Standard-form contracts and exemption clauses for medical procedures in South Africa : a consumer's narrative

Abstract

This dissertation considers the use of exemption clauses in standard form contracts within the medical profession. The need for research of this genre stems from the inherent disparate bargaining positions the parties to a medical contract tend to find themselves in. In this regard, the emerging trend is one of exploitation and abuse, whereby the patient is often prejudiced at the hands of the stronger contracting party (the medical professional or the hospital). The common law position tends to favour principles aligned with freedom of contract and sanctity of contract. This dissertation will, however, investigate the extent to which these principles can be harmonised within the new legislative framework of the Consumer Protection Act 68 of 2008 („CPA_). The CPA has established itself as the kairotic moment for consumers seeking asylum from the adverse effects of exemption clauses and other standard form clauses, buried beneath the guise of medical formalities. This dissertation departs from a number of fundamental cases as decided by our courts. From this premise, the interpretation and application of exemption clauses before the introduction of the CPA will be considered. Within this discussion, the notion of an exemption clause and their role in standard form contracts will be examined generally. Their role as it pertains to the medical profession will thereafter be explored. The trend which is then analysed is the abuse of power exercised by those wielding such clauses when contracting with patients, resultantly calling into question certain legal principles and doctrines (in particular, the principles and doctrines referred to include those which have persisted through our common law; those which have been handed down by our courts; as well as those premised in both ethics and statute). The influence of the CPA is then examined and in particular, the sections (that of section 22 and section 49 being of emphasis) which have a bearing on the use of exclusionary clauses in medical contracts. Thereafter, this dissertation will critically discuss whether or not the CPA has afforded greater protection to the medical consumer. Within this discussion, the medical consumer_s path to redress, and the relative institutions involved thereto, is examined and criticized. The institutions which form the subject of this analysis include those pre-existing within the medical profession, as well as those established by the CPA. Finally thereafter, this dissertation reaches its conclusion based on the research so conducted and offers recommendations as to how exemption clauses in standard form medical contracts can be harmonised within CPA_s dispensation. The research conducted herein illustrates that the use of exemption clauses in standard form medical contracts is contentious, yet is strikingly present in South African consumer law. The CPA has introduced a number of regulatory hurdles to protect the consumer from the use of these clauses in the contracting process. Although the Act_s formulation is tainted by a number of ambiguities which has potentially lessened its influence, it has nonetheless paved the way for a fairer (own emphasis) contractual model.