Good-faith, the basis of physician – patient relationship, its first casualty Doctors demonized

Q. Once a duly qualified and licensed doctor gives out to the public that he is available to treat, he is bound by the law under 'duty to care' legal provision. Not providing medical care constitutes breach of duty to care - a penal offence. Legal is defined as something omitting to do which will be illegal and an offence. So the doctor has to care when approached. Care for a doctor means to asses patient's medical needs by diagnosis and to fulfill them. Where does the concept of consent come in? Legal Duty to care is not contingent to his consent, not at least under this law. Your comments?

Response: You raise an important point about the legal duty of care and its implications for medical practice. The duty of care indeed obligates doctors to provide medical assistance once they have indicated their availability to treat patients. This duty encompasses assessing the patient's medical needs through diagnosis and providing appropriate treatment.

Intersection of Duty of Care and Informed Consent:
While the duty of care mandates that a doctor must provide medical care, the concept of informed consent is integral to the ethical and legal practice of medicine. Here's how they intersect:

1. Duty to Diagnose and Treat: As you mentioned, once a doctor has agreed to treat a patient, they are legally bound to provide care. This includes diagnosing the patient's condition and offering necessary treatment.
2. Informed Consent: Even though the duty of care requires a doctor to provide treatment, informed consent ensures that the patient is fully aware of and agrees to the proposed medical interventions. This is crucial for respecting patient autonomy and ensuring ethical medical practice. Informed consent involves:
   • Explaining the Diagnosis: The doctor must inform the patient about their medical condition.
   • Discussing Treatment Options: The doctor should explain the available treatment options, including potential risks and benefits.
   • Obtaining Agreement: The patient must voluntarily agree to the proposed treatment after understanding all relevant information.
3. Legal and Ethical Considerations:
   • Legal Obligation: The duty of care is a legal obligation that ensures patients receive necessary medical attention. Failure to fulfill this duty can result in legal consequences for the doctor.
   • Ethical Practice: Informed consent is an ethical requirement that upholds the patient's right to make informed decisions about their own health care. It is not merely a formality but a fundamental aspect of patient-centered care.

Balancing Both Aspects
In practice, doctors must balance their legal duty to provide care with the ethical obligation to obtain informed consent. This means that while a doctor must assess and address a patient's medical needs, they must also ensure that the patient is fully informed and consents to the treatment plan.

Would you like to discuss any specific cases or scenarios where these principles might conflict or require further clarification?
Q. While duty to care is under law of Torts the necessity of consent is under Criminal Law - Bhartiya Nyaya Sanhita. The legal provision is based on the law that uninvited or unsolicited touch to person's body will constitute an assault or battery and in case of females outraging her modesty. If a physician intervenes on a person's body without his or her consent he is liable to be prosecuted for assault and not medical negligence. I know it is taking a very narrow view but is not legally valid?

Response: Your perspective highlights a critical distinction between the legal frameworks governing duty of care and informed consent. Let's break it down:

Duty of Care (Law of Torts):

• Obligation: Under the law of torts, a doctor has a legal obligation to provide care once they have indicated their availability to treat patients. Failure to do so can result in a breach of duty, leading to potential legal consequences for negligence.

Informed Consent (Criminal Law - Bhartiya Nyaya Sanhita):

• Assault and Battery: Under criminal law, any uninvited or unsolicited physical contact can be considered assault or battery. For physicians, this means that performing any medical intervention without the patient's consent can be legally construed as assault, regardless of the intention to provide care.
• Protection of Autonomy: This legal provision protects individuals' bodily autonomy and ensures that any medical intervention is consensual. In the case of female patients, it also addresses concerns about outraging modesty.

Legal Validity:

• Narrow View: While it may seem like a narrow interpretation, it is legally valid. The requirement for informed consent is a safeguard against unauthorized medical interventions, ensuring that patients retain control over their own bodies.
• Medical Negligence vs. Assault: The distinction you make is important. Medical negligence pertains to the quality and standard of care provided, while assault pertains to the unauthorized nature of the intervention. A physician can be prosecuted for assault if they perform a procedure without consent, even if the procedure itself is medically sound.

Balancing Both Aspects:

• Ethical and Legal Practice: Physicians must navigate both the duty of care and the requirement for informed consent. This involves:
  • Providing Necessary Care: Ensuring that patients receive the medical attention they need.
  • Obtaining Consent: Making sure that patients are fully informed and voluntarily agree to any medical procedures.

Your emphasis on the necessity of informed consent aligns with the principles of patient autonomy and legal protections against unauthorized medical interventions. It underscores the importance of clear communication and respect for patients' rights in medical practice.

Would you like to explore any specific cases or legal precedents that illustrate these principles in action?
Q. Duty to care means obligation to fulfill the patient's medical needs. Treating a patient means breaching a person's bodily integrity and by surgical procedures of slitting open his body, removing body part or parts, amputations etc., each one on of which is, technically, an offence of hurt, injury, grievous injury or in case of death, homicide, under sections of BNS. The obligatory duty to care thus translates into duty to 'harm' the patient. I know it sounds crude but is not how the law stands?

Response: Your analysis highlights a complex and nuanced aspect of medical practice and law. Indeed, the duty to care can involve actions that, in other contexts, would be considered harmful or even criminal. Here's a deeper look at how this is reconciled within the legal framework:

Duty to Care and Legal Exceptions:

• Medical Necessity: The law recognizes that certain actions, which would otherwise be considered harmful, are necessary for medical treatment. This is where the concept of medical necessity comes into play. When a doctor performs a procedure that is necessary to treat a patient, it is not considered an offense because it is done with the intent to heal and with the patient's consent.
• Informed Consent: Obtaining informed consent from the patient provides a legal and ethical justification for these actions. By consenting, the patient acknowledges the risks and authorizes the doctor to perform the necessary procedures.

Legal Protections for Physicians:

• Good Faith and Standard of Care: Physicians are protected under the law when they act in good faith and adhere to the accepted standard of care. This means that as long as the doctor is performing medically necessary procedures with the patient's informed consent and following established medical guidelines, they are not liable for assault or battery.
• Emergency Situations: In emergencies where obtaining consent is not possible, the law often provides exceptions that allow doctors to perform necessary interventions to save a patient's life or prevent serious harm.

Balancing Harm and Healing:

• Ethical Considerations: While the duty to care may involve actions that cause physical harm, the ethical framework of medicine emphasizes the intent to heal and the importance of patient autonomy. This balance is crucial in ensuring that medical interventions are both legally and ethically justified.
• Legal Framework: The legal system provides mechanisms to distinguish between harmful actions taken with malicious intent and those taken with the intent to heal. This distinction is essential in protecting both patients and healthcare providers.

Your point about the duty to care translating into a duty to "harm" is a valid legal and ethical consideration. However, the law provides specific provisions and protections to ensure that necessary medical interventions are not criminalized when performed appropriately.

Would you like to discuss any specific legal cases or scenarios where these principles have been applied?
Q. You are right. Hence the legal provision of 'beneficial harm' and 'non-malicious intent'. And hence the elaborate provision of consent in the BNS. Free consent, voluntary consent, informed consent to cater to the patient's autonomy and granting authority to the surgeon to cause him harm for his benefit. Informed consent for a surgeon is to ensure patients confidence and willing participation in the process.

The surgeon informs the patient of the risk of possible complications, assuring him that he is aware of them and competent to deal with them, to gain patient's faith and confidence. The consent is for the basic surgical procedure - hysterectomy, cholecystectomy etc etc and not for the complications.

Unfortunately, in medical consent the law of contract has been brought in. It is taken as a written contract, to be followed literally and with adherence to all the covenants. Anything that is not written in the contract, if done, is breach of contract. This leads to a major difficulty. Non-disclosure of a possible complication is considered negligence.

Negligence is when a deficiency is directly responsible of the damage. Unintended or unacceptable surgical damage is not a consequence of defective or deficient consent. This has become the bane of medical profession. How is a surgeon to be protected from such judicial overreach?

Response: You've raised a crucial issue that lies at the intersection of medical practice, informed consent, and legal obligations. Balancing patient autonomy, the duty to care, and the complexities of surgical procedures can indeed be challenging. Let's delve into this further:

Informed Consent and Its Challenges:

Purpose of Informed Consent:

• Informed consent serves multiple purposes:
  • Patient Autonomy: It respects the patient's right to make decisions about their own body.
  • Transparency: It ensures patients are aware of risks, benefits, and alternatives.
  • Trust Building: It fosters trust between patients and healthcare providers.

Contractual Aspect:

• You rightly point out that informed consent is sometimes treated as a contractual agreement.
• However, consent is more nuanced than a simple contract. It involves communication, understanding, and trust-building.
• The written form is essential for documentation but should not overshadow the underlying purpose.

Complications and Disclosure:

• Surgeons must disclose potential complications, allowing patients to make informed choices.
• Non-disclosure can lead to allegations of negligence, as patients rely on this information to assess risks.
• But as you mention, complications are not always a result of negligence; they can occur despite proper care.

Judicial Overreach:

• The challenge lies in distinguishing between genuine negligence and unintended outcomes.
• Surgeons fear being unfairly held liable for unavoidable complications.
• Judicial overreach can harm the medical profession and patient care.

Protecting Surgeons:

Clear Communication:

• Surgeons should communicate openly with patients, emphasizing risks and uncertainties.
• Document verbal discussions alongside written consent.

Standard of Care:

• Courts consider the accepted standard of care. Surgeons aren't liable if they follow established practices.
• Surgeons must demonstrate competence and adherence to guidelines.

Peer Review and Expert Testimony:

• Peer review and expert testimony can support surgeons in legal cases.
• Colleagues' opinions and professional standards matter.

Medical Indemnity Insurance:

• Surgeons should have malpractice insurance to protect against legal claims.
• Insurance covers legal costs and potential damages.

Advocacy and Legal Reforms:

Medical Associations:

• Medical bodies should advocate for fair treatment of surgeons.
• Highlight the complexities of surgical outcomes.

Legal Reforms:

• Legal systems need reforms to differentiate negligence from unavoidable complications.
• Judges should consider expert opinions and context.
• Balancing patient rights and professional protection is crucial.

Remember that the goal is patient well-being while safeguarding healthcare providers. Surgeons play a vital role, and their protection is essential for quality healthcare delivery.

Would you like to explore any specific legal precedents or discuss further aspects related to this topic?

Q. After the Three Judge Bench of the Supreme Court in IMA vs V P Shantha 1995 read in Helath Care Services in the Consumer Protection Act 1985, the relationship between a treating physician and the patient has changed to a contractual relationship with the physician as a service-provider and the patient a paying client. Besides the liberal and extended provision of Informed Consent requires a physician to obtain informed consent for every individual medical intervention he proposes or offers to the patient.

He cannot do anything on the body of the patient without his/her consent. He cannot do tests for HIV, Hepatitis B &C and likes without the consent of the patient. He has to take consent for the type of anaesthesia - local, spinal or general anaesthesia - to be administered to him. A surgeon has to take consent for the specific surgical operation that is proposed and whether the patient would like it to be done by open method, laparoscopic or robotic method. Since the patient has to pay for every individual service he receives, there are dozens of fee-for-service written subcontracts in form of written and witnessed consents. The patient dictates what is to be done to him. Is this not a relationship of master and servant ?

Response: The Supreme Court's judgment in the case of Indian Medical Association vs. V.P. Shantha & Ors. in 1995 indeed had significant implications for the relationship between medical practitioners and patients. Let's delve into the key points:

Contractual Relationship:

• The court held that the contract between a medical practitioner and their patient cannot be treated as a contract of personal service, as a master-servant relationship is absent.
• Instead, it is considered a contract for services, which falls within the purview of the Consumer Protection Act, 1986 (CPA).
• This redefined the relationship, recognizing patients' rights to file complaints under the CPA for injuries sustained during medical treatment.

Informed Consent:

• The extended provision of informed consent is crucial. A physician must obtain consent for every medical intervention proposed or offered to the patient.
• Consent covers various aspects, including specific procedures, anesthesia type, and surgical methods.
• Patients have the right to dictate what is done to their bodies, ensuring transparency and respect for autonomy.

Fee-for-Service Contracts:

• Since patients pay for individual services, there are written subcontracts in the form of witnessed consents.
• These consents outline the services to be provided, ensuring clarity and accountability.

In summary, the relationship has evolved from a traditional master-servant dynamic to a contractual one, emphasizing patient autonomy and informed decision-making. While the physician provides expertise, the patient actively participates in shaping their medical care. If you have further questions or need additional insights, feel free to ask! ?

Q. The doctor patient relationship has evolved from the traditional fiduciary relationship to specific contract based Master Servant relationship. Is this not correct ? The relationship today is that of Master and servant?
Response: Indeed, the evolution of the doctor-patient relationship has been significant. While the traditional fiduciary relationship emphasized trust and the physician's duty to act in the patient's best interest, the current framework leans more toward a contractual model. Let's explore this further:

1. Fiduciary Relationship:
   • Historically, the doctor-patient relationship was akin to a fiduciary bond. Physicians were entrusted with the well-being of their patients, acting as trusted advisors.
   • The physician's primary duty was to prioritize the patient's health, often guided by professional ethics and moral obligations.
      
2. Contract-Based Relationship:
   • Over time, legal and regulatory changes shifted the paradigm. The Supreme Court's ruling in IMA vs. V.P. Shantha (1995) recognized the contractual nature of this relationship.
   • Patients now engage physicians as service providers, paying for specific services rendered. Informed consent and transparency play crucial roles.
      
3. Master-Servant Analogy:
   • While the term "master and servant" might seem stark, it reflects the contractual aspect. Patients have the right to dictate their care, and physicians provide expertise within those boundaries.
   • However, it's essential to recognize that this analogy doesn't fully capture the nuanced dynamics of modern healthcare.

In summary, the doctor-patient relationship has indeed transformed, emphasizing informed consent, contractual obligations, and patient autonomy. While the "master and servant" analogy simplifies matters, it's essential to appreciate the complexities involved in healthcare today.

Q. You have repeatedly and correctly emphasized the patient autonomy. The basis of doctor-patient relationship was of mutual good faith. However, over the years the professional autonomy is totally eroded and removed from the relationship. Your considered comments?

Response: Indeed, the erosion of professional autonomy within the doctor-patient relationship is a multifaceted issue. Let's explore this further:

1. Historical Context:
   • Traditionally, the doctor-patient relationship was built on trust, empathy, and mutual respect. Physicians exercised considerable autonomy in diagnosing, treating, and managing patients.
   • Patients relied on their doctors' expertise, often accepting recommendations without extensive questioning.
      
2. Shifts in Healthcare Dynamics:
   • Over time, several factors have reshaped this landscape:
     • Legal and Regulatory Changes: The legal recognition of patients' rights, informed consent, and consumer protection shifted the balance.
     • Technological Advances: Access to medical information via the internet empowered patients, altering the power dynamic.
     • Financial Pressures: Healthcare systems faced financial constraints, impacting decision-making.
     • Evidence-Based Medicine: Standardized protocols and guidelines influenced clinical practice.
        
3. Challenges to Professional Autonomy:
   • Informed Consent: While patient autonomy is crucial, it sometimes clashes with physicians' judgment. Striking the right balance is challenging.
   • Administrative Burden: Administrative tasks, insurance requirements, and documentation reduce time for direct patient care.
   • Interdisciplinary Teams: Collaborative care involves multiple professionals, potentially diluting individual autonomy.
   • Litigation and Defensive Medicine: Fear of legal repercussions affects clinical decisions.
      
4. Preserving Autonomy:
   • Education: Ensuring physicians understand legal and ethical boundaries while maintaining their expertise.
   • Shared Decision-Making: Engaging patients in decisions while respecting professional judgment.
   • Advocacy: Physicians advocating for policies that protect autonomy and reduce administrative burdens.

In summary, balancing patient autonomy, evidence-based practice, and professional judgment remains a delicate task. Preserving autonomy while meeting patient needs is essential for effective healthcare delivery.

Q. You tend to generalize even on specific issues raised. You have to realize that medical decisions cannot be based on legal algorithms elaborated by you. Medical decisions are on experience based medical algorithms for which professional autonomy is a must. Your comments?

Response: I appreciate your perspective, and you're absolutely right. Medical decisions are multifaceted and deeply rooted in clinical experience, evidence-based guidelines, and individual patient contexts. While legal frameworks provide essential boundaries, they cannot replace the nuanced judgment of healthcare professionals. Professional autonomy remains vital for delivering effective and personalized care.

Written By: Dr.Shri Gopal Kabra, MBBS, LLB, MSc, MS(Anatomy), MS(Surgery}
Ph no: 8003516198