Consent of both husband and wife is needed in an operation which may result in sterility

In the Allahabad High Court: Dr Neetu Rastogi vs Union of India and 4 Others; WP 4369 of 2017, dated 31/01/2017

Petition: The petitioner Dr Neetu Rastogi has filed this writ petition challenging the order dated 16.01.2017 passed by MCI holding the petitioner to be guilty of professional misconduct, and her name has been directed to be removed from the State Medical Register and Indian Medical Register for a period of one year.

Regarding consent, before performing surgery on the wife of the respondent, during the process of laparoscopy it was found necessary to remove the uterus for which the consent of the husband had been obtained.

Defence

·         Firstly, no consent was taken from the wife and any consent obtained from the husband was contrary to the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. Regulation 7.16 urges that the consent from both wife and husband was necessary.

·         The petitioner hastily without following the due procedure has violated the Regulations and there is a provision of an appeal as per Regulation 8.8 of the 2002 Regulations, hence the entire arguments advanced on behalf of the petitioner do not hold water.

Judgment

MCI Ethics Committee on 30th June, 2016/29-30, November 2016

Further she has obtained consent neither for laparoscopy nor for bilateral oophorectomies, which is a major procedure which rendered the patient Smt. Mehreen sterile for her whole life and this caused marital dispute between patient and her husband. Thus, this is a violation of Section 7.16 and 7.20 and serious medical misconduct under Ethics Regulations.

After considering the expert opinion of Dr Gita Radhakrishnan, UCMS and other available documents, the Ethics Committee is of unanimous opinion that Dr. Neetu Rastogi is guilty of severe professional misconduct. Therefore, the Ethics Committee recommends to remove the name of Dr. Neetu Rastogi from the Indian Medical Registration for a period of 3 years.

Executive Committee at its meeting held on 23.08.2016: Approved with the modification that the period of removal of name from IMR would be 01 year as originally decided by Ethics Committee on earlier two occasions.

No consent having been taken from the wife is concerned; the petitioner did not proceed ethically and after putting the patient under GA has taken a plea that since the patient was under the influence of anesthesia, therefore, the consent could not be taken. We cannot accept this plea in the background of the findings recorded based on the strength of the Expert Committee opinion and the recommendations. Thus, consequently there was no consent of the wife as per Regulation 7.16 of the 2002 Regulations.

Maintainability of the appeal before the MCI: This argument need not detain us inasmuch as the 2002 Regulations are applicable and there is no challenge raised to the vires of Regulation 8.8 thereof so as to entertain any such of the argument on behalf of the petitioner. So long as the Regulations are intact then the same having been framed under Section 20-A read with Section 33(m) of the Medical Council Act, 1956, would prevail and the appeal would be very much maintainable as it is statutorily available and is a substantive right of the aggrieved person. The argument that there is an appeal before the State authorities which would preclude proceedings of appeal before the Medical Council of India cannot be accepted as the said Regulations are not contrary to it but in addition to any other provision.

Final judgment

MCI has taken a lenient view in the matter by only imposing the punishment of removal of the name from the Medical Register for one year even though the Ethics Committee had made recommendations for three years.  We do not find any error in the impugned decision of the Medical Council of India. There is no merit in the writ petition which is hereby dismissed.

Judgment is rightly based on the fact that the consent of wife was not taken, which is required unless it is a life-threatening situation.

This is also specified in Regulation 7.16 of the MCI Code of Ethics Regulations, which states as follows: “Before performing an operation the physician should obtain in writing the consent from the husband or wife, parent or guardian in the case of minor, or the patient himself as the case may be. In an operation which may result in sterility the consent of both husband and wife is needed.”

This was also the position held by the Supreme Court of India in the matter of Samira Kohli vs Dr. Prabha Manchanda & Anr on 16 January, 2008 Appeal (civil) 1949 of 2004, where the Apex Court held,

“Consent given only for a diagnostic procedure, cannot be considered as consent for therapeutic treatment. Consent given for a specific treatment procedure will not be valid for conducting some other treatment procedure. The fact that the unauthorized additional surgery is beneficial to the patient, or that it would save considerable time and expense to the patient, or would relieve the patient from pain and suffering in future, are not grounds of defence in an action in tort for negligence or assault and battery. The only exception to this rule is where the additional procedure though unauthorized, is necessary in order to save the life or preserve the health of the patient and it would be unreasonable to delay such unauthorized procedure until patient regains consciousness and takes a decision (32)(iii).

There can be a common consent for diagnostic and operative procedures where they are contemplated. There can also be a common consent for a particular surgical procedure and an additional or further procedure that may become necessary during the course of surgery (32)(iv).”

The law recognizes the rights of the woman in deciding to continue a pregnancy or not.

As per guidelines from the Health Ministry and UNFPA India on female sterilization issued in 2005, the permission of the husband is not required for tubectomy “The surgeon should verify that the client has signed the informed consent form before beginning the procedure. Although the purpose of signing the form is to document informed consent, the principle focus should be on confirming that the client has made an informed choice of tubal occlusion as a contraceptive method.”

Similarly, as per Section 3(4)(b) of the MTP Act 1971, “No pregnancy shall be terminated except with the consent of the pregnant woman”, which means that the consent of the husband is not required for an abortion; only the consent of the pregnant woman undergoing the termination of pregnancy is required. Form C (form of consent) requires the signature of only the wife under the Medical Termination of Pregnancy Rules, 2003.

The courts have also affirmed these rights of the woman.

“Whether the express consent of the husband is required for unwanted pregnancy to be terminated by a wife?” This issue was examined by the Punjab and Haryana High Court in 2011 in the matter of Dr. Mangla Dogra and Ors vs Anil Kumar Malhotra and Ors. The Court noted that under Section 3(4)(b) of the MTP Act, only the Court recognised the personal right of a woman to continue with the pregnancy or abort the foetus given that it is her who must be to mentally prepared to carry out a pregnancy. “It is the free will of the wife to give birth to a child or not. The husband cannot compel her to conceive and give birth to his child.”

This decision of the Punjab & Haryana High Court was upheld by the Supreme Court in October 2017 in Anil Kumar Malhotra v. Ajay Pasricha, where the Supreme Court held that the woman has the right to decide about the abortion and that consent of the husband is not required as per the Act and dismissed the appeal filed by the husband against the judgement of the High Court.

MCI has powers

IMC Act: 33. The council may, with the previous sanction of the Central Government, make regulations generally to carry out the purposes of this Act…. (m): the standards of professional conduct and etiquette and code of ethics to be observed by medical practitioners; and (m a the modalities for conducting screening tests under sub-section (4A), and under the proviso to sub-section (4B), and for issuing eligibility certificate under sub-section (4B), of section 13.

20.A The Council may prescribe standards of professional conduct and etiquette and a code of ethics for medical practitioners. Regulations made by the Council under sub-section (1) may specify which violations thereof respect, that is to say, professional misconduct, and such provisions shall have effect notwithstanding anything contained in any law for the time being in force.

“8.8 Any person aggrieved by the decision of the State Medical Council on any complaint against a delinquent physician, shall have the right to file an appeal to the MCI within a period of 60 days from the date of receipt of the order passed by the said Medical Council: Provided that the MCI may, if it is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, allow it to be presented within a further period of 60 days.

Dr KK Aggarwal

Padma Shri Awardee

President Elect Confederation of Medical Associations in Asia and Oceania   (CMAAO)

Group Editor-in-Chief IJCP Publications

President Heart Care Foundation of India

Past National President IMA