Law and Medicine Questions 61 to 80 (3 Marks)

Law > Medical Jurisprudence > Law and Medicine Questions 41 to 60

Q61. What is therapeutic privilege and it is exception to which doctrine?

Providing patients with information is fundamental to respecting autonomy. However, there may be circumstances when information may be withheld to prevent serious harm to the patient, a concept referred to as therapeutic privilege. “Therapeutic privilege,” also known as “therapeutic nondisclosure,” is defined as the withholding of relevant health information from the patient if nondisclosure is believed to be in the best interests of the patient.

Nondisclosure directly impairs patients’ autonomy by limiting their ability to make decisions about their own medical care. It also has the potential to undermine the patient’s trust in the physician and to preclude the patient from creating meaning out of illness and making plans and decisions with a realistic understanding of the future. Given these significant potential harms and the moral duty to tell the truth, the justification for nondisclosure must be extremely compelling.

Therapeutic privilege (TP) is a defence that may be available to doctors who fail to disclose to the patient relevant information when seeking informed consent for treatment if they have a reasonable belief that providing that information would likely cause the patient concerned serious physical or mental harm.

Q62. What are the principles of 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.

Q63 Medico legal aspect of road accident, discuss what investigation must include?

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.

Q64. “For any type of cold, rely on Caphoor Vaporub” This advertisement was published in a local newspaper. Some patient got relief. The unsatisfied ones, filed a case for compensation? Is advertisement liable for action. If yes mention the Act and Define it giving appropriate Case Law? Does the Act infringe any Constitutional Right?

Yes, the advertisement is liable for action under the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954.

This advertisement cannot escape the liability due to right to speech under Article 19 of the Constitution. Even the action does not violate the right to choose profession. The appropriate case is Dr. Malpani Infertility Clinic Pvt. Ltd. v. Appropriate Authority

Q65. Discuss Charak Samhita and Sushruta Samhita?

Charak Sanhita:

Ayurveda often referred as “the mother of all healing”, is an ancient Indian system of healing. It is 5000 to 10000 years old. Major books on this system are Charak Sanhita and Sushruta Sanhita. “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. This collection is believed to date back to 400 – 200 BC and is the oldest and most important authorative text on this system of medicine. There is no confirmation whether it was the work of one scholar called Charak or a compilation made by a group of scholars who were followers of Charak. This compilation is in Sanskrit and is in poetic style. Its translation in English was made by P. V. Sharma and has been published in four volumes.

Sushruta Sanhita:

Ayurveda often referred as “the mother of all healing”, is an ancient Indian system of healing. It is 5000 to 10000 years old. Major books on this system are Charak Sanhita and Sushruta Sanhita. “Sushrut Sanhita” is an ancient scholarly work dedicated to surgery. In the whole world this is the oldest compilation on surgery. The book s 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. Modern surgeons get marveled at the achievements of surgeons in ancient India. This book convers various fields like anatomy, toxicology, embryology, and therapeutics. It has chapters on dissection and operative procedures, which are explained with reference to dead animals and plants. This book contains detailed procedures relating to the reconstruction of a fractured nose and broken ear lobe. Hence many claims origin of Plastic Surgery can be traced to this book. It explained 101 type of blunt and 21 types of sharp surgical instruments like scalpels, forceps, specula, etc.

Q66. Mention the circumstances in which patient’s Right to Determination is overruled give case laws

When informed consent of the patient is not obtained before a surgery, the same would amount to offences of assault and battery. However, there are exceptions to this rule.

If, for instance, an accused is in police custody and refuses to undergo medical examination (which would prove his guilt) in say, a rape case, the law allows reasonable force to be used to examine him medically, even if he refuses to consent to such a medical examination.
If a patient is suffering from contagious disease, which is threat to society as a whole, then the law allows reasonable force to be used to treat such patient without his consent.

In Ananth Kumar Naik v. State of A.P., 1977 Cr.LJ 1797 case, the Court held that samples of blood and semen can be obtained in such cases, even if he objects to medical examination. Provisions of the Code of Criminal Procedure allows such a medical examination, and same does not violate Article 20(3) of the Constitution of India.

Q67. Why doctor resist the Consumer Protection Act, Discuss?

Doctors have resisted their inclusion within the scope of the Act for the following

Even before the Consumer Protection Act came into force, a doctor could be sued for negligence under the Law of Torts. Criminal negligence is also covered by the Indian Penal Code. Why then have another law which exposes doctors to further liability?
If doctors are covered by the said Act, they would become socially and legally liable to an unreasonable extent,
The relationship between a doctor and his patient is not of a commercial or trading nature and the provisions of the Act should not be applied in such case.
Litigation is bound to increase if one more forum is open to patents to sue their doctors.
Judges and the Members of the consumer courts are not trained in medical science and are thus not competent to decide such cases.
Acts of medical negligence are better understood and assessed by persons with medical training and not by persons who preside over consumer courts.
Medical Councils at the state and national level can take the disciplinary action against doctors in case of medical negligence and unethical practices. Why then entrust the same job to consumer courts?
In order to justify a particular line of treatment later on in the court, doctors may recommend more investigations to be made and this would entail more delays and make the treatment more expensive.
Medicine being a noble profession, it is not fair that one more sword of litigation under the Act be kept hanging over the doctor. This would lead to more paper work before urgent medical or surgical treatment is given to the patient.
Doctors may have to spend more time in the courtrooms rather than in hospitals, clinics or dispensaries.

Q68. Mention the four components of negligence with appropriate case laws?

Four components of negligence are as follows:

Duty: The first element of determining negligence is whether or not the defendant owed the plaintiff a legal duty of care. There are situations where a legal duty is created in the relationship between the plaintiff and the defendant. A duty of care arises when the law recognizes a relationship between two parties, and due to this relationship, one party has an obligation to exercise the same level of reasonable care that another person in a similar situation would exercise. For example: you do owe a duty to act with reasonable care so that you do not physically injure others.
Breach of Duty: The next element is for the court to determine if the defendant breached this duty by doing or not doing something that an average person would do if they were in a similar circumstance. If the defendant owed a duty and did not fulfill that duty, then he or she is in breach.
Causation: The third element of negligence is causation. Causation requires a plaintiff to show that the defendant’s breach of duty was the cause of the plaintiff’s injury and losses. It relates to whether the defendant’s actions hurt the plaintiff.
Damages: Damages are the final element of negligence. Because the plaintiff suffered injury or loss which a reasonable person in that same situation could expect or foresee, monetary compensation may be the only form of relief for those injuries. Damages include medical care, lost wages, emotional turmoil and more.

Q69 “Have a child of your Choice. Come to “X” clinic. Sex of the foetus is assured”. This advertisement was published in a local newspaper. Many pregnant visited the clinic. Can action be taken under any Act? Mention appropriate case? What Propositions were laid down in the case of Canterbury v. Spence? Which Doctrine the case relate to?

Yes, action can be taken under the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994. Under this Act sex determination is prohibited. Similarly action can be taken under theDrugs and Magic Remedies (Objectionable Advertisements) Act, 1954. This advertisement cannot escape the liability due to right to speech under Article 19 of the Constitution. The appropriate case is Dr. Malpani Infertility Clinic Pvt. Ltd. v. Appropriate Authority

Canterbury v. Spence (1972 468 2d 772) Case:

The Court put forward following propositions:

Every adult of sound mind enjoys the right of self determination, that is, he or she has the right to decide what shall be done to his or her body.
It is the duty of the doctor to obtain, not just consent, from the patient, which patient gives after being informed of alternate lines of action and the risks involved in each of them.
It is the duty of doctor to disclose to his patient all material risks which a reasonable man would consider to be significant, before the patient opts for the line of investigation or treatment.
Therapeutic privilege, however, allows a doctor to withhold certain disclosures, if such disclosures could pose a serious threat of a psychological or physiological nature.
When informed consent of the patient is not obtained before a surgery, the same would amount to offences of assault and battery.

The case relates to Right of Self Determination and Informed Consent.

Q70. Define Magic Remedy under DMR(OA) Act, 1954

According to Section 2(c) of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, magic remedy‟ includes a talisman, mantra, kavacha, and any other charm of any kind which is alleged to possess miraculous powers for or in the diagnosis, cure, mitigation, treatment or prevention of any disease in human beings or animals or for affecting or influencing in any way the structure or any organic function of the body of human beings or animals.

Q71. Give two Examples of Medico Legal Case.

All cases of accidents, burns, assaults, alleged suicide or homicide, poisoning, road traffic accident, rape, drowning, etc shall be registered as medico legal cases (MLC).

Road Accident:

Rape:

Section 375 of IPC defines the term “Rape”.

A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:—

(First) — Against her will.

(Secondly) —Without her consent.

(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

(Fourthly) —With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

(Fifthly) — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

(Sixthly) — With or without her consent, when she is under sixteen years of age.

Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception: Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

Section 53(5) of the CrPC talks about examination of a female victim, which should be done by or under the supervision of a female doctor. Section 53A of the CrPC provides for a detailed medical examination of a person accused of an offence of rape or an attempt to commit rape.

A detailed medical examination is to be carried out by a registered medical practitioner employed in a hospital run by government or local authority without delay. A “reasoned” report be prepared recording the name and address of the accused, the person by whom he was brought, the age of the accused, marks of injury if any, a description of materials collected from the accused for DNA profiling, etc.

Section 164(A) CrPC explains the legal requirements for medical examination of a victim of rape. One of the main elements of this is that the consent of the victim is mandatory and should be part of the report. It provides for a medical examination of the victim of rape by a registered medical practitioner preferably woman within 24 hours of incidence of assault.

Q72. Write Short Note – 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

Q73. Define Donor under TOHO Act 1994

Section 2(f) of the Transplantation of Human Organs and Tissues (TOHO) Act, 1994, defines donor as ““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”.

Q74. What is meant by “privileged communication‟?

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. The concept is most commonly associated with a discussion between a doctor and a patient. It is called so because whatever information that is disclosed in this kind of setting is protected i.e., the courts cannot force the individual to disclose the details of such communication.

Sections 122 to 129 of the Indian Evidence Act, 1872 contain provisions related to privileged communication. These provisions deal with what is called absolute privilege, and apply only to the specific instances covered by the sections. Communication between a doctor and his patient does not enjoy absolute privilege, but can be said to have relative privilege. The communication between a doctor and his patient can be communicated to other only in bona fide manner and abiding the rules of confidentiality and exceptions to it.

If doctor is sued for medical negligence by the patient, then the doctor may disclose information to the Court similarly if a doctor sues patient for non-payment of fees, the doctor can disclose information to the Court. If Court orders to produce medical reports containing confidential information, then the doctor is supposed to submit it to the Court.

Q75. What is meant by a patient’s rights to 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.

Q76. Define “Genetic Counselling Centre‟ according to PCPNDT Act, 1994

According to Section 2(c) of the the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, “Genetic Counselling Centre” means an institute, hospital, nursing home or any place, by whatever name called, which provides for genetic counselling to patients.

Q77. State any three important provisions of Helsinki Declaration with respect to human experimentation of drugs

Medical research in humans depends on important ethical considerations to ensure the protection of the research subjects. The Helsinki Declaration is a statement outlining the ethical principles for medical research involving human subjects that was initially adopted by the 18th Assembly of the World Medical Association in Helsinki, Finland in June 1964.It was developed from 10 principles first stated in 1947 in the Nuremberg Code and further incorporated elements from the Declaration of Geneva (made in 1948), a statement of the ethical duties of physicians.

“The health of my patient will be my first consideration,” and the International Code of Medical Ethics declares that, “A physician shall act in the patient’s best interest when providing medical care.”
It is the duty of the physician to promote and safeguard the health, well-being and rights of patients, including those who are involved in medical research. The physician’s knowledge and conscience are dedicated to the fulfilment of this duty.
he primary purpose of medical research involving human subjects is to understand the causes, development and effects of diseases and improve preventive, diagnostic and therapeutic interventions (methods, procedures and treatments). Even the best proven interventions must be evaluated continually through research for their safety, effectiveness, efficiency, accessibility and quality.
Medical research is subject to ethical standards that promote and ensure respect for all human subjects and protect their health and rights.
While the primary purpose of medical research is to generate new knowledge, this goal can never take precedence over the rights and interests of individual research subjects.

Q78. What is difference between ECG and EEG?

An electrocardiogram (ECG or EKG) is a medical test that detects heart problems by measuring the electrical activity generated by the heart as it contracts. Each beat of the heart is triggered by an electrical impulse generated from special cells in upper right chamber of heart. An electrocardiogram is a painless, non-invasive way to help diagnose many common heart problems in people of all ages. It is used to determine or detect:

Abnormal heart rhythm (arrhythmias)
If blocked or narrowed arteries in your heart (coronary artery disease) are causing chest pain or a heart attack
Whether you have had a previous heart attack
How well certain heart disease treatments, such as a pacemaker, are working

An electroencephalogram (EEG) is a test that detects electrical activity in human brain using small, metal discs (electrodes) attached to his scalp. The brain cells communicate via electrical impulses and are active all the time, even when asleep. This activity shows up as wavy lines on an EEG recording. An EEG is one of the main diagnostic tests for epilepsy. An EEG can also play a role in diagnosing other brain disorders.

Q79. Write Short Note – Brain Stem

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.

Q80. Explain international agencies and their role in disaster management.

With the world becoming a global village, the interdependence of nations has increased. In such a scenario, disaster assistance is acceptable as part of international relations. The overall concept of international disaster assistance is recognised by most nations as being valid, practicable and productive and has been accepted both by the victim and donor countries. The international agencies, UN organisations, Red Cross and Red Crescent, foreign governments and other agencies rush emergency assistance, with search and rescue operations, medical aid and relief supplies. International agencies render assistance at various stages from pre-disaster, response operations to recovery programmes as well as capacity building. The assistance encompasses all forms, including, formulation of plans at national and other levels, standard operating procedures, institution building, monitoring and warning systems, disaster assessment surveys, search and rescue, provision of emergency equipment and supplies, emergency communication facilities, medical teams, medical equipment and supplies, transport facilities, food, water purification plants, logistic facilities, expert guidance, training, shelter material, and financial grants or credits.

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