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and (iii) the patient has the minimum of adequate level of information
about the nature of the procedure to which he is consenting to. On the
other hand, the concept of ’informed consent’ developed by American
courts, while retaining the basic requirements consent, shifts the emphasis
to the doctor’s duty to disclose the necessary information to the patient to
secure his consent. ’Informed consent’ is defined in Taber’s Cyclopedic
Medical Dictionary thus :
"Consent that is given by a person after receipt of the following
information : the nature and purpose of the proposed procedure or
treatment; the expected outcome and the likelihood of success; the
risks; the alternatives to the procedure and supporting information
regarding those alternatives; and the effect of no treatment or
procedure, including the effect on the prognosis and the material risks
associated with no treatment. Also included are instructions concerning
what should be done if the procedure turns out to be harmful or
unsuccessful."
In Canterbury v. Spence - 1972 [464] Federal Reporter 2d. 772, the
United States Courts of appeals, District of Columbia Circuit, emphasized
the element of Doctor’s duty in ’informed consent’ thus:
"It is well established that the physician must seek and secure his
patient’s consent before commencing an operation or other course of
treatment. It is also clear that the consent, to be efficacious, must be
free from imposition upon the patient. It is the settled rule that therapy
not authorized by the patient may amount to a tort - a common law
battery - by the physician. And it is evident that it is normally
impossible to obtain a consent worthy of the name unless the physician
first elucidates the options and the perils for the patient’s edification.
Thus the physician has long borne a duty, on pain of liability for
unauthorized treatment, to make adequate disclosure to the patient."
[Emphasis supplied]
15. The basic principle in regard to patient’s consent may be traced to
the following classic statement by Justice Cardozo in Schoendorff vs.
Society of New York Hospital - (1914) 211 NY 125 :
’Every human being of adult years and sound mind has a right
to determine what should be done with his body; and a surgeon
who performs the operation without his patient’s consent,
commits an assault for which he is liable in damages."
This principle has been accepted by English court also. In Re : F. 1989(2)
All ER 545, the House of Lords while dealing with a case of sterilization
of a mental patient reiterated the fundamental principle that every
person’s body is inviolate and performance of a medical operation on a
person without his or her consent is unlawful. The English law on this
aspect is summarised thus in Principles of Medical Law (published by
Oxford University Press -- Second Edition, edited by Andrew Grubb,
Para 3.04, Page 133) :
"Any intentional touching of a person is unlawful and amounts
to the tort of battery unless it is justified by consent or other
lawful authority. In medical law, this means that a doctor may
only carry out a medical treatment or procedure which involves
contact with a patient if there exists a valid consent by the
patient (or another person authorized by law to consent on his
behalf) or if the touching is permitted notwithstanding the
absence of consent."
16. The next question is whether in an action for negligence/battery for
performance of an unauthorized surgical procedure, the Doctor can put
forth as defence the consent given for a particular operative procedure, as
consent for any additional or further operative procedures performed in
and (iii) the patient has the minimum of adequate level of information
about the nature of the procedure to which he is consenting to. On the
other hand, the concept of ’informed consent’ developed by American
courts, while retaining the basic requirements consent, shifts the emphasis
to the doctor’s duty to disclose the necessary information to the patient to
secure his consent. ’Informed consent’ is defined in Taber’s Cyclopedic
Medical Dictionary thus :
"Consent that is given by a person after receipt of the following
information : the nature and purpose of the proposed procedure or
treatment; the expected outcome and the likelihood of success; the
risks; the alternatives to the procedure and supporting information
regarding those alternatives; and the effect of no treatment or
procedure, including the effect on the prognosis and the material risks
associated with no treatment. Also included are instructions concerning
what should be done if the procedure turns out to be harmful or
unsuccessful."
In Canterbury v. Spence - 1972 [464] Federal Reporter 2d. 772, the
United States Courts of appeals, District of Columbia Circuit, emphasized
the element of Doctor’s duty in ’informed consent’ thus:
"It is well established that the physician must seek and secure his
patient’s consent before commencing an operation or other course of
treatment. It is also clear that the consent, to be efficacious, must be
free from imposition upon the patient. It is the settled rule that therapy
not authorized by the patient may amount to a tort - a common law
battery - by the physician. And it is evident that it is normally
impossible to obtain a consent worthy of the name unless the physician
first elucidates the options and the perils for the patient’s edification.
Thus the physician has long borne a duty, on pain of liability for
unauthorized treatment, to make adequate disclosure to the patient."
[Emphasis supplied]
15. The basic principle in regard to patient’s consent may be traced to
the following classic statement by Justice Cardozo in Schoendorff vs.
Society of New York Hospital - (1914) 211 NY 125 :
’Every human being of adult years and sound mind has a right
to determine what should be done with his body; and a surgeon
who performs the operation without his patient’s consent,
commits an assault for which he is liable in damages."
This principle has been accepted by English court also. In Re : F. 1989(2)
All ER 545, the House of Lords while dealing with a case of sterilization
of a mental patient reiterated the fundamental principle that every
person’s body is inviolate and performance of a medical operation on a
person without his or her consent is unlawful. The English law on this
aspect is summarised thus in Principles of Medical Law (published by
Oxford University Press -- Second Edition, edited by Andrew Grubb,
Para 3.04, Page 133) :
"Any intentional touching of a person is unlawful and amounts
to the tort of battery unless it is justified by consent or other
lawful authority. In medical law, this means that a doctor may
only carry out a medical treatment or procedure which involves
contact with a patient if there exists a valid consent by the
patient (or another person authorized by law to consent on his
behalf) or if the touching is permitted notwithstanding the
absence of consent."
16. The next question is whether in an action for negligence/battery for
performance of an unauthorized surgical procedure, the Doctor can put
forth as defence the consent given for a particular operative procedure, as
consent for any additional or further operative procedures performed in
