WHAT DO WE UNDERSTAND WHEN WE SAY ‘MEDICAL CONSENT?
According to the Black’s Law Dictionary consent has been explained as “A voluntary yielding to what another proposes or desires; agreement, approval, or permission regarding some act or purpose, esp. has given voluntarily by a competent person; legally effective assent.”[1] The simple meaning of the word ‘Consent’ is to give your approval or your assent to something. Nobody has the authority to rob us of that. There are distinct types of consent. These are informed consent, implied consent, explicit consent, active consent, passive consent, and opt-out consent.[2]
INFORMED CONSENT
Out of the different types of consent, informed consent has been considered to be the most important especially in the medical field. It is a type of consent whereby you give your assent after getting the full knowledge of something and being aware of the risks involved. The Section 7 of the Medical Code of Ethics Regulations, 2002[3] states that informed consent may be oral or written, mostly written for future reference. Informed means that the patient or his/her attendant understands the mode of treatment or procedure, and only after understanding it fully, the patient or attendant has signed.[4] In sterilization, all consent should be taken from the partner also.[5] In essence, informed consent is an expression of the patient’s authorization, approval, or decision for the doctors to act in a certain way. It is a tool of reciprocal interaction between the patient and the doctor. When it comes to ‘Informed Consent’ the information that is required to be given to the patient are:
- Their exact position, where they stand medically
- What are the types of treatment the patient is to receive and what are the names of these treatments?
- How will a particular treatment help a patient and what are the underlying side effects and risks that a patient will bear after?
- What would happen if the doctor’s advised course of therapy is not followed?
IS IT MANDATORY TO GET CONSENT?
Yes, obtaining a patient’s permission is essential before a doctor makes any significant alterations to the person’s body. However, the patient needs to be aware of all the risks and dangers associated with such operations when it comes to big changes in their body, such as having their body operated on or having an organ removed, etc. The doctor would not get into trouble if the patient still agreed after being advised of all the potential hazards (Possibly).
IS IT CONSENT IF THE PATIENT IS NOT INFORMED PROPERLY?
Now after understanding the importance of consent, we understood that a medical practitioner must get consent from their patient. However, many people do not receive ‘Informed Consent’ especially when it comes to rural areas. This is demonstrated by the large number of illiterate people who are unable to understand the medical jargon employed by doctors. They largely trusted the expertise of these medical professionals, and occasionally they had no choice but to place their faith blindly in them.
INFORMED CONSENT IN RURAL AREAS
Another reason why inhabitants of rural areas are unable to gain “Informed Consent” is that there are too many patients. Doctor to patient ratio is at 0.74:1000 based on a population of 1.40 billion as of December 2021. Although the ratio appears to be acceptable by WHO standards, the question is how many of these doctors are actually in practice? It was found out that a number of these doctors get themselves registered in the State Medical Councils but whether they are practicing or not is unknown.[6]
As a result, one doctor would have to care for a large number of patients, which could result in a possible deterioration in health care. Many people rush to government-run medical facilities in search of affordable care because the cost of private healthcare is so exorbitant. The sad reality is that government-provided healthcare centers are not as efficient as the ones in urban areas or as the ones provided by private healthcare centers.
People in these regions commonly turned to the knowledge of Registered Medical Practitioners (RMP) to get medical care. The hazards of the procedure are frequently not disclosed to patients. Despite their best efforts, doctors may endanger themselves in an endeavor to save a patient’s life. For their wrongdoing, they might be charged civilly or criminally. They run the possibility of getting locked up or having to pay reparations. The patient might sue the doctor for personal trespass, negligence, assault, or violence. A doctor is rarely charged with a crime unless there is a blatant disregard for the patient’s personhood, such as when the patient’s organs are removed without his will.[7]
Therefore, the issue of whether rural residents obtain what they require emerges when it comes to informed consent. Do the doctors get and act upon the necessary information? They may have complete faith in the RMP and their abilities, but if something goes wrong, who will take the burden?
ILLUSTRATIVE LEGAL CASE
The case of Samira Kohli v Dr. Prabha Manchanda & Anr[8] which was an appealed case from the National Consumer Disputes Redressal Commission to the Supreme Court of India has highlighted the importance of ‘Informed Consent’. A woman called Samira Kohli saw Dr. Manchanda on May 9, 1995, and she complained of having a strong menstrual flow. She signed a consent document to be admitted to the hospital, get treatment, and have surgery. She was only admitted for a diagnostic procedure, a laparoscopic test, and she had only consented to that therapy, thus there was no valid permission for the severe operation. Her mother’s consent for the hysterectomy had also been obtained through deceit. Furthermore, the respondent made a false claim that the appellant had endometriosis to deflect attention from her unjustified and negligent behavior. The respondent was negligent in two different ways:
- First, by not getting her permission for the severe surgery that involves the removal of reproductive organs, much less permission that was given in an informed manner; and
- Second, by choosing to proceed with a draconian, irreversible surgical operation when it was not necessary for her circumstances.
Before the surgery began, the respondent failed to inform the appellant of any potential risks, challenges, or negative outcomes connected to it. It was unethical and against the standard medical practice to execute the surgery against the woman’s will. The physical damage from having her reproductive organs removed necessitated a great deal of care for her. A licensed gynecologist was required to perform the surgery since the responder lacked the necessary training to practice obstetrics and gynecology. In this instance, the necessary person did not provide her consent or understanding of the procedure’s hazards. The appellant has experienced numerous issues as a result of the proceedings. As a result of not receiving the appropriate information, the patient, in this case has had excruciating mental anguish, lost her reproductive system, been unable to marry, had her body irreversibly harmed, and missed the opportunity to become a mother. When making healthcare decisions, it is important to consider the relevance of the patient’s choices. Practitioners should conduct themselves as consultants who give patients information that is essential to their decision-making. We cannot deny individuals access to knowledge, as was the case in this instance, assuming that the practitioner has the upper hand and is an expert. The doctor has a moral and legal commitment to give the patient as much information as is reasonably necessary for them to evaluate the facts and make ethically sound decisions.
CONCLUSION
The National Medical Commission (MNC) in its recent draft of Registered Medical Practitioner Regulations 2022 Section 19(A)[9] has stated that doctors should obtain documented informed consent before performing any clinical, diagnostic, therapeutic, or operative procedure. They appeared to have stressed the word ‘Informed Consent’ as it is really important to get such consent from the people. Therefore, if the RMP treats a patient without the patient’s informed consent, they might essentially get into problems and if a civil or tortious wrong occurs, or they could be imprisoned as a result of the criminal crime. Every profession has specific guidelines that must be followed. Similar to other professions, medical professionals must abide by these norms and guidelines to avoid having their licenses suspended. There will always be words that those outside of the profession don’t understand. In a similar vein, a person might not be familiar with many of the medical terms used in this sector. Therefore, just giving the patient the paperwork to fill out and the sign should not be interpreted as permission. The process of getting informed consent must be taken seriously, and any medical language must be adequately explained to the patient. The doctors must take consent seriously even though it sometimes seems like a foolish request to follow. This demonstrates that without consent, healthcare providers cannot do anything or they would face a lawsuit. So, while saving or attempting to save a life without consent is moral but it may result in an unethical outcome.
Author(s) Name: Ibapynhun Mukhim (North Eastern Hill University)
References:
[1] Ben Schenker, ‘What Consent Can Mean’ (Mdschenkerlaw, 19 December 2017) <https://www.mdschenkerlaw.com/blog/2017/12/19/what-consent-can-mean > accessed 06 October 2022.
[2] ‘What are the different types of Consent?’ (Securiti, 16 March 2021) <https://securiti.ai/blog/types-of-consent/> accessed 05 October 2022.
[3] Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002, s 7.
[4] Ibid.
[5] Ibid.
[6] Bhavin Jankharia, ‘We don’t even know how many doctors currently practice in India’ (The Times of India, 11 January 2022) <https://timesofindia.indiatimes.com/blogs/voices/we-dont-even-know-how-many-doctors-currently-practice-in-india/> accessed 05 October 2022.
[7] Omprakash V Nandimath, ‘Consent and medical treatment: The legal paradigm in India’ (2009) 25 (3) IJU <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2779959/#:~:text=The%20element%20of%20consent%20is,not%20get%20consent%20for%20treatment>accessed 07 October 2022.
[8] Samira Kohli v Dr. Prabha Manchanda & Anr (2008) AIR SC 855.
[9] Registered Medical Practitioner Regulations 2022, s 9A.
