Patient’s Consent in Indian Law

‘Patient’s autonomy’ i.e. the patient’s right to know and decide about what is being done to his body during medical treatment is a well recognised principle of modern law. A doctor cannot proceed in the absence of patient's consent. Consent of patient is presumed in every interaction between the doctor and the patient, but in interventions and treatments which may have serious consequences, consent has to be written.

In India, the various aspects of consent are neither well defined nor comprehensively spelt out and hence even though a doctor may have taken consent yet he may be held negligent if it does not meet the legal requirement. The most interesting aspect of consent is that it is a purely procedural act and has little to do with the science of medicine.

In January 2008, in the case of Samira Kohli v/s Dr. Prabha Manchanda & Anr, the Supreme Court delivered a landmark judgment virtually redefining the ‘law of consent in India’. It has rejected the American doctrine of ‘informed consent’ which was in vogue and has substituted it with the English doctrine of ‘real consent.’
In the words of Supreme Court:

“The nature and extent of information to be furnished by the doctor to the patient to secure the consent need not be of the stringent and high degree mentioned in Canterbury but should be of the extent which is accepted as normal and proper by a body of medical men skilled and experienced in the particular field. It will depend upon the physical and mental condition of the patient, the nature of treatment, and the risk and consequences attached to the treatment.”

Thus what is correct medical act has to be decided by doctors and none else.