Law > Medical Jurisprudence > Law and Medicine Questions 41 to 60
Q41. Medico-legal aspects of road accident cases.
A traffic or road accident is defined as an accident involving at least one vehicle on a road open to public traffic in which at least one person is injured or killed. The main cause of accidents and crashes are due to human errors. Most of the road users are quite well aware of the general rules and safety measures while using roads but it is only the laxity on part of road users, which cause accidents and crashes.
The Investigation of the accident must be done as soon as possible after it occurs because it helps in observing the conditions as they were at the time of the accident. Investigation officer may take help from an automobile expert and a medical expert. Establishment of facts includes visiting site of accident, examination of mechanical damages. If the driver of the vehicle is survived, his medical examination is mandatory. It should be ascertained if he was under the influence of alcohol or drugs at the time of accident. Medical examination of the victims must be conducted immediately. Medical examination includes noting of injuries suffered, place, angle, extent, and depth of injury. It also includes noting of blood stains on body, tears, grease marks, mud and soil stains, etc.
In case of accidental death, an autopsy (post mortem) is often performed to ascertain the cause of death. An autopsy or post-mortem is a surgical procedure involving a thorough examination of the corpse by dissection to determine the cause and manner of death. The procedure is performed by specialist pathologists.
Q42. Legal issues faced by victims of Bhopal Gas leak tragedy
The Bhopal gas tragedy occurred in 1984 at Bhopal. On Dec. 3, a dangerous chemical reaction occurred in the plant. As a result, water entered into the tank containing methyl isocyanate gas. This resulted in the increase of temperature and pressure inside the tank. This led to the release of methyl isocyanate gas from the tank. The gas spread within the radius of eight kilometres. The gas caused coughing, breathlessness, stomach pain, burning in the respiratory tract. By the morning, thousand of people had died. Many people who survived this disaster, suffered from various diseases for the rest of their lives. People still suffer from cancer, tuberculosis, gynaecological disorders, etc. as the result of the inhalation of the gas.
In the February of 1985, the Indian Government filed a case in the U.S Court for a claim of $3.3 billons against the Union Carbide Corporation. But by 1986 all of these litigations in the U.S District were transferred to India on the grounds of forum non-convenient. It means that the case should be transferred to a more convenient forum so that the trial proceeds smoothly. Meanwhile in March 1985, the Bhopal Gas Leak Disaster (Processing of Claims) Act was passed which empowered the Central Government to become the sole representative of all the victims in all kinds of litigations so that interests of the victims of the disaster are fully protected and the claims for compensation are pursued speedily. In the year 1987, cases were filed in the Bhopal District Court which ordered the Union Carbide Corporation to pay 350 crores as interim compensation. Ultimately company appealed in the Supreme Court and company agreed to pay compensation of 470 million dollars.
Apart from these civil proceedings, criminal proceedings were also initiated before the Chief Judicial Magistrate in Bhopal. The proceedings were initiated under Section 304 A, and Sections 336, 337, and 338 read with Section 35 of the Indian Penal Code. Section 304 A deals with causing death by negligence. Sections 336, 337 and Section 338 deal with the offences of endangering life and personal safety of others. This is read along with Section 35 which deals with the aspect of common intention.
Q43. Role and functions of Indian medical council
Role and functions of Indian medical council are as follows:
- To lay down policies for maintaining a high quality and high standards in medical education and make necessary regulations in this behalf;
- To lay down policies for regulating medical institutions, medical researches and medical professionals and make necessary regulations in this behalf;
- To assess the requirements in healthcare, including human resources for health and healthcare infrastructure and develop a road map for meeting such requirements;
- To promote, co-ordinate and frame guidelines and lay down policies by making necessary regulations for the proper functioning of the Commission, the Autonomous Boards and the State Medical Councils;
- To ensure co-ordination among the Autonomous Boards;
- To take such measures, as may be necessary, to ensure compliance by the State Medical Councils of the guidelines framed and regulations made under this Act for their effective functioning under this Act;
- To exercise appellate jurisdiction with respect to the decisions of the Autonomous Boards;
- To lay down policies and codes to ensure observance of professional ethics in medical profession and to promote ethical conduct during the provision of care by medical practitioners;
- To frame guidelines for determination of fees and all other charges in respect of fifty per cent. of seats in private medical institutions and deemed to be universities which are governed under the provisions of this Act;
- To exercise such other powers and perform such other functions as may be prescribed.
Q44. Euthanasia
Euthanasia is described as the deliberate and intentional killing of a person for the benefit of that person in order to relieve him from pain and suffering. The term ‘Euthanasia’ is derived from the Greek words which literally means “good death” (Eu= Good; Thanatos=Death). Euthanasia is defined as the act of bringing the death of a person (patient) for the purpose of relieving the patient’s intolerable and incurable suffering. Typically, the physician’s motive is merciful and intended to end suffering. In voluntary euthanasia, a consent from the patient is taken. In non-voluntary euthanasia, the consent of patient is unavailable due to some reason.
In active euthanasia, the death of patient is brought directly by giving him a lethal dose of poisonous drug. In passive euthanasia, the life supporting system to the patient is discontinued and ultimately patient dies. In Aruna Shanbaug v. Union of India, the Supreme Court opposed active euthanasia but has given nod to passive euthanasia. The apex court also observed that right to life does not include right to die.
Q45. Right to health under the constitution of India
According to Article 21 of the Constitution of India “no person shall be deprived of his/her life or personal liberty except according to the procedure established by law. Right to life under Article 21 of the Constitution has been generously deciphered to mean something more than only human presence and incorporates the right to live with nobility and conventionality. The use of word ‘Life’ in Article 21 of the Constitution has a lot more extensive importance which includes human nobility, the right to livelihood, right to health, right to pollution free air, and so forth.
In the State of Punjab v. M.S. Chawla, it has been held that-the right to life ensured under Article 21 incorporates inside its ambit the right to health and clinical consideration.
The Supreme Court in Vincent v. Union of India, held that a healthy body is the very establishment of all human activities. Article 47, a Directive Principle of State Policy in such manner lays pressure on the improvement of general health and denial of medications harmful to health as one of the essential obligations of the state.
Right to health should be considered with the right to medical care and the right to clean and pollution free environment.
Q46. Doctor patient confidentiality
If patient want to get a good treatment from a doctor he is expected to disclose all the details of his illness. Such information may be private and of personal nature and patient may like to disclose it to doctor only and not to others even not to relatives or friends. Now there is obligation on doctor not to disclose such information without obtaining prior permission from the patient. This expectation in medical field is called confidentiality in medical practice. If doctor fails to comply, the patient may ask for compensation on plea of breach of confidentiality. If assurance of confidentiality was not available, a patient hesitates to confide in his doctor, who in turn would not be able to give the best diagnosis or treatment.
A privileged communication is a conversation between two parties that is legally classified as a private discussion. This discussion is legally protected, and so cannot be disclosed to third parties. Sections 122 to 129 of the Indian Evidence Act, 1872 contain provisions related to privileged communication.
Sometimes public interest overrides the concept of confidentiality. If a patient is suffering from contagious disease and it is harmful to society as a whole. In such case the doctor has a duty to inform about the disease to health authorities in public interest.
In Mr. X v. Hospital Z, AIR 1999 SC 495 case, the apex court when commenting on infectious diseases held that in special circumstances, public interest would override the duty of confidentiality, as where there is an immediate or future health risk to the community or to a specific person.
Q47. Role and functions of ethics committee in clinical trials
According to the Drugs and Cosmetics rules, 1945. an Ethics Committee is a committee comprising of medical, scientific, non-medical and non-scientific members, whose responsibility is to ensure the protection of the rights, safety and well-being of human subjects involved in a clinical trial and it shall be responsible for reviewing and approving the protocol, the suitability of the investigators, facilities, methods and adequacy of information to be used for obtaining and documenting informed consent of the study subjects and adequacy of confidentiality safeguards. In the case of any serious adverse event occurring to the clinical trial subjects during the clinical trial, the Ethics Committee shall analyse and forward its opinion as per procedure specified under APPENDIX XII of Schedule Y.
If the Ethics Committee fails to comply with any of the conditions of registration, the Licensing Authority may, after giving an opportunity to show cause why such an order should not be passed, by an order in writing stating the reasons therefor, suspend or cancel the registration of the Ethics Committee for such period as considered necessary.
Q48. Female foeticide
Female foeticide is the procedure of abortion to terminate a female foetus from the womb of the mother before taking birth after the sex recognition tests like an ultrasound scan. The census figures not only indicate the imbalance in the sex ratio, but it also indicates, the casual approach of society to all women. It is the cruellest on the part of society not to allow a female child to be born.
Major Reasons for Female Foeticide:
- Patrilineal line of succession
- Dowry system, violence against women
- Low status of women
- Preference for son due to financial security
- Small family norm
- Religious and social taboos
- Misuse of diagnostic techniques.
Impact of Female Foeticide:
- The sex ratio denotes the ratio of females to males in a specific region. As per the decennial Indian census, the Sex Ratio of India is 107.48. It means 107.48 males per 100 females in 2019.
- It increases number of crimes against women
Q49. Object of transplantation of human organs act, 1994
The objects of the Transplantation of Human Organs and Tissues (TOHO) Act, 1994 are as follows:
- To provide for the regulation of removal, storage, and transplantation of human organs for therapeutic purposes and for the prevention of commercial dealings in human organs.
- To illegalize the buying and selling of human organs and makes cash-for-kidney transactions a criminal offence.
- To establish an institutional structure to authorize and regulate human organ transplants and to register and regulate, through regular checks, hospitals that are permitted to perform transplants.
Q50. Brain stem death
Brain stem is the “stalk of the brain” which connects the spinal cord to various parts of the brain. It sends messages to the rest of your body to regulate balance, breathing, heart rate and more. It is very vital part of the body. Section 2(d) of the Transplantation of Human Organs and Tissues Act, 1994, defines brainstem death as ““brain-stem death” means the stage at which all functions of the brain-stem have permanently and irreversibly ceased and is so certified under sub-section (6) of section 3 of the Act.”
Identification of brain stem death carries important prognosis for the survival of the patient, because the heart may keep on beating for few days after brain stem death, or even for weeks if the patient is in the Intensive Care Unit of hospital with all forms of medical and cardiac support. The person cannot perform fundamental work of an organism. The person is practically dead but may have heart beat and such person may still able to breathe. Such brain stem death must be certified by a Board of Medical Expert referred to in Section 3(6) of the Act. The Board should contain
- the registered medical practitioner in charge of the hospital in which brain-stem death has occurred;
- an independent registered medical practitioner, being a specialist, to be nominated by the registered medical practitioner specified in clause (i), from the panel of names approved by the Appropriate Authority;
- a neurologist or a neurosurgeon to be nominated by the registered medical practitioner specified in clause (i), from the panel of names approved by the Appropriate Authority: Provided that where a neurologist or a neurosurgeon is not available, the registered medical practitioner may nominate an independent registered medical practitioner, being a surgeon or a physician and an anaesthetist or intensivist subject to the condition that they are not members of the transplantation team for the concerned recipient and to such conditions as may be prescribed;
- the registered medical practitioner treating the person whose brain-stem death has occurred.
Q51. Right of self determination
Article 21 of the Constitution is the basis of right of self-determination of patient. An adult patient who suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment. The protection of patient self-determination entails the following elements: (a) recognition of, and respect for, the patient’s right to decide what treatment to have or not to have; (b) provision of an enabling climate for the patient to make self-determined choices (ensuring effective communication and building trust); and (c) having regard for the context (social, cultural, emotional, etc.) in which the patient has to make his or her decision. The right of self-determination of the patient ought to be respected.
Two conditions are ordinarily required before applying the right of self determination. The individual has to have the relevant internal capacities for self-government and has to be free from external constraints. In a medical context, a decision is ordinarily regarded as autonomous where the individual has the capacity to make the relevant decision, has sufficient information to make the decision and does so voluntarily.
Where patients lack the capacity to make a decision, it follows necessarily that decisions must be made on their behalf. Very young children ordinarily have the majority of decisions made by parents and guardians. Where adults lack capacity, health care decisions are ordinarily made by the health professional in overall charge of their care, although adults can appoint someone to make decisions on their behalf.
Q52. Disaster management plan
An ideal disaster management plan involves the following:
- Initial alert: All persons in danger must be alerted in a manner that is simple and concise and yet audible and loud enough to reach every nook and corner of that place. Bells, sirens, public address system can be used for the same. Necessary dos and don’ts to be conveyed to affected people.
- Quick intimation to agencies providing assistance: Fire brigades, hospitals, medical, paramedical staff should be intimated at the earliest and ask them to be ready for any eventuality and load.
- Code alert: Different coloured flags are used on sea shore to show danger level of cyclones.
- Rehearsal and mock drill: Rehearsal and mock drill should be performed when situation is normal this helps working effectively during actual crisis.
- Common nucleus: There should be central control room to coordinate the activities and administration during crisis.
- Accurate Information: It should be made available on timely basis through media.
Q53. Medical record
The term medical records refer to the systematic documentation of a patient’s medical history, treatment and care maintained by a doctor or a hospital or similar other institution. Nowadays these reports are maintained in electronic form and called Electronic Medical Record (EMR). These records serve two purposes.
- It documents entire medical history of patients including physical examination and the investigations done, diagnosis and treatment given to the patient.
- This information is important when the patient visits the doctor again for same disease or for routine check-up.
Utmost confidence is to be observed by the medical practitioner in maintaining such records, as they often contain sensitive medical information of the patient. Medical professionals are bound to maintain such records. If a physician does not maintain record of his individual patients for three years it is professional misconduct and punishable. Only Court can ask for medical reports from the doctor during a trial involving medical reference to the matter.
Q54. Medical certificate
A Medical Certificate is a written statement from a doctor or a qualified health professional who attests to the result of the medical examination of a patient. This written statement is required for many purposes but is most widely used as for sick leave, where it states that an employee is unfit for work due to health concerns or for fitness that, the person to whom certificate is given is fit. Medical certificates might also be required to access certain health benefits that are provided by an employer. Medical certificates are also used by students, excusing them from attending school for reasons of illness. Medical Certificates are very personal documents; hence it must respect a patient’s right to confidentiality. This means that the patients’ consent is required for sharing sensitive medical information.
Issuing medical certificates is integral responsibility of medical practitioner. He has right to issue medical certificates required
- by employers, schools, colleges, etc.
- to obtain passport or driving license
- under Factories Act, Vaccination Act, etc.
- to fulfil statutory requirements.
Regulation 7.7 of the Code of Ethics Regulation, 2002, states that registered medical practitioners are in certain cases bound by law to give, or may from time to time be called upon or requested to give certificates, notification, reports and other documents of similar character signed by them in their professional capacity for subsequent use in the courts or for administrative purposes etc.
Medical practitioner is supposed to maintain record of the medical certificates issued by him, giving full details of the certificate. It is found that some medical practitioners issue false medical certificate.
Q55. Who can give consent for the donation of a human organ?
Organ donation is basically giving or gifting organ in order to help someone who needs organ transplant to be operated, it could be near relative or any other person.
According to Section 2(f), “donor” means any person, not less than eighteen years of age, who voluntarily authorises the removal of any of his human organs for therapeutic purposes under sub-section (1) or sub-section (2) of section 3 of the Act”. Under the virtue of Section 3 of the Act, Donor would fall under the following two categories;
- Living Donor: any person not less than 18 years of age, who voluntarily authorizes the removal of any of his organ and/or tissue, during his or her lifetime solely for therapeutic purposes.
- Deceased Donor: Anyone, regardless of age, race or gender can become a donor of any organ and/or tissue after his/her death (Brainstem/Cardiac). A person who is in lawful possession of the dead body or the free consent of ‘near relative is required for the said purpose. If the deceased donor is under the age of 18 years, then the consent required from one of the parents or any near relative authorized by the parents is necessary.
Under section 2(i) of the Act, ‘near-relative’ means spouse, children, grandchildren, brother-sister, parents and grandparents of the patient can donate the organ after taking prior permission from the doctor in-charge of the transplant center to donate his organ. A non-related donor needs prior permission of Authorization Committee established by the state under the Act in order to donate his organs.
Q56. Indian medical association V/s. V. P. Shantha
Indian Medical Association v. V.P. Shantha AIR 1996 SC 550:
Issues:
- Whether a medical practitioner, hospital, or nursing home can be regarded as rendering service under Section 2(1)(o) of the Consumer Protection Act, 1986?
- Under what circumstances can the service render at a hospital/nursing be regarded as service under Section 2(1)(o) of the Consumer Protection Act, 1986?
The ratio decendi of the case is medical negligence. Medical negligence is basically the misconduct by medical practitioner by not providing enough care resulting in breach of their duties and harming the patients which are consumers. They also argued whether this was the case of negligence in Torts or IPC, later on it was decided that any negligence in medical field would be determined under CPA, 1986. The Supreme court also stated that a medical practitioner, nursing home or a hospital can be regarded as rendering service under CPA, 1986.
As a result of this judgement, medical profession has been brought under the Section 2(1) (0) of CPA , 1986 and also , it has included the following categories of doctors/hospitals under this Section:
- All medical / dental practitioners doing independent medical / dental practice unless rendering only free service.
- All hospitals having free as well as paying patients and all the paying free category patients receiving treatment in such hospitals.
- Medical / Dental practitioners and hospitals paid by an insurance firm for the treatment of a client or an employment for that of an employee.
Q57. Ayurveda
Ayurveda often referred as “the mother of all healing”, is an ancient Indian system of healing. It is 5000 to 10000 years old. Reference of this system can be seen in the Rigveda and the Atharva Veda. “Ayur” means life and veda means “knowledge”, thus “Ayurveda” means knowledge of life. The medicines are mainly plant based.
Diagnosis in Ayurveda takes in the form of general physical examination, involving examination of the pulse, tongue, eyes, vein sans faeces. Regulation of diet as a therapy plays an important role in Ayurvedic treatment.
Major books on this system are Charak Sanhita and Sushruta Sanhita. This system has holistic approach of treating the patient. “Charak Sanhita” is a massive compilation containing several chapters on therapeutic and internal medicine. It contains reference to more than six hundred types of medications of plant, animal, and mineral origin. “Sushrut Sanhita” is an ancient scholarly work dedicated to surgery. In the whole world this is the oldest compilation on surgery. The book is written in the sixth century B.C. by an ancient Ayurvedic scholar “Sushruta”. The book contains descriptions of surgical procedures which are relevant even today.
Doctrine of Ayurveda:
Body is made up of Pancha Mahabhootas: Prithvi (earth), Jal (water), Agni (fire), Vayu (air) and Akash (ether). There are three doshas in the body: Tridosha: The Vata (ether + air), Pitta (fire) and Kapha (earth + water) and Trigunas: the Satva, Rajas and Tamas, which are the psychological properties
Any imbalance in above factors due to internal and external factors causes disease and restoring equilibrium through various techniques, procedures, regimes, diet and medicine constitute treatment. Over the years, Kshar Sutra and Panchakarma therapies of Ayurveda have become very popular among the public.
Q58. Right of registered medical practitioners
Medical practitioner has following rights:
- Right to choose his patients
- Right to use his titles and qualifications
- Right to receive and recover fees and expenses
- Right to get appointed in Hospitals and Institution
- Right practice medicine and dispense medicine
- Right to issue medical certificates
- Right to Give Evidence
- Right to remove organs and tissues from a dead body
- Right to perform medical termination of pregnancy
- Right to disclose confidential information in exceptional circumstances
- Right to disclose and report injuries
- Right to access information
- Right not to be unfairly discriminated
- Right to have political views
- Right to refuse to conduct an unlawful bodily search or seizure
Q59. Authority under the transplantation of human organs act
The Central Government is empowered by the Act to appoint, by notification one or more officers as the Appropriate Authority for the purposes of the Act, for each of Union Territories. Likewise, every State must by notification, appoint one or more persons as the Appropriate Authority of that State.
Functions of Appropriate Authority:
Section 13 of the Act gives functions of the Appropriate Authority under the TOHO Act, 1994.
- to grant registration under sub-section (1) of section 15 or renew registration under sub-section (3) of that section;
- to suspend or cancel registration under sub-section (2) of section 16;
- to enforce such standards, as may be prescribed,— (A) for hospitals engaged in the removal, storage or transplantation of any human organ: (B) for Tissue Banks engaged in recovery, screening, testing, processing, storage and distribution of tissues;
- to investigate any complaint of breach of any of the provisions of this Act or any of the rules made thereunder and take appropriate action;
- to inspect Tissue Banks periodically;
- to inspect hospitals periodically for examination of the quality of transplantation and the follow-up medical care to persons who have undergone transplantation and persons from whom organs are removed; and
- to undertake such other measures as may be prescribed.
Q60. Mens rea in medical negligence
A tort is a residuary civil wrong. Duties in tort are fixed by the law and such duties are owed in rem or to the people at large generally. Such wrongs can be remedied by filing for unliquidated damages. Negligence is a tort. A negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do. Medical Negligence basically is the misconduct by a medical practitioner or doctor by not providing enough care resulting in breach of their duties and harming the patients which are their consumers. Medical negligence has caused many deaths as well as adverse results to the patient’s health.
The concept of mens rea is not applicable in torts. If doctor’s rash or negligent act endangers human life or personal safety of his patient, he can be tried for criminal liability. In Jacob Mathew case the Court held that in criminal law medical professionals are placed on a pedestal different from ordinary mortals. It was further held that to prosecute the medical professionals for negligence under criminal law, something more than mere negligence had to be proved. Medical professionals deal with patients and they are expected to make the best decisions in the circumstances of the case. Sometimes, the decision may not be correct, and that would not mean that the medical professional is guilty of criminal negligence. Such a medical professional may be liable to pay damages but unless negligence of a high order is shown the medical professionals should not be dragged into criminal proceedings.