Consent — Informed Consent and Requirements of Consent
Kumari K. Nirmala
Health Laws in India, 2022 [Routledge]
In the medical treatment, the relationship between the doctor and the patient has been in terms of benevolent paternalism. In ancient times, the obligation of the physician was solely in terms of promoting the welfare of the patient, diagnosing the ailment, and prescribing medicine or surgery, but seldom had they thought about patient’s right. But nowadays this locus of the authority in decision making has been shifted from the physician to the patient. A patient will receive all the information that he or she needs in order to make decision as to take treatment or not or a particular operation. There involves the consent of the patient. Consent to treatment is the principle that a person must give permission before they receive any type of medical treatment, test or examination. This must be done on the basis of an explanation by a clinician. Consent from a patient is needed regardless of the procedure, whether it a physical examination, organ donation or something else. The principle of consent is an important part of medical ethics and the international human rights law.
80 The earliest expression of this fundamental principle, based on autonomy, is found in the Nuremberg Code of 1947. The code makes it mandatory to obtain voluntary and informed consent of human subjects. Similarly, the Declaration of Helsinki adopted by the World Medical Association in 1964 emphasizes the importance of obtaining freely given informed consent for medical research by adequately informing the subjects of the aims, methods, anticipated benefits, potential hazards, and discomforts that the study may entail. Several international conventions and declarations have similarly ratified the importance of obtaining consent from patients before testing and treatment.
In India the principle of autonomy is enshrined within Art. 21 of the Indian Constitution, which deals with the right to life and personal liberty. Sec 88 of IPC, provides- Nothing which is not intended to cause death, is an offence to any person for whose benefit it is done in good faith, and who has given a consent. When a tort is committed, meaning that a defendant’s actions interfered with the plaintiff’s person or property, a plaintiff’s consent will excuse the defendant of the wrongdoing.
In the view of the above background, the present chapter proposes to deal briefly with the aspects of laws concerning consent in medical cases, and their implications. The chapter discusses about the capacity to give consent, ‘Real’ consent in the United Kingdom (UK) and as ‘Informed’ consent in the United States (US). To account for the Indian position, unlike in the West, the courts have assigned immense significance to the requirement of informed consent. The Honorable Court has in different cases summarized principles relating to consent and the necessity to enact full-fledged laws so as to adjust to the need of the day.