Consent in medical and medico-legal practice

Section 1Meaning and legal basis

What consent is, where the law gets the idea from, and what happens to the doctor who acts without it.

1.1Definition

Consent is the voluntary agreement, compliance or permission given by a person who has the capacity to give it, to an act proposed by another. In medicine it is the patient's permission for a specific examination, investigation, procedure or treatment, given after being told what it involves.

1.2Where the concept comes from

• Contract law. Indian Contract Act 1872, S 13 — two persons consent when they agree upon the same thing in the same sense (consensus ad idem). S 14 — consent is free when it is not caused by coercion, undue influence, fraud, misrepresentation or mistake.
• Law of torts. Touching another person without lawful justification is battery. Consent is the justification.
• Criminal law. Consent operates as a general exception under BNS S 25 to BNS S 33, converting what would be hurt, grievous hurt or assault into a lawful act.
• Constitutional law. Article 21 — personal liberty read to include bodily integrity and medical self-determination (K S Puttaswamy v Union of India, 2017).

The maxims worth quoting

• Volenti non fit injuria — to a willing person, no injury is done.
• Voluntas aegroti suprema lex — the patient's will is the highest law. It has replaced the older paternalistic salus aegroti suprema lex, the patient's welfare is the highest law.
• Nemo est supra leges — nobody is above the law, including the treating doctor.

"Every human being of adult years and sound mind has a right to determine what shall be done with his own body." — Cardozo J, Schloendorff v Society of New York Hospital (1914)

1.3Why the doctor needs consent

1. It respects patient autonomy — the ethical foundation.
2. It makes an otherwise criminal act lawful — the legal foundation.
3. It is a professional duty under the NMC Registered Medical Practitioner (Professional Conduct) Regulations, 2023, which replaced the MCI Code of Ethics Regulations 2002 (whose Regulation 7.16 required written consent before an operation).
4. It is the basis of the doctor–patient contract and the first defence in any negligence suit.
5. It protects the doctor from allegations of assault, molestation and unnecessary surgery.

1.4Consequences of acting without consent

1.5When you may proceed without consent

• Emergency, where the patient cannot signify consent and no guardian can be reached in time — BNS S 30.
• Statutory compulsion — examination of an accused at police request BNSS S 51, BNSS S 52; medico-legal autopsy on requisition BNSS S 194; notifiable disease reporting; court-ordered examination.
• Public health — Epidemic Diseases Act 1897 and State epidemic regulations.

Section 2Types of consent

Classified by how it is expressed, by who gives it, and by how far it stretches.

2.1By the way it is expressed

Implied (tacit) consent

Inferred from the patient's conduct — walking into the clinic, sitting down, rolling up a sleeve for blood pressure, opening the mouth, lying on the couch. It is the commonest form in practice and needs no writing.

• Covers routine, non-invasive examination only: inspection, palpation, percussion, auscultation, pulse, blood pressure, temperature.
• Does not cover any procedure, any invasive act, intimate examination, or anything with material risk.

Express consent

• Oral — adequate for minor procedures such as venepuncture, dressing, injection, or a per-rectal examination. Legally as valid as written consent but far harder to prove; therefore record it in the notes and take it before a witness.
• Written — required for operations, general and regional anaesthesia, invasive and risky procedures, blood transfusion, and all medico-legal work. Its value is evidentiary.

2.2By who gives it

2.3By how far it stretches

• Informed consent — the legal standard for any procedure. Section 4 deals with it in full.
• Specific consent — for one named procedure. A different or additional procedure needs a fresh consent.
• Blanket consent — the "I agree to any treatment considered necessary" line on the admission form. It has no value as consent for a specific procedure. It is the classic examination trap and a frequent reason cases are lost.
• Layered consent — used in sexual-assault examination: written consent taken separately for (1) the examination, (2) collection of samples, and (3) intimation to the police. Each may be declined independently, and treatment proceeds regardless.

2.4Other recognised forms

• Research consent — written, before an impartial witness, with audio-video recording where required (New Drugs and Clinical Trials Rules, 2019).
• Telemedicine consent — implied when the patient initiates the consultation; explicit when a health worker or caregiver initiates it (Telemedicine Practice Guidelines, 2020).
• Consent for teaching, photography and publication — always separate from consent for treatment.

Section 3Essentials of a valid consent

Four pillars — F I C S — and three riders that decide cases in court.

3.1Free

Given voluntarily, without coercion, undue influence, fraud, misrepresentation or threat. Consent given under fear of injury or under a misconception of fact is not consent — BNS S 28 — where the person doing the act knows, or has reason to believe, that this is why it was given.

Settings where voluntariness quietly fails: custodial and police-accompanied patients, employer- or insurance-directed examinations, and family pressure, particularly on women and on the elderly.

3.2Informed

The patient must know what is being proposed and what it may cost them. The content of disclosure is set out in Section 4.1.

3.3Competent

The person must have both legal capacity (age) and mental capacity (sound mind). Consent by a person who, from mental illness or intoxication, is unable to understand the nature and consequence of what is proposed is void — BNS S 28. Section 5 deals with capacity in full.

3.4Specific

Consent covers the named procedure and nothing else. A further or different procedure needs fresh consent — Samira Kohli v Dr Prabha Manchanda (2008). The only exception is a finding that would be immediately life-threatening if left untreated.

3.5The three riders

• Documented — written, dated, timed, signed by the patient, the doctor and a disinterested witness, and filed with the record.
• Current — taken before the act, never after; renewed if there is a long delay or if the plan changes. Never after premedication and never on the operating table.
• Revocable — the patient may withdraw consent at any time, including during a procedure where it is safe to stop. Document the withdrawal as carefully as the consent.

Section 4Informed consent

What must be disclosed, how much, which standard India follows, and the case you must be able to narrate.

4.1What must be disclosed

4.2How much must be disclosed — the competing standards

4.3Samira Kohli v Dr Prabha Manchanda (2008) 2 SCC 1

1. Consent was taken for a diagnostic laparoscopy for prolonged menstrual bleeding.
2. Under general anaesthesia, the surgeon proceeded to an abdominal hysterectomy with bilateral salpingo-oophorectomy.
3. Consent for the larger operation was taken from the patient's mother while the patient was unconscious. Held invalid.
4. Consent for a diagnostic procedure is not consent for therapeutic surgery.
5. A further procedure during surgery is lawful only where delay would be life-threatening, not merely inconvenient or economical.
6. Compensation was awarded. The judgment is now the standard Indian statement of the law of medical consent.

4.4Battery or negligence — keep them apart

4.5Recognised limits on disclosure

• Therapeutic privilege — withholding information whose disclosure would itself cause the patient grave harm. Narrow, exceptional, and it must be reasoned in the notes.
• Patient waiver — "doctor, you decide". Valid, but record that full information was offered and declined.
• Emergency — necessity displaces disclosure for as long as the emergency lasts.

Section 5Age, capacity and who consents

Three numbers carry most of the marks. Keep them apart from the ages of criminal responsibility.

5.1Age thresholds

5.2Mental capacity

Capacity is decision-specific and time-specific. A patient may lack capacity for a major operation at 2 a.m. in pain and have it at 10 a.m. the next morning.

• The BNS uses "mental illness", which takes its meaning from the Mental Healthcare Act 2017 — BNS S 2(19). The IPC words "insane" and "unsound mind" have been abandoned.

Mental Healthcare Act 2017

The Act rebuilt consent in psychiatry around one principle: a person with mental illness is presumed to have the capacity to decide, and loses the right to decide only when, and only for as long as, capacity is actually absent. Substitute decision-making by the treating team is replaced by three devices — the advance directive, the nominated representative, and supported admission.

• Capacity (Section 4). What is tested is function, never the label. A person has capacity if they can understand the information bearing on the decision, appreciate the reasonably foreseeable consequences of deciding or not deciding, and communicate the decision by any means. How the illness is classified does not enter into it — a diagnosis of schizophrenia does not by itself mean incapacity.
• Presumption of capacity. Every adult is presumed capable until the contrary is shown. Capacity is decision-specific and time-specific; it is assessed afresh for each decision and reviewed as the person's state changes.
• Advance directive (Section 5). Every person who is not a minor may make a written advance directive stating how they wish to be cared for and treated for a mental illness, how they wish not to be treated, and who they appoint as nominated representative, in order of precedence. Neither a history of mental illness nor of treatment bars a person from making one. Two limits matter: a choice made while capacitous overrides anything directed earlier (S 5(4)), and the directive does not apply to emergency treatment (S 9). The treating professional has a statutory duty to follow a valid directive (S 10).
• Nominated representative (Section 14). The person may appoint a representative to support their decisions when capacity is lost. Where none is appointed, the Act sets a fixed order — the person named in the advance directive, then a relative, then a caregiver, then a person appointed by the Mental Health Review Board, and last the Director of Social Welfare. The role is to give effect to the person's own will and preference; they decide for the person only where capacity is absent.
• Consent to treatment. Free and informed consent of the patient is the rule. Where a supported patient needs near-total support, the nominated representative may temporarily consent to the treatment plan on the person's behalf; that consent is recorded and capacity is reviewed every fortnight.
• Admission. Independent admission (Sections 85–86) is for a person who has capacity and seeks admission — they may leave at will. Supported admission (Sections 89 and 90) applies only when capacity is absent and the person has recently threatened or attempted harm to themselves, behaved violently, or shown an inability to care for themselves, and two psychiatrists certify that admission is the least restrictive option available. Capacity is then reviewed at least every seven days under Section 89 and by the end of each fortnight under Section 90.
• Other safeguards. ECT only with anaesthesia and muscle relaxants; prohibited for a minor without Review Board permission. Section 115 presumes severe stress behind an attempt at suicide and takes the attempt out of prosecution and punishment.
• Intellectual disability is not the same as absence of capacity — Suchita Srivastava v Chandigarh Administration (2009), where the Supreme Court insisted on the woman's own consent to continue her pregnancy.

5.3Who counts as the guardian

1. Parents.
2. Failing them, the person having lawful charge of the child.
3. Loco parentis where the child is away from the parents.
4. For an incompetent adult, the nearest available relative. This is a courtesy consent: it supports, but does not replace, the doctor's duty to act in the patient's best interest under BNS S 30.
5. The court or Magistrate where there is a dispute, or where a guardian's refusal endangers the child's life.

Section 6BNS 2023 — consent as a general exception

Chapter III, Sections 25 to 33. These are the provisions that make lawful surgery possible. Learn them by their illustrations.

6.1BNS S 25 — harm suffered by consent (IPC 87)

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 it may cause to a person above eighteen years who has consented, expressly or impliedly, to suffer that harm or to take the risk of it.

• Illustration. A and Z agree to fence with each other for amusement. If A, playing fairly, hurts Z, A commits no offence.
• Application. Contact sports, boxing, wrestling, ear piercing, tattooing, cosmetic minor procedures.
• Limits. Age is fixed at 18. Death and grievous hurt are outside it.

6.2BNS S 26 — the doctor's section (IPC 88)

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

• Illustration. A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers from a painful complaint, but not intending Z's death and intending in good faith Z's benefit, performs the operation with Z's consent. A commits no offence.
• Note the contrast with S 25. Here there is no age limit in the section itself, and grievous hurt is covered; only intentional causing of death is excluded.
• Application. Every surgical operation, amputation, chemotherapy, high-risk anaesthesia.

6.3BNS S 27 — child under twelve or person with mental illness (IPC 89)

Nothing done in good faith for the benefit of a person under twelve years of age, or a person with mental illness, by or with the consent, express or implied, of the guardian or other person having lawful charge, is an offence by reason of harm caused to that person.

Four provisos — the exception does not extend to

1. Intentional causing of death, or attempting to cause death.
2. Anything the doer knows to be likely to cause death, for any purpose other than preventing death or grievous hurt, or curing a grievous disease or infirmity.
3. Voluntarily causing grievous hurt, or attempting it, unless for those same purposes.
4. Abetment of any offence to which the exception would not itself extend.

Illustration. A, in good faith and for his child's benefit but without the child's consent, has the child cut for the stone by a surgeon, knowing the operation may cause death but not intending it. A is within the exception, because his object was the cure of the child.

6.4BNS S 28 — when consent is not consent (IPC 90)

A consent is not the consent intended by any section of the Sanhita —

1. if given under fear of injury, or under a misconception of fact, and the person doing the act knows, or has reason to believe, that it was given in consequence of that fear or misconception; or
2. if given by a person who, from mental illness or intoxication, is unable to understand the nature and consequence of that to which he consents; or
3. unless the contrary appears from the context, if given by a person under twelve years of age.

6.5BNS S 29 — acts that are offences independently of harm (IPC 91)

The consent exceptions do not extend to acts which are offences independently of any harm they may cause to the person giving the consent.

Illustration. Causing miscarriage, unless done in good faith to save the woman's life, is an offence independently of any harm to her; the consent of the woman or of her guardian does not justify it.

6.6BNS S 30 — acting in good faith without consent (IPC 92)

Nothing is an offence by reason of harm caused 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 he is incapable of giving consent and has no guardian or other person in lawful charge from whom consent can be obtained in time for the act to be done with benefit.

The same four provisos apply, except that the third proviso reads hurt rather than grievous hurt.

The four illustrations — learn at least two

• Z is thrown from his horse and is insensible. A, a surgeon, finds Z needs to be trepanned and performs it before Z can judge for himself. No offence.
• Z is carried off by a tiger. A fires at the tiger, knowing the shot may kill Z but not intending it, in good faith for Z's benefit. No offence.
• A surgeon sees a child suffer an accident likely to prove fatal unless operated on immediately. There is no time to reach the guardian. He operates despite the child's entreaties. No offence.
• A is in a burning house with a child. People below hold out a blanket. A drops the child, knowing the fall may kill him but intending his benefit. No offence.

Explanation. Mere pecuniary benefit is not benefit within the meaning of these sections.

6.7BNS S 31 — communication made in good faith (IPC 93)

No communication made in good faith is an offence by reason of harm to the person to whom it is made, if it is made for that person's benefit.

Illustration. A surgeon, in good faith, tells a patient that he cannot live. The patient dies of the shock. The surgeon has committed no offence, though he knew the communication might have that effect.

6.8The neighbouring exceptions

• BNS S 32 (IPC 94) — act done under threat of instant death. Not available for murder or offences against the State punishable with death.
• BNS S 33 (IPC 95) — harm so slight that no person of ordinary sense and temper would complain of it (de minimis non curat lex).
• BNS S 19 (IPC 81) — act likely to cause harm, done in good faith to prevent greater harm.

6.9"Good faith" — the hinge of the whole chapter

BNS S 2(11) — nothing is said to be done or believed in good faith which is done or believed without due care and attention.

Section 7Consent inside the BNS offence sections

Where consent is defined, where it is vitiated, and where it is simply irrelevant.

7.1BNS S 63 — rape, and the statutory definition of consent (IPC 375)

The section covers penile penetration, to any extent, of the vagina, mouth, urethra or anus; insertion of any object or body part; making the woman do so with him or another; and application of the mouth to those parts. It is committed under seven descriptions — against her will, without her consent, with consent obtained by putting her or someone she cares for in fear of death or hurt, by impersonating her husband, with consent obtained when she was of unsound mind or intoxicated and unable to understand, and with or without her consent when she is under eighteen.

• Exception 1 — a medical procedure or intervention does not constitute rape.
• Exception 2 — the marital exception; the wife must not be under eighteen (raised from fifteen under the IPC).
• Punishment BNS S 64; survivor under 16 and under 12 BNS S 65; gang rape BNS S 70; disclosure of identity BNS S 72.

7.2BNS S 69 — sexual intercourse by deceitful means

A new offence with no IPC equivalent. Sexual intercourse obtained by employing deceitful means, or by making a promise to marry without any intention of fulfilling it, or by a false promise of employment or promotion, or by concealing identity. Punishable with imprisonment up to ten years and fine. It is distinct from rape.

7.3Offences against a woman where consent is the issue

• BNS S 74 (IPC 354) — assault or criminal force to a woman with intent to outrage her modesty.
• BNS S 75 sexual harassment · BNS S 76 assault with intent to disrobe · BNS S 77 voyeurism · BNS S 78 stalking.
• POCSO Act 2012 — below 18, consent is legally irrelevant, and reporting under S 19 is mandatory whatever the family wishes.

7.4Miscarriage — consent does not make it lawful

• BNS S 88 (IPC 312) — causing miscarriage. The woman's own consent does not make it lawful unless it is done in good faith to save her life.
• BNS S 89 (IPC 313) — causing miscarriage without the woman's consent; punishable up to imprisonment for life.
• BNS S 90 (IPC 314) — death caused by an act done with intent to cause miscarriage.
• The lawful route is the MTP Act 1971 as amended in 2021, not consent standing alone.

7.5Consent and death

• Consent is no defence to murder.
• Death caused with the consent of a person above eighteen is culpable homicide not amounting to murder — Exception 5 to BNS S 101 (IPC 300, Exception 5).
• Active euthanasia and assisted suicide remain offences. Passive euthanasia with safeguards is lawful — Common Cause v Union of India (2018).

7.6Where consent is simply irrelevant

• Sex determination — PCPNDT Act 1994. The woman's request is no defence.
• Commercial dealing in organs — THOTA 1994 as amended 2011. A paid donor's consent is void.
• Ragging, duelling, self-mutilation and other acts barred on grounds of public policy.

Section 8Consent under special statutes

Eight Acts that write their own consent rule. Each is a favourite short-note question.

8.1Medical Termination of Pregnancy Act 1971, amended 2021

8.2Transplantation of Human Organs and Tissues Act 1994, amended 2011

8.3Mental Healthcare Act 2017

The Mental Healthcare Act 2017 is dealt with in full at Section 5.2, where consent turns on capacity: the presumption of capacity and the functional test of Section 4, the advance directive of Section 5, the nominated representative of Section 14, independent and supported admission, and the role of the Mental Health Review Board. In brief: a person with mental illness is presumed capable and consents for themselves; only where capacity is absent does an advance directive take effect or a nominated representative consent on their behalf, and supported admission with its periodic capacity review applies.

8.4HIV and AIDS (Prevention and Control) Act 2017

• Informed consent is required for HIV testing, treatment and research, with pre-test and post-test counselling.
• Exceptions where consent is not required: a court order; screening of blood, blood products, organs, tissue or semen; and anonymised epidemiological studies.
• No person may be compelled to disclose HIV status except by order of a court. Confidentiality is statutory.

8.5PCPNDT Act 1994

• Written consent of the pregnant woman, in the prescribed form and in a language she understands, before any prenatal diagnostic procedure.
• Communicating the sex of the foetus is prohibited, whatever the woman or family requests.

8.6Research — New Drugs and Clinical Trials Rules 2019

• Written informed consent from every participant, on an Ethics Committee-approved form, in a language the participant understands.
• An impartial witness signs where the participant cannot read.
• Audio-video recording of the consent process where required by the Rules.
• Right to withdraw at any time without loss of benefit; compensation provisions for trial-related injury.
• Read with the ICMR National Ethical Guidelines 2017 and the Declaration of Helsinki.

8.7Telemedicine Practice Guidelines 2020

• Consent is implied when the patient initiates the consultation.
• Consent must be explicit and recorded when a health worker, caregiver or the practitioner initiates it.

8.8POCSO Act 2012

• Below 18, consent to a sexual act has no legal existence.
• Reporting under S 19 is mandatory; failure to report is itself an offence.
• Medical examination of the child under S 27, in the presence of a parent or a person the child trusts; for a girl, by a woman doctor.

Section 9Consent in medico-legal examination

The survivor, the accused, the dead — three completely different rules.

9.1Examination of a survivor of sexual assault

BNSS S 184 (CrPC 164A) — the examination is conducted by a registered medical practitioner in a government or local-authority hospital, or by any RMP where none is available, only with her consent or the consent of a person competent to give it on her behalf. She must be sent for examination within 24 hours of receipt of the information. The report goes to the investigating officer and through him to the Magistrate.

9.2Examination of an accused

• BNSS S 51 (CrPC 53) — examination of an arrested person at the request of a police officer not below the rank of sub-inspector, when there are reasonable grounds to believe the examination will afford evidence. Reasonable force may be used.
• BNSS S 52 (CrPC 53A) — examination of a person accused of rape, by a government or local-authority RMP, without delay.
• BNSS S 53 (CrPC 54) — examination at the arrested person's own request, to collect evidence in his favour.

9.3Other medico-legal examinations

• Age estimation, drunkenness, potency, insanity — consent is taken from the person; if the examination is at police request under BNSS S 51, refusal does not bar it, but always record what was said.
• Dying declaration — consent is not the issue; the doctor's duty is to certify that the person is conscious, oriented and fit to make the statement, before and after it is recorded.
• Examination for insurance or employment — the person's consent, plus consent for release of the findings to the third party. These are two separate permissions.

9.4The body after death

Section 10Documentation and the consent form

What the form must contain, and a skeleton you can adapt.

Section 11Refusal of consent

A competent adult may refuse treatment for a good reason, a bad reason, or no reason at all.

11.1The rule

A competent adult's refusal is binding, even if the doctor and the family consider it unwise, and even if it will lead to death. The doctor's duty is to make sure the refusal is informed and free, and then to record it.

• Refusal by a guardian on behalf of a child, where it endangers the child's life, may be overridden by approaching the court or the child welfare authority.
• A valid and applicable advance refusal made while competent binds the doctor — the living will, or a card carried by a Jehovah's Witness refusing transfusion (Malette v Shulman, 1990).
• Refusal of one treatment is not refusal of all. Offer what remains acceptable.

11.2Refusal at the end of life

• Aruna Ramchandra Shanbaug v Union of India (2011) — permitted passive euthanasia with High Court supervision.
• Common Cause v Union of India (2018) — recognised the right to die with dignity, and the validity of advance directives and living wills. The procedure was simplified by the Supreme Court in 2023.
• Airedale NHS Trust v Bland (1993) — withdrawal of futile treatment.
• Active euthanasia and assisted suicide remain offences in India.

Section 12Pitfalls that lose cases

Every item below has been the ground on which a real claim succeeded.

Section 13Rapid revision

The last page to read before the paper.

Numbers

• 12 — below this age consent has no value; guardian consents.
• 18 — consent to suffer harm; consent to any sexual act; consent to one's own MTP.
• 7 and 12 — criminal responsibility, not consent.
• 24 hours — a survivor must be sent for examination under BNSS S 184.
• 20 / 24 weeks — MTP opinion thresholds.

Sections in one line each

• BNS S 25 harm by consent, above 18 · BNS S 26 the surgeon's section · BNS S 27 guardian for a child under 12 or a person with mental illness
• BNS S 28 when consent is not consent · BNS S 29 offences independent of harm · BNS S 30 emergency without consent · BNS S 31 breaking bad news
• BNS S 63 Explanation 2 — the statutory definition of consent · BNS S 69 deceitful means · BNS S 89 miscarriage without consent
• BNSS S 51 accused · BNSS S 184 survivor · BNSS S 194 inquest and autopsy · BNSS S 397 free treatment of victims
• BNS S 2(11) good faith = due care and attention

Cases in one line each

• Samira Kohli (2008) — consent for diagnosis is not consent for surgery; India follows the Bolam standard.
• Bolam (1957) / Bolitho (1997) — professional standard, logically defensible.
• Canterbury v Spence (1972) / Montgomery (2015) — patient-centred standards, not adopted in India.
• Chatterton v Gerson (1981) — non-disclosure is negligence, not battery.
• Common Cause (2018) — advance directive, passive euthanasia.
• Suchita Srivastava (2009) — reproductive autonomy and capacity.
• State of Karnataka v Manjanna (2000) — no FIR needed before treating a survivor.

Likely questions

1. Define consent. Enumerate the essentials of a valid consent. (Long answer — Sections 1 and 3)
2. Informed consent — write a short note. (Section 4)
3. Discuss the provisions relating to consent under the BNS, 2023. (Section 6)
4. Age of consent in India for various purposes. (Table 5.1)
5. Consent in an emergency; consent of a minor; proxy consent; blanket consent. (Short notes)
6. Whose consent would you take before a medico-legal autopsy, an MTP in a 17-year-old, and the examination of an accused? (Viva favourite)

Section 14Conversion and case tables

For quick reference while writing answers.