Apex Law Journal
Apex Law Journal
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Neha Goel, Advocate

Advisory Board

S.C. Khunger, Advocate

Rohit Bansal, Advocate

Varinder Singh Kanwar, Advocate

Hittan Nehra, Advocate

Judgments on Medical Law

Friday, February 01, 2008
Medical Law

Medical Law — When a patient consults a medical practitioner, whether consent given for diagnostic surgery, can be construed as consent for performing additional or further surgical procedure–either as conservative treatment or as radical treatment–without the specific consent for such additional or further surgery — Held, no — In Medical Law, where a surgeon is consulted by a patient, and consent of the patient is taken for diagnostic procedure/surgery, such consent cannot be considered as authorisation or permission to perform therapeutic surgery either conservative or radical (except in life threatening or emergent situations) — Similarly where the consent by the patient is for a particular operative surgery, it cannot be treated as consent for an unauthorized additional procedure involving removal of an organ, only on the ground that such removal is beneficial to the patient or is likely to prevent some danger developing in future, where there is no imminent danger to the life or health of the patient.    


Medical Law

Medical Law — Nature and extent of information to be furnished by the doctor to the patient to secure the consent — Held, to nurture the doctor-patient relationship on the basis of trust, the extent and nature of information required to be given by doctors should continue to be governed by the Bolam test rather than the ‘reasonably prudential patient’ test evolved in Canterbury — It is for the doctor to decide, with reference to the condition of the patient, nature of illness, and the prevailing established practices, how much information regarding risks and consequences should be given to the patients, and how they should be couched, having the best interests of the patient.

Medical Law

Medical Law — Consent of the patient before commencing a treatment — Held, 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 is consenting to.

Medical Law

Medical Law — ‘Adequate information’ to be furnished by the doctor — Meaning of — Held, the ‘adequate information’ to be furnished by the doctor (or a member of his team) who treats the patient, should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment or not — This means that the Doctor should disclose (a) nature and procedure of the treatment and its purpose, benefits and effect; (b) alternatives if any available; (c) an outline of the substantial risks; and (d) adverse consequences of refusing treatment — But there is no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment — Similarly, there is no need to explain the remote or theoretical risks of refusal to take treatment which may persuade a patient to undergo a fanciful or unnecessary treatment — A balance should be achieved between the need for disclosing necessary and adequate information and at the same time avoid the possibility of the patient being deterred from agreeing to a necessary treatment or offering to undergo anunnecessary treatment.     

Medical Law

Medical Law — Common consent for diagnostic and operative procedures — Held, there can be a common consent for diagnostic and operative procedures where they are contemplated — There can also be a common consent for a particular surgical procedure and an additional or further procedure that may become necessary during the course of surgery.

Medical Law

Medical Law — Consent form, in the present case, refers to diagnostic and operative laparoscopy and "laparotomy if needed" — Held, it refers to a consent for a definite laparoscopy with a contingent laparotomy if needed — It does not amount to consent for OH-BSO surgery removing the uterus and ovaries/fallopian tubes — If the appellant had consented for a OH-BSO then the consent form would have given consent for "diagnostic and operative laparoscopy — Laparotomy, hysterectomy and bilateral salpingo-oopherectomy, if needed."

Medical Law

Medical Law — The correctness or appropriateness of the treatment procedure, held, does not make the treatment legal, in the absence of consent for the treatment.

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