CONSENT IN CRIMINAL LAW (SECTION 90 OF INDIAN PENAL CODE)
A valid consent must be given voluntarily by an adult who is not of unsound mind.
The consent must be given after reasonable understanding and with any mis-representation
or hiding of the facts. Thus the consent should be an informed consent, preferably
in writing and in presence of witnesses. All components of valid consent are applicable
even for the consent in Criminal Law. According to criminal law, it is an offence
to cause injury to any person even with his consent to suffer death or grievous
hurt. This point has to be kept in mind specially during cases of organ transplantation.
The donor may have given consent under family, social or financial pressures. In
such cases of dead donors, if there is no expressed will, the body is the property
of the heirs and their consent is required
Liability:
A person who commits a wrongful Act,
shall be liable for it. The crimes are public wrongs and aim of criminal proceeding
is to punish the wrong doer. The law imposes liability on him, who fails to perform
duty. The wrongful act may be :
- Intentional or willful wrong - this usually does not apply in medical practice as no doctor has intention to cause harm to his patient.
- Negligent act - the doctor fails to take proper care, precaution and just indifferent to the consequences of his act. Lack of skill proportional to risk undertaken also amounts to negligence.
- Wrong of strict liability created by some special statutes like transplanation of human organ Act, (1984).