A Review of Legal and Jurisprudential stance on Patient: s Consent andPhysician: s Disclaimer and their Consequences

Medical measures performed by the medical staff, are in fact a kind of intervention, subject to legal provisions mentioned in various laws (e.g. Articles 158 and 495 of the Iranian Civil Law). Given the legal andjurisprudential backgraound of these articles, patient’s consent relates only to legitimacy of the “physician’s deed” (i.e.treatment) and not to its consequences (either incidental or intentional), and that is the reason for having the patient to sign a disclaimer (to relieve the physician from legal liabilities). All shia’a Faqihs (jurisprudence experts) believe in the necessity of obtaining patient’s consent, except in cases of emergency, for initiating treatment, while there is disagreement regarding the issue of disclaimer, and a majority of Faqihs recommend obtaining disclaimer from the patient in case treatment-induced harms occur. However, the Islamic Penal Code of 2013, does not mention various kinds of consent (i.e.explicit, implicit, informed) and sanctions of not obtaining it, and considers it, by altering the bases, a vain deed, since it depends on non-guiltiness of the physician. The present article discusses various kinds of consent, disclaimer and sanctions of not obtaining it, load of proof, timing of obtaining consent, from legal as well as jurisprudential viewpoints.