Assess the importance of informed consent in medical

practice and its legal implications.

 Evaluate the legal consequences of medical

negligence and the process for claiming
compensation.
CONSENT

Latin con, = 'together' with sentire, = 'to feel,

think or judge'.

'to agree together . . . to agree on a matter or

as to a course of action'.
Doctor-patient relationship is a
contractual relationship

Paternalism is a concept of the

past
Core Principles of Medical Ethics

Autonomy
Beneficence
Non-Maleficence
Justice
BASIS OF CONSENT

Autonomy = self-rule (Greek)

 Autonomy

Informed Consent
- Consent is a fundamental principle in human
experimentation.
 Autonomy

Patient Autonomy vs. Legal Authority

A patient refuses life-saving treatment due to

religious beliefs. The hospital seeks legal
intervention to override the decision.
Doing Good

• Pakistani Law: Physicians must act in

patients’ best interest
• -International Perspective
• Belmont Report (1978) Focuses on
beneficence in research.

10
Do No Harm
• The Declaration of Geneva: Updated
in 2017 to emphasize avoiding patient
harm.
•

11
Fair Treatment
• European Convention on Human
Rights (ECHR)
• Right to non-discrimination in
healthcare.

12
FUNCTION OF CONSENT

 legitimates an otherwise forbidden acts. *

 provides a rights-bearer with control of his right
 creates new obligations
 creates rights for others

* Battery, Assault, Hurt

consent

Types of consent

Implied
Express - Oral or verbal
Written or documented
Blanket consent
EXPRESSED CONSENT
 Oral
 Written
INFORMED CONSENT

legal responsibility to ensure that the patient

understands rests with the physician and
not with the patient.
CONSENT IN RELATION OF CERTAIN
THERAPEUTIC AND DIAGNOSTIC
PURPOSES

• Doctrine of informed consent

• Informed nature of illness

• Nature of operation/procedure
• Alternative treatment
• Consequences
• Complication

Rule of full disclosure

ESSENTIALS OF A VALID CONSENT

 Voluntarily and Free

 Done for Lawful act
 Competent (age, intoxication, mental status)

 Informed
 No misrepresentation, fraud
 Without pressure, duress, undue influence
 (It is more than saying ‘Yes’ or ‘Signing on the dotted line’)
consent

Obligatory written consent

1 Surgical operations under general anesthesia
2 Dental operations under general anesthesia
3 Administration of GA for any purpose
4 Termination of pregnancy
5 Examination of persons in police custody at latter’s
request
6 Taking of blood from persons suspected to have an
intoxicant in their blood
7 Any invasive procedure
CONDITIONS MODIFYING
CONSENT

 Emergencies
 Lunatics
 Children
 Psychiatric patients
 Prisoners (organ donation etc)
 Spouses
 unlawful acts (abortion cases etc)
 Research/trials on humans
CONDITIONS IN WHICH CONSENT MAY
NOT BE OBTAINED

 Medical emergencies
 Notifiable disease
 Examined at the request of police,by use
of force
DOCTRINE OF EMERGENCY

 The doctor can provide treatment without obtaining prior consent

 Unconscious /critically ill

 Law presumes consent believed to be given and

protects the doctor’s interest giving him immunity from
proceeding against him/her for damages
Doctrine of therapeutic privilege

 May not be possible to explain everything to

the patient
CONSENT BY PROXY

 In place of parents
 Legal obligations as parents
 Grandparents, elder brother /sister

 Doctrine of loco parentis

CONSENT IN MEDICO LEGAL
CASES
 Marriage and conjugal obligations
 Pregnancy and delivery
 Medical termination of pregnancy
 Examination of a rape victim
 Examining any medico-legal case
 Consent and negligence charges
 Consent in drunkenness
 Examination of criminal cases
CONSENT IN RELATION TO
AUTOPSY
• Medico-legal autopsy
• Pathological /hospital autopsy
CONSENT IN RELATION TO
ORGAN TRANSPLANTATION
 In living
 Above 18 years of age
 In dead
WITHDRAWAL OF CONSENT

consent may be withdrawn, at any stage

of medical diagnosis or treatment and in
participation in scientific or medical
research.
REFUSAL OF CONSENT
Patients may refuse to consent to treatment
Where a court finds a refusal of medical

(to protect the patient against himself).

 a refusal should seemingly carry as much weight
as consent, a ‘no’ should mean as much as a
‘yes’.
consent

Invalid consent
consent

Compulsory medical examinations

1 Prisoners in jails for routine physical examination

2 Magistrates may remand prisoners for med exam
3 Probation orders regarding mental conditions
requiring treatment
4 Persons believed to be suffering from notifiable
diseases
5 Compulsory treatment for tuberculosis in some
countries
6. PORT/AIRPORT MOS CAN COMPEL IMMIGRANTS TO EXCLUDE
INFECTION

7. OBLIGATORY MED EXAM FOR FOOD HANDLERS/DAIRY

WORKERS

8. SCHOOL HEALTH EXAMINATIONS UNDER THE SCHOOL HEALTH

AUTHORITY
 The healthcare provider may withhold certain medical
information from a patient if disclosing it is deemed likely to
cause harm, such as severe anxiety, distress, or refusal of
necessary treatment.
CONSENT AND LAW IN

PAKISTAN
consent

Laws relating to consent

Sec 88 PPC Sec 89 PPC Sec 90 PPC

“Nothing which is “Nothing which is “Consent known to
Sec 87 PPC not intended to done in good faith be given under fear
cause death, is an for the benefit of an or misconception: A
“Nothing which is not
person under 12
intended to cause death, or offence by reason
years of age or of
consent is not
grievous hurt, and which is of any harm which such a consent as is
it may cause, or be unsound mind, by
not known by the doer to be intended by any
likely to cause death, or intended by the or by consent, section of this Code,
grievous hurt, is an offence by doer to cause, or either express or if the consent is
reason of any harm which it be unknown by the implied, of the given by a person
may cause, or be intended by doer to be likely to guardian or other under fear of injury,
the doer to cause to any cause, to any person having or under a
person, above 18 years of age, person for whose lawful charge of that misconception of
who has given consent, benefit it is done in person, is an fact, and if the
offence by reason of
whether express or implied, to good faith, and person doing the act
any harm which it
suffer that harm; or by reason who has given a knows, or has reason
consent, may cause, or be to believe, that the
of any harm which it may be
intended by the consent was given in
known by the doer to be likely whether express or
implied to suffer doer to be caused consequence of such
to cause to any such person
or be known by the fear or
who has consented to take the that harm, or to
take the risk of that doer to be likely to misconception; or
risk of that harm”.
harm”. cause to that … …
person”.
ACT NOT INTENDED TO CAUSE DEATH, DONE BY CONSENT
IN GOOD FAITH FOR PERSON'S BENEFIT: 88PPC

.

Sec 88 PPC
ACT DONE IN GOOD FAITH FOR THE BENEFIT OF A CHILD OR
INSANE PERSON, BY OR BY CONSENT OF GUARDIAN:

89 PPC

Sec 89 PPC
Consent of an insane person:
Consent of child:
90 PPC.

Consent known to be given under fear or

misconception:


ACT DONE IN GOOD FAITH FOR BENEFIT OF A PERSON
WITHOUT CONSENT: 92 PPC
 In the UK, the Montgomery v Lanarkshire Health Board (2015)
case emphasizes that patients must be informed of all material
risks.
 In the US, failure to obtain informed consent may lead to tort
actions under state malpractice laws.
Canterbury v. Spence (U.S.)
 What constitutes "material risk," and how do courts determine
if a doctor has adequately informed the patient?
 What are the legal consequences in Pakistan if a doctor fails to
obtain valid consent?
Consent Form

should be made in the light of applicable law,

institutional policies, and local practices
 In negligence cases, the plaintiff claims that the defendant

breached their duty of care, causing injury or loss.

 In Pakistan, tort law is not codified, but it is applied through

judicial precedent, often reflecting principles from English

common law.
 Liabilities of a Doctor

Control of professional conduct by PM&DC

Civil law and action for damages brought by
or on behalf of the patient
Criminal liabilities
Other aspects of professional conduct:
confidentiality
defamation
gifts to doctors
Medial Negligence

Historical aspects

Ancient Persia

Abortifacients were recognized

and criminal abortion was
heavily punished.
Medial Negligence

Historical aspects
Rome 572 BC

If a slave had been wounded but the wound

was not a mortal one, and the slave died as
a result of negligence, the only action
admissible was on the wounding, not on
death. The law of negligence was applicable
to the conduct of all individuals - whether
laymen or professionals. The physician was
no exception.
Medial Negligence

Historical aspects

Greece 355 BC

Hippocratic oath included “I will not

cut persons labouring under the
stone, but will leave this to be done
by the men who are practitioners of
this work.”
 Tort: Civil wrong, actionable under law.
 - Degree of Care: Higher for professionals, based on what is
expected of a reasonable person in that profession.
 - Gross Negligence: Reckless disregard for the safety or rights
of others.
 -Liability: Legal responsibility for a breach of duty leading to
damages.
 - Chain of Causation: The direct link between the breach of
duty and the resulting harm.
 Definition of
Medical Negligence

Lack of exercise of proper degree

of skill and care in diagnostic
and/or therapeutic techniques
expected of a physician of one’s
own standing and repute leading
to damage
 Types of
Medical Negligence
1 Civil - resulting in damages against the
doctor in a civil court for wrong
treatment, undue prolongation of
treatment, undue suffering

2 Criminal - cases against State resulting

in punishment for criminal acts e.g.
wrongful death, criminal abortion
Medial Negligence

Other types of
Medical Negligences

1 Contributory -

2 Third party - by relatives,

nursing staff

3 Comparative - patient and doctor

Gross negligence differs from ordinary
negligence in that it involves:

Gross negligence refers to an extreme lack of

care or reckless behavior that shows a blatant
disregard for the safety or rights of others. It is
more severe than ordinary negligence.
Medial Negligence

Examples of Medical Negligence

1 Unexplained leaving of rubber tube in patient's body

2 Allowing the breathing tube to become lodged in

patient’s throat and failing to discover its
presence

3
4 Administering morphine with constantly increasing
frequency leading to addiction
Medial Negligence

Examples of Medical Negligence

6 Failure to diagnose fracture by not using x-ray

7 Failure to diagnose hip fracture which a reasonable

examination could reveal

8 Radiologist failing to take a lateral view of the spine in

diagnosing an injury

9 Failure of a fracture to unite for months under care of

an orthopedic surgeon which healed in 2 months
under the care of another orthopedic surgeon

10 Severing radial nerve while performing an operation

on
patient’s arm
Medial Negligence

Examples of Medical Negligence

11 Tight bandages/casts resulting in gangrene

12 Ligating artery by mistake for a vein

13 Failure to notice fracture neck of the femur while

diagnosing fracture upper third of the femur and
treating
only the latter
Medial Negligence
Medial Negligence

Legibility of
prescriptions
Medial Negligence

Proof of
Medical Negligence
1 Duty of care
2 Breach of the duty of care
3 Damage resulting due to breach of duty
4 Proximate cause of damage - breach
of that duty without any new intervening
act
5 Foreseeability of damage resulting
because of breach of duty of care
Medial Negligence

Issues involved in
Medical Negligence
1 Duty of care
2 Standard of care – locality rule vs
community rule
Medial Negligence

Issues involved in
Medical Negligence
1 Duty of care
2 Standard of care
3 Duty to respond to emergency/night calls
4 Duty to exercise care and skill
5 Duty to obtain consent
6 Duty to keep abreast of technical
knowledge
7 Duty to use indicated diagnostic aids
8 Defensive medicine?
9 Respondeat superior
10 Res ipsa loquitur ?
11 Abandonment and further treatment ?
 It involves unexpected harm that occurs despite the

physician acting by accepted medical standards and

practices.
 This is a Latin phrase meaning "the thing speaks for itself."

 In legal terms, it refers to a doctrine where negligence is

inferred simply from the occurrence of an accident or injury

that would not normally happen without someone's negligence.
 This is a Latin term meaning "a new intervening act."
 The Captain of the Ship doctrine is a legal principle that holds
the surgeon or primary physician responsible for all aspects of
patient care during surgery, even if other healthcare
professionals (such as nurses or assistants) are involved.

 The surgeon is seen as the "captain" in charge of the operating

room and is liable for any negligent acts that occur under their
supervision.
Medial Negligence

Defences available in
Medical Negligence cases

1
Medial Negligence

Medical Negligence Prophylaxis

Medial Negligence

Some rules to guard against

Medical Negligence

1
Monetary Damages
 Compensation for medical expenses, pain and
suffering, or loss of earnings.
Disciplinary Actions
 Licensing boards (like PMDC) can impose
sanctions or revoke the medical practitioner’s
license.
 Bolam v. Friern Hospital Management Committee (U.K.)

Bolam vs Montgomery
- Each group will discuss their case in detail.
 Can a doctor be completely exonerated if the patient’s consent
was properly documented but complications arose?