Role of good faith and consent in negating the criminal liability

Good faith is an abstract and comprehensive term that encompasses a sincere belief or motive without any malice or the desire to defraud others. It derives from the translation of the Latin term bona fide, and courts use the two terms interchangeably. Section 52 of IPC defines good faith as : Nothing is said to be done or believed in good faith which is done or believed without due care and attention. Good faith plays an important role in law of crimes, and its presence is ordinarily an answer to a charge of criminality and a decisive factor in many cases. The section defines good faith by exclusion. The definition of good faith is merely a negative one. It says that an act done without due care and attention is not presumed to have been done in good faith. The section makes no reference to honesty and good motive which are involved in the general meaning of good faith in other statues, such as the General Clauses Act, 1897. Section 3(32) of the Act reads as follows: A thing shall be deemed to be done in good faith when it is in fact done honestly, whether it is done negligently or not. Thus while honest acts done stupidly may be excused as being done in good faith under the General Clauses Act, it may not fall within the definition of good faith under Indian Penal Code. Because the absence of good faith within the meaning of section 52 means simply carelessness or negligence, i.e., want of due care and caution. It does not carry an idea of dishonesty. Elements of good faith: Harbhajan Singh v. State of Punjab Bux Chowdry v. King Prag v. Emperor Raghubir v. Emperor

Thus the Code regards honesty as immaterial and the presence of care and intention the sole criteria of good faith. The definition appears to correspond closely with the English notion of reasonable and probable cause or reasonable and justifiable cause as used in criminal jurisprudence. Consent: Consent is an act of reason and deliberation. A person who possesses and exercises sufficient mental capacity to make an intelligent decision demonstrates consent by performing an act recommended by another. Consent assumes a physical power to act and a reflective, determined, and unencumbered exertion of these powers. It is an act unaffected by Fraud, duress, or sometimes even mistake when these factors are not the reason for the consent. Consent is implied in every agreement.

What consent means Consent means free, voluntary agreement or compliance. Sec.13 of Indian contract act lays down that two or more persons are said to be in consent with each other when they agree upon the same thing in same manner. In consent there are three separate but correlated elements that are voluntary ness, capacity and knowledge. Voluntary ness suggests willingness of patient to undergo treatment. Capacity means a degree of ability of the patient to understand the nature and consequences of treatment offered. Knowledge means that sufficient amount of information about the nature and consequence of treatment has been disclosed to patient. These three elements must be present in the consent, only then it is legally valid. Section 90 of IPC defines consent in negative terms. As per this section, any consent given under the following five circumstances will not be true consent. Analysis of this section shows that consent is not true consent if it is given 1. By a person under fear of injury or, 2. By a person who is under misconception of the facts and person who obtain consent knows or has reason to believe that or consent was given in consequence of such fear / misconception. 3. By intoxicated person or, 4. By a person who is of unsound mind or, unable to understand the nature and consequences of that to which he gives consent. 5. By a person who is below the age of 12 yrs. Who can give consent Adulthood is achieved at the age of 18 yrs in India but person above the age of 12 yrs can give consent for medical treatment. In Western countries like UK a person below the age of 16 yrs cannot give consent for medical treatment with out the prior permission of parent or guardian unless the child is sufficiently mature of understanding. Thus in UK a girl below the age of 16 yrs can not give consent to take contraceptive pills. The Indian penal code and other law reforms are silent on this aspect. For a person under 12 years of age, or of unsound mind, his/ her guardians / person in whose lawful custody he / she is, can give consent (89 IPC)4. Locoparentis- in a emergency involving children, when their parent or guardian are not available consent is taken from the person in charge of the child for example school teacher can give consent for treating child, who become sick during picnic away from the home town or the consent of the principal of a residential school. The age for consent for medical treatment is not officially laid down. There are obscure provisions made in Indian penal code section (IPC87 and 88), which refers to the validity of consent, which may occur

from any act done in good faith and for individual benefit. Perhaps, these provisions are not specifically directed at medical treatment. When both the IPC (Sections 87 & 88) are combined, one can conclude that there is an implication that parental consent is necessary for medical treatment or surgical procedures on the minor. No one can give consent for any treatment on behalf of adult, but it is advisable to be on the safer side that the doctor should take the consent of the next of kin of the patient. Local guardian can give consent on behalf of a person only if the treatment is an emergency one. Unconscious / Unknown patient when admitted in hospital, the medical superintendent / In charge of hospital can give consent for treatment. Pathological autopsy should not be carried out without the consent of next of kin of the deceased. In case of consent for donation of organ after death the will of the deceased is enough. Not taking consent is considered as deficiency in medical services under the section 2(1) of the Consumer Protection Act. Consent of ones spouse is not necessary for the treatment of other. Husband or wife has no right to refuse consent to any operation, which is required to safeguard the health of the partner. Provisions for consent under law Sections 87 to 91 of Indian penal code deals with consent. Section 88 of IPC lays down that an act is not offence if it is not intended or not known to be likely to cause death, which causes any harm to a person from whose benefit it is done in good faith with his consent to suffer it. Thus after a valid consent if surgeon operates on patient and patient dies on the operation table, then the surgeon can not be held guilty of murder. Persons who are non-qualified in medical profession are not allowed to take the plea of this section, as they are not said to do the act in good faith. IPC 52 says that an act is only done in good faith if it is done with due care and attention. Section 91 of IPC serves as a corollary to sections 87 to 89. It states that the exceptions contained in sect 87 to 89 do not extend to acts, which are offences independently of any harm, which they may cause to the person, giving consent. Thus causing miscarriage (unless caused in good faith for the purpose of saving the life of the women) is an offence independently of any harm which it may cause or be intended to cause to the women and the consent of the women or of her guardian for causing such miscarriage does not justify the act ( 91 IPC )4 . Barring physical examination, any medical procedure requires written consent. Written consent should refer to one specific procedure and not blanket permission on admission to hospital. It is on the safest side to take the consent of a spouse if the operation destroys or limits sexual function. While not legally necessary it is good medical practice to consult with relatives of patient in patients best interest and ones this has been established then doctor can continue to give treatment in good faith. Consultation, consent and clinical confidence will never put the doctor in any tort fessors cases. Prisoners and persons released on bail can be treated without their consent in the interest of justice of society. A registered medical practitioner can examine an accused by using reasonable force if the examination is requested by the investigating police officer not below the rank of police sub inspector (CrPC 53).(Force should be applied by police.) Under subsection 2 of CrPC 53 which lays down that, whenever the person to be examined is female the examination shall be made only by or under the supervision of female registered medical practitioner. The obtaining of such evidence, it has been held, is not violative of article 20(3) of constitution, which grants protection against self-incrimination, it was held so by high court in Bombay vs. Kathi Kalu case5.

Consent of the patient cannot be defense to medical practitioner in negligence. Whole law of negligence assumes the principle of consent6. Not to be applicable when the act is not done with reasonable care and competence. If found under the influence of alcohol, then consent of such person will not be valid, so it is always better to obtain consent from guardian / parents.(Exception- Section 53 CrPc and Bombay prohibition act.) Types of consents Medical profession in India practices following types of consents. Implied consent is one, which is not written but legally effective. When patient comes to doctors consulting room or hospital and waits for the doctor, implied consent is presumed. Such implied consent only goes to history taking and ordinary medical examination like inspection, palpation and auscultation; it does not cover the consent for examination of private parts of the patient or matters such as vein punctures or injections or any major intervention. If any material risk is involved the specific or expressed consent must be obtained. The above discussion, thus, shows that in certain circumstances an implied consent may not be considered as sufficient. In the case of Male v. Hopkins7 it was observed that it was not negligence of a doctor, who had the patients consent for general treatment, to prescribe a particular drug known to have side effects, without first obtaining specific consent. The observation was that it was a proper exercise of his discretion to prescribe the drug even with the risk involved. However, negligence did not arise in his failure to carry out recommended tests for the presence of other side effects, once the prescription of the drug had commenced. A good case of implied consent came up before the National Commission8 where one of the witnesses had stated that once the consent for excision biopsy through thoracotomy was given, the consent for removal of the mass was implied. The Commission observed (Para 19) that the surgeon need not limit the operation to diagnostic purpose but can proceed with the same for curative purposes also. The express or specific consent may be oral or written. An oral consent is legally valid, but it is preferred to obtain written consent for major procedures because there is risk involved that the patient, in the case of oral consent, may at later stage deny that any oral consent was given by him. If, for whatever reason, only oral consent is possible, it is appropriate to make an entry in the patients clinical record which may be of use in future if any action is brought on this count and this entry in the clinical record may afford corroborative evidence to support the defense taken by the medical practitioner concerned. In a Tamil Nadu case9 it was observed that in all cases where a treatment consists of certain dangerous instruments, it is the duty of medical authority to take the consent of patient, preferably in writing. However, in that case an oral consent was taken and the Commission regarded this consent as proper. This shows that written consent is not an absolute necessity to defend an action for assault or battery, but a written consent would afford documentary evidence that the consent was actually obtained. The cases are not rare where the action has been brought after several years prefer the evidence of the patient if a documentary evidence of express consent is not provided. Informed consent is an ongoing process that includes the exchange of information and development of choices. This does not say that the same should be in writing. Emphasis on informed consent has been

laid in Dr. Janki S. Kumar v. Mrs. Sarafunnisa10 where the sterilization was done without consent. It was observed that when one speaks of consent, that should be informed consent. The person who should give consent must be aware of the risks involved and on that awareness the patient should give consent. When, as indicated, the patient was in general anesthesia neither could she understand the risks involved nor could she give consent. It may be understood that it is only in emergency that the consent may be done away. Otherwise, the consent is necessary and that to in writing. In a case Aplarain Jayanand Rathod v. Dr. Shailesh Shah11 the operation of appendicitis was performed without written consent under the guise of removal of stitches and no explanation was given for the second operation. The State commission found that the Doctor was deficient in service and was liable for compensation. In patients who are more prone for anxiety / full disclosure in presence of malignancy or unavoidable total results the doctor should use therapeutic privilege in the interest of patient, disclose the fact to the kin rather than to the patient. Presently in India, doctrine of informed consent is not in routine practice. This type of consent may take routes in the Indian medical practice soon, since advancement in technology and information is taking place very fast and increase consumer awareness. How consent should be obtained The elements that a physician must discuss with his / her patient to fully obtain informed consent are the following:

The diagnosis and the nature of the condition or illness calling for medical intervention. The nature and purpose of the treatment or procedure recommended. The material risks and potential complications associated with the recommended Treatment / procedure. All feasible alternative treatments or procedures, including the option of taking no action, with description of material risks and potential complications associated with the alternatives. The relative probability of success for the treatment or procedure in understandable terms.

A recent case12,13 came up before the Pondicherry State Commission where the question of obtaining consent was involved. In this case consent was on printed form except the following portion: I Vasanthakumari Hosp. No. in my full senses hereby give my complete consent for flap cover and SSG or any other procedure deemed fit, which is a diagnostic procedure / biopsy / transfusion/operation to be performed on me / my son / my daughter / my ward age under any anesthesia deemed fit. The nature and the risks involved in the procedures have been explained to me to my satisfaction. The expected chances of success and failure, the risk and benefit of procedure, the hazards and complications of the particular surgery, should be explained to the patient before obtaining his written

consent for the operation. To avoid future allegations of negligence the surgeon may record in the case history the points of discussion as far as possible. Therefore, the legal formalities regarding consent shall be fulfilled only if the discussion is recorded in the case history and simply obtaining the form may not be sufficient. The commission also observed that the dialogue between the patient and a surgeon is an utmost necessity and at each stage the patient or his relatives should be informed of all the possibilities and pros and cons of the various possibilities and the patient is allowed to decide freely without any amount of influence by the surgeon who may have his own ideas and his own preferences. The commission also observed that there is no record whatsoever in the case sheet or any explanations or information passed on to the patient. It should also be borne in mind that merely singing the consent form does not exclude doctors responsibility if he is negligent in carrying on his duties14. In this case a consent form was obtained from the patient by virtue of whom she had consented to be responsible for the consequences of anesthesia being administered. Thus, the argument was the complainant was stopped from claiming damages. In these circumstances the Maharastra State Commission observed that the signing of the consent from doesnt exclude doctors responsibility if he is negligent in carrying his duties.14 Right to refuse consent A competent adult has a right to refuse treatment even if others, including the medical practitioners, believe that the refusal is neither in his / her best interest nor reasonable. In a Canadian case13 the lady patient / plaintiff who was seriously injured in a road accident was taken to the hospital where the defendant treated her. As her condition worsened and she lapsed into unconsciousness, the need to treat her as an emergency arose. It became necessary to give her blood transfusion. A Jehovahs Witness card was found among her belongings. The card when translated read as under: As one of the Jehovahs Witness with firm religious convictions, I request that no blood products be administered to me under any circumstances. I fully realize the implications of the position but have absolutely decided to obey the Bible command The defendant doctor was made aware of both the card and its contents but, as the patients condition deteriorated, he decided to administer blood. The patients daughter on arrival at the hospital confirmed her mothers wish not to be given a blood transfusion and actually signed a consent to treatment and release of liability for. Despite this the defendant continued to administer the blood. The Ontario Court of Appeal held that the defendant was liable in trespass. As Robin JA said, the instructions imposed a valid restriction on emergency treatment that could be provided and precluded blood transfusion. This case precisely and accurately represent the position in English law that may unauthorized touching is technically a battery and a civil claim can be maintainable even if there is no evidence of damage to the plaintiff. It may seem harsh to conclude that a defendant is legally liable in damages when the only thing that he is guilty of is trying, must be respected if autonomy is to have any meaning.

Advance directives Also known as living wills. Some patients (especially in Western countries) elect to express their wishes concerning their future treatment of a condition that has not yet arisen, or of a current condition that may deteriorate in future. These are made by the competent patients with the intention that they will remain effective if the patient becomes incompetent. There is no direct law regarding such advance directives. The advance directives made when the patient had the capacity to consent or refuse, the treatment in question may be binding on the medical practioners. When it expresses a refusal to treatment in circumstances that the patient had anticipate. In our country, there is no law regarding advance directives. A refusal to treat the patient can only be acceptable if this possesses no additional risk to the patient and a colleague was available to take over the patients case. The medical practitioner should also make a note of refusal placed upon him by the patient. A refusal to accept a specific aspect of treatment doesnt remove a patients entitlement to reasonable and proper care, nor it confers upon the patient a right to an alternative form of treatement.15 Can Consent be done away The consent can be done away if there is emergency and there is no advance directive or refusal to take treatment. The most sacred duty of the medical practitioner is to save the life of his patient. If the patient needs emergent and immediate surgery and the waiting for the consent may prove fatal for the patient, the surgeon may go ahead with the operation without waiting for the consent of the patient because it is an attempt to save the life of the patient. This view has been taken by our Indian courts also. It was observed in the case of T.T.Thomas (Dr.) v. Smt. Elisa that a16 surgeon who failed to perform an emergency operation must prove with satisfactory and convincing evidence that the person had refused to undergo the operation, not only at the initial stage but even after the patient was informed about the dangerous consequences of not undergoing the operation. One case came up before Gujarat State Commission117 where the complainant, a lady, having the son and the daughter, both minors, contacted the doctor while she was carrying 13 weeks pregnancy. She was advised Medical Termination of Pregnancy (MTP) and consent in writing was taken. After the operation the husband of the complainant was informed that the uterus was removed. The complainant filed a case alleging that no consent for the removal of uterus was obtained either from the patient or from her husband. It was found the eminent gynecologist had participated in order to save life of the patient and they all were unanimous for removal of the uterus, as there was continuous bleeding and the condition of the patient was deteriorating. Thus, no negligence regarding removal of uterus was found on the part of doctors. Consent of maternity patients Consent to obstetric procedure should be discussed during the antenatal period. If the medical practitioner finds that the wishes of the pregnant woman are unusual, these should be noted carefully in the antenatal record. It is necessary because the practitioner who discussed the matter with the lady may not be on duty when that lady is admitted in labor. If the pregnant woman insists on restrictions

that were unsafe in view of the doctor attending her, or the woman places such restrictions which make the doctor reluctant to accept the responsibility, he (the doctor) should frankly say so to the patient and, if possible, refer her to a colleague for further advice. If no immediate necessity for operation, consent should be obtained In the case of Devi v. West Midland Area Health Authority18. The plaintiff, aged 29, had 4 children and longed for more. Her religious belief precluded sterilization and contraception. She was admitted to the hospital for a minor operation on her womb. Without her consent and knowledge the surgeons decided to sterilize her because they feared that if she becomes pregnant again her womb would rupture. Although acting in the patients interest, there was no immediate urgency to perform the operation without permission. The defendants admitted the liability, and damages to the tune of 4000 pounds were awarded. In a Canadian case19 the doctor tied the patients fallopian tubes during a caesarian operation, as he was concerned about the consequences of a second pregnancy. No consent for it had been obtained. It was held that there was no immediate danger and therefore, the liability existed. But in another Canadian case20 the patients diseased testicle was removed in the course of an operation of hernia. It was observed that there was no liability, as it was an emergency. Discussion Consent is necessary for every medical examination, which should be obtained in or in the presence of disinterested party. Barring physical examination, any medical procedure requires written consent. Written consent should refer to one specific procedure and not blanket permission on admission to hospital. It is on the safer side to take the consent of spouse if the operation destroys or limits sexual functions. While it is not legally necessary it is good medical practice to consult with relatives of patient in patients best interest and ones this has been established then doctor can continue to give treatment in good faith. Consultation, consent and clinical confidence will never put the doctor in tort fessors cases. In the era of advancement of knowledge and technique the belief that as long as the patient signs everything will be, well misguided, if the doctor is not having reasonable care and skill. Conclusion Free, voluntary, informed consent is most essential in medical practice. The consent of women concerned is useless in cases of criminal abortion since the act itself is crime. During emergency, a doctor can treat a patient without the consent of the patient to preserve his health, well being or life of the patient (IPC 92)

Section 87 of Indian Penal Code states: Act not intended and not likely to cause death or grievous hurt, done by consent.

It says that nothing which is not intended to cause death, or grievous hurt, and which is not known by the doer to cause, to any person, above eighteen years of age, who has given consent, whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause any such person who has consented to take the risk of that harm. Sections 87,88,89 and 92 of the Penal Code lay down the rule for determining as to when the harm caused to the consenting individuals should not be punished in the interest of the community. That is to say, under what conditions consent may be pleaded as a defence to the criminal charge. Consent plays a very important role in criminal law. it has the effect of exonerating or extenuating a criminal act in the following situations: Harm short of death or grievous hurt, Harm resulting in death may also be caused, if it was not so intended but was intended for the benefit of the deceased.

Section 87 gives immunity to a man from criminal prosecution on the ground of consent in general, whereas sections 88, 89 and 92 extend prosecution in those cases only where harm is caused in good faith during the course of doing an act for the benefit of the consenting party, or by the guardian or persons empowered to give consent for the purpose on behalf of that person. Bishamber v. Roomal R. v. Wilson R. v. Anthony Brown G.B. Ghatge v. Emperor

Defences, Offences Elements and Onus of Proof: The defence of mistake plays a pivotal role in ascribing blame under the IPC. By way of example, rape is defined, in essence, as sexual intercourse with a woman without her consent. The prosecution must therefore prove, beyond a reasonable doubt, that the accused man: (i) had sexual intercourse with the woman, and (ii) that the intercourse was not consensual. However, even if these offence elements are proved, the accused may argue that he believed the woman had consented to sexual intercourse. Legal systems have two main options in dealing with such an argument. The natural reading of the IPC is that the mans claim should be tested through the defence of mistake of fact: in other words, did he believe, in good faith that she was asking whether the accused intended to penetrate the woman without her consent or was reckless as to whether she consented. There are two major differences between these approaches which must be understood in considering options for reform. First, the common law is subjective: if the accused believed that the woman was consenting, he is not guilty, even if his belief was unreasonable. Under the defence of mistake approach, however, the court must consider not only whether he made a mistake as to consent but also whether that mistake was made in good faith- essentially an inquiry into reasonableness.

An even more fundamental difference relates to the onus of proof. The common law requires the prosecution to prove beyond reasonable doubt that the accused did not genuinely believe the woman was consenting. However, under the Evidence Act that complements the IPC, general exceptions must be proved by the accused on the balance of probabilities. In the rape example, the accused must therefore establish on the balance of probabilities that: (i) he made a genuine mistake about consent; and (ii) his mistake was made in good faith. In terms of the substantive law, the Queensland and Western Australian Criminal Codes adopt a similar structure to the IPC in that mistakes as to consent are not considered through the defence of mistake rather than through a positive fault element. The defence of mistake also involves an objective as well as a subjective inquiry. However, the onus of proof rules is radically different in that the accused need only satisfy an evidential onus. In other words, he must adduce sufficient evidence of a reasonable mistake for the issue to be considered by the court (a much lower hurdle than proving a matter on the balance of probabilities). If he satisfies this evidential onus, he will be acquitted unless the prosecution can prove beyond reasonable doubt that either: (i) he did not really believe the person was consenting, or (ii) his belief in consent was unreasonable.