CONSENT BEFORE MEDICAL EXAMINATION

AND SURGICAL OPERATION

INTRODUCTION

The law relating to consent is fundamental to medical law, which is an

important aspect of medical jurisprudence. Generally, the legality of medical
treatment depends on whether or not the patient has given a valid consent to
it. The requirement of consent in medical law has come from the principle of
autonomy, which is regarded as more important than the doctor-patient
relationship. It is, in fact, the notion of respect for person’s bodily integrity,
which has its origin in the right of self-determination. (Malette v Shulman
(1990)) It is now a long established fundamental principle that every person’s
body is inviolate.

Courts often express their legal stand by adopting the famous words of
Cardozo J in Schloendorff v Society of New York Hospital (1914):

‘Every human being of adult years and sound mind has a right
to determine what shall be done with her body; and a surgeon
who performs an operation without his patient’s consent
commits as assault, for which he is liable in damages.’

Treatment against the wishes of a competent patient could violate the right
under Article 5 the Universal Declaration of Human Rights 1948, the right to
freedom form inhuman or degrading treatment. The patient’s right of
‘physical integrity’ is also an aspect of the right to respect for private life
protected by Article 8 of the European Convention on Human Rights 1950.

In law, treatment without consent may be tantamount to the tort of battery,

which involves the intentional application of personal contact to the person
without consent or other lawful justification (Faulkner v Talbot (1981)) or may
amount to the crime of criminal assault under the Penal Code, 1860, which
requires the apprehension of criminal force. This follows that a doctor may
only give a medical treatment if the patient or another person authorised by
law to consent on his behalf give a valid consent or if the touching is
permitted or if the touching is permitted despite the absence of consent.

MEANING OF CONSENT

The dictionary meaning of the word ‘consent’ is to give permission for

something to happen. Section 13 of the Contract Act, 1872 defines the word by
saying that two or more persons are said to consent when they agree upon the
same thing in the same sense.

The consent may be express or implied but it must be a free consent, i.e.
without force, fear or fraud. It must also be a valid consent, i.e. a free consent
given by a legally competent person. A ‘consent’ is express when it is given

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orally or in writing. It is implied where it can be shown from circumstances
that, the party concerned was willing.

Section 90 of the Penal Code, 1860 excludes consent given under fear of injury
or under misconception of fact. It also excludes consent of a person of
unsound mind, of person under intoxication and of a child below 12 years of
age.

TREATMENT WITHOUT CONSENT IN TORT

Battery

In tort, treatment without consent may be tantamount to battery. According

to Winfield, battery is the intentional and direct application of force to
another person without lawful justification.

Main Elements of Battery

1. Force
Even if the force used is trivial, the least touching of a person in anger is a
battery (Cole v Turner (1704)). In this case, C and D met in a narrow passage
and D touched C in ager. In Callis v Gunn (1964) it was held that wrongly
taking a person’s fingerprints could be a battery. Throwing water at the
claimant – although not at clothes she is wearing – is a battery (Pursell v Horn
(1838)). Moreover, striking A and causing injury to B can amount to a battery
to B (Haystead v Chief Constable of Derbyshire (2000)).

2. Voluntary act, not omission

As with assault, it has long been said that for a battery, there must be a
voluntary action by the defendant. Battery (like assault) could not be
committed by omission. In Fagan v MPC (1969), the defendant accidentally
drove his car onto a policeman’s foot but, despite repeated requests, refused
to remove it. It was held that there was a battery but not merely by omission.
The defendant’s conduct, from accidentally driving on to the policeman’s foot
to refusing to move, was a continuing act. He was still ‘acting’ at the time he
formed the necessary intention for battery, i.e. when he refused to remove the
car.

Therefore, in order to be guilty of battery, the defendant’s conduct must be

voluntary and it must be proved on balance of probabilities that the
defendant intended to bring about contact.

3. Ordinary touching in the course of daily life is not battery

Ordinary touching in the course of daily life is not battery (Collins v Wilcock
(1984)). In Wilson v Pringle (1986), it was suggested that touching must be
‘hostile’ to amount to a battery. However, in Re F (Mental Patient Sterilization)
(1990), the court doubted whether the term ‘hostile’ connoted anything more
than contact beyond that which is ordinarily acceptable in everyday life,
saying:

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 ‘A prank that gets out of hand, an over-friendly slap on the
back, surgical treatment by a surgeon who mistakenly thinks
that the patient has consented to it, all these things may
transcend the bounds of lawfulness, without being
characterised as hostile.’

4. Mistaken Belief that it is lawful is irrelevant

If the contact is intentional and direct, a mistaken belief that it is lawful is
irrelevant. In Poland v. John Parr and Sons (1927) where an employee thought
he saw a boy stealing sugar from his employer’s cart and attacked the boy,
there was a battery.

In order to treat a patient, a doctor needs a defence called ‘flak jacket’. These
flakes jackets are: (1) the consent of the patient; (2) the consent of another
person who is authorised to consent on the patient’s behalf; (3) the defence of
necessity. It can be said that with these flake jackets, doctor can treat a
competent person even without his authority, which would otherwise be
unlawful. Consent to treatment is legally valid if it is:

(i) made by a person with capacity,

(ii) real, i.e. based upon adequate information
(iii) voluntary and not made under undue influence of another.

TREATMENT WITHOUT CONSENT IN CRIMINAL LAW

Section 87 of the Penal Code 1860 provides that nothing which is not intended
to cause death, or grievous hurt, and which is not known by the doer to be
likely to cause death, or grievous hurt, is an offence by reason of any harm
which it may cause, or be intended by the doer to cause, to any person, above
eighteen years of age, who has given consent, whether express or implied, to
suffer that harm; or by reason of any harm which it may be known by the
doer to be likely to cause to any such person who has consented to take the
risk of that harm.

Illustration
A and Z agree to fence with each other for amusement. This agreement
implies the consent of each to suffer any harm which in the course of such
fencing, may be caused without foul play; and if A, while playing fairly, hurts
Z, A commits no offence.

Section 88 of the Penal Code provides that nothing, which is not intended to
cause death, is an offence by reason of any harm which it may cause, or be
intended by the doer to cause, or be known by the doer to be likely to cause,
to any person for whose benefit it is done in good faith, and who has given a
consent, whether express or implied, to suffer that harm, or to take the risk of
that harm.

Illustration
A, a surgeon, knowing that a particular operation is likely to cause the death
of Z, who suffers under the painful complaint, but not intending to cause Z's

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death, and intending, in good faith Z's benefit, performs that operation on Z,
with Z's consent. A has committed no offence.

Section 89 of the Penal Code provides that nothing which is done in good
faith for the benefit of a person under twelve years of age, or of unsound
mind, by or by consent, either express or implied, of the guardian or other
person having lawful charge of that person, is an offence by reason of any
harm which it may cause, or be intended by the doer to cause or be known by
the doer to be likely to cause to that person, provided that –

Firstly, this exception shall not extend to the intentional causing of death, or to
the attempting to cause death;

Secondly, this exception shall not extend to the doing of anything which the
person doing it knows to be likely to cause death, for any purpose other than
the preventing of death or grievous hurt; or the curing of any grievous
disease or infirmity;

Thirdly, this exception shall not extent to the voluntary causing of grievous
hurt, or to the attempting to cause grievous hurt, unless it be for the purpose
of preventing death or grievous hurt, or the curing of any grievous disease or
infirmity;

Fourthly, this exception shall not extend to the abetment of any offence, to the
committing of which offence it would not extend.

Illustration
A, in good faith, for his child's benefit without his child's consent, has his
child cut for the stone by a surgeon, knowing it to be likely that the operation
will cause the child's death, but not intending to cause the child's death. A is
within the exception, inasmuch as his object was the cure of the child.

Section 92 of the Penal Code provides that nothing is an offence by reason of

any harm which it may cause to a person for whose benefit it is done in good
faith, even without that person's consent, if the circumstances are such that it
is impossible for that person to signify consent, or if that person is incapable
of giving consent, and has no guardian or other person in lawful charge of
him from whom it is possible to obtain consent in time for the thing to be
done with benefit: Provided –

Firstly. – That this exception shall not extend to the intentional causing of
death, or the attempting to cause death;

Secondly. – That this exception shall not extend to the doing of anything which
the person doing it knows to be likely to cause death, for any purpose other
than the preventing of death or grievous hurt, or the curing of any grievous
disease or infirmity;

Thirdly. – That this exception shall not extend to the voluntary causing of hurt,
or to the attempting to cause hurt, for any purpose other than the preventing
of death or hurt;

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Fourthly. – That this exception shall not extend to the abetment of any offence,
to the committing of which offence it would not extend.

Illustration
A, a surgeon, sees a child suffer an accident which is likely to prove fatal
unless an operation be immediately performed. There is no time to apply to
the child's guardian. A performs the operation in spite of the entreaties of the
child, intending, in good faith, the child's benefit. A has committed no offence.