This medical jurisprudence article on the rights of patients and doctors crafted by Aastik Dhingra is based on the research and decisions of various courts, read the article for in-depth knowledge.  I. Introduction The last year has been tumultuous. The reason is not even up for any guesses, the Covid-19 Virus. The effects are not over, may even… Read More »

This medical jurisprudence article on the rights of patients and doctors crafted by Aastik Dhingra is based on the research and decisions of various courts, read the article for in-depth knowledge.

I. Introduction

The last year has been tumultuous. The reason is not even up for any guesses, the Covid-19 Virus. The effects are not over, may even be visible over the next few years. Many people say that life would not be the same and it would be marked as Post Covid-19. The situation was unprecedented, with the world at a stand-still. Along with the medical emergency it brought economic, cultural, and other problems as well. It showed how underdeveloped our infrastructure is especially medical infrastructure.

The medical situation around the globe was/is out of control. Even the developed countries were also trumped, pun intended. The threat even bigger in developing and underdeveloped countries. The spread of the virus created confusion among the masses, governments, and I would say even God and a monstrous challenge. Resultantly, a lockdown was imposed in many countries including India. The medical infrastructure was not ready for such a pandemic, over 2.5 Million people lost their lives. The virus spared no one, directly or indirectly, especially with the lockdown in place.

With there being minimum knowledge of the virus, the treatment of the same was not available either. Many doctors shut down their clinics, hospitals were also not functional to a large extent. The problem was not just restricted to Covid-19, in certain cities there was a medical emergency where there were no medical treatments available as no doctors were accepting patients. Private medical facilities, which one usually relies on were operating at a bare minimum, the only option left for the population at large were government hospitals. Besides a few hospitals which have state-of-the-art facilities, the situation in these hospitals is worrisome, to say the least, their best is usually not enough.

II. A Noble Profession

“Wherever the art of Medicine is loved, there is also a love of Humanity.”- Hippocrates

The noblest of professions have their limitations too. There is no doubt that medical professionals are considered next to God, they are our best to survive. But they cannot be held accountable as gods and God gets away with much worse, right?

A number of reasons can come between one’s treatment such as hospital policy, money, social stigmas, consent to operate, etc. What must be understood is, can a doctor deny treatment to a patient? Or can he say that I will admit you once I know you can pay my fees? Or I will wait till I complete the formalities of the hospital? The answer may not be as simple. Because in an emergency situation he may not say no, otherwise he has a right to choose the patient. No professional is expected to work for free. Why should a doctor be held differently? Nonetheless, a doctor must treat a patient when one is fighting for her/his life.

The Medical Code of Conduct under clause 2.4 states that

A patient must not be neglected: A physician is free to choose whom he will serve. He should, however, respond to any request for his assistance in an emergency.”

Having mentioned the doctor’s duty as aforementioned, it does not attach any strict liability if a doctor refuses to attend to a patient. Thus, making it very subjective. Justice Markandey Katju opined that the medical profession is a noble profession and it should not be brought down to the level of a simple business or commerce.[1] Constitutions, religious texts, judicial texts across the world have accepted the fact that life is of paramount importance. Preservation of life is the most important and noblest of things. But once life is lost, the status quo ante cannot be restored as resurrection is beyond the capacity of man.

Therefore, every doctor, be it a state-funded hospital or a private practitioner has the professional obligation to extend his services with due expertise towards protecting life.[2] India being a welfare state, it is the duty of the state to ensure that laws do not become an impediment to the preservation of life. What is important here is that the background/social standing of the patient does not hamper the process of her/his treatment.

The patient whether he be a criminal or an innocent person, the medical professionals must preserve her/her life. Primarily, it is the responsibility of the state to ensure adequate medical assistance for people from all walks of life. Unfortunately, we do not live in an ideal world, especially in India statues trump infrastructure, two minutes silence for Ayushman Bhaarat.

There have been a couple of occasions wherein certain states rolled out policies that people from other states may not be eligible for treatments.[3] But, if a state rolls out a law that a particular sect, community, or a person from outside the state cannot be treated in a hospital or in any hospital in a state, that law would be unconstitutional. It is the bounden duty of a doctor to preserve life.

The Delhi High Court quashed the order of the Medical Director, Guru Teg Bahadur Hospital, Government of NCT of Delhi whereby patients who do not hold a valid Voter ID Card of Delhi were categorized as non-Delhi patients and thereby denied certain facilities for treatment in a Government hospital being violative of Article 21 of the Constitution of India.[4]

If a patient is brought to a hospital, the duty of the doctors is to preserve life first, impediments like financial resources, govt. circulars, hospital policies should not cause a delay in providing first aid in emergency conditions. The law requires the doctor to stabilize the patient before transferring or referring her/him to another doctor/hospital.[5] What happens when an indigent person approaches emergency situations. The obligation would be on the medical practitioner to undertake the emergency procedures and stabilize the patient.

Needless to say, it is the responsibility of the state to provide medical facilities. Nobody should have to rely on private hospitals. The Supreme Court observed that the government hospitals run by the state and the medical officers employed therein are duty-bound to extend medical assistance for preserving human life. Failure on the part of a Government hospital to provide timely medical treatment to a person in need of such treatment results in a violation of his right to life guaranteed under Article 21. The state cannot shy away from the responsibility and non-observation of the same could entitle the sufferer with adequate compensation.[6]

III. Informed Consent

Now, that we have established that medicine is a noble profession. It is also not a secret that every profession is governed by a code of conduct, the medical profession is no exception. The first and basic code of medical ethics is almost 2500 years old. This is the universally known Hippocratic Oath, laid down by Hippocrates and his school in ancient Greece.[7] The oath does not create any liability on a medical professional, makes sense to call oneself Hippocrates. Though the oath is vague, it touches upon various aspects of medical professional conduct. The one that stands out for the discussion is

“…Into whatsoever houses I enter, I will enter to help the sick, and I will abstain from all intentional wrong-doing and harm, especially from abusing the bodies of man or woman, bond or free.

The philosophy of seeking consent culminates from the fact that every human being of adult years and sound mind has a right to determine what shall be done with his own body. A surgeon who performs an operation without a patient’s consent commits an assault for which he is liable in damages[8].

In the 1920s German physicists and surgeons adopted unorthodox procedures which were highly criticized. As a result, the German government introduced a code for medical practitioners which also emphasized seeking consent before performing and procedure/treatment. Well, I am sure Hitler strictly adhered to human rights. It is often suggested that the Reich government blatantly disregarded these rules themselves in pursuit of a pure race. However, these rules were highlighted once again during the Nuremberg Trials.

These rules are a refined version of the Hippocratic Oath and adopted in the Declaration of Geneva,1948. These regulations are universally appreciated and incorporated in the medical code of ethics. The medical professionals in India are bound by Indian Medical Council (Professional Conduct, Etiquette and Ethics/Regulations, 2002), which ensures that all the students submit a declaration that they will abide by the aforementioned code[9].

The term ‘informed consent’ was first used by Justice Bray in Salgo v. Lenand Stanford, Jr., University Board of Trustees wherein it was held that

A physician violates his duty to the patient and subjects himself to liability if he withholds any fact that is necessary to form the basis of an intelligent consent by the patient to the proposed treatment.

It is a settled law that once a diagnosis has been done, the doctors are required to make full disclosure to the patient or his family and advise on the proposed treatment with specific details. It is only after such disclosure and receiving consent to perform the mentioned procedure a medical professional can go ahead with the procedure. Informed consent is not a formality but an ongoing process, and informative conversation extending over time, which must

  1. disclosing nature, purpose, and procedure of the treatment with its benefits and effects;
  2. suggest alternatives (if any);
  3. disclose the outline of the substantial risks;
  4. highlight the adverse consequences of refusing treatment,[10] and
  5. outline the side effects of the procedure,

The doctors do not have to explain the theoretical aspects of the procedure. The consent obtained has to be specific. The doctor cannot deviate from the procedure. The only exception to this rule is if, during the procedure, an unforeseen and sudden development makes it necessary to save/preserve the life of the patient and any delay would be unreasonable and/or fatal.

IV. Who takes and gives consent?

The treating doctor is responsible to take consent as any other attendant may not be able to explain the procedure, risks, benefits, alternatives available etc. In a normal situation it is the patient who has to give the consent but wherever that is not possible due to unconsciousness or incapacity, tender age etc. a family member may provide the same as the patient’s surrogate.

In the case of minors, a surrogate is eligible to provide consent because the law presumes that minors are incompetent unless they understand the nature and effects of treatment and the consequences of refusal.[11]However, the surrogate should be of sound mind and an adult who should be in the capacity to understand and consent to the same. More often than not, people provide their consent for the procedures as prescribed by the medical professional. But there are certain cases wherein the patient may not provide consent. It could be due to religious beliefs, undue influence of a family member, social stigmas, etc.

There could many a time be a dilemma among different family members regarding consent, the best way to resolve that is to seek consent from the legal guardian. If there is confusion with regard to a legal guardian, one can always get a judicial order, if the time permits. An interesting case where neither the minor nor his father consented to the procedure. Hoping for alternative remedies to serve as a cure for his cancer.

The court disregarded their dissent and vested the consent power to itself on the minor’s behalf[12] against the popular view considering the best interests of the child. It is safe to assume that Indian courts will follow a similar path. An important aspect to be considered by courts is whether the decision is really of the patient? Does the patient really mean what she/he says or is merely saying it for a quiet life under someone else’s pressure,[13] and proceed in a manner that serves the best interests of the patient?

While admitting a patient, the hospitals get a consent form. The significance is to inform the patient/relatives of the seriousness of the condition and the attached treatment and complications. While hospitals/doctors obtain consent forms, the responsibility of the person signing such forms is to enquire and completely understand the procedure and then make an informed decision. Under contract law, any consent obtained under undue influence can be invalidated by a court of law. However, the cases on undue influence in the law of property and contract are not applicable to the consent to medical or surgical treatment.

The wife who guarantees her husband’s debts, or the widower who leaves all his property to his housekeeper, is not in the same situation as a patient faced with the need for medical treatment.[14] Therefore, if at the time of seeking consent, the doctor takes care of all the parameters, the consent cannot be later invalidated.

V. Remedies for Negligence of a Doctor

“Isn’t it a bit unnerving that doctors call what they do “practice”?” George Carlin

While we may hold doctors next to God, they are really humans who are doing their best. Their goodness/ nobility may not always be rewarding. It is by abundant precaution hospitals document written consent from the patients. A few hospitals even include a no-liability clause in the consent forms to ensure that no legal actions could be brought in by unhappy patients/relatives. Is such consent legally valid? As far as the consent with regard to performing the procedure is concerned, that is valid. But the no-fault liability clause is invalid and illegal.

The doctor/hospital cannot outrun legal ramifications for medical negligence. If found negligent, they are liable for punishment. For unethical practices they may be reported to the disciplinary committee constituted under the Indian Medical Council Act. Furthermore, negligence causing death can also be reported under section 304A of the Indian Penal Code. But what constitutes negligence will depend upon the circumstances of each case.

The Supreme Court held that where a patient dies due to the negligent medical treatment of the doctor, the doctor can be made liable in civil law for paying compensation and damages. However, if the degree of negligence is so gross, his act being reckless as to endanger the life of the patient, he would also be made criminally liable for offense under Section 304A of IPC.[15]

The Hon’ble Supreme Court has held that a patient is a consumer under the Consumer Protection Act,1986. Therefore, a doctor/hospital where one has charged for her/his services is a service provider and is liable to pay damages and compensation in cases of negligence under the act. Since proceedings before consumer forums are summary in nature it is better suited than a civil suit. Negligence in the medical profession is subjective, therefore, the law recognizes and protects the rights of medical professionals.

Understanding that many patients may hold a grudge and file complaints out of spite the apex court has held that a doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him).[16] A medical procedure has an inherent risk attached, the doctor is expected to keep these risks at a minimum. If every mishap is termed as negligence, that would be disastrous to the community as doctors will not be able to perform their duties without fear.

The court elaborated on this principle and stated that before issuing notice in medical negligence cases a court must satisfy itself by referring the matter to a specialized committee to establish a prima facie case, to avoid unnecessary harassment of the medical professionals.[17]

VI. The fault does not lie with the Doctor

From the time of Sushruta till today, medical professionals have proved to be a boon to society. Medical professionals and the frontline warriors have shown impeccable character during the pandemic. A report published by IMA in October 2020 suggested that over 500 doctors have succumbed to Covid-19 who were infected during their services. The count would be much more now. If we add the number of all the frontline warriors of Covid-19, the count would be exponentially larger.

The medical professionals once again proved that they are not here just to mint money, with some exceptions of-course. In the end, even doctors are humans and as they say ‘to err is human’. Our country has seen vicious attacks on doctors and hospitals on a number of occasions. They operate in an area that leads to survival and death, because of which they often bear the brunt of extreme emotions, sometimes exceptionally extreme. Even when doctors do their best, many a time disgruntled patients may feel otherwise and be motivated to file complaints. Therefore, doctors need protection from such frivolous complaints and harassment.

It is appropriate that arrest should not be made in every instance of a complaint against a doctor while balancing the rights of the patients. While discussing the duties of a doctor and the rights of the patient we must acknowledge and hold accountable the state for the inadequate infrastructure. Fundamentally, we are a capitalist yet a welfare state. Therefore, the duty is cast upon the government, wealth creators cannot act as social workers. Capitalists thrive in our economy, the government needs to thrive too.

A doctor may or may not be wrong but it is the state which is definitely the culprit and negligent for inadequate medical services. In the end, I am reminded of Paul Farmer who said

It is very expensive to give bad medical care to poor people in a rich country.” Mic-Drop!


[1] Martin F. D’ Souza v. Mohd. Ishfaq (2009) 3 SCC 1

[2] Pt. Parmanand Katara v. Union of India, 1989 SCR (3) 997- AIR 1989 SC 2039

[3] Deccan Herald, No COVID-19 treatment for outsiders in Delhi for some months, Available here

[4] Social Jurist, A Civil Rights v. Government Of Nct Of Delhi And Anr, W.P.(C) 10585/2018 & CM APPL. 41279/2018

[5] Paschim Banga Khet Mazdoor Samity and Ors v. State of West Bengal and Another, 1996 4 SCC 37

[6] Consumer Education and Research Centre v. Union of India, 1995 (3) SCC 42

[7] Textbook of Forensic Medicine and Toxicology, Page 347

[8] Schloendorff v. Society of New York Hospital, 1914

[9] Chapter 1, Indian Medical Council (Professional Conduct, Etiquette and Ethics/Regulations, 2002)

[10] Samira Kohli v. Dr. Prabha Manchanda & Another, 1 (2008)CPJ 56 (SC)

[11] Gillick v. West Norfolk and Wisbech Area Health Authority [1986] AC 112

[12] Re Dueck 171 DLR (4th) 761 [1999]

[13] [1992] 4 All ER at 662

[14] Re T (Adult: Refusal of Treatment) [1992] 4 All ER 649 at 669

[15] Dr. Suresh Gupta v. Government of N.C.T. of Delhi, August 4, 2004, Supreme Court of India, AIR 2004 SC 4091

[16] Jacob Mathew v. State of Punjab and Anr, (2005) 6 SCC 1

[17] Supra ‘1’

  1. Law Library: Notes and Study Material for LLB, LLM, Judiciary and Entrance Exams
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Updated On 5 March 2021 12:50 AM GMT
Aastik Dhingra

Aastik Dhingra

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