Consent and it's medico legal implications

1. CONSENT
DR. SHANMUGAM K MD FM.,
SENIOR ASSISTANT PROFESSOR.

2. Definition
It connotes agreement, compliance or
permission given voluntarily without
compulsion
In simple words, to give permission to
someone else to do something that they
would not have the right to do without
your permission

3. Components of consent
Voluntariness- it suggests willingness of
patient to undergo treatment
Capacity- ability of a patient to
understand the nature and consequences
of the treatment offered
Knowledge –sufficient amount of
information about the nature and
consequences of the disease or treatment
disclosed to patient

4. When consent becomes valid
Free
Voluntary
Informed
Clear
Direct
Without undue influence/fear
Without fraud
Without misinterpretation of facts
Without threat or compulsion

5. Types of consent
Implied consent
Expressed consent
Verbal
Written
Informed Consent

6. Implied consent
Imputed from patient behaviour and conduct
Here the consent is presumed. If patient enters
the clinic, it presumed that the patient came for
examination and consultation
Thus conduct of patient suggests willingness to
undergo for medical examination
Consent is not written but legally it is effective

7. It does not cover the consent for examination of
 Private parts
 Vein puncture or injection
 Major intervention or operation

8. Verbal consent
It is consent, which is given orally
Employed for minor procedures
It should be obtained in the presence of a
disinterested third party for example nurse or
receptionist
Oral consent, when properly witnessed is of
equal validity that of written consent
Whenever oral consent is taken, it is appropriate
to make an entry in the patients clinical record

9. Written consent
Consent is obtain in written format
Employed for major therapeutic or
surgical procedure
Written consent will afford documentary
evidence

10. Informed consent
Syn- Rule of full disclosure
Refers to written consent given by the
patient after being informed of nature of
illness, nature of operation, or procedure
to be done, its alternatives, its
consequences and complicatons

11. Four parts make up informed consent
Enough information to make descision
The information is understood
The person is able to decide(competent enough)
Not to be forced or pushed into deciding
(coercion or pressure)

12. Exception to informed consent
Emergency
Therapeutic privilege
Unsoundness of mind

13. Legal aspects of Consent

14. Section 13, Indian Contract Act

15. Consent means free, voluntary agreement or
compliance. Sec.13 of Indian contract act lays
down that two or more persons are said to be in
consent with each other when they agree upon
the same thing in same manner. In consent
there are three separate but correlated elements
that are voluntariness, capacity and knowledge

16. Section 87, Indian Penal Code (IPC)
Nothing which is not intended to cause death, is
an offence by reason of any harm which it may
cause, to any person, above eighteen years of age,
who has given consent, to suffer that harm

17. Section 88, Indian Penal Code (IPC)
Given by the person himself, if above 12 years of age
(Sec.88 IPC), conscious and mentally sound or given
by the parent, guardian or close relative, if the
patient is less than 12 years of age or is insane or is
unconscious. In such circumstances consent given
by parent, guardian or close relative is known as
“substitute or proxy consent.”

18. Section 89, IPC:
A child below 12 years of age or an insane
person (person of unsound mind) cannot give
valid consent to suffer any harm which may
occur from an act done in good faith
The consent should be taken from a parent,
guardian or any other individual having lawful
charge of that person
Loco parentis

19. Locoparentis- in a emergency involving
children, when their parent or guardian are not
available consent is taken from the person in
charge of the child for example school teacher
can give consent for treating child, who become
sick during picnic away from the home town or
the consent of the principal of a residential
school

20. Section 90, IPC
This section describes what does not amount to
consent rather than what is consent or amounts to
consent.
This section mentions that consent is invalid if it is
given by a person-
under fear of injury
under a misconception / misinterpretation of fact
who is intoxicated
of unsound mind
under 12 years of age

21. Section 91 of IPC
Consent given for committing a crime or illegal act
[example: criminal abortion (induced abortion not
indicated as per the Medical Termination of Pregnancy
{MTP} Act] is invalid, irrespective of whether or not the act
causes harm to the consenting party

22. Section 92 of IPC
Act done in good faith for benefit of a person
without consent
Consent implied by law in cases of emergency.
Emergency doctrine

23. Emergency in the legal sense
Two factors that must be present to constitute
an emergency in the legal sense:
Immediate danger of death or serious bodily
harm
Person unable to give consent

24. Section 53 CrPC
Prisoners and persons released on bail can be treated
without their consent in the interest of justice of
society. A registered medical practitioner can examine
an accused by using reasonable force if the examination
is requested by the investigating police officer not below
the rank of police sub inspector.(Force should be
applied by police)

25. Subsection 2 of CrPC 53
which lays down that, whenever the person to
be examined is female the examination shall
be made only by or under the supervision of
female registered medical practitioner

26. Section 351 IPC
All medical procedures, including examinations,
diagnostic procedures and medical research on
patients potentially acts of bodily trespass or
assault, in the absence of consent or statutory
sanction

27. Consent: Legal Significance
saves us exceptional circumstances, medical
treatment must not be administered without
obtaining patient’s valid consent
treatment/investigations performed without
consent constitute “battery”
no liability results from decision to withhold or
withdraw even life-sustaining treatment at
request of competent patient

28. WHY THE CONSENT IS
NECESSARY?
Without his/her express or implied authority,
will be ascribed to ASSAULT/ BATTERY
The physician has no right to trespass upon a
patient’s personal dignity and privacy as per
law
Duty bound to give requisite information
before asking consent, if fails action for
negligence

29. Rules of consent
The consent need to be
Free without
Fair fear
Uninhibited fraud
Clear force
Direct threat of physical
injury/ death
Personal

30. Rules of consent
Consent in writing is always required before
any medicolegal examination
Express consent should always be taken in
any procedure beyond ordinary medical
examination, operation, blood transfusion etc
Nature and consequences of the operation
Case: surgeon while operating for prostatic
disorder, sterilised the patient without
informing him about the possibility of getting
sterilised or any alternative treatment

31. If therapeutic reasons stand as bar to
inform the patient personally, one of his
responsible relative should be informed and
his consent should be taken
If diagnosis is not clear, get OPEN
CONSENT to use his discretion while
selecting the line of treatment, should avoid
experimenting with a new method at the
cost of the patient
Its better to take second operation

32. Examining female pt if carried by a male
physician in absence of female attendant,
the charge of outrage of female modesty or
INDECENT ASSAULT can be brought
against the doctor, Sec 354 IPC

33. SCENARIO
Sterilization of anyone of a couple as a
family planning measure the written
consent of both partners has to be obtained
Consent of wife, for her gynaecological
operation is sufficient without that of the
husband, e.g., MTP
Consent given cannot be the defence in
case of charge of professional negligence,
e.g., criminal abortion

34. If the deceased has expressed his desire,
verbal or written to donate his eyes after
death, can be removed only after the
consent of the lawful heirs
A living adult subject can donate one of his
kidneys without the consent of the lawful
heirs

35. Case: 11 yr old girl was taken by her adult sisters to a
surgeon for removal of her tonsils and adenoids. The
patient died while under anaesthesia. Father sued the
doctors.
Court’s decision: no emergency in this case which
would excuse the need for parental consent and that
the father could recover damages

37. Naming the treatment / procedure / surgery
specifically in consent form ― Mandatory.
Compensation of 3,00,000 lac was ordered, for
not documenting the procedure in the consent
form.
[http://www.mlcd.in on Monday, November 21,
2016, IP: 157.50.197.136]

39. “Poor records mean poor defense, no
records mean no defense” —
National Consumer Commission
THANK YOU