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Consent of the Pediatric Patient

Last week, an interesting question was raised in our primary care fellowship ECHO session. "Can you give consultation to a minor without the guardian's consent?" A simple scenario could be when a 15 year old girl comes to your clinic alone, anxious, and asks for a consult. Would you proceed normally? Would you ask her to call her parents and come back? What would you do?

During the session I quickly searched and found an article in Indian Pediatrics, which said that "A child between 12-18 years can give consent only for medical examination but not for any procedure". But then, I went back to see on what legal basis this was said. They seem to have referred Legal Aspects of Medical Care, a book by RK Sharma. I unfortunately do not have this book to figure out which source in law RK Sharma has used.

So I started searching more. In National Medical Journal of India, Karunakaran Mathiharan goes through various clauses of multiple statutes and state that there is a need for clarity, specifically that "The Indian Penal Code is silent about the legal validity of consent given by persons between 12 and 18 years of age"

In a "special article" in Indian Journal of Anaesthesia co-authored by a couple of anaesthetists and a lawyer, they say "A child >12 years can give a valid consent for physical/medical examination (Indian Penal Code, section 89)." (sic). And then they give reference to "Rao NG. Ethics of medical practice. In: Textbook of Forensic Medicine and Toxicology. 2 nd ed. New Delhi: Jaypee Brothers Medical Publishers (P) Ltd.; 2010. p. 23-44. " Sure enough, Rao NG's book does mention this on page 35.

But, unfortunately, Section 89 of IPC doesn't really say so. Section 89 talks about "Act done in good faith for benefit of child or insane person, by or by consent of guardian." (emphasis supplied). In my reading of section 89, it only applies to acts by guardian or by the consent of guardian. A doctor doesn't become the guardian or "other person having lawful charge of that person" at no time in their usual work. So this is just propagation of errors.

There is a "Scientific Letter" in Indian Journal of Pediatrics, which reads only sections 87 to 90 of IPC and boldly claim that a child above 12 years age can give consent for routine elective surgery. The authors have affiliation to departments of forensic medicine or pathology. I agree with their interpretation of the sections, but I have to warn others that this does not ensure that a judge will agree with this interpretation. I could not find from sources I have whether this interpretation has been tested in any court.

The other side of the story is that according to Indian Contract Act, only someone who has attained age of majority is competent to contract. Age of majority is 18 in India. The doctor patient relationship is a contract - implied or explicit. Therefore, a minor cannot really enter into a doctor patient relationship. But in my opinion, this should only matter when there is a question about the legality or the validity of the doctor patient relationship. To just talk to a minor, there needn't be a doctor-patient relationship.

Here is a link to the Indian Penal Code. Read sections 87 to 90 and form an opinion on your own.

If you ask me what I would do when a 13 year old comes to me for a consult, I would say "I would go ahead and talk to them to see what they are here for, but I would not do any procedures or anything that could (even theoretically) cause harm".


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