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Dr KK Aggarwal & Advocate Ira Gupta
India
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New Delhi, June 28, 2020 ;
No, consent for stenting cannot be taken from the non-spouse accompanying relatives of the patient, unless the patient is minor, mentally challenged or incapacitated.
The MCI Code of Ethics Regulation, 2002 state:
“MCI: 7.61, Before performing an operation the physician should obtain in writing the consent from the husband or wife, parent or guardian in the case of minor, or the patient himself as the case may be. In an operation which may result in sterility the consent of both husband and wife is needed.”
In a case decided by Supreme Court of India, SCI, Civil Appeal No. 1949 of 2004, 16.01.2008, Samira Kohli vs Dr. Prabha Manchanda and Anr, B.N. Agrawal, P.P. Naolekar and R.V. Raveendran, JJ, the following was observed:
45:The Respondent next contended that the consent given by the appellant’s mother for performing hysterectomy should be considered as valid consent for performing hysterectomy and salpingo-oophorectomy. The appellant was neither a minor, nor mentally challenged, nor incapacitated. When a patient is a competent adult, there is no question of someone else giving consent on her behalf. There was no medical emergency during surgery. The appellant was only temporarily unconscious, undergoing only a diagnostic procedure by way of laparoscopy. The respondent ought to have waited till the appellant regained consciousness, discussed the result of the laparoscopic examination and then taken her consent for the removal of her uterus and ovaries. In the absence of an emergency and as the matter was still at the stage of diagnosis, the question of taking her mother’s consent for radical surgery did not arise. Therefore, such consent by mother cannot be treated as valid or real consent. Further a consent for hysterectomy, is not a consent for bilateral salpingo-oophorectomy.”
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