“INFORMED CONSENT”

SUBMITTED BY:

ANKIT NATH JHA B.A LLB (HONS)

SUBMITTED TO :
MISS SNEHA

FACULTY OF TORTS

This rough draft is submitted in the partial fulfilment in Torts for the
completion of BA L.L.B course.

Chanakya National Law University, Patna

 I. INTRODUCTION
“Two or more persons are said to consent when they agree upon the same thing in the same
sense.”
------- SECTION 13. INDIAN CONTRACT ACT,1872
Consent is set to occur, according to Indian Contract Act,1872, in layman’s term, when one
voluntarily agrees to the proposal or desires of another.Now in medico-legal terminology,a
word comes up as the “Informed Consent”.The Cambridge Dictionary defines Informed
Consent as, “agreement or permission to do something from someone who has given full
information about the possible effects or results”.
The Lack of Informed Consent is generally covered under Tort Law, a tort is basically a civil
wrong done by the Tortfeasor(wrongdoer) by breach of duty which as a result causes legal
injury to the plaintiff.The Lack of Informed Consent is an unintentional tort that arises under
negligence.Initially,the basis of Claim on Informed Consent was action on Battery.Battery is a
tort that occurs intentionally with the action of wrongdoer.However,the lack of informed
consent may or may not be intentional on the part of Doctor.So,in line of keeping it in Public
Policy,the basis was changed from Battery based claim to the Negligence based claim.This
decision was taken because the Insurance mostly covers the Unintentional Torts and not
Intentional Torts. This was a public policy decision trying to create a fair remedy for injured
patients, but also not putting physicians in financial danger due to unintentional infringements.
There are 4 elements to a claim of lack of informed consent:
1. DUTY
2. BREACH
3. CAUSATION
4. DAMAGES
Duty is the issue of whether a physician has a duty to a patient and what that duty is.
Breach means that a duty existed and the duty was breached by the defendant (doctor).The
Plaintiff (patient) has to show that there was a want of standard of care on the part of the
defendant and the defendant (doctor) did not provide the standard of care that was required.The
standard is not an average doctor,rather the standard of care is proven by expert testimony.This
is so because, had the standard was that of an average doctor,it would imply that half of the
practising doctors are providing care below the standard of care.
Causation means that the breach of duty by the defendant actually caused the injury that the
patient claimed of.
Damages basically means that the monetary value can be assigned to the injury. The first
prerequisite is the physical injury to the patient,even if that is trivial in nature.A patient cannot
claim damages for anxiety or mental suffering unless there was a physical injury to trigger
it.Once the patient can establish the injury that was physical in nature then they can also claim
damages for suffering and pain.
II. Objectives
a. The Researcher wants to know about the inception of Informed Consent.
b. The Researcher wants to find about the evolution of the procedure of Informed
consent from one era to another.
III. Hypothesis
a. The procedure of informed consent is unnecessary since the medical practitioner
has more command on the subject as that of the patient, and that the practitioner
shall be given a free reign to handle the patient without any hassle.
IV. Research Methodology
a. The researcher will do doctrinal type of research in which he will go through
the primary as well secondary sources. The researcher through this
methodology will be able to get bird’s eye view of the problem in question. The
doctrinal method helps in doing a comparative study of the topic. This
methodology helps in going through not only the work of one eminent person
but of many other too.
For smooth research work,the researcher would comb through the various case
laws to understand the nitty-gritty nuances of the topic.
V. Sources of Data Collection
a. The researcher will collect the data from both the primary as well as secondary
sources.
i. Primary Sources
1. Indian Contract Act,1872
ii. Secondary Sources
1. Journals
2. Books
3. Magazines
VI. Limitation of the Study
a. Since the researcher is student of law,he has very less time to analyse something
of this vast stature.The topic being very specific has made it difficult to study
the nuances and subtleties of the topic.Howver,the Researcher has tried his best
to analyse and study the topic.
VII. Scope of Study
a. The research if implemented will make the patients in general understand how
much important is the idea of informed consent,which at times they due to lack
of knowledge miss out.This can cause them the lack of basic knowledge of the
consequences of the very treatment they are undergoing.
VIII. Tentative Chapterization
a. Informed Consent: The Inception
b. The Need for Informed Consent
c. Cases pertaining to Informed Consent in ambit of Volenti Non Fit Injuria
d. Conclusion
IX. Bibliography
a. Primary Source
i. Indian Contract Act,1872
b. Secondary Source
i. Torts: Cases and Materials by Aaron Twerski, James A. Henderson, W.
Bradley Wendel