Treatment Without Informed Consent May Also Amount To Negligence

negligence

The existence of the doctor-patient relationship is a prerequisite to fasten liability on the doctor. The relationship is fiduciary in nature, and the obligation on the medical practitioner is greater when the patient ordinarily has an imprecise understanding of the ailment, diagnostic process, treatment, and all its attendant consequences. Duty to act in the best interest, however, cannot be stretched to a level where actions are taken against the will of the patient or without the consent of the patient if the patient is capable of understanding. Every patient has a right of self-determination and to reject the treatment even if such rejection were to be considered foolish by most rational standards, and the medical professional cannot impose his will. Medical practitioners can, however, act on the substituted consent, if the primary consent is not available for a variety of reasons such as the patient being a minor, mentally unsound, and unconscious.

Samira Kohli v. Dr. Prabha Manchanda, a 44-year-old patient complaining of menstrual bleeding for 9 days, underwent an ultrasound test and was advised laparoscopy test under general anesthesia for making an affirmative diagnosis. The patient, while under general anesthesia, was subjected to a laparoscopic examination and simultaneously with the consent of the mother waiting outside the operation theater, abdominal hysterectomy (removal of the uterus) and bilateral salpingo-oophorectomy (removal of ovaries and fallopian tubes) were conducted. It was held by the Supreme Court that consent taken for diagnostic procedure/surgery is not valid for performing therapeutic surgery either conservative or radical except in life-threatening or emergent situations. It was also held that where the consent by the patient is for a particular operative surgery; it cannot be treated as consent for an unauthorized additional procedure involving removal of an organ on the ground that such removal is beneficial to the patient or is likely to prevent some danger developing in future, if there is no imminent danger to the life or health of the patient. Supreme Court in the process of arriving at its judicial opinion examined the concept of “real consent” in the UK and “informed consent” in the US and finding the US standards to be too high and unsuitable for Indian conditions expressly rejected the same. It was further held that a doctor must secure the consent of the patient, and such consent should be “real and valid,” “adequate information” is to be furnished to the patient to enable him or her to make a balanced judgment, remote possibilities need not be disclosed, and the nature and extent of information to be furnished will be such as is considered “normal and proper by a body of medical men skilled and experienced in the particular field.” Subsequently, Supreme Court in Malay Kumar Ganguly v. Sukumar Mukherjee without reference to its previous judicial opinion in Samira Kohli emphasized on the need of doctors to engage with the patients during treatment, especially when the line of treatment is contested, has serious side effects and alternative treatments exist, and observed that “[i] n the times to come, litigation may be based on the theory of lack of informed consent.”


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