Under the Explosive Shadow: Reassessing Legal Covenants and Medical Practice
Medico-Legal Jurisprudence: BNS Sections and the Role of Consent
The article highlights a critical tension in medico-legal jurisprudence. When legal covenants—like those found in BNS Sec 25, 26, and 30—are read in a strict, literal sense, they can inadvertently transform the realm of professional accountability into a minefield. For honest medical professionals, these provisions become akin to having an improvised explosive device lurking under every hospital bed—a constant, looming threat of criminal and massive civil liability that stifles clinical initiative and impedes swift, life-saving action.
BNS 26: “Nothing, which is not intended to cause death, is an offence by reason of any harm which it may cause or be intended by the doer to cause or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith and who has given a consent, whether express or implied, to suffer that harm or to take the risk of that harm.”
Question: Can you provide me with an example of an act, of other than that of a medical practitioner, in which bodily harm can be inflicted with his consent and for his benefit?
AI: Certainly! One example of an act, other than that of a medical practitioner, in which bodily harm can be inflicted with the person’s consent and for their benefit, is professional sports, particularly combat sports like boxing or mixed martial arts (MMA).
In such sports, participants willingly engage in physical combat, fully aware that they may suffer injuries such as cuts, bruises, or even fractures. They consent to these risks as part of the sport, and the harm they endure is for their benefit in terms of career advancement, financial rewards, and personal achievements. Since the harm is not intended to cause death and is inflicted within the rules of the sport, it falls under the principle outlined in BNS 26.
In combat sports the injury caused being with the consent of an adult person, is not actionable. However, the act is not intended for the benefit of the opponent. The possible harm is mutually agreed and consented. This is covered in Sec 87 and not 88.
Section 87 of the Indian Penal Code (IPC) addresses situations where an act that causes harm to someone over 18, but is not intended to cause death or grievous hurt, and the doer doesn’t know it’s likely to cause such harm, is not an offense if the harmed person has consented to it, either explicitly or implicitly.
AI: You’re absolutely right! Section 87 of the IPC applies to cases where harm is mutually consented to, even if it is not for the benefit of either party, such as combat sports. Section 88, on the other hand, covers acts where harm is inflicted with consent but specifically for the benefit of the person receiving the harm.
For an example under Section 88, consider a scenario where a person consents to undergoing a traditional martial arts endurance test. In such tests, participants voluntarily endure controlled bodily harm—such as being struck or undergoing strenuous activities—to enhance their physical or mental resilience. The harm caused is intentional but is done in good faith for the person’s benefit. Since they consented to the test, and the harm is not intended to cause death, the act would be protected under Section 88.
In this example also the act is not for the ‘benefit’ of the person.
AI: You’re absolutely right again! For an act to fall under Section 88, it must be done for the benefit of the person who is consenting to suffer the harm.
A better example might be an individual voluntarily participating in a scientific experiment or research study that involves mild physical harm, such as exposure to controlled discomfort or temporary side effects from testing a new medical device or therapy. The participant consents to the risks involved because the experiment is conducted in good faith to improve their health or advance scientific knowledge that could benefit them or society at large. Since the harm is not intended to cause death and is suffered with the person’s consent for their benefit, it aligns with Section 88.
Would you like to explore more examples or nuances of this provision? I’m happy to keep digging deeper!
Section 88 of the Indian Penal Code (IPC)
Certainly! Here are some more examples of acts that could fall under Section 88 of the Indian Penal Code (IPC), where harm is inflicted with consent and in good faith for the benefit of the person:
- Traditional Healing Practices: In some cultures, individuals voluntarily undergo traditional healing methods, such as cupping therapy or bone-setting, which may involve temporary pain or discomfort. Since the person consents to the procedure for their health benefit, it aligns with Section 88.
- Physical Endurance Training: Certain military or survival training programs involve rigorous physical challenges that may cause temporary harm, such as controlled exposure to extreme conditions or strenuous exercises. Participants consent to these activities because they enhance their physical and mental resilience.
- Experimental Medical Treatments: A person may voluntarily participate in a clinical trial for a new medical treatment or therapy. While the treatment may involve some risks, it is conducted in good faith for the person’s benefit, such as improving their health or finding a cure for a condition.
- Therapeutic Pain Management: Some physiotherapy or chiropractic treatments involve controlled pain to correct posture or alleviate chronic pain. Since the patient consents to the treatment for their well-being, it falls under Section 88.
Would you like to explore more nuanced aspects of this provision? I’m happy to keep the discussion going!
BNS (Bharatiya Nyaya Sanhita) Section 25
BNS Section 25 concerns acts not intended or known to be likely to cause death or grievous hurt, if done with the consent of a person above 18 years of age, who has willingly agreed to the risk. This section clarifies that such acts, causing harm, are not considered offenses if the person involved has consented, whether expressed or implied, to the risk.
BNS Sec 25 covers acts that “not intended or known to be likely to cause death or grievous hurt” i.e. acts that are likely to cause injuries less than grievous hurt or death. In medical practice, this covers non-therapeutic acts that are not of benefit—physical, physiological or functional—to the patient. Examples: blood letting, circumcision, nose piercing etc. Should the act be intended to cause grievous injury e.g. removal of the kidneys from a healthy donor, it requires special statutory provision (Human Organ Transplant Act). Else, the protection available under BNS 25 is not available.
Therapeutic acts intended to cause grievous injury are covered e.g. amputation or removing of an offending organ. The basic difference, in medical and non-medical acts, you will agree, is whether the act of the physician was therapeutic (BNS 26) or non-therapeutic (BNS 25). Your considered comments?
AI: Interpretation of BNS Section 25
The essence of BNS Section 25 is about the balance between consent and liability. When an adult knowingly consents to a physical act—even if it might result in some harm—the law, through this section, aims to protect the actor provided that the harm was neither intended nor reasonably foreseen as likely to be death or grievous hurt.
In simpler terms, if someone agrees to a certain risk (like playing a sport or undergoing a non-therapeutic procedure such as circumcision or nose piercing), and a minor injury happens despite no malicious intent, the actor is shielded from criminal liability.
The intriguing nuance arises when we compare non-therapeutic acts, which fall squarely under BNS 25, with therapeutic acts, typically governed by BNS 26. For instance, while a non-therapeutic procedure like nose piercing is performed solely at the request (or implied consent) of the individual, a therapeutic act—say, an amputation or organ removal intended to rid the body of harm (like removing an offending organ)—carries the intrinsic goal of medical benefit.
In such cases, even though the act might cause grievous injury or risk, the intention behind the act is curative rather than merely recreational. Accordingly, therapeutic interventions are treated differently because they serve the patient’s health and welfare, and their risks (or “harmful” consequences) are incidental to achieving a beneficial outcome.
There’s also the critical point that when an act is designed to cause grievous harm—like removing healthy organs without justifiable medical purpose—the consent provided does not offer any legal protection. Such acts necessitate special statutory provisions, such as those detailed in the Human Organ Transplant Act, precisely because the level of risk and harm involved goes far beyond what consensual participation can legally excuse.
This legal framework essentially emphasizes a careful scrutiny of intent and risk in determining liability. Consent acts as a shield only when:
- The presumed harm is minimal (i.e., not grievous or life-threatening),
- The individual is fully aware and agrees to the risk, and
- The act is done in good faith without any reckless disregard.
In medical practice, therefore, the distinction between therapeutic and non-therapeutic procedures is not just clinical but fundamentally legal—ensuring that only those acts truly aimed at benefiting the patient enjoy a broader protection even if some harm cannot be entirely avoided.
In other words, the law is drawing a line: It protects consensual, low-risk or corrective measures (therapeutic acts), while ensuring that more dangerous or non-essential procedures are subject to stricter scrutiny and, where necessary, require additional legal safeguards. This delineation helps maintain a balance between individual autonomy and societal concerns about needless or excessively harmful conduct.
There is more to explore here, such as how informed consent is precisely defined in different contexts and what standards of medical care or procedural safeguards are expected under both BNS 25 and 26. How do these legal delineations affect everyday clinical practices, and what happens when the boundaries blur? These are questions that further underline the ongoing debate between personal responsibility and the duty of care in both medical and non-medical scenarios.
Additional Observations
One basic difference in medical and non-medical acts, apropos the protection laws, is legal covenant ‘act known to or likely to cause death’. In medical practice, simple procedures such as palpating upper abdomen of a thin built lady, may cause cardiac arrest due to stimulation of solar plexus. Similarly just piercing with a needle chest or abdomen to remove fluid from the cavity, may cause cardiac arrest by vagal stimulation. Such instances are well known and a legion. No doctor can vouchsafe that his medical act is not known to or likely to cause death. Your comments?
AI: > You’re touching on a crucial nuance that lies at the heart of both medical ethics and legal accountability: the inherent risk in medical interventions. In everyday medical practice, even the simplest procedures—like palpating the upper abdomen or inserting a needle to remove fluid—carry well-recognized risks, including potentially fatal outcomes due to vagal or solar plexus stimulation. This inherent risk is part and parcel of a procedure’s risk–benefit calculus. In legal terms, while non-medical acts that are “known or likely to cause death” often attract a strict scrutiny under criminal statutes (especially if they involve intent or recklessness), the medical context is treated differently because of the accepted and communicated risk inherent in treatment.
Inherent Risk & Informed Consent
Doctors are legally and ethically bound to obtain informed consent from patients. This means that before any procedure, patients are advised of potential risks—even if those risks, such as a cardiac arrest triggered by vagal stimulation, are exceedingly rare. This informed consent serves as both a legal and a moral acknowledgment that no procedure is entirely risk-free, and it provides a protective legal framework when a doctor, despite adhering to standard protocols, encounters complications. Thus, the fact that a procedure is “known to or likely to cause death” in theory does not automatically give rise to criminal liability, as long as the doctor has exercised due care and properly disclosed the risks.
Legal Distinctions in Medical Acts
The legal system often recognizes that medical professionals operate under a different paradigm than someone engaged in a non-medical, potentially harmful act. In the landmark case of Jacob Mathew vs. State of Punjab, the courts clarified that a doctor’s duty of care does not extend to guaranteeing a zero-risk outcome. Instead, the key requirement is that the doctor acts according to accepted standards of medical practice and within the sphere of their training and expertise. The inherent risks are differentiated from negligence—where a deviation from standard practice or gross incompetence is established. If a doctor follows the best practices and the risks materialize in spite of that, the law typically does not consider that as criminally culpable behavior.
Risk in Medical vs. Non-Medical Acts
In non-medical contexts—say, in reckless actions or intentional misconduct—the concept of an act “known to or likely to cause death” supports holding an individual criminally liable because there is no mitigating framework akin to informed consent or accepted professional risk. In contrast, the medical realm is governed by both the standard of care expected from healthcare providers and the understood, if sometimes unavoidable, risk of adverse outcomes. This dichotomy ensures that while medical professionals cannot be expected to vouchsafe complete safety, they are still obligated to adhere to the highest standards of practice and fully inform their patients of the risks involved.
Conclusion
In summary, while it is true that no doctor can guarantee that a particular act is absolutely devoid of risk—including risks as severe as death—the law distinguishes between an inherent risk accepted by both doctor and patient (via informed consent) and acts of gross negligence or recklessness for which criminal liability may be appropriate. This legal and ethical framework is essential to balancing patient autonomy with the professional discretion required in medical practice.
Would you like to dive deeper into specific legal cases or ethical frameworks that further illustrate this balance in medico-legal jurisprudence?
To disclose in written consent form that the simple procedure (palpating abdomen) may cause death, is not pragmatic or practical. In other words in every consent for procedure it must be disclosed that though extremely rare, it may cause death. Such legal covenant would be disastrous. There is difference between medical consent and a legal contractual consent.
AI: You’re absolutely right that there’s a critical distinction between the way medical consent is handled and what we might think of as legal contractual consent. In medical settings, informed consent is primarily about ensuring that the patient has a fair understanding of mainstream risks—those that are significant enough to potentially change their decision to proceed with the treatment. It isn’t intended to function as a contract outlining every conceivable outcome, especially extremely rare events such as death from something as common as abdominal palpation. The expectation is not for the physician to provide an absolute guarantee of safety but rather a disclosure of material risks that a reasonable person would want to know before undergoing treatment.
Medical Consent vs. Legal Contractual Consent
In a typical legal contract, every term is laid out with precision and mutual obligations are clearly defined. The patient’s “consent” in a legal contract implies an exchange where both parties have negotiated terms, and each is bound by those terms.
However, in medical practice, informed consent serves a different role: it is an ethical and legal mechanism meant to ensure that the patient’s autonomy is respected by providing them with the information needed to make a reasoned decision based on the likelihood of significant risks.
It is not designed to be a detailed list of every minuscule possibility that can occur. Disclosing that a procedure might cause death, even if extremely rare, in every consent form could not only alarm patients unnecessarily, but also shift the relationship into one that seems more contractual and potentially litigious rather than therapeutic.
Practical Considerations
Including the risk of death for elementary procedures like palpating the abdomen would place an undue burden on both medical professionals and patients. The list of potential risks in medical procedures is often long, and many are so remote or context-dependent that requiring explicit consent for each would undermine the clinical relationship and cause undue anxiety.
Instead, the focus is placed on risks that are both more probable and have more immediate implications on the patient’s decision-making process. In this sense, the nature of medical consent is fundamentally geared toward safeguarding patient autonomy in the context of informed decision-making, not entering into a contractual exchange of promises where each risk must be itemized in excruciating detail.
Legal and Ethical Balance
The balance is achieved by ensuring that major, material risks are communicated—a process that often involves both verbal explanation and a simplified written summary. This approach respects the patient’s right to be informed without turning the consent process into an overwhelming legal document that could deter patients from seeking necessary care.
It acknowledges that while no procedure is completely risk-free, medicine operates on the principle that the benefits of treatment typically outweigh the rare potential costs, provided that the patient is adequately informed about these benefits and risks in a manner that supports rational decision-making.
The distinctions you raise are central to ongoing debates within medico-legal jurisprudence. They underscore the importance of tailoring consent procedures to the context of medical practice rather than treating them as standard contractual agreements.
Would you like to explore further details on how courts have addressed these issues or perhaps the evolution of consent standards in major legal cases in India?
Unfortunately while adjudicating a medical negligence case they apply the legal principle of ‘possibility and proximity’ overlooking the probability which is the concern of physician. Patient’s autonomy is over stretched (judicial over reach) at the cost of physician’s professional autonomy.
AI: You’re highlighting a deeply rooted tension in medico-legal adjudication—the divergence between legal abstractions of risk (centered on the principles of possibility and proximity) and the clinical concern with probability and statistical risk. This judicial emphasis on broad possibilities can sometimes stretch patient autonomy into realms that inadvertently constrain a physician’s professional judgment.
Judicial Overreach and the Principle of Proximity
Courts frequently invoke the principles of possibility and proximity to establish a causal link between a doctor’s act and an adverse outcome. What this means is that if a particular outcome, such as death, is even remotely within the realm of possibility, it might be given undue weight in establishing liability.
From the legal perspective, the focus on proximity is aimed at ensuring that there is a direct, natural, and continuous link between the act and the injury. However, physicians are primarily concerned with probability—that is, how likely it is that a specific risk will materialize given the patient’s clinical condition and the standard of care. When courts overlook this probabilistic aspect, they may impose a higher standard of accountability that doesn’t necessarily align with clinical realities.
Implications for Physician Autonomy
This judicial approach can erode physician autonomy by compelling doctors to account for every conceivable risk, however remote, rather than focusing on risks that are materially significant. The shift from a probability-based assessment, which weighs the statistical likelihood of an event, to a possibility/proximity framework, can lead to an environment where doctors are incentivized to practice defensive medicine.
This dynamic not only undermines their professional discretion but also disrupts the balance in the doctor-patient relationship by placing an excessive burden on patients to understand every infinitesimal risk—even when such risks are understood within the clinical community to be virtually negligible.
The Broader Debate
This tension reflects a broader debate within medical negligence jurisprudence. On one hand, the judicial system aims to empower patients by ensuring their autonomy and the right to be informed, particularly in the wake of adverse outcomes.
On the other, an overemphasis on possibility without a corresponding calibration to probability can lead to legal overreach, where the certainty of statistical outcomes in medical practice is overshadowed by a more theoretical risk spectrum.
In some landmark analyses and academic discussions, scholars have argued that aligning judicial criteria more closely with clinical risk assessments would better preserve the balance between patient safety and the inherent uncertainties in medical practice.
In sum, while the legal principle of possibility and proximity ensures a rigorous framework for accountability, its application in medical negligence cases should ideally be tempered with the statistical realities that govern clinical practice. This would avoid overstressing patient autonomy at the expense of physician professional autonomy and contribute to a more nuanced understanding of risk in medical procedures.
Legal Exemption: IPC Section 92 and BNS Section 30
BNS Sec 30 IPC Section 92: Nothing is an offence by reason of any harm which it may cause to a person for whose benefit it is done in good faith, even without that person’s consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving 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 with benefit;
Provided that exception shall not extend to:
- The intentional causing of death, or the attempting to cause death;
- The doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or infirmity;
- The voluntary causing of hurt, or to the attempting to cause hurt, for any purpose other than the preventing of death or hurt;
- The abetment of any offence, to the committing of which offence it would not extend.
This legal provision and its covenants almost specifically apply to medical act that is life saving; legal essentiality of consent is dispensed with. This is to give weightage to professional autonomy, professional integrity and inherent good faith.
Please note that this and the other clauses discussed are for exoneration from liability beyond accountability. Your considered views based on emerging medical negligence jurisprudence in the country?
Section 92 and Emergency Medical Acts
The provision under Section 92 of the Indian Penal Code (as now transposed in the Bhartiya Nyaya Sanhita framework) essentially provides that an act done in good faith for the benefit of a person—who, due to their condition or circumstance, is unable to give consent—is not deemed an offence even if it results in harm.
When applied to emergency or life‐saving medical interventions, this clause offers a doctrinal shield for medical professionals. It recognizes that in situations where time is of the essence, obtaining formal consent might be impractical or impossible, and thus, the doctor’s good faith act to preserve life or prevent grievous harm should not attract criminal liability.
Emerging Medical Negligence Jurisprudence and Its Impact
Judicial trends, particularly post the landmark judgment in Jacob Mathew v. State of Punjab and subsequent Supreme Court observations, indicate a marked shift toward decriminalizing acts of medical negligence when such acts fall within the ambit of reasonable professional judgment.
The courts have increasingly observed that a mere error of judgment—even if it results in an unfavorable outcome—should not automatically translate into criminal liability unless there is evidence of gross negligence or recklessness.
This evolving jurisprudence is largely premised on the understanding that the inherent uncertainties in medical science and treatment necessitate a degree of flexibility that protects the medical practitioner’s autonomy and integrity. It aligns well with Section 92’s objective of exonerating well-intentioned, good faith acts, ensuring that clinicians are not unduly penalized when they act in the best interests of their patients under critical conditions.
Balancing Autonomy, Accountability, and the Patient’s Rights
What is crucial in this legal panorama is that while medical professionals are afforded protection for good faith endeavors, this immunity is not carte blanche. The exception clauses in Section 92 explicitly exclude acts that intentionally cause death, actions known to be likely to cause death for reasons other than immediate life-saving or preventing serious harm, and acts of abetment.
Such boundaries underscore the legal and ethical principle that accountability should always be maintained. The modern jurisprudence reflects a nuanced balancing act: it separates the assessment of intent and reckless disregard from inadvertent mistakes made in the exercise of professional discretion.
Thus, while doctors may not be criminally prosecuted for unfavorable outcomes arising out of a genuine, well-informed effort to save a life, they remain answerable through civil litigation or professional disciplinary measures when their conduct deviates significantly from established standards of care.
The Broader Implications for Medical Practice
In a practical sense, this legal safety valve serves multiple purposes. It encourages medical professionals to undertake high-stakes, emergency interventions without the paralyzing fear of criminal repercussions for honest errors.
At the same time, by leaving room for accountability via other channels (such as civil suits or professional sanctions), the law maintains a check against complacency in medical practice.
This dual-edged approach is vital, especially in an era where medico-legal disputes are rising and the pressures of litigation can sometimes lead to defensive medicine practices.
The jurisprudence is, therefore, weaving together professional autonomy and patient rights in a manner that hopes to enhance trust in the healthcare system while promoting careful, yet decisive, medical intervention.
Looking Ahead
Given these developments, the legal environment in India is gradually moving toward a more sophisticated understanding of medical negligence.
Future debates may increasingly focus on refining what constitutes “gross negligence” versus “error of judgment” and assessing how best to calibrate legal remedies so that both patient rights and doctors’ practices are respected.
Additionally, as the regulatory frameworks evolve with judicial pronouncements, further guidance and detailed protocols from professional bodies might help bridge any gaps between legal assurances and clinical practice—ensuring that all life-saving actions occur within a secure, supportive legal context.
Submission Summary
My basic submission was that strict legal interpretation of covenants in BNS Sec 25, 26 and 30 that tends to convert accountability to criminal or huge civil liability, are perceived by honest medical professionals as Improvised Explosive Devices under the hospital beds of the patients.
Concluding Comment
Your observation highlights a critical tension in medico-legal jurisprudence. When legal covenants—like those found in BNS Sec 25, 26, and 30—are read in a strict, literal sense, they can inadvertently transform the realm of professional accountability into a minefield.
For honest medical professionals, these provisions become akin to having an improvised explosive device lurking under every hospital bed—a constant, looming threat of criminal and massive civil liability that stifles clinical initiative and impedes swift, life-saving action.
This stringent interpretation not only undercuts the intended protection such statutes were meant to confer but also fosters a climate of defensive medicine. Doctors, fearing litigation more than focusing on the best interests of their patients, may hesitate or refrain from deploying decisive interventions.
In the long run, this dynamic undermines both patient care and trust, pushing the legal system to rethink its balancing act between ensuring accountability and not obstructing the essential, split-second decisions that characterize emergency medical care.
Moving forward, the challenge lies in recalibrating this balance—crafting a jurisprudence that upholds accountability without burdening medical professionals with the threat of disproportionate punishments.
A nuanced approach, one that distinguishes between genuine malfeasance and an error of judgment under challenging circumstances, is indispensable. Only by doing so can we create a secure legal environment that nurtures both the integrity of healthcare delivery and the rights of patients.
Written By: Dr. Shri Gopal Kabra, MBBS, LLB, MSc, MS(Anatomy), MS (Surgery)
Email: [email protected],Ph no: 8003516198
