ROLE OF CONSENT IN MEDICAL PRACTICE[1]
INTRODUCTION:
The word “Consent” means approval of the concerned individual for the specific task. Before undergoing into any severe treatment, the patient or his legal heir or any person who is authorised to do so either by him or by law signs the consent agreement for the fulfilment of legal purpose which proves that the patient is voluntarily engaging in that clinical action. It’s mandatory for the patients & for their respective families to show the consent before treatment which is related to all possible contingencies, benefits & ambiguities. Also, each and every patient has their own concern & right as per the Constitution of India. As prescribed in the Indian Law, no doctor can treat any patient without his/her concern or consent otherwise he could be answerable for the punishment under several laws such as Constitution of India, Law of Torts, Law of Crimes, Consumer Protection Act or under any other law for the time being in force.
Keywords: Voluntarily, Treatment, Ambiguities, Constitution
WHY IS IT MANDATORY TO OBTAIN CONSENT?
Consent is the representative of the patient’s personal sovereignty & signatory of a code of conduct, which has to be followed in order to provide fair & honest treatment to every victim. Whenever the doctor tries to operate without the legitimate consent of the patient then, in that case, the victim can claim for the adequate reimbursement through the court of law.
This procedure lies in both kinds of law namely:
- Tort law
- Criminal law
“In the highest ever compensation awarded in a medical negligence case, the Supreme Court on Thursday asked Kolkata-based AMRI Hospital and three doctors to pay a whopping Rs 5.96 crore.”[2]
Basically, one can claim under tort law for the adequate amount which will help the victim to recover from the loss. Whereas going by the criminal law the accused can be punished through Uncompromising life imprisonment or it could be capital punishment depending upon the circumstances & amount of loss born by the party.
“Similarly, the Declaration of Helsinki adopted by the World Medical Association in 1964 emphasizes the importance of obtaining freely given informed consent for medical research by adequately informing the subjects of the aims, methods, anticipated benefits, potential hazards, and discomforts that the study may entail.”[3]
It is advisable to all the practitioners to obtain written consent every time from the patient so that it would not create any mess during the time of charges, thus it would be very easy to drop all the charges framed against the concerned person. According to the Indian laws, it is very crucial for all the doctors that, they should provide all the vital erudition regarding the operation & concerned issue in an easy way without any hustle which would remove the communication gap between the doctor & patient. The quantity of erudition produced should be adequate for a rational person to make choices. The acknowledgement should embrace the achievable advantages and prospects of the invasion and the expectations of their happening.
LEARNED CONSENT: THE DILEMMA OF COERCION OR ETHICAL
Nowadays, it’s very important to take the concern of the patient before operating him/her, also completing all the legal formalities as well. Precise documentation and counselling of victims are essential in any knowledgeable acquiescence. Every human has their own soul, after so many improvements which took place in our society, each & every human has their own basic fundamental right as well as several human rights which came into force for the all-around development & safeguarding their rights. Thus, the notion of approval arises from the personal rights of the victim & his sovereignty. Each & every victim has right to determine whether the particular operation or cryosurgery will benefit to them or would not be that much benefit to their body, hence no one can force them in order to take that particular operation.
Consent is essential for illustrating a sufferer for experimental, scholarly view or for the catch-up. Approval must be obtained if the identification of the victim is expected to be exposed while issuing. Sometimes, the person might be paid for the same kind of work for using his/her name for the other purposes.
ACTS SAFEGUARDING CONSENT OF THE PERSON IN THE MEDICAL PRACTICE
- IPC Section 357 – “Assault or criminal force in attempt wrongfully to confine a person”
- IPC Section 350 -“Criminal force”
There are certain limits which must be followed by the concerned doctor otherwise it would be harmful to the doctor & for his profession, which would also lead to the abandonment of his practicing license.
The doctor cannot decide on his own what kind of procedure he must follow, thus it’s mandatory for all the doctors to follow the guidelines of the authority as prescribed. Regrettably, the government does not allow this assumption. The primary pre-eminence of law is always the priority of liberation of the victim granted he is enriched with the necessary space.
The doctor, who considers that a healing method is suitable and essential for a Victim’s welfare, conceivably be pardoned for understanding that the faith of sovereignty should be surrendered in the soundest matter of the patient. However, in certain emergency cases, where the patient is unable to give his/her consent in those cases our Indian laws are salient thus there are no specific guidelines given by the constitution of India. If such a circumstance exists, the Doctor may continue with operation by securing the acquiescence of any relation of the victim or yet an assistant.
[1] Authored By: Mr. Avinash Pandey, B.B.A.LL.B, 2nd Year Student at IFIM Law College & Research Writer at Law Audience: Edited By: Mr. Varun Kumar (Founder & CEO & Editor-In-Chief).
[2] The apex court ordered to pay the due amount with interest to a US-based Indian-origin doctor who lost his 29-year-old child psychologist wife during their visit to India in 1998.
A bench of justices C K Prasad and V Gopala Gowda raised the compensation amount of Rs 1.73 crore, awarded by the National Consumer Dispute Redressal Commission (NCDRC) in 2011, to Rs 5.96 crore to Kunal Saha, an AIDS researcher in Ohio, and asked the Advanced Medicare and Research Institute (AMRI) and the doctors to pay the amount within eight weeks along with interest at the rate of 6 per cent from the date of filing of the case in 1999.
[3] Omprakash V. Nandimath, Consent And Medical Treatment: The Legal Paradigm In India, 25 (3) INDIAN J UROL, 343-347 (2009).
