What is informed consent and what should I know before agreeing to surgery?

Samira Kohli v. Dr. Prabha Manchanda, (2008) 2 SCC 1 is the foundational Supreme Court decision on informed consent in India.

The facts: the patient consented to a 'diagnostic laparoscopy plus D&C' — a diagnostic procedure. During surgery, the doctor performed a hysterectomy and bilateral salpingo-oophorectomy (removed uterus and ovaries) based on what was discovered intra-operatively. The patient sued.

The holding established several enduring principles. Procedure-specific consent is required — consent for one procedure doesn't extend to another. On the standard of disclosure, India follows the 'real consent' standard (similar to Sidaway in the UK), requiring disclosure of the nature and procedure, purpose, benefits and risks, alternatives available, and substantial risks of both treatment and foregoing treatment. A doctor cannot extend the procedure beyond consent unless it is a life-threatening emergency where consent cannot be obtained and not extending the procedure would cause grave harm. Even where a related procedure may be reasonable, the doctor must wake the patient, discuss it and seek fresh consent for non-emergencies.

Pre-operative discussion must happen at a time when the patient can comprehend — not in the OR. Written, signed consent is required for any major procedure, in a language the patient understands.

Per Samira Kohli and subsequent cases, the doctor's disclosure obligation covers several distinct items.

The nature of the proposed treatment or procedure — what will physically happen. The purpose — what the procedure aims to achieve. Expected benefits and outcomes — probability of success. Material risks — any risk a reasonable person in the patient's position would consider significant, including common complications above 1-5% frequency, serious risks even if rare (death, paralysis, permanent disability), and risks specific to the patient's condition. Alternatives — other treatments (conservative, surgical, no treatment) with their respective benefits and risks. Consequences of refusing the procedure.

Identity of the surgeon who will perform, and any plan to delegate to another (e.g. resident doctor). Type of anaesthesia and its specific risks. Recovery time and rehabilitation. Cost — estimate, payment terms and what's covered by insurance.

Disclosure must be in language and terms the patient understands — not pure medical jargon. For patients who don't read English or Hindi well, a translator or vernacular consent form is required.

The right to refuse treatment is fundamental — flowing from Article 21 (right to life and personal liberty) and bodily autonomy. The Supreme Court in Common Cause v. Union of India, (2018) 5 SCC 1 (the Living Will / Passive Euthanasia case) affirmed that competent adult patients can refuse any treatment, including life-sustaining treatment; patients can execute Advance Medical Directives (Living Will) for future scenarios when they may be incompetent (subject to detailed procedural conditions); doctors must respect refusal after counselling on consequences; and family cannot override a competent patient's wishes.

Exceptions where treatment can be given without consent: a genuine medical emergency where consent cannot be obtained and not treating would cause grave harm (e.g. unconscious accident victim); a court order in specific situations (mental health, infectious disease); Mental Health Care Act, 2017 procedures for persons with mental illness who lack capacity, subject to strict safeguards; minors, where guardian consent applies; and public health emergencies under the Epidemic Diseases Act, 1897 (rarely invoked).

If you refuse treatment, the doctor must document a discussion of the risks of refusal, your understanding of those risks, and take a signed refusal-of-treatment form. This protects you from later allegations and the doctor from negligence claims.

A signed consent form is not conclusive — courts look at substance over form.

Consent is defective if disclosure was inadequate — invalid even if signed. The burden is on the doctor to prove informed consent was actually obtained, not just the signature on a form. Vague or general forms — the Supreme Court has struck down 'consent to any procedure the doctor deems necessary' clauses. Last-minute consent signed in the operating theatre or just before the procedure (when the patient is anxious or already sedated) is viewed with suspicion.

If you believe consent was improperly obtained and you suffered harm: obtain your medical records immediately (see our medical records access guide), with particular attention to the signed consent form and pre-operative notes. Identify what was and wasn't disclosed — speak to other doctors about what should have been disclosed. Document your consent process: when you were first told about the procedure; what was disclosed about risks; whether alternatives were discussed; whether you had time to consider; whether you were offered a second opinion.

Get a second medical opinion on whether the harm suffered was a foreseeable risk that should have been disclosed. File a complaint: Consumer Commission for compensation; State Medical Council for disciplinary action — see our medical negligence guide. Engage a reputable, specialised medical negligence lawyer.

Special situations modify how consent works.

Emergency where consent cannot be obtained: the doctor can proceed with life-saving treatment, limited to the immediate emergency — no extension to elective procedures. Document the emergency, attempts to contact family and the necessity for immediate action; family must be informed as soon as possible.

Minors (under 18): parent or legal guardian consents. The Hindu Minority and Guardianship Act, 1956 provides the framework. Where parents disagree or are unavailable, the hospital ethics committee or a court order applies. Older minors (16-18) benefit from increasing recognition of the 'mature minor' doctrine — they can consent to certain treatments (contraception, mental health) per Indian Medical Association guidelines. The POCSO Act adds additional procedural protections for child victims.

Unconscious patients: next-of-kin can consent (spouse, parent, adult child, sibling — in that order). In the absence of next-of-kin, two consultant physicians can authorise life-saving treatment. If the patient regains consciousness, fresh consent is needed for further treatment.

Mental incapacity (long-term): the Mental Healthcare Act, 2017 framework applies — the Nominated Representative makes decisions per the Advance Directive, with the Mental Health Review Board overseeing.

Pregnant women: consent of the woman alone is needed for procedures on her body; husband's consent is not required even for a caesarean section. For MTP under the Medical Termination of Pregnancy Act, 1971 (as amended in 2021), special consent procedures apply.

Engage a reputable, specialised medical negligence lawyer for disputes.