medical consent south-africa
Free and informed consent for medical test
<p>My company requires me to have life insurance for which I recently moved out of the provider's "free cover limit". Because of this I now have to submit to certain medical tests in order to have full cover.</p>

<p>In the document I received are the following lines:</p>

<blockquote>
  <p>Your rights are<br>
  1 - Not to be tested without your free and informed consent<br>
  2 - To refuse to take the test. If you do this you application will be denied.</p>
</blockquote>

<p>I am not really interested in having the tests done, but I am required to have the insurance and am thus <strong>required</strong> to have the test done. Doesn't this mean that I cannot give my free consent and am, in fact being coerced into giving consent?</p>

<p>Typically, <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3307558/" rel="nofollow noreferrer">informed consent within the context of medicine</a> is applied from three points-of-view: legal, ethical, administrative. As a whole, generally, informed consent discussions include four needed parts:</p>

<ol>
<li>decision-maker, typically the patient or her guardian/person with power of attorney with capacity to make decisions</li>
<li>physician disclosure with enough info to allow the decision-maker to make an informed choice.</li>
<li>demonstration by decision-maker that she understands the info.</li>
<li>a freely-given authorization of the treatment plan by the decision-maker. </li>
</ol>

<p>Whether or not your employer may require a certain insurance or whether or not you live within a certain area that allows you to forego certain tests is not of concern to the concept in #4. You still quite clearly have both the opportunity to understand the procedure that will be performed and the ability to make a choice about whether or not you have them perform that procedure. </p>

<blockquote>
  <p>Doesn't this mean that I cannot give my free consent and am, in fact being coerced into giving consent?</p>
</blockquote>

<p>I do not know about the law in South Africa, but under EU law: Yes, this would be interpreted as you being coerced into giving consent.</p>

<p>This follows from the <a href="https://gdpr-info.eu/recitals/no-43/" rel="nofollow noreferrer">GDPR Receital 43</a>. Here is the relevant part:</p>

<blockquote>
  <p>Consent is presumed not to be freely given if [...]  if the performance of a contract, including the provision of a service, is dependent on the consent despite such consent not being necessary for such performance.</p>
</blockquote>

<p>Here "necessary" specifically means "necessary for performing the service" <em>not</em> "necessary for the commercial purposes of the controller".</p>

<p>In your case, the tests are not in any way <em>necessary</em> for providing you with insurance. The <em>only</em> reasons for the tests is to protect the commercial interests of the company.  Presumably, if you consent to the tests, and they show that providing you with full coverage would be a financial risk for the company, you will be denied full coverage.</p>

<p>I.e.: Given the GDRP definition of freely given consent, it pretty obvious that this description of your rights:</p>

<blockquote>
  <p>Your rights are [...]<br>
  To refuse to take the test. If you do this you application will be denied.</p>
</blockquote>

<p>invalidates any pretense of consent being freely given.</p>

<p>The premise that lies at the root of this question is a very interesting one, that AFAIK is handled different in different jurisdictions.</p>

<p>In the country I live, the majority think that it is politically desirable that all citizens have full coverage, pay the same, and that pre-existing conditions should not exclude anyone from full coverage. This means that insurance companies <em>cannot</em> use the refusal to undergo tests, or refusal to fill in self-declaration questionnaires as grounds to deny someone full coverage, or to charge higher premiums. (In other countries, such as the USA, the majority view is different).</p>

<p><strong>Notice</strong>: The GDPR only apply in Europe.  If the definition of "freely given consent" is South Africa is different, this may be of no practical use to you.</p>
