Patient Rights

Patient Rights –A Note

A Right is an interest recognised and protected by law. Every individual has got his or her own rights which possess its’ own correlative duty. Similarly, the patient has a right to procure treatment and the doctor has a correlative duty to provide treatment to the patient. Whereas the doctor has a right to be remunerated for the services provided and the patient has a correlative duty to pay for the treatment received.

However, the duty of a doctor is not an absolute one. A Doctor only has to ensure that he has done his best to every patient who seeks his assistance. It is generally conceived in the eyes of the law that a patient is one who is ignorant with regard to the medical assistance, he seeks from the doctor. Hence, the relationship between a doctor and a patient is inequitable and may have elements which may adversely strike undue-influence. If in any case the doctor fails to do his duty i.e. to provide the treatment in his own knowledge and in good-faith, a patient has the right to sue the doctor for infringement of his or her rights.

Rights of a Patient

Every patient has the right to receive immediate attention in cases where the treatment of a patient is in emergency, such as in case of an accident. Hence, every doctor must ensure that when a patient comes to him in such cases, he must provide medical assistance that would support his life, at least till he gets a better treatment facility. In Paramanand Katara v. Union of India, the Supreme Court held that, every patient has a right to receive ‘emergency-care’. The court held that the first hour of an accident as the ‘golden-hour’. This judgement by the supreme court in the year 1997, when doctors and hospitals did not attend accident-cases fearing future harassment in courts during trials and further judicial proceedings, held that a doctor who attends a patient in the ‘golden-hour’ in good-faith, would not be harassed by seeking his presence in judicial-proceedings.

The relationship between a patient and a doctor is fiduciary in nature, meaning a relationship of Trust and Confidence. Hence, a patient has the right to have his information being kept confidential by the doctor and the Doctor has a duty to not break the fiduciary relationship by disclosing a patient’s information.

A patient also has the right to be informed the nature of the treatment, he is being given. The doctor has a duty to explain to the patient about the treatment being given. A Doctor must not refrain from doing his duty, it is also necessary that a doctor must inform a patient about the alternative methods that would serve as a remedy to the problem faced by the patient. If the doctor fails to do as above, he may be held liable for neglecting his duties.

Every patient also has a right to be informed before being operated on, as ‘to touch a person without his knowledge amounts to ‘battery’. A battery is an offence, as laid by the law of Torts. Hence, it becomes necessary for a doctor to obtain the patients consent before such operation or treatment. The consent obtained from a patient can take two forms. Informed consent is one, which is taken when the patient is in his or her conscious state of mind. However in cases of an emergency, it becomes difficult to obtain an informed consent from a patient. In such cases, the doctors, land in a catch-22 situation as they have to obtain the consent and also provide immediate treatment for the reason being every individual has the right to life[1]. Hence, the law gives rise to a concept called ‘assumed consent’, where a doctor assumes that the patient has given consent to be operated on, in cases of an emergency. The distinction between the two, informed consent and assumed consent is that the former is taken when the patient is in a conscious state and has the ability to think rationally, whereas the latter is taken when the patient is in an unconscious state of mind and cannot make rational decisions. Hence, the doctors assume that the patient has given his consent to be operated on with a motive of saving the life of the patient in good-faith.

Liability of a Doctor: Who is to compensate?

Both doctors and patients have rights. Yet it is always the patients’ rights that are glorified more than the doctors’ rights. This is so because; a doctor and a patient are not in an equal position. Hence, the equitable principle, “Equals should be treated equally and unequal should be treated differently” is applied as the law holds that a doctor has the chances of exerting influence over the patient.

A doctor’s liability is determined by two tests viz.; ‘bolem-test’ and ‘bolithus-test’. The former determines the liability, on the basis of the nature of treatment provided by the doctor. Whereas, the latter, takes into consideration various factors along with the nature of treatment given by a doctor to a patient.

In S. S. Ahluwalia Case, where a child (6 years), affected with typhoid was admitted to a hospital for its treatment. A Doctor assigned by the hospital to examine the child, examines the patient and prescribes the medicine and its dosage to be given. The nurse, in-turn misreads the prescription and gives a higher dosage to the patient which leads to permanent-deformity to the lad. The liability in this case was said to be on the hospital for the reason being, the patient was a customer to the hospital and not one to the Nurse or to the Doctor. Hence, the hospital becomes entitled to compensate the victim.

Are Patient’s Rights protected?

The law gives protection to every right of an individual. Similarly, a patient’s rights are also protected by the law. The law ensures that a patient also receives compensation and necessary remedy in cases where his right is violated.

In V.P.Shanta Case, a judgement that held that, the services rendered by Doctors  and Medical Practitioners come under the term ‘Services’ as defined in Consumer Protection Act,1986. This judgement has helped in attaining speedy proceedings in cases of medical negligence, as the cases that fall under COPRA[2] are to be referred to a special tribunal by name, Consumer Redressal forum. The case may be referred to either the district forum or State Redressal Commission or the National Redressal Commission depending upon the value of the suit. However, an appeal from National Commission lies to the Supreme Court.

Medical Negligence is both, a Civil as well as a Criminal offence, as it poses a threat to an individual’s life. A doctor can be made criminally liable under Sec. 304 of the Indian Penal Code. A doctor can also be made tortuously liable by suing him for damages, a remedy for which lies in monetary compensation.

From the above, we may perceive that a patient’s rights are, to an extent, protected.

Contentious Rights

In India, there are several rights of a patient that are neither recognised by the law nor protected, such as ‘surrogacy’, ‘right to die’ etc.

‘Surrogacy’ is a term which means the ‘renting of a womb’. In India there is no law that neither makes surrogacy legal nor makes it illegal or unethical.

The ‘right to die’ is another such right that is not recognised by the law in India. In various cases, the Supreme Court has held that “right to life’ enshrined in Art.21 is a positive right and cannot be used to the detriment of one’s own life. Moreover, Attempt of suicide is a punishable offence as per IPC[3], under Sec.309.  The ‘right to die’ is achieved by a drug by name ‘euthanasia’. However, the ‘right to die’ by active-euthanasia is recognised by very few countries like Belgium, Netherlands and Luxembourg. In countries like Mexico and USA, Passive-euthanasia is awarded to those seeking for the right to die.

The Supreme Court of India in Aruna Shanbaug’s case, held that ‘right to life’, is only positive in nature and nobody has the right to take a person’s life. However, the court allowed for passive-euthanasia by ordering the removal of all the life-support equipments thereby paving way for new changes in the patient’s rights in India.

From the above, an overview of the Patients Rights can be to an extent, ascertained.

---

[1] Art.21 of the Indian Constitution.

[2] Consumer Protection Act,1986

[3] Indian Penal Code, 1860.