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Law On Consent And Confidentiality In India

Concept Of Consent And Liability

Consent in classical liberal theory refers to the expression of autonomy and free will by competent and rational individuals who are free from coercion and pressure. It is provided under section 87-91 of the IPC. It means to agree to perform a thing. It means that the victim gave consent for the harm to occur (section 87) or that the act was done for the benefit of victim (section 88) or a guardian consented to take the risk for the benefit of a child (section 89).

It occurs in non- fatal offenses where a criminal act may have been committed. The defense of consent is available where the victim consents to the activity occurring. Consent comprises consciousness, deliberation and knowledge of the risk intended.

Consent is not valid where:

It is given under fear or injury or misconception of fact.
The person involved is aware or has reason to believe that the consent is given under fear, injury or misconception.
It is given by an intoxicated person.
It is given by a person of unsound mind.
It is given by a person under 12 year without maturity of understanding of consequences.[1]

According To Civil Laws:

If a person is giving his consent for anything he will be bound from his own words. A verbal statement of consent is as powerful as written document. Consent is an assurance of part performance by an individual. Whether it is an agreement of commercial purpose property transaction, valid forms of general & specific contract or personal affairs.

Consent creates an obligation on the consent giver. to fulfill his commitment regarding consent every contract has a reciprocal liability in which both parties have to perform as per the contract & all the transaction related to moveable & immoveable property are also governed by the contract act.

Thus consent is capturing the modus operand of each party of contract. The Indian partnership act says that creation of partnership is based on consent of parties, where termination of partnership is allowed by giving consent of dissolution the mutual consent create a partnership & terminate.

The sale of goods act, hire & purchase act. Contract for agency, bailment, indemnity & surety & pledge are related to moveable property where the Transfer of property Act 1882 is covering all the transactions of immoveable property, in which sale, exchange, lease, mortgage, gift & negotiable instruments are included the right of license is arising merely by a consent which is covered by Indian easement act 1882.

Role Of Consent In Liabilities:

Generally consent is measured as a content of valid contract but it has a very vast criterion to decide liabilities in civil laws as well as criminal's laws. As per Personal laws marriage divorce, maintenance, adoption, guardianship, succession, will, partition, religious, endowment and conversion.

All the aspects can be justified and legally executed only by consent of parties. Any familiar relationship is accepted by the concerned person through a declaration in the name of consent. Nobody can impose a familiar liability on a person who is not ready to welcome such kind of relationship.

Mediation & Arbitrary body can be formed through a mutual consent otherwise there is no scope of legal counseling in any civil dispute. The alternative dispute resolution system is based upon the concept of concept. The Lok Adalat & PLA are working successfully where parties are mutually agreed to adapt the ADR.

In many contractual dealing where both parties are in different status like legal & living persons than contract are followed through standard form in which living parties have to follow the written Terms & conditions by signing contractual draft. Today insurance policies, mutual funds, saving policies, investment policies, service facilities, rental agreement are the regular institutions where standard forms of contract are applicable.

Once a person signed it is implied that has given his consent & ready to bear concern liabilities. Thus consent has many faces in which it can be identified whether it is written or verbal declared or unrevealed, direct or implied. It can be measured by circumstances. Consent is the confirmation of notice & acknowledgement, which are the reflector of civil liability, because every breach of liability, imposes a duty on the defaulter who has given his consent that means he knows about the facts & his consent was acceptance towards.

Criminal Liability:

As per the severity of liable ratio or the consequences of a consent civil law has a progressive and positive approach where in criminal law, consent has two faces defensive and offensive as well as positive & negative. In criminal law, consent make a ground of exemption from criminal liability if a person has a valid consent from an authorized source and on another side he will be punished as an offender if has not taken an authorized consent for specific act, or he has manipulated & fabricated the consent in an offensive way.

Consensus ad idem is the basic requisite for joint liability. All the offences that are committed in the joint venture, meeting of mind or agreement for same thing & same sense is essential. Every 'actus reaus' is performed by mens rea of joint offenders or individual. Joint liability as a principal of common intention sec. 34-IPC 1860 as a concept of abatement U/s 107, or the criminal conspiracy U/s 120-A, these are the main example who executed through consensus ad idem.

The mutual consent is evaluated by the physical presence involvement, direct indirect help & co-operation in committing an offence motive, intention, object & desired outcomes are the revealing element of consent or presence of consent.

In the defensive manner an offender can save himself from a criminal liability or can change the ratio of liability in following provisions of Indian penal code 1860:

Section 87: Act not intended and not known to be likely to cause death or grievous hurt done by consent.
Section 88: Act not intended to cause death done by consent in good faith For person's benefit.
Section 89: Act done in good faith for benefit of child or insane person, by or by consent of guardian.
Section 92: Even an Act done in good faith for benefit of a person without consent is not an offense under four limitation Intended to death, hurt/grievous Hurt, or abatement.
Section 300: (When) culpable homicide is not murder, when the persons whose death is caused, being above the age of 18 yrs. suffers death or take the risks of death with his own consent.

Although this provision is not an absolute defense of the criminal liability, but in this proviso, consent can change the gravity & severity of liability and makes the punished quite liberal.[2]

Consent To Treatment

Informed consent means an agreement, compliance or permission given voluntarily without any compulsion. It can be defined as:
The voluntary and revocable agreement of a competent individual to participate in a therapeutic or research procedure, based on an adequate understanding of its nature, purpose and implications.

It is also fundamental and established principle in the Indian law. Self-defense of body (IPC sections 96 to 102, 104, 106) provides right to the protection of bodily integrity against invasion by other. All medical procedures, including examinations, diagnostic procedures and medical research on patients in the absence of consent constitute assault (IPC 351) for which he is liable in damages.

This is true except in cases of emergency where the patient is unconscious and where it is necessary to operate before consent can be obtained.
For practical purpose, we divide the consent into implied and expressed form depending upon the circumstances.

Implied Consent
This is the trust and empathy that a patient develops with his doctor when he first comes in contact and due to this empathy he allows history and examination of himself. This empathy and trust forms the basis of implied consent and is the most commonly employed type of consent in general and medical setup.

Expressed Consent
An expressed consent can be written or verbal. This is taken when any material risk is involved. Expressed consent includes informed consent, which is the ideal form of consent because it includes all aspects of meaningful decision-making where he/she can make a balanced judgment.[3]

What needs to be disclosed? Doctor's legal duty
The Legal Elements of Informed Consent Complete informed consent from a legal perspective generally requires discussion of the following:

The patient‟s diagnosis.
The nature and purpose of a proposed treatment or procedure.
The risks and benefits of a proposed treatment or procedure.
Alternatives and associated risks and benefits
The risks and benefits of not receiving or undergoing a treatment or procedure.
The special precautions required postoperatively
What the doctor recommends.

It is essential that this information be discussed in simple terminology that can be readily understood by the patient. It is also essential that the patient be given an opportunity to ask questions about his or her condition and the proposed treatment or surgery.

Requirements for Valid Informed Consent
The practice of medicine is extraordinarily complex and difficult, with little margin for error. In most situations the doctor cannot act without a patient's informed consent. In order for patients' consent to be informed and thus valid, they must be able to make a well-informed logical decision. If they agree to the treatment, understanding what it involves, they have given informed consent. Informed consent was practically non-existent till the time COPRA [Consumer Protection Act] came into existence. This is seen as more of a legal requirement than the ethical moral obligation on part of the doctor towards his patient.[4]

Informed consent is meant to force the doctor to give the patient the knowledge that will make patient to promote individual autonomy and freedom of choice.[5]

Supreme court on consent
In Samira Kohli vs Dr Prabha Manchanda[6] , the Supreme Court of India states that consent in the context of a doctor–patient relationship is defined as grant of permission by the patient for an act to be carried out by the doctor, such as a diagnostic, surgical or therapeutic procedure. Consent can be implied in some circumstances from the action of the patient.

This order gives the principles of consent with regard to medical treatment and therapeutic investigations and not for medical research/clinical trials as follows:

A doctor has to seek and secure the consent of the patient before commencing a treatment. The consent so obtained should be real and valid; the consent should be voluntary; and the consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that she/he knows what she/he is consenting to.
A balance should be maintained between the need for disclosing necessary and adequate information and at the same time avoid the possibility of the patient being deterred from agreeing to a necessary treatment or offering to undergo an unnecessary treatment.
Consent given only for a diagnostic procedure cannot be considered as consent for treatment. Consent given for a specific treatment procedure is not valid for some other treatment or procedure.
There can be a common consent for diagnostic and operative procedures where they are contemplated. There can also be a common consent for a particular surgical procedure and an additional or further procedure that may become necessary during the course of surgery.
The nature and extent of information to be furnished by the doctor to the patient.

Relationship Between Consent, Intention And Mens-Rea

Intention and consent
Intention: is an operation ofthe will. In other words, it is the last stage of mental state to do an act or omission. Still it is within knowledge of the intention holder. It means, no body in this world knows abopt the design or inclination ofthe intention-holder that what he has promised with himself (or undertaken) to do something. Whereas in case of 'consent' an offer is adhered by some one to another person to do or omit to do some act, in response to this offer either 'Yes' or 'No' is answered. If 'YES' is answered, it means the answering person has given consent to do or omit to do the act offered to him. If 'No' is answered, it means he has not consented to do or omit to do an act. Hence, existence of 'consent' takes place when there are two persons.

Therefore, whenever consent is expressed, the intention of the answering person comes in the knowledge of the world. Therefore, in cases of consent, always there is OFFER and ACCEPTANCE. Whenever acceptance is expressed it is called consent under criminal law. Whenever a person expresses his intention to do an act before a second person still it is not a consent rather it shows that he is willing to do an act yet it has come in the knowledge of another person. Therefore, in the cases of consent, first stage is when a person puts an offer to do or omit to do an act and in answer to it when the second person becomes agree to do such act and expresses it also, it amounts to consent. In nutshell the Intention is the genesis and consent is its specie.

Intention and Mens rea
All acts are done by intention of the doers but whenever any act is done with malafide ways or purpose, it becomes objectionable. If it is objectionable under civil law it is a civil wrong and when it is objectionable under criminal law, it is called criminal wrong. Therefore, a guilt full intention is mens-rea and when such mens rea is expressed to do or omit to do some act before other person in answer to an offer, it is a consent expressed to do or omit to do for a particular motive.

Hence it is necessary here to study the real circumference (i.e. meaning, scope) of mens rea so that proper identification of consent can be, marked for judging criminal liability. In other words, research on consent can be known by studying mens-rea in depth as roots are necessary to be studied for complete knowledge of a tree.

Right To Confidentiality

The age at which the Right to Confidentiality begins is yet to be defined by either the statute or the courts. For instance, the issue of confidentiality arises when a 16-year-old girl wants to know about the contraceptive procedures. Under the present legal provisions, it is unclear whether a healthcare professional should inform the parents or respect the right to confidentiality of the patient.

MTP can be done if the pregnancy is alleged by the pregnant woman to have been caused by rape, since the anguish caused by such pregnancy is presumed to constitute a grave injury to the mental health of the pregnant woman. In such situations, either the consent of the woman if she is greater or equal to 18 years or the consent of the parents/guardian if she is smaller than 18 years is obtained (Sections 3 (2) (i) and 4 (a) of the MTP Act, 1971).

Also, according to the MTP (Medical Termination of Pregnancy) Regulations, 2003 (Section 6), the admission register recording the name and other particulars of the pregnant woman who undergoes termination is a confidential document and the information contained therein should not be disclosed to any person other than those authorized by the Regulations. criminalizes sex below 18 years of age, even if it is consensual; thereby it is presumed that pregnancy is a result of rape-a criminal offence reportable to the police. Further, under Section 202 of the IPC, it is the duty of a person to communicate any criminal offence (such as rape) that he/she comes to know of to the law-enforcing authority.

Some of the rights are:

Right to Appropriate Medical Care and Humane Treatment,
Right to Information,
The Right to Choose Health Care Provider and Facility,
Right to Medical Records, Right to Privacy and Confidentiality etc.[7]

Confidentiality and privacy in healthcare:
The patient's confidentiality regarding his/her treatment is of vital importance and should be protected.

The medical information of the patient given to a health care provider shall not be divulged to others unless the patient gives his consent to disclose such information to others. The confidentiality of a patient should be maintained because the communication of personal information or records may create personal or professional problems while the patients depend on doctors to keep their medical information private.

Though it is very rare to keep the medical records or information completely undisclosed as the very common breach of confidentiality occurs when the doctors pass the medical information to others and refer it as one of their case studies.[8]

Privacy and confidentiality difference

Privacy applies to a person. Privacy means keeping the medical records restricted or in the vault from the public release because it protects the patient's identity
If in any case, such personal medical information reaches the unauthorized third party and the identity of a patient is ascertained or known without the consent of the patient then such patient can take legal action.
Whereas, confidentiality applies to the data. It refers to an individual's right to have personal and detectable medical information which remains private between the patient and the physician. It is an extension of privacy.
Confidentiality of the patient is an essential element of the personal regard for the patient and also an essential criterion to uplift an honest and transparent conversation between patient and physicians.[9]

Case: Mr. X v. Hospital Z (1998)
The Court, under Section 269 and 270 of the Indian Penal Code, held the appellant is guilty on the grounds that he knew that he had a venereal disease but still decided to marry.

Laws governing the Confidentiality and Privacy of a patient in India

According to the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, it has been stated under chapter 7- (7.14) that the registered medical practitioner shall not divulge any of the secrets of a patient that have been acquired in the exercise of his/her professional skill or while conducting the treatment.
Chapter 8- (8.2) states about the consequences of the violation. It explains that if any complaint is made with regards to the professional misconduct of any registered medical practitioner and the same was brought before the Medical Council of Disciplinary action, then, upon the receipt of the complaint, the appropriate medical council will hold an enquiry and will also give the opportunity to the registered medical practitioner to be heard in person or by a pleader.

And if during the course of the enquiry or proceeding, the registered medical practitioner is found guilty of committing professional misconduct, then he will be awarded with the punishment as it deems fit with the situation by the Medical Council or they may also direct the removal of his medical practice altogether or for only a specified period.
And under chapter 8- (8.5), if the decision is pending on the complaint registered against him, then the appropriate Council may restrict the physician from performing the procedure or practice which is under research/scrutiny.

Other than the code of ethics there are no such specific laws in India which protect the privacy and confidentiality of the patient's data.

Conclusion
Criminal liability makes a person liable for crimes committed by him and although IPC recognized the fact that criminal acts must be punished, it also took cognizance of the fact that not all acts are to be punished. Acts which is justifiable or devoid of mens rea needs to be exempted from criminal responsibility. This, the law has put in place. The accused person should also be provided the right to be heard in all these circumstances.

In common parlance, consent is an act done deliberately and by free will. It involves a deliberate exercise of intelligence based on knowledge of the significance and moral effect of the act. a doer is protected from criminal liability when he causes or takes the risk of injury with or without the consent of the sufferer as he acted in good faith and for the benefit of the person harmed. But in case of serious bodily injuries, criminal law does not recognize consent as a defense.

For example, a player consented for a certain degree of injuries in a football match but if s/he received more than that in the normal conduct of the game, then it is unlawful.

On the other hand, Confidentiality is the protection of personal information and it plays an important role to build and develop trust it also refers to an individual's right to have personal and detectable medical information which remains private between the patient and the physician. Therefore, both consent and confidentiality are two separate aspects of IPC on the same page and both plays important role in medical treatment.

Reference:

Anupriya Dhonchak, Standard of Consent in Rape Law in India: Towards an Affirmative Standard, 21 BJGLJ 29, 30 (2016
Kiran Charan, Role Of Consent In Civil & Criminal Liabilities: A Comparison, 9 Ijar 71, 71-72 (2019).
Karunakaran Mathiharan, A Detailed Insight Into General Exception Under Indian Penel Code, Law news and nation (Nov. 06, 2020, 09:10 PM), https://www.lawnn.com/generalexceptions-under-indian-penal-code-ipc/#:~:text=Consent%2D,a%20child%20(Section%2089).
Jane Lynch, Consent to Treatment (Medico-Legal Essentials) 126-127(1st ed. 2018
Kusa Kumar Shaha & Ambika Prasad Patra, The Importance of Informed Consent in Medicine, 1 SJAMS 455, 456-457 (2013).
(2008) 2SCC 1 Para 32.
Charles Petrick Davis, Patient Rights, emedicine health (Nov. 07, 2020, 10:50 PM), https://www.emedicinehealth.com/patient_rights/article_em.htm
Bridgit Dimond, Legal Aspects of Patient Confidentiality, 53 (2nd ed. 2010).
Jacinta O.A. Tan, Consent and Confidentiality in Clinical Work with Young People, 12 Sage 191, 192-193 (2007).