinical practice, change specialities or retire early. In high-risk fields such as obstetrics, litigation has altered behaviour, with doctors avoiding complex cases or withdrawing from care altogether. In a country already short of specialists, the impact is devastating.
Patients fare no better. Plaintiffs often enter litigation seeking answers, accountability or closure. Instead, they endure years of uncertainty, invasive questioning and repeated reliving of traumatic medical experiences. Scholars have likened the psychological impact to post-traumatic stress disorder. Sleeplessness, anxiety, depression, frustration and loss of confidence are common. Even successful claims can feel hollow after prolonged litigation.
Lawyers, too, are affected. Medical negligence work exposes legal practitioners to ongoing trauma through medical records, expert reports and distressed clients. Burnout and emotional exhaustion are well-documented in the profession. Lawyers often carry not only legal responsibility but also emotional responsibility for their clients’ suffering, acting as informal counsellors without training or support.
Medical negligence litigation, then, is not merely a means of resolving disputes. It is a psychologically hazardous process. Yet the legal profession rarely reflects on its role in producing this harm.
Law’s uneasy relationship with autonomy
At the heart of this problem is a familiar power imbalance. Lawyers, like doctors, possess specialised knowledge. Clients, especially those injured by medical treatment, are often traumatised, grieving or mistrustful of institutions. They rely heavily on lawyers to navigate complex procedures and assess risk.
The law claims to address this imbalance through fiduciary duties. Lawyers must act in their clients’ best interests, competently and loyally. But fiduciary duty is not the same as informed consent. Acting “in the client’s best interests” can easily slip into deciding for the client rather than with them.
In practice, many critical decisions are made with limited client involvement. Choices about litigation strategy, expert witnesses, settlement offers and trial risks are often treated as technical matters best left to professionals. Clients may be informed, but they are rarely empowered.
Beale’s case illustrates this problem. When the families said they needed time to decide whether to appeal, it revealed a lack of understanding of the criminal process, suggesting they had embarked on a criminal case without fully grasping its implications. Decisions are made in the name of the affected parties, yet without their meaningful consent. This is legal paternalism, and it sits uneasily with constitutional commitments to dignity and autonomy.
The irony is striking. Medical negligence law exists to protect patient autonomy, yet the legal process often undermines the autonomy of those it is meant to serve.
What informed consent should mean in law
In medicine, informed consent is not merely a signature on a form. It is a process that requires disclosure, genuine understanding, voluntariness and ongoing dialogue. There is no principled reason to exempt law from these standards.
A doctrine of informed consent in legal practice would require lawyers to explain procedures, risks, costs, delays and alternatives, including settlement and mediation, in clear, accessible language. It would require lawyers to confirm that clients genuinely understand the proposals, particularly when clients are emotionally vulnerable. It would discourage subtle pressure to settle or proceed for the sake of convenience, reputation or cost control. Most importantly, it would treat consent as an ongoing process.
In criminal cases involving alleged medical negligence, the standard should be even higher. The emotional, reputational and systemic consequences are profound, and the risk of harm from the legal process itself is significant.
This would not weaken legal expertise. Lawyers would continue to advise and recommend. But authority would shift towards shared decision-making, with clients retaining real control over choices that profoundly affect their lives.
Time for law to catch up
South Africa’s constitutional order places dignity, autonomy and accountability at its core. In healthcare, informed consent is firmly established. In legal practice, however, autonomy remains under-protected.
Medical negligence litigation exposes this gap. Clients endure years of adversarial proceedings without fully understanding the psychological, financial and personal costs, including the harm the process itself may inflict. Decisions that reshape their lives are often made in their name, yet without their meaningful consent.
Informed consent transformed medicine by dismantling paternalism and promoting shared decision-making. The law has lagged. In high-stakes contexts such as medical negligence litigation, where vulnerability and harm are widespread, this lag is no longer defensible.
Clients deserve more than fiduciary promises and technical competence. They deserve transparency, respect and real participation in decisions that shape their lives. If informed consent is the gold standard in healthcare, legal practice should not accept anything less. DM
Dr Hlombe Makuluma is a general medical practitioner with an MPhil in medical law and ethics and is a PhD candidate in Medical Law at the University of Pretoria. He is a medicolegal risk specialist who advises high-risk medical specialists and conducts medicolegal risk audits for medical practices and hospitals.