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that the professional men possessing a minimum degree of competence
would exercise reasonable care in the discharge of their duties while
giving advice or treatment.
31. There is a need to keep the cost of treatment within affordable
limits. Bringing in the American concepts and standards of treatment
procedures and disclosure of risks, consequences and choices will
inevitably bring in higher cost-structure of American medical care.
Patients in India cannot afford them. People in India still have great
regard and respect for Doctors. The Members of medical profession have
also, by and large, shown care and concern for the patients. There is an
atmosphere of trust and implicit faith in the advice given by the Doctor.
The India psyche rarely questions or challenges the medical advice.
Having regard to the conditions obtaining in India, as also the settled and
recognized practices of medical fraternity in India, we are of the view that
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. A doctor cannot be held
negligent either in regard to diagnosis or treatment or in disclosing the
risks involved in a particular surgical procedure or treatment, if the doctor
has acted with normal care, in accordance with a recognised practices
accepted as proper by a responsible body of medical men skilled in that
particular field, even though there may be a body of opinion that takes a
contrary view. Where there are more than one recognized school of
established medical practice, it is not negligence for a doctor to follow
any one of those practices, in preference to the others.
32. We may now summarize principles relating to consent as follows :
(i) 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.
(ii) 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 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 an unnecessary treatment.
(iii) Consent given only for a diagnostic procedure, cannot be
considered as consent for therapeutic treatment. Consent given for
a specific treatment procedure will not be valid for conducting
some other treatment procedure. The fact that the unauthorized
that the professional men possessing a minimum degree of competence
would exercise reasonable care in the discharge of their duties while
giving advice or treatment.
31. There is a need to keep the cost of treatment within affordable
limits. Bringing in the American concepts and standards of treatment
procedures and disclosure of risks, consequences and choices will
inevitably bring in higher cost-structure of American medical care.
Patients in India cannot afford them. People in India still have great
regard and respect for Doctors. The Members of medical profession have
also, by and large, shown care and concern for the patients. There is an
atmosphere of trust and implicit faith in the advice given by the Doctor.
The India psyche rarely questions or challenges the medical advice.
Having regard to the conditions obtaining in India, as also the settled and
recognized practices of medical fraternity in India, we are of the view that
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. A doctor cannot be held
negligent either in regard to diagnosis or treatment or in disclosing the
risks involved in a particular surgical procedure or treatment, if the doctor
has acted with normal care, in accordance with a recognised practices
accepted as proper by a responsible body of medical men skilled in that
particular field, even though there may be a body of opinion that takes a
contrary view. Where there are more than one recognized school of
established medical practice, it is not negligence for a doctor to follow
any one of those practices, in preference to the others.
32. We may now summarize principles relating to consent as follows :
(i) 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.
(ii) 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 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 an unnecessary treatment.
(iii) Consent given only for a diagnostic procedure, cannot be
considered as consent for therapeutic treatment. Consent given for
a specific treatment procedure will not be valid for conducting
some other treatment procedure. The fact that the unauthorized
