When a patient agrees to go ahead with surgical procedure or the treatment and the patient is provided knowledge by the operating doctor or any such medical practitioner, regarding the advantages, risk factor and whether any other alternative treatment is available or not. Although the degree of danger cannot be determined, it is the decision of the patient whether he/she wants to go ahead with the treatment procedure or not. It is also a legal document which has to be recorded and maintained and to be produced in the court of law when called upon to do so.
The patients or the relatives of the patient are asked to sign the consent form. This consent form has details regarding the advantages of the treatment as well as the risk associated with such treatment.
The importance of consent is one of the critical issues which is raised in cases of medical negligence. The patient has a legal right, as mentioned under Article 21 of the Indian Constitution, which states that a citizen has the right to personal life and liberty. The patient can refuse treatment at any point in time. However, in certain emergency situations, it is not always necessary to take consent from the patient. It is important that the consent should not be illegally obtained as consent only stands valid if it is obtained legally. According to the law, it is always presumed that the doctor is at the dominating position; thus, it is the duty of the doctors to obtain consent after giving all the necessary information related to the treatment, surgery or minor operation. If a medical professional treats a patient without his/her permission, then they shall be punishable under appropriate sections of law.
Consent is an essential principle under the different Indian medical laws, and it is an acceptable practice followed worldwide by the health fraternity. Informed consent is an important concept which is usually ignored or only partially accepted in India. The importance of consent can be traced through two directions; ethical angle and the legal perspective.
The Medical Council of India has laid down rules under the Indian Medical Council (professional, conduct, Etiquette and ethics) regulations 2002. It states that a doctor or a physician before conducting any operation should collect the written consent from the guardian, or other relatives if the patient is minor, in case of an adult the patient himself can give consent for his/her operation. If the doctor does not collect the consent from the appropriate patient or their relatives, then he/she shall be liable for professional misconduct which shall further lead to disciplinary action by the medical council of India.
In cases where the consent is obtained illegally or where the patient has not been provided with the necessary information regarding the risks involved during the treatment or whether any other alternative treatment is available in this particular case, the consent will be deemed incomplete or invalid. And if medical professional attempts to treat a patient without acquiring proper consent, he/she shall be liable under appropriate sections of the law (law of torts, criminal law and consumer protection act). The doctor can be sued for medical negligence if proper consent has not been taken by the patient.
DR. Thomas Vs Elisa Air 1987
In the above case, the court had given the judgement that the doctor was guilty of committing the act of medical negligence as the doctor decided not to operate the appendix and the risk of losing the life was involved. The doctor did not carry out the operation because the patient did not give consent, and the relatives of the patient were not available.
Parmanand Katara Vs Union of India
Ruling out the High Court judgement, the Supreme Court held that it is the duty of the doctor to treat the patient and give his 100 percent. Lack of valid consent need not be taken into consideration in cases of life-threatening situations.
It is essential that the patients understand that in some treatments, side effects may arise which even the doctor is unaware of. The patient should understand the benefits and the risk factor of the treatment or surgery, which is going to be conducted by the doctor. Therefore, it is not always that a doctor should be blamed for the mishap that has aroused from the treatment or the surgery performed by him. In some cases, it is essential that the benefit of the doubt should be in favour of the doctors and the health industry at large.