Informed Consent: the Indian Standard

In one line

India measures disclosure by what a responsible body of doctors would tell a patient, not by what the patient would want to know, and it declined the stricter test on purpose.

In the wording a student can write in an exam: the Indian standard of consent is stated in Samira Kohli v. Dr. Prabha Manchanda, which requires consent that is real and valid, meaning given by a patient with capacity and competence, given voluntarily, and given on the basis of adequate information concerning the nature of the treatment procedure; and which fixes the extent of disclosure by a professional standard, being that accepted as normal and proper by a body of medical men skilled and experienced in the particular field, expressly declining the more demanding patient-centred standard of Canterbury.

Why the law has this at all

Every legal system that requires informed consent must answer one question: how much must be disclosed? Two answers are possible and they lead to different results in the same case.

The professional standard. Disclose what a responsible body of practitioners would disclose. Its merit is that it is workable and reflects clinical judgment; its defect is that it lets the profession set the limits of a patient's right.

The patient-centred standard. Disclose what a reasonable patient in the claimant's position would want to know. Its merit is that it locates the standard in the right of the person; its defect is uncertainty for the practitioner and hindsight in the courtroom.

India chose the first, with qualifications, and the choice is deliberate and reasoned rather than accidental. A candidate who knows that India rejected Canterbury in terms, and can say why, is answering the question actually asked.

The case

Samira Kohli v. Dr. Prabha Manchanda, AIR 2008 SC 1385, (2008) 2 SCC 1.

The five principles

The Court summarised the principles relating to consent, and they should be learnt in this order because the fifth is the answer to the question the chapter poses.

(i) Real and valid consent

A doctor has to seek and secure the consent of the patient before commencing a treatment, the term treatment including surgery. The consent obtained should be real and valid, which means that the patient should have the capacity and competence to consent; the consent should be voluntary; and it should be on the basis of adequate information concerning the nature of the treatment procedure, so that the patient knows what they are consenting to.

(ii) What "adequate information" means

The adequate information to be furnished by the doctor, or a member of the team, should enable the patient to make a balanced judgment as to whether to submit to the treatment. The doctor should disclose: