Every doctor, whatever be his specialty, has to discharge certain medico-legal responsibilities from the very first day of his practice. Almost everything a doctor does in practice of medicine is in some manner or the other governed by the legal system. A Registered Medical Practitioner is routinely involved in the consent process with patients. This necessitates every medical professional to understand all aspects of consent in detail.
Consent is defined as voluntary agreement, compliance or permission. Consent is voluntary affirmation by a patient to allow touching, examination and for treatment by medically authorized personnel. Consent allows patient to determine what will be done with their bodies. No adult person need accept medical treatment unless they wish to. Consent becomes legally valid, when it is given only after understanding. Legal validity of consent obtained is usually based on certain mandatory formalities to be maintained in obtaining it. Consent should be always free, voluntary, informed, clear and direct. As per section 90 IPC the person giving consent should be mentally sound, not under any fear or threat, not under false conception, not under intoxication and above the age of 18 years. Doctrine of informed consent (Rule of full disclosure) is very essential in medical practice; especially when diagnostic procedures or treatment methods are beyond the routine methods wherein risks are involved. Here the doctor should explain all the relevant details to the patient such as about the disease, about the diagnostic tests, about the treatment proposed and alternatives available and about the risks involved and prognosis. Precautions during consent include mainly the formalities a doctor should maintain in obtaining the consent from a patient i.e. explain the object of it. Inform him/her that he/she has the right to refuse. Explain the complete procedure of treatment.
Consent in routine medical practice is of two types, implied consent and expressed consent. Implied consent is the commonest form of consent observed in routine medical practice. Here the consent is presumed to have been given when the patient enters doctor's consulting room, summons the doctor to his house or holds his arm up for an injection. Here the patient knows that the diagnostic procedures or the procedure of treatment to be commenced with are simple and straight forward, has little or negligible or no risk in it and the conduct of patent implies willingness for treatment. Anything other than the implied consent is expressed consent. This is of two types: oral and written. For majority of relatively minor examinations or therapeutic procedures oral expressed consent is employed, but this consent should be obtained in the presence of a disinterested third party. Usually presence of a receptionist or a ward sister/nurse etc. suffice the purpose. However a person closely related/associated with the patient is not ideal for the purpose. Oral consent, when properly witnessed, is of equal validity as written consent, but the latter has the advantage of easy proof in permanent form or document which avoids further disputes in any subsequent litigation. Written consent as against the oral consent is obtained for all major diagnostic procedures and for surgical operations and it should refer to only one specific procedure only at a time. Written consent should be obtained in special form prescribed for the purpose by the hospital. It should be witnessed by third party with proper signature.
Even with consenting patients, where a female patient is to be examined by a male doctor, ensure the presence of a female nurse/ receptionist/female relative of the patient especially when intimate examination of the genital organs.
Regarding age of consent according to Section 88 IPC a person who is above 18 years can give valid consent to suffer any harm which may result from an act in good faith and which is not intended or known to cause death or grievous hurt. Thus a surgeon operating on victim of an accident is doing it for the benefit of the patient and therefore surgeon cannot be held responsible if the surgery ends fatally, as the doctor is acting in good faith. According to Section 89 IPC, minimum age for giving valid consent for medical examination is 12 years. For medical examination of a child below the age of 12 years, the consent is usually obtained from the parents of the child.
In routine medico-legal matters a doctor may come across in practice where in consent has major role to play. In relation to marriage and conjugal obligation matters, such as sterilization, artificial insemination etc., Consent of both partners must be obtained. Consent in matters such as pregnancy, delivery etc. must be obtained in advance from concerned woman. If this is not possible consent must obtained from her husband or relative who is accompanying her. During examination of such case it is better to keep an uninterested third person as witness, preferably nurse, receptionist or a female relative of the patient. Consent in relation to medical termination of pregnancy, consent of the pregnant woman alone is enough. However, she should be above the age of 18 years.
In examination of a victim of alleged rape to confirm the allegation, the doctor should obtain prior consent observing all formalities. The consent must necessarily be obtained after telling her that the findings of clinical examination shall be revealed in court of law. Consent must be obtained from her relatives if the victim is a child or minor. It is better to remember that in every medico-legal case, whether the patient is a victim or an assailant, it is better to obtain the consent. However in criminal cases it is not necessary provided the requisition being received from a police officer who is not below the rank of sub-inspector of police and the examination is done in the presence of a disinterested witness. Under section 53 GPC if the criminal is not willing to get examined, examination may be done with mild and reasonable degree of force. Consent obtained from a person who is drunk and under the influence of alcohol or intoxicated due to any other drug is invalid. However, in such circumstances examination of the case may be done and findings may be revealed only after obtaining the consent at a later period when the person becomes sober.
Consent is not required for a medico-legal autopsy. However consent to remove and retain parts of body for further study and examination must be obtained. However no civil action has so far been reported for the removal of tissues from the body at autopsy even without specific consent.
Considering consent in relation to organ transplantation, a living person can donate voluntarily any of his organs, tissues etc. to another person for therapeutic purposes, the consent given for such purposes is valid only if the donor is above the age of 18 years, while to remove organs from a dead body, there should be sufficient documents stating that the consent is given by the deceased earlier when alive. However, even this consent or will made by the deceased when he was alive becomes null and void after his death and to remove organs from the dead body consent must be obtained from legal possessors of the dead body. No law of the land can procure organs from the dead body if the legal possessor of the deceased refuses to give his consent to donate the organs or tissues.