Informed consent in judicial discourse
Subtitle: India and Canada 1996--2003.
Published: 2005
Language: eng
Number of pages: 274
Description: Our concern in this work is to study judicial decision-making in the realm of informed consent in the doctor-patient relationship in India and Canada. In both these countries, the concept of informed consent or informed choice has developed through the medium of judicial precedents by following the British common law tradition. In Canada, however, the legislature of Ontario enacted the Health Care Consent Act in 1996. In India, on the other hand, there is still no such procedural-specific enactment corresponding to the Ontario Act, and, therefore, cases of conflict between doctors and patients continue to be resolved by applying the principles of English common law. We have attempted to find out how the courts, while interpreting the provisions of law in relation to a given societal context, are influenced by related ideas or considerations that are not visible as such within the literal meaning of those legal provisions. In other words, there are factors that perceptively impinge upon the relevant provisions of law, and the courts invoke them in their decision-making. For identifying and crystallizing such factors, we have employed the methodology of 'discourse analysis'. In functional terms, in the study of judicial decision-making through discourse analysis, we have attempted to locate the 'connotative' meaning (and thereby the connotative factor) which a given concept has, rather than what it refers to explicitly, called the 'denotative' meaning, in a given fact situation. The overriding connotative factors inferred in this study include the values of individual autonomy, cooperative dialogue and understanding, specialized tribunals, differentiating negligence from battery, effective medical treatment, 'best interests' criterion, doctors' professional judgment, and public policy considerations. In order to maintain a comparable character with respect to India, this study is limited to judicial cases decided under the denotative provisions of the Ontario Health Care Consent Act, 1996 relating to 'consent to treatment' in clinical care, excluding the provisions concerning 'admission to care facilities' and 'personal assistance services.' The perspective of comparison with respect to India is confined only to such judicial decisions of Indian courts as are comparable to fact matrices in the Canadian cases.
Notes: Thesis (Ph.D.)--University of Toronto, 2005.

Electronic version licensed for access by U. of T. users.

Source: Dissertation Abstracts International, Volume: 66-06, Section: A, page: 2391.