Barriers to Obtaining Informed Consent among Children and the Mentally Ill in India

Informed consent lies at the intersection of medical ethics and law, yet it becomes difficult to apply for patients whose capacity to decide is doubtful. This paper examines the barriers to obtaining valid consent from two such groups in India — the mentally ill and children. It traces the evolution of consent from medical paternalism to mandatory disclosure, drawing on the Nuremberg Code, the Declaration of Helsinki and leading common law decisions. It then analyses the Indian position, including the Mental Healthcare Act, 2017, which presumes capacity in persons with mental illness, and the Medical Council of India Regulations and Samira Kohli, which place consent for minors in the hands of parents or guardians. The paper finds that India law has not adopted the “mature minor” standard from Gillick, leaving little room for a minor’s own opinion. It recommends tailoring the consent process to a patient’s specific deficits and giving effect to the choices of mature minors, so that autonomy is protected in practice.