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.
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.
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:
- admission and discharge card;
- consent form for hospital admission and medical treatment; and
- 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.
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,
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,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, 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, 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
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, 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
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
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.
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
- Nizam Institute of Medical Sciences vs. Prasanth S. Dhananka and Ors.,
- 1972  Federal Reporter 2d. 772
- 1949 (2) DLR 442
- 1933 (3) DLR 260
- (1914) 211 NY 125