Consent and Medical Negligence — Types of Consent, Minors, Emergencies, Bolam Test, Jacob Mathew and BNS 106

Consent is a patient's voluntary agreement to an examination, investigation or treatment. It rests on autonomy — the principle, stated as early as Schloendorff (1914), that every adult of sound mind has the right to decide what is done to their own body. A valid consent needs a competent patient, voluntary agreement without coercion, and adequate information.

StatPearls lists the elements that must be documented for informed consent (a Joint Commission requirement in the US). The same elements are tested in Indian exams.

1. The nature of the procedure or intervention.
2. Its risks and benefits.
3. Reasonable alternatives.
4. The risks and benefits of the alternatives (including no treatment).
5. An assessment of the patient's understanding — for example the teach-back method.

How much must be disclosed? The NMC 2023 consent guideline adopts the reasonable patient standard: information should include all that the patient would need to know to decide, citing Montgomery v Lanarkshire Health Board, and particularly the most common side effects and complications. Consent must be in a language the patient understands, with no deception or coercion; consent to an illegal procedure is never valid.

Since 1 July 2024 the general exceptions of the IPC have been re-enacted in the Bharatiya Nyaya Sanhita, 2023. These four sections are the legal basis of medical consent and appear frequently as 'match the following' items.

In Jacob Mathew v State of Punjab (Supreme Court, 5 August 2005), negligence was defined as the breach of a duty caused by omitting to do what a reasonable person would do, or doing what a prudent and reasonable person would not do. Its three essential components are duty, breach and resulting damage.

• A simple lack of care, an error of judgement or an accident is not proof of negligence by a medical professional.
• A doctor who follows a practice acceptable to the profession at that time is not negligent merely because a better method existed or a more skilled doctor would have chosen differently.
• The standard is that of an ordinary competent practitioner exercising ordinary skill — not the highest expert in the field.
• Care is judged by the knowledge available at the time of the incident, not at the date of trial; failure to use equipment not generally available then is not negligence.
• A doctor can be liable either for not possessing the skill professed, or for not exercising it with reasonable competence.

The Bolam test comes from Bolam v Friern Hospital Management Committee [1957] 1 WLR 582: a doctor is not negligent if they acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even if a body of adverse opinion also exists. The Supreme Court held in Jacob Mathew that the Bolam test holds good in India.

BNS 106(1) replaces IPC 304A (causing death by negligence). Anyone who causes death by a rash or negligent act not amounting to culpable homicide can be imprisoned for up to five years with fine. But if the act is done by a registered medical practitioner while performing a medical procedure, the maximum is two years with fine.

• 'Registered medical practitioner' = holds a qualification recognised under the NMC Act, 2019 and is entered in the National or a State Medical Register.
• BNS 106(2) (hit-and-run driving) was not brought into force on 1 July 2024; 106(1) is in force.
• The Jacob Mathew requirement of gross negligence still governs prosecution of doctors.

The National Medical Commission Registered Medical Practitioner (Professional Conduct) Regulations, 2023 were notified in the Gazette on 2 August 2023. On 23 August 2023 the NMC issued an amendment that held them in abeyance with immediate effect until a further Gazette notification, and adopted the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 as effective. Exams still ask what the 2023 version proposed, so know both.