Medicolegal Problems Involving Consent

MEDICOLEGAL PROBLEMS INVOLVING CONSENT

The consent of a patient is necessary for all diagnostic and therapeutic procedures, particularly those which are invasive or risky in nature.* Undertaking such procedures without consent having been obtained first can amount to an assault in the legal sense, even if done for the benefit of the patient unless extenuating circumstances exist.

A patient who has deliberately consumed a poisonous substance or overdosed on a therapeutic drug, is likely to be uncooperative and may resist all efforts at treating him. The attending physician may then be uncertain as to the legal implications of forcing treatment on the patient who may even threaten the doctor with a law suit if therapeutic procedures are forcefully carried out. It is however a fact that a patient who attempts suicide has lost the right to refuse treatment, and no court has so far upheld a patient’s complaint of “forced treatment” in such circumstances. It is also true that in many such cases of toxic ingestions, the patient can be declared “not rational” enough to refuse treatment on account of depression or disturbance of mental functions which can be deemed to impair judgement. On the other hand, a physician may become liable for negligence if he does not do what is medically indicated.

There are times however, such as in a wildly agitated or extremely uncooperative patient, when overzealous attempts to remove a poison or drug overdose may place the patient at greater risk of physical harm than the ingestion itself. In such cases, the patient should be observed or partially restrained until cooperation or lethargy ensues. But if the patient has ingested an imminently life-threatening poison, then no effortshould be spared in restraining the patient physically or even pharmacologically if necessary, in order to eliminate the toxin before it exerts its harmful effect.

In the case of a comatose patient, consent must be obtained from the next of kin. However, if it is an emergency and consent is being refused on unreasonable grounds, the physician can go ahead with the necessary treatment even in the absence of consent. In such cases, the court will always uphold his deci-sion if it comes to a legal action, since it was made in good faith with the well being of the patient as the prime consideration. Special problems arise when medical examination is requested to be done on a person who is alleged to be drunk, in order to ascertain as to whether the allegation is true. This may be with reference to offences such as disorderly behaviour in public, rash driving, or commission of assault. Even if the individual concerned consents to examination, the question arises as to how valid it is, since if at the conclusion of the examination the doctor is of the opinion that the individual was intoxicated, then such consent becomes invalid because of the legal presumption that a person under the influence of alcohol is not in a fit enough mental state (Section 90 IPC).

It is pertinent to note that if an accused person has been arrested and then brought for examination where it can be reasonably believed that such examination can afford valuable evidence as to the commission of an offence, it is not necessary for consent to be obtained from the individual. Medical exami-nation can be caried out in such cases on the basis of a request made by a police officer not below the rank of a Sub-Inspector (Section 53 CrPC). Even “reasonable” force can be used to accomplish the examination, which can also include the collec-tion of blood or urine sample for analysis. However, if the person to be examined is a woman, the examination should be conducted by or under the supervision of a lady doctor.