Consent in Medical Practice

Leishangthem Punshiba *

Blood Donation Camp in connection with Patriots' Day at Biramongal College in August 2017 :: Pix - Lamdamba Oinam

INTRODUCTION :-

In order to constitute a contract in medical practice, both the parties must consent to the agreement. Consent implies concurrence from sanctioning authority, while sanction confers authority.

Where there was material to show that relevant paper where placed before the sanctioning authority and/or no dispute is RAISED in that regard and he/she has given consent for prosecution stating that all relevant paper were taken into consideration.

CONSENT - A voluntary agreement/ compliance/ permission given by a person to a doctor/physician for examination of his/her ailment legally.

It is given after understanding WHAT it is given for and RISKS involved.

REASON for Consent :-

1) To examine, treat or operate upon a patient without consent is an assault in law, even if it is beneficial and done in good faith with some exceptions here.
2) If a doctor fails to give the required information to patient before asking for his/her consent to a particular operation/ treatment, he/she may be charged for negligence.

DEALT UNDER :- Indian Contract Act, 1872.

1) Section 13 defines consent – Two or more person- consent-upon agreeing same thing in same manner.
2) Section 14 — Free consent- when not obtained by a fraud/ misrepresentation/ undue influence/ coercion.

TYPES OF CONSENT :-

1) Implied Consent -- Most common type of consent by medical practitioner- implicitly granted by actions and the facts and circumstances of the particular situation.
Eg:- When a patient visits a clinic/ hospital for health check up, that mean action of the patients are signifying/implying that he/she wants to get examine by the doctor.

2) Expressed Consent -- Specially stated by the patient Orally or Written.
Eg :- Oral Consent- When a doctor request verbally to a patient for examine - that means doctor is asking Yes/No answer from the patient and proceed accordingly.

Written Consent – Hand written notes by a Patient in a sound mind , agreeing to examine/proceed. Mostly given/taken before Surgery.
o Any procedure beyond general physical examination required = Expressed Consent – shall always be Informed & Expressed.
o Informed & Expressed consent means every aspect of the treatment of the patient has to be informed to the patient.

CONCEPT of FULL DISCLOSURE :- Aspects of disease & treatment plan has to be informed to patient.

* EXCEPTION :- Doctrine of Therapeutic Privilege = privilege of a Doctor to withhold information of the patient – from the patient & for benefit of patient.

Doctrine of Loco Parentis :- Consent can be given by a person, who is locally acting as parents during emergency situation.

Blanket Consent :- Consent obtained for any & every procedure as long as patient stay in hospital = Legally Invalid.

Extension Doctrine :- During course of procedure for which doctor has taken specific consent from the patient, if doctor discovers new findings which was not anticipated prior to the procedure.

If the new findings has to be repair for patient's well being & survival Then doctor can extend the already obtained consent for the benefit of the patient = Legally Valid & Accepted.

o Universal Consent :- Given by State/ Law for National Health Programme .
Eg- Regular POLIO vaccination schedule.

o Prudent Patient Rule :- i.e. what a prudent person in the patient's position would have decided if adequately informed about all the reasonably foreseeable risks.

o Exception To Informed Consent :- Emergency, Therapeutic Privilege or When a patient waives his right to informed consent & delegates the right to the doctor or a close relatives.

o Informed Refusal :- The Physician has a duty to disclose adequately & appropriately to the patient, the risk/ possible consequences of refusal to undergo a test/ treatment. After understanding all the facts, the patient can refuse to submit to treatment/ an operation.

LEGAL PROVISION :- Section 53 CrPC

1) Sec 53 İ :- Examination of arrested person without consent upon requisition from police officer not below the rank of SI, by using reasonable force.
2) Sec 53 İİ :- If such an arrested person is FEMALE, then examination should be done only by lady MO on under the supervision of a lady MO.
3) Sec 53 A :- Examination of a person accused of RAPE by medical practitioner.
4) Sec 54 CrPC :- Examination of arrested person upon his/her request. Any arrested person should be subject for medical examination soon after the arrest.
5) Sec 87 IPC :- Person above age of 18 year can give valid consent for surgery.
6) Sec 88 IPC :- Nothing is offence if done in good faith with consent from the patient even if certain complication happens during procedure.
7) Sec 89 IPC :- In case of child below 12 year of age & Insane person = Consent from parents is must.
8) Sec 90 IPC :- Consent given by child below 12 year of age & Insane person = Invalid.
9) Sec 92 IPC :- Nothing is an offence = done without consent in such situation that consent obtained from guardian/ parents were not possible.
10) Nature of illness of a patient should not be disclosed to any third party without the consent of the patient.

IPC = Indian Penal Code – Defines offences and prescribe punishment.
CrPC = Criminal Procedure Code – HOW should investigation be done.

SPECIFIC CASES :-

Victim of Rape examination
= Consent victim is paramount.
= If age < 12 year – Parents Consent Must.
= If age > 12 year BUT < 18 year – Consent from both Victim & Parents must.
= Without Consent doctor/ police cannot force the victim to undergo examination.

o Organ donation :- Consent acquired from the legal heirs of the dead body.
o Oss V. Rishworth Case.
o Jockovach V. Yocum Case.
o Wells V. Gehee Case.
o Drummond's Case.

# I hope this article about Consent In Medical Practice, brings a little bit of understanding some legal aspects to the people (specially a non medical) and hope it helps in narrowing down the gap a bit and a little closer towards better understanding between Doctor-patient relationship.

Have A Great Day Ahead.
Eat Well, Sleep Well; Health Is Wealth.

SPECIAL THANKS - for their valuable support and review.
Leishangthem Somorendro – Legal expert and Co-author.
Lt. Col. Lourembam Manongba- Retd. Army Veteran,
General Secretary- Armed Forces Ex-Servicemen Association and Echs Ployclinic Imphal, Koirengei, Manipur.
Dr. Md Imran Khan, Medical Officer, Govt of Manipur.
Dr. Ningombam Koshal
Dr. Khundongbam Dinachandra
Dr. Kshetrimayum Rahul
Dr. Pukhrambam Tarun