Law On Consent And Confidentiality In India
Concept Of Consent And Liability
in classical liberal theory refers to the expression of autonomy and
free will by competent and rational individuals who are free from coercion and
pressure. It is provided under section 87-91 of the IPC. It means to agree to
perform a thing. It means that the victim gave consent for the harm to occur
(section 87) or that the act was done for the benefit of victim (section 88) or
a guardian consented to take the risk for the benefit of a child (section 89).
It occurs in non- fatal offenses where a criminal act may have been committed.
The defense of consent is available where the victim consents to the activity
occurring. Consent comprises consciousness, deliberation and knowledge of the
Consent is not valid where:
- It is given under fear or injury or misconception of fact.
- The person involved is aware or has reason to believe that the consent
is given under fear, injury or misconception.
- It is given by an intoxicated person.
- It is given by a person of unsound mind.
- It is given by a person under 12 year without maturity of understanding
According To Civil Laws:
If a person is giving his consent for anything he
will be bound from his own words. A verbal statement of consent is as powerful
as written document. Consent is an assurance of part performance by an
individual. Whether it is an agreement of commercial purpose property
transaction, valid forms of general & specific contract or personal affairs.
Consent creates an obligation on the consent giver. to fulfill his commitment
regarding consent every contract has a reciprocal liability in which both
parties have to perform as per the contract & all the transaction related to
moveable & immoveable property are also governed by the contract act.
consent is capturing the modus operand of each party of contract. The Indian
partnership act says that creation of partnership is based on consent of
parties, where termination of partnership is allowed by giving consent of
dissolution the mutual consent create a partnership & terminate.
The sale of
goods act, hire & purchase act. Contract for agency, bailment, indemnity &
surety & pledge are related to moveable property where the Transfer of property
Act 1882 is covering all the transactions of immoveable property, in which sale,
exchange, lease, mortgage, gift & negotiable instruments are included the right
of license is arising merely by a consent which is covered by Indian easement
Role Of Consent In Liabilities:
Generally consent is measured as a content of
valid contract but it has a very vast criterion to decide liabilities in civil
laws as well as criminal's laws. As per Personal laws marriage divorce,
maintenance, adoption, guardianship, succession, will, partition, religious,
endowment and conversion.
All the aspects can be justified and legally executed
only by consent of parties. Any familiar relationship is accepted by the
concerned person through a declaration in the name of consent. Nobody can impose
a familiar liability on a person who is not ready to welcome such kind of
Mediation & Arbitrary body can be formed through a mutual consent otherwise
there is no scope of legal counseling in any civil dispute. The alternative
dispute resolution system is based upon the concept of concept. The Lok Adalat &
PLA are working successfully where parties are mutually agreed to adapt the ADR.
In many contractual dealing where both parties are in different status like
legal & living persons than contract are followed through standard form in
which living parties have to follow the written Terms & conditions by signing
contractual draft. Today insurance policies, mutual funds, saving policies,
investment policies, service facilities, rental agreement are the regular
institutions where standard forms of contract
Once a person
signed it is implied that has given his consent & ready to bear concern
liabilities. Thus consent has many faces in which it can be identified whether
it is written or verbal declared or unrevealed, direct or implied. It can be
measured by circumstances. Consent is the confirmation of notice &
acknowledgement, which are the reflector of civil liability, because every
breach of liability, imposes a duty on the defaulter who has given his consent
that means he knows about the facts & his consent was acceptance towards.
As per the severity of liable ratio or the consequences of a consent civil law
has a progressive and positive approach where in criminal law, consent has two
faces defensive and offensive as well as positive & negative. In criminal law,
consent make a ground of exemption from criminal liability if a person has a
valid consent from an authorized source and on another side he will be punished
as an offender if has not taken an authorized consent for specific act, or he
has manipulated & fabricated the consent in an offensive way.
is the basic requisite for joint liability. All the offences that are
committed in the joint venture, meeting of mind or agreement for same thing &
same sense is essential. Every 'actus reaus' is performed by mens rea
joint offenders or individual. Joint liability as a principal of common
intention sec. 34-IPC 1860 as a concept of abatement U/s 107, or the criminal
conspiracy U/s 120-A, these are the main example who executed through consensus ad idem
mutual consent is evaluated by the physical presence involvement, direct
indirect help & co-operation in committing an offence motive, intention, object
& desired outcomes are the revealing element of consent or presence of consent.
In the defensive manner an offender can save himself from a criminal liability
or can change the ratio of liability in following provisions of Indian penal
- Section 87: Act not intended and not known to be likely to cause death
or grievous hurt done by consent.
- Section 88: Act not intended to cause death done by consent in good faith For
- Section 89: Act done in good faith for benefit of child or insane person, by or by
consent of guardian.
- Section 92: Even an Act done in good faith for benefit of a person without consent
is not an offense under four limitation Intended to death, hurt/grievous Hurt,
- Section 300: (When) culpable homicide is not murder, when the persons whose death
is caused, being above the age of 18 yrs. suffers death or take the risks of
death with his own consent.
Although this provision is not an absolute defense of the criminal liability,
but in this proviso, consent can change the gravity & severity of liability and
makes the punished quite liberal.
Consent To Treatment
Informed consent means an agreement, compliance or permission given voluntarily
without any compulsion. It can be defined as:
The voluntary and revocable
agreement of a competent individual to participate in a therapeutic or research
procedure, based on an adequate understanding of its nature, purpose and
It is also fundamental and established principle in the Indian
law. Self-defense of body (IPC sections 96 to 102, 104, 106) provides right to
the protection of bodily integrity against invasion by other. All medical
procedures, including examinations, diagnostic procedures and medical research
on patients in the absence of consent constitute assault (IPC 351) for which he
is liable in damages.
This is true except in cases of emergency where the
patient is unconscious and where it is necessary to operate before consent can
For practical purpose, we divide the consent into implied and expressed form
depending upon the circumstances.
This is the trust and empathy that a patient develops with his doctor when he
first comes in contact and due to this empathy he allows history and examination
of himself. This empathy and trust forms the basis of implied consent and is the
most commonly employed type of consent in general and medical setup.
An expressed consent can be written or verbal. This is taken when any material
risk is involved. Expressed consent includes informed consent, which is the
ideal form of consent because it includes all aspects of meaningful
decision-making where he/she can make a balanced judgment.
What needs to be disclosed? Doctor's legal duty
The Legal Elements of Informed Consent Complete informed consent from a legal
perspective generally requires discussion of the following:
- The patient‟s diagnosis.
- The nature and purpose of a proposed treatment or procedure.
- The risks and benefits of a proposed treatment or procedure.
- Alternatives and associated risks and benefits
- The risks and benefits of not receiving or undergoing a treatment or
- The special precautions required postoperatively
- What the doctor recommends.
It is essential that this information be discussed in simple terminology that
can be readily understood by the patient. It is also essential that the patient
be given an opportunity to ask questions about his or her condition and the
proposed treatment or surgery.
Requirements for Valid Informed Consent
The practice of medicine is extraordinarily complex and difficult, with little
margin for error. In most situations the doctor cannot act without a patient's
. In order for patients' consent to be informed
valid, they must be able to make a well-informed logical decision. If they agree
to the treatment, understanding what it involves, they have given informed
consent. Informed consent was practically non-existent till the time COPRA
[Consumer Protection Act] came into existence. This is seen as more of a legal
requirement than the ethical moral obligation on part of the doctor towards his
Informed consent is meant to force the doctor to give the patient the knowledge
that will make patient to promote individual autonomy and freedom of choice.
Supreme court on consent
In Samira Kohli vs Dr Prabha Manchanda
 , the Supreme Court of India states
that consent in the context of a doctor�patient relationship is defined as grant
of permission by the patient for an act to be carried out by the doctor, such as
a diagnostic, surgical or therapeutic procedure. Consent can be implied in some
circumstances from the action of the patient.
This order gives the principles of
consent with regard to medical treatment and therapeutic investigations and not
for medical research/clinical trials as follows:
- A doctor has to seek and secure the consent of the patient before
commencing a treatment. The consent so obtained should be real and
valid; the consent should be voluntary; and the consent should be on the
basis of adequate information concerning the nature of the treatment
procedure, so that she/he knows what she/he is consenting to.
- A balance should be maintained between the need for disclosing necessary
and adequate information and at the same time avoid the possibility of the
patient being deterred from agreeing to a necessary treatment or offering to
undergo an unnecessary treatment.
- Consent given only for a diagnostic procedure cannot be considered as
consent for treatment. Consent given for a specific treatment procedure is
not valid for some other treatment or procedure.
- There can be a common consent for diagnostic and operative procedures
where they are contemplated. There can also be a common consent for a
particular surgical procedure and an additional or further procedure that
may become necessary during the course of surgery.
- The nature and extent of information to be furnished by the doctor to
Relationship Between Consent, Intention And Mens-Rea
Intention and consent
Intention: is an operation ofthe will. In other words, it is the last stage of
mental state to do an act or omission. Still it is within knowledge of the
intention holder. It means, no body in this world knows abopt the design or
inclination ofthe intention-holder that what he has promised with himself (or
undertaken) to do something. Whereas in case of 'consent' an offer is adhered by
some one to another person to do or omit to do some act, in response to this
offer either 'Yes' or 'No' is answered. If 'YES' is answered, it means the
answering person has given consent to do or omit to do the act offered to him.
If 'No' is answered, it means he has not consented to do or omit to do an act.
Hence, existence of 'consent' takes place when there are two persons.
Therefore, whenever consent is expressed, the intention of the answering person
comes in the knowledge of the world. Therefore, in cases of consent, always
there is OFFER and ACCEPTANCE. Whenever acceptance is expressed it is called
consent under criminal law. Whenever a person expresses his intention to do an
act before a second person still it is not a consent rather it shows that he is
willing to do an act yet it has come in the knowledge of another person.
Therefore, in the cases of consent, first stage is when a person puts an offer
to do or omit to do an act and in answer to it when the second person becomes
agree to do such act and expresses it also, it amounts to consent. In nutshell
the Intention is the genesis and consent is its specie.
Intention and Mens rea
All acts are done by intention of the doers but whenever any act is done with
malafide ways or purpose, it becomes objectionable. If it is objectionable under
civil law it is a civil wrong and when it is objectionable under criminal law,
it is called criminal wrong. Therefore, a guilt full intention is mens-rea and
when such mens rea is expressed to do or omit to do some act before other person
in answer to an offer, it is a consent expressed to do or omit to do for a
Hence it is necessary here to study the real circumference
(i.e. meaning, scope) of mens rea so that proper identification of consent can
be, marked for judging criminal liability. In other words, research on consent
can be known by studying mens-rea in depth as roots are necessary to be studied
for complete knowledge of a tree.
Right To Confidentiality
The age at which the Right to Confidentiality
begins is yet to be defined by
either the statute or the courts. For instance, the issue of confidentiality
arises when a 16-year-old girl wants to know about the contraceptive procedures.
Under the present legal provisions, it is unclear whether a healthcare
professional should inform the parents or respect the right to confidentiality
of the patient.
MTP can be done if the pregnancy is alleged by the pregnant
woman to have been caused by rape, since the anguish caused by such pregnancy is
presumed to constitute a grave injury to the mental health of the pregnant
woman. In such situations, either the consent of the woman if she is greater or
equal to 18 years or the consent of the parents/guardian if she is smaller than
18 years is obtained (Sections 3 (2) (i) and 4 (a) of the MTP Act, 1971).
Also, according to the MTP (Medical Termination of Pregnancy) Regulations, 2003
(Section 6), the admission register recording the name and other particulars of
the pregnant woman who undergoes termination is a confidential document and the
information contained therein should not be disclosed to any person other than
those authorized by the Regulations. criminalizes sex below 18 years of age,
even if it is consensual; thereby it is presumed that pregnancy is a result of
rape-a criminal offence reportable to the police. Further, under Section 202
of the IPC, it is the duty of a person to communicate any criminal offence (such
as rape) that he/she comes to know of to the law-enforcing authority.
Some of the rights are:
Confidentiality and privacy in healthcare:
- Right to Appropriate Medical Care and Humane Treatment,
- Right to Information,
- The Right to Choose Health Care Provider and Facility,
- Right to Medical Records, Right to Privacy and Confidentiality etc.
The patient's confidentiality regarding his/her treatment is of vital importance
and should be protected.
The medical information of the patient given to a health care provider shall not
be divulged to others unless the patient gives his consent to disclose such
information to others. The confidentiality of a patient should be maintained
because the communication of personal information or records may create personal
or professional problems while the patients depend on doctors to keep their
medical information private.
Though it is very rare to keep the medical records
or information completely undisclosed as the very common breach of
confidentiality occurs when the doctors pass the medical information to others
and refer it as one of their case studies.
Privacy and confidentiality difference
Case: Mr. X v. Hospital Z (1998)
- Privacy applies to a person. Privacy means keeping the medical records
restricted or in the vault from the public release because it protects the
- If in any case, such personal medical information reaches the
unauthorized third party and the identity of a patient is ascertained or
known without the consent of the patient then such patient can take legal
- Whereas, confidentiality applies to the data. It refers to an
individual's right to have personal and detectable medical information which
remains private between the patient and the physician. It is an extension of
- Confidentiality of the patient is an essential element of the personal
regard for the patient and also an essential criterion to uplift an honest
and transparent conversation between patient and physicians.
The Court, under Section 269 and 270 of the Indian Penal Code, held the
appellant is guilty on the grounds that he knew that he had a venereal disease
but still decided to marry.
Laws governing the Confidentiality and Privacy of a patient in India
- According to the Indian Medical Council (Professional Conduct, Etiquette
and Ethics) Regulations, 2002, it has been stated under chapter 7- (7.14)
that the registered medical practitioner shall not divulge any of the
secrets of a patient that have been acquired in the exercise of his/her
professional skill or while conducting the treatment.
- Chapter 8- (8.2) states about the consequences of the violation. It
explains that if any complaint is made with regards to the professional
misconduct of any registered medical practitioner and the same was brought
before the Medical Council of Disciplinary action, then, upon the receipt of
the complaint, the appropriate medical council will hold an enquiry and will
also give the opportunity to the registered medical practitioner to be heard
in person or by a pleader.
And if during the course of the enquiry or proceeding, the registered
medical practitioner is found guilty of committing professional misconduct,
then he will be awarded with the punishment as it deems fit with the
situation by the Medical Council or they may also direct the removal of his
medical practice altogether or for only a specified period.
- And under chapter 8- (8.5), if the decision is pending on the complaint
registered against him, then the appropriate Council may restrict the
physician from performing the procedure or practice which is under
Other than the code of ethics
there are no such specific laws in India which
protect the privacy and confidentiality of the patient's data.
Criminal liability makes a person liable for crimes committed by him and
although IPC recognized the fact that criminal acts must be punished, it also
took cognizance of the fact that not all acts are to be punished. Acts which is
justifiable or devoid of mens rea needs to be exempted from criminal
responsibility. This, the law has put in place. The accused person should also
be provided the right to be heard in all these circumstances.
In common parlance, consent is an act done deliberately and by free will. It
involves a deliberate exercise of intelligence based on knowledge of the
significance and moral effect of the act. a doer is protected from criminal
liability when he causes or takes the risk of injury with or without the consent
of the sufferer as he acted in good faith and for the benefit of the person
harmed. But in case of serious bodily injuries, criminal law does not recognize
consent as a defense.
For example, a player consented for a certain degree of
injuries in a football match but if s/he received more than that in the normal
conduct of the game, then it is unlawful.
On the other hand, Confidentiality is
the protection of personal information and it plays an important role to build
and develop trust it also refers to an individual's right to have personal and
detectable medical information which remains private between the patient and the
physician. Therefore, both consent and confidentiality are two separate aspects
of IPC on the same page and both plays important role in medical treatment.
- Anupriya Dhonchak, Standard of Consent in Rape Law in India: Towards an
Affirmative Standard, 21 BJGLJ 29, 30 (2016
- Kiran Charan, Role Of Consent In Civil & Criminal Liabilities: A
Comparison, 9 Ijar 71, 71-72 (2019).
- Karunakaran Mathiharan, A Detailed Insight Into General Exception Under
Indian Penel Code, Law news and nation (Nov. 06, 2020, 09:10 PM), https://www.lawnn.com/generalexceptions-under-indian-penal-code-ipc/#:~:text=Consent%2D,a%20child%20(Section%2089).
- Jane Lynch, Consent to Treatment (Medico-Legal Essentials) 126-127(1st
- Kusa Kumar Shaha & Ambika Prasad Patra, The Importance of Informed
Consent in Medicine, 1 SJAMS 455, 456-457 (2013).
- (2008) 2SCC 1 Para 32.
- Charles Petrick Davis, Patient Rights, emedicine health (Nov. 07, 2020,
10:50 PM), https://www.emedicinehealth.com/patient_rights/article_em.htm
- Bridgit Dimond, Legal Aspects of Patient Confidentiality, 53 (2nd ed.
- Jacinta O.A. Tan, Consent and Confidentiality in Clinical Work with
Young People, 12 Sage 191, 192-193 (2007).