Misinformation or lack of valid consent have been often disputed for unintended consequences of medical or surgical procedure. On various occasions, the sufferers have been successful in getting relief under the prevalent laws and medical professionals have been penalized for lack of communication about possible outcomes of the surgical procedures. This article shall broadly delve into requisites of valid consent in light of Samira Kohli case.
Before, going into the merit of case, it is necessary to understand the types of consent that are taken from the patient undergoing medical or surgical intervention by the attending Surgeon. Obtaining legally valid consent is the fundamental principle in medical ethics and law. It confirms that the patient or the legal guardian (in case of minor, insane or unconscious patient) is fully aware of all the possibilities that may occur subsequent to the proposed surgical procedure and that’s/he has given his/her consent voluntarily after knowing the consent. Since medical profession has information asymmetry where medical practitioners have all the relevant information at their end whereas the patient has limited or no knowledge about the possible outcomes of the particular medical or surgical procedure. Consent can be implied which is usually understood when the patient agrees for physical examination which is non-invasive. It can be expressed which can be either verbal or written. The third category is informed consent which is highest standard of consent where patient is communicated about the possible risks, adverse outcomes before giving a consent
Therefore, the onus lies on the medical professionals to have disclosed the risks and adverse consequences in fair and just manner. Failure to do so shall amount to medical negligence as it amounts to deficiency of services and deviation from duty of care. The Supreme Court of India has, through various landmark judgments, reinforced the necessity of valid, informed consent, emphasizing the duty of care and ethical responsibility that healthcare professionals bear. This paper examines the importance of valid consent in medico-legal cases, particularly in light of Supreme Court rulings.
In Samira Kohli case (AIR 2008 SC 1385), the appellant was suffering from menstrual bleeding problem for which she approached the defendant and gave consent for diagnostic intervention for laparoscopy but was operated for hysterectomy and bilateral salpingo-oophorectomy. The Apex Court after hearing both the parties came to the conclusion that the consent was only for diagnostic procedure and cannot be construed as permission for removal of uterus. The consent obtained by her aged mother in the situation as if this was only resort in the life-threatening situation was not acceptable. The Court held that this amount to tortious liability of battery causing deficiency of services.
While referring to English jurisprudence the Court mentioned that “Any intentional touching of a person is unlawful and amounts to the tort of battery unless it is justified by consent or other lawful authority. In medical law, this means that a doctor may only carry out a medical treatment or procedure which involves contact with a patient if there exists a valid consent by the patient (or another person authorized by law to consent on his behalf) or if the touching is permitted notwithstanding the absence of consent.” [In Re F. 1989(2) All ER 545].
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