Law of Torts
Consent to Medical Treatment: Real and Valid Consent, the Duty to Warn, and Samira Kohli v. Dr. Prabha Manchanda
Consent is what makes lawful what would otherwise be a battery. A surgical incision without consent is a trespass to the person, however skilfully performed and however beneficial to the patient. The Supreme Court settled the Indian law in Samira Kohli v. Dr. Prabha Manchanda, (2008) 2 SCC 1, holding that real and valid consent requires capacity, voluntariness and adequate information, and that consent given for a diagnostic procedure is not consent for therapeutic treatment. Two distinct claims arise from consent: a claim in battery where there was no consent or the procedure went outside it, and a claim in negligence where consent was given but the material risks were not disclosed.
The three elements of real and valid consent, its scope, the emergency exception, and the two claims
1. Why Consent Matters
- Every person of sound mind has a right to determine what shall be done with his own body. That proposition is the foundation of the whole subject, and it is a right of autonomy rather than a rule about medicine.
- Touching a person without consent is a battery, and a surgical operation is a touching of the most serious kind.
- The doctor's good intentions are irrelevant to that. A procedure performed for the patient's benefit, competently and successfully, is still a trespass if it was not consented to.
- Consent is therefore a justification and not a formality, and a signed form is evidence of consent rather than consent itself.
2. Real and Valid Consent
📖 Samira Kohli v. Dr. Prabha Manchanda, (2008) 2 SCC 1 Facts The appellant, a forty four year old unmarried woman, consulted the respondent for prolonged menstrual bleeding. She signed a consent form for admission and for a diagnostic laparoscopy under general anaesthesia. While she was unconscious, the surgeon found endometriosis, sent word to the appellant's mother who was waiting outside, obtained her signature, and proceeded to remove the appellant's uterus and ovaries. The appellant, who was unmarried, was thereby rendered permanently incapable of bearing children. Held The removal was without real and valid consent and amounted to an unauthorised invasion of the appellant's body. Compensation was awarded. Ratio Real and valid consent requires three things: capacity, that the patient is competent to consent; voluntariness, that the consent is free of coercion; and adequate information, that the patient understands the nature of the procedure to which he is consenting. Consent given for a diagnostic procedure cannot be treated as consent for therapeutic treatment. The consent of a relative is not a substitute for the consent of a competent adult patient. An additional procedure is justified only where it is necessary to save the life or preserve the health of the patient and it would be unreasonable to delay it until the patient regains consciousness. |
3. The Three Elements
The element | What it requires | Where it fails |
Capacity | The patient must be competent: of sound mind, of the requisite age, and able to understand and weigh the information | A minor; a person unconscious or of unsound mind; a person so sedated as to be unable to decide |
Voluntariness | The consent must be free of coercion, undue influence or misrepresentation | Consent extracted under pressure, or obtained by concealing the true nature of the procedure |
Adequate information | The patient must understand the nature and purpose of the procedure | Where the patient was told he was consenting to something materially different |
4. The Scope of the Consent
- Consent to a diagnostic procedure is not consent to therapeutic treatment. That is the central holding of Samira Kohli and the point most often overlooked in practice.
- Consent to one procedure is not consent to another, even one the surgeon considers beneficial or more convenient to perform while the patient is already under anaesthesia.
- The consent of a relative is not a substitute where the patient is a competent adult. A spouse, parent or child cannot consent on his behalf.
- Exceeding the consent is a trespass, whatever the motive and however good the clinical outcome.
- The consent must be given before the procedure, by the patient himself, and it may be withdrawn at any time before or during it so far as withdrawal is practicable.
- A general consent form does not enlarge the scope. A form consenting to "such further procedures as may be found necessary" does not authorise a distinct operation that could have waited.
5. The Emergency Exception
- Necessity supplies the justification where the patient cannot consent and the treatment cannot be postponed.
- The test from Samira Kohli is that the additional procedure must be necessary to save the life or preserve the health of the patient, and it must be unreasonable to delay it until the patient regains consciousness.
- It is confined to what the emergency requires. Convenience, efficiency and the wish to avoid a second anaesthetic are not enough.
- A known refusal by a competent patient displaces it. Where the patient has, while competent, refused the treatment in question, necessity does not authorise giving it.
- The doctrine is the same one examined in TORT 021, and the difficulty is always whether the danger was real and imminent as matters stood at the time.
6. The Duty to Warn
- It is a distinct duty and a distinct claim. A failure to disclose the material risks of a procedure founds a claim in negligence, even where the treatment itself was faultlessly performed and the consent to the procedure was otherwise valid.
- What must be disclosed is the nature and purpose of the procedure, its material risks, and the alternatives, so that the patient's decision is an informed one.
- Causation is the obstacle. The patient must show that had he been warned he would have declined the procedure or deferred it, and a court will test that assertion against the probabilities.
- Samira Kohli adopted a standard of adequate information rather than the fuller doctrine of informed consent developed in some other jurisdictions, and treated the question of how much must be disclosed as governed by the standard of a reasonable practitioner.
- The duty is part of the broader duty of care, and is treated in TORT 039 as the fourth of the doctor's duties.
7. Battery or Negligence
Claim in battery | Claim in negligence | |
When it arises | No consent at all, or a procedure outside the consent given | Consent given, but material risks not disclosed |
What must be proved | The touching, and the absence or excess of consent | The failure to warn, and that the patient would have decided differently |
Damage | Not required. Trespass is actionable per se | Required. Negligence is never actionable per se |
Causation | Not in issue as to the trespass itself | The principal difficulty |
The example | Samira Kohli: a hysterectomy performed under a consent to a diagnostic laparoscopy | A properly consented operation whose known risk materialises and was never mentioned |
Limitation | The article applicable to trespass to the person | The article applicable to negligence |
8. Who May Consent
⚠ Consent by somebody other than the patient For a competent adult, nobody else can consent, and nobody else's refusal counts. That is the whole point of Samira Kohli: the mother's signature obtained while the patient was unconscious was worth nothing, because the patient herself was competent and could have been asked when she awoke. For a minor, a parent or guardian consents, subject to the growing recognition that an older minor may have capacity to decide for himself in some matters. For a person unable to decide, whether through unconsciousness or mental incapacity, the position is governed by necessity and, where applicable, by the statutory framework for persons with mental illness. And for a competent adult who has refused, the refusal stands: a doctor who treats him regardless commits a battery however plainly the treatment was in his interests. |
9. The Position Stated Shortly
1. Consent is what makes lawful what would otherwise be a battery, and a signed form is evidence of consent rather than consent itself.
2. Samira Kohli v. Dr. Prabha Manchanda holds that real and valid consent requires capacity, voluntariness and adequate information.
3. Consent given for a diagnostic procedure is not consent for therapeutic treatment.
4. Consent to one procedure is not consent to another, even a beneficial one performed while the patient is under anaesthesia.
5. The consent of a relative is not a substitute for the consent of a competent adult patient.
6. An additional procedure is justified only where necessary to save life or preserve health and it would be unreasonable to wait until the patient regains consciousness.
7. Necessity supplies the justification in an emergency, confined to what the emergency requires, and displaced by a known refusal.
8. A failure to disclose material risks founds a separate claim in negligence, in which the patient must show he would have decided differently.
9. A claim in battery needs no proof of damage; a claim in negligence for failure to warn does.
10. For a competent adult nobody else may consent, and a refusal by a competent adult stands however plainly the treatment would benefit him.