CONSENT is the most controversial term in the field of Medico-Legal
Jurisprudence. Consent of the patient has an
immense practical importance to the clinicians. Doctors may do nothing to or
for a patient without valid consent. This principle is applicable not only to
surgical operations but also to all forms of medical treatment and to
diagnostic procedures that involve intentional interference with the person.
Given the volume of papers, treatises, and books on the subject of informed
consent, it will only be possible to broad brush most elements of the concept.
We have put most of comments, examples and cases as to how it affects medical
practitioners and patients.
The term “Consent” in itself is the most controversial
subject in Legal Jurisprudence. Consent is necessary for every medical examination,
which should be obtained in or in the presence of disinterested party. Barring
physical examination, any medical procedure requires written consent. Written
consent should refer to one specific procedure and not blanket permission on
admission to hospital. It is on the safer side to take the consent of spouse if
the operation destroys or limits sexual functions. While it is not legally
necessary it is good medical practice to consult with relatives of patient in
patient’s best interest and ones this has been established then doctor can
continue to give treatment in good faith. Consultation, consent and clinical
confidence will never put the doctor in tort fessors cases. In the era of
advancement of knowledge and technique the belief that as long as the patient
signs everything will be, well misguided, if the doctor is not having
reasonable care and skill.
It is also to be noticed that Consent and Medical Negligence are two different aspect which always conflict with each other.The Concept of Negligence with consent in Medical Jurisprudence and Negligence with consent in general sense is two different thing.Medical Jurisprudence had its hindrance with the former.Negligence with consent has to limit its scope so that it couldnot overlap with the private defence.
"Who knows better than the man himself as to what is irresistible to his body".
In general sense, The statement is appropriate.But in case of Medical Jurisprudence, this does not apply.
"Doctor knows better than the man about his internal skirmish".
This amounts create difference between Negligence with consent in Medico-Legal jurisprudence and Negligence with consent in other multi-disciplinary approach.
Hence,it is expedient to define “consent” in context
with its implication in the subject-matter.The Concept of Hedonism also plays a
major role in determining the consent of the parties involved in any kind of
deed.
Consent is fundamental and established principle in the
Indian law. Every person has the right to determine what shall be done to his
body. Self-defense of body (IPC sections 96 to 102, 104, 106) provides right to
the protection of bodily integrity against invasion by other. All medical
procedures, including examinations, diagnostic procedures and medical research
on patients potentially acts of bodily trespass or assault (IPC 351), in the
absence of consent or statutory sanction.3 Treatment and diagnosis cannot be
forced upon anyone who does not wish to receive them except in statutory
sanction.
In India at present legal cases concerning absence of
consent are rare. Such cases will increase in the coming years as medical
techniques become more advanced, complicated, medical care becomes more
widespread and level of awareness and education of population increases.