JANUARY 12, 2011




‡ Many of us are frequently involved in dealing with patients who may be either victims of violence or accidents or having medical situations with some legal implications ‡ We are desired to have adequate knowledge and training in the legal aspects of medical practice ‡ Otherwise necessary and significant evidence can be overlooked, lost, inadvertently discarded, or its admissibility denied, ultimately resulting in failure to establish and fix responsibility for the case in accordance with the law of the land

‡ We all must know our responsibilities towards patient, state & law ‡ Ignorance of law is not an excuse


compliance or permission ‡ Refers to the provision of approval or assent. it means voluntary agreement.CONSENT: WHAT DOES IT MEAN? ‡ Literally. particularly and especially after thoughtful consideration ‡ To be legally valid. and of risks involved 5 . it must be given after understanding what it is given for.

since the actions in question occurred with the plaintiff or victim's prior consent & permission ‡ Very important in law as well as medical practice 6 .CONSENT: WHAT DOES IT MEAN? (Contd«) ‡ Prior provision of consent signifies a possible defence (an excuse or justification) against civil or criminal liability ‡ Defendants may argue that they should not be held liable for a crime.

there may be an implied consent. expressed and specific to the procedure being performed 7 ‡ . But for more than examination and to be valid. informed.CONSENT: IN MEDICAL PRACTICE ‡ ‡ Should always be taken while examining and treating a patient Whenever a doctor agrees to treat a patient there is an implied doctor-patient contract to treat a patient with reasonable care & skill For medical examination. the consent must be competent. freely given.

treat or operate upon a patient without consent is assault in law (even if it is beneficial and done in good faith).CONSENT: IN MEDICAL PRACTICE (Contd«) REASONS FOR OBTAINING CONSENT ‡ To examine. ‡ If a doctor fails to give the required information to patient before asking for his consent to a particular operation or treatment. he may be charged for negligence 8 . The patient may recover damages.

while attending to a patient. one should do everything possible to resuscitate the patient and ensure that he/she is out of danger ALL LEGAL FORMALITIES STAND SUSPENDED TILL THIS IS ACHIEVED 9 ‡ ‡ ‡ . one must understand that our first priority is to save the life of the patient Supreme Court ruling: ³medicolegal aspects are secondary to life of patient´ While attending to an emergency. unconsciousness or dead In medical practice.RESUSCITATE THE PATIENT FIRST ‡ ‡ The cases may be brought conscious.


KINDS OF CONSENT (Contd«) EXPRESS CONSENT ‡ Explicitly negotiated ‡ Specifically stated by the patient ‡ Types: ± Verbal ± Written 11 .

Examples: ± A patient attends the hospital ± A patient calls the doctor to his house ± A patient holds out his arm for injection ‡ Usually given in routine practice by the patient 12 .KINDS OF CONSENT (Contd«) IMPLIED CONSENT ‡ ‡ Given within the usual subtleties of human communication (implied words) Whenever a doctor agrees to treat a patient there is an implied doctor-patient contract to treat a patient with reasonable care & skill.

and 3. Knows that he can either agree or refuse to submit to treatment or an operation. 2. 13 .KINDS OF CONSENT (Contd«) IMPLIED CONSENT (Contd«) An adult patient of sound mind who « 1. Then cooperates with the doctor « has impliedly consented in words. Knows or has been fully or fairly informed by his doctor as to what is to be done.

KINDS OF CONSENT (Contd«) INFORMED CONSENT ‡ A phrase often used in law to indicate that the consent a person gives meets certain minimum standards ‡ The term was first used by Paul G Gebhard in a 1957 medical malpractice case 14 .

15 . 2. SO THAT HE MAY ACCEPT OR REJECT THE PROCEDURE. the risks involved in both the proposed and alternative procedures.KINDS OF CONSENT INFORMED CONSENT (Contd«) IT IMPLIES AN UNDERSTANDING BY THE PATIENT OF: 1. the relative chances of success or failure of both procedures. the nature of the proposed treatment or procedure. and 5. the alternative procedure. 4. the nature of his condition. 3.

KINDS OF CONSENT INFORMED CONSENT (Contd«) ‡ The individual concerned must have adequate reasoning faculties and be in possession of all relevant facts at the time consent is given Conditions/factors of impairments to reasoning and judgment which may make it impossible for someone to give informed consent include: ‡ ‡ ‡ ‡ ‡ ‡ ‡ ‡ Basic intellectual or emotional immaturity High levels of stress (such as PTSD) Severe mental retardation Severe mental illness Intoxication Severe sleep deprivation Alzheimer's disease Coma 16 ‡ .

KINDS OF CONSENT INFORMED CONSENT (Contd«) ‡ All disclosures must be in language the patient can understand ‡ It will reduce litigation when the results are unsatisfactory or unexpected The patient must show that the doctor did not adhere to accepted medical standards to prove liability for lack of informed consent 17 ‡ .

physical & mental state) 18 ‡ . and who may refuse the treatment when there is really little risk The facts which a doctor must disclose depends on the normal practice in his community.CONSENT: FEW MORE TERMS ‡ The Law of ³FULL DISCLOSURE´ ‡ It could result in frightening a patient who is already fearful or who is an emotionally disturbed individual. and on the circumstances of the case (including the patient¶s personality.

the doctor may use discretion as to the facts which he discloses (which should be clearly noted in the patient¶s records) Examples: ± Emotionally disturbed patient ± Unavoidable fatal lesion/ malignancy 19 ‡ ‡ .CONSENT: FEW MORE TERMS ‡ ³THERAPEUTIC PRIVILEGE´ ‡ It is an exception to the rule of ³full disclosure´ In this.

or of his ability to make a rational choice Examples: ± Distorted way of disclosure ± Partial and guided disclosure 20 ‡ .CONSENT: FEW MORE TERMS ‡ PATERNALISM PRIVILEGE ‡ An abuse of medical knowledge so as to distort the doctor-patient relationship in such a way that the patient is deprived of his autonomy.

the risks or possible consequences of refusal to undergo a test or treatment 21 .CONSENT: FEW MORE TERMS ‡ INFORMED REFUSAL ‡ The doctor¶s duty to disclose adequately and appropriately to the patient.

formal consent for medical examination is not required (because of its ³implied´ nature) Oral consent should be obtained in the presence of a disinterested third party (such as the nurse) 22 ‡ ‡ .RULES OF CONSENT ‡ CONSENT IS NECESSARY FOR EVERY MEDICAL EXAMINATION Ordinarily.

RULES OF CONSENT (Contd«) ‡ WRITTEN CONSENT IS NOT NECESSARY IN EVERY CASE However. it should be taken for proving the same in the court of law. if necessity arises It should refer to one specific procedure (and not blanket permission on admission to the hospital) and should be in proper form & suitably drafted for the circumstances 23 ‡ ‡ .

collection of samples) requires express consent It must be taken before the act Explicit agreement by means of signature is the norm ‡ ‡ 24 . blood transfusion.RULES OF CONSENT (Contd«) ‡ Any procedure beyond routine medical examination (such as operation.

death or other consequence ‡ 25 . intelligent. compulsion. voluntary. misrepresentation of facts. direct and personal There should be no undue influence. clear. fraud. informed. or threat of physical injury.RULES OF CONSENT (Contd«) ‡ The consent should be free.

C. All relevant investigations needed for the said purpose would be done.L. The examination to be conducted would be a medicolegal one and would culminate in the preparation of a medicolegal injury report. and 3.) The informed consent includes information that: 1.RULES OF CONSENT IN A MEDICOLEGAL CASE (M. 2. The findings of the report may go against the patient if they do not tally with the history given (very important) 26 .

the woman should not be examined without her consent 27 ‡ ‡ ‡ . (Contd«) ‡ The victim cannot be examined without his/her consent The Court also cannot force a person to get medically examined against his/her will In cases of rape. delivery and abortion. the victim should not be examined without written consent In MLCs of pregnancy.L.C.RULES OF CONSENT IN AN M.

L. if there are sufficient grounds to believe that such examination will provide evidence of the commission of the offence´ 28 .C.RULES OF CONSENT IN AN M. a person arrested as accused in a criminal offence may be medically examined without his/her consent on the request of a police officer (of a rank of Sub-Inspector or higher) or on the orders of the court. (Contd«) ³However.

examination and treatment can be carried out The consent of guardian or relative (if available) should be taken The person can be examined without consent. if requested by an S. urine or breath should not be collected without his written consent But if he becomes unconscious or incapable of giving consent. or higher police officer ‡ ‡ ‡ 29 .I.RULES OF CONSENT IN CASES OF DRUNKENNESS ‡ The person should not be examined and blood.

87. which may result from an act not intended or not known to cause death or grievous hurt (Sec. IPC) 30 ‡ ‡ .RULES OF CONSENT (Contd«) ‡ A prisoner can be treated forcibly and without consent in the interest of the society Consent given for committing a crime or an illegal act (such as criminal abortion) is invalid A person above 18 years of age can give valid consent to suffer any harm.

done in good faith and for its benefit (Sec. IPC) A child under 12 years of age and an insane person cannot give valid consent to suffer any harm which may result from an act done in good faith and for its benefit.RULES OF CONSENT (Contd«) ‡ A person can give valid consent to suffer any harm which may result from an act not intended or not known to cause death. IPC) 31 ‡ .89. The consent of the parent or guardian should be taken (Sec.88.

IPC) ‡ 32 .375. if she is above 15 years of age (Sec.RULES OF CONSENT (Contd«) ‡ The age of consent for sexual intercourse is 16 years for both males and females. if the boy and the girl are unmarried However. sexual intercourse by a man with his own wife (even against her will) is not rape.

RULES OF CONSENT (Contd«) ‡ A consent given by a person under fear of injury. IPC) ‡ 33 . or due to misunderstanding of a fact is not valid The consent given by an insane or intoxicated person (who is unable to understand the nature and consequences of that to which he gives his consent) is invalid (Sec.90.

when his/her parents or guardians are not available. the warden etc ‡ 34 . the consent is taken from the person-in-charge of the child Examples: the school teacher.RULES OF CONSENT LOCO PARENTIS ‡ In an emergency involving a child.

92. even without that person¶s consent is not an offence. if the circumstances are such that it is impossible for that person to signify consent.RULES OF CONSENT (Contd«) ‡ Any harm caused to a person in good faith. IPC) 35 . and has no guardian or other person in lawful charge of him from whom it is possible to obtain consent in time for the thing to be done in benefit (Sec.

consent of both the husband and the wife should be obtained The consent of one spouse is not necessary for an operation or treatment of the other (especially when it is required to safeguard the health of the spouse) ‡ 36 .RULES OF CONSENT (Contd«) ‡ For contraceptive sterilisation.

this should be recorded and patient¶s signature obtained ‡ 37 .RULES OF CONSENT (Contd«) ‡ It is unlawful to detain an adult patient in hospital against his/her will If a patients demands discharge against medical advice.

the law provides the consent Consent is not a defence in cases of professional negligence 38 ‡ ‡ .RULES OF CONSENT (Contd«) ‡ The nature of illness of a patient should not be disclosed to any third party (except the court of law) without consent of the patient When a procedure is made compulsory by law (such as vaccination).

RULES OF CONSENT (Contd«) ‡ Besides the medicolegal autopsy. consent is not required (Statutory authorisation) and the doctor can remove from the cadaver anything that is essential for the purpose of examination 39 ‡ ‡ . a pathological autopsy should not be conducted without the consent of the guardian or legal heirs of the deceased Specific authorisation should be obtained for retention of organs and parts of the body In medicolegal autopsies.

consent is not required (Statutory authorisation) and the doctor can remove from the cadaver anything that is essential for the purpose of examination 40 ‡ ‡ . a pathological autopsy should not be conducted without the consent of the guardian or legal heirs of the deceased Specific authorisation should be obtained for retention of organs and parts of the body In medicolegal autopsies.RULES OF CONSENT (Contd«) ‡ Besides the medicolegal autopsy.

the eyes can be removed only after the consent of the guardian or legal heirs A living adult person can give consent for donating one of his kidneys to be grafted into another person. ‡ 41 .RULES OF CONSENT (Contd«) ‡ If any person has donated his eyes to be used for therapeutic purpose after his death.

the organs of the dead person should not be removed without the consent of the guardian or legal heirs 42 ‡ .RULES OF CONSENT (Contd«) ‡ If any person has donated his body to be used for therapeutic or research purposes after his death. it is not binding on his spouse or next of kin For organ transplantation.

and all those involved with the medicolegal aspects must be well-versed with it for appropriate and vigilant practice 43 .TAKE HOME MESSAGE ‡ Consent is an important concept and a crucial tool in the medical practice and jurisprudence.

Thank You 44 .