Patient’s consent must for surgical interventions

From http://www.hindu.com/2008/01/17/stories/2008011753701300.htm

Consent should be real; patient should have the capacity to consent: apex court

New Delhi: A doctor has to seek and secure the consent of the patient before commencing a ‘treatment’ including surgery and no part of the body can be removed without his/her consent, the Supreme Court held on Wednesday.

Giving this ruling, a three-Judge Bench comprising Justice B.N. Agrawal, Justice P.P. Naolekar and Justice R.V. Raveendran said “the consent so obtained should be real and valid; 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, so that he knows what he is consenting to.”

The Bench gave this ruling while setting aside an order passed by the National Consumer Disputes Redress Commission rejecting the complaint of a 44-year-old woman, Samira Kohli, who alleged that the respondent, Dr. Prabha Manchanda, had removed her uterus, ovaries and fallopian tubes in May 1995.

Writing the judgment, Justice Raveendran said “the doctor should disclose the nature and procedure of the treatment and its purpose, benefits and effect; alternatives if any available; an outline of the substantial risks; and adverse consequences of refusing treatment. But there is no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment.” The Bench made it clear that consent given only for a diagnostic procedure could not be considered as consent for therapeutic treatment. “Consent given for a specific treatment procedure will not be valid for conducting some other treatment procedure. The fact that the unauthorised additional 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 in an action in tort for negligence or assault and battery.”

Exhorting the need for the government to step in to provide better medical and health care, the Bench said “there is a general perception among the middle class public that private hospitals and doctors prescribe avoidable costly diagnostic procedures and medicines, and subject them to unwanted surgical procedures, for financial gain.” The Bench said “the public feel that many doctors who have spent a crore or more for becoming a specialist, or nursing homes which have invested several crores on diagnostic and infrastructure facilities, would necessarily operate with a purely commercial and not service motive; that such doctors and hospitals would advise extensive costly treatment procedures and surgeries, where conservative or simple treatment may meet the need; and that what used to be a noble service oriented profession is slowly but steadily converting into a purely business.”

In the instant case, the Bench held that there was no consent by the appellant for performing hysterectomy and performance of such surgery was an unauthorised invasion and interference with appellant’s body which amounted to a tortious act of assault and battery and therefore a deficiency in service