s

Abstract

Consent is a very important issue for all the medical practitioners while
dealing with their patients .Consent is always required for examining a
patient for therapeutic purpose or while preparing a medico legal
report .Ignorance of law is not a defense in legal cases, so all medical
practitioners should be aware of their duties with regard to consent in
clinical setting. In this article we have discussed various issues in
relation to consent, possible word format for taking consent for medico
legal examination and the cases where examination can be done
without consent.

Introduction
Consent
The term consent means voluntary agreement, compliance or
permission. Section 13 of the Indian contract act says that two or more
persons are said to consent when they agree upon the same thing in same
sense .
Types of consent
Implied Consent
Expressed Consent [May be oral or written]
Implied Consent
Not written, that is, its existence is not expressly asserted, but
nonetheless, it is legally effective. It is the most common type of consent
in both general and hospital practice. It implies consent to medical
examination in a general sense but not to procedures more complex than
inspection, palpation and auscultation. Implied consent is apparent when
a patient comes to hospital or doctor’s clinic for treatment, it is also
apparent in a case of comatose patient requiring immediate treatment or
a mentally incompetent patient requiring treatment when legal guardian
is not available.
Expressed Consent
The terms of which are stated in distinct and explicit language. It may be
in oral or written form.
Written should be preferred as it has the advantage of easy proof and
permanent form. Oral consent is also equally valid if properly
witnessed .Oral consent should be taken in the presence of a
disinterested party like any literate paramedical staff e.g. nurse,
pharmacist
Informed Consent
Doctor should inform the patient regarding:
Diagnosis
Nature of treatment or procedure
Risks involved
Prospects of success
Prognosis if the procedure is not performed
Alternative methods of treatment
Informed consent was practically non-existent till the time COPRA
[ Consumer protection act ] came into existence. This is seen as more of
a legal requirement than the ethical moral obligation on part of the
doctor towards his patient.2
Possible Word Format for Consent for Medico Legal Examination
A) I S/O, D/O,W /O
______________________

R/o______________________________________________________
give my full, free voluntary consent for my complete medico legal
examination, the purpose, nature and consequences of which have
been
explained to me by Dr. ______________.

B) I certify that no other medico legal examination for present injuries

has been done earlier anywhere else.
All the particulars told by me to the doctor are correct.

Date: Signature of patient:

C) That all the injuries present on my body have been noted in the
medico legal report.

Date: Signature of patient:

(Consent should preferably be in the language of the patient.)
Loco Parentis
In an emergency involving children, when their parents or guardians are
not available, consent is taken from the person in charge of the child e.g.
a school teacher can give consent for treating a child who becomes sick
during a picnic away from home town, or the consent of the head master
of a residential school.
Proxy consent or surrogate decision maker 3
When a person is incapable of giving expressed consent a substituted
consent can be taken from the next of kin. Generally accepted order is
spouse, adult child, parents, siblings, lawful guardians
Consent of relative can also be taken if the consequence of informing the
patient about the disease is more dangerous as compared to the actual
risk of the procedure.
Consent is invalid if
The act consented to is unlawful e.g. criminal abortion.
The consent given by a minor or a mentally ill or the one who had no
legal capacity to give it.
If it is not an informed consent.
If obtained by misrepresentation or fraud.
Consenting person is under age.
Informed refusal
If after knowing about the procedure, its side effects and other
information related to procedure patient declines or refuses to undergo
the procedure, it must be taken in written. Treatment can not be forced
upon any individual who does not want to receive it, except in a very
few circumstances like issues associated with public health, military
personnel or prisoners.
Consent is must
In all cases of medical examination and treatment, while preparing
Medico legal reports and while examining the victim of a criminal case
like rape etc.
Examination without Consent
Upto1972,there was no provision in the Criminal procedure code under
which court can compel the accused person to get himself medically
examined. Consequently police faced lots of hardship in investigations
especially dealing with criminal cases. Law commission in its 41st report
recommended that provision be made in the code of criminal procedures
for making lawful the medical examination of the accused at the request
of the police. Eventually, bearing all these aspects in mind the
parliament included a new provision in the code of criminal procedure
1973 in section 53.
Under Sec 53[1] Cr.P.C.5, when a person is arrested on a charge of
committing an offence of such a nature and alleged to have been
committed under such circumstances that there are reasonable grounds
for believing that an examination of his person will afford evidence as to
the commission of an offence , it shall be lawful for a registered medical
practitioner , acting at the request of a police officer not below the rank
of sub-inspector ,and for any person acting in good faith in his aid and
under his direction, to make such an examination of the person arrested
as is reasonably necessary in order to ascertain the facts which may
afford such evidence , and to use such force as is reasonably necessary
for that purpose. Reasonable ground for believing that an examination
of the accused will afford evidence to the commission of an offence is
the bonafide belief of the police officer. The registered medical
practitioner is not concerned with it.
Under section 53[2] Cr.P.C.5, whenever the person of a female is
to be examined under this section ,the examination shall be made only
by, or under the supervision of, a female registered practitioner. In this
section examination shall include the examination of blood, blood stains,
semen, swabs in case of sexual offences, sputum and sweat, hair samples
and finger nail clippings by use of modern and scientific techniques
including D.N.A. profiling and such other tests which the registered
medical practitioner thinks necessary in particular case.
An accused released on bail is also a person arrested for the purpose of
section 53 Cr.P.C.
Examination of person accused of rape by medical practitioner 5
Under section 53A, when a person is arrested on a charge of committing
an offence of rape or attempt to commit rape and there are reasonable
grounds for believing that an examination of this person will afford
evidence as to the commission of such offence , it shall be lawful for a
registered medical practitioner employed in a hospital run by
government or by a local authority and in the absence of such a
practitioner within the radius of 16 k.m. from the place where the
offence has been committed by any other registered medical
practitioner , acting at the request of a police officer not below the rank
of a sub-inspector , and for any person acting in good faith in his aid and
under his direction , to make such an examination of the arrested person
and to use such force as is reasonably necessary for that purpose.
No consent is required where the arrested person himself makes a
request to the concerned court for his medico legal examination under
sec 54 Cr. P.C. and the court directs the doctor to do so.
Consent and Age
Sec 87 I.P.C. - A person under the age of 18 years can not give valid
consent, whether expressed or implied, to suffer any harm which may
result from an act not intended or not known to cause death or grievous
hurt. e.g. consent for a wrestling competition
Sec 89 I.P.C. - a child under 12 years of age can not give valid consent
to suffer any harm which can occur from an act done in good faith and
for its benefit, e.g. consent for an operation. Only a guardian can give
such a consent
Under section 375 I.P.C. - sexual intercourse by a man with a girl under
15 years of age, even if she be his wife, or any other girl under 16 years
of age, even with her consent, constitutes the offence of rape.
As per The Transplantation of Human Organs Act,1994 ,Donor means
any person not less than eighteen years of age, who voluntarily
authorizes the removal of any of his human organs for therapeutic
purposes.4
The minimum age for donating blood as mentioned is eighteen years for
blood donor. 4
Other Important Points Regarding Consent
For compulsory vaccination, consent is provided by the law.
If any person has donated his eyes to be used for therapeutic purpose
after his death, the eyes can be removed only with the consent of
guardian or legal heirs.
For organ transplantation, the organs of the dead person should not be
removed without the consent of the guardian or legal heirs.
Pathological autopsy should not be done without the consent of guardian
or legal heirs.
Specific authorization should be obtained for retention of organs and
parts of body.
In medico legal autopsies [statutory authorization] , consent is not
required and the doctor can remove from the cadaver anything that is
essential for purpose of examination.
Consent is not a defense in cases of professional negligence.
The nature of illness of a patient should not be disclosed to any third
party without the consent of the patient.
Consent of spouse is not must for M.T.P.
For contraceptive sterilization, consent of both husband and wife should
be obtained.

Summary and Conclusion

Consent is must for any type of treatment or the medical procedure.
Preferably it should be taken in written and it should always be an
informed consent. Blanket consent has no legal value, so consent should
be taken for the specific treatment or the procedure. Consent is must for
medico legal examination with certain exceptions as already
discussed .Consent provides a medical practitioner legal protection in
case of an action for negligence although it is not a defense for
professional negligence.

References

1. Narayan Reddy KS : The essentials of Forensic Medicine and Toxicology, 26thed.,2007; Medical Book
Company, Hyderabad : 41-44

2. Bansal YS,Singh D :Medico legal aspects of informed consent;Indian Journal of Forensic Medicine and
Toxicology,2007, Vol.1[1]:19-23

3. Kohli A:Medical consent in India-Ethical and legal issues;Anil Aggarwal’s Internet Journal of Forensic
Medicine and Toxicology,2007,vol.1[2],July-December,2007

4. Yadav M : Age of consent in medical profession;Journal of Indian Academy of Forensic

Medicine,2007,Vol.29[2]:80-85

5. Universal’s The code of criminal procedures, 1973 : Universal law publishing co. pvt. Ltd., Delhi : 34-35

6. Nandy A : Principles of Forensic Medicine,2nd ed.,2004; New Central Book Agency,2004 : 39-41

7. Parikh CK : Textbook of Medical Jurisprudence , Forensic Medicine and Toxicology,6th ed.,2007;CBS

Publishers and Distributors, Delhi : 1.36-1.39,2.12

8. Dogra TD, Rudra A : Lyon’s Medical Jurisprudence and Toxicology,11th ed.,2007;Delhi Law House, Delhi :
188-193