The preamble of our constitution highlights the core values, but still, it is not regarded as a part of our constitution, even it is not enforceable in a court of law. But still, the constitution is interpreted in respect of preamble, in several cases, the judiciary has stated that the objectives of justice, liberty, equity, and fraternity stated in preamble states the basic structure of the Constitution. The preamble directs the center and state to initiate the measures to establish Sovereign, Socialist, Secular, Democratic Republic, Justice, Liberty, Equality, Fraternity which have a direct significance on people’s health. Although preamble doesn’t talk regarding health directly and even our constitution also doesn’t provide the right to health in our fundamental rights, but still it has been evident in it through several judgments. The judiciary found that Article 21 has a wide scope and its meaning is wide so it includes the right to health in its ambit.
As we know Human Rights are provided and given to all persons living in this world and these rights should also be enshrined in-laws of country. In our country also the framers have enshrined them in our Indian Constitution and they are divided into two parts: Firstly in Fundamental Rights which has been constituted in part 3 which include right to life, the right to equality, the right to free speech and expression, the right to freedom of movement, the right to freedom of religion, which in human rights stated as civil and political rights. Secondly in Directive Principles of State Policy(DPSP) which has been constituted in part 4 which includes all the social, economic, and cultural rights, such as Right to education, Right to Wages, Right to health, etc.
Under DPSP it has been the duty of the state as per Article 39, 41, 42 and 47. The 7th schedule of constitution enlists Public Health under State List. Therefore state government has the power to adopt, enact, and enforce public health-related regulations. The number of Health Care laws has been introduced today by the government and they were essential also for governing the functioning of the medical services in India. These Medical laws are the branch of laws which concerns the privilege and obligations of patient and experts. Even when these medical laws come to help in the legal fraternity in its discharge of duties it becomes ‘forensic ‘. Life cannot be imagined without laws as it regulates the conduct of the people and also protects their rights. Even in the medical field, the medical expert should perform his duty subject to provisions of law.
“There are three factors in the practice of medicine: the disease, the patient, and the physician. The physician is the servant of science, and the patient must do what he can to fight the disease with the assistance of the physician”. These medical experts which include physicians and all have to follow the rules and regulations which has been made for them. Even the consent plays an important role in it as the first step in the medical practice when the person is going to be operated or treated the consent plays an important role in it. It is a legal requirement of medical practice it means approval of the concerned individual for the specific task.
The word “Consent” generally means approving the particular person for the performance of the task. Today the consent is one of the critical issues in the area of medical treatment and the patient has the liberty to refuse treatment, even if the said treatment will save his or her life. Even before undergoing any treatment, the patient consent is taken and it is taken either by him or by his legal hires or any person who is authorized to do so. Consent is the only principle that runs through all the aspects of the health care area today. It clearly shows the legal and ethical expression of the basic right to examine a particular person. Medical Consent runs through all provisions of health care law today. No doctor is allowed to treat any patient without his/her consent otherwise he will be punishable under different laws dealing with it such as Law of Torts, Law of Crimes, Consumer Protection Act, or any other law for the time being in force.
“Every human being of adult years and sound mind has a right to determine what should be done with his body and the surgeon who operates without his patient’s consent commits an assault for which he is liable in damages“. This statement is not only for surgical operations but also for all forms of medical treatment. Even consent plays its role differently in different situations, like in a situation like medical emergency consent is not required. Ignorance of the law is although not a defense in legal cases, so all the medical professionals shall be aware of their duties concerning laws. Any operation, examination, or anything done by a doctor without prior consent will be amounting to an assault on the patient, and treatment without consent will going to amount misconduct which is punishable under law.
Why is it Mandatory to Obtain Consent?
Consent in medical terms means permission given by a person before any medical expert which gives them any kind of medical treatment, test, or examination as required for their treatment. Although depending upon circumstances there is each type of consent which are as follows: implied, expressed, or informed. Implied consent is the one in which is not written it has no physical existence but it is legally effective. This consent is either by words or by the behavior of the patient or based on circumstances under which the treatment is given. For example: When a person books an appointment with a doctor, he keeps that appointment for his medical history and using it for any further examination, even the doctor asks the questions from him regarding the same. So from these circumstances, consent for examination is clear and implied as he is answering the question and allowing him to examine.
Expressed consent may be either oral or written and it can be stated in either distinct or explicit language. In many of the minor examinations or normal treatment procedures, oral consent is sufficient and it should be preferably given by the person who is undergoing the treatment. Oral consent where properly given and witnessed, it will have the same effect and valid as that of written consent, even it has the same evidentiary value as that of other consent, it is easy to prove and has the permanent form of nature. When expressed consent is in written form it should be obtained for surgical operations and any investigation procedure. As we are aware of narcotics, anesthetic agents they require written consent as they significantly affect the patient’s level of consciousness during the treatment.
Informed consent is the consent in which each person was having the right to decide in respect of his body, that is to say, a permission which is being obtained before conducting a healthcare treatment on the person. In this consent, the medical practitioner informs the patient of the benefit and risk of treatment and the consequences of such treatment so that he can make his decision, and later on, the doctor will not liable for it. As the patient should be aware of the potential benefits of their decisions. The main objective of this consent is to ensure that the patients will not be exploited by the physicians. The onus to disclose information lies on the doctor and how the body is to be treated lies on the patient. So, the doctor must disclose the information which will arise if he undergoes the treatment.
So, based on these different consents actions are performed by the doctors. It is a representation of a patient’s supremacy, which has to be followed to provide honest and fair treatment to that person. If a doctor tries to operate a person without the legitimate consent of that patient, in that case, such a doctor will be liable and punished also the patient will be reimbursed for the same. The procedure for this lies in both Tort Law and Criminal Law if a person proceeds as per tort he will file for the adequate amount to recover from the losses incurred. Whereas in criminal law the accused which is one of the medical experts or staff will be punished with imprisonment or fine, it depends upon the circumstances.
The medical practitioners must obtain consent every time form the patient so that it will not create any problem for him and if the patient goes against him or any charges framed against him it would be easy to drop all the charges framed against him. That’s why consent plays a vital role and it is mandatory to obtain so that no wrong will be done against the patient and he will be having knowledge about the treatment.
Indian Laws and Judgement on Consent
The right to health is one of the important fundamental rights as it has been stated by our judiciary in several cases. In case of Bandhua Mukti Morcha vs. Union Of India & Others the Supreme Court for the first time interpreted Right to health under Article 21 which is Right to life and in case of State Of Punjab & Ors vs. Mohinder Singh Chawla Etc the Supreme Court reaffirmed that the right to health is fundamental to the right to life and should be put on record that the government had a constitutional obligation to provide health services. It is the duty of both state and center government to provide proper health rights services to all. However, the common law application of consent has not been fully developed in India in such a situation the principles of the Indian Contract Act and Indian Penal Code is to be taken.
The relationship between the medical practitioner and patient is a contract by the parties, which are having contractual obligations. In the Indian Contract Act, it lays down under section 13 that two or more persons are said to consent when they agree upon the same thing in the same sense and persons who are of the age of majority are competent to contract. According to the Indian Majority Act, “every person attains the age of majority on his completing the age of 18 years”. Consent is free when it works without any coercion, undue influence, mistake, misrepresentation, or fraud. When consent is rendered by these things it will render such agreement invalid. As the doctor has to give the patient a valid description of his condition and the risk which is involved, this doesn’t mean they will force the patient to take treatment by misrepresenting him.
Under the law of Torts “Trespass” has been defined which generally means interfering with personal property or body or liberty, which is considered as wrong in legal terminology. Where there is a consent there is no trespass and if some medical practitioner examines the person other than that of emergency he will be liable for the same, under the law of torts. The consent is used as a defense under criminal law for the medical experts. Although, if any physical interference is done without the consent of legal persons it will amount to the offense. This concept has its backing from the voluntary nonfit injuria (he who consents suffers no injury), it is based on two principles, firstly every person is the best judge of himself and his interest and secondly, no man will consent against him what he thinks likely to hurt himself.
In civil law, no suit can be filled in respect of an act done or arising of what is done with the consent of the person complaining it. In criminal laws that medical expert will be punished for the same under different provisions of IPC like section 202, 350, 351, etc., and section 87 to 91 of IPC deals with the defense of consent.
In the case of Samira Kohli v. Dr. Prabha Manchnda the Supreme Court of India stated that” Consent in the context of a doctor-patient relationship, means the grant of permission by the patient for an act to be carried out by the doctor, such as a diagnostic, surgical or therapeutic procedure. Consent can be implied in some circumstances from the action of the patient”. This judgment gives the principles of consent in respect of medical treatment and therapeutic investigations. The Supreme Court has also summarized the principles relating to consent which are:
- A doctor has to seek and secure the consent of the patient before commencing a ‘treatment’ (the term ‘treatment’ includes surgery also). The consent so obtained should be real and valid, which means that: the patient should have the capacity and competence to consent; his consent should be voluntary, and his consent should be based on adequate information concerning the nature of the treatment procedure, so that he knows what is consenting to.
- The ‘adequate information’ to be furnished by the doctor (or a member of his team) who treats the patient, should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment or not.
- Consent given only for a diagnostic procedure cannot be considered as consent for treatment. Consent given for a specific treatment procedure is not valid for some other treatment or procedure.
- There can be a common consent for diagnostic and operative procedures where they are contemplated. There can also be a common consent for a particular surgical procedure and an additional or further procedure that may become necessary during surgery.
- The nature and extent of information to be furnished by the doctor to the patient to secure the consent need not be of the stringent and high degree mentioned in Canterbury but should be of the extent which is accepted as normal and proper by a body of medical men skilled and experienced in the particular field. It will depend upon the physical and mental condition of the patient, the nature of the treatment, and the risk and consequences attached to the treatment.”
However, this doesn’t mean that if the patient is in critical condition the doctor will not operate him by saying I was not having consent the High Court stated in Dr. T.T. Thomas vs. Elisa that” the consent factor may be important very often in cases of elective operations which may not be imminently necessary to save the patient’s life. But there can be instances where a surgeon is not expected to say that “I did not operate him because I did not get his consent.” Such cases also include emergency operations where a doctor cannot wait for the consent of his patient or where the patient is not in a fit state of mind to give or not to give a conscious answer regarding consent. So, the doctor must perform his duty if it’s an emergency he cannot refuse that I am not having any consent regarding it.
Today Right to Health is our Fundamental right guaranteed under the Indian Constitution and the state and center must provide it to all the citizens. The role of consent is very important in it, also it plays an important role in medical practice today. Any medical treatment, examination, therapeutic, or diagnosis consent should be obtained from the person to give him a better facility. Consent plays an important role but still many concepts like proxy consent still no regulations or principles developed in India. So, these concepts have been still developing in our country.
 The Constitution of India, 1950
 The Constitution of India, 1950
 Hippocrates, The Epidemics, Book I
 Schloendorff v. Society of New York Hospital, 105 N.E. 92 (N.Y. 1914),
 1984 AIR 802, 1984 SCR (2) 67
 JT 1997 (1) SC 416
 The Indian Majority Act, 1875
 2008, AIR SCW 855
 Samira Kohli v. Dr. Prabha Manchnda 2008, AIR SCW 855
 (1987) ACC 445, AIR 1987 Ker 52