Pune: The medical calling is perhaps the noblest of all the professions since it is devoted to the care and preservation of human life. However, frequent cases of misdiagnosis and wrong treatment have called for the law to spell out the responsibilities of health care providers.
Illustration by Jayachandran / Mint
One of the significant issues in this area is the doctor’s obligation to obtain the patient’s consent before administering a particular medical treatment, and the nature of the consent.
In this backdrop, the decision of the Supreme Court in Samira Kohli v. Dr Prabha Manchanda (decided in January last year) assumes significance, by making the requirement of “informed” consent for medical treatment mandatory.
In this case, the patient, an unmarried woman of 44 years, was advised a laparoscopy test, a diagnosis method, to detect the reason for prolonged menstrual bleeding. The admission card, on which her signatures were taken, showed that she was admitted for “diagnostic and operative laparoscopy” and the consent form for surgery described the procedure to be carried out as “Diagnostic and operative laparoscopy. Laparotomy may be needed”.
While she was being subjected to a laparoscopic examination and was still unconscious, one of the doctors came out of the operation theatre and took the consent of her mother for the removal of the uterus. Thereafter, the doctors removed the uterus, ovaries and fallopian tubes.
Aggrieved, the patient lodged a complaint against the doctor before the National Consumer Disputes Redressal Commission, alleging negligence and unauthorized removal of her reproductive organs and claiming compensation of Rs25 lakh. The commission dismissed the complaint. The Supreme Court allowed the patient’s appeal against this decision of the commission.
The Supreme Court categorically held that except where consent can be clearly and obviously implied, there should always be express consent of the patient for the medical treatment.
The court held that, even if it was possible that the patient would have agreed to the additional procedure, and that removal of the affected organ during the initial diagnostic surgery would save the patient the pain and cost of a second operation; however practical or convenient the reasons may be, they are not relevant.
The relevant factor is “the inviolable nature of the patient’s right in regard to his body and his right to decide whether he should undergo the particular treatment or surgery or not”.
It held that unless the unauthorized additional or further procedure was necessary in order to save the life or preserve the health of the patient, and it would be unreasonable (not merely inconvenient) to delay the procedure, the doctor could not perform the procedure without the patient’s consent.
According to the court, the proper course of action for the doctor in such cases is to wait for the patient to regain consciousness, discuss the proposed treatment with the patient and let the patient decide on the additional procedure suggested.
The judgement also requires the consent to be real, that is, the patient must be given sufficient information about the operation and its effects in order to reach a proper decision. However, the nature and extent of information would depend on the physical and mental condition of the patient, the nature of treatment, and the risks and consequences attached to the treatment.
The court rejected the submission that the consent given by the patient’s mother should be considered valid consent. The judgement declares that when a patient is a competent adult, there is no question of someone else giving consent on his/her behalf. According to the court, the question of seeking someone else’s consent would arise only if the patient is a minor, mentally challenged, incapacitated, or if there is a medical emergency during surgery.
Though the court did not find the doctor negligent in the treatment, it made it clear that correctness or appropriateness of the treatment procedure did not make the treatment legal in the absence of consent.
Accordingly, removal of the uterus, ovaries and the fallopian tubes of the patient was held to be an unauthorized interference with the patient’s body amounting to a torturous act of assault and battery and therefore, a deficiency in service.
Holding that it was a case of the doctor acting in excess of consent, but in good faith and for the benefit of the patient, the court awarded a rather low sum of Rs25,000 as compensation.
In conclusion, the decision to take a particular medical treatment cannot be left solely to the doctor.
The law has given the patient a right to “informed consent” in decisions relating to treatment. Hence, any treatment administered without the informed consent of the patient would be unlawful, except in cases of emergency and incapacity.
“Informed consent” means that before taking the patient’s consent for the proposed medical treatment, the doctor needs to reasonably inform the patient about the nature of the disease, the proposed treatment, the available alternatives and the risks involved in undergoing or foregoing the proposed treatment.
This column is contributed by Arvind Lakhawat of AZB & Partners, Advocates & Solicitors.
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