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Case Comment: Samira Kohli v/s Prabha Manchanda And Ors

Equivalent Citation: Manu/Sc/0430/2008, 2008 Air Scw 855, Air 2008 Sc 138
Bench: B.N. Agrawal, P.P. Naolekar And R.V. Raveendran, Jj.
Date Of Judgement: 16.01.2008
Subject: Consumer And Medicine Law

From last decade in India there is a general perception among the middle class public that private hospitals and doctors intentionally prescribe the medicines, medical test and subject the patients to unwanted surgical procedures for financial gains. A practice of making huge bills unnecessarily after getting the knowledge of health insurance opted by the patient can be witnessed in the healthcare sector. Sometimes, medical department proceeds without even the consent of the patient admitted in their hospitals or nursing homes. Further, consent given for the medical test cannot, by inference, be taken as an implied consent for a surgery save in exceptional cases.[1]

It is a well settled law that a professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess.[2]

In the present case, Appellant, aged 44 years, visited the Respondent's clinic as she was suffering from prolonged menstrual bleeding. Ultrasound was conducted and thereafter laparoscopy test was adviced. Appellant signatures were take on:

  1. admission and discharge card;
  2. consent form for hospital admission and medical treatment; and
  3. consent form for surgery.

Thereafter, during the laparoscopy test Appellant got unconscious. Consequently, Respondent's assistant came out of the operation theatre and asked Appellant's mother to give consent for performing hysterectomy under general anesthesia. Appellant's reproductive part was removed.

While considering the Civil Appeal of Samira Kohli challenging the judgment, the constitutional bench found that a doctor has to seek and secure the real and valid consent of the patient before commencing a 'treatment'. While giving consent the patient should have the capacity and competence to consent, his consent should be voluntary and his consent should be on the basis of adequate information concerning the nature of the treatment procedure.

Consent given for a specific treatment procedure will not be valid for conducting some other treatment procedure. Surgery is beneficial to the patient or that it would save considerable time and expense to the patient, or would relieve the patient from pain and suffering in future, are not grounds of defence. The only exception to this rule is where the additional procedure though unauthorized, is necessary in order to save the life or preserve the health of the patient.

Background
Consent in medical context is different in UK and US. In UK, consent refers to the real consent that means patient should be capable of giving consent and should be free from coercion and possess adequate level of information for which he is giving consent. Whereas in US, it refers to the informed consent that means basic requirement of consent and doctor's duty to disclose necessary information. It is pertinent to mention that Section 33 of Indian Medical Council Act, 1956 states that in an operation which may result in sterility the consent of both husband and wife is needed.

Voluntary consent requires doctor to illustrate the patient with pros and cons of the treatment before conducting the same. It is the necessary duty to be performed by doctor as decision of patient is based upon this. In Canterbury v. Spence[3], it was held that the physician has long borne a duty, on pain of liability for unauthorized treatment, to make adequate disclosure to the patient.

Further, patient has a right to take decisions regarding the treatment which he wants his body to go through except in certain circumstances. In Murray v. McMurchy[4],it was held that when there is no immediate threat or danger to the patient's health or life and it would be reasonable to postpone the additional surgical procedure. Furthermore, In Marshell v. Curry[5], an unauthorized procedure may be justified if the patient's medical condition brooks no delay and warrants immediate action without waiting for the patient to regain consciousness and take a decision for himself.

Consent being of utmost importance in the medical sphere forms as a basis to determine the liability of a doctor. In Justice Cardozo in Schoendorff v. Society of New York Hospital[6], it was held that a surgeon who performs the operation without his patient's consent, commits an assault for which he is liable in damages.

This principle has been accepted by English court also. In Re: F. 1989(2) All ER 545 it was upheld 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.

It cannot be ignored or negated that skill of medical practitioners differs from doctor to doctor. The nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. In Achutrao Haribhau Khodwa v. State of Maharashtra[7], it was held that the courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. In cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would be maintainable.

Analysis
The Judgment of the case mainly discussed the importance of the consent of patient and the actions that can be initiated within the purview of the given consent. Analyzing the ratio in the civil appeal, the critics have divergent opinions on the following aspects. It is not agreeable that taking consent is always possible and is favourable for patient in all situation even when the patient in unconscious. For an instance, there may be situation when an injury might not be life threatening and patient is unconscious. Surgeon cannot be expected to say that I cannot operate in the absence of informed consent from a patient.

In such cases, doctor cannot wait for person to regain consciousness or if he is conscious then to inform him consequences of the treatment where there is actually very less time. Further, there may be a situation when a patient due to lack of medical knowledge is unable to understand the benefits of a treatment or an old age person's refusal to treatment may lead to emergency. These situations may lead a doctor into a dilemma whether to proceed or not. Over and above that, nowadays, there is a practice among the doctors and medical staff where consent form is treated as a standard form of contract that contain clauses for the benefit of the medical practitioner only. Patient is left with the option just to accept or reject in totality.

The court's decision cannot be negated entirely as it was appropriate to a major extent. Indian law presumes that doctor is in a dominant position therefore doctor has to take informed consent of the patient. Court further stated the parameters of the quantum of information that should be provided to the patient before he arrives at any decision. The reasoning of the court is consistent with the reasoning of UK and US courts and Indian precedents also.

Court justified in its reasoning as this decision of the court also confirms the principle of autonomy and welfare state which is enshrined under Art. 21 of the Indian Constitution. It is the duty of the State to safeguard the right to life of every person. Further, it is to be noted that there is no common law in India for consent and courts have to refer Indian Contract Act for determining a voluntary consent. Relationship between a medical professional and his patient is a contract by parties competent to contract giving rise to contractual obligations. For contract to be valid, a voluntary consent is required that is free from coercion, undue-influence, mistake, misrepresentation or fraud.

Conclusion
The judgment lacks in considering the various instances where treatment may be beneficial for a patient and patient would be ready to give consent but would be left without the treatment on account of absence of informed consent. Hon'ble court justified its reasoning as it was consistent with the fundamental right of a patient and the motive was to restrict the exploitation of illiterate and poor population of India.

Considering the knowledge gap between a medical professional and a patient, regulatory body of healthcare industry can play a major role in establishing standards. Concept of Proxy consent should be introduced in express terms in the form of clear regulations of principles in India as this can be the best alternative approach which could lead to more appropriate public policy in this context.

End-Notes:

  1. Nizam Institute of Medical Sciences vs. Prasanth S. Dhananka and Ors., MANU/SC/0803/2009
  2. Id.
  3. 1972 [464] Federal Reporter 2d. 772
  4. 1949 (2) DLR 442
  5. 1933 (3) DLR 260
  6. (1914) 211 NY 125
  7. MANU/SC/0600/1996

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