Patient autonomy within real or valid consent: Samira Kohli’s case

Supriya Subramani

DOI: 10.20529/IJME.2017.038


Abstract

In bioethics literature, the primary justification for the requirement of informed consent has been the protection of autonomous choices. To allow patients to be autonomous decision-makers, physicians are supposed to disclose and share information related to all treatment, procedures and risks. Advocates of the autonomy-based informed consent model argue that in informed consent cases, the disclosure of information should be according to the reasonable person standard or reasonable patient standard, rather than the average competent physician standard. In the Indian medicolegal context, the concept of consent has evolved through the discussion of informed consent and by referring to the concepts of informed consent in other countries, such as the USA, the UK and Canada. In cases of medical negligence in India, the concept of “real or valid consent” has been adopted from British case law rather than the “informed consent” of the USA. This paper examines the doctrinal rules of the concept of real or valid consent through an analysis of Samira Kohli’s case – a landmark court case and a major precedent case in India that referred to “real or valid consent”. In analysing this case, the paper will examine the judiciary’s decision on the nature of and standard for the disclosure of information. Thus, the paper will reflect on the underlying ethical and legal principles of the doctrine of real or valid consent in the Indian context. This paper uses a hermeneutic approach to the landmark case to provide a qualitative interpretation of the Indian medical judiciary’s concept of consent and the autonomy of the patient.

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