Consent of patient mandatory

Recently, I came across a private hospital chain that put a lot of emphasis on the rights of patients.  In fact, I was pleasantly surprised to see large placards at the hospital, listing out the rights of patients. Considering that for many years, the government has been trying (unsuccessfully) to get at least the public sector hospitals to codify and enforce the rights of patients in the form of “Patients’ charters”, I was quite impressed with this voluntary effort on the part of a private hospital.

One of the rights listed by the hospital was the right to read and understand the consent form before signing. However, much to my disappointment, I found that the hospital did not give a copy of the consent form to the patient, or the patient’s relative who signed it. And from their reaction to my queries on the subject, it was obvious that till then no patient had demanded it either.

I quote this to emphasise the need for hospitals to have the consent form printed not only in English, but also in the local language so that the person who is signing it can read and understand it. After all, it has to be an informed consent in order to have any validity, and once the patient or the relative signs it, it is only fair and appropriate to hand over a copy. In fact, this should become mandatory for all hospitals, government run or privately run.

Unfortunately, in most hospitals, the patient or the relative is asked to sign the consent form, without explaining what it means, or without even giving the person enough time to read and understand it. In fact, there are complaints of hospitals performing surgeries without even taking a valid consent.

I must mention here that the Supreme Court, in the case of Samira Kohli vs Dr Prabha Manchanda and Anr  (2008-2 SCC), has not only underscored the importance of valid and informed consent, but also laid down certain basic principles on the subject for hospitals to follow.

Said the apex court in this case: “A doctor has to seek and secure the consent of the patient before commencing a treatment (the term treatment includes surgery also). The consent so obtained should be real and valid, which means that 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 Supreme court in this case also clarified what constituted adequate information that was required to be given to the patient in order get an informed consent. And this information included the nature and procedure of the treatment, its purpose, benefits and effects, alternatives, if available, besides an outline of the substantial risks and adverse consequences of refusing treatment. But there is no need to explain remote or theoretical risks involved in the process or in its refusal, so as to frighten a patient to either refuse the necessary treatment or undergo a fanciful or unnecessary treatment, the apex court said.

It also said that “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. The only exception to this rule is where the additional procedure, though unauthorised, is necessary in order to save the life or preserve the health of the patient, and it would be unreasonable to delay such unauthorised procedure until the patient regains consciousness and takes a decision,” the apex court said.

Since patients in India do not have a special law codifying their rights, law courts and the consumer courts have had to step in to protect their rights, particularly in respect of the right to humane treatment, emergency care, informed consent, right to information, medical records and the right to choice.

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