Legal Provisions Regarding “Consent in India – Section 87 to 92 of IPC

In certain occasions, the doctors do operation for the benefit of the patients. If the operation success, the patient and his/her relatives are happy. If the operation fails, the patient and his/her relatives become unhappy.

In December, 2007, in Gandhi Hospital and Nayapool Hospital, certain incidents took place. In Gandhi Hospital, a patient died. Her relatives and political leaders attacked the doctors and had beaten them.

The doctors agitated. As soon as it was cooled down, another incident took place at Nayapool Hospital. The A. P. State Government brought an Ordinance for the protection of the medical practitioners. Such things also happen in the private hospitals.

The incidents, which happened in Hyderabad, are not good for the society. There must be good relations between the patients and the doctors. It is the duty of the Government to provide medicines, sufficient staff, and other facilities to the Government hospitals.

It is learnt that one Government doctor is compelled to examine 150 to 200 patients a day. That too without sufficient medicines and medical facilities.

This is a social thing. Coming to the legal matters, if a person is required treatment or operation, and in that particular occasion, a doctor performs operation with or without the consent of that person, and if that person dies, such doctor cannot be sued.

Some of the Sections from 87 to 95 of the Indian Penal Code say about this particular legal matter, i.e., consent. Mere reading of these Sections, illustrations, is sufficient to understand the effectiveness of “consent”.

The term “consent” means acquiescence, concurrence (n.) to be of one mind; to comply (v.t.).

Section 10 of the Indian Contract Act, 1872 says that “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, and are not hereby expressly declared to be void.”

Section 10 also provides that unless law requires, such contract need not be registered or need not be in writing.

This is the legal position of consent and contract in the Law of the Contract.

Getting operation, treatment or any other services, etc., come within the meaning of contract. If we approach a medical practitioner for treatment, it means we have a contract between us and that medical practitioner. If the medical practitioner does any negligence, he shall be held liable under the Consumer Protection Act, 1986, and also under the Indian Penal Code, 1860.

However, in certain occasions, the patient would not be in a position to give his consent, and his near and dear are not readily with him. The Doctor should operate him. Else the patient dies. Even after conducting the operation, the patient may die. It is another thing.

As a doctor, he should immediately attend operation. In such circumstances, such doctor need not see for consent of the patient or his near and dear, and he immediately should attend the operation with bona fide (good faith) with a hope that if the operation is done, the patient may live. In such circumstances, even after the operation, if the patient dies, the doctor can be blamed neither under the IPC nor under the Consumer Protection Act.

Section 52 of IPC provides:

“Nothing is said to be done or believed in “good faith” which is done or believed without due care and attention.”

The acts done in “good faith” under urgency and unavoidable circumstances to safe the property or lives of the persons, cannot held as offences.

This is explained hereunder:

Sec. 87. Act not intended and not known to be likely to cause death or grievous hurt, done by consent:

Nothing which is not intended to cause death, or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, to any person, above eighteen years of age, who has given consent, whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm.

Illustration:

A and Z agree to fence-with each other for amusement. This agreement implies the consent of each to suffer any harm which in the course of such fencing, may be caused without foul play; and if A, while playing fairly, hurts Z, A commits no offence.

Sec. 88. Act not intended to cause death, done by consent in good faith for person’s benefit:

Nothing, which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm.

Illustration:

A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under a painful complaint, but not intending to cause Z’s death, and intending, in good faith Z’s benefit, performs that operation on Z with Z’s consent. A has committed no offence.

Sec. 89. Act done in good faith for benefit of child or insane person, by or by consent of guardian:

Nothing which is done in good faith for the benefit of a person under twelve years of age, or of unsound mind, by or by consent, either express or implied, of the guardian or other person having lawful charge of that person, is an offence by reason of any harm which it may cause, or be intended by the doer to cause or be known by the doer to be likely to cause to that person:

Provisos: Provided,—

Firstly:

That this exception shall not extend to the intentional causing of death, or to the attempting to cause death;

Secondly:

That this exception shall not extend to the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or infirmity;

Thirdly:

That this exception shall not extend to the voluntary causing of grievous hurt, or to the attempting to cause grievous hurt, unless it be for the purpose of preventing death or grievous hurt, or the curing of any grievous disease or infirmity;

Fourthly:

That this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend.

Illustration:

A, in good faith, for his child’s benefit without his child’s consent, has his child cut for the stone by a surgeon, knowing it to be likely that the operation will cause the child’s death, but not intending to cause the child’s death. A is within the exception; inasmuch as his object was the cure of the child.

Sec. 90. Consent known to be given under fear or misconception:

A consent is not such a consent as is intended by any Section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or

Consent of insane person:

If the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or

Consent of child:

Unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.

Sec.91. Exclusion of acts which are offences independently of harm caused:

The exceptions in Sections 87, 88 and 89 do not extend to acts which are offences independently of any harm which they may cause, or be intended to cause, or be known to be likely to cause, to the person giving the consent, or on whose behalf the consent is given.

Illustration:

Causing miscarriage (unless caused in good faith for the purpose of saving the life of the woman) is an offence independently of any harm which it may cause or be intended to cause to the woman.

Therefore, it is not an offence “by reason of such harm”; and the consent of the woman or of her guardian to the causing of such miscarriage does not justify the act.

Sec. 92. Act done in good faith for benefit of a person without consent:

Nothing is an offence by reason of any harm which it may cause to a person for whose benefit it is done in good faith, even without that person’s consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent, and has no guardian or other person in lawful charge of him from whom it is possible to obtain consent in time for the thing to be done with benefit:

Provisos:— Provided,—

Firstly:

That this exception shall not extend to the intentional causing of death, or the attempting to cause death;

Secondly:

That this exception shall not extend to the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or infirmity;

Thirdly:

That this exception shall not extend to the voluntary causing of hurt, or to the attempting to cause hurt, for any purpose other than the preventing of death or hurt;

Fourthly:

That this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend.

Illustrations:

(a) Z is thrown from his horse, and is insensible. A, a surgeon finds that Z requires to be trepanned. A, not intending Z’s death, but in good faith for Z’s benefit, performs the trepan before Z recovers his power of judging for himself. A has committed no offence.

(b) Z is carried off by a tiger. A fires at the tiger knowing it to be likely that the shot may kill Z, but not intending to kill Z, and in good faith intending Z’s benefit. A’s bullet gives Z a mortal wound. A has committed no offence.

(c) A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation be immediately performed. There is no time to apply to the child’s guardian. A performs the operation in spite of the entreaties of the child, intending in good faith, the child’s benefit. A has committed no offence.

(d) A is in a house which is on fire, with Z, a child. People below hold out a blanket. A drops the child from the housetop, knowing it to be likely that the fall may kill the child, but not intending to kill the child, and intending, in good faith, the child’s benefit. Here, even if the child is killed by the fall, A has committed no offence.

Explanation:

Mere pecuniary benefit is not benefit within the meaning of Sections 88, 89 and 92.

Sec. 93. Communication made in good faith:

No communication made in good faith is an offence by reason of any harm to the person to whom it is made, if it is made for the benefit of that person.

Illustration:

A, a surgeon, in good faith, communicates to a patient his opinion that he cannot live. The patient dies in consequence of the shock. A has committed no offence, though he knew it to be likely that the communication might cause the patient’s death.

Sec. 94. Act to which a person is compelled by threats:

Except murder, and offences against the State punishable with death, nothing is an offence which is done by a person who is compelled to do it by threats, which, at the time of doing it, reasonably cause the apprehension that instant death to that person will otherwise be the consequence:

Provided the person doing that act did not of his own accord, or from a reasonable apprehension of harm to himself short of instant death, place himself in the situation by which he became subject to such constraint.

Explanation-1:

A person who, of his own accord, or by reason of a threat of being beaten, joins a gang of dacoits, knowing their character, is not entitled to the benefit of this exception, on the ground of his having been compelled by his associates to do anything that is an offence by law.

Explanation-2:

A person seized by a gang of dacoits, and forced, by threat of instant death, to do a thing which is an offence by law; for example, a smith compelled to take his tools and to force the door of a house for the dacoits to enter and plunder it, is entitled to the benefit of this exception.

Sec. 95. Act causing slight harm:

Nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm.

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