Journal of Indian Academy of Forensic Medicine (JIAFM)

counterclaimed damages as a drug was administered
to her, without her consent. She alleged that
phenobarbitone, which she refused to take, was
mixed in soup and meat and given to her daily, which
prolonged her stay in the nursing home, as a
psychological consequence for 16 weeks. The Court
held that the administration of a drug to a person
without that person’s knowledge and consent was
assault, and awarded nominal damages, as the drug
did not cause substantial harm. [11]
Definitions:
Consent (Co= Mutual, Common; Assent=
Agreement) means voluntary agreement,
compliance or permission.
Section 13 of the Indian Contract Act [3] lays down
that “two or more persons are said to consent when
they agree upon the same thing in the same sense”.
Consent, with reference to the medical treatment, can
be defined as the voluntary and continuing
permission of the patient to receive a particular
treatment, based on adequate knowledge of the
purpose, nature, likely effects and risks of that
treatment, including the likelihood of its success and
any alternative in it. [4]
Consent is an act of reason, accompanied with
deliberation, the mind weighing as in balance, the
good and evil on each side. [5, 6]
Consent means an active will in the mind of a person
to permit the doing of the act complained of, and
knowledge of what is to be done, or of the nature of
the act that is being done, is essential to a consent to
an act. [6, 7]
Consent may be defined as a concurrence of will; to
agree; to yield; to comply; compliance; permission.
[8] “Consent” includes both express and implied. [9]
Doctor-patient relationship and contract:
Doctor-patient relationship is based on certain
principles of contract law [3] in true commercial sense
in addition to trust and faith. An agreement
enforceable by law is a ‘contract’. [Section 2(h)] [3]
When one person signifies to another his willingness
to do or to abstain from doing anything, with a view to
obtaining the assent of that other to such act or
abstinence, he is said to make a proposal. [Section
2 (a)][3] When the person to whom the proposal is
made signifies his assent thereto, the proposal is said
to be accepted. A proposal, when accepted becomes
a promise (here refers to medical examination,
diagnosis, procedure or operation, etc.). [Section
2 (b)] [3] The person making the proposal is called
the “promisor” (here refers to “doctor”) and the
person accepting the proposal is called the
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JIAFM, 2007; 29 (2) ISSN: 0971-0973
“promisee” (here refers to “patient”). [Section 2
(c)][3] when, at the desire of the promisor, the
promisee or any other person has done or abstained
from doing, or does, or abstain from doing or
promises to do or abstain from doing, something,
such act or abstinence or promise is called a
consideration (here refers to “doctors fee”) for the
promise. [Section 2 (d)] [3] Every promise and every
set of promises forming the consideration for each
other is an agreement. [Section 2 (e)] [3]
What agreements are contracts?
All agreements are contracts if they are made by the
free consent of parties competent to contract, for
a lawful consideration and with a lawful object.
[Section 10] [3]
What is legally valid consent?
Legally valid Consent consists of three related
aspects:
1. Voluntaries
2. Capacity to consent (age and mental
capacity)
3. Knowledge
Capacity to consent:
The patient should be in a position to understand the
nature and implication of the proposed treatment
including its consequences, in this regard the law
requires following special considerations:
Age of consent:
In India only a person who is a major by law i.e.
above the age of 18 can give valid consent for the
treatment. Hence any person, who is a minor, cannot
legally give consent. In the case of minor consent
may be given by the guardian. [2]
Review of literature on age of consent:
Who can give consent?
The question naturally arises that who is a
‘competent adult’. A competent adult has been
defined as a person who has reached the age of 18
years and has capacity to make treatment
decision on his own behalf. [4]
Who are competent to contract?
Every person is competent to contract who is of the
age of majority according to the law to which he is
subject, and who is of sound mind, and is not
disqualified from contracting by any law to which he
is subject. [Section 11] [3]
What is the age of majority?
A person deemed to have attained his majority on the
completion of 18 years, when he assumes full civil
rights and responsibilities. [10]
Review of Textbooks on Forensic
Medicine: