recent case study on free consent

Zinermon v. Burch, 494 U.S. 113 (1990)

Key Issue:  “[T]he very nature of mental illness makes it forseeable that a person needing mental health care will be unable to understand any proferred ‘explanation and disclosure of the subject matter’ of the forms that person is asked to sign, and will be unable to make ‘knowing and wilful decision’ whether to consent to admission.”

In providing by law that a mental patient must give informed consent to hospitalization but then failing to make provision for the patient’s competence to be examined at admission, Florida predictably violated the patient’s rights. Florida’s established procedure for involuntary placement needs to be applied “to all patients who cannot be admitted voluntarily, both those who are unwilling and those who are unable to give consent.”

Background:

In December 1981 Darrell Burch was wandering along a Florida highway, bruised, bloodied and disoriented. A good Samaritan picked him up and took him to a private mental health center in Tallahassee which, finding that he was suffering from paranoid schizophrenia and in need of longer term treatment, several days later transferred him to Florida State Hospital. At both the center and the hospital Burch signed voluntary admission and consent-to-treatment forms. He remained in the hospital for five months.  Shortly after his release, Burch filed a complaint, stating he had been inappropriately commmitted, and did not remember signing any admission or treatment forms. The complaint reached the Florida Human Rights Advocacy Committtee which encouraged Burch to proceed with his grievance.

In February 1985 Burch filed a section 1983 lawsuit infederal district court against both Apalachee Community Mental Health Services (thecommunity mental health center in Tallahassee to which he was first taken) and FloridaState Hospital. He argued that his constitutional rights had been violated when he wastreated as a voluntary patient: because of evidence that his mental condition made himincapable of giving voluntary consent, he was entitled to the procedural safeguards of theinvoluntary placement procedure.

Until it reached the Supreme Court, the case would centeron a procedural question: did Burch have the right to bring a section 1983 lawsuit?Section 1983 gives plaintiffs in civil rights cases direct access to the federal courtsbut previous legal decisions have established that certain conditions must be met:plaintiffs do not have such access when l)their complaints are trivial 2)the officialactions complained of are in the nature of random negligence and (3) the state providesadequate “predeprivation” remedies or, due to the nature of the injuriousactions, can only provide adequate remedies after the injury has occurred. Burch did notchallenge Florida’s law which stipulated that a candidate for voluntary admission to amental hospital give his “express and informed consent.” His contention was thatboth the hospital (and the community mental health center, which was later dropped fromthe suit) had wilfully and wantonly failed to follow the law. Both the federal districtcourt and the Circuit Court of Appeals dismissed Burch’s suit on the grounds that theState of Florida gave plaintiffs like Burch an opportunity to obtain justice in the statecourt through its tort liability law and this was the only possible option because theviolation alleged was unauthorized and random, i.e. one the state could not predict.

But the Circuit Court of Appeals then took the unusual stepof rehearing the case — this time “en banc” with a full complement of thirteenjudges as distinct from the three member panel which had made the initial decision. Adivided court (8-5) now reversed itself: Burch’s Section 1983 lawsuit was proper and thesubstance of his claims would have to be considered by a federal court. At this point theState of Florida appealed.  Under the name of Dr. Zinermon, Burch’s treatingphysician at the state hospital, it petitioned for review by the U.S. Supreme Court, whichhanded down its decision in Zinermon v. Burch in February 1990.

The Decision:

A divided Supreme Court (5-4) endorsed the decision of the Circuit Court of Appeals, ruling that Burch was entitled to bring suit under section 1983. Writing for the majority, Judge Blackmun noted that Florida’s law explicitly requires the patient to give “express and informed consent” and that “the very nature of mental illness makes it forseeable that a person needing mental health care will be unable to understand any proferred ‘explanation and disclosure of the subject matter’ of the forms that person is asked to sign, and will be unable to make a ‘knowing and wilful decision’ whether to consent to admission.” Yet, wrote Judge Blackmun, Florida statutes “do not direct any member of the facility staff to determine whether a person is competent to give consent, nor to initiate the involuntary placement procedure for every incompetent patient.” The state’s violation of the duty to investigate the patient’s competence to sign admission forms was therefore “fully predictable” (i.e. not a “random, unauthorized” violation of state law the state could not “predict or avert” as the state contended) and state officials could be found liable, if at trial they had failed to make the required examination of his capacity to give informed consent.

The decision went further. Relatively few states haveFlorida’s provision that the voluntary patient must give “express and informedconsent” for hospitalization. But the Court suggested that regardless of whether ornot a state had a law with language similar to that of Florida, the admitting facilitymight need to examine the patient’s competence to consent. In a footnote, the Courtobserved: “The characteristics of mental illness thus create special problemsregarding informed consent. Even if the state usually might be justified in taking at facevalue a person’s request for admission to a hospital for medical treatment, it may not bejustified in doing so, without further inquiry, as to a mentally ill person’s request foradmission and treatment at a mental hospital.” And in the body of the decision JudgeBlackmun wrote: Florida already has an established procedure for involuntary placement.The problem is only to enforce that this procedure is afforded to all patients who cannotbe admitted voluntarily, both those who are unwilling and those who are unable to giveconsent.”

Significance:

Judge Blackmun’s opinion for the majority potentially undercuts the voluntary treatment system which has increasingly characterized care for the mentally ill. In the early 1960s the vast majority of patients were hospitalized involuntarily. Today, as a result of what have generally been viewed as desirable reforms, 73% of the 1.6 million annual admissions (including to private hospitals) are voluntary. Yet Dr. Paul Appelbaum, director of the law and psychiatry program at the University of Massachusetts Medical School, has noted that what little research there is on the capacities of patient to consent suggest that a large majority of presently voluntary patients have questionable capacity to make their own treatment decisions. If two-thirds had difficulty making competent decisions, that would mean 800,000 patients who would have to go through, in the words of the Supreme Court decision, the “established procedure for involuntary placement,” overwhelming that system. Moreover, many currently voluntary patients might not be eligible for involuntary commitment, failing to meet the “dangerousness” standard.

Concerned about this potential impact of the decision, theAmerican Psychiatric Association established a task force to come up with a policy forcomplying with the Zinermon decision without disrupting the present largely voluntarysystem of care: its conclusions were approved by the APA’s board of trustees in December1992. The task force recommended a brief in-hospital clinical assessment of capacity basedon easy-to-meet substantive standards: the patient need only understand he was beingadmitted to a psychiatric hospital and “by verbal, written, or behavioral actions,express agreement with the admission decision.” Following up on this, some stateshave altered procedures to require some indication of capacity before accepting voluntaryhospitalization, e.g. Massachusetts now provides a form on which the admitting physicianis required to certify that the patient can understand that he is coming into the hospitalfor treatment, and that there may be limitations on his ability to leave — the key itemsin the APA’s Task Force Report on Consent to Voluntary Hospitalization.

Given its explosive potential, the Zinermon decision has not had much impact. In part this was because the Supreme Court decision had referred to the need for “an inquiry” into the patient’s capacity to give informed consent, without spelling out procedures or going into detail on the substance of informed consent. The APA task force, by making the criteria for showing capacity to consent to hospitalization so easy, made even severely psychotic people eligible. (Psychiatric records showed that Burch had believed he was “in heaven” at the time of his hospital admission, which was taken as a particularly compelling indication that he was incompetent to give consent to admission. Presumably, under the APA guidelines, if Burch said he was in heaven and the admitting clinician explained no, he was in a hospital, and Burch nodded, he too would have met the requirement for capacity.) Another factor in limiting Zinermon’s impact has been that the decision has not been enthusiastically embraced, i.e. followed up with more lawsuits in the same vein, by the mental health bar, which has no desire to dismantle the largely voluntary system of care and to return to the days when involuntary commitment was the norm. However, while the APA may have achieved damage control, the obvious danger is that in establishing liberal competency standards so as to permit voluntary patients to obtain treatment, the APA will pave the way for civil libertarian mental health advocates to demand equivalent easy competency standards for involuntary patients to refuse treatment.

There is a sense in which the Zinermon decision waslogically inevitable: it was an “but-the-emperor-has-no-clothes” response to thefictions underpinning our mental health law since the 1960s. Reforms of that era sought toencourage voluntary treatment (e.g. assumed patients to be competent so they kept alltheir civil rights) while discouraging involuntary commitment (requiring the patient tomeet the dangerousness standard, setting up a host of procedural roadblocks). But giventhe nature of mental illness, as the Supreme Court rightly noted, a great many patients,like Burch, at the time of hospital admission are not “competent” as that termis normally defined. By pointing up the fallacy of the mental health system in assumingcompetence where it does not exist, the Supreme Court exposed the well-intentioned shamunderlying the “reformed” mental health system.

What the Zinermon decision demonstrates is the need to endthe dichotomy between the standard for voluntary and involuntary treatment. Currently, in many states, voluntary patients can be treated because they need treatment,involuntary patients only because they are dangerous. This was the whole basis of Burch’ssuit, and Justice Blackmun referred to it in his opinion for the majority. In suggestingthat a patient unable to give truly informed consent be required to undergo involuntarycommitment procedures, Justice Blackmun noted that such persons will “not necessarilymeet the statutory standard for involuntary placement” and “it is at leastpossible that if Burch had had an involuntary hearing, he would not have been found tomeet the statutory standard for involuntary placement, and would not have been confined atFlorida State Hospital.” In other words, Burch was so much sicker than the normalvoluntary patient — so psychotic, disoriented, and delusional — he might well have beenentitled to his “freedom!” The suit really points up the absurdity of the law infailing to provide a common “need for treatment” standard applicable to thementally ill regardless of their mode of hospital admission.

A final note: Even the issue of Burch’s competency was notas clear-cut as it appeared in the Supreme Court decision. In the lower courts, thehospital had never filed an answer to Burch’s complaint, never contested his allegations,merely made a procedural bid to dismiss the case.  As a result, as Justice Blackmunnoted in his decision, for purposes of reviewing the case, “the factual allegationsof Burch’s complaint are taken as true.” Burch maintained that he had been”seized,” “confined and imprisoned” against his will, and subjected”to involuntary commitment and treatment for a period from December 10, 1981 to May7, 1982.” And he produced hospital records describing him as psychotic, confused,hallucinating and disoriented. But if the case had gone to trial matters might not haveseemed so simple. Burch signed another authorization of treatment form two weeks after hisadmission — did he still think he was “in heaven” after two weeks of treatment?More telling, Burch returned voluntarily from two weekend furloughs with his family in theperiod from December to May throwing into doubt the description of himself as”confined and imprisoned” for five months. Perhaps in recognition of theweakness of the case, it was settled shortly after the Supreme Court decision for a mere$35,000, including damages, costs and attorney fees. (Besides, how had Burch been damaged?A very sick man, he had been restored to health in the span of a few months by thehospital he sued.)

Note: This analysis draws in part on Rael Jean Isaac and Samuel Jan Brakel’s essay on the Zinermon case “Subverting Good Intentions: A Brief History of Mental Health Law ‘Reform'” Cornell Journal of Law and Public Policy, Fall 1992

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Institution for Social and Policy Studies

Advancing research • shaping policy • developing leaders, yale-led study spurs federal action: hhs requires consent for intimate medical procedures.

The U.S. Department of Health and Human Services issued new guidance to teaching hospitals and medical schools April 1, requiring that medical providers obtain written consent before performing intimate examinations, particularly on patients under anesthesia.

The national directive marks a major milestone in a yearslong effort driven by the research and advocacy of Lori Bruce , associate director of Yale’s Interdisciplinary Center for Bioethics, supported by the Institution for Social and Policy Studies.

“This landmark achievement for patient consent was attained because countless advocates — including patients, community members, medical students, ethicists, and some physicians — spoke up despite pressure to remain silent,” Bruce said. “Our work isn’t done. We still need to ensure the careful implementation of the updated guidelines. But HHS’s commitment to patient rights is profoundly redeeming.”

In a letter signed by HHS Secretary Xavier Becerra, the department acknowledged media reports and scientific literature demonstrating how hospitals often perform pelvic, breast, and rectal examinations on unconscious patients without their informed consent. Such examinations are often medically unnecessary, Bruce said, serving as an opportunity for trainees and new clinicians to gain practical experience. But unconsented procedures can be traumatic for patients, particularly those who have experienced previous sexual trauma.

“It is critically important that hospitals set clear guidelines to ensure providers and trainees performing these examinations first obtain and document informed consent from patients before performing sensitive examinations in all circumstances,” the HHS letter said, linking to guidelines hospitals must follow to receive Medicare and Medicaid funds .  “Informed consent includes the right to refuse consent for sensitive examinations conducted for teaching purposes and the right to refuse to consent to any previously unagreed examinations to treatment while under anesthesia.”

In 2020, Connecticut elected officials invited Bruce to shine a light on the ethics of consent for intimate medical examinations. She gave public lectures explaining the ethical tensions, served on the state’s strategic task force, solicited community insights through Yale’s Community Bioethics Forum , and conducted a national survey — the first of its kind — that helped instigate the passage of Connecticut’s 2022 bill requiring explicit consent for these examinations.

Bruce and her co-authors uncovered how potentially 3.6 million American women and men are likely to have received unconsented pelvic or prostate exams and that Black patients are four times more likely than white patients to report having received such unconsented exams.

In September, the national NBC Nightly News ran a story citing Bruce’s report , drawing the attention of RAINN (Rape, Abuse & Incest National Network), who sought out federal legislators who might help end the practice, Bruce said. About six weeks ago, an aide for U.S. Rep. Nancy Mace (R-South Carolina) reached out to Bruce and collaborated with her on a letter to HHS.

“It’s a step in the right direction that HHS has finally mandated hospitals obtain written consent for these invasive examinations,” Mace said. “The fact that doctors were conducting these exams on women under anesthesia without their consent or medical need is simply unacceptable.”

Bruce said that while medical professionals do not intend any harm in conducting intimate examinations on unconscious patients, research has uncovered how these practices can have a negative impact on medical students as well.

In addition, several research studies have shown that if asked for permission to conduct an extra training exam, about 90% of patients will agree, Bruce said.

“We have been risking the mental health of patients and putting students and everyone in the room watching through this moral angst for no reason,” Bruce said. “Recent studies demonstrate that obtaining explicit consent improves clinicians’ relationship with their patients.”

Connecticut State Rep. Josh Elliot (D-Hamden) recruited Bruce to help inform the Public Health Committee and overcome what he called inertia over the informed consent bill in the years before it eventually passed.

“The biggest problem is that doctors in the state were coming out and saying this was not a problem and this law would cause more problems than it would solve,” Elliot said. “Being able to undercut that argument with specific figures and surveys was necessary. This wouldn’t have happened without Lori’s help.”

Other states followed with similar laws, Bruce said, and she is unaware of any institution reporting significant harm in their ability to train the next generation of medical providers.

ISPS Director Alan Gerber , Sterling Professor of Political Science, praised Bruce for demonstrating how science can inform effective, ethical policy.

“Lori and Interdisciplinary Center for Bioethics Director Stephen Latham exemplify the ideals we strive to uphold at ISPS,” Gerber said. “The Connecticut law and new HHS guidance on consent for intimate medical exams show how expertise, tenacity, and collaboration can culminate in more sensitive and thoughtful practices for everyone.”

Bruce agreed and hopes that the lessons of this overdue correction will reverberate to other areas of medical research and practice.

“Ethical medicine is reliant on good data,” she said. “When we don’t know exactly what is happening, it is challenging to write an ethical law.”

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Informed Consent Action Network v. NIH, No. 20-01277, 2021 WL 2592609 (D. Ariz. June 24, 2021) (Tuchi, J.)

Informed Consent Action Network v. NIH, No. 20-01277, 2021 WL 2592609 (D. Ariz. June 24, 2021) (Tuchi, J.) Re:  Requests for records concerning mRNA-1273 vaccine to combat SARS-COV-2 Infection

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's cross-motion for summary judgment

• Procedural Requirements, Searching for Responsive Records:   The court relates that "[plaintiff] contends that NIH improperly narrowed the search by using the term 'Phase I' because the Request asked for all data and information related to the safety and efficacy of the Vaccine rather than just Phase I data and information."  "The Court agrees that [plaintiff] did not limit the Request to Phase I but fails to see how NIH's inclusion of the term improperly limited the search."  "NIH avers, and [plaintiff] does not contest, that at the time of the search, NIH did not possess data on subsequent trial phases."  "Moreover, NIH's search included broader terms such as 'mRNA-1273' that would likely capture responsive documents not in Phase I."  "Therefore, [plaintiff] failed to produce evidence to support its contention that the search term 'Phase I' unduly restricted NIH's search and production of responsive documents."  "Likewise, [plaintiff] argues that NIH erred by neither searching for nor producing documents regarding 'efficacy.'"  "NIH contends that . . . it did not study the efficacy of the Vaccine until Phase III of the clinical trial, which did not start until July 27, 2020 and thus NIH could not search for or produce such documents."  The court relates that "[plaintiff] relies almost exclusively on a May 18, 2020 Moderna press release touting 'Positive Interim Phase I Data for its mRNA Vaccine (mRNA-1273) Against Novel Coronavirus.'"  "[Plaintiff] focuses on Moderna's statement that the 'data [from Phase I] substantiate our belief that mRNA-1273 has the potential to prevent COVID-19 disease' as well as the press release's discussion of seroconversion, binding antibody levels, neutralizing antibody titers, immunogenicity data, and immune responses, as well as 'a viral challenge study in mice' all of which [plaintiff] contends relate to efficacy."  "However, [plaintiff] does not cite any evidence to support the argument that these terms address efficacy."  The court relates that "[plaintiff] additionally contends that efficacy data always includes immunogenicity data and thus the immunogenicity data was responsive to the Request."  "However, [plaintiff] does not provide declarations or articles in support."  "Rather, it provides excerpts from four NIH peer reviewed publications that each use the phrase 'efficacy, including immunogenicity.'"  The court finds that "[t]his evidence is insufficient to overcome NIH's evidence distinguishing efficacy from immunogenicity."  
• Litigation Considerations:   The court finds that "[plaintiff's] introduction of . . . new arguments is prejudicial to NIH."  "Therefore, the Court declines to consider them and finds that NIH met its obligation to conduct an adequate search for documents responsive to the Request."  The court explains that "[w]hile [plaintiff] argues that it should receive immunogenicity data in its Cross-Motion for Summary Judgment, it does not proffer this argument – that the Request for all information invariably included immunogenicity data – until the Reply."  Additionally, the court relates that "[plaintiff] never argued in its Cross-Motion that it was entitled to all information related to the Vaccine."  "Rather, it tied every argument to its request for safety and efficacy data and information."  
• Exemption 6:   "[T]he Court will grant [plaintiff's] Cross-Motion for Summary Judgment regarding the redactions pursuant to Exemption 6."  The court relates that "[a]n adverse event is 'any untoward medical occurrence associated with the use of an intervention in humans, whether or not considered intervention-related.'"  "NIH contends that the patients' Adverse Event data should be redacted because 'it is a patient's medical diagnosis pulled directly from the patient's medical record.'"  "The Court agrees that this information, when connected with an identifiable individual, likely implicates a privacy interest warranting redaction pursuant to Exemption 6."  "However, there is no evidence, nor does NIH contend, that the Adverse Event data can be linked to any of the patients who participated in the Phase I trial."  The court relates that "NIH relies on the HIPAA Privacy Rule, 45 C.F.R. § 164.514, to argue that Adverse Event data implicates a non-trivial privacy interest."  "The Court remains unconvinced."  "For one, the HIPAA Privacy Rule lists 18 categories of information that must be removed in order for a dataset to be sufficiently de-identified but does not expressly list 'Adverse Events' as personally identifying information."  "Instead, NIH cites a TransCelerate Biopharma Inc. report on 'Clinical Data Transparency Initiative De-Identification and Anonymization of Individual Patient Data In Clinical Studies, A Model Approach' that lists 'Adverse Events' as an identifier 'commonly collected' in clinical studies."  "Importantly, however, NIH never contends that including a patient's Adverse Event data will increase the risk of identifying the patient ."  "Rather, it cites to the HIPAA Privacy Rule and TransCelerate report to illustrate that the Adverse Event data is information 'concerning [a patient's] personal matters . . . typically treated as private information.'"  "But unless this data is tied to personally identifying information, it does not warrant redaction pursuant to Exemption 6."  "Moreover, the public has an interest in the disclosure of the Adverse Event data."  "Reviewing the data will allow the public to better understand NIH's actions and bases for its decisions."  "NIH further contends that the redacted information is provided elsewhere and thus there is no public interest in its release."  "However, the unredacted data provides substantially less information than the redacted information. NIH acknowledges that redacted Adverse Event data detailing 'throbbing pain inside my head behind my eye,' is simply coded as 'headache.'"  "Where there was a greater individual privacy interest, the unredacted version of the Adverse Event data may have sufficed."  "However, because of the de minimis privacy interest, the public interest in seeing the full data outweighs any individual privacy concerns." "For the same reasons, NIH cannot articulate a sufficient privacy interest to justify redacting the If Not Related, Alternative Etiology, Comments, or Reasons for Deviation and Deviation Resolution data."  "The data does not contain personally identifying information and the public has an interest in its release ."  "Therefore, it does not meet the standard for redaction." "Unlike the other categories of redacted information, NIH contends that the Age data is personally identifying information."  "However, it fails to support the assertion with evidence."  "The Court is skeptical that age alone could identify an individual without more information."  "Similar to the other Phase I data, the public has an interest in the ages of the patients."  "NIH argues that the privacy interest outweighs the public interest because the Report provides 'specific age data' in other portions of the Report."  "However, the Report lists the unredacted age data in broad numerical ranges such as '18-55,' and '56-70.'"  "These ranges do not provide the same information as the specific ages of the trial participants."  "Because the privacy interest in the Age data is trivial and there is a public interest, the Court finds that the redactions are improper."

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Informed Consent—We Can and Should Do Better

• 1 Wake Forest Baptist Comprehensive Cancer Center, Section on Hematology and Oncology, Department of Medicine, Wake Forest School of Medicine, Winston Salem, North Carolina
• Original Investigation Assessment of Length and Readability of Informed Consent Documents for COVID-19 Vaccine Trials Ezekiel J. Emanuel, MD, PhD; Connor W. Boyle, BA JAMA Network Open

Informed consent is fundamental to the ethical and legal doctrines respecting research participants’ voluntary participation in clinical research, enshrined in such documents as the 1947 Nuremberg Code; reaffirmed in the 1964 Declaration of Helsinki, revised in 1975, and the 1978 Belmont Report; and codified in the United States in the 1981 Common Rule, revised in 2018 and implemented in 2019. 1

Informed consent generally is understood to represent a process, with the informed consent document having a central role. The characteristics of a well-designed consent form are well known: the document must contain information, some statutorily defined, necessary to allow a participant to make an informed decision; be written at a reading level appropriate for its audience; and be of a length that enables complete and thorough reading. Yet, the content and structure of this document has been the subject of discussion for at least 3 decades, with a consistent consensus throughout this time that these documents are too difficult to read, too complex, and too long and, as a result, frequently fail to facilitate truly informed consent by study participants. While much of the blame for the failure to provide sufficiently detailed, readable, and brief consent forms has been laid at the feet of sponsors and investigators, the reality is that, while it is possible to incorporate 2 of these 3 elements into a consent form, it is all but impossible to incorporate all 3, ie, concise, sufficiently detailed yet easily readable, for anything but the simplest of clinical trials.

The study by Emmanuel and Boyle 2 reviews the consent forms for the COVID-19 vaccine phase III randomized clinical trials conducted by 4 major pharmaceutical companies that resulted in US regulatory approvals for 3 of the 4 vaccines, in the context of these issues. The study by Emmanuel and Boyle 2 highlights the deficiencies of the COVID-19 vaccine trial consent forms in these areas, proposes revised consent form language to improve readability, understanding, and length, and underscores how the medical community has not responded adequately to the decades-long valid criticisms concerning informed consent forms. The revisions proposed by Emmanuel and Boyle 2 to the relatively straightforward COVID-19 vaccine trials’ consent forms yielded a document that was substantially longer than ideal, with an overall higher-grade reading level than optimal, underscoring the fundamental inability to successfully incorporate all 3 of the desirable qualities for a consent form into a single document.

Consent forms should be written at a level understandable to the average prospective participant. Many authorities, including the National Cancer Institute, 3 relying on the 2015 Institute of Medicine report “Informed Consent and Health Literacy,” recommend an eighth-grade reading level or lower for informed consent forms, but this may be too generous a standard. The average American reads at the seventh to eighth grade level, with half of US adults unable to read a book written at the eighth grade level. The most recent study of literacy among US adults, the Survey of Adult Skills conducted through the Program for the International Assessment of Adult Competencies (PIAAC), supports this, indicating that more than half of US adults would struggle to fully comprehend current consent forms, and among self-declared individuals in fair or poor health—those most likely to participate in clinical trials with greater than minimal risk—31% have PIACC Level 1 (ie, basic sight vocabulary and can read short texts on familiar topics to locate a single piece of information) or lower literacy skills. 4 Therefore, it is reasonable to conclude, as Emmanuel and Boyle 2 and many others have, that a sixth grade reading level is more appropriate, noting that even this level would not address the substantial proportion of the population with literacy levels below this. 5

Consent forms also should be of a length that can be easily read by the average study participant. Evidence exists that the longer a document is, the less likely people are to read it fully. In the educational context, people are unlikely to read an entire document containing more than 1000 words (ie, approximately 4 pages), and it has been proposed that consent forms should be limited to no more than 1250 words. 6 Yet consent form lengths have increased steadily over the past 4 decades, with few consent forms fewer than 10 pages in length, and most substantially longer. The COVID-19 consent forms reviewed by Emmanuel and Boyle 2 were a mean of more than 8000 words (range, 7821 to 9340 words), and despite their best efforts, Emmanuel and Boyle 2 were only able to reduce the length to just under 3000 words.

Finally, there is the issue of the actual content of the consent form. The list of mandatory items alone runs to more than 270 words in the Revised Common Rule, highlighting the challenge of writing a consent form that is complete and understandable in fewer than 1000 or even 1250 words. Compounding this is the perception that many sponsors and institutions appear to want to use consent forms primarily as legal instruments to protect against civil litigation, undermining both the primary function of the document, as well as its accessibility, to study participants.

The study by Emmanuel and Boyle 2 should be recognized as a wake-up call to sponsors, investigators, institutional review boards, and regulators to reevaluate how consent forms are drafted, reviewed, and used, along with a reappraisal of the entire consenting process. After decades of largely fruitless effort, an acknowledgment of the seemingly insurmountable challenge of drafting sufficiently detailed but easily readable and not overly lengthy documents would allow the reimagining of the entire consenting process. Considerations could include placing even greater emphasis on the discussion component of the consent process while deemphasizing the role of the consent form, a greater use of multimedia and other technology, more formal scripting of consenting discussions, mandatory documentation of confirmation of adequate comprehension by study participants, and even regulatory reform, among other improvements. Such an appraisal and revision to the process would be neither simple nor without cost, but if history is any guide, failure to act is likely to lead to having the exact same conversation a decade from now.

Published: April 28, 2021. doi:10.1001/jamanetworkopen.2021.10848

Open Access: This is an open access article distributed under the terms of the CC-BY License . © 2021 Grant SC. JAMA Network Open .

Corresponding Author: Stefan C. Grant, MD, JD, MBA, Wake Forest Baptist Comprehensive Cancer Center, Section on Hematology and Oncology, Department of Medicine, Wake Forest School of Medicine, Medical Center Blvd, Winston Salem, NC 27157 ( [email protected] ).

Conflict of Interest Disclosures: Dr Grant reported having equity in and serving as General Counsel of TheraBionic.

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Grant SC. Informed Consent—We Can and Should Do Better. JAMA Netw Open. 2021;4(4):e2110848. doi:10.1001/jamanetworkopen.2021.10848

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CONTRACT LAW: FREE CONSENT AND COERCION

Published by admin on september 15, 2023 september 15, 2023.

This Article is written by Kunal Peelwan of 7 th Semester of Chaudhary Charan Singh University of Law, Uttar Pradesh, Intern under Legal Vidhiya

Contracts are the backbone of our modern world, governing the agreements we make daily. They are rooted in the principle of “free consent,” which dictates that all parties involved should willingly agree to the terms without external coercion. This article delves into the intricate landscape of contract law, exploring how the concept of free consent intersects with the complex issue of coercion.

To comprehend contracts fully, one must grasp their formation. Parties engage in negotiations, discussing and deciding on the details of their agreement. However, this process isn’t always straightforward, and parties may find themselves feeling pressured to consent. This article simplifies these concepts through relatable examples, shedding light on why individuals might reluctantly agree to a contract. It emphasizes the paramount importance of maintaining contracts free from any kind of undue influence or coercion and explores how the legal system endeavours to uphold fairness  in contractual relationships.

Keywords : Contract Law, Free Consent, Coercion

Introduction

Contracts silently shape our daily interactions, influencing everything from our online purchases to our workplace agreements. However, beyond their apparent simplicity, contracts have deeper complexities. Within the framework of the Indian Contract Act, 1872, two essential pillars, free consent and coercion, stand as critical determinants of a contract’s validity. This journey delves into the straightforward yet vital concepts that underpin the world of contracts, unravelling the significance of free consent and coercion.

• Free Consent: Section 14 of the Indian Contract Act unequivocally emphasizes the pivotal requirement for the validity of any contract: free consent. Within the purview of this statute, free consent signifies that the parties entering into the contract must do so without any external pressures, undue persuasion, fraudulent tactics, misrepresentation, or misunderstandings.
• Coercion: Under Section 15 of the Indian Contract Act, pertains to the use of force, threats, or undue influence to coerce someone into a contract against their will. This contravenes the principle of free consent crucial for a valid contract under Section 14.

Free consent in Indian contract law signifies voluntary agreement without undue influence, while coercion involves using force or threats to compel someone into a contract against their will, rendering it voidable, Contracts tainted by coercion become voidable per Section 19, allowing the affected party to cancel the agreement due to unfair tactics. Coercion may involve physical threats, blackmail, psychological pressure, or unlawful actions compelling contractual compliance.

Free Consent

In the context of contract law in India, the concept of free consent is of paramount importance. It is articulated under Section 14 of the Indian Contract Act, 1872. Free consent implies that for a contract to be valid, all parties involved must willingly and voluntarily agree to its terms and conditions without any form of coercion, undue influence, fraud, misrepresentation, or mistake. In essence, it emphasizes that contracts should be the result of a genuine meeting of minds where each party fully comprehends the terms and enters into the agreement of their own accord.

To ensure free consent, the law mandates that parties should be competent to contract, meaning they must be of sound mind and not disqualified by law. Additionally, any element of duress or pressure, whether through threats, deceit, or manipulation, can vitiate the consent and render the contract voidable at the option of the aggrieved party. This legal safeguard seeks to protect individuals from entering into agreements that they might later regret due to circumstances that undermine their ability to make a truly voluntary choice, thereby upholding the integrity and fairness of contractual relationships in India.

In the landmark case of Satyabrata Ghose vs. Mugneeram Bangur & Co. (AIR 1954 SC 44), [1] a landmark case in Indian contract law that established the principle that both innocent and fraudulent misrepresentation can render a contract voidable if they result in the absence of free consent. This case underscored the importance of genuine consent in contracts and clarified that parties deceived by misrepresentation have the option to rescind the contract. It also highlighted that silence can constitute misrepresentation if there is a duty to disclose certain facts.

In Indian contract law, the concept of coercion plays a significant role in determining the validity of a contract. Coercion, as defined under Section 15 of the Indian Contract Act, 1872, refers to the act of using force, threats, or undue influence to compel one party to enter into a contract against their will or better judgment. The essence of coercion is that it erodes the fundamental principle of free consent, which is essential for a contract to be valid. When coercion is present, it has the potential to render the contract voidable at the option of the aggrieved party. This means that the party who was coerced into the contract has the legal right to void or annul the contract, as it was not entered into willingly or freely. Coercion can manifest in various forms, such as physical threats, blackmail, psychological manipulation, or any unlawful actions aimed at forcing someone into a contractual agreement. In essence, the law in India takes a strong stance against contracts tainted by coercion, recognizing the need to protect individuals from entering into agreements under duress or improper influence.

Furthermore, Section 10 of the Indian Contract Act reinforces the importance of free consent by stipulating that all agreements are contracts if they are made with the free consent of parties competent to contract, without coercion or other vitiating factors. This highlights the central role of free consent in ensuring the validity of contracts. In cases where coercion is established, the affected party has the legal remedy to seek the contract’s nullification, thereby upholding the principles of fairness and voluntariness in contractual relationships in India. The presence of coercion serves as a safeguard against exploitation and unethical practices in contractual dealings, aligning with the overarching objective of contract law to promote just and equitable agreements between parties.

In the landmark case of Syndicate Bank v. R.S. Raghunathan (2000), [2] this case involved a loan agreement between a bank and an individual. The court held that if a person enters into a contract with a bank under economic duress or coercion, such a contract can be considered voidable. This case highlighted that even in commercial transactions; coercion can render a contract unenforceable.

Importance of Free Consent and Coercion

The concepts of free consent and coercion are of paramount importance in contract law because they serve as foundational principles that uphold the fairness and integrity of contractual relationships. Here’s why each of these concepts is significant:

1. Voluntary Agreements: Free consent ensures that parties enter into contracts voluntarily and without any external pressure. It reflects the true intention of the parties to be bound by the terms they have agreed upon.

2. Legitimacy and Validity: Contracts formed with free consent are considered legitimate and valid under the law. They promote trust and fairness in business transactions and personal dealings.

3. Protection of Parties: Free consent protects the interests of both parties involved. It ensures that individuals or entities are not coerced or manipulated into agreements that may not be in their best interest.

4. Legal Enforceability: Contracts based on free consent are legally enforceable, allowing parties to seek remedies or specific performance in case of breach.

Importance of Coercion:

1. Safeguard Against Unfair Practices: Coercion serves as a safeguard against unethical and unfair practices. It discourages parties from using force, threats, or undue influence to gain an unfair advantage in contractual agreements.

2. Protection of Vulnerable Parties: Coercion laws protect vulnerable individuals or entities who may be at risk of being exploited or coerced into agreements against their will or better judgment.

3. Voidability: The presence of coercion in a contract renders it voidable, not void. This means that the coerced party has the option to either affirm or void the contract, providing a legal remedy to escape an unjust agreement.

4. Legal Consequences: Coercion carries legal consequences, which may include the annulment of a contract, compensation for damages, or even criminal penalties in cases of extreme coercion.

In essence, free consent and coercion are integral to the principles of fairness, voluntariness, and ethical conduct in contract law. Free consent ensures that contracts are formed on a level playing field, while coercion laws protect individuals and businesses from exploitative practices, ultimately upholding the integrity of contractual relationships.

Difference between Free Consent and Coercion

Free Consent and Coercion are two distinct concepts in contract law that play crucial roles in determining the validity of a contract. Here are the key differences between them:

1. Definition:

   – Free Consent: Free consent encompasses the authentic, voluntary, and uncoerced concurrence of all parties involved in a contractual arrangement. It signifies that these parties willingly embrace the contractual terms without succumbing to external pressures or resorting to unethical stratagems.

   – Coercion: In sharp contrast, coercion is the utilization of force, intimidation, or undue influence to coerce one party into a contractual agreement against their will or better judgment. This term underscores that consent is secured through inappropriate means, including intimidation or manipulation.

2. Voluntariness:

   – Free Consent: The concept of free consent underscores the voluntary nature of the agreement, wherein all parties possess a profound understanding and willingly embrace the stipulated terms and conditions.

   – Coercion: Coercion erodes voluntariness, as it entails the presence of external factors that manipulate or compel one party to yield, thereby subverting the core principle of voluntary agreement that underpins a contract.

3. Legality:

   –  Free Consent: Contracts forged through free consent stand as legally sound and enforceable agreements.

   – Coercion: In stark contrast, contracts tainted by coercion do not inherently amount to nullity but are regarded as voidable at the discretion of the coerced party. This signifies that the coerced party possesses the prerogative to either affirm or void the contractual pact.

4. Undue Influence:

   – Free Consent: The concept of free consent inherently necessitates the absence of undue influence, ensuring that no party wields an unfair advantage over the others. This principle rests upon a foundation of equality among the parties.

   – Coercion: Coercion, however, revolves around one party exerting undue influence or undue pressure on another, resulting in an unjust advantage.

5. Remedies:

   – Free Consent: Contracts founded on free consent accord the customary remedies for breaches of contract, such as compensation for damages or the pursuit of specific performance.

   – Coercion: Contracts that bear the blemish of coercion may be voidable, affording the coerced party the option to either pursue the contract’s annulment or seek restitution for any losses sustained.

   – Free Consent: It signifies that all parties willingly and genuinely intend to be bound by the contractual terms.    – Coercion: Coercion implies that at least one party had no actual intention to enter into the contractual agreement, but rather was forced or manipulated into complying with it.

In summary, the distinction between Free Consent and Coercion is pivotal. Contracts formed on the bedrock of free consent are upheld as valid, whereas those tainted by coercion are categorized as voidable, granting the coerced party the prerogative to either affirm or nullify the agreement.

In a situation where there’s a lack of free consent and coercion is evident in a contract, here’s what one can do legally:

1. Seek Contract Annulment: If you believe you were coerced or forced into a contract against your will, you can take legal action to have the contract annulled. Annulment means the contract is cancelled, and it’s treated as if it never existed.

2. Consult an Attorney: It’s essential to consult with a lawyer who specializes in contract law. They can help you understand your rights, assess the strength of your case, and guide you through the legal process.

3. Gather Evidence: To support your case, gather evidence that shows coercion or lack of free consent. This might include emails, text messages, witness statements, or any documents that demonstrate the improper tactics used to force you into the contract.

4. File a Lawsuit: Your attorney can help you file a lawsuit against the other party involved in the contract. You’ll need to present your case in court and provide evidence of coercion.

5. Request Remedies: If the court finds in your favour, you may be entitled to remedies such as contract annulment, damages, or compensation for any losses you incurred due to the coerced contract.

Remember, it’s crucial to consult with a legal professional who can provide personalized guidance based on the specifics of your situation. Taking legal action against a coerced contract can help protect your rights and interests.

In the realm of contract law, free consent and coercion serve as critical pillars that determine the validity and fairness of agreements. These concepts are not mere legal jargon but have a profound impact on our daily lives, influencing the agreements we enter into, from purchasing goods online to forming workplace contracts.          

The principle of free consent, as outlined in Section 14 of the Indian Contract Act, underscores the fundamental requirement for a valid contract. It demands that all parties willingly and voluntarily agree to the terms, free from external pressures, deceit, or manipulation. This principle ensures that contracts are the result of genuine and informed decisions, promoting trust and fairness in business and personal dealings. It safeguards the interests of all parties involved, upholding the legitimacy and enforceability of contracts.

On the other hand, coercion, as defined in Section 15 of the same Act, represents a stark contrast. It involves the use of force, threats, or undue influence to compel one party to enter into a contract against their will. Coercion erodes the essence of free consent, making the affected contract voidable at the option of the coerced party. This legal safeguard protects individuals and businesses from exploitative practices and unethical tactics in contractual dealings.

In conclusion, the concepts of free consent and coercion are not just legal doctrines; they are cornerstones of fairness, voluntariness, and ethical conduct in contract law. They ensure that contracts are entered into willingly, on equal footing, and without improper influence. Upholding these principles is essential to maintaining the integrity and trustworthiness of contractual relationships in India, promoting a just and equitable business environment for all.

• https://www.indiacode.nic.in/handle/123456789/2187?sam_handle=123456789/1362 Visited on 02-09-2023
• https://www.legalservicesindia.com/ Visited on 02-09-2023
• https://legalvidhiya.com/free-consent-coercion-and-undue-influence/#_ftn2 Visited on 03-09-2023
• https://scholar.google.com/scholar?hl=en&as_sdt=0%2C5&q=benefits+of+free+consent+in+contract+law+in+India&btnG = Visited on 03-09-2023
• https://www.casemine.com/search/in/Syndicate%20Bank%20v(DOT)%20R(DOT)S(DOT)%20Raghunathan%20 Visited on 04-09-2023
• https://libguides.bodleian.ox.ac.uk/srch.php?q=Satyabrata+Ghose+vs.+Mugneeram+Bangur+%26+Co.+%28AIR+1954+SC+44%29&guide_id=422964 Visited on 04-09-2023
• https://www.legalserviceindia.com/legal/article-2234-case-analysis-satyabrata-ghose-v-s-mugneeram-bangur.html Visited on 04-09-2023

[1] Satyabrata Ghose vs. Mugneeram Bangur & Co. (AIR 1954 SC 44)

[2] Syndicate Bank v. R.S. Raghunathan (2000)

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Patient Autonomy & Informed Consent

Nursing staff and family members struggle with informed consent when taking care of a patient who has been deemed legally incompetent.

In the context of health care in the United States, the value on autonomy and liberty was cogently expressed by Justice Benjamin Cardozo in Schloendorff v. Society of New York Hospitals (1914), when he wrote, “Every human being of adult years and sound mind has a right to determine what shall be done with his own body.” This case established the principle of informed consent and has become central to modern medical practice ethics. However, a number of events since 1914 have illustrated how the autonomy of patients may be overridden. In Buck v. Bell (1927), Justice Oliver Wendell Holmes wrote that the involuntary sterilization of “mental defectives,” then a widespread practice in the U.S., was justified, stating, “Three generations of imbeciles are enough.” Another example, the Tuskegee Syphilis Study, in which African-American males were denied life-saving treatment for syphilis as part of a scientific study of the natural course of the disease, began in 1932 and was not stopped until 1972.

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“Informed consent is rooted in the fundamental recognition—reflected in the legal presumption of competency—that adults are entitled to accept or reject health care interventions on the basis of their own personal values and in furtherance of their own personal goals.”

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A middle aged man was involuntarily committed to a state psychiatric hospital because he was considered dangerous to others due to severe paranoid thinking. His violent behavior was controlled only by injectable medications, which were initially administered against his will. He had been declared mentally incompetent, and the decisions to approve the use of psychotropic medications were made by his adult son who had been awarded guardianship and who held medical power of attorney.

While the medications suppressed the patient’s violent agitation, they made little impact on his paranoid symptoms. His chances of being able to return to his home community appeared remote. However, a new drug was introduced into the hospital formulary which, if used with this patient, offered the strong possibility that he could return home. The drug, however, was only available in a pill form, and the patient’s paranoia included fears that others would try to poison him. The suggestion was made to grind up the pill and surreptitiously administer the drug by mixing it in pudding.

Hospital staff checked with the patient’s son and obtained informed consent from him. The “personal values and…personal goals” of the son and other family members were seen to substitute for those of the mentally incompetent patient—and these goals included the desire for the patient to live outside of an institution and close to loved ones in the community. This was the explicitly stated rationale for the son’s agreeing to the proposal to hide the medication in food. However, staff were uncomfortable about deceiving the patient, despite having obtained informed consent from the patient’s guardian.

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7. Does the history of the forcible treatments of persons with disabilities and other powerless populations affect how you view this case? Explain.

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Bibliography

The Nazi Doctors: Medical Killing and the Psychology of Genocide http://www.worldcat.org/title/nazi-doctors-medical-killing-and-the-psychology-of-genocide/oclc/264730584

Medical Apartheid: The Dark History of Medical Experimentation on Black Americans from Colonial Times to the Present http://www.worldcat.org/title/medical-apartheid-the-dark-history-of-medical-experimentation-on-black-americans-from-colonial-times-to-the-present/oclc/61131882

Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck http://www.worldcat.org/title/imbeciles-the-supreme-court-american-eugenics-and-the-sterilization-of-carrie-buck/oclc/911171862

Texas Administrative Code, Chapter 404, Subchapter E: Rights of persons receiving mental health services http://texreg.sos.state.tx.us/public/readtac$ext.ViewTAC?tac_view=5&ti=25&pt=1&ch=404&sch=E&rl=Y

A history and a theory of informed consent http://www.worldcat.org/title/history-and-theory-of-informed-consent/oclc/228168485

Enduring and emerging challenges of informed consent http://www.nejm.org/doi/full/10.1056/NEJMra1411250

Chapter “Consent to medical care: the importance of fiduciary context” in The ethics of consent: theory and practice http://www.worldcat.org/title/ethics-of-consent-theory-and-practice/oclc/312625462

CASES; Advice rejoins consent http://www.nytimes.com/2002/07/02/health/cases-advice-rejoins-consent.html

Making health care decisions: The ethical and legal implications of informed consent in the patient-practitioner relationship http://www.worldcat.org/title/making-health-care-decisions-a-report-on-the-ethical-and-legal-implications-of-informed-consent-in-the-patient-practitioner-relationship/oclc/8922324

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Law Audience Journal (e-ISSN: 2581-6705)

The Concept of Free Consent With Special Reference to a Landmark Case of Section 15 of The Indian Contract Act, 1872

• Post author: Varun Kumar
• Post published: January 11, 2022
• Post category: Volume 3 & Issue 3
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Authored By: Mr. Sarthak Das (BLS. L.L.B), Government Law College Mumbai,

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“Section 15 of the Indian Contract Act, 1872 deals with one of the vitiating factors of free consent to an agreement, that is coercion. This paper deals with one of the landmark cases in relation to the particular section. The case in question is Chikkam Ammiraju And Ors. vs Chikkam Seshamma And Anr . The paper discusses the provisions of the Contract Act relating to Free Consent and the factors vitiating it. The facts of the case, the judgement and the rationale are also analysed. A critical analysis of the judgement is done at the end of the paper”.

I. INTRODUCTION:

Chikkam Ammiraju And Ors. vs Chikkam Seshamma And Anr [1] , is a case that deals primarily with Section 15 and of the Indian Contract Act, 1872. The case revolves around the topic of Coercion as defined under Section 15 of the Indian Contract Act, 1872.

A Contract is defined as an agreement enforceable by the law. [2] Under Chapter II, and Section 10 of the Indian Contract Act, the requirements needed for an agreement to be called a contract are mentioned. As per the provisions of the law;

“What agreements are contracts. —All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.”

As can be seen from the above provision, there are five essential elements for an agreement to be called a legally binding contract. They are;

• Free Consent of the Parties
• Competency of the Parties to the Contract
• Lawful Consideration
• Lawful Object
• Not expressly declared to be void by the law

In this research paper, our concern is with discussing the aspects of the first essential element as mentioned above, that is, the free consent of the parties to a contract. In furtherance of this, the legal provisions regarding consent and free consent are defined in Section 13 and 14 of the Indian Contract Act respectively.

Section 13 defines consent as follows ; Two or more persons are said to consent when they agree to the same thing in the same sense. It can be summarised through the maxim “consensus ad idem”, i.e., a meeting of the minds.

Moving forward to Section 14, which deals with ‘free consent’. As has already been noted, free consent of the parties to a contract is sine qua non for a contract to be valid in the eyes of the law. As per the Indian Contract Act, 1872, Free Consent is defined as follows;

“Free consent” defined. —Consent is said to be free when it is not caused by—

(1) coercion, as defined in section 15, or

(2) undue influence, as defined in section 16, or

(3) fraud, as defined in section 17, or

(4) misrepresentation, as defined in section 18, or

(5) mistake, subject to the provisions of sections 20, 21 and 22.

Consent is said to be so caused when it would not have been given but for the existence of such coercion, undue influence, fraud, misrepresentation or mistake. As can be seen from the above definition, free consent is defined negatively in the Contract Act, which basically means that the absence of the five conditions of Coercion or Undue Influence or Fraud or Misrepresentation or Mistake makes the contract a valid one. These can be said to be the factors that vitiate consent of the parties to a contract.

Flowing from this, If the consent of one of the parties is not free consent, i.e., it has been caused by one or the other of the above stated factors, the contract is not a valid one. When consent to an agreement is caused by coercion, undue influence, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused. [3]

For example, A person is induced to enter into an agreement on the basis of fraud, he may, upon discovering the fact either uphold the contract or reject it. If the contract is not rejected, it becomes legally binding on both parties. If, however, the consent has been caused by mistake, the agreement is void. [4] [5] The first condition, which must be absent for consent to be free, is that consent should not have been obtained through coercion under Section 15 of The Indian Contract Act, 1872.

Coercion is defined as follows:

“Coercion” is the committing, or threatening to commit, any act forbidden by the Indian Penal Code (45 of 1860) or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement. [6]

From the definition of “coercion”, we can identify the following essential characteristics of the crime of coercion. Coercion can be said to be caused when the consent of one of the parties to the agreement has been caused either by

• Committing or threatening to commit any act forbidden by the Indian Penal Code, 1860 or
• By unlawfully detaining or threatening to detain any property

Moreover, such an act should be to the prejudice of any person whatsoever.

II. FACTS OF THE CASE:

Chikkam Ammiraju and five others were the defendants, the first defendant was the younger brother of the husband of the first plaintiff i.e., Chikkam Seshamma. The first plaintiff and the second plaintiff had alleged that the property in possession of the defendants, originally belonged to the father of the first plaintiff, who is now deceased. The widow of the plaintiff’s father (the plaintiff’s mother) had alienated the property to the defendants without any justification. As a result, the plaintiff sued to set aside the same and got a decree that the alienation was not binding on the reversion. [7]

In furtherance of this, the husband of the first plaintiff and father of the second plaintiff was pressured by his younger brother and father (the defendants). As a result, the husband of the first plaintiff threatened to commit suicide in case, his wife and son did not execute a deed of release of property in favour of his brother. In consequence of this threat by the husband of the first plaintiff, she was made to transfer the said properties through a deed to the brother of her husband. It was this transfer that was then intended to be reversed by the plaintiffs.

II.I KEY ISSUES INVOLVED:

The fundamental questions that were before the court, when the appeal was filed by the plaintiff were;

• Whether a threat to commit suicide would constitute an act of Coercion or Undue Influence or both under Section 15 and 16 of the Indian Contract Act?
• Whether suicide was an act “forbidden by the Indian Penal Code” or not?
• If the act of threatening to commit suicide could have prejudiced the plaintiff?  

II.II CONTENTIONS RAISED:

The defendants contended inter alia that no such threat of committing suicide was given. However, the lower court found that threat was used and held that it amounted to coercion under Section 15 of the Indian Contract Act, and gave a decree in favour of the plaintiffs. The defendants then proceeded to file a second appeal in the High Court. Sadasiva Ayyar, J., agreeing with the lower Courts dismissed the appeal. Mooeb, J., held that the threat held out did not in law amount to coercion or undue influence and allowed the appeal. The result was that the second appeal was dismissed under section 98, Civil Procedure Code. The defendants then filed this Appeal under Section 15 of the Letters Patent from the judgment of Sadasiva Ayyar J. [8]

Fatanjali Sastri for the appellants argued that suicide is not an offence which is punishable under then Indian Penal Code, so Section 15 of the Indian Contract Act should not apply in this case. Moreover, the counsel argued that ‘Prejudice in section 16 means some detriment to property and not any sentimental grievance as in this case.

G, Yenkatarcumayya was the counsel for the respondent argued that Section 15 mentions ‘an act forbidden by the Indian Penal Code’ and not of an offence punishable under the Indian Penal Code. He further argued that suicide is an act that is forbidden by the Indian Penal Code, 1860 as the attempt or abetment of suicide is punishable by law. Moreover, he countered the argument of his learned opponent by stating how prejudice is not limited to ‘prejudice against property alone’. He argued that “section 15 provides for an exception where freedom of consent is absent and any circumstance which influences the mind of a party to a contract and destroys the freedom of volition would constitute coercion.” [9] Flowing from this he asserted that the loss of a husband to a wife or father to a son, both of which would have occurred had the threat to suicide been successful, would amount to sufficient coercion in the eyes of the law.  

II.III JUDGEMENT:

The judgement to the second appeal filed under Section 15 of the Letter Patent Act was decided by a three-judge bench of the Madras High Court. The bench consisted of Chief Justice Wallis, Justice Oldfield and Justice Seshagiri Aiyar. Wallis CJ and Aiyar J formed the majority opinion in this case with Oldfield J being the sole dissenting judge. Wallis CJ. disagreed emphatically with the assertion that a threat to commit suicide cannot be considered as an act ‘forbidden by the Indian Penal Code’.  He argued that “At common law suicide was a form of homicide. “Homicide properly so called” says Hawkins, (Pleas of the Crown, Book I, Chapter 9) “is either against a man’s own life or that of another.”

He further stated that Section 299 of the Indian Penal Code, which deals with the crime of Culpable Homicide is “sufficiently wide to cover deliberate suicide”, however he accepted that punishment for culpable homicide can only been given to a living offender, a scenario which is not possible in the case of suicide. He mentioned how abetment and attempting to commit suicide are both punishable under Section 304 and Section 309 of the Indian Penal Code respectively.

He concluded his reasoning by stating  “I find it impossible to hold that an act which it is made punishable to abet or attempt is not forbidden by the Indian Penal Code , especially as the absence of any section punishing the act itself is due to the fact that the suicide is in the nature of things beyond the jurisdiction of the Court.” Seshagiri Aiyar, J. agreed with the opinion of the Chief Justice. He added to the majority opinion by mentioning how the only reason the law cannot punish a person who commits suicide is because the law cannot reach him. He added how if a person either abets or attempts to commit the same crime, he is appropriately given punishment.

However, it must be noted that even Seshagiri Aiyar J. agreed to the fact that “there is no provision in the Indian Penal Code which forbids in terms commission of suicide.” He stated how the term forbidden by the Indian Penal Code is wider in meaning than the term “punishable by the law”, therefore he concluded that a threat to commit suicide can be construed to mean an act forbidden by the Indian Penal Code.

Both the judges agreed upon the fact that the act of the husband dying leaving a widow and a child with no father, in case a deed is not furnished which deprives the wife and child of their rightful property amounts to sufficient coercion under the eyes of the law.

Justice Oldfield was the sole dissenting judge, forming the minority opinion. He argued that since the act of suicide is not explicitly forbidden by the law, the only way to consider it as forbidden is by implication. He opted for a strict interpretation of the statutes. He argued that if the word ‘attempt’ is used in the legal sense, a threat to commit suicide is completely different from an attempt to suicide. He stated that “an attempt in the legal sense can be recognised as such only after the criminal’s intention has been frustrated, not when it is expressed; that is, when the threat is made.” [10]

He then turned to Section 16 which deals with Undue Influence and found no relevance to the case, as Section 16 clearly states that “one of the parties is in a position to dominate the will of the other” [11] . Since the husband was the one making the ‘threat’ and he was not one of the parties to the contract, the question of undue influence being used fails.

In relation to the above, it is important to point out how in the first appeal against the judgement of the lower court, the same issue was at hand. At that time, Justice Moore stated the example of a landmark case – Ranganayakamma vs. Alwar Setti [12] . In this case the dead body of the husband was not allowed to be removed from the house by the relatives of a boy, unless the widow legally adopted the boy aged thirteen years.

Justice Moore wrote in his judgement “In the Madras case however there would have been no difficulty in finding that the widow’s consent was obtained by “undue influence,” within the meaning of Section 16 of the Contract Act. As regards the question whether the release deed was brought about by “undue influence,” it may be that Swami was in a position to dominate his wife’s will but he was not a party to the contract and Section 16(2)(b) of the Contract Act consequently does not apply.” Simply meaning that since he was not a party to the contract, no question of undue influence arises in this case as opposed to Ranganayakamma vs. Alwar Setti . [13]

III. LAW COMMISION REPORT:

The Law Commission of India, in its 13th Report [14] , suggested amendments to Section 15 of the Indian Contract Act. This suggestion was made with the aim of overcoming the lacunae that exists in the language of the law. Section 15 of the Act mentions only those acts which are “forbidden by the Indian Penal Code”, this however means that acts which are forbidden by other penal provisions prevalent at the time are not covered under Section 15. The recommendations of the Law Commission were as follows

“The proper function of the Indian Penal Code is to create offence and not merely forbid. A penal code forbids only what it declares punishable. There are laws other than the Indian Penal Code performing the same function. We suggest that the words “Any act forbidden by the Indian Penal Code” should be deleted and a wider expression be substituted therefore so that penal laws other than the Indian Penal Code may also be included. The explanation should also be amended to the same effect.”

IV. ANALYSIS:

In order to analyse, we must start again with what the provisions of the law state with regards to the crime of coercion. Coercion is defined as – ‘Coercion’ is the committing, or threatening to commit, any act forbidden by the Indian Penal Code (45 of 1860) or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement. [15] We are concerned with the first part of the section which expressly states that for an act to be considered coercive, the wrongdoer must either commit or threaten to commit an act forbidden by the Indian Penal Code, 1860. The language of the provisions is very clear and therefore must be interpreted in that sense. The assistance of the Law Commission Report can be taken to understand this argument further.

The 13th Report clearly states that “ The proper function of the Indian Penal Code is to create offence and not merely forbid. A penal code forbids only what it declares punishable.” It is clear from the assertion of the commission too, that if an act for which there is no express punishment in the Indian Penal Code (as is the case for committing suicide), cannot be said to be forbidden by the Indian Penal Code.

Flowing from this argument, if the act is not forbidden, no action for coercion arises as a consequence. The moot question therefore arises, how can the court treat something as forbidden which is not expressly punishable under law.

Pollock and Mulla are also of the view that in the particular case, the minority view is correct, opting for a strict interpretation of the provisions, rather than interpreting them by implication, as had been done by the assenting judges. They too recommend an amendment in the language of Section 15 to cover such threats too.

Moreover, in the case of Palaniappa Mudaliar vs. Kandaswamy Mudaliar [16] , it was held that, “In order to constitute coercion, the threat must be unlawful and it must be shown that it was effected with the intention of coercing the other party to enter into an agreement.” Thus, even though the threat of the husband could be attributed to have been an act that is coercive, it does not fulfill the first condition of the statement, i.e., ‘the threat must be unlawful’ . As there are no provisions under the Indian Penal Code expressly declaring a threat to commit suicide or committing suicide unlawful, the act could not have been said to be coercive under Section 15 of the Contract Act.

The view of the dissenting judge appears to be more appropriate in this particular case. The learned judge very lucidly opposes the argument, that only because the act of abetting or attempting suicide is punishable by law, a threat to commit suicide must also be punishable through implication. He wrote in his dissenting judgement

“It does not follow that the failure to employ the other direct prohibition, or to make provision for the case of suicide in the Contract Act was due to inadvertence and that the omission should be supplied by inference. For it is possible that provision was omitted deliberately, because cases for its application would be rare and their truth difficult to establish, the party alleged to be coerced having usually easier means of preventing the accomplishment of the threat than by entering into the agreements sought to be avoided.”

As can be understood from the above, the majority judgement justified the absence of any provision explicitly forbidding the act of threatening to commit suicide by using only implication. The absence of the provision was justified by assigning meaning to the ‘aim of the legislature’. Meaning should not have been attributed to the aim of the legislature as that deviates from the express provisions stated in the law.

Therefore, the minority judgement seems more appropriate, solely for the reason that if a simple reading of Section 15 is done, without assigning any implied meaning to the provisions, it is clear that the act of ‘threatening to commit suicide’ would not be considered as coercion under the Indian Contract Act.

Cite this article as:

Mr. Sarthak Das, The Concept of Free Consent With Special Reference to a Landmark Case of Section 15 of The Indian Contract Act, 1872, Vol.3 & Issue 3, Law Audience Journal (e-ISSN: 2581-6705), Pages 55 to 64 (11 th January 2022), available at https://www.lawaudience.com/the-concept-of-free-consent-with-special-reference-to-a-landmark-case-of-section-15-of-the-indian-contract-act-1872/ .

Footnotes & References:

[1] Chikkam Ammiraju And Ors. vs Chikkam Seshamma And Anr (1917) 32 MLJ 494.

[2] The Indian Contract Act, 1872, § 2(h).

[3] The Indian Contract Act, 1872, § 2(h).

[4] The Indian Contract Act, 1872, § 14.

[5] Dr R.K Bangia, CONTRACT-I 140 (7th Edn, 2017).

[6] The Indian Contract Act, 1872, § 15.

[7] Indian Law Reports: Madras (1918) Volume 41 .

[8] Chikkam Ammiraju And Ors. vs Chikkam Seshamma And Anr (1917) 32 MLJ 494.

[9] Chikkam Ammiraju And Ors. vs Chikkam Seshamma And Anr (1917) 32 MLJ 494.

[10] Chikkam Ammiraju And Ors. vs Chikkam Seshamma And Anr (1917) 32 MLJ 494.

[11] The Indian Contract Act, 1872, § 14.

[12] Ranganayakamma v. Alwar Setti (1889) 13 ILR 214.

[13]  Ranganayakamma v. Alwar Setti (1889) 13 ILR 214.

[14]   Law Commission of India, 13th Report on Contract Act, 1872 (1958).

[15] The Indian Contract Act, 1872, § 15.

[16] Palaniappa Mudaliar v Kandaswamy Mudaliar (1971) 1 Mys LJ 258 (India).

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...of documents.”15. The essentials of contract set out in Section 10 above are:(1) Free consent of the parties(2...interests.17. “ Consent ” and “ Free Consent ”, with which we are really concerned in this appeal, are defined in Sections 13 and 14 of the Act as under...:“13. Two or more persons are said to consent when they agree upon the same thing in the same sense.14. Consent is said to be free when it is not caused by...

.... As per Section 90 of the Indian Penal Code, if consent is obtained by playing fraud with false promise to marry with the prosecutrix, then it cannot be said to be free ... consent . Free consent / willingness is sine qua non to say that physical relations were made with the consent of the prosecutrix. Since consent was obtained by playing fraud, therefore, it cannot be said...to be a free consent . Prima facie offence under Section 376 IPC seems to have been made out against the petitioner. No ground is made out for anticipatory bail. Dismissed. However, it...

...full and free consent in the Petitioner being granted the Letters of Administration with Will. One of the heirs Mr. Ravi Baldev Raj Chopra died on 12 November, 2014 and his heirs who have been...mentioned in paragraph 9 of the Petition at Sr. No. 2a to 2d have also filed their consent Affidavits giving full and free consent for Letters of Administration with Will annexed to be granted to the...uncontested Petition in view of the heirs of the deceased having given their consent Affidavits given full and free consent for the Letters of Administration with will to be granted to the Petitioner....

...their free will and free consent for executing any document in respect of their properties. It is alleged that defendants 1 to 6 have prevailed upon defendants 7 and 8, and by dominating their will...written statements contending that Exhibits-B1 to B6 were executed by defendants 7 and 8 with their free consent and they have sufficient mental capacity and strength to exercise their free will and... free consent . According to them, the plaintiffs have no locus standi to file the suit, and the suit as such is not maintainable.6. Defendants 7 and 8 have filed a separate written...

...agreements and declarations made by the plaintiff were not binding on him as it was not obtained by free consent and free will and in the normal course of events.4. In...finding that these documents were not obtained by free will and free consent and in the normal course of events, to say the least, is an inferential conclusion not supported by any evidence...asked for to apply for extension. The basic stand of the plaintiff-respondent was that the extensions had been sought for and supplemental agreements were executed not on the free will and free ...

...and final settlement on free consent of the de facto complainant has been effected by them. Learned Magistrate has now sent a report, after conducting an enquiry as directed, stating that he is...satisfied that the parties have settled all disputes and that such settlement was arrived on free consent of the de facto complainant. Having regard to the fact that the criminal proceedings have arisen on...

...(1) 5,87,400/- 4,41,760/- . 1,45,640/- .6. , - . . - - .7. .. 2(1) , 5,87,400/- . . 1 2 . - . . Free Consent . Free Consent . . . . . ...

...down the request on the ground that the petitioner being in custody is not in a status to give free consent . Free consent is defined under Section 14 of the Indian Contract Act..., 1872, in the following terms:- Consent is said to be free when it is not caused by - 1 W. P. No. 4056/ 2017 (Manoj Singh Vs. State...status to give free consent . Free consent is defined under Section 14 of the Indian Contract Act, 1872, in the following terms:- Consent is said to...

.../ respondent No.2 if the matter has been settled/ compounded by him with the petitioner with his free consent without any fear or pressure. He informs that the dispute has been settled with the petitioner...amicably with his free consent . He has no objection to the disposal of the present revision petition as compounded / settled. 4. I am satisfied that the matter has been...compounded by the complainant with the petitioner with his free consent and pursuant to the settlement the payments have since been made. 5. Since the matter has been...

...the free consent and volition of the parties keeping their best interest under consideration. 6. After enquiry with the parties, it is convinced to the Court that the parties have...settled the matter and entered into a compromise out of their free consent , volition and keeping their best interest under consideration. 7. The present appellants have...convinced that the parties have compromised the matter keeping their best interest under consideration and with free consent , the appeal can be disposed of in terms of the compromise petition. Accordingly...

...for the appellant-accused was that the prosecutrix VW, PW 6 had voluntarily and with her free consent , accompanied the appellant-accused Jarnail Singh. It was contended that in actuality it was the...the alleged free will and consent of the prosecutrix VW, PW 6 individually, so as to effectively determine the veracity of the submissions noticed above.16. Insofar as...prosecutrix VW, PW 6 was a minor at the time of occurrence on 25-3-1993, and had concluded, that even if she had accompanied the appellant-accused Jarnail Singh on 25-3-1993 of her own free consent , and even...

...that the settlement was not with the free consent of the complainant - Ms. Jyoti. Specific observations in the order dated 07.11.2012 need reproduction:“3. It has also been stated by Mr...the petitioners No. 1 to 5. Status report filed by the State indicated that the settlement was not with the free consent of the complainant - Ms. Jyoti.4. Considering the facts and...settlement was not with the consent of the complainant - Ms. Jyoti. She was directed to appear in person to ascertain if the settlement had taken place with her free consent . Today, the complainant...

...the Court:-“I am major. I have performed my marriage with the petitioner Parwinder Singh son of Kulwant Singh with my free consent and without any kind of pressure. My parents have...statement that, she is major and was stated to have performed her marriage with the petitioner, with her free consent & without any kind of pressure and her parents have illegally detained her...petitioner & detenue & the validity of their marriage or otherwise, detenue Harjit Kaur is free to accompany with the petitioner, if she so desires. Therefore, the instant petition for Habeas Corpus is disposed of accordingly....

...intercourse without her free will and free consent .3. This application for regular bail is opposed by the learned Public Prosecutor on the ground that investigation is still in progress, and that...that she is mentally alright. Whether she is mentally alright or not, a case of sexual intercourse without free consent is well made out prima facie by the prosecution records. On a perusal of the...

.... She has expressed before Registrar Judicial (I) that she has entered into compromise with free consent . When matter is resolved between the parties and offence is compoundable with permission of the...the appellant is compoundable with permission of the Court and when complainant is ready to do compromise with free consent , looking to their future peaceful relations, compromise is accepted. I.A.No...

...whether the de facto complainant has voluntarily and on free consent settled the disputes giving rise to the prosecution of the petitioners/Accused. Learned Magistrate was directed to send a report after.... Report of the Magistrate would indicate that he was satisfied on the enquiry conducted that the second respondent/de facto complainant has voluntarily and on free consent entered into a settlement...

...marrying her and that the High Court erred in holding that the victim was a consenting party and that even if the victim consented to sexual intercourse, it was not free consent but was given on the...give her free consent to the act of sexual intercourse but it was consent given under misconception of fact?15.3 (iii) Whether the trial court was right in holding that...under Section 376 IPC stands proved. Vide order dated 5-10-2005 of the Sessions Judge, the accused was convicted of the offence of rape under Section 376 IPC on the ground that the consent given by PW...

..., unless the proposal prescribes the manner in which it is to be accepted…”. Under Section 10 “all agreements are contracts if they are made by the free consent of parties competent to contract, for a..., the agreement must be made by the free consent of the parties”.12. We find no force in the contention of Shri Nariman that the appellant had submitted to the jurisdiction of...

...cohabitation on that consideration and not by free consent . The petitioner committed the offence under Section 376 of the Penal Code, 1860. The trial court having taken cognizance, the petitioner...

.... , . , . . . . . 4. - - . Indian Contract Act, 1872 -10, 14 17 . . What agreement are contract:- All agreements are contracts if they are made by the free consent of.... 14. Free consent defined: - consent is said to be free when it is not caused by- (1) Coercion, as defined in section 15, or (2) Undue influence, as defined in section 16, Or (3) Fraud, as define...in section 17, or (4) misrepresentation, as defined in section 18, or (5) Mistake, subject to the provisions of sections 20, 21 and 22. Consent is said to be so caused when it would not have been given...

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Consent for Medical Treatment: Recent Case Law

• February 14, 2017

This article looks not only at the case of Montgomery but also at some other recent authorities on the law of consent.

Case One: Border v Lewisham and Greenwich NHS Trust

Border v Lewisham and Greenwich NHS Trust [2015] was a Court of Appeal decision before Montgomery. It highlights the importance of considering not only whether a treatment is acceptable but whether the patient has consented at all.

The claimant was a 64 year old woman who had fractured her right humerus. She was taken to the Emergency Department of Queen Elizabeth Hospital in Woolwich where the duty SHO wanted to put an IV line into her arm. This was standard procedure. There was no immediate need to do so but it ensured that staff would be ready should an emergency arise.

He was unable to use her injured right arm and normal practice would have been to use the left. However, as she told the doctor, she had recently undergone a left mammectomy and axillary node clearance in the left arm. As a result there was a risk of oedema if he used the left arm. The options were either to go ahead using the left arm or to wait and see whether a cannula would actually be needed at a later stage.

There was a conflict of evidence as to exactly what happened. However the judge accepted the claimant’s account that the doctor in effect made a ‘quick and silent calculation’ and only communicated with the claimant to the extent of saying something like, ‘I’m sorry, but we really need to put it in the left arm’. She hardly realised what was happening until it was done.

She went on to develop a permanent and serious case of oedema in the left arm which caused significant disability.

At first instance the judge found that the decision to insert a line in the left arm rather than adopting a ‘wait and see’ approach accorded with accepted practice. An experienced consultant might feel able to take a calculated risk to wait and see but it would be a ‘bold decision for a senior house officer’. His action did not in itself amount to a breach of duty. The claim therefore failed at trial.

On appeal, the claimant raised a case which had not been argued at trial. She argued (and this was contested by the Defendant) that there had been a finding of fact that the doctor had not obtained her consent before inserting the cannula. On that ground there was a breach of duty in failing and she was entitled to judgment. The fact that the doctor acted in accordance with accepted practice did not mean he was entitled to do so without consent.

The Court of Appeal agreed that the judge had made such a finding. It also noted that allegations based on consent were within the scope of her pleaded case even if they had not been raised at trial. She was therefore entitled to contend on appeal that lack of consent entailed a breach of duty: ‘A finding of absence of consent to the insertion of the cannula leads inexorably to a finding of breach of duty in inserting it’.

The Court of Appeal granted a declaration that the doctor was in breach of his duty in inserting the cannula without the claimant’s consent and remitted that claim to the judge to determine causation. It refused her permission to amend the pleadings to add a claim of trespass to the person, a finding which would have short-circuited the issue of causation.

Case Learnings

Border v Lewisham and Greenwich NHS Trust therefore does not add to the case law on what amounts to consent but it highlights the importance of proper pleading. Had she pleaded trespass to the person the claim would have succeeded without having to establish that with proper advice she would not have consented.

The case also highlights the importance of raising consent as an issue in appropriate cases. This was a case where the medical decision was not negligent but proceeding without consent was.

Case Two: Montgomery v Lanarkshire Health Board

Montgomery v Lanarkshire Health Board has been the subject of detailed analysis elsewhere and only a brief summary is set out below.

Ms Montgomery was admitted to hospital in Lanarkshire for the delivery of her baby. There was a relatively high risk of shoulder dystocia of 9-10% because of the mother’s diabetes and her small size. There was a relatively low risk of prolonged hypoxia from shoulder dystocia of around 0.1%. She was not advised of the risks of vaginal delivery as opposed to Caesarean section. Unfortunately the risk materialised and her baby was born severely disabled.

The obstetrician’s evidence was that she did not advise Ms Montgomery of the increased possibility of shoulder dystocia because the risk of a grave problem for the baby was so small. If the condition had been mentioned, most women would elect for a Caesarean section although this would not be in their interests. Implicit was the judgment that in these circumstances a doctor’s assessment of a patient’s interests outweighed the patient’s wishes.

The claim failed at first instance, the court finding that the obstetrician had not been negligent either in her advice or her management of the labour. When the case reached the Supreme Court, the principal issue was whether the obstetrician’s failure to warn Ms Montgomery of the risk of shoulder dystocia was negligent.

Prior to Montgomery the ‘Bolam test’ of negligence was applied not just to diagnosis and treatment but also to advice. The question in the Montgomery case was whether it provided the correct test applied to the doctor’s duty to advise.

In Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871 the House of Lords held that it did although the minority view of Lord Scarman was that it did not.

The Supreme Court in Montgomery noted that English courts had nevertheless recently been moving in a different direction and, when it came to advice, the Bolam test had been undermined by some recent decisions.

Behind the scenes there had been a change in the social, medical and legal landscape since Sidaway. People were now regarded as autonomous bearers of rights, governing their own lives and making choices for themselves. They had more access to medical information through the internet and information leaflets. Doctors also received professional guidance which gave greater emphasis to the concerns and choices of patients. Furthermore there had been developments in human rights law and the courts were increasingly conscious of the value of self-determination particularly in cases involving issues of withdrawal of treatment.

The Supreme Court therefore rejected application of the Bolam test to a doctor’s duty to advise. The test was not whether a doctor acted in accordance with a practice accepted as proper by a responsible body of medical practitioners but was based instead on what a particular patient would expect to know.

‘An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.’

Whether a risk should be regarded as material depends on the patient’s perspective rather than the doctor’s. It is fact-sensitive, depending on the particular patient’s characteristics.

There are 3 exceptions to the general rule which should be regarded narrowly and not abused:

1.    Where a patient tells a doctor that she does not want to know the risks.

2.    The ‘therapeutic exception’: ie if disclosure of the risk would be seriously detrimental to a patient’s health; and

3.    Necessity: for instance an unconscious patient requiring urgent treatment.

Ms Montgomery was found to have the right to be advised of the risk of shoulder dystocia, and decide what risks she was prepared to run. The court accepted that she would have opted for a Caesarean section with proper advice. It awarded her damages of £5.25 million.

This is a very significant decision. The Supreme Court has rejected a clinician-centred and paternalistic approach to consent, replacing paternalism with patient autonomy. The decision has great significance for clinical negligence cases and a number of claimants have since amended their pleadings to allege lack of consent.

It will also have very significant implications for NHS practice. Standard consent forms are unlikely to be adequate. Doctors will need to ensure they have more detailed discussions with their patients and record those discussions.

More significantly patients may elect for expensive treatments which hospitals may wish to avoid. In particular there may be an increase in women wanting Caesarean sections. This is a cause of concern to many in the medical profession.

Case Three: SXX v Liverpool Women’s NHS Foundation Trust

SXX v Liverpool Women’s NHS Foundation Trust [2015] was a claim brought by one of two twins born in June 2015. He was delivered by forceps and suffered an intracranial haemorrhage which caused a neurological disability. His twin sister was delivered by emergency Caesarean section.

The claimant’s mother had been concerned at the risks of vaginal birth particularly given that the father’s brother had lost one of two twins at birth 7 years previously. She raised her concerns during a booking scan and the consultant obstetrician subsequently wrote in the notes, ‘For elective Caesarean section if wishes’. However when she went into labour, the midwife persuaded her to have a vaginal delivery and did not refer to a consultant. He alleged breach of duty in failing to take due account of the mother’s wishes.

Experts in obstetrics and midwifery agreed that the mother should have been referred for a Caesarean had she requested one. She was also able to adduce helpful evidence from the consultant at trial who said he would have agreed to a Caesarean in the circumstances despite a vaginal birth probably being safe. The court found that there was a breach of duty in failing to refer discussion of the mode of delivery to the consultant who would have agreed to a Caesarean, avoiding the claimant’s injury.

Case Four: Tasmin v Barts Health NHS Trust

In Tasmin v Barts Health NHS Trust [2015] the claimant, aged 14 at trial, was delivered by emergency Caesarean section. Minutes before birth the umbilical cord tightened around her neck resulting in a profound hypoxic/ischaemic insult and she suffered a severe brain injury which left her seriously disabled.

She alleged negligence in the management of her delivery and a failure to obtain adequate consent from her mother to persevere with labour rather than undergoing a Caesarean section.

The key allegation related to a period between 21.40 and 22.30 when the registrar had failed to interpret CTG readings as pathological. The registrar proceeded with Syntocinon infusions when the correct course of action would have been to take samples of the foetal blood. The court accepted evidence that, had this been done, the results would have been reassuring and the mother would have been advised to persevere with labour.

The claimant alleged that at this stage there should have been a discussion with the parents about the risks of the pathological trace and the alternative course of management by Caesarean section. In the absence of such a discussion the decision to proceed with vaginal delivery was made without their consent and was negligent.

Mr Justice Jay preferred the Defendant’s expert evidence that good medical practice required foetal blood sampling before any consideration of Caesarean section, the pathological CTG not by itself being diagnostic of hypoxia which might lead to acidosis. However the claimant’s case was that the issue could not be resolved solely on the basis of expert evidence because it was one of consent: her mother should have been advised of the material risk of injury and been able to elect for a Caesarean at this stage.

The court found that because CTG is not a diagnostic tool, there could not be a sensible discussion of the options before foetal blood sampling had been done. More significantly the risk of serious injury was negligible, of the order of 1:1,000.

He held that this was not a material risk, citing A v East Kent Hospitals NHS Foundation Trust [2015] EWHC where Dingemans J described a risk of 1:1,000 as ‘theoretical, negligible or background’. However he preferred to formulate the risk as being ‘too low to be material’. The claim therefore failed.

There are some interesting features of this case. The first is that it made plain some of the concerns within the medical profession about the impact of the decision in Montgomery. The Defendant’s expert obstetrician described it as creating challenges for obstetricians. He was concerned it would be impractical to raise options of foetal blood sampling or Caesarean section at every clinical encounter, particularly during the dynamic and highly charged process of labour.

The second is that whereas the Supreme Court in Montgomery explicitly said that what amounted to a material risk was not a matter of percentages, Mr Justice Jay found that a risk of 1:1,000 was too low to be material.

In Montgomery the risk of shoulder dystocia had been 9-10% and that in itself presented a risk of significant injury. However the risk of a prolonged hypoxia had been 0.1% or 1:1,000, the same as in Tasmin. The problem with looking at risk in percentage terms is that it looks only at one of two components: the probability as opposed to the severity of injury. 0.1% may be a negligible risk in the context of a minor injury but many mothers would regard it as material if it could give rise to lifelong disability. Further percentages do not take into account factors which are specific to the particular patient. No such factors were identified in Tasmin.

The third is that this could be regarded as something of a brake on the momentum of Montgomery. This was a case in which the issue of when to hold a discussion of options for management was a matter of medical judgment – and one therefore which would be governed by the Bolam test rather than by the principles in Montgomery.

Case Five: David Spencer v Hillingdon Hospital NHS Trust

David Spencer v Hillingdon Hospital NHS Trust [2015] is not a case about consent but develops the implications of Montgomery in defining a doctor’s duty to advise in a different context.

The claimant underwent surgery to repair an inguinal hernia. After discharge from hospital he developed complications in the form of a deep vein thrombosis and pulmonary embolism on each lung. He claimed he had not been warned of these complications. He had not been alerted to the significance of symptoms, such as pain and swelling in the leg, heat or discolouration, altered sensation, shortness of breath and chest pain, should they develop. He therefore did not recognise onset of the condition and delayed in seeking medical help.

As a result, his condition was worse than it would have been, given proper advice. It was not his case, however, that had he been warned of the risks he would not have undergone the repair.

The court was guided by the decision in Montgomery in defining the extent of the duty to advise. It commented:

‘there is force in the contention…that the basic principles – and the resulting duty of care – defined in Montgomery are likely to be applied to all aspects of the provision of advice given to patients by medical and nursing staff. Insofar as the judgment in Montgomery emphasises the need for a court to take into account a patient’s as well as their doctor’s point of view as to the significance of information for a patient I consider it relevant to the facts of this case.’

The case is therefore one which demonstrates the impact of Montgomery in defining what advice should be given even in cases where consent was not involved. It is not clear however that the decision in Spencer would have been any different had the Bolam test been applied to that duty.

Case Six: Shaw v Kovac

Shaw v Kovac was a claim on behalf of the estate of a man who had died at 86. He suffered from aortic valve stenosis and was advised to undergo transcatheter aortic valve implantation (TAVI), a procedure to place an artificial valve in the defective heart valve. He was not advised of the alternatives of open heart surgery or conservative symptomatic treatment. He underwent the procedure, suffered the complication of bleeding from the aorta and died.

The claimant succeeded in its claim that, had the deceased been warned of the risks of TAVI, he would not have undergone the procedure. The estate recovered damages for pain, suffering and loss of amenity, funeral costs and expenses. However the court rejected rather ambitious submissions that Montgomery created a freestanding right of action giving rise to an entitlement to damages irrespective of loss and in particular it refused an award for loss of expectation of life, which is in any event precluded by the Administration of Justice Act 1982, section 1.

The case is therefore clear authority, if such were needed, that the normal principles of causation, loss and damage apply to claims based on negligent failure to obtain proper consent.

Other Cases

There have been cases where the claimant has simply failed to establish an absence of consent on the facts.

In Julie Connolly v Croydon Health Services NHS Trust [2015] the claimant failed to establish that she had not been properly warned of the risks of an angiogram or withdrawn her consent to continued treatment when a complication arose.

In MC, JC v Birmingham Women’s NHS Foundation Trust [2016] the claimants failed to establish on the facts that the mother had not given consent to induction of labour.

Conclusions: What Do These Cases Teach Us About Medical Consent?

It is possible to draw certain conclusions from the recently decided cases.

First, four of the eight cases reviewed concern birth injuries . It may well be that obstetrics will be the area of medicine most affected by the Montgomery decision, not least because of a conflict between the medical view that a vaginal delivery is appropriate and wishes by mothers in labour to have a Caesarean section, a form of treatment which is bound to put greater pressure on NHS resources.

Secondly, it is only really Tasmin which puts Montgomery to the test. In other cases the decision in Montgomery was cited in defining the nature of the duty to advise. However only in Tasmin was there a potential conflict between the scope of that duty from the perspective of the medical profession and from the patient. That may suggest that in many cases the application of Bolam and Montgomery would produce the same result.

Thirdly, there remain difficulties for claimants in establishing claims based on consent, as the decisions in Tasmin, Connolly and MC, JC demonstrate.

Fourthly, claimants will be assisted where the evidence from treating doctors is either that, had they been asked they would have agreed an alternative course of treatment (SXX) or that patients in general would elect for that treatment (Montgomery).

Claims in relation to consent have therefore proved fertile ground for litigation over the last couple of years. With the retrospective application of the principles in Montgomery and NHS services under pressure, they are likely to remain so in the foreseeable future. It is however not necessarily the case that Montgomery will in fact make a significant difference in practice, particularly outside the obstetric context.

Do You Require Legal Guidance on Consent for Medical Treatment?

If you have a case regarding medical consent, our friendly and professional medical negligence solicitors are happy to advise you. Get in touch with our team to discuss your case today.

Reproduced with the kind permission of the Personal Injury Law Journal – 152, February 2017′.

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E-Justice India

Free consent as an essential for a valid contract: an analysis with special reference to indian cases, author: bhavya dayal, introduction.

The Indian Contract Act of 1872 governs contracts in India. The Act states that no contract shall be made unless both parties are fully committed and willing to have the contract legally enforceable. As a result, the concept of free consent becomes extremely important. Section 12 [1] of the Indian Contract Act expressly states that a contract must have the free consent of both competent parties in order to be legally enforceable and binding.

The definition of consent in Indian contract law is given in Section 13 [2] , which states that “it is when two or more persons agree on the same thing and in the same sense.” As a result, the two people must agree on the same thing in the same way. Giving consent is not enough to make a contract enforceable. Consent must be freely and voluntarily given.

Section 14 [3] of the Indian Contract Act defines free consent as consent that is free of coercion, undue influence, fraud, misrepresentation, or mistake. When consent would have been given in the absence of such factors, it is said to be so caused. The goal of this concept is to ensure that the contracting parties’ decisions have been clear since the contract’s inception. As a result, consent obtained through coercion, undue influence, fraud, misrepresentation, or mistake has the potential to render the contract void.

REASERCH QUESTIONS

Several questions pop up in our minds when we study about free consent in contracts,

• What is free consent?
• What is coercion?
• What is the meaning of misinterpretation?
• What are some of the important Indian cases on free consent?

RESEARCH METHODOLOGY 

The research methodology used is secondary research, an approach which includes gathering information from secondary sources such as academic papers, journals, and reports available for public use both online and offline.  Majority of the data is collected from the internet, through multiple websites, blogs, and channels, with the sources being duly cited at the end.  After data collection, it has been combined and collated in a comprehensive and understandable format, to increase the overall effectiveness of this paper.  And the research is compiled in an impartial manner.

H 0 – There are no need of free consent for a contract to be valid.

H 01 – Section 13 of the Indian Contract Act, which states that “it is when two or more persons agree on the same thing and in the same sense”, if there is not free consent the contract won’t be valid.

The essence of these acts is the Latin phrase consensus ad idem, which means that the parties to the contract must agree. The purpose of a contract as a two way deal is defeated if neither party’s consent is free. A contract formed through free consent safeguards the validity of an agreement, providing the parties with a protective shield. It allows the parties to maintain their autonomy in defining their running policy or principle.

Concept of Consent

According to Section 13 of the Indian Contract Act, consent exists only when the parties to a contract agree on the same thing in the same sense. Consensus ad idem, or a meeting of the minds, must be at the heart of all legal contracts. This idea was developed further in the cases of Raffles vs. Wichelhaus (1864) and Smith vs. Hughes (1871).

In the case of Raffles v. Wichelhaus [4] two parties, ‘A’ and ‘B,’ entered into a contract for the sale of 125 cotton bales from Bombay by a ship named “peerless.” There were two ships with the same name, and while Party ‘A’ was thinking about one, Party ‘B’ was thinking about the other. The court ruled that neither party had reached an agreement. As a result, the contract was null and void.

In the case of the Smith vs. Hughes [5] Queen’s Bench decided that even if a party did not express his or her assent explicitly, but acted in such a way that a reasonable man would believe him assenting to the terms proposed by the promisee, he or she would be bound by the contract as if he had expressly entered into it.

Kinds of violations of Free Consent

According to the Indian Contract Act of 1872, free consent of contract parties is not obtained if it is tainted by:

In accordance with the Indian Contract Act, 1872, coercion means, “Coercion is the committing, or threatening to commit, any act is forbidden by the Indian Penal Code (45 of 1860) or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement.”. [6]

A significant factor is that the Indian Penal Code is not always applicable at the location where consent was obtained. The phrase “to the prejudice of any person whatever” is an important part of the law because it means that coercion can be directed against the prejudice of anyone, not just the party to the contract. Surprisingly, parties other than the contracting parties can also impose coercion.

Even a third party to the contract can use coercion to obtain consent,  as seen in the case of Ranganayakamma v. Alwar Setti [7] where a widow was coerced into adopting a boy and was not allowed to remove her husband’s body until the adoption was completed.

It is the responsibility of the party whose consent was allegedly coerced to demonstrate that the consent obtained from the aggrieved party was obtained through coercion.  When a party’s consent is obtained by coercion, the contract becomes voidable at the will of the aggrieved party.

In the case of Chikkam Ammiraju and Ors. v. Chikkam Seshamma and Anr [8] 1916 MWN 368 the Madras High Court ruled that threatening to commit suicide is also coercion, and the aggrieved party has the right to terminate the contract. In this case, the husband threatened his wife and son with suicide if they did not sign a sale deed in favour of his younger brother. They carried out the deed but later pleaded guilty to coercion. Because the act of committing suicide is prohibited under the IPC, the husband’s act was found to be illegal, and the consent obtained was found to be obtained through coercion.

Undue Influence

According to Section 16 of the Indian Contract Act, 1872 an influence will be considered as Undue Influence when,

• One party to the contract is in a position of trust and controls the other party wrongfully.
• Such a person uses his dominant position to gain an unfair advantage over the other.

There are two key elements of undue influence,

• The relationship trust, confidence, authority.
• Unfair persuasion careful examination of the terms of the contract. [9]

A contract is said to be induced by “undue influence” when the parties’ relations are such that one of the parties is in a position to dominate the will of the other and uses that position to gain an unfair advantage over the other. The existence of a position of authority, trust and confidence of one party over another, and the use of unfair persuasion by the party with authority are the elements that constitute coercion.

In the case of Lingo Bhimrao Naik v. Dattatrya Shripad Jamadagni [10] a mother was accused of exerting undue influence on his adopted son when he reached the age of majority in order for him to ratify the gift deeds regarding non watan property made to her daughters, as well as obstructing his ability to consult his natural father. The court ruled that the adoptive mother abused her position of authority to exert undue influence over his son in order to gain an unfair advantage in having the gift deeds ratified. Furthermore, because the adoptive son was unaware of his legal rights, the case was adjourned.

Fraud, according to Section 17 of the Indian Contract Act, is defined as any of the following acts committed by a contracting party or its connivance or agent in order to deceive or induce a party or its agent to enter into the contract:

• The effective concealment of a fact by a person who is aware of it.
• A promise made with no intention of keeping it.
• Any other act that has the potential to deceive.
• Any act or omission that the law considers fraudulent. [11]

Silence on facts likely to affect a person’s willingness to enter into a contract is not fraud unless the circumstances of the case are such that, having regard to them, the silent person is obligated to speak or unless his or her silence is equivalent to speech in and of itself.

In the case of Bimla Bai vs Shankarlal [12] a father referred to his illegitimate son as “son” in order to save his marriage. It was determined that the father knowingly concealed the son’s illegitimacy with the intent of defrauding the bride’s parents, which amounted to fraud.

Misrepresentation

Misrepresentation can be classified into three types, according to Section 18 of the Indian Contract Act

• When a false statement of fact is made but it is believed to be true.
• When the person making the false statement violates duty and gains an unfair advantage, even if this was not the party’s intention.
• When one contracting party acts in an innocent manner, causing the other party to make a mistake(s) regarding the contract’s contents.

The three types of misrepresentation have one thing in common, misrepresentation is defined as an unintentional mistake. The burden of proof is on the party alleging misrepresentation in order to avoid the contract to demonstrate that misrepresentation was used to obtain consent. When consent is obtained by deception, it is voidable at the option of the aggrieved party.

In the case of Bhagwani Bai v. LIC [13] , The court held that non-disclosure of lapsed policies could not have influenced the defendant corporation from not entering into a new policy. The court held for the plaintiff saying that it was not misrepresentation or undue advantage and order the defendant to pay the amount at the rate of 6%.

Section 20 of the Indian Contract Act states that if both parties to an agreement are mistaken about a fact essential to the agreement, the agreement is null and void. A mistake does not invalidate consent; rather, it misleads the party, causing the consent to no longer be considered free.

Mistake of Law

When legal provisions are misunderstood by contracting parties, this is referred to as a Mistake of Law. Now, the party may be perplexed as to whether the law of the home country or the law of a foreign country applies. When a contracting party claims ignorance of the laws of the home country, the contract cannot be avoided because such an excuse is not considered valid. However, if the source of the confusion is foreign law, the contracting party may be excused from the contract due to ignorance of such laws.

Mistake of Facts

When the subject of the misapprehension is the contract’s clauses or terms, it is referred to as a factual error. The misunderstanding could be on the part of one or both parties.

• Bilateral Mistake: When a fact is the source of misunderstanding for both contracting parties, the agreement is said to be null and void.
• Unilateral Mistake: When a fact is the source of misunderstanding for one of the contracting parties, the agreement remains valid. Only when a party makes a mistake about the parties to the agreement or the nature of the transaction does the agreement become null and void.

The plaintiff in Ayekpam Angahl Singh and Others vs. Union of India and Others [14] was the highest bidder in a fishery auction. The annual rent was 40,000, and the rights were auctioned off for three years. The plaintiff claimed that he assumed the rent amount would be the same for all three years. As a result, he claimed that he had made the same mistake. Because the mistake was made unilaterally in this case, the contract could not be avoided.

The plaintiff in Dularia Devi v. Janardan Singh [15] was an illiterate woman who wanted to leave her properties to her daughter. The defendants took her thumb prints on two documents that she thought were in her daughter’s favour, but the second document was in the defendants’ favour, who were only supposed to execute the deed. She later filed a suit to cancel the sale deed, and it was determined that because the woman was unaware of the nature of the second document, it was void.

• The burden of proof lies with the party defending the coercion.
• If the plaintiff wants to bring an action to stop a contract entered into on the grounds of undue influence, two issues must be kept in mind.
• In a large majority of cases, fraud cannot be proved by concrete and observable proof.
• The burden of proof is on the defendant to show that the misrepresentation was not rendered fraudulently.

SUGGESTIONS

• Not many people are aware of the difference between consent and free consent.
• More research papers must be written covering this concept.
• People must be informed about the difference in mistake of fact and mistake of law.
• Lastly, the most important thing everyone must be made aware of their rights when their right to free consent is infringed.

Consent is an essential component of any decision making process and serves as the foundation for contract formation. However, in recent years, obtaining free consent has become extremely difficult.  As a result, methods for determining whether consent was freely given are required.  When people are charged with coercion, undue influence, or other crimes, they tend to rely on their defences. The various methods for influencing consent are discussed, and in cases of coercion, undue influence, fraud, and misrepresentation, the contract is usually voidable at the option of the aggrieved party.  However, in the event of a mistake, the parties can only avoid the contract if there is a bilateral mistake by one of the parties regarding the important facts of the agreement or if there is a problem with knowledge of foreign law.

[1] Indian Contract Act, 1872

[4] (1964) 2 H&C 906

[5] (1871) LR 6 QB 597

[6] Section 15 India Code, https://www.indiacode.nic.in/show-data?actid=AC_CEN_3_20_00035_187209_1523268996428§ionId=38618§ionno=15&orderno=15#:~:text=India%20Code%3A%20Section%20Details&text=%22Coercion%22%20is%20the%20committing%2C,to%20enter%20into%20an%20agreement. (last visited Jul 10, 2021)

[7] (1890) ILR 13 Mad 214

[8] 1916 MWN 368

[9] Section 16 India Code, https://www.indiacode.nic.in/show-data?actid=AC_CEN_3_20_00035_187209_1523268996428§ionId=38619§ionno=16&orderno=16#:~:text=%2D%2D%20(1)%20A%20contract%20is,unfair%20advantage%20over%20the%20other. (last visited Jul 10, 2021)

[10] AIR 1938 Bom 97

[11] Section Details India Code, https://www.indiacode.nic.in/show-data?actid=AC_CEN_3_20_00035_187209_1523268996428§ionId=38620§ionno=17&orderno=17 (last visited Jul 10, 2021)

[12] AIR 1959 MP 8

[13] AIR 1984 MP 126

[14] 1980 AIR 1447, 1980 SCR (3) 485

[15] AIR 1990 SC 1173

Related Posts

Case study: Coerced consent

“Coercion is commonly said to invalidate consent, and that is always true if the source of the coercion is the physician. However, if it is a family member who coerces the patient to consent, the resultant consent may be quite valid and treatment should proceed.” However, there must be clear evidence of mental incompetence. Consider the following case.

Caroline Mace, RN,* had never run into a situation quite like this one. Minnie Jones*, a 76-year-old white female, presented with severe hip pain after a fall in a shopping mall. Alert and oriented, she cooperated fully in all diagnostic tests and care while in the emergency department (ED). However, when the physician told her the diagnosis—fractured hip—she refused to allow further treatment and demanded she be allowed to die with dignity. After attempting to persuade for the better part of an hour, the ED physician called her oldest son for permission to treat her. The son was out of the country, but after a discussion with the physician, he gave permission for treatment.

Caroline was told to give Mrs. Jones her preoperative medication. Flanked by a big orderly, she told Mrs. Jones her physician had ordered a sedative to be given to her before surgery. Mrs. Jones replied, “I don’t want to go to surgery. I’ve heard all about how many people die from broken hips and I’ve decided it’s my time! The doctor said my son gave his permission, but my son has no right to speak for me. I said no, and I mean no. Leave me alone, and let me die in peace!” When Caroline threatened to have the orderly physically restrain her, Mrs. Jones “consented” to the injection.

Once Mrs. Jones dozed off, the nurse sent her to the operating room without a signed operative permit, but with notations that her son had been contacted and had given verbal permission for the surgery. Mrs. Jones made it through surgery with flying colors, but developed pneumonia postoperatively and was put on a ventilator. She didn’t respond to various antibiotics and became disoriented. Her son returned from vacation to find his mother in the intensive care unit with a poor prognosis. Angry and threatening to sue, he said he never would have consented to surgery if he’d known about the complications.

Frankly, I’m both mystified and appalled by the handling of this situation. If the consent process had been honored, the entire situation could have been avoided. Now it’s rife with questionable ethical behavior by many parties: the physician for failing to explain the surgery and enlisting the son’s cooperation in coercing the patient into surgery; the orthopedic surgeon (for certainly there had to be one) for performing the surgery with nothing but an absentee son’s verbal permission; the nurse for threatening Mrs. Jones, medicating her coercively, and failing to report the situation up the line; the son for failing to advocate for his mother and for helping to coerce her—and then threatening to exploit the situation for money. Finally, I fault the hospital for failing to act to protect the patient and for allowing its agents to abuse and coerce her.

• The patient didn’t understand her condition and the likely results of receiving treatment vs not receiving it. Mrs. Jones didn’t realize a broken hip isn’t a terminal condition; there is no indication that anyone explained this to her adequately. She wasn’t in imminent danger of dying, and refusing treatment would be more likely to leave her bedridden and in pain rather than dead. Someone—a physician, surgeon, chaplain, nurse, ombudsman, or family member—needed to make that clear. No one did.
• The physician’s decision to circumvent the patient’s decision by calling her adult son and acting on his verbal consent—in the absence of both an imminent life-threatening emergency or a judicial determination of the patient’s incompetence—is troubling, particularly in light of what appears to be her articulate refusal of treatment. Refusing treatment is not in itself proof of incompetence.
• The nurse’s complicity and willingness to use force are puzzling. Why not contact a supervisor, write an incident report when the patient refused her preoperative medication, or ask for an ethics committee review of this case rather than threaten to have an orderly hold the patient down while she forcibly medicated her?
• The son failed to advocate for his mother. Although at first he was willing to override his mother’s wishes, he reversed his position after she suffered complications. Then he threatened to exploit the situation for money.
• The hospital failed to enforce its own policies and placed itself in legal and regulatory jeopardy. This failure could violate the Center for Medicare and Medicaid Service’s (CMS) Conditions for Participation, placing the hospital’s accreditation in jeopardy. Also, the hospital could be sued for failing to protect the patient’s right to self-determination and bodily integrity.

That’s what I think. What do you think?

(*Names have been changed to protect confidentiality.)

Dr. Leah Curtin, RN, ScD (h), FAAN, is Executive Editor, Professional Outreach, American Nurse Today . An internationally recognized nurse leader, ethicist, speaker, and consultant, she is a strong advocate for both the nursing profession and high-quality patient care. Currently she is Clinical Professor of Nursing at the University of Cincinnati College of Nursing and Health. For over 20 years, she was the Editor-in-Chief of Nursing Management. In 2007, she was appointed to the Standards and Appeals Board of DNV Healthcare, a new Medicare accrediting authority. Dr. Curtin can be reached at [email protected]. Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions or recommendations of the ANA or the staff or Editorial Advisory Board of American Nurse Today . Visit myamericannurse.com/SendLetterstoEditor.aspx to comment on this article.

9 Comments .

I truly believe that the son acted right given the circumstances , he wouldn’t have known the after math of the situation if it was not made clear by the physician. so he acted upon what he thought was best for his mother at the moment given the information he had. On the other hand however I put most of the blame to the physician because his intentions were pure to save the patient, but his communication to the son was so poor that he wasn’t clear on the side effects and as far as respecting the patients right is concerned he did a horrible job. on top of that He didn’t make it clear to the nurse that if the patient refuses the injection that Caroline shouldn’t force it on mrs. Jones. and caroline was supposed to know better not to do that.

Honestly, I think the woman’s desire should have been respected. She might have other things that might be going on, so if they had given her more time to think over her decision and by her own volution decided to or not. It’s her body and old and sane enough to take decision. I also don’t understand the rush for the surgery since it’s not a life threatening situation. Anybody would act like son as nobody would want such an ugly surprises. He also might have acted that way out of guilt knowing he should have advocated for his mother’s will be respected.

As an older american myself, and a nurse, I think it is outrageous that this woman was forced to undergo surgery. Although it is not ideal to have to wait to do surgery on this woman, it would have been far better to have given her some time – and also a chance for some input from friends, family and caregivers to talk with her. Why are we always in such a rush? p.s. It’s good to read some of Leah Curtin’s work again!

This is a classic case where palliative care options were not given to patient and a rush to get to surgery where the medical team dr/nurse/ortho deemed themselves most worthy of making a decision for another person. Case in point of a major failure of our medical system. Hindsight proves if a patient does not buy into and choose a medical option outcomes are not good. She should have been transferred to the floor given comfort care for her pain and schedule to meet with palliative care team

All this is fine, but here is a reality: this woman did not understand that she was not dying…and then she was forced into surgery. I’ll bet her fear and anger and pain all lowered her immune system — and certainly may have affected her will to live!

I will try to answer each person: 1) I think the son should be told everything that happened to his mother, including why she ended up on a respirator; 2)Kathy is right: this case is rife with ethical problems – AND it is the non-transferable legal duty of the physician to get informed consent from the patient. and 3) the patient did not have a living will, and she managed to die despite the respirator…

I also would like to know if this patient had any kind of living will or advance directive after winding up on the ventilator. Did they take her off or did they fight tooth and nail to keep her alive?

The situation is strife with many ethical problems all the way around. Frankly, knowing what I know now as an NP, I’m not sure it was in my purview or scope to obtain the written consent for any procedure; it was the physician/surgeon’s responsibility. It is also their responsibility to explain the risks, benefits, and possible complications of any procedure. No consent, no procedure.

The analysis of the case to date is fine, but it does not go far enough. What does Dr. Curtin think should be done now with the son angry and the patient on a respirator?

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