Beyond Consent: The Need for a Comprehensive Legal Framework for Informed Consent in Medical Treatment in India

Consent is an integral component of every medical treatment, whether therapeutic or surgical. More importantly, such consent must be informed. If a medical practitioner treats a patient without his/her consent then it will lead to trespass of body under tort and several other criminal laws for assault and battery. In rare cases, a patient's organs may be removed without valid consent. The answer of the following argument can be easily given by the Article 21 of the Indian Constitution, which clearly says that every person has the bodily autonomy. Consent reflects the right to autonomy each person has on his body. Taking an informed consent prior to every treatment is legally as well as ethically important. The exception only left with the cases of emergency. If a medical practitioner waits for the consent of patient in emergency or does not treat the patient in emergency situation giving the reason of lack of consent then the medical practitioner will be held legally as well ethically liable for the same. In other words, consent is not a mandate during the time of emergency cases, the only mandate at that time is patient’s life. National Medical Commission Registered Medical Practitioner (Professional Conduct) Regulations of 2019 talks about informed consent doctrine which is American in origin. A patient has the right to know every risk and benefit of the treatment, about his condition, timeline of the treatment, nature of the disease, nature of the treatment, situation of his body, side effects of the treatment, cost of the treatment, past experience of the doctor, including the other options he can opt to treat his disease. Information imparted makes a patient eligible to make a balanced decision whether he has to submit himself to the treatment or not. This article in its later phase will explain why India does need separate legislation for the consent in medical treatment.