JANUARY 12, 2011

AN ORIENTATION PROGRAMME FOR THE

PROBATIONARY POLICE SUB-INSPECTORS
IN GURU TEG BAHADUR HOSPITAL, DELHI
 DR AMIT KUMAR GUPTA
MBBS, DTCD, PGHM, PGHFWM, M Phil, MBA

CASUALTY MEDICAL OFFICER

DEPARTMENT OF ACCIDENT & EMERGENCY
GURU TEG BAHADUR HOSPITAL, DELHI
 INTRODUCTION
• Many of us are frequently involved in dealing
with patients who may be either victims of
violence or accidents or having medical
situations with some legal implications

• We are desired to have adequate knowledge and

training in the legal aspects of medical practice

• Otherwise necessary and significant evidence

can be overlooked, lost, inadvertently discarded,
or its admissibility denied, ultimately resulting
in failure to establish and fix responsibility for
the case in accordance with the law of the land

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 SCOPE

ALL THOSE INVOLVED WITH THE

PATIENTS ARE SUPPOSED TO
FOLLOW THE LAWS OF THE STATE

• We all must know our responsibilities

towards patient, state & law
• Ignorance of law is not an excuse

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 CONSENT:
WHAT DOES IT MEAN?
• Literally, it means voluntary agreement,
compliance or permission

• Refers to the provision of approval or

assent, particularly and especially after
thoughtful consideration

• To be legally valid, it must be given after

understanding what it is given for, and of
risks involved
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CONSENT:
WHAT DOES IT MEAN? (Contd…)
• Prior provision of consent signifies a possible
defence (an excuse or justification) against civil
or criminal liability

• Defendants may argue that they should not be

held liable for a crime, since the actions in
question occurred with the plaintiff or victim's
prior consent & permission

• Very important in law as well as medical

practice

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 CONSENT:
IN MEDICAL PRACTICE
• Should always be taken while examining and
treating a patient

• Whenever a doctor agrees to treat a patient

there is an implied doctor-patient contract to
treat a patient with reasonable care & skill

• For medical examination, there may be an

implied consent. But for more than
examination and to be valid, the consent
must be competent, freely given, informed,
expressed and specific to the procedure
being performed
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CONSENT:
IN MEDICAL PRACTICE (Contd…)
REASONS FOR OBTAINING CONSENT

• To examine, treat or operate upon a patient

without consent is assault in law (even if it
is beneficial and done in good faith). The
patient may recover damages.

• If a doctor fails to give the required

information to patient before asking for his
consent to a particular operation or
treatment, he may be charged for
negligence
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 RESUSCITATE THE PATIENT
FIRST
• The cases may be brought conscious,
unconsciousness or dead

• In medical practice, while attending to a patient,

one must understand that our first priority is to
save the life of the patient

• Supreme Court ruling: “medicolegal aspects are

secondary to life of patient”

• While attending to an emergency, one should do

everything possible to resuscitate the patient and
ensure that he/she is out of danger

• ALL LEGAL FORMALITIES STAND SUSPENDED

TILL THIS IS ACHIEVED 9
 KINDS OF CONSENT

1. EXPRESS CONSENT
• Verbal
• Written

2. IMPLIED CONSENT

3. INFORMED CONSENT
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KINDS OF CONSENT
(Contd…)

EXPRESS CONSENT
• Explicitly negotiated
• Specifically stated by the patient
• Types:
– Verbal
– Written

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KINDS OF CONSENT
(Contd…)
IMPLIED CONSENT
• Given within the usual subtleties of human
communication (implied words)

• Whenever a doctor agrees to treat a patient

there is an implied doctor-patient contract
to treat a patient with reasonable care &
skill. Examples:
– A patient attends the hospital
– A patient calls the doctor to his house
– A patient holds out his arm for injection

• Usually given in routine practice by the

patient
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KINDS OF CONSENT
(Contd…)

IMPLIED CONSENT (Contd…)

An adult patient of sound mind who …
1. Knows that he can either agree or refuse to
submit to treatment or an operation,
2. Knows or has been fully or fairly informed
by his doctor as to what is to be done, and
3. Then cooperates with the doctor
… has impliedly consented in words.

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KINDS OF CONSENT
(Contd…)
INFORMED CONSENT

• A phrase often used in law to

indicate that the consent a person
gives meets certain minimum
standards

• The term was first used by Paul G

Gebhard in a 1957 medical
malpractice case
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 KINDS OF CONSENT
INFORMED CONSENT (Contd…)
IT IMPLIES AN UNDERSTANDING BY THE
PATIENT OF:
1. the nature of his condition,
2. the nature of the proposed treatment or
procedure,
3. the alternative procedure,
4. the risks involved in both the proposed and
alternative procedures, and
5. the relative chances of success or failure of
both procedures,
SO THAT HE MAY ACCEPT OR REJECT
THE PROCEDURE.
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 KINDS OF CONSENT
INFORMED CONSENT (Contd…)
• The individual concerned must have adequate
reasoning faculties and be in possession of all
relevant facts at the time consent is given

• Conditions/factors of impairments to reasoning

and judgment which may make it impossible for
someone to give informed consent include:
• Basic intellectual or emotional immaturity
• High levels of stress (such as PTSD)
• Severe mental retardation
• Severe mental illness
• Intoxication
• Severe sleep deprivation
• Alzheimer's disease
• Coma
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 KINDS OF CONSENT

INFORMED CONSENT (Contd…)

• All disclosures must be in language
the patient can understand

• It will reduce litigation when the results are

unsatisfactory or unexpected

• The patient must show that the doctor did

not adhere to accepted medical standards
to prove liability for lack of informed
consent
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 CONSENT:
FEW MORE TERMS
• The Law of “FULL DISCLOSURE”
• It could result in frightening a patient
who is already fearful or who is an
emotionally disturbed individual, and
who may refuse the treatment when
there is really little risk

• The facts which a doctor must disclose

depends on the normal practice in his
community, and on the circumstances
of the case (including the patient’s
personality, physical & mental state)
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 CONSENT:
FEW MORE TERMS
• “THERAPEUTIC PRIVILEGE”
• It is an exception to the rule of “full
disclosure”

• In this, the doctor may use discretion as

to the facts which he discloses (which
should be clearly noted in the patient’s
records)

• Examples:
– Emotionally disturbed patient
– Unavoidable fatal lesion/ malignancy
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 CONSENT:
FEW MORE TERMS
• PATERNALISM PRIVILEGE
• An abuse of medical knowledge so as to
distort the doctor-patient relationship in
such a way that the patient is deprived
of his autonomy, or of his ability to
make a rational choice

• Examples:
– Distorted way of disclosure
– Partial and guided disclosure
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 CONSENT:
FEW MORE TERMS
• INFORMED REFUSAL

• The doctor’s duty to disclose adequately

and appropriately to the patient, the
risks or possible consequences of
refusal to undergo a test or treatment

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 RULES OF CONSENT
• CONSENT IS NECESSARY FOR EVERY
MEDICAL EXAMINATION

• Ordinarily, formal consent for medical

examination is not required (because
of its “implied” nature)

• Oral consent should be obtained in the

presence of a disinterested third party
(such as the nurse)
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RULES OF CONSENT
(Contd…)
• WRITTEN CONSENT IS NOT NECESSARY IN
EVERY CASE

• However, it should be taken for proving the

same in the court of law, if necessity arises

• It should refer to one specific procedure (and

not blanket permission on admission to the
hospital) and should be in proper form &
suitably drafted for the circumstances

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RULES OF CONSENT
(Contd…)
• Any procedure beyond routine medical
examination (such as operation, blood
transfusion, collection of samples) requires
express consent

• It must be taken before the act

• Explicit agreement by means of signature is

the norm

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RULES OF CONSENT
(Contd…)
• The consent should be free, voluntary, clear,
intelligent, informed, direct and personal

• There should be no undue influence, fraud,

misrepresentation of facts, compulsion, or
threat of physical injury, death or other
consequence

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RULES OF CONSENT
IN A MEDICOLEGAL CASE (M.L.C.)
The informed consent includes
information that:
1. The examination to be conducted would
be a medicolegal one and would culminate
in the preparation of a medicolegal injury
report,

2. All relevant investigations needed for the

said purpose would be done, and

3. The findings of the report may go against

the patient if they do not tally with the
history given (very important)
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RULES OF CONSENT
IN AN M.L.C. (Contd…)
• The victim cannot be examined without
his/her consent

• The Court also cannot force a person to get

medically examined against his/her will

• In cases of rape, the victim should not be

examined without written consent

• In MLCs of pregnancy, delivery and abortion,

the woman should not be examined without
her consent
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RULES OF CONSENT
IN AN M.L.C. (Contd…)
“However, a person arrested as accused in a
criminal offence may be medically examined
without his/her consent on the request of a
police officer (of a rank of Sub-Inspector or
higher) or on the orders of the court, if there
are sufficient grounds to believe that such
examination will provide evidence of the
commission of the offence”

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RULES OF CONSENT
IN CASES OF DRUNKENNESS
• The person should not be examined and blood,
urine or breath should not be collected without his
written consent

• But if he becomes unconscious or incapable of

giving consent, examination and treatment can be
carried out

• The consent of guardian or relative (if available)

should be taken

• The person can be examined without consent, if

requested by an S.I. or higher police officer 29
RULES OF CONSENT
(Contd…)
• A prisoner can be treated forcibly and without
consent in the interest of the society

• Consent given for committing a crime or an

illegal act (such as criminal abortion) is
invalid

• A person above 18 years of age can give valid

consent to suffer any harm, which may result
from an act not intended or not known to
cause death or grievous hurt (Sec.87, IPC)
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RULES OF CONSENT
(Contd…)
• A person can give valid consent to suffer any
harm which may result from an act not
intended or not known to cause death, done
in good faith and for its benefit (Sec.88, IPC)

• A child under 12 years of age and an insane

person cannot give valid consent to suffer
any harm which may result from an act done
in good faith and for its benefit. The consent
of the parent or guardian should be taken
(Sec.89, IPC)
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RULES OF CONSENT
(Contd…)
• The age of consent for sexual intercourse is
16 years for both males and females, if the
boy and the girl are unmarried

• However, sexual intercourse by a man with

his own wife (even against her will) is not
rape, if she is above 15 years of age (Sec.375,
IPC)

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RULES OF CONSENT
(Contd…)
• A consent given by a person under fear of
injury, or due to misunderstanding of a fact is
not valid

• The consent given by an insane or

intoxicated person (who is unable to
understand the nature and consequences of
that to which he gives his consent) is invalid
(Sec.90, IPC)

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RULES OF CONSENT
LOCO PARENTIS
• In an emergency involving a child,
when his/her parents or guardians are
not available, the consent is taken from
the person-in-charge of the child

• Examples: the school teacher, the

warden etc

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RULES OF CONSENT
(Contd…)
• Any harm caused to a person in good faith,
even without that person’s consent is not an
offence, if the circumstances are such that it
is impossible for that person to signify
consent, and has no guardian or other person
in lawful charge of him from whom it is
possible to obtain consent in time for the
thing to be done in benefit (Sec.92, IPC)

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RULES OF CONSENT
(Contd…)
• For contraceptive sterilisation, consent of
both the husband and the wife should be
obtained

• The consent of one spouse is not necessary

for an operation or treatment of the other
(especially when it is required to safeguard
the health of the spouse)

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RULES OF CONSENT
(Contd…)
• It is unlawful to detain an adult patient in
hospital against his/her will

• If a patients demands discharge against

medical advice, this should be recorded and
patient’s signature obtained

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RULES OF CONSENT
(Contd…)
• The nature of illness of a patient should not
be disclosed to any third party (except the
court of law) without consent of the patient

• When a procedure is made compulsory by

law (such as vaccination), the law provides
the consent

• Consent is not a defence in cases of

professional negligence

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RULES OF CONSENT
(Contd…)
• Besides the medicolegal autopsy, a pathological
autopsy should not be conducted without the
consent of the guardian or legal heirs of the
deceased

• Specific authorisation should be obtained for

retention of organs and parts of the body

• In medicolegal autopsies, consent is not required

(Statutory authorisation) and the doctor can
remove from the cadaver anything that is
essential for the purpose of examination
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RULES OF CONSENT
(Contd…)
• Besides the medicolegal autopsy, a pathological
autopsy should not be conducted without the
consent of the guardian or legal heirs of the
deceased

• Specific authorisation should be obtained for

retention of organs and parts of the body

• In medicolegal autopsies, consent is not required

(Statutory authorisation) and the doctor can
remove from the cadaver anything that is
essential for the purpose of examination
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RULES OF CONSENT
(Contd…)
• If any person has donated his eyes to be
used for therapeutic purpose after his
death, the eyes can be removed only after
the consent of the guardian or legal heirs

• A living adult person can give consent for

donating one of his kidneys to be grafted
into another person.

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RULES OF CONSENT
(Contd…)
• If any person has donated his body to be
used for therapeutic or research purposes
after his death, it is not binding on his
spouse or next of kin

• For organ transplantation, the organs of

the dead person should not be removed
without the consent of the guardian or
legal heirs

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TAKE HOME MESSAGE
• Consent is an important
concept and a crucial tool in
the medical practice and
jurisprudence, and all those
involved with the medicolegal
aspects must be well-versed
with it for appropriate and
vigilant practice
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Thank You

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