The invention and usage of medication has always been subject to a certain doubt. The fact that most drugs that are used today come with a barrage of side-effects has made the public vary of its usage. The question of the patients free will while a certain treatment is of huge importance.
Various international conventions and legal instruments such as the Nuremburg Code of 1947 or the declaration of Helsinki of 1964 emphasize and magnify on the importance of the informed consent of a Human individual in regard to any types of medication administered to them. These conventions are based on the rationale of recognizing the autonomy of an individual and acknowledging that right over one’s own body as an inalienable right.
While the high held position of individual consent does exist, the administering of forced medication in emergence circumstances have been in application. This is to be done at the discretion of the authorities involved. Therefore, a Tug of war between the Right of an informed choice of medication of an individual and the forced administration of medication at the discretion of experts and authorities is ever existent.
This article in an attempt to assert that the informed choice of an individual should stand above everything while analysing the stand of medical law in India regarding the said issue. It also attempts to throw light on the ill effects and inherent downsides of the practice of forced Medication.
Forced medication or Involuntary medication is a practice where a certain course of drugs or treatment is administered to a patient without their consent. It may also include administering muscle relaxing drugs so as to reduce resistance and thereby give non-consensual treatment to individuals.
This practice found legitimacy in the case of psychiatric patients, where restraining patients during treatment was a commonly found challenge for doctors.
Consent in its most basic understanding is the agreement of an individual to a certain act or term. The right to consent or the right to choose to a person finds root in the belief of autonomy of individuals, thereby being one of the most basic of an individual’s rights. According to the Law of Contract, consent should not only be informed but also free. Consent obtained by coercion, force or fraud does not stand before the law. A similar application is seen can be seen even medical law as the relation between the doctor and the patient is basically that of a client and a service provider.
The concept of concept finds an essential position in contract and tort law. The absolute basic of a contract is a proposal and acceptance. This acceptance is the embodiment of consent in a contract. Whereas, in Tort law the invasion or use of any action against a human body without the individual’s will can make one liable to a tort of Trespass to person. In the famous defence of Volenti non-fit Injuria which disqualifies one from legal remedy in cases of giving consent to an act against them again highlights the importance that the leg
The Idea of Informed Consent in Medical law can be found to root from Australian law, development of this concept can also be found in American and British jurisprudence. The American Medical Association defines it to be a process of communication between the patient and the doctor which results in the patient giving their consent to undergo or be a part of a certain medical procedure or intervention. The concept of Informed Consent takes a different approach in an American and British legal system.
Informed consent under American jurisprudence:
In the American legal system, the approach is a patient-based approach. This revolves around the amount of information that is given to the patients. It’s also called the prudent patient test, where the patients right to self-determine is given the highest authority.
A very good illustration of the same can be seen in the much-celebrated case of Riese V. St. Mary’s Hospital and Medical centre, The case before the California Supreme Court was whether a psychiatric patient should be forcefully administered antipsychotic drug. The court held good and reinstated another landmark judgement of Rogers V. Okins thereby granting thousands of psychiatric who were involuntarily admitted the right to self-determine on the basis of Informed consent. Although this followed with two exceptions, i.e., firstly, in case of emergencies. Secondly, if a court declares the patient to be incompetent to make a decision regarding treatment or drugs.
Informed consent under British jurisprudence:
Under English law, the approach is a doctor-based approach. It can be referred to as the prudent doctor approach. It advocates that the doctor being a professional and an expert decides the amount of information that is to be disclosed to the patient. In the case of Sidway V. Board of Governors of Bethlem Royal Hospital, Lord Templeman opines that the doctor through his professional expertise, his knowledge of the patient’s medical history and training should ensure to tell the patient only what is necessary so as to ensure that the treatment that is suggested is consented for.
This view suggests a certain amount of discretion and lacks transparency. This may suggest a certain level of doubt as to the amount of free consent exercised by the patient regard their treatment and thereby bring a question of ethics involved.
Indian position on informed consent and forced medication:
While the approach taken by the Indian Legal system towards the concept of informed consent could be termed to be an equitable one. The Indian judicial approach to the concept has been to hold the right of Self-autonomy of the patient at a high regard.
In the Apex court judgment of Ram Biahri Lal V. Dr. J. N Srivatsava, stated that the parameters of the consent obtained for a certain procedure is of matter in a case. A doctor is only protected or safe as long as the procedure is within the parameters established in the said consent. The case at hand included a woman giving consent to an operation involving appendicitis. During the course of the operation the doctor found that the appendix was fine and proceeded to removing a gangrene gall bladder. Later, it was later discovered that the patient’s kidney was infected. The doctor was later held to be liable as the operation was beyond the scope of the consent that was obtained from the patient. Therefore, the Supreme Court’s decision in upholding personal anatomy can be observed in this case.
The Apex Court in the case of Sameera Kohli V. Dr. Prabha Manchanda and another, further stretched the ambit of this concept when it stated that consent taken for diagnostic surgery cannot be extended to authorisation to any kind of therapeutic procedure unless Fatal circumstances were involved.
Mental space, privacy and the use of drugs in the light of consent:
The Question of privacy becomes essentials while considering the medication and consent. This raises a question of protection of certain rights and transgression, even with a reasonable cause being allowable only when free and informed consent is given.
A quick study of the case of Selvi and Ors V. State of Karnataka, can be of utility to understand the Indian judiciary’s approach towards the Nexis between these concepts.
A question considered by the court in the case was whether polygraph and Narcos test can be conducted on the accused in ascertaining the truth even without their consent. The Court Held that there a Narcos test or any kind of truth determination test cannot be done on an accused in custody during the course of interrogation without the consent of the accused the court also laid guidelines regarding administration of Narcos test as follows:
1) Lie detection tests could be taken only with the consent of the accused.
2) A person who agrees to the test must be given compulsory access to a lawyer, and the police and his lawyer must explain all physical and phycological implications of taking the test.
3) The consent can be recorded only when judicial magistrate is present.
4) It should be explained to the person in question that his statement taken during the test would not be ‘confessional statement ‘but rather shall carry the weightage of a statement made to the ‘police’.
5) All factors of detention during interrogation are to be considered.
A few things to be observed here are that the court recognises the existence of a presence of an authority in the equation and advantage this authority would carry in the said relationship.
The court through one of its guidelines tries to ensure that the person in question is thoroughly informed about the consequences of administration of the said test. This case becomes of value as it enables us to look at a relation and an existing power imbalance and the necessity of Informed consent in such cases when a certain procedure is involved. The case also enshrines that failure to do this may even result in the violation of the Right to Privacy ensured to individuals under Right to personal Liberty under Article 21 of the Indian Constitution.
While consent has been held in high regard under Indian law the exception of emergency situation is available. It was observed by the Apex court in the case of Paschim Banga Khet Mazdoor Samity and Ors V. State of West Bengal and Another, it was a duty on the hospitals to protect the life of citizens which is guaranteed under Article 21. Failure on the part of the government hospital to provide timely treatment to a patient would be a violation of the fundamental right under this fundamental right. This could also be viewed as a primary duty of a welfare state.
There are situations where due to some unprecedented accidents patients are rendered in a vegetative state and aren’t able to give consent or express their will. In such cases the general practice may be to ask a close relation, family member or friend who is available and take their consent to go ahead with a procedure. This type of proxy consent may also be an option that is at the disposal of medical professional. although the question who is eligible or qualified to give such a proxy consent hasn’t seen much development under the Indian legal system.
The Dilemma of Article 21 with forced medication:
While discussing the question of forced medication in the light of Article 21 we are presented with an interesting dichotomy. As we saw with the case of Paschim Bangal Khet Mazdoor case, an obligation has been placed upon the government hospital with saving lives and the failure to do this would be considered a violation of right under Article 21. The court also has respected and upheld the Right of privacy and personal liberty and by extension the right to autonomy with deciding the type of treatment. This clash between both rights under Article 21 is a field that hasn’t been subject to much exposure in the Indian judicial system. Although, it can be underlined by saying that except for emergency situations treatment is to be within the parameters mentioned in the consent given by the Indian law. It would also be a preferable if guidelines similar to the ones in the case of Selvi v State of Karnataka, Where the intervention of a Magistrate in cases where absent is absent is made compulsory. This can to a large extent be of utility as to decide the deadlock between the two right.
In conclusion, it is necessary for the law to protect an individual’s Autonomy and privacy with utmost priority. Having said this law also needs to be flexible enough so as to accommodate for unforeseen contingencies and ensure that the best interest of a person is ensured. As the essence right to life as understood from the observation in the case of People’s Union of Civil Liberties V Union of India, where it was seen to be ‘More than mere Animal existence’ should always be kept in mind. Any emergency involving a case of forced medication must only be done in the presence or on the consent of a Judicial officer. Thus, ensuring an equitable application of law.
1. Consent and medical treatment: The legal paradigm in India, Om Prakash Nanimath, journal of Urology. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2779959/#CIT13 (Last seen 6-6-2020)
4. Reise v. st. mary’s hospital , https://law.justia.com/cases/california/court-of-appeal/3d/209/1303.html (Last Seen 6-6-2020)
By V.Sai Tejaswaroop