INFORMED CONSENT ESSENTIAL BEFORE SURGERY

Informed consent is the subject matter of several medico-legal litigation as invariably the consent taken from a patient or his attendant is not informed consent. Informed consent means that the patient must be made fully aware of the pros and cons of the line of treatment that he will be given by the treating Doctor and the concerned hospital staff. The very idea of informed consent is that the patient should be allowed to make a sensible decision concerning his or her treatment. In the legal parlance informed consent is always based on the basis of the treating doctors diagnosis, treatment, prognosis. A patient may gather some knowledge on his medical problem via discussions with medical/nursing staff, via the media/internet, or from friends who have undergone a similar procedure but this can not be equated to the information that the treating Doctor shares with the patient. Hence informed consent occurs only when the patient after being informed by the Doctor takes the decision to go ahead with the treatment decided by the Doctor. In informed consent the patient is fully aware of the risks and benefits of his treatment.

In a recent case, reported by Times of India, the Delhi State Consumer Disputes Redressal Commission (DSCDRC) held that merely asking patients to sign a consent form is not enough, as they ought to be informed about the consequences of a surgery. The panel clearly stated that an informed consent was when a patient was explained the consequences in layman’s language to decide on the surgery. It went as far as stating the merely writing “informed consent” on top of a form does not make it so. The clauses mentioned are very vague and signing such a form is no consent in the eyes of the Law.

The Commission observed this while awarding Rs. 8 lakh compensation to the family of a city-based journalist, Bhushan Raina, who lost vision in one of his eyes after cataract surgery in 2008.  He was advised to undergo a surgery after his right eye started giving him trouble.  He consulted Dr. Sudeep K Jain. He was given an option to wait for 2-3 months or in the alternative to undergo the surgery immediately. The surgery was performed and his eye checkup showed retinal detachment and thereafter he was advised to undergo another surgery, but was warned that he might not get his eyesight back. The real suffering came when he was asked to lie on his stomach for almost two months and he has to eat and sleep in same position. Due to aforementioned sufferings he lost his mental and physical strength and independence and lead a poor quality of life, which jeopardized his future. Mr. Raina died during the pendency of the case.

International guidelines state that, consent should begin with a brief explanation of the planned operation, including the anesthetic involved. It is wise to describe what the patient may expect to experience during surgery, if under a local anesthetic. Medical jargon should be avoided as it only serves to reduce understanding. Sufficient information to make a decision should also include an explanation of the risks and benefits involved; any alternative treatments; and the risks and benefits of abstaining from the treatment.

Therefore DSCDRC Member (Judicial) Mr. OP Gupta rightly found that the doctors are guilty of negligence and said, “ The life of a person is almost like death without eyesight. He cannot see properly or walk or eat with comfort. He feels secluded from society and his near and dear ones.”

This judgment not only holds importance in the life of Doctors but also for patients as they need to understand that consent is an opportunity to guide the patient to the right decision for them, and also dispel any unrealistic expectations concerning the procedure. Ultimately it is an opportunity to create a relationship of openness and trust between doctor and patient, which may help if operative complications are encountered. With high health-care expectations, a poorer than expected outcome may lead to surprise and subsequent anger: good patient education, during the informed consent process, is the surgeon’s chance to forge a relationship with the patient and make sure that the patient’s expectations are realistic.

Sourabh Kumar Mishra

Senior Legal Associate

The Indian Lawyer

INDIA BARS THE EXECUTION OF MENTALLY ILL CONVICTS

India along with many other countries,as part of the League of Nations, has considered mental illness as a mitigating circumstance for the imposition of lenient sentences as the offender, due of his mental incapacity, is unaware of his actions. This has been the country’s policy for several years.

In the recent judgement in the case of Accused ‘X’ v. State of Maharashtra [Review Petition (Criminal) No. 301 of 2008] that was decided on 12th April 2019, the Hon’ble Supreme Court of India, has issued directions on the execution of mentally ill convicts. The ruling arises from the Supreme Court’s miscellaneous decisions where it has laid down the test of severity for the conviction of person’s with mental disability. The bench comprising of Justice NV Ramana, Justice Mohan M. Shantanagoudar and Justice Indira Banerjee has opined that the sole purpose of awarding a punishment is that it should act as a deterrent, however, when a condemned prisoner loses cognitive power by reason of post conviction mental illness, the essence of sentence awarded is lost.

In the instant case the accused was convicted and sentenced to death for sexually assaulting and murdering two minor girls in December 1999 at Gulumb in Maharashtra by the Trial Court in 2001. The High Court of Bombay confirmed the death sentence. Relieving him of the execution and commuting his death sentence to life imprisonment the Bench noted that the reports of psychiatrist suggested that the accused has been reeling under bouts of some form of mental irritability since 1994. The three judge Bench held that:

75. “In this state ‘accused x’ cannot  be ignored and left to rot away, rather, he requires care and treatment. It needs to be understood that prisoners tend to have increased affinity to mental illness. Moreover, due to legal constraints on the recognition of broad­ spectrum mental illness within the Criminal Justice System, prisons inevitably become home for a greater number of mentally­ ill prisoners of various degrees. There is no overlooking of the fact that the realities within the prison walls may well compound and complicate these problems.”

The Court further noted that there are no set parameters for determining the degree of disability however a ‘test of severity’ can be a guiding factor for recognizing certain types of mental illness which qualify for an exemption. The Court said:

68. “The test envisaged herein predicts that the offender needs to have a severe mental illness or disability, which simply means that a medical professional would objectively consider the illness to be most serious so that he cannot understand or comprehend the nature and purpose behind the imposition of such punishment. These disorders generally include schizophrenia, other serious psychotic disorders, and dissociative disorders with schizophrenia.”

The Bench issued the following directives:-

  1. That the post-conviction severe mental illness will be a mitigating factor that the appellate court, in appropriate cases, needs to consider while sentencing an accused to death penalty.
  2. The assessment of such disability should be conducted by a multi-disciplinary team of qualified professionals (experienced medical practitioners, criminologists etc), including professional with expertise in accused’s particular mental illness.
  3. The burden is on a accused to prove by a preponderance of clear evidence that he is suffering from severe mental illness. The accused has to demonstrate active, residual or prodromal symptoms, that the severe mental disability was manifesting.
  4. The State may offer evidence to rebut such claim.
  5. Court in appropriate cases could set up a panel to submit an expert report.
  6. The test envisaged herein predicts that the offender needs to have a severe mental illness or disability, which simply means that a medical professional would objectively consider the illness to be most serious so that he cannot understand or comprehend the nature and purpose behind the imposition of such punishment.

Relying upon the Provisions of Mental Health Care Act, 2017, the Court stated that as per Section 20(1) of the Mental Health Care Act, 2017 “every person with mental illness shall have a right to live with dignity”

The Judicial authorities in India have on previous occasions pronounced Judgements barring execution of death row convicts suffering from mental illness.  The Hon’ble Supreme Court, in the case of Shatrughan Chauhan and Anr v. Union of India and Ors. (2014) 3 SCC 1, based on the report of Neuro Psychiatrist set aside the death penalty awarded to the convict Sundar Singh. The three judge Bench held that insanity/mental illness/schizophrenia is also one of the supervening circumstances for commutation of death sentence to life imprisonment.

Similarly in the case of Navneet Kaur v. State(NCT of Delhi) (2014) 7 SCC 264 the Court held that execution of persons suffering from mental illness or insanity violates Article 21 of the Constitution and that such mental illness or insanity would be a supervening circumstance meriting commutation of the death sentence to life imprisonment.

This Judgement of the Supreme Court of India is a big step forward for the people sufferring from serious mental illness. India by joining the League of Nations and barring execution of mentally ill convicts has shown its concern over a long ongoing discussion on the subject of mentally ill convicts.  

Sourabh Mishra

Sourabh Kumar Mishra

Senior Legal Associate

The Indian Lawyer