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In case of medical emergency, the doctor can operate on the patient without his or her consent and the doctor is protected by the defence of medical necessity of obtaining consent from the patient.
The 3 Judges Constitution Bench of Hon’ble Supreme Court of India in the landmark judgment titled as “Samira Kohli versus Prabha Manchanda, AIR 2008 SC 1385 has held that:
“…The doctor, therefore, is required to communicate all inherent and potential hazards of the proposed treatment, the alternatives to that treatment, if any, and the likely effect if the patient remained untreated. This stringent standard of disclosure was subjected to only two exceptions: (i) where there was a genuine emergency, e.g. the patient was unconscious; and (ii) where the information would be harmful to the patient, e.g. where it might cause psychological damage, or where the patient would become so emotionally distraught as to prevent a rational decision.”
The Hon’ble Madras High Court in the matter titled as “Arun Balakrishnan Iyer versus Soni Hospital, AIR 2003 Madras 389” has held that:
“22. When the doctor opines, in good faith, that emergency steps need to be taken in the interest of the patient, but fails to take such steps, he would be failing in his duty; and such failure would be a wrongful omission. Therefore, unless the patient proves that there was no such emergency or that those acts were not done bona fide, the doctor or surgeon cannot be found fault with.”