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the interests of the patient. In Murray vs. McMurchy - 1949 (2) DLR 442,
the Supreme Court of BC, Canada, was considering a claim for battery by
a patient who underwent a caesarian section. During the course of
caesarian section, the doctor found fibroid tumors in the patient’s uterus.
Being of the view that such tumours would be a danger in case of future
pregnancy, he performed a sterilization operation. The court upheld the
claim for damages for battery. It held that sterilization could not be
justified under the principle of necessity, as there was no immediate
threat or danger to the patient’s health or life and it would not have been
unreasonable to postpone the operation to secure the patient’s consent.
The fact that the doctor found it convenient to perform the sterilization
operation without consent as the patient was already under general
anaesthetic, was held to be not a valid defence. A somewhat similar view
was expressed by Courts of Appeal in England in Re : F. (supra). It was
held that the additional or further treatment which can be given (outside
the consented procedure) should be confined to only such treatment as is
necessary to meet the emergency, and as such needs to be carried out at
once and before the patient is likely to be in a position to make a decision
for himself. Lord Goff observed :
"Where, for example, a surgeon performs an operation without
his consent on a patient temporarily rendered unconscious in an
accident, he should do no more than is reasonably required, in
the best interests of the patient, before he recovers
consciousness. I can see no practical difficulty arising from this
requirement, which derives from the fact that the patient is
expected before long to regain consciousness and can then be
consulted about longer term measures."
The decision in Marshell vs. Curry - 1933 (3) DLR 260 decided by the
Supreme Court of NS, Canada, illustrates the exception to the rule, that
an unauthorized procedure may be justified if the patient’s medical
condition brooks no delay and warrants immediate action without
waiting for the patient to regain consciousness and take a decision for
himself. In that case the doctor discovered a grossly diseased testicle
while performing a hernia operation. As the doctor considered it to be
gangrenous, posing a threat to patient’s life and health, the doctor
removed it without consent, as a part of the hernia operation. An action
for battery was brought on the ground that the consent was for a hernia
operation and removal of testicle was not consent. The claim was
dismissed. The court was of the view that the doctor can act without the
consent of the patient where it is necessary to save the life or preserve the
health of the patient. Thus, the principle of necessity by which the doctor
is permitted to perform further or additional procedure (unauthorized) is
restricted to cases where the patient is temporarily incompetent (being
unconscious), to permit the procedure delaying of which would be
unreasonable because of the imminent danger to the life or health of the
patient.
17. It is quite possible that if the patient been conscious, and informed
about the need for the additional procedure, the patient might have agreed
to it. It may be that the additional procedure is beneficial and in the
interests of the patient. It may be that postponement of the additional
procedure (say removal of an organ) may require another surgery,
whereas removal of the affected organ during the initial diagnostic or
exploratory surgery, would save the patient from the pain and cost of a
second operation. Howsoever practical or convenient the reasons may be,
they are not relevant. What is relevant and of importance is the inviolable
nature of the patient’s right in regard to his body and his right to decide
whether he should undergo the particular treatment or surgery or not.
Therefore at the risk of repetition, we may add that unless the
unauthorized additional or further procedure is necessary in order to save
the life or preserve the health of the patient and it would be unreasonable
(as contrasted from being merely inconvenient) to delay the further
procedure until the patient regains consciousness and takes a decision, a
the interests of the patient. In Murray vs. McMurchy - 1949 (2) DLR 442,
the Supreme Court of BC, Canada, was considering a claim for battery by
a patient who underwent a caesarian section. During the course of
caesarian section, the doctor found fibroid tumors in the patient’s uterus.
Being of the view that such tumours would be a danger in case of future
pregnancy, he performed a sterilization operation. The court upheld the
claim for damages for battery. It held that sterilization could not be
justified under the principle of necessity, as there was no immediate
threat or danger to the patient’s health or life and it would not have been
unreasonable to postpone the operation to secure the patient’s consent.
The fact that the doctor found it convenient to perform the sterilization
operation without consent as the patient was already under general
anaesthetic, was held to be not a valid defence. A somewhat similar view
was expressed by Courts of Appeal in England in Re : F. (supra). It was
held that the additional or further treatment which can be given (outside
the consented procedure) should be confined to only such treatment as is
necessary to meet the emergency, and as such needs to be carried out at
once and before the patient is likely to be in a position to make a decision
for himself. Lord Goff observed :
"Where, for example, a surgeon performs an operation without
his consent on a patient temporarily rendered unconscious in an
accident, he should do no more than is reasonably required, in
the best interests of the patient, before he recovers
consciousness. I can see no practical difficulty arising from this
requirement, which derives from the fact that the patient is
expected before long to regain consciousness and can then be
consulted about longer term measures."
The decision in Marshell vs. Curry - 1933 (3) DLR 260 decided by the
Supreme Court of NS, Canada, illustrates the exception to the rule, that
an unauthorized procedure may be justified if the patient’s medical
condition brooks no delay and warrants immediate action without
waiting for the patient to regain consciousness and take a decision for
himself. In that case the doctor discovered a grossly diseased testicle
while performing a hernia operation. As the doctor considered it to be
gangrenous, posing a threat to patient’s life and health, the doctor
removed it without consent, as a part of the hernia operation. An action
for battery was brought on the ground that the consent was for a hernia
operation and removal of testicle was not consent. The claim was
dismissed. The court was of the view that the doctor can act without the
consent of the patient where it is necessary to save the life or preserve the
health of the patient. Thus, the principle of necessity by which the doctor
is permitted to perform further or additional procedure (unauthorized) is
restricted to cases where the patient is temporarily incompetent (being
unconscious), to permit the procedure delaying of which would be
unreasonable because of the imminent danger to the life or health of the
patient.
17. It is quite possible that if the patient been conscious, and informed
about the need for the additional procedure, the patient might have agreed
to it. It may be that the additional procedure is beneficial and in the
interests of the patient. It may be that postponement of the additional
procedure (say removal of an organ) may require another surgery,
whereas removal of the affected organ during the initial diagnostic or
exploratory surgery, would save the patient from the pain and cost of a
second operation. Howsoever practical or convenient the reasons may be,
they are not relevant. What is relevant and of importance is the inviolable
nature of the patient’s right in regard to his body and his right to decide
whether he should undergo the particular treatment or surgery or not.
Therefore at the risk of repetition, we may add that unless the
unauthorized additional or further procedure is necessary in order to save
the life or preserve the health of the patient and it would be unreasonable
(as contrasted from being merely inconvenient) to delay the further
procedure until the patient regains consciousness and takes a decision, a
