CONTENTS PAGE
CHAPTEH
v
FOREWORD
VB
PREFACE
xiii
TABLE OF CASES
I. II.
A
SURVEY OF THE LAW AND LAW COURTS
STATUTES RELATING TO THE MEDICAL AND ALLIED PROFESSIONS
1
45
Ill.
MEDICAL ETHICS,
IV.
RIGHTS AND DUTIES OF MEDICAL PRACTITIONERS
142
j\fEDICAL NEGLIGENCE AND CIVIl. LIABILITY
170
CLASSES AND INSTANCES OF ~ViEDICAL NEGLIGENCE
213
V. VI.
~Tr'TTT''T''"T·r.o AND DISCIPLINARY COUNCILS
66
VII. CONSE~\T IN RELATION TO IVrEDICAL EXAMINATION,
294
TREAT1vlENT AND OPERATIONS VIII. IX. X. XI.
xli.'
CRIMES AND THE PRACTITIONER
.'3l8
MEDICAL CERTIFICATES AND REPORTS
332
WILLS, LEGACIES AND GIFTS
36·1
A
376
PRACTITIONER IN THE \VITNESS Box
ARTIFICIAL INSEMINATION, STERILISATION AND
404
EUTHANASIA XIII.
MENTAL DEFECTS AND DISORDERS
419
XIV.
LAW RELATING TO PHARMACY AND DRUGS
439
XV.
IviATRHvIOKIAL IvfATTERS, SEXUAL OFFEKCES AND
478
INTERSEXUALITY APPENDIX
I-
APPENDIX
II -
INDEX
GLOSSARY OF
LEGAL TERMS
SELECT BIBLIOGRAPHY
501
,50:3
507
TABLE OF CASES A PAGE
Adr;ocate, H. M. v. Callander (1959) The Ivledical Annual, 286. Akerele v. The King (1943) A.C. AIR (1943) P.C. 72 Allison v. General Council oj Medical Education Ilild (1894) 1 Q.B. 750; 70 L.T. 471. .); (]9l3]\ :P.1ad. L.J. :2 Cr. L.J. 1:35 Amhi v. State of Kenda (CL) 356.
497 319 186 426, 428 430
ArneUa Flounders v. Dr. Clement Pereira, Bombay High Comt, O.O.C.l, Suit No, 808 of 194,'3 decided !\larch 5th 1947 bv Tendolk:tr T. (unreported). On appeal, High Court, 06c.J, Appeid No. 27, 1947, Judgment of the court dated September 29th, 1947 (unreportedL
An Austrian Case Lancet, 15th (19:36) A.L.J, fl:38. Antonio Dias v. Caldera AIR (1936) P,C. AntonI}, In 1'e AIH (1960) ;\IIadras :308: (1960) Cr. L.J. 927. .'32. Amnia Beu;a (187:3) 19 'V.R.
173 177 203 81 :399
491 321
B
Bai Diva Ka/uii v. Silver Cattail 3Iill., Ltd. AIH fHJ5fl) Bom, (l956) :t Lah. 740. Ball v. Hou:ard (l9:.?A) Lancet, Ballarsidas Bhagwalldas v. Bai Ghallilropati Bai Jl.ldgmcllt of 1945 of September 6th, in T. 0:. I.T. Suit High Court J.)' Cicil Surgeon, Ballarsidas Kal1kall v. Alaio)' Shymn (19:32) Bombay Medical Journal, 18'/. Banavarlal v. State :? Cr. L.J. Haj. Barnes v. Cral!tree (195.5) The Times, Novemher BaStca.Htr(l() B(1jirao ,'. , Aln il849) Nag. 06: I.LH. (i\H8) 711. v. Amircllll/ld A.C. 161; Aln P.c. 200. Baylill v. Blagg B.M.1. Mawh 20th, 748. Childrel/'s Hospital Lal/cet, ivbrch 20th, 619. Bavlill v. Baxter \" Baxter (1947) 2 All E.H. 886. ILL. Beattu v. Cullillgu;orth (1896) B.M.]. No\"cmhc[' 21st, 154G. v. State of Rajasthan, Am (1957) S.c. (1957) S.C.}.
..
:193
2:?O ,:368
2:38 319 J80
4:32, 43:3 :366 184, 250
lOJ 474, ,175
197 ;399
Bhalldari v. Advocates' Committee (1856) :3 All E.R. 74:?; 100 Sol. 8.30. milage v. SOlithee (1852) Hare's L\ 5:34; 21 Cll. 472; 16 Jm. 188. Blackie v. Clark (1852) xv Beavan's Heports, 505. Bluth v. Birmillg/wm. 'Vatertcorks 156 E.R. I J E:,. 781.
1:36 .;'1""":."1
'J i ',)
374 ]79
TABLE OF CASES
PAGE
Bolam v. Priem Hospital Management Comm:ittee (1957) :2 All E.R. 118; 101 SoL Jo. 357.
Bowaler .Y. Rowley Regis Corporation (1944) K.B. 476; (1944) 1 All E.R. 465. Bravery v. Bravery (1954) 3 All E.n. 59; 98 Sol. Jo. 573.... Brown v. Staffordshire County Council (1955) B.M.J. March 2nd Buck v. Bell 274 U.S. 200. Byrne v. Boadle (1863) 159 E.n. 299; (1863) 2 H. & C. 722.
L51, 157
173, 175
179, 185
196, 240
267
296
407
222
409
204
C C. v. C. (1960) The Times, July 12.
Cackett v. Cackett (1950) 1 All E.n. 677.
CAN;
Cahoon v. Edmunton Hospital Board (1957) 23 W.W.B.. 131 British and Empire Digest (1961) VoL 34, item 86 xxxvii.
Caldeira v. Grau (1936) 1 All E.R. 540; 80 Sol. Jo. 243.
Cassidy v. l'.Hnislql of Health (1951) 2 K.B. 34.3 (1951) 1 All E.R. 574.
477
475
219
251
178, 19:3
194, 199
200, 205
210, 282
283
Challand v. Bell 18 D.L.H. (2d) 150, British and Empire Digest 1961,
174
Vol. 44.
24:3 Chapman v. Racks (1960) The Times, December 22nd.
Christine Baulili v. Bertha Blagg alld Nottingham Hospital (1954)
B.M.]. 20th March, 749; (1954) Lancet, March 20th, 619.
184, 250
498
Chorlton v. Lings (1868) L.R. 4 c.P. 374
Chute Farms Ltd. v. Curtis (1961) The Times, October 10th, jI,[edicine,
Sciellce and the Law, April 1962.
179, 254
Clark v. Clark (1939) 2 All E.R. (1939) K.B. 228.
488
Clarke v. Adams (1950) 94 Sol. Jo. 599.
239
Clarke v. Clarke (1943) 2 All KR. 540.
477
Clarke v. Vv'orboys (1952) The Times, March 18th.
221
Col/illS v. Hertfordshire C.C. (19·i7) K.B. 598; (1947) 1 All E.n. 633;
176 L.T. 45{).
.200, 2:3:3
271
Connolly v. Ruhra (1936) B.M.f. December 5th, 1174.
290
Cooper v. NeGille (1961) The Times, l\'iarch lOth, (P.c.); (1957) B.l1;1.].
June 14th, 1425 (Court of Nairobi). 279
Corder v. Banks (1960) B.M.]. April .30th, V370. 217 259
Corral Indira v. Joseph AIR (1953) l\fad. 858; (1953) 1 Mad. L.J. 591. 398
Cowen v. Cowen (1945) 2 All E.H. 197. 475
Cox v. Carshalton Group Hospital Mallagement Committee (1955) The Times, March 29th. ." 180, 223
22{), 227
270
Crawford v. Clwring Cross Hospital (195.3) B.M.]. December 12th, (1953) The Times, March 24th. 268
Crioon v. Barret Group Hospital Committee (1958) The Times, Novem ber 19th. .. . . .. . .. 181
TABLE OF CASES A PAGE
Adeocate, H. M. v. Callander (19.59) The Medical Annual, 286. Akerele v. The King (1943) A.C. AIR (1943) P.e. 72 Allison v. Genem! COUllcil of Medical Education and Regulations'(l894) 1 Q.B. 750; 70 L.T. 47 L 2 Cr. L.J. 135 (Ked; (1961) Mad. L.J. Ambi v. State of Kerala (Cr.) 3,56.
497 319
] 36 426. 428
430
Amelia Flounders v. Dr. Clement Pereira, Bombay Court, O.O.e.}. Suit No. 808 of 1943 decided on March 5th by Tendolkar J. (unreported). On appeal, Bombay High Court, O.o.C.]. Appeal No. 27, 1947, Judgment of the appeal court dated Se!'temlJer 29th, 1947 (unreported).
173
177 203 An Austriall Co~~e (1951) Lancet, 15th April. Antonio Di(ls v. Caldera AIR (1936) P.e. 154; (19,36) A.L,J. 6;38. Antony, III 1'e AIR (1960) ~radras ;308; (1960) Cr. L.J. 927. Anmja Bewa (1873) 19 '.V.R. (CL) ;32.
81 399 491 324
B
Bal Diva Kaluji v. Silver Cotton Mills Ltd. AIR 130m. t Lab. L.T, 740, Ball v. Howmd Lancet, February 2nd, 253. Bmzarsidas Bhagwalldas v. Bai Chrmdrapati Bai Uureported dated September 6th, 1 in T. & I,J, Suit No. J Bombay High Court J.) BaTlaTsidas Kankan v, MaioI' Shyw/i Belwrilal, Civil Surgeon, ( Bombay ,Meclicill Journal, 187. B(]1!()varlal v, State 1) 2 Cr. L.J. Raj. Barnes v. Crabtree (lD55) The Times, November 1st/2nd. 13asu;a.lltroo Haiirao v. Emperor, AIH tl949) l\'ag. 66; LL.B, { Nag, 711. Battal' Singh v. Amil'clwlld (19,18) /l,e. 161; AIR (1948) P.C. 200. Bal/lill v. Blagg (19.54) H.M./. t--1arch 20th, 749.
,393 220
;368 238 :319
lRO 432, 433 366 184, 250 201
474, 475 2.97
399 136
374 179
.J
:\:1\
TABLE OF CASES PAGE
Bolam v. Friem Hospital Mallagement Committee (l957) '2 All E.It 118; 101 SoL Jo . .357.
Howater v. Rowley Regis Corporation (1944) K.B. 476; (1944) 1 All E.R. 465. Bravery v. Bravery (1954) .3 All E.R. 59; 98 SoL Jo. 57.'3 .... Bruwn v. Staffordshire County Council (1955) B.M.J. l\larch 2nd Buck v. Bell 274 U.S. 200 .. Byrne v. BUQdle (186:3) 159 E.R. 299; (186.3) 2 H. & C. 722.
151, 173, 179, 196, 267
157 17.5 185 240
296 407 222 409 204
c C. v. C. (1960) The Times, July 12. Cackett v. Cacket! (1:950) 1 All E.R. 677. Cahoon v. Edmul1ton Hospital Board (1957) 23 W.W.R. 131- CAN; British and Empire Digest (l961) Vol. .34, item 86 xxxvii. Caldeira v. Gra!! (l936) 1 All E.R. 540; 80 Sol. Jo. 243. Cassidy v. Ministry of Health (1951) 2 K.B. 3"43 (1951) 1 All E.R. 574.
Challal1d v. Bell 18 D.L.R. (2d) ].50, British and Empire Digest 1961, Vol. .34, 44. Chapman v. Racks (l960) The Times, December 22nd. Christine Bay/ill v. Hertha Blagg and J\'ottillghmn Hospital (1954) B.M.]. 20th March, 749; (1954) Lancet, March 20th, 619. Charlton v. Lings (1868) L.R. 4 c.P. 37,1 Chute Farms Ltd. v. Curtis (1961) The Times, October 10th, Medicine, Science and the Law, April 1962. Clark v. Clark (1939) 2 All E.R. 59; (1939) K.B. 228. Clarke v. Adams (l950) ~)4 Sol. Jo. 599. Clarke v. Clarke (194.3) 2 All E.R. 540. Clarke v. Worboys (1952) The Times, l\hrch 18th. Collins v. Hertfordshire C.C. (1947) K.B. 598; (1947) All E.R. 633; 176 L.T. 456. Connolly v. Ruln'a (19;36) B.M.]. December 5th, 1174. Cooper v. NeuiUe (1961) The Time), ivfarch 10th, (P.c.); (1957) B.M.]. June 14th, 1425 (Court of Nairobi). " Corder v. Banks (1960) B.M.J. April .30th, 1.370. Corral Indira v. Joseph AIR (1953) 'Mad. 858; (l9.53) 1 Mad. L.J. .59L Cowen v. Cowen (1945) 2 All E,H, 197. Cox v. Carsflalton Group Hospital Management Committee (1955) The Times, March 29th. ". ,., Crawford v, Cllllrillg Cross Hospital (195:3) B.MJ. December 12th, (1953) The Times, ~Iarch 24th. """'" Criuoll v. Barret Group Hospital Committee (1958) The Times Novem ber 19th. ,. , " " ' ,
477 475 219 251 178, 194, 200, 210, 283
19:3 199 205 282
174 243 184, 250 498
179, 254 488 239 477 221 200, 2:33 271 290 279 217, 259 398 475 180, 22:} 226, 227 270 237, 268 181
xv
TABLE OF CASES D PAGE
D. v. A. (1845) 1 Robertson's Ecclesiastical Reports, 279. Dacca Medical Col/ege Case AlIt Calcutta, 456, ;34 Cr. L.J. 603. Davies v. London Cou.nty Council (1914) 30 T.L.R. 275.. De Frevate v. Dill (1927) 96 L.}.K.B. 1056. Dent v. Bennet (1839) 41 KR. 105. Derilles v. Boots Pure Drugs Co. Ltd. Lancet, July 14th, 91. Director of Rationing and Distribution v. The CorporatioJ! of Calcu.tta (1961) I S.C.]. 406; AIR (l960) S.c. 1:355. Dr. Drummond's Case (1949) 13.:\[.1. June 18th, 1100. D'Souza, P. N. 21 Cr. L.J. 367; AIR (1920) Allahabad, 32. Durham v. United States, 214 F. 2d. 862.
474, 475 476 59 287 186 372 235 33 299 158, 321 427
E
Edler v. Greellwich alld Deptford H.M.C. (195:3) The Times, IVfarch 7th. Ellis v. Home Office 2 All KR. 149; (1953) 2 Q.B. 135, Elphillstolle v. Elphillstolle (l962) 2 All KR. 966.. ,. Empress v. Ademma LL.R. (1886) 9 "helms, .'369. Ester Holzen v. Administrator, Transval (1957) 3 S,A. 710; English and Empire Digest Cumulative Supplement (l961) VoL 34, p. 43, item xxxvi. Eusoof Ahmed v. Ismail Se1l1a All'\. Hallg. 322; 178 LC. 165. Everett v. Griffiths (1920) :3 K,B. 163.
291 438 426, 436 :32..1 295 365, 3G7 193
F
Farquhar v. Murray (1901) :3 F. 31 English and Empire Digest, 548, 67 V. Fish v. Kapur (1948) 2 All E.R. 176; 64 T.L.H. 92 SoL Jo. 499. Fowler v. 'Yest Dorset Grollp of Hospital Management Committee (1955) B.M.!. August 6th, 387. Frank v. Cementation Co. (1959) R.M.]. January 17th, 180. Fraser v. Vancol1ver General Hospital (1952) 2 S.C.R. 36; (1951) ,3 W:W.R. (N.S.) 337; (l951) 4 D.L.R. 7:36. [a Canadian easel Freeborne v. Laning (1926) I K.B. 1 95 L.J,K.B. 114; 134 L.T. 117, Ftlssel v. Reddard (1942) R.M.I. II, 411.
218 189, 227 269 478 225 291 216
G
Galloway v. Hanley B.M.J. Marcb lOth, 580, Gardener v. Gardener (1947) 1 All KR. 630; (1947) W.N. 128. Garibshaw v. Patia Dassi AUt CaL 290; 66 c.L.J. 337. Gamer v. Mom;/ (1953) The Times, October 31st, C.L.Y. 2538. Gaskill v. Gaskill (1921) P. 425. General Medical Council v. Spackmall A.C. 627; .2 All KR. 337. Gellt v. ,Yi/son (1961) British and Empire Digest, 3rd Cumulative SupVoL 34, p. item 70 xvii. Gerber v. Pine 79 Sol. To. B.M.]. January 5th, 41. Gl!clIlashlla11l v, State Ani. (HJ57) Orissn. 78; (957) Cr. L.J. 469.
253 497 366 228, 485
')"1-;' ,
~I
135 251 239, 253 491
xvi
TABLE OF CASES PAGE
Gibson v. Russel. (1843) 11 Younge & Colleyer's Reports, 104. Gladwell v. Steggall (1839) 5 Bingham, KC. 733; 8 L.J.C.P. 361. Gold v. Essex C.C. (1942) 2 K.B. 29:3; (1942) 2 All E.R. 237: 112 L.J.K.B. 1. Gravestock v. Lewisham Hospital (1955) The Times, IVfay 27th. The Gl'eenwish and Deptford H.M.C. Case (1951) B.M.J. August 4th, 305. Gunning v. Cooley, 281 U,S. 90.
373 192 199, 200 223, 281 29:3 226, 245 231 203, 231
H
Hadlum v. Hadlmn (1949) P. 197; (1948) 2 All E.R. 412. Hall v. Lees (lD04) 2 K.B. 602; 73 L.J.K.B. 819; 91 L.T. 20. Hamdard Dawakhalla v. Uilion of Ilidia (1960) S.c.J. 611; AIR (1960) S.C. 554. HUllcke v. Hooper (1835) 7 C. & P. 81. Hallderson v. Handerson (1955) B.M.!. March 12th, 672. Hatchen v. Black (1954) The Times, July 2nd. Healey v. O'Donnel Lancet, July 25th. Herman and Co. v. Duckworth, 90 L.T. 548;20 T.L.R. 4:36; 48 Sol. Jo. 436. Higgins v. N.\V.M.A.B., (1954) vV.L.R. 411, (1954) 1 All E.n. 414; 98 So!. Jo. 147. Hillyer v. St. Bartholomew's Hospital (1909) 2 K.B. 820; 78 L.J.K.B. 958; ] 01 LT. :368. Holgate v. Lancashire Melltal Hospitals Board, (19:37) 4 AU E.R. Hi. Holland v. Devitt and Moor Nautical College and Dr. Thomas (1960) B.M.]. i\Iarch 12th, 812. Hunter v. Hanleu (1955) S.L.T. 213, 217.
485 287 445 232 269 9], 17:1 209, 240 271 8:3
53 202
199 4:38 18:3, 249 185, 19.5 267, 271
I
Indarsingh v. Para1l1eshwar Dlwrisingh, AIR (1957) Patna, 491.
Ingram v. Fitzgerald (1936) 2 B.M,J. 1221; (19:36) N.Z.LR 905.
255
J James v. DUlllo)) (19:31) 1 B.?lI.]. April 25th, 730.
276 ,191
Jantall v. Emperor AIR (1934) Lah. 797; .36 Cr. L.J. 310. Jones v. Manchester Corporation (1952) 2 Q.B. (1952) 2 All E.It (1952) 1 T.L.R. 1589 C.A. . . JOlles v. \F elsh Regional If ospitol Board (1961) Lancet, August 26th, 483. ludath v. IsollfllC Bose AIB (1945) P.C. 174: (1945) M.W.N. 6.34.
:391
Kalicharan v. Emperor AiR (1948) Nagpur, 20; LL.R. (1917) i\agpur, 226. Kalil v. State of U.P. AIR (1958) S.C. 180; (19571 S.C.R 187.
427 .'398
2:13 ]8~
TABLE OF CASES
XVlI
PAGE
Kanaiualal v. Harsil/gh AlB (19/14) Nagpur, 2.32. Kanbi Kurji Duba v. State AIIl (1960) Cuj. 1; (1960) Cr. L.J. 1200 Kandasami lY[udali, In Fe AIR (1960) Madras 316; (1960) Cr. L.J. 930. Dr. Khushalclas Parnmandas v. State of AladhYIl Pradesh AIR (1960)
Madhya Pradesh, 50; (1960) Cr. L.J. 234. King v. HOl/me (1939) 1 K.B. 687. KisllOrilal v. State AIR (1957) Punjab, 78; (1957) Cr. L.J. 475. Knott v. Knott (1955) 2 All KR. ,'305.
437 427, 430 430
319
323
:'3,]5
475
L
L. v. L. (1949) 1 All KR. 141; (1949) P. 211. Lampllier v. Phipos (1838) 8 C. & P. 475. Landau v. "Verner (1961) Lallcet, December 2nd, 1248. UI/dseu C. C. v. Marshall (l93m 2 All KR. 1076, 52 T.L.H. 661: 80 Sol. J o. 702. Lochgellu Iron Co- Cool Co. v. M'Mul/ol1 (19:34) A.C. 1; 149 L.T. 526. Logan v. Waitaki Hospital Boarel (19:35) N.Z.L.R. :385.
Maclennan v. Maclenllan (1958) The Times, Scottish Law, 12; (19.59) 1-Iedical Annual, 289. Maholl v. Osborne (19391 2 K.B. 14: (19:'39) 1 All E.fl. 5:35.
,1ialappa v. Tipa!fll 32 Bomhay Law Reportcr, 1289. Manchester Hegional 1lospital Board's Case The Guardian, April 2.5, 1962. MOl/sel H. Pleudell v. Emperor AUt (1926) Lah. 313. :11artill v. Londo7l COUlltU Council (I 947) 1 All KR. 783; (1947) K.B. 628; 177 L.T. 38. Mallng Ba Yin v. The King AIIl (I9:38) 1bngoon 298. Dr. M'Collolll's Case (1948) B.M.]. July 3rcl, 54. M'cNaugliten's Case (184:3) 10 Cl. and Fin. 200. McCormack v. Hec!path BrOlcl/ L, Co. (1961) Lallcet, April 8th, 76:3. Mehrei Dill v. Emperor AIR (1927) Lah. 222. :Uitchell v. Dixo7l (1927) Empire Digest, Vol. ,34, 548. ?l1ogrelia v. Prouince of BomlJClIj, Bombay High Court O.O.C.T. Suit No. 291 of 1948, Unreported judgment of Tendolkar dated February 24th, 1949. .UollOmed ArifJin v. Y. O. Gark Am (916) P.C. 242. :,loles1i:ortlz's Case (l950) B.:'1.]. ,Tuly 15th, 171. ,\foore v. Letcislwm Group Hospi/al Managemellt Committee (19.59) The Times, February .5th. ,Uorris v. MllI'selen (19.52) 1 All E.n. 925; (19.52) 1 T.L.H. 947: 96 Sol. ,To. 281. .Uorris v. IVil/sbur!! White (19:37) 4 All KR. 494.
411, 476 175 .:268 19:3, 238 191 224
4l2, 414 17.5, 198, .:210, 2.56, .:278 .36G
41:3 184 205 215 272
266 400 245 492 211, 27G 427 224 492 25.3
J'-
,'1-1'. v ..1/-1'. and the Official Solicitor !l949) P. :331; 9,] S.J. 2X
:32
:'3,]6 1.5.3, 2913 .:2:31 437 208, 216 .:260, 285
485
XVlll
TABLE OF CASES N PAGE
Natanson v. Kline, 186 Kan 393, quoted at p. 16 of Medico-Legal
Forms with Legal Analysis published by the Law Department,
American Medical Association. Nesbitt v. Holt (1953) 1 S.C.R. 143 [a Canadian case] Newham v. Rochester Hospital Board (1936) The Times, February 28th Newton v. Central Middlesex G.H.M.S. (1959) B.M.J. December 19th, 14]4. Nickolas v. Ministry of Health (1955) The Times, February 14th Nyberg v. Provost Municipal Hospital Board (1926) 2 D.L.R. 563.
295
204, 206 228 226, 245 154, 290 260 222
o O'Neill v. Kelly (1962) Medicine, Science and the Law, April. Orford v. Orford British & Empire Digest Vol. 27 p. 312, item 126; 58 D.L.R. 251. O'Shea v. Moyce (1936) Lancet, June 27th. Overseas Tankship v, Morts Docks (1961) 1 All KR. 404,
230 413 229 190
p
P. v. P. (1911) 12 LC. 946; 77 F.R. 1911. Padarath v, Dulhin AIR (1932) All. 524, Mrs. Parkinson v. YFest Cumberland Hospital Management Committee and Dr. Graham (1955) B.M.J. April 16th, 977. Parmley v, Parmley and Yule (1945) S.GR. 635; (1945) 4 D.L.R. 81, [a Canadian case], Paton v. Parker 65, Commonwealth Law Report, 187, [an Australian case] Payne v, St. HelieI' G,H.M.C. (1953) B.M.]. J,muary ] 7th, 166; (1952) The Times, November 12th. Percy Nesbitt v. Holt (See Nesbitt v. Holt) Perinowsk!l v. ~reeman (1866) 4 F. & F. 977; 17(j Eng. R. 873. Perreira v. Gonsalves 8 Bombay Law Reporter, 9,'3. Peters v. Fttlham and Kensington H.M.C. (1954) B.M.]. March 27th, 766. POllTwswamy, In re AIR (1950) Mad. 308; 51 Cr. L.J. 733 ... , Popham v. Brooke (1928-29) V Russel's Reports, 8. Powell v. Streatham Manor Nursing Home (1935) A,C. 243; (1935) 79 Sol. Jo. 179. Pratt v. Barker (1828) IV Russel's Reports, 507, Preston-Jones v. Preston-Jones (1951) A.C. 391; (1951) 1 All E.R. 124. Prout v. Crowley (1956) B.M.J. March lOth, 580.
484 298 182 230, 299 207, 222 286 226, 289 284 144 251 322 :372 401 374 485 251
Q
Queen-Empress v. Lakshman I.L.R. 10 Bombay 512. The Queen v. Slwrmpal Singh (1962) A.C. 188.
428, 430 496
R
R. v. Coney 8 Q,B.D. 549. R. v, R. (1952) 1 All KR. 1194. Radcliffe v. Price (1902) The Times, Law Reports, Vol. XVIII 466, Radlwprasad Singh v. Goiaclhan Singh (1960) S.GJ, 73
407 474, 475 373
40]
xix
TABLE OF CASES PAGE
Rajkumar v. Ramsunder AIR (1932) P.C. 69. Ram Kala v. Emperor AIR (1946) AlL 191 Rex v. Adams (1958) Medical Annual, 244; (1957) The Oct. 14, (1958) I B.M.J. 712, 711, 828, 954. Rex v. Bateman (1925) 94 L.J,K.B. 791; 133 L.T. 730.
426, 437 492 Times,
Rex v. General Medical Council (1930) 1 K.B. 562, 142 L.T. 390. Rich v. Pierpont 176 E.R. 16. Riddett v. Dr. D'Arc!! (1960) B.M.J. November 26th, 1607. Robbinson. v. A1l1wpelis General Hospital & Kerr (1956) 4 D.L.R. (2nd)
421 CAN; British and Empire Digest (1961) VoL 34 item 86,
XXXV, [a Canadian ease]. Hoe v. Ministry of Health (954) 2 All E.R. 131; (1954) 2 Q.B. 66.
Hustorn Ali v. State AIR (1960) All. 3:33; (1960) Cr. L.J. 768.
415 151, 192, 261, 136 174 178' 288
185 226 319 176
219
172, 18t 194, 195 198, 201 204, 2:34 237, 261 28:3 427
s S. v. S. 3 All E.R. 55. Sabhapathi v. Hallsleu AIR P.e. 91. Salemahamad v. State of Kutch AIR (1953) Cutch 7. Samuel v. Vades (1943) 1 K.B. 526; (1943) 2 All E.R. 3. Sapsford v. Sapsford (l954) 2 All E.R. :373. Lancet, July 16th, 146. S(loern(lke Hospital's Case ( Sch/oelldorfj v. Society of the New York Hospital (1914) 211 NY. R. quoted in Medico-Legal Forms with Legal Analrlsis pub lished by the Law American Medical Association. Shiells v. BLackburn 126 Reports, 94. Shripalsingh v. Jagdish Narayan AIR (1920) Oudh. 164. Sisters of St. Joseph of the Diocese of London v. Fleming S.C.R. 172, [a Canadian Slade v. Battersea (1955) 1 W.L.R. 207; (1955) 1 All E.R. 429; 99 Sol. Jo. 169. . Slater v. Baker (1767) 2 WiIs. 359. Smith v. Baker & Sons (1891) A.C. 325 Smith v. Brighton & Lewes Hospital Management Committee (1958) The Times, MHY 2nd. Smith v. Leech Brain & Go. Ld. (1961) 3 All E.R. 1159. Smith v. Lorri! (1935) Lancet, May 11th, 1126. P. 186. Stadel v. Albertsoll .2 D.L.R. 328 --- CAN; British and Empire Digest Suppl. (1961) Vol. item 86, xxxi, [,~ Canadian State of Madhya Pmdesh v. AhmaduIla, AIR (1961) S.C. 998; (1961) 2 Cr. L.J. 43. State of Rajasthan v. Vidyawati AIR (1962) S.c. 933. Strangways-Lesmere v. Clayton (19:36) 1 All E.R. 484; (19:36) .2 K.B. 11; 105 L.J. K.H. 385. Sukaroo Kobirai v. Empress l.L.B. (1887) 14 Cal. 566.
·475 292 334 166 412 174 297-298 193 336 255 246 260, 301 296 2:30 171, 190 398 477 219 430 33 23] 320
xx
TABLE OF CASES PAGE
Sundar Balkrislzna v. Balkrislma Ramchandra, Unreported judgment of Naik J. dated July 1st, 1960 in Bombay High Court First Appeal No. 666 of 1959. Suradhani Choudhurani v. Raia Jagat Kishore AIR (1939) Cal. 379. Surendra Krishna v. Rani Dassi 24 C.W.N. 860. Sushila Mahendra v. Mahendra :"I1anilal 61 Bombay L.R. 431 Sylvester v. Grit (1956) S.C.R. 991, [a Canadian case]
486 365 367 490 234
T
Thakur v. State Am (1955) Allahabad, 180. Thompson v. Schmidt (1891) 56 J.P. 212; 8 T.L.R. 120 GA. Titli v. Alfred Robert Jones AIR (1934) All. 273; I.L. R. 56 All. 428. Tulsiram Kallu v. State AIR (1954) S.C. 1. Twyford v. Puntschart (1947) 1 All E.R. 773; 177 L.T. 30; 63 T.L.R. 329; 9l Sol. Jo. 264.
342 188 399, 426 435 398 52
U
Vrr!! v. Bierer (1955) The Times, March 16th. On appeal, (1955) The Times July 15th. Vttamrao Ra;aram v. Sitarmn 64 Bombay L.R. 752.
161, 278 483, 484
v V{inCOliver Gel/eral Hospital v. Fraser (1952) 2 S.C.R. 36, [a Canadian case]. 293 Vancouver General Hospital v. McDaniel (1934) W.N. 171; 152 L.T. 56. 197 FolieI' v. Portsmouth Corporation (1947) The Times, April 30th; (1947) 20.'3 L.T. To. 264. 2:35
w Wadhva v. Jaikishalldas AIR (1928) Lah. 427. ... Ward v. Shell Mex & B.P. Ltd. (1952) ] K.B. 280. Warren v. Greig and White (1935) Lancet, Vol. I, 330. Waters v. Park (1961) Lancet, July 22nd, 204. Dr. ""Vaugh v. State of Maharashtra Criminal Appeal No. 607 of 1961, High Court of Bombay: Kotval and Chandrachud n. (unreported judgment elated 5th' December, 19(2). Whitamore v. Rao AIR (1935) Lah. 247. 'Vhite v. Board of Governors of Westminster Hospital (1961) 2 B.M.J. December 9th, 1580; Medicine, Science and the Law, April 1962, 481. Whiteford v. HUllter (1950) Sol. Jo. 758; (1950) W.N. 533. 'Villiams v. l\jorth Liverpool Hospital Mallagement Committee (l959) The Times, January 17th. \Filson v. Swanson (1956) S.C.R. 804, [a Canadian case]. Wood v. Charing Gross Hospital (1951) B.M.!. September 8th, 616. V/oodwarci v. Emperor AIH (1925) Sind, 23,3. Wood v. Wood (] 947) P. lQ.3: (1947) 2 All E.H. 9.5.
.398 391 106, 229 257 156, 242 270 162, J64 .'3W 177, 178 209, 2.58 400 195, 257 252 255 175, 218 292 .322 48,,)
CHAPTER I
}r:=============~::::::==== $~nopsis Part I PARTICULAR STATUTES Section 1 -
MEDICAL PnOFESSION GENERALLY
CENTRAL ACTS :
1. Indian Medical Degrees Act, 1916. 2. Indian Afedical Council Act No. 102 of I9S6. ACTS OF THE STATE OF MAHARASHTRA:
1. Bombay Medical Act, 1912. 2. Bombay Homoeopathic and Bio-Chemic Practitioners' Act, 1959. 8. Maharashtra Afedical Practitioners' Act 28 of 1961. Section 2 -
DENTISTS,
DENTAL HYGIENISTS
AND
DENTAL MECHANICS
CENTRAL ACT:
1. Dentists Act No. 16 of 1948. Section .'3 -
VETERINARY SURGEON AND
VETERINAHY
SUHGEHY
ACT OF THE STATE OF MAHAHASHTRA:
1. Bombay Veterinary Practitioners' Act 68 of 19S8. Section 4 -
NUHSES,
NUHSING AGENCIES
A:-';D MIDWIVES
CENTHAL ACT:
1. Indian Nursing Coullcil Act 48 of 1947. ACT OF THE STATE OF MAHARASHTHA:
1. Bombay Nurses, i\fidwiGes alld Health Visitors Act No. 14 of IDS4. Section S -
HOSPITALS AND NUHSI:-';C HO:\IES
ACT OF THE STATE OF
MAHAHASHTl\A:
1. Bombay Nursing Homes Registration Act IS of 1949.
1
2
A~D
.MEDICAL LA W
Section 6
ETHICS IN INDIA
THERAPEUTIC PURPOSES
ACTS OF THE STATE OF
MAHAR....SHTRA
1. Bombay Aryatomy Act, 1949. 2. Bombay Corneal Grafting Act 33 of 1.957.
Section 7
PUBLIC HEALTH CENTRAL ACTS ;
1. 2. 3. 4.
5. 6. 7. 8.
9.
Vaccination Act .13 of 1880. Epidemic Diseases Act 3 of 1897. Lepers Act ,3 of 1898. Indian Lunacy Act 4 of 1912. Indian Red Cross Society Act 15 of 1920. Prevention of Food Adulteration Act 57 of 1954. Slum Areas Improvement and Clearance Act 96 of 1956. All India Institute of Medical Sciences Act 25 of 1956. Indian Port Health Rules, 1955. ACTS OF THE STATE OF MAHARASH'nL'>.;
1. 2. •'3. 4.
Bombay District Vaccination Act, 1892. Bombay Vaccination Act I of 1877.
Lepers Bombay (Amendment) Act· 28 of 1955. Bombay Animal Contagious Diseases Act 59 of 1948,
5. Bombay Lunacy (Amendment) Act. Sectiol1 8 -
DImcs,
POISONS AND
PHARMACISTS
CENTRAL ACTS ;
1. 2. 3. 4.
5. 6. 7.
8. .9.
Pharmacy Act 8 of 1948. Opium Act .13 of .1857. Opium Act No. .I of .1878. Poisons Act .12 of 19.19. Dangerous Drugs A.ct of .1930. Drugs Act 23 of .1940. Drugs (Control) Act 26 of .1950. Drugs and 1Iiagic Remedies (Obiectiollable Adcertisemellts)
Act 2.1 of .1954 .
Medicinal and Toilet Preparations (Excise Duties) Act, 1955.
ACTS OF THE STATE OF MAHARASHTRA:
1. Bombay Opium Smoking Act No. 20 of 1936. 2. Bombay Drugs Control Act Xl of 1960. 3. Bombay Prohibition Act 25 of .1949.
Part II
GENERAL STATUTE LAW CE!'1TRAL ACTS :
1. 2. 3. 4.
.5. 6.
7. 8. 9.
Indian Coroners Act, 187.1. [lldian Contract Act, .1872. Indian. Penal Code; .186'0. lVorkmell's Compensation Act 8 of 1,92.3.
Milles Maternity Benefits Act 19 of 194.1.
Employees' State I nSU1'(lllce iict .'34 0/ .1948. Plantations Laboul Act, .19.'5.1. Births, Deaths and Marriages Registration Act, 1886'. Indian Factories Act> 1948.
A SURVEY OF THE LAW AND LAW COURTS ACTS OF THE STATE OF M,\HARASHTRA;
1. 2. .'3. 4. 5. 6.
City of Bombay Bombau Bombay Bombay Bombay
Bombay Municipal Act, 1888. District Municipal Act, 1901.
Municipal Boroughs Act 1925.
Coroners Act, 1871. Rent Act. Sales Tax Act, 1959.
Part III COMMON LAW AND LAW OF TORTS
Part IV COURTS AND THEIR PROCEDURE
Part V A LIST OF STATUTES OF DIFFERENT STATES NOTE: ThJ:oughout the book reference to the Acts of the State of Maharashtra includes all Acts passed upto the formation of the State of Maharashtra.
,
f
Part I PARTICULAR STATUTES E shall, to begin with, briefly state the scope and object of the variOl~s statutes concerning the medica~ pr~fession, dr~Igs and publIc health. Acts of general applIcation but whIch may, on occasion, be of use to medical men are also very briefly men tioned. For the sake of convenient reading, this part is divided into sections and at some places into sub-sections. The statutes dealt with are Acts of the Central Government and the State of lvlaharashtra. A list of Acts in force in other States in India is given at the end. The objects of Acts mentioned in Sections 1, 2, 3 and 4, inter alia, are (1) the benefit of the public by compulsorily requiring certain standards for the status of qualified medical men and (2) the protection of medical men by conferring certain rights upon them.
W
Section 1 -
MEDICAL PROFESSION GENERALLY CENTRAL ACTS:
1.
Indian Medical Degrees Act) 1916
By this Act, for the first time, law was enacted to regulate the grant of titles implying qualification in "Western medical science. The Act attempts to check the assumption and use by unqualified persons of
A SGHVEY OF THE LA \V A:\fD LA \'17 CODETS
:)
ACTS OF THE STATE OF 'vlAHARASHTRA :
1.
Bmnbay
~1 edical
Act 1912
This Act for the first time provided for the registration of medical practitioners in the State of i\laharashtra. Under this Act for the first time a Medical Council was constituted. It is known as the Bombay Medical Council. The Council is a disciplinary body. If a medical practitioner has been, after due enquiry, found guilty of any miseonduct, he may be warned or removed from the State Register. This Act prothat no certificate required by any Act from any medical practitioner or medical offieer shall be valid unless the person signing the same is a registered medical practitioner.
2.
Bombay H omoeopathic and Biochemic Practitioners' Act, 1959
The main object of this Act is to consolidate and amend the law relating to the regulation of qualifieations and the registration of homoeo pathie and biochemic practitioners in the State of Maharashtra, with a view to encourage the study and spread of these systems of medicine. The Act provides for the setting up of a board to be called "the Board of Homoeopathic and Biochemic Systems of 11edicine, Bombay". The Board exercises disciplinary jurisdiction over homoeopathic and bio chemic practitioners in the State of Maharashtra. The Act also provides for the constitution of a Court of Examiners. The main function of the Court of Examiners is to hold examinations, to prescribe the courses of training, to grant degrees, diplomas and marks of honour, to prepare, publish and prescribe text books, and to provide for the maintenance of an adequate standard of efficiency in the practice of the homoeopathic and biochemic systems of medicine. The Act also contemplates the preparation of a Hegister of Homoeopathic and Biochemic Practitioners in the State of Maharashtra. This Act repeals the previous Bombay Homoeopathic Act, 1951 as also the Madhya Pradesh Honweopathic and Biochemic Practitioners Act in its application to the Vidarbha region of the State of Maharashtra, and the Hyderabad "8Jedical Act in its application to the Hyderabad area of the State of IvIaharashtra .
.3.
~1alwrashtra
Nledical Practitioners Act 1961
The object of this Aet is to regulate the qualifications of and to provide for the registration of medical practitioners of the Ayurvedic and Unani systems of medicine, in order to encourage. the study and spread of thesc sciences and to make provisions relating to medical practitioners generally in the State of ~laklrashtra. \Vith that object
1
MEDICAL LA \V AND ETHICS IN INDIA
6
in vie\v, the Act provides for the constitution, and the functions and powers of a Board to be called the "Maharashtra Board of Ayurvedic and U nani Systems of Medicine". Act also contemplates the consti tution of the ~bharashtra Faculty of Ayurvedic and Unani Systems of .t\1edicine. Under this Act, a Register of Ayurvedic and Unani practi tioners in the State of Maharashtra is to be prepared and certain details mentioned in the Act regarding these practitioners must be stated in that Hegister. The main object of setting up a Faculty is to enable the Faculty to prescribe the examination to be held by it, the qualifications necessary for admission to such examination, the courses of studies for such exami nation, the standard of passing in such examination and various other connected matters. An institution which purports to train students in the Ayurvedic and Unani systems of medicine must obtain recognition under this Act in order that students on whom degrees arc conferred by such an institution may be entitled to practise as medical practitioners in the State of Maharashtra. Chapter VI of the Act lays down general provisions applicable to all medical practitioners. No person is entitled to practise as a medical practitioner in the State of Maharashtra unless his name is entered in the Register maintained under this Act or under the Bombay Homoeopathic and Biochemic Practitioners Act, 1.959 or under the Bombay Medical Act, 1912 or under the Indian 11edical Register prepared and maintained under the Indian Medical Council Act, 1956. A birth or a death certificate, or a medical or fitness certificate, or any other certificate required by any law to he or authenticated by a duly qualified medical practitioner, is valid only if it has been signed or authenticated by a practitioner registered under one of the Acts mentioned above. This Act repeals the Bombay Medical Practitioners Act, 1988, the Central Provillces and Berar Ayur vedic and UnGlli Medical Practitioners Act, 1947 and the Hyderabad Medical Act applicable to the Hyderabad area of the State of Maha rashtra. Notwithstanding the repeal of these Acts, the Hegisters kept under these repealed Acts shall he deemed to Registers under the Maharasl!tra Medical Practitioners Act, 1961. The Maharashtra Medical Practitioners Act, 19()] came into force on 1st January, 1962. '>')o:,l1",-,U
Section 2
DENTISTS, DENTAL HYGIENISTS .AND DENTAL ~IECIL\NICS
CENTRA,L ACT:
1.
Dentists Act 1948
This Act makes provision the regulation of the profession of dentistly and for that purpose the Act makes provision for the consti tntion of a Dental COllncil. It extends to the whole of India and makes
A SURVEY OF THE LAW AND LAW COURTS
7
provision for the constitution of a General Council having supervlSlon all over India called the «Dental Council of India" and also makes provision for the setting up of a separate Dental Council in each State in India. The Dental Council of India is empowered to require infor mation from the State Councils as to the courses of studies and training and examination in dentistry in that State. The Dental Council of India exercises supervision over every Dental Council set· up in the States in India. The Act states what are recognised dental qualifications and these are set out in the Schedule to the Act. Part II of the Schedule sets out the foreign degrees that are recognised in India. No person other than a citizen of India holding recognised dental qualifications is entitled to registration under the Act. If, however, the State or the country to which a non-citizen dentist belongs, permits persons of Indian origin holding dental qualifications registrable in that State or country to practise dentistry in such State or country, then such a non-citizen dentist is entitled to be registered under this Act and to practise dentistry in India. The Dental Council of India has to maintain a Register of Dentists known as the Indian Dentists Register which consists of the entries in the Registers of Dentists maintained by the State. No certi ficate by or under any law required from a dentist is valid unless the person signing it is registered as a dentist under this Act. This Act recognises three categories of dental practitioners, namely, registered Dentists, registered Dental Hygienists and registered Dental Mechanics. A person who is a registered Dentist, a registered Dental Hygienist or a registered Dental Mechanic in a State may practise as such in any other State. The Act prohibits unregistered persons from practising dentishy after a certain date. Further the Act prohibits the profession of dentistry being carried on by a company or any corporate body, unless such body carries on no business other than the profeSSion of dentistIy and the majority of its Directors and all the operating staff are registered dentists, or unless the profession of dentistry is carried on by any hospital or dispensary or institution .for the training of dentists and dental hygienist'). Section S ~-
VETERINARY SGRGEONS AKD
VETERINARY
SURGERY
CENTRAL ACT:
There is no Central Act on this subject. ALI OF THE STATE OF MAHARASHTRA:
1.
B01nbay Veterinary Practitioners Act 1953 This is an Act to provide for the registration of veterinary practi
8
MEDICAL LAW AND ETHICS IN INDIA
tiollers in the State of Maharashtra. The Act establishes and constitutes a Council to be called the Bomhay Veterinary Council. The Council is a disciplinary body. The Act requires the preparation of a register of veterinary practitioners of the State. Every person ,vho holds any of the qualifications mentioned in the Schedule is entitled to be registered as a veterinary surgeon on payment of a prescribed fee and on furnishing evidence to the satisfaction of the Registration Officer or the Registrar of his possession of a qualification entitling him to registration. EVelY person registered with the Veterinary Council of any State in India is entitled to be registered undex this Act, if reciprocity of registration has been arranged with such Council, on making an application and on payment of a prescribed fee and on his informing the Registration Officer of the date of his registration under the State law and on furnishing to the Registration officer a correct description of his qualifications and the dates on which they were granted to him. Under Section 16 the Council has the power to remove from the register any veterinary practi tioner who has been convicted of a cognizable offence or who, after due inquiry, has been held guilty by the Council of infamous conduct in any professional respect. Section 18 of the Act provides that no certi ficate required by any law from any veterinmy practitioner or veterinary officer is valid unless the person signing the same has been registered under this Act. Section 19 of the Act prohibits unregistered veterinary practitioners from perfonning veterinary duties in any veterinary dis pensary, hospital or infinnmy which is not supported entirely by volun tary contributions, or which belongs to a local authority or is a public establishment, body or institution, unless special pennission of the State Government is obtained.
Section 4 - NURSES,
NURSI~C
ACEKCIES
CENTRAL
1.
AND
MmWIVEs
ACT:
Indian Nursing Council Act, 1947
This Act constitutes an Indian Nursing Council in order to establish a unifoml standard of training for nurses, midwives and health visitors. Under this Act two kinds of qualifications are considered recognised qualifications and they are mentioned in the Schedule to the Act If a person has a recognised qualification within the meaning of this Act, he will be entitled to be enrolled on any State Hegister. No person, after the passing of this Act, is entitled to be enrolled on any State Register as nurse, midwife or health visitor or public health nurse unless he holds a qualification recognised under this Act. A person already enrolled in any State Register before the commencement of this Act may conti
A SURVEY OF THE LAW AND LAW COURTS
9
nue to be so enrolled notwithstanding that he does not hold a recognised qualification. Certain qualifications are recognised as higher qualifica tions. A person holding a recognised higher qualification is entitled to have the qualification entered as a supplementary qualification on any State Register on which he is enrolled. ACT OF THE STATE OF MAHARASIfltlA:
1.
Bombay Nurses, 'A1idwives and Health Visitors Act, 1954
This Act amends and consolidates the law relating to nurses, mid wives and health visitors in the State of Maharashtra. ThisActprovides for the constitution of three Nursing Councils one in Bombay, one in Mysore and another in Raja~than. Each Council has to maintain a register of (a) nurses, (b) midwives and (c) health visitors. A person who has undergone such courses of training and has passed such exami nations and has fulfilled such other conditions as may be prescribed by the aforesaid three respective Governments, is entitled to registration. Another register is required to be maintained with respect to persons whose names are not entered in the Register mentioned above. This list will include such nurses, midwives and health visitors who do not comply with the requirements mentioned in the previous Register, but who, within the period of two years from the commencement of the Act, prove to the satisfaction of the Council that they have been in regular practice as nurses, midwives or health visitors and fulfil such other conditions as may be determined by the Council. No person other than a person registered under this Act or a per~on whose name is entered in the abovementioned list, can practise or hold himself out as practising habitually or for personal gain as a nurse, midwife or health visitor. A nurse's establishment cannot be carried on by any person except undel' a valid licence. Institutions which are approved and recognised by the Nursing Council after investigation hy its representatives are competent to train nurses, midwives or health visitors and to send them for examination for the qualifying certificate of the Council. The Bombay Nurses, Midwives and Health Visitol"S Registmtion Act,1985 is repealed by this Act, but the nurses, mi&vVives and health visitors who were enrolled on the Register maintained under the Act of 1935 are deemed to be registered under the Act of 1954. Further those institutions which were approved and recognised by the Council to train nurses, midwives and health visitors under the Act of 1935, are deemed to be likewise approved and recognised institutions nnder the Act of 1954. The Act, therefore, governs (1) institutions which train nurses, midwi'vcs and health visitors; (2) nurses' establishments and (3) persons
10
MEDICAL LAW AND ETHICS IN INDIA
~vho practise or hold themselves out as nurses, midwives or health visitors either habitually and/or for personal gain.
Section .5 -
HOSPITALS AND NURSING HOMES CENTRAL ALL:
There is no Central Act on this subject. ACT OF THE STATE OF MAHARASHTRA:
1. Bombay Nursing Homes Registration Act, 1949 This Act at present applies only to Greater Bombay, the cities of Poona, Ahmedabad and Nagpur and the Municipal Borough of Sholapur. The Act prohibits a person from carrying on a nursing home unless he or she has been duly registered in respect of such nursing home. Every year the registration is required to be renewed. Certain conditions are laid down for the purpose of registering nursing homes. Provision is made for the inspection of nursing homes by the authorities.
Section 6
THERAPEUTIC PURPOSES CENTRAL ACT:
There is no Central Act on this subject. ACTS OF THE STATE OF MAHARASHTRA:
1. Bombay Anatolny Act, 1949 This Act provides for the supply of unclaimed bodies of deceased persons to hospitals and medical and teaching institutions for therapeutic purposes or for the purposes of anatomical examination and dissection. This Act provides that when a person dies in a hospital or in a prison and his body is unclaimed or a person having no permanent place of residence dies in any public place and his body is unclaimed, the body of such a person must be handed over to an approved institution for therapeutic purposes or for the purposes of conducting anatomical examination and dissection.
2. Bombay Corneal Grafting Act, 1957 This Act came into force on 1st Jannary, 1962. It makes important provisions with regard to the use of the eyes of deceased persons for therapeutic purposes. The Act provides that if any person, either in writing at any time, or orally in the presence of two or more witnesses dUling his last illness, has expressed a request that his eyes be used for
A SURVEYOr THE LAW AND LAW COURTS
11
therapeutic purposes after his death, the person lawfully in possession of his body after his death may (but is not bound to) authorise the removal of the from the body for those purposes. Even if no authority is given by the deceased for the removal of his eyes, it would be competent to a person lawfully in possession of the body of a deceased person to authorise the removal of the eyes of the deceased from the body for therapeutic purposes, provided that the deceased had expressed no objection to his eyes being so dealt with after his death and provided that a near relative of the deceased does not object to the eyes being so dealt with.
Section 7 - PUBLIC HEALTH CENTRAL ACTS:
1.
Vaccination Act, 1880
The Act gives power to prohibit inoculation! and to make the vacci nation of children compulsory in certain MuniCipalities and Cantonments. It applies only to such Municipalities and Cantonments as are situated in Uttar Pradesh, Punjab (as it existed immediately before 1st November, 19.56) the Central Provinces, Assam, Delhi, Ajmer and Coorg. The Act also makes provision for the extension of the Act to other Municipalities. Further the State Government may by a notification extend the Act to the whole or any part of a rvIilitary Cantonment. In any place to which the Act applies, inoculation is prohibited. There is also a provi sion for the vaccination of unprotected children. An unprotected child is a child who has not been protected from smallpox by having had that disease either naturally or by inoculation or by having been suc cessfully vaccinated and who has not been certified under this Act to be insusceptible to vaccination. Various other provi sions are made relating to vaccination, such as the procedures to be adopted when vaccination is unsuccessful or when vaecination is successful or when the child is unfit for vaccination. The Act also provides for the giving of certificates. It also prescribes the kind of lymph to be used for vaccination. In the Vaccillation Act, 1880, Bombay 'Vaccination 1877 and Bombay District Vaccination Act, 1892, the
12
2.
1\!EDICAL LAW AND ETHICS IN IKDL\
Epidemic Diseases Act, 1897
This Act provides for the bettcr prevention of the spread of danger ous epidemic diseases. It gives to State Governments power to take special measures and prescribe regulations for the prevention of danger ous epidemic diseases.
3.
Lepers Act, 1898
This Act provides for the segregation and medical treatment of pauper lepers and for the control of lepers following certain callings. The Act extends to the whole of India except the territories which immediately before 1st November, 19,56 were comprised in Part B States, but it shall not come into force in any part of the territories to \vhich this Act extends until the State Government has declared it applicable thereto. The Act defines a leper and a pauper leper. 1 It prescribes the procedure with regard to the manner in which a pauper leper has to be kept in a leper asylum. The State Government may also notify that no leper can personally prepare for sale, or sell any article of food or drink or any drugs or clothing intended for human use; that he cannot bathe in, or wash clothes in or take \vater from any public well or tank; that he cannot drive, conduct or ride in any pl1blic carriage plying for hire other than a railway carriage.
4.
Indian Lunacy Act, 1912
This Act sets out the machinery for the reception, care and treat ment of lunatics as also for judicial enquiry as to whether or not a palticular person is a lllnatic. The Act provides for the establishment of asylums .
.5.
Indian Red Cross Society Act-
This Act provides for the administration. after the First World \Var, of the moneys and gifts received from the public for the purpose of medical Hnd other aid to the sick and wounded. The Act sets up a society to be known as the Indian Reel Cross Society. The capital of the society and the income thereof are to be used for the relief of sick ness, sl1ffering or distress caused by war in India or in any other country in which expeditionary forces from India mny be employed. The Act also enables the income of the propertics of the Society, but not the capital thereof, to be used for the relief of sickness and suffering in leper" mealls a leper who publicly solicits alms or exposes or exhibits any wounds, hoclih' chartty or ailmellt or deformity with the object of obtflining alms, or (Il) who is at without any ostensible means of suhsistence.
A SURVEY OF THE LAW AND' LAW COURTS
13
India, whether due to war or otherwise, and for all or any of the objects set forth in the First Schedule to the Act. This First Schedule sets~out various objects for the Society, such as maternity and child ,velfare, the Junior Red Cross, nursing, ambulance-work and so forth.
6. Prevention of Food Adu,teration Act, 1954 This Act extends to the whole of India except the State of Jammu and Kashmir. It defines what is adulterated food. There are twelve grounds stated in the Act under which an article of food is deemed to be adulterated. The Act also makes provision for the constitution of a Committee called the Central Committee for Food Standards to advise in this regard the Central Government and the various State Govem ments. No person can import into India any adulterated food, any misbranded food,· and any article of food for the import of which a lieenee is prescribed except in accordance with the conditions of the licence. Further, no person can manufacture for sale, or store, sell or distribute any adulterated food. Provision is also made for the public analysis of food, the procedure to be followed by Food Inspectors, the report of public analysis, etc. The Act provides penalties for breaches of its provisions.
7. Slum Areas (Improvement and Clearance) Act, 1956 This Act provides for the improvement and clearance of slum areas in certain Union territories in India.
8. All India Institute of A1edical Sciences Act, 1956 This Act makes provision for the establishment of the All India Institute of Medical Science. The Institute is declared to be an insti tute of national importance. Its location is in New Delhi. The objects of the Institute are: (1) to develop patterns of teaching in undergraduate and post-graduate medical education so as to demonstrate a high standard of medical education to all medical colleges; (2) to bring together in one place educational facilities of the· highest order for the training of personnel in all important branches of health activity; (3) to attain self-sufficiency in post-graduate medical education. \Vith a view to the promotion of the above objects, certain fUllctions are specified in the Act for the Institute, such as prOViding facilities for research in medical science, providing for under-graduate and post graduate teaching in the science of modem medicine and other allied
I
14
MEDICAL LAW AND ETHICS IN INDIA
sciences and to conduct experiments in new methods of medical education.
9.
Indian Port Health Rules, 1955
The object of these Rules is obvious. These rules inter alia relate to:-(1) Preliminary examination of persons before they board ship. (2) Visits to and inspection of ships and medical examinations of persons on board incoming ships. (3) Adoption of a Standard Inter national Quarantine Message to be followed by incoming ships. These rules empower the Health Officer of the l)ort to proceed on board and medically examine infected and suspected ships and ships having on board persons suffering from typhus or relapsing fever. The Rules also provide for the adoption of sanitary mcasures to ships calling at any Indian Port, compulsory disembarkation of and quarantine of persons suffering from quarantinal diseases. The quarantinal diseases are Plague, Cholera, Yellow Fever, Smallpox, Typhus and Relapsing Fever. Special provisiotJ.s are made with rcgard to pilgrim ships. These Rules are to be found in the Gazette of India 1956, Part II, Section 3, page 302 to 326. These Rules were amended from time to time. See Govern ment of India Gazette 1956, Part II, Section 3, Page 1780. By this Amendment some changes are made in the prescribed foml of Inter national Certificate of Vaccination. For further amendments of these Rules, see Government of India Gazette 1957, Part II, Section 3, page 1497, by which some changes are effected in certain prescribed forms. For still further amendments, see Gazette of India 1959, Part II, Section 3 (i) page 1495. Among celtain changes made by these Amended Rules a new Certificate is prescribed called thc Certificate of Medical Inspection stating that the Health Officer of the Port has inspected the passengers on board an out-going ship. ACTS OF THE STATE OF :NLl.HARASHTRA:
1.
Bombay District Vacdnation Act, 1892
This Act prohibits the practice of inoculation and makes the vaccination of children compulsory in certain parts of thc State of Maharashtra. The whole Act applies to the pre-reorganization State of Bombay excluding transferred territories and Greater Bombay. How ever, Section 3:3 of the Act extends its provisions to Greater Bombay also. The Act refers to the appbintment of Public Vaccinators, their qualifications, etc. Under Section 9 it is the duty of the parent or, in the case of a child in the care of a guardian, of the guardian of every
A SUHVEY OF THE LAW AND LAW COURTS
15
child, within the period prescribed, to take it or cause it to be taken to be vaccinated by a Public Vaccinator or by some medical practi tiorier. The Public Vaccinator is bound to vaccinate the child. If any Public Vaccinator or medical practitioner is of the opinion that any child is not in a fit state to be vaccinated, he must give to the parent or guardian of such child a certificate under his hand according to the fomf of Schedule "A" of the Act or to the like effect that the child is then in a state unfit for vaccimltion. Such certificate will be in force for two months only but shall be renewable for successive periods of two months. If any Public Vaccinator or medical practitioner finds that the child whom he has three times unsuccessfully vaccinated is insusceptible of successful vaccinati.On or that a child brought to him for vaccination has already had smallpox, he must deliver to the parent or guardian of such child a certificate under his hand according to the form of Schedule "B" of the Act or to the like effect and the parent or guardian will not thenceforth be required to cause the child to be vaccinated. Every Public Vaccinator or medical practitioner who has performed the operation of vaccination upon any child and has ascertained that the same has been successful, must deliver to the parent or guardian of such child a celtificate according to the form of Schedule "e" of the Act or to the like ceJtifying that said child has been successfully vaccinated. The vaccination must ordinarily be performed with that kind of lymph which the parent or guardian of the child might require, but the Government, on satisfied that animal lymph is not procurable in any vaccination area without dangerous delay, by notification, may notify that dUling such period as it may deem fit to appoint, the vaccination may, without the assent of the parents or guardians of such children, be performed with lympb taken from a human being. Section imposes a penalty upon a medical practitioner if he neglects to fill up, or give to the parent or guardian of any child any certificate which such parent .Or guardian is entitled to receive from him, or to transmit a duplicate of the same t.O the Registrar of Births. If a or procures the signing or medical practitioner wilfully signs or making of 11 false certificate or a duplicate certificate under this Act, he is liable to be imprisoned for a term extending to six months or to be fined to the extent of Rs. 1,000 or both.
2.
Bombay Vaccination Act, 1877
This Act applies to Greater Bombay. Its object is the same as that of the previolls Aet and its provisions are almost the same as that of the previous Aet. Penal provisions are also almost the same. This
16
MEDICAL LA VI! Al\iD ETHICS IN IN DIA
Act also gives the forms of various certificates to be signed by the medical practitioner. .3.
Lepers Bornbay (Amendment) Act, 1955
This is an Act to amend the Indian Lepers Act, 1898 in its appli cation to the State of Maharashtra. Certain provisions enacted by this Act must be deemed to be read into the Indian Lepers Act of 1898 in its application to the State of Maharashtra. Power is given to the State Government to prohibit entry of lepers in notified areas, if it appears to the State Government that large bodies of persons are likely to assemble on account of some pilgrimage, fair or other such occurrence, and the presence of lepers amidst such assembly of persons is likely to cause the spread of leprosy. The Act imposes a duty on every local authority within whose local limits the notified area is situate to set up a segre gation camp for the reception of lepers. Every such segregation camp must be equipped with an adequate supply of water and food and the necessary sanitary arrangements. 4
Bombay Animal Contagious Diseases Control Act, 1948
This is an Act to provide for eradication, prevention and control of disea,<,es affecting animals. The Act provides for the appointment of a VeterinalY Surgeon for such local areas as may be ,<,pecified in it. Similarly, the State Government has power to appoint an Inspector within such areas as it may specify. A Veterinary Surgeon within the area for which he is appointed has all the powers which an Inspector may exercise in addition to his powers as Veterinary Surgeon. In order to achieve the object of the Act, the State Government may declare any area to be an eradication area and thereupon in such area such class of animals as are specified in the Notification are liable to be immunised in the manner described in the Notification and for the purposes of identification must be marked in the prescribed manner. The State Government may also prohibit or regulate the movement of any class or classes of animals into or out 'of or within any local area which is for the time being declared to be an eradication area. The State Govemment may establish quarantine stations for the inspection and detention of animals. All animals inspected or detained are liable to be vaccinated against allY scheduled disease if in the opinion of the officer in charge of such station it is necessary to do so. The Inspector has power under the Act to isolate infectious animals and, in certain cases, to order their destruction.
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5. Bombay Lunacy (Amendment) ActThe Indian Lunacy Act in its application to the State of Maha rashtra has been renewed from time to time. Some minor amendments were first introduced by Act 15 of 1936. Then further amendments were brought in by the Bombay Act No. 1.5 of 1938. The latter Act provides that a relative or a friend of a lunatic detained in asylum, if he is desirous that such lunatic shall be temporarily released and delivered over to his care and custody, may apply for the temporary release of such lunatic and the person in charge of the asylum, unless he considers that such release is undesirable, may release the lunatic for a period not exceeding sixty days.
Section 8 -
DRUGS, POISONS ANn PHARMACISTS
CENTRAL ACTS:
1. Pharmacy Act, 1948 This Act is enacted to make better provision for the regulation of the profession and practice of pharmacy and for the setting up of Phar macy Coun~ils. The Act makes provision for the constitution of the Pharmacy Council of India and also Pharmacy Councils for each State. The Pharmacy Council of India has supervision over the State Councils as also institutions which conduct courses of study for pharmacy. The Central Council is empowered to prescribe the minimum standard of education required for qualification as a pharmacist. Any authority in a State which conducts a course of study for pharmacists has to apply to the Central Council. If the Central Council is satisfied that the course of study is in conformity with its educational regulations, it will declare that course of study to be an approved course of study for the purpose of admission to an approved examination for pharmacists. A qualification granted outside the territories to which the Act extends may also be approved by the Central Council if such qualification affords a sufficient guarantee of the requisite skill and knowledge. This recognition will qualify only citizens of India for registration under this Act. Non-citizens of India, who possess that qualification, will also be entitled to registration under this Act if by the law and practice of the Sfate and country in which such qualifications are granted, persons of Indian origin holding such qualifications are pennitted to enter and practise the profession of pharmacy. A Register of Phannacists has to be prepared and maintained in each State. A person who is not a registered pharmacist cannot, after a date to be notified by the State Government, compound, prepare, mix or dispense a medicine on the prescription of a medical practitioner except under the direct and M.L. 2
.
18
MEDICAL LAW AND ETHICS IN INDIA
personal supervision of a registered pharmacist. 1 This, of course, does not apply to a medical practitioner dispensing medicine for his own patients or with the sanction of the Government for thc patients of another medical practitioner.
2.
Opium Act, 1857
This Act regulates the cultivation of poppy and the manufacture of opium. The Act provides for the appoinhnent of Opium Agents to superintend the provision of opium on behalf of the Central Govern~ ment. No person can engage in the manufacture of opium on his own aceount. The manufacture of opium can only be done by the Central Government through its appointed Agents. For the purpose of eulti~ vation of opium, a machinery for the issuing of licences is provided in this Act. Very severe provisions are made in the Act to see that opium is properly cultivated and proper account of the eultivation is rendered to the Government.
3.
Opium Act, 1878
This Act further amends the relating to opium. . It prohihits the possession, transportation, import, export or sale of opium except as pennitted by this Act. Penalties are provided for doing anyone of the aforesaid acts without complying WitIl this Act.
4.
Poisons Act, 1919
Any substance specified in this Act, or in a Rule or in a Notification issued under this Act will be deemed to be a poison for the purposes of this Act. The State Government is empowered by rules to regulate the possession of any poison, the grant of liccnces for sale of poison, etc. The Central Government may hy notification prohibit, except under a licence, the importation into the State of any specified poison. But nothing in the Act or in any licence granted or nIle made under this Act can affect or interfere with anything done in good faith in the exercise of his profession as such by a medical or veterinary practitioner.
5.
Dangerous Drugs Act, 1930
This Act vests in the Central Government control over certain operations relating to dangerous dmgs and to increase and render unifonn the penalties for offences relating to such operations. This Act was enacted with a view to give effect to certain resolutions passed by the Asse!llbly of the League of Nations and to which India was a party. 1
So far only the State of lJttar Pradesh has brought this provision into effect.
A SURVEY OF THE LAW AND LAW COURTS
19
The object of this Act is to suppress contraband traffic in and abuse of dangerous drugs especially those derived from opium, Indian hemp and coca leaves. The Act is a prohibiting and controlling Act with regard to dangerous drugs.
6. Drugs Act, 1940
...,
This Act regulates the import, manufacture, distribution and salE: of drugs. The Act provides that Chapter 4 thereof will come into effect in a State only from such date as the State Government may by noti Rcation appoint. The State of Bombay has notiRed that Chapter 4 shall come into effect from 1st August, 1958. The Act provides for the con stitution of a Board to be called the Drugs Technical Advisory Board to advise the Central Government and State Governments on technical matters arising out of the administration of the Act and to carry out such other functions as are assigned to it by this Act. In order that a drug may be called a standard quality drug under this Act, it must comply with the standard set out in the Schedule to the Act. Section 10 of the Act prohibits importation of (1) a drug which is not a standard quality drug, (2) any misbranded drug, (3) any drug for the import of which a licence is prescribed and which is imported without or other wise than in accordance with such licence, and (4) any patent or pro prietary medicine, unless there is displayed in the prescribed manner on the label or container thereof the true formula or a list of ingredients contained in it. There is prohibition against manufacture and sale of of certain types of drugs. Inspectors can be appointed by the Central Government to inspect the premises where drugs are manufactured or any place where an Inspector has reason to believe that an offence under this Act has been committed. Every person in charge of a place where a drug is manufactured or kept for sale or distribution shall on being required by an Inspector so to do be legally bound to disclose the place where the drug is being manufactured. The Act provides a penalty for infringement of the provisions of the Act.
7. The Drugs Control Act, 1950 The purpose of this Act is to provide for the c;Q!l~!!'ppjy and distribt;;!iQD of drugs gencral]y. It also provides for the ~ maximum prices and ~axiE!t1~~_<:l'-:lan!iti~~!is:h . may be~eld.s>..!:....~21J i~ respect of anv dr1!,g. \Vhere maximum prices have been fixed and maximum quantities of any drug which may be held or sold are fixecl, no dealer or producer can sen at a price exceeding the maximum price or sell in anyone transaction a quantity of any drug exceeding the maxi mum fixed, nor ca:n he have in his possession at anyone time a quantity
20
MEDICAL LAW AND ETHICS IN Li\DIA
of any drug exceeding the maximum fixed. Without. prejudice to this provision; the Aet states that a person cannot have in his possession at any given time a quantity of any drug in respect of which an order has been published in the Official Gazette larger than the quantity necessary for his reasonable needs. In order to keep proper control in respect of drugs, it is provided that every dealer or producer when selling any drug for cash must, if the amount of the purchase is Rs. 5 or more in all such cases, and if the amount of the purchase is than Rs. 5, on a requ~st being made by the purchaser, give to the purchaser a cash memQrandum containing the particulars of the transaetion. TIle Aet also makes provision for an order in writing being passed if it is necessary or expedient so to do, prohibiting the disposal of any drug except in such circumstances and under such conditions as may be speci fied in the order, or direeting the sale of any drug to any dealer or class of dealers and in such quantities as may be ~~pecificd in the order.
8. Drugs and IHagic Remedies (Objectionable Advertisements) Act, 1954 This Act extends to the whole of India except the State of Jammu and Kashmir and applies also to persons domiciled in the territories to which the Act extends and who are outside the State territories. Tlw Act, subject to its other provisions, prohibits advertisement of drugs suggesting: (a) the procurement of miscarriage in women; (b) the prevention of conception in women; (c) the maintenance or improvement of the capacity of a human being for sexual pleasure; (d) the correction of menstrual disorders in women; (e) the diagnosis, cure, mitigation, treatment or prevention of any venereal disease, and (f) any advertisement whieh directly or indirectly gives a false impression regarding the character of the drug, or makes a false claim for the drug or is otherwise false or misleading in material partieulars. But t he Act does not apply to
(i) any signboard or notice displayed by a registered practitiQner on his prelnises indieating that treatment for any of the diserucs or disorders mentioned above is undertaken in those premises; (ii) any treatise or book dealing with any of the above matters from a bonafide scientifie or social standpoint;
A SURVEY OF THE LAW AND LAW COURTS
21
(iii) any advertisement relating to any drug sent confidentially only to a registered medical practitioner or to a wholesale or retail chemist for distribution amongst registered medical practitioners or to a hospital or a laboratory; or (iv) to any advertisement relating to any drug printed or published by the Government or with the previous sanction of the Government by any other person or to any advertisement, label or set of instructions permitted under the Drugs Act of 1940.
9. Medicinal and Toilet Preparations (Excise Duties) Act,.
1955 Though the main object of the Act is to provide for the levy and collection of duties of excise on medicinal and toilet preparations con taining alcohol, opium, Indian hemp and other narcotic drugs or nar cotics, the Act also enables the Central Government to prohibit persons from engaging in the production or manufacture of any such dutiable goods except in accordance with the terms and conditions of a licence granted under the Act. Al.'TS OF THE STATE OF MAHARASHTRA :
1. Bombay Opium Smoking Act, 1936 The aim of this Act is to prohibit the practice of opium smoking and to prevent the assembling of persons for the purpose of such smoking. It provides penalties for breach of the provisions of the Act, in order effectively to achieve the above aim.
2. Bombay Drugs (Control) ActThis Act provides for the control, in the interest of the general public, of the sale, possession, transport and use of certain drugs. The State Government is empowered by a notification to declare any drug to he a drug to which this Act applies. The State Government is also given the power, if it is satisfied that a drug is used in a manner injurious to health, to specify such drug as a notified drug. The State Government may further declare that from such date as may be· fixed by it, no person can carryon the business of a wholesaler or retailer in any notified drug, except in accordance with the Act and under the conditions of a licence granted under the Act. A dealer, however, may sell any notified drug to a medical practitioner, subject, however, to the maximum, if any, prescribed by the State Government. No medical practitioner can sell any notified drug unless the drug has been obtained by him from a dealer. A licenced retailer cannot supply any notified drug in his possession to any person (not being a medical practitioner) for a purpose
22
rvIEDICAL LAW AND ETHICS IN INDIA
other than a bonafide medicinal purpose and except on a prescription issued by a medical practitioner. A medical practitioner cannot supply any notified dnrg in his possession to any person for a purpose other than a bonafide medicinal purpose and except under a prescription issued by him or another medical practitioner. Prescriptions issued for the purposes shall be maintained in such manner and preserved for such period as may be prescribed. The Act also provides for the regulation of transport of notified dnrgs. The Act provides several penalties for breach of the provisions of the Act, in order to effectively achieve the purposes of the Act.
3.
Bombay Prohibition Act, 1949 The Act in
prohibits the manufacture of liquor, the import, export, transport or possession of liquor, the sale or purchase of liquor, and the consumption and use of liquor. Section 22A, however, permits a medical practitioner to prescribe intoxicating liquor for the purpose of relief from an .ailment. But no registered medical practitioner can prescribe intoxicating liquor unless he believes in good faith, after careful examination of the perSOll for whose use such prescription is sought, that the use of intoxicating liquor by such person is necessary and will afford relief to him from some ailment. A registered medical practitioner must state in evelY prescription for intoxicating liquor issued by him, the name and address of the person to whom it 'is issued, the date of issue, directions for use and the amount and frequency of the dose and shall preserve a copy of the prescription for one year from the date of issue. On the copy so preserved he must state the purpose or illness for which the intoxicating liquor is prescribed. A medical practitioner who prescribes intoxicating liqnor in contravention of the provisions of S. 22-A or fails without a reasonable excuse, to state in the prescriptions the particulars required by that section to be stated therein, or fails to preserve sLIch prescriptions for the period for which they are required by this Section to be preserved, is liable on conviction to be punished with imprisonment for a term to six months or with fine extending to Rs. 1,000 or with both. Section 40-A of the Act provides that the State Government may by rules or orders in writing authorise an officer to a health permit for the use or consumption of foreign liquor to any person who requires such liquor for the preservation or maintenance of his health; provided that no such permit shaH be granted to a minor. Such permit shall be granted for sllch quantity and shall be subject to slIch further conditions as may be prescribed.
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23
Section 40B provides for emergency permits. The State Govern ment may by rules or orders in writing authorise an officer to grant emergency permits for the use or consumption of any kind of liquor to any person for his own use or consumption or to the head of a household for the use of his household for medicinal purposes on emergent occasions. No emergency permit shall be granted to more than one member of a household at anyone time. Under Section 129A a person believed to have consumed an intoxi cant can be subject to medical examination when any Prohibition or Pollce Officer has reasonable grounds for believing that that person has consumed an intoxicant. A medical examination is carried out for the purpose of establishing that the suspected person has consumed an intoxicant and for the procuring of evidence thereof. A Prohibition or Police Officer may produce a suspected person before a registered medi cal practitioner (authorised or specially ordered by the State Govern ment in this behalf) and require the medical practitioner to chemically examine the body of the suspect and to collect his blood to determine the alcohol percentage therein. The registered ~edical practitioner before whom the suspect has been produced must examine him and collect and forward in the manner prescribed his blood and furnish to the officer by whom he has been produced a certificate in the prescribed form containing the result of the examination. The Chemical Examiner or the Assistant Chemical Examiner to Government must certify the result of the test of the blood forwarded to him, stating the percentage of alcohol and such other particulars as may be necessary or relevant. The examination of a female must be carried" out by a female registered medical practitioner. The blood of a female must be collected by or • under the snpervision of a female registered medical practitioner. Part II GENEHAL STATUTE LAW In this part a general idea is given about several Central Statutes and Statutes of the State of .lvlaharashtra which may also be usefully noted by persons engaged ill medicine and in allied subjects. All these Acts are of general application. CE~TRAL
1.
ACTS;
Indian Coroner's Act,
This Act provides that where a Coroner has reason to believe that /' the death of any person has been caused by accident, homicide, suicide
I
24
MEDICAL LAVir AND ETHICS IN INDIA
or suddenly by means unknown, or that any person being a prisoner haS) died in prison, and his body is lying within the place for which the Coroner is appointed, the Coroner must enquire into the cause of death. 'The Coroner may direct the perlonnance of a post-mortem examination with or without an analysis of the contents of the stomach or intestine by his surgeon or by a duly qualified registered medical practitioner invited to attend the inquest. Every medical witness other than the fI Chemic,il Examiner to Government and the Coroner's surgeon is entitled to such reasonable remuneration as the Coroner thinks fit. Any report' of a Chemical Examiner upon a matter or thing submitted to him in the course of any proceedings under this Act may be used as evidence in any inquest under this Act and in any subsequent enquiry, trial or other proceedings under the Code of Criminal Procedure. The Coroner has to hold an enquiry in the presence of a jury. \iVhen the witnesses have been examined, the Coroner must sum up the evidence to the jUly and the jury shall then consider their verdict. "Vhen the verdict is deli vered, the Coroner must ~he inquisition accord2~~l!di~ 9~ or, when the jUly is not unanimous, according to the opinion of the majority. All that the Coroner has to t:,ecord in his inu!:!:est~ 'Y!.!ere, when__ and by Wh~~l-ill!. the~ceased ca~2s death, and if his death was occasioned by the criminal act of another, who is guilty thereof. He has, however, no power to give pu_nishment. If, according to the jury, the death was occasioned by an act amounting to an offence under any la,'.', the Coroner must forthwith fonvard a copy of his inquest to the Commissioner of Policc.
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2.
Indian Contract Act, 1872
It is worth remembering that a"--,, contract can be legally enforced ' .. .. -.,only ... in law if it contains what is known as consideration. ConsTaeratlon is ~which a pers~;does or abstai~-; doi~~ desire of another. No contract without consideration can be enforced in law, unless it is an agreement in writing and registered and made out of natural love and affection, or it is a promise to do something for another who has already voluntarily done something for the promisee or it is a promise in writing to pay a time-barred debt signed by the promisee or by his specially authorised agent. Another provision of the C ol1tract Act whicb may be noted by medical men is Section 27 thereof. It is necessalY to remember this provision when a dispensary or a surgery or a nursing home is to be sold along with the g{)odwill. An agreement by which ~ anybody is restrained from canying on or exercising a lawful profession, ~ trade or business of any kind to that extent, void. The only exception is the restraint imposed on one who sells the goodwill of a business. ~-~----
~.' .---.~-
A SURVEY OF THE LAW AND LAW COURTS
25
Here again, the restriction can only be confined to a promise not to carry on business within specified local limits and not generally, and this resh-aint can be enforced only as long as the buyer or any person deriving title to the goodwill from the buyer carries on a like business_ Courts are given the power to examine whether the restrictions imposed at the time of the sale of the goodwill of a business are reasonable, regard being had to the nature of the business. It may also be useful to consider the legal meaning of an agent. ~<\n ~g:~~1~.2~~_..person employed to do an act fQLanoth~_~_JQ_J.~Qr§~~n! aI!g.~0er in dealing \\Tith.~hi.!~arties. No consideration, it may be remembered, is necessary to create a contract of agency unlike other contracts.
3.
Indian Penal Code, 1860
It is the p,rincipal law dealing with punishment of crimes. It~ the various kinds of crime. Doctors are often called upon ti) give evidence as to the nature of -an injury; again doctors themselves might be charged with having caused injury. Therefore, it is necessary to note certain relevant provisions of the Indian Penal Code relating to physical i~ies. j/Section ~ .Nothing, which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith) and who has given cQ.1llent, whether express or implied, to suffer that harm, or to take th~ risk of that harm. Ilustration: A, a surgeon, knowing that a particular operation is likely to cause the death of Z, but not intending to cause Z's death, and intending in good faith Z's benefit, performs that operation on Z, with Z's consent. A commits no offence. It is obvious that this provision of the Penal Code affords very necessary protection to the medical fraternity and is well worth remembering. So is the similar provision that follows. '.../ Section@ Nothing which is c!Q!,l~ in good faith. for the benefit of a person ~nder twely.~ of age, or of unsound mind, by or by consent, either express or implied, of the guardian or other person having la"rful charge of that person, is an offence by reason of ~DY harm which it may callse,· or be iI1tended.by the doer to cause or~e known by the doer to be likely to cause to that person: ProvidedFirst: That this exception shall not extend to the intentional causing of death, or to the attempting to cause death; <.
d~es
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26
MEDICAL LAW· AND ETHICS IN INDIA
Secondly: That this exception shall not extend to the doing uf anything which the person doing it ~~!!QJY~ ..tQJ:l.9.JL~~Jx.~Q.s:?!!se death, for anUll!l?g~~Ul!h~!.!J:,a,Q.~l~.~~p_~Y.~~!i!lJLgL
*"
T~~c:!~~n.:!..entiQ!led, i~ill be noted, do~Il()L.'?an~~99 ,merc -killing or euthanasia. The two principle points to be remem bered are that t~e must be absenc~of an~i~nto_~d _ce>.~~t should have been obtained from the person concerned. ~-----.' ..-';,-.~----...~-.. ~ ",,1)ecUon@): A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of ~lj~y, or under a I!!!:~lrtiili} of f'let, and if the person doing the act knows, or has reason to believe, that the consent was given in conse quence of that to which he gives his consent; or if the consent is given by a person who, from unsoundness of mind,,' or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or unless the contrary appears from the context, if the consent is givenl by a person who is under twelve years of age. ~
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to a~~~~L~~;;;:!~~~~,~~e~;l:::r~~; ~~!18~~~:hn~l:e;~::~I'
cause, or be intended to cause, or be known to be likely to cause, to the person giving the consent, or on whose behalf the consent is given. Illustration: Causing miscarriage (unless caused in good faith for the purpose of saving the life of the woman) is an offence independently of any harm which it may cause or be intended to cause to the woman. Therefore, the consent of the woman or of her guardian to the causing of miscarriage does not justify the act. (NOl/: The subject of miscarriage and other like topics will be dealt \vith in detail in a separate Chapter hereafter.)
~
Section@: ~~s m:t. o£!en£Y by reason of any harm \vhiuh it may cause to a person for whose benefit it •.is -done in good faith, even .---. -,..-".... without that person's_9...011senLj£_tb.e ~I1l?!anc~~~re such that it is impossible for that person to signify conse;lt, ~~-if that'p~;:~~~l is incap able of giving consent, and has no guardian or other person in lawful
-
.
.
~.
~
A SURVEY OF THE LAW AND LAW COURTS
27
charge of him from whom it is possible to obtain consent in time for the thing to be done with benefit: Provided: First: That this exception ~~~all11ot extend to the inten~i9.n~a.~I.. ~._.__ i,QK.QLclf~~th, or the attempting to cause death; Secondly: That this exception shall not extend to the ~ which the person doing it knows to be likely to cause death, for any purpose other than the preventing .2!sl~i!tlL9I.gti~ous hurt, J¥ or the curing of any grievous disease or infinnity; Thirdly: That this exception ~:@JL~nQt. exten_d to the~y'qLl!~~~!I s.ausing of hurt, or to the attempting to cause hurt, for any purpose other than the preventing of death or hurt; Fourthly: That this exception not extend to the of any offence, to the committing of which offence it would not extend. Illustration: A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation be immediately performed. There is not time to apply to the child's guardian. A performs the operation in spite of the entreaties of the child intending, in good faith, the child's benefit. A has committed no offence. This section sanctions prr1PT'CfP'nf' taken by a medical man on his own initiative, Section@ No communication in.g-o.()~;iaith is an offence by reason of any hann to person to whom it is made, if it is made for q the benefit of that person. Illustration: A, a surgeon, in good faith, communicates to a patient his opinion that he cannot live. The patient dies in consequence of the shock. A has committed no offence, though he knew it to be likely that the communication might cause the patient's death. There are other provisions of the Code which deal with causing miscarriage and injuries to unborn children. These are Sections 312, and 315 which are as under Section(3i2'j Whoever v.9l!.mtarily causes J!._YN.I!!
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28
.MEDICAL LAW AND ETHICS IN INDIA
for life, or with imE!iso.l!!E,~!lL of either description for a term which may extend to!~Il and shall also be liable to fIne. Section(ffi]) Whoever, with intent to cause the miscarriage of a woman witl~d,does any act whieh causes the deill:tLQLslleh~o.!Dan shall be punished with imprisonment of either description for a term which may extend to ~!l~years, and shall also be liable to fIne; and if the act is done without the consept of the woman shall be punished either w!.t!LLUUlJE,0nroerLW life, or with the punishment above mentioned. Section@;: Whoevel~J?lrtlt,,QLe!D;; child does any act 'With the iQ.Jtltlti2!LQ[ tJ:t~r~QXkIlIE{YJmt(ng,that.~child from being born alive or causing it to gi~.?nf;L.lt§>~hirth,~d does by such act prevent that child froI!!J?~elEKJ1QnL.'!;!!Y"S~~U~!!:~~~.jtJQ.9i~ after its birth, shall, if such act, be not caused iIl..g29§J.!~~hJ£~ ..!h~.J?grPQ~e of saving the life. of the m()ther, bep!-lnis.h~Q"Yitllj£Ilprisonment of either description for a term which may extend to t~JL years, or with fIne, or with both. There are certain Statutes relating to labour and social insurance which contain provisions for medical examination and certifIcates to be issued by a medical man. They are:
4.
Workmen's Compensation Act, 1923
This Act provides for the .I2~ym~~.~§!>esQLQ.f!1J?l.Qj'~.~ their workmen, oL compen~ for injurY £
.......---~~~'"
~~~".1
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~.~
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A SURVEY OF THE LAW AND LAW COURTS
29
does or does not suffer from some occupational disease, a list whereof is given in the Third S,chedule to the Act~
5.
Mines Maternity Benefit Act, 1941
This Act provides that where a woman employed in a mine gives notice that she expects to be delivered of a child within the period prescribed in the Act, from the date of such notice, the Manager must permit her, if she so desires, to a~"entherself froTw2It~ptg the date of her delivery~ Such absence is to be !!:9.
6.
Employees' State Insurance Act, 1948
This Act provides for certain benefits· to employees in cases of sickn~r!l~!:r.BttY.<1nd eI~ploYr:fl.<:;nt injury, etc. This Act contemplates the constitution of a Medical Benefit Council. The Medical Benefit Council has to advise the Employees Insurance Corporation and the Standing Committee set up under the Act, on mattcrs relating to the administration of medical benefit, certification for purposes of the gnint of benefit and other connected matters. The Council also has powers and duties of investigation in relation to complaints against medical practitioners in connection with medical treatment and attendance, with reference to the duties under this Act. Under this Act, all employees il1 certain f~tories .0' establishments ~!Dpulsorilv ~ in the manner provided in the Act. The insured persons and their dependents are entitled certaiq mOl1et~ry benefits during the period of illness, confinement or d!sablement as the case may be and also to medical treatment!J.I19a,ttend;;tnce. In order to be entitled to monetary payment, certificates are required to be obtained from medical practitioners. All medical examinations and tn:atment must be carried out by duly appointed medical practitioners.
I
7.
Plantations Labour Act, 1951
A child who has not completed his twelfth year cannot be allowed to w~-rkin-any~pIa-;;tati~~FUlther, a young person who has compl;h:d his twelfth year but who has not completed his (~t~th vear \",ill be allowed to work in any plantation only if a.certificate of fjtne~ is granted to him by a certifying surgeon. The Act makes provision for the appointrnent of a qualified medical practitioner to be a certifying
30
MEDICAL LAW AND ETHICS IN INDIA
surgeon. A certifying surgeon on an application made to him must examine such pcrson and ascertain his fitness for work either as a child or as an adolescent. 4. cert~te of fitnes~JLE~ valid for a ~ 5~~ monthsJrom the date thereof, but may be renewed. Certifying surgeons are also required under the Act to discharge duties in connec tion with the examination and certification of workers generally.
8.
Births, Deaths and Marriages Registration Act, 1886
Among persons who are authorised to give notice of births aTe medical practitioners in attendance having personal knowledge of the birth having occurred. Similarly, a medical practitioner attending during the last illness of the deceased may also give notice of his death.
9.
,,' ?
,
\ \(i !).
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./ .y:. ~
Jf
£J":)
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Indian Factories Act No. 63 of 1948
This Act contemplates the appointment of qualified medical practitioners to be certifying surgeons. Certifying surgeons have the following The examination and certification of young persons under this Act, examination of persons engaged in factories, carrying out of medical supervision in factories where it is reasonable to believe that (a) cases of illness have occurred due to the nature of the manufacturing process carried on or other conditions of work prevailing therein; or (b) that young persons are or are about to be employed in any work which is likely to cause injury to their health. A-~--~~ child who has- not completed his fourteenth vear cannot be - -~-"-~~~..-.-~ aHQwedJ:
A SURVEY OF THE LAW AND LAW COURTS
31
ACTS OF THE STATE OF 1vIAHARASHTRA :
1.
City of Bombay Municipal Act 1888
This Act applies to Greater Bombay. The relevant provisions to be noted are: Section 3 (aa) defines dangerous disease as meaning cholera and any endemic, epidemic or other infectious disease by which the life of man is endangered. Section 61(ff) inter alia says that it shall be incumbent 011 the Corporation to make adequate provision by any means or measures which it is lawfully competent to them to use or take for public vacci nation in accordance with the provisions of the Bombay Vaccination Act, 1877. Section 61(gg) provides for the establishment and maintenance of public hospitals and dispensaries and for the carrying out of other measures necessary for public medical relief. Section 421 provides that every medical practitioner who treats or "becomes cognizant of the existence of any dangerous disease or any case of continuous pyrexia of unknown origin of more than four days duration in any private or public dwelling other than a public hospital, must give information of the same with the least practicable delay to the Executive Health Officer. Various other provisions are mentioned in the Act for the prevention and spread of dangerous diseases, such as disinfection of buildings, prohibition of the use for drinking of water likely to causc dangerous diseases, inspection of places for the purpose of preventing the sprcad of dangerous diseases, as also the destruction of huts and sheds when ever necessary. Further, infected buildings may be prohibited from being ·let without being first disinfected. Section 450 requires a medical practitioner who attended to a deceased person in his last illness to certify the cause of his death. The celtificate must be given in the form of Schedule P. (See Chapter IX dealing with medical celtificates and reports.)
2.
Bombay District Municipal Act 1901
This Act also makes provisions with regard to dangerous diseases similar to those contained in the City of Bombay Municipal Act (and which are indicated above).
3.
Bombay Municipal Boroughs Act 1925
This Act also has similar provisions with regard to dangerous diseases. This Act extends to certain cities of the State of Maharashtra excluding Greater Bombay.
32
4.
MEDICAL LAW AND ETHICS IN INDIA
The Bombay Coroners Act 1871-,
The object of this Act and, substantially, the provisions of this Act are the same as those of the Central Coroners Act, which has been refea-ed to above. This Act has application only to the area covered by Greater Bombay.
5.
Bombay Rent Act-
It prohibits assignment of tenancy. However, it is permissible t~ transfer tenancy as part of the goodwill of a business. It has been held by the Bombay High Court in P. F. Mogrelia v. Province of Bombayl that the business of a general medical practitioner running a dispensary is a business with a goodwill and, therefore, the premises where the dispensary is conducted can be transferred as part of the goodwill of the business of the general medical practitioner.
6.
Bombay Sales Tax Act, 1959
Under this Act, sales tax has to be paid by a dealer. A dealer is a person who, whether for commission, remuneration or otherwise carries on the business of buying or selling goods in the State of Maha rashtra. A doctor who sells mixtures or patent medicines supplied loose according to his own prescriptions cannot be said to be a person who carries on the business of selling goods. If, however, a medical practi tioner stores in his own dispensary a stock of patent medicines ~ind sells patent medicines in packed containers, .it would be said that he is engaged in selling goods. It would be irrelevant whether he sold the same to his patients or outsiders. Further, a doctor would be said to be engaged in selling goods if he sold to persons other than his patient'> patent medicines in small quantities after opening the containers.
Part III COMMON LAW AND LAW OF TORTS
I Besides the law as laid down by State legislatures or Parliament, known as codified law or statute law, there is a body of judge-made law. The Law of Torts, for instance, is a body of 1<1\V created by Courts of L8w. This law is derived from the English law of torts. The word 'tort' is derived from the French word 'tort' meaning 'harm' or 'injury'. There caused by one man to another or to are certain ".-rongs or 1
Judgment of Tendolkar J. dated 24th February 1949 in Bombay High Court a.O.C.L Se:it No. 2H1 of 1948.
'I
I
A SURVEY OF THE LAW AND LAW COURTS
33
another's property, which are not covered by the law of contract or by the criminal law or by any other specific statute law. The law does not allow such wrongs to be without remedy., On this principle, the courts of England, centuries ago, evolved various principles under which, for wrongs which were neither contractual nor criminal, the courts gave proper remedies. Thi~_~~v aSI?ro~ounc~:~<:!__b): judges in England_E. kno'h'11 as the Common Law. The Law of Torts is a part of the Common -----~--'"'==..-~--~Law of England and, as in large measure the English Common Law is still applied in India, Indian COlll}:S- -~y:~m after~d~J2eI!'Jence_J!I?~ auth_()!il..£i~tQ~1!P~the principles of the English law of torts as~_t!~ex ~""-==-=~~
-~
~
wer~_ flEP)ie~})ef()re independeIl~~.
Now, it may be asked, ~hatis the authority for the application of the Common Law of England in India after independence? The Consti tution of India, by ~rt~cle 37~ has specifically provided that all the laws in force in this country immediately before the commencement of the Constitution shall continue in force until altered or repealed or amended. The Supreme Court of India in Director of Rationing and Distribution v. The Corporation of Calcutta1 has held that the expression "law in force" in Article 372 of the Constitution has been used in a very comprehensive sense and that it must be interpreted as including the Common Law of England which was adopted as the law of this country before the Constitution came into force. A very large number of English plincipies of the law of torts were followed and applied in India before the commencement of the Constitution and by virtue of Art. 372 of the Constihltion of India they continue to have the force of law in our country. .~~~~~.2. iL~Eenerally believed that the .!Jentral Qr .. Stott!=: .G~9E!l~ment could not_ be sued in tort. -:r:~e!~f~E<::,~.,::~!ions ~~gains~_ GovernrnenLJor wrongs (tort~.Lc0I!lmitte~ by their·___servants. usually faged and the 2,ubject was without remedy. It has now been held by the Supreme Court in State of Rai~'than v. Vidyal4d!:!£i:'2 that Statel Govern~1Cnts as well the Central ~o~ernm~nt. ~an be held liable for' the tortIOUS acts of thClr servants. ThIS IS of slgmficance where Govem~ ment-owned or Gov\?mment-nm hospitals and dispensaries are concerned.
a:
Only some aspects of the law of torts are of relevance to the medi cal and allied professions. Negligence is th~ost important )~(;19~Qf the law of torts which requir~ the attention of the medical men. If a doctor is negligent in the discharge of his duties he may be sued for damages by his patient. (1961) VoL 1, S,C.]. 406, 411. A,LR.. S,c. 933. M.L. 3 1
n
tvIEDlCAL LAW AND ETHICS IN INDIA
Part IV i
COURTS AND THEIR PROCEDURE Courts may be broadly classified as civil and criminal. There is a Civil Procedure Code regulating the procedure of eivil courts and a Criminal Procedure Code regulating the procedure of criminal courts. There are also certain other common rules such as the rules of evidence contained in the Indian Evidence Act. There is also an Act known as the Indian which lays down the time limit within which ---~-=-'"''''-------~----Criminal time after the commission .-.-.- ... There are, however, some statutes which limit the period within which particular offenders may be prosecuted, As regards the law of limitation touching civil actions, two provisions need to be mentioned, viz., Article 36 and Article of the Indian Limitation Act. If a suit is to be £led exp.f!~:;;s or implied, either by the dogtor or by the .patit2l'!!, it done \yiJhin from oiQ.:ri:7.fl<::.h~ If an action is to be £led on the basis of tortious wrong, i,e'1 for breach of duty imposed by the general la\\', viz., the law of torts,:/ the action can onlv be filed within two veal'S from the of thct breach, Actions filed beyond the period of limitation will not be enter-' tained by courts of law. There are in the City of Bombay three kinds of Civil Courts. The Court of lowest pecuniary jurisdiction is called THE COURT OF CAUSES where claim/~. upto Rs. 3,000/- can be filed, Next comes CITY CIVIL AND SESSIONS COURT at Bombay where Rs. 2.5,000/- can be filed. Claims upward of Rs. 25,000/ .. ... onl.L !rL.1he HIGH ~OURT_ of Bombay on its Original Side. Court of Bombay is divided into two parts, the Original Side and the Appellate Side. On the Oliginal Side, as stated above, claims upwclrds of Rs. 25,090/- can be f1led. It has also original jurisdiction in certain other matters. The criminal courts consist of MAGISTRATES' COURTS and SESSIONS COUHTS. Ordinadly, criminal complaints and prosecutions are heard by Magistrates. But prosecutions involving certain grave offences are referred for trial by rvfagistratcs to the Sessions Court. Since 1961 in the of rv!;.tlg.~.asl~!!.[Uhe.2ysteill of..~trial b1:11!DijE~.£!i!~!n~ll~~~li.!~·~~ Matters in appeal or in revisi~:m. in criminal matters are on the Apellate Side of the High Court of Bombay. In certain matters appeals can be preferred from the the High Court to the COURT, which is the final court in India. The law as laid down by the Supreme COUlt is binding on all courts in ~~
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A SURVEY OF THE LAW AND LAW COURTS
35
India. It may be mentioned that there is another court called CORONER'S COURT. The Coroner presides over this court. He has no power to give any binding judgment or decision. The duties of the Coroner are chiefly limited to holding inquests in certain cases specified in the,Coroner's Act -.~-~.over a dead body lying within his jurisdiction a~_~_!~)W, _when and \t,r!~ere_.~[l~~!,~=~31t~~~1~~11~_deceased
or her death.
Part V A LIST OF STATUTES OF DIFFERENT STATES
As it is not possible to comment upon the statutes passed by States in India, other than the State of Maharashtra, this up-to-date compre hensive list has been given so that a medical practitioner or a lawyer who is interested in a local aspect of a matter pertaining to the medical profession, drugs, poisons and public health, may find it easy to to the relevant statute in force in the particular area. (1) Acts relating to Medical Pro£ession ANDHRA PRADESH:
H~/derabad
Ivledical Act, 1312 (Hyd. 1 of 1312).
Hyderabad 'Medical Registration Act, 1348 (Hyd. 1 of 1348).
'Aladras Medical Registration Act, 1914 (Mad. 4 of 1914).
Madras NUTses and ?l1idwives Act, 1926 (:t\1ad. 3 of 1926).
Indian Medical Degrees (Madras Amendment) Act, 1940
(Mad. 20 of 1940). Iv1adras L4natomy Act, 19.51 (Mad. 18 of 1951). Hyderabad Nurses, Midwives and Health Visitors Registration Act, 1951 (Hyd. 19 of 1951). Hyderabad Pathology and Anatomy Act, (Hyd. 10 of 19.55). lindhm Ayurvedic and Homoeopathic 'Aiedical Practitioners Registration L4cl, 1956 (Andhra 26 of 1956). ASSAM:
Assam Medical Act, 1916 (Assam 1 of 1916).
Assam Nurses', Midwives' and Health Visitors' Registration
1944 (Assam 2 of 1944). Indian Medical Degrees (llssam Alnendment) Ac't, 19"18 (Assam 16 of 1948). Assam Kala-Azar Treatme1lt Act, 1949 (Assam 10 of 1949), BIHAR:
Bihar and Orissa "Medical Act, 19H; (B. & O. 2 of 1916). Bihar (jnd Orissa Nurses Registration Act, (B. & O. 1 of 19.')5)'
Indian 'Medical Degrees (Bihal' Amendment) i\,ct, 191.9 (Bihar 20 of 1919),
1
:36
MEDICAL LAW AND ETHICS IN INDIA
Bihar Development of Ayurvedic and Unani Systems of Medicine Act, 1.951 (Bihar 31 of 1951). Bihar Development of Homoeopathic Systems of Medicine Act, 1953 (Bihar 24 of 1953). Pharmacy (Bihar Validating) Act, 1959 (Bihar 8 of 1959). KERALA:
Medical Registration Act, 1914 (Mad. 9 of 1914).
Nurses and Midwives Act, 1926 (Mad. 3 of 1926).
Medical Practitioners Act, 1953 (T.C. 9 of 1953).
Nurses and Midwives Act, 1953 (T.c. 10 of 1953).
Anatomy Act, 1957 (Kerala 17 of 1957).
MADHYA PRADESH:
Central Provinces Medical Registration Act, 1916 (C.P. 1 of 1916).
Bhopal State Medical Practitioners' Registration Act, 1935 (Bhopal 7 of 1935). Centml Provinces Nurses Registmtion Act, 1936 (C.P. 23 of 1936).
Madhya Pradesh Regulation of Couching Act, 1944 (C.P. & B. 2 of 1944). Central Provinces and Berar Ayurvedic and Un([ni Practitionel's Act, 1948 (C.P. & B. 4 of 1948). Madhya Pmdesh Homoeopathic and Biochemic Practitionel's Act, 1951 (M.P. 26 of 1951). Ra;asthan Medical Act, 1952 (.~LP. 13 of 1952). Jl.ladhya Bharat Indian Medicines Act, 1952 (M.B. 28 of 1952). Madhya Bharat Dais Registration Act, 1953 (M.B. 22 of 1953) Madhya Bhamt Medical Pmctitioners Registration Act, 1954 (M.B. 16 of 1954).
Madhya Pmdesh Anatomy Act, 1954 (M.P. 16 of 1954.)
Madhya Bharat Nursing Homes Registmtion Act, 1954
(M.B. 28 of 19.34). Madhya Bhamt Nurses, I'llidwives anel Health Visitors Regis tration Act, 1.955 (M.B. 2 of 1955). MADRAS:
Madms Medical Registration Act, 1914 (Mad. 4 of 1914). Madras Nurses and Midwives Act, 1926 (Mad. 3 of 1926). Madras Anatomy Act, 1951 (Mad. 18 of 1951). Madras Registration of Practitioners of Integrated Medicine Act, 1956 (Mad. 27 of 1956). Madras Registration of Veterinary Practitioners Act, 1957 (Mad. 21 of 1957). l\fYSOHE:
Medical Registration Act, J,'348 (Hyd. 1 of 1348). Medical Act, 1912 (Born. 6 of 1912). Medical Registration Act, 1914 (!\lacl. 4 of 1914),
A SURVEY OF THE LA\V AND LAW COURTS
Nurses and Midwives Act, 1926 (Mad. 3 of 1926).
Medical Registration Act> 1981 (Mysore 5 of 1931).
Medical Practitioners Act, 1988 (Born. of 1938).
Medical Degrees (Madras Amendment) Act, 1940
(Mad. 20 of 1940). Tuberculosis Sanatoria (Registration of Buildings) Act, 1947 (Mad. 16 of 19<17). _Board of Indian System of Medicines (Extension of Terms) Act, 1947 (Born. 44 of 19-17). Medical Degrees (Coorg Amendment) Act, 1.949 (Coorg 4 of 1949). Nursing Homes Registration Act, 1949 (Born. 15 of 1949).
Nurses, Alidwives and Health Visitors (Registration) Act, 19.51
(Hyd. 19 of 1951).
Homoeopathic Act, 1.951 (Born. 48 of 1951).
Veterinary Practitioners Act, 1958 (Born. 68 of 1953).
Nursing Homes Registration Act, 1949 (Born. 15 of 1949).
Nurses, Midwives and Health Visit01'S Act, 1954
(Born. 14 of 1954), Medical Practitioners (Amendment) Act, 1956 (Born. 34 of 1956).
Anatomy Act, 1957 CMysore 23 of 19,57).
OlUSSA:
Orissa Nurses and Midt.vives Registration Act, 1988 (Orissa 7 of 1938).
Orissa Homoeopathic Act, 1957 (Orissa 8 of 1957).
PUNJAB:
Puniah Medical Registration Act, 1916 (Pun. 12 of 1916).
Punjab Nurses Registration. Act, 1982 (Pun. 1 of 1932).
East Punjab Ayurvedic and Unani Practitioners Act, 1949
(E.P. 14 of 1949). RAJASTHAN;
Bombay Medical 1912 (Born. 6 of 1912).
Bombay Medical Practitioners Act, 1988 (Bam. 26 of 1938).
Board of Indian Systems of 'Medicines (Extension of Term) Act,
1947 (Born. 14 of 1947).
Indian Medical Degrees (Madms Amendment) Act, 194:0 as
pennanently re-enacted by Madras Act 7 of 1948
(20 of 1940).
Bombay Anatomy Act, 1949 (Bam. 11 of 1949).
Bombay Nursing Homes Registration Act, 1949
(Born. 15 of 1949).
Bombay H01noeo-pathic Act, 1951 (Born. 48 of 1951).
Ratasthall Medical Act, 1952 (Raj. 13 of 19,'52). -
Rajasthan Indian r.ledicine Act, 1958 (Raj. 5 of 195:3).
Madhya Bharat Dais Registration Act, 1958 (M.B. 22 of 1953).
Bombay Veterinary Practitioners Act, 1958 (Born. 68 of 1953).
Bombay Nurses, Midtvit;es and Health Visitors
(Born. 14 of 1954).
37
38
MEDICAL LAW AND ETHICS IN INDIA
Madhya Bharat Medical Practitioners Registration Act, 1954 (M.B. 16 of 1954). IvIadhya Bhamt Pathology and Anato1ny Act, 1.954 (M.B. 17 of 1954). Madhya Bharat Nursing Homes Registration Act, 1954 (M.B. 28 of 19;34). Madhya Bharat Nurses, Midwives and Health Visitors Registra tion Act, 1955 (M.B. 2 of 1955). UITAR PRADESH:
lIfedical Act, 1917 (3 of 1917). Nurses, Midwives, Assistant "tIJidwives and Health VisitMs Registmtion Act, 1934 (15 of 1934). Indian Medicine Act, 193.9 (U.P. 10 of 1939). Pwvincialization of Hospitals Act, 1947 (8 of 1947). Homeopathic Medicines Act, 1.952 (8 of 19.52). Anatomy Act, 1957 (U.P. 6 of 19.57). WEST BENGAL
Bengal Medical Act, 1914 (Ben. 6 of 1914).
Bengal Nurses Act, 1.934 (Ben. lO of 1934).
West Bengal Dental Board Act, 1950 (W.B. 43 of 1950).
West Bengal Dentists (Repealing) Act, 1951 (W.B. 13 of 19,51).
Dentists (\;{1 est Bengal Amendment) Act, 19.59 (W.B. 26 of 1959).
JA1fMU AND KASHMIR :
Jammu and Kashmir Medical Registration Act, 1998 ('1 of 1998).
Jammu and Kashmir Pharmacy Act, (,53 of 2011).
Nurses' Afidwives' alld Health Visitors' Registration Act,
(T. & K. 41 of 19,56). Dentists Act (J. & K. 9 of 1958). Jammu and Kashmir Anatomy Act, 1959 G. & K. 22 of 1959). Jam1lw and Kashmir AyurQedic Gnd Unani Practitioners Act, 1959 (J. & K. 26 of 1959).
(2)
Acts Relating to Drugs and PoisonsANDHRA PRADESH
Hyderabad Intoxicating Drugs Act, 1883 (Hyd. 4 of 1-'333). Opium and Dangerous Drugs (Madras Amendment) Act, L947 CMad. :34 of 1947). Madras Drugs (Cont1'01) Act,l.949 (Mad. 30 of 1949). Dangerous Drugs (AJadras llmendment) .4ct, 1950 (Madras 16 of 1950). Opium (Machas Amendment) Act, 1951 (~1ad ..32 of 1951). ASSA1>I :
Assam Assam Assam Assam
Opium Smoking AcL 1927 (Assam :3 of 1927). Opiu.m (Amendment) Act, 198.3 (Assam 1 of 1933). Opium Pmhibition Act, 1947 (Assam of 1947). Drugs (Control) Act, 1.951 (Assam 1 of 19,')1).
A SURVEY OF THE LAvV AND LAW COURTS
Assam Opium Amendment (Autonomous Districts) Act, 1954 (Assam 38 of 1954). Assam Homoeopathic Medicine Act, 1955 (Assam 11 of 1955). BIHAB:
Bihar and Orissa Opium Smoking Act, 1928 (B. & O. Act 2 of 1928). KERALA:
Opium Act, 1076 (Cochin 8 of 1076).
Opium Act, 1090 (Travancore 4 of 1090).
Poisons Act, 1111 (Cochin 30 of 1111).
Poisons Act, 1118 (Travancore 11 of 1118).
Drugs Control Act, 1949 (Mad. 30 of 1949).
Drugs Control Act, 19.50 (T.e. 23 of 1950).
MADHYA PRADESH:
Madhya Pradesh Opium Smoking Act, 1.92,9 (C.P. 4 of 1929). A1aclhya Pradesh Drugs (Control) Act, 1949 (C.P. & B. 47 of 1949). MADRAS:
JMadras Drugs (Control) Act, 1949 (Mad. 30 of 1949). :MYSORE:
Poisolls Act, 1322 (Hyd. 4 of 1322).
Poisons Act, 1910 (~'[ysore 5 of 1910).
Opium Smokinr!. Act, 1936 (Born. 20 of 1936).
Opium. and Dangerous Drugs (Madras Amendment) Act, 1947
(Mad. 34 of 1947). Drugs (Control) Act, 1949 (Mad. 30 of 1949). Drugs (Control) Act, 1950 (Mysore 6 of 1950). Dangerolls Drugs (Madras Amendment) Act, 1950 (I\Iad. 16 of 1950). Opium (Madras Amendment) Act, 1951 (Mad. 32 of 1951). Drugs (Control) Act, 1952 (Born. ;39 of 1952) .. ORISSA:
Opium Smoking Act, 1947 (Orissa 16 of 1947). Orissa Dmgs Control Act, 1950 (Orissa 5 of 1950). PUNJAB:
Punjab Opium Smoking Act, 1948 (E.P. 1948). Punjab Drugs (Control) Act, 1949 (E.P. 30 of 1949). RAJASTHAX:
Hajasthan Drugs (Control) Ordinance, 1949 (Raj ..31 of 1949). Rajasthan Opium Smoking Prohibition, Act, 1950 (Raj. 7 of 19.30).
39
40
MEDICAL LAW AND ETHICS IN INDIA
Opiurn (Madhya Bharat Alnendment) Act, 1955 (M. B. 15 of J 955). UTTAR PR,\DESH
Excise Act, 1910 (U.P. 4 of 1910).
Opium Smoking Act, 1934 (U.P. 3 of 1934).
Drugs (Control) Act, 1950 (U.P. 14 of 1950).
Drugs Control (Continuance of Powers) (Amendment) Act, 1953
(U.P. 4 of 1953). WEST BENGAL
Bengal Opium Smoking Act, 1932 (Ben. 10 of 1932).
'Vest Bengal Drugs (Control) Act, 1950 (VV. B. 36 of 1950).
JAMMU AND KASHMIR :
Poisons Act (34 of 1977).
Jammu and Kashmir Drugs Act (20 of 2000).
Drugs Control Ordinance (6 of 2006).
Jammu and Kashmir Opium Smoking Act, 2011 (37 of 2011).
(3)
Acts Relating to Public HealthANDHRA PRADESH
Madras Rivers Conservancy Act, 1884 (Mad. 6 of 1884).
Madras Toum Planning Act, 1920 (Mad. 7 of 1920).
Prisons and Indian Lunacy (Madras Amendment) Act, 1938
(Mad. 14 of 1938). . Indian Lunacy (Madras Amendment) Act, 1938 (Mad. 15 of 1938). . Madras Public Health Act, 1939 (Mad. 3 of 1939). Aladras Tuberculosis Sanatoria Regulation of Buildings Act, 1947 (Mad. 16 of J947). Hyderabad Infectious Diseases Act, 1950 (Hyd. 12· of 1960). Hyderabad Vaccination Act, 1951 (Hyd. 24 of 1951). Hyderabad I,eprosy Act, 1954 (Hyd. 4 of 1954). Hyderabad City 'Vater Supply Act, 1954 (Hyderabad 30 of 1954). Al1dhra Slum Improvement (Acquisition of Land) Act, .1956 (Andhra 33 of 1956). ASSAM:
Bengal Prevention of Inoculation Act, 1865 (Ben. 4 of 1865).
Bengal Vaccination Act, 1880 (Ben. 5 of 1880).
Assan! Pure Food Act, 1947 (Assam 22 of 1947).
Assam Prohibition of Smoking in Show Houses Act, 1951
(Assam 9 of 1951). BIHAR:
Bengal Prevention of Inoculation Act, 1865 (Ben. 4 of 1865). Bengal Vaccination Act, 1880 (Ben. 5 of 1880).
I
:i
A SURVEY OF THE LAW AND LAW COURTS
Bengal Sanitary Drainage Act, 1895 (Ben. 8 of 1895). Bengal Public Parks Act, 1904 (Ben. 2 of 1904). Bel1-gal Srnoke Nuisance Act, 1905 (Ben. 3 of 1905). ]haria 'Vater Supply Act, 1914 (B. & O. 3 of 1914). Bihar Provincialisation of Roads and Hospitals Act, 1947 (Bihar 6 of 1948). Bihar Drugs Advertisements Control Act, 1948 (Bihar 13 .of 1948). Itki Tuberculosis Sanatorium (Regulation of Buildings) Act, 1951 (Bihar 23 of 1951). Bihar Prohibition of Smoking (Show Houses) Act, 1954 (Bihar 10 of 1954). KERALA:
Epidemic Diseases Act, 1072 (Cochin 1 of 1072). Epidemic Diseases Act, 1073 (Travancore 2 of 1073). Lepers Act, 1077 (Travancore 3 of 1077). Town Planning Act, 1108 (Travancore 4 of 1108). Town and Country Planning Act, 1120 (Travancore 21 of 1120). Malagunllathukavu Tuberculosis Sanatorium (Regulation of . Buildings) Act, (Cochin of 1123). Madras River Consel"vancy Act, 1884 Uvlad. 6 of 1884). Town Planning Act, 1920 (Mad. 7 of 1920). Public Health Act, 1939 (Mad. 3 of 1939). Madras Tuberculosis Sanatoria (Regulation of Buildings) Act, 1947 (Mad. 16 of 1947). Public Health Act, 1955 (T.C. 16 of 1955). MADHY A PRADESH:
Central Provinces Village Sanitation and Public Management A1~t, 1920 (C.P. 2 of 1920). Madhya Pradesh Prohibition of Obfectionable Advertisements Act, 1947 (C.P. & B. 28 of 1947). Madhya Pradesh Tuberculosis Sanatorium (Regulation of Buildings) Act, 1948 (C.P. & B. 12 of 1948). Madhya Pradesh Town Planning Act, 1948 (C.P. & B. 67 of 1948). Madhya Pradesh Public Health Act,1949 (C.P. & B. 36 of 1949). Madhya Pradesh Regulation of 'Vaters Act, 194.9 (C.P. & B. 37 of 1949). Amarkantak Township Development Act, 1952 (10 of 1952). Bhopal (Places of Public Ente1tainment) Prohibition of Smoking Act, 195.'3 (Bhopal 14 of 1953). Madhya Pradesh National Parks Act, 1955 (7 of 1955). Madhya Bharat Control of Lepers Act, 19.55 (M.B. 14 of 1955). Madhya Bharat Town Imp1'Ovement Act, 19.56 (J\1.B. 2 of 1956). Madhya Pradesh Slum Improvement (Acquisition of Land) Act, 1956 (M.P. 32 of 1956). i'-lADIIAS:
Madras Rivers Conservancy Act,1884 (~Iad. 6 of 1884). M.adra8 Town Planning .4ct, 1.920 (Mad. 7 of 1920). Madras Public Health Act, 1939 (rvIad. 3 of 1939).
41
;1,1EDICAL LA \-VAND ETHICS IN I{·JDIA
Madras Tuberculosis Sanatoria (Regulation of Buildings) Act, 1947 (Mad. 16 of 1947).
Madras Slum Improvement (Acquisition of Land) Act, 1954 (Mad. 11 of 1954). MYSORE:
Vaccination Act, 1877 (Born. 1 of 1877). Rivers Conservancy Act, 1884 (Mad. 6 of 1884). District Vaccination Act, 1892 (Born. 1 of 1892). Epidemic Diseases Act, 1897 (Mysore 2 of 1897). Vaccination Act, 1906 (Mysore 1 of 1906). Smoke-Nuisance Act, 1912 (Born. 7 of 1912). Town Planning Act, 1920 (Mad. 7 of 1920). Lepers Act, 1925 (Mysore 4 of 1925). Indian Lunacy, Bombay District Municipal and Bombay Muni cipal Boroughs (Amendment) Act, 1936 (Born. 15 of 1936). Indian Lunacy (Bombay A.mendment) Act, 1938 (Born. 1.5 of 1938).
Public Health Act, 1.939 (Mad. 3 of 19.39). Public Health Act, 194.3 (Coorg 1 of 1943). Lunacy (Madras Amendment) Act, 1943 (Mad. 12 of 1943). Public Health Act, 19·14 (Mysore 10 of 1944). Vaccination Act, 1950 (Coorg 4 of 1950). Infectious Dise~<;es Act, 1950 (Hyd. 12 of 1950). National Parks Act, 1950 (Born. 54 of 1950). Vaccination Act, 1951 (Hyd. 24 of 1951). Prohibition of Smoking in Show Houses and Public Halls Act, 1952 (Mysore 29 of 1952).
Prohibition of Smoking (Show Houses and Public Halls) Act, 1953 (Coorg 6 of 1953).
Epidemic Diseases (Bombay Amendment) Act, 195·'3 (Born. 12 of 195.3).
Leprosy Act, 1954 (HycL 4 of 1954). Town Planning Act, 1954 (Born. 27 of 1955). Lepers (Bombay Amendment) Act, 1955 (Born. 28 of 1955). Slum Areas (Improvement and Clearance) Act, 1958 (Mysore 8 of 1959). ORISSA:
Orissa Drugs Advertisement Control Act, 1946 (Orissa 6 of 1946).
Orissa Rirer Pollution Prerention Act, 19.'54 (Orissa 4 of 19.54). PUNJAB:
Punjab TOICIl Improvement Act, 1922 (Pun. 4 of 19Z2). Epidemic Diseases (PuniaiJ Amendment) Act, (Pun. ;3 of 1914). EpiJemic (Ea.<;t PUlliab Amendment) Act, 1947 (E.P. 1 of 1947). Punjab Prohibition of Smoking (Cinemas alld Theatre Halls) Act, 1951 (Punjab 8 of 19.51). Punjab Vaccination Act, 1953 (Punjab. 49 of 19.5:3).
A SURVEY OF THE LAW AND LAW COUHTS
Indian Lunacy (Pun;ab Amendment) Act, 1956 (Pun. 37 of 19,56). RAJASTHAN:
Bombay Village Sanitation Act, 1889 (BoITl. 1 of 1889). Bombay Smoke-Nuisances Act, .1912 (Born. 7 of 1912). Indian Lunacy (Bombay Amendment) Act, 1938 (Born. 1.5 of 1938). Bombay National Parks Act, 1950 (Born..54 of 1950). Madhya Bharat Village Refuse (Conversion into Measures) Act. 1951 (M.B. 8 of 19,51). Ajmer Places of Public Entertainment Prohibition of Smoking Act, 1953 (Ajmer 2 of 19.53). Epidemic Diseases (Bombay Amendment) Act,l953 (Bom. ·12 of 1935). Madhya Bharat Control of Lepers Act, 1955 (M.B. 14 of 1955). Lepers (Bombay ~1rnendrnent) Act, 1955 (Born. 29 of 1955). Rajasthan Public Parks Act, 1956 (Raj. 21 of 1956). Rajasthan Vaccination Act, 1957 (Raj. 17 of 1957). Rajasthan EpidemiC Diseases Act, 1957 (Raj. 31 of 1957). urrAR PRADESH:
Village Sanitation Act, 1892 (V.P. 2 of 1892).
Town Improvement fict 1919 (V.P. 8 of 1919).
National Parks Act, 1985 (D.P. 1 of 1935).
Badri Nath (Sanitation and Improvement) Act, 1.945
(D.P. 5 of 194:3). Rural Development (Requisitioning of Land) Act, 1948 (V.P. of 1948). Town Improvement (Adaptation) Act, 1.948 (D.P. 47 of 1948). Objectionable Advertisement Control A.ct, 1949 (D.P. 2 of 1949). Pure Food Act, 1950 (V.P. 32 of 1950). Prohibition of Smoking (Cinema Houses) .Act, 19.52 (D.P. ;30 of 1952). Hastinapul' Town Development Board Act, 1.955 (V.P. 14 of 1955). Regulations of Building Operations Act, 19.58 (V.P. of 19.58). WEST BENGAL:
Bengal Pret;ention of Inoculation Act, 1865 (Ben. 4 of 1865).
Bengal Vaccination Act, 1880 (Ben. 5 of 1880).
Bengal Public Parks Act, 1904 tBen. 2 of 1904).
Bengal Smoke-Nuisance Act, 1905 (Ben. 3 of 1905).
Bengal Fooel Adulteration Act, 1919 (Ben. 6 of 1919).
Bengal Agricultural and Sanitary improvement Act, 1920
(Ben. 6 of 1920.1. Indian Red Cross Society (Bellgal Bra·nch) Act, 1920 (Ben. 8 of 1920). West' Bengal Uncles/table Advertisements (Colltrol) Act, 1948 (W'.B. 29 of 1948). West Bengal Prohibition of Smoking in Show HOHses and Public Halls Act, 1950 (W.B. 55 of 1950).
44
MEDICAL LAW AND ETHICS IN INDIA
West Bengal Clinical Establishinents Act, 1950
CW.B. 56 of 1950). Lady DufJerin Victoria Zennana Hospital Act, 1955
(W.B. 16 of 1955).
Sadar and Sub-Divisional Hospitals Act, 1955 (W.B. 20 of 1955).
Albert Victor Leper Hospital (Abolition) Act} 1956
('W.E. 15 of 1956).
Sagore Dutt Hospital Act, 1958 (W.B. 14 of 1958).
R. C. Kar Medical College and Hospital Act, 1958
(W.E. 8 of 1958). Calcutta Slum Clearance and Rehabilitation of Slwn Dwellers Act, 1958 (W. E. 20 of 1958). Durgapur Development and Control of Buildings Operations Act, 195~ (W.E. 27 of 1958). . JAMMU AND KASHMIR:
Epidemic Diseases Act (J. & K. 16 of 1977). Lunacy Act 0. & K. 25 of 1977). Village Sanitation Act (J. & K. 5 of 1990). . . . Jammu and Kashmir Venereal Diseases Act (J. & K. 21 of 2000). Jammu and Kashmir Vaccination Act (J. & K. 11 of 2006). Jammu and Kashmir State Prohibition of Smoking (Cinema and Theatre Halls) Act, (18 of 2009). Jammu and Kashmir Prevention of Adulteration of Food Act, 1958 (J. & K: 12 of 1958).
CHAPTER II
STATUTES RELATING TO MEDICAL AND ALLIED
PROFESSIONS
Part I
NURS[NG HOMES
ACT OF THE STATE OF MAHARASHTRA:
The Bombay
Hennes Registration Act, 1.949.
Part II NURSES CENTRAL ACT:
The Indian Nursing COUTlcil Act, 19·17. ACT OF THE STATE OF MAHARASHTRA:
The B(m~ba!J Nvrses, Midwiues and H.ealth Visitors Act, 19S4.
Part III DENTISTS CENTRAL ACT:
The Dentists Act, 1948.
Part IV
VETERINARY PRACTITIONER
ACT OF THE STATE
OF "rAHARASHTBA:
The Bombau Veterinaru Practitioners Act, 1953.
Part V
HO~IOEOPATHY
AND BIO-CHEI\IISTHY
ACT OF TIm STATE OF "rAHAHASHTRA:
The Bombay Ilomoeopathic and Biochemic Pmctitiollers
195,9.
46
~mDICAL
LAW AND ETHICS IN INDIA
Part VI \VESTEHN METHODS OF MEDICINE AND SUHGERY CENTHAL ACT:
(1)
(2)
The Indian Medical Degrees Act, 1916. The Indian Medical Council Act, 19.56. ACT
OF THE STATE OF MAHARASHTRA:
The Bombay Medical Act, 1912.
Part VII AYURVEDIC AND UNANI SYSTEMS OF YlEDICINE ACT OF THE STATE OF :/vrAHARASHTRA.
The t.1aharashtm Medical Pmctitioners Act, 1961.
Part VIII GENERAL PROVISIO.".!S APPLICABLE TO MEDICAL PRACTITIONERS ACT OF THE STATE OF MAHARASHTRA:
The Mafwrashtm Medical
Practitioners Act, 1.961.
Part I NURSING HOMES
H
EREUNDER, ,ve have mainly dealt with the statutes of the Central' Government and the of Maharashtra directly . affecting the medical and allied professions, laying emphasi~ on the impOltant aspects of each statute. There are, however, some important provisions all these relating to the rights, privileges and the disciplinary measures which have treated separately.
The Bornbay Nursing Homes Registration .,/'\ct, 1949 Object of the Act. This Act provides for inspcction of nursing homes.
registration and
Extent of the Act. It is ill force III Greater Bombay and the cities of Poona, Nagpur and Sholapur. In other pmts of the State of ~Iahamshtra it is not yet in Prohihition to caITY on Nursing Home without Registmtion. No person can conduct a nurSing horne unless been duly registered
STATUTES RELATING TO MEDICAL AND ALLIED PROFESSIONS
47
in respect of such nursing home. A person intending to conduct a nursing home has to make an application for registration and, if already registered, he must every year apply for the renewal of registration to the local supervising authority. Refusal to grant Registration. The local supervIsmg authority may refuse to register the applicant if it is satisfied: (1) that he or any person employed by the nursing home is not a fit person to conduct or be employed in the nursing home; or (2) that the nprsing home is not under the management of a resident qualified medical practitioner or a resident qualified nurse or (3) that there is not a proper proportion of qualified nurses for the nursing of patients in the nursing home; or (4) that, in the case of a maternity-home, it has not got on its staff a qualified midwife, or (5) that for reasons connected with the situation, const[J1ction, accommodation, staffing or equipment, the nursing home or any premises used in connection therewith are not fit to be used for such nursing horne or that the nursing home or premises are used or are to be llsed for purposes which are in any way improper or undesir able in the case of such nursing home. Cancellation of Registration. On anyone of the above grounds on which an application for registration of a nursing home may be refused, registration already granted may be cancelled. Further, registration may be cancelled if the person to whom registration is granted is convicted of an offence under this Act. Inspection of Nursing Homes. The Health Officer of the local supervising authority or the Civil Surgeon of the district in which the nursing home is situated or any other officer duly authOlised by the local supervising authority or the Civil Surgeon, may at all reasonable times enter and inspect any premises which are used or which that officer has reasonable cause to believe to be used for the purpose of the nursing home and inspect any records required to be kept in accordance with this Act. NOTE: There IS no Central Act regarding nursing homes.
Part II NURSES CENTRAL ACT:
The Indian Nursing Council Act, 1947 Objects of the Act. The objects of the Act are to be found Statement of Objccts and Reasons reproduced below:
lJl
the
48
MEDICAL LAW AND ETHICS IN INDIA
"Provincial Nursing Councils have been established in all Provinces and r~~gisters of qualified nurses, health visitors and midwives. Increasing diHlculties have been experienced by the nursing profession and by employing authorities owing to the diversity in the standards of preliminary education of candidates entering training-schools of nur the varying standards of training and examination for nursing certificates and the lack of inter-provincial reciprocity in the registration of nurses. To remedy these diHlculties it is proposed to E;I}l!£!1~~Q!l f~ the-Rl!EPose ~~~2-!L(pl. Indianl!~~'sing_CouUQjI which will prescribe uniform minimum standards of education and training for nurses, midwives and health visitors to supervise examinations, and maintain a schedule of qualifications recognised for registration through out India. To avoid delay an Ordinance was passed in August 1947 for this purpose." The Ordinance was repealed by this Act. The Indian Nursing CounciL The Act provides for the constitution . of a council knovvn as the Indian Nursing CounciL The council is a legal entity capable of suing ~Uld being sued in its name. Recognised Qualifications. Recognised qualifications are of t\VO kinds: (1) Recognised qualifications which are mentioned in Part 1 of the schedule; and recognised higher qualifications mentioned in Part 2 of the schedule. Provision is made for the addition of further qualifica tions as recognised qualifications or recognised higher qualifications. Effect of Recognition. ,It is provided by this Act that if a qualifi cation falls within the class of recognised qualifications then the results mentioned below will automatically follow notwithstanding anything stated in any other law: (a) any recognised qualification shall be a sufficient qualification for enrolment in any State Register; (b) no person shall, after the date of the commencement of this Act, be entitled t.o be enrolled in any State Register as a nurse, midwife, auxilliary nurse-midwife, health visitor, or public health nurse unless he or she holds a recognised quali fication: (c) any person holding a recognised higher qualification shall be entitled to have the qualification entered as a supplementary qnalification in any State Register in which he or she is enrolled. However, a citizen of India holding a qualification which entitles him or her to be registered with any,Council of Nursing or i\1id~vifery in any foreign country, may, with the approval of the Council, be en been accorded by rolled in any State Register, and where approval the Council in respect of such qualification in onc case, the approval of
I
STATUTES RELATING TO MEDICAL AND ALLIED PROFESSIONS
49
the Council for enrolment in a State Regis.ter in the case of any other citizen of India holding the same qualification shall not be necessary. Further, a person not being a citizen of India who is employed as a nurse, midwife, auxilliary nurse-midwife, teacher or administrator in any hospital or institution situated in any State for purposes of teaching, research or charitable work may, with the approval of the President of the Council, be enrolled temporarily in the State Register for such period as may be specified in this behalf in the order issued by the said President. Powers of the Council. The Council has pOYi~r~.t9~~~l!"iE~j!lfCl!'...ma tionJ:r:QI1Lat!!hClr!tiesgr~I1tiDg ~recClgnised qualificati9n or a recognised higher qualification as to courses of study and training and examinations. The Council also has PQ~\1Q~~.t:l2rou~hj!LE;'{ecutive COmm!!!§ll~U:U22Qip!. inspectors for inspection of institutions recognised as training institu t~;-ancl to attend at examinations held for the purpose of granting any recognised qualification or recognised higher qualification. The Council also has power tg" "IIl<:tk~.!~gl!.19.ti911~triter "a~L~£ prescribe.. ~<;t~~cl.~rd for teachers who train nurses, midwives and health visitors. Indian Nurses Register. It is t!1e~uty~_of the C2~il ill. maintain a register of nursel', micl.~':'~~es,._ auxilliary nurse-midwives arl~L health to be known as Indian Nurses Register. This register shall contain the names of all persons who are for the time being enrolled on any State Register. This register is considered a public document and can be proved in any court of law by a copy thereof published in the Gazette of India.
ACT OF THE STATE OF MAHARASHTRA:
The B01nbay Nurses, A1idwives and
Health Visitors Act, 1954
Object of the Act. This Act provides for the registration of nurses, midwives and health visitors in the State of Maharashtra, and for the establishment of the Bombay Nursing Council. Definitions. In this Act the following expressions are used in the sense mentioned below:~ (1) "Nurse" includes a male nurse and an auxilliary nurse and a midwife. (2) "Nurses establishment" means any establishment, whether carried on for gain or not, which provides for or is intended to "'"..
A
50
MEDICAL LA Vi AND ETHICS IN INDIA
provide for the serv;ices of persons to act as nurses, midwives or health visitors to those requiring such services. (3) "Institution" includes any association, which maintains or con trols a nurses establishment. "Affiliated institution" means an institution for the nursing of the sick, maternity or child welfare, which may be affiliated to the Council in accordance with the bye-laws. The Bombay Nursing Council. The Act provides for the establish ment and constitution of a nursing council to be known as the Bombay Nursing Council. The council consists of the Surgeon General, the Director of Public Health, the Superintendent of Nursing Services as ex-officio members, thirteen elected members and three nominated members. Registration. It is the duty of the Council to maintain a register of (a) nurses, (b) midwives and (c) health visitors. Those persons who have undergone prescribed courses of training and have passed such examinations and fulfilled such conditions as may be prescribed, shall,,, on payment of the prescribed fee, be entitled to registration. The Maintenance of List of Persons Practising as Nurses, :Midwives or Health Visitors. The Council must also prepare and keep a list of persons whose. names are not entered in the register as mentioned above and who are practising as nurses, midwives or health visitors. A person not being qualified for registration, who, within period of tvvo years from 2,3rd March, 19,54, proved to the satisfaction of the Council that he ha~ been in regular practice as a nurse, midwife or health visitor, or fulfilled other conditions deternlined by the Council was, on payment of the prescribed fee, entitled to have his name entered in the list. Persons Entitled to Practise as Nurses, Midwives and Health Visitors. Section 18 of the Act is velY important It is provided by this section that no person other than a person registered under this Act 01 a person whose name is entered in the abovem~Dtioned list shall practise or hold himself out, whether directly or by implication, as practising habitually or for personal as a nurse, midwife, or health visitor. A person who, not being on the register or the list, practises as a nurse, midwife, or health visitor, is liable to be punished \vith fine. Even a person who is on the list is not entitled to practise as a nurse, midwife, or health visitor within the area of a Municipal Corporation or Municipal Borough unless he has been in regular practice for a continuous period of nve years prior to the date on which this section comes into effect, or has been in regular practice for a continuous period of two years prior to the date on \vhich this section comes into effect and produces a certi
STATUTES RELATLt\G TO MEDICAL AND ALLIED PROFESSIONS
51
ficate from an institution signed by the Matron, Medical Superintendent or other responsible officer of such institution, that such person has re ceived training as a nurse, midwife or health visitor in the prescribed manner. Nurses' Establishment. A nurses' establishment cannot be conducted by any person unless he holds a valid licence granted by the licencing authority. The licencing authority, in the case of a Municipal area, means the Municipal Corporation and, in the case of any other area, the District Local Board established for such area. A person intending to carry on a nursing establishment must carry on the establishment in accordance with the terms and conditions speci fied in his licence. Training Institutions. Only those institutions which are approved and recognised by the Council shall be competent to train nurses, mid wives or health visitors and to send them for examination. for the quali fying certificates of the Council. No school, hospital or other institution which is not approved or recognised as mentioned above, shall issue to any person a certificate or enter the name of any person in any document purporting to show that such person is qualified, by reason of his having passed any exami nation or undergone any course of training, to practise as nurse, midwife or health visitor, his name is registered or entered in the list under this Act. A person who conducts a training institution not ap proved and recognised by the Council is liable to be punished with fine.
Part III DENTISTS CENTRAL ACT:
The Dentists
Act~
1948.
Introductory Remarks. The De}]Jists Acb....1948, which is in forcc throughout India, \vas put into effect from the 29th !vlarch, 1948. Prior to the enactment of this Act, except in Bengal, was no legal pro of dental practi vision for the regulation of the education and tioners or for the registration of qualified persons. There was also no restriction on the practice of dentistry by persons without scientific It \vas recognised that the practice 01 dentistIy by untrained or inadequately trained persons could constitute to the patient. It was accordingly proposed to constitute an Indian Dental Council with
~1EDICAL
LAW AND ETHICS IN INDIA
powers to lay down a minimum standard of training, and to set up State Councils which would maintain registers of persons entitled to practice dentistry. 'With these objects in view the Dentists Act, 1948, was enacted. As at the date of the passing of the Act there were several persons whose principal means of livelihood was the practice of dentistry though they were not trained dentists, a provision was made to the effect that if such persons had practised dentistry for a period of not less than five years prior to the commencement of the Act, they would be allowed registration under the Act at the time of the first preparation of the registers in the States. In 1955 it was felt that certain displaced persons who had migrated to India from Pakistan after the first preparation of the registers, and who did not possess any recognised dental qualifica tions but who had been engaged in the profession of dentistry in, Pakistan, should be allowed registration under the Act. This was made possible by an amendment of the Act in 1955. This Act recognises three kinds of dental practitioners: dentists, dental hygienists and dental . mechanics. Meaning of Dentist and Dentistry. A Dentist is defined as a person who practises dentistry. The word dentishy is defined as under: "Dentjstry" includes (i) The performance of any operation on, and treatment of any disease, deficiency or lesion of human teeth or jaws, and the performance of radiographic work in connection with human teeth or jaws or the oral cavity; (ii) the giving of any anaesthetic in connection with such opcration or treatment; (iii) the mechanical construction or the rcnewal of artificial dentures or restorative dental appliances; (iv) the perfomlance of any operation on, or the giving of any treat ment, advice or attendance to, any person preparatory to, or for the purpose of, or in connection with the fitting, inserting, fixing, constnlCting, repairing or renewing of artificial dentures or restorative dental appliances, and thc performance of any such operation and the giving of any such treatment, advice or attendance, as is usually perfomled or givcn by dentists. The words "advice ......... in connection with the fitting, insertion, or fixing of mtificial teeth" are also to be found in Dentists Act, 1921 of England. An English case l in which these words were interpreted may be lloted. A shop assistant, wbo was not a registered dentist, told a customer that her teeth were all the same size and looked too artificial 1
Twyford v. Puntschart, (1947) I, A.E.n., p. 773.
STATUTES RELATING TO MEDICAL AND ALLIED PROFESSIONS
.53
and could be improved. She suggested that the customer should ex change the teeth and offered to supply six plastic teeth and gold fillings to take away 'the artificial look. It was held that thereby the shop assistant could not be said to be carrying on the practice of dentistry. The words, "advice ...... in connection with the fitting ......" meant in connection with the fitting to the mouth itself and did not cover an alteration to an existing denture. The court observed, "I cannot think that because a dental mechanic says to a person who comes into a shop in which she is employed that the customer's looks could be improved if her teeth were not all of the same size, and offers to fix some teeth - not to make a denture, not to interfere with the existing denture, but to replace one, two or more teeth on the denture with others which are of different colour or size that is in any sense giving advice in connection with the fitting, inser tion or fixing of artificial teeth." It should be remembered that what the shop assistant did in this case was to make a suggestion and not to offer any advice. If advice had been given, then, very possibly, the shop assistant, being merely a dental mechanic, would not have been entitled to do this work. The words 'dental operation,' 'dental . attendance' and 'advice' were also interpreted in an earlier English case, Hennan and Co. v. Duckworth,l which is referred to in this case. In Helwan's case, the court said that prima facie, the words 'dental opera tion' mean operation upon the person - on the mouth of the patient; 'dental attendance' would mean, advising in respect of the condition of the mouth or as to what should be done, and 'advice' would, of course, mean something of the same character. ~
Who are Dental Hygienists? In order that simple dental aid may be made a'::,ailable to people on as wide a basis as possible, provision is made in the Act for the registration of dental hygienists who are e~titled to carry out simple extractionLa.J.l~cl.Jl.~L!n minor dental \"lork. A dental hygienist means a person not being a dentist or a medicall practitioner, who scales, cleans or polishes teeth or gives instruction in dental hygiene. Dental Mechanics. Besides Dentists and Dental Hygienists, there is another allied class of persons given recognition in this Act and that class is known as Dental Mechanics. ~~~!~c~l. Mechani~means2Y~.!~2-1l wl1~:uXl
90, L.T. 548.
54
MEDICAL LAW AND ETHICS IN INDIA
State Dental Council. The State Government is empowered to set up State Dental Councils. Two or more States may have a common State Dental Council. It is the duty of the State Council to maintain registers. Removal of Name from the Register. (Section 41 deals ",vith the removal of name of any persori from the register, after giving that person reasonable opportunity of heing heard. A person is liable to have his name removed from the register if his name was entered in the register by error or on account of misrepresentation or suppression of material facts, or because of conviction of any offence or because of being found' guilty of infamous conduct in a professional respect which, in the opinion of the State Council, renders him unfit to be kept on the register. No order refUSing to enter a name in the register or removing a name from the register shall be called into question in any court) Practice of Dentistry by a Company. Section 51 prohibits practice of dentistry being conducted by a company or other corporate body. This is subject to certain exceptions.
Part IV VETERINARY PRACTITIONERS AGr OF THE STATE OF l\fAHARASHTRA:
The B01nbay Veterinary Practitioners Act, 1953. The Bombay Veterinary Council. The Act makes provision for the establishment and constitution of a council to be caned the Bombay Veterinary Council. Powers arid Duties of the Council. Among the poV'.:ers conferred on the Council are the powers to call on any veterinary college, school or institution to give such particulars eLI) the Council may require of any comse of study prescribed, or examination held by such body or autho rity. The Council also has power to depute any member to attend and be present at any examination conducted by any veterinary college, school or mstitution. Registration. A person who holds any of the qualiGcations included in the Schedule is entitled on application to be registered on giving Act also pro evidence that he possesses a recognised qualification vides that those who, prior to 1st January, 1914, actually conducted veterinary practice in the State of Bombay, are entitled to practice if the State Government after consulting the Council permits them so to do. Further, a person \vho is registered with the COllllcil of
STATUTES RELATING TO
~mDICAL
AND ALLIED PROFESSIONS
55
any State in India, if reciprocity of registration has been arranged with such Council, entitled to be registered. under this Act. The follow ing persons are not entitled to be reg'istered: (1) A person convicted of a cognizable offence under the Criminal Procedure Code; (2) A person who, being subject to military law, has been con victed under the Army Act of a cognizable offence; (3) A person who, after due enquiry, has been found guilty by the Council of infamous conduct in any professional respect. Further, a person who is registered under this Act is liable to have his name removed from the register on the grounds stated above. Privileges of Registration. A veterinary practitioner who is regis tered under this Act is entitled to the follmving advantages: (1) A certificate required by or under any law for the time being in force from any veterinary practitioner or Veterinary Officer is valid only if it is given by a veterinary practitioner or a Veterinary Officer who is registered under this Act, An unregis tered veterinary practitioner cannot give a valid certificate. (2) Only a registered veterinary practitioner is entitled to hold any appointment in a veterinary dispensary, hospital or infirmary, which is supported wholly or even partly by the State or by the local authority as also in any dispensary, hospital or infirmary belonging to a local authority or any public establishment, body, or institution. (3) Only a registered practitioner is qualified to give evidence as There an expert on any matter relating to veterinary fore, a v~terinary practitioner, however qualified and however eminent, if he is not registered under this Act, will not be entitled to give eviclence as an expert on matters relating to veterinary science. (4) Onlv a veterinary practitioner is entitled to sign or authenticate any certificate required by any law or rule to be signed or authenticated by a duly qualified veterinary practi tioner. List of Veterinary Practitioners. Every year, on or before the to be fixed by the Council, a list of the names and qualifications of all registered practitioners shall be printed and published in alphabetical order. The Government of Bombay has made rules under this Act. These rules will be fonnd in the Bombay Government Gazette, Part IV-B, 1956,
56
ivlEDICAL LAW AND ETHICS IN INDIA
January to June, p. 34. The rules inter alia provide for the form in which an application for registration under the Act has to be made.
Part V HOMOEOPATHY AND BIO-CHEMISTRY. ACT OF THE STATE OF MAHARASHTRA:
The Bom,bay H O1noeopathic and BiocheJnic
Practitioners Act) 1959.
Object. This is an Act which consolidates and amends the law relating to the regulation of qualifications and registration of homoeo pathic and bio-chemic practitioners in the State of Bombay. The object is to encourage the study and spread of these Definitions. The expressions bio-chemistry and homoeopathy are defined as follows "Bio-chemistry" means the system of medicine founded by Dr. Schussler and expression "biochemic" shall be construed ac cordingly. "Homoeopathy" means the system of medicine founded by Dr. Hahnemann the expression "homoeopathic" shall be construed aeGordingly. The Board of Homoeopathic and Biochemic Systems of Medicine, Bombay. The Act provides for the constitution of a board to be called the Board of Homoeopathic and Biochemic Systems of tvledicine, Bombay. This body is, by this Act, a legal entity by itself so that it can sue and be sued in its own name. Powers, Duties and Functions of the Board. The powers, duties and functions of the Board shall be as follows : (a) to maintain a register and a list and to provide for the tration of practitioners or entry of their names in the list; (b) to hear and decide appeals from any decision of the Registrar; (c) to reprimand a registered or an enlisted practitioher or to susptnd or remove him from the register or the list, as the case may be, or to take such other disciplinary action against him as may, in the opinion of Board, be necessary or expedient; (d) to exercise such other powers and perfonn sueh other duties and functions as are laid down in this Act and may be pres cribed by rules. The Court of Examiners. Provision is made in this Act for the constitution of a Court of to be called the Court of Examiners
STATUTES RELATING TO MEDICAL AND ALLIED PROFESSIONS
of Homoeopathic and Biochemic Systems of Medicine, Bombay. The Court is also constituted to be a legal entity by itself and it can sue and be sued in its name. The Court is to consist of eleven members. Powers, Duties and Functions of the Court. The main powers, duties and functions of the Court are as follows (a) to hold examinations and to make all the necessary arrangements for such examinations; (b) to prescribe courses of training leading to the examinations held by the Court and to charge fees for such ex
.58
MEDICAL LAW AND ETHICS IN INDIA
use the following expresions as the case may be : Registered Homoeopathic Practitioner, Registered Biochemic Prac titioner, Enlisted Homoeopathic Practitioner or Enlisted Biochemic Practitioner to indicate that his name has been entered in the register or the list as the case may be. Control of the State Government over the Board and the Court of Examiners. If it appears to the State Government that the Board or the Court has failed to exercise or has exceeded or abused any of its powers or has failed to perfonn any of its duties or has ceased to function or has become incapable of functioning, the State Government has power to dissolve the Board or the Court as the case may be, and may cause its powers or duties to be ,exercised and performed by some other person or body for a period not exceeding two years and take steps to constitute a new Board or Court. Part VI WESTERN METHODS OF MEDICINE AND SURGERY CENTRAL ACT:
(1) The Indian Medical Degrees Act 1916. Object and Purpose of the Act. This is the principal all-India statute ~. regulate tllf g[ill1!~ ottitles impljj.n&.~~~~eJJl l1!.~
)
)
•
)
STATUTES RELATING TO MEDICAL AND ALLIED PROFESSIONS
59
obstetrics and surgery, but does not include the Homoeopathic, Ayurvedic or U nani systems of medicine. Penaltie1> Provided in Certain Cases. If an unauthorised person or institution, purports to grant any diploma, license, certificate or document implying that the holder is qualified to practise 'Western medical science, such a person or institution is liable to be punish~~th fil}£_£~tendi~"to Bs. 1,000/-. In a Calcutta ca~e/ a person led people to believe "that his college styled DACCA MEDICAL COLLEGE" was an .allopathic college, which could award allopathic diplomas. He actually issued "]'vUV: B." degrees to celtain persons which implied that the holders could practise \Vestern medicine. It was held that he had un authorisedly purported to grant degrees contrary to the Act and was, therefore, punished. Pe~.LJ.LghiLI2IQ.Y!~ fuL falsQ1~~lg....Qr nS~!lK medical titl§s. -
Additions to the Act Made by the Bihar Legislature. It may be noted that in the State of Bihar the provisions of this Act should read as also applicable to the Indian systems of medicine. The words 'Indian system of medicine' are defined to mean the Ayurvedic or Unani Tibbi system of medicine whether supplemented or not by such modern . advances as the State Government may, from time to time, have deter mined. The definition of \Vestern medical science as has been substituted as follows "\Vestern medical science means the western method of allopa thic medicine, obstetrics and surgery, but does not include the Indian, homoeopathic or biochemic systems of medicine."
(2) The Indian Medical Council Act, 1956. This Act was enacted with the intention of the existing Act known as the Indian Medical Council Act; 193,'3. As the amendments sought to be made therein were several, i! \,v.:.,a.::~s _:.::c~!I:i::.:.c:.__~;;;~2~:::::':::~~ it as the Act the amendments introduced by the new Act are as follows (1') to give representation to licentiate members of the medical pro fession, a number of whom were practising in the country ; / (2) to provide for the registration of the names of citizens of India who had obtained foreign medical qualifications which were not recognised under the existing Act; ..",. (3) to provide for the formation of a committee of Post-graduate Medical Education for the purpose of the 1"ledical Council of India; ,./' ,
1
AIR (H)33),
456 at 457.
60
MEDICAL LAW AND ETHICS IN INDIA
(4) to provide for the maintenance of an all-India register by the Medical Council of India which would contain the names of all practitioners possessing recognised medical qualifications. / The Medical Council of India. The Central eovemment is
~
p~ ~~ihlte3 coun~il to be known as the
Medical Council of India. The Q£.Ullcil shall ~oiu.t a Registrar who shall act as Secretary and who may also, if deemed expedient, act as Treasurer. The Council shall constitute from amongst its members an Executive Committee and such other committees for general or special purposes as the Council deems necessary to carry out the purposes of the Act. Medical Register. Those who possess medical qualifications included in the various schedules to the Act are entitled to be enrolled on any State Medical Register. The (~~ maintaiD. a regis~~Ll!!~iligtl :e!actition~ to be known as the Indian Medical Register. , The Indian Medical Register shall contain the names of all persons who are for the time being enrolled on any State Medical Register and who possess any of the various recognised medical qualifications. This register is con sidered a public document within the meaning of the Indian Evidenc . Act, 1872 and can be proved by a copy published in the Gazette of India. If the name of a person enrolled on a State Medical Register is removed therefrom, the Council shall direct the removal of such person from the Indian Medical Register, This Register has not been prepared yet. Functions of the Council. The Council has authority to prescribe of post-graduate medical education for the guidance of uni versities and may advise universities in the matter of securing uniform standards for post-graduate medical education throughout India. For this purpose the Council may set up from amongst its members a Post Graduate Medical Education Committe{i. s~
Acr OF THE STATE OF MAHARASffiRA:
The Bombay Aledical Act, 1912. This is the principal Act dealing with the registration of medical practitioners in the Presidency of Bombay. Medical Council. This Act makes pTOvision for the constitution of a medical council called the "Bombay Medical Council". It consists of fourteen members. Uegister and Registrar. The Council has to appoint a Registrar whose salary and allowances shall be paid by the Council. It is the Registrar's duty to keep a Register of t-.'1edical Practitioners in accord
STATUTES RELATING TO MEDICAL AND ALLIED PROFESSIONS
61
ance with the provisions of the Act. In the Register shall be entered the name residence and qualifications of every person who is registered .under this Act. The entry in the register shall also indicate the date on which each qualification was granted to the practitioner. Persons Entitled to be Registered. A person holding any of the medical qualifications included in the First or the Second Schedule to the Indian Medical Council Act, 193.'3, was entitled to be registered llllder this Act if he had applied for such registration prior to 1st November, 1958. On 1st November, 1958, the Indian Medical Council Act, 1956, came into force and on that date the Indian Aledical Council 1933, stood repealed, If an application for registration is made to the Bombay ~ledical COllncil 1st November, 1958, sllch an appli cant will be entitled to be registered if he holds any of the medical qualifications included in the First or Second Schedule to the Indian Medical Council Act, 1956, If a person possesses a foreign medical qualification other than those which are set out in the Second Schedule to the Indian Medical Council Act, he is entitled to be registered under this Act if the following procedure is followed. The Medical Council has to fonvard such an application to the Executive Committee con stihrted under the Indian Medical Council Act. This ,Committee has power to recommend such an applicant for registration if (1) the com mittee is satisfied that such person holds a degree, diploma, license or certificate indicating that the applicant has the requisite knowledge and skill for the efficient practice of medicine, surgery or midwifelY and (2) the applicant is a citizen of India, If the applicant is not a citizen of India, the committee may recommend that such person should be registered on such conditions as may be specified in the recommenda tion, On such recommendation being received, the Medical Council shall cause such person to be registered, The third class of medical practi tioners who are entitled to be registered under this Act are those whose names are registered under any Act for the registration of medical prac titioners in force in any other State in India, provided that with such State, the State of Bombay has a reciprocal nrrangement Persons Not Entitled to be Registered. The Bombay Medical Council has power to refuse registration to a person (1) who is convicted of a cognisable offence; or (2) who, being subject to military law, has been convicted under the Army Act of a cognisable offence; or (.'3) who, after due enquiry, has been held guilty by the Medical Council of 111 famous conduct in any professional respect. Pretending to be Registered. A person who falsely pretends to be registered under this Act or falsely uses in connection with his name a
62
MEDICAL LAW AND ETHICS IN INDIA
title or any words or letters representing that he is so punished with fine extending to Rs. 300/-.
shall be
Control of the State Government over the Medical Council. If according to the opinion of the State Government the Medical Council does not exercise its powers, or has exceeded its powers, or abuses its powers or fails to discharge its duties under this Act, the Government may point out the particulars of such default or abuse or excess to the Medical Council. If, thereafter, the Medical Council does not remedy such default, excess or abuse within the time fixed by the Government, the Government may then cause the powers and duties of the Medical Council to be exercised and perfom1ed by any other authority and for such time as it thinks fit.
Part VII
AYURVEDIC AND UNANI SYSTEMS OF MEDICINE'
ACT OF THE STATE OF MAHARASHTRA:
The Alaharashtra Aledical Practitioners Act, 1961. Object and Purpose of the Act. This Act carne into force on 23rd October, 1961. This Act was enacted to regulate the qualifications and to provide for the registration of practitioners of the Aynrvedic and Unani systems of medicine with a view to encouraging the study and spread of ~uch systems. This Act also contains provisions relating to medical practitioners generally in the State of 11aharashtra. Definitions of Certain Expressions used in the Act. (1) Ayurvedic of medicine: The 'Ayurvedic system of medicine' or the 'Ayurvedic system' means the Ashtang Ayurvedic system of medicine, whether supplemented or not by such modem advances as the Faculty (set up under this Act) may from time to time have determined; (2) Unani system of medicine The 'Unani system of medicine' or the 'Unani system' means the Unani system of medicine, whether supplemented or not by such modem advances as the said Faculty may from time to time have detem1ined. Constitution of the Board. The Act constitutes a Board to be called Maharashtra Board of Aiurvedic and Unani Systems of r.feclicine'. It shall consist of five members nominated by the State Govenunent and ten members elected by registered practitioners. Powers and Duties of the Board. Subject to such conditions as may be prescribed by or uncler the provisions of this Act, the powers, duties
STATUTES HELATING TO
~mDICAL
AND ALLIED PHOFESSIONS
63
and functions of the Board shall be (a) to maintain the register and the list and to provide for the registration and enlistment of practitioners; (b) to hear and decide appeals from any decision of the Registrar; (c) to prescribe a code of ethics for regulating the professional con duct of registered and enlisted practitioners; (d) to reprimand a registered,or an enlisted practitioner or to sus pend or remove him from the register or the list as the case may be, or to take such other disciplinary action against him as may> in the opinion of the Board, be necessary or expedient; (e) to exercise such other powers and perform such duties and functions as are laid .down in this Act or may be prescribed by rules. The Act empowers the State Government to form a Faculty to be called the '~1aharashtra Faculty of Ayurvedic and Unani Systems of Medicine.' The Faculty is constituted to be a legal entity. Powers, Duties and Functions of the Faculty. The main powers, duties and functions of the Faculty areto hold examinations and to make all the necessary arrange ments for such examinations; (b) to prescribe the courses of training leading to the examinations held by the Faculty and to charge fees for such examinations; (c) to provide for post-graduate training and to prescribe courses for post-graduate teaching and examinations; (d) to grant degrees, diplomas and marks of honour; (e) to recommend recognitio!l of institutions for the purpose of giving instruction for courses leading to examinations held by the Faculty; (f) to recommend the inclusion of any degree, diploma, ceItificate or award in the Schedule or to recommend the removal of any aegree, d}ploma, ceItihcate or award from the Schedule; to prepare, publish and prescribe text books, and to publish statements of prescribed courses of study; (h) to provide for research in Ayurvedic and Unani systems of medicine. Registration and Enlistment. The Act provides for the appointment of a Registrar. It shaH be the Registrar's duty to prepare and maintain a Register of Ayurvedic and Unani practitioners for the State. Enlistment or Preparation of List. Those persons who are not en titled to registration may apply to have their names enlisted.
I
64
MEDICAL LAW AND ETHICS IN INDIA
Removal of Names from the Register. A person who has been found guilty of any misconduct pursuant to an enquiry held by the Board is (1) liable to have issued to him a letter of waming; or (2) liable to have his name removed from the register pennanently or for such period as may be mentioned. Privileges of Registered Persons. (i) Certificates required by any Act from any medical practitioner or medical officer shall be valid only if such certificates have b~en signed by a registered practitioner; (ii) it shall be lawful for every registered or enlisted practitioner to use in full after his name the words "Registered Medical Practitioner" or "Enlisted Medical Practitioner", according to whether he is registered or enlisted; (iii) every registered practitioner shall be exempt, if he so desin:;s, from serving on an inquest, or as a juror under the Code of Crimirwl Procedure, 1898.
Part VIII GENERAL PROVISIONS APPLICABLE TO ~'1EDICAL PRACTITIONERS ACT OF THE STATE OF MAHARASHTRA;
The Maharashtra Medical Practitioners Act, 1961. Prohibition of medical practice by persons not' registered or listed. No medical practitioner has a right to practice any system of medicine in the State of Maharashtra unless his name is entered in the following registers or lists ; (i) the register or the list maintained under this Act; (ii) the register or the list prepared and maintained under the Bombay Ilomoeopathic and Biochemic Practitioners' Act, 19S9 or under any other law for the time being in force in relation to the qualifications and registration of homoeopathic or bio chemic practitioners in any part of the Statc ; or (iii) the register prcpared and maintained under the Bombay A1edical Act, 1912 or any other corresponding law for the timc being in force in any part of the State; or (iv) the Indian Medical Register prepared and maintained under the Indian Medical Council Act, 1956. Penalty is provided for those who practise medicine though not registered or listcd under any of the Acts mentioned above.
STATUTES RELATING TO MEDICAL AND ALLIED PROFESSIONS
65
Under this Act a person shall be deemed to practice any system of medicine who holds himself out as being able to diagnose, treat, operate or prescribe medicine or other remedy or to give medicine for any ailment, disease, injury, pain, deformity or physical condition or who, by any advertisement, demonstration, exhibition or teaching offers or under takes, by any means or methods whatsoever, to diagnose, treat, operate or prescribe medicine or other remedy or to give medicine for any ailment, disease, injury, pain, deformity or physical condition. Who can give valid certificates in the State of Maharashtra. Irrespective of anything stated in any law, a birth or a death certificate, or a medical or fitness certificate, or any other certificate required by any law to be signed or authenticated by a duly qualified medical practi tioner, can be valid only if it has been signed or authenticated by a practitioner registered under (i) The A1aharashtra Medical Practitioners Act, 1961; (ii) The Bombay Medical Act, 1912 or any other corresponding law for the time being in force in any part of the State; (iii) The Bombay Homoeopathic and Biochemic Practitioners Act, 1.959 or any other law for the time being in force in relation to the qualifications and registration of homoeopathic or bio chemic practitioners in any palt of the State; or (iv) The Indian Medical Council Act, 1956. Who can give evidence as a medical expert? In the State of Maharashtra, a medical practitioner, however competent and however qualified, is debarred from giving evidence at any inquest or in any court of law as an expert on matters relating to medicine, surgery or midwifery, if he is not registered under anyone of the laws specified below (1) The Maharashtra Medical Practitioners Act, 1961 : (2) The Bombay Medical Act, or any other corresponding law for the time being in force in any part of the State; (3) Bombay Homoeopathic and Biochemic Practitioners Act, 1959 or any other correspol1ding law for the time being in force in any part of the State; or (4) The Iridian Medical Council Act, 1956. The result, therefore, is that an Indian or a foreigner, even if he is the foremost medical practitioner in his line, will not be allowed to give evidence as an expert on medicine, surgery or midwifery, if he is not registered under anyone of these Acts.
M.L.
5
CHAPTER III
MEDICAL ETHICS, ETIQUETTE AND DISCIPLINARY
COUNCILS
Jr=::::::::::::::::::::::::::::::::::::::::::::::::::::::=:
S~nops is Part I
MEDICAL ETHICS AND ETIQUETTE
Section 1 - THE VARIOUS OATHS Section 2 - MI;;ANING OF ETHICS AND ETIQUETTE Section 3 - SOME IMPORTANT ASPECTS OF ETHICS AND ETIQUETTE (a) Aims of the Doctor (b) Assisting or obtaining the assistance of non-medical men (e) Attendance (d) Engaging in Business
(el Consultation
(f) Etiquette as regards Colleagues (g) Fees (h) Medical Secrets (i) Medical e:qJerimentation on human beings (j) Nursing Homes (k) Prescriptions and Drugs (I) Soliciting Clients and Advertisements (m) How much should a doctor tell (n) Nurses (0) Pharmacists
Part II TEXTS OF VARIOUS CODES OF ETHICS
Section 1 Sectio/! 2
CODE OF THE
Section 3 -
CODE FOR PRACTITIONERS OF
CODE
INDIAN MEDICAL ASSOCIATION
OF BOMDAyMEDICAL
COUNCIL AYURVEDIC AND UNANI SYSTEMS OF
~VlEDICINE
Section 4 -
CODE OF DENTAL ETHICS
Section 5 Section 6
CODE OF ETHICS FOR HO:\IOEOPATHS AND BIOCHEMIC PRACTITIONERS CODE OF ETHICS FOR NURSES
(a) International Code of Ethics (b) BuIes for Regulating the Practice of Nurses, MidWives, Health Visitors
and Nurse-Dais
Section 7 -
CODE OF PHARMACEUTICAL ETHICS
MEDICAL ETHICS, ETIQUETTE AND DISCIPLINARY COUNCILS
67
Part III
DISCIPLINARY COUNC1LS
Section 1 Section 2 -
FUNCTIo::-;S OF
THE
DrSCIPLINARY
STATUTORY RULES FOR MEDICAL ACT, 1912
COUNCILS
DISCIPLINARY
JURISDICTION
UNDER
BOMBAY
Part I MEDICAL ETHICS AND ETIQUETTE T would be appropriate to open the discussion of this chaptel' by setting out the actual texts of the important "Oaths" which all medical practitioners are acquainted with from the commencement of their career.
X
Section 1 - THE VARIOUS OATHS (1) (2) (.3) (4)
The Hippocratic Oath\ The Declaration of Geneva,
International Code of Medical Ethics,
The Pledge of Florence Nightingale,
(.5) The Pharmacists' Oath.
The general principles mentioned in the Hippocratic Oath have been
brought up-to-date by the ''''ORLO MEDICAL ASSOCIATION. The modernised versions of the Hippocratic Oath are the Declaration of Geneva as adopted by the THIRD GENERAL ASSEMBLY OF THE \VORLD MEDICAL ASSOCIATION at Geneva, S\vitzerland, in September, 1948 and the Inter national Code of Medical Ethics as adopted by the GENERAL ASSEMBLY OF THE WORLD "MEDICAL ASSOCIATION held in London, in October, 1949. (1) The Oath of Hippocrates
(1) I swear by Apollo Physician, by Asclepius, by Health, by Panacea, and by all the gods and goddesses, making them my witnesses, that I will carry out, according to my ability and tudgment, this oath and this indenture. (2) To hold my teacher in this art; as equal to my own parents; to make him partller in 11Iy livelihood: 1chen he is in need of money to share mine with him; to consider his family as my own brothers: to teach them this art, if they require to learn it, without fee 01' indenture. I
Hippocrates (about 460-:377 B,C,), the most celebrated physician of antiquity, was horn and practised ill the island of Cos in Creece. He \vas the son of a physician and became so famous that (hv common consent) he is regarded as the "Father of Medicine". The medical profession pay homage to HIPPOCI\ATES by acknowledg ing the principles of the Hippocratic Oath to be worthy of emulation from thetime enter the portals of medicine.
68
MEDICAL LAW AND ETHICS IN INDIA
(.3) To impart precept, oral instruction, and all other instruction to my sons, to the S011S of rny teacher, and to pupils who have signed the indenture and sworn obedience to the physicians' law, but to none other. (4) I will use treatment to help the sick according to my ability and judgment, but I will never use it to injure or wrong them. I (5) will not give poison to anyone though asked to do, nor will I suggest such a plan. (6) Similarly, I will not give a pessary to a woman to cause abortion. But in purity and in holiness I will guard my life and my art. (7) I will not use the knife either on sufferers from stone, but I will give place to such as are craftsman therein. (8) I nto whatsoever houses I enter, I will do so to help the sick, keep ing myself free from all intentional wrong-doing and harm, especially from fornication with woman or man, bond or free. (9) ·Whatsoever in. the course of practise I see or hear (or even out side my practise in social intercourse) that ought never to be published abroad, I will not divulge, but consider such things to be purely secrets. (10) Now, if I keep this oath and break it rwt, rnay I enjoy honour in my life and art, among all men for all time; but if I transgress and forswear myself, may the opposite befall me. (2) The Declaration of Geneva At the time of being admitted as a member of the medical profession: I solemnly pledge myself to consecrate my life to the service of humanity; I will give to my teachers the respect and gratitude which is their due; I will practise n~y profession with conscience and dignity; The health of my patient will be my first consideration,. I toill respect the secrets which are confided in 1ne; I will maintain by all the means in my power, the honour ancl the noble traditions of the medical profession; M~y colleagues will be my brothers; I will not pennit considerations of religion, nationality, race, party politics or social standing to intervene between n~y duty and my patient; I will maintain the utmost respecf for human life from the time of conception; even unde1' threat, I will not use my medical know ledge contrary to the laws of humanity. I make these pr01nises solemnly, freely and upon my honour. (3) The International Code of Ethics Duties of Doctor in General.
A doctor must always maintain the highest standards of professional conduct.
MEDICAL ETHICS, ETIQUETTE AND DISCIPLINAHY COUNCILS
69
A doctor must llOt allow himself to be influenced merely by motioes . of profit. The following practices are deemed unethical...i"" (aj Any self-advertisen~ent, except such as expressly authorized by the national code of medical ethics. (b) Taking part in any plan of medical care in which the doctor does not have professional independence. (c) To receive any money in connexion with services rendered to a patient other than the acceptance of a propet' professional fee, or to pay any money in the same circumstances without the knowledge of the patient. Under no circumstances is a doctor permitted to do anything that would weaken the physical or mental resistance of a human being except from strictly therapeutic or prophylactic indications imposed in the interest of the patient. A doctor is advised to use great caution in publishing discoveries. The same applies to methods of treatment whose value is not recognized by the profession. When a doctor is called upon to give evidence 01' a certificate he should only state that which he can verify. ~
is
Duties of Doctors to the Sick
A doctor must always bear in mind the importance of preserving human life from the time of conception until death. A doctor owes to his patient complete loyalty and all the resource~ of his science. -Whenever an examination or treatment is beyond his capacity he should summon another doctor who has the nece"Ssary al1ility. A doctor owes to his patient absolute secrecy regarding that which has been confided to him or which he knows because of the confidence reposed in him. A doctor must give the necessary treatment in an emergency, unless he is assured that it can and will be given by others. Duties of Doctors to Each Other
A doctor ought to behave towards his colleagues as he would have them behave towards him. A doctor mnst not entice away patients from his colleagues. (4) Pledge of Florence Nightingale.
I solemnly pledge myself before God and in the presence of this assernbly to pass my life in purity and to practice my profession faith fully. I will abstain from whatever is deleterious or mischievous, and will not take or knowingly administer any har-mful drug. I will do all in my power to elevate the standard of my pmfession, and will hold in confidence all personal matters committed to my keeping, and all family affairs coming to my knowledge in the practice of my calling.
70
,\;fEDICAL LAW AND ETHICS IN INDIA
lVith loyalty will I endeavour to aid the physician in his work and devote myself to the welfare of those committed to my care. (5) The Pharmacists' Oath1 I prQmise to do all I can to protect and improve the physical and moral well-being of society, holding the health and safety of my com munity above other considerations. I shall uphold the laws and standards governing my profession, avoiding all forms of misrepresentation, and I shall safeguard the distribution of medical and potent substances. Knowledge gained about patients I shall hold in confidence and never divulge unless compelled to do so by law. I shall strive to petfect and enlarge my knowledge the better to contribute to the advancement of pharmacy and the public health. I furthermore promise to maintain my honour and credit in all transactions and by my conduct never to bring discredit to 1nyself or my profession, nor to do anything to diminish the trust reposed in my pro fessional brethren. ' May I prosper and live long in favour as I keep and hold to this my Oath, but should I violate these sacred promises rnay the reverse be my lot.
Section 2 -
MEANING OF ETHICS AND ETIQUETTE
Ethics is the science of moral values. The rules of conduct based on m;;~les which--;~~-~;~~;~i;t~d~bY a recognised association are collectively called a Code of Ethics. Ivledical et11!<::~.lrH!YL.th_~refore, be descrjh.ed_~~the moral principleswllic)J shol11dguide members of the medical profession in their dealings with each other and with their patients. Having regard to the duties which doctors have been called upon to perform in a welfare state, it may truly he said that ethics also include the moral principles that should guide members of the profeSSion in their dealings with the State. ~
~of£Q-1u:1e~.9J)sQrVe~4Jl~t~v_gg.!U:!le11] be!§'__9i~_.~'l!!?:~Jl!Qfes_sjQ_I!, It may be noted that the expression 'medical etiquette' is confined only to the rules of conduct governing the relationship of members of the medical profession as between themselves. ~'"'_"""h_~-~
1
-
-
'~.-~"~_
... ,,~. __ •
Quoted from the Code of Pharmaceutical Ethics with the kind permission of the BOMBAY STATE PHARMACY COU';';C£L.
MEDICAL ETI-IICS, ETIQUETTE AND DISCIPLINAHY COUNCILS
Section 3 -
71
SOME !:.tv!PORTA:-JT ASPECTS OF ETHICS A:-JD ETIQUETTE
As the principal purpose of the medical practitioner is to render service to suffering humanity, he invites the confidence of those whom he treats and advises. To deserve the full measure of his patient's con fidence he should strive to conduct himself in a disciplined manner. The commDnly accepted of disciplined behaviour fDr medical practi tioners are embodied in what is known as a 'Code of Ethics', Before the various codes of ethics and etiquette as enunciated by various bodies and councils are cited in full, some important aspects thereof are first discussed. (tl)
Aims of the Doctor
A medical practitioner ought to keep in mind fDur cardinal CD T~serve lif
_w',,_
~_.- ..., , -
~
_~~~._~_.~.
officio1,!~lY~() saye_.0lLc.h~"
C} ~.~ The second aim is to effect-the cure of illne~ Where a cure is not ..- ' --~.-~-----~------------
possible, the object should be to suffering. A doctor must also aim at bringing comfort to a patient. In the process of effecting a cure or relieving pain, a practitioner, on account of the faith which he inspires in his patient, may by sympathetic care and by explaining the illness or disease bring solace to his patient. It is often said that though a parti cular doctor is not very clever, his patients have great faith in him. This is because the particular practitioner in great abundance the faculty of bringing comfort to the patient. A doctor deals with human beings. His attitude, his way of handling a patient, his understanding of and his approach to human suffering - all these have a bearing on his ability to inspire confidence in the patient. He should, therefore, r!lin~._ his lang~age and his temper. He ought not to lose his temper 'and indulge in strMg lang{;ge~~ must never use profane language. Every pro
J
72
MEDICAL LAW AND ETHICS IN INDIA
fessional man is expected f~stJ&J~9_~. In the course of his practice, the practitioner will come across many trying circumstances which call for self-control. No wonder that in almost all codes. of ethics it is emphasised that the demeanour of a practitioner towards a patient must be cautious, sympathetic, friendly and helpful. ~f!:eventio~_~~, is also the aim of the doctor. Prevention is better than cure. A modem practitioner, compared to his forefathers, is in an enviable position for the purpose of achieving the aim of preventing disease. The progress pharmaceutieals and drugs have made makes it possible for a doctor to prescribe to his patient the proper medicine for the prevention of a disease. ®. The fourth aim of the practitioner is t.9 help in the ad"ancf:Il1 e!lt of medicELkno~ledge. If he bas discovered something, however small, he should attempt to disseminate his knowledge. The most effective way open to him is to publish his observations and knowledge in medical journals. If he feels that a particular drug does harm to a particular type of patient or in a particular type of disease, it is his duty to inform his brother practitioners of this. His aim of advancing medical know ledge is also achieved by improving and expanding his own knowledge. He ought to read particularly the current medical journals. (b)
Assisting or Obtaining Assistance of Non-medical Men
It is unethical for medical practitioners to co-operate with or obtain\ the co-operation of non-medical men with regard to their professiona~' practice. The following enquiry was made by a doetor from the BO~1BAY MEDICAL COUNCIL. Could he obtain the co-operation of a elinical laboratory which was not conducted under the supervision of a medical man but was run by a science graduate who had no medical qualifications. The MAHARAsHTRA (BOMBAY AREA) MEDIC..<\.L COUNCIL, in its reply, stated, "The medical practitioner should not co-operate with the clinical laboratory conducted by a B.Sc. who neither has medical q ualifleations nor works under the supervision of a medical man. Such a person, by himself, is not competent to assess the results obtained and, as he is not directly under the control of the medieal council, a report submitted by him, if incorrect, will reflect upon the medical practitioner who acts OIl the report." THE MAHARASHTRA (BOMBAY AREA) MEDICAL COUNCIL, in its Code of Ethicsl, states that it is a grave offence for a practitioner to enable an unqualified person to attend, treat or petform operations OIl patients in respect of matters requiring professional discretion or skilL Practitioners 1
Part 1, item 6.
• • • • •
• • • • ,• •
J
» » »
,
•
• • )
• •J
J J J
J
J
MEDICAL ETHICS, E'fIQUETTE AND DISCIPLINARY COUNCILS
73
are w arned that if found guilty of this offence, the:c,:-trt:; JiableJo have their names erased from the register witl,lout any further warning. Item 14 of Part II of the same Code of Ethics may also be noted. A practitioner cannot join the teaching staff and/or participate in the teaching, examination or grant of certificates in any professional subjcct in an institution which is not recognized for teaching medicine by the State Government nor is affiliated to a recognized licensing body or a statutory university. This provision, however, does not apply so as to restrict the teaching of pre-medical subjects such as anatomy and physiology by registered medical practitioners in non-medical but re cognized teaching institutions. (c)
Attendance
The physician may choos~\Ybom he wilLtreat. However, as stated in thc Code of Ethics of the MAHARASHTRA (Bm1BAY AREA) MEDICAL CouNcrr"z "In case of emergencies if the regular medical attenda.'1t is not available it is your duty to attend ~uch a call for the first time. You may deny to do so in case of your OWl1 illness preventing you from doing so." ~ Having undertaken the care of a patient, the practitioner should not neglect him; and unless he has been discharged he can dis continue his services only after giving adequate notice. T.~. a meqical pra~_tJtiy_~~_dl~S,_ a:cig~_~!<:>.chooseJ!i~_J2~Ilt,,~a~~g t:9.1.~L9~~he .!~~~.LQis __ ~ once._he _~_cQeptsthe_ ch(:u:gejU~s ~!_~ __ resP9D§lQQ~tLt9__~~::rc~~~___~::r~._<:are and diligence~ in the diagIl~)~i~
Item 2 of the suggestions.
74
MEDICAL LAW AND ETHICS IN INDIA
(5) that previous financial obligations are not being fulfilled by the patient; ,/ (6) that he finds that another practitioner is also in attendance; . / (7) that the patient persists in the use of intoxicants or poisons. '" The practitioner need not give up a case because he cannot cure it , so long as the patient desires his services.) In case the condition of a patient becomes serious during treatment, the practitioner should not fail to give timely advice or information to the family and also to the patient when necessary. If the disease becomes serious or incurable, he should ask for a consultation, but he cannot leave the patient without his consent. ~
(d)
Engaging in Business
The following practices tend to lower the dignity of the profession inasmuch as such activities are indicative of the practitioner being en gaged in business and not in the profession. Such practices should, there fore, be avoided. (a) Keeping an open shop, that is, one for the sale of medicines, medical or surgical appliances, etc. other than those prescribed by himself or by another registered practitioner, or styling his dispensary in such a way as to cause it to be taken for a chemist's shop, e.g. "A & Co.) Dispensing Chemists." / (b) ~ianufacturing or taking part in the manufacture or sale of proprietary or patent medicines whose formulae are not dis closed on the label. / (c) Giving certificates under his own name to manufacturers of secret remedies, proprietary or patent medicines. / (d) Receiving commissions from agents or tradesmen in return for recommending their wares or from dentists for recom mending patients and paying commissions to hotel proprie tors, lodging-house keepers, nurses, midwives or others for introduction of cases. /' (e) Styling a private nursing horne, dispensary or hospital after that of some renowned personage, e.g., Hippocrates Clinic, or by high-sounding medical terms, e.g., Genito-urinary, Venercal and Skin Hospital, Cancer Institute, etc. There is no objection, however, to a registered practitioner being financially interested in a nursing home either as a part or sole proprietor. / . (e) Consultation
There are certain points concerning consultation which should be noted. There are occasions when a practitioner must needs advise his patient to obtain a consultation with another doctor or with a specialist. As to such eircumstances, a practitioner is the best judge but it must be pointed out that his vanity ought not to prevent a doctor, when a con
1.fEDICAL ETHICS, ETIQUETTE AND DISCIPLlKARY COUNCILS
75
sultation is really necessary, to refuse to recommend it or to refuse to accede to the request of a patient for consultation with some other doctor. No medical practitioner can claim to be a specialist in every .branch of medicine. Situations may, therefore, quite often arise where a specialist must needs be comulted. In the following 0£.
1
•
c
76
MEDICAL LAW AND ETHICS IN INDIA
should frankly and impartially explained to the patient concerned. It .is open to him to seek further advice either jointly with those already fn -attendance, which is preferable, or with the new consultant alone. The following advice regarding consultation is given in the Principles of Medical Ethics of the INDL'cN MEDICAL ASSOCIATION: attendance of a consulting practitioner should cease (1) when the consultation is concluded, unless another appoint ment is arranged by the medical attendant or unless the patient has dispensed with the services of the medical at tendant and engaged those of another. In no case should the consulting practitioner treat the patient alone or hand him over to his assistants or remove him to a nursing home or private hospital without the knowledge of the medical at tendant, or injure the latter's position in any respect. (2) \Vhen a consultant in his room sees a patient at the request of a medical practitioner, it is his duty to write to the latter stating his opinion of the case with the line of treatment he thinks should be adopted, and he should not again see the same patient without a fresh note from his medical attend ant. (3) When a practitioner is consulted by a patient whom he has previously attended during the course of the same illness at the request of another practitioner, he may propose a con sultation with the said practitioner, but should decline to take charge of the case, unless expressly desired to do so by the said attending practitioner. (4) A practitioner called upon in an emergency to visit a patient who, under ordinary circumstances, would have been attended by another practitioner, should, when the emergency is pro vided for, retire in favour of that medical attendant but shall be entitled to charge the patient for his services. (.5) A practitioner entmsted with the care of thg practice of another member during sickness or absence should not charge the absent praetitioner for his services, unless otherwise agreed to. (6) When a medical officer in the service of the State is required to give a second medical opinion in a case of illness or injury, he should do so either after consulting the doctor in attend ance or, in his absence, after considering an explanatory note from the doctor. It will be incumbent on the employer to inform the doctor in attendance when he refers anv case for second medieal opinion, and on the patient to take his doctor with him or, in his absence, an explanatory note. At such consultation the medical officer should scrupu lously avoid making any remarks on the treatment of the patient.
Usual procedure at consultation: (i) The general practitioner, in the consultant of the case. \vith the case, should O~~~~~~~~~:~~~:~~~:~_
1\1EDICAL ETHICS, ETIQUETTE AND DISCIPLINARY CODNCr
(U) The consultant then, if required, puts questions to the
and makes his own examination.
(iii) At the conclusion of the examination, the c nsultant a f'l..Il1~bYSictill.l s~Q!:lJd,Jet.i!:~~JQ~discu~ in private the .pr6.5 • ;:. ,,'~and cons conoommg dIagnosIs, treatment and prognosIs of(.~ '. ~r ...." the case and the consultant then should suggest trcatment, .• preferably in writing. (iv) The ol!!lliog on the case and the treatment ;tS agreed should
b...Q communicated to the patient or the patient s representatives,
where practicable, by the practitioner consulted, in the pre
sence of the attending practitioner.
(v) Should the practitioner consulted and the attending practi
tioner hold divergent views, either on the diagnosis or on the
treatment of the case, and should the attending practioner be
unwilling to pursue the course of action advised by the practi
tioner consulted, this d}tference of 221nion shoyld be GQIp.
rQunicateQ.~tQj:hepatiel).l.. or his representatives by the prac
titioner consulted and the attending practitioner jointly, and
the patient or his representatives should then be advised either
to choose one or other of the suggested alternatives or to
obtain further professional advice.
(vi) A consultant havin once seen a case has no claim to be
ca led in several times even if theneed arises. (vii) It is within the province of the family physician and his
patient whether to call the original consultant or another
one, when required again . .; (viii) Under no circumstances should the consultant write to the
patient or his friends and relatives inquiring about the
patient's progress, if he is desirous of knowing the progress
of the case, he should communicate with the family physician.
THE BRITISH MEDICAL ASSOCIATION has framed excellent mles regard medical consultations for the guidance of its members. The medical practitioners of this country are advised to study and follow them. l -~-~'~~-'-'.' -.--.-~-----~----
"~-.--~~ --~,~-- ----"""-"--~---,.--
(f) Etiquette As Regards Colleagues
It is an elementary rule of ethics that a doctor must not entice away patients from his colleagues and that he ought to behave towards his colleagues as he would have them behave towards him. The duties of doctors towards each other are described in these words in the Inter national Code of Ethics: "Somewhat difficult questions of etiquette between practitioners do arise in situations where, after a patient has been treated by one doctor, another doctor is called in for consultation or second opinion. The questions then arise regarding the proper etiquette on the part of one doctor towards the other. The following points of etiquette are well settled. 1
Supplement to R M. ]. Vol. 1, 1954, p. 7.
78
MEDICAL LAW AND ETHICS IN INDIA
The attendance of the practitioner eonsulted should cease when the cons~lt-~l:
!
(g) Fees
A practitioner's should commensurate with the senTices ren-l dered and the patient's ability to pay. For his services, a doctor rightly.
MEDICAL ETHICS, ETIQUETTE AND DISCIPLINARY COUNCILS
79
expects to be reasonably compensated. As to what would be reasonable would depend upon the practitioner's capability, training and exper ience and the current practice among his colleagues. He should neither -~L nor !_~cei~~~Ls:ommission for referring . patients. Drugs, remedies or appliances may be dispensed or supplied by the physician provided they are in the best interests of the patient. .---~--."-~-
-
~-.-".-
AEreeing to _atte~ any p~:!~~!~ (.:::m:~t:~h~e~t::;e~:r:m:.:~s:·.~::::':'.~:~::;:.~.:::-":;':.::2~~~.;::"'Jt::..':!.L--=' objectionable. :I;:xhibiting publicly a scale of feQ.s when such scale is visible from outside the premises is also o~tionabl5:_ Dichotomy or Splitting of Fees. The practice most condemned ~.---concerning fees is c!ic~9tomy or the splitting of fees. Jt is cQ.ndemneg A medical man is a professional man. He is not doing business. Splitting of fees has about it the atmosphere of com mercialism. A doctor ought, therefore, to avoid indulging in the practice of dichotomy. The evil of dichotomy cannot be over-emphasized. It destroys the good and unselfish doctor-patient relationship. A patient is bound to think low of the medical profession if he discovers that behind his back his regular medical attendant has received fees from a specialist or an other doctor who was called in for a second opinion, A patient will have the satisfaction that he justly pays for the service of hvo doctors if, as a matter of fact, each doctor has received what is due to him for the services rendered by him, ~ndant l~alls in £L"§J2~ciCllli1 is not a commercial and, therefore, he should not expect to be remunerated for bringing in another doctor for consultation, "fegal Aspect of Di~ny or Splittil]~of Fees, It is submitted that it is illegal for a doctor to indulge in the practice of dichotomy. \Vhen a medical practitioner consults a specialist as regards his patient, he is an agent of the patient for the purposes of consultation, \Vhen a medical practitioner brings in a specialist for consultation, he is entitled to charge only his fee for the visit, He has no right whatsoever to re some extra amount of remuneration from the consultant. _-!...._~<'--___ ~<__ ~~,_._._,'"''----~.~l_·s._th__a,_t__a_~n_ ~~_LJ!lust -D.()L_~i
acquir~~flYIJrQfil (J!.QeI!~iitJr()~~i~
ag~!lD'~~~:~_t~~t!::()rl~emr:lated by the principal
80
MEDICAL LAW AND ETHICS IN INDIA
the patient is entitled to recover from his medical attendant the amount ~ received by him from the specialist. J (h) Medical Secrets
The question as to how much a doctor should tell a patient or the patient's relations and to what degree he would be justified in maintain ing mental reservations are dealt with separately. The topic discussed here is the well-known subject of the duty of a practitioner not to ----. divulge to a third party any information which he acquires during the
~ourse of hispr~fe;;i;;:~;i~~~Etio~ship -~~hfs"p"~ti;;-;C---' -~ -"~ " . .~-
~~"
--
..- At the outset, ~-;;me gene'~~l-ob~s may b-~ade. A medicall practitioner is under an obligation to his patient to preserve his secrets but in a court of law, even without the patient's consent," he is bound to answer questions relevant to the case before the court. A medical . ~tion~s not bound to_ answer ques!i:9ns put" to~ by_p~eJ!> solicitors. yakils or other non-judicii!tlt©rs~ms•._No medical practitioner should volunteer to give evidence in a court of law against any person who has been under his professional care. He should only appear on subpoena. A practitioner should not reveal theconfidences entrusted to him in the course of medical attendance or the deficiencies he may observe in the character of patients, unless he is required to do so by law or ~less it becomes ne£~~iE~_"~~c!c;t:"to_p~otec! ~he'Y~lfare_~f the indivjdu~l or of the communi!y: The reader is referred to an interesting article on "MEDICAL SECHEd'l by Hugh \Vood, M.D. The learned author opens his article with a quotation from Sheridan's play, The Rivals. "If, however, you betray what you are entrusted with, you forfeit my confidence for ever and your being a simpleton shall be no excuse." doctor should, be discreet. If he discloses a secret, therefore, remember that he must . except where he is compelled to do so in a court of law, he would deserve to be rebuked by his patient, the public and his brothers in the profession. It will be no answer for him to say, "Well, I am a simple I meant no harm», To borrow the languag~ of Sheridan, beingm;dicai a simpleton shall be no excuse for the unwarranted disclosure
-
(A
---""
~)
.
--~-'
Voluntary Disclosure. One of the most important points concerning ethic~ on wEich ~medi~;l opinion is divided is the question regarding voluntary disclosure of the condition of a patient suffering from a venereal disease. Both the opposing views are agreed as to the initial as tot step to be taken by the doctor in a ca~e where the question whether a doctor ought to reveal the fact that his patient suffers from ~ 1
Lancet, 26th April 1941, p. 58:3.
IviEDICAL ETHICS, ETIQUETTE AND DISC[PLINAIW COONCILS
81
syphilis when tl~e patient is ab~lit t.o marry a woman who might innO-j cently contract It. In such a sItuatIOll the first step a doctor ought to take is to impress upon the patient the wickedness of his decision to marrY a \,:oman who might innocently contract the disease. But \vhat if the doctor cannot dissuade the . JE!.~~<:nt? SgI!le~£ of <----.... ~-~---.~.~-----=~-
the view ~hat t!le ~mpli~d obli~tion~~~~Et~f. tI:~s!.99!Qr:_~g! to i 4h'l:!ke hIs patIent s secrets, does not mvolve an oblIgahon \In hIS part! to stand by helplessly while the patient is about to inflict a grave injury upon an innocent third party. If a person suffering from a venereal dis ease acts with moral irresponsibility and decides to marry a woman who would innocently contract the disease, the moral irresponsibility of the patient discharges the doctor from his normal moral responsibility to observe medical secrec~ Sj2Ille, however~clLJo the .idea of secrecy ~·~!iL~.21tThey believe that if disclosure of a venereal disease even in the above circumstances can be permitted one could imagine many situations where, on acconnt of the morell irresponsibility of the paticnt, a doctor might be inclined to take the view that he is discharged from his moral to observe the medical -~~~~--~-~-~.-'-""'-.~--"""'-'-~~'=~""'
me~ci:~l~e~~;~~:;;o7~_t::~~:~~;~~~~~~:~~_tI:~'~;~~;c:;:_ IIi
the dOctor. ThIs l)asic relationship would be undermined if it is re~;-;g~lat in a case where a patient acts irresponsibly, the doctor is released from his moral obligation to keep the secrets of his profession. It would, however, be most helpful if medical authorities would openly declare by their rules of ethics what the doctor is expected to do in such a situation. The author takes the view that in a situation like the one stated it would be for the doctor medical that there is a harm to an i_nIloc~Ilt thir:QQ
-
-
.,-~-~-.
_ _~~~~--~~~~~~ __
1
Lancet, 15th April HJ5J
-
~"_"~~~~_~~~c~•• ~.~.;.~
-
-~~~~--~---~~~~~~
if
82
MEDICAL LAW AND ETHICS IN' Il\DIA
when saw a young man, whom he had recently treated for a syphilitic sore, about to enter it. The physician tried his best to prevent the young man from entering the pool. However, the young man could not be dissuadcd. The physician thereupon reported the matter to the ant who refuscd to allow the young man to bathe.. An action was brought against the doctor for breach of professional confidence. The Austrian Court dismissed the case on the ground that the doct~~:11ad acted in the , ........................ interest of the CLLLvlH",
--~---
~-~~
Even is ethically p~t?lTl~is_sil:>le,.~~~_~!:o.ul~J?e restri<;.ted r-0l'\t. to those th§.!.i,sk- In British Surgical Practice, the opinion is expressed that a medical man may be released from his obligation of seereey on the ground of ~I moral dut.Y.: But the medical practitioner can divulge his communication only to those pers~lls to whom is under a social or moral duty to disclose it. Other wise, apart from being condemned by his professional brothers, he would be liable to pay O)1e such case is reported by Dr. A. P. 2 Thompson : "In cases of disclosure has been consi dered justificd when the patienfs condition involves the infection of others but a doctor has had to pay damages because he revealed the fact that a bannaid had venereal disease, not only to her husband and her employers, but also to another barmaid. It was he1cl that the disclosure to the husband and the employers was justified and the were in respect of the com munication to the fellow " Other problems may now be posed which are commonly discussed in books on ethics. Suppose a doctor becomes aware that a patient, who is an engine driver, has frequent epileptic attacks. It is true that the simplest thing to do in such circumstances is for the doctor to bring to bear his position of confidence upon patient so as to dissuade him from continuing to drive the If the patient refuses to accept this advice, the doctor should attempt to obtain his consent to disclose the fact to his employer. If he fails to consent (though it should be admitted that there are two points of view on this subject) on the general principles discussed in of a person suffering from a venereal disease, it would be competent to the doctor to divulge his communication to the employer of his patient. Charles J. Ivlaefadden' stated the general principle for the solution of cases in the follow ing words, "The professional person is to maintain the secret I~ just as long as the patient retains right to his secret. t\ 1
Vol. 5, p. 378.
2 "PROFESSroKAL SECRECY", an article in The Practitioner, July 1957, p. 34. Afedical Ethics, p. ;377.
MEDICAL ETHICS, ETIQUETTE AND DISCIPLI:"JARY COUNCILS
83
same principle may also be stated in another form: The professional person should the secret when owner of the secret would himself be committing sin by not ~ng "
~
Disclosure in a COUlt of Law. In a court of law a doctor cannot claim privilege concerning cominunicatiollS between himself and his patient if the subject matter of the communication is relevant to the inquiry before the court. "The relationship a medical practitioner and his 1 patient does not excuse the formei', whatever medical etiquette ' may require, from the obligation, if called upon, to givc evi dencein a court of lenv. is in the same position as any other person who is not especially privileged in this by the ~ law. He may be called to give evidence in civil or criminal ! cases, and is liable to punished for contempt of court if he i neglects to att(?l}cL He may be asked to disClose all oatl1li1fOr= mation which came to him through his professional relationship with a patient; and, if the question is not inadmissible on other j grounds, he may be committed for contempt of court if he' refuses to answer." 1 medical practi tioner in the witness box is not relevant to ingpiry before the court, it would be most improper to give this information. Judges do insist upon medical secrecy where disclosure of a medical secret is not to the proceedings before a court of law. Il!.JaC:~1,~~.2~_It would be inclin~~l_t~Jook cl9_~'.::!l_::!P()l} ~~r~E;.dical man who,_,<1~iscl_~~lOls~fl2~gici.}l sec.r~L~·'\!hQn there~i:LnO_QQIl}J2£m~~ r~ecessi!2:,.~t2_~1Q..~Q~. In Healey v. O'Dol1iwl", J\Ir. Justice Charles sternly rebuked 'a doctor giving evidence before him for a question put by counsel as to the nature of illness for which he had treated his deceased patient. "I should have thought", said His Lordsbip, "that this was a matter of the most secret privacy. \Vhat do you mean by revealing to be a matter of the most secret confidence between YOll and your patient?" The case was one in \"Chich the widow of a former patient was suing a doctor to recover a sum alleged to bc the balance of a loan of £. 200j- made by patient to the doctor. It was not necessary for the purposes of the c<'.se for the defendant doctor to have referred to the illness for which the patient had consulted him. The court the doctor on whose 1n " Refer to the
for an
int~re~ti!lg
Ethics of Medical Practice. bv John
debate on the problem of disclosure ;-. 37-4:1; Illto General
(ice, hy J. G. Thwaitcs. pp. 182-184; bv .l-.Iaurice pp. 4'3-43; PROFESSIONAL SECHECY, by A. P. Thompson' in the Practitioller, July 1957, p. Law alld Ethics for by Hadfield, pp. 60-61. 1 Halsbmy Vol. 26, 3rd Ed., p, 11. z La1lcet, 25th 1936.
84
MEDICAL LAW AND ETHICS IN INDIA
structions the question concerning the medical secret was put to him. The doctor said that he had told his solicitor and counsel that he did not wish matters concerning his patient to be revealed in court. The judge thereupon rebuked the counsel who had asked the question which should not have been asked. After referring to the facts of the above case, the learned correspondent of the Lancet remarks: "Thus we see that the rule of medical privilege (which, as we all know, ~xists_~~l)fO tect thej2atient and not to protect the doctor) may raise its modest head in the Law Courts after all." As regards professional secrecy the following general points may be noted: (i) A practitioner should not discuss the illness of his patient with others, even when it seems insignificant to him, without the consent of the patient. i (ii) A practitioner should not answer any inquiry (in writing or otherwise) by third parties even when such queries come from near relatives of the patient, either with regard to the nature of the illness or with regard to any subsequent effect of such illness on the patient, except with the consent of the patient or his legal adviser. j (iii) Even when requested for information concerning the illness of his patient by a public or statutory body, a practitioner should not disclose such information without the authority (express or implied) of the patient. However, when the practitioner is bound to give such information under some provision, for example, in cases of dangerous diseases under Municipal Acts, no such authority of the patient is required. In cases where the consent of the patient is required and the patient is either a minor or mentally deranged, such authority must be /obtained from his guardian or some responsible person."! (iv) A medical practitioner should not divulge to the relatives of the patient any facts about the illness without the patient's consent, if the patient is a major, though the relatives may request the practitioner to do so and though such persons may even be defraying the medical expenses of the patient. In cases of minors and mentally deranged persons, parents apd guardians have a right to know of the facts relating to the nature of the illness . ./ (v) Even in the case of husband and wife, the facts relating to the nature of illness of the one must not be disclosed to the other vvithout the consent of the person concerned, irrespec tive of the fact that the other party (hpsband or wife) may be paying the bills of the doctor.t'° (vi) vVhen a domestic servant, male or female, is examined at the instance of the master or mistress, the practitioner should note that the principle of professional secrecy also holds good in such cases and he has no right to divulge any facts relating to the illness without the express consent of the servant ex amined; and he should take care to obtain the consent of the
~~
~-
---~--,-,~-<-~-~---
>
-
..
MEDICAL ETHICS, ETIQlJETTE AND DISCIPLINARY COlJNCILS
85
person examined before disclosing any facts relating to the
illness to the master or the mistress. Before entering on the
examination, the person must be told that the practitioner
is examining that person on behalf and at the instance of the
master or mistress. If the patient objects to the disclosure
then it is advisable not to enter upon the examination at all.
It is posible that such a person may consent to the disclosure
of his or her condition prior to the examination but may sub
sequently change his or her mind and tell the practitioner
not to disclose the result of the examination to the master
or mistress. In such a case, the position of the practitioner
may become extremely embarrassing but it is advisable not
to, disclo!.e the results of the exarpination to the master or the"
mIstress.
It should be noted that the consent of a person to his examination and consent to disclose the results of the exami- N,'i-e nation are two different things and consent at both stages is • necessary. / ~ (vii) In the case of a person in Government service, permission is
necessary before disclosing the nature of the illness to the
Government when a practitioner examines a case on behalf
of the Government./_
(viii) In the case of a person who is in the custody of the police ':)c..~ ),) ~ ... as an under-trial prisoner, the person examined has the right c'," '-' not to permit the medical officer who has examined him to divulge the nature of his illness to any person/1f a person is convict(;~~f1as !l~1!chright~e medical officer.·m~ CiliCIOse the r~sulfof hiL~~!i!1lin<:lt!ol!.tQ the.authQri1itl,~. (ill") \Vhen a practitioner is the medical officer of a firm or factory
and he examines an employee of such a firm or factory, he
should not disclose the results of his examination to the
employers without the consent of the employee.
Employers seem to think that they are entitled to know,
as of right, the result of such examinations. They are wrong.
A disclosure should never be made without the consent of the
employee. A doctor in charge of a firm can enquire of the
family doctor of an employee about the nature of a previous
illness of the employee, with the sole idea of ensuring the
welfare of the patient. In such a case, .!h~-1!Y..(;L doctors~,can
.exchange infonnation. / (x) '[J:t~_.f~aII1in
a yolurltgI}:~£,tJ:rLthLeximiiifs:uyho knows the purpQse_ ()[
the eX<;lmination and, therefore, consent to the disclosure of
the£ndingsmaybe taken as implied . . (xi) Government Medical Officers are bound by the code of pro
fessional secrecy gs they are independent practitioners in
relation to their patients. Such patients are either - (i) Gov ernment servants or (ii) they are citizens who come to him
for treatment utilizing the services of a Government institu
tion. It does not make any difference that the patients receive
gratuitolls service .. /
1
I:>
86
MEDICAL LAW AND ETHICS IN INDIA
Special care must be taken by Government medical offi cers when they have to report on the health of Government employees. Medical privileges are attached to such reports in the sense that a doctor cannot be compelled to disclose 1)rofessional.~sei2mrs:::~IB.iQJlt:JIi~'~m1sei1i:·~of·tlle·patlencY' . Voluntary Disclosure in Respect of Crimes. Ai)[actitioner \vlll do well to remember Section 202 of the Indian Penal Code which reads as follows: "\Vhoever, knowing or having reason to believe that an offence has been committed, intentionally omits to give any information ,..1 C'(\.i respecting that offence, which be is legally bound to give, shall' be punishablc with imprisonment for either descriptiol1 for a term which may to six months or with fine or with both." It may be noted that under this section of the Indian Penal Code a person is punishable only when he is bound by law to give information and he intentionally omits to give such information. No exeeption is made in favour of a medical practitioner, and, therefore, a practitioner is' liable to be punished if, being bound by law to give information re garding certain crimcs committed by his patient, he fails to communicate that information to the police. It is irrclevant that he acquircs the in-~ formation dming the course of his examination or treatment of a patient.~ 0nc1er Section of the Code of Criminal Procedure, every person aware of the commission of any offence punishable under certain sections of the Indian Penal Code mentioned therein, must forthwitTl information to the nearest magistrate or police officer of sllch com mission. If a practitioner, therefore, comes to know of the commission of an offence during the discharge of his professional duties, he is bound to inform a magistrate or the, police) The sections referred to deal with a to waae r of \var or ahettinDa the waaing (iJ• vVaaincr D b or attemptin . b D D \var against the Government of India (Section 121). (ii) Conspiracy to commit offences punishable by Section 121 (Section 121A). (iii) Collecting arms, etc., with the intention of waging war against the Gsyvernment of India. (Section (iv) Concealing with intent to facilitate a design to wage war. (Section 123). (v) Assaulting the President, Governor or Rajpramukh, etc. with intent to compel or restrain the exercise of any lmvful power. (Section 121). (vi) Sedition. (Section \Vaging war against any Asiatic Power which is in alliance with the Government. (Section 12.5). (viii) Committing depredation on tenitories of a power which is at peace with the Government. (Section 126). (ix) Aiding the escape of, rescuing or harbouring a prisoner. (Section 1,30).
-
Ii;
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87
(x) Unlawful assembly (Section 143). (xi) loLni1~g~ __11l11e::.\:£t!J assemblv
(Section 144).
(xii) Joining or continuing in unlawful assembly, knowing it has been commanded to disperse. (Section 14,5). (xiii) Punishment for rioting. (Section 147). (xiv) Rioting, armed with deadly weapon. (Section lA8). (xv) lvlurder. (xvi) M~!der by ~ life-_<:~(;!i~~!];. .?~:l). (xvii) <2umable homi£i~10t amou.!lt!ng t£2El~:!'de~jon 304). (xviii) Theft after preparation made for causing death, hurt or re straint in order to facilitate the committing of the theft. (Section 382). (xix) Robbery. (Section 392). (xx) Attempt to commit robbery. (Section .'39:3). (xxi) Voluntarily causing hurt in committing robbelY. (Section ,394). Dacoity. (Section 39.5). (xxiii) Dacoity with murder. (Section 396). (xxiv) Robbery or dacoity with attempt to calIse death or grievous hurt. (Section .'397).
Attempt to commit robhery or dacoity when armed with
deadly weapon. (Section 398).
(xxvi) Making preparation to commit dacoity. (Section :399). (xxvii) Assembly for the purpose of committing dacoity. (Section 402). (xxviii) Mischief by fire or explosive substance with intent to cause damage. (Section 435). (xxix) .t\Iischief by or explosive substance with intent to destroy a house, etc. (Section 4:36). (xxx) House-trespass in order to commit offence punishable \vith death. (Section 449). House-trespass in order to commit offenee punishable with transportation for life. (Section 450). (xxxii) Lurking house-tresp<~ss or house-breaking by night. (Section (xxxiii) Lurking house-trespass or house-breaking by night in order to commit offence punishabie with imprisonment. (Section 4':)7).
(xxxiv) Lurking house-trespass or house-breaking by night after pre paration for hurt, assault, or wrongful restraint. (Section 4.58). (xxxv) Grievous hurt caused whilst committing lurking house trespass or house-breaking. (Section 459). (xxxvi) All persons jointly concerned in lurking house-trespass or house-breaking by night punishable where death or grievous hurt is caused by one of them. (Section 460).
88
lvIEDICAL LAW AND ETHICS IN INDIA (i)
Medical Experimentation on Human Beings
Is it open to a practitioner to indulge in medical experimentation on human beings? It is true that without experimentation it is difficult to tell what effect a particular drug or a particular method of operation would have on a human being. Yet, il~JlQ.l: be rightE!.~~~vay._ ~Q._~erimeIl.L9.l!J1Um
~
-~-"'-"
~""-.~-
I
(j)
Nursing Homes
"Vith regard to nursing-homes and other medical institutions, the '~vfAHARASHTRA (BOMBAY AREA) MEDICAL COUNCIL has made the following suggestions in its Code of Ethics: 11955 B. M . .T., Vol. I, 526 and 1962 B. M. 1., Vol. 2, 1108.
2 Sec further uncler the topic "OPERATION WiTH NEW INsnm.MENTs" in Chapter VI.
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89
"If you are running an institution for a particular purpose such as a mental home, a sanatorium, a house for cripples, blind, etc., you may advertise it in the lay and medical press. The advertisement should not contain anything more than the following information: Name of the institution, the address and the approach, the types of patients admitted, facilities offered and the residential fees. The namc of the Superintendent may appear in the Medical Press. It is not adver tisement to celebrate the annual function of your institution and invite your friends to it. If you are running a nursing home and if you employ assistants to help you, the ultimate responsibility rests on you." It should be noted that a practitioner cannot style a private nursing home, dispensary or hospital after his own name. In 1931, the Bombay Medical Council removed from the Bombay Medical Register the name of a practitioner who styled his nursing home after his own name. (k) Prescriptions and Drugs
Dnlgs should be ~se.9:~~~_~~~Eeutic agen,ts. They must b~a(!min~~~t?E~.~~:-?~ patient because the patient has acquired the 11~'lbi! of taking dtug~ The doctor in prescribing narcotics ought to be extra cautious and must not help a patient to indulge in them. vVhat is most effective as a therapeutic agent ought to be used and its effect of producing poisons and such other undesirable side effects should be takcn care of. Prior to the administration of a narcotic, the undesirab}& side-effects expected to result should be weighed against the gravity of the illness. A drug is not to be used necessarily because it.is new when older ones are equally effective unless the use of new drugs produces less harmful side-effects than the older one. The cost of the drug must also be considered. If the new drug is cheaper than the older one, then also it is proper to prescribe it in preference to the older one. Further, doctors should note that be written in secret formulae. (1) Soliciting Clients and Advertisement
General Remarks. A practitioner should avoid soliciting practicJ,L either ---""---_. (i) personally, or (ii) by advertisements in newspapers, by placards or by distribution of circulars, cards or handbills, or (iii) by giving as com mission a percentage of fees received, or (iv) employing or sanctioning employment of agents or canvassers for the purpose of procuring patients, or. (v) associating \vith or advertising for the purpose of pro curing patients. -.~'--=-""~---==~~~=.".....,...,"
Fees. Agreeing to attend any patient on terms of "no cure, no pay" is objectionable. Similarly, exhibiting publicly a scale of fees when snch
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i\-fEmCAL LA \V AND ETHICS 1-'1 INDIA
scale is visible from outside the premises is also objectionable. But there i~ecti~~o ~~e_s_beingJ?ut
,-.-
upJ.gtl].Q.Pl11ctitiQner's_waiting
room or consulting room.
Publication. Publishing or sanctioning the publication of reports of cases \ or operations or other treatments, or letters of thanks from patients, or " of any kind of laudatory notices with regard to professional matters,} with or without photographs, in other than professional newspapers or I journals is objectionable. Discussing the futility or utility of different methods of diagnosis or treai111ent of diseases'in the lay press under the names of medical prac titioners and with their designations or by correspondence or by granting interviews to the representatives of the lay press and allowing the same to be published under tIleir names is objectionable. It is not in consonance with professional ethics that a medical in stitution should be advertised in lay papers unless such institution is registered as a charitable society. THE ,\1AHAHASHTRA (BOMBAY AREA) MEDICAL COUNCIL 111 its Code of Ethics states; "It is unethical for a pmctitioner to publish on his own in a lay press reports of cases treated or operated all by him or sanctioning the puhlication ill the lay or medical press of allY certificates for drugs, foods, appliances, sanitoria used by him or of any laudatory ~ statement about himself. \Vhen a doctor opens his practice or changes his office or has resumed his practice after a long inte1"val the notice regarding his address and telephone number should not appear more than tll;ice and not in more thcm two papers. But it shall be open for him to write ill the lay press under his own name on matters of public health interest and general articles which will promote hygienic living or deliver public lectures with the. same purpose. It shall be open to medical associations, hospitals and other bodies to puhlish the name of the lecturer and his subject in the Hon-medical press." 'What is prohibited is publication in the lay press of interviews, letters regarding disease and treatment with the object of seeking adveItisement and soliciting practice. Ethics do not prohibit publica tion in a lay press, even under a practitioner:s own mune, of matters of public health interest and general articles which promote hygienic living nor does it prohibit public lectures by practitioners for the same purpose. Telephone Directory. It is unethical to permit the printing of one's name in a telephone directory in types dissimilar to the standard size or shape or colour tending to give the name visual prominence over other names. THE J\L~HARASHTRA (BO:KIBAY AREA) f,IEDICAL COUNCIL has in formed its members that it is nnethical to list a practitioner's name in a Telephone Directory under the caption, "Doctors" or "Medical Practi tioners" or any other caption indicating the profeSSional status of the
I
MEDICAL ETHICS, ETIQUETTE A:\D DISCIPLINARY COUNCILS
91
practitioner. It is not, however, unethical to put "Dr." before a practitioner's name in a telephone directory.
Signboard. No medical practitioner should make use of an unduly large and, only in cases ,,,,here there are several entr<j1ces to a building or the building has more than one frontage, should he have more than one sign-board. The sign-board should never indicate more than the name, degree or diploma, and rank or title, if any, with the bare details .of any particular line of practice. Thus it would be proper to add "Physician", "Surgeon" or "Physician an<;l Surgeon", "Opthalmic "Surgeon", "Throat and Nose Specialist" or such other designation. The practitioner should not notify on a sign-board that the treatment of a disease by a special line of treatment is undertaken by him, e.g., treatment of diabetes by insulin.
sign~board
(m) How much should a Doctor Tell.
This subject, though treated from an ethical point view, cannot be ignored from the psycbological point of view. It would be correct to say that what is psychologically advisable in a particular situation is also ethically correct; for, after all, a doctor's conduct in maintaining mental reservations and in not disclosing certain items to a patient can best be judged only from what effect the ili3closure ':Y.Ould~ h~9 on Jlls;
•
In Hatcher v. Blaclel the court approved of the conduct of a doctor in suffering from goiter. that there was some slight ehance of the patienfs ~oice being affected as ~;-~;;-sult~~fthe after-df~~t _ Df a goiter operation. In fact, all the medical practitioners who gave evidence on the subject agreed that it was the correct eonduct on the part of the doctor. The court said that if the doctors who gave evidence did not condemn the practice of the practitioner, it would not be right for the comi to do so. It is, therefore, judicially recognised that are situations in which a doctor acts properly in not telling the patient the truth and in maintaining mental reservations. In considering the question whether a practitioner ought to complete information to a patient regarding the patient's condition, the psychological effect on the mind of the patient should be borne in mind. In an interesting article, Medical Ethics and Medical Etiquette,2 Professor John .Morley poses the following problem and offers these comments: ",Vhen a patient is suffering from a disease that will be almost ineVitably fatal u;ithill a short time, should he be told? The problem ------=----------~--~ _=_"""'r·_~ __ '
p. Hi.
._.~_'""=~ ___
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MEDICAL LAW AND ETHICS IN INDIA
arises commonly when an exploratory operation has revealed an inoperable canceL The answer depends on aflestir~na!(;A~ thfi p.at}en(s. strengt!!YLf11J!IfJ£l§t 41]d m§n~al balance: "Where important business inierests are at stake and the -parierft asks right out what are his prospects, if it is thought that he is able to bear it with fortitude, he should be told quite candidly. But if the wrong type of patient is told that he is unlikely to live more than a few weeks 01" months he may react to the intelligence by committing suicide. In most cases, provided that the responsible relatives are informed as to the prognosis, it is both kinder and safer to encourage the patient in an optimism that the doctors may know in their hearts t? ?e ~nfounded, rem.e.mbering that )ite withput hORe is not worth Zwwg. In modem days it should be remembered that the understanding by the average person of medical diseases has increased. This factor should be borne in mind while considering whether or not to divulge all information to the patient. As to how much should be told to a patient depends upon thEi...Eatient's intelligence, his ability to appreciate what is being told to him, his education and his nervous and psychological attitude in the matte0 If the doctor decides not to tell a patient regarding a fatal disease from which the patient is suffering, he should, nevertheless, freely and frankly inform the patient's relatives about the disease. The reason is that certain interests of the patient might require to be safeguarded. It might, for example, be necessary that the patient should make his will or that some other arrangement be made regarding his business or other interests·t
I
(n)
Nurses
The aim of professional nurses is to minister to the sick and assume responsibility for creating a physical, social and spiritual environment which will be conducive to recovery. They should co~ordinate their services with members of other allied professions. 1 The fact that the need for nursing services is universal should re mind nurses that their service should be unrestricted by considerations of nationality, race, creed, colour, politics or social status. The various items and aspects of ethics discussed would, in large measure, apply to nurses as well. However, having regard to the peculiar position nurses occupy, some particular aspects pertaining to them may be pointed out. The following are among the points of ethics which nurses should bear in mind: (i) The religious heliefs of a patient must be respected. This has been set out in the International Code of Nursing Fthics adopted by the CHAND COUNCIL OF THE INTERNADONAL COUNCIL OF NlJRSES in Brazil in July 19.'53 as the object of the profession of nurses.
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(ii) A nurse must recognise not only the responsibility but the limitations of her (or his) professional functions and she must recommend or medical treatment without medical orders only in and she must report such action to a physician at earliest possible moment. (iii) A nurse is under an obligation to carry out the physician's orders intelligently and loyally and she must to parti cipate in unethical practices. (iv) Nurses must not permit their names to be uSed in connec tion with the advertisement of procedures or with any forms of self-advertisement. (v) In personal life, nurses must not disregard the accepted patterns of behaviour of the community in which they live and work. (vi) A nurse, when on duty, must wear a washable uniform and her hospital or registration badge; she should not wear any jewellery. (vii) A nurse must maintain a professional manner at all times. vVhile giving sympathetic attention to the patient and other members of the household she should avoid discussing her O\vn affairs or those of the other patients she has nursed. The p ractices noted below must be avoided as being unethical (i) Failure to carry out the sterilization of instruments. (ii) Falling asleep on night duty. (iii) A nurse, being in constant contact with the patient, is likely to encourage or upset the patient depending on how she behaves with the patient. She must avoid the use of profane language and an exhibition of bad temper. This is likely to produce a bad effect on the patient's psychological recovery. (0) Pharmacists
The Bombay Pharmacy Council has adopted a Code of Pha1'1na ceutical Ethics. Attention may be drawn to some important aspects mentioned there111: The primmy conditions which are required in a pham1acy should be such as to preclude the risk of accidental contamination in the pre paration" dispensing and supply of medicine. The appearance of the premises should reflect the professional character of the pharmacy. Sign boards, stationery and related indications should be restrained in size, design, and terms. A notice stating that "Dispensing under Employees State Insurance Scheme" qr under any other scheme sponsored by Government is caniccl out therein may be exhibited at the premises. In every pharmacy, there should be a pharmacist in personal control of the pharmacy, who may be regarded as primarily responsible for the observ ance of proper standards of conduct in connection with it. Any obstmc [ion of the pharmacist in the execution of his duty by the owner will be
1
94
IvIEDICAL LAW AND ETHICS IN INDIA
regarded as failure on the part of the owner to observe the standards
in question.
Handling of Prescriptions. It is not open to a pharmacist to comment
upon the merits and demerits of the therapeutical efficiency of a pres
cription.
should not even show so much as alarm or astonishment upon a prescription, as silch things may cause anxiety in patients or their agents and may even shake their faith in their physician. It is not within the privilege of a pharmacist to omit or substitute any ingredient or alter the composition of a medicine prescribed without the consent of the prescriber unless the ehange is emergent or is demanded purely by the teehnique of the pharmdceutical art and does not cause any alteration in the therapentical action or recipe. What should the pharmacist do if finds that there is an obvious error? In case of an obvious error in a prescription due to omission, incon!patibility or over-dosage, the prescription should be referred back to the prescriber for correction or approval of the change suggested. 'While such an act is imperative in the interests of a patient, in no case should it be done in a manner which may jeopardise the reputation of the physician concerned. Handling of Drugs. A pharmacist should always use drugs and medicinal preparations that are of standard quality. He should never llse spurious, sub-standard and unethical preparations.
Pharmacist in B.elation to his Trade. No attempt should be made to capture the business of a contemporary by cut-throat competition, i.e. by offering any sort of prize or gift or by any kind of allurement or by charging a lower price for medical commodities than charged by fellow pharmacists, if they are reasonable. Labels, trade marks and any other signs or samples of contemporaries should not be imitated or copied. Drugs should always bc purc11<1sed from genllinc and reputable sources and the pharmacist should ahvays be on his guard not to aiel directly or indirectly the manufacture, possession, distribution and sale of spurious or sub-standard drugs. Advertisement. No display material either on the premises, in the press or elsewhere should be used by a pharmacist in connection with a sale to the public of medicines or medical appliances which is undignified in style; nor should sHch things contain any disparaging references "to other suppliers or contain misleading or exaggerated statements of claim. Limitations of Professio1lal Activity. As a general a pharmacist should under no circumstances take to medical practice, i.e. to diagonis ing disease and presribing even if requested by his patrons
"MEDICAL ETHICS, ETIQUETTE AND DISCIPLINARY COUNCILS
to do so. But .in cases of accidents and emergencies, a pharmacist may render first-aid to the victim. No pharmacist should recornrnend a particular medical practitioner. unless he is specifically asked by the prospective patient to do so.
Part 2
TEXTS OF VARIOUS CODES OF ETHICS Section i-CODE
OF THE INDIAN MEDICAL ASSOCIATION
1
Part I
1. The principal objective of the medical profession is to render service to humanity with full respcct for dignity of man. Physicians should merit the confidence of patients entrusted to their care, rendering to each a fun measure of service and devotion. 2. Physicians should strive continually to improve medical know ledge and skill, and should make available to their patients and colleagues the benefits of their professional attainments. 3. A physician should practise a method of healing founded on a scientific basis, and he should not voluntarily associate professionally with anyone who violates this principle. 4. The medical profession should safeguard the public and itself against physicians deficient in moral character or profeSSional compc tence. Physicians should observe all la\vs, uphold the dignity and honour of the profession and accept its self-imposed disciplines. They should expose, without hesitation, illegal or unethical conduct of fellow members of the professibn. S. The physician may choose whom he will serve. In an emergency, however, he should render service to the best of his ability. Having undertaken the care of a patient, he may not neglect him; and unless he has been discharged he may discontinue his services only after giving adequate notice. He should not solicit patients. 6. A physicicU1 should not dispose of his services under terms of conditions which tend to interfere \vith or impair the free and complete exercise of his medical judgment and skill or tend to cause a detcliora tion of the quality of medical care. 7. In the practice of medicine a physician should limit the source him, of his professional income to medical service actually rendered or under llis supervision, to his patients. His should be commen surate with the services rendered and the patient's ability to pay. He should neither pay nor receive a commission for referral of patients. Drugs, remedies or appliances may be dispensed or supplied by the physician provided it is in the best interests of the patient, B."A physician should seck consultation upon request; in doubtful or difficult cases; or whenever it appears that the quality of medical service may be enhanced thereby. 1 Adopted hy the ·Working Committee of the INDIAN MEDICAL ASSOCIATION 67th ~'leeting held at Srinagar on 26th and 28th September, 19,59. The
reproduced with the permission of the
INDIAN MEDICAL ASSOCIATION.
its is
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!v1EDICAL LAW AND ETHICS IN INDIA
9. A physician may not reveal the confidence entrusted to him in the course of medical attendance, or the deficiencies he may observe in the character of patients, unless he is required to do so by law or unless it becomes necessary in order to protect the welfare of the individual or of the community. 10. The honoured ideals of the medical profession imply that the responsibilities of the physician extend not only to the individual, but also to society where these responsibilitie§ desenre his interest and participation in activities which have the purpose of improving both the health and the \vell-being of the individual and the community. Part II
The following advice on some of the main principles of Medical Ethics are recommended for the information and guidance of medical practitioners; A. Some Objectionable Practices:
Such practices which tend to lower the dignity of the profession should be avoided, viz., (a) Soliciting private practice either (i) personally or (ii) by advertisements in newspapers, by placards or by distributing circulars, cards or handbills or (iii) by giving as commission a percentage of fees received or (iv) employing or sanctioning employment of agents or can vassers for purpose of procuring patients or (v) associating with or accepting employment under any association which practices canvassing or advertising for the purpose of procuring patients. (b) Keeping an open shop, that is, one for the sale of medicines, medical or surgical appliances, etc. other than those prescribed by him self or by another registered practitioner, or styling his< dispensary in such a way as to cause it to be taken for a chemists' shop e.g. "Agarwal & Co., Dispensing Chemists". . (c) Manufacturing or taking pmt in the manufacture or sale of proprietary or patent medicines whose formulae are not disclosed on the label. (d) Giving certificates under their own names to manufacturers of secret remedies, proprietalY, or patent medicines. (e) Receiving commissions from agents or tradesmen in retum for recommending tradesmen of their wares or from a dentist for recom mending patients and paying commissions to hotel proprietors, lodging hOllse keepers, nurses, midwives or others for introduction to cases. (f) Writing prescriptions in a private formula of which only a particular pharmacist has the key. Such secret prescriptions are un professional. It does not prevent a practitioner keeping certain standard Lotions or Mixtures as long as a copy of the same is available. (g) ~1eeting in consultation an unqualified practitioner. There is no objection to a registered practitioner seeing the patient even if already· attended by an unqualified practitioner, so long as he gives his advice to the patient directly and does not enter into consultation with the unqualified practitioner. (h) Agreeing to attend any patient on the' terms of '<no cure, no pay."
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(i) Exhibiting publicly a scale of fees when such scale is visible from outside the premises. But there is no objection to a scale of fees being put up in the practitioner's waiting room or consulting room. Publishing or sanctioning the publication of reports of cases or operations or other treatments, or letters of thanks from patients, or of any kind of laudatory notices with regard to professional matters with or without photographs in other than professional newspapers or journals. (k) Discussing the futility or utility of different methods of diagnosis or treatment or diseases in the lay press under their names and designations or by correspondence or by granting interviews to the re presentatives of the lay press, and allowing the same to be published in or under their names. (l) It is not proper for a practitioner to style a private nursing home, dispensary or hospital after that of some renowned personage, e.g., Hippocrates Clinic, or by high-sounding medical tenns, e.g., Genito urinary, Venereal and Skin Hospital, Cancer Institute etc. There would be no objection to a registered practitioner being financially interested in a nursing home either as a part or whole proprietor. (m) It is not in consonance with professional ethics that a medical institution should be advertised in the lay papers unless such institution is registered as a charitable society. (n) No medical practitioner should make use of an unduly large Sign-board, and only in cases where there are several entrances, or the building has more than one frontage should he have more than one Sign-board be placed. The board should never indicate more than the name, degree or diploma, and rank or title, if any, with bare details of any particular line of practice. Thus it would be proper to add "'Physician", "Surgeon" or "Physician and Surgeon", "Opthalmic Surgeon", or "Throat and Nose Specialist" or such other single designa tion of one speciality only. The practitioner should not notify treatment of a disease by a special line of treatment e.g., treatment of diabetes by insulin. (0) If one has been sentenced to imprisonment by a criminal court for an offence indicating a defect in character the name of the practitioner is liable to be erased from the membership of the Medical Association and also from the :Medical Register. (p) Certificate, Notifications and Reports Registered practitioners are in certain cases bound by law to give or may be from time to time called upon or requested to give certificates, notifications, reports and other documents of a kindred character, signed by them in their professional capacity for subsequent use in ;ourts of justice or for administrative purposes, etc. Such documents include among other certificates, notifications, lorts (a) Under the Act relating to lunacy; (b) under the Factory Act; (c) under the Acts and Orders of Government relating to the Notification of infectious diseases, e.g" plague; ,(d) under the Cantonment Act;
m
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MEDICAL LAW AND ETHICS IN INDIA
(e) in connection with sick benefit, insurance and friendly society; (f) for procuring the issue of passports; (g) for executing attendance in courts of justice, in the public services, in public offices or in ordinary employment; (h) in connection with naval and military matters; (i) in connection with medico-legal examinations and reports. Any registered practitioner who shall be shown to have signed or given under his name and authority any such certificate, notification, report or document of a kindred character, which is untrue, misleading or improper, whether relating to the several matters above specified or otherwise, is liable to have his name erased from the medical register. Note :-The above instances of offences and of professional mis conduct which lower the prestige of the profeSSion do not constitute and are not intended to constitute a complete list of such acts. The practitioner should adhere to and be guided by the general principles as laid down in Part L B. General advice of medical attendance in general and consultations.
1. The attendance of a consulting practitioner ~hould cease when the consultation is concluded, unless another appoinbnent is arranged by the medical attendant or unless the patient has dispensed \vith the ser vices of the medical attendant and engaged those of anothcr. In no case should the consulting practitioner treat the patient alone or hand him over to his assistants or remove him to a nursing home or private hospital, without the knowledge of the medical attendant, or injure the latter's position in any respect. 2. \Vhen a consultant in his room sees a patient at the request of a medical practitioner, it is his duty to wlite to the latter, stating his opinion of the case with the line of treatment he thinks should be adopted, and he should not again see the same patient without a fresh note from his medical attendant. 3. When a practitioner is consulted by a patient whom he has previously attended during the course of the same illness at the request of another practitioner, he may propose a consultation with the said practitioner, but should decline to take charge of the case, unless ex pressly desired to do so by the said attending practitioner. 4. A practitioner called upon in an emergency to visit a patient, who under ordinary circumstances would have been attended by another practitioner, should when the emergency is provided for, retire in favour of that medical attendant but shall be entitled to charge the patient for his services . .5. A practitioner entrusted with the care of the practice of anotr member during sickness or absence should not charge the absent pr titioner for his services, unless otherwise agreed to. 6. \Vhen a medical officer in the service of the State is reqllir' give a medical opinion in a case of illness or injury, he should; j either after consulting the doetor in attendance or in his absenc';; considering an explanatory note from the doctor. It will be iniy on the employer to inform the doctor in attendance \.vhen he rf
MEDICAL ETHICS, ETIQUETTE AND DISCIPLINAHY COUNCILS
99
case for mcdical opinion, and on the patient to take his doctor with him or in absence an explanatory note. At· such consultation the medical officer should scrupulously avoid making any on the treatment of the patient. 7. There is no rule that medical practitioners should not charge one another for their services, but it should be considered as a pleasure and privilege to one's services freely to a professional brother, his wife and children, or to a medical student. 8. A medical practitioner is justified in refusing to continue at tendance on a case (a) where he finds another practitioner is in attendance; (b) where other remedies than those prescribed by him are be ing used; (c) where his remedies are refused; (d) where he is convinced the illness is an imposture, and he is being made a party to false pretence; (e) where the patient in the abuse of intoxicants or poisons. He need not give a case because he cannot cure it so long as the patient desires his 9. A medical practitioner is an obligation to his patient to preserve his secrets, in matters should, except with patient's consent, answer questions only at direction of the judge or magistrate presiding in a court law. 10. A medical practitioner is not bound to answer questions put to him by policemen, solicitors, or other non-judicial persons. 11. No medical practitioner should volunteer to give evidence in a court of law against any person who under his professional care. He should only appear on a patient under the 12. Medical officers of health should not care of a medical practitioncr without notice and should not express doubt or dissent with respect to the before the patient or his friends. A medical officer or health or sanitary authority ought not to demand a statement of the symptoms upon which a diagnosis of a notifiable disease was based by any medical practitioncr. 13. It is the duty of medical practitioners as citizells to assist cordially in carrying out the provisions of Public Health Acts especially \:vith regard to the notification of so as to enable the public health authorities to take preventive measures to check the sprcad of epidemics.
Section 2 - CODE OF BOl>.-fBAY .\lEDICAL 1. In taking up the Mcdical Profession you selected as onc which is universally considered as the noblest, as its primary object is the alleviation of human suffering irrespective of 2. It is your duty to do the best for your patients. You are not bound to treat each and every one who seeks your help no other medical ;.As adopted by known as the
ther.L;'HARASHTRA (BOMBAY BOj\fDAY r.lEDICAL CO{T:lCIL.
MEDICAL
formerly
100
MEDICAL LAW AND ETHICS IN
I~DIA
practitioner is available in the neighbourhood. You have the right to choose the patient and to lay down the limits of your service. But once you accept the charge it is your responsibility to exercise due care and diligence in the diagnosis and treatment, using the best means and opinions available to you. You cannot discontinue treating the patient except for veryyalid reasons. The discovery that the malady is incurable is not an excuse. Undertaking the care of a patient does not imply that you shall be blamed for not cllring him. No blame will be attached if you have employed that skill and professional knowledge which your other colleagues with a like qualification do in the community. Naturally more is expected of one who claims to be a specialist. S. Your demeanour towards the patient should be courteous, sym pathetic, friendly and helpful. 4. While keeping the interest of your patients uppennost, you are not pennitted to perform illegal operation or execute an illegal docu ment or issue a false certificate. 5. Knowledge of a patient gained in the course of examination and treatment is privileged and should not be disclosed without the consent of the patient or an order from a presiding judge in a Court of Law. 6. To other members of the profession you owe a duty as a colleague. You should never do anything which you would not like them to do to you. Do not do or say anything that may make the position of your colleague who has been previously treating the patient a\vkward.
WARNING NOTICE
The Bombay Medical Council desires to bring to the notice of Medical Practitioners whose names are entered in their Register that if after due enquiry the Council finds them guilty of the following and similar unethical practices they are liable to be warned or have their names erased from their Register. The Council is in no way precluded from considering and dealing with any form of unethical practice which' may be brought before them although it may not appear to come within the scope of precise wording of any of the categories mntioned below :_ PART I Note.~Any one found guilty of offences in this
erased from the Register without
will be liable to have his name warning.
. ~ (1. ,~":J-i>"<' .f.~ 2.
Immorality involving abuse of professional relationship. 'Conviction by a Conrt of Law for an offence involving moral \' ~ ,. ,},turpitude . .~',-<~)' .'3: Issuing in connection with various Govemment and :Municipal ,r'- 'Acts, benefit, insurance and kindred societies, passports, matters . .:J-c,'" :/ relating to armed forces, attendance in Courts of Justice, in the public \\( iJ services, or in ordinary employment, a certificate, notification or repOli, which is untme, misleading or improper. Nate: 1,-The record of cases wherein the practitioncr has an occasion to issuc medical should be preserved the practitioner for a of one year the date of issue of ccrtificate:,
'MEDICAL ETHICS, ETIQUETTE AND
DISCIPLI~ARY
COUNCILS 101
Note: 2.-A practitioner who has treated the deceased in his last illness is expected to give a death certificate melltioning the cause of death. The practi tioner is entitled to charge a reasonable fee for such certificate except when the certificate is required for purpose of registering tJ~AeatlL.by_~ Municipal or Local authorities. The practitioner is not bound to get his signature on such a ccrtificate attested.
4. \Vithholding from the Health Authorities information of the NotiRabIe Diseases. 5. Performing or enabling an unqualified person to perform an abortion or any illegal operation for which there is no medical, surgical or psychological indication. 6. Perrorlning or enabling an unqualified persoll to attend, treat or perform operations on patients in respect of matters requiring profes sional discretion or skill or to issue certificates. 7. Contravening the provisions of the Drugs Act and Hegulations made under it. 8. Selling scheduled poisons to the public under cover of his own qualifications, except to his patients. 9. Disclosing the secrets of a patient that have been learnt in the exercise of his profession. Those may be disclosed only in a Court of Law under orders from the Presiding Judge. 10. Soliciting private practice either by splitting fees or paying eommissions to those who bring patients to him or by advertising by means of laudatory or other notices in the press, or by placards or by hand bills. 11. Receiving commissions from Surgeons, consultants or from any one to whom patients are referred to, be it a medical practitioner, a manufacturer or of a trader in drugs or appliances or a Chemist or a dentist or an occulist, 12. Advertising himself directly or indirectly such as through price lists or publicity materials or manufacturers or traders with which he may be connected in any capacity though it will be permissible for him to publish his name in connection with the prospectus or directors' or technical experts' reports. 12A. A physician should not hold personal ownership in patents for any dru~ apparatus, instrument or appliance used in Medicine and Surgery.) PART II
13. Associating in professional matters with persons who are neither registered nor enlisted or exempted from registration under the Medical Acts in force or who have been struck oH the respective Registers or lists for unethical practices. 14. Joining the teaching staH and/or participation in teaching, ex aminations or grant of certificates in any profeSSional subject in an institution which is not recognised for teaching Medicine by the State Government nor is affiliated to a recognised Licensing Body or a Statutory University. This Section does not apply so as to restrict the teaching of pre medical subjects such as Anatomy and Physiology by Registered Medical Practitioners in non-medical but recognised teaching institutions
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MEDICAL LAW AND ETHICS IN U\DIA
15.) Keeping an open shop for the sale of medicines at the place of his practice. 16.Jpublishing on his own in the lay press, reports of cases treated or operated on by him or sanctioning the publication in the lay or medical press of any certifieates for drugs, foods, appliances, sanatoria used by him or of any laudatory statement about himself. When a doctor opens his practice or changes his office or has resumed ..J.1is practice after long intervals, the notice regarding his address and ;.,y...'1" telephone number s.!!.9uld ~ot ~ear J!lore tl~~_~ce and not in more ,~, ./\ ~~rs. LU-T 17/ It shall be open for him to write to the lay press under his own name on matters of public health interest and general articles which will promote hygienic living or deliver public lectures with the same purpose. It shall be open to medical associations, hospitals and other bodies to publish the name of the lecturer and his subject in the non-medical press. , 18. / Attending on his own patient who has been seen by him before in the capacity of a consultant during the same illness. 19. / Removing the patient in the absence of the attending physician to a hospital or a nursing home or transferring him to the care of his assistants by a consulting practitioner. 20...... Examining and reporting on employees at the instruction of the employer without previously intimating the regular medical attendant of the employee of his commission and giving him the option of present. 21....1 an unusually large sign board and >vriling on it any thing else other his name, qualifications obtained from a university or n stahltory body, titles conferred by Government and the name of a The same should be the contents of his prescrip speciality he tion paper, may in addition contain and telephone numbers. Appointments held novv or before should not be mentioned either on the board or prescription 22J Refusing to attend on a patient who has been his care unless ; (1) He finds that the patient and his relatives are un-eo-operative, or (2) his are not paid, or (.3) another practitioner is consulted without his knowledge. foregoing do not apply so as to restrict the proper training instructions of bona shldents or the legitimate employment of dressers, midwives, dispensers, sm-gery attendants and skilled mechanics under the immediate personal supervision of a registered medical practiioner.
Sugge3tions
1. Do not undertake to treat a patient who you know is being treated by another physician. Do not talk disparagingly of your coUeague who attended the case before you or with you at consultation. Most of suits malpractices arise out of sneh remarks. Always respect opinions and differences of opinions. 2. case of emergencies if the regular medical attendant of the patient is not available it is your duty to attend such a call atleast for
j\IEDICAL ETHICS, ETIQUETTE AND DISCIPLINARY COUNCILS 103
the Erst time. You may deny to do so in case of your OW11 illness pre
venting you from doing so.
3. You should strive to maintain your medical knowledge at a high
level by regular reading, by attending refresher courses whenever avail
able, and by attending and taking an aetive interest in the meetings of
your local medical society and Conferences. Add your knowledge and
experience to the common pool and thus contribute to the advancement
of medicine.
4. Never forget that the doctor by virtue of his profession is given a
high place in Society. Study and assist in solving the civic and political
problems of your Society but not by neglecting your patients and pro
fession. Do nothing to forfeit the esteem and the confidence of your
fellowmen. In thought, word and deed be a gentleman.
5. In serious illness, in doubtful conditions, in operations of a muti-} lating or ae:;,tructive nature upon an unborn child, in operations which may vitally affect the inte!lectual or generative functions of the patient always ask for a consultatlOn. 6. At the consultation there should be a f.£e~_~c;.hq.nge of ,Q12iniOl1:
l1lese discusions should be held without the presence of the patient or
his relative. An agreed statement or otherwise should be communicated
to them by the attending physician,
7. Before performing an operation obtain in the consent from the husband or wife, parent or guardian in the case of a minor or the patient himself as the case may be. I!l-1!n opej<:lti..Q1L2!hich l:lliD:'.J~'L~t in sterility the. consent of both husband and wire is neeaea:~~ 8. In practising your profession use methods of fair competition. It is unethical to advertise yourself or solicit practice in any way. 9. Do not undertake more work than you can conveniently manage. If you are running a dispensary practiee avoid overcrowding by not calling patients twice or every day, unless it is essential to do so. To many medicines may be given for three Charge your fees every time you examine tbe patient. If you to attend a woman in her confinement you must do so. \Vhere it impossible to do so due to vaiid reasons it is your duty to provide alternative arrangements. 10. Though your may vary according to the means of your patients do not attend patients free of charge unless they are poor. There are hospitals for the poor. 11. If your patients need investigation and technical assistance which is beyond you and beyond the limits of the purse of patient do not in referring him to a public institution. . 12. I29-11ot clai~!o be a speci~isLunless you have put in a good tew yeclrS of study-andexperience or have a special qualification in that branch. Once you say you are one, do not undertake work outside your specdity even for your friends. Live and let live. 13. 1£ you are running an institution for a particular purpose such as a mcntal home, a sanatorium, a house for cripples, blinds etc., you may it in the lay and medical press. The advertisement should not contain anything more than the following information: N arne of the institution, the address and the approach the tvnes patients facilities offered and the residential ' The 1{a~11e the Superintendent may appear in the Ivfedical Press. It is not ~~~.~~-------~
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MEDICAL LAW AND ETHICS IN INDIA
104
tisement to celebrate the annual function of your institution and invite your friends to it. 14. Whife it is scientific to offer a good prognosis, if one's findings lead to it, it is um"':i~~arantee a cure. . /15. Whe;~is~';ing a medi~al certi.ficate always enter the identification ~"'~ marks of the patient and keep a copy of the certificate. 16. Do not publish photographs or case reports of your patients in any medical or other journal in a manner by which their identity could be made out without their permission. Should the identity be not dis t closed his consent is not needed. 17. If you are running a nursing home and if you employ assistants to belp you, the ultimate responsibility rests on you. 18. Do not accept appointments, whether honorary or salaried in in stitutions where the practice is to "split fees" for visits and injections between the practitioner and the institution. 19. Medical practitioners seeking service abroad are advised in their OW11 interest, to consult the Government of India before they enter into any contract for service abroad with the agents of a foreign Government.
Section 3 -
CODE FOR PRAcrrrroNERs OF AYllRVEDIC AND UNANI SYSTEMS OF }',iEDICINE1
THE BOARD OF AYURVEDIC AND UNANI TIBBI SYSTEMS OF MEDICINE
having been empowered 2 to take cognizance of professional misconduct and to direct the removal of names of medical practitioners register~d under section 16 or entered in the List under section 18 of the Act, who may be found guilty of infamous conduct in any professional respect, the following advice and remarks Dn some of the plinciples of Medical Ethics are published for their information and guidance: [Section 16(3) as follows "The Board may direct that the name of any practitioner who has been convicted of a cognizable offence as defined in the Code of Criminal Procedure, 1898, which discloses ~uch defect of moral character as is, in the opinion of the Board, sufficient to make him unfit to practise his profession or who, after due inquiry, has been found guilty of conduct which is in the opinion of the Board in famous in any professional respect, shall be removed from the Register. The Board may, on sufficient cause being shown, also direct that the name of the practitioner so removed shalI be re entered in the Register." Section 18(c) reads as follows : "The provisions of." .... ,,""" sub-section (3) of section 16 shall mutatis mutandis apply to this list".] Note l.-Infamous conduct in any profeSSional respect means any line of conduct that the generality of profession may hold as derogatory 1
As adopted by the
MEDICINE, 2
BO:\1BAY,
By section 16(3)
BOAHD OF AYLTHVEDIC AND Ul'ANI
TlDm SYSTEMS OF
the Bombay IIf edical Practitioner's Act, 1938. section 18(c) of the Bombay Af edical Practitioners' Act, 19.'38.
I
..
11EDICAL ETHICS, ETIQUETTE AND DISCIPLINARY COUNCILS 105
to the profession and calculated to lower its dignity and prestige in the estimation of the public and the profession. Note 2. The following remarks do not embody every kind of profes sional conduct for which names are liable to be erased from the MecHcal or the List under section 18. The Board is not precluded from considering and dealing with any form of professional misconduct (as for example, immorality involving abuse of professional relationship, or outraging the modesty of a female patient, health visitor or a lady doctor, nurse or midwife, etc., or any other categories of offences of professional misconduct, such as drunkenness, gambling, etc.) as they arise from time to time . • Some Objectionable Practices.
1. The following and similar practices which tend to lower the dignity of the profession should be avoided; (a) Soliciting private practice, either personally or by advertise ment in the newspapers, by placards, or by the distribution of circulars, cards or hand-bills or by giving as commission a percentage of reccived. (a-i) Giving discourse, essay or article on medical science or re garding diseases or treatment in any lay newspaper, lay magazine or lay jonrnal either openly under his name or under an assumed name whether with or without any remuneration, which has the direet or indirect effect of advertising himself or soliciting practice. (a-H) Giving medical advice to patients or others in any lay news paper, lay magazine or lay journal either openly under his name or under an assumed name whether with or without remuneration. (b) Entering into any compact in his personal capacity with a phannacist or any manufacturer or firm dealing with medi cines or medical or surgical appliances or requisites, to re ceive a share in the profits arising from the sale of medicines prescribed, or medical or surgical appliances or requisites. (c) Keeping an open shop, that is, one for the sale of medicines, medical or surgical appliances, etc., other than those pres cribed himself or by another registered practitioner, or styling dispensary in such a way as to cause it to be taken for a chemises shop, e.g., "Nelson & Co., Dispensing Chemists", etc. (d) The publication of an advertisement or announcement of an obscene or objectionable nature, or making claims regarding treatment or medicines, used in one's own practice or giving certificates in the lay press regarding patent or proprietary medicines or medicines used or treatment given by any other person. (e) Standing in any open space or on roadside and announcing or exhibiting remedies or teachings of their use to the lay puhlic. (f) Receiving commissions from trades-people in retum for re commending them or their wares, or from other practitioners
106
MEDICAL LAW AND •ETHICS I:"-J INDIA
including specialists for recommending patients and paying commissions to hotel proprietors, lodging-house keepers, monthly nurses, midwives, or others for introduction to cases. (g) \Vriting prescriptions in a private formula of which only a particular phannacist has the key. Such secret prescriptions are unprofessional. (h) Covering a person who is not entitled to practise in this State or entering into any compact with a person who is not en titled to practise and who owns an institution for the treat ment of patients by Electrotherapeutics, X-Ray Therapeutics, Vaccine Therapy, etc., and receiving a share or commission from the profits of any such business of a medical namre. (1) Associating with foreign medical men .\vho do n.ot possess a medical qualification recognised for registration by the General Medical Council as an additional qualification. (i) Association with medical agents of manufacturers whose sole object is to advertise product of particular manufacturers. (k) Agreeing to attend any patient on the terms of "no cure, no pay". (l) Exhibiting publicly a scale of fees. (111) Publishing or sanctioning the publication of letters of thanks from patients, or of any kind of laudatory notices with regard to professional matters, with or without photographs, in non profesicnal newspapers or joumals. (11) To display an unusually large sign-board or writing nl1 it anything else than the name, the qualifications and the name his speciality, if any, he practises. The same should be mentioned on the prescription paper, which may also contain the address and the telephone number. Appointments heJd now or before should not be mentioned on the sign-board or prescription paper. It is improper for a medical practitioner to affix sign-boards on chemists' shops or places where he does not reside or practise. Medical Certificates.
2. (a) Certificates issued by a medical practitioner over his signa ture should correspond strictly with facts within his personal knowledge, and should not be untrue, misleading, or improper. (b) They should not cover more than the ctdual period during which the patient had been under his observation. (c) They should not be given for inadequate or extraneous reasons. Medical Attendaricc and Consultations.
'{ No member should meet in consuJtCltion auv oractitioner who is or whose wur{e 'has been removed not entitled to practise in this from the register or the list under section 18 for infamous conduct in profeSSional ~ respect. 4. Every member should endeavour to jJunctuality in con sultation appointments. If the medical attendant has not arrived within
MEDICAL ETHICS, ETIQUETTE AND DISCIPLINAHY COUNCILS 107
a reasonable time (e.g. a quarter of an hour after appointed hour), the consultant shall be at liberty to see the patient alone, and should leave his conclusions in writing in a closed envelope. The consultant also should be as punetual as possible. S. The result of the consultation shall be mutually arranged be tv,Teen the medical attendant and the consultant, and the duty of an nouncing it to the patient's friends shall rest with the medical attendant. 6. Differences of opinion should not be divulged unnecessarily; but when there is an irreconcilable of opinion, the circum stances should be frankly and impartially explained to the patient's friends by the medical It is open to them to seek further advice, either, as is preferable in consultation, with those already in attendance, or with the medical attendant only. 7. The attendance of a consulting practitioner should cease when the consultation is concluded, another appointment is arranged by the medical attendant or unless the patient has dispensed with the services of the medical and engaged those of another. In no case shall the consulting practitioner treat the patient alone or hand him over to his assistants or remove him to a nursing home or private hospital without the of the medical attendant, or injure the latter's position in any 8. vVhen it duty of a practitioner occupying an official position to see and report upon a case of illness or injury, he should communicate \vith the practitioner in attendance, so as to give him the option of being The practitioner seeing the case officially should
.
is no rule that medical practitioners should not one for services, but it should be regarded as a pleasure and to give one's services freely to a professional brother, or to a medical student. 13. A medical practitioner is justified in refusing to continne at on a case he finds another practitioner in attendance; (b) \vhere other rernedies than those prescribed by him arc
108
MEDICAL LAW AND ETHICS IN INDIA
(c) \'lhere his remedies are refused or prescribed diet not fol lowed; (d) where he is convinced the illness is an imposture, and he is bffing made party to a false pretence; (e) where the patient persists in the abuse of opium, alcoho1 chloral or similar poisons. He is not in any way, bound to give up a case because he cannot cure it, so long as the patient desires his services. 7
General Matters.
14. A medical practitioner is under an obligation to his patient to preserve his secrets, and in legal matters should, except with the patient's consent, answer questions only at the express direction of the Judge or Magistrate presiding in a COUlt of law. A medical practitioner is not bound to answer questions put to him by policemen, solicitors, 'lakils, or other non-judicial persons. 1.5. No medical practitioner should volunteer to give evidence in a Court of law against any person who has been under his professional care. He should only appcar on subpoena. 16. Medical Officers of Health should not visit a patient under the case of a medical practitioner without notice and should not express doubt or dissent with respect to the diagnosis before the patient or his friends. A Medical Officer of Health or Sanitary Authority ought not to demand a satemcnt of the symptoms upon wl1ich a diagnosis of a noti fiable dicsase was based by any medical practitioner.
17. It is the duty of medical practitioners as citizens to assist cor dially in carrying out the provisions of the Public Health Acts especially with regard to the notification pf diseases so as to enable the Public Health Authorities to take preventive measures to cbeck the spread of epidemics. Miscellaneous.
18. No medical practitioner sh(mld enter into any compact with a nurse, midwife or any other person who may own or manage a private hospital, nursing home, or a lying-in-hospital, nor receive a share of the profits therefrom.
19. It is not in a consonance with professional ethics that a medical institution should bc advertised in the lay papers unless such institution is registered as a charitable society. 20. When a registered practitioner wishes to notify a change in his address he should be careful to see that such notices are not published more than twice on each occasion of a change. They may be published either twice in one English or in one Vernacular paper, or once in both. Such notices should not state any thing beyond the bare change of address.
MEDICAL ETHICS, ETIQUETTE AND DISCIPLINARY COUNCILS 109
Section 4 -
CODE OF DENTAL ETHICS
l
GENERAL ADVICE General remarks about the dental profession.
The practice of dentistry as a profession has for its prime object the service it can render to humanity. In choosing this profession every dentist assumes an obligation to conduct himseJ£ in acord with its ideals, to advance the science and art of dentistry, to guard and uphold its high standard of honour and to conform to the principles of professional conduct. Every dentist should regard with respect the regulations of all duly constituted Dental Associations or Societies of which he is a Member. The duties of a dentist to the patients.
(a) Every dentist should be courteous, sympathetic, friendly and helpfuL He should be ever ready to respond to the call of his patients and should be mindful of the high character of his mission and the responsibilities he holds in the discharge of his professional duties. He should ever remember that the treatment of the patient and the cure of the disease depends on the skill and prompt attention shown by him. (b) He should observe punctuality in fulfilling his appointments. (c) He may recognise poverty as presenting valid claims for gra tuitous services, but endowed institutions, societies for mutual benefits, life insurance or analogous bodies are not entitled to receive such services. (cl) He should deem it a point of honour to adhere, with as much uniformity as the varying circumstances will admit, to the compensation for professional services. (e) It is not desirable that a dentist should accept an honorary appointment in such hospitals or institutions as treat both poor and rich patients free unless he is remunerated for his services to the rich patients. (f) The most worthy effective advertisement possible is the estab· lishment of a well melited reputation for professional ability anel fidelity. The duties of dentists to one another.
(a) Every dentist should cherish a proper pride in his colleagues and should not disparage them either by act or word. He should not do anything which he would not like them to do. (b) Every dentist should endeavour to observe punctuality in con sultation appointments. The consultant also should be as punctual as possible. If the dentist has not anived within a reasonable time (e.g. quarter of an hour after an appointed hour), the consultant shall be at liberty to see the patient alone and should leave his conclusions in writing in a closed envelope. 1
As adopted by the
lvL"cHARASHTRA
STATE
DENTAL
COUNCIL.
llO
MEDICAL LAW AND ETHICS IN INDIA
(c) The result of the consultation shall be mutually arranged be tween the dentist and the consultant and the duty of announcing it to the patient's relations or friends or the patient shall rest wih the denist. The consultant should not make any remark or statement which would impair the confidence of the patient in the dentist~ (d) Differences of opinions should not be divulged unnecessarily to the patient. But when there is an irreconcilable difference of opinion the circumstances should be frankly and impartially explained to the patient's relations or friends or the patient himself by the dentist and another consultant may be called if desired by them. In every consulta tion the benefit to be derived by the patient is of first importance. In consultation, no insincerity, rivalry or envy should be indulged in. (e) The attendance of a consultant should cease when the consul tation is concluded unless another appointment is aranged by the dentist or unles the patient has dispensed with the services of the dentist. (f) In no case shall the consultant treat the patient alone or hand him over to his assistant or remove him to a nursing horne or private Hospital \vitllOut the knowledge of the dentist or injure the 'latter's position in any respect. .. (g) 'When a consultant sees a patient in his surgery at the request of a dentist it is the duty of the consultant to inform the dentist his opinion and treatment in writing. The consultant shall not see the patient again in his surgery without a fresh note from his dentist. (h) \Vhen <:t dentist is entrusted with the care of the practice of another during sickness or absence mutual arrangement should be made regarding remuneration. (i) A dentist called upon in any emergency to treat the patient of another dentist should when the emergency is provided for, retire in favour of the regular dentist but shall be entitled to charge the patient for his services in consultation ,,'lith the regular dentist. (j) If a dentist is consulted by the patient of another dentist and if the former finds indisputable evidence that such patient is suffering from previous faulty treatment, it is his duty to institute correct treat ment at once with as little comment as possible and in such a manner as to avoid reflection on his predecessor. (k) No rule debars a dentist from charging another dentist for professional service but ordinarily it should be regarded as a pleasure and privilege to render gratuitous service to a professional brother, his. wife and children. The same courtesy should be extended to a dental shldent also. If the dentist to whom the service is rendered is in easy financ:ialcireumstances he may compensate the attending dentist for the expenses incurred by him. Duties of a dentist to his profession.
(a) The dental profession expects from its members the highest type of character and morals and to attain such a standard is a duty every dentist alike owes to the profession and the public. It is incumbent on a dentist to be temperate in all matters for the practice of dentistry requires the unremitting cxercise of a clean and vigorous mind. (b) A dentist should be morally, mentally, and physically c1eaJL He should also be modest, sober, patient and prompt to do his duty.
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MEDICAL ETHICS, ETIQUETTE AND DISCIPLINARY COUNCILS III
(c) Every dentist should identify himself with the organised body of his profession. The associations are the chief elements of strength in the organisation of the profession and should be made instruments for the cultivation of fellowship for the advancement of the science and art of dentistry, for dissemination of dental knowledge; for the promotion in general of the interest of the profession and the maintenance of ethical standards and of welfare of the public. (d) If a member of the dental profession is unable to agree to a course adopted by the majority of members of the Association of which he is a member, he should abstain from manifesting publicly his dissent by addressing letters to the lay press. He may urge his opinion in profes sion journals. A dentist should approach statutory bodies such as the Dental Council of India, or the State Dental Council, in respect of in famous conduct of members of the profession. The duties of a. dentist to the public.
(a) It is incumbent on the dentist that, under all conditions, his bearing· towards patients and the 'public should be characterised by gentlemanly deportmcnt and that he constantly should behavc towards other as he desires them to deal with him. These principles are pri marily for the good of the public, and their enforcement should be con ducted in such a manner as shall descrve and receive the endorsement of the community. (b) In the interest of Public Health, he should co-operate in the observance of laws and regulations pertaining to health and hygiene. (c) Police and Law Courts. - (i) A dentist is not bound to disclose professional.secrets unless called upon by the magistrate or judge to do so. No dentist should volunteer to give evidence in a Court of Law against any person who has been under professional care. He should appear only on subpoena. (ii) Knowledge of a patient gained in the course of examination and treatment is privileged and should not be disclosed without the consent of the patient or an order from a prr siding judge in a Court of Law. WARNING NOTICE.
The Bombay State Dental C"u of Dental pnnt-;l-' Der +-'
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MEDICAL LAW AND ETHICS IN INDIA
gency. But once he accepts the patient he cannot leave him without his consent except for valid reasons such as the following 1. 'Where he finds another dentist in attendance. 2. Where remedies other than those prescribed by him are being used. 3. Where his remedies and instructions are refused. 4. Where he is convinced that the complaint of the patient is an imposture. 5. \Vhere the dentist himself for reasons of his own health is unable to attend. 6. \Vhere the previous financial obligations are not being fulfilled by the patient. (b) In case the condition of the patient becomes serious during treatment he should not fail to give timely advice or information to the family and also to the patient when necessary. If the disease becomes serious or incurable he should ask for a consultation, but must not leave him without his consent. (c) He should guard the confidences received from his patients with the most scrupulous fidelity and honour. The obligation extends even beyond the period of professional services. The confidence and the privacies of a patient cannot be divulged except when demanded by a COUlt of Law. (d) A dentist should not meet in consultation any dental practi tioner who is neither registered nor exempted from registration under the Dentists Act, 1948, or whose name has been removed from' the Register by order of the Council for infamous conduct. (e) \Vhen a dentist has to see a patient in his official capacity and report upon the same, the consultant should communicate with the dentist to give him the option of being present. (f) He should obey the provisions and regulations of the Drug Acts, and other Public Health Acts applicable to dentists and should not abuse the privileges conferred thereunder. The contravention by a registered dentist of the provisions of the Drugs Act, 1940, and the Rules made thereunder may be the subject of criminal proceedings and any conviction resulting therefrom may be dealt with as such by the Council under the powers given them by section 41 (i) and (U) of the Dentists Act, 1948. (g) It is unethical to enter into a contract of "No cure No pay mene', and to offer any guarantee for professional services rendered. (2) Advertising.
(a) It is unethical and unprofessional for a dentist to employ or permit the employment of handbills, posters, circulars, cards, signs, stereoptican slides, motion pictures, telephone, radio, ne\vspapers, lectures, or any kind of printed or written publications or any other device for the purpose of; L Adveltising personal superiority or ability to perform services in a superior manner.
l\1EDICAL ETHICS, ETIQUETTE AND DISCIPLINARY COUNCILS 113
2. Advertising definite fixed or fees lower than average which in the nature of professional services rendered must be vari able. 3. Advertising statements that might be ealculated to deceive or mislead the public. 4. Advertising under the name of corporation, company, institu tion, association, parlour or trade name and the like. 5. Advertising or sanctioning the publication of reports of cases or operations or special treatment or ktters of thanks from patients or special certificates and diplomas with or without photographs. 6. Canvassing by personal vis.its with a view to give professional advice or treatment to persons who are not already his patients unless. actually requested by them to do so or employing any agent or canvasser for the purpose of obtaining patients. (b) It is unethical to display certificates or gold medals or the like extolling professional efficiency in the treatment or cure of dental diseases or dental disorders. (c) Contribution to the lay press.-A dentist should not contribute to the lay press scientific dental articles for the purpose of advertising himself and seeking professional practice. He may, however, write to the lay press under his own name on matters of public health 'and dental hygiene. He may deliver public lectures, give talks on the radio broad cast for the same purpose and send announcement of the same to the lay press. He should not grant interviews to press reporters or repre sentatives or agents to discuss scientific dental subjects and allow the same to be published in the lay press under his name. (d) Announcement of commencement or Tesurnption of practice or change of address.-A dentist may announce in lay press or professional press his commencement of practice or resumption of practice or change of address or change of telephone numbers, but such announcement containing his address and telephone number shall not appear more than twice and in not more than two papers. (e) Announcement for auxilimy personnel should be done only twice under own name and subsequently only upder Box No . . (f) Telepholle Directory Announcements.-It is unethical for a dentist to permit the placing of his name in a telephone directory using the type or types dissimilar to the standard size or shape or colour tending to his name visual prominence over other names listed. (g) Personal Cards, Letter-heads aneZ Envelopes.-No illustrations or printed matters shall appear on personal cards except the name of the dentist, his qualifications, his address, telephone number and office hours. The same rule apply to letter-heads, bill-heads and envelopes. (h) ilssociation with husiness firms.-A dentist associated or iden tified with any corporation or body of individuals is not permitted to advertise himself through such firms or individuals directly or indirectly through price-lists, pamphlets, trade journals or advertisements. (i) Photography.-It is unethical to publish or allow to be pub lished personal photographs or groups or photographs in lay press unless there are privileged occasions such as conferences, annual meetings,
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MEDICAL LAW AND ETHICS IN INDIA
receptions, entertainments, professional dinners, University or College functions. (3) Sign-Boards.
(a) It is unethical for a dentist to style his place of practice by names such as "American", "London", "Chinese", "West End", "Fort", and the like. (b) It is unethical for a dentist to display any sign-board pertaining to his practice except the sign-board mentioning his name and qualifi cations recognised by the Dental Council of India or by the country from which the degree or diploma was obtained. A registered dentist shall not insert on sign-boards, visiting-cards, letter-heads or anywhere else an indication of his medical practice of any profession other than dentistry provided that a registered medical practitioner may insert his medical qualifications also. (c) A dentist should not make use of sign-boards larger than 3 x 2 feet. He should not write on the sign-boards other than his name, title, qualifications obtained from a University or a statutory body or an in stitution recognised or approved by the Dental Council of India. He may mention on the sign-boards his speciality if he is engaged exclusively in that practice. He may mention on the sign-board any speciality for which he holds a qualification recognised by the Bombay State Dental Council for the purpose of registration as an additional qualification. It is unethical to mention on the sign-boards the position he may be holding or previously held by him on the staff of a hospital or institu tion. It is unethical to make use of illuminated sign-boards. It is un ethical to display on the sign-board pictures of artificial dentures, medals, models and such words as "Painless Extraction", "X-Rav", or "Dental X-Ray", "Electrotherapy", or "Dental Electro-Therapeutics", or the like. It is also unethical to paint the dentist's name on windows. He should not place more than one sign-board unless it becomes absolutely necessary for the guidance of the patients. It is improper to affix sign board at a place where he does not or practice. (d) A Show Cabinet.-It is unethical to display except in the operating room a show case containing mounted models, artificial den tures, crows and bridges, specimens and the like. (e) A dentist should not allow his name to be associated with such proprietary products as tooth-bmshes, tooth-powders, tooth-pastes, mouth washes, dental cleaners, tooth-ache and Pyorrhoea cure and the like. (4) . l\liscellaneollS Rules.
1. Scale of Fees.-A dentist must not exhibit the scale of 2. Secret Remedies.-A dentist should not derive pecuniary profit from the of any secret remedy. He must not write prescriptions in private formula of which he or any particular firm or pharmacy has the key . .3. Commission or Bonlls.-A dentist shall not give, solicit or re ceive, nor shall he offer to give, solicit or receive any gift, gratuity, commission or bonus, in consideration or in return for the referring, recommending, or procuring of any patient for medical, surgical, dental
MEDICAL ETHICS, ETIQUETTE AND DISCIPLINARY COUNCILS 11&
or other treatment. A dentist shall not directly or by any subteduge participate in or be a party to the act of division, transference, assign ment, subordination, rebating, splitting or refunding of any fee for dental, medical, surgical or other treatment. 4. Unregistered Assistant and covering.-A dentist should not employ in connection with his professional practice any dentist who is not registered and should not permit him to attend, treat or pedorm operations upon patients in respect of matters requiring professional discretion or skilL A dentist should not by his countenance, presence, advice, assistance and co-operation enable an unregistered dentist to attend, treat or pedorm any operation upon the patient in respeet of any matter requiring professional skill or discretion. He should not countenance even by his presence an unregistered dentist to issue or cause to issue any certificate or notification, report or other documents. Note.-Students enrolled at a recognised dental institution do not come under the category of unregistered assistants.. 5. Direct profit to lay groups.-It is unprofessional for a dentist to dispose of his professional attainments or services to any lay body, or organisation, group or individual, or by whatever name called or however organised under terms or conditions which permit a direct profit from the fees, salary or compensation received to accme to the lay body or individual employing him. Such a procedure is beneath the dignity of professional practice, is unfair competition with the profes sion at large, is harmful alike to the profeSSion of dentistry and the welfare of the people and is against sound public policy. 6. Certiflcates.-(A) Certificates issued by a dentist over his sig nature (a) should correspond strictly with facts within his personal knowledge and should not be untrue, misleading or im proper; (b) should not cover more than the actual period during which the patient had under his treatment; should not be given for extraneous or inadequate reasons. (B) It is unethical for a dentist to give testimonials directly or indirectly concerning the supposed virtue of a secret therapeutic agent or medicine or proprietary preparation.
Section 5
CODE OF ETHICS FOR HOi\WEOPATHS AND BIOCHE\ClIC 1 PRACTITIONEHS
In taking up the medical profession you have selected as one which is universally considered as the noblest, as its primary object is the alleviation of human suffering irrespective of gain. It is your duty to do the best for your patients. You are not bound to treat each and evelY one who seeks your help, except in emergencies. You have the right to choose the patient and to lay down the limits of your service. But once you accept thc charge it is your responsibility to exercise clue care and diligence ill the diagnosis and treatment, using the best means and opinions a\'ailablc to you. You cannot leave the I
As adopted by the
BOAHD
OF
HO'.fOEOPATH1C
AND
BroCHE::\fIC
SYSTE:l.IS
OF
MEDICINE, BOMBAY.
1
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MEDICAL LAW Al\'D ETHICS IN INDIA
patient without his consent except for very valid reasons. The'discovelY that the malady is incurable is not an excuse. Undertaking the care of a patient does not imply that you shall be blamed for not curing him. No blame will be attached if you have employed that skill and profes sional knowledge which your other colleagues with a like qualification do in the community. Naturally more is expected of one who claims to be a specialist. Your demeanour towards the patient should be courteous, sympa thetic, friendly and helpfuL 'While keeping the interest of your patients uppermost, you are not permitted to perforTl} illegal operation or execute an illegal document or issue a false certificate. Knowledge of a patient gained in the course of examination and treatment is privileged and should not be disclosed without the eonsent of the patient or an order from a presiding judge in a Court of Law. To other members of the profession you owe a duty as a colleague. You should never do ai1ything which you would not like them to do tOYOll. Do not undertake to treat a patient who you know is being treated by another physician nor do or say anything that may make the position of your colleague awkward. Most of the suits for malpractice arise out of such remarks. Always respect opinions and differences of opinion. In practising your profession use methods of fair competition. It i.s uncthical to advertise yourself or solicit practice in any way. WARNING NOTICE
The Board of Homoeopathic System of Medicine desires to bring to the notice of Medical Practitioners whose names are entered in the Register that if after due enquiry the Board finds them guilty the foHovving and similar unethical practices they are liable to be warned or have their names erased from the Register. The Board is in no way precluded from considering and dealing with any form of unethical practice which may be brought before them although it may not appear to come within the scope of precise wording or any of the categories mentioned below ;PAnT I one found guilty of offences mentiOllcd in this Part wiII be liable
to have his name erased from the Register without any further warning.
1. Immorality involving abuse of professional relationship. 2. Conviction by a Court of Law for an offence involving moral turpitude. Issuing in connection with various Government and Municipal Acts, benefit, insurance and kindred societies, passports, matters rebting to anned forces, attendance in Courts of Jllstice, in the Public Services, or in ordinary employment, a certificate, notification or report which is untrue, misleading or improper. The of cases wherein the practitioner has an oecasion to jssuc a medical certificate should be preserved by the practitioner for a period of one year from the datc of issue of such certificate.
MEDICAL ETHICS, ETIQlJETTE AND DISCIPLINARY COUKCILS 117
A practitioner who has treated deceased in his last illness is expected to a death certificate mentioning the cause of death. The practitioner entitled to charge a reasonable fee for such certificate except the certificate is requhed for purpose of registering the death by Municipal or Local Authorities. The practitioner is not bound to get his signature on such a attested. 4. Withholding from the Health Authorities information of the Notifiable Diseases. 5. Performing or enabling an unqualified person to peIform an abortion or any illegal operation for which there is no medical, surgical or psychological indication. 6. Performing or enabling an unqualified person to attend, treat or perform operations on patients in respect of matters requiring pro fessional discretion or skill or to issue certificates. Regulations 7. Contravening the provisions of the Dmgs Act made under it. 8. Selling scheduled poisons to the public under cover of his own qualifications, except to his patients. 9. Disclosing the secrets of a patient that have been learnt in the exercise of his profession. Those may be disclosed only in a Court of under orders from the presiding Judge. 10. Soliciting private practice either by splitting or paying commissions to those who bring patients to him or by advertising by means of laudatory or other notices in the press, or by placards or by handbills. 11. Receiving commissions horn surgeons, consultants, or from any one to whom patients are referred to, be it a medical practitioner, a manufacturer or of trader in drugs or appliances or a chemist or dentist or an occulist. 12. Advertising himself directly or indirectly such as through price lists or publicity materials or manufacturers or traders \vith which he may be connected in capacity though it will be permissible for him to publish his name connection with the prospectus or directors" or technical experts' reports. PART
II
13. Associating in profeSSional matters with persons yvho are neither registered nor enlisted or exempted from registration under the Medical Acts in force or who have been struck off the respctive registers or lists for unethical practices. 14. ~Writing prescriptions in a secret" fonnula. 15. Keeping an open shop for the of medicines. 16. Publishing or sanctioning the publication in the lay press of Medicines used in one's own practice, unnecessary claims about them as specific of cases treated or operated on by him or of certificates for foods, appliances, sanatoria used by him or any laudatory statement about himself or his address and telephone number unless he has changed his office or has resumed practice after a long interval in which case the notice should not appear more than
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MEDICAL LAW AND ETHICS IN INDIA
twice and in not more than two papers, or inserting his name in the telephone directory in a special place by paying special rates. 17. Contributing to the lay press interviews, letters, regarding disease and treatment which have the purpose of advertising himself and soliciting practice. It shall be open for him to write to the lay press under his own name on matters of public health intercst and general articles which will promote hygienic living or deliver public lectures with the same purpose. Till such time as local medical publi cations offered the desired publicity it shall be open to medical asso ciations, hospitals and other bodies to advertise the name of the lecturer and his subject in the non-medical press provided that such a notice has already been sent to the medical press" for publication, where available. 18. Attending a patient who is under the care of another prac titioner. . 19. Attending on his own patient who has been seen by him before in thc capacity of a consultant during the same illness. 20. Removing the patient in the absencc of the attending physician to a hospital or a nursing home or transferring him to the care of his assistants by a consulting practitioner. 21. Doing anything that means unfair competition. 22, Talking disparagingly of his colleague ";,,ho attended the case before him or attends with him at a consultation. 23. Examining and reporting on employees at the instruction of the employer without previously intimating the regular medical at tendant of the employee of his commission and giving him the option of being present. . Using an unusually large sign-board and writing on it anything else other than his name, qualifications obtained from a university or a statutOlY body, titles conferred by Government and the name of a speciality he practices. The same should be the contents of his pres cription paper, which may in addition contain address and telephone numbers. Appointments held now or before should not be mentioned either on the board or prescription paper. Refusing to attend on a patient who has been under his care unless (1) he finds that the patient and his relatives are un-cooperative; or (2) his fees are not paid, or (3) another practitioner is consulted without his knowledge. N ote.-The foregoing do not apply so to restrict the proper training and instructions of bona fide student or the legitimate employment of mid wives, dispensers, surgery attendants and skilled mechanics under the immediate per~onal supervision of a registered medical practitioner. Suggestions.
The following suggestions may be useful in medical practice ; 1. You should strive to maintain your medical knmvledge at a high level by regular reading, by attending refresher courses whenever avail able, and by attending and taking an active interest in the meetings
I
MEDICAL ETHICS, ETIQUETTE AND DISCIPLINARY COUNCILS 119
of your local medical society arId Conferences. Add your knowledge and experience to the common pool and thus contribute to the advance ment of medicine. 2. Never forget that the doctor. by virtue of his profession is given a high place in Society. Study and assist in solving the civic and political problems of your society but not by neglecting your patients and pro fession. Do nothing to forfeit the esteem and the confidence of your fellowmen. In thought, word and deed be a gentleman. 3. Every practitioner may charge a fee at each examination of patient and he should encourage the latter to get the medicine from a qualified Pharmacist, as the small profit accruing from dispensing medicines to his patients is not adequate remuneration for his professional services . • 4. In serious illness, in doubtful conditions, in operations of a muti lating nature upon an unborn child, in operations which may vitally affect the intellectual or generative functions of the patient always ask for a consultation. . .5. At the consultation there should be a free exchange of opinion. These discussions should be held without the presence of the patient or his relative. An agreed statement or otherwise should be communi cated to them by the attending physician. 6. Before peIforming an operation, obtain in writing the consent from the husband or wife, parent or guardian or the patient himself as the case may be. In an operation which may result in sterility the consent of both husband and wife is needed. • 7. Do not undertake more work than you can conveniently manage. If you are running a dispensary practice avoid overcrowding by not caning patients twice or every day, unless it is essential to do so. To many medicines may be given for three days. Charge your fees every time you examine a patient. If you agree to attend a woman in her confinement you must do so and the excuse that at that time you are engaged with another patient and could not leave is not valid. 8. Though your fees may vary according to the means of your patients, do not attend patients free of charge unless they are poor. There are hospitals for the poor. 9. If your patients need investigation and technical asistance which is beyond you and beyond the limits of the purse of patient do not delay in referring him to a public institution. 10. Do not claim to be a specialist unless you have put in a good few years of study and experience or have a special qualification in that branch. Once you say you are one, do not undertake work out~ side your speciality even for your friends. Live and let live. 11. If YOll are running an institution for a particular purpose such as a mental home, a sanatorium, a house for cripples, blinds, etc., you may advertise it in the lay and medical press. The advertisement should not contain anything more than the following information Name of the institution, the address and the approach, the types of patients admitted, facilities offered and the residential The name of the Superintcndent may appear in the ~'Iedical Press. It is not adver tisement to celebrate the annual function of your institution and invite your friends to it; such a function should not be reported in Press.
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12. While it is scientific to offer a good prognosis, if one's findings lead to it, it is unwise to guarantee a cure. 13. Prescriptions, X-ray plates, investigation reports, are the propmiy of the patient. 14. \Vhen issuing a medical certificate always enter the identification marks of the patient and keep a copy of the certificate. 15. Do not publish photographs or case reports of your patients in any medical or other journal in a manner by which their identity could be made out without their permission. Should the identity be not dis closed his consent is not needed. 16. If you are IUl1Jling a nursing home and if you employ assistants to help you, the ultimate responsibility rests on you. . 17. Do flot accept appointments, whether honorary or salaried in instihltions where the practice is to "split fees" for visits and injections between the practitioner and the instihltion. 18. :tvledical practitioners seeking service abroad are advised in their own interest to consult the Government of India before they enter into any contract for service abroad with the agents of a foreign Govern ment.
Section 6 ~ CODE
OF ETHICS FOR NURSES
(a) INTERNATIONAL CODE OF NURSING ETHICS
1
PROFESSIO~AL NURSES minister to the sick, assume responsi bility for creating a physical, social and spiritual environment which will be conducive to recovery, and stress the prevention of illness and promotion of health by teaching and example. They render health service to the jndividual, the familv, and the communitv and co-ordinate their services with members of other health professions. Service to mankind is the primary function of nurses and the rea son for the existence of the nursing profession. Need for nursing service is universal. Professional nursing service is therefore unrestricted by considerations of nationality, race, creed, colour, politics or social status. Inherent in the code is the fundamental concept that the nurse be lieves in the essential freedom of mankind and in the preservation of human life. The profession recognises that an intemational code cannot cover in detail aU the activities and relationships of nurses, some of which are conditioned by personal philosophies and beliefs. 1. The fundamental responsibility of the nurse is threefold; to conserve life, to alleviate suffering and to promote health. 2. The nurse must maintain at all times the highest standards of nursing care and of professional conduct. S. The nurse IYlUst not only be \ve11 prepared to practice but must maintain her knowledge and skill at a consistently high level. -1. The religious beliefs of a patient must be respected. 1 Adopted
at the GUAKD Brazil, July 195:3.
COUNClL OF THE
INTEHNATIONAL
COUNCIL OF
Nl;GSES 7
MEDICAL ETHICS, ETIQUETTE AND DISCIPLI:,gjW COUNCILS 121
5. Nurses hold in confidence all personal information entrusted to them. 6. A nurse recognises not only the responsibilities but the tations of her or his professional functions; recommends or gives medical treatment without medical orders only in emer "',"lJ,-""~':> and reports such action to a physician at the earliest possible moment. 7. The nurse is under an obligation to cany out the physician's orders intelligently and loyally and to refuse to participate in unethical procedures. 8. The nurse sustains confidence in the physician and other members of the health team; incompetence or unethical con duct of associates should be exposed but only to the proper authority. 9. A nurse is entitled to just remuneration and accepts only such compensation as the contract, actual or implied, provides. 10. Nurses do not permit their names to be used in connection with the advertisement of procedures or with any forms of self-advertisement. 11. The nurse co-operates with and maintains harmonious rela tionships with members of other profeSSions and with her or his nursing colleagues. 12. The nurse in private life adheres to standards of personal ethics which reflect crcdit upon the profession. 13. In personal conduct nurses should not knowingly disregard the accepted pattems of behaviour of the community in which they live and work. 14. The nurse recognises and performs the duties of citizenship; as a profesional worker a nurse is especially concemed with those laws which affect the practice of medicine and nursing. 1.5. A nurse should participate and responsibility with other citizens and other health profeSSions in promoting efforts to meet the health needs of the public -local, state, national and international. (b) RULES FOR REGULATING THE PRACTICE OF NURSES, MIDWIVES, HEALTH VISITORS AND NURSE-DAIS General
These rules shall apply to all categories of nursing personnel; the term . Nurse in this section also applies to Auxiliary Nurse Midwives, Health Visitors and N urse-Dais. 1. The nurse shall maintain at all times the highest standards of nursing care and professional conduct. 2. The nurse in her plivate life shall adhere to standards per sonal ethics which reflect credit upon the profeSSion. 3. The nurse shall hold in confidence all personal infonnation en trusted to her.
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j\fEDICAL LAW AND ETHICS TN INDIA
4. The nurse shall not solicit private practice by any form of self advertisement. .5. The nurse shall not accept any gifts of money or presents of value. 6. The nurse shall carry out the physician's orders intelligently and loyally; she is, however, justified in refusing to participate in illegal or unethical procedures. 7. The nurse, when on duty, shall wear a washable uniform and her hospital or registration badge; she shall not wear any jewellery. Rules for Nurses
1. A nurse employed in an institution or service shall work in ac cordance with the regulations prescribed by them. 2. A nurse should be aware of her responsibilities and also of her limitations; she may recommend or give medical treatment without medieal orders only in emergencies and should report such action to a physician at the earliest possible moment. 3. A nurse on private duty should (1) only attend to a patient who is under medical superVlSlon; she should obtain as far as possible written instructions from the doctor about the treatment he wishes to have carried out; (2) maintain a professional maImer at all times, while giving :;,ympathetic attention to the patient and other members of the household, she should avoid discussing her own affairs or those of other patients she has nursed; adapt herself to the house-hold she enters but also observe regularity and method in giving nursing care and keeping records, as would be observed in a hospital; t4) take responsibility for maintaining a hygienic environment for the patient. It is recommended that all hospitals to which training schools are attached be asked to frame standing orders for nursing practice in the hospital wards. This should be done in co-operation with the medical and nursing staff of the ward. Rules for Midwives and Auxiliary Nurse Mi(hvives
1. A midwife must observe surgical cleanliness in all her profes sional work and give particular care to the skin of her hands and keep her nails sh01t and clean. She should not wear any rings or bangles while -on duty. 2. The midwife should be guided by the standing orders for midwifery practice in her area. If, hO\vever, the patient is under thf~ care of a medical practitioner, she should carry out his instructions. 3. The rnidvvife should not refuse to attend a woman during her confinemcn,t because she has not engaged her services; she should attend to all emergency calls for her services. 4. \Vhen engaged to attend a delivery the midwife should : (1) as soon as possible interview a patient and take her history;
I
MEDICAL ETHICS, ETIQUETTE AND DISCIPLINARY COUNCILS 123
(2) encourage the attendance of the patient at an ante-natal clinic or her supervision by a registered medical practitioner; advice regarding food, work, rest and (3) give the exercise; (4) if the confinement is to take place at home, ascertain whe ther conditions in the home are satisfactory for the purpose and assist the mother to make the necessary preparation. 5. 'When in eharge of a woman in labour the midwife must not leave her without giving address where she can be found without delay. After the beginning of the second stage she must stay with the mother until the expulsion of the placenta and membranes and as long after as may be necessary. 6. The mid\vife shall be responsible for the personal of the mother and child and shall give all necessary instructions for seeuring their comfort and proper care during the lying-in period. She shall also be responsible to promote a hygienic environment for the and child. 7. A midwife, except in the case of gross emergency, should not undertake any treatment which is outside the normal scope of duties. The question whether in any particular case such treatment was justified will be judged on the facts and circumstances of the case. charge of any abnormal delivery (as 8. The midwife shall not defined in the standing orders) or of a delivery in the ease of a woman whose pregnancy has been complicated by disease. A midwife must report to a registered medieal practitioner and ask him to see all cases of illness of the mother or child or in case of any clbnormality becoming apparent in the mother or child during pregnancy, labour or the lying-in period. 9. The midwife must keep records of her observations and treat ment of a patient during pregnancy, labour and the lying-in period. She .shall submit such records or reports to the local supervising authority as are required by them. 10. If a midwife has been in contact with a person, who is suffering from any condition which is suspected to be infectious she must carry out such measures for disinfection as are required by the supcrvising authority. 11. If the midwife is herself suffering from an infcctious condition, such as a cold or sore throat, she should not attend to a woman during labour or the lying-in period. A midwife must give the .tYredical OHlccL of Health or his representative every reasonable facility for the inspection of her personal registcr of cases and other records, her bag and any part of her house which uses for professional purposes. 18. A midwife must not employ anv uncertified person as substitute. - / / 14. The midwife should carry out procedures as prescribed by the State Nursing Council for her home visits for the conduct of delivery and carc. The contents of her and its maintenance should be m \vith the Council's req It is recommended that the State Nursing Councils should prescribe Standing Orders for the guidance of midwifery practice in addition to
1
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MEDICAL LAW AND ETHICS IN INDIA
the above rules. The rules will be applicable to all areas to which their respective Act applies though they need to -be adjusted to conditions in the different areas and would need reviewing from time to time. The Standing Orders should be drawn up in consultation with the medical officers, public health nurses, health visitors and the authorities of the maternity hospitals in the area ,vith particular reference to (1) Procedure for the conduct of deliveries and for after-care the mother and baby; (2) action in cases of emergencies;
(,'3) use of drugs ordinarily and in emergencies;
(4) defining of abnor.mal conditions; keeping records and of making reports; (5) method (6) procedure in case of infection in regard to the care of the patient and in regard to the midwife herself; (1') minimum requirements regarding contents of midwifelY bag. ,
I
RULES FOR HEALTH VISITORS
1. The health visitor shall be guided by the Standing Orders pres cribed for the area. The Rules for Mid'vvives will apply to any midwifelY practised by health visitors. 2. The health visitor on being assigned to an area should acquaint herself with all the available facilities, both Government and private, connected with public health work such as hospitals, maternity homes, other M.CW. Centres, doctors, nurses, midwives and dais practising in the area, the local branch of the Red Cross Society or any similar orga nizations for welfare and relief. S. The health visitor should plan her visiting programme methodi cally so that the whole area is covered within a defined period. She should however adjust her daily visiting programme to meet the special needs of the families she serves. 4. The health visitor should supervise the practicc of dais in her area, visiting the women delivered by them as early as possible. She should encourage them to bring the women who engage their services to ante-natal clinic. She should also encourage the dais to meet with her periodically for discussion with a view to improving their practice. .5. The health visitor may give treatment for minor ailments as prescribed in the Standing Orders. She should however recognise that dmgs supplied by the Centre are for the purpose of facilitating the preventive Service; women and children needing treatment should be referred to a doctor or to a hospitaL It is recommended that Standing Orders be drawn up for Health Visitors. As in the case of Midwives these will be in accordance with the need of pmticular areas and should he framed in consultation with persons connected with the work of health visitors. The subjects should include (1) weekly routine in the 11.C.vV. Centre; (2) method of recording and of referral to other agencies; treab11ent of minor ailments defining the conditions which may he treated and the drugs which may be used;
MEDICAL ETHICS, ETIQUETTE AND DISCIPLINARY COUNCILS 125
(L1) the circumstances under which midwifery may be under taken; (5) some very general regulations regarding routine and follow up visits. The number of visits should not be prescribed rigidly. The health visitor should instead be encouraged to be selective in her visiting and to develop discretion about the best use of her time. Rules for Nurse-Dais
(1) The Nurse-Dai working in or attached to an institution will be guided by the regulations prescribed by them. If in private practice she will be guided by the Standing Orders for her area. (2) The Nurse-Dai will be expected to give careful attention to personal hygiene, particularly to the care of her hands, and to the hygiene of her home. She shall not wear any bangles or rings while on duty. (3) The Nurse-Dai shall undertake to attend to only those deli veries which are expected to be normal. For this purpose she should encourage the mother to an ante-natal clinic regularly and should herself accompany her at hvice, once in the early months of and again near the expected date nancy, preferably for the first delivery. (4) 'When in charge of a case of labour, the Nurse-Dai must not leave a mother without giving her address where she can be found without delay. After the beginning of the second stage she must stay with the mother until the expulsion of the placenta and membranes and as long after as may be necessary. (5) The Nurse-Dai shall be responsible for the personal cleanliness of the mother and child and for the promotion of a hygienic environment for them. (6) The shall obtain assistance from a doctor or health visitor in all cases of illness of the mother or child in the case of any abnormality becoming apparent during the pregnancy, labour or lying-in period. (7) The shall maintain records and deliveries COll dueted by to the appropriate authority as laid down in the Standing Orders. (8) If a Nurse-Dai has been in contact with a person, \vho i3- suf infectious she must fering from ;my condition which is suspected to carry out such measures for disinfection as are required by the Super vising authority. (9) If Nurse-Dai is herself suffering from an infectious condition such as a cold or sore throat, she should not to a \V01n8n dur!fl" lahour or lying-in period. . . J
must give the ~/ledical of Health or his every reasonable facility for the inspeetion of her baa and any of her hOllse \vhich she uses for professional purposes. b (11) A Nurse-Dai must not employ any uncertified person ;IS he!' substitute. (10) A
MEDICAL LAW AND ETHICS IN INDIA
126
Standing Orders for Nurse-Dais should have particular reference to: (1) the conditions under which she should not undertake the
delivery; (2) the conditions for which should call for assistance and from where and whom she can obtain it. (3) the conditions to be reported and the records to be main tained by her; (4) contents of the bag and how they should be maintained; (5) procedure regarding booking and conduct of deliveries and after care; (6) procedure in case of infection in regard to the care of the patient and in regard to the Nurse-Dai herself.
Section 7 -
CODE OF PHARMACEUTICAL ETHICs
1
CHAPTER I General Introduction
The profession of Pharmacy is noble in its ideals and pious in its character. Apart from being a career for earning livelihood it has inherent in it the attitude of service and sacrifice in the interests of the suffering humanity. In handling, selling, distributing, compounding and dispeJ1sing medical substances including poisons and potent dmgs a. pharmacist is, in collaboration with medical men and others, charged with the onerous responsibility of safe-guarding the health of people, as such he has to uphold the interests of his patrons above all things. The lofty ideals set up by Charaka, the ancient Indian Philosopher, PhYSician and Pharmacist, in his enunciation: "Even if your own life be in danger you should not betray or neglect the interests of your patients" should be fondly cherished by all Pharmacists. Government restricts the practice of pharmacy to those who qualify under r8gulatory requirements and grant them privileges necessarily denied to others. In return Government expects the pharmacist to recognise his responsibilities and to fulfil his professional obligations honourably and with duc regard for the well being of Society. Standards of professional conduct for pharmacy are necessary in tbe public interest to ensure an efficient pharm8eentical service. Everv J
As adontccl by the
BOI\f13AY STATE
PHAH.\fACY COUNCIL
The following notice is prefaced to the text of the CODE: The "Code" set out in the followillg pages is not primarily a basis fOT applying but has as its chief objective to assist ph
MEDICAL ETHICS, ETIQUETTE AND DISCIPLINARY COUNCILS 127
pharmacist should not only be willing to play his part in giving such a service but should also avoid any act or omission which would prejudice the giving of the services Dr impair confidence in any respect for phar macists as a body. The nature of pharmaceutical practice is such that its demands may be beyond the capacity of the individual to carry out or to carry out . as quickly or as efficiently as the needs of the pnblic require. There should, therefore, at all times, be a readiness to assist colleagues with information or advice. A pharmacist must, above all, be a good citizen and must uphold and defend the laws of the State and the Nation. CHAPTEH II Pharmacist In Relation To His Job
Scope of Pharmaceutical Service:
When premises are registered under statutory requirements and opened as a pharmacy, a reasonably comprehensive pharmaceutical service should be provided. This involves the supply of commonly re quired medicines of this nature without undue delay. It also involves willingness to furnish emergency supplies at all times. Conduct of the Pharmacy: 1h~£Qllditions in a pharm~£y_~!:~~!ld~~~h aS~~Ee~Qi~l: abl~~or~~rrQ.L9LQf.~cC$E.311.cO!lJQrrl!EE~!]g!LAIl th~-.pp;.P5lIllticm.>-dis
p_ellsiI?-lL..£l:~~~_J)J_l!l,Qyjm!1es. The appearance of the premises should reflect the professional character of pharmacy. It should be clear to the public that the practice of pharmacy is carried out in the establishment. Signs, notices, descrip . tions, \"lording on business, stationelY and related indieations, should be restrained in size, design and terms. Descriptions which denote or imply pharmaceutical qualifications should be limited to those of which the use is restricted bv law and should not draw invidious distinction between pharmacists. A notice stating that dispensing under (Employees State Insurance Scheme) E.S.I.S. or any such other scheme sponsored by Government is carried out may be exhibited at the premises. In eveIY pharmacy there should be a pharmacist in personal control of the pharmacy who \vill be regarded as primarily responsible for the observ ance of proper standards of conduct in connection with it. Any obstruc tion of the pharmacist in the execution of his duty in this respect by the o\vner ,vill be regarded as a failure on the part of the owner to observe the standards in question. Handling of Prescriptions:
When a prescription is presented for dispensing, it should be re ceived by a Pharmacist without any discussion or comment over it regarding tbe merits and demerits of its therapeutic efficiency. The Pharmacist should not even show any physiognomic expression of aLum or astonishment upon the receipt of a prescription, as such things may cause anxiety in patients or their agents and may even their faith in their physician. Any question on a prescription should be answered
128
MEDICAL LAW AND ETHICS IN INDIA
with every caution and care; it should neither offend a patron nor should it disclose any information which might have been intentionally withheld from him. It is not within the privilege of a Pharmacist to add, omit or sub stitute any ingredient or alter the composition of a prescription without tho consent of the prescriber, unless the change is emergent or is de manded purely by the technique of the pharmaceutical art and does not cause any alteration in the therapeutic action of the recipe. In case of any obvious error in it due to any omission, incompatibility or .over dosage the prescription should be referred back to the prescriber for correction or approval of the change suggested. 'While such an act is imperative in the best interest of the patient, in no case should it be done in a manner which may jeopardize the reputation of the prescriber concerned. In matter of refilling prescriptions a Pharmacist should solely be guided by the instructions of the prescriber and he should advise pa tients to usc medicines or remedies strictly in accordance with the intention of the physician as noted on the prescription.
IIandling
of Drugs:
All possible care ·should be taken to dispense a prescription correctly by weighing and measuring all ingredients in correct proportions by the help of scales and measures: visual estimati~l11st bC2voided. Further, a Pharmacist should always ~s and medicinal prepara tions of standard quality available. He should never fill his prescriptions with spurious, sub-standard and unethical preparations. A Pharmacist should be very judicious in dealing with drugs and medicinal preparations known to be poisonous or to be used for addic tion or other abusive purposes. Such drugs and preparations should not be supplied to anyone if there is reason to suppose that it is required for such purpose.
Apprentice Pharmacist: 'While in-charge of a dispensary, drug-store or hospital pharmacy where apprentice pham1acists are admitted for practical training a pharmacist should see that the trainees are given full facilities for their work so that on the completion of their training they have acquired sufficient technique and skill to make themselves dependable pharma cists. No certificate or credentials should be granted unless the above criterion is attained and the recipient has proved himself wOlthy of the same. CHAPTER III Pharmacist In Relation To His Trade
Price Structure: Prices charged from customers should be fair and in keeping with the quality and quantity of commodity supplied and the labour and skill requircd in making it ready for use, so as to ensure an adequate remuneration to the pharmacist taking into consideration his knowledge,
1
MEDICAL ETHICS, ETIQUETTE AND DISCIPLINARY COUNCILS 129
skill, the time consumed and the great responsibility involved, but at the same time without unduly taxing the purchaser.
Fair Trade Practice: ~ttempt should be made to capture the business of a con temporary by cut-throat co etition that is, by offering any SOlt of urement to patronizers or by knowingly prizes or gifts or any in 0 charging lower prices for medical commodities than those charged by . a fellow pharmacist if they be reasonable. In case any order or pres cription genuinely intended to be served by some dispensary is brought by mistake to another, the latter should refuse to accept it and should direct the customer to the right place. Labels, trade marks and other signs and symbols of contemporaries should not be imitated or copied.
Purchase
of Drugs:
Dmgs should always be purchased from genuine and reputable sources and a Pharmacist should always be on his guard not to aid 0r abet, directly or indirectly, the manufacture, possession, distribution and sale of spurious or sub-standard dmgs.
Hawking
of Drugs:
Hawking of dmgs and medicinals should not be encouraged nor should any attempt be made to solicit orders for such substances from door to door. 'Self-Service' method of operating pharmacies and dmg stores should not be used, as this practice may lead to the distribution of therapeutic substances without an expert supervision and thus would encourage self-medication, which is highly undesirable.
Advertising and Displays: No display material either on the premises, in the press or else where should be used by a pharmacist in connection with the sale to the public of medicines or medical appliances \vhich is undignified in style or which contains; (a) Any wording, design or illustration reflecting unfavourably on pharmacists collectively or upon any group or individual. (b) A disparaging reference, direct or by implication, to other suppliers, products, remedies or treatments. (c) Misleading, or exaggerated statements or claims. (d) The word 'cure' in reference to an ailment or symptoms of illhealth. (e) A guarantee of therapeutic efficacy. (f) An appeal to fear. (g) An offer to refu:nd-- money paid. (h) A prize, competition or similar scheme. (i) Any reference to a medical practitioner or a hospital or the use of the terms "Doctor" or "Dr." or "Nurse" in connection with the name of a preparation not already established. (j) A to sexual weakness, premature or loss. of virility.
130
MEDIC:;AL LAW AND ETHICS IN INDIA l
. (k) A reference to complaints of a sexual nature in terms which lack the reticence proper to the subject. No article or preparation advertised to the public by means of display material of a kind mentioned above should be exhibited in a pharmacy if it is known or could reasonably be known that the article or preparation is so advertised. Contraceptive preparations and appliances or other illustrations should not be exhibited except a notice approved by regulations or bearing the word" aFamily Planning Requisities". Under no eireum stances should lustful, obscene and indecent publications of any kind or description be" sold or distributed, as this practice is highly detri mental to the moral welfare of the Nation. CHAPTER IV Pharmacist In Relation To Medical Profession
Limitation of Professional Activity; Whereas it is expected that medical practitioners in general would not take to the practice of pharmacy by owning drug-stores, as this ultimately leads to coded prescriptions and monopolistic practices detri mental to. the pharmaceutical profession and also to the interest of patients, it should be made a general rule that plwITDacists unde~~E~~ ~cumstanc~s take to edical 'cc, that is, to aIagnosing mseases andprescribing remedies therefor even if requested by patrons to do so. In cases of accidents and emtrgencies a pharmacist may, however, render First Aid to the victim. No Pharmacist should recommend a particular medical practitioner unless specifically asked to do so.
Clandestine Arrangements: No Pharmacist should enter into any secret arangement or contract with a physician to offer him any commission or any advantage of any description in return for his favour of patronage by recommending his dispensary or drugstore or even his self to patients.
Liaison with Public: Being a liaison between medical profession and people, a pharmacist should always keeps himself abreast \vith the modem developments in pharmacy and other allied sciences by regularly reading books, journals, magazines and other periodicals, so that on the one hand he may be in a position to advise the physicians on pharmaceutieal matters like those of colours, flavours, vehicles and newer forms of administration of medicines, on the other, he may be able to educate the people f9r maintaining healthy and sanitary conditions of living. Thus a pharmacist can contribute his share in the nation-building activities of the country. A pharmacist should at all times endeavour to promote knowledge and contribute his quota in the advancement of learning. A pharmacist should never disclose any information which he has acquired during his professional activities to any third party or person
MEDICAL ETHICS, ETIQUETTE AKD DISCIPLINARy COUNCILS 131
unless required by law to do so. He should :never betray the confidence which his patrons repose in him or which he has \\'on by virtue of his eminent character and conduct. CHAJYTER V Pharmacist In Relation To His l)rofession
Professional Vigilance: It is not only sufficient for a pharmacist to be law-abiding and to, deter from doing things derogatory to Society and his profession, but it should be his bounden duty to make others also fulfil the provisions of the pharmaceutical and other laws and regulations. He should not be afraid of bringing or causing a miscreant to be brought to book, may be a member of his own profession. Whereas it is obligatory for a pharmacist to extend help and co-operation to a fellow member in his legitimate needs, scientific, technical or otherwise, he is to be, at the same time, vigilant to weed the undesirable out of the profession and thus help to maintain its fair name and traditions.
Law-abiding Citizen: A pharmacist engaged in profession has to be an enlightened citizen endowed with a fair knowledge of the common laws of the land and he should strive to countenance and defend them. He should be par ticularly conversant with the enactments pertaining to food, drug, pharmacy, health, sanitation and the like, and endeavour to abide by them in every phase of his life. A pharmacist is a unit whole and his life cannot be divided into compartments. Relationship with Professional Organisations:
In order to inculcate a corporate life in his own professional col leagues, a pharmacist should join and advance the cause of all such organisations, the aims and objects of which are conducive to scientific, moral and cultural well-being of phmmacists and at the same time are in no way contrary to the code of pharmaceutical ethics. Decorum, and Propriety;
A pbarmacist should always refrain from doing all such acts and deeds which are not in consonance with the decorum and propriety of pharmaceutical profeSSion or which are likely to bring discrcdit or up~ braid to profeSSion or to himself. Pharmacists" Oath;
A young prospective Pharmacist should feel no hesitation in assum ing the follo\,ving Pharmacists' Oath: "1
to do all I can to protect alld improue tlle physical and wellsociety, holding the health alld safety of my community other 1 shall uphold the laws alld standards m!l profession, forms of misrepresentation, and I shall distribution of potent substances. alld Ilever divulge Knowledge gained about patients 1 shall hold in wlless compelled to do so by law.
MEDICAL LAW AND ETHICS IN INDIA
I shall strive to perfect and enlarge rny knowledge the better to contribute to the advancement of pharmacy alld the 'Public health. I furthermore promise to maintain my honour and credit in all transactions and by my conduct never to bring discredit to 1I1yself or my profession, nor to do anything to diminish the trust reposed in my professional brethren. May I prosper and live long in favour as I keep and hold to this my Oath, but should J violate these sacred promises may the reverse be my lot".
Part III DISCIPLINARY COUNCILS Section 1 - FUNCTIONS
OF DISCIPLINARY COUNCILS
Introduction. The quality of medical care given to the public depends not only on the skill and scientific knowledge of the medical profession but also on the l1!2Eal .9~aliE£~_of tl1CiSe/who administer it. Therefore, the ::,tandard of medical ethics maintained by medical prac titioners has great practical importance. The dutv of seeing that the mor~ualities of those who render medical car~ is mail~t~ine;:r-o;1'3 high level fJl~'~~--ti;;-~~~211S dis~iplin~ry~_~~:~~ii~.-·-·Al~ost·~;;ry st';-h~t;;-go~e;~ing the medical professT;;~ncluding the veterinary and nursing professions, as also the statutes dealing with pharmacists, con tain provisions for the setting up of disciplinary councils. 1 Most of the provisions in these statutes dealing with the powers and duties of the disciplinary' councils are identical. Some of these provisions are dis cussed here. Functions of Councils. The first duty of these councils iLto maill t:.g~~ persons who pa';~1::SS the required qualificatiOI~·~ councils are empowered to remove from these registers persons who, by crime or ;:;~onduct, hav;- become unworthy of the status which registration confers on them. Disciplinary councils are, therefore, charg ed, first, with the duty of emuring that only persons \'''1ho are profes Sionally fit are given the advantage of being put on the register and, secondly, with the dgh:.-2fJ.ssu~~arning notices to remove the un deserving from the register. As disciplinary councils are charged with rereoving the urlworthy from their registers, they possess also the power to require medical practitioners to abide by the code of ethics governing them. Statutes dealing with the medical and allied professions provide that counciis have the pO\ver, after due inquiry, of issuing letters of \vaming and of removing practitioners from their registers if the prac titioners arc found guilty of rnisconduct. The word 'misconduct' has been generally defined to mean, 1
See the discusssion of these statutes in
CHAPTERS
I and H.
MEDICAL ETHICS, ETIQUETTE AND DISCIPLINAEY COUNCILS 133
I (a) the conviction of a medical practitioner by a criminal court for
an offence which involves moral turpitude and which is cogniz able within the meaning of the Code of Criminal Procedure"
1898;
Army Act, 1950, of a medical prac (b) the conviction under titioner subject to military law for an offence \vhichis cogniz able within the meaning of the' Code of Criminal Procedme, 18.98; (c) any conduct which, in the opinion of the MEDICAL COUNCIL,' is infamous in relation to the medical profession., Courts have defined "infamous conduct in a professional rcspect"
~s something.,\:vhi~h might~~asonably
b; ~~~d_~~~~lI~r
;..sl":
(l~shonoura~Le_b~-p_r9fe§~~.onal !!1~}}~ good repute and cOIp.J)etence. As?if the gen~;;i moral .. -of the pr~fess'ion imp;o;es, prac't'i~~s which were at one time not considered abhorrent to the ethical conscience of the profession become "In the seventies and of the last century, it was common in some parts of the country for a registered doctor to employ a number of unqualified persons as his assistants and to entrust them with the sole care of patients. Such a practice was obviously fraudulent and, in deed, dangerous to the public. After dealing with a number of such cases, the issued a notice warning the profession against such a practise and dealt drastieally with a number of offenders by erasing their names from the The result was that in 1906> the then President could say that sueh cases among medical men had alinost ceased to be reported to the COUNCIL, whieh was all for the good for both of the public and the profession".l Codes of ethics of almost every system of medicine usually maintain that it is unethical for medical practitioners to associate in professional matters w'ith persons who are neither registered nor enlbted nor with those wbo have been struck off the register or list. 2 Human nahlre requires that there should be some body or authority entitled to enforce rules and regulations. I~l respect. of law§., courts ~Jhe PO\':'Q.L!Q_Q!lforce [email protected].. in of codes of medical ethics, disciplin.ll.!Y.-.90uncils perform Eimilar \\'Qrk.
1
J
------.-""-~-
-
--
-
Judicial Procedure of Councils. The disciplinary jurisdiction of a disciplinary council is invoked in one of two ways: (1) when infonna-l tion reaohes the office of the coullcil that a medical practitioner has been convicted of a cognizable offence or has been censured by a ;,
1
1
Sir David Campbell, a past President GENERAL COUNCIL ENGLAND, in the of the British Journal S"ptember 1st p. 564, has " very informative article on the subject, entitled
OF
DOCTOR'S
See, for the
para I.3 of Pmt II of the Code of JIedical Ethics, adopted by
!.,1AHATIASHTRA (BOMBAY
AREA)
MEIllCAL
Cm;"CH...
k
134
MEDICAL LAW AND ETHICS IN INDIA
judicial or other competent authority in relation to his prOfeSSional} character or has been found guilty of conduct which prima facie con stitutes infamous conduct in a professional respect; (2) by a complaint being made by some person or hody charging the registered medical practitioner with infamous conduct in a professional respect. When a complaint has been lodged, the complaint and
\Vhcn a witness is by any party before the council he shall be
first examined bv party producing him and cToss-ex;.lmined by the
party 31Jd Ie-examined by the party who calls him. The
council has the to decline to admit evidence in declaration
the person m:lking the deebmtion present or dedines to
himself to cross-examination. The and the legal adviser
IvIEDICAL ETHICS, ETIQUETTE AND DISCIPLINARY COUNCILS
135·
of the council may put questions to a witness. Members of the council may also put questions to a witness but through the president.
'Where no complaint has been lodged and the council aets on in formation which it has received otherwise than by way of complaint or in a case where, though a complaint has been made, the complainant does not appear on the day of the hearing, the following procedure shall be adopted: (1) The registrar shall read to the council the notice issued to the practitioner and shall state the facts of the case and produce before the council evidence in support thereof. (2) The practitioner is then invited to state his case (himself or through his legal adviser) and to produce proof in support thereof. He may then address the council. In either of the above procedures, upon the conclusion of the case, the COUNCIL shall deliberate amongst themselves and, at the conclusion of the deliberations, the president shall call upon the COUNCIL to vote on the question whether the facts alleged against the practitioner have been proy.~dj;.Q~ the satisfaction of the COUNCIL. If the majority vote is --------------~.--.-~-----=--"~~--'"~~--.- to the effect that the charge has been proved, the COUNCIL mllst proceed to pronounce its judgment. The COUNCIL must then v~nd decide whether the name of the practitioner should be.JeIlJQyedJrom the register or whether a notice of warning should~ be issued to him)
Need for Due Inquiry: As observed above, it is usually provided in every statute which sets up a disciplinary council and confers on it the power either to give a warning or to erase the name of a regis tered practitioner, that the council. should ~hold due inquiry ...before e~rcising these powers. Therefore, even if a medical practitioner has been found by any court or other body to have been guilty of infamous conduct in a professional respect, the di~ciplinary<::ouI1~i!~ <:a.nl1?..! llold.. the pra~tititi()nel~_gllill+~QLIQisconduct...JllL..the-.ZI<2..l~l!g .. that~'ls already been found guilty of misconduct by a cou~1-o~ by some other ~-Tl~~~~1i~ciplim;~y council cannot tr~at~the~fu1dinis ~f"~;~o;rt ofl any other body as constituting more than prima facie evidence of the " facts. The council must any evidence the practitioner may adduce with a view to controvert those finding. --~.~
-~
~~"~-~-~"-"'"
-~-~
~-.--~
J
In General Medical Council v. Spackman,! a registered medical practitioner, who was a co-respondent in a divorce suit, was found by the Divorce Court to have committed adultery with the respondent therein to whom he stood in a profeSSional relationship and a decree nisi was pronounced which was afterwards made absolute. The GENEHAL MEDICAL COUNCIL the practitioner notice that a meeting of the A.G 627.
I
136
MEDICAL LAW AND ETHICS IN INDIA
COUNCIL would be held to decide whether his name should be removed from the medical register for infamous conduct in a professional respect. At the hearing he desired to call, on the issue of adultery, evidence which had not been called at the hearing of the petition although it was then available. The COUNCIL declined to hear the fresh evidence, but accepted the decree nisi as prima facie proof of adultClY and directed that the practitioner's name should be erased from the register" It was held that while the COUNCIL was entitled to regard the decree in the divorce suit as prima facie evidence of adultery, it was bound to any evidence that was tendered by the practitioner and that, having refused to hear such evidence, it had not maqe «due inquiry". Lord Atkin' said, «Now, it is plain that the statute throws on the Council and on the Council alone the duty of holding due inquiry and of judging guilt.. They cannot, therefore, rely on inquiry by another tlibunal or a judgment of guilt by another tribunal. The practitioner charged is entitled to a judgment which is the result of the considered deliberation of his fellow practitioners. They must, therefore, hear him and all relevant wib1esses and other evidence that he may wish to adduce be fore them." Infamous Conduct: In Rex v. General Medical Council: the eourt explained the meaning of--~ the phrase,
(930) J, K. B. 562 at 569.
3 (J 894), 1 Q.B. 750 at 763.
4 Ha!s!Jury, Vol. .'3rd 5 (1956) '3 An 742.
1
2
p. 64.
I
I'viE DICAL
ETIQUETTE AND DISCIPLINARY COUNCILS 137
professional domestic tribunal investigating the allegation to apply a high standard proof and not to condemn on a mere balance bability.
Section 2 - STATUTOHY UNDER THE
FOR DISCIPLINARY JURISDICTION
MEDICAL ACT, 1912
The following are the statutory rules made under the Bombay l!.ledical Act, 1912, with to the disciplinary jurisdiction of the MAHARASHTRA (BOMBAY AREA) MEDICAL COUNCIL. "74. Whenever information reaches the office of the COUNCIL that a registered medical practitioner has been convicted of a cognizable offence as defined by Section 9 of the Act, or has been under the censure of any judicial' or other competent authority in relation to his professional character, or has been guilty of conduct which prima facie constitutes infamous conduct in a professional respect, the REGISTHAR shall make an abstract of such information and shall submit the same to the PRESIDENT. 75. \Vhere the infol1nation in question is in the nature of a com plaint by a person or body charging the Practitioner with infamous conduct in a professional respect, such complaint shall be made in writing addressed to the REGISTHAR, and shall state the grounds of com plaint and shall be accompanied by one or more declarations as to the facts of the case. 76. Every declaration must state the description and true place of abode of the declarant, and \vhere a fact stated in a declaration is not within the personal knowledge .of the declarant, the source of the infor mation and grounds for the belief of the declarant in its truth must be accurately and fully stated. Declarations and parts of declarations which are made in contravention of this mle will not be accepted as evidence. 77. The abstract and, where a complaint has been lodged, the complaint and all other documents bearing on the case, shall be sub mitted by the REGISTRAR to the , who shall, if he thinks fit, instruct the REGISTHAR to ask the Practitioner by means of a registered letter for any explanation he may to offer. The documents, in cluding any explanation forwarded by the practitioner to the REGISTHAR shall then be referred to the EXECUTIVE COMMITTEE, who shall consider the same and shall have power to cause further investigation to be made and further evidence to be taken, and to refer if necessary to a SOLICITOR for his advice and assistance and to instruct him to take the opinion of the COUNSEL and othenvise to obtain such advice and assistance as thev shall think fit. If the CmIMUTEE are of the opinion that a prima fade case is not made out, the case shall not further. and the shall inform the complainant of the Resolution of the COM MITTEE. If the COI"1AHTTEE is of the opinion that the circumstances that a warning to the Practitioner would be enough, the is empowered to resolve accordingly. the COl'dMITTEE resolve that the case is one in which an inquilY ought to be held, the shall direct the REGISTRAR to take steps for the institution of an inquiry and for having the case heard and determined by the COUNCIT,. PUr.'CT'lY"''''''''
I
138
MEDICAL LAW AND ETHICS IN INDIA
78. An inquiry with a view to the removal of a name from the Regis ter under Section 9 shall be instituted by the issue of a notice in wIiting,
on behalf of the COUNCIL by the REGISTRAR addressed to the Practitioner. Such notice shall specify the nature and particulars of the charge, and shall inform him of the day on which the COUNCIL intend to deal with the case, and shall call upon the Practitioner to answer the charge in writing and to attend before the COUNCIL on such day. The notice shall be in the form given in the Appendix to Chapter IX, with such variations as circumstances may require, and shall be sent three weeks before the date of inquiry, and shall be accompanied by a print of Section 9 of the Act and of the following rule. 79. In every case in which the EXECUTIVE COMMITTEE resolve that an inquiry shall be instituted and a notice for inquiry is issued ac cordingly, either party shall, for the purpose of his defence or reply as the case may be, and upon request in writing for that purpose signed by himself or his Solicitor, be entitled to be supplied by the REGISTRAR with a copy of any declaration, explanation, answer or other document given or sent to the COUNCIL by or on behalf of the other party, which such other party will be entitled on proper proof to use at the hearing as evidence in support of or in answer to the charge specified in the noticc of inquily; and every notice of inquiry shall draw the particular atten tion of the Practitioner to this Rule. 80. Any ans,ver, evidence or statement forwarded, or application made by the Practitioner between the date of the issue of the notice and the day named for the hearing of the charge, shall be dealt with by the PRESIDENT in such manner as he, undcr legal advice, shall think fit. SI. Copies of all material documents which are to be laid before the COUNCIL as evidence in regard to the case shall be furnished to each member of the COUNCIL before the hearing of the case. 82. At the hearing of the case by the COUNCIL, their SOLICITOR may be present to advise as to the conduct of the case and a COUNSEL employed by them may act as JUDICIAL ASSESSOR. The complainant and also the Practitioner may be represented or assisted by a Solicitor with or without Counsel. 83. "Where a complainant appears personally or by Counselor Solicitor, the following will be the order of procedure : (1) The REGISTRAR to the COUNCIL will read to the COUNCIL the notice of the inquiry addressed to the Practitioner. (2) complainant will then be invited to state his case by himself or legal and to produce his proof,; in support of it. At the of complainant's proofs his case will be closed. The Practitioner \vill then be invited to state his case by hinlself or by his legal representative, and to produce his proofs in support it. He may <~ddress the COUNCIL either before or at the conclusion his but only once. (4) At the of the Practitioner's case, the CoUNCIL will, if the Practitioner produced evidence, hear the complainant in reply on the cnse geuerally, hut will henr no further evidence except in ,;pedal ease in which the Cm':NCIL may think it right to receive further evidence. the Practitioner no evidence, thl? com plainant wil! not heard in reply except special leave of the COl:NCIL.
\Vhere a is produced by any party before the COLJNCIL, he will be first by the party producing him, and then cross-examined by the adverse party, and then re-ex,unined Ly the P,l1 ty producing him. The COlJNCn, reserves to itself the right to decline to admit in
1
MEDICAL ETHICS, ETIQUETTE AND DISCIPLINARY COUNCILS
139
evidenee any declaration where the declarant is not present for or declines to submit to cross-examination. (6) The PRESIDENT and the JUDICIAL ASSESSOR, when present, may put questions to any witness; and members of the COUNCIL, through the PHESIDENT, may al~o put questions to any witness.
84. 'Where there is no complainant or no complainant appears, the following will be the order of procedure; The REGISTRAR to the COUNCIL will read to the COUNCIL the notice of inquiry addressed to the Practitioner, and will state the facts of the case and produce before the COUNCIL the evidence by which it is supported. (2) The Practitioner will then be invited to state his case by himself or by his legal representative, and to produee his proofs in support of it. He may address the COUNCIL either before or at the conclusion of his proof, but only once. The SOLICITOR to the COUNCIL may he heard in reply if the COUNCIL so desire.
85. Upon the eonclusion of the case, the COUNCIL will deliberate thereon in private and at the conclusion of the deliberations, the PRESIDENT shall, for the' purpose of summing up the result of the deli berations, call upon the COUNCIL to vote on such of the following Resolutions to be put from the CHAIR as may be applicable to the circumstances of the case (1) In the case of a Practitioner who has been convicted of an offence That ............ has been proved to have been convicted of a offence as defined in the Code of Criminal Proce dure, 1898, alleged against him in notice of inquiry. (2) In the case of a Practitioner charged \vith infamous conduct in a professional respect (a) That the Council do now proceed to decide whether the facts against in the notice of inquiry have been proved or have not been proved. If this Resolution is not carried, the further hearing of the case will stand adjourned till the next or some other future Sessiou of the COUNCIL as the COUNCIL shall direct, and the hearing thereof will be taken at such next or other future Sessions as an adjourned case. If this Resolution is carried, the COUNCIL shall be called upon by the PRESIDENT to vote on the following Resolution to be put from the CHAlR
(b) That the facts [or the following facts (specifying them)] alleged against . .......... in the notice of inquiry haDe been proved to the satisfaction of the Council. this Resolution is carried, the COUNCIL may either proceed to judge whether on the facts proved, the accused Practitioner has been guilt-'y of infamous conduct in a professional respect and to direct the REGISTRAR to erase his name from the Medical Register or may post pone its judgement and cldjourn the case until the next or some other future Session. (3) In the case of a Practitioner convictecl of an offence alleged against him in the notice of inquiry or charged with in famous conduct in a professional resPQct for the purpose of deciding whether or not theiudgment of the COUN'CII, on
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140
MEDICAL LAW AND ETHICS IN INDIA
the conviction (or facts) proved shall be postponed, COUNCIL shal1 be called upon by PRESIDEKT to vote on the following Resolution to be put from the CHAIR: (c) That the Council do now proceed to announce its judg menton the conviction (or facts) proved against ........ . If this Resolution is not carried, the Judgment of the COUNClL \vill stand postponed till the next or some other future Session of the as the COUNCIL shall direct, and the case will be taken at such next or other future Session as a case in which judgment has been postponed. If this Resolution is carried, the COUNCIL may either direct that a letter of warning be issued to the Practitioner or may direct that the name of such Practitioner be removed from the Register for a specified in the direction or be removed entirely. If the COUNCIL resolves that the circumstances suggest that a of warning would be sufficient, the PRESIDENT may announce the judg ment of the COUNCIL in the fonowing form "That.. .........having been proved to have been convicted of an offence alleged against him/or having been found guilty of conduct which in the opinion of the COUNCIL is infamous in relation to the medical pro fession the COUNCIL directs the REGISTRAR to issue to him a letter of warning in the form given in the ApPENDIX to this Rule."
In the case of a conviction of the Practitioner, the shall be called upon by the PRESIDENT to vote on the following Resolution to be moved from CHAIR : (d) That .. .......... having been proved to have been convicted of the offence alleged against him in the notice of inquiry, the Registrar be directed to remove his/her name from the Medical Registrar. In the case of a Practitioner charged with conduct which is in famous in relation to the medical profession, the COUNCIL shall be called upon by the PRESIDENT to vote upon the following resolution to be moved from the CHAIR: (e) That the Council do now judge ............to have been guilty of conduct which is infamous in relation to the medical profession and to direct the Registrar to remove from the M.edical Regi~ter the name of ........... . If the Resolution in clause (d) or (e) is carried the COUNCIL shall be further caned upon by, the PRESIDENT to vote on the following re solution to be put from the CHAIR: (f) That the Council do direct the Registrar to erase from the Medical Register the na'me of.............. .for a period of. ............ . commencing from the ....... ....... .. day of. ............... 19........ .and ending on the ............... day of. ......... .. 19........... .01' entirely. If the Resolution in clause (d) or (e) is not carried, the COUNCIL shall be called upon by the to vote upon the following further Resolution to be put from the CUAIR: That the Council do not see fit to direct the Registrar to remove from the f,'Iedical Register the name of.......... .. 86. In the event of an adjournment of the hearing, or of a post ponement judgement to another Session, the COliNCIL, on the case coming on for consideration, may hear the Practitioner and the com plainant (if any) and receive such f~Jrther evidence in relation to
:\1EDICAL ETHICS, ETIQUETTE AND DISCIPLINARY COUNCILS 141
charge and in relation to the conduct of the accused Practitioner sub sequent to hearing of the charge by the COUNCIL, as it shall think nt. Notice in writing shall be given by the REGISTRAR of the COUNCIL to the Practitioner and to the complainant (if any) of the day fixed for further consideration, and shall request the attendance of the pra~ titioner on that day before the COUNCIL, and the complainant and the Practitioner shall each be requested to furnish to the REGISTRAR, in writing, not less than fifteen days before the day so fixed, a statement in writing of any further facts or evidence which he may desire to be laid before the COUNCIL. The notice shall be given so as to allow at least twenty-eight days between the day on which the notice is given and the day appointed for further consideration. No further facts or evidence presented by a party to the inquiry shall be received or considered by the COUNCIL, unless a statement thereof has been pre viously furnished to the REGISTRAR in compliance with this Rule. 87. On the case coming on before the COUNCIL for further conside ration, the SOLICITOR, if present, or the REGISTRAR, when the SOLICITOR 'is not present, shall, if necessary, state the facts and explain the position of the case to the COUNCIL. The Practitioner shall then be invited to address the COUNCIL, either personally or by his legal representative, and lay before the COUNCIL any further facts or evidence of which he may have duly given notice to the REGISTRAR; and the complainant (if any) shall then be invited to address the COUNCIL, either personally or by his legal representative and lay before the COUNCIL any further evidence of which he shall have duly given such notice. At the conclusion of the further hearing, the· COUNCIL shall deli berate on the case in private; and at the conclusion of the deliberation the PRESIDENT shall call upon the COUNCIL to vote in an adjoumed case on the same resolutions as at the original hearing and, in a case in which judgment was postponed, on Resolutions (c) and (d) or (c) and (e) in Rule 86, as the case maybe. 88. When the COUNCIL has received notice from a Licensing Body that any Qualification has been duly and legally withdrawn from a Registered .Medical Practitioner by such Body, provided that the Quali fication has not been withdrawn on the ground of the adoption of any theory of Medicine or Surgery, then the COUNCIL shall, if it thinks fit, by formal Resolution put by the PRESIDENT from the CHAIR, direct the REGISTRAR to remove such Qualification or Qualifications from the Medical Register as appertain to sHch medical practitioner. 89. I.f, under the direction of the COUNCIL, all the Qualifications of any Registered Medical Practitioner have been erased from the Medical Register, then the COUNCIL shall, if it thinks fit, by formal Resolution put by the PRESIDENT from the CHAIR, direct the REGISTRAR to remove the name of sllch Practitioner from the ~fedical Register."
CHAPTER IV
RIGHTS AND DUTIES OF MEDICAL PRACTITIONERS
Part I RIGHTS AND PRIVILEGES
Section 1 (1) (2) (.3) (4)
GENERAL RIGHTS
Hight Right Right Right
Section 2 -
to to to to
AND PRIVILEGES
choose a patient. sue for fees.
add title, description etc. to name.
use the Red Cross and allied emblems.
SPECIAL RIGHTS AND PRIVILEGES OF
REGISTERED PRACTrnONERS
(1) Appointments to public and local hospitals.
(2) Right to dispense medicine. Issue of certificate. Right to give evidence as an expert. Right to recover fees, expenses, etc. Excmption from serving as a juror at an inquest. Right to practise. Removal of eyes of a deceased -person.
(3) (4) (5) (6) (7) (8)
Part II DUTIES
OF MEDICAL PRACTITIONERS
Section 1 -
FUNDAMENTAL DUTIES
Section 2
VARlOUS TYPES OF DUTIES
(1) Duties with regard to attendance and examination. (2) Duty towards children and adults incapable of taking care of themselves, (3) Duty tawards employees.
(4) Duties under the Geneva Convention. Duty to inform patient of risks. Dutv with regard to poisons. DutY of secrecy. Duty to notify certain diseases. Duties with regard to operations. (10) Duties in connection with X-ray examinations. (5) (6) (7) (8) (9)
SecNon 3 - DUTIES AND (J) AnaC'sthetists. (2) Dentists. (3) Nurses. (4) Phanl1acists. (5) Radiologists.
OBLIG}cTIONS OF
SPECIALISTS
f
RIGHTS AND DUTIES OF MEDICAL PRACTITIONERS
143
Part I
RIGHTS AND PRIVILEGES
N :arts I and II t~e expression 'medical ~r~ctitioner' is used in its widest sense. It mcludes not only physIcIans and surgeons, but also anaesthetists, dentists, nurses, radiologists and veterinary surgeons.
I
Section 1 -
GENERAL RIGHTS AND PRIVILEGES
1. Right to choose a patient. A medical practitioner is nqt[~ q~ired to~cepU:.l~tients all Wh
He may arbitrarily refuse to accept any person as a patient, even though no other physician is available. He should, however, realise that the code of ethics of almost every system requires that, in an emergency, no physician should decline to render medical service. The right to choose a patient must be balanced with a medical man's ethical duty to render medical service in an emergency. The surgeon's right to refuse to perform an operation may also be dealt with here. The to (l)'../'vhen the patient insists on the operation being perfonned at home where there are no proper facilities; (2Vif a nursing home is far off and it is difficult for the surgeon to supervise post-operational treatment; (3).,/when relatives or patients show an unsatisfactory attitude from the start; (4)·../ when a free hand is refused to him in perfonning the operation, e.g., whcn thc patient insists on the operation being done in valious or dictates the extent of the operation. 2. Right to sue for fees. Ordinarily a medical practitioner has his This right a recover the amount is, however, S~l?i~ct to .1.imitations i:E,Eosed by statutes. It may be noted that in certain states in India only registered practitioners are entitled to sue to recover their fees. 1 The right to sue for fees is subject to a further limitation. Qn an action by a medical praetitioner to recover the amount of his fees, it is open to the patient to lead evidence to show that the practitioner treated him improperly or without the requisite knowledge. The reason is that if the medical practitioner does not show the required skill, the patient receives no benefit and the practitioner is not entitled to claim any fees for his services. A medical practitioner 1
SlOP Part 1, Section II, Item (5) of this Chapter.
144
MEDICAL LAW AND ETHICS IN INDIA
is expected to show reasonable skill and care. he is not entitled to charge any fees)
If he fails in that duty
3. /Right to add title, descriptions etc. to name. A practitioner is entitled to add to his name any title, description, letters or abbreviations which imply that he holds a degree, diploma, licence or certificate or any other like award which show his qualification to practise a system of medicine, provided of course that he actually holds such a degree, diploma, licence or certificate or other like award. Section 36 of the Mahatashtra Medical Practitioners' Act, 1961, provides that in order to exercise the above right, such degree, diploma, licence or certificate or other like award must be one which (1) is recognised by any law for the time being in force in India or in any part thereof, or (2) has been conferred, granted or issued by a body or institution recognised under Section 35 of the Mahatashtra Medical Prac tioners' Act, 1961, .or (3) has been recognised by the Medical Council of India. A similar provision is made in the Bombay Veterinary Practitioners' Act, 19.58. Section 2:5 of that Act prohibits a person from adding to his name any title, description, letters or abbreviations implying that he holds a degree, diploma, licence or certificate as his qualification to practise a system of veterinary science unless he actually holds such degree, diploma, etc. and such degree, diploma, etc. is recognised in India. 4. Right to use the Red Cross and allied emblems. The fact that the object of Red Cross is allied, if not with medicine, at any rate with doctors and with an those whose work it is to treat the sick and injured has led to the belief in the minds of some medical practitioners and in a large body of the lay public that evelY medical practitioner is entitled to use the Red Cross emblem. This belief is fallacious. Though doctors and the Red Cross have the same end in view, viz., the alleviation of human suffering, for the purpose of preserving the usefulness of the Red Cross emblem, the use of the Red Cross and allied emblems by medical practitioners is prohibited. Individual members of the medical professi9_n~annot £laim to exer9§~,t~;~ tQ=~ '" ,"' "" --' '"--"--'-" l Red Cross emblem. The right to wear and to exhibit the Red Cross \ e~~ble~-i~-'tl;~right only of members of the medical service of any J army. In this country, there is an Act called the G?!.l!z.a Conve:!.!t.igns.,.j1ct, 1960. Section 12 of the Act the use of Red Cross other al1i~<:l. emblems for any purpose of tEe "-"---~-"-,,
~
Perreira v. Gons-alces, 8, ROlnbay Law Reporter, p. 9-3.
I
1
RIGHTS AND DUTIES OF MEDICAL PRACTITIONERS
145
Government of India and Section 13 imposes a penalty on anyone who J' uses such emblems without the permission of the Central Government. Sections 12 and 13 are as follows; Section 12: Prohibition of use of Red Cross and other emblems. No person shall without the approval of the Central Government use for any purpose whatsoever: (a) the emblem of a Red Cross with vertical and horizontal arms of the same length on, and completely surrounded by, a white ground, or the designation "Red Cross" or "Geneva Cross"; (b) the emblem of a red crescent moon on, and completely sur rounded by a white ground, or th
~i:~;e ~~ f~deii:I~~~eg:~~c~~:~~~:1~~::~i~~~Il$it2~{~2~~-e:~e~~ !N)1t deSignation, design or wording was used by that person." It may be noted that trade marks containing Red Cross emblems which \vere registered before the coming into force of this Act are still allowed to be used by virtue of Section IE) of the Act. Prior to the Act of 1960, there was in force an Act called the Geneva Convention Implementing Act, 1936. This Act also prohibited the use of the Red Cross emblems. Notwithstanding the said prohibi tion, there was considerable misuse of the Red Cross emblem on the part of medical practitioners and the lay public. The Government of India therefore issued Press notices in 1938 pointing out that such user was illegal. It is most unfortunate that even today one find~~ ~~!11en ~d private nursing~omes continuin~ to u~~~e~.cg!Q~;; and allied emblems notwithstanding the aforesaid prohibition. It should be clearly understood that this is an infringement of the Geneva Con 12e!.ltio1~ct, 1.962.zynd a medical man-~~cnursing home \Vhicl~;~~~;h
MEDICAL LAW AND ETHICS IN INDIA
146
emblems without the authority of the Central Government is liable to be punished with fine extending to five hundred rupees. A passage from a brochure, "The Doctor in the Geneva Conven tions . of 1949", prepared by Jean-Piere Schoenholzer of the Legal Department of the International Committee of the Red Cross, may be appropriately quoted here:
Section 2
SPECIAL RIGHTS AND PRIVILEGES OF REGISTERED PRACTITIONERS
Registered medical practitioners enjoy certain rights and privileges enumerated below which are denied to unregistered medical practi tiori~rs. The result is that medical practitioners have a compelling inter(,;st to get themselves registered .
.1l Appointments to public and local hospitals.
It is provided by certain Central and State statutes that umegistered medical practitioners cannot hold appointments in public and local hospitals. The Dentists Act, which is a Central Act, by Section 46 provides that no dentist can hold an appointment as a dentist in any dispensary, hospital or other institution which is supported wholly or partially
RIGHTS AND DUTIES OF MEDICAL PRACTITIONERS
147
from public or local funds, unless he is a registered dentist. However, an unregistered dentist may be permitted to hold sllch appointments with the sanction of the Central Government or the State Government. In those states in which a register of dental hygienists is published, an unregistered dental hygienist cannot 110ld an appointment as a dental hygienist in any dispensary, hospital or other institution in the state which is supported wholly or partially from public or local funds. In the State of Mahar,ashtra, similar privileges in respect of appoint ments to veterinary posts are conferred upon registered veterinary practitioners only. 1 A similar privilege is conferred on practitioners registered under the Homoeopathic and Biochemic PractitionerS Act, 1959, in respect of appointments as physicians or other medical officers in any homoeopathic or biochemic dispensary, hospital, or infirmary supported by or re ceiving grants from State Governments and treating patients according to the homoeopathic and biochemie system of medicine or in any public establishment, body or institution dealing with such system of medicine. Again, it is provided by Section 11 of the Bombay Medical Act, 1912 that only a registered medical practitioner can hold an appointment as a physician, surgeon or other medical officer in any dispensary, hos pital, infirmalY or lying-in hospital not supported entirely by voluntary contributions, or in any public establishment, body or institution, or as a meCVcal offieer of hea1th. 2 " Right to dispense medicf"ne. The Pharmacy Act, 1948) by Sec tion 42, provides that after a particular date fixed by a State no person other than a registered pharmacist can compound, prepare, mix or dispense any medicine on the prescription of a medical practitioner in that State. Only a few States have fixed such dates and, therefore, this provision is in force in only a fe\v States in India. 3 This provision is expressly not made applicable to the dispensing by a medical practi tioner of medicine for his own patients. Further, this provision will not apply to the dispensing by a medical practitioner of medicine for the patients of another medical practitioner with the general or special sanction of the State Government. 3. Issue of certificates. In the State of Maharashtra, the provision regarding the right to sign certificates is as follows: The privilege of signing or authenticating a birth or death certifi cate, or a medical or sickness certificate, or any other certificate required i
2
Sec See For on
Section ] 9 of Section 11 of the names of Law Relating
the Bombau the Bombay the States in to Pharmacu
Veteriiwry Practitioners' Act; 1953.
Medical Act, 1912.
\vhich this provision is in force, see the Chaptel'
and Drugs,
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148
MEDICAL LAW AND ETHICS IN INDIA
by any law to be signed or authenticated by a duly qualified medical practitioner is conferred only on those practitioners whose names are registered under (i) The Maharashtra Medical Practitioners' Act, 1961; (ii) The Bombay Medical Act, 1912, or any other corresponding law for the time being in force in any part of the State; (iii) The Bombay Homoeopathic and Biochemic Practitioners Act, 19.59, or any other law for the time being in force in relation to the qualifications and registration of homoeopathic or biochemic practitioners in any part of the State; or (iv) The Indian Medical Council Act, 1956. 1
Certificates by a Veterinary Practitioner in the State of Afaharashtra.
'Whenever certificates by veterinary practitioners are required by or under any law, only a certificate issued by a veterinary practitioner re gistered under the Bombay Veterinary Practitioners' Act, 1953, will be recognised as a valid certificate. The privilege of signing and authenti cating any veterinary or physical fitness certificate required by any law or l'ule to be signed or "authenticated by a duly qualified veterinary practitioner is conferred only on those veterinary practitioners who are registered under the Bombay Veterinary Practitioners' Act, 1953.2 Certificates by Dentists, If a certificate is required by any law from a dentist, then only that certificate will be considered which is issued by a registered dentist. A certificate issued by an unregistered dentist will not be considered valid. 3 The Dentists Act is a Central Act and, therefore, the above provisiq.n applies to dentists throughout India.
4. Right to give evidence as an expert. In the State of Maha-j rashtra,< at any inquest or in any court of law, the privilege of giving evidence as an expert on any matter regarding medicine, surgery or midwifery is conferred only on those practitioners who are registered) under anyone of the following laws : (i) The Maharashtra Medical Practitioned Act, 1961; (ii) The Bombay Medical Act, 1912 or any other corresponding law for the time being in force in any part of the State; (iii) The Bombay Homoeopathic and Biochemic Practitioners' Act, .1959, or any other law for the time being in force in relation to the qualification and registration of homoeopathic or bio chemic practitioners in any part of the State; or (iv) The Indian Medical Council Act, 1956. A medical practitioner, however eminent, if he is not registered under anyone of the above lavvs, cannot evidence as an expert on See See ;; Sec 4 See 1
2
Section Section Section Section
:34 24 46 .'34
of the Maharashtra Medical Practitioner's' Act, 1961.
of the Bombay Veterinary Practitioners' Act, 1953.
of the Dentists Act.
of the M aharashtra Medical Practitioners' Act, 1.961.
RIGHTS AND DUTIES OF 1IEDICAL PRACTITIONERS
149
medical matters at any inquest or in any court of law in the State of Maharashtra. On any matter relating to veterinary science, the privilege of giving evidence as an expelt on veterinary matters is conferred only on veted nary practitioners who are registered under the Bombay Veterinary Practitioners' Act, 1953. 1 5. Bight to recover fees, expenses, etc. A practitioner whose name! appears in the Indian Medical Hegister is entitled to file suits to recover. any expenses in respect of his practice, charges in respect of medicamel:ttsp or other appliances or any to which he may be entitled." No sllch register, however, has yet been prepared. . ~
--~----.
6. Exemption from serving as a juror at an inquest. A medical practitioner who is registered under the Bombay Medical Act, 1912, can, if he so desires, claim exemption from servigg as a juror at a.mr inguest. 3 A similar exemption is granted to practitioners registered under Section 25 of the Maharashtra Medical Practitioners' Act, 1961, and to practitioners registered under the Bombay H omoeopathic and Bio chemic Practitioners' Act, 1959.' 7. Bight to practise. Every person whose name appears in the Indian Medical Register maintained under the Indian Medical Council Act, 1956, is entitled according to his qualifications to practice as a medical practitioner in of India.' No such register, however, has yet been prepared. The right to practise as medical practitioncrs in the State of Maharashtra6 is conferred on persons whose names are entered in (i) the register or the list maintained under the Maharashtra Medical Practitioners' Act, 1961; (ii) the register of the list prepared and maintained under the Bombay Homoeopathic and Biochemic Practitioners' Act, 195L, or under any other law for the time being in force in relation to the qualifications and registration of homoeopathic or bio chemic practitioners in any part of the State; (iii) the register prepared and maintained under the Bombay Medical Act, 1912, or any other corresponding law for the time being in force in any part of the State; and (iv) the Indian Medical Register prepared and maintained under the Indian Medical Council Act, 1956. See Section 24 of the Bombay I'-eterillar1j Practitioner:s' Act, 1953. See Section 27 of Indian Medical Council Act, 1956. See Section 14 of Bombay Medical Act, 1912. • Section 28 of the See Section 27 of Act. G See the !11aharashtra Medical Practitioners' Act, 1.961. 1
2
150
MEDICAL LAW AND ETHICS IN INDIA
As there are a large number of rural areas in the State of Maha rashtra where medical services by persons who are qualified to be registered as medical practitioners is not practicable or pOssible, it has been provided by Section .37 of the Maharashtra Medical Practitioners' Act, 1,961, as follows: "A person may practise medicine in any rural area even though he is not a registered medical practitioner if the following two con ditions are satisfied- (1) If he has commenced practice in any village prior to a date on which a practitioner registered under the Bombay Medical Act, 1912, or under the Bombay Medical Practitioners Act. 1938 (or any law corresponding thereto) or under the Bombay Homoeopathic Act, 1951, (or other law in relation to the qnalifications and registration of homoeopathic or biochemic practitioners for the time being in force) has commenced, and is in regular practice of medicine in that village; and (2) So long as he continnes to practise in that village as the princi pal place of practice. Explanation :-For the purpose of tbis section, "rural means (1) Any local area in the Bombay area of the State which is not within the limits of a municipal corporation, municipality, cantonment, or notified area committee on the 1st day of March, 19,39; and (2) Any local area in the rest of the State, which is not within the limits of a municipal corporation, municipality, municipal com mittee, town committee, cantonment or notified area committee on the date of pas.<,ing of this Act irrespective of any change in the designation or description of such local. area at a sub sequent date." Right to practise as a Dentist. Section 49 of the Dentists Act, 1948, prohibits practice by unregistered persons. No person, other than a registered dentist, registered dental hygienist or registered dental mechanic can practise dentistry or the art of scaling, cleaning or polish ing teeth, or making or repairing of dentures or dental appliances, or indicate in any way that he is prepared to so practise. This provision does not apply in the following cases :- (1) A registered medical practitioner can practise dentistry evelJ though he is not a registered dentist (2) The extraction of a tooth by any person when the ca~e is urgent and no registered dentist is available so, however, that the operation is performed without the use of any general or local anaesthctic. (3) The perforrnance of dental work or radiographic work in any hospital or dispensary maintained or supported from public or local funds. It may be noted that the profession of dentistry cannot be carried
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RIGHTS AND DUTIES OF MEDICAL PRACTITIONERS
151
on by a company or other corporate body. This general prohibition is subject to the following exceptions (i) A company or a corporate body can carryon the profession of dentistry provided it carries on no business other than the pro fession of dentistry or some business ancillary to the profession of dentistry and of which a majority of the directors and all the operating staff arc registered dentists. (iI) The profession of dentistry can be carried on by persons who. though they are not themselves registered dental practitioners, provide dental treatment for their employees by registered . dentist otherwise than for profit. (iii) A hospital or dispensary or institution can carry on the pro fession of dentistry for the training of dentists or dental hygienists. Nor does the prohibition apply to a local authority or body authorised or required by law to provide dental treat~ ment. A dental hygienist and a dental mechanic who is registered in one state is entitled to practise in any other state witbout being registered in that other state also.
a
8. Removal of eyes of a deceased person. Whenever, under con- . clitions set out in the B01nhay cornea.l Grafting Act, 1957, it is legal [I to remove the eyes of a deceased person, the removal of the eyes from the body can only be effected by a registered medical practitioner working in an approved institution.
Part II DUTIES OF !v1EDICAL PRACTITIONERS Section 1
FUNDAME:\TAL DUTIES
Every practitioner owes a duty to his patient t~xercis~~ able degree of skilLJm<:!~nowled~e. The (l£g~ of skill and care which is required i.i_llQL~ highejh A person is not liable because someone else of greater skill and knowledge would have prescribed a better treatment or operated better in the same circumstances, but he is expected to act in accordanee with a practiee accepted as proper by a responsible body of medical men skilled in the particular art even though an adverse opinion exists among medical men. 1 It should be noted that this duty arises the mom~-phJ!sieian p,:!;tient :t~ationship is esta.!2lished~ There may, in fact, be no contract between the physician and the patient, as in a case where the physician is engaged by a father to treat his child. The contract is between the 1
See Bolam v. Friel? Hospital }}fallagemellt Committee, Sec also Rex v. Bateman, 94, LJ.K.B. 791.
2, All KR. I lB.
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father and the physician and not between the physician and the child but, though there is no contractual relationship between the physician and the child, the physiciai1 does owe a duty to tl1e child to use due skill and care.
~ The fact that a hospital authority or a physician renders medical service without charging any fee to the patient does not absolve the authority or the physician from exercising reasonable skill and care. The standard of skill and care to be employed does not depend upon the question whether the physician or the hospital authority accepts any fee from the patient in return for the medical services rendered. He should in all cases exercise that degree of care, diligence and judgment ordinarily exercised by other reputable members of his profession in similar circumstances. ~ After the physician-patient relation has been established, the physician is under an obligation, in the absence of a special agreement, to attend to the case as long as it requires attention unless he gives reasonable notice of his intention to withdraw from the case or is requested by the patient to withdraw. l A physician cannot withdraw from a case and relieve himself from liability by simply staying away without notifying the patient of his withdrawaL \Vhen he wishes to withdraw from a case .after giving notice, he should give such notice as would enable the patient to secure the services of another physician if the patient is minded so to do. He must give reasonable notice. What is reasonable notice depends on the facts and circumstances of each case. It is suggested in the brochure entitled Medico-Legal Forms with Legal Analysis prepared by the Law Department, American Medical Association, that, to provide himself with the greatest degree of protec tion, the physician who desires to withdraw from a case should write a letter to his patient explaining the situation. The form of the letter suggested is the following ; "Dear NIr. ........................ .. I find it necessary to inform you that I am withdrawing from. further professional attendance upon you for the reason that you have persisted in refusing to follow my medical advice and treat ment. Since your condition requires medical attention, I suggest that you place yourself under the care of another physician without delay. If you so desire, I shall be available to attend you for a reasonable time after you have received this letter, but in no event for more than days. This should give you ample time to select a physician of your choice from the many competent practitioners in this city. With your approval, I will make available to this physician 1
The reader is referred to the Chapter on 'Ethics' where the point is disclIssed in detail as to when it would be competent for a physician to withdraw from a case.
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RIGHTS AND DUTIES OF MEDICAL PRACTITIONERS
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your case history and information regarding the diagnosis and treat ment which you have received from me. Very tmly yours."
Section 2 -
VARIOUS TYPES OF DUTIES
1. Duties with regard to attendance and examination.
The first duty of a medical practitioner who has been engaged by a patient is to g~re personal attention to the £i:!se.. I-~_ass upon the patient. In Jt.~sase/ the patient had consulted a senior surgeon who advised an operation. In the hospital, the patient was o.£~r!lted~ upon not b~senjor surgeon but by a ll().!!~~ s~!b w~ successf~. The senior surgeon did not charge fees. It was, how ever, not Q!oved that t,!le hou~ :.:=!:'-=:::::;,:.:.....:..~:.....======-.:;:.-'--~:.-t;..:.:..:= t~ It was held that there was .techIlical inasmuch as the patient had a to choose his Qwn surgeon and the patient had chosen the senior who had undertaken to perform the operation himself. The senior surgeon, without authority from the patient, caused the house surgeon to pelform the operation. Therefore, had .procured technical trespass upon the patient. In view of the fact that the was technical a~(L the patient was awarded merely nominal damages. moral remains that if a doctor has undertaken to treat or operate upon a patient, he is bound to treat or operate personally and he can not delegate his duty to another doctor without the permission of the patient. The practitioner must attend with reasonable promphless his patient's calls and, attendance, he should leave proper instructions as to what is to be done. It is necessary that proper instructions are given for the care of the patient. He should leave instructions consistent with the standard practice. He must also give instructions for the protection of those coming in contact with the patient where such instructions are necessary. In the course of examination he must patient sufficient attention and indicated This requires 1(1950) RMJ. 15th July, p. ]71.
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MEDICAL LAW AND ETHICS IN INDIA
that he must conduct a careful examination. It is not enough for him to rely on hospital cards, etc. He must conduct a personal investiga tion and examination carefully. In Newton v. Central Middlesex C.H.M.S.,l one Newton was taken ~'-~-~------to a hospital after an accident He was immediately examined by a doctor who ~~g~o~e fracturecLPatella ,Qf the knee and on the hospital card the note was made "No clinical fracture." Sub sequently, the patient saw two other doctors at the hospital, Both these doctors merely relied on the hospital card and did not themselves examine thc knee even though the patient had complained about it. In an action for negligence filed against those two doctors, it was held that the first of the two was not guilt¥ of negligence inasmuch as the patient had come to him only for a dressing. The court, however, held that the second of the two doctors was negligent in failing to examine the knee himself and in merely relying upon the note on the hospital card .. It was not proper discharge of his duty exclusively to rely on the hospital card, even though it was written on the authority of another doctor. The patient went to him with a complaint about pain in the knee. It was, therefore, his duty to personally examine the knee. It was held that he had failed to discharge his duty properly.
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2. Duty towards children and adults incapable of taking care Qf i themselves. It should be remembered that children have tbeir own { peculiar pranks and moods. Special care should be taken in case of children when applying hot-water bottles and similar articles. One ought I" to be on one's guard to see that a child is not afforded an opportunity to meddle and play about with a hot-water bottle or similar articles. If proper care is not taken a child might, in attempting to play or meddle with such a thing, hurt himself. Even in the case of adults it is necessary to take special precautions when they are incapable of taking care of themselves either through mental derangement or some physical disability.2 3. Duty towards employees. In the State of Maharashtra, doctors and institutions established for the purpose of attending upon the sick, infirm, destitute, or mentally unfit are governed by the provisions of the Bom.bay Shops and Establishment Act, 1948, subject to certain exemp tions. An important provision which applies to them is with regard to leave to be granted to their employees. Employees must be given one \veekly holiday or two half-day holidays in a week and no deduction should be made from the \vages on account of such leave. Another (1959) B.JJ.J. 19th December, 1414.
: : See Chapter VI on Different Classes and Instances
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0/ Medical Negligence.
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RIGHTS AND DUnES OF MEDICAL PHACTITIONERS
important provision relates to registration of medical establishments. As dispensaries, consulting rooms, nursing homes and hospitals are considered establishments within the meaning of the Bombay Shops and Establishments Act, 1948, they should be registered under the Act. Re gistration Certificates should be prominently displayed in dispensaries, consulting rooms, nursing homes and hospitals. The exemptions granted are derived from the provisions of Sections 10, 11 and 13 to 18. The result of the exemptions granted by these sections is to permit dis pensary and medical institutions (1) to keep their establishments open every day of the week; and (2) to employ any young person or woman to work before 6 a.m. and after 7 p.m. 4. Duties under the Geneva Convention. On 12th August, 1949,) certain agreements or conventions with regard to the amelioration of the condition of the wounded sick in time of war were agreed upon by several countries including India at a conference held in Geneva. i. These conventions are four in number are set out as Schedules to the Geneva Conventions Act, 1960. A summary of these provisions as directly affecting doctors has been prepared by Jean-Pierre Schoen holzer, Member of the Legal Department of the International Committee of the Red Cross. This study is called The Doctor in the Geneva Conventions of 1949. The basic duty .ll!L~.Qt out in these conventions requires the.~.?ctor to treat ml)~~!1_E2.eds .Ai? ~-~;~ce;~Vitho!J.t ·Z[ith~~-·of a;~..Lnd. On this subject following note occurs in The Doctor in the Geneva Conventions of 1949 : ''The principle of a doctor treating whoever has need of his treat ment is a humanitarian law ............ The Conventions in their tum all indicate that the persons they protect are entitled to the care \vhich their condition requires, and are to be humanely. But the conventions further include an emphatic prohibition of making such treatment, of the quality of such treatment, dependent on arbitrary distinctions. Each Convention lays down that the persons it pro tects, whether the wounded and sick of armed forces (First Convention, Article 3), ship-wrecked persons (Second Convention, Article 12), prisoners of war (Third Convention, Article 16) or civilians of enemy nationality, (Fourth Convention, Article 27), are to be treated 'with out any adverse distinction founded on sex, race, nationality, political opinions or any other similar criteria.' To make it evcn clearer that there is only one admissible form of adverse distinetion, the First Convention adds (Article 12) that 'Only urgent reasons will authorise priority in the order of treatment to be administered.' This provision is fundamental, indicating as it does line of conduct of the doctors. \Vhatever the man mav be who has necd of his treatment, whatever the colour of his ski); or the nature of his opinions, even if he is a spy Of a franc-tircuf, the doctor is to treat him as conscientiously as he can: he is even to take him before others, if his condition so requires. __
~~
~.
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-~~"·~
__M _ _
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MEDICAL LAvV AND ETHICS IN INDIA
But the Conventions do not prohibit discrimination except in cases where its effect is unfavourable: they do not prohibit discrimination where it operates in favour of the protected persons, for instance in order to take their physical constitution or origin into account, e.g. by ordering special food, additional blankets for patients from tropical countries and the like. Again, women are to be treated with all consideration due to their sex (First Convention, Article 12)." 5. Duty to infonn patient of risks. The relationship between the physician and his patient is a confidential relationship. The utmost good faith which this relationship requires cannot be maintained unless the doctor advises his patient of all the relevant facts concerning his illness. Ordinarily, he must make a frank and full disclosure of all the relevant facts to a grown-up patient who is mentally sound. There are, however, unavoidable situations arising out 'of psychological factors which may necessitate the withholding of some facts from the patient. l It may be pointed out that courts have held that where a substantial body of reasonably competent medical men would have kept silent as to risks involved in some particular treatment or operation in a given set of circumstances, the medical man who withholds the information in those circumstances cannot be held to be guilty of any breach of duty towards the patient.f The cases seem to show that if the risk is slight, the doctor need;, I,; not inform the patient of the risk involved. That appears to be the/) belief of reasonably competent medical men. They seem to feel thallI where the advantages of a particular treatment or a particular operation are great, it is not a doctor's bounden duty to inform the patient of the{ risk involved in that treatment or operation if the risk is slight. \' In "Vater v. Park,2 a married couple with six children were advised that the wife aged forty-two should be sterilized because she had a weak heart. On May 29th, 1956, the defendant, a surgeon, performed the operation. On July 3rd, 1957, she gave birth to a stillborn child and had to have a further operation for sterilization. She sued the surgeon who performed the first operation. The judge said that the patient had cardiac trouble and the surgeon had to make up his mind whether it was safe for him to use the usual technique of sterilization. He came to the conclusion that it was not, and that it was in the patient's interest to use the less efficient method, and he was perfectly justified in so concluding because of her cardiac condition. The question was whether he was under a duty to tell the patient afterwards that there was a slight risk of failure and to give her advice. In the light of present medical opinion and practice, a surgeon, in the judge's view, did not fall
f
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2
This subjiCct is fully discussed in Chapters III and VI. (1961) Lancet, July 22nd. p. 204.
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RIGHTS AND DUTIES OF MEDICAL PRACTITIONERS
short of the proper standards of the profession if, in circumstances such ~lS these, he did not tell the patient that there was a slight risk and advise her to use contraceptives. The court held that the surgeon had hot committed any breach of duty even though it was the normal prac tice of the surgeon to tell patients of the slight risk involved in such operations and in the present case he had not done so. In Bolam's case, l it was observed that though a doctor is bound to ... warn a patient about the risks involved in a certain treatment, yet, when he deals with a mentally sick man and has a strong belief that the patient's only hope of cure is submission to electro-convulsive therapy, he cannot be criticised because he did not stress dangers involved in the treatment which he believed to be minimal. t It may be pointed out that the House of Lords' has taken the view that the opinion of a body of reasonably competent medical men as to ~vhether there was a duty to warn the patient of the risk involved in a particular treatment is entitled to very great weight. It is true that ultimately it is for the court to decide such a question but the opinion of a body of reasonably competent medical men will influence the'deci sion of the court. ~
6. Duty with regard to poisons. It would be relevant at the out set to set out a few impOltant sections relating to poisons occurring in the Indian Penal '-.... Code:
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-~--- .. -~-~--------
CCH_~""""-~--~'~C: "Whoever does, with any poisonous substance, any
act in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any person, or knowingly or negligently omits to take such order with any poisonous substance in his possession as is sufficient to guard against probable danger to human life from such poisonous substance shall be punished with imprisonment of either description for a term vvhich may extend to six months, or with fine, \vhich may to one thousand rupees, or with both." Section 324 : "Whoever, except in the case provided for by Section 334, voluntarily c~uses hurt by means of any iI!!>1[!lIllentiQ!.2hQg~ing, s,tabbing or cutting, or a~strl1J:1l©I!t which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by r~~Clll~ of any poison or<~ny cQ!!osive subst~nc~, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished 'Nith imprisonment of either description for a term vvhich may extend to three years, or with fine or with both." ~
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(1957) 2 All E. H. 118
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MEDICAL LAW AND ETHICS IN INDIA
Section ~6 : "\Vhoever, except in the case provided for by Section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, llsed as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow,. or to receive into the blood, or by means of any animal, shall be punished with transportation for life or with imprisonment of either description for a tern1 which may extend to ten years, and shall also be liable to fine." ~ion 328 : "Whoever administers to or causes to be taken by any' person any poison or any stupefying, intoxicating or unwholesome drng,. or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of description for a term which may extend to ten years, and shall also be liable to fine." ?vfedical practitioners and pharmacists should be careful in han!}[ing poisonous substances. Each poisonous drug should be kept in a sepa rate bottle or container properly labelled and marked. Care should be taken to see that poisonous matters are not mixed up with non-poisonous ones. In the case of P. N. D'Souza/ the accused was in of a, dispensary but he kept it in a careless manner. On one occasion he had \ to dispense some hydrochloride of quinine. Without taking the trouble to read the label on the bottle, which he took from a medicine cupboard not marked as containing "Poison", he mixed the contents of the bottle!' (which actually contained hydrochloride of strychnine) into the mixhlre. He then administered the mixture to several persons all of whom, except one, It \vas held that such a careless act amounted to gross and criminal and he was convicted under Section 304A of the Indian Penal Code. Bottles containing poison should be kept in a cup-board or upon a separate shelf so that they may not get mixed up with bottles containing non-poisonous sllbstances. 2 The practitioner has two principal duties when he is called upon to treat a case of poisoning: he should give treatment immediately and he should assist the State in determining whether the case was accidentat suicidal or 90micidal poisoning,
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reader is referred to the Chapter on 'Law a detailed discussion on the suhjcct of the poisonous substances.
Pharmacy and Drugs' taken with regard to
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(Tn cases of suspected homicidal poisoning, the practitioner must confirm his suspicions before expressing an opinion as to whether the case is one of homicidal poisoning. For the purpose of determining this he must: (1) himself collect vomit, urine or faeces and take these to an analyst to find out the nature and amount of poison, if any; (2) consult in strict confidence a colleague and keep him acquainted with the case; (3) either remove the patient to hospital or engage nurses of his confidence to keep a vigil and to maintain detailed records of the condition of the patient and of the treatment; (4) himself keep detailed records of the number of his visits, the symptoms and signs observed and the treatment given from time to time; under no circumstances should he give verbal orders; (5) once his suspicions are confirmed, he should request the re mova] of the patient to a hospital; he must also get in touch with the police whose advice about future conduct should be taken so as to facilitate the apprehending ·of the perpetrator of the crime; (6) the symptoms must be carefully observed and recorded in re lation to food, onset and duration, the condition of the patient and the explanation offered by the patient for occurrence of the symptoms; (7) the vornit should be examined for the presence of any particles of a pill, capsule, etc. It has sometimes been observed by the author that in spite of a note left by the deceased admitting the self-administration of poison and in spite of characteristic post-mortem appearances showing the absence of a diseased condition, the analysis of the contents of the stomach and other organs reveals the absence of poison. This, it is submitted, may be attributed to two factors: (1) Early decomposition of the body within 6 to 8 hours of death. 'Vith decomposition, the poison is ingested making it difficult to locate poison by chemical tests. . There are several Eoiso.nOHS plants and _Qther __ su~~sta!1ces_ i)"l India for whiCh there are no definite chemical tests. More over;'biolGgiCartest;-do not yield positiv~esuI&-- Therefore, the possibility of poisoning cannot be mled outJ It may be useful to note that in India, for criminal purposes, the following poisons are often used: (1) Arsenious oxide; (2) Metallic mercury in a finely divided state and exposed to light (a) ~iercuric Perchloride, (b) Mixture of MereuricChloride and Mercurous Chloride; (3) Opium (commonly used in suicides and infanticides); (4) Nux vomica and its alkaloid, strychnine;
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(5) Aconite. (It is used in indigenous systems of medicine). (6) Dhatura as a deliriant poison which facilitates robberies; (7) Powdered seeds of yellow oleander commonly encountered In cases of suicide, homicide and in cattle poisoning; (8) Cocaine and its salts for their stimulant and aphrodisiac effects. 7. Duty of secrecy. The doctor owes a duty of secrecy to his patient. The relationship between a medical man and his patient is such that the practitioner is obliged to keep secret all that he comes to know concerning the patient in the course of his professional relation ship with the patient. All case notes and other medical reports, X-rays, pathological records, etc., are confidential records and under no circum stances should their contents be divulged to third parties without the consent of the patient. This duty is subject to certain exceptions which are discussed and noted in the chapter on Ethics. Further, this duty of secrecy must be balanced with the duty to a court. The duty to divulge medical secrets in a court of law has been stated in Halsbury's Laws of England! as follows, "The relationship between a medical practitioner and his patient does not excuse the former, whatever medical etiquette may require, from the obligation, if called upon, to give evidence in a court of law...... He may be summoned to give evidence in civil or criminal causes and is liable to be punished for contempt of the court if he neglects to attend. He may be asked to disclose on oath, information which carne to him through his professional relation ship with a patient; he may be committed for contempt of court if he refuses to answer." The law in India is similar.2 8. Duty to notify certain diseases. For prevention of the spread of dangerous diseases, certain provisions have been made in Greater Bombay under the Bombay Municipal Corporation Act. Under tion 421, a medical practitioner is bound to give information of the existence of a .~I!g~r~cllse~~~Q~~~.ID'J'~i
13rd Edition, Volume 26, p. 11, para 10. See also the Chapter 011 Ethics where this subject is more fully discllssed.
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in such form and with such details as the executive health officer, with the consent of the Commissioner, may from time to time require." Dangerous disease is defined under the Act to mean cholera and any ,
endemic, epidemic or infectious disease by which the life of men is
endangered. For the sake of clarification, the Public Health Depart . ment of the Municipal Corporation has stated that the following diseases are compulsorily notifiable by medical practitioners under Section 421 of the Bombay Municipal Corporation Act read with Section 3(a)(a) of the said Act: Plague, Cholera, Enteric Fever, Smallpox, Scarlet Fever, Yellowl
Fever, Diphtheria, Typhus, Relapsing Fever and Pneumonia, Cerebro- f
spinal Fever, Poliomyelitis and Virus Encephalitis.
It may be that the ~f notifiable dise~~"f)~"";naL~~!YJlLflifft;£~flt
parts of the country. The practitioner should make himself acquainted
\;ithth~~~~~i~~ il;"force in his own locality. It may be safely assumed
that p lague, cholera and smallpox are notifiable everywhere. l
9. Duties with regard to operations. The duties of a surgeon with
regard to operations are as follO\;\1s :
(a) He should s~cure c2.1}~ent to an operation. He l~~xc~ed the extent of the auth(JJity .given t9~him. \Vherever possiEfe, he shouIcf ootain viritten consent. The consent should be ob tained after fully egJla!Iling_ to the patient what the operation is going to be, what the operation is for, \vhieh part of the body is to be operated upon, and what is to be the extent of the operation. (b) At the end of the operation, the surgeon ought, before asking the nurs~JQ1::"Jhs!~.~Wi:lb_ c_Qunt, JQ. ensure on hi~.Q'Nn, eiJ!i~xJiy sigIi'[1Ouch or such Dther means as circumstances require, that ill the swabs put in are rcmoved and that no swab is left in the body. He should realise that it is his duty to take the swabs 1\ N OIk out as it is his duty to put them in. In the words of Pearson Y ]., in Urry v. Bierer,2 ''"n1~ sister's count is a secondary thing, a che,?k on the adequacy of something the surgeon has already done. (c) He must (merate with the proper instruments,- He should also see that the-ii1sfi'ul11ents are properly sterilized. (d) He must not expt:1jIr!el1!. He must keep abreast of current standaia}5facflce ai1d must follow it. (e) He should realise that the PQst-operative of a patient is of great importance. Sometimes,-" Eiilure to carry out proper after-care resu Its in the failure of Dperations. If a patient is operated upon and is allowed to go home, proper directions should be given by the surgeon to the patient and he, or a properly qualified substihlte, should be availahle and accessible For detailed information regarding the notification of dangerous and industrial diseases, see Chapter VIII. . "(1955), The TimBS, l\farch 16th. 1
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to deal with any untoward developments. . If he does not in tend to attend after the operation he should inform the patient before the operation and obtaIn his consent. Should he volun teer or agree to recommend the services of another surgeon for post-operative treatment, it would then be his duty to recom mend a competent surgeon. (f) He must take care to see that proper steps are taken to obviate' mistakes such as the performance of an operation on the wrong patient or on the wrong limb. 1 (g) Where a surgeon has undertaken to perform an operation, he; must not delegate that duty to another. 10. Duties in connection with X-ray examinations. As far as pos sible, all cases of accident, unless they are trivial, should be X-rayed. The X-ray film should be correctly and competently read. If a medica11 man cannot read it correctly and competently, he should get it read byt a radiologist.
Section 3 -
DUTIES AND OBLIGATIONS OF SPECIALISTS
1. ANAESTHETISTS. At the outset it may be pointed out that quali fied medical and dental practitioners are given instruction in the administration of anaesthesia before they are allowed to appear for their final degree or diploma examinations. They may, thus, be assumed to have a working knowledge of the subject. It has been held that an '] .M.B.B.S. of the Bombay University is legally qualified to administer f anaesthesia. 1 There is also a post-graduate course for specialisatioN in the subject of anaesthetics and those who pass the examination for this specilised course may be described as qualified anaesthetists. He who is engaged in administering anaesthesia, whether he is a qua lified anaesthetist or an ordinary physician, would do well to remember the following observations of }'h. Justice Oliver when giving judgment in an action tried at the Manchester Assizes in 1951, uIt is a fact that to' anaesthetise a human being, to deprive him of consciousness outright, is to take a considcrable step along the road to killing him; but, of course, when the matter is scientifically handled by experienced people, practical ly no danger exists." The fundamental duty of a medical practitioner or a dentist who gives anaesthesia is to show such skill and care as is expected of a reasonably competent medical man. A higher standard of care is expect ed of a professional and specialist anaesthetist than of a non-specialist. The skill which is expected of thc specialist is of a higher quality: it is that degree of skill and knovvledge which is expected of one who is 1
Dr. Waugh v. State of Maharashtra, Criminal Appeal No. 607 of 1961, High Court of Bombay; Kotval and Chandrachud JJ. (unreported judgment dated 5th December 1962.)
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expert in the science of the administration of anaesthesia. An anaesthe tist who is a specialist in his line usually enjoys the privilege of selecting that anaesthetic which considers to be in the best interests of the patient. He is, naturally therefore, expected to show a higher: degree of skill than one who administers anaesthesia under the directions of the surgeon. "The anaesthesiologist cannot discharge his responsibility to ~he patient by acquiescing in the wishes of the surgeon where they conflict with the anaesthesiologist's best judgment. If a difference of opinion between the surgeon and the anaesthesiologist cannot be resolved, the anaesthesiologist should withdraw from the case, provided he can do so without jeopardising the patient's welfare. Administration of an anaesthetic procedure contrary to the best judgment of the anaesthesio logist is an abdication of the anaesthesiologist's responsibility to the patient. In a malpractice law suit in which the choice of anaesthetic is at issue, the anaesthesiologist will not be exonerated merely because the surgeon insisted upon the anaesthetic procedure which was used".l \ Broadly speaking, it may be said that he who administers anaesthe sia owes the following duties to his patient; (i) Barring emergencies, the previous consent of a patient must be taken, as far as possible in writing, for the administration of that anaesthetic which is neeessary for the perfomlance of an operation. As far as possible, the ty:Qe or types of anaesthetics to be used must be melltioned and the patient's consent with regard to these must be obtained. Under no circumstances should a type of anaesthetic be used which is objected to by the patient as, technically, this would amount to assault, even if no harm results from the use of it. It is only in exceptional cases that a general authority to use any type of anaesthetic need be taken. .--~ -~~~
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(ii) It is obvious that the anaesthetist should be careful in selectiqg tllUind of hy notic drug to be given prior -oo-the administra tion of anaest leSla an lle quantity of it to be injected. He must take all possible care while administering the drug so as to ensure that the wrong drug or a dose larger than necessary is not administered. (iii) He should be Qareful in the selection of the anae,jilis;l:ic. should satisfy himself that the apparatus through which the (iv) anaesthesia is administered is correctly set-up, though, for such faults as could not have been discovered on a normal examina tion of the machine, he is not liable. It is his ~k th~ ,~pparatus and make sure that such faults ascanbe o1J~E.)l}'t;P byJimL5I~ remain uncorrec~1teaocs- "nbI,gtlarantee that the apparatus IS 111 workmg order but he is liable if he fails to take such steps as a careful and prudent anaesthetist would take to find out whether the apparatus is in order. 1
"THE
LEGAL LIABILITY OF ANAESTHESIOLOGISTS",
and Analgesia, Vol. 41 (1962) p. 633.
Cmtis L. Roy in Anaesthesia
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MEDICAL LAW AND ETHICS IN INDIA
(v) It is the anaethetist's duty to see that the patient is safe uarded. until his return to consciQl.l..SlleSS. He shaul , t erefore, keep constant vigil until the patient has recovered fully from the effects of the anaesthetic. If recovery is likely to take a long time, it is the nonnal practice among anaesthetists to delegate the duty of vigil to nurses. But the anaesthetist must leave all proper instmctions. (vi) Before administering anaesthesia, an anaesthetist should see that ~'lte first-aid eguipment is ready for use at a moment's notice in case of necessity. (vii) In order that in cases of emergency the assistance of another person may be obtained, a third person (a doctor or a nurse) should be present when anaesthesia is administered. For the .purpose of avoiding mishaps during the administration of anaesthesia the following points should be carefully noted : (1) Though an M.B.B.S. is legally qualified to give anaesthesia it is clear that it would not be safe for him to give it unless he is well acquainted with the job, as the administration of general anaesthesia is always a dangerous procedure. 1 (2) It is normally unwise for the same practitioner to administer anaesthesia and also to petform the operation. In the Bombay case referred to earlier, a doctor, who had obtained the IvLB.B.S. degree of Bombay University and who was, therefore, consi dered legally qualified to administer anaesthesia was held guilty of criminal negligence in giving anaesthesia, inter aUa, on the following grounds: (a) In the hospital there was a separate Deparhllent of Anes theSiology and a resident anaesthetist was available. There \vas no reason why the accused doctor should have under taken the administration of anaesthesia himself. The fact that he denied himself available aid in the matter of the administration of anaesthesia was indicative of negligence. (b) , to quote from the judgment, "we are unable to see how the accused did not realise that he could not both surgeon and the anaesthetist in a case like this. He was to incise a septal haematoma no doubt a compa ratively minor operation but by all standards the in cision after anaesthetisation would result in blood and puerile matter flowing into the throat since the child was on the operation table. That again shows that there would be grave risk of the clogging of the throat and consequent suffocation. That \vould require somebody to be imme diately available for assistance. Here again, to have undertaken the operation administering anaesthesia himself was undoubtedly a rash act on his part." (c) Thirdly, the operation was a comparatively minor opera tion and there was no emergency as such whatsoever, and to have undertaken to operate at that time of the evening· 1
Dr 'Vaugh y. Slute of Maharashtra. Criminal of Bombay: Kotval cl!1d Chanclrachud JJ. December 1962).
r\o. 607 of 1961, High Court judgment dated 5th
RIGHTS AND DUTIES OF MEDICAL PRACTITIONERS
165
outside the nomlal hours when the full aid available in the hospital would not be forthcoming would once again amount to denying himself the normal aid without reason and thereby incurring grave risk. Of course, in arriving at its conclusion, the court also took into consideration the manner in which the anaesthesia was administered. (3) Directions by surgeons regarding anaesthetic solutions should be required to be put down in writing. . An anaesthetist must ask the doctor or the nurse or whosoever conveys the message of the surgeon to him to put down in writing the required anaesthetic solution. It is very necessalY that the message must not be received orally. (4) The anaesthetist should himself check the label before using the contents of a bottle. When Adrenaline solution is to be added to the anaesthetic, it (5) should be done under the personal supervision of the am~esthetist and should not be allowed to be put in beforehand. Cases are on record where, instead of a few drops of Adrena line, a large dose of Adrenaline has been added to an anaesthe tic agent. Again, a few cases are on record where, instead of mixing Adrenaline with an anaesthetic, a pure solution of Adrenaline has been used. (6) The physical condition of the patient prior to the administration of anaesthesia must be ascertained. The anaesthetist should note any condition which would make the administration of anaesthesia difficult or hazardous and discuss the same \vith the surgeon. An anaesthetist should himself undertake pre anaesthetic examination and should carefully record the find ings of his pre-anaesthetic examination. This must be done in order to ascertain whether the patient is in a fit state to undergo anaesthesia and also to decide upon the most suitable anaesthe tic. Particular attention should be paid to the heart, lungs, blood pressure, papillary re-action and urine. Even where the physical examination of a patient has been carried out by an other doctor, the anaesthetist should also examine the patient. A second clinical examination just before anaesthesia is admi nistered is also advised in order to eliminate unforeseen risks and for the purpose of giving suihlble instruCtions to nurses for ~eparation of the pa~ienr.-. 2. Dentists. The general duty of a dentist is the same as that of a medical practitioner, viz., to take reasonable care of his patient and to employ a reasonable degree of skill and care. The particular duties of a dentist may be stated as follows: (1) One of the duties of a dentist which may be pointed out is that he m~~ oLth~.e::
166
MEDICAL LAW AND ETHICS IN INDIA
would be found negligent if he extracts a single more tooth than con sented by the patient. (3)bVhen a dentist undertakes for reward to make a denture for a patient, a term is implied in the contract between the parties that, if given reasonable co-operation by the patient, the dentist will supply to the patient a denture which will be reasonable for the purpose for whieh it is intended. In such a ease, a contract is said to arise between the dentist and his patient, as one of sale of goods or one to perform work and supply materials. 1 It has also been observed that in making a denture for a patient, a dentist expects to rely on the active assistance, co-operation and patience of the patient. A good patient helps a dentist enormously in his work. (4) He should, before performing a dental operation, inquire about the general health of the patient. It was, however, held in Warren v. Greig and White2 that when a dentist acts in conjunction with a doctor, it is no part of the dentist's duty to discover the general health of the patient. a. Nurses. Nurscs are solely responsible for their own professional acts irrespective of whether they are doing private work or are employed by hospitals or public health or social welfare agencies. A private nurse, like a doctor, is responsible for her action if she either abandons a patient without giving due notice or brings a substitute without the consent of the patient. She is responsible for constant care and attention to the patient. In the operation theatre, if a !>urgeon has searched for a swab but a swab is overlooked, the responsibility may shift to the supervising nurse. The responsibility rests on the shoulder of a nurse if she gives on her own any intravenous medication (infusions and transfusions) without the supervision of a medical practitioner. For bed-sores and hot-water bums, mix-up of babies, communica tion of infection to babies, a nurse is always responsible. A nurse, like a medical practitioner, must observe secrecy regarding infonnation relating to a patient's illness which she obtains in the dis charge of her professional duties. 4. Pharmacists. A registered pharmacist is required by law to possess a reasonable degree of knowledge and skill in his profession. He must not only possess skill and knowledge but he is responsible for their proper use in the interest of humanity. A pharmacist is Hable for the substitution of one drug for another 111 a prescription without the consent of the physician.
t
1 2
Samuel v. Davies (1943) 1 K.B ..526. (1985) Lancet, vol. I, p. 330.
RIGHTS AND DUTIES OF 1IEDICAL PRACTITIONERS
167
The pharmacist shares equally with the doctor the responsibility for a prescription containing unusual doses. It is his duty to inform the doctor of the unusual doses before preparing such a prescription. If a prescription is written in an illegible hand, it is the pharma cist's responsibility to retum it for re-writing lest he dispenscs a wrong dmg. It is a dangerous practice for a physician to prescribe or a pharma cist to take down a prescription for a patient over a telephone. It is unlawful for the doctor to dictatc and for the chemist to dispense a prescription containing a dangerous drug which has been dictated over a telephone. It is the responsibility of a pharmacist to label dmgs and poisons correctly as required by the Drugs Act and the Poisons Act. It is the duty of a phannacist to record in writing the prescription of a medical man, dentist, or veterinary surgeon. He shall prescrve the record for a certain statutory period and the record must be available for inspection by the authorities concemed. Such a record of prescriptions may be tendered as evidence and a pharmacist is bound to produce it in court when required. 5. Radiologists. The practice Df radiology is the practice of me dicine and the b~ic rules of law applicable to the pr~!!ce of medicine '!J.2I?ly also to the practice of. radiology. The fundamental rule is this: that medical practitioner must, in the exercise of his profession, show such skill, care and diligence as is normally possessed by a com petent medical man. In many cases decided by courts in the United States it has been held that the standard of care and skill which is expected of a medical practitioner is that which generally prevails amongst other practitioners in the same locality. But, in respect of the standard of skill and care which is demanded of a radiologist, it is held that this test does not apply. It was held in a case that the distinction usually made between medica] practice in a rural and in an urban community does not apply in respect of the practice of radiology. Therefore, the standard of care in the use of X-ray machines must be derived from among the users thereof inclusivc of the users in various parts of thc country. The court declined to acccpt a strict distinction between the requirements of skill in the case of a radiologist practising in a city and that of one practising in a village. 1 A radiologist would, therefore, be held liable for negli-\ gence if he fails to display such skill as is normally possessed by com petent radiologists practising in a city. But no radiologist, whether 1
See the discussion of this topic in The Donaldson.
in Court, by Dr. S. W.
168
MEDICAL LAW AND ETHICS IN INDIA
practising in a village or in a city, would be liable for an honest error of judgment nor is he required to give a guarantee of recovery or cure. A radiologist should act with the greatest pO'ssible regard for the safety of his patient. For that purpose he should bear in mind the following points : (1) He should maintain his premises, plant and appliances in a safe and fit condition. (2) He should exercise proper care in selecting employees because, in the discharge of their functions, his employees are in a position to endanger the safety of his patients. (3) He should keep proper check and exercise control in respect of the preparation and administration of drugs and solutions. He should realise that a mistake on his part, such as an over long period of treatment by X-rays, is likely to be injurious. (4) He should keep the record of each patient's X-ray film pro perly identified so that there is no scope of confusion or mixing up of the X-ray films. A fantastic case of confusion of X-ray films which arose recently in England illustrates the necessity of great care in this regard.. There were two cousins of the same surname who attended at the same time at a hospital. Due to a mix-up of their X-ray plates, one of them was wrongly operated upon. An interesting question that has often been debated is one regarding the Q}Yl)ership of X-ray £lms. O_ne view is that the ownership of X-ray films vests in the r.E-diologist,.:.. This view is based on the following reasons : (1) The radiologist in his capacity as a medical consultant, signs the· X-ray reports and assumes full responsibility for their contents. It is contended that, for the purpose of keeping the history and record of the patient, it is necessary that the radiologist should himself retain and preserve the X-ray £lms. Therefore, impliedly, the pro perty in the films would be in the radiologist though the patient would be entitled to call for the films as also for a copy of the report 'whenever necessary. (2) It is argued that the position of a patient who goes to a radio t ra her. logist is comparable to t.hat of a It has been decided that the ownership of the negative of a photo graph is in the photographer. Thus, by analogy, it is contended that the ownership of the X-ray film is in the radiologist. The other view is that the o.wner~~ip..QL th§. X:EgyJ!!E!~_ isiI1 the patient. The fonowing reasons are urged in support of that view: (1) The patient Ja'/s ~heJadiol.9gist f()r ..h"is_~~'0'ig~~a!ld, therefore, the patien IS entlt e. fO the~ X-ray fi~ns. (2) The patient i~likely to require the films to.1how them to his own medical attendant or cO!Jsultant and-Tie-may -recfuire them as and wlfen tile-neeessity arises: It is maIntained, therefore, that the ownership must necessarily be in the patient. " I (3) As regards the comparison between the radiologist and the photographer, it is argued that the analogy is fallacious. \Vhen a
." ___ ~._.____
J,/
1
169
RIGHTS AND DUTIES OF MEDICAL PRACTITIONERS
client goes to a photographer for a portrait he is really more concem-: ed \vith the positive than with the negative print. On the other hand, a patient who goes to a radiologist is concerned with the negative, which is the all important thing in this respect. It may be pointed out that there is no decided case either in India or in England on this point, though, in IE
1 *
".
-._----
1
---...-~--.-~-----~..--,~
At p. 218
:----~-~
-
~
CHAPTER V
MEDICAL NEGLIGENCE AND CIVIL LIABILITY
==============~\
Part I
THE ROLE OF COMMON' LAW
Part II
JUDICIAL OBSERVATIONS
Part III
THE CONCEPT OF MEDICAL KEGLIGENCE
Part IV
DISTIKCTION BETWEEN' NEGLIGENCE AND OTHER CONCEPTS
Section 1 -
NEGLIGENCE AND
Section 2 -
CIVIL AND
Section 3
NEGLIGENCE AND
ERROR OF JUDGMENT
ClUJl.HNAL
NEGLIGENCE
INFAMOUS CONDUCT
Part V
INGREDIENTS OF NEGLIGENCE
Section 1 -
BREACH OF DUTY OF G,uU;;
Section 2
DAMAGE
Section 3
REASONABLE FOHESEEABILITY OF DAMAGE . /
'/
v
Part VI
INTERVENTION OF THIRD PARTY
Part VII
IRRELEVANT FACTORS
L
MEDICAL NEGLIGENCE AND CIVIL LIABILITY
171
Part VIII TEST OF NEGLIGENCE
Part IX VICARIOUS LIABILITY
Part X PROOF OF NEGLIGENCE
Section 1 - GENERAL
OBSERVATIONS
Section 2 -
THE
Section :3 -
EXPERT EVIDENCE
DOCTRINE
OF RES
IpSA LOQUI'I1JH
Part XI DEFENCES
\~======================================~f Part I THE ROLE OF COMMON LAW ~~
of civil liability fo!" negligence (inclusive of medical negligence) is a part of the Common La:!;£.l The Comnwn Law is the comm~n heritage given by Englanf.Uo her colonies and dependencies and to countries now forming part of the Commonwealth. Viscount Kilmuir, in an article in the Law Quarterly Review,2 pointed out that nearly one third of . the world's population is~overnedby_.th<2. .) I rules of the Commor~"Law: --~-'~-'- --------I
T
common approach appears in most cases of negligence ·decided in Eng"land, Austn;ii;,--'i~dia and Canada and even in cases decided in South Africa. If differences exist in the different countries of the Commonwealth in the sphere of the law of negligence, the reason will substantially be found in some special enactments in force in those countries. It was, therefore, not without Significance that Lord Parker made the following celebrated observation in a recent case3 of negli : "I think that it is important that the Common Law and the development of the Common Law should be homogenous in the various 1 The expression 'Common Law' has been explained in Chapter I, Part III.
276 L.Q.R. 42.
1> Smith v. Leech Brain & Co. Ltd. (1961) 3 All E.R. 1159 at 1162.
172
MEDICAL LAW AND ETHICS IN INDIA
sections of the Commonwealth. It would be lamentable if a court sitting here had to say that, whilst the Common Law in the Commonwealth and Scotland has been developed in a particular way yet we, in this country and sitting in this court, are going to proceed in a different way". In a casel of medical negligence decided by the Bombay High COUlt it ".,as held that actions for negHg.ence in India are to be Qeter mined according to the principles of English Common Law. Though \;this was said before iridependence ~th~positionTs th~-am;t~day.2
Part IT SOME JUDICIAL OBSERVATIONS It would not be out of place to note at the outset certain observa tions made by courts of law in cases of medical negligence.
L In Rot;Y~.M inistry-2L!! ealJ.lJ:,3 Lord Justice Denning said, "These two men have suffered such terrible consequences that there is a natural. feeling that they should be compensated. But we should be doing a discredit to the community at large if we were to impose liability on hospitals and doctors for every thing that happens to go wrong. Doctors would be led to think more of their own safety than of the goo'd of their patients. Initiative would be stifled and ,confidence shaken. A proper ~ of propo~ requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patients at every point, but we must not condemE as negli gence th::tt which)s. only_~ misaQY~l}t!Jnt. ..-. -~
'~--~,---~.
2. In the same case Denning L.J. observed, "It is so easy to be \vise after the event and to condemn as negligence that which was only a misadventure. We ought always to be on our guard against it, especially in cases against hospitals and doctors. Medical science has conferred great benefits on mankind, but these benefits are attended by consider able risk. Every surgieal operation is attended by risk.. We cannot take the benefit without taking the risk. Every advance in technique is also attended by risk. Doctors, like the rest of us, have to learn by experi ence; and experience often teaches in a hard way. Something goes wrong and sho'ws up a weakness, and then it is put right. That is just what happened here. The doctor diel not know that there could be undetectable cracks in ampoules, but it was not negl1gent for him not Amelia Flounders v. Dr. Clement Pereira, Bombay High Court, OD.C.J. Suit No. 808, of 1943 decided on .5th .March 1947 bv Tendolkar J. (unreported). 2 See Chapter I, Part III. .
3 (1954) 2, AIL E. H. 1.3 I at 139.
I
MEDICAL NEGLIGEr\'CE AND CIVIL LIABILITY
to know it at that time. 1954 spectacles."
~~~.~-...
173
We must not look' at the 1947 accident
~-
.'3. In Bolam v. Friem Hospital Alanagement Committee/ McNair, J. said, "Members of the Jmy, when some days ago this case was opened to you by Counsel for the Plaintiff and you were told the tragic story of this Plaintiff's suffering and his experience, and when you later saw him in the witness box and saw what a hopeless condition he was in, you must inevitably have been moved to pity and compassion. Nobody hearing that story or seeing that man could fail be so moved; but Counsel have told you, rightly, that the J~!Y iS21q!~ntill~~!o_g!ye d~maggJLQ~~~c!_ on sympC!:thL or~.~onmassiQ.n. You will only give damages if you are satisfied that the Defendants have been proved guilty of negligence."
4. In Hatchen v. Black,2 Denning L.J. said, "Counsel had stopped to compare the case against the hospital to a motor car accident or an accident in a factory. That was the wrong approach. Qn the...IQl!~g! in af~ct()EY,~th~re ()~i)t to l?~. anya~(;j.~·l_en~. if_~Y~!Y()!l_{;_..!I§_E).c!.J?.r:()rr~J c~re. But in a hospitat,_whe~_ a person who _~gs ilL9-PJLcamE!jnj()f treatment, no matter what care was used, there was alwavs a risk, and it \vould b;~g.-;:lb~dla\;t~ say~'th~'t-'si~PlY' -be~;u~~< a-~ishap
jiad;C~~dthi~ho~p!;il ~:~~tl1e~£?!~~~~~i~fi~bl~!~-IndeecCit
would , be disastrous to the community. It would mean that the doctor ex amining a patient or a surgeon operating at the table, in~tead of getting on with his work, would be for ever looking over his shoulders to see if someone was coming up with a dagger; for an action for negligence against the doctor was like a dagger. His p;~nal reput;t{~~~Va.5 1S'ae~lr to him as his bodY- and p~~haps more so, and an action for negligence could wound his reputation as severely as a dagger could his body. The Jury must, therefore, not find him negligent simply because 2!.~e of the _risks inll~!Jrl~rl~~JZ~E:::t~()~1 actually ~05:>~_-el~c~, or because jn a matter of opinion he made an ~(Qt..;QfIiiagmt;nt. Thev should only ~guilty~;'i~~~' he had fallen short of the standa~reasonab1e~ 11 ~ledical care, when he __"'____ was deservi~-g II ___ ___
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5. C~:.J.I!.~ in AmeJiqJlounders v.~ira/ made similar comments, "'VVe do feel that this is a very sad case where the Plaintiff lost a young and promising boy at the age of 18. 'VVe have realised and sympathised with her feelings and sentiment, but it is a velY serious matter to charge a medical practitioner with want of skill 1
(1957) 2 All KR. 118 at 120. The Times, 2nd JulyBGmbay High Court, O.O.C.,T. Appeal No. 27, 1947, Judgment dated 29th bomber, 1947 (unreported).
t (1954)
174
MEDICAL LAW AND ETHICS IN INDIA
and cQmpetence in treating the patient, and in our opinion much and much better evidence is necessary before such a
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6. Earle C.J., in the leading case of Rich v. Pierpont/ observed, "Con sidering how much the treatment of a case depended upon its varying phases, which changed as quickly as the shifting hues of the heavens, it was hard for one medical man to comc forward and condemn the treatment of a brother in the profession, and say that he would have done this or that, ~en, probably, had he been in a position to judge of the case from the he w~uld-have done no better." ~~~
{{
7. Earlier, the same judge observed, "It was not enough to make the ~ doctor liable that some medical men, of far greater experience and 1/ ability, might have used a greater degree of skill, nor that even he might possibly have used some greater degree of care. The question I was whether there had been a want care and skill to such \ an extcnt as to to the bad result."
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8. Tendolkar J. in Amelia Flounders v. Dr. Pel'eira,2 quoted the above observations with approval as being also in cases of medical ~--~~.-----.. ~,... u,"'~ •• ~~ in India. 9. Mr. Justice Pilcher, appreciating the needless amount of time and' trouble which doctors and surgGons have to expend in attending Courts to answer actions for medical negligence filed against them, observed/ "Many claims made by patients these days against surgeons are com pletely unjustified. But occasionally medical professional standard falls just a little short of what is expected. In such cases, it may be better for hospital authorities to make a small payment, without admitting liability, rather than take the risk of doctors and surgeons being dragged to the Court",
...
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-
10. In Challand v. Bell," a Canadian case, the Court took the view that in a case of alleged negligence against a general medical practi tioner, where the experts disagree but some of them support the treat ment given, the general practitioner should not be criticised. It is im_j portant 'to view the treatment and to see matters through the eyes of the attending physician. No medical practitioner becomes an insu~er that he will effect a cure, nor do the courts condemn an honest exercise
176 E.R. p, 16 at 19, Judgment dated 5th March 1947, in Bombay High Court Suit No. 808 of 1943, 3 (1955) Lancet, 16th July, p, 146, This case will be described as the Savernake Hospital's Case in the Index of Cascs. • 18 D.L.Ii. (2d) 150, refened to in British and Empire Digest 1961, Vol. 34, p, 44c item 73 III.
1
2
175
MEDICAL NEGLIGENCE AND CIVIL LIABILITY
of judgment even though other practitioners judgment.
with that
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11. Mr. Justice Pritchard, in Wood v. Charing Cross Hospital/ after holding a young doctor negligent, observed that he hoped the doctor would not be daunted or unduly depressed and would find some con solation from the fact that yhere were ~ew ~pro!?ssional men who had (/ ~ot, iIt their ~~dL~!!:!:~~s? IE~de mista~es.
12. In Mahon v. Osborne,2 Lord Goddard said, ".... nor can I imagine
anything more disastrous to the community than to leave to a judge
to lay down what it is proper to do in any particular case !Vitho~ the /'/
guidance of witnesses who are qualified to speak on the "
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13. In 1838, in the case of Lamphier v. Phipos} Chief Justice Tindal
said, "EvelY person who enters into a learned profession undertakes to
bring to the exercise of it a reasonable degree of care and skill. He
does not undertake, if he is an attorney, that at all events you shall
gain your case, nor does a surgeon undertake that he will perfonn a
cure, nor does he undertake to use the, highest degree of skill. TIlere
may be persons who have higher education and greater advantages than
he has; ~u,! he, u!ld!~~~~_.~brin~ a fa!S_E.~~g~~le,_ a!,ld ~.?mp~!~!..
degree of skill." ,
Cl,w",~""~..,,.~~.-=--="--~~~~
Part III THE CONCEPT OF
~\'1EDICAL
NEGLIGENCE
The judicial observations noted in Part II of this Chapter E!re~
the necessity of differentiating medical negligence from misadventure ~
~~? error of it~. Still, the question remains: "y!lat is medicftl
ne&lig~ce ? The answer to this question can best be expressed in
the words of Mr. Justice McNair in Bolam v. Friern Hospital Manage ment C01nmittee/(}n the ordinary case which does not involve any
special skill, negligence in law means this: some failure to do some .pi
~ct whi£,~sonab}e man in the c!!cumstanc~ would~Q., or_ilQiQg
some act which a reasonable man in the circumstances would not do;
and if that failure or doing of that act results in injury, then there is a cau~e of actio~ How do you test whether this act or failure is negli gent? In an ordinary case, it is generally said that you judge that by \);; the actions of the man in the strect. He is the ordinary man. In one
:
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(]951) (1939) 3 (1838) • (1957)
-~--'-~"--_"
B.M.J. 8th September, p. 616.
2 K.B. 14 at 47.
8, C_ & P. 475.
2 All E.R. 118 at 121.
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176
MEDICAL LAW AND ETHICS IN INDIA
case it has been said that you judge it by the conduct of the man 011 the top of a Clapham omnibus. He is the ordinary ,man. But where you get a situation which involves the use of some special skill or com petence, then the test whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skilL A man need not possess the highest expert skill at the risk of being found negligent. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that parti cular art. . .... .In the case of a medical man, negligence means failure to act in accordance with the~stal;-dar(rori:easonabIy competent medical men a~.!li~"~T~e~~~;:fhat-Is"a~pertec-try accurate statement so long as it is remembered ·that there may be one or more perfectly proper standards and if a medical man conforms with one of those proper standards, then he is not negligent...... A mere personal belief that a particular technique is best is no defence unless that belief is based on rasonable grounds." Qt will be observed from the above passage that a medical man impliedly professes or promises to use reasonably compet('''l1t skill and care in the exercise of his art. In order that a medical man may be held liable for negligence, it is not necessary to prove that he expressly pro . fessed or promised to use proper skill or care. : The fact that he styles himself as a medical man warrants an assumption that he professes to use such skill as is ordinarily possessed by a reasonably competent medical man. '1 If, in the course of his treatment or operation, he fails to exercise the reasonable skill and care expected of a reHsonably com petent man at the time, he becomes liable to be charged vv'ith negligence if his patient is injured as a result of his treatment or operation) The ~ first reported English case on the subject is Rich )l..Yie-rpont. 1 The case '1 against the doctor was that he did not use due skill and care while attending upon a patient and that he improperly administered a certain drug. The learned Judge observed that a medical man was certainly not answerable merely because some other practitioner might possibly have shown greater skill and knowledge; but he was bound to have that degree of skill which could not be defined, but which was a competent degree of skill and knowledge. It ,\'as not enough to make the doctor liable that some medical men of far greater experience or ability might have used a greater degree of skill, nor even that he himself might possibly have used a greater degree of care.
,..
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1
(1862), 176 E.R. 16.
MEDICAL NEGLIGENCE At\'D CIVIL LIABILITY
177
This case was followed by Tendolkar J. in his judgment in Arnelia v. Dr. Clement Pereira. l The leamed Judge said that tf;; d~ree of .. c'2!!"l1?9j:en~eJ_.£ill:£ ansi~J1Y whis:l~~efendant is to ;k ju~ed n1U~t be such care and skill as may reasonably be~~ec!~d
J2;
f~om~n a:~:lgt2man. jr.his
and not from .1ir:),..J2.~ . ~~ specially gifted or ql~~~fl~d. The defendant was a general practitioner, th;J~g;~on to say, and was to be judged by the average standard of a general practitioner and not even of a consultant, much less of a surgeon who cures diseases by operation and not by medical treatment. In this ease, a mother had filed a suit against a doctor claiming damages for negligence in the manner in which he had treated her son who, according to her, died owing to the doctor's negligence. The plaintiff's son, a bantam weight champion boxer of London, was a young man Df 18 years at the time of his death. He met with an accident at Juhu Beach, Bombay, whjle playing footbalL The injury received was on his right knee, as a result of which there was a swelling. In the beginning he was treated by his own doctor. Then~after, he was shifted to the clinic of another doctor. When discharged from the clinic and while he was at his residence, between 20th May and 6th June, he was treated by the defendant doctor. On 6th June, a surgeon was called in. He advised an operation. An operation was performed and the surgeon drew off puss from the affected part. On 13th J line, a second minor operation was necessary to drain away a certain pocket of pus~. He was given blood transfusions on 15th June and 23rd June. Toward the end of J nne, haemorrhage, the result of deep-seated sepsis, set in and the boy died on 7th July. Evidence of the surgeon who treated the boy and also the ·evidenee of various experts was taken. One of the experts examined on behalf of the defendant was a leading Indian surgeon, Dr. R. N. Cooper. After examining the evidence and aeeepting the evidence of Dr. H. N. Cooper, amongst that of other expert witnesses, both the trial eonrt and the Court of Appeal held that the defendant was not negligent. Both the cOUlis held that the Plaintiff had failed to establish that there had been a want of competent care and skill on the. part of the defendant to such an extent as to lead to a bad result. They further held that, even assuming that the defendant was negligent, there was no necessary connection between sueh negligence and the ultimate death. Tl~ case in Ind~on the question of medieal
negligence which reiterates the same principles. In V. N. \Vhitamore v. -,~~""'"
1
Judgment elt. 5th ~\'brch 1947, in Bombay High Court O.O.c.}. Suit No. 808 of 1943 (unreported).
•
178
MEDICAL LAW AND ETHICS IN INDIA
R. N. Rao,l a suit was filed against an LM.s. doctor for recovering damages for negligent and careless treatment. The main charge againstj' the doctor was that he injected Sulphostab or Sulfarsenol which he should not have done as the plaintiff had no semblance of the symptoms of syphilis and the surgeon had not taken any precaution to assure himself, of his diagnosis. It was observed by the court that the doctor had ex plained why he used the above-mentioned injections and, further, it was amply proved that even if the patient had not been suffering from syphilis at all, such injections could be given for curing the other illness from which the patient was suffering. Having regard to the evidence given by the defendant doctor as also by other doctors called in this case, the court held that it could not be urged that it was altogether unjustifiable on the part of the' defendant to have injected th.e above mentioned drugs at a time when the patient's blood clearly showed g~rms of malignant malaria and he had sores on his face. The court then stated the principle of law as mentioned in Rich v. Pierpont. 2 It was further held that a medical man does not undertake that his treatment shall be infallible and, therefore, he is only held to undertake to perform what can ordinarily be done in similar circumstances. If the medical man has employed the ordinary degree of skill current in his profession, he is entitled to his remuneration though his treahnent has failed in its effect. It should be remembered that if a man goes to a doctor because he is ill, there is no doubt that the doctor must exercise reasonable care and skill in his treatment and that is so whether the doctor is paid 3 for his services or not. Therefore, t::..:h:;::e......:::te::::s:.c:t~::... ..!:~~t~~~.::~~.~:.:.:_:: the care treata man goes to a because he is suffering from some disease or illness, no one would doubt that the surgeon must exercise reasonable care and skill in operating upon him and that would be so whether. or not the surgeon is to be paid for his services. Similarly, if a nurse is engaged to treat an invalid she must exercise reasonable skill and care. If she fails to exercise such skill and care as is expected of a reasonably competent nurse and injury results to the patient thereby, the nurse's conduct would be held to be negligent. A reasonably competent doctor would not prescribe an \ overdose of any medicine. Therefore, if a doctor does prescribe an over dose of any medicine and the patient, following the advice, takes the overdose and suffers from the ill-effects thereof, the doctoi'~ action is
I
A.I.R. (l935) Lahore 247.
176, E.R. 16.
a Cassidu v. ;Hillistry of Health, (195J) 2 K.B. 343 at 359.
1 2
179
j'vIEDlCAL NEGLIGENCE AKD CIVIL LIABILITY
liable to be described as negligent. A surgeon, when he operates upon
a patient, is expected to -keep track of the swabs put into a patient and
if he carelessly fails to remove anyone of them, his conduct would be
held to be negligent. If a nurse carelessly gives poisonous medicine to
a patient and the patient suffers an injury as a result thereof, the nurse
is liable to be charged with negligence.
The above examples will show that negligence in law is not differ ent from what one would term negligence according to common sense. definition of negligence u~iversally acknowledged t~ be ~he bes: is a common sense one. Ityy~sglyenby Baron Ald(3rson. 1 Negligence IS the -I omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do ....." Applied to a medical man and borrowing the language of Baron Alderson, a definition of medical negligence may be stated thus : Nt:gligence on the part of a medical man is the omission to do something which a reasonably competent medical man, guided by such medical knowledge and practice as is commonly known at the time and at the place where he practices, and further guided by such other considerations which ordinarily regulate the conduct of reasonably competent medical man, would do, or doing something which a reason ably competent medical man would not do. This definition, however, requires a necessary qualification. If a medical man charged with negligence has followed a practice or a method followed by a seetion of medical men but disapproved of by another section of medical men, then the doctor charged with negligence cannot be held to be negligent merely because he did not follow a practice pursued by the other sec
0-
tio.n Of.. mC....d.i.c..a.l mCl0.· Decided cases show th;;ttjudicial notice ~is taker:t~. of the fact that genuine differences of and different practices an~eth;d~ri~'t11e-
2
--'-~---
-
~..-
noted that negligence may arise bv doing somethin,g a~ as by omitting~~~do -som~thin&. Once a medical man takes a case in hand he will for advice or .t:r:eatment.given as.£or failing~ to give th~L1igh.!_a4.yt£e 9r J:~ent. If substantially the whole of informed medical opinion is th;t h:;-; Sivencase patient should have been given some particular advice or treatment, a medical man causing injury to a patient by failing to give snch advice or treatment may become liable for his act of omission. II~ Chute F~rms, Ltd. v. Clirtis,3 the plaintiff's ~Tearling colt had
a
Bluth v. Birmingham Waterworks, 1.56 E.n. 1047 at 1049. For example, Bolam's Case, (1957) 2 All KH. 118 at 121. 3 The Times, October 10, 1961: Medicine, Science and the Law, April 1962. I 2
J/
180
MEDICAL LAW AND ETHICS IN INDIA
gone lame. The colt was treated by the assistant of the defendant, who was a veterinary surgeon, with a poultice but no injections of anti-tetanus serum were given and the colt died a few days later from tetanus. The court awarded damages equivalent. to the value of the colt, holding that the assistant, for whom the defendant was liable, was negligent in not giving an antH~tanus injection. risk of that deadly disease was always present and a competent veterinary surgeon would have treated the colt with serum. rIn fact, an action for negligence could also lie on appropriate grounds for failure on the part of a doctor to see and examine an invalid patient who is on his panel. Suchan action,I whi~h was the first of its kind, was filed in England but failed on merits. It shows that 'medical men attend to their duties with devotion. This case is of importance in India for those doctors who are on the pa~el of medical practitioners appointed under the Employees' State irzsuT~nce Act. They must not fail to attend to and examine those employees who are on their panel. If they fail in that duty without any justifiable reason, an action for negligence can be filed' against them, if their failure to attend and examine the employees causes injury. I
Part IV DISTINCTION BETWEEN NEGLIGENCE AND
OTHER CONCEPTS
Section 1
NEGLIGENCE AND
ERROR OF JUDGMENT
The judicial observations set out in Part II constanlJy draw atten tion to the fact that ~~ligence is to be differentiat~ciJrom misadventur~ <2E er!££ of judgme,g!. A few cases illustrating the above distinction may now be noted. (Jox v. CarshaltGn Group Hospital Management Committee. 2 In this c;:;'~' the Appeal Court found the respondents ;;~t~bl res pect of burns sustained by a child as the result of an inhalation bottle filled with scalding hot liquid spilling onto her while she was a patient suffering from poliomyelitis at the hospital. Denning L.J. said that the nurses gave the child an inhalant in bed by putting a pillow on h(;r leg and a tray on the pillow on which stood the bottle. This method was successful for two months. On 2nd December, 19.52 an accident occurred while the night nurse was out of the room. It was held that as the ~hilQl~~2L~I21~ ~---...
-~.~--~---~
v. Crabtree, The 1st & 2nd November 1955.
Times, 29th March 1955.
~mDICAL
181
NEGLIGENCE AND CIVIL LIABILITY
2i-months, it could not be ni:;gligence on the part of the nurse· to leave t.¥ the room for a few seconds. This was misadventure and not negligencer4 . according to both the courts . . C..!ivoll v. Barrett Grotip Hospital C01nmittee. 1 In May 1950 the
Plaintiff was operated upon for the removal of ~n her
A pathologist who looked at a speCimen of the lump reported
that it look~d-~- ifthere was· As a result of the report the
Plaintiff was submitted to intensive X-Ray theraQY. It was then dis
covered that the original diagnosis was not correct. The treatment was
stopped but one of the consequences of this treatment was that the
skin became marked, the surface was destroyed and there were many
possible sequels and the potentia} haza!:~L atlend,:!nt~.!:!:P2!L9:~~lC-=-Ray.
ther!:!2Y. Further, the patient had read the first report put ina paper-I
clip above her bed in the hospital and learning therefrom that she wa~ I
suffering from cancer, she suffered great pain and worry. Professor
Scarff, whom the Court considered an expert in this matter, stated
that he might, looking at the slide, have comc to the s(}me conclusion
as th!} pathologist. The Court said that having regard to the evidence
of Professor Scarff and the further fact that the i~retation of. t~
slide was a difficult and debatable fleleL it could not be said that the
pathol-;gist wa~ neglige~t. As regards-;;ile charge that a second opinion should have been taken in such a serious matter the Court pointed
out that one knO\vs that when one diagnoses cancer speed of treatment
is essential. Therefore, the nlere fact Jl~at..-,-~concl was not
taken and there was no additional check did not make out a case
___ .." .. -__"___ negligE?:Il~(;' The Court then said, "Unfortunate as it was that there
was a wrong diagnosis, it was one of those chances which life held for
people. Vv~ong. diagnosis. was not equal to unskilful or negligent .;:li.~I!2~~-~~~~~~f~Trcight~;:;~;k~ a mi-~t~k·~T~~tTre~~lff;~;f lifu~ "t but not thereby be guilty of negligence." .. ~. Ministtll of Healtll.2 On 13th October, 1947, both the Plaintiffs underwent a surgical operation. Before the operation, in each case, a m.inal ana~:etie consisti~ of N~E~reaineJ. injccted by means of a lumbar puncture, was administered to the patient by a: specialist· anaesthetist. The Nupercaine \vas contained in alass am.. p~ whieh were, prior to use, i~erse~ in aph~Q.L~~.~~Qg,
After the operation the plai~~sti~<,!-ple1iG:.t_ vvhich
resulted in permanent paralysis from the waist downwards. It was
found that the injuries to the Plaintiffs were eaused by the Nupercaine
becoming contaminated by the phenol which had percolated into the
t
~
~_·~~
=~-·~,·-~_c_~--~-
"~_-'
~~>M_~~'_'~'~_
_ __
r ____ •• _
•
• __________
I)
b_~_.~,
The Times, 19th November.
2 All E.R. 131.
182
MEDICAL LAW AND ETHICS IN INDIA
Nupercaine through molecular flaws or invisible cracks in the ampoules and that, at the date of the operation, the risk of percolation through molecular flaws in the glass was not appreciated by competent anaes· thelists in general. The Court, therefore, held that having regard to i the standard of knowledge to be imputed to a competent anaesthetist at f the date of the accident, the anaesthetist could not be found to be guilty of negligence in failing to appreciate the lisk of the phenol per colating through molecular flaws in the glass ampoules and there was' no evidence of negligence on the part of any member of the nursing could not condemn as negligence that. staff. The Court held that they -- ----- _.. which was onlv a misadventure. ~
------~.---- ~-
--,---~-
.
'
~~~Mrs.>P~;ki~~;~ ~~·~v-e;t75i;mberland Hospital Management Com mittee and Dr. Graham. 1 Mr. Parkinson went to an infinnary com
plaining of chest pain; Dr. Graham, then -!i0use Physician there, Sf amined the Eatient carefullY~2L~~l~ then gave the patient two tablets of codeine and told him to rehlnl later for X-Ray examination. A quarter of an hour later Parkinson was found dead near the hospital. !;Ie had die~ a mas~Lv!?~~l~~:LJ:hrQ!!!..bosi~. It was true that Dr. Graham ,,~as a~~g and newly-qualified doctor. learned Judge who had tried the case accepted Dr. Graham's ac count of what he saw and did and held that the fact that Dr. Graham took an hour over the examination showed he was anxious on this, his fourth day at the hospital, to acquit himself well. Dismissing the claim for negligence, the Judge said, "I would like to add that if one merely knew that a man has died in the street in early hours in the morning after being discharged from a hospital to \vhich he \vent in pain, one is inevitably tended to draw the conclusion that it ought not to have happened. That illustrates the danger of only knowing'part of the story. Once one adds that in the hospital he was examined care fully for nearly an hour, and that the signs and symptoms on balance negatived any serious condition, then that first conclusion must in ness be disregarded." The Judge held that the QQcto:l:)lad ll~e a
I
- ·1
J
~j
lln~ist~~ffa~~si~~d;:~sg;1~~~1~;;~ital.2 A~\:idowe:"cl~=
damages from the hospital in respect of hig wife's death. His wife was delivered of her fifth child at the hospital but, owing to the fact that a previous examination had shown her to have a tubercular chest con dition, she was told that it was not desirable to breast-feed the child. This upset the \vife to some extent and, in order to make her feel less B.r..U. 16th April, 977.
Science and the Law, October 1960, 84.
I
MEDICAL NEGLIGENCE AND CIVIL LIABILITY
183
conspicuous, she was transferred to a section of the ward where another patient was also bottle-feeding her baby. In the early hours of one morning she disappeared from the hospital and was later found drowned in a nearby pond. It appeared that she had committed suicide. Lord Cameron, dismissing the allegation of negligence, said that the ~£.QL p'~oving negligence against the doctor was a h~LJ:lne ~9:~add(;d that Illere error of judgment would not ~ He thought that e"yen error i~~~vas not bv i~~~mptiv~e I?rCLof~:Qt~n~Jig~12~~: The learned Judge. then quoted from a Canadian case, "I think it is well that the search for further knowledge and experience should not be inhibited by undue apprehension of charges of negligence for the con sequences to a patient of treatment and diagnosis where such may diverge from the normaL Equally, of course, it is important that merely because a difference of medical opinion can be demonstrated on a specific issue, that fact alone should not automatically provide an excuse for a practitioner who has been charged with professional negli gence ..... but where genuine differences of opinion founded on grounds of experience and knowledge are found to exist amongst dalists of comparable experience and skill as to the propriety of a particular course of treatment, I find it very difficult to say that in such circumstances a doctor of ordinary skill and knowledge is to be found negligent if he, again after full consideration, chooses to adopt .a course of treatment approved by one set of opinion although it is disapproved by another..... Further, in a case such as the present, ailments of the mind are under consideration, there must always be room for the exercise of discretion and judgment. . . .. This must be particularly so where, as in this case, the dividing line between what may termed normal emotional disturbance and recognisable mental is so difficult to draw, and where there are so many considera tions peculiar to the individual ca')e that the practitioner has to weigh and evaluate in making his diagnosis and in determining the course of treahnent to be applied." UL'::>v«C,'-'
Reasons for Distinguishing Negligence from Misadventure and of Judgment. From the C2ses one might venture to give some reasons why courts ~J~~kLthat mis.lliiv_tm.!l::!,~~s_QL~[rm:s..J)~d~ill~Jlt (~ amC:~,~!~E~gligel1ce. It is a weli-established principle that a doctor is not expected to be f' a miracle worker,but is required to show the diligence, skill and know- .\l ledge to be reasonably expected of an ordinary practitioner.! ' 1
See Hoiland v. Deuitt alld Moor Na1ltical March, 1960, p. 812.
and Dr, Thomas, R.M.]. 12th
184
MEDICAL LAW AND ETHICS IN INDIA
In Mahon v. Osbor,ne,l Scott L.J. said that a medical man ought to be careful but the standard of care which the law required was not insurance against an accidental slip. What was required was a degree oJ care such as a normally skilful member of the profession may reason ably be expected to exercise in the actual circumstances of the case in question. There is always room for a difference of opinion among mediCal) mcn; and it is important' to view matters through the eyes of the attend ing physician. Courts do not condemn an honest exercise of judgment even though other practitioners may disagree with that judgment. ! "A sense. of proportion requires the Court to have regard for the conditions in which hospitals and doctors have to work and it In,:!st I I.!ot condemn as caused_by negligence an ~<:?urrence which was merely an accident." 2 Similar observations were made by Lord Justice Scott in , Mahon v. Osborne,1 "It is not every slip or mistake which importl' negligence and, in applying the duty of care to a case of a surgeon, it is peculiarly necessary to have regard to the different kinds of cir cumstances that may present themselves for l{rgent attention."
I
~r.;~g,r~uI2.J:~f!~~or ~ofj~!~lgrpent is~ll(:ls't t()~_~S' negligeQL~_~I2g11~J..
It may be mentioned that, though in a particular case it may be said
that a medical man made a mistake but he was not negligent, it should
be clearly understood that to cover up one's error of judgment, after
one becomes aware of it, might legitimately be described as negligence.
It was so held in <2,hristin€L Baylill y. Bertha Blagg and N otingham
lIospitaP lEo_this case the Plaintiff's_ leg~ "\las~W.L
,:vhich was too Jigh! and which was left ~ on too long. After the
plaster was removed, the Plaintiff's father received, on 16th January,
a letter from the hospital which stated that the Plaintiff was all
right and that the hip would not require to be put into plaster again.
It was not until 27th June that the f~_~.§.~. ~~J~f0IT!le(LJoLthe_j}rst
time that his was to a..<:!.!J2pl~.19r lif(3, In the
evidence it was disclosed that, within a few days of the plaster being
put on, the father had, observing the attitude of his child, complained
to the l\Jatron that the plaster \vas too tight. But the ~atron had
r!j?lied that that was not the first Rlaster ~_haSU2!1.t.()~ Mr. Justice
Stable who tried the case referred to tributes paid to tbe Matron and
said that it was well that, in addition to this particular case, one should
recall the hundreds of happy, useful men and women, who were walking
about today and whose health was largely attributable to her devoted
1 3
(1939) 2 K.B. 14, 3l. British and Empire Digest Supplement (1961), Vol. 34, item 86 xxxvii. B.AIJ., 20th March, 1954, 748; Lancet, 20th l-.larch, 1954, 619.
'I
MEDICAL NEGLIGENCE AND CIVIL LIABILITY
185
service. The p~rticular failure in this ,<:,as~would not, according to t~ learned I1js1ge, detract .':IX all from her countless successe§. The learned Judge, however, was satisfied that there was a high degree of negligence over a protracted period of time in this case. The Matron did not observe for herself or heed the warning. She noticed the marked deteriaration in the child's condition practically from the moment the so confident of her ~~~~~~~~~~~~
~l3:lE.g and that a mistake been made, ~~;;;:;.:..:~-=~~=~~~.!:.:.;:c:~~ the truth_ and .sleliberatcly refu~ed.to~Q~!ieve wh~t she knewt()b~,!!J1.e. The learned Judge commented that if a policy of covering up a bad mistake was pursued, the result mu;tbe a-.. diminution of ~blic c~ ,-. - ----......... fidence and an increase in the number of claims of that sort.
~"'~=
Section 2
--=---~
-~~
J')I
CIVIL AND CRIMINAL NEGLIGENCE
Th~tl£ction betweeJ!.9iviLnegligen~_~~~Clnd,~riminal negligence is p~~f degree ~.partly one ~f ki~c!:
J1Y
A medic~l practitioner who undertakes the treatment of a patient owes a duty to the patient to use a and reasonable b~mdard of care and competence in ad ministering the treatment. l'0 render a medical practUjoneL£rimiuaUy r~onsible for the deatllJ?Lhis .Rati_~nt, i~_~~.t be ~~t~bJi~~.s.L thatl~is~, negligence or i n c o r : : e e t i m c e , a mere matter of com-I.,/ p~nsatiQ11 between tw~pr:ivate ~~_ and showed ~_.f()r/ the life and of others as to amount to a State and 1 It is most desirable that in trials for manslaughter by negligence it should be remembered that the L~~le is not negligence or no negligence, but crime or no crime, It 1~2. in..a sense, a question of degree but tl~ere is a difference in kil;-cT~ behveen the negligence whIch a right to compensation and the I .;~~iigence which is a crime. IJJ order to establish civil negligence it is not necessary,tQ...IH·ove tha!.!?...~~was g"~Q?§,J}~glige~c9A In Hunter ~--:Hanlelj,2 whkh 'is 'ref~;~~fi to in the well-known English case of Bolam v. Friern H.'Af..C. 3, the triall Judge held that the test Jgr civJ} neglige~.:e was whether __ ... _~!dl been s~e from the normall and usual practice of genenlr! practitioners as could reasmlahly"'1JeaescRbecl as gross negligence. The: of held that that In a civil actio; fo; I .negligence, it is not necessary to prove that, besid~ the~e being negli-} gencc, the negligence was gross. <;>~-.~---
1
Hex v, Bateman (1925) 9,1 L.L K.B. 781 at 794. (1955) S.L.T. 21.'3 at 217. (1957) 2 All E.R. 118.
MEDICAL LAW AND ETHICS IN INDIA
186
It is because of this difference between civil negligence and cri minal negligence that one may say that though in a criminal court or in a Coroner's Court a verdict of acquittal has been given against some person yet such person might become liable on the same set of facts .in a civil action foundel·on medical negligence:
Section 3
NEGLIGENCE AND INFAMOUS CONDuer
(It would be a fallacy to assnme that negligent conduct necessarily amounts to or has any necessary connection with infamous conduct. In fact, from an ethical point of view, a doctor's conduct may be ab solutely above reproach, nevertheless he may be held liable in an action for negligence. Therefore, the fact that a medical man has been called ! upon to pay damages in a civil action for negligence does not thereby - necessarily lay him open to a charge of infamous conduct. Infamous ( conduet involves aI!ab.llse of professionalQosition. If a doctor~-;;:~gli gent, it not necessarily~e~that-he lias abused his professional position. Therefore, a doctor cannot be held to -be guilty of infamous conduct merely because he was negligent. A rider may be added. Very possibly, proof of guilt of criminal negligence is prima facie proof of infamous conduct.· It is an abuse of professional positimlTo di~iZI~y complete disregard for the life and safety of others in the guise of professionally seeking to treat or cure the patient) Part V INGREDIENTS OF NEGLIGENCE Liability for negligence arises if the three conditions mentioned below are satisfied in a given case: L Existence of a duty of care. .,) ~ II. The failure to exercise a duty of care mu~t lead to damagc../ III. Thedamage which results OIl account of the failure to exercise a duty of· care must be reasonably foreseeable ..;
Section I. -
BREACH OF DuTY OF CAHE
LL medical
man charged with neglitI~~..lnustJl~21!Q~Y!L_to have
b.e_el~~md~I-J:l.Ji~JJLs~i:9~~I;-e~pe!s~~r(;(m.Iplaining
n~!~~~r~~~:-·· If
no duty of care was o\ved to the person complaining of negligence, there would be no liability on the part of the doctor even if his action or conduct has caused damage to the complaining party. In De Freville v. DilF it was held that in certifying a person's un soundness of mind, a medical practitioner O\ved a duty to such person -1
96 L.r, K.B. 10.36.
MEDICAL NEGLIGENCE AND CIVIL LIABILITY
187
to take reasonable care, even though he had been called in by third patties and no contractual relationship existed between him and the patient. If the m.edical practitioner a certificate that a personl is of unsound mind; his certificate is the cause of such person's deten tion under a Justice's order and an action for damages will lie in the ( fonn of an action for negligence in certification causing damage through detention in a mental hospital without just cause. The plaintiff was the wife of one De Freville who put her out of the house but she effected an entrance by the servants' entrance. She was detained in :the servants' hall while someone telephoned for Dr. Dill, the defendant, a medical practitioner. After observing the plaintiff for some hours, he telephoned for the Relieving Officer and made arrangements for the plaintiff to be taken before a Justice. He wrote out a certificate ex pressing his opinion that the plaintiff was a person of u'hsound mind' .and a prQper of and detained under care, h a~_~;r~atment. He infonned the Reli:~~ng Officer that a second medi~al\1 {)pmlOn was unnecessary. plamtiff was taken befere a JustIce \ who, without examining her or calling in a second doctor, passed a. reception order directed to the Superintendent of a mental home. Here she passed the night and, after examination the next morning, iI was discharged as cured. She brought an action against Dr. Dill! for damages for certification. The Judge said, "I must hold in the present case that the Defendant owed to the Plaintiff the duty of reasonable care, I would like to add an observation. During the past seven years a number of medical men who acted in perfect good faith, have been exposed to the most prolonged, haraSSing and costly litigation npon the allegation that they acted without reasonable care in a matter which is the most difficult, delicate and indefinite in the whole range of medical practice. It may well be, as was stated at the trial before me, that as a result of past litigation, many doctors have refused and will to take any part whatever in the work of certi ncation because the perils and anxieties of litigation which may follow. I am, however, not concerned with consequences. I only ,to deal with the position of law before me. Perhaps some further pro tective legislation is needed in view of recent cases." Halsbury "A person who holds himself out as ready to
medical advice or treatment impliedly tmdertakes that he is possessed
Df skill and knm\'ledge for the purpose. Such a person, he
is a registered medical practitioner or not, who is consulted by a patient,
owes him certain duties, namely, a duty of care in deciding whether
to undertake the case; a duty of care in deciding what treatment to
give; and a duty of care in his administration of that treatment. A
J
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188
¥ .
breach of any of these duties will support an action for negligence by the { patient'.1 Referring to an older case, Thompson v. Schmidt,2 where it ,J was held that a practitioner did not owe a duty of care to a person whom he certified to be insane, Halsbury says, "A practitioner, giving the plaintiff's wife a letter, at her request and on information supplied by her, wrongly saying that her husband, whom he had not seen for eighteen months, was of unsound mind and dangerous, is not liable for negligence upon the ground, inter alia, that he owed no duty to the plaintiff whom he did not advise~eat and who was noJ his patient:'. Under the Indian Lunacy Act, 1912,3 certain recepti~n orde~s, i.B. orders to receive persons of unsound mind as lunatics in a mental home~ can only be founded on medical certificates. It is provided by the Act that persons who sign medical certificates should personally· examine the alleged lunatic. In such cases, it is submitted, a duty of care is owed by the medical man to the alleged lunatic examined by him.
Section 2
f
MEDICAL LAW AKD ETHICS IN INDIA
DAMAGE
The trial court4 and the Appeal Court5 in Amelia Flounders v. Dr. Clement Pereira laid down the requirement that the failure to exe~ ail~ of care~ust lead to [email protected].!l~()~~~~.!~]J~<j!onal:>~. On the facts, the Trial Judge as well as the Court of Appeal cayge to the con clusion that the plaintiff had failed to establish the necessary connection between the alleged negligence and the ultimate death. The Appeal Court said, "The plaintiff has to establish first that there had been <1\ want of competent care and skill on the part of the defendant to such an extent as to lead to a bad result. The plaintiff has also to establish the necessary connection between the negligence of the defendant and the ultimate death of the pJaintiff's son." An illustration of the principle that it is not enough that the plain~ tiff must have suffered some harm but that the harm must be the result of the defendant's carelessness is also to be found in Jones v. Welsh Regional Hospital Board." The plaintiff was injured in the eye while working on agricultural machinery. A successful operation for the removal of a minute piece of metal in the eye was immediately carried out. However, owing to some unexplained mishap, there was no sys tematic administration of penicillin until four days later. An infection 1 Srd
Vol. 26, 17, para 22. Foot-note HC", 17. 3 Section 19, • Decision of Tenc10lkar J. dated 5th March 1947 in Bombay High Court O.O.C.], Suit !\ o. 80il of H)43 . (unreDorted); 5 Decision dated 29th September 1947 in Bombay High Court Appeal No. 27 of 1947 (unreported).
6 (1961) Lancet, August 26th, 48,'),
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MEDICAL NEGLIGENCE AND CIVIL LIABILITY
in the eye did not respond to treatment and the eye had to be removed. The learned Judge said that the critical question was whether the eye could have been saved by administration of penicillin. Three medical witnesses for the defence said that they had never come across a case in which so seriously infected an eye had been saved and that, so filr as they knew, there was no record of any such occurrence. They argued as a matter of theory that even if there were any cases of such recovery, there was no case in which it could be shown that the recovery was due to the systematic administration of penicillin. A medical witness for the plaintiff agreed that an infected vitreous "vas a very bad sign but it was not regarded as necessarily involv ing the doom of the eye. He had tracked down two similar cases where the eye had been cured by the administration of antibiotics. The witness admitted, however, that it was not possible to show atfu:matively that it was the penicillin that !>.~ought abol~t~~impr0'1e,~ His Lordship was not prepared to hold that the experience in these two cases really broke down the case made by the defendant that the eye was, according to evClY reasonable ~xpectation, completely hopeless by the next day and, indeed, by the previous evening when it could have been seen to by an opthalmologist. He, therefore, held that there was no connection between the failure of duty to administer penieillin and the loss of the eye and dismissed the claim. The Judge added that had there been any reasonable prospects of recovery, he would have been faced with a very interesting and rather difficult point of law as to whether damages could have been claimed for the loss of a hope. He preferred to express no concluded opinion but it seemed that, as a matter of principle, the loss of a hope could be the subject of damages, but it would have to be a measurable hope. If it was so remote that it could only be expressed by phrases such as 'one in fifty or more', or 'one in a hundred', he would doubt whether that was sulft cient proof of the existence of the hope to justify a finding against the defendant. The court reached the conclusion on evidence that the nse of penicillin would not have cured the eye and held that the failure of duty to use penicillin promptly did not lead to the loss of the eye, qnd, accordingly, the doctor was not liable. This case illustrates a situation where, though a medical man may be careless, nevertheless, as the carelessness did not lead to damage, there was no liability in law. In Fish v. KapU1',l the plaintiff alleged that the defendant, a dentist, was negligent inasmuch as he had fractured a jaw while extracting a wisdom tooth, It was held that it was not the defendal1t's negligence - -
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(1948), 2 All E.R. 176, at 178,
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MEDICAL LAW AND ETHICS IN INDIA
which had caused the fracture. The plaintiff's alternative case was that the defendant did not infonn her that she had a fracture and did not recommcnd her to go to a hospital or to a doctor but merely said she would be all right in a week's time. In those circumstances, she allcged that, apart from the actual fracture, there was lack of care in diagnosis on his part. The court said, "If, however, Mr. Kapur had found a fracture at that time, what would have been the position? I asked 'or. Devas what he would have done if he had seen that there was a fracture before May 10, and he said: 'I might have suppOlted her jaw for her. I do not know if I would. It may have eased the pain or discomfort, or it might not.' I have also the fact that when she went to the hospital on May 17 they found that the fracture was already healing in good alignment and there was 'no necessity for any treatment in the shape of a support or othelwlse. All that they gave her was a mouth-wash as, indeed, Mr. Kapur had done in the earlier stages. I can see, therefore, no evidence which indicates that the plaintiff sus tained any further or additional pain or discomfort as a result of the defendant's failure to diagnose on May ~10".
Section 3 -
RE.">SONABLE FORESEEABILITY OF DA1vfAGE
In a recent leading case,l the Privy Council held that the test of lia~J£!:-qjtmJ.ll~thaL~l mU-,-s_t~b_e_considered responsible JO! the probabl£. _cOI1J>.£qu(;_nces of his To demand more of him is too harsh a rule. It may be pointed out, however, that once it is proved tl~at some particular damage caused by failure to exercise a duty of care could have been foreseen, the negligent party would be liable for all the consequences following upon the negligent act or conduct. As was held in Smith v. Leech Brain &. CO.,2 for the purposes of assessing damages, a negligent party must take his victim as he finds him. If a medical man is negligent and as a result of the negligent conduct the patient suffers damage which could have been foreseen by a reasonably ~om._...-.#
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MEDICAL NEGLIGENCE AND CIVIL LIABILITY
petent medical man, it is no answer either in reduction or denial of the injured party's claim for damages that he would have suffered less in jury or no injury at all if he had not had an unusually constitution or an unusually weak heart. In this case S was employed by the defendant as a labourer. Part of his work consisted in lowering alucles into a tank of molten metal and subsequently removing them. \Vhilst he was so engaged, a piece of molten metal spattered out and burnt his lip. He later contracted cancer, undenvent an operation and then died. It was found that the defendant had been negligent and that the bum was the promoting agency, promoting cancer in tissues which already had a pre-malignant condition. It was held that for the purpose of assessing damages, but not for determining the fundamental liability for negligence, a wrongdoer must take his victim as he finds him. As the type of injury which S suffered was reasonably foreseeable, the defendants were liable for the damages claimed, although they could not reasonably have foreseen the ultimate consequences of the initial injury, namely, that S would contract cancer and die as a result of the bum. Therefore, once it is established that damage could reason ably have been foreseen as a consequence of the negligent conduct, the amount of compensation will be determined according to the injuries suffered by the plaintiff.
Part VI INTERVENTION OF THIRD PARTY
It is obvious that since the party guilty of an act of negligence
s~ch da~age
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is liable OI1!y for as have been foreseen a reason-I able man, if there lS an mtervention between the act of neglIgence and the damage complained of, it would be most difficult to decide whether the act of negligence itself caused the damage complained of. means , more than careless conduct. Negligence has three as'pects, ,,-. --.=' viz., the existence of a duty,J)f~::!£h of the ~cf~t-Y~~and tl~ d a]J1age fered ~~~tcl~~~~h' oLthed!i!Y~l~Th;r~for;'-~s the b;~~~h of duty itself should cause damage in order to make the negligent party liable for the consequences thereof, law absolves a negligent party when, between him and the resultant damage, a third party has inter vened. For aught one knows, the damage might have been the result of the intervener's action and the conduct might not be res ponsible for the said damage. To illustrate the above principle, a ~
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Lochgelly Iron & Coal Co. v. M'Mullan (1934) A.C. at 25.
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MEDICAL LAW AND ETHICS IN INDIA
hypothetical case may be taken. Dr. A negligently prescribes &. certain remedy in an article in the Lancet or British Medical Joumal.Dr. B applies that remedy to his patient who suffers injury as a result thereof. In this case, Dr. A will not be responsible on the ground that it was not his mistake which caused the injury but the intervening act of Dr. B in following the prescription suggested by him.
Part VII IRRELEVANT FACTORS The following are irrelevant factors for determining negligence: (Absence of Contractual Relationship. Even if there is no con tractual relationship between the medical man and the patient, the medical man will be liable for negligence if he has committed a breach of duty resulting in damage. 1 Therefore, if a I1}edical mall attends to a child at the instance of its father or attends to a servant at the request of his master or attends to a wife at the request of her husband then, in all these cases, though the medical man was employed by the father or the master or the husband, as the case may be, the child, the wife and the servant will be entitled to file an action for negligencc against the doctoYJ. . In Gladwell v. Steggall,2 an infant was treated by a surgeon at the request of her father. In answer to a claim for negligence on behalf of the infant, it was argued that the infant had not employed the surgeon. It was held that it was immaterial by whom the surgeon vias employed. The Court held that this suit was neithcr brought nor founded upon a contract; it was brought by a person who had sustained bodily injury, and he could bring the action even if there was no contractual relationship between him and the surgeon. '"::'l\;<'t. '0- ct...::d'1.)!. , Medical Service Rendered <;ratis.' ~ c~im .9!~E~~~m succeed ev.en if the medical servi~,,:wa~.J'§l?_qered grati~. This would ___ be so not only where the doctor agrees not to chargc any fees, but also where he acts in the emergency of an accident without any thought of charging a fee. In Rex v. Bateman,l the Court held that if a medical man accepted responsibility and undertook treatment and the patient submitted to his direction and treatment accordingly, he owed a duty to the patient to use diligence, care, knowledge, skill and caution in administering the treatment. No contractual relation was necessary nor =,~,~ -=------"-,~_=..~
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MEDICAL NEGLIGENCE AND CIVIL LIABILITY
193
was it necessary that the service should be rendered for reward. In Shiells v. Blackburn} the Court opined that a medical man becomes liable for negligence even if he undeltakes to attend a sick person without charging fees because his situation implies skill in the exercise of his art. In Everett v. GrifJiths,2 Lord Justice Atkins said, "The case of the medical practitioner is subject to special considerations. If a man . undertakes the treatment of another which is likely to. cause pain or suffering to him unless performed with a special skill or care, he is liable to him if he causes pain or suffering by omission to use a reason able degree of such skill or care. This obligation is not based on con~ tract, express or implied, between the patient and the doctor. It would apply to a doctor treating a member of the household of the other party to the contract, as it would apply to a doctor acting gratuitously in a public institution, or in the case of emergency in a street accident and its existence is independent of the volition of the patient, for it would apply though the patient were unconscious or incapable of exer cising a conscious volition." As regards the liability of a hospital, Lord Wright in a House of Lords decision, Lindsey C.C. v. MarshaLP stated that though the patient in a pmticular case had paid money to the hospital, the position of the hospital for negligent service would have been the same even if the service had been voluntary. The hospital's duty arose from the fact " that the patient had entrusted herself to the care and custody of the hospital authority as regards hospital accommodation and nursing, vvhich the hospital held itself out as prepared to furnish. Similarly, a surgeon \~'I~~ldertakes a gratuitous ol2eration, owes..L in performir:lg:Jhe...opera tion, a duty of care and skill to the patient. In Cassidy v. Ministry of '-""'-'. Health\ Denning L.J. said, "If a man goes to a doctor because he is ill, no one doubts that the doctor must exercise reasonable care and skill ill his treatment of him and that is so whether the doctor is paid for his services or not. ...... Even if he is so poor that he can pay nothing, and the hospital treats him out of charity, still the hospital authorities are under a duty to take reasonable care of him just as the doctor is who treats him without asking a fee. Once they undertake the task, they come under a duty to take care in the doing of it, and whether they do it for reward or not." ~~
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it _is not necessary to IJ~~nt p~1ad a bad motive. Salmond says5 that Motive.
126 Eng. Reports, 94.
(1920) 3 KB. 163 at 213.
:l (1936) 2 All KR. 107G at 1092.
~ (1951) 2 KB. 343 at 359.
S Law of Torts, Eleventh Edition, p. 32.
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MEDICAL LAW AND ETHICS IN INDIA
only m exceptional cases does malice or improper motive become materiaL Negligence is not one of those exceptional cases. The law in general asks merely what the defendant has done, not why he did it. A good motive is no justification for an act otherwise illegal, _""""'" and a bad motive does not make wrongful an act otherwise It is ,~ ~--~-----......----suggested that this rule is based substantially on the ground of the difficulty of ascertaining what those motives really were which prompted the defendant to act in a particular manner. ..r""
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Difficulty of Pointing Out the Exact Person. Further, a Plaintiff~ suing for damages for negligence is not required to lay his finger on the exact person in the whole chain responsible for his loss or injury or to specify what that person did. In Cassidy v. Ministry of Health\ Singleton L.J. said, "The plaintiff was in the care of the hospital authori ties. Those responsible for the post-operational treatment were all full time employees of the cmporation, and it seems to me that it is not necessary for the plaintiff to establish precisely'which individual em ployee was negligent. He made out a prirna facie case of negligence against the defendants. In such circumstances, they may be able to rebut that case by showing that there was no negligence or tha~ the negligence was on the part of someone for whose acts they are not responsible." In Roe v. Minidry of Health,2 Denning L.J. said, "In the second place, I don't think that the hospital authorities and Dr. Graham can both avoid giving an explanation by the simple expedient of each thro'Wing responsibility onto the other. If an injured person shows that one or other or both of two persons injured him, but cannot say which -of them it was, then he is not defeated altogether. He can call on each of them for an explanation." In the same case, Morris L.J. observed/aI have approached the present case, therefore, on the basis that the defendants would be liable if the plaintiffs injuries were caused by the negligence of Dr. Graham or by the negligence of someone on the staff who was concerned ,'lith the operation or the preparation for it. On this basis, if negligence could be established against one or more of those for whom the hospital was responsible, it would not matter if the plaintiHs cannot point to the exact person or persons \vho had been negligent." 1 2
(1951) 2 K.B. 343 at 355.
(1954) 2 Q.B. 66 at 82; (1954) 2 All RR. 181.
At p. 91.
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MEDICAL NEGLIGENCE AND CIVIL LIABILITY
195
. Part VIII TEST OF NEGLIGENCE Courts of law have held that in every medical case the question j"
of negligence is to be decided::t~cQ.rdinKJo th~J(IlOW~_~&~._~Il9.;e~::i~!ice
ex.istillK at thetirn~. of the occurrence of the alleged act of negligence.
A course of conduct mustb-c-judge<:Iin the lighi-or-tI~e·~knowledge
existing at the time when it was adopted. This is but common sense .
•It would be most dangerous if a practice or method followed in a particular case at a particular time were to be judged in the light of the knowledge and practice coming into existence at a later date. ~.9..uall~.!!3ould be J!gain..st go~~~nse_if a doctor were~~Qe n_~ligent merely because he Rreferred to follow_?nf; standar~~ or ~r~a~th~~e~!r."~~!~~~~~~~~o
In Hunter v. Hanley!, the Lord President" said, "In the realm of
diagnosis and treatment, there is ample scope for genuine differences of
opinion, and one man clearly is not negligent merely because his con
clusion differs from that of other professional men, nor because he has
displayed less skill or knowledge than others would have shown. The
true test f;~ esEabIiShing-negHgence in diagnosis or treatment on the part of a doctor is whether he has been proved to be goilty of such
failJJIsLALIlQ_ <:foctor of ordinary_skill wouldJ)E;_guilty gf if t€ cting with .
ordinary care."
In Roe v. Ministry of Health,2 hvo patients in a hospital developed spastic paraplegia resulting" in pennanent paralysis as a result of the adminish'ation of Nupercaine injected by an anaesthetist prior tQ_ the operation. It was found that the N upercaine had become contaminated by phenol which had percolated into it through invisible cracks in the ampoules. At the date of the operation the risk of percolation through invisible cracks in the glass was not appreciated by competent anaes thetists. It was held that, having regard to the standard of knowledge existing in 1947 when the above incident occurred, the anaesthetist could not be found guilty of negligence. Denning L.J. made the classic r~~at. o~ o~ht .Jlot to. loo~ "191Z_. ac~i<:i_~!lt_~ith 19§.;i N -; l-- spectacles. --~f;;Whiteford v. Hunter,3 the House of Lords had to consider the) question whether a doctor in England who had followed a particular ~. method exi::.ting in England at the relevant time could be found guilty J of negligence because a better method existed and was followed in
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(1955) S.L.T. 213 at 217.
(l95;1) 2 All E.R. 131.
3 (1950) 94 Solicitors Journal, 758; 1
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W.N.533.
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MEDICAL LAW AND ETHICS IN INDIA
the United States. The House of Lords unanimously answered in the negative. This was indeed a tragic case. The doctor eoncerned in the case was definitely not negligent, morally or legally. The appellant, who had been a consulting engineer practising in London, was examined by the respondent who was a consulting surgeon. He, after a simple rectal examination, form'ed the opinion that the cause of the patient's condition was an enlarged prosttate and advised that the bladder should be emptied and drained by means of a tube and that the enlarged prostlate should afterwards be removed. In making the examination and subsequently, the surgeon omitted to use a cystoscope or make a biopsy which, it was suggested on behalf of the patient, was the chief and only certain means in current surgical practicc of examining the interior and making a diagnosis in such cases. On opening the bladder the surgeon found that the prostate was not large. Near the base of the bladder he saw what he described as an indurated mass about the size of the palm of a man's hand. After examination with eye and hand, he concluded, as it turned out, wrongly: that the patient was suffering from inoperable cancer. In the belief that he had not long to live, the patient abandoned the hope of resuming his position as a up his home in England consulting engineer, sold his belongings, and went to the United States where his wife and family lived. Im mediately on arrival he went into a hospital, where a cystoscopic examination showed a prostate with a median bar. The pathologieal examination showed the presence of chronic cystitis. An. operation was performed. The diverticulum was found to be filled with calcareous material and was removed. There was no trace of cancer at all. On the evidence it was held that no proper examination by a cystoscope would have been useful unless it was fitted with a Rongeur attachment and in 1942 (the year when he was examined by the respondent) that instmment was rare in England and was not in the possession of the defendant surgeon. All the medical witnesses in England asserted that it was then against approved practice in England to use a cystoscope where there was acute urinary retention and that when the bladder was drained and collapsed it was difficult, if not impossible, to use one effectively unless it were of the Hushing type, an instrument which was rare in England at the relevant date. Accordingly, negligence was not established. ,~_~,..::~., . _v. Friem Hospital Management Boardt, the plaintiff, who was sllffeling l~';;~;r~~;;-given electro-convulsive ths'!:'fI:EY. No relaxant drug or manual control (save f~~:'~~~~;PP;;t-;;f 1
(1957) 2 AIL KH. 118.
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MEDICAL NEGLIGENCE AND CIVIL LIABILITY
197
the lower jaw) was used,but a male nurse stood on eaeh side of the treatment couch throughout the treatmcnt. As a result of the treat ment, the patient sustained severe physical injuries consisting in the. dislocation of both hip-joints with fractures of the pelvis on each side. The use of a rela.xant drug would admittedly have excluded the risk of fracture. Among those skilled in the profession and experienced in this fonn of therapy, however, there were two bodies of opinion, one of which (since 1953) favoured the use of a r~~xa~~:~ or ~_~~l c~:tr0l as a general practice, and the other of which, thinking that the use of a relaxant drug was attended by mortality risk, confined the use of relaxant drugs to cases where there were particular reasons for their use. The plaintifFs case was not such a case. Similarly, there· were hvo bodies of competent opinion on the· question whether, if relaxant drugs were not used, manual control should be used. Different views were also held among competent professional men on. the question \vhether a patient should be expressly warned about the risk of fracture before being treated or should be left to enquire what the risk was, and there was evidence that in cases of mental illness explanation of risk might well not affect the patient's decision whether or not to undergo the treatment The Court held that in this case the doctor was not negligent as he had acted in accordance with a practice ac cepted as proper by a responsible body of medical men skilled in that particular art, merely because there was another body of competent opinion that took a contrary view. A Canadian case which went to the Privy Council, Vancouve·r \ General Hospital v. McDaniel 1 may also be noted. In this case, an in fant suffering from diphthel'ia was a paying patient in a hospitaL After she had been cured and discharged she developed smallpox. It was alleged lhat she had contracted smallpox owing to the negligence of the hospital authorities. The negligence alleged was that, while in the hospital, she had been placed in a room on the same floor as patients suffering from smallpox and had been attended by nurses who also attended these patients. The authorities pleaded that the technique adopted in the hospital for the prevention of infection was in accord ance with approved modern practice. The evidence disclosed that in modern practice the system adopted by the hospital was in vogue throughout Canada and the United States and that it was the best system known to medical science at that elate. In Their Lordships' 'l"/..A~oPinion., the ~ppellants~showed that they had acted in accordance with (). ~ the general and approved practice, and, accordingly, were entitled, 1
(1934) W.N. 171.
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MEDICAL LAW AND ETHICS IN INDIA
upon the evidence, to succeed. Their Lordships, however, made it very clear that they were offering no opinion of their own as to the relative merit of what was termed the unit system, in contra-distinction to the isolation system, for the treatment of smallpox. This case shows that courts do not themselves decide, in cases of medical negligence, whether a particular practice is healthy or unhealthy; they rely upon what is believed by medical men to be the proper practice to follow in a parti cular case. Once it is proved before a court of law that a particular practice is the general and approved practice, the decision invariably is t1~at there is no negligence in following that practice. __ •.._, is a most healthy principle that a question of negligence is to be judged not in the abstract, but in the light of the circumstances of each particular case. Lord Denning observed in Roe v. Ministry of Health l , l'~ prop~!~ens~_ QLm.:QP()rti on requires, us to have regard to the _<::~Il.?i d tion~~_~\Thich hospitals an~ doctors have to wprk." One should con-' J 1 sider circumstances such as the availability of a particular apparatus, appliance and medicine in a particular place where the negligence is alleged to have taken place, the state of medical knowledge and practice should begjy.en prevailing at the date of the accident and due to the emerg~l1cy of a particular case. In cases where surgeons have becn sought to be held liable for' negligence, theJact that the emergency of a situation required an opera tion to be performed and the wound sewoo up as' early as possible might also have great bearing on the question of the liability of a surgeon charged with negligence. In 'Mahon v. Osborne!', Scott L.J. said, referring to the question of the liability of a surgeon for leaving a swab in the abdomen, "The nature even of abdominal operations varies widely, and many considerations enter into it, the degree of urgency, the state of the patienrs inside, the complication of his disorder or injury, the condition of his heart, the effect of the anaesthetic, the degree and kind of help which the surgeon has, for example, whether he is assisted by another surgeon, the efficieney of the team of theatre nurses, the extent of the surgeon's experience and the limits of wise discretion in the particular circumstanecs, the complications-arising ~~rt~ th~' operation itself2 and the fear of the patient's coU;P;e. In the pr~t , case, all the above c~sider~ti~ns combine to prese~ta state of things of mankind knows nothing." of which the ?~-'~~----~--"=P---'-""'-"--'-
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Ship Surgeon's Duty To Be Judged On Fair Play And Not By Harley Street Standa~ds. Thcre is an interesting note under the title 1 2
(1954) 2 All. E.H. 1.31 at 1-39. (Ht39) 1 All. E.R. 5'35 at 540.
MEDICAL NEGLIGENCE AND CIVIL LIABILITY
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"Hazards of Ship's Surgeons" in an issue of the British Medical Joumal. 1 A passage from it may usefully be quoted here, "If a ship's surgeon has a mishap with an English passenger or an English seaman, the standard of care and professional skill by which the English Courts will judge him will take into account the handicaps under which he works afloat and the standard of_skill among his maritime colleagues. The Judge will expect not Harley Street st<~ards but fair play."
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Part IX VICARIOUS LIABILITY What Is Vicarious Responsibility ?LIri la"Y, g,.. rnanH. nlay become l~_to pay damages for an ac;t of negligel:;.c.eS~JIIlrnittec!.J)yhiss_ervants· or. agents.jnih...fLcourse of their employment or . - -agency. - _ . ,This is called the mle of vicarious responsibility or vicarious liability - or, ._" as the. Latin phrase goes, "re~l!ondent superior." ~his means, let the superior (or the N \ife principal) be responsible. In order that a person may become vicariously liable for the act of another it must be proved (i) that the person for whose act of negligence another is sought to be held liable is the servant o~;~!!Lof that other person and (ii) that the negligent act complained of must have been done by the servant or the agent in the course of out his duties aj sueh servant or agent. -
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When It Arises. The question of vicarious liability in medicql 1]latters usualJy .£!.!i~.~_:when an act of negligence occurs in a hosQital Qr in a nursing home. For an act of negligence committed by a doctor, a surgeon or a nurse, while performing his or her duty i~ a hospital, an action for negligence may lie against the hospital authorities. In Cassidy v. Ministry of Health,2 the Court of Appeal in England held that a hospitai authority is liable for the negligence of doctors and surgeons employed by it under a c:9~L~!.:i~~~ arising in the course of the performance of their professional duties. Principle. On Which Hospitals Are Held Vicariously Liable. For merly, because of certain observations made in Hillyer v. St. Bartholo mew's Hospital", it was thought that the law was this: that a hospital was not responsible for the negligence of its professional staff (including trained tl1U[Ses) in matters involving l)fofessional care and skill as dis tinct from matters of a purely administrative nat1ll'e. But in Gold v. 1 2
Issue dated 18th April, 1959. p. 1051. (1951) 2 K.B. 343. (1909) 2 K.B. 820 at 829.
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MEDICAL LAW 'AND ETHICS IN INDIA
Essex C.C.I, these observations were rejected and it was held that a ~ hospital was' responsible for the negligence of its professional staff even with regard to matters involving purely professional eare and skill. In this case the Court of Appeal in England held that a hospital owes to a patient the duty to nurse and treat him properly and is liable for the negligence of its servants even while they are engaged on work which involves the exercise of professional skill on their part. The plaintjff was injured through the negligenee of a competent radiographer, who was a whole-time employee, and the plaintiff rccovered damages against the hospital authority. Lord Green, M.R, said,2 "In each case the first task is to discover the extent of the obligation assumed by the person whom it is sought to make liable. Once this is diseovered it follows of necessity that the person accused of a breach of the obligation cannot escape liability because he has employed another person, whe ther a servant or agent, to discharge it on lJis behalf and this is equally true whether or not the obligation involves the use of skill. It is also true that if the obligation is undertaken by a corporation or a body of trustees or govemors, they cannot escape liability for its breach, any more than can an individual, and it is no answer to say that tIle obligation is one which on the face of it they could never perfonn themselves." In Collins v. llertfordshire C.C.s the defendants were held liable for the negligence of a resident house surgeolit employed under a con tract of service. Thereafter, in 1951, in Cass'idy v. Ministry of llealth,~ the Court of Appeal in England held that the hospital authority (in this case the Ministry of Health) was responsible for negligence on the part of a surgeon who was a full-time Assistant Medical Offieer of the hospital as also for the negligence of the house surgeon and members of the nursing staff of the hospital, all of, whom were employed under contracts of service. In this case a patient's hand was rendered useless due to negligent post-operational treatment given by the above mentioned employees. (The reason why a hospital authority is held vicariously liable for the negligence of its staff even as regards matters involving professional care and skill is that the hospital authority is under a duty of care in its treatment of its patients. Denning L.J. in Cassidy's case said, "If a man goes to a doctor because he is ill, no one doubts that the doctor must exercise reasonable care and skill in his treatment of him and that (1942) 2 K.B, 293. 2At p. SOL a (1947) K.B. 598. 4 (1951) 2 K.B. 343.
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MEDICAL NEGLIGENCE AND CIVIL LIABILITY
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is so whether the doctor is paid' for his services or not. But if the doctor is unable to treat the man himself and sends him to a hospital, are not the hospital authorities, then, under a duty of care in the treat ment of him? I think they are ...... Even if he is so poor that he can pay nothing, and the hospital treats him out of charity, still the hospital authorities are under a duty to take reasonable care of him just as the doctor is who treats him without asking a In my opinion, authorities who run a hospital are in law under the self-same duty as the humblest doctor; whenever they accept a patient for treat ment, they must use reasonable care and skill to cure him of his illness. The hospital authorities cannot, of course, do it by themselves; h~ [10. ears _!~ listen the stethoscope, and no hands to hold the sl,l£geon's ,knife~_ They must it staff they and if their staff are negligent in giving the treatment, they are just as liable for that negligence as is anyone else who employs others to do his duties for him." The learned Judge then said that it was no answer to say that the staff of a hospital are professional men and women who do not tolerate any interference by their lay, masters in the way they do the work. No doubt a medical man employ~d by a hospital being a skilled man would desire to do his work in his own way and in the way of his doing that work it may not be possible for the authority to control him. That is obvious, because the authorities often do not have sufficient knowledge to do so; but they are liable in such a • case as much as the owner of a ship would be for an act of negligence on the part of its captain who, being far away on the high seas, is incapable of being controlled by his master at home. Liability attaches on the ground that the employers in these cases had employed the staff and had chosen them for the task and had in their hands the ultimate sanction for good conduct, namely, the power of dismissalj In Roe v. ~Unistry of Health,l the Court of Appeal in E;'gland held that the anaesthetist in that case was the servant or agent of the hospital authority who was, therefore, responsible for hi~ acts. Denning L.J. held that the hospital authority was responsible for the whole of its staff, not only for the nurses and doctors but also for the anaesthetists and the surgeons. It did not matter whether they were permanent or tem porary, or visiting, full-time or part-time. The reason is that even if they are not sen1ants, they are the agents of the hospital to give the treatment. The examination of the above cases clearly indicates that the development of the law is now along the line that the fact that a doctor !
(1954) 2 All E.R. 103 L.
I
202
MEDICAL LAW AND ETHICS IN INDIA
cannot be controlled in the exercise of his professional duties does not remove him from the category of a servant or agent. 1 It is obvious that since hospital authorities are responsible only for their servants or agents, they ca~~10t be held liable for the negli gence of surgeons, consultants or anaesthetists selected and employed by the patient himself. Professor A. L. Goodhart in an article in the Law Quarterly Review2 entitled "Hospitals and Trained Nursei" sug gests that even where a hospital is vicariously liable, it could relieve itself of that liability by a specific and appropriate exemption clause inserted in a contract between the hospital authority and the patient. But the freedom to contract oneself out of this liability can avail the hospital only as regards the other contracting party. Therefore, a written contract between a hospital authority and the father of a minor child patient, excluding the vicarious liability of the hospital for the negligence of servants and agents cannot avail the hospital in an action for negligence filed by the child against the hospital.' For a contract can bind only the parties to it and the child, not being a party to the contract, is not bound by any clause in the contract. Further, it may be mentioned that this freedom under the general law available to a hospital authority to exclude itself from vicarious liability can be taken away by statute. In India there is no such statutc. But in New Zealand there is such an Act viz., the New Zealand Hospitals and Charitable Institutions Act.
SUMMARY. (i) In 1942, in Gold's case, a hospital authority was held responsible for the negligence of a radiographer employed Ulnder a full-time contract of service; (ii) in 1947, in Collini' case, a hospital authority was held liable for the negligence of a resident house surgeon employed under a contract of service; (iii) in 1951, in Cassidy's case, a hospital authority was held liable for the negligence of a surgeon, who was a full-time Assistant Medical Officer of the hospital, and also for the negligence of a house surgeon and some members of the nursing staff of the hospital; (iv) in 1954, in Roe's case, a hospital authority was held responsible for the negligence of an anaesthetist who was a servant or agent of the hospitalS . Vicariously Liability When Authority is Empowered or is Under a Duty to Maintain Hospitals. It may be mentioned that in Higgins v. N.W.M.A.. B! it was held that where, under a particular Act of Parliament, a local government or an authority is under a duty or is empowered Higgins v. N.W.lH.A.B., (1954) 1 W.L.R. 411 at 422.
254, L.Q.R., 553
3 For further discussion of this rule of vicarious responsibility sec the next Chapter.
.; (1954) 1 W.L.R. 411. •
1
MEDICAL NEGLIGENCE AND CIVIL LIABILITY
203
to maintain hospitals for public health purposes, they would be vica riously responsible for the negligence of medical men who act on its behalf.
Part X PROOF OF NEGLIGENCE Section 1 - GENERAL OBSERVATIONS Burden of Proof. The burd~n of proving n~nce is on the party alleging it. In order t~ suc~eed in an action for negligence the elain tiff has to establish (i) ~1ere has been a want of care and skill on oN uh: the part~ the deferillant. to such an extent as to lead to a bad result and (ii) that there is a necessary connection between the negligence of
---
th~e~:~~~~~~~~~~~~~~~~~_
Extent of Proof Required. As regards the extent to which the , . plaintiff must prove his case for negligence, it can be said that he must give such evidence thaLthe cOl!rt considers it probable that the act complained of was due to the negligence of the defendant. He has ~':..~'-l:~~~~=~~~~-.!:'.':::":'~~~~:''::'I~in civil cases (e.g. in claims for negligence). As Tendolkar J. said in Amelia Flounders v. Dr.. Clement Pereira/ am not prepared to cast upon the plaintiff the burden of proving this case beyond reasonable doubt." This means that it is enough, as stated above, if the plaintiff proves such circumstances as render it probable that the defendant's conduct was negligent. If, however, the case comes within the rule that where there are two hypotheses, one involving and the other not involving the liability of the defendant, each equally consistent with the evidence, the plaintiff cannot get a judgment in his favour and the defendant is entitled to succeed. 2
Section 2
DOCTRINE OF
Res Ipsa Loquitur
'111e plaintiff is absolved from the obligation of proving negligel!..~ i~ where the rule of res ipsa loquitur applies, What is res ipsa loquitur? ';Vhat is its scope and effect? Res ipsa loquitur is a Latin expression meaning, uthe thing speaks for itself." This maxim is ap plied when it is improbable that the wrong complained of could have happened without the negligence of the defendant. A most striking lSee the judgment of the trial court dated 5th March, 1947 in Bombay High Court Suit No. 808 of 1943 and the judgment of the Court of Appeal dated 29th September, 1947 in Appeal No. 27 of 1947 in Amelia Flounders v. Dr. Clement Pereira (both unreported). SOG GU1lning v. Cooley, 281 U.S. 90 at 95.
204
MEDICAL LAW Ai\"D ETHICS Ii\" INDIA
illustration of this maxim is found in Byrne v. Boaclle. 1 In this case the plaintiff was walking along a public street past the defendant's shop when a barrel of flour fell upon him from out of an open doorway on the upper floor of the defendant's warehouse and seriously injured hm. It was held that it was prima facie obvious that the barrel could not have rolled out of the open doorway without the negligence of the defendant. Barrels could not be expected to throw themselves out of an upper storey. In the absence of any explanation on the part of the defendant, the improbability of such an accident was sufficient to justify the finding of negligence. It may be notoo that the fact of the barrel of flour falling from an open doorway was treated as prima facie evi dence of negligence. This meant that the plaintiff did not have to prove negligence but had merely to state what according to him was the act of negligence. The effect of this Ill(lXim is that ilie burden of --. . --. pro!1...,:;hifts upon the defendaii~-.Jh'!.L.,:0~_~_~~£P_~ed w1t~_Il
-.
--
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-
!
(1863) 159 E.R. 299. (19,54) 2 All E.R. 131. 3 See Percy Nesbitt v. Holt (1953) Canadian Law Reports (Supreme Court) v. 1., p. l43. 4 Referred to in (1960) British and Empire Digest, Cumulative Supplement, p. 40, item 1.3. 1
2
MEDICAL NEGLIGENCE AND CIVIL LIABILITY
205
"The plaintiff is not required to show in a case involving a scientific enquiry, where the critical evidence is within the exclusive knowledge of the defendant, how the initial negligence produced the final mistake. The failure of the surgeon to earry out a eertain clinical procedure prior to arriving at a diagnosis by which he concluded that an operation ""hich he performed was necessary may be held to be negligent in the absence of any explanation of why such procedure was not carried out." The Application of Res Ipsa Loqu.itur Rule. Let us now examine medical situations where the doctrine of res ipsa loquitur was sought to be applied. The first important reported English case in which the dochine of res ipsa loqUitur was sought to be applied in f't'lahon v. Osbome. 1 A resident surgeon peIformed an abdominal operation with· the help of an anaesthetist, a theatre sister and two nurses. The opera tion was admittedly a difficult one and, at its conclusion, the usual count of swabs was made and the surgeon was informed that the count was "vas found, as a result of a further operation about two months later, that one swab had been left under the part of the patient's liver which was close to his stomaeh. The patient died later, and it was eommon ground that his death was due to the leaving of the swab in the abdomen. In an action brought by the mother of the deceased against the surgeon for damages for negligence in the performance of the operation, the plaintiff contended that the dochine of res ipsa loquitur applied. The Court of Appeal, by a majority, held that the doctrine did apply so as to call upon the defendant to explain how the swab came to be left in the body of the patient. 2 In Cassidy's case,3 the doctrine of res ipsa loquitur was applied. The plaintiff entered a hospital for an operati5:11g!l11is)eJt ha I1 cl,which necessitated post-operational treatment. \V'hile undergoing that treat ment hc was under the care of the surgeon who performed the opera tion. At the end of the treatment it was found that his hand had been ren~~r~d useless.· --lt~vasheid that the doctrine of res ipsa loquitur applied and the onus lay on the hospital authority to prove that there had been no negligence on its part or on the part of anyone for whose acts or omissions it was liable, and that that onus had not been dis charged. The relevant allegations of negligence were there: first, that the hand was bandaged too tightly and the damage was caused thus; secondly, that no heed or no sufficient heed was paid to the plaintifF's 1 2
3
(1939) 1 All E.R. 53.5. This doctrine will be further considered in Chapter VI under the heading Swabs, Packs and .JIl(.J(("'[~" (1931) 2 K.B.
206
MEDICAL LAW AND ETHICS IN INDIA
complaint that he was suffering intense pain; thirdly, that the splint should have been loosened and the hand inspected. The third allega tion, in effect, particularised the action which should have been taken as the result of the complaints of pain. It was not disputed that the plaintiff made complaints of intense pain from the outset and through out the period of treatment. On these allegations being accepted, the court held that it was upon the defendants to show that the damage occurred without negligence on their part. The court followed the principle that where a thing is shown to be under the management of the defenda'nt or his servants and the accident is such as, in the ordi nary course, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of an ex planation by the defendants, that the accident arose out of want of care. As regards the facts, Denning L.J. said that it was enough the plaintiff to say, "I went into the hospital to be cured of two stiff fingers. I have come out with f.()llr stiff fingers and my hand is use-, less. That should not have happened if due care had been used. I Explain it if you can." This situation certainly raised a prima facie ca~e' of negligence, and the defendants had not explained how it could happen without negligence on their part. The defendants-did not call a single person to say that the injuries were consistent with due care on the part of all the members of the staff who were concerned with the treatment. The defendants did not call any expert to say that this might have happened despite all .care. The defendants had not, there fore, displaced the prima facie case made out against them and were liable in damages to the plaintiff. In Pe1'cy Nesbit v. Holt/ an action for damages was brought against the death of a patient. It was established a dental surgeon that while the surgeon was extracting a number of teeth under a general anaesthesia, the patient collapsed and died from asphyxia. It was argued on behalf of the surgeon that it had not been shown that one of the gauze sponges used ir:. the oper.ationhad lodged in the wind-pip~-d~ring that op~ration or that death was caused by that obstruction and that, even if the cause of death be taken as established, no negligence on the part of the surgeon had been show'll. It was held that ordinal]' care and prudence had not been shov.rn by the surgeon inasmuch as the surgeon overlooked the fact - especially as no count of the sponges was kept - that the slipping of a sponge into the wind-pipe might have been the cause of the ~tienfs ceasing t-;breathe and in making no effort to ascertain this, other
forJ
-'- ---
1
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________
(1953) C.L.R. (S.G) 1, p. 143.
MEDICAL NEGLIGENCE AND CIVIL LIABILITY
207
than looking into the patient's mouth and, consequently, making no at tempt to remove the obstruction; the surgeon must, therefore, be held to have been negligent. It was held that the rule of res ipsa loquittw applied in negligence cases depending upon the circumstances and it applied here. The Court came to the conclusion that sufficient proof of negligence was shown by the evidence to call upon the surgeon for an explanation. The evidence showed that the surgeon had kept no count of the sponges he had inserted into the patient's mouth and that, though the surgeon noticed the patient changing colour and almost collapsing before his eyes, he did not look into the wind-pipe to see whether a sponge had been left there. These facts, prima facie, established negli gence on the part of the dental surgeon. In Baylill v. Gringley Children's Hosp·Ual,I a six year old girl had become a cripple through the continued of ~J)l(lste.r cas! upon her left leg in spite of the constant complaint by the child's parents and grandmother that the plaster cast was too tight. The child's illness had begun in November, 1949, and the only cure was to immobilise the hip. She was tak.en to the hospital and was first put on a frarne to keep the hip still. Thereafter, she was put into a plaster cast by the matron. When the father made one of his many complaints to the matron, she replied, "Th...Js is not the first plaster J have pULon." It was obvious that after the plaster was put on, the child, who had a healthy left leg, showed visible signs of unhappiness, discomfort and pain. Having regard to the fact that the child went into the hospital with a healthy. left leg and came out a cripple, Justice Stable, who tried the case, held that it was for the defendants to satisfy him that the injuries were not caused by the negligence of any of the servants or agents for whom the defendants were responsible. The Court was of the opinion that as the child went into the hospital with a healthy left leg and came out a cripple the doctrine of res ipsa loquitur applied and the onus of proof was transferred to the defendants. In an action2 against a surgeon and an anaesthetist for negligence whilst pedorming an o}?~ra~()? on a patient, whereby the patient was severelY~ ..~~l]Egt_evidence was 'ledo~- behalf of the plaintiff that the operation took place in the operating theatre of a hospital, that the theatre was fitted with an electric radiator, the heating element of which cons.isted of wires exposed to the air which became red-hot when the current was switched on; that ether was the anaesthetic used; that while the ether was being administered the bottle containing it fell, 1 2
(1954) Lancet, 20th March, p. 619.
Paton v. Parker, Commonwealth Law Heport, 187.
208
MEDICAL LAW AND ETHICS IN INDIA
or was knocked to the Hoor and that ether fumes went to the radiator, causing a fire which bumt the plaintifFs hand. The practice in the hospital was for the theatre sister to tum the radiator on or off as she thought fit. A suggestion was made in argument that one of the nurses must have accidentally knocked the bottle from the anaesthetist's table, but no evidence was given which suported the suggestion. The plain tiff was seriously bumt whilst the ether was being administered by and under the control of the anaesthetist. The High Court of Australia, by a majority, held that an accident such as had happened does not ordi narily occur if those 1'11 control of the anaesthesia use proper care. It was for the anaesthetist to relieve himself of the responsibility and to satisfy the court that the injury to the plaintiff happened through no fault of his. The majority of the Judges held that th'e bottle of ether was in the charge of the anaesthetist and there was no explanation as to how it came to be knocked off his table onto the Hoor. Courts take the view that if a particular accident would not have happened if ciue care was taken, the onus shifts to the defendants to explain how that accident took place. In Morris v. Winsbury-White/ the defendant agreed to perform a surgical operation upon the plaintiff and to give the case his personal attention, After the operation, the plaintiff remained in the hospital and was attended by nurses and resident medical officers on the hospital's staff, During this time he was visited by the defendant some three times a week. The plaintiffs treatment involved insertion into his body of tubes and the frequent replacement of these tubes. The tubes were inserted in the first place by the defendant in the course of the opera tion, but the replacemeiits were made by the resident doctors and nurses, The plaintiff was discharged from the hospital on February 10th, 1934, and, as a -result of his condition, he again visited the defendant on March 28th, 1934. There was a dispute as to whether, on. that latter occa sion, he had called the defendant's attention to the pain he was suffering. He paid another visit to the defendant on April 11th, 1934, when the defendant's attention was pointedly dravVl1 to the plaintiff's pain. An X-ray was taken and it was discovered that there was still a portion of a tube in the plaintiffs bladder. In an action for breach of conb'act and negligence, the judge found as follows: (1) that the plaintiff did not inform the defendant on j\Jarch 28th, 1934, that he ,vas suffering pain, and (2) that the hlbe that was found in the plaintiffs bladder had not been inserted in or left there during the course of the operation. It was held that, in the circumstances, the doctrine of ms ipsa loquitur 1
(1937) 4 AU E.R. 494.
209
l\1EDICAL NEGLIGENCE AND CIVIL LIABILITY
was inapplicable. The Judge observed that the patient was not in the control or charge or power of the defendant throughout the whole period and that, therefore, the doctrine of res ipsa loquitur was quite inapplicable.
Section 3 -
EXPERT EVIDENCE
The value. of expert ~vidence is obvious .in a. cas.e \~here negligence ,. is alleged agamst a medIcal man or a medical mstItutlOln. It may be remembered that the cardinal test for determining the question of medical negligence is : whether a reasonably competent medical man would have acted in more or less the same manner in which the medical man against whom negligence is alleged had acted. It is, therefore, natural that courts of law appreciate the asistance of expert medical evidence to ascertain this point. In Hatchen v. Black/ the allegation against Dr. Black was that he negligently advisedfvfrs. Hatchen tha~ n.9 risk t.2J:~er v~~~~~v~sinvolved in an (}peration on her. Expert medical evidence was led on behalf of Dr. Black to the effect that an average wise doctor placed in the position of Dr._Jjlack would have done just what he did. All til;;'"d~iors' called as witnesses i~the case had stigg~sted that Dr. Black had acted properly. The court observed, "If medical men did not con- t demn Dr. Black, why should the jury or the court condemn Dr. Black?" l Another advantage of leading expert evidence is disclosed by a recent case. z In this case the plaintiff had to prove that the surgeon had been negligent. To do this he had to show that the surgeon had fallen below the standard expected of a reasonably competent eye sur geon. The !=,"yo__~:x:pe1j:--"'1tnesse§_.~llne(Lbyth~pJaintifLfailed to agree on the. means whereby the surgeon could have avoided cutting the sclera.Th;;- plaiI!t1ff thus failecl to show that there was only ()!lC gener(illy approved metho9. of doing the operation which ought to have been adopted and the plaintiff's action was dismissed. The Legal Cor respondent of the British Medical Journal, who reported the case, writes, "'This case demonstrates that it is advantageous not only to the standards of reputation of the profession as a whole, but also directly to individual practitioners that medical witnesses should not hesitate to give evidence in ne~ligenc~ actions. If <2.I!ll~~.Lt~e ~~;{Q~rt__ y{!.t.n~ss.esIDthis-trialf had gIven eVIdence the Court mIght pOSSibly have received the erroneous! impression that there was one generally approved practice which the defendant surgeon had failed t; adopt".
I
~;,_~~._~o-"'_~
1
3
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__
_ __
_
(1954) Th", Times, 2[1(1 July.
White v_ Board of GODemors of \Vestminster HospitaL (1961) 2 BJ\lj. 9th Decem
her, 1580; Medicine, Science and the Law, April 1962, p. 481.
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MEDICAL LAW AND ETHICS IN INDIA
In a case of medical negligence,l Lord Goddard observed, "Nor can I imagine anything more disastrous to the community than to leave to a Jury or to a Judge to lay down what it is proper to do in any particular case without the guidance of witnesses who are qualified to speak on the subject." It may be stated that, in fact, courts expect expert evi dence to be called in cases of medical negligence. In another leading case on medical negligence,2 Lord Denning pointedly remarked that expert evidence was not called in that case. He said, "They havc busied themselves in saying that this or that member of their staff was not negligent. But they have called not a single person to say that the injuries were consistent with due care on the part of aIi the members of their staff. They called some of the people who actually treated the man, namely, Dr. Fahrni, Dr. Ronaldson, and Sister Hall, each of whom protested that he was careful in his pmt; but they did not call any expert at all to say that this might happen despite all care. They have .noti therefore, displaced the p'rima facie case against them and are liable in damages to the plaintiff." It is necessary to note that in the State of Maharashtra, a mediCal! man, however qualified and however eminent, but not registered as provided by the Maharashtra Medical Practitioners' Act, 1961, cannot be allowed to give evidence at any inquest or in any COlut of law as (ill expClt witness. Section sub-clause (2) of the Maharashtra Medi cal Practitioners' Act, 1961, permits only registered medical practitioners to give evidence as experts on medicine, surgery or midvvifelY, at any inquest or in any court of la\v. It is necessary, therefore, to note who a registered medical practitioner is. A registered medical practitioner is one whose name is entered in anyone of the registers maintained under anyone of the following Acts
(1) The Maharashtra Medical Practitioner~? Act, 1961; (2) the Bombay Medical Act, 1912, or any other corresponding Jaw for the time being in force in any part of the State; the Bombay Homoeopathic and Biochemic Practitioners' Act, L959, or any other law for the time being in force in relation to the qualifications and registration of homoeopathic or bio chemic practitioners in any part of the State; (4) the Indian Medical Council Act, 19.56. The result, therefore, is that a medical man, however qualified - for example, even a very eminent surgeon from some foreign country ~ will not allowed to give evidence as an expert on medicine, surgery or midwifery at any inquest or in any court of law in the State of 1 2
Mahon v. Osborne, (939) 2 K.B. 14 at 47.
Cassi.dy v, Jfinistry of Health, (1951) 2 K,B, 343.
MEDICAL NEGLIGENCE AND CIVIL LIABILITY
211
Maha,rashtra, unless he gets himself registered under anyone of the
Acts mentioned above.
Part XI
DEFENCES
1. No Duty Owed To The Plaintiff. Negligence implies, basically, a'I'
failure to discharge thc duty of cmploying reasonable skill and care.
Therefore, the first defence available in an action for medical negli
gence could be that the medical man charged with negligence did not,
owe to the plaintiff any duty to exercise reasonable care and skill.
2. Duty Discharged According To Prevailing Standard. As the duty . which a medical man is called upon to discharge is the duty to use reasomable skill and care, it would be a proper defence to prove that the m.edk.al man charged with negHge.nc.e has !cted in accordance with the J~ndard reasonably compete~f!;ledical ~~en ..at the date_of the J alleged negligence.
}I
01
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3. Misadventure. That the alleged act of negligence was nothing more
than a case of misadventure.
4. Error Of Judgment. That the alleged act of negligence was an (;rro1'
of judgment. A~ITor ~dgment is very different from negligen£e.
5. Contributory Negligence. Contributory negligence implies that,\ though the plaintiff was negligent, the defendant rashly disregarded the..,. danger and was also negligent. In such a case, the defendant's negli-) gence does not, in the eye of the law, materially contribute to the damage which the plaintiff has suffered. In Dr. M'Callam's case,l a surgeon W!lS charged with negligence in .not rcmoving a swab from the body of a patient. The patient, sometime after the operation, complained to a nurse about pain in the vagina. The nurse examined the vagina and found a swab there. She told the patient about it. The swab was then remov,e,cY'by the nurse but, for a very 'I long 13m,e thereafter, the patient did not inform the surgeon about the swab having been left in the vagina. The first finding of the court was that, on the facts of the case, it was not the duty of the doctor to re move the swab. The court further held that, even if the surgeon had erred, the plaintiff "vas not entitled to so much as nominal damages because the plaintiff was guilty of contributOlY negligence. By her own. negligent conduct the patient had delayed remedial treat~~ent. The r6.l11t was that the surgeon did not have the opportunity of al1eviatfug /'/ ~~e resultant pain, and ill-effects s~ffered by the p~tient. 1
(1948) B,M.], July 3rd, p, 54.
212
MEDICAL LAW AND ETHICS IN INDIA
~.
1,1,
i
\1
Res ]udicata._ If a question of negligence against a doctor has alreadY been decided by" a court in a dispute between the doctor and his patient, it is not thereafter open to the patient to re-agitate the same question in another proceeding between himself and the doctor. Let us take an niustration of the application of this principle. A doctor files a suit against his patient for the recovery of his fees. TIle patient takes up the defence that he is not bound to pay the doetor's fees as the doctor had discharged his duties negligently. The COUlt which decides this dispute comes to the conclusion that the doctor was not negligent and passes a decree in favour of the doctor directing the patient to pay the doctor's fees. Thereafter, the patient files a suit for damages for gence against the doctor 2n.!~e same set of facts. In such a suit it would be a 110complete defence for the doctor to plead that the patient's suit for damages for negligence is parred by thc rule of res judicata. It is a healthy rule of law that a question once finally decided betvveen two parties . shouid not -be .aI10wea-to·be . C()lltestedagain . innanotil~r proceeding betweeIl thgs~.~rt~esl .. . .... . . .
'<
,
v
7. Limitation. There is a period of limitation prescribed by law within which a patient must bring his suit for damages for negligence against doctor. Such a suit should be brought from the date of the alleged negligcnce. If a suit is two years from the date of the alleged negligence, such a suit will be dismissed as being beyond the period of limitation. The suit which is referred to is a suit founded on tort. f If it is allegcd in any proceeding that there was a breach of duty to take care under some particular contract between a medical man and his patient, then such a suit ean be filed within three years from the date of the breaeh. The following, however, are not good defences
Jlf his
1. That there was no contractual relationship between the medical man and the patient. 2. That the medical service was rendered free of l> 3. That the medical man did not act with a bad motive." {j"
f
* See Part VII of this Chapter.
CHAPTEH VI·'
CLASSES AND INSTANCES OF MEDICAL NEGLIGENCE
Part I
INTHODUCTORY ORRERV ATIONS
Part II
ATTENDANCE AND EXAMINATION
Part III
BURNS
Part IV
CASUALTY OFFICERS
Part V
DOING AN ACT OBVIOUSLY BEYOND ONE'S Cm,,1PETENCE
Part VI
CHILDREN
Part VII
DENTISTS
Part VIII
DRUGS AND ANAESTHETICS
Part IX
FAILUHE TO KEEP ABHEAST OF ADVANCES IN :MEDICAL SCIENCE
I
214
MEDICAL LAW AND ETHICS IN INDIA
Part X
FAILURE TO COMMUNlCATE, FAILURE TO GIVE WARNING AND
INFORMATION ABOUT RISK
Part XI
HOSPITALS AND NEGLIGENCE IN NON-MEDICAL MATTEB.S
Part XII
CLINICAL JUDGMENT AND COMMON SENSE
Part XIII
INJECTIONS, SYRINGES AND NEEDLES
Part XIV
NUB.SES
Part XV
OPERATIONS
Part XVI
PRACTICES AND METHODS
Part XVII
PHAIUvIACISTS
Part XVIII
SWABS, PACKS AND SPONGES
Part XIX
VICARIOUS RESPONSIBILITIES
Part XX
WRONG DIAGNOSIS
Part XXI
X-RAY EXAl\HNATION
(
CLASSES AND INSTANCES OF MEDICAL NEGLIGENCE
215
Part I INTRODUCTORY OBSERVATIONS HIS chapter enlarges and further illustrates the, concepts of negligence discussed in the previous chapter. The decided cases mentioned here should be treated as guide-posts, indi cating the manner in which courts of law look upon situations involving has already been pointed out in the questions of medical negligence. previous chapter that questions of negligence have to be. decided not in the abstract but in the light of all the circumstances of a particular case. Therefore, it would be safe in the first instance to assume. that eve!.:l,. decided case on medicql negligence is an_ authority onlyJ~L~ particular case and should not be blindly followed as a precedent in ~~;y case bearing some resemblance to it. Further, a word about citations from I,ancet, the British Medical Journal and other medical repOlts and newspapers. These citations, as reported, are generally in the form of abbreviated notes. There is, it must be admitted, some danger in quoting them before courts of law. In Mahon v. Osborne/ the judges passed observations on the danger of a court allowing to be cited before it the report of a case in a newspaper. Of course, a case whic~ ~ci~ 12rinciple of law will be accepte~ as an~ au~hS!.rilYH fo~_!l~c1j: p.~i9.£.iple in subsequent case~. Evel1 as regards observations and opinions not having the force of law, a judge, who has to decide similar questions, will certainly pay them more than lip service and might accept them by way of guidance for deciding the case before him. Therefore, a study of particular classes and instances of medical negligence will be found fruitful. At any rate, the faults on the part of medical men, disclosed by decided cases of medical negligence, may be usefully noted by readers as sign-posts of caution or as danger signals. Thus, in this chapter, an effort has been made to present as many concrete situations as possible in which danger lurks and out of which litigation may arise so that a practitioner, in the performance of his professional duties, may easily sense situations which might present special dangers.
T
It
Part II ATTENDANCE AND EXAMINATION
(It is n~gligent for a doctor who has. undertaken to treat ~r operate upon a patlent personally to delegate 11lS duty to another WIthout the 1
(1939) :2 K.B. 14.
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MEDICAL LAW AND ETHICS IN INDIA
penmsslOn of the patient. However, the principle that a surgeon or an anaesthetist, may, in some circumstances, rely on a subordinate is recognised by the court:) In Fussell..J!. BeddarrJ!, a married woman had to undergo an opera tion for the removal of gaU-stones. The anaesthetist told the nursing sister that deeieaine would be used and instructed her to prepare the solution. The sister had the highest qualifications, had been in charge of the operating theatre for six years and every one relied upon her. She had been in charge on previous occasions when de.cicai'J}~l;>~~l l!.§.ed in the ordinary ,~~!!:~~:ng!h of O.l%~ Qn tbis oC££l.20n, however, be lieving that she ,was carrying out the anaesthetist's oral instructions, she p_re_~~~~s..£lutio~! 1% apd the patient died of the overdose. The husband sued the anaesthetist for damages. The learned Judge said that the real question was whether the anaesthetist owed a duty to do more than state clearly to a responsible and efficient sister the anaesthetic he required. All who had taken PaIt in the operation, he said, had worked as a team. If a sister is known to be inexperienced, it is no doubt the duty of the surgeon aIld the anaesthetist to take care to see that she is carrying out, or is competent to carry out, the duties assigned to her, and they might have to do more for themselves in the way of supervision than they would if she were experienced. 'When, however, they are assisted by a sister upon whom every reliance can be placed, it is sufficient to say, as the anaesthetist said in this case, "I want the solution such as :!vir. 1.1 uses for particular form of 'nerve block'; splanchnic nerve block." The Judge could not find, in the circum stances, that the anaesthetist or the sister had been negligent. He said that an unfortunate mistake had, been made and gave judgrnent in favour of the anaesthetist. The principle to be deduced from this case is that a medical man may in some circumstances rely upon a subordi nate. As a general rule, however, it should be clearly understood that 1 it is negligence on the part of a doctor not to give personal attention to a patient when expressly or impliedly he has promised to give such I personal attention. In Morris v. lVinsbury 1Vhite} the doctor had agreed to perform a surgical operation upon the plaintiff and to give the case his personal attention. The Judge said, "'Vhat the doctor had plcdged him self to do was to pedorm the operation himself and to give the necessary supervision thereafter until the discharge of the patient, that is, he did expressly or impliedly intimate that the case would have his
' l
1
2
(1942) B.M.]. II, p. 411. (1937) 4 All E.R. 494.
i
I
CLASSES AND INSTANCES OF MEDICAL NEGLIGENCE
217
personal attention." In the opinion of the Court, it was immateIial whether this was treated as a special contract or not, because, in its view, it merely emphasised all the necessary ingredients of the ordinary case where a surgeon is retained to perform an operation 0f this kind. The operation was for the removal of a prostate gland. The retainer involved that the doctor would perform the operation personally and that he would pay such subsequent visits as were necessary in an ordi nary case. The Judge further said that this view was on the footing that the case was a normal one and that he expressed no opinion as to a situation where, after the operation, there was some quite abnormal condition which involved a continuous and lengthy stay in the hospitaL In the normal case, the obligation to pay such visits as were necessary after the operation was to see how the 'patient was progressing under the care of the nurses in the hospital and of the Resident Medical Officer there. On the facts of the case it was held that the doctor was not negligent. It may be noted that the learned Judge thought that the agreement between the parties was not something different from what would be the duty on the part of a surgeon where, without any express contract, he is retained to perform an operation of that kind. It may be stated that even wit~Ql!! a.n. express contract the surgeon is ;eq~li:redto'p~;;~;~~'ope~ili~n h~ undertak~nto carry out per 's~nallyancrmake such 'subsequent visits a~ ~arenomlaITynecessary. Th~ principle thara£ter~;~~pe~a s~-;ge~~ is~~;dTr~arily" ex pected, even without any special contract to that eHect, to attend to the patient, at least for a reasonable time, is also illustrated by Corder v. Banks. 1 In this case, the patient consulted a surgeon concerning an ~abnormal condition below her eyes. Considering the plaintiH's means the surgeon agreed to perlorm an operation for the removal of excess fat from the plaintiff's eye-lid at a reduced fee of 10 guineas under a local anaesthetic with the plaintiH attending as an out-patient only. In such a case bleeding could occur during the first 48 hours after the operation and, if it were not properly attended to, irreparable damage might result. An emergency after the operation did arise in the fonn of substantial bleeding from the stitches within the first 48 hours. Although the doctor had given to the patient proper directions regarding action in such emergency and altbough proper notification of the bleeding was sent to the address given by the doctor, it was not received by him owing either to the failure to keep his telephone adequately covered or to the failure of those for whom he was responsible to inform him of the message. T~ court held that the docto~s careless about the after 1
(I960) B.M.]. 30th April, p. 1370.
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MEDICAL LAW AND ETHICS IN INDIA
care. It was further held that if a patient was allowed to go home after an operation, proper directions should be given to him and the surgeon, or a properly qualified substitute, should remain available to deal with an emergency. Moreover, if the surgeon was relying on th~ !eleJ2hone as. a means where~y the patient could inf()~ of~a.:!l e.~ergency, it was essential that the. telephone should b~_~t
I
~
(1901) 3 F. 859; :34, English and Empire Digest, (19,51) B.MJ. 8th September, p. 616.
67V,
CLASSf":S AND INSTANCES OF MEDICAL NEGLIGENCE
219
tiff claimed that the hospital was negligent in that its nurses did not provide sufficient supervision to prevent the accident and that side boards or a strait-jacket should have been employed. It was held that the use of sideboards or a strait-jacket would have entailed grave risks of injury or death to the plaintiff and that to make certain that the plaintiff did not try to get out of bed would have required the constant attendance of two people at the bedside. To require such attention would be imposing an undue burden on the hospital. As it was, the nurses looked in frequently, the plaintiff's door was kept open at all times and she was provided with a buzzer to summon attention at any time. The nurses were justified in believing that the supervision given was satisfactory to the attending doctor and received no further in structions from him. 'TIle latter in turn did not consider that there was any risk of the plaintiff deliberately trying to get up. Ihep!~<;tice . ~n fact followed was a standard and approved practice and th~l1gspjt1!l was, ~lofliable for negligence merely because its nurses failed to make use ~fevery precaution which ingenuity might. suggest. l In another Canadian case it was held that though the COUlt must{ insist on the. hospital exercising care a.t evelY stage, nevertheless the court should have regard for the conditions in which hospitals and doc .tors have to work and it must not condemn as caused by negligence an ~occurrence ,which was only a mere acc41ent,2 A_hospit~:::.iJt!l2t heJleld liabl~~egligeIl~(::)~wl~Sg the evideI\QQ shows that it . a(';ted in. accord_a1}cg .with a general and__ ::!I?J?roved_..:pracNor will a doctor be held liable for the suicide of a patient where there is no evidence to suggest that the deceased's symptoms involved a danger to himself or to anyone else. In Stadel v. Albertson} the de ceased suffered impaired memOlY and was mentally confused at times after having been thrown from a hayrick and rendered unconscious. Subsequently he went to the psychiatric wing of a hospital for treat ment and the doctors concluded that he was suffering from some organic trouble (probably a brain lesion or a brain tumour), rather than from an emotional disorder. It was felt necessary to remove him to the surgical wing to continue the examination and, after some tests on the deceased, the doctor in charge stated that he could go home. The deceased was unwilling to go home and shortly aftenvards he jumped from the hospital window and died of his injuries. It was held that Robinson v_ Amwpelis General Hospital & Kerr (19.56) 'j, D.L.R. (2nd) 421-- CAN; British and Empire Digest (19611, vol. 34 item XXXV. 2 Cahoon v. Edmonton Hospital Board (1957), 2~) W.\V.R. 131-CAN; British and Empire Digest (1961). vol. 34, item 86 XXXVII. (1954) 2 D.L.R. 328--CAN; British and Empire Digest Supplement (1961). vol. 34, item 86, xxxi.
1
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MEDICAL LAW AND ETHICS IN INDIA
none of the deceased's symptoms known to the doctor or the hospital suggested suicidal tendencies and, although there was evidence of a commotion created by the deceased on some previous night, this did not indicate that the deceased should have been watched more closely or restrained. Gn Ball v. Howard} an action for negligence was successfully main tained against a medical man on two grounds, viz. (i) that he had not attended at once to the patient's call and (ii) that he went away without leaving proper .instructions as to what was to be done. In this case the plaintiff complained that he suffered as a result of negligence in the performance of an operation for appendicitis. After the operation some complications set in and the patient requested the surgeon to call an other surgeon for second opinion. But the defendant surgeon said that that was not necessary. Further, he went away without leaving proper instructions as to what was to be done. The relatives called in another surgeon who thought it necessary to perform a second operation. After the second operation the patient made a good recovery. The court held that the conduct of the £rst surgeon was negligent on two grounds, viz. (i) that he had not attended with reasonable promptness the patient's call and (ii) that he went without leaving proper instructions as to what was to be done, particularly since he declined to call another surgeon for a second opinion. !Eo,m. this case, medical men may take heed that .they ought to attend to a call with reasonable promptness and that, wh~rever necessary, they ought to leave proper instructions after the erati It is obvious that the question as to whether a doctor ought to attend to a call immediately and ought to carry out personal examina tion of the patient depends upon the facts of each case. A man who was discharged from the army suffered from chronic rheumatism for which his doctor treated bim. Tbe diagnosis was con£rmed by various specialists. One day be returned home from work feeling very ill, and late in tbe evening he collapsed. His wife telephoned to the doctor and asked him to come home, but the doctor did not do so, and pres cribed sedatives. In the early morning sbe again caned for the eloctor who came and ananged for the patient to go to the hospital where he was operated upon for a perforated gastric ulcer. He died the following morning. His wife sued the doctor for negligence. In defense the doctor gave evidence that at no time had the patient ever complained of stomach pain, but rather of pains on the shoulders, legs, arms and lumbar regions. He had understood the wife to say over the telephone
.2P ;-0----·· ._-_._.
1
(Hl24) Lancet, 2nd Fel,ruary, p. 253.
CLASSES AND INSTANCES OF MEDICAL NEGLIGENCE
221
that the husband was suffering from the usual pains; she had not men tioned the stomach. Her lawyer argued that the doctor had been unskilful in not attending the patient when he was first summoned. Mr. Justice Hilbmy said, in giving judgment, that he was satisfied that there had never been any complaint of abdominal pain. It would, he added, h ~_shockingthing if, iJ;l the circumstances, the co~~ to hold that a he did not rush round
Part III BURNS ~negations of negligence~re co:!->stantly made with regard to ~bUI'l}S
r.~ceived by patients e!~~,~!.._~uringthe course oLan_ operation or ~ wh~ a hot-Vv'ater bottle isapplied or (3) when ~~~:nent_~uch
In a case decided in 1952, Clarke v. Worboys,2 an English COUlt of
res
Appeal took the view that the :~e of Tpsa~!!~_t!!r.t~ when at patient received a severe burn during electric coagulation treatment. J In this case, as during an operation extensive bleeding was to be ex pected, electric-coagulation was applied. The treatment required the passing of a high frequency altcrnating current through thc body of the patient, and to enable the current to pass a pad was placed on her right buttock. It was afterwards found that a severe burn had been caused on that buttock which caused permanent injUly to the muscle. The trial judge was not satisfied that negligence had been proved and thought that the injury might have been due to several factors including a pos sible personal idiosyncracy of the patient. He, therefore, gave judgment for the defendant. The Appeal Court held that it "vas a case of res ipsa loquitur. The accident was one of a kind which did not normally happen if reasonable care was used. The use of the buttock position for such a pad was very common and the evidence was that if the apparatus was applied properly, burning was unknown. No one suggested any negli gence by the surgeon. The apparatus used was under the management of the hospital staff. It was generally quite and accidents did not happen if it was properly used. The defendants not been able to give any satisfactory explanation as to why the accident happened. The hospital authority was, therefore, held guilty of negligence.
2
He: Dr. Jolin Hernpseed-(950) British Aledical Journal, August 12, p. 420. (1952), The Times, 18th 1\farch.
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:MEDICAL LAW AND ETHICS IN INDIA
In Paton v. Parker,1 the High Court of Australia held an anaesthetist} liable for negligence. In this case while eth~r was being administered,. the bottle containing it fell or was knocked to the floor. The ether fumes went into the radiator causing a fire which burnt the plaintiffs hands. The court, by a majority, held that the circumstances of the unexplained accident afforded evidence of negligence. The court held that an accident, such as the one that happened, does not or~inari1y occur if those in control of the anaesthetic use proper care. It may be mentioned that in cases of burns, \Yhenever negligence is.. held to have been proved, the £ourt in the majority of ~!i:!§-1tE'p}~;J ~?e rule of re8iJ!.80:~ui(ur. To state it in other words, courts have held, whenever burns are said to have been caused by negligence, that the hums could not have oceurred but through the negligenee of the doctors, the nurses or the anaesthetists concerned, unless these persons explained the accident. In cases of bums, therefore, the court takes the view that injuries by burns do not usually happen if those \vho are in eharge use proper care and the burden of proving that they were not negligent is cast upon them. I~may b~ recalled that, ordinarily-, t~e initial burden of proving n!.glig~~~~~,911~~~e plair~tiff.. In another case, Brown v. Staffordshire County Council: the court upheld the contention of the plaintiff that the defendants had been negligent in respeet Df bums received by the patient when a hot-water bottle was applied to his leg. The plaintiff was working in a butcher's shop when his knife slipped and pierced his groin. He fainted but remembered being in the ambulance with a burning pain in his legs. He was taken to the hospital where he regained consciousness and where, after an operation, his right leg was bandaged. Three days latel a burn was found on his left leg. He had to undergo treatment for the bum for six months. The ambulance-driver said that hot-water bottles were applied to the plaintiff in the ambulanee. Giving judgment for the plaintiff, Nfr. Justice Hillbury said that there was no doubt that one of the hot-water bottles applied was so hot as to actually burn the plaintiff. \Vhile he was satisfied that the bottle was covered, the judge added, if a hot-water bottle seriously bumt a patient unable to look after himself, it was impossible to say that proper care had been taken. In 1926, in Nyberg v. Provost Municipal Hospital Board,S the hospital' was held liable for a nurse who allowed an unconscious patient to be 1 bumt by a hot-water bottle. 1 2 3
(1942), 65 GL.R. 187. (1955) British Medical Jot/mal, 2nd;\-farch. (l926) 2 D.L.R. 56.'3.
CLASSES AND INSTANCES OF MEDICAL NEGLIGENCE
22.'3
In Gold v. Essex\ the plaintiff was treated by a competent radio grapher who was employed by the defendant. While the plaintiff was undergoing treatment her face was covered with a lead-lined rubber doth which protected all but the affected part of her face. This hap pened on about five occasions. However, as there was not much improve ment, the plaintiff was given further treatment by the same radiographer and, on this occasion, he covered the plaintiff's face only with a piece of lint. As a: result the plaintiff's face was permanently disfigured. It was held that that was due to the radiographer's negligence. ~ill~..Jeg?rd to children anc~. hot::-water bottles, nurses and ._
_.
1
~
(1942) 2 K.B. 293.
(19.5.5) The Times, 29th
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authority ,vas held liable was that a hot-water bottle was given to a patient who, because of unconsciousness, was incapable of getting rid of the bottle although it burnt his leg. In a New Zealand case decided in 193,5, Logan v. VVaitaki Hospital Board,! while a nurse was administering a radiant-heat cradle, the patient was injured. The court said that careful watching is required especially when a patient's consdousness might be expected to be re turning as the patient is likely to be restless when coming out of an anaesthetic. In this case, the patient was left for intervals of about 20 minutes to half-an-hour without observation and, during an unob served period, the patient was burnt on the knee. It was held that the injury would not have occurred had the nurse in charge properly applied her professional skill, carefully replacing the cradle each time it was removed and making observations during the intervals. The court remarked that in the exercise of proper professional judgment, the nurse should have made proper observations and anticipated some movement by the patient. The nurse had failed in that duty. The court held that the patient having received bums during the applica tion of treatment in the above circumstances, the nurse was negligent. The court applied the rule of res ipsa loquitur. In another case decided by a New Zealand Court of Appeal, Ingram .1) v. Fitzgerald/ the body of a woman was burnt through being painted with iodized phenol instead of tincture of iodine. As the wrong pre paration had been applied to the patient's body resulting in severe burns it was held that the nurse who had applied the wrong preparation was negligent.
Part IV CASUALTY OFFICERS
On
AfcCormack v. Redpath Bmwn & Co.," Mr. Justice Paull, ill spite of his sympathy for the doctor and in spite of his emphatic opinion that the Casualty Officer against whom al1 action for negligence was brought was a competent and very careful doctor, held that the Casualty Offieer was negligent because he had fallen below the standard of reason~ able care. In this case the plaintiff was hit on the head by a spanncr, weighing four to nve Ibs., whieh \vasaccHentaiTy dropped from a height of about Rftv feet bv- a fcHow workman. He was taken to the Casualty , /
1
(1935) N.Z.L.H. 385.
2
(1936) 2 British Medical Journal p. 1221.
(1961) Lancet 8th April, p. 763.
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CLASSES AND INSTANCES OF MEDICAL NEGLIGENCE
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Department of a near by hospital where the wound was cleaned, Ulree or four stitches were put in, and he was sent home. He subsequently suffered from headache and dizzi:rless and, sometime thereafter, a -. .. depressed fracture of the skull was diagnosed and X-rays showed a hole 74 to 7f inch in diameter in the skull and a piece of bone which had been forced into the brain itself. Further complications followed and an operation had to be performed. The~court-~eld-tf1at the Casualty to have the plairltiff X-rayed and to find Officer had failed in his the hole by physical examination. The court said that the burden of work put upon the Casualty Officer was such that it was not surprising that a young doctor should fail to measure up to the standard of reason able care. Casualty Officers were usually young mcn and it was im portant both for their O\\1n sake and for the sake of the patients that they were not over-burdened with work. Evidence had been given that if a Casualty Officer sent too many cascs for X-rays, there would be complaints from that department and, though he could call for assistance from other doctors, a report on any Casualty Officer that he was unwilling to take responsibility or could not cope with the work would be damning if another post was sought. The court made, how ever, two criticisms of the doctor: (i) that he had 110 X-ray taken; and (ii) that he did not discover the hole'" by physical examination. The Casu~lty Officer waS therefore held to have been negligent) -
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Part V DOING AN ACT OBVIOUSLY BEYOND ONE'S COtvfPETENCE
l
It is obvious that a surgeon just qualified cannot expect to perform difficult operatio!1...J:equiring matllred experience-anCIjllGgment. If he attempts such an operation wit~~there qcing-;~~;ergenc,y, and if he fails in his attempt, prima facie he will be held guilty of negligence. In a Canadian case, Fraser v. Vancouver General I1ospital,I after a motor accident a patient was X-rayed. The Casualty Officer, who under- \ took to interpret the X-ray film without adequate competence and with out taking the opinion of a~~xpert ~acliographer, opined that the neck was not broken. The evidence w~sthatif m~-expertraill6gr:1pher had seen the X-ray film he would have diagnosed a broken neck. In the circumstances the Casualty Officer was held negligent. If an unqualified practitioner, \vho does not give an indication to the patient that he is an unqualified person, undeIiakes to cure a disease .Cl
1
(1952) 2 S.C.R 36.
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MEDICAL LAW AND ETHICS IN INDIA
and causes injury to the patient, he is prima: facie guilty of negligence.
In Rex v. Bateman, l the court said, "It is not the business of an unqualified\ man to pretend or profess or promise to cure a discase which he had not the adequate skill to treat, or to which he cannot give such care as the case demands. It will othen'lise be disastrous if a person un qualified and untrained and inexperienced to treat or advise an invalid, were permitted to do so without competence, skill, knowledge and ex perience at the risk and consequence of the invalid; for to expect of an I unqualified man to show less skill and care is to throw an invalid at ~ the mercy of a cruel man." In Payne v. St. Helier C.H.M.C. 2, a man who had been kicked in the abdomen by a horse was examined by a Casualty Officer. He observ ed and recorded in the notes a bruise as large as the. palm of a hand in the right iliac fossa. He recorded also that there was no sign of body or visceral injury. He sent the patient home to go to bed and to call in his own doctor. Some days later the injured man was re-admitted to the hospital as he became actually ill. He was immediately operated upon and it was found that his right colon was injured and he had developed peritonitis. Soon after the operation he died. The court held that in the circumstances of that case it was wholly unjustifiable on the part of the Casualty Officer to send the man home and not to detain him for examination by a consultant. It was reasonable to conclude that if the man had been seen by the consultant, a timely operation would ha~been performed and the deceased, in all probability, would have survived.
Part VI CHILDREN Liability in negligence for failure to discharge duties towards children may arise out of medical as well as non-medical situations. As regards duties towards a child patient in a non-medical matter, it was held in Newnham v. Rochester Has-pital BoarcP that the <;l.~ o~d by a bospital to a chik~l!J§ tha.:L2f. ap!:!1.dent_J?~!. The hospital was held negligent in allo\ving a child of seven to be unattended near a \vindow from which he fell out and received injuries. In Cravestock v. Lewisham Hospital; the court followed the prin ciples laid down by Lord Justice Denning in Cox v. Cal'shalton Croup (1925) (195;3) (1936) '(1955) 1
2 3
94 L.J.K.B. 791.
British lvledical Journal, 17th Jan. p. 166.
The Times, 28th February.
The Times, 27th May.
CLASSES AND INSTANCES OF MEDICAL NEGLIGENCE
227
Hospital M.C. 1 In Gravestock's case, a child of nine years of age, who was a patient in a hospital, ran down the ward, swung on the doors, and tripped on a stud and suffered injuries. The court held that in the_ present case the dl~ <;!L~~,hospital ..was that of which might be compared with that of an ordinary prudent parent. Applying this test it was held that what the child did in a moment of high spirits could not render the hospital liable. The court observed that there was no negligence and that it was .'!..~se of misadventure. To summarise, in non-medical matters, the duty of the hospital is no higher than that of a school-master which duty again has to be equated to that of an ordinary prudent parent. In medical matters, the duty which a hospital owes towards a child is such duty as would normally be expected from ~competent hospitaL, It may be recalled that liability for negligence arises not merely as a matter of breach of contract but also independently of contract. Further, even if there is no contractual relationship between the medical man and the patient, the medical man will be liable for negligence if he has committed a breach of duty resulting in injury. l.herefore, ~ if a medical man attends to a child under a contract with the father, ~ medical man can be held liable on the action of the child if in treat J!11Lor .operating upon the child !he medical ITlan has been-negligentl and his negligence has injured the child.
Part VII DENTISTS \Ve will now consider the situations in which, in decided cases~ actions for negligence were brought against de11tists. In Fish v. Kapur/ an action for damages for negligence was brought against a dentist by a patient who illleged that in extracting a wisdom tooth, the dentist had left part of the root of the tooth in her jaw and had fractured the jaw. Tl~~~~~ineyf res ipsa loquitur w~.~ed unsuccessh.:!!y_by tl}£.plaintiff. The Judge said, "All I have in the shape of evidence of negligence in the operation of extracting the tooth, if I have anything at all, is that, after the extraction, there was a frachlre of the jaw. I am asked by the plaintifFs counsel to say that, where YOll have a qualified dentist, who extracts a tooth, and after that extraction, the jaw is found to be frachlred, that of itself is prima facie evidence of negligence on the part of the dentist. In other words, it is sought 1
2
(1955) The Times, 29th J\Iarch. For the facts of this case, see Chapter VI, Part III. (1948), 2 All KR. 176.
~lEDICAL
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to apply to a case of this SOlt the doctrine of res ipsa loquitur." The teamed Judge referred to the fact that there had been many cases in which actions had been brought against dentists for fraetures occasioned in the course of the extraction of the teeth; but that no case had been cited to him where any court had held that where fracture of the jaw was found after a tooth had been extracted, that by itself was prima facie evidenee of negligenee. In faet, in an unreported ease, Warner v. Payne (decided in England on 15th April, 1935), it was held that the r::~ fact!h3..Lthe jaw was fractured in the ~~ld !>L~~~ no evidence at all of negli@~w!!~Uhe dentist. That statement was accepted as a correct statement of law in Kapur's case. A doctor of medicine and a dental surgeon called by plaintiff in Kapurs case had expressed the view that it was possible to fracture a jaw during an extraction without any negligenee and a fracture may oecur without any fault on the part of the dentist, and equally the dentist may leave the root of the tooth in without anx blame attaehing to him. In Game1' v. MorrellI, the English Court of Appeal held that when, -during the course of extraction of a patientS tooth, the patient s\;ygllowe£! a throat pack inserted in his mouth and, in eonsequence, d~ a~ia that prim~~!~lished negligence. The court held that the occurrence of such an aceident ealled for an explanation .by the dentist and the explanation offered had largely broken down. Lord Denning said, "The facts of the ease called loudly for an explanation by the defendant. The accident was one which could and should have been avoided; and the fact that a similar accident had never happened before was really against the defendant." Similarly, in JYesbitt v. Holt/ t~ourt of Canada applied_ the doctrine of T!i§. ifiSg-Zoqul!ul' ~ a sponge, inserted. in the ELouthQllrir~_~~~_!i.on~_()IJ:e.~t,h of a patient, sEQ.1.~into~..!11e~~i!l~.,:l)iI2~ and caused the death of the patient. The court held that ordinary care and prudence had not been shown by the dentist. Sometime after the insertion of the sponge the patient showed considerable difficulty in breathing and soon ceased to breathe. The dentist overlooked the fact that the sponge in the wind-pipe lliight have been the cause of the patient ceasing to breathe and made no effOlt to asceltain this other than looking into the patients mouth and consequently made no attempt to remove the obstruction. The comt held that sufficient canse had been shovm by the plaintiff to call upon the defendant for an explanation. ~
1
]95:)) The Times, 31st Octoher. 1 S.C.R, 143.
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CLASSES AND H,STANCES OF rvIEDICAL NEGLIGENCE
229
In an unsuccessful claim against a dentist, \Varren v. Greig and 'White\ a dentist had in one operation extracted all of his patient's twenty-eight teeth. During the extraetion, a qualified physician re mained in attendanee. The physician himself administered the anaes~ thetic. The actual extraetion occupied about three to four minutes and the patient was under the anaesthetic for ten minutes altogether. Initial bleeding was heavy for ten to fifteen minutes. Efforts were then made by the doctor to stop the bleeding but the bleeding continued. Even tually, the doctor became convinced that there was a hemophilic tend ency. The patient was removed to hospital where hc died within twenty-four hours. The Judge who tried the action said that serious as a mass extraction was, apart from the inevitable pain and discomfort, he thought the patient, if in ordinary health, would not have dicd and would probably have been alive today in much better health. -YYl}en ~<1~en_tt~L.:::,as acting in conjllEction with a docto.!. it was dentist's c!~l~~Q~er th.~~eneral J:!.ealth. of th~e.:_.. .h..~:'~';""~~-'-"~:--arl.~Q.r:tQgnat~Q!lgi.ti9l.l:.. of If the dentist was acting alone,,, he might be wise in some cases to demand medical advice. There was no case of negligence established against the dentist. physi ciem was not held negligent on the ground that he was not given previous history of bleeding and there were no signs indicating the presence of myeloid leukemia, which was disclosed on post-morte~ examination. A question might arise as to whether a dentist is entitled to extract more teeth than consented to exprcssly or impliedly by the patient. It would be fit to assume that a he were extract even a tooth In the case O'Shea v. Moyce," the evidence showed that the plaintiff had consulted the dentist and the dentist had recommended that all her sixteen upper teeth and two of her lower teeth should be extracted. The patient had been conSiderably upset and had asked whether all needed to come out and had been told that by having them out she would save fuss arId bother later. 'When she came for the extraction, the dentist took out eleven teeth. At a later visit, the patient was anresthetised and all the teeth on the right side of her lower jaw were removed. After the extraction, the. dentist told her that the teeth ex tracted were pyorrhoeic and that he had discovered the disease while he \vas extracting. The doctor called by the plaintiff said that there was no trace of pyorrhoea in the upper socket. giving judgment, the court said that there could be no jllstification for taking out the rjght 1
2
(1935), Lancet.
(1!);36), Lancet,
JUlK'.
230
MEDICAL LAW AND ETHICS· IN INDIA
lower teeth; the dentist had ample opportunity to conclude that they should come out and to consult with the patient or her mother before hand. He might have waited until she recovered consciousness. The Judge, therefore, held the dentist to have been negligent and awarded damages to the plaintiff. In Parmley v. Parmley and Yule,l a dentist was held liable for ex- "\ tracting several teeth without proper instructions from the patient. He was held liable for assault on the ground that he had no proper 1 instructions on which to base his decision involving the extraction of) so many teeth. In O'Neill v. Kelly2 it was held that a woman who, in the course of having a tooth extracted, sustained a frachlred jaw-bone had not made out a case of negligence against the dentist. Expert evidence was given for the patient that X-rays of the frachlre were consistent with the theory that the elevator used for extracting the tooth had been applied in the wrong place or with excessive force. For the defendant, however, it was said by an expert that one would have expected a vertical fracture rather than the horizontal one which had occurred if this were the case, and that the patient probably moved as the dentist was about to rotate the elevator. Evidence ,vas given by the defendant that the woman had been very jumpy in the chair and that his assistant had to hold the woman's head dovill1. The Judge held that the patient had moved her head at the crucial moment. He had no doubt that the dentist had acted as a competent and careful dentist throughout and the claim in negligence failed.
I
Part VIn DRUGS AND ANAESTHETICS T~.giY~~_Cltient an overdose of. mecli~iIlQ_which_j!1jures him. is
~!l~aC:L2Lr;~gliR~!1_~!-Jn· Smith v. Bright-;;n & L~~~es·H~;= pitaf"AI anagement C o;nnittee, a doctor ordered. a course of thirty in jections of streptomycin for a hospital patient. The patient was in fact given thirty-four injections by the ward sister and, as a result of that treatment, the patient permanently lost her sense of balance. The court held that the ward sister was responsible for the administration of the extra injections, that the extra injections were the cause of the patient's injuries, and that, s~_~ si.ster. should have foreseen that d~e p rima ff}:9i:§
1 2 3
(1945) S.C.R. 635 (a Canadian case). (1962) M etlicille, Science and the Law, ApriL (1958), The Times, 2nd May.
CLASSES AND IKSTANCES OF MEDICAL NEGLIGEKCE
231
migh~~ ensue from an -::-o~ve:"~rd_.o_s~e".__ o_f_--=_-.::.--:---:-- ~l~ligence was held ~ have been proved and the to In Strang ways-Lesmere v. Clayton, two nurses tions and administered to a patient by rectum a dose of 6 ounces of paraldehyde instead of 6 drachms with the result that the patient died. On the bottle containing the paraldehyde the ordinary dose was stated to be half to two drachms by mouth, and the nurse who administered it stated that she knew that the dose by rectum would be at the most three times as much. The dose was not checked by the sister in charge or her deputy though this was the practice in the hospitaL It was held that both the nurses were negligent. As the German poet, Goethe, 6aid, "There is no such thing as poison, it all depends on the dose." In an American case, 2 a "physician ,was held to be negligent for injur~s caused by his. havin~~l!~glig~ntlY-J.:!!!.tjllto the . pl.
1 (19,36) I All England Report p. 484.
274, Lawyers' Editio:1, 720-281, U.S. 90.
"The Greenwich and Deptford H.M.C. case, (1951) B.M.J. 4th August, p. 305.
4 Dr. Carl \Vasmeth's "Anaesthesia and Law" and Dr. Keating's "Anaesthetic Acci
dents." 5
(1959), The Times, 5th February.
232
J..tEDICAL LAW AND ETHICS IN INDIA
mented by light general anaesthesia. No complaint was made as to the manner in which the anaesthetic was administered but it was alleged that the consultant anaesthetist who had decided on this form of anaesthesia was negligent in choosing spinal anaesthesia for an apparently uncompli cated cholecystectomy to be perlonned upon a woman of the plaintiffs age and condition, having regard to the known danger of permanent neu rological damage being caused. After hearing the evidence of eminent anaesthetists on this contention, Mr. Justice Barry gave judgment for the defendant. In the course of his judgment he said, "The courts could do no greater disservice to the community, or to the advancement of medi cal science, than to place the hall-mark of legality upon one form of treatment as opposed to another when there was a difference of infoD11cd medical opinion as to their merit". Some highly informed medical practitioners held the view that the risks jnvolved in the use ofspirial anaesthesia could never be justified; others justified the use of spinal anaesthetics for certain operations but not for those such as the removal of the gall-bladder; and there were yet others who denied the possi bility of neurological damage in the absence of some contamination of the dmg used. The court found that in certain very rare cases a spinal anaesthetic might damage the nerve roots in the spine even in the absenee of any failure in technique. It was clear that every form of anaesthasia involved some degree of risk and this was certainly so in the case of the alternative method based on the use of muscle-relaxant dmgs. The court further held that it would not be difficult to find that on balance it might have been better for this operation to have been perlormed under one of the relaxant dmgs. But it was impossible to hold that the anaesthetist's decision was a negligent one; it was one which could have been made by a competent and properly informed anaesthetist exercising a proper degree of skill and care. Of course, the peculiar condition of the patient may well have something substantial to do with an adverse effect caused to a patient as a result of the administration of a drug, medicine or anaesthetic. AS was said in an old English case, Ilancke v. Ilooper\ a practititioner is l not liable if, owing only to a peculiarity or variation in the patient's condition, which the practitioner was not negligent in failing to discover,. 1 the treatment which he prescribes eventually tums out to be injurious. I Therefore, if an anaesthetic or drug or medicine would not norrnally cause injury, it is not an act of negligence if the administration of it is harmful to a particular patient on account of his peculiar condition; which he who administers it was not negligent in failing to discover. It
1
:: (1835) 7, C. &: P. 81.
CLASSES AND INSTANCES OF MEDICAL NEGLIGENCE
233
wOlild, however, be an act of negligence if sueh examination, as ought to have been earned out but in fact was not carried out, would have revealed that the administration of the nonnally harmless dmg would be hannf1l1 to the particular patient. Let us examine further cases in which allegations of negligence have been made in eonnection with the administration of anaesthetics. (!n Collins v. Hertfordshire County Council\ a widow successfully filed a claim for damages on the ground that her husband died owing to failure on the part of the hospital authorities to exercise reasonable care in giving an injection. The eharge was that a member of the hos pital staff iniected into her husband, as a loeal anaesthetic, what \Vas, in fact, a letha} dose of cocaine. The hospital had a resident house surgeon who was a final year student, not a qualified medical practi tioner. The resident house surgeon telephoned the surgeon to ascertain what were his special instmctions with regard to the operation of one Mr. Collins. The surgeon gave his directions at the other end ·of the telephone; the resident house surgeon had a note book in front of her and she took down what she thought were the directions. The surgeon ordered . cocaine with 1--->2'0,000 adrenaline. The resident house surgeon misheard the message. She wrote down in her book, "100 cc. 1% cocaine" and she added to that, "adrenaline". The resident house the surgeon then ~vent to the hospital phannaeist. She did not phannacist any written preseription for the preparation of the required solution. She told the phannacist by word of mouth to make up 1% cocaine, and she asked him what was the usual quantity adrenaline to bc added. The pharmacist said that it was 1 in 20,000. He, therefore, prepared 100 cc. of 1% cocaine with 1 in 20,000 adrenaline and labelled it so on the flask. In the theatre, before the operation, the acting theatre sister compared what was written on the slip of paper by the resident house surgeon with the label on the flask. The sister thereafter Rlled the syringe \"rith the solution and handed it to the surgeon when he asked for the anaesthetic. The surgeon iniected 80 ce. of this mixture, killing the patient. It was held that the hospital was liable for following a dangerous and negligent system) In Jones v. Md:(.chester Corporation,2 it was hcld that there was negligence in the administration of an anaesthetic. In this case, the doctor had qualified in 1949 and the patient's death occurred in January, 19.50. The patient had been brought in suffering from very severe facial burns and the doctor and a senior colleague decided to dress the bums 1
(1947) 1 K.B . .598.
::: (I95:!-) :2
0.13.
852.
234
MEDICAL LAW AND ETHICS IN INDIA
after administering an anaesthetic. They first used gas and oxygen when invariably a mask is placed over the patient's face. This made the dressing difficult ~o the doctor injected 10 cubic centimetres of pen tothal intravenously in two shots with a space of some seconds in between. As the patient was already partly anaesthetised, the usual pace of his responses by 'making him count out loud was not practicable. The patient died almost immediately. The. court felt no difficulty in holding the recently qualified doctor negligent. The court had no hesitation in holding that there was negligence inasmuch as the patient was given a full dose of pentothal despite the fact that the patient was and without a proper shldy already unconscious and that too rapidly ,, 3 of the patient's condition. Jones case al?p illustrates -the d(mger of permitting inexperienced medical men to' discharge duties requiring mature experience. In Roe v. Ministry of Health,l a velY competent anaesthetist ad-) ministered an anaesthetic to two patients who, subsequent to the admini- \ stration of the anaesthetic, developed severe symptoms of spastic-l paraplegia. The injury was due to the contamination of the anaesthetic by phenol. In each case, nupercaine, a spinal anaesthetic, was injected" by the anaesthetist. The nupercaine .had been contained in sealed glass (; ampoules which had been stored in a solution of phenol. In 1947, when this incident happened, according to the then standard of medical knowledge, the importance of detection of phenol in the ampoules, had; not been appreciated. On that ground, it was held that the anaesthetist was not liable. In a Canadian case, Sylvester v. Grit,2 the anaesthetist was held liable for injuries sustained by the patient in the following circumstances: an anaesthetic was administered by introducing oxygen from a tank into a can containing ether and then forcing the mixture of ether and oxygen through a tube (known as a Magill tube) into the patient's throat. Almost immediately after the start of the anaesthetising process the patient developed a cyanotic condition, necessitating the administration of pure oxygen. The tubes were thereupon withdrawn from the can and oxygen was drawn from the tank into a bag from which it was introduced through the 1.
I
1
(1954) 2 Q.B. 66.
z(J956) S.C.R. 991.
CLASSES AND INSTANCES OF MEDICAL NEGLIGENCE
235
moment a violent explosion took place causing serious injuries to the patient. It was established in evidence that the explosion had been caused by a spark of static electricity setting aflame the ether-oxygen mixture which had escaped from the can while the Magill tube- was being disconnected and had accumulated near the patient's head. It w~s held that the anaesthetist was liable in damages for the patient's injuries. It amounted to negligence, in the circumstances, to leave the ,oxygen flowing into the ethercan while the Magill tube was not· con nected to it. It was not sufficient merely to reduce the pressure; the .oxygen should have been turned off at ·the tank, which would have entailed no material delay and would have substantially reduced the danger. It was conceded that the ether-oxygen vapour was highly ex plosive and that in surgical operations there was constant danger of a .spark from static electricity. Admittedly, there was no absolute security against either spark or explosion but the duty of all working in such ·c,'xmditions was to reduce that possibility to the practicable minimum. There was no evidence that what was done in this case was approved as standard practice in hospitals. A second alleged ground of negligence was the failure to remove the ethercan from the operating-table., close to the patient's head. But the anaesthetist's conduct in this respect had been approved by other medical witnesses and it would be dangerous for a Court to attempt in such a matter to proscribe a step approved by the general experience of technicians and not shown to be clearly unnecessary or unduly hazardous. In Voller v. Portsmouth Corporation\ a spinal anaesthetic was ad ministered for the purpose of operation and two days later the patient developed meningitis. The court awarded damages against the hospital authority for the negligent use by the hospital staff of an aseptic tech nique resulting in paralysis in both legs of the patient, a boy of 18, from an infection resulting either from contamination of the anaesthetic itself or from infection occurring during the administration of the anaesthetic. The finding of the court was that those concerned in the operation had scrubbed their hands properly and that the anaesthetic itself was not at fault. The court held, however, that there must have been some defect in the technique. For a manufacturer's liability in respect of drugs, a very recent case may be noted: Derilles v. Boots Pure Drugs Co. Ltd. 2 A married man aged 39 bought a bottle of corn The label bore no warn ing statement that any special precautions should be taken to prevent the fluid from coming into contact with skin other than the corn. TIle 1 2
1947, The Times, SOth Amil. rt962) Lancet, 14th July, P. 91.
i
236
MEDICAL LAW AND ETHICS IN INDIA
preparation had been on sale in that form for about 30 years, and some 20 million bottles had been sold. There had been only eleven eomplaints and no elaim against the manufacturer or vendors in respect of injuries from #it. After a bath, the plaintiff applied some of the fluid to a corn on his foot. He accidentally dropped the bottle, the cork came out and some of the contents spilled on to his abdomen and genitalia. The auid dried in a matter of seconds and a fixative ingredient caused it to remain lacquered to the surface of the skin. He read the label and looked at the bottle but, seeing no need for special precaution, he wiped himself. He was not then conscious of any noticeable pain but by the next morning his lower groin and abdomen felt slightly chapped. Next day he was in extreme pain and had to be admitted to hospitaL On admission he had gross swelling of the penis, cellulitis, and bacterial toxaemia. He was cireumcised and later skin grafting was done over the affected part. He was discharged some six weeks after the accident He sued the manufacturer and vendors of the corn solvent for damages for negligence; they alleged contributory negligence by him.
([he court said that the principles of law were well settled. person who put on the market a dangerous article must take reasonable steps in the circumstances. The question was whether the corn solvent had dangerous characteristics such as to impose upon the manufacturer and vendors any duty, and, if so, what precautions would have satisfied that obligation. The corn solvent had a certain inherent element of danger in its use by uninstructed members of the general public. There was a duty on the manufacturer and vendors to some warning and to secure the bottle in some better way than with a cork. It was difficult to speculate whether or not that would have made any difference in this case. Nevertheless, they were in breach of their common Imv duty. However, the injured man had shown less care than a reasonable man should have done, for such a man would have reaeted instinetively to the mishap which was due to momentary earelessness. As a sensible, educated man he should have appreciated that the fluid, compounded to produee a destructive effect on hard skin, might be likely to do some where in faet it fell. He did not summon the doctor soon enough and should bear a third of the damages. had to be com pensated for intense pain, for the relatively slight pennanent conse quenees of the thrombo-phlebitis, and the result, in point of some diminished libido (which might not be permanent), of the injuries to his genital organs, which were repaired by plasti9 surgery. The company was asked to pay £ 1200 by way of damages.)
CLASSES AND INSTANCES OF MEDICAL NEGLIGENCE
237
Part IX FAILURE TO KEEP ABREAST OF ADVANCES IN MEDICAL SCIENCE Is it negligence to fail to keep abreast of professional journals? In Crawford v. Cha1'ingCl:ossHospitaP, a patient filed an action alleging professional negligence against an anaesthetist. The patient was admitted to a hospital for an operation for removal of the bladder. For the purpose of giving blood-transfusion, his left arm was. extended at an angle J2L~egrees. The patient complained that he subsequently suffered a loss. of power in the arm amounting to paralysis. The trial judge held that there was negligence inasmuch as the anaesthetist was unaware of an article relevant to the subject published in an issue of the Lancet. It was alleged that had he read that article he would have acted in a different manner. T~ trial Judge took the vi~. that failure to keep abreast of professional journals was negligence .. The Court of Appeal held that if the negligence amounted to no more than failure to keep ab~east. of professional jo~mals, this was nO.t enough. As for the Lancet article It was held that It would be puttmg much \. too high a burden on medical men to hold that they must read every article in the medical press. The Court of Appeal, therefore, held that
l
the anaesthetist was not negligent. However, failure to heed a warning given in a)(3'!,~ing.. te;g-b<2.ok published after a mishap has occurred may be considered n~g}ig~.I!t conduct. It would, of course, depend upon the circumstances of a given case. Certain observations of Denning L.J. in Roe v. Ministry of Health 2 may appropriately be noted here: "After this accident a leading text-book was published in 1951 which contains the significant warning: 'Never place ampoules of local anaesthetic solution in alcohol or spirit. This common practice is probably responsible for some of the cases of permanent paralysis reported after spinal analgesia'. If the hospit'lls were to continue the practice after this warning, they could not com plain if they were found guilty of negligence. But the warning had not been given at the time of this accident. Indeed, it was the extraordinary accident which first disclosed the danger. Nowadays it would be negli gence not to realise the danger, but it was not then." 1
2
(j9,53) B.b;].]. 12th DecembeT. (19.54) :2 Q.B. GG at 86.
238
MEDICAL LAW AND ETHICS IN INDIA
Part X FAILURE TO COMMUNICATE, FAILURE TO GIVE WARNING AND INFORMATION ABOUT RISKS • Failure on the part:_of the_!l1:~_~ man to give proper waming concerning a medicine prescribed or supplied or treatment or operation advised or performed has been considered an act of negligence in certain circumstances. It is not PLacJjgable_to set out all the possible circum stances under which such failure would constitute negligence. But a study of cases in which such questions have been considered and de cided by courts of law will, it is hoped, help medical men to Judge more or less accurately as to when it is required of them to give adequate warning and to impart proper information to patients concerning the risk involved in medicines prescribed or given and any other form of treatment or operation advised or performed on their patients. There are several such cases decided by English courts. There is, however7 only one reported case of a High Court in India. In Banarsidas Kankan v. Alajor Shyarn Beharilal, Civil Surgeon\ some prescription for ear trouble was given by the Civil Surgeon to Mr. Kankan. The prescribed medicine was llsed as directed by the Civil Surgeon. After a year, the patient suffered acute sensation in the ear and also considerable pain. It was found on examination that the dmm of his right ear was practi":' cally destroyed. The Civil Surgeon had prescribed a novel and danger ous mixture for a petty complaint. The evidence disclosed that if the mixture had been applied after vigorous shaking very likely no harm would have been caused to the ear. But, though the doctor had pre scribed a novel and dangerous mixture for a petty complaint, he did not give a warning to the patient that the mixture was likely to cause harm to the ear unless applied after vigorous shaking. Failure to give this warning was considered by the High Court to be an act of negli gence and the doctor was directed to pay a sum of Rs. 4000/- by way of damages to the patient. f Below are set out cases decided by foreign courts, particularly English courts. It has been held in Lindsey County Council v. MarshaW that ~ to wam an intendirlgJ~~at~_~~~ hospital2i-a~ risk~LinfectiQll_~ithin the l1ospit-ar ii~negligenc~.~The h~lauthorities admitted one Mrs . .. Marshall as a patient· to their matemity home for the purpose of her con finement. They did not inform her that there had been a recent case of -
-----...,~-"--~~-~"
1
~
-~··~·'·~_'_~'_'M_.
__ "~~_
--.:::::..~.~
(1932), Bombay Medical Journal, 187. (1937) A.C. 97.
CLASSES AND INSTANCES OF MEDICAL NEGLIGENCE
239
puerperal fever in the maternity-home. While there, the patient con tracted puerperal fever and was seriously m. The patient filed an action on the ground of negligence. It was held that the nursing home authority or staff knew or ought to have known that in admitting the patient to the home they were exposing her to the danger of infection. On the facts of this case the court held that the authoriy ought to have warned the patient or her medical adviser of the fact that there had been a very. recent case of peurperal fever in the home so that they might decide for themselves whether they should face the risk and, if so, of the precautions they should take to avoid the risk. As they had not done so the rtursing home authority were held to have been negligent. In Gerber v. Pinel, a doctor, in the course of a hypodermic injec-l tion, left part of a broken needle in the body of the patient. I! was \_ i(i held that the breaking...nLtbe ::QeedleWfl~!!Q.L
r\
I
I
1(1935) 79 Sol. Journal 13; (1935) British Medical JOl1rnal, JanuU1}' ,5th, p. 41. (1950) 94 Sol. Journal, 599.
240
.MEDICAL LAW AND ETHICS IN INDIA
bear it, would take no precaution. There 'vvas no evidence that the apparatus used was defective. The only question left was, therefore, whether the waming given by the defendant, said to be an entirely proper one, was sufficient. The court held that the warning must be couched in terms that made it abundantly clear that it was a warning of danger. It was submitted that this warning was sufficient inasmuch as the patient was told in clear words that all that was intended by this machine was to give the patient an experience of comfortable wan11th. The defendant had added, "and nothing more." This was a clear indi cation that he ought to be on guard if he felt anything beyond comfort~ able warmth. The Judge, however, took the view that that, by itself; cUd not inform the patient that experiencing a feeling beyond comfortable II
I
warmt..h w.as dangerous. The defendant ought to ha.ve added, "If. YOU,' feel anythmg beyond a comfortable warmth, I want you to tell me be " . cause the instrument is dangerous and bums could be caused by it." In Bolam's case/ a voluntary mental patient suffered certain inju
ries .when E.C.T. treatment according to a particular method was ad
ministered to him at a mental hospital. The plaintiff claimed damages,
inter alia, on the ground that the authorities were negligent ~~J,!::ilil)g
to infc!!1.!!..hiIl!._Q.L~he ris!()n;:£!!.~~SL~!L!b..~ tre~~mQ!!t. The court laid
down the following principles to determine whether or not a patient is entitled to succeed on the allegation of a doctor's failure to wam a patient of the risk involved in a particular treatment or operation. The material considerations to be remembered are (1) whether a medica.l man, in not waming a patient of the risks involved in a treatment or operation, has fallen below a standard practice recognised as proper by a competent body of professional opinion, and (2) whether the patient, if wamed, would have refused to undergo the treatment or operation. It w~g b.~J?~..!l1.e_p'~!i.£ULt() sh.mY.tQ.. ~pe._~atis~~ti.o[l of the court th.:at l~~d ll...~l?e~12.~~!,IJ.E1sl J!Q.~ouI9 _Ilo.l_~!.l~ yndergone a particular. opera tion or would not have taken a particular treatment. The Judge trying the case observed that a doctor does not merit criticism if, when dealing with a mentally sick man and having a strong belief that his only hope of cure is a particular treatment, he does not disclose to the patient the da~§ which he believes!~~. miI]imal. It was held that there was no negligence. ;
In Hatchen v. Black/ a medical man was held not liable in failing to warn the patient of the risk involved in goiter operations. This was on the gronnd that an average "vise doctor placed in the position of the 1
(1957), 2 All E.R. 118.
f
(1954), The Times, 2nd July.
CLASSES AND INSTANCES OF MEDICAL NEGLIGENCE
241
defendant would have done just what the defendant doctor did. 111e court held that the law could not condemn the defendant doctor when he only did what a wise doctor so placed would do. None of the doctors called as witnesses in the case suggested that the defendant doctor was wrong. The test applied, therefore, was whether the defendant. doctor, in not warning the patient of the risk involved in the operation had 1 fallen below a standard of practice recognised as proper by a competent body of professional opinion. The facts of the case were as follows: Mrs. Hatchen had been suffering from goiter and was referred by her own doctor to St. Bartholomew Hospital where she saw one Dr. Black. He diagnosed toxic goiter and discussed with her the possible alter natives, an operation in the hospital or medical treatment by drug, and pointed out that it would take a long time by drug. She was operated upon. After the operation she found that her voice was not strong. She was kept in the hospital for just over a fortnight. Then she was .sent to a convalescent home for three weeks. When she came back it was found on examination of her throat that her left vocal cord was paralysed. She tried speech therapy for a while with a tutor but gave it up and went to her own doctor. The only allegation against Dr. Black was that he negligently advised her that there was no risk whatever to her voice involved in the operation. Against the surgeon, she complained that he perfoffi1ed the operation negligently and damaged the laryngeal ne~e. She co~plained that after the operation the surgeon and the hospital were negligent. be cause they ought to have discovered the vocal cord palsy by looking down her throat with an instrument; that, instead, she was told to shout and also told that she was neurotic and hysterical. 'The Judge said that counsel had sought to compare the case against the hospital to a motor car accident or an accident in a factory. That was the wrong approach. On the road or in a faclory, there ought not to be any accident if every one used proper care. But in a hospital, when a person who was ill came in for treatment, no matter what care was used, there \vas always a Iisls..2nd it would be wrong and bad law to s~lY that simply because a mishap occurred, the hospital and doctors vvere liable.1 Indeed, it would be disastrous to the community. It would mean that the doctor examining a patient or a surgeon operating at the table, instead of get ting on with his work, would be forever looking over his shoulder to see if someone was coming with a dagger; for an action for negli
i
~.n9,~_c:-s.ai~.st. th~ .d(J.9.!2!.~~0~k~a da,gg,~E:.. H;~pr-;;f~ssi~i;;i~put;tI;"u was as dear to him as his body and, perhaps more so, and an action for negligence could wound his reputation as severely as a dagger could his body. The jury must, therefore, not find him negligent simply be
242
:vlEDICAL LAW AND ETHICS IN INDIA
cause one of the risks inherent in an operation actually took place or because, in a matter of opinion, he made an error of judgment. They could only find him guilty when he had fallen short of the standard of reasonable medical care, when he was deserving of censure. TIle sur geon had admitted that on the evening before the operation he had told Mrs. Hatchen that there was no risk to her voice when he knew that there was some slight risk; but he did that for her O\vn go.od, because it was of vital importance that she should not worry. told a lie but he did it because, in the circumstan<:,~~jLw"!~_.il!:..stifiabl~~ If this ;;~ ;-~~~lrt-~{-~;;~i~~~uld .rai~e a nice questi~~" on which moralists and philosophers had differed for centuries. This, however, was not a court of morals and the law left the question to the conscience of the doctor himself. But the law did not condemn the doctor when he only did what a wise doctor so placed would do and none of the doctors called as witnesses had ever suggested that the surgeon was wrong. All agreed that it was a matter for his own judgment. If they did not condemn him why should the jury? Against a charge of care less operation, all the doctors had said that this was a well-known danger in such an operation, notwithstanding all care, and there was no suggestion in the evidence that the surgeon did anything that he ought not to have done. Both the doctor and the surgeon were held to be not negligent. In another case, ';Vaters v. Park,l Mr. Justice had to decide -" - ..--,..., . .' \yl~.e.th(~:r ....Jl-.~~!!.... ~ ..£.e..g!i.Ke9!.-.!.u.._~~~g __0':!L_an operation .fo~ steEili~.ation on a 12atis:.DJJY.~!2....E~....JLY.~ weak heart without. telling her that there was_.,._ a sliK.ht risk of failuE.__ A married co~ie_ ___._,,_, S_'_,_..._ with six children was advised that the wife, aged 42, should have an operation for sterilisation because she had a weak heart. On May 29, 1956, the defendant, a surgeon, performed the operation. On July 3, 1957, she bi11:h to a stillborn child and had to have a further operation for sterilisation. The plaintiff sued the surgeon for damages for breach of contract or negligence in carrying out the first operation. Mr. Justice Havel'S said that the plaintiff had cardiac trouble and the surgeon had to make up his mind whether it was safe for him to use the usual technique of sterilisation. He carne to the conclusion that :it was not and that it \vas in her interest to use a less efficient method and he was perfectly justi£ed in so concluding becclllse of her condition. The question was whether he was under a duty to tell her aftenvards that there was a slight risk of failure and advice. The surgeon's .p
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Lancet, 22nd July.
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CLASSES AND INSTANCES OF MEDICAL NEGLIGENCE
24,3
practice was to tell this to his patients when they attended the out
patient clinic on appointment afterwards. In the light of present me
dical opinion and practice, the surgeon, in His Lordship's view, did
not fall short of the proper standards of the profession if, in circumstances
such as these, he did not tell the patient that there was a slight risk or
advise her to use contraceptives. If that were so, the defendant did not
commit any breach of duty even though it was his normal practice to
tell his patients. His Lordship was satisfied that the patient was given
an appointment to see the surgeon after her discharge from hospital
when he would have told her, and that she did not keep that appoint . ment. Mr. Park, in evidence, admitted that the operation was rarely done
now and was not the most efficient to achieve sterilisation but contended
that it was reasonable with regard to the patient's condition at the
time. He submitted that Mrs. Waters was advised to have the opera
tion earlier but had failed to keep an appointment for examina
tion; if the operation had been performed earlier it would pro
bably have been done by a more efficient method. Evidence was
given by Professor Hugh Cameron McLaren, Professor of Gynae
cology and Obstetrics at Birmingham University, that the chances
of a woman becoming pregnant after a sterilisation operation
were about the same as those of an aircraft crashing. Had he
(Professor McLaren) performed the type of operation done by ;\Ir. Park
on the patient, he would not have volunteered any infonnation to the
patient about the possibility of a future pregnancy. The mere mention
of such a possibility, even if qualified by saying that it was extremely
unlikely, would destroy the patient's confidence in the operation; it
would undo much of the good done by the operation. The court held
that Mr. Park was not in breach of duty in the circumstances of this.
case in not telling the plaintiff of the risk of future pregnancy.
There is another class of negligence arising out of failure to com-\
munieate to the usual doctor of a patient the condition of pati-b."
ent and in making the patient a means of communication. Thel
question in the case of Chapman v. Racks1 was: Should a doctor send
a message to another doctor through the patient himself? In short,
whether the patient can be made a means of communication. It was
held that a doctor in failing to communicate directly by telegraph or
letter with a patient's own doctor after he had dealt with him in all
emergency was not guilty of negligence. In this case, the patient, a
1
The Times, 22nd December, 1960,
•
244
MEDICAL LAW AND ETHICS IN INDIA
butcher, accidently struck his abdomen with a knife and went to the Cottage Hospital where the defendant doctor happened to be. He made an examination of the patient and concluded that the wound had not penetrated the p·eritoneum. The wound was accordingly stitched and dressed and the patient sent with clear instructions to see his 0\V11 doctor that evening. His local doctor, not realising that the patient had been to the Cottage Hospital and had seen a Casualty Officer there, diagnosed a digestive disorder. The post-mortem, after the patient's death, revealed that the wound had penetrated his small intestine. The Court of Appeal by a majority held that the defendant doctor was not negligent. They pointed out that two distinguished medical \vitnesses had recorded that the conduct of the. defendant doctor was in every respect reasonable in the circumshmces. Romer J. pointed out that he knew of no case in which a medical man had been held guilty of negligence whcn eminent members of his own profession had expressed their approval of what he had done. He thought that the defendant could in no way be regarded guilty of professional negligence as dis tinguished from made a pardonably erroneous diagnosis. TIle matter then went to the House of Lords where again, by a majority, it was held that the doctor was not negligent. The majority of the members in the House of Lords held that the main sense of the message communicated through the patient was an emphatic one and the 'Object of the message was to guard by observation against what the defendant doctor thought an outside chance that the wound might have pene trated deeply into the body. Lord Denning expressed a strong dissent. He said misleading information was a dangerous thing to throw about. There was no telling where it would finish up. A medical man might sometimes feel justified in giving misleading information to a patient so as not to worry him but, if he did so, he must be careful to give the correct information to his relatives and those about him and must in fonn the doctor who normally treated him directly. It was the doctors failure to observe the rules which was his mistake here. He had with the best of intentions and deserved every credit for so doing but at the critical point he had failed. Having regard to dis::.ent of Lord Denning, a word of caution might be expressed for the guidance of Inedical men. In such circumstances, the doctor concerned should write to the patient's family doctor what he has observed and what the examination has revealed and what further check is needed. He should further write that he had done the job in an and that he had asked the patient to see his oWn doctor.
CLASSES AND INSTANCES OF MEDICAL NEGLIGEKCE
245
Part XI HOSPITALS AND NEGLIGENCE IN NON-lvIEDICAL MATTERS Hospitals and nursing homes are }iable._l£....?~m held. ne}S}Jg"t.?nt ~ll!?.t
2I!!L~Y.~~1~.~gar
~g~rd..,,~~!!ti~LtheY..2.~v~.}~I!~_I?e~ica"~.E1_~tt~r~,,
" In Newhan v. Rochester/ the infant plaintiff, who was suffering from scarlet fever, was received as a patient in the defendant's hospital for treatment and on the following day was placed in a ward on the ground floor. During the late afternoon of that day the child was in a bed a few feet from the window, the lower part of which was open. In the absence of a nurse the child somehow fell out of the window and dropped about a distance of 17 feet to the ground. As a result of this, the child suffered from shock and was confined to bed for three extra weeks. "The child's forehead was badly disfigured and the feet were flat and required special support. On these facts it was held that the defendants were negligent inasmuch as they had left the child in such a position that, unattended, the child was likeJy to throw himself out of the window. . In Gravestock v. Lewisham Hospital,2 the child patient played about in the ward in the absence of an orderly who had gone out for a few minutes. The child while swinging on the doors of the ward tripped on a stud and sustained serious injuries. The court held that the duty of a.~ hospital towards a child of nine with respect to non-medical matters was to be equated to that of a school-master and that ~uch duty was that!I ~ of an ordinary prudent parent. As the orderly was absent only for a few minutes, it was held that there was no breach of duty such as vvould be expected of an ordinary prudent parent and, therefore, there was no negligence. tIn Martin v. London County Council,S a hospital authority admitted a patient and took possession of certain jewellery and a cigarette case which she had in her hand-bag. They were unaware at the time that the articles were of value. Shortly afterwards they received a letter from the patient's sister asking for confirmation of the contents of the patient's hand-bag and referring to jewellelY. They did not reply. The articles were entered in a book and stored in an envelope with hundreds of others in a room into which a burglar would have no difficulty in breaking. They were not put into a safe even after receipt of the letter, and they disappeared having, presumably, been stolen. In an action
n
(1962), The Times, 28th Febmarv, (1955), The Times, 27th May. . 3 (1947), I All E.R. 783. 1
~
I
246
MEDICAL LAW AND ETHICS IN INDIA
against the hospital authorities for the return of the articles or for their value and damages for their detention, and, alternatively, for damages for negligence or breach of duty, it was held that the hospital authori ties were bailees. In law, a bailee is a person to whom goods are en trusted for some purpose, o~th~~nditioy{ tE;rttl~;;-goodS-shoUla--be _ purpose bound in law to take such care of th;gOOdSbanea-a:sa:-man of ordinary prudence would take of his own goods. Obviously, in this case the hospital had not taken such care as a person of ordinary prudence would take. It had stored the goods in such a way that a burglar would have no difficulty in stealu1g. It was further held that they were not entitled to assume that the patient's property was of no value and they were negligent in not storing the property in a safe, particularly after the receipt of the letter drawing their attention to its value.l Reference may also be made to a case where a patient's visito!j s~ed on a "Qolish~sI floor of a ho~ital and-'~~st~i~~~2ii~~T;;:ri~a;d ~ucc;~sfull;-claimed da~ag;;; fr;;-~he i1ospit;f. '''b; ~-.-'B;;tTe;;e(l th~"f;';t-;-;'-;;~-;;;" follo;'s~Awj{~with the-p;rn1ission of the hospital authorities, visited her husband, a patient dangerously ill, at 10 o'clock one morning. At that time cleaners were in the ward but there was no indication that floor polishing was going on. In fact, the polish had been ilPplied to a part of thc floor but had not been rubbed off, and, when leaving the ward, thc plaintiff slipped on a part of the floor which was in this unfinished state and fell and sustained injuries. In an action for damages for negligence by the defendants for causing or permit!ing the floor to be slippery and in failing to warn her of its condition, it was held that the defendants were negligent. The court said that a visit by a wife, at the invitation of the hospital authorities, to her danger~ ously ill husband in the hospital was a matter of material interest to both the wife and the hospital and, therefore, the wife was an invitee. She was entitled to reeover damages as the condition of the floor was an unusual danger of which the defendants knew and of whieh they failed to warn her. It was further held that even if the wife was would be entitled to succeed as, although the merely a licensee, floor appeared to be safe, there was a concealed danger from which a licensee was entitled to be protected. Moreover, in the circumstances, it was immaterial whether the plaintiff was an invitee or a lieensee as the defendants had been negligent in failing to warn her of an extra lleous danger introduced into the ward.
'Sz;;i;
1 W.L.R. 207.
CLASSES AND INSTANCES OF MEDICAL NEGLIGENCE
247
Hospital authorities may note that, with_!:egar~.t~llon;medi£1!l
H~,C""~L~L. tk!.ID:' .I!!§.Y- ..Q~~2.p~J~a!?k. to •. :a_..lli1tienf..L :y~~.~~~~_.~pde~~... th!.~.O .~0!~.1!~2.~~C:~~ Th~y~::!Y.J2g9Q!!!;~ liable ~_visitor on tl~
that th~_yisit9Lj.§___an. iI!..vi~~.~ In law, an invitee is a person who is invited on business in which the invitor and the invitee have a common interest. In Slade's case, referred to above, the court held in the first instance that the patient's wife was an invitee. In the case of Re. Dean's Will Trusts\ two leading English surgeons made an affidavit to the effect that the presence of a relation or a friend of a critically ill patient is highly beneficial to the improvement of the patient. The Judge who tried Slade's case, probably, though he did not in express words say so, entertained such an opinion. A hospital authority is concerned with the health of the patient. The presence of a wife being of psychological value, her presence was a matter of common interest to herself and the hospital. It was, therefore, held that the wife was an in vitee. An invitee is entitled to that the owner or occupier of the premises to which she is invited uses reasonable care to prevent damage from unusual danger of which he knows or ought to know. In Slade's case, the liquid spread on the floor did impart a rather darker tinge to the floor. Even in a well-lighted room that was not a thing which an ordinary person would notice without warning. There was thus an unuslIal danger of which wife as an invitee was entitled to be made .aware and, as the defendants did not ,varn the lady of that danger, they were liable .
.TI1e
se,cond d~tL~:,hich" ho~@'~LC!utl:orities-2':.v.£..k..!9_~_I~~~I}s~ ~) A_,~ls~n.?:.~~!Lq ..Q§fson..}Y h!L~.YJ.e.~y"e_ ..~~.llS:~~~. gf.J~lf:-~c"£'l!~l:.~..!h~. ~. ~~':\~!1!?r.~!~~~~nd.].~,ai~!..!?l~,le.ll1.:~rpisv.~..:. A licensee is entitled to be informed of a concealed danger which exists on the premises and is known to the occupier of the premises. Even on that footing, in Slade's case, the defendants were held liable. The court that if the floor where the polish was spread was no different from the rest of the floor and looked safe, it seemed that it \vas a safety which was wholly illusory. The Hoor "vas slippery and dangerous and as look of it could not inform a person that it was slippery and dangerous it was a concealed danger of "vhich the hospital authority was aware and against which a licensee was entitled to be protected.
T~dly, .~1Ospital a~ties may_J~~.<:9~1?-.~~J!.~)!{; __~r~J.!~_cti~~~ of~\(~j ~::t!~r or not a particula~_pt')r~<:>n is an invitee or a licensee if thel, . / hospital bring onto their property an extraneous danger and '; f~~ir-to'\vam~fWiFabout it. -This-i~-i~~:~spective of whether- a i 1
(19.50) 1 All. E. R. 882.
248
MEDICAL LAW AND ETHICS IN INDIA
particular thing is an unusual danger or not or wh~her it is a concealed danger or not. Hospital authority would be liable if their action is plainly one of negligence. In Slade's case, the Judge said, "Every body agrees that she (the wife) was properly in the ward; indeed, she had asked permission to go in. After she had entered the ward, taking the premises as she finds them as a licensee must, and whilst she is there, a wholly extraneous danger, no part of the property itself or of the stmcture, is introduced into the ward on the floor. The simple question seems to me to be 'Was that negligence?' that is to say, '''Vas it negligent to leave that polish on the floor without giving a warning?'." The court answered that question in the affirmative. \Vhen one enters someone else's property with the latter's permission, the permission may be to enter either as an invitee- or a licensee: the permission to enter someone else's property may amount either to an invitation or to a mere licence. A,E invitation is a re~est to enter for the~c.>~!~?ccupier of the premises. 1_J~~~1!.C:£ permission to enter for. !!!~_~OS~!2L_tb.£ entran~_._hi11l~~]f. The {~t;~e~lnvTtee-to~ter the invitor's property for the purpose of the invitor's business. It may be that the invitee is also interested in that business. But, in a licence, the licensor permits the licensee to enter upon the premises only for the licensee's business. The invitee, therefore, is a person who goes to the occupier's premises with his con sent on business in which the occupier and he have a common interest~ But in the case of a licensee there is no common interest to fulfil between the licensor and the licensee. As, in the case of an invitee, the invitor is also interested, it is obvious that an invitor's' duty towards his invitee is greater than the duty which a licensor owes to his licensee. In law the difference in the degree of duty owed towards an invitee and a licensee is this: (!he invitor is under a duty to use reasonable care to prevent harm from unusual danger which he knows or ought to know. The licensor on the other hand is under no obligation to a licensee to make the premises safe for use by the licensee) A mere licensee must be content to take the premises as they are. Although he is not bound to use any care to make the premises safe for the use of a mere licensee, the licensor is:,:!nder_ an.2.9ligatiCl!!._to give wamingJ2~~~L, existence of any concealed danger whichexistson!heyremises ancL ls1c:;~)wTl to the ~i~~:--He is'~~dk~~\~~gly to le~d even the ~ice~;;~i~to a trap. The main difference, therefore, in the obliga tion owed to a licensee and an invitee is that an invitee is entitled to expect that the occupier shall use reasonable care to prevent harm from unusual danger which he knows or ought to know about, whereas in the ca5e of a licensee, all that the licensee is entitled to expect is that
t
CLASSES AND INSTANCES OF MEDICAL NEGLIGENCE
249
he is infonned about the existence of any concealed danger which exists on the premises and is known to the occnpier.{
Part XII CLINICAL JUDGMENT AND COMMON SENSE ~!~l2.~.,g!igence for _a medical man to use clinical P?gr.f.I~.~.in. ~pp!y~~b~ok:lea_mi.ng .to~"particular._ca~e. In fact, it might, in certain
circumstances, be negligence for a doctor to follow a standard text book, word by word, without using normal clinical judgment.
Ir2...!!2J!:f!:.niL,.Y.:.Dr:-~p.c!!.f? Jiattt!cal C oll.l?f!£ .'-'td..:~, a case of negligence was sought to be founded on the ground that there was a departure from the usual method of treatment as laid down in the standard text-books. In this case, a father claimed damages for alleged negligence in the treahnent of his son. The doctor had treated the boy on May 24th, 1954, the diagnosis being that it \vas a mild case of infective hepatitis. He put the boy OIl a full fat-free diet and on glucose and kept him in bed. It was common ground that the proper treatment was to keep the patient in bed, warm and free from exertion. The boy later told the doctor that he felt perfectly well, there was no nausea, no vomitting and his appetite was normal. After continued improvement he was allowed to get up but was confined to his room, there then being signs of such improvement that there was no reason to keep him in bed. The school mid-term week-end was on June 5th, and the boy was told that, assuming he continued to improve, he would be aHowed to go home. The doctor stated that he had taken the view that the boy would be heart-broken if he was not allowed to go home and that emotional disturbance might have some effect upon his epileptc con dition. He continued to visit the boy, and, although by June 4 the condi tion had not completely improved, the continued improvement along with the general feeling of well-being convinced him that the boy was improving to such an extent that he should let bim go home. The boy did go home, walking about a mile to the station, carrying a suit case. On his return to school, in obedience to orders, he reported that he was feeling very well, and had enjoyed his week-end. He was slightly jaundiced and was told he might resume his studies but must rehlrn to the sick-bay for meals and sleep. The next day he had a relapse and on June 29th went to the hospital. Eventually, he died from cin-ho sis of the liver. ~h~u:.s:gli.w~C2t..~]l_~e~~~· tlf~t the :Jo~.tor-!~.d the 1(1960) H.M./. 12th Jo..farch.
250
MEDICAL LAW AND ETHICS IN INDIA
patiant out .clJ2!;:d.!QQ.~~~~. ~:~d ?eviateg frOl]lJ:Jw....,!;lsu~l treatment ip the standard.J..~xt-book~ Mr. Justice Streatfield who tried the case said that the authors of text-books and the writers of articles
4e~cribe&
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w.!itif!,g_&'!1I!£ral1L~n
was common ground between all doctors that some discretion must be left to the judgment of the doctor on the spot. The doctor had to bear the whole picture in mind. A general practitioner was entitled to use his common sense, his experience and judgment as far as it fitted the particular case. The Judge felt that it would be a sorry day for the medical profession if it was said that no doctor or surgeon was to de part one title from what he saw written in the text-books. In fact, one might go the other way and say that if a doctor did not do so he might be said to have been negligent. All the doctors who gave evidence in the case agreed that the general practitioner in charge of the case was the man in the best position to judge and that statements in text-books were no substitute for judgment. In the court's oPinion'l not only was there no in this case, but there had been no mistake at alL It was a most cruel misfortune that, in spite of all indica-~ tions to the contrary, disease turned out to be more severe thani estimated. The action failed. To_try.,!£Sqv!:~:~~11.!.:~.1:.£!· of judgment may in certain._circ?E!:?t<:~~~_ be~ .c~ ?-c~J?!_~.~~.::!!9~ A n~"erd'e-n'or of judgment is not negligence, but it was held in an English easel that if a person committing an error of judgment and knowing that he had committed such an error, pursued the policy of hiding it and thereby caused damage to the patient, he was evidently guilty of negligence. A matron made a mistake in wrappingl a tight plaster cast on the leg of a child. The court treated the initial \ blunder of putting on a very tight cast as an error of judgment, but held J the matron guilty of negligence for shutting her mind to that fact. The court remarked that the matron knew at the back of her mind that the cast was too tight, but she pursued policy of covering it up. The judge commented that if a policy of covering up a mistake was pursued the result must be a diminution of public confidence.
Part XIII
INJECTIONS, SYRINGES AND NEEDLES
A patient may be injured during the course of an injection in three ways: a fleedl~......?!._~y!i.ug~~ .. . mighL1:n:~U!1 the course of an injection and l!!.~t ..r.~.!!!lljn depQ~.ite~L in the body of the patient; the injection 1
Baulil v. Blagg, (J954) B.MI.20th March, p. 749.
CLASSES AND INSTANCES OF MEDICAL NEGLIGENCE
2.')1
may sm!tf!in.~ .. ~l:£!l1L.§olu.!i0I! or the injection may be given in the Negligence might also be alleged on ground of failure t~ follow the standard practice of giving a recognised injection in an appropriate case. Of these three cases, negligence is easier to infer in a case where an injection is given in the wrong pJace. In Caldeira v. Gray,l a doctor inserted the needle of the hypodermic syril}g~jnt9-2.rJ..I?-.s1~e..J?!2!!!!!~ty to the sciatic nerve. As a result thereof, the nerve was injured and the patient suffered a dropped right foot. The doctor was held negligent in giving the injection inasmuch as he gave the injection in the wrong place. In Peters v. Fulham and Kensington H.M.C.,~ the patient com plained that the doctor injected ~g.1lt.:'.r!-.tOI~_~.l~t22:r: ."::E':.e.ry instead of a vein. The hospital authority accepted the position that that fact esta blished negligence. In Prout v. CrOtvleyB an action was filcd on the ground of negli gence in the giving of an intravenous injection. During the course of a fOllIth such injection, a small quantity of the substance entered the tissues surrounding the vein causing an abscess to develop which sub sequently necessitated the patient's re-admission to hospital for treatment. An expert witness called on behalf of the patient said that he had given over 120,000 intravenous injections but had never had a case where an adverse reaction had occurred. He agreed, however, that extra venous injections could occur even if good care was taken. A doctor called by the defence said that it was not always easy to ensure that the point of the needle remained in ~he vein and that the escape of ~1Il irritant solution into the surrounding tissues happened on a number of occasions and, he thought, practically in everyone's experience. The judge said that he was satisfied that extra-venous injection of a small quantity of solution could happen without any negligence. He held that the doctor had followed the correct technique and had stopped the injection as soon as he reaiised that the point of the needle was out side the vein. He, therefore, found the doctor not negligent. In a Canadian case, Gent v. V,lilson\ all action for damages was filcd against a doctor on the ground that the defendant doctor should not have selected the inner aspect of the left ann as the site of vacci nation and that he should not have carried out the vaccination at a time when, to his knowledge, the infant had an inflamed thumb. The court held that the determination of this case depended upon the evidence \V.£Q!1~~:
.~"'-"-~--'-"--'''--
(1936) 1 All 540. (1954) B."AfJ. March, 766. 3 (1956) B.MJ. 10th March, 580. 'British & Empire Digest (1961) ~3rcl Cumulahve Supplement Vol. 34, p. 44. item 70 xvii. 1
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MEDICAL LAW AND ETHICS IN INDIA
of skilled and experienced scientific wi.tnesses. It was clear on the evidence that the defendant had acted in accordance with the standard and recognised practice in selecting the vaccination site and this prac tice was not unsafe or dangerous. On the evidence, the real cause of the infant's illness was a secondary infection and there was no proof that the secondary infection was caused by the inflamed thumb. In Williams v. North Liverpool Hospital Management Committee\ a claim for damages was founded on the ground of negligence in the administration of thiopentone by the doctor for a varicose vein opera tion. Ine patient was exceedingly fat, weighing about 18 stones. In order to assist in the location of a vein for the thiopentone injection, the theatre assistant applied a manoeuvre tourniquet to her right ann. The doctor found the vein on the first or second prick of the needle, which he inserted obliquely. He then aspirated in order to make Sure the needle, was in the vein and, finding that there was blood in the syringe, injected upto 5 mIl. of the thiopentone solution. This pro duced no visible anaesthetic effect on the patient. He withdrew the needle and held it up to see if it was blocked. At this stage the doctor was able to see discolouration of the contents of the syringe by blood. Thereafter the doctor made numerous further efforts to find a vein 6rst in her right and then in her left arm but was unable to do so. He concluded that a great portion of the 5 mIl. he had injected must have gone into the tissues instead of the vein, and injected saline solution at the site to minimise the damage by the thiopentone. But, as a result of the thiopentone entering the tissues, abscess developed. The critic ism made of the doctor's technique was two-fold. It was said that in order to be sure that the needle was in the vein the anaesthetist ought to aspirate at intervals without giving the injection It was held, how ever, that, substantially, the medical evidence was in support of the doctors technique. The other criticism was that the doctor had failed to ask the patient if she was suffering any pain. The greater part of the expert evidence called in the case was to the effect that, as a proper and necessary precaution, such a question ought to have been asked. However, in this particular case, it was admitted that the patient felt no pain during the injection and that there was no swelling. The result was that, even if the doctor had asked the patient whether she felt any pain, the answer would have been in the negative. Therefore, the failure in following a standard technique had not led to a harmful result. It I ' .J may be recalled that in the earlier chapter on 'Negligence' it has heenfl !-lit' ,>tated emphatically that it is not enough to prove breach of duty on \ !
The Times, January 17, 1959.
CLASSES AND INSTANCES OF MEDICAL NEGLIGENCE
253
1
the part of a doctor but, further, it must be proved that it was the breach of the duty that led to the injuries complained of. In this case,'; the failure to follow a particular technique on the part of the anaesthetist, namely, his failure to ask the patient if she was feeling any pain, had not led to a harmful result inasmuch as, even if such a technique had been followed, it would not have been fruitfuL \iVe now come to another class of injury which might result during the administration of injections, viz. through ?_roken needles and j)Yrin.,g~£ N~~~gce under this hea~LDJlls.t,,~. §I2.ecificaUYJ~royed.-J?.Y the.Y..~t.~~nt. It is not enough for the patip,nt to say that a needle of the syringe broke during the course of the administration of an injection. He must prove that it was due to the neglige,nce of the doctor that the needle of the syringe was broken. In Gerber v. Pines,! it was alleged that in the course of a hypodermic injection for the treatment of rheumatism, the defendant doctor left pact of a broken needle in the body of the plaintiff. The defendant contended that the breaking of the needle was due to a sudden muscular spasm of the patient and that 00 skill on the doctor's part could have prevented the portion of the needle from breaking. It was held that the doctor was not negligent. In Mitchell v. Dixon,2 a South African case, the court held that a needle T.ight J;u:~_ak ,<:l~!~Q,E.~ses bel:ond, th~~mt!21 of the, d~~2!2 and there fore; the fact that a needle broke in the course of administering an injection is not by itself prima facie proof of negligence. In this case, it was held that the doctor is not expected to bring to his task the high est possible degree of skill but is only bound to employ reasonable skill and care. g.. ,YLa§.~rnI2hatic§.!!y_ hel5Li~ ..!!tis , c.E~_!..1~.at ..~he .mk..QLu:s:,,,!1Z.~ !9.Q.!!.f~t,l!.....d.oe~~().!....~EPlz..~o2:..,~a~~, .Q!..Ju!eedle, br.§..~~!!g in_J:h.~,-£!l!rs_~_ of ~<J.r:n.ini2.t:r:.::.J.ti,(;:m,_9L?"I}j}2iectig.£. One of the reasons for holding that, in such a case, a doctor is not prima facie negligent is that a needle might break by the movement of the patient himself. In Galloway v. Hanley,:l a needle broke while the doctor was with drawing it. A series of operations failed to remove the broken fragment from the patient's abdomen. The patient brought an action for negli gencE! against the doctor. The doctor's defence was (hat the needle was af a suitable type and that he had previously given more than two thousand similar injections, that he had followed the usual and proper technique, and that the needle, as not uncommonly happens, had broken accident ally while he was withdrawing it without any want of care on his pmt. The judge said that the doctor could be liable in damages only if the
_n
(1935) 79, Sol. }o. 13.
(1927) Empire Digest, vol. ;14, 548.
3 (1956) R.M.]., 10th March, 580.
1
2
"r-_"~"
254
MEDICAL LAW AND ETHICS IN INDIA
needle broke as a result of his fault. The mere fact that the needle broke and was left in the patient's body did not establish the doctor's negligence. l!?~~~~.much one might sympathisL,\yith the Eatient,,"one must b~~_~n min~_~he . possibility tha~nts could ~~ The doctor's case that he had taken such care as was required of him was believed and it was held that he was not negligent. Does failure to give a recognised injection in an appropriate case amount to negligence? The answer to this question is in some measure provided by the following two cases. An article in the r.-fedical Annual 'Of the year 1956 refers to an unreported English case, Fowler v. S. W. Metropolitan Hospital Board, and says that this case confirms the view of the writer of the article that failure to use penicillin in a suit able case would now-a-days be difficult to defend in a court of !aw. In this case, a lady pruning an apple tree in her garden fell from the stool on which she was standing and suffered a compound fracture of the radius and ulna, though the penetration of the skin was very slight. By a piece of very great misfortune she suffered an infection and part of her arm had subsequently to be amputated. Amongst other allegations, it was said on behalf of the plaintiff that failure by the defendant doctor to prescribe a course of injections of penicillin at an early stage of treatment constituted negligence. The doctor gave evidence to the effect that he had considered the matter but, in view of the fact that penetration of the skin was so slight, and, more particularly, in view of the fact that he had recently had several patients who had become sensitised to penicillin, he had decided to postpone giving penicillin injections. The general tenor of expert medical evidence called was that the administration of penicillin in such cases was now an established . medical practice and that a departure from it was difficult if [1ot im possible to defend. In the light of this evidence the judge gave a finding of negligence against the doctor. In Chute Farms Ltd. v. Curtis/ the plaintiffs' yearling colt had gone lame. The colt was treated by L~e assistant of the defendant) who was a veterinary surgeon, with a poultice but no injections of anti tetanus serum were given and the colt died a few days lat'er hom tetanus. The court awarded the plaintiffs £5,000 damagcs as the value of the colt, holding that the assistant, for whom the defendant was liable, was negligent in not giving an anti-tetanus injection. The risk of that deadly disease was always present and a competent veterinary smgeon \vould have treated the colt with serum. 1(1961) Thc Timcs, October 10; Medicinc, Science aHd the Law, April 1962.
CLASSES AND INSTANCES OF MEDICAL NEGLIGENCE
2.5.5
Part XIV NURSES Two cases in which negligence on the part of nurses was establish ed are noted here. In Sisters crf St. Joseph of The Diocess of London 1 v. Flerning\ a nurse's conduct was held to be negligent when a patient r was severely burned in the course of diathennic treatment given by her. The nurse only intended to apply 7.50 milliamperes. There were two sockets in the room, from one of which not more than 1,000 milliamperes could be obtained while from the other as much as 4,000 milliamperes were obtainable. By an unfortunate act of negligence, she put the plug into the wrong socket and got a quantity of 3,000 milliamperes with disastrous results to the patient. In Ingra11J v. Fitzerald,2 a nurse's conduct in painting the body, of a woman with iodised phenol instead of tincture of iodine, causing!\ severe bums to the patient, was held to be negligent.
Part XV OPERATIONS Under this head will be discussed cases of negligence during the course of operations other than those involving the leaving 6f foreign substances in the body of the patient, such as swabs, sponges, and packs.s The latter type of negligence will be dealt with under a separate head. A Canadian case illustrates the inadvisability of passing annchair judgment on decisions made during the course of an operation regard less of the factors which necessitated such a decision. One cannot over-emphasise the importance of ascertaining all the facts and circum stances which influenced the mind of a surgeon during a particular operation. t)n Wilson v. Swanson,4 the defendant, a highly skilled .sur geon, perfonned an operation on the plaintiff following a tentative diagnosis (made by the defendant as well as by others) of can cer. A growth was found in the plaintiff's stomach and a test made (1938) C.L.R. (s.c.) 172 (936) Vol. II B.]..1.]. 1221 3 As regards the duty of a doctor to inform a patient about the dangers of an operation, see under the sub-title, "Failure to give warning, information, etc." As
regards the frequently asked question, "\Vho is liable if negligence is established
during the course of an operation?" see the topic "Vicarious Responsibilities".
The reader is also requested to see the portion of the earlier chapter on "Negli
gence" dealing with the rule of res ipsa loqnitur. As regards consent to operate,
see the chapter on Consent.
'(1956) S.C.R. 804 1
2
2,56
MEDICAL LAW AND ETf-UCS IN INDIA
by the chief pathologist of the hospital while the plaintiff was still in the operating room showed that it was probably malignant. The de fendant thereupon decided to proceed with the operation rather than postpone it for a further (and more positive) test, which could not be completed in less than 24 hours. Because of his belief that the growth was malignant, the defendant removed more of the plaintiff's organ than he \'lOuld have done if he had known that the grovvth was benign. It was held that the plaintiff had failed to esta blish on these facts even a prima facie case of negligence on the defendant's part. The trial judge stated that the defendant was dealing with a patient then' 67 years of age and the condition of the patient was such that if he disregarded the test of the pathologist and waited to obtain another opinion, there was a risk that he might not have been able to operate on the patient at a later date, had the pathological test proved the existence of cancer. If the doctor had elected to wait for the other test, he might have found himself unable to operate again. The skill which was expected of a medical man, said the court, was not the skill of the highest type or even of a «very high" type. What was required was a fair and reasonable standard of care and competency. In the circumstances of the case the doctor had done everything and secured all the information that could reasonably be. expected of him and was quite justified in proceeding with the opera tion as he did. The trial court judgment was upheld by the appellate court.. One may say that an unsatisfactory result is not proof of negli gence, particularly iIi cases of operations, as quick decisions for various reasons have sometimes to be made in the course of an operation. \ In another Canadian case, quoted in Meredith's "Malpractice Lia bility of Doctors and Hospitals", the plaintiff underwent an operation to correct the drooping of his left eye-lid. He claimed that the opera tion resulted in the loss of the eye although the surgeon had assured him verbally that the treatment was absolutely without danger and had guaranteed its success. In dismissing the action, the court ruled that even if the plaintiff's evidence was to be believed, "what the doctor said was only an expression of opinion given in good faith ... ", ,every-l body knows that the smallest operation may take a bad turn", At this stage it is well to recall the words of Lord Justice Scott in Mahon v. Osborne,l "It is not every slip or mistake which imports negligence and, in applying the duty of care to the case of a surgeon, it is necessary to have regard to the different kinds of circumstances that present them <
<
1
<
1(1939) 2 K.B. 14, at 31
CLASSES AND INSTANCES OF MEDICAL NEGLIGENCE
257
selves for urgent attention. I will mention a few applicable cases of ma~or abdominal operations: f (1) The multi-form difficulties presented by the particular circum stances of the operation, (2) the condition of the patient and the whole set of problems arising out of the risk to which he is being exposed, (3) the difficulty of the surgeon's choice between risks, (4) the para moun.t need of his discretion being unfettered if he thinks it right to take one risk to avoid a greater, (5) at the penultimate stage (swab removal) he may, particularly where the patient has been taking the anaesthetic badly and is suffering from shock, be so anxious on surgical grounds to bring the operation to an end as rapidly as possible that, in the exercise of his discretion, perhaps unconsciously exercised, as soon as he has completed the rcmoval of all swabs of which he is at that moment aware he asks the sister for the cotint and forthwith starts to close the wound". He also said, "We must bear in mind that a surgeon is a human being and not a machine. \Ve must take into consideration the nervous anxiety which almost every surgeon must have in conducting a difficult and ticklish operation". Again, it must not be forgotten that the availability of apparatus, equipment or appliance at a particular place where an operation is being performed may make a difference between the success or failure of the operation. If, for example, an operation is to be performed at a village where adequate facilities for operation are not available, such a fact must be kept in mind before deciding whether a surgeon \-'"vas negligent or not. In vVhiteford v. Hunter/ a vety competent English surgeon in a leading English hospital was absolved of thc charge of negligence on the ground that a particular apparatus available in the United States was not at the relevant time normally available in England .and, generally, was not used even by reasonably competent medical men ]n England.' Lord Justice Scott, in Mahon v. Osborne, points out that among the features a surgeon ha·s to contend with during the course of an operation is the condition of the patient. Sometimes an operation mig~ .f~il.l>ecause of tl~~)Jeculiar....£onditiQE_oLth~atien..L~yh~ch,JJ.efqre lt1!l O~E..~ti~~: c9~ld_I.10t._r~~2.I..!.ll-hl.Y..lJ.~_Jor?~~.1!.:. In lVarren v. Greig2, an action for negligence filed against a physician and a dentist was dis missed. A patient was under the treahnent of the physician for lum bago and sciatica. The doctor, observing the presence of pyorrhoea 1
(1950) vol. 94, SoL J. 758 (1935) Lancet, vol. 1, p. 330
M.L.
17
258
MEDICAL LAW AND ETHICS IN INDIA
and finding no other focus of infection, advised a dental examination and the possible extraction of the teeth. A dentist was called in and, on their joint advice, the plaintiff consented to an extraction. All of his twenty-eight teeth were extracted at one operation. The doctor himself administered the anaesthetic and the actual extractions occupied about three or four minutes; the patient was under the anaesthetic for ten minutes altogether. The initial bleeding was heavy for ten or fifteen minutes. About ten minutes later it was possible to prop the patient up in bed and morphia was administered; oozing continued; the dentist bega:n to plug the sockets, the patient being able to co-operate. Some time thereafter the plugs were disturbed and there was more bleeding. Eventually the patient was removed to a hospital where he died within twenty-four hours. The question was whether a preliminary blood test should have been taken. A blood test would have revealed acute leukemia. The judge said that, serious as a mass extraction was, apart from the inevitable pain and discomfort, he thought that the patient, if in ordinary health, would not have died and would probably have been alive today and in much better health. The court also said that acute leukemia was a rare disease and the symptoms were not very certain. The doctor had not been given any previous history of nose bleeding. Having regard to the rarity of the disease and the fact that the doctor was not given the previous history of nose bleeding, it could not be said that the doctor had failed in his duty in not taking a blood test before advising mass extraction of the teeth. This was a case where an operation failed because of a particular condition of the patient which neither the dentist nor the doctor failed in their duty to reasonably foresee. In White v. Board of Governors and Westminster Hospital\ 1.11. Justice Thompson dismissed a claim for damages for negligence in res pect of an operation by an eye surgeon. The patient, who was aged nine at the time of the operation, entered hospital in 1955. The object of the operation, which was on the right eye, was purely cosmetic, for the squint which existed in that eye was so inveterate that an improve ment in appearance was all that could be hoped for. The vision in the eye was very poor but there was enough capacity to make it valuable as a stand-by eye. In the course of the operation, the surgeon mistakenly cut through to the retina when incising the muscle. The cut was sutured but the eye became shnmken and useless and had to be removed eleven months later. The plaintiffs case was that it was negligent of the sur 1
(1961) The Times, October 26; (1961) B.M.]. 2, 1580; Medicine, Science and the Law, April 1962.
CLASSES AND INSTANCES OF MEDICAL NEGLIGENCE
259
geon to make a hole in the eye as he did and that he did not then close the hole scrupulously and precisely. The judge said that the'sur geon had to make a cut through the muscle and tendon attached by scar tissue. The scale of the part involved was very small and one had to think in millimeters and very few of those. The question was whether the surgeon's failure to avoid cutting as he did amounted to negligence. To succeed, the surgeon had to show that he brought to the problem the skill, experience and judgment of a reasonably competent surgeon. It was necessary to consider whether he took less care because of his familiarity with this sort of operation or whether he was vain about the excellence of his technique and in seeing how closely he could flirt with danger. His Lordship thought him confident and was satisfied that he was not on the defensive but regarded the occurrence as a regrettable calamity arising from an irremovable hazard. On the evidence, the sur geon had exercised due skill, care and judgment. The plaintiff was the victim of mischance, the surgeon having taken all proper steps. The action failed. There are three other points which may be noted with reference to an operation: (1) Post-operative Care :-~ost-operative care...2f _~ 2at~~nt is of great imp~rt~l~T~·COrder"v. Banks,l a plastic surgeon pedo~~ operation to remove excess fat from beneath both eyelids of a twentynine year old woman out-patient. Before she returned home, the patient received certain directions from the surgeon, who also told her the telephone number of his consulting room, and arranged to remove the stitches the sixth day. The patient subsequently developed lumps below both eyes. She sued the surgeon alleging inter alia negligence in the post-operative treatment. The judge said that it was clear that the first forty-eight hours were of crucial importance as bleeding might occur and, if not attended to properly, irretrievable damage might re sult. It was on the failure to carry out sufficient after-care that the patient's case rested. If a patient was operated on and then allowed to go home, proper directions should be given by the surgeon to the patient (as had been done in this case) and the surgeon himself, or a properly qualified substitute, should be available and accessible to deal with any untoward development until the patient's next appointment with the surgeon. If the surgeon was relying on a telephone message from the patient to deal with an unexpected emergency, it \vas essential that the telephone should be adequately covered in the sense that messages could be received and transmitted to the surgeon. That had not been _~(.'-.J.~~~
1
_ _ _
(960) T~ancet, April 23, p. 917
MEDICAL LAW AND ETHICS IN INDIA
260
done in this case. On the first day after the operation, there was sub stantial bleeding from stitches, which continued intermittently for a day or so. Proper notification of the bleeding was communicated by tele phone to the number which had been given but such notification was not received by the surgeon. The judge held that this was due to the surgeon's failure to keep his telephone adequately covered or the failure of those for whom he was responsible to inform him of the message. That failure amounted to professional negligence. In MorTis v. vVinsbuTY White,l Tucker J. said that where a surgeon i~ retai!Iled to perform an operation personally, he should pay such subsequent visits as are necessary in the ordinary case. In this case, the defendant surgeon agreed to perform a surgical operation upon the plaintiff and to give the case his personal attention. The operation was to be performed in a nursing home which did not belong to him. The Judge said that in that particular case it was not necessary to decide what might be the position when, after the operation, there was some quite abnormal condition which involved a lengthy stay in the hospitaL But in the normal case, and the one before him was such, the obligation was to pay such visits as were necessary after the opera tion to see how the patient was progressing under the care of the nurses in the hospital and of the Resident :\,ledical Officers there. (2) Health of the Operating Surgeon :~A very peculiar case 2 occurred in 1954. A doctor was charged with negligence on the ground that when he performed the operation he was suffering from cancer and the cancerous condition of the operating surgeon was said to be the cause of the failure of the operation. In this case, the plaintiff went into a hospital for an operation for the removal of goitre and as a result of the alleged negligent perfonnance of the opera tio'n, the plaintiff now suffered from permanent laryngeal paralysis. At the time of the operation the surgeon was suffering from lung cancer and died shortly after this. The plaintiff claimed that the surgeon knew or ought to have known that he was Ullfit to perform the operation. The court held that the surgeon was quite fit to perfonn the operation even though he was snffering from cancer. A case such as this shows how an aggrieved patient sometimes attempts to find excuses for his
t
suffering.~
(3) 9J?erati?12....!-y~!hJ:ie~,~e!!! :-In Slater v. Bakel} a very old English case, it was suggested that since the operation was an ex periment with newly invented instruments, it was rash and such action 1 2 3
(1937) 4 All. E.R. 494 at 500. Nickolas v. I'dinistrlj of Health, (1767) 2 Wils. 3.59
The Times, 4th February.
CLASSES AND INSTANCES OF MEDICAL NEGLIGEKCE
261
was contrary to the known rules and usages of surgeons. The case was decided in 1767. Medical science has made tremendous headway since that date. It is well known that it is by experiments involving the use of different instruments and different methods and techniques that medical science has made the progress which it has done today. It is, therefore, submitted that the observations conceming the use of newly invented instrumerits made in the old English case ought not to be taken as an unqualified rule of law though, as a matter of caution, a medical man ought to remember that he should not experiment1 on the patient and he ought to adopt such practices and remedies as have been suffi ciently tested by experience. One may well ask, "How is tlns experience to be acquired?" One may recall the words of Denning L.J. (as he then \ was) in Roe v. Ministry of Health 2, "Doctors, like the rest of us, have to 1 leam by experience and that experience often teaches in a hard way",.f Of course, a patient ought not be made the subject of reckless experiment. The English case of Slater v. Baker really amounts to this that it was a reckless experiment made up,0n a patient and, therefore, it was a clear case of negligence. T!}at a. m~LE!la~.~ht ,E..o,:Lto mak~. hiuatientJll..!2.-.~ubtect...2.f~ckles~~xp~ment. has also been laid down in Rex v. Baternan3 • This topic may well be concluded with the very pertinent observa tion made by Goddard L.J. in Mahon's case, <'1 would not for a moment attempt to define in vacuo the extent of a surgeon's duty in an operation beyond saying that he must use reasonable care, nor can I imagine any thing more disastrous to the community than to leave to a judge to lay down what it is proper to do in any particular case without the guidance of witnesses who are qualified to speak OIl the subject." Joint Memorandum of the Medical Defence Union and the Royal College of Nursing on the steps that might be taken to obviate the risk of a surgeon performing an operation on the wrong patient, side, limb or digit. 4 "THE MEDICAL UNION and TIlE ROYAL COLLEGE OF NtJRSING have given consideration to the steps that might be taken to obviate the risk of an operation being perfomlCd. on: (a) the wrong patient; ./ (b) the wrong side or limb; " (c) the wrong digit. ,.. 1 See the 2 (954) 2
topic Medical Experimentation Q.B. 66 at 83
011
Human Beings in Chapter III
(1925) 94 L.J" K.B. 791.
4
Reproduced by kind permission and courtesy of the ~JEDlCAL the ROYAL COLLEGE OF NURSI)'!G.
D£F£XC£
U NIOX and
262
MEDICAL LAW AND ETHICS IN INDIA
During the period October, 1959, to September, 1961, THE MEDICAL DEFENCE UNION dealt with no fewer than twenty-eight such cases and it is hardly necessary to say that these avoidable mistakes are quite indefensible. THE COUNCIL OF THE MEDICAL DEFENCE UNION and THE ROYAL COLLEGE OF NURSING are firmly of the opinion that in order to minimise the risk of such occurrences, it is eminently desirable that wherever prac ticable the suggested safeguards as outlined below should be taken. It is appreciated that iIi certain out-lying or "cottage" hospitals there is no resident medical staff and that in some hospitals it may not always be possible to adopt these safeguards in their entirety. OPERATING ON THE WRONG PATIENT
Causes Predisposing to Error: (i) In hospitals which undertake a vast amount of casualty WOrk",. where emergency patients are being admitted in quick succes sion, some of them unconscious, there is the possiblity of the notes becoming attached to the wrong patient. \Vhere it is the practice to attach the patient's name to the clothing which has been removed in the Casualty Department, this does not always provide an adequate check because the clothes may be detached from the patient before or on admission to the ward. . /(ii) In respect of patients for non-emergency operations who have been in the ward for a day or two prior to operation, mistakes may arise if on the day of operation the beds are changed round. This situation is exacerbated if the day of operation coincides with a change in several of the nursing staff and could lead to the wrong patient being sent to the theatre if the routine did not provide adequate safeguards against error. .~iii) Mistakes may occur when changes are made in theatre lists following the commencement of the operating session, parti cularly if such changes have not been notified to the ward immediately they have been made.
Suggested Safeguards:
(1) All unconscious patients admitted through the Casulty Depart ment should be labelled before they are taken to the wards. The identity disc or label should bear the patient's name, ini J tials and hospital number where possible. The labelling of the patient should be the responsibility of the Casualty Sister or her deputy, or by night, the nurse-in-charge or her deputy.
CLASSES AND INSTANCES OF MEDICAL NEGLIGENCE
263
(2) Following the admission to hospital of a patient who is to undergo an operation, I.!..e. shoul9....be ~.~.!LiJ)Jl1.Q..,~rd .b¥..tbe ~ll.rge.smwho iUQJ~9_rfopn_ th~'LQ££ration. Prior to the operation the surgeon should examine the patients records and make sure that the notes do in fact relate to that particular patient and that the entries contained therein are correct. (3) All patients going to the operating theatre should be labelled by means of an identity disc or label attached to the wrist or ankle. The identity disc or label should bear the patient's name, initials and hospital number. The labelling should be carried out in the ward at the time the patient is prepared for the operating theatre and should be the responsibility of the ward sister or her deputy. In rare cases where the patient goes direct from the Casualty ( Department to the operating theatre, the onus of correct lubell- I ing should rest on the casualty sister or her deputy. In either instance the labelling would constitute an additional check that the correct patient received the prescribed premedication and that the correct patient was sent to the theatre. (4) In addition to the nature of the operation, the patient's name, initials and hospital number should also appear on the opera tion list. A copy of the operation list should be displayed in the anaesthetic room as well as in the operating theatre, thus ~ enabling both the anaesthetist and the surgeon to check and ensure that the right patient is presented for operation. A copy of the operation list should also be made available to wards in which the patients who are to undergo operation are ac commodated. (5) Pa.~ients shou~? be sent fO:..i~
t
!;:i..sr...,
264
!
!
MEDICAL LAW AND ETHICS IN INDIA
the patient has received the prcscribed pre-op~rative pre
paration including premedication;
where appropriate, the side of operation has been marked
(see Section (b) Clause (1) );
the correct case papers, X-rays, etc., accompany the pa
tient to the theatre.
(6) In the operating theatre one person should be made respon sible for sending for patients. This should be the responsibility of the theatre superintendent but in large operating theatre suites it may be necessary for her to delegate this responsi bility to some other person, e.g., the sister-in-charge of a particul/theatre or the nurse taking the list in a particular theatre.. (7) When out-patients are admitted to the wards for the day for a minor operation, they should be labelled in the same way as)n-patients before they are taken to the operating theatre: (8) Patients who are to be operated on in the out-patient theatre under a general anaesthetic should be labelled in the same way as the in-patients. / (9) Patients should have one hospital number which should be quoted on all papers concerning the patient. Where it is the practice to have departmental numbers these may be used additionally on the appropriate papers but never exclUSively. (10) In so far as children are concerned, the labelling should be carried out when they are admitted to the ward. As the case histories must be taken from the patient's relatives (who may not bt:; present immediately prior to the operation) it is vital that no error should occur in these notes in reference to the side, limb or digit on which the operation is to be perfoffiled. (b) OPEHATIN,C ON THE WROKC SIDE
on
LIMB.
Causes Predisposing to Error: (i) vVrong infoffi~ti9..!Lon the case papers of the patient, i.e. "right" i~tea(f-;;f-;;l eft".
(ii) Abb.I£.viatiQ.!}.-Qf _!h~L~ord~ "right" and "left". (iii) I~gible vvriting on the case papers. (iv) Fail~~e to d~k immediately prior to commencing to operate the--;~ry-;;-the operation list with the Ilotes taken to the operating theatre, (v) The wron!;L<:~~~ accompanying the patient, combined with (iv) above.
CLASSES AND INSTANCES OF MEDICAL NEGLIGE"N'CE
265
(vi) T!~,J2~~l~ati?~:~f, the.Y~'!.2?g .~ide or .Dmb, combined with (iv) above. (vii) No routine procedure for marking the operation side.
Suggested Safeguards: (1) The side on which the operation is to be performed should be indelibly marked before the patient reaches the theatre and in order to denote the side a mark should be made with an in 9~1iblt; ski.!LPencil on the forehead of the patient. This should normally be made the responsibility of the house surgeon. In the case of "listed" patients already in the ward, it is usual for the house surgeon or a house officer to ~_~e_ th~ '"~ti.L':Ilt~ t!:~~yen~~ before the opera!iOI.f- and this would give the practitioner concerned an opportunity of marking the opera tion side. In the case of emergency operations the surgeon generally sees the patient in the ward before he is taken to the operating theatre, thus providing him with an opportunity for marking the operation side. In the rare instance of a patient who is taken direct from the Casualty Deparbnent to the ope rating theatre, the practitioner \vho decides upon an immediate operation should be made responsible for marking the opera tion side. In the event of the ward sister or her deputy, or exceptionally the casualty sister or her deputy, Bnding that the side of operation has not been marked when the patient is due to be sent to the operating theatre, she should see that the surgeon who is to operate is informed accordingly, but she should not herself undertake the marking. (2) The words "light" and "left" should be written in full in the patient's notes and in the operation lisL/ ~--.:.......:.....,~~~.~••.-L....
(c)
'.
..,"~
OPERATING ON THE WRONG DIGIT.
Causes Predisposing to Error: (i) .fj!11Q:~.~....re.fer!ed t~J?L~::b~0ns!~~L.£~~LI}~. (ii) V~~_. il~foJ1!l.!!.!ion on the case papers of the patient, i.e. "light" instead of ·'left". (iii) Ill~.&gle .:.:.£i~[, on the case papers. (iv) l;;)tilure to ~~ immediately prior to commencing to operate the entry on the operation list with the notes taken to the operating theatre. (v) TlgLw.rQD&3~~ papers accompanying the patient, combined with (iv) above.
266
MEDICAL LAW AND ETHICS IN INDIA
(vi) The preparation of the wrong digit combined with (iv) above, (vii) No routine procedure for marking the side on which the .opera tion is to be performed. Suggested Safeguards: v·'(l) In order to avoid the possibility of any ambiguity concerning the finger(s) on which the operation is to be performed, the finger(s) should always be described as thumb, index, middle, ring and little fingers and not as 1st, 2nd, .3rd, 4th and 5th. In so far as the toes are concerned, the accepted practice is to describe them as hallux (big), 2nd, 3rd, 4th and 5th (little) toes and this should always be adhered to. (2) The words "right' and "left" should be written in full in the patient's notes and on the operation list. In order to reach agreement on a routine procedure, incorporating as far as possible the safeguards put forward in this memorandum, to be adopted in a particular hospital or group of hospitals, it is suggested that joint committees of medical and nursing staff should be set up on a local basis. The committees should include, inte1' alios, the matron and a representative of the consultant surgical staff." Recently, a claim by a patient on whom a wrong operation was perfonned after a fantastic act of coincidence was settled in England. l The wrong operation was performed -because his cousin's X-ray plates instead of his were sent to the theatre by mistake. Two cousins having the same surname attended at the same time the out-patients' depart ment of a hospital under the. charge of the Manchester Regional Hospital Board and both were treated for a complaint of the right hand. The difference in their complaints was that one had something wrong with his metacarpal bone and the other with the scaphoid bone. As a result of the fantastic mix-up of X-ray plates, the patient's cousin's X-ray was sent to the theatre and a part of the patient's bone was wrongly operated upon. It did not occur to those who committed the error that two people of the same name might be under treatment at the same time. i
t
Part XVI PRACTICES AND METHODS A doctor is not negligent if he acts in accordance with a practice i accepted as proper by a responsible body of medical men, merely be-I 1
ldanchester Regional Hospital Board's case, The Guardian, April 25, 1962.
CLASSES AND INSTANCES OF MEDICAL NEGLIGENCE c~;!~re ~~r;t_o.!her b~?dy of opinion that takes_~tra~yft!y.
267
This principle is enunciated in several decided cases on medical negligence. By way of illustration see Bolam's case. l In this case, a doctor in ad ministering electro-convulsion therapy to a mental patient followed a particular procedure. The KC.T. treatment followed by the doctor consisted in the passing of an electric current through the brain of the patient which, without the prior administration of a relaxant drug, re sulted in violent muscular contractions and spasms, attended with a known, slight risk of bone fracture. In accordance with this practice, the doctor treated his patient with KC.T. treatment without applying any form of manual restraint arranged to support the plaintiff's chin and to hold his shoulders. Nurses were present on either side of the couch to prevent the plaintiff from falling off. In the course of this treatment the patient sustained fractures. Witnesses called by either side gave evidence as to the different techniques which they adopted in giving the KC.T. treatment: some used relaxant drugs, some restraining .sheets and some manual control, but all agreed that there was a firm body of medical opinion opposed to the use of relaxant drugs. Further, in this case the defendant had not warned the patient of the risk of the treatment (which he believed to be small). On this point also the evidence was that this was in accordance with the practice accepted by a responsible body of medical opinion. The Judge, therefore, held that the doctor was not liable, applying the principle that a doctor is not negligent if he acts in accordance with a practice accepted as proper by a responsible body of medical opinion skilled in the particular form of treatment in question merely because there is a body of competent professional opinion which might adopt a different technique. In a Scottish case, Hunter v. Henley/ the court stated the reason 1 behind the principle that there is no negligence if one of the standard ) methods is followed: "In the realm of diagnosis and treatment, there 1 is ample scope for genuine differences of opinion." It may further be noted that in order to decide whether a doctor I is negligent or not the court only considers whether there are 1:\'10 or\ more different views and practices held or adopted by responsiblel bodies of medical men. The court does not consider whether the prac-! tice followed in a particular case is the better practice. In Bolam'/ case the learned judge said that it was right to say that it was not essential to decide which of the hvo practices was the better practice, so long as it was accepted that what medical men did in a particular case was in accordance with a practice accepted by responsible persons. 1 (1957) 2 AlL KIt. 118 "(955) S,L.T. 21-'3 at 217.
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It is, however, negligence to continue a practice regarding which several warnings as to its danger have been given. But failure to take notice of a single warning would not amount to negligence. In Craw ford v. Charing Cross HOI:;pital/ the question was whether a warning given concerning a practice in an article in Lancet rendered the follow ing of that practice an act of negligence. It was held that it would not be so. But it should be noted that a mere personal belief that a par ticular technique is best is no defence to a charge of negligence unless that belief is based on reasonable grounds. A medical man cannot I' obstinately and pig-headedly carry on with some old technique if it has been proved contrmy to what is really and substantially univer sal medical opinion. In Bolam's case it was observed by the court that if it were not so one might get men today saying, "1 don't believe in anti septics". A~.J:Qgar9..5..,fo]lQwinlL ..
(19.53) The Times, April 23rd and December 8th. (1961), Lancet, 2nd December, 1248
CLASSES AND INSTANCES OF MEDICAL NEGLIGENCE
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was his duty not to have introduced a social relationship into his course of treatment. Medical evidence, in fact, has condemned social contacts. JuStice Barry, who tried the case, said that probably this method was introduced with the best intentions. He absolved the doctor from any suggestion 6f professional or any other misconduct. However, the judge held that when medical evidence condemned social contacts it was for the doctor in the case to convince him that his departure from general practice was justified and that it was a reasonable departure in this young science of psychiatry. The judge held that the doctor becomes negligent if he tries a new technique and he must justify it before the court. If his novel or exceptional treatment failed disastrously he could not complain if it was held that he went beyond the bounds of due care and skill as recognised generally. Success, said the court, was the best justification for unusual and unestablished treatment. It should, there fore, be remembered that the doctor might be negligent if he tries a new technique and departs from settled practice and method. Fowler v. vVest Dorset. Croup of Hospital Management Committee\ Mrs. Fowler broke both bones in the right forearm. and there was a smal1 punctured wound caused by the bones. The doctor immediately applied an unpadded plaster. The judge said that he found it impossible to absolve the doctor from his responsibility for his failure to treat 1.frs. Fowler with a course of penicillin injections. Good prac tice demanded that fractures of that kind should not be enclosed at once in an unpadded cast. The judge said that he accepted the fact that the doctor had been puzzled and very worried over the case but he found that the application of an unpadded plaster immediately after the reduction of the fracture intedered with the circulation and created a condition in which the preventive and curative effects of free circula tion provided by nature were removed. This case, therefore, is an instance where departure from settled practice and method resulted in a verdict of negligence against the doctor. Another case, Handerson v. Handerson, 2 also illustrates the clanger of departing from settled prac tice and method. At the end of an operation by the defendant severe bleeding OCCUlTed in the patient and the surgeon, by stitching, took .measures to control this. \Vhile doing so the needle broke and two thirds of it, about half an inch in length, remained in the child's throat. The stitch was inserted with a fresh needle and the bleeding was brougbt under control. At that point the bulb in the headlamp used In
1 2
(1955) B.M.J. August 6th, p. 387. (19.55) B."Al.J. J\hrch 12th, p. 672.
MEDICAL LAW A.ND ETHICS IN INDIA
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by the smgeon failed, plunging the theatre into almost total darkness. Replacement of the bulb took only a few seconds, and continuous anaes thesia by gas was administered to the patient while the broken nee~lle1 was sought. The surgeon probed the soft palate with his finger and the blunt end of the foreceps. After about fifteen minutes he thought he felt the needle and made an incision with a scalpeL The needle was not found and a stitch was inserted in the incision. The unsuccessful search lasted an hour. Next day the missing part of the needle was removed. The patient's voice thereafter became weak, hollow and nasal and she spoke like a person with a cleft palate. The medical evi dence was to the effect that the proper surgical procedure in the cir cumstances was not followed by the surgeon. The Court said that it should have occurred to the surgeon that prolonged probing and stretch ing of the fibres would have serious and possibly permanent conse quences. It was held that had the surgeon exercised the care and skill reasonably to be expected of a surgeon, he would, after a few minutes, have desisted from his blind search. The surgeon having departed from settled practice and that departure having caused damage to the patient it was held that the doctor was negligent. If a method is a new one but if it has been successful for some time then the court might be inclined to hold that there was no negli gence in following a new method. In Cox v. Carshalton Group Hospital Management Committee,l a nurse gave a child suffering from polio an inhalent in bed by putting a pillow on her leg and a tray on the pillow. This method was successful for two months under supervision. One night, when the nurse was out of the room for a few seconds, the inhalent bottle filled with very hot liquid fell on the child's leg. As the child had managed quite well for herself for a couple of months it was held that it could not be negligence on the part of the nurse to leave the room for a few seconds. In 1,Vaters v. Park,2 the patient gave birth to a stillbom child and had to have a second operation for sterilization. The surgeon was sued for damages for negligence in carrying out the original operation. In this case the question was whether the surgeon was under a duty to tell the patient that there was a slight risk of failure and to give her advice accordingly. The court held that in the light of the current medical opinion and practice, a surgeon did not fall short of the proper standards of the profession if, in circumstances such as these, he did not tell the patient that there was a slight risk or advise her to lIse contraceptives. The court held that the surgeon was not negligent. {
(H).S.5). The Times. 29th March t (1961) 2 Lancet, 204. 1
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'tThe
conclusion to be drawn from decided cases is that a court is only concerned to see whether a standard method or practice was followed in a particular case. If a standard practice or method was followed in a particular case, it is not negligence merely because a better practice or method might have been followed or some other precautions or actions might have been taken which would have been more effective. t As wAs said by the Scottish Court of Appeal in 195,5 in Hunter \I, Hanl eyl, "Even a substantial deviation from normal practice may be war ranted by the particular circumstances. To establish liability by a doctor where deviation from normal practice' is alleged, three facts require to be established. 12E~()f all it ~t _b.!-l2!s>yed that there is_ ~':lSll
. . -.~~'-~........-,
Part XVII PHARMACISTS Failure on the part of a pharmacist to verify the ordered dosage was considered negligent conduct in Colli1'lS v. Hertfordshire County Council: The pharmacist's conduct was held negligent in taking an order by word of mouth for an unusual dosage for an injection of cocaine and adrenalin and in failing to take steps to verify that there was no mistake about what was being ordered. Justice Hillbury in his judgment said, "It is said that the 11harmacist was negligent. He cer tainly and most clearly was. It has been called to my attention, in the 1
~ ~
(1955) S.L.T. 213
(W54), The Times, 2nd July.
(1947) 1 K.B. 589 at 620.
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course of the evidence, not only that this \vas a dangerous drug for which any pharn1acist should cxpect and would expect a prescription in writing from a fully qualified medical officer, but it has also been called to my attention that there is evidence that in the British Phar macopoeia every dispenser is warned that when an order is received, that means even when in writing signed by a qualified medical officer, requiring him to dispense an unusually large quantity of a dangerous or poisonous dmg, before doing it, he should take steps to verify that there is no mistake about what is being ordered. This pharmacist took an order by word of mouth for an unheard dosage for an injection of cocaine and adrenalin and made it up; he knew that. it was for an operation, and he knew that it was for injection. He made it into a steIile solution and put it into a flask suitable for immediate use in the course of an operation; he took no steps whatever to insist upon a qualified person initialling the order; he made no check and he did not even send up the flask when made up with any notes calling sPecial attention to it or asking that the doctor's attention should be specially called to it. He disregarded every sort of plain and ordinary safe guard for the making up of the dangerous drug."
Part XVIII SWABS, PACKS AND SPONGES
n
The problem of negligence arising out of leaving foreign articles such as s\~abs, pac~s an~ sponges in th.e body of a patient is oftenfV coupled \vlth the dlscusslOn of the questIon as to whether the mle of, res ipsa loquitur applies to such cases. In cases where a medical man. has been charged with having left a swab or a pack or a sponge in the body of a patient, it is often argued that the fact that such a foreign body, put in during an operation and remaining inside after the operation is over, is an act which by itself proves negligence on the part of the medical man. That is to say, those who seek to prove 'I negligence on that ground do not have to prove that there was care- I . lessness or recklessness on the part of the medical man in discharging \ his duties. The validity of this argument must always depend upon I the facts of each individual case. The discussion of this topic must begin with thc leading ease of Mahon v. Osborne,l though this case is by no means the first decided case on the subject. This case is impOltant for the reason that all 1
(1939) 2 K.B. 14
CLASSES AND INSTANCES OF MEDICAL NEGLIGENCE
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the three judges who decided it said emphatically that the question whether or not omission by a surgeon to remove a swab constitutes failure by him to exercise reasonable skill and care, must be decided Dn the evidence given in the particular case. Further, two judges stated that there was no general rule of la\v which required a sur geon, at the end of an operation such as the one in question, after removing all the swabs of which he was aware, to make sure that no swabs had been left in the patient's body. This again indicates that what the court intended to state was that the proble,m of negligence arising out of leaving a swab or a pack or a sponge in the body of a patient can never be disentangled from the facts, TI~.ere are several fact?~r~whiC;!LJ?la~ their part in the course of an operation. .It woule!., theref2!.e, be advisable to consider fully the nature of the operation i!2,order to appreciate the circumstances under which a swab ~ tQ..lJ.~~e!t in the body of the patient. A full description of the actual operation would, in most cases, discl;;e facts sufficiently indicative of the exercise ·of or lack of exercise of skill or care on the part of the medical man. It may be that in certain cases expert evidence will, in addition, be necessary. In Mahon's case, a patient was operated upon for a perforated duodenal ulcer by the surgeon. During the operation swabs were used to pack-off adjacent organs in the patient's abdomen from the area of the operation. At the end of the operation the surgeon removed from the patient's body all the swabs of whose presence he was a\~are, and he also inquired of the theatre sister \vhether all the swabs used during the operation had been accounted for. On being informed by her (in accumtely, as it appeared later) that they had been accounted for, the surge( III sewed up the opening in the patient's body. Two months later the patient again acutely ill. He was operated on and it was found that a swab had been left in his abdomen after the first opera· tion. The question was whether the surgeon who performed the first operation was negligent. Scott LJ said that the important principle was this: the question whether there was want of care could not justly be reached without taking due aceount of aU the circumstances of the particular operation; and the legal standard of care cannot be said to be than that of the ordinarily good and skilful practi tioner in those circumstanees. The system which \vas followed for the counting of swabs was that it was the duty of the nurses to follm:v a carefully devised system of checks and counter-checks with a blackboard and numbered hooks in regular use at the hospital, to count all swabs brought to the operating table, keep the count during the operation, and, at its conclllSion, to report to the surgeon, in answer
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to his question, whether all the swabs used were accounted for. The swabs used were bound at the edges with a looped tape four or five inches long finnly sewn on to one comer. The object of the tape was to make the locality of the swab ascertainable during the operation. The loop of the tape was long enough to allow the Spencer-\Vells clips attached thereto to lie or hang outside the margin of the abdominal wall and so to remain visible. The presence of a swab below a packing was thus indicated by a clip above as, in a harbour, the ground-mooring is indicated by a buoy. The surgeon explained that by the intestinal movements a swab might slip out of its place. In this case, it was found as a matter of fact that, during the removal stage of the first operation, the swab was in about the same position as the surgeon had placed it and that, in the process of removal, he missed it. On these facts, two judges held that the doctrine of res ipsa loquitur would apply, and called for an explanation from the surgeon as to why, in the process of removal, he missed the swab. The third judge disagreed with that view and held those facts by themselves did not prove negligence on the part of the surgeon so as to call upon the surgeon to prove that he was not negligent in failing to remove the said swab. \ The following points, mentioned by Scott L.J. in Mahon's case, should always be noted whenever there is a charge of negligence against a surgeon for failing to remove a swab from a patient's body: "(1) It is of supreme importance that the surgeon's mind should be free throughout the operation to concentrate on his main task with all its difficulties, problems, surprises and risks, and that it should not be disturbed or diverted. It is objectively of equal importance (2) that a patient should not be kept lmder operation a moment longer than is necessary, (3) that there should be no pause in the continuity of the operation even at the time of the count, (4) that the patient's organs should be moved and touched as little as possible, (5) that any extension of the field of operation which involves handling of the organs should be avoided because of the risks, of increasing surgical shock, of causing subsequent 'adhesion' and, particularly in abdominal cases, of sepsis spreading." y The two judges who held that the doctrine of res ipsa loquitur applied to the case, based their finding on the fact that as it was a sur it \vas equally his duty to take it out geon's duty to put a sw-ab and reliance upon the nurse's counting was not enough, at least on the facts of this particular case. They took the view that the surgeon him self ought to have made some search on his own to ascertain whether
CLASSES AND INSTANCES OF MEDICAL NEGLIGENCE
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i\
1 cular case must depend on the facts. According to them, a search may be by the finger or by the eye or, in some cases, by mechanical meanS. Goddard L.J. said, "1 venture to think that it is clear that, unless there be evidence that the nature of the case was such that no search of any description-be it by eye, finger or mechanieal means-was possible, a surgeon cannot show that he used reasonable care in that part of the operation which consisted in taking out the swab by saying 'I relied on thc nurse's count'.... I do not want it to be thought that 1 am intending to say either that the nurse's count is of no value, or that . no reliance is to be placed on it by the surgeon. On the contrary, if he omitted to ask the nurse if the count were right, on the evidence in this case, 1 should think, he would be omitting a very necessary pre- \ caution because the result of the count will help him to ascertain if he has missed anything. 'While to omit the precaution afforded by a count i migbt well be negligent, it does not follow that he fully discharges his I duty by merely asking, and being told that the count is right". Un-.., fortunately, in this case, the surgeon had not made search b")710uch at all. He had searched by sight. But, in the eireumstances, it was thought that that was not enoungh and, therefore, the surgeon ought to explain how he came to leave a swab in the patient's body. Goddard L.J. said, "The surgeon is in command of the operation, it is for him to decide what instrument'>, swabs and the like are to be used, and it is he who uses them. The patient, or, if he dies, his representa tives, can know nothing about this matter. There can be no possible question but that neither swabs nor instruments are ordinarily left in the patient's body, and no one would venture to say that it is proper, although in partiO!llar circumstances it may be excusable, so to leave them. If, therefore, a swab is left in the patient's body, it seems to me clear that .the surgeon is called on for an explanation, that is, he is ) called on to show not necessarily why he missed it but that he exercised due care to prevent it being left there. It is no disparagement of the de voted and frequently gratuitous service which the profession of surgery renders to mankind to say that its members may, on occasion, fall short of the standard of care which they themselves, no less than the law, require, and, if a patient on whom had befallen such a misfortune as we are now considering were not entitled to call on the surgeon for an explanation, I cannot but feel that an unwarranted protection would be given to carelessness, such as 1 do not believe the profession itself would either expect or desire",
I
I
I \
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Mahon's case refers to ]arnes v. Dunlopl where an action was filed against the defendant for negligence during an operation as a result of which a surgical pack was left in the body of the patient, necessitating a further operation three months later. Death followed within a few days. The original operation was intended for reinovalof the gall bladder, though actually only a number of gall-stones were removed: Lord Justice Scrutton said, "A well recognised operation was carried out. It was an essential part of the operation to wall off the gall-bladder by the insertion of certain crumpled-up. pieces of towelling or sometimes by gauze. Usually the wall will be made of three bundles of such mate· rial. It is quite clear that the only person who puts those things in and selects the place where they shall be is a doctor. He puts in not a large number but, generally, three. It is a part of the operation for the doctor, and the doctor only, to take out the three or more packs of towelling he has put in. lie mqst know where he has put them and it is his busi~esU~Ltake_them~- out.~. Lord Justice Greer said that it was ~ly part of the operation to insert the paeks and equally part of the operation to remove them. This involved a search by the surgeon after the operation was over. The fact that counting might be done by~ other people did not absolve the doctor from the necessity of makinJl, some reasonable search. The court of appeal unanimously held on the facts of the case that the verdict of negligence against the surgeon could not be disturbed. Though every case turns on its own facts, it is well for surgeons to remember the general observations made in the cases which are mentioned above. It may be noted that in a case where a swab is to be removedil some time after the operation is over, the duty to remove a swab or a pack is usually delegated in a hospital to a resident medical officer or a responsible nurse. In such a case, if the swab is not removed at a rele- ~ vent time, the fault would obviously be that of th~ resident medical officer or the nurse, as the case may be. In Dr. "Arc allum's case,2 a gynaecological surgeon of Edinburgh performed an operation on a patient with complete success but three afterwards a nurse re moved a swab from the vagina. The patient thereupon sued the surgeon for negligence. Evidence given was to the effect that it '.vas the dtlty of the nurse to take out the swab after tbe operation. It was, there fore, held that the surgeon was not liable. The nurse herself admitted that it was her duty to remove the swab. Tbis case is given with a view to illustrate that every ease must be considered and decided on its own facts and circumstances. Primarily, therefore, before consider
-----
1 (19~11) :2 (1948)
I
Vol. I, H.M.],. 25th April, 7:30 B.M.]. 3rcl J llly, 54.
1
CLASSES AND INSTANCES OF MEDICAL NEGLIGENCE
277
ing, how a case of medical negligence is to be decided, it would be a wiser and more proper course to ascertain the facts and circumstances of the case one is concerned with. In an issue of the Lancet1 a brief report of an inquest held by the· Sheriff of Glasgow is given. At the conclusion of the inquest a verdict was given that at a major abdominal operation, a swab had been left in the body of the patient causing his subsequent death. Though this is not a eivil case of medical negligence, nevertheless, certain observations made by the Sheriff at the conclusion of the in quest are worth noting. A major abdominal operation had been per formed on a patient aged sixty-six. Between four to eight large swabs and between thirty to forty smaller swabs had been used. In answer to the Sheriff the operating surgeon said that the senior surgeon had to accept considerable responsibility for the general organisation of work in the theatre and had to be sure that the nursing staff were efficient and that they understood their duties. Subject to that, the actual counting of the swabs was left to the nurses. Q.r. Alison, Emeritus Professor of Forensic Medicine at Glasgow University stated that even ---=--~------~C-~~-though the swab had induced initatiolll the cause of death was the ~ulmination of v~rious conditi~uring th-e inquiry it was stated that the operation began in the morning before lunch-time and went on till after lunch and there was a change-over of nurses while it was in progress. It was said that care ought to be taken in future not to have a change during a major operation. A further precaution suggested was the sewing of tapes onto the swabs in order to assist the surgeon in detecting the presence of swabs in the body. In Garner v. Morrell,2 two dental surgeons were held liable for negligence in resp~ct of the insertion of a throat pack. The plaintiff's deceased husband· attended at the surgery of the defendant for the purpose of having his teeth extracted. One defendant perfonned the operation of extracting and the other administered the anaesthesia. During the course of the operation a throat pack which had been in serted ~n the mouth of the deceased was swallowed by him and, in consequence, he died from asphyxia. In the course of the ment it was stated that the case was one of great importance and that so far as was known an accident similar to this had never happened before. It was argued on behalf of the defendant that the defendant had followed the usual practice of his profession but that a series of highly improbable coincidences had caused this unfortunate accident. __
1 2
~'_~,_
m
}
(1953) Lancet August 1st, p. 251.
(1953) The Times, 31st October; (953) Lancet 7th November, 997.
(t
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There was ample evidence to support the finding of the trial judge that the throat pack used by the defendant was too short. The happening of the accident called for an explanation by the defendants and the explanation offered by them had largely broken down. Lord Denning said that the accident was one which could and should have been avoided and the fact that a similar accident had never happened before was really against the defendant. Another case of a forgotten swab where it was held that there was negligence in not following the proper method to ascertain whether all the swabs were removed from the body of the patient is Urry v. Biererl • During an operation on Mrs. Urry for the delivery of a child by a Ceaserian operation a swab or pack was left in her body. Lord Justice Singleton said that when a Judge was called on to try a charge of negligence he had to determine it on the evidence given before him and decide whether the case put forward by the plaintiff was proved or not. It was no part o!.J:!':~.Ju~<::tion of the Judge t,o tell surgeon~ ho,:v~:ey sh?ul~erform their duties. It would not be for the good of surgeons or for the benefit of the community if a Judge ventured to instruct surgeons. Surgical packs used in an operation such as this were provided by the nursing home. They were counted by the sister before and after use. They were about ten inches square and each had attached to it a tape ten to twelve feet long. Tapes were regarded.,£y @.~.Y surgeons and certainly by the perSDIlS re.:pQ!!~ibl~or_,~his nursif!g llQJ.IlL
(1955) Lallcet, 25th l-.Iarch, (380; (1955) B.M.], 2(3th March, 797; (I 955) The Times, lSth Tuk (1939) 2 K,B', 14 at 47.
CLASSES AND INSTANCES OF MEDICAL NEGLIGENCE
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nor could it be. The patient was entitled to expect that the surgeon would do what was reasonable to ensure that packs were removed from the body before he asked the sister if the count was correct. The one was independent of the other. TE.Ui.ster':""'£Qul1t.':vas.
(1961) The Times, :"1arch 10th, This case was originally decided by a court in Nairobi and a repOlt of the case as decided by the Nairobi court is to be found in (1958) B.M.J. 14th June, p. 1425.
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decided that immediate operation was essential to stop the haemorrhage. Although she was taken to the theatre it was considered too dangerous to remove her from the bed to the operating table. The operation was one of grave emergencv and the surgeon had the assistance of the full theatre staff. During the course of the operation the surgeon used hvo or three packs. When he had finished, he removed the swabs and checked carefully the area involved. 'When he was told by the theatre sister that the swab c,ount was correct, he sewed up. Some months later, after a history of vomitting and abdom1nal pain, the patient was operated upon by another surgeon. What was at once recognised as an abdominal pack was found in the intestinal area. The trial court held that, although the operation was an emergency, there was nothing in the circumstances to relieve the theatre staff from responsibility for the failure to carry out the accurate swab count The s.urgeon in his dcscription of this operation had himself excluded the existence of all the conditions which might reasonably excuse a surgeon from fail ing to remove a swab and it seemed to the judge that in fact there was a "verdict of negligence out of his O\vn mouth". The result was that, although the operation had been difficult and hazardous and.was executed as a brilliant piece of surgery and was completely success£ul and saved the patient's life, both the surgeon and the hospital autho-' rity were still liable for the suffering and damage which had been caused by the fact that the swab was overlooked. This matter then' went up to the Kenya Court of Appeal, which reversed the judgment of the trial court, and thereafter before the Privy Council. The Privy Council decided that the trial court was correct and reversed the judgment of the Appeal Court. Lord Denning, delivering the judgment of the Privy Council, said, "Once it was held that a swab was left in the body, there must have been some mistake made both by the surgeon and the hospital authority. So far as the surgeon was concerned, there must have been a swab left by him or his assistant, either a restraining swab or a mopping swab. So far as the hospital authority was con cerned, there must have been a mistake either on the check-in or check-out of the swab. Although there must have been some mistake, it did not follow that there was. negligence. The whole team was engaged in a race against time. They were under extreme stress. A mistake which amounts to negligence in a 'cold' operation would be no more than a 'misadventure' in a 'hot' one. There was no evidence to suggest here what kind of mistake thi~ would he." Thereafter, Lord Denning quoted with approval a passage from the judgment of the trial judge, which is as follows, "If the pack \vas a mopping pack,
CLASSES AND INSTA:"JCES OF MEDICAL NEGLIGENCE
281
it was negligence on the part of the person who used it, to lose control of it and leave it in the body. If it was a restraining pack, having re gard to the small number used, and their obvious position, the absence of movement and the lack of any particular [wed for haste at the con clusion of the operation .... it was negligence on the part of the sur geon not to remove it." The Privy Council, therefore, upheld the judg ment of the trial and h(Ol9Jhe.~llJ·geQn and the authorityJ!?ple. One may end this discussion by saying that even if it may not be an absolute rule of law, as a matter of abundant caution, at the end of an operation, 'L2-ur~.QE_o~&htJ before asking the nurse for the swab count, to ensure on his own? either ~ sight, touch or such other means as circu;;'~tanc~;;q~ire, t~ all the-;;;b;- - .. '~";;e;;;~;;d-;;d no swab is
Part XIX VICARIOUS RESPONSIBILITY The meaning of vicarious responsibility has been already explained. A hospital authority is responsible for. the ads. of its servant§. and a1i~I1t~~i.rr~spe~tive-oT wheth;;: tIle" sery.aPt~- and- ai~~t;-~;;~~~aged'~ 40ing administrative duties or in. exercising,!..hei~ skill and ~nowledge for treating or operating UpOll patients in the hospital. Therefore, a hospital would be liable for the negligence of a nurse even though the nurse has committed an act of negligence in carrying out instructions given by a doctor and it has now been authorita tively held that it does not matter that the act of negligence occurred in the operating theatre. But an English judge has observed that a, hospital will not be vicariously liable for the negligent conduct of a ~ nurse if the nurse committed that act in the operating theatre on inshllctions given by a doctor in the operating theatre and the nurse V had done that act without any personal negligence all her part. In Gold v. Essex County Council1 the Court remarked, "The true pro position would be that although the nurses remain the servants of the hospital in the operating theatre, the hospital would not be liable for their acts if they were only doing, without personal negligence, what the surgeoo directed them to do." Presumably the reason for not holding the hospital liable for the injurious acts of a nurse in the operating theatre, acting pursuant to the directions of the doctor and without personal negligence on her part, is that the nurse's act, in the circumstances, is not considered an
II
1
(l942) 2 K.B. 293 at 307.
282
MEDICAL LAW AND ETHICS IN INDIA
act of negligence on her part. A great jurist! has expressed the view ... that a hospital is not liable for a nurse's act in the operating theatre j" when she is carrying out the direct orders of a surgeon because, in those circumstances, she is not negligent in obeying them. In such cases, however, the hDspital would be liable for the negligence of the I doctor in giving wrong directions unless the doctor was employed and f selected by the patient.
i
Tl1~re )s J!."giff~!~I!ce..Qt.2Pini{):!..~~? .wheth~a.l~g~~gl.)~lUtholitL :v~.tll.~J?e liable for theIl~~geI"l:~~~~~t o~ vi~iti~~.~QQI!-2.~....E.1Jy sician. 'Thepo'iirt'ilas never been decided by, anx.......cQQ.rt of law,
th~~gh'differi~g-'~bservati~ b;;;'bee;--;;d~'b;' E~gli;h-C:~~. Except for Denning L.J., the judges who have expressed their opinion
on this point are of the view that a hospital authority would not be liable for the negligent conduct of a visiting surgeon or physician, But, as will be submitted later, the dissenting opinion of Denning L.J" ex presses the true position in law. In Gold's case, Lord Green opined that, so far as consulting physicians and surgeons are concerned, clearly the nature of their work and the relationship in which they stand to a hospital authority indicates that the hospital authority cannot be held responsible for their negligent acts. Goddard L.J., in the same case, held that visiting surgeons and physicians are not the servants of a hospital and further that they enter into a SQ!!.tl,'<1ct for servi~~s and not a contract ~ D.f service. 'The techIlic~!._d!fference between a contract of service anc.l.U.'j. contract for services is that under the former contract the relationship of master and servant is established whereas in the latter case he who agrees to give services remains an independent contracto!: The result' in law deduced by Goddard L.J. from that distinction is that a ser vant by his negligent act renders his master liable, whereas an independ ent contractor, being independent in the way he has to carry out his duties, does not by his negligent conduct render the person who engages him liable for his negligent acts. Accordingly, Goddard L.J. took the view that a visiting surgeon, being an independent contractor, and not a servant, does not by his negligent act render the authority engaging him variously liable. In Cassidy v. lYtinistry of Health,2 Somer vell L.J. said that if a patient is treated by someone who is a visiting or consulting surgeon or physician, the relationship between the patient and the visiting or consulting surgeon or physician is as if the patient himself had armnged to be treated or operated by the physician or sur geon. Thus, Somervell LJ. also took the view that the hospital autho 1 "HosprTALS AND TRAINED NURSES"
Redew, p. 553. z (1951) 2 K.B. 34.3 at 351.
by Professor A. L. Goodhart, 54 Law Quarterl!!
CLASSES AND INSTANCES OF MEDICAL NEGLIGENCE
283
rity \vaS not liable for the negligent conduct of a consulting or visiting physician or surgeon. However, Denning L.J. in Roe v. Ministry of Health 1 expressed the opinion that a hospital authority is responsible ~ for the whole of its staff, not only for the nurses and doctors, but also for ; the anaesthetist and surgeons. It did not matter whether they are I pennanent or temporary, resident or visiting, whole-time or part-time. 'r The learned)udge said that the reason wa~ that even if they are not servants, they are the agents of the hospital to give the treatment. The -\:vas earlier expressed by Den~~ng ~L. iill Cassidy v. Ministry of Health. 2 In that case the learned Judge stated, "~Vhere the q9ct()~or surgeon, be he a consultant or not, ~s employed and paid ~lot by the patient, but by the hospital authorities, I am of the opinion that the hospital authorities are liable for his negligence in treating the patient. It does not depend upon whether the contract under which he waS e~PGYed~vas a contra~t of service or a contract for services. is a fine distinction which is sometimes of importance; but not in cases such as the present, where hospital authorities are themselves un der a duty to use care in treating the patient. ! . take it to be clear law, .as well as good sense, that where a person is himself under a duty to use care he cann~!. !i~hirr:s~lf of his responsibility by delegating the of it to someone else, no matter _whether the delegation be to a servant under a contractgf service or to an independent contractor under a contra~t for services." The learn;dJ~dg~"'th~;iJroceeded to give an illustration oCtlle;pplication of the above principle from non
I
""I'
medical cases.
OneJ~!.~ra!~~ ..l~~_~~;:y,:;.~. th.~_~?-se...of ..a.1i.hJQ:Q~_
'YJ~~~9:~uty to navigate his ship with reasonable c~ The ship-l
owner cannot escape that duty by delegating the handling of the ShiP} to someone else, no matter whether it be a ship's captain under a con tract of service or to a pilot under a contract for services; and that is so even though the pilot is in control and the captain acts throughout' under his directions. It is submitted, with respect, that the opinion of Denning L.J. correctly expresses the true position in law as regards the liability of a hospital authority for the negligent acts of a visiting sur geon or physician. A visiting surgeon or physician, even though l~ ~a servant of a hospital authority, is an agent_of the hospital ~ thority. The fact that he is an independent contractor cannot absolve a hospital authority from its vicarious liability arising out of the negli gent conduct of a visiting physician or surgeon because, as Denning L.J. aptly put it, the hospital authority is itself under a duty to use
f
1
'J
(1954) 2 Q.B. 66; (1951) 2 K.B. 343 at
2 All E.R. 131.
284
MEDICAL LAW AND ETHICS IN INDIA
care and that duty cannot be abandoned or got rid of by employing an independent contractor. It may be safe to assume that, when such a point actually comes up for decisio!l before a court of law, it will be held that a hospital authority is liable for the negligent conduct of a visiting physician or surgeon. Such a decision is academic in a legal system where there is a statutory provision such as in New Zealand. Section 2 of tht? Hospital and Charity Institutions Act makes a hospital authority liable for the negligence of its doctors, nurses, etc., whether employed or engaged by it and irrespective of whether any fee is paid to them or not. Of course, a hospital auth. ority cannot be held liable for the negli- 'I' gence of a doctor or surgeon who is selected and employed by the patient himself. This was conceded by Denning L.J. in Cassidy's case. (Let us now consider the position where a dOGtor or a surgeon becomes vicftriously liable for the act of a nurse. If the doctor in his own dispensary employs a nurse to assist him in his dispensary, he would be liable for the negligent act of the nurse. But where, as in a hospital, a nurse is neither the servant nor agent of the surgeon or physician, he cannot be held liable for the negligence of the nurse:'; In Perinowsky "" v. Freeman,1 a patient at a hospital sued two of the surgeons who had ordered the ~urses in the hospital to give a hot bath to the patient. The nurse who gave the bath exceeded the instructions and gave a very hot bath with the result that the patient was severely scalded. The court held that the surgeons were not liable for the negligent conduct of the nurse unless they were near enough to be aware of it and to prevent it. At the time when the bath was given, they were not near the patient and they knew nothing about it. They were, therefore, not held liable for the negligent conduct of the nurse. The Court of Appeal of New Zealand considered2 the question as to whether the surgeon in charge of an operation can be held liable for the negligence of a nurse when he himself has not been negligent. The facts were simple, and were admitted. It was an assistant nurse's business to paint the abdomen of a patient with tincture of iodine in the operating theatre and, through her negligence in misplacing the containers, she painted the abdomen with iodized phenol. The surgeon discovered the error very soon after this and took prompt measures. The submission before the court was that the surgeon had the right or power to control the nurses in the operating theatre, that they were his servants, and that he must answer for their negligence. The court rejected. the 1
(1866) 4 F & F, 977; 176 Eng. R. 873 Ingram v. Fitzgerald; N .Z.L.R. 905.
CLASSES AND INSTANCES OF MEDICAL NEGLIGENCE
285
submission and stated that such a submission seemed to impose an lll tolerable burden upon the surgeon, for'it would impose upon him the legal responsibility for negligence in the theatre even though he him self had exercised all possible care and even though it was wholly impossible for him to guard against or prevent the damage. It was held that the Court had' to inquire what the surgeon had undeliaken to do and what had been negligently done; whether the negligent act was done by some person put into the surgoon's place to do an act which he intended to have done by himself, or whether it was· done by an independent collaborator upon whom he was entitled to rely. Under the conditions of modern surgery, observed the Court, it is impossible for the surgeon himself to do the whole work of an abdominal opera~ tion, and, in following the usual course of having the work done by a team, he was consulting not his own convenience, but the interests of the patient. Thus, the preliminary painting, the preparation in the theatre, the sterilising of the instruments, and the final painting were generally performed by the nurses. The theatre sister and the assistant nurses' were supplied by the private hospital where the operation was performed and they thus had independent duties to carry out. The court added that it was true that the surgeon was in supreme control and had the right and duty to intervene. But the persons sub ject to that control were skilled collaborators with independent duties and the surgeon did not find it neCessary nor would he expect to find it necessary to intervene to direct the manner in which they discharged those duties. They were not his delegates in the sense that they were there to do the work which he had contracted to do or to have done. They ..... ..... were the servants of the hospital but, in the theatre, they were. subject to his directions. Iill giving the directions the surgeon was not negligent. As he had every right to rely ~~~n the ~ompetence of th~ m7r=ses supplied by the nursing home where the operation had been performed and he himself had not been negligent in giving any direc tions to the nurses and as there were no circumstances suggested or proved in the case which showed failure of duty on the part of the surgeon to intervene, it was held that the surgeon was not liable for the negligent act of the nurse. Let us now take the case. of a surgeon who :)perates upon a patient~ under a contract between hImself and the patlClnt at a hospital or a ~ nursing home not belonging to the surgeon. In i\1orris v. 'Vinsbury· \Vhite/ a surgeon operated upon a patient under a special contract be tween himself and the patient at a hospital which did not belong to ,~~~'
1
~
(1937) 4 All E.R. 494
1
286
MEDICAL LAW AND ETHICS IN INDIA
him. After the operation, the plaintiff remained in the hospital and was attended to by nurses on the hospital staff. During this time the surgeon did visit the patient some three times a week. The plaintiffs treatment involved the insertion into his body of tubes aJl1d the fre quent replacement of these tubes. The tubes were inserted by the surgeon in the course of the operation, but replacements were carried out by resident doctors and surgeons of the hospital. Due to the negli gence of the members of the hospital staff a portion of a tube remained in the patient's bladder. The patient sued the surgeon for the negli gence of the nurses. It was held that he was not liable for any negligence on the part of any member of the hospital staff. Tucker J. said, "I think it is well established as a matter of law that the resident medical officers in a hospital, and the nursing staff, are nQt the agents of a specialist surgeon who comes and performs an operation of this. kind, at any rate in so far as they are performing the ordinary routine duties which have to be carried out at a hospital of this kind. The very reason for a patient entering a hospital of this kilnd and it is inherent in the arrangements that he makes with the specialist is that he will go somewhere where he will receive nursing attention from the resident medical officers in the hospital". In Paton v. Parker,l a surgeon was sought to be held liable for the negligence of an anaesthetist. \Vhilst the surgeon was performing an operation on a patient, due to an act of negligence on the part of the anaesthetist, the patient was injured. It was held that the surgeon was not liable for the negligence of the anaesthetist. Starke J. said, "The surgeon was entitled to rely upon the careful administration of the ether by a skilled and competent anaesthetist. No fact was proved which suggests that he ought reasonably to have anticipated negli genee, \vhether wilful or accidental, on the part of the anaesthetist ......... It may be that a surgeon should intervene if he knows that the anaesthetist or anyone else is endangering the safety of a patient in his but there is no evidence in this case that the surgeon had any such knowledge, or that he should reasonably have anticipated any act or omission which resulted in injury to the patient." Williams J. said, "In a public hospital the surgeon has to accept the services of the anaesthetist on duty and of the staff provided by the hospital. There is a legal duty on the hospital authorities to exercise reasonable care to proviqe a suitable theatre and equipment, including the warming apparatus, and to select as men1bers of the staff persons who are competent." 1
(1942), 65 c.L.H. 187
CLASSES AND INSTANCES OF MEDICAL NEGLIGENCE
287
(!he position of the surgeon a~ regards the negligent act of a member of a nursing home or a hospital may be summed up as follows. - A surgeon or a doctor performing a duty at a private or a public hos pital is not responsible for the negligent acts of the members of the hospital if""(i) in performance of duties which he himself has to carry out, he is not personally negligent and (ii) in the circumstances of a particular case, he could not reasonably have been expected to supenrise or check the actions of the negligent nurse or doctor and to intervene if a mistake was committed by them. The reason is that there is no relationship of master and servant or priIlcip~ ai~I~t--beh~~el1 a • p;actitioner and a nurse or a~y-~ther doctor or anae~theti;t--i~ .
.
"
,
'
.
~ hosp~~{ly Three miscellaneous cases of vicarious responsibility may now be noted. It has been held in Hall v. Lees! that a nursing association which undertook to supply nurses, but not to nurse patients through the agency of the nurses as its o\vn servants, was not liable for the negligence of the nurses supplied by it. It was held on the facts of the case that the object of the association was to provide for the supply of duly qualified nurses to attend on the sick. For that purpose it appointed and paid salaries to nurses for whose sen7ices charges were made to persons on whose application the nurses were supplied. The association issued printed rules and regulations. The regulations provided for the exercise of certain supervision over the nurses by a superintendent appointed by the association, but, with regard to the work of a nurse while engaged in nursing a patient, it was provided that while so engaged, she should not absent herself from duty without the permission of the patient and that she should implicitly follow the instructions of the patient's medical man. A form which was sent out by the Asso ciation upon supplying nurses indicated to the person applying for a nurse that, while engaged in nursing the patient, the nurse was to be regarded as employed by that person. Two nurses supplied by the association acted in a negligent manner. It was held that the associa tion's duty was merely to supply a competent nurse to the patient and, if it exercised ordinary care and skill in the selection of the nurse whom it supplied, its responsibility was at an end and it was not responsible for the nurse's failure to exercise due care and skilL The court held that as the association had used ordinary care and skill in the selection of the nurse supplied by it, it was not responsible for the nurse's acts of negligence: In Davies v. London County Council,2 the Court held 1
2
(804) 2 K.B. 602 at 610
(1914) 30 T.L.R. 27.5.
288
MEDICAL LAW AND ETHICS IN INDIA
that an educational authority '\vhich had entered into an agreement with a medical association in regard to the performance of operations by members of the association on school children, was not liable for the negligence of a member of the association performing an operation. The only duty on the educational authority was to select a suitably competent association and, that having been done, the authority was not liabl? for the negligent acts and conduct of medical men supplied by the association.
Part XX WRONG DIAGNOSIS • Before we discuss cases of medical founded on wrong diagnosis. it is well to remember one or two cardinal rules. No medical man ensures success either in his diagnosis or in his treatment He only undertakes to bring to his task of operation or diagnosis such skill and care as is expected of a reasonably competent medical man. Therefore, merely because there has been a wrong diagnosis, the doctor cannot prima facie be held to have been negligent. It would have to be shown that in his diagnostic procedure or conduct, the doctor failed to exercise due, care and skilL\ It may be mentioned that in a case where a medical man has been held to be negligent on the ground of wrong diagnosis, it will be found that it is because of his failure to carry out proper examination. In Riddett v. Dr. D' Arcy,l a general practitioner was sued for neg ligent diagnosis. \Vhen the doctor was called, the patient, a month-old baby, was icy-cold displaying a mauve colour and swelling about the eyes and was breathing irregularly. The doctor, after examination of the child, prescribed a dose of castor oil. The next day the child's father called at the dispensary of doctor and his partner. The latter saw the baby and at once sent for an ambulance. The child died in the hospital of Staphylococcal pneumonia. According to the medical evi the baby's illness could have been a fulminating infection and had become critical in a matter of six hours. An onset of this type of pneumonia was variable. This being a fulminating infection, the pro dromal had ended and the symptoms of a failing heart had apparent enough to be observed by a reasonably skilled doctor at the time of the visit of the defendant doctor. The judge found on the evidence that the symptoms of a failing heart were present and the defEmdant 1
(l960) n.M'.]., 26th November. 1607
CLASSES AKD INSTANCES OF MEDICAL NEGLIGENCE
289
doctor's examination was not sufficiently close to enable him to notice the symptoms. Therefore, the judge held the doctor negligent. It was said that the doctor, in the nOnTIal conduct of his practice, was a careful doctor. But on this occasion, he had been negligent in his examination. In Payne v. St. Helier C.H.M.G.I, the court held that a Casualty Officer at the hospital had been negligent in failing to observe rigidity of the abdomen which must have been there and to notice that the patient was suffedng from pain and shock. The patient was kicked in the abdomen by a horse that slipped when he roused it. He consulted his doctor who referred him to the hospital. The Casualty Officer examined him some 9if hours after the injury had been sustained. The Casualty Officer had been professionally qualified for two years. He observed and recorded in the notes a. bruise as large as the palm of a hand in the right iliac fossa. He recorded also that there was no sign of bony or visceral injudes. He sent the patient home to go to bed and to call in his own doctor. Some days later the patient be came very ill and was re-admitted to the hospital. The diagnosis made on admission to the hospital was of extra-peritoneal haematoma. The operation was performed. No extra-peritoneal haematoma was found, but the peritoneum was punctured with the finger of the operator and gas and faecal pus escaped. The wound was drained. A further operation was performed for general peritonitis and faecal fistula. The patient's condition was by this time very poor and, subsequently, the patient died. A famous surgeon, vvho gave evidence for the plaintiff, said that if the patient had been admitted to hospital for operation at the time when he was first sent home, the later effects of the injury could have been avoided by prompt attention. He further said that he took a serious view of all abdominal injuries and had made it a rule in his hospital that all patients with abdominal injuries, like all patients with head injuries, were admitted for 24 hours for observation at least. He did not blame the Casualty Officer - it was inexperiooce. The judge held the Casualty Officer liable saying that, in addition to the bruising, if the Casualty Officer had observed, as he ought to have observed, the rigidity of abdomen and the pain and the shock suffered by the patient, the patient would not have been sent· home but detained for examination by a consultant. The Casualty Officer had failed in carry ing out proper examination of the patient and the wrong diagnosis was due to his failure to exercise the reasonable skill and care expected in the circumstances from a medical man. 1
(19.52) The Tfmes, lZth November
290
MEDICAL LAW AND ETHICS IN INDIA
Unexplained failure to diagnose somethin"g obvious may be due tOI ! negligence. Whether the failure to diagnose a difficult thing is ligence or not depends on the facts of ,a particular case. If, on the facts: of a palticular case, it is not negligent for a doctor to diagnose a difficult t thing, it does not amount to negligence on the ground that the difficult 1 diagnosis could have been made by other doctors. In Newton v. Central" Middlesex G.H.M.C.,r the plaintiff claimed damages particularly on the ground of negligence in diagnosis. The patient was taken to the out-patient department of the hospital after an accident in which he fell twelve feet from a roof onto concrete. The patient's case was that when examined, he had a patella broken into eleven pieces, a broken nerve and a broken wrist and all this had been missed by the defendant in his examination. This was denied by the defendant. The court held that the patient's patella was fractured at the material time and that the fractures had been missed by the doctor. The court, how ever, did not hold the doctor negligent in his failure to diagnose the fractured wrist. Many doctors, the court opined, would have spotted this injury or would have been suspicious and would have taken an X-ray but it was a very difficult fracture to diagnose. The court ex pressed the view tbat if wrong diagnosis results because of failure to conduct such clinical examination as a reasonably competent doctor in the circumstances would have carried out, such conduct is evide:pce of negligence. But this was not the position here. In Connolly v. Rubra,2 a patient suffering from an attack of cough and cold called Dr. Rubra. He told the doctor that his cough was severe, that he had high temperature at night and spat blood, that he had lost weight and that he had had an attack of hemoptysis while bathing. He suffered from considerable bronchitis when the doctor was called in and was spitting so much blood that he kept a bowl by his bed. The doctor treated the patient for bronchitis but did not advise any special diet or treatment and did not have the sputum examined. He ultimately allowed the patient to return to work. The patient gra dually grew vvorse. When the patient hied to get up, he collapsed and the patient and his wife suggested taking a second opinion but the doctor dissuaded them and said that the collapse was of the kind that might follow influenza. He examined the chest and recommended, but did not suggest, an X-ray examination. The cough continued to be troublesome and grew worse and the patient found it difficult to swallow. The doctor brought no apparatus to examine the throat and 1 2
(l959) B.M']', 19th December, 1414 (1936) B.M.].. 5th December, 1174.
CLASSES AND INSTANCES OF MEDICAL NEGLIGENCE
of~l1ich
prescribed no special treatment except various gargles, the last was carbolic and cau~ed the patient serious discomfort. Thereaftef,-the patient was brought into the expert care of another doctor but he died. Dr. Rubra also died subsequently. The judge remarked that it was: unfortunate that in the absence of Dr. Rubra there had been no real evidence of what he had done. But he said that another doctor who had been called as an expert witness had given evidence with cons picuous fairness on the possibility of alternative diagnosis which may have been the view of Dr. Rubra and might have been a justification for his failure to diagnose tuberculosis. But as Dr. Rubra could not give. evidence, this alternative remained a mere suggestion. The three expert witnesses who had been called agreed that when there was blood in the sputum, tuberculosis could not be eliminated without further investigation. The judge, therefore, found that the omission of the doctor to have the sputum microscopically examined in the beginning was not a mere failure to take care, but failure to take elementary care such as no medical man ought to have omitted to take. In his view, if that ~tep had been taken, tuberculosis would have been found then. 'There could have been no conceivable excuse for not diagnosing tuber culosis, at least at the later stage before it became incurable. He, there fore, held that the doctor was negligent in his diagnosis. Itis elementary to say t~ood diag~osisAepends UPO!!.l:tC:il!e ~ examination of the patient. Fa}lure to carry out proper examination is the cause of negligent diagnosis; In Edler v. Greenwich and Deptford H.M.C.,1 the court held that the patient died owing to the negligence of a doctor in failing to diagnose appendicitis. In this case the court ,vas of the view that, on the facts of the case, the doctor ought to have diagnosed appendicitis. The child had complained of very acute pains in the abdomen and had been constantly vomitting. The child had pointed out to the doctor that she had felt pain in the stomach. The child showed signs of pain on the place where the abdomen was touched. On these facts, negligence in diagnosis was held to be established. In Freeborne v. Laning,2 the plaintiff, having being injured in an accident, was placed in the care of a medical officer of a hospital who failed to diagnose the nature of the plaintiff's injury. A few days later the plaintiff left the hospital and from that time eeased to be in thc defendant's care. He consulted another doctor who discovered that his hip was dislocated. But, as it was then too late to apply the neces sary remedy, the plaintiff's injury was permanent. The trial judge held 1
(1953), The Times, 7th !\Iarch
2
(1926) 1 K.B. 160.
292
MEDICAL LAW AND ETHICS IN INDIA
that as the defendant had not made any proper or sufficient examination of the patient, and did not discover, as he would..havediseovered if he had treated the plaintiff with reasonable eare and skill, that his hip was disloeated, the defendant was guilty of negligenee and that the negligence was the cause of the plaintiffs permanent injury. In Wood v. Charing Cross Hospital,l the plaintiff, after an accident, was treated at the hospital in the casualty department. The patient was in an intoxicated state. Though he was examined from front to ):lack and from side to side and over the skull for signs of injury a stethos cope was not used. The doctor found no clinical evidence of bone injury. After being treated for nose bleeding, the patient was sent home. The next day he was admitted to another hospital where he died the same morning. The eourt said that the patient's intoxicated state should have put the doetor who examined him even more on his guard than usual rather than have deeeived him as to his actual condition. If a stethoscope had been used it was almost inevitable that the patient's true condition would have been discovered. The doctor had not exer cised reasonable care in his examination. The result was that he failed to make proper diagnosis. The doctor was, therefore, held negligen~ in not diagnosing broken ribs. It would, however, well to remember that a wrong diagnosis, bYj itself, is not necessarily indicative of negligent conduct. A wrong diagno~ sis may be the result of "\Trang judgment. It has been noted in the I earlier chapter that 'misadventures' and "errors of judgment" on the I one hand must be distinguished from negligence on the other. This; distinction has been judicially noted in several cases of medical negU-'} gence. 2
a
i
Part XXI X-RAY EXAMINATION The necessity for an X-ray examination must depend upon several circumstances such as the condition of the patient,the character of the injmy and accessibility of the apparatus. Mere delay for a week to aw~it developments ~efo:e advising an X-ray exam~nation rather than advlse such an exammatlOn at once does not constitute negligence or \ incompetence on the part of a physician. These obseryations were made by the Privy Council in Sabhapathi v. Hal1sley.3 In this case a European
1
I
2
(1951) B.M.]., 8th September, 616. See Part 4 of the earlier chapter.
t
(1938) A.I.R. (P.C.) 91.
1
CLASSES AND INSTANCES OF MEDICAL NEGLIGENCE
293
planter in India was treated at a Govemment Hospital by a Govern ment medical officer of high qualifications who had been twenty-two years in Government service and against whom in the past there had been no suggestion of inattention. The planter was treated by the official soon after he had sustained a serious motor-car accident. After two days the planter left the hospitaL The planter was subsequently examined by leading specialists. Though they could not diagnose frac tures, they advised him to get himself X-rayed. His X-ray examination revealed that he had sustained fractures. The Privy Council observed that the doctor on examination of the patient found no evidence of fracture. He allowed him to go home, instructing him to let him know how he progressed. Had the pain and other symptoms continued un abated for a week, he would no doubt have advised an X-ray examina tion. Having regard to the circumstances of the case, the Privy Council held that there had been no negligence on the part of the doctor in not
::v::~!:~e~~a~:~at~~n~~~no:::ge:~:~~: ~f~~~~ea::~!e:bl~~
I
te;lt medical man would have done at the time when and under the circumstances under which a parti~ular medical man .. ~arged with . ... negligence had actesl. A medical man may also be warned as regards failure to take such I precautionary measures as are kno\V!Il to medical science so as to spare the patient unnecessary scars, burns and pains. In Gold v. Essex County Council,l the negligence of a radiographer consisted in covering the pati ent's face with a piece of lint only instead of a lead-lined rubber cloth, when giving treatment by Grenz rays for the removal of warts from her face. In the case of a child, the possibility of negligence in X-ray treat ment might be due to leaving the child unattended with X-ray instruments and the like, which to a child are alluring things to play and meddle with. Negligence m~.l:.lls9.consist in not the X-rav ~ectlx-.or in failing to get it read by a com.J2.etent person,.: In Vancouver General Hospital v. Fraser,'] a charge of negligence against an intern succeeded on the ground that the intern had not read the X-ray films correctly and, alternatively, on the ground that he had failed to get it readi by a radiologist employed by the hospital.
.-
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-
1(1942) 2 K.B.
(l9S2) 2 S.C.R
2
_ _...._ . . . .
36.
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CHAPTER VII
CONSENT IN RELATION TO MEDICAL EXAMINATION, TREATMENT AND OPERATION
JF-: : : : : :~./l: : : : : : : : : : : : : : : : : : : : : : D=E=F=I=N=IT=I=O=N="=A:;~~;S OF CONSENT Part II OBJECT AND NECESSITY OF CONSENT
Part III CONSENT REGARDING 1\lINORS
Part IV CONSENT AND MARRIED PEHSONS
Part V FORMS OF WRITTEN CONSENT L
2. 3. 4. .5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 1.5. 16. 17.
Consent to surgery, anaesthetics and other medical services. Consent to operations for cosmetic purposes. Consent to operations and grafting of tissues. Consent to removal of tisslle for grafting .
Consent to shock therapy.
Request for sterilisation. Aidhorisation to retain and dispose of body. Authorisation to use eyes (donor). Authorisation to use eyes (next-of-kin), Consent to treatment. Consent to X-ray therapy. Authority to admit observers. Consent to taking of photographs. Consent to publication of photographs. Consent to access to hospital records. Agreement for artificial insemination. Agreement for artificial illseminatiolL
cm~SENT
IN RELATION TO MEDICAL EXAMINATION
29.5
18. Authorisation for autopsy. 19. Authorisation for autopsy and 'tissue donation. 20. 'Consent to disposal of dead foetus. 21. Agreement for blood transfusion.
29 Agreement for blood plasma transfusion.
23. Refusal to permit blood transfusion. 24. Agreement with blood donor. 25. Release and receipt (Blood donor). 26. Consent to use of prosthesis.
,
{
Part I DEFINITION AND KINDS OF CONSENT
aCONSENT'
has been defined to mean "voluntary agreement, ~ compliance, permission." In the Indian Contract Act, it is' said in Section 13 that two or more persons are said to con- I sent when they agree upon the same thing in the same sense. To he legally valid, the consent that is given must be intelligent and informed, ~ that is, the consent must be given clfter understanding what it is given I for and of the risks invo!yed. In a South African case, Ester Hoizen v. Administrator, Transval/ it was held that consent to undergo X-ray treatment in the belief that it is harmless or being unaware of the risks it canies, cannot amount to effective consent to undergo the risks involved or the consequent hamL A therapist, not called upon to act in an emergency involving a matter of life or death, who decides to administer a dosage of such ,an intensity and to employ a particular technique for that purpose which he knows will cause disfigurement, cosmetic change and result in severe irradiation of the tissues to the extent that the possibility of necrosis (death of tissues), and the risk of amputation cannot be excluded, must explain the situation and the resulting dangers to the patient. Should he act without adequate explanation and without having secured the patient's consent, he acts at his peril, no matter how laudable his iiltentions might be. In Natanson v. Kline,2 the Kansas Supreme Court stated that the proper rule of law to determine whether a patient had given intelligent consent to a proposed form of treatment by a physician was to see
I
1
(1957) 3 S.A. 710; English and Empire vol. 34, p. 43 item 86 xxxvi.
Cumulative Supplement, (1961)
2186, Kan. 393, quoted at p. 16 of i<.1edico-Legal Forms with Legal Analysis pub
lished by the Law Department, American l\ledical Association.
296
MEDICAL LAW AND ETHICS IN INDIA
whether there was such disclosure by the physician as would ensure informed consent from the patient. The court said that the duty of the physician to disclose, however,' is limited to those disclosures which a reasonable medical practitioner would make under the same or similar circumstances. How the physician discharges his obligation to the patient in this difficult situation involves primarily a question of medical judgment. So long as the disclosure is sufficient to ensure an infonned consent, the physician's of plausible causes should not be called into question if it appears, all circumstances considered, that the physi cian was motivated only by the patient's best therapeutic interests and he proceeded as a competent medical man would have done in a simi lar situation. The question of consent is, in this respect, intrinsically connected \vith the problem of how much a doctor should tell a patient before obtaining his consent. must be free consent. Consent is not free Consent __ ' __ by coercion, undue influence, fraud or mis~ _r.!P~~enta~~...:. In Bowater v. Rowley Regis Corporation/ the court ex pressed the view that a man cannot be said to be truly 'willing' unless he is in a position to choose freely. Freedom of choice predicates (1) knowledge of the circumstances on which the exercise of choice is de, pendent, so that a person will be able to choose wisely; and (2) that sJlere should be no feeling of constraint, so that nothing shall inteIfere _.I'~with the freedom of a person's yvill. '" ..,.. '-.,., ,;:.':~"~ Kinds of Consent. Consent may be either express or implied. EXr - . "'it;,t. ",.. --. - - - . --- . - " - , -..~......- . " _..-~I - ~vf -;' .,;':..P, ~~nsent in tum ma~ either verbal or writtt;D· f;..' ~","'¥~ Consent need not be express. It may also be implied. In tl., \.,6" ,.t'\ 't can rea dil y I)e Imp - Iie d f rom t h e patIent . ,s b e ;.s' v, anum b er 0 f cases l' 2 haviour conduct. \Valter Levitt says, "If the patient sees the doctor take up his scalpel and makes no protest, this will be evidence of implied consent. Further, iI2...a!!.....~!!!~~$en~,..£?.nsent will also he:, imp~ as w~en.th~.J2.~bent is ~.££nscio~. So alsC;:-COilsent implied, as when during an operabon an emergency arises and an unexpected mutilabon, as for example, amputation of a limb, has to be carried out to save life." In a case arising outside the realm of medicine, Smith v. Baker & Sons,3 the House of Lords supported the dichlm that consent may also be inferred from a general course of conduct.
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(1944) 'K.B. 476 at 479. (1948) British Surgical Practice, voL 5, (189]) A.G .325 at 338.
p,
379.
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CONSENT IN RELATION TO MEDICAL EXAMINATION
297
But doctors will do wEill to remember that if ~ pati~nt..£:.'92.E.esslJ:: to.!~i.~the.do!!!K..QLs.Q!!L~!~g, _..~9.::!esti.?n. of i~lied co~~~_ ever arise. In this connection, one of the leading cases on the subject of consent, Beatty v. Cullingworth"I may be referred to. In this case, the plaintiff, who was to be operated upon for the removal of a diseased ovary, instructed the surgeon, "If you find both ovaries diseased, you must remove neither." To this the surgeon replied, as the patient was going under the anaesthetic, "You may be sure, I shall not remove any thing I can help." During the course of the operation, the surgeon found both the ovaries diseased and he removed both. \Vhen the patient's fiance came to know tIns, he refused to marry her. The patient there upon sued the surgeon on the ground that he had removed both her ovaries without her consent and, in fact, against her express wishes. The court, however, held that, by implication, the patient had given her consent to the removal of both her ovaries in the event of both being found diseased. In addressing the jury, the judge seemed to convey that he believed that the surgeon had been given implied con sent and the jury agreed with the learned judge. It is quite, possible, however, that on the facts of this case another court might have as easily taken the view that the surgeon acted with out the consent of the patient and, in fact, against her express wishes. It is submitted that it would have been more advisable for the surgeon, in view of what the patient had told him, to take her express consynt especially since, at the time the conversation referred to above took place, there was no emergency and the doctor might well have waited for' a time when clear and express consent could have been obtained from the patient.
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Part II OBJECT AND NECESSITY OF CONSENT Medical practitioners must remember that if they treat or operate \ upon a patient without express authority to do so, the treatment or } operation will be deemed to be intentional interference with the pati- ! ent's person without legal justification and this in turn amounts to I assault and battery for which the patient will be entitled to recover \ damages. The general principle of law regarding the necessity of ob taining consent before treatment or operation has been succintly stated by the great jurist, Cardozo J., in Schloendorfj v. Society of the 1
(1896) RM.1. 21st Novcmbcr, 1.546 at 1548.
~ I 298
MEDICAL LAW AND ETHICS IN INDIA
York Hospital,l "Every human being of adult years and sound mind has a right to determine what shall be done with his own body, and a surgeon who performs an operation without his patient's consent com mits an assault for which he is liable in damages. This is true except in cases of emergency where the patient is unconscious and where it is necessary to operate before consent can be obtained." The nece~sity of obtaining consent is stressed in an Indian case2 in which the question was whether a particular lady was the daughter of one of the defendants to the suit. The trial court directed that the defendant should be sent to a doctor for medical examination to ascertain whether any issue had been born to her. The order was challenged and the appellate court held that inasmuch as th~~~?al ~~~!.l!ina~~>~a~ if no~yoluntati!Y. corlsented . t? ~. ~er, ~.£lI.1.~ amount to assault and battery, the. order of the lower court directing ;·~di~al-~inati;;;~~;;;-in;alid. .--- .---..~---------
In this connection, it may be said that it is no defence to an action for damages for assault and battery that the unauthorised treatment or operation was performed with due care and skill. f)J egligence or the lack of due care and skill is not an ingredient of assault and battery. A medical man who treats or operates exercising due care and skill but. without obtaining consent would-in all probability-be guilty only of a highly technical form of trespass and the damages which would be recovered \vould be nothing more than nominaLf In Alolesworth's case,3 a patient was operated upon for hernia by a House Surgeon instead of an experienced and senior surgeon. The patient alleged that he had been shocked that an apprentice had operated upon him without obtaining his consent when he had engaged a skilled craftsman. It was, however, admitted on the patient's behalf that the operation had been perfonned in an entirely competent manner. It was held that the House Surgeon had operated without the plaintiff's consent and that for an unauthorised person to do in highly competent manner an act which another was authorised to do, was a highly technical form of trespass. Although the patient had been treated evelywhere with consideration and the House Surgeon had behaved in accordance with the traditions of his profession, as there had been technical trespass the patient was awarded nominal damages amounting to twenty shillings. . Medical practitioners may also note that the administration of a I drug to a patient without the patient's knowledge amounts to assault ~ I
(1914), 211 NY. R. 125, quoted ill Medico-Legal Forms with Legal Analysis pub lisbed by the Law Department, American Medical Association. 2 Padarath v. Dulhin A.I.R. (1932) All .524. 3 (1950) H.M.]. l.5th July, I). 171 1
CONSENT IN RELATION TO MEDICAL EXAMINATION
299
In what is knowil as Dr. Drummond's case/ one Dr. Drummond sued a woman patient for professional fees for attendance on her in a nurs ing horne. The patient counter-claimed for damages on the ground that a certain drug had been administered to her without her consent. The patient complained that the doctor had prolonged her stay in the nursing home by administering to her secretly, in soup and meat, phenobarbitone which she refused to take in the ordinary way. She had found one day an undissolved pellet in her soup and twice every Jay from then onwards, she had hidden the soup and then poured it away. She had been nervous and frightened that this would be dis covered and the drug put into some other food instead. She had lost .confidence in the doctors and nurses and, as a psychological consequence of the administration of the drug, her stay had been prolonged for sixteen weeks. In cross-examination, she said that she had not left the nursing horne because she had nowhere to go. The court held that the patient having expressly refused to take a particular drug, it was not right for the doctor to administer it to her secretly. Where a patient expressly refuses to take a particular drug, there cannot possibly be any implied authority to give it. The doctor, on receiving the information that the patient refused to take the drug, could have withdrawn from the case. The judge said that he was satisfied that the drug as ad ministered could not have had any physical ill-effect but the discovery of its secret administration would be very annoying and distressing to any person. The effect on this particular woman, who was to the doctOl!S knowledge unstable, emotionally and psychologically, must have been greater than it would have been on a normal person. The court held that the administration of a drug to a person without that person's knowledge and consent was common assault. But, inasmuch as the administration of the drug did not cause any substantial harm to the patient, the court awarded by way of damages only 10 guineas and allowed the doctor's claim for fees. A personal inquiry must always be made by a doctor to determine whethe~·~~-;;~t-ttedpa·tient~onse~~tsto-~~t;~-:rtm.ent or operatio; by him '-~~'~~. to tli~~dent of~~<::Q!.!~ent. In a Canadian case, Parmley v. Parmley,2 a doctor and a dentist were sued by a patient for damages for unauthorised extraction of the plaintiff's teeth. The teeth were ex tracted whilst the patient was under an anaesthetic for the purpose of an operation by the doctor to remove her tonsils. The dentist himself had not talked to the plaintiff before making the extraction but had talked 1 2
(1949\ R.M.l. 18th (I94,5) S.c.R. 685.
p. 1100.
300
MEDICAL LAW AND ETHICS IN INDIA
to the doctor \vho had talked to the plaintiff and it was the doctor who had made an appointment with the dentist for the extraction. It was not disputed that both the doctor and the dentist had acted with a good motive. 111e dentist had been told by the doctor that he had talked to his patient and the patient desired the removal of some of her. teeth. On the day of. the operation, the dentist made no serious effort. to find the patient before she was removed to the operating theatre. In his: evidence the dentist suggested that he had expected to see his patient before she was anaesthetised. But, in fact, he saw her for the first time only when she was already unconscious. The court held that the seeing of a patient for the first time in the operating theatre, even when she was conscious, was hardly the correct thing to do. At that time, the patient would obviously be in a disturbed state of mind. The court felt that, under these circumstances, the dentist could not be excused for not having located the patient, examined her, and discussed the condition of her teeth with her. The court observed that it was important to realise that the dentist had been called in his professional capacity and, therefore, a relation of dentist and patient existed between him and who the plaintiff. The dentist ought to have known that the patient was a young lady of twenty-two - was not in possession of that informa tion which she was entitled to before arriving at a decision so important that it involved the extraction of many of her teeth. The court held that there was no request, instruction or message from the patient, directly or indirectly, which justified the dentist in removing her teeth. The court held that both the doctor and the dentist were liable, not with respect to the quality of work that they had perfonned but because they had proceeded to extract the teeth without the consent of the patient. The court observed that the dentist and the doctor had failed to recognise the right of a patient when consulting a professional man in the practice of his profession to have an examination, diagnosi£, advice and consultation and, thereafter, to determine whether any opera tional treatment should be proceeded with. The court said that it was irrelevant that the doctor and the dentist had both acted in the best interests of the patient in extracting the teeth. The court cited with approval a passage from the judgment of an earlier Canadian case, Bennan v. Parsol1nei, "No amount of professional skill can justify the substitution of the will of the surgeon for that of his patient". Reasons for obtaining consent. (1) To examine, treat or operate upon a patient without his consent is assault in law even if that ex- . amina.ti~n,. tr~atment or o~e~ation ~auses no ham1 to the patient a~d I even If It IS, In fact, benefiCIal to hIm The purpose and the necessIty 1
I
CONSENT IN RELATION TO MEDICAL EXAMINATION
301
of obtaining consent becomes apparent from the fact that, in res~ect ( of trespass upon a patient's personal dignity and privacy, the pahent may recover substantial damages. (2) It may also be remembered that an action for negligence may) ! be founded upon the failure of a medical practitioner to discharge the duty of giving the 'requisite information to a patient before asking for' his consent to a particular operation or treatment. (3) A further reason .for obtaining consent may be expressed in ( the words of the old judgment of Slater v. Bate,l "Indeed it is reasonable' that a patient should be told what is about to be done to him, thatl he may take courage and put himself in such situation as to enable him I to undergo the operation."
i
Part III CONSENT REGARDIl'\G MINORS ~. child_without suffic~nt unde~ancfu~ncapable of~ing
e}fec_ti,,:~:.o~~n~~~ oeeration ,!!.£.~tme.!lt 22-.!!.~~~~of giyi~L0!-W!thQol
Parents, naturally enough, are normally the guardians of their children and they are vested with the authority of giving or withholding consent in respect of treatment or operations upon their children. It is doubtful whether a medical man to whose care a child is entrusted can, contrary to the express prohibition of a guardian, treat or operate upon the child in such manner as pleases, even if is convinced that \vhat he is doing is for the benefit of the child. If, for example, a child entrusted to a hospital is found to be suffering from a disease which will lead to immediate death and for which there is only one known treatment and guardian of the child refuses to his consent to that treatment, is it open in law to a medical practitioner , to give that treatment to the child in order to save its life or would his doing ,so amount to assault and battery? This problem has been dis cussed in a very interesting article, <Parental Consent and Treatment. 2 It is suggested therein correctly it is submitted - that if an action is filed by the guardian under such circumstances, the act of the doctor would be treated as a case of extremely technical trespass and the court would award very nominal damages. It may be pointed out that such situations have, in fact, arisen when parents have refLlsed on grounds of religion to give their consent to blood transfusions in 2, Willson's Report, B.1H.]. 6th May, p.
.3.59, 362.
302
MEDICAL LAW AND ETHICS IN INDIA
Rh-positive babies. The author of the article suggests a possible defence when blood transfusions are given to such babies without or even contrary to parental consent. He says that it can be argued that the parent, having failed to provide adequate medical aid for his child, has committed a crime under the B1itish Children and Young Persons . Act, 1933. It must, however, be pointed out that there is no corres-l ponding provision in Indian law. As regards consent in relation to minors, a large number of cases have been decided in the United States of America, a few of which are published in the brochure, published by the Law Department, American Medical Association, called Medico-Legal Forms lVith Legal Analysis. A few of these cases are reproduced below with the consent and through the courtesy of the American Medical Association. "In Moss v. Rishworth, two adult sisters took an eleven year old child to a hospital for removal of badly-diseased tonsils and adenoids. She died while under the anaesthetic. The court held that ~ the child's father could recover fram the operating surgeon for the death of the child. Although the operation might have been necessary, there was no immediate emergency which would excuse the need for parental consent. In a similar case, Zoski v. Gaines, a ;nine year old boy was taken by a visiting nurse from school to the city physician, who sent him to a hospital with a note requesting that the boy's tonsils be re moved. The boy was accompanied by a fifteen year old brother but prioe consent of the parents was not obtained. The operat:ing surgeon was held liable for removing the boy's tonsils without parental consent. In Bakker v. Welsh, a seventeen year old boy, accompanied by his aunt and two adult sisters, consulted a surgeon who recommended an operation for removal of a tumor. During the next few days prepara tions were made for the operation with the apparent knowledge of the boy's father, with whom he lived. While under the anaesthetic, the boy died and his father brought suit. Recovery was denied on the ground that since the father was aware of the preparations and did not object, his consent could be implied. Furthermore, the operation was not ordi narily hazardous and the boy was close to his majority. 111e need for consent has been dispensed with in cases where there "1 was an emergency and the parents could not be located. In fackovach I v. YOCU1n, the arm of a seventeen year old boy was cmshed by a freight train. Efforts to reach the parents by telephone failed. After a consulta tion of physicians, the boys arm was amputated. The consent of the parents was implied by the emergency. Similarly, in Luka v. LOlvrie, ')urgeons who were unable to contact relatives were justified in amputat c
f
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I
CONSE:\fT IN HELATION TO MEDICAL EXAMINATION
303
ing, as a life-saving measure, the foot of a fifteen year old which was badly crushed by a locomotive. Tbe decision to amputate was made after extensive consultation among the doctors. In Wells v. McGehee, a seven year old child died while anaesthe tized for treatment of a broken arm which occurred on the school play ground. Before administering the anaesthetic, an unsuccessful attempt was made to contact the mother at her place of work. The court held in favour of the defendant on the ground that an emergency existed."
/ /'
.It
Part IV CONSENT AND MARRIED PERSONS
may be stated that the consent of one spouse is not essential for carrying out an operation or treatment upon the other, provided that the spouse undergoing treatment is competent mentally to give effec tive consent. But where the spouse, for whom the treatment or opera tion is necessary, is not in a position to give consent either because he or she is unconscious or because he or she is mentally unfit or for some other reason, the right of giving or withholding consent is transferred to the other spouse.• Medical practitioners may, however, note that husband has no ._"", r~ht.~?.ts~yg. _t.Q......:Yl!.hbQld consent to any operation, including '-; gynaecological operation, ~hich is ~quireSLtq~afEZuarcrth~. h~alth of his. wif~..:. No medical· practitioner should withhold undertaking any medical or surgical measure that is ;necessary for safeguarding the health of the wife merely because her husband refuses to consent to it. There is not a single case in England or in India in which refusal of a ~ I husband to consent to an operation upon his wife has been upheld by i. a court. It is quite sufficient if the wife, after fully realising the effect and consequences of the medical and surgical measures, consent. I Though" the final decision rests entirely with the wife, in the interest of marital happiness, it is highly desirable that the husband's sanction should also be secured before performing operations which lead to <;teplity in the wife and as such affect the husband's marital rights. ~-~.>~-,
I
Part V FORMS OF WRITTEN CONSENT 'Written consent to an operation is not required by law and no parti cular form is necessary to give validity to a written consent. The essen
304
MEDICAL LAW AND ETHICS IN INDIA
tial requirement is that the written consent should state clearly the nature and extent of the -operation authorised and it should be signed hy a person who is qualified to give consent. Forms of consent required in various cases are set out hereafter. These forms have be~n recom mended by the Law Department of the American Medical Association and they are reproduced in this book through the courtesy and the express permission of the American Medical Association. Medicalpracti tioners are _advised to obtain written consent in the forms given here after vvith such changes as are necessary or suitable in the particular case.
Form 1 SURGERY CONSENT TO SURGERY ANAESTHETICS, AND OTHER MEDICAL SERVICES; (This is a general form of consent which will apply to various procedures hy striking out the portions which are inapplicable.)
Date ........................ Time............... A.M./P.M. L
I authorize the performance upon ...................................of (,Myself or name of patient)
the following operation ..........................................to be performed (State nature and extent of operation)
under the direction of Dr. ....................................... . 2. I consent to the perfoimance of operations and procedures in addition to or different from those now contemplated, whether or not arising from presently unforeseen conditions, which the abovenamed doctor or his associates or assistants may consider necessary or advis able in the course of the operation. 3. I consent to the administration of such anaesthetics as may be considered necessary or advisable by the physician responsible for this service, with the exception of................ .. ........................ .. (State 'none', 'spinal anaesthesia', etc.)
4. I consent to the photographing or televising of the o-geratiolls or procedures to be performed, including appropriate portions of my body, for medical, scientific or educational purposes, provided my iden tity is not revealed by the pictures or by descriptive texts accompanying them. 5. For the purpose of advancing medical education, I consent to the admittance of observers to the operating room. 6. I consent to the disposal by hospital authorities of any tissues or parts which may be removed. 7. I am aware that sterility may result from this operation. I know that a sterile person is incapable of becoming a parent. 8. The nature and purpose of the operation, possible alternative methods of treatment, the risks involved, and the possibility of compli
CONSENT IN HELATION TO MEDICAL EXAMmATION
305
cations have been fully explained to me. No guarantee or assurance has been given by anyone as to the results that may be obtained. (Cross out any paragraphs above which do not apply.) Signed.......................................... . (Patient or person authorized to consent for patient.)
'Vitrtess ................................... .
Form 2 CONSENT TO OPERATIONS FOR COSMETIC PURPOSES Date........................ Time ............... A.M.jF,M. 1. I authorize Dr....................................to perform an opera tion upon me for the purpose of attempting to improve my appearance with respect to the following conditions: ................................ .. 2. The nature and effect of the operations to be performed, risks involved, as well as possible alternative methods of treatment, have been fully explained to me. 3. I alSil authorize the operating surgeon to perform any other procedures which he may deem desirable in attempting to improve the condition stated in paragraph 1 or any unhealthy or unforeseen condi tion that he may encounter during the operation. 4. I consent to the administration of anaesthetics to be applied by or under the direction of DL ...........................and to the use of such anaesthetics as he may deem advisable. 5. I know that the practice of medicine and surgery is not an exact science and that therefore reputable practitioners cannot guarantee results. No guarantee or assurance has been given by anyone as to the results that may be obtained. Signed ........................................ . (Patient Dr person' authorized to consent for patient.)
·Witness ....................... ,........... . F01'1rL CO~SENT
3
TO OPERATIONS AND GRAFTING OF TISSUES
Date.......... ,............ Time .............. A.)..LjP.M.
1. I authorize Dr.......... ......... .......... and such assistants as he may designate, to perform upon .............................................. the ,
.
(,Myself' or name of patient)
following operation ............... ,............................. and to do any nature and extcnt of operation)
additional. or different procedure that his judgment may dictate during the above operation. 2. I am informed that the above operation will require the grafting of the follo\viug tissue ................................... and that the tissue to (Skin, bone, cartilage, ctc.)
be used will be supplied by................................... .. (Name of donor or tissue bank)
306
MEDICAL LAW Al\'D ETHICS IN INDIA
3. The risks involved in the use of such tissue for grafting, the nature and effect of the operation, and possible alternative methods of procedure or treatment have been fully explained to me. No guarantee or assurance has been given by anyone as to the results that may be ob tained. 4. I understand that the operating surgeon will be occupied solely with the surgery, and that the administration of the anaesthesia is an independent professional function and will be in charge of an anaesthe tist, whom I authorize to administer such anaesthetics as he may deem advisable. Signed........................................ . (Patient or person authorized to consent for patient.)
"\fitness.................................. ..
Form 4 CONSENT TO REMOVAL OF TISSUE FOR GRAFTING Date........................Time............... A.M.jP.M.
1. I authorize Dr......................... and such assistants as he may designate, to perform an operation upon myself for the purpose of re moving the following tissues ............................................ .from my (Skin, bone, cartilage, etc.)
person for donation to ................................... , The operation is to (~ame
of receipient)
include such procedures as may be necessary in the judgment of the operating surgeon for the purpose of attempting to graft tissues, and. the use of such anaesthetics as he may deem advisable. 2. I make this request \vith full knowledge that this attempt to graft tissue may not be successful. The risks and uncertainties involved' as well as the possibility that I may be permanently injured, scarred, or disfigured as a consequence of this operation, have been fully ex plained to me. Nevertheless, I make this request and grant the authority set forth above, voluntarily and upon my own initiative, and with no assurances from anyone as to the results that may be obtained, either in respect to myself or the recipient. Signed................................. .
(Donor)
vVitness ......................... ~......... ..
Form 5 CONSENT TO SHOCK THERAPY Date........................Time.............. .A.M./l'.},.!.
1. I (We) authorize Dr.................................. and assistants of his choice, to administer. ................................... shock treatment, and (Insulin amI/or electric)
relaxant drugs and other medication to ............................. and to con (Name of patient)
tinue such treatment at such intervals as he and his assistants may deem advisable.
~j
1
:307
CONSENT IN RELAnON TO MEDICAL EXAtvUNATION
2. The effect and nature of this treatment and possible alternative methods of treatment have been explained. I (We) understand that shock therapy, like medical and surgical procedures, involves an element of risk despite precautions, and the possibility of complications such as dislocations and fractures of the limbs and vertebrae. 3. In addition to the foregoing, the strict care which will be re quired immediately following treatment and during convalescence has been fully explained to me (us). 4. No guarantee or assurance has been given by anyone as to the results that may be obtained. Signed ................................... .
Signed ... Witness ................................... .
Form 6 REQUEST FOR STERILIZATION Date........................Time............... A..~f.jP.M_
'Ve, the undersigned husband and wife, each being more tl1an twenty-one years of age and of sound mind, request Dr...................... , and assistants of his choice, to perform upon .... ...................... the (Name of patient)
following operation ;............................................................ .. (State nature and extent of operation.)
It has been explained to us that this operation is intended to result in sterility although this result has not been guaranteed. We understand that a sterile person is NOT capable
Signed ................ . (\Vife)
Witness ............................ .
Form 7 AUTHORIZATION TO RETAIN AND DISPOSE OF BODY Date................. . .... Time ............... A.M.jIJ.M.
,;we request and authorise the release of the body of baby........... .
................ ... to the Pathology Staff of the laboratory at.............. ..
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MEDICAL LAW AND ETHICS IN INDIA
Hospital, for scientific purposes and study with privilege of ultimate disposal. Signed ......................................... . (Mother)
Signed .................................... . (Father)
Witness ....................... .
Fonn 8 AUTHORIZATION TO USE EYES (DONOR) Date.......................Time.............. A.M./P.:f'"f. I authorize, at the time of my death, the removal of both or either of my eyes for donation to any eye bank serving the area in which my death occurs and for such purpose as the eye bank may see fit. Signed ....................................... . (Dollar) •
·Witness................................... .
Form 9 AUTHORIZATION TO USE EYES (NEXT OF KIN) Date ........................ Time.............. A.MJI:'.M. I authorize any member of the medical staff of the ................... . Hospital to remove both or either of the eyes of.. ............................. . the deceased for donation to any eye bank serving the area and for such purpose as the eye bank may see fit. . Signed..................................... . (Next of kin) (Relationship to deceased)
Witness ................................... .
(This form should be signed by both parents, except that in the ease of an unmarried mother, her consent is sufficient.)
Form 10 CONSENT TO TREATJ\IENT I, having been fully informed by Dr. ........... :..... .. ........... . of the risks and possible consequences involved in treatment by means of.. . . . . .. .............:.. . . . . . .. . .. for the relid of ............... ............ .. nevertheless herebv authorize Dr.................... ............ to administer sHcll treatment to ;l1e, and agree to hold him frec and harmless for any
CONSENT 1:\1 RELATION TO MEDICAL EXAMINATION
309
claims, or suits for damages for any injury or complications whatever which may result from this treatment. Signed........................................ .
Date.......................... .
\Vitness ................................... .
(Note; This is a general form of consent that is intended for use, primarily, in con nection with the administration of hazardous drugs and h'eatment normally provided in the physician's office.)
Form 11 CONSENT TO X-RAY THERAPY Patient....................................... . Date........................ .
................ . A.lvLjP.1>1.
Age ................ .
Place.............. .
I hereby request and authorise Dr.................................... and whomsoever he may to assist him to administer X-ray treatment to .......................................... and to continue such treatment from (Name of patient or
time to time as he may advisable. The effect and nahlre of this treatment have been fully explained to me, as \vell as the possibility of injury. Notwithstanding fact that there are risks of injury inherent in this treatment. I voluntarily aceept the risks involved. Signed........................................ .
Wih1ess ............. .
Form 12 AUTHORITY TO ADMIT OBSERVERS Patient's name......... .................... Age ............... Date................ "
I hereby grant authority to Dr.. .................................... and to ............................ Hospital to permit the presence of sneh observers as they may deem fit to admit in addition to physicians and hospital personnel, while I am undergoing (operative surgery) (childbirth), exami nation, and treatment. Signed .. Wih1ess ........................... .
Form 13 CONSENT TO TAKING OF PHOTOGRAPHS In connection with the medical services which I am receiving from Dr.. .. . . .. .. .. .. .. .. .. .. .. .. . . .. ... I eonsent that photographs may be taken of me or parts of my bocly, under the following conditions: (I) The photo
310
MEDICAL LAW AND ETHICS IN INDIA
graphs may be taken only with the consent of my physician or surgeon and under such conditions and at such times as may be approved by him. (2) The photographs shall be taken by my physician or by a competent photographer, approved by my physician. (3) These photo graphs shall be used for medical records only, unless, in the judgment of my physician, medical research, education, or science will be benefited by their use. In that event I agree that they may be llsed for such purposes, provided that my identity is not revealed by the photographs or by descriptive texts accompanying them .
.............................. M.D.
(Patient)
'Witness
(Parent or legal guardian)
Form 14 CONSENT TO PUBLICATION OF PHOTOGRAPHS PATIENT...................... PLACE ................... DATE. ................ .
1. I hereby authorize Dr. ..............................and such assistants, photographers, and technicians as he may engage for this purpose, to take such photographs of me as he may desire before, during, and after the operation which is to be performed upon me on or about ...........................19...... and to permit such photographs to be published and republished in professional journals and medical books or to be used for any other purpose which he may deem fit in the interest of medical education, knowledge or research. 2. Authority is further given to pennit the modification or re touching of the aforementioned photographs, and to the publication of information relating to my case, either separately or in connection with the publication of the photographs taken of me. 3. Although I give permission to the publication of all details and photographs concerning my case, it is specifically understood that I will not be identified by name.
Signed......................................... .
'Vitness .................................. ..
Form 15 CONSENT TO ACCESS TO HOSPITAL RECORDS To .................................... , Hospital Superintendent,
.......................................... HospitaL
I hereby authorize you to furnish a copy of the records of ................................., covering the period from ................... .
(State name of patient or 'myself')
19..................... to .................... 19.................. or to allow those
records to be inspected or copied by.......................... ...... I hereby
CONSENT IN RELATION TO MEDICAL EXArvtINATION
311
release .......................... Hospital and you personally from all legal responsibility or liability that may arise from the act I have authorized above. Signed........................................ .
Date ......................................... .
Wih1ess .................................. ..
Form 16 AGREEMENT FOR ARTIFICIAL INSEMINATION The undersigned, .............................................................. , and ...................................................................., both being of legal age, represent that they were married on ........................ 19............ , at................................. , and that they have continuously cohabited together as husband and wife since the aforementioned date. The undersigned request and authorize Dr..................................and such assistants as he may designate, to inseminate the wife, artificially, sub ject to the following conditions and agreements. L The insemination may be repeated at times recommended by the physician until the viife becomes pregnant. 2a. The physician shall use only semen collected from the husband. 2b. The physician shall use pooled semen from the husband and a donor or donors whose name or names shall not be required to be disclosed to the husband and the wife. 2c. The physician shall use the semen of a donor or donors whose name or names shall not be required to be disclosed to the husband and the wife. 3. The husband and the wife agree to co-operate fully with the physician in all phases of this procedure and never to seek to discover the identity of any unknown donor or donors. 4. The husband and the wife have been fully informed by the physician of hazards, risks and possible consequences involved, and nevertheless, individually and jointly agree to hold the physician and such assistants whose services he may utilize, and the donor or donors, free and harmless from any claims, demands, or suits for damages for any injury or complications whatever which may result directly or indirectly from any treatment or artificial insemination performed pursuant to this agreement. Signed.......................... (husb::md)
Signed............................. (wife)
Date ............................. . Accepted: Signed .......................... M.D. Witness ..... . (Note: Use the applicable paragraphs under 2'. Paragraphs.3 and 4 would also be altered in cases where the husband is the donor.)
312
MEDICAL LAW AND ETHICS IN INDIA
Form 17 AGREEMENT FOR ARTIFICIAL INSEMINATION We, ......................................... and ............... ,....... ,...... , being husband and wife and both over the age of 21 years, do hereby request and authorize Dr. ....................... ,...............to inseminate ~rtificially .......................................... , and to use the semen of (the husband) (the husband and the donor) (a donor or donors) for this purpose. \Ve authorize him to employ such assistants as may be necessary for the purpose of accomplishing the artificial insemination. We represent that we \vere married at..................................... . on........................... 19..... " and that we have cohabited together as man and wife since that date. \Ve are extremely anxious to have a child and we believe that this artificial insemination will promote our mutual happiness and well-being. We understand that several attempts at artificial insemination may be necessary and that Dr.................................. does not warrant or guarantee that pregnancy or full term pregnancy will result from the artificial insemination. To induce Dr. .......... '.' .................... to render the services herein requested, we, and each of us agree that: (1) Under no circumstances shall we require that the name of the donor of the semen be divulged to us or anyone else, and we accordingly forever waive all rights, if any, that we may have as to the name, identity, or any information of any kind concerning the donor(s). We agree to rely upon the discretion of Dr................................. .in the selection of qualified donors. . , (2) \Ve release Dr............................ from any and all liability and responsibility of any nature whatsoever which may result from complications of childbirth or delivery or from the birth of an infant or infants abnormal in any respect, or from the heredity or hereditary tendencies of such issue, or from any other adverse consequences which may arise in connection with or as a result of the artificial insemination herein authorized. (3) \Ve agree to refrain from bringing legal action of any kind, and to refrain from aiding or abetting anyone else in bringing legal action for or on account of any matter or thing which might arise out of the artificial insemination herein contemplated. (4) \Ve to indemnify the doctor for any attorneys' fees, court costs, damages, judgments, or any other losses or expenses incurred by him or for which he may be responsible with repect to any claim, legal action, or defence thereto, arising out of the artificial insemination herein contemplated. (Cross out inapplicable statements). Signed ................... . .. (husband)
Signed... ,................. . ..(wife)
Date......................... . Accepted: Signed............................ . ........ ..tv!.D. Witness ............. . (Note: Despite differences ill language, this form is intended to have the same legal effect as the previous form. Portions of the two forms may be combined into a single form to suit individual needs.) .
CONSENT IN HELATION TO MEDICAL EXAMINATION
313
Form 18 AUTHOHIZATION FOH AUTOPSY NAME OF DECEASED..................... AGE ................SEX........... .
HACE. .......... MARITAL STATUS .......... DATE OF DEATH ....... .
1. I hereby authorize Dr.................................. , and such person as he may designate, to perform and attend a complete autopsy on the remains of ....................... .for the purpose of determining the cause of death. Authority is also granted for the preservation and study of any and all tissues or parts which may be removed. This authority shall be limited only by the following express conditions: (e.g. 'limited to abdomen', etc.) ............................ ,............ ,........... .
2. It is understood that due care wiH be taken to avoid mutilation or difigurement of the body. 3. This authorization is given with the understanding that no charge 'Will be made and that I will be informed of the results of this autopsy. Signature of next of kin ........ .
Address ........................ .
City and State .. .. Relationship to the deceased ........... . Signature of \Vitness .. Address City and State....................................... Date .............. " ........ .
Form 19 AUTHORIZATION FOR AUTOPSY AND TISSUE DONATIOK 1. I hereby request and authorize Dr.......... ........... .. ... .. to perfonn a complete autopsy on the remains of........... .. ........... . for thc purpose of determining the cause of death. AuthOrity is also granted to remove tissues and parts for preservation and study, or for use in grafts upon living persons, or to otherwise dispose of these tissues and pmts in proper anel suitable manner. This authority shall be limited only by the conditions expressly stated in paragraph 4 below. 2. It is understood that due care will be taken to avoid unnecessary disfigurement of the body. 3. This authorization is given \vith the understanding that no ex pense to the estate of the deceased or the underSigned is incurred thereby and that I will be advised of the cause of death of the deceased.
314
MEDICAL LAW AND ETHICS IN INDIA
4. Conditions: .................................................................. .
Signature of
Next of kin ................................... .
Address .................................... .
City and State ...... ...................... .
Relationship to
the deceased ................................ .
Signature of witness .................... .
Address ................................... .
City and State ....................... Date ....................... .
Form 20 CONSENT TO DISPOSAL OF DEAD FOETUS . Date ................... ..
We hereby authorize and request. ....................... to preserve for scientific purposes, or to dispose of, the dead foetus or the body of the baby born to.... .. .... on ............ , 19 ........., in accordance with custo mary medical practice. All claims to the body are hereby relinquished. Signed ......................................... . Signed................................... .. ·Witness ........................ .
,
('\J'ote; This consent should be executed by both parents, except that in the case of an unmarried mother her consent is sufficient.)
Form 21 AGREEMENT FOR BLOOD TRANSFUSION To: Dr.............................. and ........................... Hospital. (Attending physician)
Date ........................ Time ............... A.M'/P.M. 1. I authorize the administration of a blood transfusion to .................................... and such additional transfusion as may be (,Myself' or name of patient)
deemed advisable in the judgment of the attending physician, or his associates or assistants. 2. It is understood and agreed that the attending physician or his associates or assistants shall be responsible only for the performance of their own individual professional acts, and that the blood typing and the selection of compatible blood are the responsibilities of those who actually perform the necessary laboratory tests. 3. It has been fully explained that blood transfusions are not always sHccessful in producing a desirable result and that there is a possibility
CONSENT
I~
RELATION TO MEDICAL EXAMINATION
315
of ill effects, such as transmission of infectious hepatitis, or other diseases or blood impairments. 4. Also, it has been explained that emergencies may arise when it may not be possible to make adequate cross-matching tests, and that immediate need may make it necessary to use existing stocks of blood which may not include the most compatible blood type. S. It is understood and expressly agreed that the blood supplied in accordance with this agreement is incidental to the rendition of ser vices and that no requirements, guarantee, or warranty of fitness or quality shall apply. Signed......................................... . (Patient or person authorized to consent for patient)
'Vitness................................... .
Form 22 AGREEMENT FOR BLOOD PLASMA TRANSFUSION
To: Dr.
and ..... ....... ..... ....... HospitaL (attending physician)
Date...................... .Time............... A.M.jP.},L
1. I aut h 0 r i z e the administration of blood plasma to .................................... in such amounts and at such times as may
(,Myself' or name of patient)
be deemed advisable in the judgment of the attending physician, or his
associates or assistants.
2. It has been explained that blood plasma is a product manufac tured from the pooled blood of many donors and sometimes carries the virus of infectious hepatitis and other diseases. It has been further explained that the administration of blood pl3.c<;ma is not always success ful in producing a desirable result. 3. It is understood and expressly agreed that the blood plasma supplied in accordance with this agreement is incidental to the rendi tion of services and that no requirement, guarantee, or warranty of fitness or quality shall apply. Signed ....................................... . (Patient or person authorised to consent for patient)
'Vitness ................................... .
Form 23 HEFUSAL TO PER.'vfIT BLOOD TRANSFUSION Date........................ Time.............. .A.'l-.LjP M. I (We) request that no blood or blood derivatives be administered to ...... ............. although such treatment may be deemed necessary in the opinion of the attending physician or his assistants to preserve life or promote recovery. I eWe) release the attending physician, his assistants, the hospital and its personnel from any responsibility what
316
MEDICAL LAW AND ETHICS IN INDIA
ever for any untoward results, due to my (our) refusal to permit the use of blood or its derivatives. Witness .................................... Signed................................. .
Witness .................................... Signed.................................... .
Form 24 AGREEMENT WITH BLOOD DONOR To: Dr. ....................................... and ........................ Hospital. (Physician in charge of blood bank)
Date.......................Time............... A.M.jPM.
L On behalf of.. ...................... , a patient who has been tht re cipient of blood from the blood bank of the ........................ Hospital, and in order to reduce the obligation which was incurred by this patient in receiving such blood, I request t};tat I be accepted as a blood donor. 2. I represent that I am not now nor have I ever been afflicted with syphilis, hlberculosis, malaria, infectious hepatitis, brucellosis, infectious mononucleosis or any other infectious disease or blood impairment, ex cept as stated in paragraph 3. I am in good health and know no reason or condition which might impair or affect the suitability of my blood or create a danger in any way for the recipient of my blood; nor do I know of any condition, physical or mental, which might impair my own health and well-being as a result of my serving as a blood donor. 3. The following are all the infectious diseases or blood impair~ ments which I have had:....................................................... .. ....
4.' In consideration of the sum of ...................................... . Rupees (Rs ................... ) to be paid to me for my services as a blood donor, which I direct you to apply against the bill for services due and owing by the patient referred to in paragraph 1, I agree to assume all of the direct and indirect risks involved, including but not limited to personal injuries which I may sustain .. 5. I have been given, understand, and agree to follow the pre cautionary instructions which are intended to facilitate my own recovery after giving blood. I have also been infonned of the possibility of ill effects and the risks involved in serving as a blood donor. 6. The last time that I served as a blood donor was on ......... 19..... .
I CERTIFY THAT THE ABOVE STATEMENTS ARE TRUE AND I UNDERSTAND THE MEANING OF THIS AGREEMENT. Signed. (Donor)
Wib1ess .... Accepted' Dr........... . and ....... ....... ............... Hospital. By ............................. . (Duly authorized agent)
CONSENT IN RELATION TO MEDICAL EXAMINATION
317
Form 2.5 RELEASE AND RECEIPT (BLOOD DONOR) Date.................... " .. Time., ........ ". "A,JYLjP.M.
I acknowledge receipt of the sum of ................................... .. .
Rupees (Rs ................ ), which I direct you to apply against the bill for
services due and owing by......................................., the patient on
whose behalf I have given my blood, and in consideration therefor I
release Dr........................... ~~.............. and ............................. .
(Physician in charge of blood bank)
Hospital and their agents, employees and assistants from all liability of whatsoever nature, whether for personal injuries or in tort or in con tract, in connection with or resulting from the services that I have al ready rendered. I UNDERSTAND THAT THIS IS A COMPLETE RELEASE OF ALL ]'1'1Y CLAIMS. Signed........ (Donor)
Witness .............................. ..
Form 26 CONSENT TO
OF PROSTHESIS ....................Time ............... A.M.jP.j\.L
. I authorize Dr......................... , or his associates or assistants, to install a prosthesis within my body made of the following material: .. . .. . . .. . . .. ............ ..." ..... I know that there is no adequate substitute for normal bone and that there is a possibility of breakage, or complica tions such as infection and pain. I understand, also, that 'the complica tions that may arise often require removal of the prosthesis and further surgery. No guanmtee or assurance has been given as to the results that may be obtained. Signed ... (Patient)
Witness ....... .
CHAPTER VIII
CRIMES AND THE PRACTITIONER
PART I
CRIMINAL
NEGLIGENCE
PART II ABORTION
PART III CRIMES IN RELATION TO DRUGS
PART IV
THE
CORO~ER'S
COUHT
PART V MISCELLANEOUS (
Part I CRIMINAL NEGLIGENCE
A
s has been pointed out,] there is a difference between civil negli-~
gence and criminal negligence. It has repeatedly been stated 'by I"~ courts in India as well as in England that, in order that a person may be held guilty of criminal negligence, his negligence mllst be of a. gross nature. 2 Simple lack of care would give rise to only civil liability. i Therefore, facts which justify a finding of civil negligence may not be ] Chapter on NEGLIGENCE. See for example, the recent unreported iudgment dated December 5th, 1962 of the Bombay High Court in Dr. \Vagh v. State of At aharashtra, Criminal Appear No. 607 of 1962 (Kotval and Chandrachud JJ.)
2
CRIMES AND THE PRACTITIONER
'319
enough for the purpose of holding a person criminally liable. l1J~,~e fact that a life has been lost or that some person has received injury ..,..... .... --~-,."-----. ------...-..,;.;;; """ will not lead to a Qresumption of criminal negligence. In the leading case of Rex v. Bateman l it was held that a doctor is not criminally responsi ble for a patient's death unk'Ss his negligence or incompeten<'!e went beyond a mere matter of compensation between a doctor and his patient and showed such 'disreg~~d for the .life and safety of others as to amount t~~ri~gai;;_t'th~ Stat;~--' - . --~-,~--'--~..-.--~~ ~~ -
-----
As the Privy Council pointed out in Akerele v. The King2, it must
be remembered that the degree of negligence required to hold a doctor criminally liable is that it should be gross. In the case before the Privy Council, a duly qualified medical practitioner inoculated thirty-six child ren suffering from yaws with a trade preparation consisting of sodium bismuth tartrate, supplied in the form of a powder. After inoculation, five of the children died from stomatitis induced by bismuth poisoning. The practitioner had himself dissolved the powder in sterile water and given the injections from a freshly mixed 20 ounce bottle. The only act of negligence on which reliance was sought to be placed was the single act of dissolving the powder in water. From this a. cri minal degree of negligence could not, the Privy Council observed, be said to be proved. It was not enough that too strong a mixture had once been dispensed and a number of people made gravely m. P!.e,..RIivy Council observed that the imputation of criminal negligence depends ~~~th~-I)I'()bable,' not~.!he actual, res:u:lt. Their Lordships rejected' the argument that criminal negligence was proved merely because a num ber of persons had been made gravely ill after receiving this injection. tThe section of the Indian Penal Code dealing 'With criminal negli gence is Section 304-A. This section reads as follows: "\\t11Oever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to hvo years, or with fine, or with both." This section has been repeatedly interpreted in the same sense in which criminal negligence is interpreted in England. The mere fact tl~at a life has been lost or th,!! som~ person has received an injury will n2D~3d to a presumpY9!!.gf a rash .2~' ~e.g:Iig~nt acf. 3 ~ In Dr. Khushaldas Pammandas v. State of Madhya Pradesh" it was held that, in respect of an unqualified person who gives medical treat (1925) 94 L.J" K.B. 794. W.l43) kG. 2.'5.'5 at 262. 3 Banaoarlal v. State, (1961) 2 Cri. L,J. 561 Raj. ~ A.I,H. (1960) Madhya Pradesh, 50, I
2
320
.lliEDICAL LAW AND ETHICS IN INDIA
ment, un inference of gross negligence is more readily inferred than in the C~L"e of a qualified medical practitioner. The fact that a perso~ totally ignorant of the science of medicine or the practice of surgerYtl undertakes treatment or perfornls an operation is very material in show-i' ing gross rashness or negligence. The accused in this case, a hakim, ( who had no knowledge whatsoever of penicillin injections, gave a peni cillirl injection to a person who died as a result thereof. It was held that the accused was guilty of gross negligence and deserved to be punished. The court observed: "'Vhere a practitioner is utterly ignorant of the science of medicine or practice of surgery, then favourable view of his conduct in giving any treatment prescribed in that science cannot be taken. !.!is ignorance al?!1e would make his ~ct_()~ !l~vi~g treatment rash and negligent." Ibis is particularly so because courts are not inclined to give the advantage of Section 88 of the Indian Penal Code to unqualified practi tioners. Section 88 of the Indian Penal Code provides that an act which was intended by the doer to cause harm or which the doer knew was likely to cause hann is not an offence if (i) it was done for the benefit of the person to whom the harm is caused; and (Ii) if it was done in good faith; and (iii) if the doing of the act was consented to, either expressly or impliedly, by the person who suffered that harm or who took the risk of that harm. By virtue of this provision, a surgeon commits no crime if, knowing that a particular operation is likely to cause the death of a person suffering from a painful complaint, but not intending to cause that person's death, he operates upon that person in good faith, for that person's benefit and with his consent.l The Indian Law Commission which formulated the Indian Penal Code observed in its report2 that this seetion was not jntend~d to excuse bungling in the performance of difficult operations by unqualified per SOllS. The Commission was of the view that an unqualified and ignorant quack could not possibly obtain free and intelligent consent of any person to the performance by him of an operation dangerous to that person's life, except by misrepresentation. The Commission felt that free consent, which was an important element of Section 88 mentioned above, could not be present in such a case. In Sukaroo KolJimi v. Ernpress,~ an unqualified practitioner operated upon a man for internal piles by cutting them out with an ordinary knife. The man died from haemorrhage. The unqualified practitioner/<
I
i
Illustration to Section 88, Indian Pella1- Code.
21st Report. p. 221.
1
:J
LL.H. (1887) 14 Cal. 566.
CRI}'IES AND THE PRACTITIONER
321
was charged under Section 304-A of the Indian Penal Code. It was contended that inasmuch as the accused had petformed similar opera tions on previous occasions, it was not· a rash act within the meaning of that scction. At all events, it was further argued, he was entitled to the benefit of Section 88 of the Indian Penal Code as he did what he did in good faith and without any intention to cause death and for the benefit of the patient, who had accepted the risk. It was held that as the aeeused was admittedly uneducated in matters of surgery and as the expression 'good faith' meant 'doing an aet with due care and atten tion', the accused was not entitled to the benefit of Section 88. I!I.:J'. N~.D~.S01!:Z:.f,l.Y. EV.l12.€LQr~s held that the accused, who was not a qualified practitioner, was guilty of criminal negligence. The accused was in charge of a dispensary which, it was found, was care lessly and badly managed, poisonous. medicines_ beE.:g stored mixed-up with non-poisonous m~dic~~ and the poison cupboard being kept unlocked. The accused had to prepare a large quantity of quinine hydro chloride. He removed a bottle from the non-poisonous medicines cup board and, vvithout looking at the wrapper, on which was printed the word 'Poison', tore open the wrapper and, again without reading the label on the bottle, on which was printed 'Strychnine_Hydrochlori9S mixed contents. _-. of the mixture to several -»_._.the. __....._» . - bottle and administered --'the--------- al1~:!. one of wl.!Q!!Ldied within a very short time. He was convicted under Section 304-A of the Indian Penal Code as being guilty of gross and criminal negligence. It is submitted that even if the accused had been a qu~lified practitioner, the finding would have been the same. , A very peculiar case of criminal negligence occurred recently in \Vest Gem1any.2 A German doctor went on a trip to India in 19,58. Before he left for India, he did not himself vaccinated against smaU pox. Soon his return to \Vest Germany, altllOugh he displayed symptoms of smallpox and had not taken any precautionmy measures to see that he did not infect others with the disease, the doctor resumed his practice. Eighteen patients of his caught the disease from him, two of whom died. The doctor was charged with criminal negligence in Heidelberg and convicted.. He was sentenced to a suspended term of four months imprisonment and to contribute 1,000 marks for cancer research. , ~':Y_~:~~ned that, in. dealing with civil negligel1£Q., eo~ butOlY negligence of the plaintiff is a good defence. Contributory negli '-.~ .
1 2
-~,.~.-,
.---
-,.-.-----~-.------~
(1920) A.LR. Allahabad 32. (1962) R.M./. Vol. 1, p. 932.
. - .,-------
322
lvIEDICAL LAW AND ETHICS IN INDIA
gence, however, is no defence to a charge of criminal negligence. Contributory negligence has no place in criminal law. In Woodward v. Emperor\ the court held that the plea of contri butory negligence has a place in the law of torts but finds no place in the law of criminal negligence. In a Madras case z, the court held that in assessing the liability of a person charged under Section 304-A of the Indian Penal Code, the fact that the victim also contributed a little by his negligence to his own death is absolutely immaterial where there is ample proof that the accused brought about the accident by his negligence and rashness. But__~he contributol}"__negli_gence on the part of the victim is relevant for the purpose of lessening the sentence.
U~ ,),.JJ
Part II ABORTION On the question of abortion, the relevant provisions of the IndiCJ:.!t "- ," ... . Penal Code are 3122.. 313, ?~.lLnd 1l!L The provision conmiscarriage is this: that if a person voluntarily causes a woman with a child to miscarry, he is said to commit an offence unless he proves that he caused the miscarriage in good faith for the purpose of saving the life of the woman. In order, therefore, to charge a person with causing miscarriage, it must be proved that the miscarriage was caused voluntarily and not in good faith for the purpose of saving the life of the woman. An abortion is justifiable only when it is performed in good faith and for the purpose of saving the life of a woman. Ilis~bmittecl..J:hat_nQ doct~\\~2:l,Id J~ heJd .E!I.UtI or causinK miscarriage if, when he performed an operation for abo~.!k.. h~ h'onestl,y' i?clieY~o/be for_~he~ose of saving the life of the woman: Differ ences of opinion may exist between medical people. A doctor who per forms an abortion in the honest belief that it is necessary for the purpose of saving the life of the woman cannot be held guilty of causing mis carriage merely because another doctor does not so believe. It is advisable that a doctor should observe the following procedure before undertaking an abortion for the purpose of saving the life of a woman. He writing the consent of the woman and her husband. .,.. . should obtain. . -in. ---.------.,-, -"- ---._. In the event of the. husband refusing to give such ~onse~t, it is submitted that it would be Iml/fu1 for a medical practitioner to perfoffil the !I ~""""=-.-~,...-'~
,-.<.-~.---
2
-----.-~----~-.---.
(1925) A.I.R. Sind, 233, 235. In Re l'onnuswami A.I.R. (1950) Madras, 308,
a
--,,---~-.---...,.
CRIMES AND THB PRACTITIONER
abortion p!.9y~~e.~ i"ti~.Aone in .K0od .f.aith_~n.sLf.Q:r:..th~.~~f sav(~ tl;teJif~.of t!~Wo!!l..e.I.!.a~:~g.i;:::s h~~t. Further, it is advisable
that a second professional opinion as to its necessity for the purpose of saving the life of the woman, preferably of a senior practitioner or a specialist, should be obtained. 'These safeguards are recommended in order to avoid a possible, subsequent false charge of illegal abortion. In the event of the specialist or the senior practitioner taking a contrary view, it is nevertheless open to the medieal practitioner to perform an operation for abortion if honestly believes it to be necessary for saving the life of the woman. He should, however, make a contem poraneous note in his records statiug briefly the reasons why he con siders the abortion necessary., Difference Between English and Indian Law. ~.e}a\"-:.,~~l!glaI.!d a~<:!~ abortio~~E.e procure£!.for the.R~~ of <preserving_!~~
1
._______.
.•
King v. Bourne.
1 K.B. 687.
.. ..-f 11'76\ .
til
I
324
MEDICAL LAW AND ETHICS IN INDIA
mide (Distaval). But inspite of the view expressed by some doctors that a number of deformed children were being born as a result of taking of Thalidomide, the British Home Secretary declined to authorise English doctors to terminate the pregnancies of women who had taken it~ It is suggested that a committee be set up for considering the de sirability of amending the provisions of the Indian Penal Code dealing with abortion" JIt may be pointed out that the law as it stands today does not per mit a bortion in the following eases:
(1) vVhere the woman is pregnant as a result of rape. v\There the woman becomes pregnant when insane. (3) Where the health of the mother is likelv to deteriorate on account of continuation of thc pregnancy: though there is no to her life. (4) Vvhere there are eugenic reasons; for example, where some hereditary defect in the pregnant woman is likely to be inheri tated by the child. (5) "Where it is necessary to save the honour of the family, as in cases of illegitimate pregnancy. (6) "Vhere there are economic reasons., Meaning of ;\1iscarriage. In Empress v. Ademma,l the court observed that the tel111 "miscaniage" was not defined in the Indian Penal Code. In its popular sense, it was synonymous with abortion and consisted in the expulsion of the embryo or foetus, that is to say, the immature pro duct of conception. The stage to which pregnancy has advanced and the forTn Yv'hich the ovum or the embryo has assumed are immaterial. Section .312 requires proof that the woman was 'with child', but it enough if the fact of pregnancy and the intentional expulsion of the)" immature contents of the uterus are established. In the case of Amnja1j Bewa,2 miscarriage was defined the premature expulsion of the child or foetus from the mother's womb at any period of prcgnancy before the period of gestation was completed. The words \vith child' mean preg
isi\
rnant, and it is not necessary to sho\\' that 'quickening' (that is to say, perception by the lTIother of the movements of the foetus) has taken place or that the embryo has assumed a foetal form. Punishment for Abortion. \Vhoever causes miscarriage with the COll sent of the woman is liable to be punished with i~lli2.risonr:1ellt~~]~ing to three years or with fine or with both: and if the woman i~llick ~ ..-.-,-~---='"
1
"-----~----~
LL.R. (1886) 9 :-!adDs 868 at :370. 19 \\'.R.
~32.
-..•
CRIMES AND THE PRACTITIONER
32.5
child,l he is liable to be punished with imprisonment extending to seven -"-'--,------~r__--..y.ears and also with_ fir~ Wherc the consent of the woman is not taken, whoever commits miscarriage is liable to be punished with imprisonment of either descrip tion for a term extending to ten years and is also liable to be fined. It is an offence to do an act either before or after the birth of a child \-vhich prevents the child from being born alive or causes it to die after its birth.
___--
-----..-"
Part III CRIMES IN RELATION TO DRUGS Acts dealing with drugs and poisons contain several penal proVI sions. Strict observance of the provisions is obviously necessary. In order to protect the public against misuse of drugs, breach of the provisions ot the Drugs Acts is made punishable, in some cases with nne and in others with imprisonment. Drugs Act, 1940. In order to enforce obedience to the various provisions of the Drugs Act, 1940, penalties are provided for breach ot those provisions. Punishment for a period of not less than one year and extending to three years along with an imposition of fine is prescribed in a case where a person, by himself or through an agent, manufactures for sale, sells, stocks or exhibits for sale or distributes any drug which is misbranded. A drug is said to be misbranded if it is an imitation of another drug or bears upon it the name of another drug or if it is im ported under a name belonging to another drug or if its label or container bears a statement or design which makes any false claim for the drug. Punishment for a period extending to three years or fine or both are prescribed in cases where a person imports a misbranded dmg or a drug which is not of st<wdard quality or imports a dmg vvithout a licence. A person is also liable to be punished with fine extending to Rs. .500 if he uses any report of a test or analysis made by Centrai Drugs Laboratory or by a Government analyst for the purpose of adver· tising any drug. A seller who gives to the purchaser a false assurance that a dmg is of standard quality or that it was imported under a licence is liable to be punished \vith imprisonment extending to one year or with fine or with both. 1
The expression 'quick with child' is applied to describe the peculiar sensatioIl felt by womaIl when she is in the fourth or fifth month of pregnane\',
326
J\fEDICAL LAW AND ETHICS IN INDIA
Opium Act. Penalties are provided under the Opium Act, 1857, for embezzlement of opium by cultivators, for illegal purchase of opium from cultivators, for unlicensed cultivation of opium, etc. Penalties are provided by the Opium Act, 1878, for possession, transpOlt, im· port, export and sale of opium contrary to the provisions of the Act. Poison Act. The Poisons Act, 1.919, provides penalties for unlaw ful importation of poisons and for breach of rules made by a State Government for regulating the possession for sale and the sale of any poison. Dangerous Drugs Act, 1980. Chapter 3 of the Dangerous Drugs Act, ],930, deals \vith offences and penalties.·· It prescribes punishments for cultivating coca plants, manufacturing or possessing opium other· wise than under a permit, and for importing into India or exporting from India, prepared opium. Punishment is also prescribed for im porting into India or exporting from India or transhipping any dangerous drug. A person who allows his premises to be used for the commission of such offences is also liable to be punished with imprisonment ex~ tending to three years. Drugs Control Act, 1950. This Act empowers the issue of a notifi cahon for Dxing in respect of any drug the maximum price to be charged, the maximum quantity \vhich aLany one time may be pos sessod by a dealer or producer and the maximum quantity in any giVEn transaction which may be sold to any person, If a person com mits a breach of a notification fixing the maximum plice or the maximum quantity which at anyone time may be possessed by a dealer or the maxinium quantity \vhieh may in anyone transaction sold to any person, he is liable to be imprisoned for a term extending to three; years or with nne or with both. D1'UgS and Magic Rernedies (Objectionable Advertisement) Act, 1.954. Tbis Act prohibits the advertisement of certain and the issue of misleading advertisements. If a person advertises in spite of such prohibition he is liable to be punished. Provision is made for the confiscation of documents, arlides or things contained in any prohibited advertisement.
Part IV
THE CORONER'S COURT
Coroner's is ancient and honourable and the ongul I this Judicial office is lost in ob.'>curity. The original title may be traced '\ placiforlllll corOllae' meaning the guardian the to the phrase
I
J
CRIMES MW THE PRACTITIONER
QC)r"t '-..:.,;..,:.1
pleas the Crown. The title can be traced as far back as 1194. The hlle w as to the Coroner because his duty was to keep the pleas, causes or suits which affected the King's crown or dignity. In ancient days, his function was not so much to hear and determine causes as to keep a record of all that happened in the country within his jurisdic tion and connected with the administration of criminal justice. underl the Coroner's Act in force in India, his only duty is to hold inquests in cases of deaths by unnatural causes, such as murder, suicide, etc.· and also in cases of deaths in prisons or in police custody, The fact that a medical practitioner should have a thorough know ledge of the Coroner's Comt and its procedure does not require to be stressed. Crimes are unfortunately on the increase and the viork of the C oroner's Court correspondingly increases, In the ,cities of Bombayl and C alcutta, Coroner's Courts have been constituted, It is the function of the Coroner's Court to cause an inquiry to be made whenever there is reasonable cause to suspect that a person has died a sudden death the cause of which is unknown 01' that a person has died under one of the following circumstances ; that the deceased came by his death by homicide, suicide or infanticide; /' (b) that the death W<.lS caused by accident, poisoll, or machinery; ,,/ (c) that the death arose (Jut of the use of a vehicle in a streeL Duh lie road or ill a private place;/' ~ , (d) that the occurred in a prison in which the deceased \vas a prisoner or that it occurrecl whilst the deceased was in custody of the pohce; / (c) that the death occurrccl- (i) in a leper asylum est,lblished under the Lepers Act, 7898;/ (jj) in an asylum or mental hospital established or under the Indian Lunacy Act, 1912; ,. (i ii) in 8. Borstai School established under the Borf/bay Botstal School Act, 1.92.9; , /
in a Receiving Centre or Certified lnstitution provided
maintained under the Bombay Beggars Act, 194.5;_
(v) in any certified school, Remand or institution esta~ blished, m.aintained, declared or recognised, as the case may be, under the Bombay Children Act, 1948, in which the deceased was received, detained, committed, or kept, as the case may under orders of autho rity competent to pass such orders under the said (fi thnt the death occurred ill circnmstances,
continuance or possible recurrence which is prejudicial to tbe or safety of the public or any secticrll of the pllblie;/
1
Bombalf Coroner's Act, 1871
MEDICAL LAW AND ETHICS IN INDIA
328
and in any other case, if it appears to the Coroner that there is reason for holding an inquest he shall proceed to hold such inquest, whether or not the cause of death arose within his jurisdiction: Provided that such inquest shall not be held in the case of death arising out of an offence triable under the Bombay Public SecW'ity :Measures Act, 1947. 'Before November, 1954, the rule concerning inquests was, 'No body, no inquest'. In a case which occurred before November, 1954, one Sita Bai died of electrocution. The relatives of the deceased disposed of the dead body with the help of a medical practitioner. The Police made a report to the Coroner but the Coroner held that, under the position of law as it then stood, as there was no body he could not hold an inquest. The law was changed thereafter as far as Greater Bombay was concerned.' The Executive Health Officer, Bombay Municipal Corporation, in his letter dated January 5th, 1959 addressed to medical practitioners in Bombay sets out cases which they should bring to the notice of the Coroner of Bombay. These cases are: "1. If the dead body of a person is lying within the limits ot Greater Bombay and there is reasonable cause to suspect that such person died a sudden death of which the cause is unknown. ~.
If there is reasonable suspicion that : (a) the death was caused by homicide, suicide or infanticide (i.e. death by violent means); or (b) the death was caused by an accident or poison or machinery (i.e. any kind of accident, even a fan on the road,tet'lIlus and such allied causes); or (c) the death was caused by an occurrence arising out of the use of a vehicle in the street, public road or a private place (this includes injuries caused by a perambulator, bath-chair and bicycle and also train fatality); or (d) the death occurred in circumstances, the continuance or possible recurrence of which is prejudicial to the health or safety of the public or any section of the public, (this in cludes deaths on the operation table or due to infections diseases)." It is pointed out in the said letter that no facilities would be given for the disposal of the dead bodies in the above-mentioned cases at ceme telies, unless an authority for the disposal, issued by the Coroner of Bombay, is produced.
For the information of medical practition~rs reproduced below is a copy of a circular letter recently addressed by the Coroner of Bombay to all hospitals in Bombay:
CRIMES AND THE PHACTITIONER
82g
"COHONER'S COURT.
T. J. Hospital Compound,
BOMBAY, 10. From................ . ......... . Coroller of Bombay. To;
The Resident Medical Offic;.:!' ........................... Hospital, BOMBAY.
No. Sir.
I have to state that it has been found that investigation carried out by the Police into the deaths which have been reported to the Coroner of Bombay is hampered by the medical evidence not being placed at the disposal of ~. investigating officers at the earliest possible moment. ... It is considered necessary that for detailed investigation on scientific lines ·copies of post mortem notes and the depositions of medical officers should be made available to the Police as soon as possible. It has therefore been deeided that the following procedure should please be adopted in all deaths coming within the purview of the Coroner's Act. (1) Death OCCHrring in Hospital.s when post mortem examination is not done. The deposition forms should please be filled in triplicate. The fair copy should be sent to this office; one copy should be sent to the Police Station concerned and one copy to be retained by the Hospital records. (a) Death occurring when post mortem examination has been done. The post mortem notes should please be made in the form which is being used in the districts (a further circular would be issued in this connection). The post mortem notes and the deposition forms should please be made out in quad. ruplicate, an original for production in Court; one copy for being sent to this office and one copy for being sent to the Police Station conccrned and one copy for the record of the Hospital. (b) When the cause of death is resemed Oil account of the organs being sent for examination or analysis. Thc post mortem notes should be supplied as indicated above but the deposi. tion forms will be kept in abeyance till such time as the result of the Chemical Analysis and Or Pathological examination is received when such depositions giving the cause of death, should be mClde out as indicated above. Permission from this office to supply the copies of deposition forms and or of post mortem notes to the Police authorities is not necessary. Every co-operation should please be afforded to the Police Officers when any clarification is sought by them. These should please be sent with the least practicable delay as even a slight delay may hamper the investigation by the Police. In no case should the police be required to make an application for such de. position form and or post mortem notes to this office and indeed in all cases the Hospital Authorities should forward the deposition and or post mortem notes of their own accord without ally request by the Police being made to Hospital Autho· rities in this behalf. The post mortem and deposition forms should please be sent to the Police Station concerned direct without any. reference to this office. It. is suggested that a ;.;eparate register should please be maintained and when the copy of deposition and or of post mortem notes is delivered to the Police, the signature of the recipient should be obtained. It is emphasised that the record and or deposition form and or post mortem notes should not be made available to the members of the public. \Vhen ap proached by the members of the public they should he referred to this office. Yours faithfully,
(Signature). Coroner of Bombay.
J\iEDICAL LA\V AND ETHICS IN INDIA
3.30
,At the conclusion of an inquest held by him, the Coroner must sign with his name and style of office an inquisition 1 setting forth the following items : (i) \vbere, when
before whom the inquisition was held;
(ii) who the deceased was; . (iii) where his body lies;
(iv) the names .of the jurors; awl (v) :r-..........-'-.,-,-,-,,--:--::-;-----";--- ~ the deceased cam~~bX_}:}.:'. _~~.__~.~_ _.------l.----<~-a_r_ld.~o.bje~~-.2fJhe inquiry);
(vi)
was occasioned by the criminal act of another, the name of tbe guilty party. j
Since the Coroner can only state in his report who according to him and in the opinion of the jury is guilty of an offence, if any, and as the Coroner has no power to impose any fine or penalty on the per son guilty of tbe Clime, he has been assigned two functions when the verdict of the jury is that some person is guilty of a Clime in relation to the death of the person over whom the inquest is held. It is incum bent on the Coroner immediately after the inquest to for~2!d a copy £~. th~,J!lSl.!.:!isition together v\lith the names and partic~r;s of tT~;;:-v~'it nesses !.£..!he CommissioncLof Police. and the Coroner is empowered, where. the verdict justifies him in so doing, to issue a warrant the ....arrest of the person found to be guilty and to send him immediately to' a ';nagi~trat~-;l~·lpowerecl to commit him for trial, ~
--'~
regard to the importance- of speeding an inquiry ill sHch I matters, the Coroner is empowered to holsl_an inquest even on a Suw:.kw . ' J or a He IS to disinter a within i a......... reasonable time after the death deceased person. ..
l
~
-.~~~,-~
t
it sllOuld be remembered that a doctor is likely to be called in to aid a Coroner. If, before proceeding to view a body or at any stage of an inquest by jury, the Coroner thinks it necessary that a r~~ mortem examination of the body should be made, he is such examination to be held his or by a duly qualified registered practitioner. The Coroner may an ana !ysis ofm~ny of the organs ~r pa~~_of~~ body or of their contents. A medical practitioner who is invited by the Coroner to present as a witness at an. illquest held by him, is entitled to reasonable rcmllnera·· tionl 1
The Second Schedule to the Central Coro/ler's inquisi tiOll,
19:31 sets out the form of all
CRIMES AND THE PRACTITIONER
331
Part V MISCELLANEOUS l\BUSING THE IvIODESTY OF A 'WOMAN. It is necessary to point out, particularly to young doctors, that they should insist all the presence of another lady when examining a lady patient. This advice is given because instances are not unknown of baseless charges being preferred against doctors of abusing the modestyl of their lady SPEEDING ON E!\fERGENCY CALLS. In Queen v. Dr. McLaughlin," a doctor was fined £ 4 and his driving licence was endorsed for speeding at 48 miles per hour in a built-up area despite his plea that he vv'aS on his way to eU1 emergency case. It was argued on behalf of the doctor that since the doctor was on his way to attend to an urgcnt call, namely, to a case of haemorrhage, he should be acquitted of charge of specd~ ing. The magistrate, however, held that doctors above tIle law and refused to accept the plea put up on behalf of the doctor. ~
"""""""'''-~,--~~.~-
sou of the Indiall l'cllai Code, illS all olfcllce to insllit the -i'ita\\'Ci'iliari' and Ispffi1iS1l;~ITl-siIllple impli:;ol1Hwnt i'or c\ term
Sedioll
which may extend to one year or 'i.\'ith fine or with both. '(l959) VoL 2 B.M.]., p, J.l91.
(\ p~
Sv q
iJ
CHAPTER IX
/' MEDICAL CEHTIFICATES AND REPORTS JF================== $~rwp5is Part I CERTIFICATES AND EXAMINATION Section 1
AGE
Section 2
DEATH
Section 3
INDUSTRIAL LA,vs
Section 4
LEPROSY
Section 5
LUN.-'.CY
Section 6
'lACCINATIOK
Section 7
\1rSCELLAKEOUS CER'TIFICATES
Part II NOTIFICATION AND REGISTRATION Section 1
BIRTHS AND DEATHS
Section 2
DANGEROUS AKD INDUSTRIAL DISEASES
)
f
Part I
CERTIFICATES AND EXAMINATION
Tjs .J..l?:~.~ty.of ):LJJl.edicat.EI~cti~o.~!.l.
I
MEDICAL CERTIFICATES AND REPORTS
practitioners. It requires careful examination and integrity the results of the examination in the certificate.
333 111
stating
\1edical practitioners should remember that, although thcy may comply with requests for certificates, any suggestion to modify aecuracy or to alter truth should be summarily rejected. They should note that the Indian Penal Code by Section 197 provides as under: "\Vhoever issues or signs any eertificate required by law to be given or signed or relating to any fact of whieh sueh certificate is by law admissible in evidence, knowing or believing that such certificate is false in any material point, shall be punished in the same manner as if he gave evidence." Further, it is considered professional misconduet to ~ign or give under one's authority any certificate, notification, report or documcnt of a like nature, which is untrue, misleading or improper. The Indian Medical Association in its Code of'Medical Ethics, on the subjeet of certificates, ,notifications and reports, states as follows : "Registered practitioners are in certain cases bound by law to givc or may be from time to time called upon or rcquested to give certificates, notifications, reports and other documents of a kindred character, signed by them in their professional capacity for subse quent use in courts of justiee or for administrative purposes, ete. Such documents include certificates (a) under the Act rel,tting to lunacy; (b) u:nder the Factory Act; (c) under the Acts and Orders of Government relating to the noti fication of infectious diseases,e.g., plague; (d) under the Cantonment Act;
in connection with sickness benefit and insurance;',
(f) for procuring the issue of passports; for execusing attendance in courts of justiee, in the publie ser vices, in publie or in ordinary employment; (b) in connection with naval and military matters;, (i) in connection with medico-legal examinations and reports. Any registered praetitioner who shall be shown to have signed or given under his name and authority any sueh eertificate, notification, report or document of a kindred character, which is untrue, misleading or improper, whether to the several matters above specified or otherwise, is liable to have his name erased from the medical " A medical practitioner may become liable for damages in a civil suit filed by any person who actually suffers hann or loss as a result of relying on the truth or accuracy of a certificate. A civil suit may also be filed for a dehmatOlY statement contained in a certificate.
334
MEDICAL LAW A:l\D ETJ:UCS IN INDIA
It should be noted that a
mere report or certificate of a medical practitioner is not admissible as evidence. A report or certificate by itself may be said to be the worst form of 'hearsay evidence'. A medical practitioner must enter the witness box and must orally depose to what he has stated in his report or his certifieate. Unless he goes into the box and gives oral evidence, there can be no cross-examination concerning the eontents of the certificate or report and eross examination is essential if the veracity or otberwise of the witness is to be established. A certificate by itself ean only be eorroborative evi dence: 1 The certificates of the Serologist and of the Chemical Exmniner, however, are admissible in evidence by themselves. But the court itself may, if it thinks fit, and shall, on the applieation of the proseeution or the accused, summon and examine these persons as to the snbject matter of their reports.2 A medical practitioner should, therefore, not sign a certificate unless he has personally ascertained the facts which he certifies and he should take pains to see that he does not issue a certificate which is untrne, mis leading or improper. With regard to the issue of certificates, the medical practitioner should take careful note of the follo\:ving points (a) To give authority to a certificate that he issues, the medica] practitioner should use for the certificate note-paper bearing his letter-head. If he uses ordinary note-paper he should men tion thereon his address and qualifications. (b) A certificate issued by a medical practitioner should state such facts as are within his personal knowledge, and it should not be untrue, misleading or improper in any particular. (c) A certificate should be limited to the period during whieh the patient has been under the practitioner's observation. (d) A certifieate should not be given for inadequate or for extra neous reasons. (e) A practitioner should never issue a certificate based on the history of an illness supplied to him by other persons. (f) If a practitioner is eonstrained to rely on the patient's un confirmed statements he should take care to indicate in the certificate the circumstances in which he has issued it. (g) A practitioner should not fail to keep with himself a duplicate of a certificate he. issues and he must preserve such duplicates . for a period of at least two years. (h) A practitioner should inquire why the patient requires a certificate and he should frame the certificate in accordance with the patient requirements. For example, if a certificate is required for the purposes of sick leave, the practitioner should 1 2
Salemahamacl v. State of Kiltch: A.LR. (1953) Cutch 7. Sec. 510 of The Code of Criminal Procedure, 1898.
MEDICAL CERTIFICATES AKD ImpORTS
33.5
indicate in the certificate the number of days for which such leave is considered necessary. (i) Unless he is required to do so for some statutory purpose, a \ medical practitioner should not mention the nature of the f disease a patient suffers from. He may do so, however, if· he has obtained the patientS express consent. (j) A practitioner should, whenever possible, hand over the certificate, or report to the patient himseH. If it is handed;. over to a third person, the authority of the third person to re-', ceive it should be ascertained. An article in The Practitioner states that from conception to crema tion and after, the administration of law and all the weHare services depends largely upon medical certificates. The concluding part of the article says, "There are many circumstances in which a doctor may be called upon to authenticate some document such as an application for a passport, or express an opinion which will authorise some pay ment of money.such as under a life insurance policy. In all cases, however seemingly trivial, he will be wise to remember the three cardinal principles to be observed before appending his signature. They are: (1) Strict observance of the ethical rule of professional secrecy. (2) To read and understand the nahne and purpose of the certificate or report to be signed. (3) Never to certify a fact which is untrue or an opinion formed by the influence of others against his personal judgment."
Section 1 -
ACE
At the outset, it is proposed to set out a few observations of judges regarding medical evidence upon the question of A study of these observations will be found useful by medical practitioners. In Kishorilal v. The State,2 the court said, "An X-ray ossification test may provide a surer test for de!ermining the of an individual than the opinion of a medical expert, but it can by no means be so infa11ible and accurate a test as to indicate the correct number of years and days he has lived." With reference to a table given in an authoritative text book on medical jurisprudence and toxicology showing the age in years on the basis of appearance and fusion of some of the epiphysis, it was stated that too much reliance ought not to be placed on the table as the table merely indicates an' average and is likely to vary in individual cases, even of the same province. It was further stated that owing to the eccentricities of development and owing to the variations in' the climatic, dietetic, hereditary and other factors affect 1 't'iIEDICAL CERTIFICATION'
~
A.I.R. (19,57) Punjab 78.
by Alistair French in The Practitioner, July 1957.
336
.\IIEDICAL LAW AND ETHICS IN INDIA
ing the people of the different provinces of India, the table could not be reasonably expected to formulate a uniform standard for the deter mination of the age for the whole of India. In Shripalsingh v. lagdish Narayan/ it was said that the effect of medical testimony as to the age of a person was to render the other evidence given in the case as to age medically probable or improbable. In Mohamed Al'i/fin v. Y. O. Gark,2 the Privy Council said that a doctor's certificate which is only an assertion of opinion as to age is no proof of age. In this case, the certificate merely stated that in the doctor's opinion the age of a person was twenty-one years. Such a certificatc, it was held, was not a certificate but merely an assertion of opinion and was useless. Determination of age. The detenninatlon of age presents a task of considerable importance from the view-point of the administration of justice. IThe only valuable and universally accepted scientific methods of estimating age in living persons are, in order of merit (1) Examination of the condition of diaphyseo-epiphyseal union of the long bones forming the six main joints of the extremities. This union presents an almost constant feature in most indi viduals and may, therefore, be taken as an "age indicator." (2) Observation of the calcification of the roots of the wisdom teeth, i.e. the appearancc of the roots of thcse teeth in radiographs, irrespective of their eruption. It has been proved by research in this country that the age at which the union of the epiphysis with the diaphysis, that is to say, the union of thy end of the bones with the body of the bones, o~curs in Indians is about a year or two in advance of the age at which this union occurs in Europeans. The exact causes of this difference is not known. It must be stated that it is not possible to enunciate any hard-and fast rule for the detem1ination of age from this union for the whole of India because India is composed of areas which differ in climatic, dietetic and disease factors which leave on the skeletons of people of one area marks which are vitally different from those found on the skeletons of people of other areas. It must also be borne in mind that sex is an important factor in the epiphyseal union. It is complete one or two years earlier in females than in males as far as the long bones are concerned, except in the lower cnd of the humerus and the upper ends of the radius and ulna lA.LB. (1920) Ouclh ]64. A.LH. (1916) P.C. 24~.
:2
I
I,
MEDICAL , I
C~RTIFICATES
AND REPORTS
337
where it is complete two to three years in advance in males. The cause of this discrepancy is not known but the principle is well-accepted that girls get their wisdom teeth later than boys. \Ve will now deal in detail with the examination of the union of the epiphysis with the diaphysis for the determination of age. Dealing first with children, from infancy onward an estimate of the age of a child can usually be made by examining the general physical and m ental development of the child together with the degree of erup tion of the teeth and of the centres of ossification. The most ticklish· problem, however, arises in the calculation of the of adolescents. The period of adolescence extends from the time of the first establishment of the sexual function (puberty) to that, of m~turiJY. In this country, in girls, this period is between the ages; of twelve and eighteen and, in a majority of cases where courts require an estimate of age, adolescent girls are concerned; the question of their age is of great importance in cases of rape, kidnapping and prostitution. The responsibility of medical men in estimating age in these cases is very great as the culpability of the accused is to be decided upon the estimate of the age of the girL The science of estimating age is not, however, so exact as to enable a medical man to say that a person is exactly so many years and so many days old. His opinion should, therefore, be a cautious one, one which concedes a margin of error. The f actors to be taken into consideration in the estimation of age during the period of adolescence in girls, in whom the beginning of adolescence is accompanied by certain well-defined developmental changes, are as follows: (a) the number of teeth in eachiaw; (b) the appearance of hair in the armpits and on the pubis; ., (c) the development of the breasts; (d) the appearance of the first menstrual period; (e) the height, weight, general cOITlfiguration and development of the body; (f) the X-ray examination of the six joints of the limbs with a view to note the union of the epiphysis with the diaphysis., It may be stated that none of these factors considered individually It is the sum total of these is of any value in the estimation of that must be taken into consideration.
,
Teeth as a means of ascertainment of age. The average boy or girl on reaching the of puberty is already in possession of all the permanent teeth with the exception of the four wisdom teeth. As far as these pennanent nventy-eight teeth are concerned, there are few
MEDICAL LAW AND ETHICS IN INDIA
338
..
exceptIons. The time of eruption of the wisdom teeth is much more uncertain though various authorities state that their eruption occurs between the ages of eighteen and twenty-five: they have been found present in boys of about fifteen years of age and absent in men of sixty and seventy. Therefore, the mere fact that wisdom teeth have not erupted is not of great importance except in relation to other evidence. The X-ray examination of unerupted wisdom teeth is more infonna tive. What must be looked for is the degree of the calcification of thei!" roots. As a whole, the upper wisdom teeth calcify about a year and a half in advance of the lower wisdom teeth and the roots of the lower wisdom teeth are completed two to three years after the union of the long bones. , Skeletal Changes. Before puberty, when the skeleton is beginning to get consolidated, so many growth changes are going on, such as the development of the growing ends of the limb bones and the progrlssive eruption and calcificaticm of teeth, that it is easy to detennine age within the margin of about a year. From puberty to the consolidation of the skeleton (at about eighteen years in girls and about twenty OJ" twenty one years in boys) a fairly close estimate within a margin of two years may be made, mainly OIl the progress of the epiphysial linion. The method of estimatirng age is to calculate the approximate age after considering the abovementioned factors and after allowing a margin of error of six months on either side. Thus, if the tests seem to indicate that the age is between fifteen and. sixteen, a margin of error of six months on either side would make, according to the !"ecommended method, an estimated age of between fourteen and a half years to sixteen and a half years. The following tabular statement of the age of diaphysio-epiphyseaI union in girls and boys has been prepared as a result of personal in vestigaticms: I
I
DIAPHYSIO-EPIPHYSEAL UNION
- -..
- . - -..
L 2. 3. 4. 5. 6. 7. 8. 9. 10.
----~---
..- - - -..
Humerus Distal Ulna Proximal Radius Head Humerus (Medial Epicondyle) Tibia Proximal Fibula Proximal Femur Distal Radius -Distal Ulna Distal Humerus - Proximal
GffiLS
I
BOYS
-,-"
.. -~-~-------.~,-~~-~-~ .. ~--~-~-----~
12 -13 14 13)'2 1·1 13 14 15 -15)f 17 -18 Im~ 17 16 -17 16 -17 17 -18 13~ -
15
16
15~ 17 15~ -17 16~ 17
17 18 19 - 20 18 -19 18 19 18 19 19 -20
339
MEDICAL CERTIFICATES AND REPORTS
Section 2 -
DEATH.
The obligation to issue a death certificate is as stated in Section 450 of the Bombay Municipal Corporation Act: "In the case of a person who has been attended in his last illness by a duly qualified medical practitioner, that practitioner shall and forward to the Commissioner a certificate of the cause of such person's death in the form of Schedule "P" or in such other form as shall from time to time be prescribed by the Commissioner in this behalf) and the cause of death as stated in such certificate shall be entered in the register together with the name of the ceitifying medical practitioner.'~ The form of the certificate prescribed is as follows: "To The Municipal Commissioner,
Bombay.
I do hereby certify that I attended the deceased ........ ., ............. . ........... .during his/her last illness and that to the best of my belief the cause of his/her death was as stated below:
Date of death .................... .
Age.
Cause of Death.
Approximate interval between onset and death. Years. Months. Days.
1. Disease or condition directly leading to death.
(a) ............................... . due to (or as a consequence of),
{>
Antecedent Causes. Morbid conditions, if any, gi ~ing rise to the above cause, stating the underlying condition last. II. Other significant conditions conhibuting to the death but not relat~d t? the disease or condition causmg It. Place of residence of the
deceased in Greater Bombay.
1 f 1
(b) ....................... .. .. . .. . ... ; . due to (or as a consequence of), (c) .............................. "
.. ,
J
}
Signature :Medical Designation or Diploma ............ . Address or Rubber stamp of the institution.
1 J
" This does not mean the mode of dying, e.g., heart failure, the disease, injury or complication which caused death.
etc.
It means:
340
MEDICAL LAW AND ETHICS IN INDIA
N.B.:-(i) The protection of the confidential nature of the medical information contained herein is ensured as far as possible. (U) Earnest co-operation of Registered Medical Practitioners in this matter will be highly appreciated by all concerned. (iii) The certificate, on being filled in carefully and signed, should be for warded without delay to the Executive Health Officer, Bombay Munici pal Corporation. to Re (iv) Additional forms of certificates will be supplied free of gistered Medical Practitioners on request to the Executive Health Officer."
For the infonnation of medical practitioners, the following note is attached to the form of celtificate of death prescribed by the Municipal authorities: "The regulations of the World Health Organization of the United Nations are required to be adopted from 1st April, 1960. These regula tions include the recommendations of the 6th Decennial International Revision Conference with regard to certification of cause of death, which are designed to secure universal uniformity as to stating the UNDER LYING CAUSE OF DEATH. The relevant extracts from these recommendations are given be low: (1) A cause of death is the morbid condition or disease process, abnormality, injury or poisoning leading directly or indirectly to death. Symptoms or modes of dying such as heart failure, asthenia, etc. are not considered to be causes of death for statistical purposes. (2) The underlying cause of death may be defined as- (a) the disease or injury which initiated the train of morbid cvents leading directly to death, or (b) the circumstances of the accident or violence which pro duced the fatal injury. (3) 111e (recommended) medical certificate of death is designed to elicit the information which will facilitate the selection of the UNDERLYING CAUSE OF DEATH when two or more causes are jointly recorded. (4) No entry is necessary in lines (b) and (c) of the certificate if the diseases are conditions directly leading to death stated in line (a). (5) In Part II are to be entered any other Significant conditions which unfavourably influenced the course of the morbid pro cess, and thus contributed to the fatal outcome but which were not related to the disease or condition directly causing death. (6) In the case of deaths from injury, the circumstances which gave rise to the injury, and also the nature of injury should be men tioned." The follo\'ving important points must be noted by medical practi tioners who issue death certificates in cases of death by natural causes: L The certificate should preferably be in the prescribed form. The Health Department of the Bombay Municipality,provides printed fOnTIS of death certificates free of charge. 111e fom1 is
MEDICAL CERTIFICATES AND REPORTS
341
not insisted upon and the medical practitioner may give the celtificate written upon note-paper bearing his letter-head. 2. The death certificate is required by the Municipal Commissioner under Section 450 of the Bombay Municipal Corporation Act, and it is the responsihility of the medical practitioner to for ward the death certificate to the Municipal Commissioner. In practice, however, it is usual to hand over the death certificate to the relatives of the deceased who pass it on to the managers of the places of disposal of the dead who, in tum, forward it to the Municipal Commissioner. 3. The medical practitioner should not charge fees for the issuing; of a death certificate and he should not refuse to give the certi-, . ficate because he has not been paid his professional fees. 4. More than one death certificate should not be issued. H for any; reason a duplicate is required, a true copy of the original should be given. 5. Under no circumstances, should a. medical practitioner sign a blank certificate before the death of the patient and leave the task of filling in the details to someone else. 6. The medical practitioner who issues a death certifieate should as a rule be the practitioner who had been in attendance dur ing the last illness of the deceased. 7. Under no circumstances should a medical practitioner issue a death certificate if he is not certain of the cause of death. 8. The death certificate should not contain vague and ill-defined terms as, for example, dropsy, but must be in defined tem1S. 9. It may be remembered that even in the case of the death of a .newly-born child, whether stillboru or premature, a death certificate is necessary. In the following circumstances, no certificate of death should be issued: 1. A practitioner who is called to see a person who has died suddenly and whom he had never before examined should not issue a death certificate though he may be able to come to some conclusion as to the cause of death from the historY of the case supplied to him. A case such as this comes within'the purview of the Coroners Act and must be dealt Vvith by the Coroner himself. A medical practitioner, in these circumstances, must advise the relatives of the deceased to approach the Police or the Coroner. 2. When a medical practitioner is not sure of the cause of death of a person who has been under his treatment or when has some suspicion as regards the cause of death, he should not give a death certificate but must inform the Police or the Coroner. The Coroner in Bombay and the District Superin tendent of Police or a Magistrate in the districts shall order that a post-mortem exarnination be perfonned by the Coroners Surgeon or the Civil Surgeon, and the certificate as regards the cause of death shall be issued by the Coroner or by the .Magistrate,
342
MEDICAL LAW AND ETHICS IN INDIA
3.
Under no circumstances is it open to a medical practitioner to issue a death certificate in cases which fall under Section 9 of the Bombay Coroner's Act and, if he does; the medical practi tioner is liable to be held guilty of aiding and abetting in the offence of the prevention of the holding of an inquest. It would not be out of place to mention here that the most im portant field in which the opinion of medical experts is required as to the cause of death is the one in which death has occurred due to violence. Medical opinion is often sought in cases of infanticide to show that a child was born alive and was later killed or that the child was in fact stillborn. As regards post-mortem examinations and reports, the High Court of Allahabad said in Thakur v. State); "The post-mortem examination is a very important piece of evidence in criminal trials and the Medical Officers who are entrusted with this work should do it with the utmost care and attention and shuuld not perform it as a mere formal duty. They should, as a rule, fill in all the relevant head~ mentioned in the printed form and apart from giving the approximate time of death, they should invariably mention the kind of weapon which was probably used in causing the different injuries."
Section 3 -
INDUSTRIAL LAWS
Indian Factori.es Act, 1948. The State Govemment is authorised under Section 10 of the Act to appoint qualified medical practitioners to be certifying surgeons for the pUl1)oses of this Act. The appointment may be for the purposes of a factory or a class of factories. A certifying surgeon so appointed is empowered to delegate his duty to another qualified medical practitioner. No per son can be appointed to be a certifying surgeon or, having been so appointed, can continue to exercise the powers of a certifying surgeon if he becomes directly or indirectly interested in the factory, or in any process of busi11ess carried on therein, or in any patent or machinery connected therewith, or is in the employ of the factory. The duties of a certifying surgeon relate particularly to (a) the examination and certi fication of young persons under the Act, (b) the examination of persons engaged in factories in such dangerous occupations or processes as may be prescribed by the Govemment and (c) the exercising of such medical supervision as may be prescribed for any factories, where (i) cases of illness have occurred which, it is reasonable to believe, are due to the nature of the manufacturing process carried on, or other conditions of 1
A.I.R. (1955) Allahabad 180.
MEDICAL CERTIFICATES AND REPORTS
34.')
work prevailing therein, or (ii) by reason of any change in the m;mu facturing process carried on or in the substances used therein or by reason of the adoption of any new manufacturing process or of any .new substance for use in a manufacturing process, there is a likelihood of injury to the health of workers in that manufacturing process, or (iii) where young persons are, or are about to be, employed in any work which is likely to cause injury to their health. Certificates of fihless have been mentioned in Section 69 of the Act. 4~e.~i!Y~~~?n has _t031~!1be.,Ul1&.l2£. ~hild i:<;...J!.llQ};veq .QyE~ t,2 .wor~J!!...~, fa~toJ:Y ,unlySLhs_l!!!S_ c9mE!etee~tjfi.Q~t.~_Qf.l!!!!.ess is.. . '::§.llid for one year onlXz. but it is renewable. It can be revoked by the celtifying surgeon if he is of the view that the person to whom the certificate is issued is no longer fit to work in the capacity stated in the certificate.
I
A certifying surgeon must note that he must claim his fees for the '\' issue of a certificate from the occupier of the factory and not from the person to whom the certificate relates. Under Section 104 of the Act, a declaration in writing by a certify- l\ ing surgeon that he has personally examined a worker and believes him to be under the age stated in such declaration shall be admissible in COUlt as evidence of the of that worker. Under Section 7(), the State Government is empowered to make rules prescribing the form of cCltificates of fitness to be granted under Section 69 and for. fixing the fees which may be charged for such certificates and specifying :.uch other duties as a certifying surgeon under this Act may be required to perform.
344
.MEDICAL . LAW AND ETHICS IN INDIA
Among the rules framed by the State of Bombay, sub-rules 6) 7 and 8 of Rule 15 should be particularly noted. They are quoted below : (6) For the purpose of the examination of persons employed in processes covered by the Rules relating to dangerous opera tions, the Certifying Surgeon shall visit the factories within the local limits assigned to him at sud) intervals as are prescribed by the Rules relating to such dangerous operations. (7) At such visits the Certifying Surgeon shall examine the persons employed in such processes and shall record the result of his examination in a register known as a Health Register which shall be kept by the factory manager and produced to the Certifying Surgeon at each visit. (8) If the Certifying Surgeon finds as a result of his examination that any person employed in such process is no longer fit for medical reasons to work in that process, he shall suspend wch person from working in that process for such time as he may think fit and no person after suspension shall be employed in that process without the written sanction of the Certifying Sur geon in the p:ealth Register. Plantations Labour Act, 1951. This Act also provides for the issue of a eertificate of fitness as a child or as an adolescent. Such a certificate can only be given by certifying surgeons and the Act makes provision for the appointment of qualifiecl medical practitioners to be certifying surgeons. Mines Act, 1952. This Act also provides for the appointment of qualified medical practitioners to be certifying surgeons. No adolescent is allowed to work in an underground mine unless a medical certificate in thc prescribed form has been granted to the adolescent by a certifying surgeon, certifying that he is fit to work as an adult. l¥PWli!l...l1'LCompensation Act, 1923. This Act provides for the . , . - -.. payment of compensation to workmen for injuries sustained by them by accident. T!e amount of comp!:psa!iQ!!. J®'able is d€':Qt:;ndent o!!.....~ nature of the inju!}'. If the injury is caused to a workman due to an -"-"-'-' accident arising out of and in the course of his employment, the employer is liable to pay compensation to the employee on the basis set out in the Act. As compensation is paid to the injured worker upon the strength of the certificate of a medical man as to the nature and extent of his injuries, it is important that the medical practitioner should know the full nature and extent of the basis of compensation provided by the Act. t First, an employer is not liable in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding seven days, The employer is also not liable in respect of an injury, not re5ulting in death, caused by an accident which is directly attributable to (i) the workman having been at the time of the accident under the influence of drink or drugs or (ii) the wilful dis '-~'-"-"-'-
---.
~
I
I
I
-1
I - I
I
i
MEDICAL CERTIFICATES AND REPORTS
345
obedience of the workman to an order expressly given or to a rule ex pressly framed for the purpose of secming the safety of the workman; or (iii) the wilful removal or disregard by the workman of any safety guard or other device which he knows has heen provided for the pur pose for securing the safety of the worker. t Under the Act, if a workman employed in any employment specified in Part A of Schedule III of the Act contracts any disease specified therein as an occupational disease peculiar to that employment or if a workman, whilst in the service of an employer in whose service he has been for a continuous period of at least six months in any employment specified in Part 'B' of Schedule III, contracts any disease specified therein as an occupational disease pecu liar to that employment, and unless the employer proves to the contrary, the accident shall be deemed to have arisen out of and in the course of the employment. ArtifiCially, therefore, certain occupational diseases are deemed to be injuries by accident, for which compensation has to he paid by the employer to the affected employee. Except as stated above, n..~~9E:pensati~-...:.hall be payable to a workman in respect of ant d~ease unless that disease is dir~tly attributable to a sRecific injury by ~ccide~t arisinS...Qll1.2L
of compensation depends, as mentioned above, upon whether the injury has led to death, permanent total disablement, or permanent partial dis ablement. 'lIThe employer is, however, not liable to pay compensation in the following cases: (a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding ten days; (b) in respect o£/ any injury, not resulting in death, caused by an accident which is directly attributable to (i) the workman having been at the time thereof under the influence of drink or drugs, or (ii) the wilful disobedience of the workman to an order express ly given or to a rule expressly framed, for the purpose of securing the safety of workmen, or (iii) the wilful removal or disregard by the workman of any safety-guard or other device which he knew to have been provided for the purpose of securing the safety of work men., If the workman meets with death or dies as a result of injuries received, his dependents are entitled to receive compensation for his death. Claims for compensation are to be preferred before the Comrnis sioners for \Vorkmen's Compensation appointed by the various State
346
MEDICAL LAW AND ETHICS IN INDIA
Governments. The Commissioners. will not entertain any claim unless a notice of the accident has been given in the manner provided by Section 10 of the Act. Every such notice must be served on the em ployer. The claim for compensation is to be preferred within one year of th!Lo~~rr~nce Jth;~id-;;t,~dise~;;o;--death before the appropriate Commissioner for Workmen's Compensation, who has the powers of a civil court for the purposes of taking evidence and enforcing the attend ance of witnesses. The amount of compensation to be paid is fixed under the provi sions of the Act and depe,nds upon the following circumstances: (a) Whether death has resulted from the injury. (b) Whether permanent total disablement results from the injury. (c) Whether permanent partial disablement results from the injury. I In cases of permanent partial disablement, the quantum of compen sation depends upon the percentage of the loss of earning capacity caused by that injury. A list of injnries deemed to result in pennanent paltial disablement and the consequent percentage of loss of earning capacity is given below Loss of right aml above or at the dbov.r Loss of left arm above or at the elbow • Loss of right arm below the elbow Loss of leg at or above the knee Loss of left arm below the elbow Loss of below the knee Permanent total loss of hearing Loss of one eye Loss of thumb Loss of aU toes of one foot Loss of one phalanx of thumb Loss of index finger Loss of great toe Loss of any finger other than index finger
70%
60%
60% 50% 50% 50% 50% 30~,'O
250/0 20% 10% 10%
10% 50%
,
A medical practitioner who is asked to examine a workman either on his own behalf or on behalf of the employer with regard to an injury and to give his opinion as to whether the workman is partially or totally disabled from an accident or an occupational disease must give his opinion according to the dictates or his conscience without favouring either party. It must be remembered that the medical practitioner will be summoned as a witness before the Commissioner for \Vorkmen's Compensation and, at that time, he must be prepared to substantiate the repOlt of his examination by giving reasons for the opinions expre;;;;sed in the report. For this purpose it is of the utmost importance that a practitioner should keep detailed notes of his examination.
MEDICAL CERTIFICATES AND REPORTS
347
!f!!!:p!:2_yees' State 1"E.!:!.!:!!~ The Act provides a scheme of health insurance for industrial workers. T~.~ Act provides for com pulsory jDsur~ It gives certain benefits in the event of sickness, matemity and injury to workers employed in, or in connection with work in factories, other than seasonal factories. The scheme is planned on an all~India basis. The administration of the scheme is entrusted to the Medical Benefit CounciL The insured worker is inter alia en titled to a sickness cash benefit, matemity benefit, disablement and de pendents' benefit and medical treatment. Section 54 provides that all medical examinations and treatment referred to in the Act shall be carried out by duly appointed medical practitioners. The Act also pro vides for the establishment and maintenance of hospitals, disperuaries and other medical and surgical services. The Act makes provision for the appointment of a Medical Commissioner. His powers and duties are set out in Regulation 18 of the rules framed under the Act. His powers and duties are in the nature of supervision and of giving advice, generally in the administrative working of the hospitals and dispensaries run under the Act. There are also rules which provide for certification and claims for sickness and temporary disablement. In order to facilitate reference, Regulations 53 to 62 have been quoted below: 53. Evidence of sickness and temporary disablement. Every 'insured person claiming sickness benefit or disablement benefit for temporary disablement, shall fumish evidence of sickness or temporary disable ment in respect of thi3. days of his sickness or temporary disablement by means of a medical certificate given by an Insurance Medical Officer in accordance with these Regulations in the fonn appropriate to the cir cumstances of the case; provided that the corporation may accept any other evidence of sickness or temporary disablement if in its opinion the circumstances of any particular case so justify. 54. Persons competent to issue medical certificate. No medical certi ficate under these Regulations shall be issued except by the Insurance Medical Officer to whom an insured person has been allotted or by an Insurance Medical Officer attached to a dispensary, hospital, clinic or other institution to which an insured person is allotted and such Imurance Medical Officer shall examine and, if in his opinion the condition of the insured person so justifies, issue to such insured person, free of charge, any medical certificates reasonably required by such insured person under or for the purposes of the Act or any other enachnent or these Regulations: Provided that an Insurance IVIedical Officer may issue a medical certificate under these Regulations to an insured person who is not allotted to him or to the dispensary, hospital, clinic or other institution to which he is attached, if such pfficer is satisfied that in the circum stances of any particular case the insured person cannot reasonably be expected to get medical benefit from the Insurance Medical Officer or the dispensary, hospital, clinic, or other institution to which such insured
~
348
MEDICAL LAW AND ETHICS IN INDIA
person has been allotted and such certificate also sh;;tll be issued free of charge; Provided further that an insured person shall not be granted a medical certificate unless he produces to the Insurance Medical Officer his identity card or such other documents as under these Regulations, may have been issued in lieu thereof. 55. Medical Certificate. The appropriate form of a medical certifi cate shall be filled in ink by the Insurance Medical Officer in his o\vu hand-writing and shall contain a concise statement of the disease or disablement which in the opinion' of the Insurance Medical Officer necessitates abstention from work on medical grounds or renders the person temporarily incapable of work. The statement of thc disease or disablement in the Medical Certificate shall specify the nature thereof as precisely as the Insurance Medical Officer's knowledge of the condi tion of the insured person at the time of the examination permits. 56. Time of granting medical certificate. (a) An Insurance }tIedical Officer shall give the medical certificate' to an insured person at the time of the examination to which it relates; where he is prevented from so doing he shall send the certificate to the insured person within twenty-four hours thereafter. (b) No further medical certificate relating to the same examination shall be issued, except where a duplicate of such certificate is required, in 'which case it shall be issued free of chargc and clearly marked "duplicate. 57. Medical certificate on first examination. Where the examination is the first examination in respect of a spell of sickness or a spell of temporary disablement, the medical certificate shall be in the form of a first certificate (form 8) and shall be only in respect of the date of examination: Provided that where, in the opinion of the Insurance Medical Officer, the insured person is likely to beeome fit to resume work on a date not later than the third day after the date of examination, the first certificate may be issued in respect of the entire speU of sickness or temporary disablement and, in such a case, it shall specify the date on which the insured person will, in his opinion, be fit to resume work; such a cedi ficate shall, notwithstanding anything contained in the Regulations, be also treated as a final certificate. 58. Final medical certiflcate. If at the date of examination to which a medical certificate other than a first certificate relates, the insured person in the opinion of the Insurance Iviedical Officer is, or will become, on a date not later than the third day after that date, fit to resume wOl'k that certificate shall be in the form of final certificate, (Form 9). 59. Intennediate certillcates. If the final certificate is not issued within seven days of the date of the first certificate, an insured person ::.hall, except where the case is covered by Regulation 61, submit certificates in the form of intermediate certificates (form 10) at intervals of not more than seven days each, commencing from the date of the first certificate. 60. Final medical certiflcate before commencing work for wages. Every insured person shall obtain a medical certificate in the form of a final certificate before he takcs up any work for wages.
MEDICAL CERTIFICATES AND. REPORTS
349
61. Intermediate certificate for a longer period. Where temporary disablement or sickness has continued for not less than twenty-eight days and the Insurance Medical Officer is satisfied that such disable ment or sickness is likely to continue for a long period and that, owing to the nature of the disablement or sickness, examination and treatment at intervals of more than one week will be sufficient, the insured person may, unless otherwise directed by the appropriate office, furnish a medical certificate in the form of special intermediate certificates (form 11) at intervals of such longer periods not exceeding four weeks as may be specified by the Insurance Medical Officer. 62. Certified sickness. Sickness in respect of any periods shall be deemed to be duly certified for the purposes of Section 48 of the Act, provided that medical certificates in respect of such periods are issued in accordance with these regulations and such certificate is submitted to the appropriate local office by post or otherwise within fOUlteen days of the date of its issue,"
Forms 8, 9, 10 and 11 referred to above, are as follows : CONFIDENTIAL (Stamp of the dispensary)
Form 8 (Regulation 57) FIRST CERTIFICATE Book No ...... . Serial No .................... .
To
Insurance No. , ~----~------------
I certify that I have examined you today and that in my Opll11OIl, you now need medical treatment and attendance and abstention from work on medical grounds by reason of.. ............................. .. @ In my opinion you will be fit to resume \vork tomorrow/on @@ ....................... . Date ........................ ..
Signature ...................................... . Insurance Medical Officer. (Rubber stamp or name in block letters)
Any other remarks by the me,dical officer.. ............... :........... ..
if not applicable. The day to be indicated must in no case be later than the third day after the date of the examination.
@ Delete @@
350
MEDICAL LAW AND ETHICS IN INDIA
CONFIDENTIAL
Form 9 (Regulation 58) FINAL CERTIFICATE Block No ........................ .
Stamp of the dispensary .
Serial No ......................... .
To ..............................
Insurance No.
Date of first certiHcate of spell of sickness or disablement ................. .
I certify that I have examined you today and that in my opinion you have continued to need medical treatment and attendance and absention from work on medical grounds upto and including this day by reason of ................................ . In my opinion you will be fit to resume work tomorrow Ion ........... .
Date ................................ .
Signature...................................... . Insurance Medical Officer. (Rubber stamp or name in block letters)
Any other remarks by the Medical Officer... CONFIDENTIAL
Fonn 10 (Regulation 59) INTERMEDIATE CERTIFICATE Book No ............... ..
Stamp of the dispensary.
Serial No ............... .
To ....... ...... .................
Insurance No.
Date of first certiHcate of spell of sickness or disablement. I certify that I have examined you today and that in my opll1l0n you have continued to need medical treatment and attendance and abstention from work on medical grounds upto and including this day by reason of.. ..................... . Date ................................ .
Signature ..................................... . Insurance Medical Officer. (Rubber stamp or name in block letters)
Any other remarks by the Medical Officer.......... .. ............... .
MEDICAL CEHTIFICATES AKD HEPOHTS
351
CONFIDENTIAL
Form 11 (Regulation 61) SPECIAL INTERMEDIATE CERTIFICATE Book No ................... .
Stamp of the dispensary
Serial No .................. . To ..............................
Insurance No.
Date of first certificate of spell of sickness or disablement................. . I certify· that I have examined you today and that in my opinion you have continued to need medical treatment and have remained in capable of work upto and including this day by reason of................. . I further certify that, judging from your present condition your in capacity/sickness is of such a character that it will be unnecessary to see you for the purpose of treatment more frequently than once in ............... weeks, and you will require medical treatment and will re main incapable of work at least upto the end of............... weeks from tills date. I propose to issue certificates in this fonn at the intervals stated above so long as your condition does not require more frequent attend ance. In my opinion you should now/need not yet be referred to a !vledical Board to determine if you are permanently disabled. Date ................................ .
Signature..................................... . Insurance Medical Officer. (Rubber stamp or name in block letters)
Any other remarks by the Medical Officer.. ................................... ..
As regards maternity beneflt the relevant provisions are contained in Regulations 94 and 95 which are quoted below: "94. AUTHORITY \VHIGH MAY ISSUE CERTIFICATE. No certificate of preg nancy, of expected confinement or of confinement required under these Regulations shall be issued except by the Insurance Medical Officer to whom the insured woman has been allotted or by an Insurance Medical Officer attached to a dispensary, hospital, clinic or other institution to which the insured woman is allotted, and such Insurance Medical Officer shall examine and, if in his opinion the condition of the woman so justifies. issue to such insured woman free of charge any such certificate when reasonably required by such insured woman under or for the purposes of the Act or any other enactment or these Regulations: Provided that such officer may issue a certificate of pregnancy, ex pected confinement or confinement under these Regulations to an insured woman who is not allotted to him or to the dispensary, hospital, clinic or other institution to "vhich such officer is attached, if such officer is attending the woman for pre-natal care or for confinement:
352
.MEDICAL LAW AND ETHICS IN INDIA
Provided further that a certificate of pregnancy, of expected con finement or of confinement required under these Regulations may be issued by a registered midwife which shall be accepted by the Corpora tion on counter-signature by the Insurance Medical Officer. 95. OBLIGATIONS OF INSURANCE MEDICAL OFFICER. Nothing in these Re- . gulations shall relieve an Insurance Medical Officer to whom an insured woman has been allotted, or an Insurance Medical Officer attached to the dispensary, hospital,· clinic or other institution to which an insured woman is allotted of the obligation to examine and if in his opinion the condition of the woman so justifies, issue free of charge a certificate of pregnancy, of expected confinement or of confinement during any p6riod in which such insured woman is obtaining treatment or attendance from any other person or from any other hospital or institution." It has been mentioned in an earlier chapter that there is no legal obligation on a medical man to treat patients who may choose to see him. It is submitted, however, thai: once a medical man becomes a part of the Health Insurance Scheme, he is bound to accept a person allotted to his panel and he is liable to be. held negligent if he does not do so.
Section 4 - LEPROSY. The Leprosy Act, 1898. This Act provides for the segregation and medical treatment of pauper lepers and for the control of lepers following certain callings. A leper is defi~.ss:Qtion ill) to mean any person suffe~ frorn~ety of ~pro~. In order that a p;upe~'p;;-nu;:y~ 1 be dealt with under this Act, an order has to be passed by a Magistrate 1 upon the certificate of the Inspector of Lepers. Section 4 makes pro- , vision for the appointment of any Medical Officer of the Government or any other qualified medical man to be an Inspector of Lepers. The following are the fOnTIS of the relevant certificates given in the Act: (a) I, the undersigned ..............................................., hereby (Here enter name of person examined)
certify that on the .............. day of.. ............at.. ....... personally examin ed...................................................... , and that the said.............. . (Here enter the name and official designation)
is not a leper as defined by the Lepers Act, 1898. Given under my hand this ..................day of.. ................ 19 . . . (Signature). Inspector of Lepers. (b) I, the undersigned ...................................... , hereby certify that I on the ........... day of ............ at. ........... personally examined ................................. , and that the said ..................... is a leper as defined by the Lepers Act, 1898, and that I have formed this opinion on the following grounds, namely: (Here state the grounds).
Given under my hand this ...............day of ....... , .... 19 (Signature).
Inspector of Lepers.
MEDICAL CERTIFICATES AND REPORTS
Section 5 -
3.53
LUXACY
Indian Lunacy l1ct, 1912. Section 3(S) of the Act defines a lunatic as an idiot or a person of unsound mind. Section 3(7) defines a Medical Officer as a Gazetted Medical Officer in the service of the Government and includes a medical practitioner declared by general or special orders of the Government to be a Medical Officer for the purposes of the Act. Section 3(10) defines
(or the sub-division of..."', .... ,, .......... .in the district of.. " , ...................... ) an alleged lunatic. I, the underSigned C.D., do hereby certify as follows: (1) I am ~. gazette~~edica!officer (or a medical practitioner deo a holder of... ........... (b) .. ........... ,,( or declared by State ~lan:;dby Govel'flmentJo be ~_:!ledical~fficer unde~Act IV of 1912) and Government to be a medical practitioner under Act IV of 1912) I am in actual practice of the medical profession. (2) On the ........... day of 19............ at (c) in the town/village of .......... .. ..... (or the the sub-division of. .. .............. in the district of.. ............ " .. ) separately from any other practitioner (d) I personally examined the same A.B. and came to the conclusion that the said A.B. is a lunatic and a proper person to be taken charge of and detained under care and treatment. (3) I formed this conclusion on the following grounds, viz. (a) facts indicating insanity observed by myself, viz ........... ..
(b) other facts (if any) indicating insanity communicated to me by others, viz. (here state the information and from whom). ..
•
0
...
"
.....
"
"
......
Sd. C.D. (Designation as above) (a) Insert residence of patient. (b) Insert qualification to practice medicine and surgery registrable in United Kingdom. (c) Insert place of examination. (d) Omit this where only one certificate is required.
354
MEDICAL LAW AND ETHICS IN INDIA
1
Every medical certificate shall state the facts upon which the per son certifying has fonned the opinion that the alleged lunatic is in fact a lunatic, distinguishing facts observed by himself from facts com municated by orders. No reception order shall be made relying upon a certificate founded only upon facts communicated by others. Every medical certificate given under the Act shall be evidence of the facts appearing therein and of the judgment stated to have been formed by the person certifying on such facts as if the matters appearing therein had been verified on oath.
t.
Section 6 - VACCINATION The parents or guardian of every child shall, within a short time after the birth of that child, have it vaccinated either by a medical practitioner or by the Public Vaccinator. After such vaccination, the child shall be taken again, upon the same day in the follOWing week, to the medical practitioner or to the Public Vaccinator and he shall ascertain whether the vaccination has been successful or not If it has been successful he shall issue a certi ficate of successful vaccination, the form of which is given below. If the vaccination is unsuccessful, the vaccinator shall cause the child to be vaccinated again. If he finds, on the other hand, that the child is not in a fit state to be vaccinated, he shall deliver to the parent or guardian of such child a ccrtificate to that effect. A fonn of this certifi cate is also given below. This certificate shall remain in force for tvlO months only, but can be renewed for successive periods of two months. If the vaccinator finds that a child whom he has vaccinated thrice, each time unsuccessfully, is insusceptible of successful vaq::ination or that a child brolfght to him for vaccination has already had smallpox, he shall deliver to the parents or guardian of that child a certificate that the child is insusceptible of vaccination. The fonn of such certi ficate is also given below. CERTIFICATE OF SUCCESSFUL VACCINATION I, the undersigned, hereby certify that......................... the child of ............................. (age) ........... : ... ,.... resident at................... .
Bombay has been successfully vaccinated by me.
Date" ...... "............. Signature .... ,................ "" .... ..
CERTIFICATE THAT A CHILD IS UNFIT
FOR VACCINAnON
I, the undersigrwd, hereby celtify that in my opinion, ............... , the child of.. ..... ,." .... ,. . .. ". resident at. . ... , ... ,.. ....... Bombay is not now in a fit and proper state to be vaccinated and I hereby postpone the vaccinabon for a period of two months from this date. Date ..................... , .. ,. Signature .... "'., ............. " ... , .. ,.
MEDICAL CERTIFICATES AND REPORTS
CERTIFICATE OF UNSUCCESSFUL VACCINATION I, the undersigned, hereby certify that I have three times unsuccess fully vaccinated........................ the child of. ................... : ... resident at........................ Bombay (or that the child has already had small pox as the case may be), and I am of the opinion that the said child is insusceptible of successful vaccination. Date.......................... .
Signature ................................ .
Every medical practitioner in Bombay who gives any of the above mentioned certificates must, within twenty days after giving the same, transmit a duplicate to the Registrar of Births of the district where the birth of the child has been registered or, if he is not aware of the birth place of the child, to the Registrar of the district within which the child has been vaccinated. Any person who signs or issues a false certificate or a duplicate certificate under either of the statutes relating to vaccination is liable to be punished. International Regulation Concerning Vaccination. Article 83 of the International Sanitary Regulations provides that the health authorities may require any person on an international voyage, who does not show . sufficient evidence of protection by previous attack of smallpox to pos sess on arrival a valid certificate of vaccination against smallpox. Any person who cannot produce such a certificate must be vaccinated. If he refuses to be vaccinated, he may be placed under surveillance for not more than fourteen days reckoned from the date of his departure from the territory last visited before arrival. The validity of an international certificate extends for a period of ) years, beginning eight days after the date of successful pnmary vac- 1 cination, or in the event of re-va-ccination, on the date of re-vaccination. ' The Director General of Health Services, India, has recently issued
a circular drav'ling the attention of the members of the medical profes
sion to the fact that on several occasions passengers from India with
valid intemational celiificates against smallpox have developed the dis ease in foreign countries and initiated epidemics of smallpox in those
He points out that these cases not only bring a bad name
to the country but also lower the reputation of the medical profession.
Such incidents can only occur when due care is not exercised by medical
men and when common precautionary measures are not taken. The
Maharashtra (Bombay Area) Medical Council issued a warning to
the eHect that it takes a selious vie\v of this matter and that lapses on
the part of practitioners in this respect will be seriously dealt with.
Medical practitioners must, therefore, bear in mind that a vaccination
MEDICAL LAW AND ETHICS IN INDIA
356
certificate may be issued only after the full ritual of proper vaccination with fresh vaccine has been observed.
Section 7 - MISCELLANEOUS CERTIFICATES (i) For Government Servants. The following are the forms of cer tificates of medical fitness in respect of government servants; In the case of candidates for employment in non-gazetted posts, the medical certificate of fitness shall be in the following form : "I hereby certify that I have examined A.B., a candidate for em ployment in the Ministry/Department/Office ................................ of .............................. and cannot discover that he/she has any disease (communicable or otherwise) constitutional weakness or bodily infirmity, except .................... ............... I do consider/do not consider this a disqualification for employment in the post of ........................... . A.B.'s age is according to his/her own statement...................... .
and by appearance about... .. ........... .. .. years".
The fonn of medical certificate for Gazetted Officers shall be as follows : "Report of the Medical Board all ....... .,. ........................ .. (Name of candidate)
Physical Examination. 1. General development: Good ...........Fair............ Poor .. .
Nutrition: ThilL ............... Average .................Obese ......... ,.
Height (without shoes). ................ " ...........Weight ................. .
Best 'Veight.. ..................... vVhen? ..... "................ Any recent
change in weight? ................. Temperature ........................... .
Girth of Chest
(1) (After full inspiration) (2) (After full expiration) 2. Skin: Any disease............... ................................... .
3. Eyes: (1) Any disease............. .................................... .
Night blindness ............................................... .
Defect in colour vision..................... ......... .
Field of vision... ....... ......................... .. ......... .
(5) Visual acuity ... ACUITY OF VISION
NAKED EYE
STRENGTH OF GLASSES
WITH GLASSES
Sph.
I
Distant vision
CyI.
Axis
R.E.
L.E. Near vision
R.E.
L.E.
. I
I
4. Ears: Inspection.................. Hearing: Right ear.. ............... . left ear................ .. .
MEDICAL CEHTIFICATES AND REPOHTS
357
5. Glands .............................. Thyroid ............................. . ..
6. Condition of teeth ............................................................ .
7. Respiratory system; Does physical examination reveal anything abnormal in the respiratory organs? .................................... .
If yes, explain fully ........................................................... . "
8. Circulatory System: (a) Hcart: Any organic lesions? ......... Rate: Standing ....... ..
After hopping 25 times....................... . 2 minutes after hopping........................ .
(b) Blood pressure: Systolic..................Diastolic................ ..
9. Abdomen: Girth............ Tenderness............ Hernia .......... ..
(a) Palpable: Liver. ........... Spleen ............. Kidneys ......... ..
Tumors ................. .
(b) Haemorrhoids ........................ Fistula ...................... ..
10. NeIVOl1S system: Indications of neIVOUS or mental disabilities 11. Loco-motor system: Any abnormality ............................... ..
12. Genito-urinary system: Any evidence of hydrocele, varicocele, etc.
Urine analysis:
(c) Albumin (a) Physical appearance. (b) Sp. Gr. (e) Casts (f) Cells (d) Sugar 13. Report of Screening/X-ray Examination ......................... .
14. Is there anything in the health of the candidate likely to render him unfit for the efficient discharge of his duties in the seIVice for which he is a candidate? 15. In case the candidate is examined for more than I one seIVice/post, state for wbich services he has I been examined and found in all respects qualified for the efficient and continuous discharge of his duties and for which of them he is considered unfit. NOTE: The Board should record their findings under the following three categories: (i) Fit (ii) Unfit (iii) Temporarily unfit on account of...................... ...
Place....... .
Date............................... .
Chainnan..................................... .
:~vlember ..................................... .
lvIember. .................................... .
I
358
MEDICAL LAW AND ETHICS IN INDIA
Certificates of medical examination for grant of leave are required to be in the follo\ving form: Medical Certificate for Non-Gazetted Government Servants: Signature of applicant. .. , I, .................................... after careful personal examination of the case hereby certify that A.B. whose signature is given above is suffering from................ . .. and I consider that a period of absence from duty of ..................... with effect from............................ . is absolutely necessary for restoration of his health. Authorised Medical Attendant or other Registered Practitioner.
Date........................ . Place....................... .
Second medical opinion (if called for by the authority competent to sanction leave) Civil Surgeon or District Medical Officer or· Medical Officer of equivalent Status.
Medical
for Gazetted Government Servants:
Statement of the case of
Signature of the applicant
Appointment.
Age. Total service. Previous period of lem'c
on Medical certificate.
Habits.
Disease.
I ........... .. .................... Surgeon of ................................. .. Officer at or. ........ ,............... , ................................. . of..................................................................................... . after personal examination of case herehy certify that A.R is in a bad state of health and I solemnly and sincerely declare that to the best of my judgment a period of absence from duty is necessmy for the reCOVC1Y of his health and recommend that granted leave for a period of. .... ,.. .. ......... ' .....with effect
Place ." .. ".". ... .. .. Datc................... . (ii)
Civil Surgeon, or Authorised 1\fedical Attendant.
Cases of Personal A medical practitioner plays a role in personal injury cases not only from the point-of-view of treatment but also from a point-of-view in opining ul)on effect of the injury and the disabilit-y that may result. As
:vtEDlCAL CERTIFICATES AND REPORTS
359
as courts are concerned, it is the testimony of a medical practitioner that proves the relation between an injury and the accident that brought it about. From the examination of the patient, the subjective symptoms that he complains of· and from laboratory and radiological investigations, a medical practitioner is able to guide the court confidcmtly in deciding cases of personal injury. In order to be in an unassailable position in certifying and, subsequently, testifying in court, a medical practitioner should keep a detailed record of his patient's injury, its gradual progress towards heal ing and the final or partial recovery of the patient. The certificate to be given in personal injmy cases should comprise the following ; Name of the injured person and his profession; age; date of first examination; his statement as to the state of his body just prior to receipt of the injury; (v) his narration as to how he received the injury; (vi) signs of injury upon examination of the injured person; (vii) symptoms that he complained of; (viii) X-ray, laboratory and other incidental investigations; (ix) the rnedical practitioner's opinion as to the inter-relation of injuries to a disease that may have developed subsequently; this is a most complex and controversial problem; a medical practitioner cannot generally be assertive or dogmatic in such cases but, if he is in a position to pronounce his opinion affir matively, he must do so; this opinion should include : the nature of physical injuries; (b) the extent to which they have caused damage and the ae:2:rE;e to which injury can be repaired; (c) the effect produced by the injuries on the physical capa city the injured; and (d) the duration of severe pain and suffering after the injury has healed in order to judge whether the pain and suffer ing are of real origin or are imagined or malingered with a view to obtaining a high quantum of damages; treatment that is considered necessary; and (xi) the probable effect of the injury not only with reference to the occupation of the person but also with reference to usual day-to-day pursuits. It may be mentioned that a medical practitioner may have to frame more than one interim report. Ultimately, a final report must be made. (i) (ii) (iii) (iv)
360
MEDICAL LAW AND ETHICS IN INDIA
Given below is a form of the certificate required: "I hereby certify that Mr...................... by profession................ . aged ..................... of ..................... (address) was examined by me on .................. (date) .................. (time) at .................. (place). His previous medical history prior to present condition: (E.g. Occasional bouts of cold and fever, otherwise healthy. No previous accident of any nature.) History of incidence of injury: (E.g. He fell down while working from a height of about 1.5 to 20 feet and received the following injuries on his person ............... ) Physical examination: (E.g. Right inferior extremity is shorter than the left and is inerted and he is unable to move the limb. Deformity of left wrist joint.) Subjective symptoms: (E.g. Complains of severe pain in the right hip joint, particularly on movement.) X-ray and laboratory findings: (E.g. X-ray reveals fracture of dorsal spine, lIth and 12th vertebrae. Fracture of neck of femur with marked displacement and impacted Colle's fracture of left wrist.) Laboratory investigation of blood and urine reveals that he is a high diabetic with high blood pressure and urine is loaded with albumen. Mode of treatment adopted: (E.g. Wounds dressed, antibiotics and insulin injected; made to in a hard bed.)
lie
Final report after lapse of months: (E.g. Frachlre of 11th and 12th vertebrae has healed up. He com plains of a back-ache for which he is recommended physiotherapy. The treatment of fracture of the left wrist (Colle's fracture) has yielded satis factory result. Movements of wrist joint are still partially restricted and are sure to be improved. Fracture of hip shows good bony union and he is made to get out of bed on crutches.) Final opinion: (E.g. He will not be able to do the hard manual work of a labourer but will be fit to do any sitting work without much physical exertion. There is not likely to be any further appreciable improvement in his condition likely to make him work as a hard labourer.)
Part II NOTIFICATION AND REGISTRATION
Section 1
BIRTHS AND DEATHS
(i) Bilths, Deaths and Marriages Registration Act, 1886. This Act", provides for the voluntary registration of births and deaths. Section 20 1 mentions persons who are authorised to give notice of birth. Among!
MEDICAL CERTIFICATES AND REPORTS
361
these persons is included a medical practitioner in attendance at the birth. Section 21 mentions persons who are authorised to give notice of death. Among these persons is included a medical practitioner in attendance during the last illness of the deceased. (ii) Registration Of Births And Deaths Under Municipal Acts. Notice of births and deaths under the Births, Deaths and Marriages Registration Act is voluntary. But Municipal statutes usually provide that notice must compulsorily be given by the medical man in at tendance at the time of the birth or the death. According to Section 446 of the Bombay Municipal Corporation Act, 1888, in default of the mother and father of a child, an obligation is imposed on persons present at birth to give information of the parti culars required to be registered with the Municipal authorities con cerning a birth. Therefore, the JE:~~~~titioner who attends at a pl!:.t.b.l~ under a;:_
--
Section 2
DANGEROUS AND INDUSTRIAL DISEASES
Notification of Dangerous Diseases under the Bombay Municipal Corporation Act, 1888. Section 3(a) of the Bombay Municipal Corpora tion Act defines dangerous diseases for the purposes of Section 421 as cholera and any endemic, epidemic or infectious disease by which the life of man is endangered. Section 421 of the Bombay Municipal Cor poration Act imposes on medical practitioners the duty of notifying the Executive Health Officer of the existence of a dangerous disease. Sec tion 421 of the Act reads as follows : "Every medical practitioner who treats or becomes cognisant of the existence of any dangerous disease or in case of continued pyrexia of unknown origin of more than four days' duration in any private or public dwelling (other than a public hospital) shall
362
MEDICAL LA\'V AND ETHICS IN IKDIA
give information of the same with the least practicable delay to the Executive Health Officer. The said infonnation shall be communi cated in such form and with such details as the Executive Hedlth Officer, with the consent of the Commissioner, may from time to time require." The following diseases come within, the definition of dangerous diseases and are compulsorily notifiable by medical practitioners under Section 421, read with sub-section 3(aa) of the Bombay Municipal Corporation Act, 1888 Cholera, Relapsing Fever, Typhoid Fever, Paratyphoid FeveT, Diphtheria, Tuberculosis, Scarlet Fever, Typhus, Puerperal Fever, Yellow Fever, Leprosy, In{iuenzal Pneumonia, Cerebra-spinal Fever, and Poliomyelitis, Even under the Factories Act, a medical practitioner is required to give information regarding dangerous diseases. The relevant section of the Act, Section 89(2), reads as follows : "If any medical practitioner attends on a person who is or has been einployed in a factory and who is, or is believed by the medical practitioner to be suffering from any disease specified in the Schedule, the medical practitioner shall without delay a report in \vriting to the the Chief Inspector stating (a) the name and full postal address of the patient, (b) the disease which he believes the patient to be ing, and (c) the name and address of the factory in which the patient is, or was last employed" Tbe following are notifiable diseases under this Act:
1, Lead poisoning, including poisoning by any preparation or com pound of lead or their sequ.elae,
.
2. Lead tetra-ethyl poisoning. 8_ Phosph,orlls 1Joisoning
01"
its sequelae.
4. Mercury poisoning or its sequelae.
a. l}[anganese poisoning or its sequelae. 6, Arsenic poisoning or its 7. Poisoning by nitrous fumes.
8. Carbon bisulphide 9. Benzene poisoning, including poisoning by any of its homorogltes, their nitro or amido derivatives or its sequelae. 10. Chrome ulceration or its sequelae
U. Anthrax. Silicosis.
MEDICAL CERTIFICATES AND REPORTS
7"
_'J,
Poisoning by halogens or halogen derivatives of the hydro carbons of the aliphatic series.
14. Pathological manifestations due to (a) Radium or other radio-'active substances; (b) X-rays.
15. Primary epitheliomatous cancer of the skin. 16.
363
To~dc
anaemia.
17. Toxic jaundice due to poisonous substances.
CHAPTER X
\;\TILLS, LEGACIES AND GIFTS
Part I WILL
MAKING
Section 1
\VHAT IS
Section 2 -
TESTS TO JUDGE "SOUND AND DISPOSING MIND"
"SOUND
AND
DISPOSING
MIND"
Part II GIFTS
Section
BY
PATIENTS TO
DOCTORS
l-TESTAMENTARY GIFTS
Section 2-NoN- TESTAMENTARY
GIFTS
(
'\
Part I
. D
\VILL-MAKING
aCTORS are sometimes called upon to witness the execution. . of the will of an ailing person or to be present at the time of . the execution of a \vill by an ailing person. It is, therefore, necessary that doctors should know certain elementary requirements con cerning the making of a wilL It is of equal importance that they should know how to satisfy themselves that the would-be testators have the nec~~~!L?o~.d!.!.!]..d~i~E2s.,~~ind. The first fundamental principle is that every person of sound mind, not being a minor, has a right to dispose of his property by wilL Soundness of min_d is essential to the #~,,--".---=---------_.."' q1akinl:?_of~~ vali(LwilU)Utj.Ldo~~atteLlhat the ,12.eI.2.9~'!...kiI1g ~e~~i_~ilk dumJ:L.or~. A person who is deaf or dumb or blind is not incapacitated from making a will if he knows what he does by it. Again, a person who is ordinarily insane may make a will during an'interval in which he is of sound mind. No person can make a will, while he is in such a state of mind, \-vhether arising out of intoxication:
365
WILLS, LEGACIES AND GIFTS
J
or illness or any other cause, that he does not know what he is doing. A will is void if the making of it has been caused by fraud or coercion or by such importunity as takes away the free agency of the maker of. the wilL The following illustrations may usefully be noted: (i) A can pcrceive what is going on in his immediate neighbourhood ;md can answer familiar questions but does not have a competent under standing as to the nature of his property or as to the persons who are related to him or in whose favour it would be proper that he should make his will. A cannot make a valid wilL (ii) A executes an instrument purporting to be his will, but he does not understand the nature of the instrument nor the effect of its pro visions. This instrument is not a valid will. (iii) A, being very feeble and debilitated but capable of exercising a judgment as to the proper mode of disposing of his property, makes a will. This is a valid wilL Section 1 -
\VHAT IS "SOUND AND DISPOSING ~lIND"
A doctor should bear in mind the possibility of his being called to give evidence in a court of law as to the condition of mind of a testator whose will he has attested. He should, therefore, follow certain tests before attesting a will to ascertain whether the testaor is of sound and disposing mind. In order that tests may be properly appre ciated, it is desirable to refer to certain observations made. and principles stated by courts of law. It may be noted that <;;y~~
1
•
•
Suradhani Choudhurani v. Raja Jagat Kishore, A.I.R. Eusoof Ahmed v. Ismail Sema, A.LB.. (1938) Rangoon
• •.0-1"....
_,
Cal. 379.
---=.~~
366
IvlEDICAL LAW AND ETHICS IN INDIA
l The
mere fact that the maker of the will was suffering from a certain illness or disease does not necessarily render him unsound in mind. There may, however, be circumstances, as in MaZappa v. Tipaya,l where a man suffering from epileptic fits is in such a state of mind as to be incapable of disposing of his property by will. However, as the test is one of soundness of mind, if a person has the capacity to appre ciate the nature of his property and the persons and the object of his bounty, the mere fact that, before execution of the will, an injection was given and blood transfused into him, is not sufficient to prove his mental incapacity.2 ~ In BaUal' Singh v. Amirchatul, the question was as to which of two wills made by the testator was valid. By a will dated February 25th, 1944 he gave everything to his nephews. By another will dated April 3rd, 1944 the testator gave everything to one Amirchand and one Mehar. The testator was an India!Il Sikh who had come to the Fiji Islands about thirty-eight years before his death. He was illiterate and uneducated but he could write his name in English. He had made a considerable fortune as a money-lender and his estate amounted to more than £ 20,000. Amirchand and Mehar were in no way related to him but they were both indebted to him at his death. The testator had no wife or child but he had a brother who had died before him. The beneficiaries under his will dated February 25th, 1944 were the sons of his deceased brother. The Privy Couneil held that a testator may have a clear apprehension of the meaning of a draft will submitted to him and may approve nevertheless, if he was at the time, through infirmity or disease, so deficient in memory that had forgotten the claims of his relations, and if that forgetfulness was the inducement of his choosing strangers to be his legatees, the will is invalid. In this case the testator was in the last stages of consumption and reduced by disease to extreme weakness. In such a state he declared his will n day before he died by which he left all his property absolutely to two persons who were in no way related to him. Further, he declared that he had no relations anywhere though, if he had been of sound mind, he would have known that the statement was untrue and that he had four nephews. The will was the product of a man so enfeebled hy disease as to be without a sound mind or memory at the time of the execution of the will. The disposition of his property under the last wil] was the outcome of a delusion regarding his nephews' existence, and the ,vill was, therefore, invalid. .32 Bombay Law Heporter 1289.
Garibshaw v. Patia Dassi, A.I.R. (1938) Calcutta 290.
3 (1948) A.C. 161.
1
2
vVILLS, LEGACIES AND GIFTS
~367
In Surendra Krishna v. Rani Dassi/ the Court held that the follow ing were not necessary indications of a sound and disposing min-;r- _ _ _ _
_ _
~
_ _ _ _ _o
_ _ . _ " • • _~,_~_,_ •• _ _
(1) ~~..E£_ abi~i!z. !2-s~l~!L.Qne>s ~mel (2) ~?~L!.o...s.g!li..Q!1...E.rdinEY~~\1~ation.,..~.<;l (3) ~l!tv ~9 al)~gr familiar and ~~ questi0E!i: The testator must l1ave what is called "the disposing mind." He must be able to dispose of his property with understanding and reason and he must be able to appreciate what property he has and to form a judgment with respect to the parties whom he chooses to benefit by it after his death. In Eusoof Ahmed Serna v. Ismail Ahmed Serna,2 the Court said, "Wills are too frequently made by the sick and dying; the degree of understanding, therefore, which the law requires is such as may reason ably be expected from persons in that condition. It is not enough that a testator is able to answer familiar and usual questions. He must be . t able to exercise a competent understanding as to the general nature of the property, as to the state of his family, and as to the general con dition and claims of the objects of his bounty, as to the nature of the instrument which he executes, and as to the general nature and general objects and the provisions which it contains; if he can do that, though he may be very feeble and debilitated in understanding and be at the point of death, it is enough."
Section 2 -
TESTS TO
JUDCE
"SOUND AND DISPOSING MIND"
CIt should be remembered that there is a marked difference between the responsibility of a medical practitioner and that of a layman who attests a will. When a layman attests a signature to a will, normally does so for the purpose of identifying the signahlre whereas, when a medical practitioner attests signahue, he performs a dual function: he identifies the signature of the deceased on the will attested by him as if he were a layman and he certifies that the testator is of sound and disposing mind at the time of making the will) It is apparent, there fore, that the responsibility of a medical practitioner in attesting u will is very great_ For the purpose of ascertaining whether the testator is of a sound and disposing mind for the purpose of making a \vill, the following tests are recommended (1) Ask the patient preliminary }luestions, c.g. about his age and his relations, alive as well as dead. ../ 1 2
24, C_W.N. 860. A.LR. (19:38) Rangoon 322.
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(2) Put to him o/eral questions for testing his awareness as re gards time, place, ~tc. (3) Ask him about the extent of his properties and the manner of distribution desired by him and, if an unusual distribution is to be made, try and ascertain whether this is due to any delusion or whether it is deliberate...! (4) Test the patient's powers of concentration by a test of simple arithmetic ../ (5) Finally, ask evelyone in the room to leave and then question the patient whether any pressure or influence has been brought to bear upon him by anyone;.{·· In his evidence before Mr. Justice Coyajee in the Bombay High Court in Banarsidas Bhagwandas v. Bai Chandra Pati Bai,1 the author referred to the above tests as tests which every responsible medical practitioner ought to follow before attesting the will of a patient. The author in his evidence stated that if a patient's mental capacity is af fected due to illness and constant drugging, the patient is not of sound and disposing mind merely because he is in a condition to give relevant answers to certain questions. In such a case the answer to a relevant question would not be an indication of the possession of a sound and disposing mind because even lunatics sometimes give proper answers to some questions. The tests referred to above were accepted by Mr. Justice Coyajee as being entirely proper. The facts of this case were as under: One Laxmichand married the defendant in April 1942 when he was eighteen years old. Immediately after the marriage, Laxmichand began to suffer from slow fever. The physician attending on him diagnosed the complaint as acute intestinal tuberculosis. His condition became more and more depressing and he began to feel increasingly severe pain as time passed. In order to relieve his pain he was continuously drugged till the day of his death on August 17th, 1943. As pointed out by the learned Judge in his judgment, "Laxmichand was emaciated to such a degree that he had been drugged for months with injections of hypnotics and narcotics and he had hardly any sustenance for days to gether. Laxmichand was in an extremely weak condition. A day prior to his death, Laxmichand made a will. Under his will he gave comparatively very little to his wife and disposed of the bulk of his estate between his brother and his cousins. There was direct evidence in the case that Keshavlal, in whose favour a great deal of the property \vas given under the will, gave in structions to his solicitors for drafting the will. The validity of the will was challenged by Laxmichand's widow. .Mr. Justice Coyajee held 1
Unreported judgment dated September 6th, 1946 in T. & 1.
J.
Suit No. I of 1945.
WILLS, LEGAGIES AND GIFTS
369
that the will was invalid inasmuch as the testator was not of sound and disposing mind at. the date of the execution of the will. Among the facts taken into account by the Court in coming to this' conclusion, were (1) that Keshavlal-to whom, along with his cousins, the bulk of the property went-had given instructions to the solicitors for the pre paration of the will and (2) that the deceased was in such a state of health, due to very severe pain and consistent drugging, that he could not possibly be in a sound and disposing state of mind. In support of the plea that the testator was of sound mind, evidence was given by a medical man who had attended the deceased when the deceased executed the will. That medical man said that he had asked Laxmichand certain questions before attesting Laxmichand's will and that Laxmichand had given answers relevant to them. Those questions, however, did not relate to Laxmichand's relations or Laxmichand's pro perty. The medical man did not ask the questions which have been out lined above and which the learned Judge considered important. Among the questions asked by the medical man was the question whether the \vill was all right to which Laxmichand had replied, "Yes." As Laxmi -chand's mentaI faculties had become demented duc to excessive drug ging, the fact that his answer was given to the question posed, as indi cated above, did not necessarily indIcate a sound and disposing mind. One of the other questions put by the medical man was whether chand was willing to execute his will. To this Laxmichand had relied, "I have had a talk about it with my brother and if I am able to I shall do so." The c~urt took the view that the tests applied by the medical man attending Laxmichand were inadequate. The testator had been suffering from galloping tuberculosis and for a continuously long period had been given narcotics and hypnotics which were bound to affect his brain. The doctor who goes to attest the will of a patient must, therefore, find out whether the patient is suffering from any disease, infirmity or pain and whether the patient is under any strain which is bound to affect a normally sound and disposing state of mind. It is likely that a doctor might be called to give evidence of the mental capacity of a testator long after the making of the will. It would, therefore, be advisable to make and preserve some contempora neous note about the state of the mind of the testator. The precise nature of the note would obviously depend upon the facts of each case. Generally speaking, it is suggested the note should set ont briefly the testators reactions to the tests recommended earlier.
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MEDICAL LAW AND ETHICS IN INDIA
Part II GIFTS BY PATIENTS TO DOCTORS Section 1
TESTAMENTARY GIFTS
A patient may make a gift to his doctor either dUling his lifetime or by his will. A gift made by a wiJ1 isknoW:!l2..~,iLJ~stq!'ll.QJ1tar~ .QL. J~~~. Iv. 0:..d.0ha!~~-'tes·t~~.!ilEl._gift to a doctor m~ be, np he1c!2j! ~hQJl~~..E~ ..l2!9ye4."'th~!.!he gift was made bLthe p~£!!!: 9,f hi~.~y~~ -Y2.ll!ion. As observed above, a will or any part thereof, the making of which has been caused by fraud or coercion or by such importunity as takes away the free agency of the testator, is void. Illustrations of this proposition are given below: (i) A, falsely and knowingly, represents to the testator that the testators only child is dead or that he has done some undutiful act and thereby induces the testator to make a will in his (A>s) favour. Snch a· will has been obtained by fraud and, therefore, is invalid. (ii) A, by fraud and deception, prevails upon the testator to be queath a legacy to him. 111e bequest is void. (iii), A, being a prisoner by lawful authority, makes his will. The1 will is not invalid merely by reason of the imprisonment. (iv) A threatens to shoot B, or to bum his house or to cause him to be arrested on a criminal charge unless he makes a bequest in favour of C. B, in consequence, makes a bequest in favour of C. The be quest is void, the making of it having been caused by coerci()[l. (v) A, being of sufficient intellect, if undisturbed by the influence of others to make a wtll, yet being so much under the control of B that he is not a free agent, makes a will dictated by B. It appears that he would not have executed the will but for fear of B. The will is invalid. (vi) A, being in so feeble a state of health as to be unable to resist importunity, is pressed by B to make a will of a certain purport and does so merely to purchase peace and in submission to B. The will is invalid. (vii) A is in such a state of health as to be capable of exerci~ing his own judgment and volition. B uses urgent intercession and persua sion with him to induce him to make a will of a certain purport. A, in consequence of the intercession and persuasion, but in the free exer cise of his judgment and volition, makes a will in the manner recom mended by B. 111e will is not rendered invalid by the intercession and persuasion of B. (viii) A, with a view to obtaining a legacy from B, pays him att~n~ion and flatte~s him and thereby produces in him a capricious par- \ twhty to A. B, m consequence of such attention and flattery, makes l his will by which he leaves a legacy to A. The bequest is not rendered 1 I fulvalid by the attention and flattery of A. These illustrations show that if a patient makes a gift by his will
to a doctor it is possible to challenge the gift even if the patient, at the
t
\.-;: I
WILLS, LEGACIES AND GIFTS
date of the making of the will, was of sound mind. The grounds on which the challenge can be made are : (1) fraud on the part of the medical man; (2) coercion on the part of the medical man, or (3) the exercise of urgent intercession and persuasion on the part of the medical man to induce the patient to make a will in his favour provided that, due to such intercession and persuasion, the patient lost the free exercise of his judgment and volition.
Section 2 - NON-TESTAMENTARY GIFTS Though there is no legal bar to a doctor being given a gift by a t patient, in order that there may be no doubt that the legacy was made fl by the patient of his own free will and in order that no doubt may be If cast on the bona fides of the medical man in accepting the gift, the \ medical practitioner should see to it that the patient has had the advice· of an independent and responsible third party. The principle to be applied in judging the legality of a gift made by a patient to his medical man is to see whether the gift was made by the patient voluntarily and without any fraud, coercion or undue influence on the part of the medical man. If the patient has obtained advice from a third party in r;akin,.g a· giIt to -; doc';;;, .independent - -.... - .---..- ' --~hat~£!:Jd go .E:-lon,fLwax~stab1ishing that the~ift~as ma~ by the patieEl9 f "~i2...2~ ~IitiQ!}. a~
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MEDICAL LAW AND ETHICS IN INDIA
\Ve will now examine the decided ca.<;es in which, on the applica tion of the above principles, gifts made in favour of medical men by patients have been set aside by courts of law. (I) Popham v. Brooke. l A patient executed certain writings whereby he secured to his surgeon an annuity of £100 during the life of the surgeon. The object was to ensure that the surgeon would live with him and give him the benefit of his professional assistance during his lifetime. Four days before the execution of these writings, the surgeon had called in an eminent doctor to visit the patient. This eminent doctor expressed the opinion that the patient would not recover nor live long. About the same time, the surgeon had stated to a friend of the patient that the patient could not live more than a month or six weeks. It was held that the gifts made under the writings could not be upheld. The facts clearly proved that the medical attendant knew that he was giving little or nothing in return for so large a bounty in his favour. It was held that the patient might have executed this transaction in the hope of a prolonged life; but, as the medical attendant knew that his patient had no hope of survival for more than a few months, it was his bounden duty to decline to accept a transaction of this nature even if the patient had pressed him to accept and go through with this transaction. This case shows how jealous courts are in safeguarding the interests of persons who repose their conSdence in medical men. (2) Dent v. l}ennef. This was a suit to restrain a doctor from relying upon a writ~en agreement in his favour executed by his patient. A surgeon, in the year 1827, had attended one Jonathan Dent, who was then seriously ill. Thereafter, the agreement in question was ex ecuted. At that time the patient was in his eighty-sixth year so that, according to the usual eourse of nature, what remained to him of life must be supposed to be a very short time. Yet, by the agreement, Mr. Dent agreed to pay to the surgeon £ 25,000 for medical and surgical assistance during the remainder of the patient's life. As a contract for value, the transaction was extravagantly absurd. In the opinion of the court, all this was required only to be stated to show how improper the transaction was. The court held that medical men were \:vithin that class of persons whose acts, when dealing with those who repose confidence in them, ought to be watched with great jealousy. 1
2
(1928-29) V Russell's HepOl'ts, 8. (1839) 41 E.R. 105.
WILLS, LEGACIES AND GIFTS
.'373
(3) Gibson v. RusseW. A deed of gift of immovable property from an aged and infirm person to his intimate friend and medical attendant was set aside for fraud. One of the circumstances in proof of the fraud was that the document stated, contrary to the truth, that a sum of money had been paid as purchase price by the doctor. (4) Billage v. Southee2• In this case the court granted appropriate relief to a patient from whom his medical man had taken a promissory note for an amount beyond what was due for his attendance, even on the most extravagant scale of charges. The court stated the following principle: If the right to a benefit taken by a person in a confidential situation is in question and it is sought to be sustained as an exercise of liberality, it must be shown that it was the intention of the party from whom the benefit was derived to be liberal. But intention imports knowledge and liberality imports the absence of influence, and the onus of establishing a gift in such circumstances rests with the party who has received it. Where a gift is set up between parties standing in a confidential relationship, the burden of establishing the transaction as a gift given without the exercise of influence rests upon the party who has received the gift.
(5) Radcliffe v. Price3 • This was an action by the executors of one Mrs. Emily Dowling, a lady who died at an advanced age, for repayment of sums amounting to £800 which had been presented by her to her regular medical attendant during the six months previous to her death. Dr. Price, the defendant, had been her regular medical adviser for 11 years. For many years she had required very little attention but latterly she had fallen into somewhat feeble health. Dr. Price had sometimes to visit her several times in a day, to pay visits at night and on occasion to~ stay at her house all night. The first gift to Dr. Price was a sum of £500 made about September 26th; his account was that it was a gift, partly in recognition of his past exceptional services as medical attendant and partly in recognition of his consent to accept the office and discharge the duties of trustee of an institution to be founded out of Mrs. Dow ling's estate. A sum of £100 was given as a Christmas gift, and a gift by two cheques of £100 each was made about March 17th, :1fter Dr. Price had had a carriage accident, for the purpose of his buying a brougham and harness. There was no suggestion of any misrepresen 1
2 3
(1843) 11 Younge & Collyer's Reports, 104.
(1852) Hare's Reports IX, 534.
(902) The Times, Law Reports, vol. xviii, 466.
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MEDICAL LAW AND ETHICS IN INDIA
tation or pressure put upon his patient by Dr. Price or that Mrs. Dowling was, at the time of making the gifts, in any way incapable of managing her business transactions or of weak intellect. But it was argued that as the relationship of doctor and patient existed between the parties, and Mrs. Dowling took no independent adVice, the transactions could not stand. The court held that a substantial gift made to a person in a confidential relationship, where the donor was likely to be under the formers influence, could not stand unless the donor acted under inde pendent advice or the gift was confirmed after the relationship had ceased, especially in this case where the patient was a lady of great age, of illiberal education, and living with one servant only. The court ordered the sums, amounting to £800, to be re-paid to the executors. These cases show that the law presumes that doctors to whom f gifts are made by patients, obtain these gifts by taking advantage of, their confidential position as medical men. 1 The question then is: how can the presumption be rebutted? Ih.~. presumption may be rebutted by the doctor by proving~ that the.@.. "._..,._---~ \Y'.ls.-!h£. spontaneous act of the ~tient resulting f~_a.E~~~xercis~ of his will. This depends on the circumstances of a given case. The size of the gift is material. Nothing can more effectively destroy the presumption of abuse of confidence than by proving that, at the time. of the gift, the donor had independent and competent advice from a person fully acquainted with tire facts. "",.~<,.----
In the following three cases celtain benefits given by patients to their respective medical men were upheld. (1) Pratt v. Barker.
The Court refused to set aside a deed of gift executed by an old and infirm patient in favour of his surgeon who had attended on him and who had been occasionally consulted by him regarding the manage ment of his property. It was proved that the nature and effect of the deed were fully explained to the patient by his solicitor before the patient executed it and that the patient executed it of his own free
wilL Blackie v. ClarF A married woman joined with her trustee, who was her confidential medical attendant, in granting annuities to him seemed on her estate. (2)
1 2 3
HaJsbury Vol. 17, 3rd ed. p. 681 (1828) IV Russell's Reports 507. (1852) xv Beavan's Heports, 505.
WILLS, LEGACIES AND GIFTS
375
She afterwards sought to set them aside. It was held that the onus of proving their invalidity was on her as it appeared clear on the evidence (i) that she understood the transaction; (ii) that no undue persuasion or coercion was practised on her; (iii) that the doctor had given something in return for this advantage; and (iv) that, in respect of the first of these transactions, the patient had the advice of her own solicitor. It may be noted that the Court held in this case that the burden of proving the unfair nature of the transaction between the medical man and the patient was on the patient because, llrima facie, the transaction was, in the opinion of the Court, a fair one. (3)
Mitchell v. Homfrayl. Although a gift made by the donor to a person standing in a con fidential relationship to him-as by a patient to a physician-may be voidable, if, after the confidential relationship has ceased to exist, the donor intentionally elects to abide by the gift, and does in fact abide by it, the gift cannot be impeached after the patients death. The plaintiffs were executors of G., to whom the defendant had acted as medical adviser. G. made a gift of £.800 to the defendant. At the time of the gift no independent advice was given to G. The relation ship of physician and patient did then exist, but the defendant had not been guilty of any undue influence and, after the relationship of physician and patient had ceased, G. elected to abide by the gift, and did in fact abide by it during the rest of her life. It was further held that the gift made by G. to the defendant could not be impeached after her death.
I
(18&1) VIII Q.E.D. 587.
-
CHAPTER XI
A
PRACTITIO~ER
IN THE "\VITNESS BOX
Part I
OBLIGATION TO GIVE EVIDENCE
Part II
PHEPARATION OF REPORTS
Part III
WITNESS IN DIFFERENT CAPACITIES
Part IV
ORAL EVIDENCE
Part V
FUNDAMENTAL RULES OF EVIDENCE
Part VI
,\1EDICAL EXPEHTS
Part VII
EXAMINATION OF MEDICAL EXPERTS
Part VIII
HEFERENCE TO
FOR~1I:m
STATE.MENTS, DOCUMENTS
AND TEXT-BOOKS
Part IX
APPHECIATION OF EVlDENCE
Part X
WHAT NIAKES A GOOD MEDICAL WITNESS
A PRACTITIONER IN THE WITNESS BOX
377
Part I
-
OBLIGATION TO GIVE EVIDENCE VERY citizen owes a duty to assist a court of law in the administration of justice. This obligation is greater in the case of medical men than in the case of lay witnesses because there are situations in which, due to lack of technical knowledge and understanding, a lay witness is unable to help a court in reaching the proper conclusion. It is here that the evidence of a medical man as a technical expert becomes invaluable. :No medical practitioner should consid~r his time amd his practice of such great importance that he should be prepared to forsake his duty to give evidence.
JE
Witness Summons. The document by which a person is asked to l present himself in court on a particular day and at a particular time II for the purpose of giving evidence is called a witness summons or a subpoena. It may also be that a person is summoned to attend court merely to produce documents before that court. In such a case the document by which he is summoned is called a subpoena duces tecum.. The person who brings documents to court in obedience to such a j summons is not a witness in the ordinary sense and he cannot be ex-I amined by any party.
I
Failure to obey the summons. If a doctor fails to respond to a witness summons, it is possible that he may be fined or some other proceeding may be taken against him for contempt of court. If he is unable to present himself it must be for a veri good cause. §ect!.illL174 of,th~Lrypian Pe1}q£.Cpde says, "Whoever, being legally bound to attend in person cir by an agent at a certain place and time in obedience to a summons, notice, order or proclamation proceeding from any public servant legally competent as such public servant to issue the same, intentionally omits to attend at that place or time, or departs from the place where he is bound to attend before the time at which it is lawful for him to depart, shall be punished with simIie imprisonment for a term which may extend to Rs. 500/-, or, \V'ith both; or, if the summons, notice, order or proclamation is to attend in person or by an agent in a Court of Justice, with simple imprisonment for a term which may extend to six months, or with fine which may extend to Rs. 1,000/-, or with both," Illustration. A, being legally bound to appear before the High Court at Calcutta in obedience to a subpoena issuing from that court, intentionally omits to appear. A has committed the offence defined in this section. It may be mentioned that courts of law are very indulgent in grant ing the facility of time convenient to a medical practitioner, fully realis
:378
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MEDICAL LAW AND ETHICS IN INDIA
ing benefit of his services to humanity. But it is the duty of the medical practitioner not to take undue advantage of the indulgence shown to him by the court and he must try to respect the wishes of the court. It is submitted that a doctor cannot fail to present himself in court on the ground that it conflicts with his professional appoint ments. If excuses such as these were allowed, no doctor would come forward to give e,:,idence. It may, however, be pointed out that courts are normally considerate towards medical practitioners inasmuch as they are not asked to present themselves at times which are inconvenient to them. Professional communications. There are cCliain communications which are considered privileged and the law prevents a disclosure of these communications. These are communications. between clients and profeSSional advisers. Privilege attaches to communications made by client to a barrister or an attorney. There is, however, no such corres-il ponding privilege to medical practitioners. It is, therefore, notJi open to a medical practioner to claim privilege regarding communica-f tions between him a:nd his patient. It is unfortunate that the law of privilege does not extend to the medical profession because, as is obvious, members of the medical profession acquire in the course of their professional work much infor mation of a confidential nature.
at .1,l.
(The witness' duty to answer questions. If a witness refuses to answer a question which he is compelled to answer by law, the comt may presuine tbat the answer, if given, would have been unfavour able. No adverse inference, however, can be drawn from a refusal to answer irrelevant questions. A medical witness must remember that he can claim no privilege concerning communications between him and his patient. The law in India in this connection is in line "'rith the English law. If a medical witness does take up
1.l
i'"
A PRACTITI01'\ER I1'\ THE WITNESS BOX
379
(iii) that it tends to test his veracity; (iv) that the question is designed to discover what his status in life is; or (v) that it is asked with a view to shake his credit by injuring his character. Inasmuch as a witness is compelled to answer such questions, the court ·cannot subject him to arrest or prosecution nor can such answer be proved against him in a criminal proceeding but if he gives a false answer, he commits perjury and he may be prosecuted for the same. Incross-examination a witness may be asked questions which do not relate to a matter relevant to the proceeding but which tend (i) to test his veracity; (ii) to discover what his status in life is; or (iii) to .shake his credit by injuring his character, although the answer to such questions tend directly or indirectly to incriminate him or are likely to expose him to penalty. Such questions, put to him in cross-examination, a witness is not bound to answer. Yet, if he does not answer, the court may presume that the answer, if it had been given, would have been unfavourable to the party who called the witness. Such a presumption will be made having regard to the common course of natural events, human conduct and business in relation to the facts of a particular ·case. If a question is asked which is not relevant to the proceeding and is such that it tends to test thc vcracity of a witness and to discover who he is and what his position in life is, the court, in its discretion, shall decide whether or nbt the witness should be compelled to answer the question. The court may warn the witness that he is not obliged to answer such a question. exercising its discretion, the court will have regard to the following considerations:
(i) that such questions are proper, if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the court as to the credibility of the witness on the matter to which he testifies; (ii) that such questions are improper, if the imputation which they convey relates to matters so remote in time or of such character that the truth of the imputation would 1110t affect or would affect only in a slight degree the opinion of the court as to the credibility of the witness on the matter to which he testifies; (iii) that such questions are improper, if there is a great dispropor tion between the importance of the imputation made against the character of the witness and the importance of his evidence. The court also has the power to forbid the asking of questions which are indecent or scandalous, even though they have some bearing on the issue before the court If such questions, however, relate to the
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facts in issue or to matters which it is necessary for the court to know in order to determine the question before it, the court cannot forbid the asking of questions, however indecent or scandalous. The court also has the power to forbid questions being asked which are intended to annoy or insult the witness. In this regard the court may also forbid the asking of a question which, though proper in itself, is found to be needlessly offensive to the Witness) Self-incrimination. Article 20(3) of the Constitution grants to every witness a privilege against self-incrimination.
of India
Privilege in America. In several states in the United States of America, statutes have been enacted conferring on communications between a doctor and a patient the privilege of confidential commUniCa-j' tions. The,se states have thought it desirable that communications bet-,! ween patients and doctors should not be allowed to be disclosed to court. But the law in India, as in England, is that no privilege eXistS) between a doctor and his patient The logic behind this rule is that a patient goes to a doctor for the purpose of being cured and not with the intention of confiding to the doctor his secrets as he would to ~i priest in the confession box.
a1
, Part II PREPARATION OF REPORTS The first step in the preparation of a medical practitioners evidence is the making out of a written repmi to be submitted by him to the attorney or advocate of the party who calls him as a witness. Having~ submitted his report and his opinion, he should not express an opinion " contrary to the one he has submitted. If he does, he may attract the aspersion that he has been influenced by the opposite party. He should" therefore, take great care in expressing his opinion. The report that the practitioner submits should be, as far as possible, in a layman's language, untramelled by technical jargon. A medical practitioner must keep, detailed reports of cases under his treatment so as to enable him to evidence in the event of litigation concerning his patients. According to the Tu.dian Evidence Act, a. w~e,~_s is allow~d ~O.L~fr~§JLI:2.s·~~-;;·;:~ "LhiI;.=g~h~K_~-vi.9:~hom case-notes made at the time of treatment. This is an important advan tage afforded to a busy medical practitioner who cannot be expected to remember the details of cases which he treated a long time back. With his case-notes before him it is not likely that he ,vill falter at the time of giving evidence. The comi attaches great importance to
A PRACTITIONER IN THE WITNESS BOX
381
,case~notes
made at the time of treatment which are properly and thoroughly recorded. A medical practitioner should, particularly in injury cases, himseH record (i) the detailed personal history of a patient with all antecedents of time, date and occurrence of the injury or disease; (ii) the symptoms and signs of the injury or disease; (iii) the tests undertaken or ordered and the results achieved; (iv) the results of other examinations, such as X-ray, histo-pathology slides, etc.; (v) the reference to a consultant or the dispatch of the patient to a hospital; (vi) the details of the treatment administered along with the relevant dates; (vii) the number of visits paid and (viii) the fees charged. In cases of personal injmy, law suits are frequent. A medical practi tioner should, therefore, be very careful in examining the injured person
Part III WITNESS IN DIFFERENT CAPACITIES A witness in a court of la\v may be called upon to testify (i) to \a.r matter of fact or (ii) to give expert evidence upon subjects in which he is qualified to do so. A doctor by virtue of his qualification is specially
1 l
1
Disabilitu Evaluation by 'McBride.
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MEDICAL LAW AND ETHICS IN INDIA
skilled in the field of medicine and he may be called to give expert~ evidence upon medical matters. For example, in a motor accident casel a lay witness may be called to prove that he saw the driver of a vehicle being negligent or careless and he may depose to such facts as he observed, viz., the speed of the car, the situation of the road, ctc. Upon his evidence it is the court's function to draw its own conclusions and fonn its o\vn opinion. But when the question is what damages should be given for injuries sustained in an accident, a doctor may be called to give evidence regarding the injuries received and the time needed for recovery. His expert opinion is allowed in order to aid the court in drawing a technical conclusion from the facts, and upon his evidence the court bases the quantum of damages to be awarded. It may be that a doctor in the witness box may have to playa dual role, that of a witness of fact as well as that of an expert. Such a situation is best illustrated in the case of an analyst. When an analyst is in the witness box, he may be asked not only what he has found on post mortem examination but he may also be called upon to express an opinion regarding the cause of death. When he deposes to the condition of a dead body, he gives evidence as a witness of fact but when he states his conclusion as to the cause of death,. he testifies as an expert witness. When a doctor has treated a patient and is called to testify as to the phYSical condition of the patient and as to the treatnlent adminis tered, he gives evidence as a witness of fact. Again, when a medical practitioner who was present at the time a will was executed is called to give evidence regarding the mental capaeity of the testator, he gives evidence as a witness of fact, that is, of what he observed at that time of the mental condition of the testator. It is true that after he testifies to the facts he may, having regard to what he has observed, express an opinion based upon his technical knowledge and skill. In such a situation, he is essentially a witness to certain facts, but that does not prevent him from expressing an opinion of a person trained in medical science.
Part IV ORAL EVIDENCE Examination-in-chief. \"hen a witness first steps into the witne,~s box hc is examined by the party who has called him. This is known as 'examination-in-chief'. In examination-in-chief leading questionsI may not be asked. 1
Any question suggesting the answer which the person putting it wishes or ex pects to receive is called a LEADrNG QUESTION.
A PRACTITIOKER IN THE WITNESS BOX
383
Cross-examination. On the conclusion of the examination~in-chief, the witness is examined by the opposite party. This is called cross examination. Inasmuch as cross-examination is intended to break down the evidence given in examination-in-chief, leading questions may be asked. Questions in cross-examination. Leading questions may be asked in cross-examination. A witness may be cross-examined as to a previous statement made by him in writing and relevant to the matter in question even without such writing being shown to him or being proved. But if it is intended to conh'adict his evidence by that writing, his attention must be called to those parts of it which are to be used for the purposes of contradict ing him. When a witness is cross-examined he may be asked questions to test his veracity, to discover what his position and status in life is, and to shake his credit by injuring his character, although the answers he may give to such questions may tend directly or indirectly to incriminate him. If a question is asked relating to a matter not relevant to the proceeding, but in order to shake the credit of the witness by injuring his character, the court has power to decide whether or not the witness shall be compelled to answer. If the court thinks fit, the court may warn the witness that he is not obliged to answer a particular question. Courts of law always prevent unfair cross-examination. Courts are given ample powers to prevent indecent or scandalous questions and questions which are intended merely to insult or annoy a witness. Re-examination. After cross-examination is over, the party who calls the witness has a right to re-examine his witness. This is called ReId of re-examination is very limited. It is
Part V FUNDAMENTAL RULES OF EVIDENCE Courts and medical testimony. Points of admissibility and rele vance of evidence will be debated by lawyers for the respective parties and ultimately will be decided by the court. It is, therefore, not neces sary for a \\>}tness to have a thorough knowledge of the rules of evidence.
384
MEDICAL LAW AND ETHICS IN INDIA
But, in order that he may appreciate what questions he is expected to answer and what questions he need not answer and in order that he may not feel himself at a loss when learned arguments concerning admissibility and relevance are advanced, it is necessary that he should have some idea of the rules of evidence by which court proceedings are governed. Some fundamental rules of evidence are therefore dis- cussed here. Evidence must be restricted to facts in between the parties and facts relevant to the determination of facts in dispute. One cardinalf rule to be remembered is that unless a medical practitioner is called as~ an expert witness, his evidence must be confined to the facts in dispute,I between the parties (facts in issue) and to such facts as are relevant for the purpose of determining the facts in issue.
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What are 'facts in issue'. Facts in issue are those facts about which, t~ere is a dispute between the parties and which are necessary to be J decided for the purp03es of at the final decision. .
I
What are 'relevant facts', As stated above, evidence will also be allowed concerning facts which are relevant for t!l~Pljrposes of deter mining the fgcts in issue. Broadly speaking, in the following instances, these facts are said to be relevant;
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(i) vVhen facts are so connected with the facts in issue as to form part of the same transaction; j .
Illustration. A is accused of the murder of B by beating him. What ever was said or done by A or B or the by-standers at the beating or so shortly before or after as to form part of the same transaction are relevant facts. (ii) Facts aJirelevant when they are the of facts in issue.
o~asion,
cause or effect
Illustration. The question is did A poison B. The state of B's health prior to the symptoms ascribed to poison and the habits of B known to A which may have afforded A an opportunity to poison B are relevant facts. (iii) Facts are relevant which show or constitutE} a motive or pre paration for any fact in issue or any relevant fact . ..l
Illustration. A is tried for the murder of B by poison. The fact that before the death of B, A procured poison similar to that which was administered to B, is relevant. ((iv) Facts necessary to explain or introduce a fact in issue or an other relevant in so far as they are necessary for that , fact are relevant . purpose. .I
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A PRACTITIONEH IN THE WITNESS BOX
38.5
(v) Facts necessary to rebut an inference suggested by a fact in issue or relevant fact are relevant in so far as they are necessary for the purpose. j . (vi) Facts which establish the identity of anything or any person whose identity is relevant, are relevant for that purpose./" (vii) Facts which fix the time or pl~ce at which any fact in issue or relevant fact happened are relevant...,,/ (viii) Facts which show the relation of parties are relevant in so far as they are necessary for that purpose.
.1
(ix) .Facts not otherwise relevant become relevant if (a) they are inconsistent with any fact in issue or relevant fact or (b) if, by them selves or in connection with other facts, they make the existence or non existence of any fact in issue or· relevant fact highly probable or im probable. ~/)
Illustration. The question is whether A committed a crime in Calel1tta on a certain date. The fact that on that day A was at Lahore is rele vant. The fact that at about the time when the crime was committed A was at a distance from the place where it was committed which would . render it highly improbable though not impossible that he committed the crime, is relevant .• l (x) vVhen there is a qnestion as to whether a particular act was accidental or intentional or done with a particular knowledge or inten tion, the fact that such act formed part of a series of similar occur rences in cach of which the person doing the act was concerned, is rclevant. / ' Illustration. A is accused of burning down his house in order to obtain the sum of money for which the house is insured. The fact that A has lived in several houses, each of \vhieh he insured and in each of which a fire occurred, is relevant as tending to show that the fire was not .aceidental. (xi) When there is a question as to whether a particular act was done, the existence of any cOUrse of business according to which it would naturally have been done, is relevant.'/ Illustration. The question is whether a particular letter was despatched. The fact that in the ordinary course of business all letters put in a certain place were carried to the post and that particular letter had been put at that place are relevant. (xii) It is to be noted that facts which are not otherwise relevant become relevant if they support or are inconsistent with the opinion of experts when such opinions are relevant. I Illustration. The question is whether A was poisoned by the use of a particular poison. The fact that other persons who were poisoned
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MEDICAL LAW AND ETHICS E\ I:\DIA
by that particular poison exhibited certain symptoms which affirm or deny to be symptoms of that particular poison, is Proof of facts. Facts can be proved either by oral or by docu'-~ mentary evidence. Oral evidence must be direct, i.e. if it refers to a particular disease suffeI~ed by a particular individual, the evidence led i must be that of the medical practitioner who carried out the examina-t tion. It is not open to a practitioner to say that he was told by some-,' . one else that that particular individual was suffering from that disease. ~ In this connection it is relevant to point out that a medical practi tioner should know the difference between his position in the witness box when he is called as an expert witness and when he is asked to give evidence of facts concerning some particular case. \Vhen he is call~ ~!s ",
i
Docu~~ntary evidence.
1
Documentary, evidenc~ l11us.t be proved by the ongmal documents themselves. Thls rule IS subject to some exceptions, For example, copies of original documents are allowed in { evidence ,vhen the originals have been destroyed or lost or when the I
A PRACTITIONER IN THE WITNESS BOX
original is in the possession of the person is sought to be proved.
387
whom the document""
Mode of proof. Facts can be proved in several ways: 'l. By proving an admission of fact on the part of the opposite party . to the proceeding. One of the ways in which a particular point in dispute is allowed to be proved in a court of law is by proof of the admission of parties. A statement, oral or documentary, becomes an admission in the follow~ ing cases: (i) if the statement suggests an inference as to the facts in issue between the parties or as to relevant facts; and (ii) if the statement is made by a party to the proceeding or by his agent, who is expressly or impliedly authorised to make the statement. It may be noted that sUence sometimes amount...s to an admission.
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It may also be noted that ordinarily oral admissions as to the contents of a document are not treated as proof of those documents. civil cases, no admission of a statement is allowed if it is made on the understanding between the parties that the admission should not be used by either party in a court of law. It is undcr this rule that correspondence marked "vVithout Prejudice" is not allowed to be proved in a court of law. Admissions are not conclusive of the matters admitted; that is to say, although admissions are evidence against the party making, them, that party is at liberty to prove that the admissions were made under a mistake of Jawor of fact or under threat, inducement or fraud j and, therefore, not binding on him. 2. ' ?: voluntary confession on the part of an accused person is ad I'!!;iss.ib.l~ t£...proy::.....his guiJt~:. A confession will be discarded by a court if it appears to the court that the confession was a result of (i) induce ment, (ii) threat or (iii) promise proceeding from a person in authority and which, ill the opinion of the court, was sufficient to give the accllsed person ground to believe that he would gain an advantage or avoid some evil consequence if he made the confession. A confes sion macIe in these circumstances cannot be said to be voluntary. b confession made under ~)romise of pardon is also inadmissible. vVhen e~~;·:th;;;for~,'a c~ession is induc~d by improper means, thc con fession be excluded. But if a confession is proved to be voluntary,) the mere fact that the accused confessed in the hope of pardon not render the eonfession inadmissible.
1 I
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wild
. The law does not allow a confession made to a police officer to be proved in a court of law against the person who made it unless it is
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tvlEDlCAL LAW AND ETHICS IN INDIA
made in the presence of a Magistrate. h\ confession does not become irrelevant merely because it was made (a) under a promise of secrecy, (b) in consequence of a deeeption, (c) when the confessor was drunk, (d) because it was obtained in answer to certain questions, which 11e need not have answered or (e) because no warning was given that the confessor was not bound to say anything and that whatever he .':>aid might be used as evidence against him. 3. (Proof of the nature of death can be given by proving dying """ declarations. The ordinary rule is that hearsay evidence is not admissible. The best evidence must always be given. If a person is alleged to have made a statement then that person himself must be called to the box to give cvidence. But this rule is subject to certain exceptions. One of these exceptions is that declarations by a deseased rclating to the cause of his death may be proved by the person to \vhom the statement was made. This statement is allowed to be provedirrespec tive of whether the person who made it was or was not at the time when he made it under expectation of death. Dying declarations are allowed to be proved in cases in which the callse of death of the person who made the dying declaration comes into question. Dying declarations may be oral or mqy be written, but in most cases~jh5:L _~.~ on~ No oath Is necessary for the making of a dying -·de~l;ration. The accused person need not be present at the time the dying declara tion is made, nor is the presence of a Magistrate essentiaL The declara tion should be taken down in the language in which it is made and, if it is not a continuous statement but is elicited in answer to questions, the exact questions and answers should be noted. Unauthorised persons should not be permitted to cro\vd round when a dying declaration is being mc~de and every possible step should be taken to ensure that no influence is brought to bear on the declarant and that he is not prompted or aided in way when making the statement. In order to ensure au thentieity, a I\lagistrate, if available, should be called for recording the dying declaration. The relevant section of the Indian Evidence Act relating to dying declarations is Section 32, which reads as follows: "Statements, written ,0r verbal, of relevant faets made by a person who is dead, or \v11o carinot be found, or who has eome incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are themselves relevant facts in the follOWing cases:- \Vhen the statement is made by a person as to the cause of his death, or as to any of the circmnstances of the transaction which remlted
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A PRACTITIONER IN THE WITNESS BOX
in his death, in eases in which the cause of that person's death comes in question. Such statements are relevant whether the person who made them
was or was not, at the time when they were made, under expectation
of death, and whatever may be the nature of the proceeding in which
the cause of his death comes into question,"
If a person survives after making a dying declaration, the declara tion is considered to be of no impOItance as a piece of evidence, but it can, under Section 157,9.£ the Indian Evidence Act, be used ~_a <:Q!TobQ!..ative or sll..rmQ£figR-§tatement when that person is examined as . a \vitnes~":"\ ~-
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Mode of recording a dying declaration,
A dying declaration
shOt~}?~.~tt_t:~y. th,e.inture~_ person j!J:t~~S=-irLJLEosition. tQ d()2Q; it should be taken dO\vn in the -form of questions and aI1SWerS; otherwise, ....in the words used. No promptings or suggestions may be made to the dying man and 1!:.i;l(~~!!.&...9.uestio~ (questions which suggest their answers) are not permitted. TIle recording of a dying declaration is a solemn proceeding. The i~v_est~!!illL.pl)li£!'L__o.lficer should not _b_~ allo:':'~E to be present when a dying declaration is being recorded. The person wbo has taken down the declaration, E!.\::~~E:~1Y~ Magistrate, should rcad over ths._declaratioIl..Jo the dying person, who should bc asked to.. ~it, if he is in a position to do so, or his left hand thumb impression should be taken. The Magistrate, if any, anct~~_"Yitnesses in whose presence the declaration has been taken, should attest .--~-. it and it should be k~v~to the court concerned. Even if a dying person is unable to spcak but makes signs in response to questions put to him, such a ,declaration is admissible in evidence. The questions put and thc signs made by the dying person are regarded in law as· verbal statements as to the cause of death under the provisions of Section 32 of the Indian Eczdence Act and a declaration so made is ad missible in evidence. .~.----
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Expectation o~ death. ~ nder English. !aw a dying declaration is( admitted as a plcce of eVIdence only If the declarant was con-I scions of the fact that he was dying as a resnlt of the injurics he had ~ received. In India there is no sHch provision. As a matter of fact, in Section 32, Clause (S) of the Indian Evidence Act, the expression "dying) declaration" is not used; the word "statement" is used. TIle importance! to be attached to such statements is left to the discretion of the courts.'
I
Dying declarations made by a dcceased perSOll may be used in
evid~nc:e-norolJy against the assc~ilant but also against persons 11avebe;;;~-;;-~~1~J;;;~~ibleh;;ti1e '~-;;Ttlle a;ceased . ... ... .. ... ... ... . ,-~,~.~,--.--.~.-~-.~'-- -
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.. ~390
MEDICAL LAvV AND ETHICS IN INDIA
Part VI MEDICAL EXPERTS
TIle provision under which expert evidence is admissible in comts in India is Section 4.5 of the.. Indian Evidence . ......Act. Section 4.5 reads· as follows:
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"When the court has to fonD an opinion upon a point of foreigni law, or of science, or art, or as to identity of handwriting or finger impressions, the opinion upon that point of persons specially skil.led in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. Such ljer-. sons are called experts."
Illustrations. (a) The question is whether the death of A was caused by poison. The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died are relevant. {b) The question is whether A, at the time of doing a certain act, was, by reason of unsoundness of mind, incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law. The opinion of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable' of knowing the nature of the acts which they do, or of knO\ving that what they do is either wrong. or contrary to law, are relevant."
In the case of Lee.la Sinha v. Pratap Deo Singh1 it was said, "There ') is no reason why a scientific witness should not be a witness of one or I' more or all of the parties to a legal proceeding. To a professional man it matters not which party calls him as a witness. ':Vhat is of concern to such a witness is the accuracy of the scientific opinion which he expresses,. not the party by which such evidence is tendered."
I !
. Qualifications of a medical man to be considered an expert in the science of medicine.:§very,,,stoctor who has obtained a diploma, licence or degree to practise medicine is qualified to give evidence as an expert in medical matters. But the
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following exceptions may be noted:
If a doctor has acted as a member of a medical board or '-'---'-'''-~'-' -.-, .~-" -·~--"r~·-·-~-'----~'" c:.9unciliQ...~cid.£.3l.,.I2!:!rticular point in issueJ>efore that ~board O!, cO,2!llcil,. he cannot after\vards be called as an expert to. testify cOl1ceming what{ he may have examined or watched during the proceedings before himJ (a)
1
A.LR, (1925) Calcutta 768.
A PRACTITIONER IN THE WITNESS BOX
391
In \Vard v. Shell ~,fex & B.P. Ltd.,! the plaintiff was a labourer whose duties included the clearing of mud and sludge from under the back of a wharf and for that purpose was issued with rubber thigh boots. As a result of wearing these boots next to his skin he alleged that he contracted eczema. His case was referred to a medical board set up under the National Injuries (Industrial, Injuries) Act, 1946, A doctor was a member of that board. After the inquilY the plaintiff filed a suit against his employers for negligence alleging that they had failed to supply him with adequate protective clothing. In this suit the plaintiff sought to call as his wihlCss the doctor who was a member of the medical board who was to testify not only as regards the of the plaintiff's condition as it was at the time he examined him in the course of his duties as a member of the board but also to state his own conclusions as to the cause of that condition. It was held that the evidence was inadmissible because the doctor was not, in these circum stances, called as an expert but as a member of a judicial body, and a member of a judicial body cannot give evidence of the reasons which had prompted the judgment in question.
(b) A medical man must also remember that he should not step 'I'" into the witness box as an expert to give evidence in a matter in which he is an interested party. ~he Privy Council has condemned this prac tice. In Judah v. Isolyne Bose/ a lady doctor who was the daughter of the deceased testatrix, though a party to a case in which her mother's will was challenged and interested in ascertaining the mental incapa city of her mother at the time of the making of the will, stepped into the witness box to evidence as an expert. Thc Privy Council dis approved of her conduct saying, "There cannot be any more unsatisfac tory evidence than that of an interested party called as an expert." It may be mentioned that the evidence the daughter sought to give was as an expert witness because at the time the will was made she was :not present and could not give any evidencc as to the facts. Qualifications of an expert witness in the State of Maharashtra. In courts and tribunals in the State of Maharashtra, physicians, surgeons, obstetricians gynaecologists cannot give evidence on medical matters unless they arc practitioners registered undcr anyone of the follOWing Acts; (i) The Maharashtm Aledical Practitioners Act, 1.96l.
The Bombay Medical Act, 1912.
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(1952) 1 K.B. 280. AJ.H. P.G 174.
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MEDICAL LAW AND ETHICS IN INDIA
(iii) The Bombay Homoe01Jathic and Bioche1nic Practitioners liet, 1959. (iv) The Indian Medical Coullcil Act, 1956. The somewhat peculiar result of this is that a surgeon, physician, obstetrician or gynaecologist, however eminent he may be, is prohi bited from giving evidence as an expert in courts and tribunals in the State of Maharashtra unless he is registered under anyone of the Acts mentioned above.
Part VII QUESTIONS TO MEDICr\LEXPERTS General questions that may be put to a medical witness. Every doctor who has obtained a degree, diploma or licence to practice medi cine is qualified, technically speaking, to give evidence as an expert on medical matters. To impress the court, however, with the weight of his evidence he must be a practitioner who shows some particular skill in some branch of medical· science. To lessen the effect of his evidence, eounsel cross-examining him will seek to probe into his quali fications as an expert. Counsel of the party who calls him, therefore, must and will seek to impress upon the court, at the velY outset, thp qualifications of the expert he brings to the witness box and he will lay the basis for his evidence by asking some of the following general questions: vVhat are your degrees?
Since when have you been practising medicine?
Where did you receive your education?
Have you any special academic qualification in the particular
branch of medicine concerning which you are called to
evidence?
In which hospital were you apprenticed?
How long were you apprenticed?
vVhere have you been practising?
Have you specialised in any particular field of medicine?
Are you an 'hollorary' or are you in any way connected \vith some
hospital or nursing home?
In accideut cases, if a medical \vitness advances a theory that a certain disfigured face cannot be remedied, even \vith plastic surgery, he is likely to asked the following questions: Have you aIly particular training and experience in plastic surgery?
Have you been practising plastic surgery?
Have yOll performed any plastic surgery?
Have you been following the developments m plastic surgery?
A PHACTITIONEH IN THE WITNESS BOX
39:3
Professor Charles Carnahan, in his book, The Dentist and the Law, observes l that the persuasive effeet of the testimony of a medieal ex pert depends upon several factors. He says, "The expert should have 'book knowledge' of views on the point expressed by writers in the profes sion. He should have had personal experience leading him to accept, re ject or modify the techniques and conclusions advanced by those writers. He shol,lld be familiar with the standards and practices of the profes sion on the point generally <mel in relation to the text books. Other factors are these: The period at which the witness reeeived training in a school of dentistry as. bearing upon the development of the science; degrees received and reputation of the schools; present age; the period of time in which he has practiced dentistry; the character of his prac tice, as general or specialized; the extent or degree of activity of practice in tIle time he has been licensed; the publication of articles or books or giving talks on professional subjects; contribution to, offices held in, or honours received from professional societies; and the extent to which he has previously acted as an expert witness." Hypothetical Questions. It is obviolls that expert evidence cannot be \ led unless hypothetical questions are put to a witness and the wihless i is allowed to base his evidence upon the assumptions implied in the questions. As observed in Bai Diva Kalu;i v. Sil.,;er Cotton Mills Ltd./ even wherc a doctor has not examined a patient, he is entitled to answer hypo thetical questions put to him, the safeguard being that the hypotheses me correctly put to. him. An excerpt of expert evidence. Reproduced below is a part of the evidenee of a psychiatrist who was a medical witness both as a witness of fact and as an expert witness in an action filed in the High Court of Bombay. The names of parties have been omitted as the matter was settled but, in order to appreciate the evidence, the facts of the case are briefly stated. A petition was filed by a husband praying that the custody of his son, then three and a half years old, should be given to him and not to his wife. It was alleged that the ,vife was mentally disturbed and was, consequently, not a proper person to have cllstody of the child. Thc lady had been examined by the witness during the period when she was alleged to be mentally disturbed. For about a fort night she was under his trcntment. An excerpt from his evidence is given below. It is reproduced herc with n view to show how questions in examination-in-chief and in cross-examination should be put to an expert witness.
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At P. 247, A.Ln. (1956) Bam. 424,
!\1EDICAL LAW AND ETHICS IN INDIA· Examination-in-chid on hehalf of the Husband
Question:. Wi!! you tell us very shortly how a person suffers if he or she is suffering from psychosis? Answer: A person suffering from from mental condition charac terised by disorganised and suffers from,_c!f)lus.!g~1:>1l1}d hallucinations: ,~._~~.,,~~.;co~_~~' Question: If apatierrt' suffering from psychosis had three recurring attacks of mental upsets between May 1956 and April 1958, what is your opinion as an expert of the chances of further attacks? Answer: A patient suffering from psychosis, if she has three recurring attacks within two years, there arc great chances of a recurreIlGe.oL_attacks. Question: Can you ten us whether an:;-"'period can be put? And, if so, what, after the last attack? . Answer: It is difficult to say about any safety period, hut if such a patient did not have recurrence of the attacks, say for about three years, after the last attack, the chances of her getting a recurrence of attacks are less. Question: Can you tcll us what causes are likely to bring on a recurrence of the attack? Answer: Emotional c~uses,- or provocations, or any severe mental or physical stress wou1a precipitate the recurrence of psychosis. Question: In what cases is electro-shock treatment or insulin shock treatment given? Answer: The indicatiolls for both the types ot treatment are different. Electro shock treatment is given in cases of depression and in some cases of schizophrenia. The insulin shock h"eatment is generally given in schizo phrenia and paranoia. Question: Yon have Inade a study ot behaviour prohlems of children and you have written a book on that subject? Answer: Yes. Question: If a child is born in May 19.56 and he is now ~'lJ~ years old and has heen staying since within a few weeks after his birth uptll now with his grandparents and sleeps in their rooms and is attached to them, what would be the result if the existing surroundings are distm:bed or cbanged? ' . Answer: ThG first five years of life ,Ire the formative period of life. It is during this period that the foundations of a healthy personality or otherwise are laid. The child being in close association with the parents during. this period, the parental attitudes inlluence a great deal in the moulding of the child's personality. It is not in the interest of the child if the child is removed from the parents or the parent snbstitutes who are responsible for the up-bringing of the child. Cross-examination on hehalf of the Wife
(It was the case of the wife that, because of the treatment meted out to her by her husband, she had become mentally upset and, in any event, her disturbed mental condition was aggravated by the husband's conduct.) Question: You have said that the treahnent which you gave to Mrs. X was psy chotherapy, \Vllat d{)e~ that treatment mean? Psychotherapy is of mallY types Answer: The type of psychotherapy I gave consisted in giving interviews. During these interviews a detailed chronological history is taken, and, if the patient is unable to give that, his history is collected from the close relatives of the patient. The patient's background is studied in detail in his normal settillg. F.mlty reaction pattcrns established in childhood are studied in detail and the patient is shown how these faulty patterns of behaviour are reflectcd in his day-to-day activities of life. The aim of psycbotherapy is to hring ,[bout a healthy adjustment with his OWll self, and with his surroundings.
A PEACTITIONER IN THE WITNESS BOX Questioll" Have you been shown the papers in of the parties or the correspondence
39.'5
such as affidavits passed between them?
AI1SWef: No. Question: In considering the case of a patient and pronouncing any opinion 011 it, are the pre-psychotic interests of the patient relevant and important? Answer: They are.
Question: H a person shows in pre-psychotic personality interest which can be described as social interest involving co-operation with others as opposed to purely individual interest, would not the outlook of the psychotic patient be more hopeful and better? personality consisted in the patient Answer: Not necessarilv. If the occupying heiself with one and she has been accustomed to that kind of occupation for years, psychotherapy does not aim at making the j)atient what he was not before but he is encouraged to take in terest in the same occupation. If the patient took part in various social activities before his illness then certainly one of the aims of the treat ment would he to encourage him to take part in those activities. with interest in varied social acti Question: Would you not look upon a more balanced personality than vities as also individual a person or limited interest, i.e. to his own individual self? Answer: I would certainly look UPOIl such a person as a more balanced per sonality,
(In order to appreciate the further cross-examination, the reader is requested to refresh his mind by reading again the last question and an.<,wer in the examination-in-chief of the witness.) () 11 esti on:
The c1l1s\vcr which you gave to the last question put to you in Exami nation-in-Chief was on the hypothesis first that the facts stated in the question were true, and secondly that no other relevant fact which can affect the healthy development of the child with the parent substitute was omitted.
1l.IIswei': It is true that my answer a~sumes that the facts tion are true. I have no personal knowledge. have given ·the answer on the hypothesis that which can affect thc healthy development of substit1.~te is omitted.
stated in the last ques It is also tme that I no other relevant fact child with the parent
Question: If the facts that the parent substitutes have done their best to keep awav the from her natural mother when she recovered from her 'illness which you treated her, and prevented her from bringing up her child since the child was a year old; and if the love of one of the substitutes, viz., the grandfather, for the grandchild is such that wants the child as a possession or property for his O\lln emo tional and gratification and proposes to have nothing to do with the if thc custody is given to the mother, would you agree that the are unfit and will be laying the foundation of grave disorder for the child? Answer:
facts arc true, the child is likely to suffer in its personality If these are the facts, the child should not be with them. to put one other fact before you: Since November 1958 the has been. the child practically each day for a period, of 2 dunng month when she went on a holiday. If the the child now recognises her as his mother calling her Mummy alld distinguishing her from grandrnothel' whom he calls "Baddi Mummy" and he inquires of his mother why she doc~<; not stay him longer and why he canIlot go out with her. If would you not consider it injurious to the child to his mother and her care fmC all time?
Allsu:er:
If the child wishes to be with the mother all the time and craves to be with her he should be allowed to he with the mother.
396
MEDICAL LAW AND ETHICS IN INDIA
Question: On the [lssumptioll that the Court will not consult the wishes of a child of 3Jf years, if the facts are as I have stated them to be, what is your answerP Answer: I feel that it may be tried out and the child should stay away with the mother for some time but if the child wishes to go back or craves for parent substitutes then he should be allowed to do so. Question: ·Would you agree that a parent substitute is a second best if the mother is capable of giving her love and care to the child? Answer: It would be so if the child was with the mother from the very begin ning. Question: vVould yon agree that on being reunited with the mother after separa tion the child would drop the parent substitute like an old garment without so much as "thank you" to the parent substitute? .4nswer: It depends upon when the reunion occurs. II the rcunion has occurred after the child has expressed his desire to be with the mother and misses her, if the reunion oceurs then the <.:hild would be happy. Question: vVoukl you agree that, if possihle, parent substitutes over 45 years should be avoided for children under 10 years because the gap between such a parent substitute and child is of two generations? Answer: I agree that if it is practicable the situation should be avoided in selecting parent substitutes of over 4,5 years of age for children under 10 years of age. Question: Do you agree that a child of 3)f years would not always be able to assert his will against persons ill whose more·or less permanent custody he is? Answer: Not always. Question: I l)ut it to you that before you can give an answer to a question put in a general form about "three reeurring attaeks of mental upsets" you would wish to know the cause, nature and duration of the mental upsets? mental upsets? Answer: Yes. I would like to know all this before I answer.
(The witness had stated in his examination-in-chief that the wife was suffering from reactive depression, A part of the cross examina tion on this point was as follows.) Question: "D~ctor, there are cases on record of reactive depression in which electro-shock treatment or insulin shock treatment failed and psycho therapy succeeded in effecting a cure? Answer. If the reactive depression is of a mild nature and in very early stages, psychotherapy may succeed in bringing about a cure. Only occa sionally and in rare cases a vcry severe reactive depression may respond to psychotherapy. In quite a number of cases of severe reactive de pression rapport with the patient is not possible and hence eletcro-shock treatment has to be given in order to make the patient's mimI receptive to psychotherapy. Question: By rapport do you mean ability to obtain iuformation or cia you mean ability to convey suggestion? Answer: Both, Electro-shock treatment cuts short the period of illness which would not be so if psychotherapy was tried alone,
Part VIII REFEHENCE TO FOH;\IER STATE:MENTS, AND TEXT-BOOKS
DOCU~-IENTS
, A doctm' when giving evidencc may have recourse to statements made by him in the past, to documents \vhich have been prepared by
A PRACTITlONEH IN THE WITNESS BOX
397
him or under his instructions and to medical text books. He may refer to reports which have been made regarding the patient at the time when he was treating the patient. He; may also refer to case-notes which he has made at that time or which have been made under his super VlSlOn. Statements made by way of an entty or a memorandum in books kept in the discharge of professional duties are admissible in evidence without calling to the witness box the doctor who made the entries, if he is dead or cannot be found or has become incapable of giving evidence or his attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the court to be unreasonable., If, therefore, a doctor has made an entry in his books in the discharge of his professional duties and has, thereafter, gone and settled ahroad and the matter in which this entry becomes relevant involves only a very small sum, the court would in all probability allow the entry in the book to be admitted in evidence without the presence of the doctor in the witness box 011 the ground that his evidence cannot be procured without an amount of delay and expcnse which, under the circumstances of the case, appears to the COlllt to be unreasonable. Former.:'itatements~f a witnes~may
12c 12Fovecl to COE1'obor~te later: Section Sectioll 159 of tbe Indian Evidence Act may, in connection, be quoted: u157. In order to corroborate the testimony of a witness, any for mer statement made by such witness relating to the same fact at or about the time when the fact took place, or hefore any authority legally competent to investigate- the fact, may be proved." "159. A witness may, while lmder examination refresh his memory by referring to any writing made by himself at the time of the trans action concerning which he is questioned, or so soon afterwards that the court considers it likely tllat the transaction was at that time fresh in his memory. The witness may also refer to any slich writing made by any other person, and read by the witness within the time
•• , . _• • ~_-_
.,-
_i
-_"'_
~.,~.-
,398
MEDICAL LAW AND ETHICS IN INDIA
t
In Si'mth v. Lorry,I a question arose as to whether a medical witness could be allowed to refresh his memory as to the condition of a patient t by referring to notes made by one of his pupils. The pupil had made the;1 notes under the instructions of the witness who, after the notes had heen U written, had read and approved them. It was held by Mr. Justice Talbutl that it was competent to the witness to refer to these notes. In the judg ment in Kalu v. State of U,P.,2 reference is made to Taylor's book a:. an authoritative text-book on medical jurisprudence. The Supreme Court has also cited Kirk on Crime Investigation and Soderman and O'Connel on Modern Criminal Investigation. The Supreme Court said, ''To satisfy ourselves we have looked into the works of some authors dealing with the marks left on cartridges and shell-cases by fire-arms in order to ascertain that there has been no error in the opinion of the fire-arms expert who gave evidence in the case." Reports. 'An expert's report or certificate will have no more thau corroborative value in a <;ourt of law. The expert' who has given ,a certificate or report must step into the witness box and say what he has found. This is to enable counsel on the opposite side to cross examine him. In Corral Indira v. Joseph,3 it was held that the medical certificate of a doctor concerning the sexual potency of an individual did not prove the contents of the certificate. The certificate should have been strictly proved by the doctor who issued it. He would have had to state in the witness box what tests he carried out to arrive at his conclu sion and he would have had to stand cross-examination and would have had to convince the court that his conclusion was correct. Since the doctor had 'not beeri call to the box, his certificate was discarded. In 'Vadhwa v. Jaikishandas," the comt said that reports of experts are not legal evidence unlcss the experts appear in court as witnesses and are cxamined by both parties in respect of their opinions. In Tulsiram Kanu v. State 5 it was observed, "In ordinary circum- i stances there would be nothing wrong in taking reports of the Chemical I Examiner and Imperial Serologist on record without these i persons as witnesses as permitted by the Criminal Procedure Code \ vVhen, ho\vever, there is a difference of opinion in the report, so much j so that the effect of one report is to nullify the effect of the other, the i duty to explain the difference is on the prosecution and the mere pro-l duction of the report does not under the circumstances prove anything:: which can weigh against the accused."
r
1
(1935) A.I.R. a A.I.R. 1 A.I.H. • ALH. 1
2
Lmlc<'t :May ] lth, 1126,
(1958) (1953) (1928) ODSt!}
S.c. 180 at ] 88. I\lad. 858. Lah. 427. S.C. 1.
A PRACTITIONER IN THE WITNESS BOX
399
Medical text-buoks. Expert witnesses are allowed to their memory by referring to standard text books. This reference by itself, however, does not become evidence in the case. The expert must, on his own responsibility, express his opinion. When a party intends to make use of a medical text book in court with a view to showing that the expert who has given evidence is not reliable, the book should be put to the witness. In Bhagwarulas v. State of RaiGSthan,l the Supreme Court said that I it was not a satisfactory way of disproving the evidence of a doctor to; say that he was a comparatively young man and that his statements did I not accord with the opinion expressed in text books, when the relevant passages of the text books were not put to him when he was in the: witness box.
I
Part IX APPRECIATION OF EVIDENCE In Antonio Dias v. Caldera,2 it has been laid down that "in assess ing the relative value of the testimony of expert witnesses, as compared with witnesses of fact, their demeanour, their type, their personality, and the impression made by them upon the trial Judge, for example whether they confined themselves to giving evidence, or acted as advo ::.:ates-may powerfully and properly influence the mind of the Judge who sees and hears them in deciding behveen them. These advantages which are available' to the trial Judge, are manifestly denied to the appellate court. Hence, where the respective theories have been care fully and dispassionately weighed by the trial Judge, and a clear conclu sion in fact has been reached by him, it would not be proper or safe or in accordance with sound practice that the appellate court ~huulrl reverse the conclusion in fact. The value of evidence depends on materials submitted by an expert to support his opinion. In Mt. Titli v. Alfred Robelt ]ones,3 the qnestion was as to the condition of the mind of a party to a marriage at the time the marriage took place. The court held that the opinion of an expert by itself may be relevant, but would cany little weight with the court unless it was supported by a clear statement of what he noticed OIl what he based his opinion. rn1e expert should, if he expects his opinion to be accepted, put before the courl all the materials which induced A.LR. (1957) S.C. 589, A.l.R. (1936) P.C. 154. 3 A.I.1\. (19.'34) All. 273.
1
2
400
11EDICAL LAW AND ETHICS IN INDIA
him to come to his conclusion, so that the court ~ay form its own judg ment on those ma tcrial". Mere mention that certain kinds of tests known as Binet and Simon tests were applied and certain results were obtained might be relevant as a piece of evidence but would not be conclusive. In the evidence of the medical witness in the case, the materials on which his opinion was formed were found wanting. If he had given the questions which he put from time to time and the answers he got to those questions, if he had stated that he observed the petitioner from time to time without the petitioner knowing that he was being watched and if he had said what he observed, the court would have been a position to say whether the opinion of the exped should be accepted or not. A mere mention that a certain kind of test known as Binet and Simon tests were applied and certain results were obtained might be relevant as a piece of evidence, but would not be conclusive. I As is well known, the Binet and Simon tests are applied to children to test their intelligence and they are in the shape of questions and answers which a child of a certain age may be expect6d to answer. If a child of five answers questions meant for a child of five it will be taken that 'it has the intelligence of this age. If a youth of ten may not be able to answer the questions meant for a youth of his age and may be able to answer questions meant for a child of seven only, in that case he would be supposed to have the intelligence of a child of seven only.' The court did not know what questions were put by the witness and what answers he received. An exp~rt must disclose to the court the basis upon which he has formed his opinion for it is only then that the court will attach value I to his evidence.
in
i
Conflict of medical opinion. In two recent decisions, courts have expressed views on the weight to be given to medical evidence. In one of the cases, \Vhite v. Board of Governors of vVestminster Hospital and Macauley,l the court held that when the onns is on one of the parties to an action to prove a certain matter, e.g. the negligence of the defendant, and his medieal witnesses do not agree, it is not for the court to resolve the conflict. If the conflict is a material one, the court will simply hold that the party has failed to satisfy the burden of proof laid upon him. In the other case, H. Mansel Pleydell v. Empel'Or,2 two doctors of great attainments and experience gave medical evidence regarding the probahle cause of the death of the deeeaseL The court saiel that it was 1
The Times, Oct. 26th, 1962.
2
A.Ln. (1926) Lah. :31.'3.
A PRACTITIONER IN THE WITNESS BOX
401
difficult to understand how a layman could choose betwecn the conflict ing opinions of nledical officers who were doctors of great attainments and experience. The reasonable course for the court to adopt was to accept that opinion which was not in conflict with the direct evidence.
Approach of court.J \lention may be made about the proper ap proach of a court of appeal in examining evidence already recorded by the trial court. It is truc that an appeal is by way of a re-hearing but the court of appeal does not re-hear witnesses. It only reads the evidence and hears arguments. The burden of proving that the trial court is wrong is on the person who appeals from that judgment. He must satisfy the court of appeal that the trial Judge was wrong and his deci sion ought to have been the other way. There is certainly juris diction in the court of appeal to re-assess facts and to come to an opposite conclusion. The trial Judge is not the possessor of infallihility and there may be occasions when he goes wrong on a question of fact but he a great advantage which is denied to the court of appeal of se~ing the witnesses and observing their demeanour. Therefore, great weight is attached by a court of appeal to the observations of a trial Judge as to the degree to which a particular witness impressed him. It may be mentioned that if it is merely a question of inferring a factual conclusion from the recorded evidence, the Court of Appeal would be in as good a position as the trial Judge. It is only when thc question is as to who is speaking the truth that the opinion of thc. trial court assumes overwhelming importance. 1 , The Supreme Court of India, in Radhaprasad Singh v. Gajadhar Singh 2, stated the law as follows: "The position in law is that when an appeal lies on facts, it is the duty of the Appeal Court to consider what its decision on the ques tion of facts should be; but in coming to its own decision it should be bome in mind that it is looking at the printed records and had not the opportunity of seeing the witnesses and that it should not lightly reject the trial Judge's conclusion that the evidence of a particular \vit11ess should be believed or shallld not be believed ~articularly when such conclusion is based on the observations of the demeanour of the wit11Css in a court. But, this does not mean that merely becanse an Appeal Court has not heard or seen the witness, it will in no case reverse the findings of a trial Judge even on the question of credibility, if such question depends on a fair consideration of matters on record. \Vhen it appears that important considerations bearing on the question of credibility had not been taken into account or properly wCighed by the trial Judge, and such consideration, including the question of pro bability of the story given by the witnesses, clearly indicates that the 1
Powell v. StreatJwm Mallor p.
'2
179.
(1960) S.C.J. 73 at 77.
Home, (
A.C. 248, (1985) 79, Sol J.
402
MEDICAL LAW AND ETHICS IN INDIA
view taken by the trial Judge is wrong, the Appeal Court should have no hesitation in reversing the findings of the trial Judge on such question. Where a question is not of credibility based eiltirely on the demeanour of the witness observed in court then the Court of Appeal is in as good a position as the trial Judge and is free to reverse the findings if it thinks that the inference made by the trial Judge is not justified."
Part X WHAT MAKES A GOOD MEDICAL WITNESS? It is necessary for an expert witness to determine at the moment he enters the vvitness box that he will speak, in the words of the oath which he takes, the truth, the whole truth and nothing but the truth and that he '.vill do this regardless of the effect his evidence .may have upon the party that calls him to the box. It often happens that, due to the tragic circumstances of a case, a medical practitioner may be swayed by sentiments and tempted to give evidence which would weigh the balance in favour of the injured party. The witness, however, must remember that he is on oath to speak the truth and he should not swerve from this determination. An expert witness should come well prepared with his evi dence and he should not fumble in referring to his case-notes or to text books. The less he fumbles the more the court is likely to be impressed by him and the more weight will his opinion carry.
The expert must understand at the very outset that counsel
on the other side will subject him to severe cross-examination and will
do his utmost to belittle his evidence, shake his credit and, perhaps,
injure his professional reputation. However much the witness is ex
asperated by the cross-examination, he must comport himself with
dignity and {'lith restraint. He should never lose his temper and must,
by giving evidence calmly, impress the court with the weight of his
deposition.
An expert witness is faced in the witness box with the temptation
of airing his knowledge by using technical jargon which may be incom
prehensible to counsel and to the Judge. Evidence given in this manner
will fail to impress the court. It is necessary, therefore, that the witness
should depose in simple language so as to enable counsel and the Judge
to follow and understand what he is saying.
An expert witness in the box IS also faced with the temptation of delivering lengthy lectures. This conveys a very unfavourable im pression to the court. A witness should, when answering questions, be as succinct as p0Ssib leo If possible, his answer should be "Yes" or "No". Counsel sometimes insist on the '.vitness answering a question in terms of '"Yes" or "No". As an expert, the witness may flatly refuse to answer in terms of "Yes" and "No" and can insist on his right to ~express his opinion in some detail. vVhen an expert witness demands of a court ~ his right to express the reasonS for his opinion, he will find that the court will support him. This has been the expeIience of the aathor i11 thirty . . years of giving evidence as an expert on medical matters.
A PHACTlTlONER IN THE WITNESS BOX
A medical witness, while giving evidence, is permitted to re fresh his memory from copies of reports which he may have submitted, provided that the court has been furnished with copies of the reports. In cases where no report has been asked for, the witness is permitted to refresh his memory while giving evidence from case-notes and similar record& made at the time a patient was examined. 'When counsel puts to the witness a passage from some text book and -asks the witness whether he is in agreement with the views expressed in that pmt of the text book, the expert must always take the precaution, before answering, of reading the portion which is put to him and also of reading some paragraphs prior and subsequent thereto and he should satisfy himself that the edition of the book handed to him is recent and the views expressed by the author are current. I As an expert witness, a medical practitioner may volunteer a statement if he thinks that injustice will result if he fails to make that statement. He must make such a statement even if it is likely to go against the party that has called him to the box. He must always remember that an expert witness is an independent person with special knowledge of a particular subject who is· called upon to assist the· court in coming to a conclusion regarding technical matters. An expert witness is in no sense an advocate of the party that has called him to the box., A medical practitioner should never hesitate to express his ignorance. I:I~ is alwJ.l.YLentitled..!9H ,~,..:! dOJ1Q~." A medical practitioner should never consent to give evidence as an expert unless and until he is confident of his mastery over the :-.ub jed on which he is called upon to give evidence.
CHAPTER XH
/ ' AHTIFICIAL IKSEMIKATION, STEHILISATION AND EUTHANASIA
Part I STERILISATION Section 1- DIFFERENT
TYPES
Section
SAFEGUARDS
SUGGESTED
Section
Part II ARTIFICIAL INSEr..UNATION Section 1- DEFINITION Section 2-
DIFFERENT
Section 3- LEGAL
TYPES
ASPECTS
Section 4- MEDICAL
ETHICS
Section 5-
IN
PITFALLS
Section 6- SUGGESTED Section
INSEMINATION
SAFEGUARDS
7-THE FEVERSHAM
COMMITTEE
BEPORT
Part III EUTHANASIA Section 1- DEFINITION Section 2-
OPPOSING
AND
LEGALITY
VIEWS
f
40.5
ARTIFICIAL INSEMINATION, STERILISATION AI\D EUTHANASIA
Part I
· S
STERILISATION
TERILISATION may be defined as a proeedure for ehecking
pm'eritho.od. !t m~yJ~.~J'.!!rgical or it may be radiologic~l but the.
procedure~s.~...Y.9.gue is 3 ..-0.~~~?~~ vvh~~h~nv()lve~
t~_e~~in~ of contra~e pills. Sterilisation is direct w.hen it i~ in-1
tended to render the person operated upon It is when it
is the unintended result of an operation for some other purpose, for,
preserving life or health.
Sterilisation l!HlL~ ~~'for~cl eitJl~n the male or th~.}emale. It should be remembered that sterilisation of the male is different from castration. Sterilisation is in no wayan operation for depriving
<~_~olutely fool-proo~.
Section
l-DIFFEHENT
Sterilisation operations may be (i) qQ!!Pulsory or (1i) - voluntary. . ... (i) By compulsory sterilisation i~ meant sterilisation perfonned on j (.. .~ l'). k <:'1 a person compulsorily, by an order of the State. In Cennan)', under the ' ; "'o4",",,,,~ 1.,.4... k oppressive Nazi regime, a statute on compulsory stelilisation was passed d)"")'I~L~~j)~ in 19:3.'3. During the first year of the operation of the statute, thousands of sterilisation operations were compulsorily carried out on mental cle- i fectives and others from a strictly eugenic point of view. Sterilisation -
~~
~
j~ ~l!~.sU.:~~.rfOl~~5L<~:..Et:Ei ~\~~ea~~l:e .~lE91L~~'ElwLcrimilJ;tli);-Sc'lndi - navian countries . ........-. -""- ... ------~
(ii) By v..011ntar%~terilis~lti9.n is meant one which is performed on married persons with the consent of the husband and wife. In actual practice, the operat~~ of~i~~t;;;,St;;riiisation-';' rally performed for one of three purposes: (i) (1'1")
therapeutic; /'
. /'aueI
eugemc;
(iii)
contraceptive;,'when husband aud wife, for personal
cOllvenience or economic reasons, do not desire to have
children.
406
MEDICAL LAW AND ETHICS IN INDIA
(1) Therapeutic Sterilisation. It is performed for a definite under- y lying pathological condition so that the health or life of the mother is 1 t' not endangered by a future 'Women are more frequently on grounds of health than males because, At times, 1 however, sterilisation is OIl the husband if the physical condi-' ~,,}y<. tion of the wife does not permit an immediate operation on her and! there is risk of another pregnancy. Therapeutic sterilisation in women is usually necessary in the follow ing cases: (0) is considered advisable to a woman who has undergone two or three Caesarean seetions. In such cases the uterus is likely to rupture endanger ing the mother's life if a subsequent delivery is attempterl in the way and the woman is needlessly exposed once the risk of laparotomy. (b) {epeated pregnancies are likely to health or the life of a woman. (c) is dangerous for a woman who is actually suffering from a di~~ of Jl1~1~1-,--~idI!:~ or or \vho is likely to become active with a disease which is in a quiescent state before pregnancy. Sterilisation. It involves consideration of the qualit:y ~ of future population. The object of the performance of eugenic sterilisa- , tion is to bring about racial improvement by preventing the trallsmi§-,~ign of and hereditable defects so as to reduce a future bllrden on \ society. In short, e;:lge11ic~Si:erITli;aTi(m is sterilisation of the physically and) mentally unfit.
(2)
I
(3) Sterilisation Of Convenience. It is perfonned medical indication.. 'vvith the consent of both the husband .-. .. _---' cause the spouses do not desire to have more children from an economic point of view or as a matter of personal convenience.
Section
2-SUGGESTED SAFEGUARDS
It is advisable that sterilisations should be carried out with certain safeguards. The Government of the State of 'iv1aharashtra has recom mended that, before performing an operation for it should asceItained ;- (i) that the person undergoing the operation at lcast three ~ one of whom is a male heir at leasFCig1it years OTCI"; that the couple has had Eon to realise that it is an .;HUH ...."'''"
ARTIFICIAL INSEMINATION, STEHILISATION AND EUTHANASIA 407
(iii) that the ~e should be above thirty and the 11i1sban£Labove tEirty~-6veJ unTess the couple already have a number of children.
Section 3-LEGAL ASPECTS It may be pointed out that one English judge has strongly expressed his opinion that, without just cause, an operation for sterilisation is an act which is in itself, criminal. The legality of an operation for sterili sation arose indirectly in a divorce case in England. In Bravery v. Bravel'y,l the parties were man'ied in 1934. The husband was then twenty-five and the wife twenty-one years of age. In 1936, a son was born to them. In 1938, the husband underwent an operation for sterili sation. In 1951 the wife left the husband and, in 1952, presented a petition for divorce on the ground of the husband's cruelty, alleging, inter alia that he had, during 19.'38, without consulting her and against her wishes for more children, undergone an operation for sterilisation and thereby caused her great anguish. The majority of judges did not think it necessary to express their opinion on the question whether the performance on a man of an operation of sterilisation was an act criminal per se. Lord Dcnning, howevcr, took the view that it was neces Si:try to consider that question. He said, 2 "When it (sterilisation) is done with the man's consent for a just cause, it is quite lawful as, for instance, when it is done to prevent the transmission of a hereditary disease; but when it is done without just cause or excuse, it is unlawful, even though the man consents to it. Take a case where a sterilisation operation is done so as to enable a man to have the pleasure of sexual intercourse without ,shouldering the responsibilities attaching to it. The operation then is plainly injurious to the public interest. It is degrading to the man himself. It is injurious to his wife and to any woman whom he may marry, to say nothing of the way it opens to licentiou?!l~s; and, mind on either unlike contraceptives, it allows no room for a change side. It is illegal, even though the Ulan consents to it, for it comes within the principle stated by Stephen J. (who was a great authority on criminal law) in R. v. Coney.3 'The principle as to consent seems to me to be this: "When one person is indicted for inflicting personal injury upon another, the consent of the person who sustains the injury is no defence to the person who inflicts the injury if the injury is of snch a nature, or is inflicted under such circumstances that its infliction is injuri0;ts to the public as well as to tbe person injured'." t The majority of judges thought it necessary to say that they felt themselves bound to dissociate themselves from these general observa
!
1
(U)54) :3, All KIt 59. At p. 07. 8 Q.D.D. 549.
408
MEDICAL LAW AND ETHICS IN INDIA
tions of Lord Denning. They observed that, in the circum stances of the case before them, it was neither the duty nor the function of the court to do more than draw attention to the obviously grave potentialities of such an operation for the parties to a marriage. It may be observed that even according to the view taken by Lord Denning, an operation for sterilisation for therapeutic reasons is a legal act.
STERILISATION AND STATUTE LAW: Nobody would that birth control III this country should be accorded top priority. If anyone does deny this, let him look at the population for 1961-the staggering figure of 436 million people. It may be pointed out that a number of sterilisation operations have been carried out in India under the Family Planning Programme under taken by the Central Planning Board. The Board was set up by the Government of India and works under the direet control and guidance of the Health Ministry. It is reported that a total of 1,82,727 persons were sterilised during the period beginning from January, 19.56 to the end of May, 1962 the Family Planning Programme. Amongst these were 1.00,133 and the rest females. }"faharashtra led other states with a total of 47,057, Madras coming next with 37,621. States in which over ten thousand sterilisation operations have been performed are Kerala (14,155), Uttar Pradesh (12,447) and Mysore (12',267). Accord ing to Health Ministry sources, studies on family planning attitudes undertaken, in different parts of the country indicate that about 70 per cent of people want a limited number of children. A more vigorous and nation-wide effort for birth control requires to be unclcr taken under rigid Government control and supervision by the bcst available and least controversial methods. it is advisable to in various states in formulate laws on the pattern of the laws the U.S.A. For this purpose Legislation is particularly required in the field of voluntary contraceptive sterilisation. Neither in Engl,md nor in} India is there at present any statutory law on the subject of sterilisation. ] In the USA., in the majority of states, stahltes do exist dealing with I voluntary and compulsory sterilisation. The experience gained in the U.S.A. in the of sterilisation laws is of immense use to India. In the U.S.A. no Federal law has been enacted on the topic of sterilisation but, in twenty-eight states, there exist statutes, in one form or another, on the subject. majoriy of I states have made sterilisation compulsory and mandatory under certain . circumstances. Some states allow sterilisation on a voluntary basis. The usual gronnds 011 whieh sterilisation becomes nrc
ARTIFICIAL INSEMINATION, STERILISATIO:"J AND EUTHANASIA ,409 ~ heteditary and sociaJ; the basic idea behind compulsory sterilisation ~,,-
"'~-
laws is the prevention of the birth of children to undesirable social de elements. Another common ground is the prevention of fective children from being born to mentally defective parents. To t~ke ';f~;;:;-instances, some states in the U.S.A. compulsOIily require sterilisation operations to be performed on persons confined in mevtal asylums who are affected with a hereditary form of insanity; compulsory sterilisation is prescribed in cases of habitnal also in cases of persons who are morally df3gencrate or sexually perverted and who are likely to bccome a menace to society. Some'stah~;-l-;o contain provisions legalising sterilisation on therapeutic grounds. Other states, while permitting sterilisation on medical grounds, forbid any other form of sterilisation.~ In Buck v. Bell/ an American statute providing for the sterilisation of mental defectives was challenged as being unconstitutional The statute enacted that whenever the superintendent of one of eertain in stitutions was of the opinion that it was in the best interests of the patients and of society that an inmate under its care afflicted with a hereditary fonn of insanity or imbecility should be 'sterilised, he may have a sterilisation operation performed upon the inmate on com plying with the detailed provisions by which the Act protected possible abuse. These provisions were: the superintendent must first present a petition stating the facts and the grounds for his opinion, verified by affidavit to a special board of directors of the hospital or colony. Notice of the petition and of the time and the place of the hearing must be served upon the inmate and his guardian and, if there is no guardian, the superintendent must apply to the Circuit Court of the county to appoint one. If the inmate is a minor, notice must also be given to his parents and they must be fumished with a copy of the petition. The board must see that the inmate attends the hearings. jf desired by him or his guardian. The evidence must be reduced to writing and, after the board has made its order for or against the petition, the superintendent, or the inmate, or his guardian, may appeal to the Circuit Court of the county, The Circuit Court must con sider the record of the board and the evidence before it and such other admissible evidence as may be offered and may affirm, revise or reverse the order of the board and enter sHch order as it deems just. FinaHy, any party may appeal to the Supreme Court of Appeals. The United States Supreme Court observed in this case, "It is better for all the \vorld if, instead of waiting to execute degenerate offspring 1274 U.S. 200.
410
MEDICAL LAW AND ETHICS IN INDIA
for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind." It was held that the principle that sustained compulsory vaccination was broad enough to cover the cutting of the Fallopian tubes. The statute pres cribing compulsory sterilisation was upheld as being constitutional. As mentioned above there are no sterilisation statutes in England or in India. A very high ecclesiastical authority, Dr. Barnes, Bishop of Birmingham, started legislation propaganda in England for sterilisation of the unfit in 1949. There was, however, so great a protest on the ground that such legislation .would infringe public liberty that the Govemment did not think it proper to introduce a bill on this subject. Shri D. P. Karmarkar, a former Union Minister of Health, once stated in the Lok Sabha that 'it was ,not proposed to initiate any'legisla tion on voluntary sterilisation'. This is unfortunate. Due to the lack of any codified Hnv in India on the subject, there is sometimes a battle of conscience on the part of medical practitioners who feel that they ought not to undertake anything professionally, except for the benefit of the health of an individual or for saving the life of an individuaL
Part II ARTIFICIAL INSEMINATION Section
1-DEFINITION
i
Artificial insemination mcans the introduction of semen into the genital tra~t. of a woman not through sexual intercourse but through ~ an instrument. Semen is deposited at one of three places in a woman's t genitals, viz., the vagina, the cervical canal or the uterus. In English- , speaking countries, children conceived through artificial ii1semination are commonly called "test-tube babies". The celebrated surgeon, John Hunter, was the first to employ the means of artificial insemination in human beings. Section
2-DIFF'ERENT TYPES
(1) Artificial insernination with s~men obtaine1..from_~1~~ is deSignated, "b..l!I." Artificial inseminatioll with semen obtained from a donor d , "!lID" 1 · 1S (eslgnate ±..:.-' Some also designate A.I.H. as l~ologou~. . artificial insenlination and A.LD. as ~~. Sometimes, the fluid inseminated is made by mixing the semen of the husband with that of the donor and the mixture of the two fluids is consolation to the husband and wife that the child. nsed in order to
j
ARTIFICIAL INSEMINATION, STE1ULlSATION AND EUTHANASIA 411
is theirs. to avoid the possibility of future bastardisation of the".
child by evidenee of a blood-test it is suggested that not only should a (( N mixture of the semen of the husband and a dOI,lOr be used but the donor~~
.selected should possess the saIne blood group as the husband.
_.........;~
(i)
*.. .
is performed, in the following cases:
Where the husband is incapable of pelformin
the sexual act
~!tho]-!,gh he is feItile and capablEtOfoegetting c 1i~c reno Incapacity may
he due to impossibility of erection, malformation of the penis, premature ejaculation or an inability to enter the vagina due to vaginismus on the part wife. Where there is i!:labilit~.u~n:natozoa_ to. travel...!!.2yvargs in the uterus d~.lo...~.~tbn9~.~lit:U!!...lhe contents of the lTlucous..J:l~J9. the cervical canaL .....".--,,",-= performed in the following cases: (i) \Vhcrc the i.e. his semen contains either no "perms arc incapable of fertilising an ovum. ) 'Where the hush and suffers from hereditary diseases likely to be transmitted to children, e.g. haem.QPhilia ancT"hereditary ' - ,... .......-, ... blindness. ------.. (iii) 'Where there is iE.£Q.I!illati~ili!Y. ..2fthe blood of the husband and t~e wife as r~rds the Rh factor. As a resUTfof1Itts-rrr~i lity, the child of such would suffer from erythroblastosis and \vollld be likely to die
-,
,~.
-
~
-
-~~
3-LEGAL
There is no legislation with regard to aItificial insemination in 2:!!Y s.£~i;:Li.l~ the _wo~
412
fl'lE DICAL LAW AND ETHICS IN INDIA
-
In Maclennatl, v. Maclennan/ ..a case before the Scottish courts, the ".-' .... ......."'"'"---------"'. --'--" question of the legal effects of A.I.D. has been considered. An action of divorce was filed by a husband on the ground of his wife's adultery. It was admitted that the parties had not met after May 31st, 1954 and that the wife gave birth to a child on July 10th, 1955. The wife denied that she had committed adultery and said that the child had been con ceived as a result of miificial insemination bv was held that - a donor. It_.-'_. --. ----- "._--
~rt~ial i~§erninati0.!LJ2L1LdQno_Lqid not consti~ adultery.
The judge who tried the case defined artificial insemination as the process whereby the seed of the male is extracted from the male body, enclosed in a receptacle and inserted into the female sexual organ, pre sumably by means of a syringe, thereby reproducing in the end the same result as follows from the natural and unrestricted act of full sexual intercourse. "This scientific innovation on the natural process substitutes a syringe containing male seed for the male sexual and reproductive organs, and the act of conception, if the seed actually fertilises, is achieved without the presence of the male body. Technically, although ~ I have no particular knowledge of this, I presume that the woman could acquire the seed and operate the syringe herself, thereby excluding the ( presence of any other person during the actual insertion." (!'our propositions emerge from the judgment of the Scottish Court. Theyare: (i) For adultery to be committed there must be two parties p)JX~ sic ally pres.e..!lLand engaging in the sexual act at the same time. -(ii) To constitute the sexual act, there must be an act of union involving some degree of penet:~
t
----~~---"--
-<-~"~-~.~
1 2
(1958), The Timps, Scottish Law, p. 12: (1959), Medical Annual, p. 289. Samford v. Sapsford; (1954), Vol. II, All E.R. 373.
ARTIFICIAL INSEMINATION, STERILISATION AND EUTHANASIA 413
an old Canadian casel which held that a wife who had a child through A.LD. committed adultery. The Canadian court took the view that the offence of adultery consisted not in the moral wrong of mutual sex.ual intercourse but in the voluntary surrender to another person of the re productive powers or faculties of the guilty person and any submission of those powers to the service or enjoyment of any person other than the husband or the wife came within the definition of adultely. The status of a child born of A.J.D. is not altered by the decision in Maclennan v. Maclennan 2: the child would be illegitimat0 -"
Section
--~~~~-~-
4--MEDICAL ETHICS
Does artificial insemination run counter to medical ethics? The: answer is definitely in the negative. There is nothing contrary in the {_ codes of medical ethics of the United Kingdom, of the United States of ; America or of India that prevents a medieal practitioner from per J forming artificial insemination.
Section
.5-PrrFALLS IN INSEMINATIQN
There are three pitfalls to be guarded against by the practitioner administering artificial insemination. They are: (i) an allegation of negligence; .,/' (ii) an allegation of adultery; and ,.... (iii) an allegation of conspiracy.,..... Negligence: Just as in any other surgical or medical operation un--t dertaken by a. medical practitioner, so also in artificial insemination, J it is expected of him that he will exercise that of reasonable care i and skill which an average medical man is presumed to possess. The following may be considered acts of (i) Failure to use proper semen. (ii) Th~' Q.c;cuEr~12~~-;;I s~i~irlliitis, i.e., the inflammatioll of the Fallopian tUbes ilii?~2~ tmlty techni9.!}e at the tirne of intro duction of the semen. Section
6-SUCGESTED SAFEGUAHDS
A practitioner undertaking artiHcial insemination should take the following precautions: First, the practitioner should obtain a signed document from the patient and ller hushand setting'-f5ntl~the~'(Tesii~~orboth p'?iil:leS, ariartreaecmed consent] of each to the artiHcial insemination. v. Orford; British & Empire Digest, Vol. 27, p. :3l2, item 126; 58 D.L.R. 25l. The Times, Scottish Law, p. 12; (1959) i\Iedical Annual, p. 289. forms ot consent, sec on Consent.
414
MEDICAL LAW AND }:,:THlCS IN INDIA
.'
Secondly, the practitioner should make. and ~~jul1sl~cal. resouJ of the details of the procedure followed, indicating the source of the semen together with the essential dates and the marital data. . Thirdly, ;.Lf~w_a1.~..J1::!~.sh?.slg. be.J?re~~~ when a patient is insemi nated. Fourthly, the practitioner should explain to the parties in the presencet' of an impartial third person (conveniently, the nurse) the reasons for th~..)egal~_gQcllments involved, and the signature of tlieth'ird part)1s1iould be obtainecr as witness. Fifthly, the I.l~,~ of.!hi? dO.llQ.r..1hou14,.JlQtl?~glg.§..ed .1:0 the husband or the Wire and the name of the married couple should not he given to the donor. ' Sixthly, the donor should furnish the practitioner with a signed state-l' ment signifying his knowledge and his consent to the use of his semen for artificial insemination. If the donor is married, a similar statement of knowledge and consent should be obtained from his wife to obviate a subsequent accusation of adultery.
.
Section 7-THE FEVERSHAM COMMITTEE REPOHT A committee was appointed as a result of a debate that took place in the House of Lords on February 26th, 1958 on the judgment of Lord Wheatley in the Scottish easel wherein it was held that A.LD. was not adultery. The following were the terms of reference to the Feversham Committee: "To enquire into the existing practice of human artificial insemina tion and its legal consequence and to consider whether, taking account of the interests of individuals involved and of societv as a whole. any change in the law is necessary or desirable." 'The recommendations were as follO\vs: A. I. H.-The fact that a live child has been born as a result of artificial insemination of a woman with the seed of her husband (A.I.H.) should be a bar to proceedings by either spouse for nullity. of marriage on the ground of imp<)tency. A.I.D. -(i) Acceptance by a wife of artificial insemination with the seed of a donor without the consent of hCLJmsband should be made a new groufl(t-tordfvoi.~_e--or judicial separation and, in England, these circumstances should also enable a husband to matrimonial proceedings in a magistrate's court. (ii) The law should not be amended to pernlit a decree of nullity of marriage to be obtained on the ground of sterility. (iii) The fact that a live child has been born as a result of arti ficial insemination of a woman bv the seed of a donoI', to which the parties to the m arriage ~~IS_~l}!E'9:' shouldbe--a-b a1' to proceedings by either spouse for -nullity of marriag(' the ground of impotence. ..... - .. -.. ---.-~., 1
j\;]aclennall v. Maclennan, (1958), The Times, Scottish Law, p. 12; (19.59) I\lcdicaI Annual, p. 289 ..
AHTIFICIAL INSEMINATION, STERILISATION AND EUTHANASIA 415
(iv) The law of Scotland should be amended to give a child born of A_J.D. to which" husband has consented, the same rights of maintenance as given to a!l£ldQpted child and. in England, the child should be entitled to claim on the hus band's death that provision for his maintenance be made out of the deceased husband's estate. (v) There should be no amendment of the la\vs relating to legi timacy or registration of birth. (vi) The law should not be amended to enable a wife to take proceedings for divorce on the ground that her husband has donated scmen for the purpose of A.I.D. without obtaining her consent. (vii) While the practice of A.I.D. is strongly to bc discouraged, it should not be declared criminal 9r be regulated by law.f(
Part ill EUTHANASIA
Section
l-DEFINITION AND LEGALITY
Euthanasia has been defined in many ways. It is essentiaJJy.the 4~ctrig~t when, oyving to disease, senility, or the like, ~ers.£is We_ QE.s~rmanently ceased to be eit~£ agreeable or useful, the su!!~reI sJ~,£uld be painlessly killed either J2.v himself_or another,~ At law no doctor can take life deliberately as an act of mercy and even at the direct request of the patient or the patient's family. If he does, he is liable to be punished. Therefore, even if a medical practi tioner feels that a particular patient is suffering acutely and miserably and that there is no remedy on earth which could cure or relieve that patient, these facts will not entitle him to perform mercy killing. In a sensational case, !lex v. Adams,2 a doctor was accused of mnr der by the adminis~tion of an excessive amount of a sedative drug to his eighty-one year old lady patient who was in the later stages of a serious illness. The jUlY retumed [I verdict of "Not Guilty" on the seventeenth day of the longest murder trial recorded in Great Britain. Me Justice Devhn, before whom the trial took place, began his sum ming-up by defining murder as "an act, or a series of acts, which are intended to kill, and do in fact kilL" He then said, "y ou have heard a good deal of discussion. during the evidEnce about the circumstances in which doctors might be justified in admini stering dmgs vvhich would shorten life. Cases of severe pain were suggested and also cases of helpless misery. The law knows of no special 1
Medical Ethics, by Doctor Davidson, p. :35. The Medical Annual (1958), p. 244; (19.57) The Times, October 14, 15; (1958) Vol. I, British Medical Journal pp. 712, 771, 828, 889, 954.
416
MEDICAL LAW AND ETHICS IN INDIA
defence of this category. But that does not mean that a doctor who is aiding the sick and dying has to cak'lllate in minutes or even hours, perhaps not in days or weeks, the effects on a patient's life of the medi cines which he will administer. t'If the first purpose of medicine-the restoration of health-can no longer be achieved, there is still much for the doctor to do, and he is entitled to do all that is proper and necessary to relieve pain and suffer ing even if the measures he takes may incidentally shorten life. There are cases in hospital where a doctor prolongs or shortens life by hours or perhaps even . The doctor who decides to administer the drug or not is not thinking in terms of hours or months of life. He could not do the job if he were. If, for example, a doctor has done something or omitted to do something and death occurs, sayan the 11th or 12th or on the IVlonday instead of the Tuesday, no one with common sense would .say the doctor caused the death. They would say the cause of death was the injury or whatever it was that brought her to hospital. It re mains a fact and remains the law that no doctor, nor any man, has the right to deliberately cut off life." j To put the effect of what the leamed Judge said in other words, killing a patient cannJ2.LJJiLl!!§!.ified OIl. the ground--.!l}
1
. ARTIFICIAL INSEMINATION, STERILISATI00J AND EUTHANASIA 417
not to be indulged in by medical practitioners, nevertheless, circum
stances might justify a doctor in doing all that is proper and neces'>ary
according to the standards of the medical profession to relieve pain and
suffering even if the measures he takes may, incidentally, shorten life,
provided it is not the intention of the practitioner to cause the neath
of the patient by the measures he adopted.1
In a recent Japanese case/ the Nagoya High Court ruled that mercy
killing does not constitute murder if it is carried out on 111edical and
social grounds. The Court laid down the following six conditions:
(i) that the victim must be suffering an incurable illness and that death is imminent;/ (ii) that he must suffer from unbearable pain, obviolls to anyone;'/ (iii) that the purpose of the mercy killing is the relief of pain; 1 (iv) that the ailing person's conscience is clear, and that he, in all :,eriousness asks for or approves the mercy killing; /' (v) that it is performed by a physician, unless that is not possible, and/' (vi) that thc method of killing is morally acceptable./'
Section II-Two
OPI)OSING VIEWS
Opposing points of view for legalising euthanasia may be briefly stated. l110se who advocatf- euthanasia I.?l©acL that it is an act of 111!!yIanity to give painless and dignified death to one whose life is graduaHy declining to a tortured and hideons death. Is it necessary, they that a man should go through intense suffering and pain? Of what use is such' a life to the sufferer himself? Is it not better to put an end to prolonged and hopeless suffering which increases day by day rather than drug that body and prolong its suffering? In these circum stances, it is suggested that if the patient himself is willing, he should be given a painless and dignified death. There could not have been a more poignant plea for legalising euthanasia than \vhen deformed babies v"ere boru after their mothers had taken Thalidomide (Distaval). The Blitish Home Secretary, Mr. Heury Brooke, tumed clown a suggestion made then that he should introduce legislation authorising doctors to per form euthanasia in future cases of extreme deformity "in view of the number of deformed children now being bom as a result of the prescrib told the House of Commons in a written reply ing of the Distaval." to a question from a Conservative member, "On the information at present before me, including the considera tion that this drug ,vas withdrawn in Novemher, 1961, I should not 1
The Times of Iudia, December 26, 1962; Free Press Journal, Deeember 2,1, 1962.
418
MEDICAL LAW AND ETHICS IN INDIA
feel justified in introducing legislation to amend the law in ths respect, or to make it lawful to take the life of a child already born." t As against this, those who advocate the opposing view point out that the advance of medical science is so great and so rapid that it will some day render euthanasia unnecessary by relieving pain and curing diseases at present incurable. If euthanasia is legalised, an effective impetus to the advance of medical science for curing diseases at present incurable will be removed. There is also the religious point of view. Some believe that He who gave life alone can extinguish it-that it is irreligious and immoral to take life, which only God has the right to put an end to. Further, like all good things, euthanasia may be abused., The Fourth General Assembly of the World Medical Association, held in 1950, passed the following resolution1 on the subject of euthanasia : ""'l1ereas the Council of The World Medical Association believes that the practice of Euthanasia is contrary to public interest and to medical ethical principles as well as to natural and civil rights, and "'Whereas, such practice is contrary to the spirit of the Declaration of Geneva, therefore "BE IT RESOLVED that the Council of The World Medical Asso ciation in session at Copenhagen, Denmark, April 24-28, recommends to the national medical associations that they condemn the practice of Euthanasia under any circumstances." In incurable cases, where patients go through immeasurable pain and suffering, the doctor may do well to remember: a~~(1.~!' sh(111!!.Qt ~iJL by:! netjdst!~v!!...-officiou€l1LJg_k.~.P .~~E!i:
1
(1951) Vol. 3, World. M~edical A.ssociation Bulletin, p. 95; see also Voluntary "Mercy Deaths by his Honour Judge \'1.. C. Earngey in the Medico-Legal Review, (1940) VoL 8, p. 91; Socio-Legal Aspects of Euthanasia by ArthUT A. Levinsohn, (1961) Journal of Forensic Medicine, VoL 8, p ..57.
CHAPTEPc XIII
MENTAL DEFECTS AND DISORDERS
================~\
Part I
THE INDIAN LUNACY ACT
Part II
GENERAL PROPOSITIONS OF LAW
Part III
MEDICAL AND LEGAL INSANITY
Part IV
FORMS OF INSANITY
Part V
EXAMINATION AND CERTIFICATION
Part VI
CONSEQUENCES OF LUNACY
(
Part I THE INDIAN LUNACY ACT HE statutory law in India 011 the" subject of lunacy is partly contained in the Indian.. Lunac:y.Ac:t,...JJll~ ..... Section 2(5) thereof ... dgJiues.J!:.)unflti~ ~.
T
-_
,-,
,
420
MEDICAL LAW AND ETHICS IN INDIA
Yet, this definition, broad as it may seem, and the other provisions of the are inadequate in the context of contemporary knowledge of the working of human mind and of the grcat strides vvhich psy chiatry has made. The Act is an ancient document: that is apparent from the year of its enactment. It needs to be revised, for it has re mained unamended save for a few very minor changes. Till lately, the English law on the subject was to be found in several enactments made and modified from time to time. But even this was not considered to be in keeping with the pace of psychiatric knowledge and a new piece of legislation on the subject was enacted in the shape of the Mental Health Act, 1.959. It is a formidable and comprehensive document. Such an enactment is very necessary in this country. ~. gr~ps of men~pa~......:'lre c~rfd ~r the;
.-=~ch
several tenns lIscd for the classification of mental illness are defined in the English Act as follows: "Severe - a state of arrested or incomplete develop· ment of mind \vhich includes subnormality of intelligence, and is of such a nature or degree that the patient is incapable of living an independent life or of gu~rding himself against serious exploitation, or will be so incapable "vhen of age to do so. ~. "~~l~'£E!nali~i.' a state of arrested or incomplete development of mind (not amounting to severe subnormality) which includes subnor mality of intelligence, and is of a nature or degree whieh requires or is suseeptible to medical treatment or other special care or training of the patient. h "?-'lental- disorder" -mental arrested or incomplete develop ;J -.-- ment of mind, psychopathic disorder, and any other disorder or disa bility of mind. ~ "Uy_ch.o..J.?!lthic disorder"-a persistent disorder or disability of mind (whether or not including subnormality of intelligence) which results in or sCliously irresponsible conduct on the palt of abnormally the patient and requires or is suseeptible to medical treatment. Referring to these groups, Dr. H. C. Beccle l says, "The first two categories comprise what were, broadly speaking, described as mental defectives, that is to say, those manifesting arrested develop ment of mind. They include: ~~~~-~<-
,-.~.
Group (i) Group (iil 1
the severely abnormal-that is, idiots and imbeciles; the subnormal-tlmt feeble-minded persons and dullards.
In a lecture on "Projected Jl.lt:c!ico-Legal Journal, Vol. ]l.fcLellall, Bnrristcr-at-La\v,
ill Mental Health Lou;s" reproduced in the 4. See also "Aleutal Health Act" by E. B.
1960, Il. 2:38.
I
IvlENT AL DEFECTS AND DISORDERS
421
GroU]) (iii)
roughly covers psychotic disorders such as depression, ex citement, schizophrenic-paranoid illness, organic psychoses, and the like.
Group (iv)
is the new experiment and it relates to psychopathic illness which can be construed as meaning severely aggressive or irresponsible conduct. This is a courageous attempt to gild the psycho~athic pill so that it shall be legally acceptable to the judiciary who have hitherto not infrequently res ponded to this term with blistering invective and acrid dis quisitions on psychiatry.and psychiatrists."
l
The Indian Lunacy Act makes provision for the reception, care and treatment of lunatics, for the custody and management of a lunatic's l) estate, for judicial inquisition1 as to lunacy and for other incidental ( matters.2 Only the following persons can be received and detained asylum:
111
an
(i) a climinal lunatic; ./ (ii) a person who is found by judicial inquisition to be a lunatic,/ (iii) a persoll against whom a reception order has peen passed;'/ (iv) al~ alleged lunatic against whom an enquiry is pending and who, in the opinion of a hIagistrate, should be detained pend ing inquiry; . / (v) a wanclering or dangerous lunatic or a lunatic who is cruelly treated or one who is not kept uncler proper care and control by his relatives may, pending an enquiry into his lunacy before a lvlagistrate, be detained by the l\fagistrate before whom he is proclliced for a period not exceeding tcn days;./ (vi) a person against whom an order or warrant for reception and detention has been made or issued by any court or tribunal beyond India in the exercise of jurisdiction conferred by Govern ment or by the law of Burma; .-' (vii) a voluntary boarder can only be received provided his written application has been approved by two of the visitors of the asylum; such a voluntary boarder must be released within twenty-four hours of his having given notice in writing of his desire to leave the asylum; .".,. (viii) criminals against whom orders for reception and detention arc made under Sections 466 and 471 of the Code of Criminal Pro cedure, Section 30 of the Prisoner's Act, anel Sectiou 103 A of the Illdiall Army Act. 1 2
Part III of the Indian LUIl(lcfj lict, 1912. The law regarding criminal liability is stated ill the Indian Pellal Code; regarding capacity to enter into contracts and make wills is stated Indiall Contract Act and the Indian Succession Act respectively and the garding the effect of insanity on marriage and di,·orcc i:; to he fOllnd varions statutes on matrimony.
the b\\.' in the law re in the
MEDICAL LAW AND ETHICS IN INDIA
422
Reception Order. A reception order cll.I:L 0111:. be Ra~~(1.J;D::_!~:~1agistrate on a written application made to him. The application should be s.~,ted. bv-1~ medical certificates. One of these certificates must be from a Medical ..' - " .. Officer. A Medical Officer is a Gazetted Medical Officer in the service of· the Government and includes a medical practitioner declared by general or special order of the State Government to be a Medical Officer for the purpose of the Indian Lunacy Act. An application for a reception order should as far as possible be in the following form: -~
~,--,
,,.-~,.,~--,,-
In the matter of A.B.l residing at.. ........ "' ...... " .. " ...... , by occupa tion ................................ son of .. " ...................., a person alleged to be a lunatic. To Pr~sidency Magistrate, for [or or or IV
District Magistrate of ............ ". . .. .. .... , Sub-Divisional Magistrate of .................. , Magistrate specially empowered under Aet of 1912 or .................................. ., .J.
The petition of C.D.2 residing at ............... , by occupation.......... .
son of .... "... . ................ , in the town of ............. .... [or sub-division
of. . ......................... in the district of ..................... J
1. I am .......... ................ 3 years of age.
2. I desire to obtain an order for the reception of A.B. as a lunatic 111 the ............. "........ asylum of.. ...... "" ... ".. . situate at l ........... . :3. I last saw the said A.B. at .. . ..... ".... . on the day of.. .... . 4. I am . . .. .. ... " ........... 5 of the said A.B.
[Or, if the petitioner is not a relative of the patient, state as follows]
I am not a relative of the said A.B. The reasons why this petition
is not presented by a relative are as follows: .............................. .
[State them.]
The circumstances under which this petition is presented by me are as follows :............................... . ............................... .. rState them]
5. The persons signing the medical certificates which accompany the petiiion are" ...................................... . 6. A statement of particulars relating to the said A.B. accompanies this petition. Full name, caste and title. Enter the llumber of completed years. The petitioner must be at least eighteen or hventy-one whichever is the age of majority under the law to which the tioner is subject. Insert full of the name and loeality of the asylum or the name, add ress and descripioll of the person in of the asylum. I A within 14 days before the date of the presentation of the petition is requisite. o Here state the relationship with the patient.
li H,'t'(o state whether either of the persons signing the medical certificate is a
relative, partner or assistant of the lunatic or of the petitioner and, if a relative of either, the exact relationship.
1 2
MENTAL DEFECTS AND DISORDERS
. 423
7. [If that is the fact.] An application for an enquiry into the mental capacity of the said A.B. was made to the .............................. . on the.......................................... and a certified copy of the order made on the petition is annexed hereto. [01', if that is the fact.] No application for an inquiry into the mental capacity of the said A.B. has been made previous to this application. The petition therefore prays that a reception order may be made in accordance with the foregoing statement. (Sd.) GO. The statements contained or referred to in paragraphs ............. . are true to my knowledge; the other statements are true to my informa tion and belief. (Sd.) GO.
Dated .....
STATEMERT OF PARTICULARS
[If stated.]
(11111
of the particulars in this staternent is not known, the fact to be so
The following is a statement of particulars relating to the said A.B.: Name' of patient in full: Sex and age: Married, single or widowed: Previous occupation: Caste and religious belief, as far as known: Residence at or immediately previous to the date hereof: Names of any near relatives of the patient who are alive: \Vhether this is the first attack of lunacy: Age (if kno\'vn) on first attack: \Vhen and where previously under care and treatment as a lunatic: Duration of existing attack: Supposed cause: \Vhether the patient is subject to epilepsy: Whether suicidal: \Vhether the patient is known to be suffering from phthisis or any form of tubercular disease: 'Whether dangerous to others, and in what way: vVhether any near relative [stating the relationship] has been afflict ed with insanity: vVhether the patient is addicted to alcohol, or the use of opium, ganja, charas, bhang, cocaine or other intoxicant: The statements contained or referred to in paragraphs .............. . are true to my kuowledge. The other statements are true to my in formation and belief. (Signature of person
making the statement.).
If thc persons signing the medical certificates are relatives, partners or assistants of the lunatic or of thE. petitioner, these facts should be
424
MEDICAL LA \V AND ETHICS IN INDIA
mentioned in the petition. If the person signing the petition is a reIa tive, the petitioner should state the exact manner in which he is related to the lunatic. If any previous application has been made for an enquiry into the mental eapacity of the alleged lunatic in any court, this fact should be set out and a certified copy of the certificate made thereon should also be attached to the petition. This procedure of making an,. appication for a reception order is permissible only in the Presidency i towns, unless the State Government has by order or notification allowed ~ such procedure to be followed in any area outside the Presidency towns) N O~J?~S~Ul Eresent a petition unless he is a major and·· has, within fourteen davs before the 2!.E;?~!ation of the petition, personally seen the lunatic. ~J;ll:.ese!lL!he... 2etition belon~i!~.Jll!Lfil.~L instance to the husband or wife. If there is no husband or wife or the husband or wife is prevel1ted by reason of insanity, absence from India or otherwise from making the presentation, the petition may be pre sented by the nearest relative. The ~vlagistrate before whom the petition is presented must consi der the allegations in the petition and the evidence of lunacy appearing in the medical certificates. He i~ entitled, if he thinks fit, to personally e~~!!SLthe alleged Iunati£.:.. m3.yass a r~~~.tion order f9.rt!.Dyitl! ~E... he_..m~L fix .!1... date fuL.c,uw;id~ration of th~~tiq!!. In the ] :ltter event, he must give notice to the petitioner and to any person to whom, in his op mlO.Il, notice should be given. The petition must be considered in private in the presence only of the petitioner, the alleged lunatic, any person appointed by the alleged lunatic to represent him and such other persons as the ~1agistrate thinks should be present. The Magistrate may, in his discretion, not hear the petition in the presence of the alleged lunatic. Hn the following cases reception orders can be passed otherwise than on a petition: (i) \Vhen any European has been declared a lunatic in accordance with the provisions of the military, naval or air force regulations and it ap' pears to any administrative Medical Officer that he should be removed to an asylum, such administrative Medieal Offieer may make a recep tion order. (ii) In case of wandering or dangerous lunatics, an Officer in-charge of a Police Station is authOlised to arrest such persons and take them before a ~1agistrate. The Magistrate must examine such persons and, if he is satisfied that such persons are lunatics, may make a reeep tion order. If, however, he considers it necessary that such persons should be examined hy a Medical Officer, he may pass a reception order
--_._._------
~;lENTAL
LeLLlL(U
DEFECTS AND DISORDERS
42,5
Officer \'vho examines such persons gives the required
medical of a Police Station is also authorised to report to a l\ciagistrate if he that any person is a lunatic and is not kept under proper care control or that he is cruelly treated or neglected. On such report, the l'vIagistrate may require the lunatic to be produced before him. If Magistrate finds that the lunatic is not properly cared for he may make an order for the proper care and treatment of the lunatic. If, in spite of such order, the lunatic is wilfully in charge of the lunatic is liable to be sentenced to a terro of imprisonment extending to one month. If there is no one who is legally bound to maintain the lunatic, and even other wise, the Magistrate may pass an order for the reception of the lunatic in the same manner in which he is authorised to pass an ordcr fo-c the reception of wandering or IUlUltics. The powers of the Magistrate in respects can be exereised in the Presidency towns by the Commissioner of Police. Pending re moval to an asylum, a person may be detained in suitable custody as directed by the Magistrate. t·
I
Discharge of Lunatics. Except in the case of European lunatic soldiers, sailors or airmen and criminal lunatics, persons detained in ~ asylums are entitled to be discharged if of the asylum, of whom one shall be a Medical Officer, by order in direct their, discharge. In the case of criminal lum..tics and lunatics in the armed services, special provision is made. Lunatics can also be dis charged on an order of discharge being by a proper authority on the undertaking of relatives that due care shall be taken of the hmatics. If lunatics detained in asylums on reception orders are sub sequently found by any judicial inquisition not to be of unsound mind. they are to be discharged.
i
Part· II GENERAL PROPOSITIONS OF LAW Before discussing in detail the civil and criminal law in India on the suhject of insanity, it is necessary to note the following positions of law by which courts in this country arc guided. (i) Every man is presumed to bec sane until the contrary is proved and this presumption holds good both in civil and in criminal cases. In the case of a \vill, however, it is the duty of the exeClltor or any person setting up the \\-ill to show that it is the act of a competent testator.
426
MEDICAL LAW AND ETHICS IN INDIA
(ii) A sane man must be presumed to be wholly responsible for his actions and to intend their consequences. (iii) \Vhere a person has been proved or is admitted to have beenj. mentally disordered so as to be incapable of making a contract or dis- j position, the law presumes such a condition to continue until it is proved '\. to have ceased. There is a presumption of continuance of mental dis, order; therefore, the burden of proving recovery or a lucid il1terval,! as the case may be, lies on the person alleging it. The evidence to prove , recovery or a lucid interval must be strong and demonstrative. (iv) There S::!!!.~.~ be JL..gyn~_ a.c!. u~les~ there_~. a g~ (lnens rea). A enme, even though It lIlvCiIves a physlcarettort, has Its origin in the mind. An insane person cannot possess a guilty mind. (v) Except as provided by law, no person can be deprived of his liberty or his right to manage his own affairs. Medical grounds or medi cal opinion are no substitute for provisions of law and, therefore, medical opinion and medical grounds, by themselves, do not justify the deprivation of a person's liberly. (vi) ~-R~;:>!L~'Vh.Q..1~,..llIQQounc~d ins~e from_the I~~lJ?2.int of view is not necessarily insane from the legal point or--view. "
~"'-"'~
Part III IvIEDICAL AND LEGAL INSANITY
From the medical point of view, lunacy may be broadly defined as a defective working of the supreme regions of the brain which acti vate a person's conduct. There is, however, a distinction between medi cal and legal insanity. Courts are concerned with the legal and not with the medical view of the question. A criminal may be suffering from some form of insanity in the sense in which the term is used by medical men but he may not be suffering from unsoundness of mind as described bv Section 84 of the Indian Penal Code. If the facts of a particular case show that the accused knew that he had done some -,~--~----.---~.- .. .. -.-•.--~-"'.---- --'-'thing wrong, it does not matter that ·he might be insane from the ~nedical p~i~t _...- . of' _view.1I~ - matrimonial and civil matters also, the legal view" of insanity prevails over the medical view when there is a conflict between the two. 2 "It is important to recognise that in ~~ll aspects of the relationship between psychiatry and the law, it is in fact the law which calls the tune."3 As the question of insanity more frequently arises in criminal than in civil cases and as the difference between medical and legal insanity ~
. ....
-.-,""_ .. , ' -..,."_d.....-._.,
~
...~"..-_ ..~_".~'-- ............ ="""'"
•
......,-....
--------."----.--
Ambi v. State of Kenda (1962) 2 Cr. L.J. 1.'35 (KeL); Queen v. Lakshman, LL.R. 10 Bombay 512; Kanbi Kur;i Duba v. State, A.I.R. (1960) Cui. 1. 2 Titli v. Alfred Jones, LL.R. 56 AJI. 428; Raikwnar v. Ram Sunder, A.LB. (1932\ P.C. 69; Elphinstone v. Elphinstone (1962) .2 AU E.R. 966. 3 Taylor's Principles and Practice of i\4edical Jurisprudence, 11th edition, p. 545. 1
~vIENT AL
DEFECTS AND DISORDERS
427
often debated in criminal cases, we will consider here the defence of
insanity in relation to crime.
The defence of insanity in criminal cases is to be found in ~~,eeti9I1~4 of the Indian Penal2ocie", which is reproduced below; . "Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing ," the nature of the act, or that he is doing what is either wrong or contrary; to law." Section 84 embodies a fundamental maxim of criminal law, viz., that
-an act does not constitute guilt unless it is done with a guilty intention.
In order to constitute a crime, the intent and the act must concur, but
no culpability is fastened on insane persons as they have no free will
~and can, therefore, have no intent.
,. It is necessary for the application of Section 84 of the Indian Penal
C ode to show (a) that the accused was of unsound mind; (b) that he was of unsound mind at the time he committed the act, and that, as a result of unsoundness of mind, he was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law.' A careful study of Section 84 of the Indian Penal Code will show that it is not every person mentally deranged who is ipso facto exempted from criminal responsibility. 1 The law in England on the subject of insanity is to be found in tlw leading case known,as McNaghten's Case.? In 1954, an American courtJ rejected test in McNaghten's Case and adopted what is now knowrl as the Durham Test; the test is this: an accused person is not crimi nally responsible if his unlawful act is the product of mental disC':1se or mental defect. The principle in Durham's Case was given a mixed ( reception by courts of the United States. The application of the I test is likely to abolish the difference between the medical and legal) view of insanity. In India it has been held~ that the provisions of : hon 84 of the Indian Penal Code are, in substance, the same as those l laid down in the McNaghten's Case. In "McNaghten's Case, the following passage, which has been cited with approval in several Indian decisions, appears 5 : IS
t
; Rustom Ali v. State, A.In. (1960) AlL :33:3 at).36; Kanbi Kurii Duba v. State, AJ.R. (1960) Cuj. 1 at 2. 2 (1843) 10 CL and Fin. 200. :1 United States Court or Appeals of the District of Columbia in Durham v. United States, 214 F. 2d. 862. 4 Kanbi Kurii Duba v. State, AJ.R. (1960) Cui. at 2; Kalicharall v. Emperor, AI.n. (1948) Nagpm 20. c. For example, Kalicharull v. Emperor, A.LH. Nagpur 20 at 2:3.
r'-'
•
428
MEDICAL LAW AND' ETHICS IN INDIA
~ "Insanity not only the cognitive faculties of the mind which guide our actions, but also our emotions which prompt our actions, "and the will by which our actions are perfonned............... It is only unsoundness of mind which materially impairs the cognitive faculties of the mind that ean form a ground of exemption from criminal responsi bility, the nature and the extent of the unsoundness of mind required being such as would make the offendel incapable of knowing the nature of the aCt, or that he is doing what is wrong or eontrary to law. Instances of unsoundness of mind of this description would be such as these. A person strikes and in ~onsequence of an insane delusion thinks he is breaking a jar. he does not know the nature of the act. Or he may kill a child undcr an insane delusion that he is saving him from sin and sending him to heaven. Here: he is incapable of knowing by reason of insanity that he is doing what is morally wrong. Or he may under insane delusion believe an innocent man whom he kills to be a man that was to take his life, in which ease by reason of his insane delusion, he is incapable of knowing that he is doing what is eontrary . to the la"v of the land."~. \Ve will now discuss two criminal cases which bring OLlt the differ ence between medical and legal insanity.l In a case decided by the High Court of Bombay in 1886,2 the accused killed his two young children with a hatchet. The reason given for the crime \,\'as while he "vas him. It W
LakslwwlI. LLR. fo ' .. State of Kemlli, (19fl:2) 2 Cr.
51~.
141.
MENTAL DEFECTS AND DISOHDERS ~~
native village and manied the deceased in January, 1959. The ac .s.~d, his mother, his sister and his wife were living together. vVhilst-\11:~~; mother and sister were away on a visit the accused began to ill-treat and beat his wife. On January 4th, 1960 the accused went to another village to purchase medicine for his mother. He returned with the medicine and his mother asked him to change his clothes and take his meal. The accused went to the kitchen and the deceased served him with food. The sister then heard an exchange of words between the accused and the deceased from the kitchen. The accused asked the deceased, "vVhom were you looking at and with whom were you talk~ ing?" The deceased said she had not looked at or spoken to anybody. The sister then told the accused that he should not talk to his wife in that manner as she was not a woman of that type. The accused told the sister that it was none of her business. The mother hearing the conver sation came to the kitchen and advised the sister to go away. While the sister was leaving the accused followed her and beat her with his shoes. Thc accused then went inside the house and asked the deceased to give him al! her jewels. The deceased immediately obeyed. The accused then went to the kitchen, returned with a chopper and hit the de ceased on the head. The accused, after the incident, on seeing three neighbours coming towards the house, threatened them that if they dared to enter the house, they would be killed. He closed the door and - went inside. Thereafter, he told three persons that he had killed his wife and that they could inform the authorities; he also made an extra judicial confession 'to two other persons that he had murdered his wife and the village munsiff could do whatever was necessry. At the trial, the superintendent of the Mental Hospital, Madras, de posed that he had treated the accused between April 19th, 1959 and May 7th, 1959 and in his opinion the accused was suffering from schizo phrenia. The doctor spoke of the symptoms which he had noticed-no inclination to secure employment, loss of all iuitiative, a sense of jllst drifting in life, littk tOllch with reality, living in fantasy, poor ideas, unsatisfactory sleep, taking life easy and capable of being easily led or misled. Commenting on this cvidence the court said, "......... the evi dence of the doctor would at the most show that the accused was not mentally a normal perSall. This cannot amount to legal insanity." Examining the entire evidence, the court was of the opinion that the conduct of the accused was consistent with that of a sane, but highly jealous husband. The court observed that the con duct of the accllsed was such as to show that he was conscious of the nature of the act he had done. The court opined that the accused's
430
MEDICAL LAW AND ETHICS IN INDIA
conduct showed that he was perlectly sane, knew that what he had done was worng and was prepared to suffer the consequences of his wrongful act. It was clear that the accused was conscious of the nature of his act and, if he was conscious of its nature, he must be presumed, notwithstanding the medical evidence, to have been conscious of its. criminality. The following are the general principles which emerge from the decided cIiminal cases in each of which insanity was pleaded as a defence: (i) Every man is presumed to be sane and to possess a degree of reason sufficient to be responsible for his acts, unles,<, the contrary is proved. 1 (ii) To establish insanity, it must be clearly proved that at the time of eommitting some act the doer is in so defective a state of mind as not to know the naillre and quality of the act which he does, i.e., the physical nature and quality as distinct from the moral, or, if he does. know the nature and quality of what he is doing, that he does not knov. that he is doing wrong. 2 (iii) If the evidence shows that the accused was conscious of the nature of the act, he must be presumed to have been conscious of his: crim~nality.~ . (Iv) The mere fact that an act was done without apparent motive is not by itself sufficient to establish insanity.' (v) The anteeedent and subsequent conduct of an alleged lunatic is relevant only to show what the state of his mind was at the time when the act ",;as done. In other words, so far as Section 84 of the Indian Penal Code is concerned, the court is only concerned with the state of mind of the accused at the time he did the act.s (vi) Qileer behaviour will not amount to insanity as eontemplated by Section 84 of the Indian Penal Code." ,
1
Part IV FORMS OF INSANITY Generally speaking, from the medical point of view, the following are the accepted forms of insanity:Amentia. T.hi~~ t? m_enta~ de?~ney. It is a state of [email protected]~ develo£.!!l.~.nLQfJ:h,.£.~. It is sometimes a sequel of infec!iolls fevers, -,~
--
~.---"-
I Stale of Madhya Pradesh v. Ahmacltdla, A.LR. (19.51) S.C. 998.
'State of Madhva Pradesh v. AhmaduIla, A.I.R. (1961) S.c. 998.
:l Queen v. Lakshrnal1. LL.R. 10 Bomhay 5] 2; Ambi v. State of Keraia, (! 962)
2 Cr. L.T. 135 (Ker.). 1/\1nbi v.· State of Kerala, (1962) 2 Cri. L.J. (Ker.) 13.5 at 141; In re Kalldasami Aiudali, AJ.R. (I960) Madras 316. " Kanhi Kuri1 Duha v. State, A.I.R. (1960), l. .. In re Kandasami Mudali, A.I.R. (1960) Madras 316.
431
MENTAL DEFECTS AND DISORDERS
sometimes it is induced by JEh!!Y.. and it may also arise from ~.inhe~(3nt 9~1.~£ which are difficult· tD ascertain. In the latter case, it is appro priate to describe a person suffering from amentia as an 'idiot'. Persons who suffer from amentia, that is to say, absence of intellect due to in herent defects of the mental powers, may be of three types (1) I!!!hecili:ty~ is a mingr fo~.of ...~~Sl' A person suffering from this form of insanity is incapable of ma!0gin~~ther him~ or his affairs. An imbecile child is incaRable...2f.. be~!.lL~ght. (2) Feeble-mindedness, is an ailment which does not approxi-, mate to imbecility. Nevertheless, a person suffering from this type of mental defect requires to be taken care of and controlled for the pro tection of the sufferer and of other people.
t
(3) Moral Imbeciles. Such persons suffeLfroJ!l-poral £..~~i,~ie~. No amount of training and education has any effect on a person suffer ing from this type of insanity. It is characterised by an !::xe~ssive d_~£.e.,~ ~f~gg,i~.!!L accompanied by a disregard for moral values. Confusional insanity. It is a mental state characterised by un-, stable atten!ion, poor perception of present reality, disorientation and inability to act coherently. This condition ~e.n ari:<;e~2-_~. ~-E~~ult .. Qf exhaustion after mental or physical strain or as a consequence of fevers, parti~ularly brain-fever. " - , - - -
I
Insanity due to alcohol and other drugs. Under this heading, the following fonns of insanity may be grouped together :- (1) Cocaine insanity. It is a condition produced by <:;on5t'.1nt.!!:!1i ~~~~ve addiction tQ.....Qoegin~. In this condition the patient 1.1lff~!~J2:02.!l visual hallucinations and delusions. ----~~ ---(2) Delirium tremens. This is a specific alcoholic insanity. It is produced by ha..bitual and excessive use of alcohol. It is characterised by terrifying hallu~ination;-;nd' tr~m~~f the l!..,!~ds and tongue. .. .. (3) Hashish insanity. It is induced by hashish. Hashish is rt~nlt drawn from the leaves and stem of Indian hemp. \Vhen hashish is chewed or smoked, it produces hallucinations, usually of a highly sensu ous type. The drugs that lead to addiction and consequential insanity are prin cipally--(i) Opium, (ii) Indian hemp drugs consisting of bhang, ganja and cherus, (iii) alcohol, (iv) cocaine and (v) Chloral hydras. Section 8.5 of the Indian Penal Code which deals with the condition -'--~----"-"'''-''---~' -~~--~.~'~"-"~ of being non compos mentis Q}l~Count of drunkenness reads as follows:
'-
,.~
~''';''
"Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature
f
432
MEDICAL LAW AND ETHICS IN INDIA
I
of act, or that he is doing what is either \'.'rong, or contrary to law; provided that the thing which intoxicated him was administered to Mm without his knowledge or against his will." 1
I
\~~~~a!:y'slrunkenness is no excuse for th~Q...mm.i2§~~. of::!.~.:" If a
man is made drunk through fraud or ignorance or through any other means causing intoxication without the man's knowledge or against his will, he is excused for a crime committed during such a statc of drunkenness. Dementia. It is a condition produced by the excessive decline of f intellectual leveL It is often characterised by emotional apathy. ThiS, condition may be produced by physi<:al damage of the brain or by de- i generation of brain and nervous tissue. Epileptic Insanity. In a large number of cases, epileptic fits i? the patient do not lead to insanity. !?J!.L\yJll;lLe.uilim..!i£..ll.tL P.~~_Y.ID fre9l~~.!!.Lthel~,:,L1~ad ..!2....~anitl.:. Epilepsy may be described as a constant nervous disease of which the characteristics are fits of convul sion and loss of consciousness. A person who suffers from epilepsy is liable during a period of lapse from consciousness to act without volition and' he has no recollection whatever of those acts when consciousness returns. This condition is kno\vn as 'post-epileptic automatism' and \... such a condition has a definite medico-legal bearing inasmuch as, during lapse from consciousness, crimes may be committed by persons suffer-I ing from epilepsy. 1 Mania. It is a statc of excitement accompanied by excessive emo tion. Illind is hyper-active and the patient suffers from delusions. It is also characterised by incoherent speech and thought. / Melancholia. This disordered condition of mind is characterised by excessive low spirits.· The patient suffers from delusions of a very unpleasant type and lives in a state of brooding and fear. A patient suffering from melancholia is a potential suicide. / Paranoia. In this condition of mental disorder the patient s..!:.:f!e~ from delusions of grandeur arid delusions of persecution. He is nOl1 co~7U;-~ic~ti~' ;;clclisr'Cgards h~ sU~~ldillg~ A paJ~id is chroni cally introspective. Schizophrenia. It is a condition of split personality. A patient suffering from this type of insanity loses contact with his environment. / Manic-Depressive Psychosis. In this mental derangement, the person afflicted has alt<.?mate~riods of cla~~ In its 1
Baswalltrao Baiirao v. Emperor, AlB (1949) Nag. 667.
I
I
)1
MENTAL DEFECTS AND DISORDERS
433
carlier it goes in the name of 'cyclothnia' and in its extreme form it is known as 'manic-depressive psychosis'!. This form of insanity, as its name suggests, includes botb mania and melancholia. DEFINITION OF CERTAIN TERMS
Delusion. A delusion is a .false conception persistently held desQi!:e all eyid~.E.£e~the .-£.C2l1trm.:y; the common delusions are of grandeur, persecution and infidelity by one's spouse. Hallucination. An hallucination is a term which should be dis tinguished frorn the term, 'illusion'. In an hallucination, the person ~ntertains erroneou~ perc~tions without any stimulus fro111 outside, a!l,g e.x~en~s s~sat~ol1s ~ttQ...!!.0~x.t~.rrlaL2i1ill~~ these usually arise from a disorder of the nervous system, as in delirium tremens. A person may imagine that animals run over him or around him when no such animals exist or that he is being attacked by a lion when no lion exists; a person may hear voices and imagine a person speaking to him when no one is speaking and, in fact, even when no one is present.
-.
Illusion.' An illusion is an ~l11real or misle?-diQ&. image ££esented to. the vision. Illusions, as characteristic of insanity, may be described as f~~[;~ret£l!i.Qill...oLthilJgs which have real exist~. An insane person continues to believe in the illusions even though the real facts are clearly pointed out. Impulse. t This telm is important as the defence of insanity, parti cularly in criminal cases, is sought to be established on the ground that a criminal act was done on impulse. Impulse may be defined as an in citement of the..minciwhich leads to an abrupt and sudden act. An acfis-·all~~~t-~f-impulse when done WIthout a-ny pre-meditation or with Qut any motive. An insane person, having no judgment and no reason ing faculty and no capacity to perceive the true facts, may do things on impulse. But it should not be understood that the moment a man does an act on impulse he should be excused, for an average sane person has sufficient faculties to control an impulse.' Obsession. This expression is used when a single...id§a or emotion i.§.'pe.rB~'i.l;QnJlv.. ~!!1~.rtained b,LfLP..erSQJl. A wife may continuously be lieve her husband to be unfaithfuL Qf.co~s,e, he:3:!tl'!y h2~n bel..n,.gs also entertain obsessions. It is for this reason that it has been said that obses """" ~.,,-~----"'.. sion is a border line between sanity and insanity. However, one may distinguish obsession as a symptom at insanity from the normal charac teristics of an average sane person: if a woman continuously suspects 1
BaswGntrao Baiirao v. Emperor, AIR (1949) Nagpur, 667.
434
i'vfEDICAL LAW AND ETHICS IN INDIA
her husband of being unfaithful to her and accuses him of infidelity to her, even in spite of proof to the contrary being presented to her, this is a sign of her insm;lity.
Part V EXAMINATION AND CERTIFICATION For the examination of ::lleged lunatics the following points should be kept in mind: A certificate of insanity must not be issued on superficial or cursory examination. A certificate should not be issued on a single examination. T~ee examinations.Qll different days and at different hours are strongry r~c()E~lJ!l:~ncled. One of the reasons for carrying out more than one exami nation is that a person may behave curiously at a single examination due to injection of a drug or due to delirium caused by fever. It is well to remember that there is a marked difference be tween real and feigned insanity. Without being dogmatic one may say that the salient features of the difference between real insanity and feigned insanity are as fo11ows: Real Insanity.
Feigned Insanity.
(a) Absence of motive, e.g., no/ history of commission of crime.
(a) Existence of motive, e.g., cornmission of crime followed by a so-called attack. (b) The manifestation of the at tack occurs all of a sudden.
(b) The attack usually stalts gra dually. / (c) Predisposing factors or causes of occurrence of insanity are usually present, e.g. sleepless ness, malaise, irrelevant acts and incoherent speech; more over, history of occurrence of insanity in 'the forebears or of sudden monetary loss, gripf, etc. are usually available ....... (d) Ch aracteristic fixed expres sion, e.g. vacant look or fix{ d look of excitement. / (e) Signs of insanity in the form of conduct and conversation are present whether the pati~ ent is being observed or not(
(c) No such preuisposing factors present.
(d) Frequelltly changing, exagge rated, voluntary facial expres sions. Signs of insanity in the form of conduct and conversation arc manifested only when the patient becomes consciOHS of the fact that he is observed.
MENTAL DEFECTS AND DISORDERS
Real Insanity.
Feigned Insanity.
(f) Clinical signs <:md symptoms (f) Signs and symptoms are al are not variable but uniform. /' ways exaggerated and vari able, not resembling any par ticlliar mental disease. Presence of insomnia./' (g) The insomnia affected cannot persist for days; the patient sleeps soundly after a day or tvvo. (h) Able to stand exertion of fa (h) Cannot stand exertion for more tigue, hunger and sleep for than a few days; ultimately days together without breakbreaks down and can be ob ing down. /' ~erved to overcome exertion by surreptitiously eating, sleep ing and resting. Medical Certificates. Medical certificates as to lunacy, as reqliired under certain provisions of the Indian Lunacy Act, 1912, must be made and signed by medical practitioners or medical officers, as the case may be, and the certificates must be in the prescribed form.l
Part VI CONSEQUENCES OF LUNACY Lunacy imposes certain disabilities. It not only prevents a lunatic from entering into certain transactions and relationships but it also affects a lunatic's relationships and transactions entered into at a time when he was sane. Matrimonial Relationship. In India, there are several enactments relating to marriage and divorce. Most of these laws recognise a right ------, .. ~f~iy~~ on the groUI~.~.Y.r.ill(?urabl~ unsoundness of mind~eci:" fic continuous period. Further, a marriage between-!Wo-parties, ~ther 9f whoJ:rL.was of.J!.rJ~d mincLat the ....lime of marriage. i?'_5:.~m-. sidered void. In an actioni to declare a marriage void on the ground ~"of idiocy of the husband at the date of marriage, the court observed that there were many persons who would be eonsidered insane by medi cal men, who did not satisfy the standard of insanity prescribed by Ehv. The law had set up a very high standard. The test of insanity \vas that which was laid down in McNaghten's Case and which 'ivas incorporated in Section 84 of tIle Indian Penal Code, "Did the uu ~onndness of mind render the person concernecl incapable .of knowing -~.,,'.-~
._,._--
; See p.
:) Titli v.
Robert
~.'y"-- •.- - - - - -
JOIICS,
--
.-----.,-,
LLR. '56 Alhhabad 428.
1
436
MEDICAL LAW AND ETHICS IN INDIA
the nature of the act or that he was doing what was either \\Tong or contrary to law?" , In England also it has been held that in the case of an alleged matrimonial offence of mental cruelty, the defence of insanity as defined in McNaghterts Case is available. In a recent English case,l a hus band repeatedly made false charges against his wife, of committing adultery with other men, to such an extent as to inj ure her health and to amount to cruelty; but it was found that, owing to a disease of the mind, although he knew the nature and quality of his acts, he did not know that what he was doing was wrong. It was held that as the husband was unable to appreciate, owing to a disease of the mind, that what he was doing was wrong, no intention to inflict cruelty on his wife could be imputed to him. Accordingly, the wife was not entitled to a decree of divorce on the ground of cruelty1 In another English divorce case,~ the husband petitionea for divorce on the ground of cruelty. The wife pleaded that even if she had been cruel to her husband, she was not legally responsible as she had a defective reason due to a disease of the mind and did not appreciate the nature or quality of her acts or that what she did was wrong. The court accepted the medical evidence that the wife had paranoid psy chosis as a result of which she entertained delusions concerning her, husband and she thought of her husband as a hostile person conspir ing with others against her. Except for this delusion, she was rational enough to distinguish between right and wrong. The court, applying McNaghten's rule, held that when she made the wild accllsations against her husband she did not know that what she was doing was wrong and, therefore, she was not responsible in law for· the accusa tions. However, when she physically assaulted her husband she knew that what she was doing was wrong. The assaults were intented to hurt the husband and did hurt him. This constituted legal cruelty and the husband was granted divorce. Contracts. (Under Section 11 0f the Illdian Contract Act, every person who is of the ~ge of majority and of sound mind is competent to contract. Section 12 defines soundness of mind. A person is 5>aid to be of sound mind for the purpose of making a contract if, at the time when he makes it, he is capable of understanding it and of form~ ing a rational judgment as to its effect upon his interests. A person who is usually of unsound mind, but occasionally of sound mind, may make a contract when he is of sound mind. A person usually of sound mind, 1
"
Williams v. 'VillimHs; (1962) ,3 All E.1\. 441. v. ElphinsloJlc (1962) 2 AU E.R. 96fL
MENTAL DEFECTS AND DISORDERS
437
but occasionally of unsound mind, llIay not make a contract when he is of unsound mind. Thus, (a) a patient in a lunatic asylum, who is, at intervals, of sound mind, may contract during those intervals; (b) a sane man, who is delirious from fever, or who is so drunk that he cannot understand the terms of a contract or form a rational judgmcnt as to its effect upon his interests, cannot contract whilst such delirium or drunkenness lasts. There must be and full consent to bind the parties to a con tract. Consent is an act of rcason accompanied by deliberation. Where there is a \vant of rational and deliberate consent, there cannot be a binding contract) A pe'rson who relies on unsoundness of mind must establish that he was incapable of understanding the impugned transaction and form ing a rational judgment as to its effect upon his interests. 1 A sale deed executed by a persor~'''who was incapable of understanding it and form ing a rational judgment as to its effect upon his interests, does not con fer any title on the vendee. It is a void document. Thc party contracting must have the capacity to arrive at a reasoned judgment as to the con sequences of the contract he is entering into. I~~?yld.lJ.~r(:;~qtbere4_1hat mere wea~-.QL. mind 2 or mere l~~~mory does not make a p~on unfit for the management of his own .....affairs... In a Privy 'council case/ a contract entered into bv' an old man was challenged. He had been in bed for several years and had left his son to manage his affairs. He was no longer the man he was, but was depressed and his memory was failing. It was said by one of the medical witnesses that loss of memory in elderly people meant incipient senile dementia. The Privy Couneil observed that, even if that be so, it does not usually reach such a stage during the lifetime of an individual as to render him unfit for the management of his own affairs, especially if he is wise enough not to rely on his own judgment but to act on the best advice availahle and that is what the old man had done in the case. Accordingly, the contract was held to be binding between the parties thereto.
--- __
Transfer of Property. Under Section 7 of the TmTlsfer of Property Act, evelY person competent to contract is competent to transfer pro perty. Torts. There is very little authority on the liability in tort of luna tics. In a recent English case; the plaintiff was held to be entitled to AlIl. 1957) PatnC1 491 Kanaiyala/ v. lIm'sing, AIR (1944) Nag. at 2'34. 3 Rajkumar v. Ham Sundar AIR (19,'32 1 P.C. 69. 411Io1'riss v. Marsdell, I All E.Il.. 925. lIl1darsi.llf!. v. Parameshwal' n]wl'isilli!"
I
1vtEDICAL LAW AND ETHICS IK INDIA
438
damages for violent assault and battery by a lunatic on the ground that the defendant's act was voluntary and that he knew the nature and quality of his act though not that it was wrong. The principle seems to be thai' even a lunatic is liable for his tort if the tortious action was committed by him while in that condition of miud which is essential to liability in sane persons. It may be remembered that even if insane persons are, themselves not liable for their actions, persons in charge of them mayj be liable to those injured by acts which could reasonably be expected \ of the insane persons. As \Vitness.
Section 118 of the Indian Evidence Act, 1872, makes
~l.~rso~et§.t.. ~te@L 'upl~~~"t!~e . C2}lrt c~n~er~ th~t ~y qI.€LP~_~d _fr9EL..unq~shmdinK...!llC guestio~"..2~ to them or from
giving rational answers to those questions by reason of tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind., A lunatic, therefore, is not incompetent to testify unless he is prevented by his lunacy from understanding the qucstions put to him and giving rational' answers to them.,
1
HIJ/g,ltc \'. Lancashire Melltal HosvitClls Home (19,'5.3) :2 All KR. 148.
(1937) 4 All Kit 19; Ellis v.
CHAPTER. XIV
LAvV RELATING TO PHARMACY AND DRUGS
Pad I THE PHARMACY ACT, 1948
Part II DRUGS, OPIU!\1 AND POISOi\'S
Section
1-
INTRODUCTION
Sectioll
2-
ADVEHTfSEi\fENTS
Section
~l
DESCRIPTION
Section
4-
IMPORT,
Section
5-
LABELS AND CONTAINEHS
Sectio!!
6
Section
7
SPECIAL AND
TRANSHIPMENT
PROVISIONS
ApPLICABLE
AND TRANSPORT
TO
MEDICAL
PRACTITIONERS
HOSPITALS
Section
8
POSSESSION
Section
9-
PRICE
Section 10 -
SALE AND SUPPLY
Section 11
STORAGE
I
440
MEDICAL LAvV AND ETHICS IN INDIA
Part I
THE PHAHMACY ACT, 1948
HIS is an Act to reg.Ulate the practice of pharmacy throughout India. \Vith that object in view the Act makes provision for the constitution of Pharmacy Councils. The Statement of Ob . jects and Heasons of the Act l is as fo11ows: "It is desirable that, as in most other connhies, only persons who have attained a minimum standard of :Q!:9fessional ed~c;ti~n ;h"ould be -'--' . permitted to practise the profession of pharmacy. It is accordingly proposed to e2ablis.h.. ~~e!!~ral ,,~ot~!1ciI4oLP'~1.~~,~ which will pre scribe the minimum standards of education and approve courses of study and examinations for pharmacists, and Provincial Pharmacy Coun cils, which will be responsible for the maintenance of Provincial He gisters of qualified pharmacists. It is further proposed to empower Provincial Governments to prohibit the dispensing of medicine on the prescription of a medical practitioner otherwise than by or under the direc~ and personal supervision of a registered pharmacist."
T
_.
----.
---
---",
Pharmacy Council of India. Chapter 2 of the Act sets out provi sions for the constitution, composition and election of the Pharmacy Council of Indi~ and its powers and functions. The Pharmacy Councill of India is a legal entity. Under Section 10, the Council is empowered'l subject to the approval of the Central Government, to make regulations to be called the Education Regulations prescribing the minimum standard. of education required for qualification as phannacists. The Education> Hegulations framed by the Council may, among other things, contain the following: (1) the ~re and period of study and the practical training to be undertaken before admission to an examination; (2) the ~9ui~n..ent. an9- facil~!ie~ tob~I2!{~vid.~dfor students under going the approved courses of study; (3) the s.!lIJEts eof.e.~rninatJor~'1nc! ..tht::...stc~11.9ard~. to be attained; .(4;) other conditions ... ._.for admission to an examination. Any authority in any state \vhich conducts a eourse of study for pharmacists or holds an examination in pbarmacy may apply to the Council for approval thereof. If the course of study or the examination is in conformity with the Education Regulations framed by the Council, the course shall be approved. In order that the Council may effectively check whether the approved course of study or examination continues to srJisfy the requirements on which
---_ __
1
Gazette of India, 1947, Part V, p. 469.
LAW RELATING TO PHARMACY AND DRUGS
441
recognition was granted, p9.:~ is given to the COUI~s:il to appoir~. Inspeetors. Power is also given to the Couneil to withdraw the approvaL QualiGcations granted outside India. Under certain circumstances, at!:.alification~..EE~~~ outside the territories to which the Act applies £l~ also be resognised by the Council. The Council can give recog nition in favour of Indian citizens if their qualifications afford sufficient guarantee of the requisite skill and knowledge. If a country in which this recognised qualification is granted permits persons of Indian origin holding this qualification to practise the profession of pharmacy, then even a non-citizcn of India holding this qualification will be permitted to register himself under this Act. Executive Committee.'The Executive Committee of the Council is empowered, through Inspectors appointed for that purpose, to inspect institutions which provide an approved course of study and to attend approved examinations. State Councils. -('Chapter .s contains provisions for the constitution and composition of State Councils. Registration of Pharmacists:'" Chapter 4 deals with the registrntion of pharmacists..
.
Removal of name from the Regi~ter/ A person whose name is en tered on the register will have his name removed from the register if, after due notiee to him, it is found by the Executive Committee of the Council that (l)/his name has been entered on the register by error or on aceount of misrepresentation or through suppression of a material fact, or (2(he has been convicted of any offence or has been guilty of infamous conduct in a professional respeet which, in the opinion of the Committee, renders him unfit to remain on the register. He is also liable to have his name removed from the register if a person employed by him is found guilty of infamous conduct or is convicted of any offence which, if such employee were a registered pharmacist, would render him unfit to remain on the register and the infamous conduct or the offence on the part of the employee was instigated or connived at by the registered pharrnacist. An appeal to the State Government lies from t an order of the Council directing the removal of a name from a register.; The order of the State Government upon sueh appeal shall be final. I No order refusing to enter a name on the register or removing a name from the register shall be called into question in any court. Dispensing by unregistered persons is prohibited. ··/~Uter snch date as the State Covernment1 may notify in the Official Gazette, no person 1
Only the State of Uttar Pradesh has hrought this provision into force.
MEDICAL LAW AND ETHICS IN INDIA
442
other than a registered pharmacist shall compound, prepare, mix, or dispense any medicine on the prescription of a medical praetitioner hut this prohibition shall not apply to the dispensing by a medical practi tioner of medicine for his own patients or, with the sanction of the State Govcrnment, f?r the patients of another medical practitioner. Who ever contravenes the above provisions shall be punishable with imprison ment for a term which may extend to six months or with fine not exceeding one thousand rnpees or with both.
Part II DRU.GS, OPIUM AND POISONS Ser:tion
I-INTRODUCTION
A brief background of drugs legislation. Apart from the Opium, Act, 1878, before the series of Central and Provincial statutes relating, to drugs were enacted, the only legislation in India in any way touchingl dangerous drugs was the ........... Poisons... Act,.., .1919. The Poisons Act, 1919, was passed to regulate the impoltation, possession and sale of poisons throughout India but did not provide measures for· avoiding the dangers of drugs of ilnpure quality or of defective strength being imported, manufachlred or sold in India. J In 192.5, India was a participant at the Geneva Dangerous Drugs Convention. It was resolved by the parties to this convention that each participating country should takt; measures to suppress contraband traffic in and the abuse of dangerous drugs, especially those derived from opium, Indian hemp and coca leaves. To implement this obligation the Dangerolls Drugs Act,.,- 1980_ was passed. '" """'-- .. ... The objects of the act are ,;.-,,~,
"-~
~._~_
",.
-
~"
(1) to conirol and regulate inter-provincial import and the trans port, possession and sale of dangerolls manufactured drugs like cocaine, pethidine, morphine and other narcotic substances; (2) to control the manufacture of medicinal opium and prepara tions eontaining morphine, diacetylmorphine and cocaine; to control the import into India, the expOlt from India and the transhipment of dangerous drugs, and, (4) to control other operations such as the cultivation of dangerous drugs. It may be noted that the Dallgerolls Drugs Act, 1.980, had a limited object, viz. to control certain operntions relating to dangerous drugs such as opium, morphine, cocaine and petllicline.l
LAW RELATING TO PHARMACY AND DRUGS
443
In the meantime, in 1927, a resolution was adopted by the then Council of State recommending to the Central and Provincial Govern~ ments immediate measures to control the .indiscriminate use of medici~ nal drugs and for standardization ot the preparation and the sale of _ .such drugs. In August, 1930, in response to public opinion on subject and pursuant to that resolution, the Government of India ap pointed the Drugs Enquiry Committee with Sir R. N. Chopra as its Chairman to inquire rnta the quality and strength of drugs imported, manufactured or sold in India and to recommend to the States the control of such import, manufacture and sale in the interests of the public. This committee made a report pointing out the necessity of exer control over the import, manufacture and sale of patent and proprietary medicines in the interest of the safety of public health. As a rcsult of the <2hopra Cogunittee repor~ t~e Drugs ~ct, 1940., was passed. This Act is a comprehensive piece of legislation and, along with its rules known as the Drugs Rules, 1945, constitutes the bed-rock of drug legislation in India. It regulates the import, manufacture, dis~ hibution and sale of all kinds of drugs. One of its principal features is the control of the quality, purity and strength of drugs. In 1948, the Pharmacy Act was passed to regulate the profession of pharmacy. By these, the Drugs Act, 1940 and the Pharmacy Act, 1.948, State Governments have been responsible for controlling the manufacture and sale of drugs and pharmaceuticals through qualified personnel and the Central Government is empowered to control the quality of drugs and pharmaceuticals imported into the country.f In order to provide for the control of the sale, supply and distribu tion of drugs, Parliament passed the prugs COlltrolA-~~!.~50. In 1954, ,,1 long-felt need for legislation to control the advertisement of drugs was met by the enactment of the 12!ugs and MagtLRernedies (ObieJ2.~ tjonable Advertisements} Act, ~ Indiscriminate self~medication by the public which had harmful effects was in a large measure the result of the uncontrolled advertisement of drugs; this Act was passed to meet this evil. It sllOuld be remembered that variOlls states in India havc also passed legislation on dmgs with a view to making the control on drugs as effective and as compact as possible. It without saying that state laws on nre in addition to and not in derogdtion of central legislation on the subject. Acts relating to drugs in force in the State of l\laharashtra are
t
(1) the Bombay Drugs Contml Act, (2) the Bombay Prohibitioll Act, 1.949.
and
444
MEDICAL LAW AND ETHICS IN INDIA
l Definitions
of certain terms. Dangerous drugs1 include coca leaves, hemp, opium and all manufactured drugs.
Manufactured drugs include (i) all coca derivatives, medicinal hemp and opium derivatives; and (ii) any otber narcotic substance which the Central Government may declare to be a manufactured drug. 2 , . Poisons: Illere_.E..J1QJtatut!;:. in India which gives a de~()LLo,f a poi~!!. The relevant statutes regarding poiso'llS state that they apply to poisons specified by rules framed under those statutes. 3 Pharmacopoeia: A collection of formulae and methods for the I preparation of drugs; especially a book of such formulae recognised as: i standard, as tbe British Pharmacopoeia, United States Pharmacopoeia i and Indian Pharmacopoeia. Formulary: A collection of prescriptions containing pharmacopoeial! or non-pharmacopoeial drugs. The British National Formulmy Indian National Formulmy contain prescriptions whicb are commonly i or widely used in the respective countries.
ancd
Section
2-ADVERTISEMENTS
Object of the Drugs and Magic Remedies (Objectionable Adver tisements) Act, 1954. It controls the advertisement of some drugs and prohibits the advertisement of remedies alleged to possess magic qualities. The object of the Act is not merely to put a curb on advertisements which offend against decency or morality but also to prevent self medication and treatment in cases where self-medication and treatment would cause harmful effects. An advertisement is defined in the Act as including any notice, circular, label, wrapper, or other document and any announcement made orally or by any means of producing or trans mitting light, sound or smoke.
f Meaning of Drug.
The word 'drug' is defined to include (i) a medicine for the internal or external use of human beings or animals;
1 Defined by the Dangerous Drug Act, 19.30.
:; Defined by tIl{' Dangerous Act, 19.'30;
3 Schedule E of the Drugs Rules, 1945 gives ,1 list of poisons to which special
restrictions apply. with regc·rd to their storage and sale and the dispensing of prescriptions containing allY of thosc poisolls; each Stnte has been empowered under the Poisolls Act, 191.9 to prescrihe a list of drugs which would be eOI1 sidered poisons for the purpose:; of the application o( the Poisons Act. 1919_ within that State.
LAW BELATING TO PHARMACY AND DRUGS
445
(ii) any substance intended to be used for or in the diagnosis, cure, mitigation, treatment or prevention of disease in human beings or animals; (iii) any article, other than food, intended to affect or influence in any way the structure or organic function of the human or animal body; (it) ) any article intended for use as a component of any medicine or substance or article referred to ·in sub-clause (i), (ii) and (iii) above. I
Prohibition of advertisements subject to certain exceptions. Subject to certain exceptions hereinafter stated, there is a p_~pi!ion ag~inst the advertisement of drugs in tenns calculated to lead to the use of th~' dn;gs .fo;-treahnent inier alia of the following diseases and dis orders: (i) the m:.ocurement oLIIli.:iQ.S!IIiage in women or the nrev.Q.I}Jion-2J c2!lse12tig]!. in women; (ii) the ~naint~rlance or imQrovemenLQf the capacity of human J>e ings for sexualJ)leasure.i,. .. .. (iii) the correction of menstrual disorder,,} in women; or (iv) the dj1i~~;;i.
~
--
-.---~----
Exceptions to Prohibition. The exceptions to the above prohibi tions are these: (1) It is permissible to give advertisements in respect of contra ceptives provided that the advertisements relate only to such contra ceptives as have been approved by the Government. 1
1960 S.CJ. 611 at 627; A.LR. (1960) S.C. 554.
446
MEDICAL LAW Al\D ETHICS IN INDIA
1 J
(2) A registered medical practitioner can, on his premises, put up a sign-board or notice indicating that treatment is undertaken in his premises of any disease or disorder. The expression 'registered medicaV . practitioner' referred to above refers to a person holding a qualifica tion granted by an authority mentioned in the Indian Medical Degrees iicl, 1916, as also a person entitled to be registered as a medical practi tioner under any law.
It is permissible to publish a treatise or a book dealing with ~ any of the said diseases or disorders provided that such treatise or book is written from a bona fide scientific or social stand-point. (3)
f
(4) IThere is no prohibition against any advertisement relating to
any dmg sent confidentially to a registered medical practitioner or to a
wholesale or retail chemist for distribution among registered medical
practitioners or to a hospital or laboratory, An advertisement will be
said to be confidential if it is sent by post and the document bears at
the top, printed in indelible ink in a conspicuous manner, the words,
'For use only of registered medical practitioners or a hospital or a lnbo
ratory'. The word, 'hospital' includes a clinic, dispensary or other in
stitution for the reception of the siek, whether as 'in-patients' or 'out patients'. , .
(5) There is no prohibition or restriction against any advertisement).. relating to a drug printed or published by the Government, or with the previous sanction of the Government.
(6) Lastly, there is no restriction or prohibition against any ac1 c l vertisement, label or set of instructions pern1itted under The Dmgs Act) 1940, or any rules made under that Act. It may be noted that in the above exceptions, advertisements in the medical journals of the country are not mentioned; this means that the prohibited advertisements mav not be.J!.ublished even in medical .~~---~-~-.--*----.---
jou.!!!als.~
Further, subject to certain exceptions, it is illegal to publish adver tisements relating to dmgs if the advertisements (i) direetly or indireetly give a false impression regarding the tme .character of the drugs; (ii) make a false claim for the drugs; 01" (iii) are otherwise false or misle~iding in any material particular. Complete Prohibition of Certain Advertisements. There is complete prohibition against advertisements of 'magic remedies' for treatment of the following diseases and disorders:-~ (1) the procurement of miscaniage in \vomen or the prevention of conception in women;/
.
LA\V HELATING TO PHARMACY AND DRUGS
the maintenance or improvement of the capacity of human be ings for pleasure;,-' (:3) the correction of menstmal disorders in women; and .,/ (4) the diagnosis, cure, mitigation, treatment or prevention of vene ral diseases./'/ The word 'magic remedy' includes a talisman, mantra, kavach and i any other chann of any kind which is alleged to possess miraculous 1 powers for or in the diagnosis, cure, mitigation, treatment or prevention of any disease in human beings or animals or for affecting or influencing J in any way the structure or organic function of human beings or animals. f It may be mentioned that in order to effectively enforce obedience to the provisions of this Act, penalties are provided for breach of the said provisions.
I
Section
3-DESCRIPTION
Sub-rule 15 of mle 65 of The Drugs Rules, 1945 provides that- (1) The description "Dmgstore" shall be displayed by licensees who do not require the services of a qualified person. (2) The description "Chemists and Dmggists" shall be displayed by licensees who employ the services of a qualified person but who do not maintain a "Pharmacy" for compounding against prescriptions. (3) The description "Pharmacy", "Phamlacist", "Dispensing Che mist" or "Pharmaceutical Chemist" shall be displayed by licensees who employ the services of a "qualified person" and maintain a "Pharmacy" for compounding against prescriptions. A "qualified person" is a person who (a) holds a degree or diploma in pharmacy or pharmaceutical chemistry of an instihltion approved by the licensing
Section
4--b.fPORT, EXPOHT, TRANSHIPMENT AND TRANSPORT
fie: The Dangerous Drugs Act, 1930. The import, export and tran shipment of prepared opium is prohibited by this Act. A dangerous dmg other than prepared opium can be imported in accordance with the rules framed under this Act and pursuant to the conditions of any licence granted for that purpose.
448
MEDICAL LAW AND ETHICS IN INDIA
Dangerous drugs are defined to include coca leaf, hemp, opium and a ll manufactured drugs. A manufactured drug includes the follow ing: "(i) All coca derivatives, medicinal hemp and opium derivatives; and
(ii) any other narcotic substance which the Central Goverument may, by notification in the Official Gazette, made in pursuance of a recommendation under Article 10 of the Geneva Conven tion or in. pursuance of any international convention supple menting the Geneva Convention, declare to be a manufactured drug, but does not include any preparation which the Central Government may, by notification in the Official Gazette, made in pursuance of a finding under Article 8 of the Geneva Con vention, declare not to be manufactured drug." Re: IThe Drugs Act, 1940. This Act prohibits the import of the following drugs: (a) any drug which is not of standard quality; (b) any misbranded drug; (c) any drug for the import of which a licence is prescribed, other wise than under and in accordance with such licence; (d) aJay patent or proprietary medicine, unless there is displayed in the prescribed manner on the label or container thereof the true formula or list of ingredients contained in it in a manner readily intelligible to members of the medical profession; The formula or list of ingredients mentioned shall be in com pliancewith this requirement if, without disclosing a full and detailed list of the ingredients, it indicates correctly all potent or poisonous substances contained therein together with an approximate statement of the composition of the medicine. (e) any drug which by means of any statement, design or device accompanying it or by any other means, purports or claims to cure or mitigate any such disease or ailment, or to have any such other effect, as may be prescribed; and (f) any drug the import of which is prohibited by rules made under this Actt This prohibition does not apply where small quantities of any drug are imported, subject to prescribed conditions as for the purpose of ex amination, test or analysis or for personal use. Rule 33 of thc Drugs Rules, 1945, prescribes the following conditions: "Small quantities of drugs the import of which is otherwiseprohi bited under Section 10 of the Act may be impOlted for the purpose of examination, test or analysis subject to the following conditions: (a) no drug may be imported for such purpose except under a licence in Form 11; (b) tbe licensee must use the substances imported under the licence exclusively for purposes of examination, test or analysis and must carryon sllch examination, test or analysis in the place specified in the licence or in such other places as the licensing authority may authorize;
LAW HELATING TO PHAHMACY AND DRUGS
449
the licensee must allow any Inspector authorized by the licens ing authOrity in this behalf to enter, with or without prior notice, the premises where the substances are kept to inspect the premises and investigate the manner in which the sub stances are being used and to take samples thereof;
(d) the licensee mnst keep a record of and report to the licensing authority the substances imported under the licence together \vith the qualities imported, the date of impOltation and the name of the manufactbrer; (2) Another exception to the prohibition of import of drugs is where the Central Government, after cOIlSultation with the Board, the import of any drug or class of drug, though not of standard quality. A
is said to be misbranded in the following cases:
(1) if it is an imitation of or a substitute for or resembles in ~l
manner likely to deceive, another drug, or bears upon its label or container the name of another drug, unless it is plainly and conspicuously marked so as to reveal its true character and its lack of identity with such other drug; (2) if it purports to be the product of a place or country of which it is not truly a product; (3) if it is imported under a name which belongs to another drug; (4) if it is so coloured, coated, powdered or polished that damage is concealed or· if it is made to appear of better or greater therapeutic value than it really is; (5) if it is not labelled in the prescribed manner; (6) if its label or container or anything accompanying the drug bears any statement, design or device which makes any false claim for the drug or which is false or misleading in any parti cular; or (7) if the label or container bears the name of an individual or company purporting to be the manufacturer or producer of the drug and that individual or company does not exist. No biological or other special product specified in Schedule C or C(l) of the Drugs Rules, 1945, shall be imported after the date shown on the label, wrapper or container of the drug as the date up to which the drug may be expected to retain a potency not less than, or not to acquire a toxicity greater than that required or permitted. Rule ,30A of the Dntgs Rules, 1945 relates to the import of new drugs. It says: "(1) No new drug shall be imported except under and in accord ance with the permission in writing of licensing authority. (2) The importer of a new drug when applying for permission shall produce beforc the licensing authority all documentary and other evi
450
MEDICAL LAW AND ETHICS IN INDIA
dence relating to its standard of quality, purity and strength and such other information as may be required by the licensing authority includ ing the results of therapeutic trials carried out with it.
Explanation. For the purposes of this rule, 'new drug' means a drug the composition of which is such that the drug is not generally recognised among experts as safe for use under the conditions recom mended or suggested in the label thereof and includes any drug the com position of which is such that the drug, as a result of investigations for determining its safety for use under such conditions, is so recognised, but which has not, otherwise than during the course of such investiga tions, heen used to any large extent or for any appreciable length of time under the said conditions." Rule 30B also deals with the prohibition of the import of certain drugs. It says, "No drug, the manufacture, sale or distribution of which is pro hibited in country of origin shall be imported under the same Jlame or under any other name except for the purpose of examination, te:-.t or analysis". Rule 31 says, "No biological or other special product specified in Schedule C or ql) shall be imported unless it complies with the standard of strength, quality and purity, if any, specified in Schedule and the tests pres cribed in that schedule shall be applicable for determining whether any such imported drug complies "\vith the said standards". Rule 36 deals with the import of drugs for personal use. It ,.,ays, "Small quantities of dmgs, the impOlt of which is otherwise prohibited under Section 10 of the Act, may be imported for personal use subject to the following conditions
(i) the dmgs shan form patt of a passenger's bona fide baggage and shall be the property of, and be intended for the exclusive personal use of the passenger; (if) the drugs shall be declared to the Customs authorities so direct;
jf
they
(iii) the quantity of any single drug so imported shall not EXceed one hundred average doses; Provided that the licensing authority may, in an exceptional case, sanction the import of a larger quantity. Provided further that any drug imported for personal use but not forming part of bona fide personal baggage, may be allowed to be im ported subject to the following conditions, namely:
(i) the licensing authority, on an application made to it in Form 12A, is satisfied that the drug is for bona fide personal use;
LAW RELATING TO PHAR.\1ACY AND DRUGS
4.51
(ii) the quantity to be imported is reasonable in the opinion of the licensing authority and is covered by prescription from a re gistered medical practitioner; and (iii) the licensing authority grants a permit in respect of the said drug in Form 12B. Re: The Bombay Drugs (Control) Act, 1959: Transport of Drugs. The general rule is that no person (a) being a dealer may transport any notified drug, except under a pass granted by the State Government; (b) being a medical practitioner may transport any notified drug in excess of the quantity which he is pemlitted to posses; (c) being a person other than a dealer or medical practitioner may transport any notified drug in excess of the quantity (which has been at anyone time dispensed or sold on prescription for the bona fide medicinal use of that person or of a member of his household) except under a pass granted by the State Govern ment. This shall not, however, apply to (a) a traveller entering a state from any place outside it and pos sessing a notified drug for the bona fide medicinal use of him self or of a member of his household aecompanying him; (b) through transport of any notified drug from a place outside the State of Bombay to another plaee outside the state. Notwithstanding the above restrictions the Collector may, by a general or special order, authorise (a) any person in charge or management of a hospital or dispen sary to possess or transport, (b) any person in charge of an educational institution to possess or transport for use for educational purposes only, (c) any person engaged in scientific research to possess or trans port for use for scientific research only, (d) a pilot of an aircraft to possess or transport for use in an emergency on the aircraft, (e) any person in charge of an ambulance or first-aid station or first-aid box to possess or transport for use in an emergency, (f) a chemist to possess or transport for use in dispensing as an ingredient of a medicine,
al~y manufacturer of a medicine to possess or transport for use
in the manufacture thereof,
any notified drug in such quantity, in such manner, and subject to such conditions as may be speeified in the order. These restrictions do not apply to the sale, possession or trans port in the normal course of business by a bona fide chemist, druggist or manufaeturer of drugs or by his servant or agent of any notified drug not exceeding such quantity as may be prescribed for the purposes of a sample.
MEDICAL LAW AND ETHICS IN INDIA
452
The following drugs are declared to be notified dmgs1 by the State of Maharashtra: . 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. ' 17.
18. 19. 20. 21. 22. 23. 24.
Section
Spirit of Chloroform Spirit of Nitrous Ether Strong Tincture of Ginger Weak Tincture of Ginger Compound Tincture of Cardamom Tincture of Lavender Kalpak Tincture Gulaneha Mustee Tonic Tincture of Cinnamon Compound Tincture of Cinnamon Tincture of Orange Compound Spirit of Horseradish Liquid Extract of Kamala Tincture Avena Sativa Tincture of Euonymus Tincture of Calumba Tincture of Quassia Tincture of Myrrh Tincture of Podophyllum Tincture of Hamamelis Tincture of Wild Cherry Tincture of Aristolochi . Tincture of Hauwolfia
Tincture of Cajuput
5-L~BELS AND CONTAINERS
Re: The Poisons Act, 1919: In the State of :Maharashtra rules made under the Poisons Act, 1.919, prescribe the following requirements: All poisons kept for sale shall be kept in a box, almirah, room or building (according to the quantity maintained) which shall be secured by lock and key and in which no substance shall be placed other than poisons, and each poisons shall be kept within such box, almirah, room or building in a separate closed receptacle of glass, metal or earthen ware. Every such box, almirah, room or building and every such recep tacle shall be marked with the word "Poison" in red characters in English and vemaculfl:r and, in the case of receptacles containing separate poisons, with the name of such poison. \Vhen any poison is sold, it shall be securely packed in a closed receptacle or packet (according to the quantity) and every such receptacle or packet shall be labelled with a red label, bearing in English and in the vernacular the word "Poison" label the name - which must be shown prominent1y at the top of 1
;I,,:laharashtra Gov('r:lnient Gazette, Extraordinary, Part IV-B, January 1st, 19G2, p. 1.
LAW RELATING TO PHAm.1ACY AND DRUGS
453
of the poison, and the name of the vendor and the address of the shop at which the poison was sold. Re: The Drugs Act, 1940; Labelling Compulsory. Various provi sions are made under the Drugs Rules, 1945, with regard to labelling. It is illegal for a person to sell or distribute any dmg (including a patent or proprietary medicine) unless it is labelled in accordance with these ntles. Manufactured drugs. Any drug manufactured for the purpose of examination, test or analysis shall be kept in containers bearing labels indicating the purpose for ;,vhieh it has been manufactured. Supply of drug manufactured for examination. If any drug manu factured for the purpose of examination, test or analysis is supplied by the mnufacturer to any other person, the container shall bear a label on which shall be stated the name and address of the manufacturer, the accepted scientific name of substance, if known, or, if not known, a reference which will enable the substance to be identified and the purpose for which it has been manufactured. Export. Labels on packages or containers of drugs for export shall be adopted to meet the specific requirements of the laws of the country to which the drugs are to be exported. The following particulars must, appear in a conspicuous place on all containers (a) the name of the dmg; (b) the name and address of the manufacturer and the number of the licence under which the drug has been manufactured; (c) its batch or lot number, and (d) the date of expiry, if any. Sub-rule (13) of Rule 65 of thc Drugs Rules) 1945, provides that substances specified in Schedule E thereof shall be kept in containers impervious to the poison and sufficiently stout to prevent leakage arising from the ordinary risk of handling and transport. Sub-mle (14) of Rule 6,5 of the Drugs Rules) 1945, provides that a substance specified in Schedule E sold by retail shall be labelled with the word "Poison" in such language or HU~!';lJU.i')v0 as the State Govem ment may prescribe by notification in the Official Gazette. General Provisions. The particulars with which the container of any drug is required to be labelled must in a conspicLlolls place on all the containers in which the drug is 'When the dmg is contained in an ampoule it shall only be necessary, where other wise provided, to label the ampoule itself with the name ~md quantity
454
MEDICAL LAW AND ETHICS IN INDIA
of the drug and the :name of the manufacturer. The requisite letter ing may, in the case of an ampoule, be etched on the ampoule itself. Particular words to be written on the label. The container of a medicine for internal use made up ready for the treatment of human ailments sha11 (a) if it contains a substance spccified in Schedule E and not specified in Schedule G, be labelled with the word "Poison";
(b) if it contains a substance specified in Schedule G, be labelled with the words "Caution"; it is dangerous to take this prepara tion except undcr medical mpervision; (c)
if it contains a substance specified in Schedule H, be labellecl with the following words:
"SCHEDULE H DRUG Wam ing-T a be sold by retail on the prescription of a Registered Medical Practitioner ()nly." The container of an embrocation, liniment, lotion, liquid antiseptic or other liquid medicine for external application which is made up ready for the treatment of human ailments shall, if the medicine contains a substance speciHcd in Schedule E, labelled with the words "Poison. For external use only." The container of a medicine made up ready for the treatment of animals shall, if the medicine contains a substance specified in Schedule be labelled with the words "Poison. For animal treatment only." The container of a medicine which is not made up ready for treat ment shall, if the medicine contains a substance specified in Schedule be labelled with the word "Poison". A medicine is said to be made up ready for treatment if it is made up and labelled with a dose ready for use, whether after or without dilution.
Labelling with the name and address of seller. The container of a substance specified in Schedule E or of a preparation containing such substance must be labelled with the name and address of the seller and the address of the premises on which it was sold. When the sub stance or preparation is sold in a container with an outer covering, the name Hnd address of the seller may appear either on the container or on the outer covering. \Vhen the substance or preparation is supplied from a warehouse or depot in the course wholesale dealing, the container need only be labelled \vith the seller's principal place of business.
LAW RELATING TO PHAHMACY AND DRUGS
455
Labelling with the name of substance. The container of any sub stance specified in Schedule E or of a prcparation containing such sub stance shall be labelled with the name of such substance. The name of the substance shall be the term under which it is in cluded in Schedule E. Where the term describes a group of sub stances and not the substance specifically, the name of the substance shall be- (a) if preparation is included in the British Pharmacopoeia or the British Pharmaceutical Codex, one or other of the names or synonyms or abbreviated names set out therein; or in any other case, the accepted scientif-ic name, where kno\v'1l, Of, if not known, the name descriptive of the true nature or origin of the substance. In the case of a preparation included in the British Pharmacopoeia or the British Pharmaceutical Codex, or any dilution or admixture sll,ch a preparation, or any surgical dressing for which a standard is prescrib6d in the British Pharmaceutical Codex, it shall be suHlcient to state the name, synonym or abbreviated name used to describe that preparation or surgical dressing in the British Pharmacopoeia or the British Pharmaceutical Codex with the addition of the letters "B.P," or "B.P.C.", as the case may be. Labelling with statement 'of quantity. The label of the container of any preparation containing more than 3 per cent of alcohol or more, or a substance specified in Schedule E shall include a statement of the quantity of alcohol or of the substance contained in the preparati0I2.
If the preparation contains a substance specified in Schedule E, the quantity shall be stated, in the case of a liquid, in terms of grains or minims per fluid ounce and, in case of a solid, in terms of grains or minims avoirdupois ounce. The quantity may be stated in tenns of the metric system. \¥hen two or more pills, wafers, tablets, povvders, capsulcs or the like are packed in the same container, the quantity must be stated in tenns of the quantity present in cach pill, wafer, tablet, powder, capsule or othcr unit. In the case of a preparation containing a substance specified in -Schedule I, it shall be sufficient to state on the label the particulars specified in that schedule. In the case of a preparation included in the British Pharmacopoeia or the British Pharmaceutical Codex or in any other prcscribed pharma or any dilution or admixture of slIch a preparation or surgical
I
456
MEDICAL LAW AND ETHICS IN INDIA
dressing for which a standard is prescribed in the British Phannaceutical Codex, if the container is labelled with the name used to describe the article in the British Phannacopoeia or the British Phannaceutical Codex or in any other prescribed pharmacopoeia, with the addition of the letters "B.P." or "B.P.C." or such letters as may be recognised abbrevia tions for other prescribed phannacopoeias, it shan not be necessary to state on the label the proportion of the substance specificd in Schedule E contained in the preparation. The above provisions do not apply to a medicine made up ready for treatment, whether after or without dilution, which is supplied on the prescription of a registered medical practitioner by a person licensed nnder the Drug Rules, 194.5, to sell drugs, provided that if the medicine contains a substance specified in Schedule E, the following conditions are satisfied··· (a) that the medicine shall be labelled with the name and address of the licensee by whom it is supplied; (b) if the medicine is for external application, that it shall be labelled with the word, "Poison" and the words, "For external use only"; (c) if the medicine is for internal use, that it shall be labelled with the dose; (d) and that the conditions mentioned behw are complied with. The supply of any drug on a prescription shall be recorded at the time of supply in a prescription register specially maintained for the purpose and the serial number of the entry in the register shall be en tered on the prescription. The following pmtieulars shall be entered in the register (a) the the (c) the (d) the
serial number of the entry;
date of supply;
name and address of the prescriber; name of the patient;
the name of the drug or preparation and the quantity or, in the case of a medicine made 1.lp by the licensee, the ingredients and quantities thereof; (f) if tbe drug is a drug specified in Schedule C, the name of the manufacturer, the batch number and the date recorded on the container, label or wrapper as the date up to which the sub stance may be expected to retain a potency not less than or not to acql;ire a toxicity greater than that req LIired or permitted by the prescribed test;
the signature of the qualified person by or under wbose super vision the medicine was made up and supplied,
LAW RELATING TO PHAHMACY AND DHUGS
457
If the medicine is supplied on a prescription on which the medicine has been supplied on a previous occasion, it shall be sufficient if the entry in the register includes the serial number, the date of supply, the quantity supplied and a sufficient reference to a'n entry in the register recording the dispensing of the medicine on a previous occasion. Non-sterile surgical ligatures and sutures. Every container of and wrapper enclosing a surgical ligature or suture (other than a ligatun" or suture offered or intended to be offered for sale as sterile) must bear a labcl on which is printed or written in a conspicuous manncr in in delible red ink the words, "Non-sterile Surgical Ligature (Suh1Ye)-Not to be Used for Operations upon the Human Body unless efficiently Stelilized." Additional provisions for patent or proprietary medicines. The name and address of the manufacturer must be printed on the label of the container of a patent or proprietary medicine. The true formula or list of ingredients must also be printed or written in indelible ink on the outer label of every package containing a patent or proprietary medicine. Use of letters "I.P.", "B.P." and "HoP.C," The letters "LP.", "B.P." and "B.P.G" shall be printed on the label of a drug only for the purpose of indicating that the drug is in accordance with the standard sct out in the Indian Phamlacopoeia or the Blitish Pharmacopoeia or the British Pharmaceutical Codex, as the case may bc.
Section
6-~1ANUFACTURE
He: The Drugs Act, 1940: This Act imposes a prohibition on the manufacture for sale (i) any drug which is not of standard quality; (ii) any misbranded drug; any patent or proplietmy medicine, unless there is displayed in the prescribed manner on the label or container thereof the true fonnllia or list of ingredients contained in it in a manner readily intelligible to members of the medical profession; (tv) any dmg which, by means of any statement, design or device accompanying it, or by any other means, daims to prevent, cure or mitigate any disease or ailment. There is also it prohibition against the manufacture for sale of any dmg except under and in accordance with the conditions of a licence issued under this Act. The above prohibitions, however, do not apply (1) in cases of manufacture of small quantities of any dntg for the purpose of examination, test OT analysis; provided the drug
458
MEDICAL LAW AND ETHICS IN INDIA
so manufactured is kept in containers bearing labels indicating the purpose for which it has been manufactured and, when a drug manufactured for the purpose of examination, test, or ana lysis is supplied by the manufacturer to any other person, the container must bear a lubel on which is stated the name and address of the manufacturer, the accepted scientific name of the substance, if known, or, if not known, a reference which will enable the substance to he identified and the purpose for which it has been manufactured and, further, that the manufacturer held a licence before commencing such manufacture; and (2) in cases where the Central Government after consultation with the Drug Technical Advisory Board, has permitted the manu facture of any drug, which is not of a standard quality. For the manufacture of drugs on any premises an application should be made for a licence. If drugs are manufactured by the same indivi dual or by the same company but on more than one premises, a separate application should be made and a separate licence should be issued in respect of each of such premises.
Be: The Dangerous Drugs Act, 1980: No one is permitted to cul tivate poppy or manufacture opium except in accordance with permis sion granted by the Central Government. The Act prohibits the manu facture of medicinal opium or any preparation containing morphine, diacet;/l-morphine or cocaine except ,m accordance with rules made by State Governments. Section 7 ~ SPECIAL
PROVISIONS ApPLICABLE TO l\fEDICAL PRACTITIONERS
AND HOSPITALS
Be: The Pharmacy Act, 1948: It is provided by this Act that on or after such date as may be appointed by a State Govemrnene it is unlawful for person other than a registered pharmacist to com pound, prepare, mix or dispense any medicine on the prescription of a medical practitioner. This provision, however, does not apply to the dispensing by a medical practitioner of medicine for his own patients or, with the sanction of the State Government, for the patients another medical practitioner. Re: The Drugs Magic Remedies (Objectionable Advertisements) Act, 1954: This Act imposes restrictions and prohihitions on certain ad vertisements. These restrictions and prohibitions are subject to ceitain exceptions in favour of registered medical practitioners. It is open to a registered medical practitioner to put up on his premises a Sign-board or . Only the State of D.P. has
this provision into force.
LAW RELATING TO PHARl'vlACY AND DRUGS
459
TlOtice indicating that treatment is undertaken on his premises for any ,of the following diseases or disorders ; (1) the procurement of miscarriage in women or the prevention of conception in women; (ii) the maintenance or improvement of the capacity of human be ings for sexual pleasure; (iii) the correction of menstrual disorders in vvomen; and (iv) the diagnosis, cure, mitigation, treatment or prevention of ve nereal diseases.
Licences. The attention of medical practitioners and hospital au thorities is drawn to the fact that they are required to apply for certain licences in respect of clmgs. For example, in the State of Maharashtra, the five necessary licences which are required to be obtained are the following :---: (1) A Licence for the possessionl and sale of certain items declared to be poisons under Section 2 of the Poisons Act, 1919. A licence is to be obtained in the City of Bombay from the Com missioner of Police and, outside the City of Bombay, from the District IvI agistrate. A licence is required for the dispensing on prescription of brandy and rum as ingredients of any medicine. It is a con dition of the license that the licensee shall not keep or dispense brandy or rum at any place other than the licensed premiscs, \'I'hich would obviously be the dispensary or the hospital pre mises. Brandy or rum cannot be dispensed except as an ingre dient of a medicine. (3) A licence is required to be obtained under the Bombay Pro hibition Act for the possession and use of rectified spirit in eluding absolute alcohol, even for medicinal purposes. It is one of the tenus of the licence that the licensee should not have in his possession more than the specified bulk of the spirit at anyone time. He mllst also maintain such accounts as are prescribed by the director of excise and prohibition. Prescribed rdums should also be filed. A licence is also required to be obtained under the Bombay Prohibition Act for the possession, transport and use of ordi nary denatured spirit even for bona fide medicinal purposes. It is a condition of the licence that the spirit received pursuant to the licence should be kept in a secure place in the licensed premises under lock and key. All issues of spirit from the premises should made in the presence of the medical practitioner or of a person duly authorised by him in writing in his behalf. Under the Bombay Dangerous Drugs Rules, 1985, a licence is required for keeping manufactured drugs other than prep,ired opium at a Hulc :3 of the
Rales under Section
of the Poisons Act, 191.9.
460
MEDICAL LAW AND ETHICS IN' INDIA
Under Rule 34 of the Bombay Dangerous Drugs Rules, 1935, the Collector of a district may grant a special authorisation to an approved practitioner for the possession for use in the exercise of his practice, but not for sale, of coca derivatives containing not more than 60 grains of cocaine. The Collector may, however, allow a larger quantity of the drug, containing not more than 120 grains of cocaine, in such cases as he may, having regard to the requirements of the permit holder, consider advis able.
A prescription for the supply of manufactured drugs (other than prepared opium) must comply with the following conditions ; (a) the prescription shall be in writing and shall be dated and signed by an approved practitioner with his full name, quali fications and address and shall also specify the name and address of the person to whom it is given and the total quantity of the drug to supplied thereon. If the drug to be supplied is a coca derivative, the quantity should not contain more than 6 grams of cocaine provided that the Collector may, by special order, authorise the supply of a larger quantity considering the circumstances of a particular case; (b) the prescription shall not be given for the use of the pres criber himself; (c) a prescription given by a registered dentist shall be only for the purpose of dental treatment and shall be marked, "For Local Dental Treatment only", and (d) a prescription given by a veterinary surgeon shall be only for the purpose of the treatment of animals and shall. be marked, "For Animal Treatment Only". The licensee shall mark on every prescription dispensed by him, his name and the address of premises at which and the date on which it was dispensed. In the case of every preparation made upon a prescription which contains manufactured dmgs (other than prepared opium), the bottle or other receptacle or the wrapper or other covcring in which ,>uch preparation is enclosed shall bear clearly marked upon it the amount and percentage of cocaine or morphine or diacetylmorphine or medicinal hemp contained in such preparation; provided that if the preparation is in the form of unifonnly divided dosal units, e.g. pills, powders, tab loids, capsules, etc., it shall be sufficient if the bottle or other receptacle or the wrapper or other covering in which such preparation is enclosed bears clearly marked upon it the amount and percentage of cocaine or morphine contained in each such do~al unit. A medical practitioner in the State of Maharashtra is required to (1) a patient's card and (2) a register in the prescribed fonn,
LAW RELATING TO PHARMACY AND DRUGS
461
when he uses manufactured drugs in his professional practise. Specimens of two forms are given below: Patient's Card (To be maintained by registered medieal practitioners using manu factured drugs in their professional practice.) 1.
Full name of the patient:
2.
Profession and residential address :
.'3.
Age:
4.
Sex:
.5.
Disease for which treated:
6.
Duration of illness.
7.
Date of first consultation:
Date
Drugs used
Fonn in which used
Quantity of drugs used
j
Initials i of the i Reg. Med. I Practitionel'
Remarks
I
1
2
;3
i
4
1 I
5
6
~
PHYSICIAN'S REGISTER OF MANUFACTURED DRUGS page should
assigned in
0:.
to
Name of Dmg ............. "
Register to drug.) .------------~------~----------~~-
Date
in stock Drug received! From. whom received Form Qu~n- Form QuantitYl' Name Address
Total Quantity
tlty
1
:2
.'3
4
5
G
7
8
9
Patient's Ii Card Name Add- No. ress i
10
11
12
I Quantity of the
Clos- I Signature ing' of the drug balaHegd. used dur- nee Medical the Praction tioner each patient
13
L4
I
15
H
E M A H K S 16
--'--~'-'-'l-"--
I I
:s:: tIl
t:J >-;
a
~
~
> Z
t:J tIl
>-l ::r::: H
a CIl
i \
Registration
Name of Physician '" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . ... .
Medical Qualifications ............................................... .
Address ................................................................. .
z>-< >-<
Z t:I H
>
LA \\1 HELATING TO PHARMACY AND DRUGS
Prescription. Dispensing by lmi"egistered persons is prohibited in States in which orders to that effect have been passed. However, not withstanding such a notification, it is competent to a medical practi tioner to dispense medicine for his own patients and, if he has obtained the general or special permission of the State Government, it would also be competent to a medical practitioner to dispense medicine for the patients of another medical praetitioner. Conditions Relating to Prescriptions. A prescription for the supply of manufachlred (other than prepared opium) must, according to the Bombay Dangerous Drugs Bules, 1935, comply with the following conditions
(1) The prescription must be in writing and must be dated and signed by an approved practitioner and must bear his full name, qualifi cations and addrcss. The prescription must also speeify the name and address of the perSOll to ,vhom the prescription has been given and the quantity of the to be supplied. If the drug to be supplied is a coca derivative, the quantity may not exceed 6 grains of cocaine. The Collector may, however, a special order authorise the supply of a larger quantity in certain (2) A prescription cannot
out for the use of the prescriber
himself. (3) A prescription given by a dental t reatment and shall be Only."
dentist shall be only for Local Dental Treatment
(4) A prescription given by an approved veterinary surgeon shall be onlv for the treatment of animals ancI shall be marked, "For Animal Treatn;ent Only."
Section 8
POSSESSION
Possession involves the concept of a person having the right to exercise power or control over the thing possessed. Section 27 of the Indian Penal Code says, "Where property is in the possession of the wife, clerk or servant on account of that person, it is in that person's possession.
Explanation :-A person employed temporarily or on a particular occa is a clerk or sion in the capacity of a clerk or servant within the meaning of this Re : The Poisons Act, 1919 : Every State Government is empowered by the Poisons Act to regulate the possession of specified poisons when it appears that the use of poison for the purpose of murder or mischief by poisoning cattle is a frequent occurrence. The Government of Bombay on April 11th, 1922, rules. These rules are still in force in the State of Maharashtra.
464
MEDICAL LAW AND ETHICS IN INDIA
They desclibe what arc deemed to be poisons. Rule 3 prohibits the possession for sale of any poison except under a licence granted by the District Magistrate or, in the City of Bombay, by the Commissioner of Police. Such a licence remains in force for one year only. A licence granted to a firm or a company for possession of any poison for sale comcs to an end on the winding-up or transfer "of business of such a firm or company. A licence given to an individual comes to an end on the death of the licence-holder. Re' The Drugs Act, 1950: It is unlawful for a person to possess prepared opium unless it is prepared from opium lawfully possessed for the consumption of the person so posse5sing it. Under the Drugs Conirol Act, 1950, it is unlawful for a person to' have in his possession at anyone time a quantity of notified drugs greater than the quantity necessary for his reasonable needs. A notified drug is a drug to which, as notified by the Central Govemment, this Act applies and regarding which an order is published in the Official Gazette by the Chief Com missioner. This provision does not apply to a dealer or producer in respect of any drug sold or produced by him. If a person possesses a quantity of a drug greater than the quantity necessary for his reason able needs, it is his duty to report that fact immediately to the autho rities concerned and to take such action as to storage, distribution or disposal of the excess quantity as the authority concemed may direct. Re: The Opium Act, 1878: It is unlawful for a person to possess opium except under the authority of the Government. Re: The Bombay Drugs (Control) Act, 1950: As a general rule, no person may have in his p05session any notified drug (a) (i) if he.is a dealer, at anyone time or during such period or periods as the State Government may specify, or (ii) if he is a medical practitioner, at anyone time, save with the previous permission of the Collector in writing, in excess of such quantity as the State Government may, by notific:1tion in the Official Gazette, detern1ine in this behalf; (b) if he is not a dealer or medical practitioner, in excess of such quantity as has been at anyone time dispensed or sold on prescription for bona fide medicinal use to him or toa member of his household except under a permit granted by an officer duly empowered by the State Government in this behalf. This, however, shall not apply to a traveller entering the State from any place outside it and possessing a notified drug for the bona fide medicinal use of himself or of members of his house hold accompanying him. In fixing the maximum quantity of a notified drug which may be posessed, the State Government may fix different maxima for the pos
LAW HELATING TO PHARMACY AND DRUGS
465
session of different dl1lgs in respect of their possession by different classes of wholesalers and retailers. Notwithstanding what is stated above, the Collector may, by a general or special order, autborise (a) any person in charge or management of a hospital or dispensalY to possess or transport, (b) any person in charge of an educational institution to possess or transport for use for educational purposes only, (c) any person engaged in scieutific research to possess or trans port for use for scientific research only, (el) a pilot of an aircraft to possess or transport for use in an emergency on the aircraft, (e) any person in charge of an ambulance or first-aid station or first-aid box to possess or transport for use in an emergency, (f) a chemist to possess or transport for use in dispensing as an ingredient of a medicine,
any manufacturer of a medicine to possess or transport for use
in manufacture,
any notiHed dl1lg in such quantity, in such mallner and subject to such conditions as may be specified. The above provisions do not apply to the sale, possession or trans port in the HonnaJ course of business by a bond fide chemist, druggist or manufacturer of drugs of any notified drug, not exceeding such qnan tity as may be prescribed for the purposes of a sample. 111e following are the relevant rules in force in the State of rvlaha rashtra under the Dangerous Drugs Act, 1980: Possession «No approval practitioner sha11 for the purpose of sale possess any quantity of opium derivatives, medicinal hemp or 1-mcthyl 4-phenyl-piperidine-4-carboxilic acid ethyl ester (in the form of the hydrochloride, 1
sess (a) opium derivatives (other than prepared opium) containing in the aggregate not more than 120 grains of either morphine or diacetyl-morphine or both; (b) medicinal hemp not exceeding 1 oz. of extract or 4 ozs of tinchlre or both; and (c) I-methyl-4-Phenyl-piperidine-4-carboxilic acid ethyl ester (in the f0n11 of the hydrochloride, known under the names of Dolantin Demerol, Pethidine, Isonipencaine, etc.) and its salts not ex ceeding 12 grammes. Provided further that the Collector may, by special order, autho rise any such practitioner to possess as aforesaid any larger quantity of the said dmgs.
466
MEDICAL LAW AND ETHICS IN INDIA
No approved practitioner shall, for the purpose of sale, possess any quantity of coca derivatives: Provided that such practitioner may under a special permit granted in this behalf by the Collector possess for use in his practice coca deriva tives containing not more than 60 grains of cocaine in the aggregate: Provided further that the Collector may authorise any such prac titioner to possess as aforesaid a larger quantity of coca derivatives con taining not more than 120 grains of cocaine." The expression, "use in his practice" means only the actual direct administration of a drug in injections, surgical operations, or other emer gent cases by or in the presence of an approved practitioner. All other issues of the drug by an approved practitioner shall be deemed to be sales, except in the case of issues free of charge from specially recognised charitable medical institutions. A Government Medical Officer in charge of Government and Gov ernment grant-in-aid medical institutions may possess manufactured drugs (other than prepared opium) for use in such institutions. An approved practitioner in charge of a LocaJ Board of a Munici pal dispensary or in charge of a hospital or dispensary belonging to a mission and other corporate body may possess manufactured drugs (other than prepared opium) required for use in such dispensaries and hospitals. A Government Medical Officer m charge of hospitals and dispen saries belonging to the railways may possess manufactured drugs (other than prepared opium) for use in such hospitals and dispensaries. A Medical Officer or an approved practitioner possessing manu factured dmgs must keep accounts of manufactured drugs received, used and held in stock by him from time to time in the form prescribed by the Collector. The accounts must he plainly and correctly written-up daily in books bound, paged and sea1ed with the seal of the Collector, Mamlatdar or Mahalkari and must show in each case of purchase, the date of purchase and the name and the address of the person or finn from whom the purchase was made; he must preserve these accounts for not less than two years from the date of the last entry in the account hook and shall produce them, together with any manufachlred drugs that may be in his possession at the time, for inspection on demand by the Collector or any other officer duly authorised by him in this behalf; he must also furuish to the Collector, or any other officer duly authorised by him, within a ,veek after the end of each calendar year, information regarding the purchase and consumption of manufactured drugs during
LAW RELATING TO PHARMACY AND DRUGS
467
the preceding year and the stocks of manufactured drugs held by him on the last day of the year in the form prescribed by the Collector, for the purpose. No person, unless he is authorised in this behalf by the Collector,. shall possess opium derivatives (other than prepared opium) and medi cinal hemp and not exceeding such quantities and otherwise than in such manner as may be specified in such order. No person, unless he is authorised in this behalf by the Collector by an order made under Rule 28(3) or (4), shall possess and use manufactured drugs (other than prepared opium) for educational or scientific purposes or for use in an emergency and not exceeding such quantity and other wise than in such manner as may be specified in. such order. No licensed dealer in manufactured drugs or licensed chemist shall possess manufactured drugs (other than prepared opium) except in sllch quantity and in such manner as may be specified in his licence. No person shall, without an authorisation granted to him under these rules for the import, export or transport of manufactured drugs (other than prepared opium) possess such drugs exceeding such quantity and otherwise than in such marmer as may be specified in such authorisation. Section
9-PRICE
The Drugs Control Act, 19.50,1 gives power to Government authori ties to fix in respect of any drug the maximum price or rate which may be charged by a dealer or producer. The prices or rates so fixed may be different in different localities or for different classes of dealers or producers. An order may also be issued directing dealers or producers in general or any particular dealer or producer to mark any drug which is intended for sale with the sale price or to exhibit on the premises of the shop a price-list. It is imperative that no dealer should destroy or alter any label or mark affixed to a drug indicating its price as marked by its producer. Where a dealer or producer offers to sell a drug along with some other matter for a particular price, the dealer or producer shall offer, in writing, the price in respect of both the items at which he is prepared to sell, if he is required to do so by any person to whom the offer is made. 1
This Act applies only to Ajmer, Bhopal, Coorg, Delhi, Himachal Pradesh, Kutch, \Lll1ipur, Tripura and Vindhya Pradesh. Similar legislation e:d,ts in the States of ~vIahamshtra, M.P., Madras, ~fys0re, Orissa and U .P.
468
IvlEDICAL LAW AND ETHICS IN INDIA
Section la-SALE
AND SUPPLY TO AND DUTIES TO\VARDS PURCHASERS
By viltue of the Poisons Act, 1919, poisons should, as far as possible, be sold by the licence holder himself. Where the is a firm or company, every sale of poison should be made through or under the supervision of an accredited representative of the firm or company. The following are the impOltant rules in force in the State of Maharashtra regarding the of poison: "Every sale of poison shall, so far as possible, be made by the licence holder in person or, where the licence-holder is a firm or a company, through or under the supervision of £U1 accredited representative of such firm or company." "A licence-holder shall not sell any poison to any person unless the latter is personally known to him or identified to his satisfaction. He shall not sell any poison to any person who appears to him to be under the age of 18 or to any person \vho does not appear to him to be in full possession of his faculties, or to any wandering mendicant." "When any poison is sold, it shall be securely packed in a closed receptacle or packet (according to the quantity); ancI every such recepta cle or packet shall be labelled by the vendai' with a red label bearing in English and in the vernacular or vernaculars prescribed by the local licensing authority the \vorel, 'Poison' which must be shO\vn promincntly at the top of the label ancI the naHle of the poison and also, either ill English or vemacular or in both, the name of the vendor and the of the shop at which the poison is sold and, in the case of poisons specified in clausc A of Rule 2, number and date of the cntry' in register of sales specified in Rule 10." Records register of poisons are also required to maintained. : The Drugs Act, 1940 and the Drugs Rules, 1.945 : follO\ving are the important provisions fegarding sale and supply mentioned in the Drugs Rules, 1.94.5, which n,:es are made the Drugs Act, 1.940. The Statc Government is required to appoint authorities for granting licences to sell, stock or exhibit for sale or distribute cIrugs. For purpose of selling, stocking, exhibiting for sale as also for distribut ing licences afe to be obtained. If drugs arc sold or stocked for sale at mobc than one separate licences should be obtained in respect such separate Before licences are granted to any person, the authority lws to be satisfied that the premises in respect of the licence is to granted are adequate, that they are equipped with proper storage accommodation for preserving the properties of the to \'dlich thc licence is applied and that they arc in charge
LAW RELATING TO PHARMACY AND DRUGS
469
of a person competent in the opinion of the licensing authority to supervise and control the sale, distribution and preservation of· drugs. The following conditions shall always be deemed to be contained in the licences granted :-(1) a drug specified in Schedule E (which cont~ins a list of poisons) or any preparation containing any such drug and any drug supplied on a prescription shall, if compounded or made up on the licensee's premises, be compounued or made up by or under the direct and personal supervision of a qualified person; (2) the supply, othenvise than by way of wholesale dealing, of a drug specified in Schedule E or any preparation containing any such dmg and of any drug supplied on the prescription or a registered medical practitioner shall be effected only by or under the personal supervision of a qualified person. This condition, however, does not apply to the sale of a pre paration containing a drug specified in Schedule E supplied otherwise than on the prescription of a registered medical practitioner if the pre paration been made np for sale in a container elsewhere than on the premises and the container has not been opened since the time it ,vas made up. Rule 65 of the Drugs Rules, 1945 lays down that the supply of a drug on a prescription shall be recorded at the time of supply in a prescription register specially maintained for the purpose and the serial number of the entry in the register shall be entered OIl the prescription. The following particulars shall be entered in the register (a) the serial number of the entry; (b) the date of supply; (c) the name anel address of the prescriber; (d) the name of the patient; (e) the name of the drug or preparation and the quantity or, in the case of a medicine made up by the licensee, the ingredients and quantities thereof; (f) if the drug is a drug specified in Schedule C (biological and special products) the name of the manufacturer, the batch number and the elate recorded on the container, label or wrapper as the date upto \vhich the substance is expected to retain potency or not to acquire a toxicity greater than that permitted; and the signature of the qualifled person by whom the medicine ,vas mad(~ up and supplied,
If the medicine is supplied on a prescription on \vhich the medicine has been supplied on a previous occasion, it shall be sufficient if the entIY in the register includes:, the serial number, the date of supply, the quantity supplied and a sufficient reference to an entry in the re gister recording the dispensing of the medicine on a previous occasion.
470
MEDICAL LAW AND ETHICS IN INDIA
The supply of a dmg specified in Schedule E (poisons) or a prepara tion containing any such drug or of a dmg specified in Schedule C or of a preparation containing not less than 3 per cent of ethyl alcohol must be recorded at the time of supply in a register specially main tained for the purpose in which the fDllowing particulars shall be entered (a) the serial number of the entry; (b) the date of supply; (c) the name and address of the purchaser; (d) the name of the drug or preparation and the quantity thereof; (e) if the drug is a drug specified in Schedule C, the name of the manufacturer and the batch number; and ('I) the signature of the person under whose supervision the sale was effected. This sub-rule does not apply to (a) the supply of drugs specified in Schedule C or Schedule E or of preparations containing drugs specified in Schedule E on the prescription of a registered medical practitioner, or (b) the supply of drugs specified in Schedule C by way of whole sale dealing.
In the case of the supply of a drug containing alcohol, it shall be open to the licensing authority to accept records in lieu of a register. The licensee must produce for the inspection of an Inspector ap pointed under the Act all registers and records maintained under these mles and he must supply to the Inspector all information that the Inspector may require. All registers and records maintained under these rules must be preserved for a period of not less than two years from the date of the last entry therein. It is worth noting that it is not necessalY to record any particulars in a register specially maintained for the purpose if the particulars are recorded in any other register maintained under any other law in force. The licensee, lastly, must maintain an Inspection Book to enable an Inspector to record his impressions therein. Duties towards Purchaser. Section 9 of the Drugs (Control) Act, 1950, states that every dealer or producer when selling any drug for cash shall, in all cases, if the amount of the purchase is five rupees or more and, if the amount of the purchase is less than five rupees, when re quested by the purchaser, give to the purchaser a cash memorandum containing particulars of the transaction.
LAW RELATING TO PHARMACY AND DRUGS
471
It may be noted that the Drugs (Control) Act is in force in a few
places only.l Section 11 of the Drugs (Control) Act, 1950, states that where a dealer or producer makes an offer to enter into a transaction for a con sideration to be given as a whole in respect both of a sale of any drug and of some other matter, the dealer or producer making the offer shall state in writing the price which he assigns to that drug if he is required' to do so by any person to whom the offer is made and the offer shall be deemed to be an offer to sell that drug at the price so stated. Regarding opium, it is provided by the Opium Act, 1878, that, except as provided by the Act or by any other law, no one can sell opium. n.e: The Bombay D"UgS (Control) Act, 1959: The relevant provi sions of the Act are quoted below. Section 11 provides: "(1) A licensed retailer shall not supply any notified drug in his possession to any person (not being a medical practitioner or a person duly authorized under Section 14) for a purpose other than a bona fide medicinal purpose and except on a prescription issued by a medical practitioner. (2) A medical practitioner shall not supply any notified drug in his possession to any person for a purpose other than a bona fide medicinal purpose and except under a prescription issued by him or another medi cal practitioner. (3) Any prescription issued for the purpose of sub-section (1) or (2) or copies thereof and other records shall be maintained in such manner and preserved for such period as may be prescribed." Section 16 provides: "Nothing in this Act shall apply to the sale, possession or transpod in the normal eourse of business by a bona fide chemist, druggist or by his servant or agent duly authorized by him in this behalf of any notified drug not exceeding such quantity as may be prescribed, for the purposes of sample." Section 17 provides: "Every dealer when selling any notified drug shall give to the purchaser a memorandum of sale containing particulars of the sale and obtain the purchasers signature on the counterfoil of such memorandum. (2) The State Government may, by notification in the Official Gazette, prescribe the other particulars to be contained in such memo randum of sale and counterfoil thereof." 1
For the
where the Drugs (Control) Act applies
p.467.
I
472
MEDICAL LAW AND ETHICS IN INDIA
Section 12-STORAGE Rule 65 of the Drugs Rules, 1945, provides that: substances specified in Schedule E kept ill a retail shop or premises used in connection therewith shall be stored
(a) in a cupboard or drawer reserved solely for the storage of poison, (h) in a part of the premises separated from the remainder of the premises and to which customers are not permitted to have access. Rule 84 of The Medicinal and Toilet Preparation (Excise Duties Rules, 1.956, provides for the storage of finished products. It says, "(i) Medicinal and toilet preparations shall on completion of pro duction be stored in bulk in jars or bottles each containing not less than 80 fluid ounces. (ii) Such preparations ready for issue may be filled in bottles or containers of not less than 2 fluid ounce content: Provided that the Excise Commissioner may by an order 11l writing, specify that any such preparation may be filled 111 bottles or containers of smaller capacity.
(iii) Every container of a finished preparation shall bear a label showing the name of the preparation, its batch number, its al coholic strength and the name of the manufacturer. (iv) The label of each container of a preparation stored in bulk shall, in addition, indicate the actual contents in bulk gallons, alcoholic strength and the date of storage. (v) The containers shall be kept so arranged in suitable racks as to allow ready identification of each batch."
CHAPTER XV
~
MATRIMONIAL MATTERS, SEXUAL OFFENCES AND
INTERSEXUALITY
================~\
Part I MATIU!\lONIAL MATTERS Sp.ction I
CONSeo-lMAITON OF 1vL'l.BlU.'\GE
Section 2 -
PREGNANCY AKD LEGITI?>fACY
Part II SEXUAL OFFENCES
Part III INTERSEXUALITY
Part I MATRIMONIAL MATTERS
W (1)
(2) (3) (4) (5) (6) (7)
HEN a medical practitioner is called to the witness box to testify as an expert in matrimonial matters, his opinion is generally sought on the fol1owing: whether the husband or the wife is impotent and, if so, whether the impotency is curable; /" whether the wife is a virgin;/' ,vhether there is proof of previous pregnancy;/' whether the husband or the wife is suffering from a venereal or other contagious disease; / whether tIle husband or the wife suffers from lunacy or epilepsy; /".. the pcltemity of children: or ,.' whether there has been physical cruelty . .'r
474
MEDICAL LAW AND ETHICS IN INDIA
Sectiort
I-CONSUMMATION OF
MARRIAGE
Most of the divorce laws in this country consider the non-consum mation of marriage a ground for annulling it. Th~~~,.~ how:eve~.!.2.!9 ~E!.t1ki!l...!!1dia:.Q.r..l!!..g!!&hmd wh~~h gives a_d~nition of consummatiJ2!l. Erection and penetration without emission, although not constituting sexual intercourse in the full sense of the word, are sufficient in law to consummate maniage. ~~ ~.
..
~
o~~~ Legal Consequences of the use of Contraceptives. Even if marital intercourse takes place with the use of contraceptives, the marriage is con summ ated. T~'!:!~£J2i.£Qntracegtive.L<;loes_!.!.o.LPrev~L.!Jle ..£Q~u.!.!::~ tion of a marriage. In Baxter's case,3 the parties went through a ceremony ;f-;-~;;:jage~;Y;;uary 10, 19,'34, and they lived together from that date until the husband left the wife in 1944. The husband gave evidence [R v. R (19.52) I All KR, 1194.
(1845) 1 Robertson's Ecclesiastical Reports, 279, 298.
:l B(Jxtei· v. B(ixter (]847) 2 AlI KIt 886 H.L.
2
MATRIMONIAL MATTERS, SEXUAL OFFENCES
475
that the wife would not allow sexual intercourse unless he used con traceptives. On a petition by the husband for a decree of nullity on the ground that the marriage had not been consummated, it was held overruling an earlier easel-that the use of contraceptives did not pre vent the consummation of marriage. The court took the view that for valid consent to marriage, an agreement to procreate children was not necessary. A man can lawfully marry a woman who is past child bearing age. The consent which is required is "consent whereby arises that conjugal society which may have the conjunction of bodies as well as minds; as the general end of the constitution of marriage is the solace and satisfaction of man."2 Legal Consequences of Coitus Interruptus. Incipient or impetfectt coitus is not enough to establish consummation but, once coitus is established, it is not affected by its being coitus interruptus. 3 ~, however, been held that Wh~~~lLm-.llQ~ct causes injury to ~ ~-,-------~ health it can amount to ~!ty ?pon ,~hlch22en.ti.Q1Lfur lL..!J~~"""":~~~~_.~~~~-.:.~ The practice of coitus interruptus is ........ it is done witL~I~. in~ention of ~rt:ing~ other SROU~, or is delibe!1!:.t~~ without good reason and in disregard of its effect on the other spouse, and injury results to that spouse, whether or not the offending spouse had been warned of the potential results of the con· duct or not. This was laid down in Knott v. Knott/ where the refusal by the husband to allow his wife to have a child and the practice of coitus interruptus in disregard of whether it injured her health or not, coupled with apparent injury to her health resulting therefrom, was held. to amount to cruelty even though the husband had not heen warned by doctors of the potential results of this unnatural practice.
I
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------
Legal Consequences of the Creation of an Artificial Vagina.l A mar riage cannot be pronounced void if there is a reasonable probability that the woman can be made capable of vera copula, that is to say, of natural coitus. If, on the contrary, she cannot be made capable of more than an incipient, imperfect or unnatural coitus, the marriage would be pro nounced void.' This statement of law has been approved by the House of Lords. The definition of vera copula was considered in a recent Engilsh case.' In this case thc wife had a malformed vagina, too short 1 Cowen v. Cowen ( 2 All KH. 197 :' A passage in Lord Stairs "Institutions", (1832), 1, tit. 4, para. 6, which is referred,. to \vith approval in Baxter's case by Lord Jow·itt. Gackett v. Cackett (1950) 1 All KR. 677; R v. R (19.52) 1 All KR. 1194. \ Knott v. Knott (1955) 2 All E.R. 30.5. D v. A (1845) 1 Rob. EccL 279. 6 Baxter v. Baxter (1947) 2 All E.R. 886. ; S v. S (1962) .'3 All KR. .5.5.
476
MEDICAL LAW AND ETHICS IN INDIA
to permit full penetration, but, according to the medical evidence, cap able of being enlarged by an operation with a good chance of the opera tion being successful. The operation would involve a removal of the soft tissues where the normal vagina would have been in order to create a passage which would be lined by skin from the thigh. The absence of the natural membrane and its special sensory quality and of normal secretion would affect the degree of sexual satisfaction obtainable from inter course by the wife but would not materially affect that of the husband. The passage would end in a cul-de-sac and there was no possibility of conception, the wife having no uterus. In a petition for a decree of nullity of the marriage by the husband, it was taken as an accepted proposition of Jaw that inability to conceive was not a ground for finding incapacity to consummate marriage and also that the degree of sexual satisfaction obtainable was immaterial. It was held that the fact that full penetration could only be rendered possible either by surgery eradicating the malformation of the wife's vagina or, when there was no natural vagina, by surgery creating an artificial vagina, would not prevent sub sequent sexual acts from amounting to consummation of marriage. The wife's incapacity was found curable and a decree of nullity was refused. The court obsenTed that what would be created would be a vagina, albeit an artificial one, and it would be located precisely in the position where a natural vagina would be. The court, therefore, held that in such circumstances, intercourse by means of such a vagina should be regarded as amounting to vera copula so as to satIsfy the test laid down in D v. A.I Legal Consequences of Artificial Insemination. 2 Artificial insemi nation of the ~.i.~:vit~~~en~viouslX obtained fro~th~~sb~nd' i~ not consum~atiQD.3 Therefore, a decree of nullity in favour of the wife on the ground of the husband's incapacity, or, alternatively, wilful re fusal to consummate marriage, can be granted even if the wife has con ceived through artificial insemination by the husband's seed. When ~~~13~~~~s grallteq~the child becomes illegitimat.s' After this! decision, the English statute law was amended to the effect that a child\ born of artificial insemination by the husband's seed would continue be legitimate notwithstanding a decree of nullity rendering the man"iage . void. 5
--.
tol
1(1845) 1 Rob. Eccl. 279.
For the legal efFects of artificial inscminatloll of a donor's seed sec the Chapter
relatin.g to Artificial Insemination. 3 L v. L (1949) 1 All KH. 14l. 4 For the legal effects of artificial insemination of a donor's seed see the Ch(!p/pr relating to Artificial. Insemination. ;, Section 9 of the Matrimonial Causes Act, 1950. 2
MATRIMONIAL MATTERS, SEXUAL OFFENCES
477
Legal Consequences of Fecundatio Ab E'xtra, Even if Jl wife con- ( c.elves a child by the husband through Je~undatio ab .extra,_i.e., by the \ mere deposit of semen on the vulva wIthout penetratlOl); "that does not have of consummation of marriage. l Non-consummation of :Marriage. Non-consummation of marriage mav be wilful or be due to natural causes.. By wilful non,--.,.-"",--,- ..---, consummation of is meant deliberate avoidance of sexual inter course by either party to a marriage. NOll-collsummation of marriage from natural causes may due to anyone of the following; (1) Lack of sex knowledge particularly on the part of the hus band.,,'" (2) Gross anatomi.cal (malformation of the sexual organs): (a) in male the absence of the penis, hypospadias or epispadias with small deformed penis; / ' (b) in the the absence of the vagi na, atresia of the vagina, or an imperforate hymen.'/ Endocrinal disorders causing non-development of the sex organs resulting in the non-development of the penis in the male or a ~mall, narrow vagina in the female..... (4) Psychological inhibitions ..,,·
I
r'~-<--"_"~_,,,_
Impotency. is question potency arises in matrimonial suits as well as in suits relating to paternity and legitimacy. .!E.:~g~l.l.£Y_. ~larg? _2L-rc1£g. As question of courts of law, it is to with this subject in some detail. It is well to remember that sexual incapacity, as the term is used in forensic medicine, connotes physical incapilcity to accomplish sex act and is not to be confused with sterility. Impotency in the male. Cases of male impotency may grouped as follows ; (1) Cases \vhich are characterised by are cases where sexual desire is i!.)ee~ and intromission is impracticable. As no man is potent\ all the time and in an circumstances, defective erection may be temporary and may.:occur even in the virile. There is a type of potency which doctors commonly come across in practice, which may be called "bridegroom's impotens:~" The term is self-explanatory. It - - .---.--- is attributed to a lack of confidence.
I
im-I
1
Clerke v. Clarke (1948) 2 All E.H. 540: C v. C. The Times, July 12, 1960; Snowman v. Snowman, (194:3) P. 1813. .:
478
MEDICAL LAW AND ETHICS IN INDIA
(2) Cases which are distinguished by some disturbance of ejacula tion, the usual form of which is ~remat'1:!e .Wculati9!h.. Cases of pre mature ejaculation are common fmongst highly:strung ~e.r-se..!.l1itive ....YEales and in a majority of cases these are ne\vly-married men who require to be properly guided lest the disturbance leads to permanent sexual incapacity.
(3) -r:.hose WE2 su!fer !roI,!l~~I..E.e'!yer~~ are often unable tOd copulate with a normal partner, even though they may love and respect~ that partner. These perversions tend to worsen and are generally· in curable. It has been noticed that homosexuals :md those with homo sexual tendencies are generally impotent with the opposite sex and those . who depend upon certain perversions for the necessary stimuli are impotent without these stimuli. (4) Cases of impotency which are due to weakness of sexual ...... '.----.,,.. desire. The strength of sexuality varies in different men, being de pendent both upon the psychological make-up and the endocrine pat tern. (5) Cases of impotency following accident It has been held that ._--the loss of potency can be measured in terms of money if such a loss is due to an act of negligence on the part of a third party. In Frank v. Cemen tation Co} the plaintiff, who was engaged to be married and who was employed by the defendant company, was seriously injured due to the collapse of a scaffold. As a result of the several injuries suffered by him he became impotent and his engagement was broken by his betrothed. The court held that the loss of potency was due to an act of negligence on the part of the defendants. As the plaintiff had lost the prospect of marriage and parenthood and as any marriage which he might contract in the future would be imperilled by the very pro bable, if not certain, impossibility of consummation, the defendants were directed to pay a sum of money by way of damages for the loss suffered by the plaintiff.
J
"'.'--'-~,-
.-..-<--~--
_,--
---,~--.-
Impotency in females. As nullity suits are usually filed by women and not by men, an impression persists among lay persons that impo tency is peculiar to the male. It is not. \Vomen may also be im potent either from developmental anomalies or from psychogenic causes. Cases of psychic impotency in females are due to the sensations and \< emotions playing a part. Such cases are frequent in highly-strung amI hyper-sensitive women. Psychic impotency in women may also be due 1
(1959) B.NL}. January 17th, 180.
.MATIU;\WNIAL MATTERS, SEXUAL OFFENCES
479
to inhibitions resulting from the defective virility of the husband, a tie) with another man, or even an instinctive aversion to the husband. . One local condition observed in females deserves special mention as rega;d?imp~teny. This ~...:::.aginismus: Vaginismus i~a.: ....a>?~. oftht:; c~nstrictor vaginae accompanied by severe pain, which occurs at the time of the sex act and prevents the entry of the penis into the vagina. One comes across ~lder cases. o!....yaJQEi~mlls._dJ!~J2.}:.!£eration, fissure§ OL.du~. to ~g!l'!'!1
I
Duty of a medical practitioner in issuing certificates of impotency. Cases of impotency may come before civil courts as well as criminal courts. When a case of impotency comes before a court, both parties are, subjected to an examination, not by the same panel of doctors (as, in! the author's opinion, should be done) but each is examined by a different1 practitioner. This often leads to incongmity in the reports presented.
480
MEDICAL LAW AND ETHICS IN INDIA
t Thus,
the doctor who examines the wife may state that she is virgo intacta and apta vim and the doctor who examines the husband may state that there is nothing to suggest that the husband is incapable of sexual intercourse. In the absence of injury, disease or defective deve lopment of the genital organs, an otherwise healthy man must be a;; sumed to be sexually capable. Examination of both parties by the same practitioner would enable him (and, therefore, the court) to arrive at a more definite conclusion as to whether or not the parties are potent. , It is wrong to attempt to judge the potency of a man by asking him to rnasturbateor to have coitus with some woman or to apply an electric current to the penis to observe erection. It is often assumed, errone ously, that a person is impotent if erection fails to occur as a result of these unscientific and highly objectionable tests. Even a highly-sexed person is unlikely to. . get an er~ction in the presence of a third person, .--. It may also be that a man may have satisfactory sexual intercourse with another vvoman though he may be impotent with his wife. No reliance can be placed on erection induced by auto-eroticism for this negatives the very foundation of the psychogenic factor in sex. These tests are completely ullsatisfact01Y, apart from being objectionable. , Certificates given by medical men regarding a man's potency should not be dogmatic. -"'
-
-
-
~
Certificate of potency of a male. A certificate of potency of a male should, as far as possilDle, be in the following form : "This is to certify that I examined Mr. ,.".",. .. '.,,.,.,..,......... " .. on .. ".",. ..... ,. ....... ,.,. .. ,.,. (date to be given) aL .. ,.,.".,.,. .,." .... . (place of examination to be given) and found as follows: (i) that his genital organs are of normal development; (ii) that there is no evidence of inflamatory disease in the testis 01: epididymis; (iii) that there is no evidence of organic disease of the nervous system; (iv) that there are well-marked secondary sex characters. From all the aforementioned objective signs it can be concluded that he has no impediment, congenital or acquired, to preclude him from performance of the sex act.
Sd/ Certificate of impotency of a male. In a man it is difficult to say, that he is impoten,t unless and until there is a malformation of the genitall organs or he suffers from a venereal disease or has a disease of the nervous system.
MATRIMONIAL MATTERS, SEXUAL OFFENCES
481
It should be borne in mind that ~qical prasE!l~....£pines upon impotency after (a) examination of the male genital organs, (b) by observing the presene of disease in the genitals and (c) in the nervous system; that is to say, he t3!-kes intQ.......cQnsid~n only the physical
::or~on~of sex. A medical practitioner is ~n~~ .t~xal11in.$L thee p~hological component of sex because there are no visible signs or tests for it. The majority of cases of impotency are psychogenic in origin and there is no irregularity or non-development of the genital organs. Hence, it must be understood that the certificates of impotency relates only to the physical component of sex. The following form of a certificate of impotency for n male is recom mended "Certified that I examined Mr. ........................ on.................... .
{date to be given) at............................. (place of examination to
be given) and found as follows: (1) that his genital organs are not of normal development; he has a crooked penis of infantile size, or he has hypospadias or epispadias; (2) that there is evidence of disease of an inflammatory naturF. in both his testis or both epididymis; (3) that he gives a definite history of exposure and had venereal disease for which he may have been treated; (4) that his nervous system shows evidence of organic disease in the form of an absence of superficial and deep reflexes together with unequal pupils not reacting to light; (.5) that se:,rmdary sex characters are not marked as they ought to be in a man of his age, indicating endocrine deficiency. From all (or some) of the aforementioned objective signs it can he concluded that he has impediments which may preclude him from per formance of the sex act.
Sd/- . '" ....... . Certificate of potency of a female. The following form of certificate of potency for a female is recommended:~ "This is to certify that I examined Mrs..... (place) and ........ ... (date) at..... on {)bserved as follows : (1) the labia majora were thick, firm, prominent and closely adjacent to each other by their inner surfaces almost completely covering the vulva; (2) the labia minora were hooded by labia majora;
482
JvIEDICAL LAW AND ETHICS IN INDIA
(3) the fourchette, posterior commissure and fossa navicularis were intact; (4) the hymen was thick, fairly resistant and intact; (5) the vagina was narrow and had rugose \valls; (6) she had no apparent discharge, no disease; (7) at the time of examination she did not shriek or complain of pain; the fact that a glass rod could easily be passed through the hymenal orifice without a spasm. of the vaginal muscle and the fact that the inner aspect of the vulva could be touched without any discomfort or pain indicate that she is not impotent. She is capable of taking part in sexual intercourse. From all (or any) of the abovementioned observations, I am of the opinion that Mrs...................... is .c:E!!!:... vira, i.e. ~ap~ble. takin~~ in sexual intercourse. . '..- . .
0
t- """_______
~--.
_ _ . _ _ _ _ _ _ _...
Sd/- ....................... ' Certificate of impotency of a female. It is to be borne in mind that the signs of impotency in a female are discerned much more readily than in a male. A woman is considered potent if she is able to reCeiVe} an erect male organ in her vagina irrespective of the fact that the vagina is made artificially or is natural. • The following form of certificate of impotency for a female is recommended ; "Certified that I examined Mrs ........................ on ... ..... .. '" .... . (date) at ............................ . (place) and observed as follows:~ (1) that the labia majora and minora were ill-developed; (2) that she had a total absence of the vagina, or had a short (narrow) vagina with a very small, ill-defined opening; (3) that her hymen was thick and of a rigid type, not even ad mitting a small finger; (4) that, at the time of cxamination, though her genitals were of normal development with an elastic hymen, she complained of excruciating pain and screamed when the inner aspeet of the vulva was touched. The fact that a slender glass rod could not be passed through the!' vagina is due to a spasm of the vaginal muscles (vaginismus). Either from observations 1, 2, 3 and 4 of developmental defects of her genitals (or from 2 or 3 above, or only 4 above) 1 am of the opinion that she is incapable of taking part in sexual intercourse (impotent), i.c. she is not apta vim and that she is still a virgin. Sd/- .......................... "
MATRIMONIAL :"IATTERS, SEXUAL OFFENCES
483
Is impotency remediable? Sometimes courts inquire whether a particular case of impotency is remediable. It is a rather difficult..guestion ,:""';:"::-:':";:;'::':';:"'';:;'';;':::'';;':;';=;.L;.. Usually, the comi grants some time to enable '_,.'_____~__ r."AT.ar~e~~bef~~~_sinltit decree' -of ~. It may be mentioned that in most cases of impotency dismal failure has been obtained with treatment by organotherapy and the unfortunate person afflicted with the disability ultimately falls a prey to quacks. ~sl.'<:hotherap~.l!!.... the_.J£Em of .2l.a!:£,9~®~s, has opened a new vista some hope of
Almost all cases of impotency are of psychogenic origin. Those· who are newly-wedded and are ignorant and hold false beliefs often suffer from psychogenic impotency. The practitioner, inquiring into cases of impotency, should, therefore, inquire whether there is any chance of reconciliation bet\veen the parties. If so, the married couple should be properly advised and treated and, if a report required for the purpose of taking legal action has been asked for, the report should be held in abeyance pending treatment. ..r;;.';;;_ _ _ _
Section
_ _,._._..........
2-PRECNANCY AND LEGITIMACY
The 1m\! presumes in favour of~c"y. of the Indian Evidence Act says, "The fact that any person was born during the con tinuance of a valid marriage between his mother and any man, or within 280 days after its dissolution, the mother remaining unmarried, shall be conclmive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other when he could have been begotten." However, the presumption as to legitimacy contained in Section 112 of the Indian Act does not necessarily mean that if a child is born beyond a period of 280 days, it must be presumed that the child is illegitimate. 1 The following general propositions emerge from eases on tbe point! deciclec1. by Indian courts: (1) If a child is born within a reasonably ~ possible period of gestation, the court should mise a presumption
ad
1
Uttarnrao Raiararn v. SitaranL 64 Bom. LH. 752.
MEDICAL LAW AND ETHICS IN INDIA
484
j Jegitimacy and the burden of proof of illegitimacy should be shifted to the other party. (2) Something more than mere delay in delivery is required to negative legitimacy and the evidence must sliow beyond any reasonable doubt that the child is not a legitimate child. (3) In some cases it may not be improper to consider the uIlchastity of the mother as one of the factors which could determine the issue of legitimacy but the act of unchastity must have taken place very near about the time when the child could have been conceived. (4) Medical science has not yet fixed the limit of gestation; therefore, the law too has not fixed the period of gestation. 1 (5) Though precedents do help as guides, each case must be decided on its own facts. In an Indian case,2 one Sitaram claimed that he wat> the posthum
OllS son of one Rajaram, born of his married wife, Sai Jai. It. was
held by the trial court that SHarum was born 306 days after the death
of Rajaram and 366 days after the last menses of Sai JaL It was alleged
that Sai Jai had an immoral connection after Rajaram's death with some
stranger as a result of which she gave birth to Sitaram. The court
decided that, in the light of medical knowledge contained in the re
cognised medical text-books and the medical and other evidence led
in the case, Sitaram was the legitimate S011 of Rajaram. The first court
of appeal quoted with approval some observations on the duration of
pregnancy occurring in Taylor's Medical jurisp1'udence. 3 Taylor says,
"For medical purposes we have only to consider the possible duration
of natural pregnancy. All that need be stated here is that neither the
average nor outside limits of the period of gestation are fixed by law.
111 all cases of contested legitimacy, the question respecting the duration of gestation, when it arises, is left entirely open by the law of England. The decision of a court of la,,\' ,vould be founded quoad the duration of pregnancy on the opinions of experts selected for the occasion, and each case vvould be decided on its own merits." The effect of the observations stated above has been accepted by
Indian courts in several decisions. It can safely be said that in India
also the law has kept open the question regarding the duration of
gestation and Indian courts usually take the help of medical evidence
for the purpose of deciding questions relating to pregnancy and
legitimacy.
English cat>es dealing with the duration of gestation which <~re re
ferred to and relied upon in Uttammo's easel may be shortly discussed
n.
1
p~
V..;
P, (HJlll 12
I.e. 946: Ultamrao Haiarmn
v. Sitaram. 64 Bom. 'LR. 752,
15J.
~ 3 4
Uttamrao Baiaram v. Sitaram, 64 Bom. L.H. 752.
lith edition, Vol. 2. p. 57.
UttcmraiJ Rajarmn v. Sitaram, 64 130m. L.R. 752.
I
I
.1
I
MATIUMONIAL MATfERS, SEXUAL OFFENCES
----.
485
here. In Gaskill v. Gaskill/ the period of gestation was 331 days, and it -~..-.~.was regarded as a possible period in the then state of medical know ledge. IE 'YQQcl v. Woog} a child was born on July 20, 1946 and the accepted date of the last sexual intercourse was August 10, 194.:'5. The court accepted the period of ,946 day~ as a possible period of gestation, The court observed, "It is fallacious to attempt to mix the notional and the actual in the period of calculation. In the total absence of evidence of any improper association between the wife and any man, the court is not judicially bound to hold that a wife has committed adultery be cause a period of 346 days has elapsed between the last act of coitus and the birth of the child." In Hadlum v. Hadlum} from August 28,. 1944, the husband had no access to his wife until July 7, 1945. On August 12:, 1945, a child was born, the period covered being 349 days. The court observed; "In this case the only cvidence of adultery is the admitted abnorrnal length of pregnancy. No other fact or circumstance has been adduced which -in the slightest degree casts any reHection upon the chastity or modesty of the respondent, who has on oath denied the alleged adultery. I can only find her guilty if I come to the conclusion that it is impossible, having regard to the present state of medical know ledge and belief, that the petitioner can be the father of the child. The expert evidence renders it manifest that there is no such impossi bility." The court accepted a period of 349 days as a possible period of gestation. In M -Tv. M - T and the Official S~iicit01', 5 the marriage was dissolved in March, 1947, and the adultery was alleged to have taken place in or about July, 1942. On April 13, 1943, a child was born. On the evidence given in the case, it was fonnd that the child was of normal weight and thcre was no indication that it was either a premature 01' an overdue baby. The husband had no access to the yvife for 340 days before the birth of the c:hild and had challenged the pater nity of the child. The medical evidence given in the case \\as that a child of normal weight and size could not have been born after so long a period of gestation and, on this basis, it was held that the child conld not be attributed to the last date of possible access. Thus, on the basis of the medic:aI evidence in the case, the court came to the conclusion that the child was illegitimate. In Preston-lanes v. Preston .~~ rJdH" lanes," the period of gestation ,vas 360 day~. The child was bom OIl Augtl'st 13, 19-16. It wcighCcl 8Ji Ihs. and did not appear premature.
------
(UBI) P. 425.
"W:l47) P 10:1; 2 All ETL 95.
3 (1949) P. 197; '2 All E.n 412 .
.. At p. 199.
"(949) P. :3:11.
'i (1951) c\.C. :191: 119.51) I All KIt 124.
1
486
MEDICAL LAW AND ETHICS IN INDIA
Between August 29, 1945 and February 19/19, the husband had been absent from the United Kingdom whilst his wife had remained there. On the evidence given in the case, the court came to the conclusion that the child was an illegitimate child and that the wife had committed adultery. But it may be noted that two judges took the contrary view, and that the three judges who held that the child was illegitimate pointed .out that in the case of an interval of 360 days between intereourse with the husband and the birth of the child, the court could not in the absence of further evidence, regard adultelY by the wife as established. The answer to the question whether a child is the result of an abnor mally long length of pregnancy or is the result of adultery depends upon the weight attaehed to the scientific and other evidence led in a given case. Each case in which legitimacy is contested must be decided on its own merits. As medical text-books and courts have obServed, it is I impossible to be dogmatic as to the limit of time beyond which labour must necessarily terminate a pregnancy. vVhat is the minimum period of gestation compatible with the via bility of a child? ,~1edical authorities~e agre~d that ~he n2ini~ l~eliod of gestation ..fommltibJe.wi~tll~;.'Lllib.ilii~~:....QLachildJ.;)se1LQll.. one decided by an Indian court and months. 1 In two decided cases ,...- thb other decided by an E'nglish court - a question arose whether a child born within seven months of gestation is viable. In both the cases the courts considered the medical evidence led by the parties . and the textbooks cited before them as also the facts of the respective cases and came to opposite conclusions. In the Indian case it was held that the child alleged to be born after one hundred and seventy-two days of gestation must have actually had a period of gestatiorl of a longer duration as, if it were of the duration alleged, it would not have survived. In the English case the court held that the child had had a gestation period of one hundred and seventy-four days dura tion as contended by the wife. In order to appreciate the opposite conclusions reached in \\,hat may prima facie appear to be similar cases, it is necessary to examine their facts as also the medical evidence led. Looked at in the proper context, they will not be found to contain any contradictory principle, either of law or of medical science. In the Indian case,l the marriage between the parties took place on June 19, 1949. Intercourse took place a few days later. A healthy female child was born to the wife on December 1:3, 1949. The baby 1
Sundllr l3aikrishnll v. l3alkrish!!o Ramchollrira; unreported judgment of Naik dated July 1st, 1960 in Bombay Court First Appeal No. 666 1959.
J.
MATRIMONIAL MATTEHS, SEXUAL OFFENCES
487
weighed 4 lbs. and no extra care or nourishment was required to make the child viable. The child survived and grew as a healthy, normal child would. On the footing that conception took place as a result of the first intercourse, the child would be deemed to have bee11 born after a lapse of one hundred and seventy-two days. It was contended by the husband that the child was the result of an illiCit connection by the wife with another man prior to her marriage with him. The court considered the opinions on the problem expressed in medical text-books, the medical evidence given in the case and the state of development of the child at birth and came to the conclusion that the husband's contention was correct. The aspects stressed by the court may bc stated as follows: (1) The weight of the baby was 4 Ibs. According to nonnal statis-\ tics l the weight of a baby born after one hundred and seventy-I two days would be l)f Ibs. The court accepted the view of medical authorities that, in a normal case, the age of a foetus' can be determined according to its weight. A table of these statistics is given below:
I
V,'EIGHT
AGE OF A
~------"--".-".------
- _..
FOETUS
__..•_.
% lb.
4th month
l'
5th
I:!
6th 2Ji
7th
011
<)/:!:
8th
4E
9th
, to
'7
7}~
lbs.
10th
(2) The court relied upon the evidence of the lady doctor who~ delivered the child and who, inter alia, stated, "111e child when} it was delivered, looked like a normal child which would survive. I made no attempt to keep her alive. To keep alive a child very prematurely born, \Ve vitamin drops and keep I her in cotton. This was not clone in the case of the child. t I The child \veighed 4 lbs." According to her, seven months of \ gestation had been completed.
I
Eden nncl IIoll:mcl, 8th edition, p. 5·3 nnd Cox's Medico 4th p. 185 are referred to in the judgment.
488
MEDICAL LAW AND ETHICS IN INDIA
(3) The court also relied upon the opinion of medical authorities that a child born after completion of six months has very few chances of survival. The court cited in its judgment the follow ing passage from Cox's Medico-Legal Court Companion,l '''Most authors hold that a' child born at one hundred and eighty days. gestation may live. A child may be born alive before this period, but it is not viable or cap ble of living. A foetus of three or four months' deve lopment may exhibit signs of life, movements of the limbs, etc., but it cannot continue to live, owing to the want of deve lopment of the breathing centre. lvlost six months children die immediately or within a few days of birth; occasionally one has been reared." The following passage from the Manual of Ob stetricszlwas also cited by the learned judge, "By a viable foetus is meant a foetus of such a stage of development that after birth it is capable of maintaining an independent existence. Practical experience shows that the foetus is, with very few exceptions, too feeble and immature to survive birth if it is born before the end of the twenty-eighth week of pregnency. The age of viability is therefore taken as nventy-eight weeks. Foetuses of this age measure 35 cm. from the crown of the head to the sole of the heels, the body being fully extended; this length may be taken as a trusnvorthy criterion of viable age in the absence of menstrual data." The court distinguished an earlier English case3 by saying that the only fact found in that case was that the period of foetal life was one hundred and seventy-four days and that there were other features clearly indicative of premature birth. In the English ca~e, a petition for divorce was filed by a husband against his wife, based on the charge of adultery, and that charge was admittedly based simply and solely on the fact that on February 10, 1936, the wife gave birth to a child, and that, if the husband was in fact the father, it was common ground that the earliest possible date on which conception could have taken place was August 20, 1935. The two dates were, in fact, one hundred and seventy-four days apart-that is to say, six lunar months and six days or nventy-four weeks and six days apart. There was not a shed of evidence that the wife was conducting a love affair, or, indeed, any sort of association with any man, known or unknown. As 4th edition, p. 248. By Eden and Holland, 8th edition, p. 618. 3 Clark v. Clark (19'39) 2 All E.1\. 59. 1
2
MATRIMONIAL MATTERS, SEXUAL OFFENCES
489
the court remarked, the case rested solely and absolutely <,:n what it was asked to find as a law of nature, namely, that the child having survived birth and being in fact alive at the moment, some three years after her birth, could not possibly be the child of the husband because the maximum period of foetal life was one hundred and seventy-four days. In rejecting the contention of the husband, the court particularly relied upon the following passage in a leading text book on medical jurispmdence/ "It would be in the highest degree unjust to iinpute' illegitimacy to off-spring, or a want of chastity to parents merely from the fact of a six month child being bom living and surviving its birth. There are, indeed, no justifiable grounds for adopting such an opinion." The presiding judge expressed the opinion that he could dispose of the case on that passage alone and he found it difficult to understand how, in face of an authority like that, it was possible to assert as a matter of law or as a matter of nature, that he was bound to find that the husband was not the father, and that, therefore, the wife was guilty of adultery. It was stated by one Dr. Roques, whom the court described as a gynaecologist of unquestioned standing, that it was impossible that a child born one hundred and seventy-four days after intercourse could sur woman doctor of very considerable vice. Another doctor, Dr. Morgan, experience, during the last ten years, particularly in regard to prema ture births", admitted that it was not impossible but she and the other doctors who gave evidence in the case expressed the opinion that the chances of survival of a child having a foetal period of one hundred and seventy-four days were very remote. However, medical evidence led in the case proved, without any shadow of doubt, that when medi cal men referred to the foetal life of a ehild, they meant the foetal life according to the notional period. The notional period was recokoned from an artificial date, namely, the date of the last menstrual period, bllt Dr. Roques admitted that it was unlikely to be the real date of con ception or fertilisation. The notional period, therefore, would differ from the actual period. The actual peliod would probably place at any time upto the date when the menstrual period is due to. begin. Therefore, the judge concluded, cases met with in practice and referred to by medieal men as having a duration of seven months~-acc()rding to the notional period-would in all probability be of a shorter duration. there was nothing "extravagantly improbable" in the child in question "being a viable child."
I
I
Taylor's Principles and Practice of Medical Jurisprudence 9th Eclitioil, Vol. 2, p. 4G; 11th Edition, Vol. 2, p. 34.
490
MEDICAL LAW AND ETHICS IN INDIA
A pa~sage from the judgment on this point may usefully be quoted, "The actual conception would probably take place at any time upto the date when the next period is due to begin. It foHows from that, as -Dr. Roques admitted, that, in a case where one can only take this notional method of calculation, a child born on the one hundred and ninety-sixth day-that is, at the twenty eighth week, or seventh lunar month, from the notional starting-point might very well be conceived quite normally in fact on the twenty the notional starting point - that second day from the starting-point is to say, some six days before the next period is due to start, and that, in a case which would be regarded, 011 the usual methods of calculation, as a one hundred and ninety-six days case, or a seven months child, the period of time would in fact be one hundred and seventy-four days, or exactly this case, .......... Comparing like with like, it is not necessarily the case, but it may very well be the case, that this child, whose foetal life cannot have exceeded one hundred and seventy-four days, may nevertheless be comparable with any of the cases met with in private practice, in the hospitals, and in the text hooks, which are re corded as having a notional foctal life of over one hundred and ninety days, or even up to two hundred days. Therefore, \vhen one reduces the actual facts of this case to the same terms as those upon which the theories and the tables are based, it is utterly impossible to say that there is anything extravagantly improbable about this being a viable child." To conclude the discussion of the English case, it may be pointed out that the judge felt that his opinion that the child was a premature baby of one hundred and seventy-four days duration was strengthened by certain relevant features of the case. These were that the birth wa~ precipitated by an accid6'nt, namely, a very nasty fall the wife had within the preceding forty-eight hours, tbat the child weighed 2% Ibs. only and that it required great and devoted care to keep it alive. The difference between the notional period and the actual period mentioned above has also 'been referred to in an Indian case.!
Part II SEXUAL OFFENCES J
RAPE In cases of rape, medical evidence is usually led. It is, therefore, llecessary to note S~,5 of th~ Indian Pe:l1aL CoclLwbich deals with rape and a few decisions on the interpretation of the section. Sushila Hal1Clldra v. Mahel1dra .\lalli/at, 01 Bom. L.E, 431 2t 436.
MATlU~IONIAL
491
MATTERS, SEXUAL OFFENCES
Section 37.5 reads : "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 five following descriptions First - Against her wilL Secondly \Vithout her consent. Thirdly With her consent when her consent has been obtained by putting her in fear of death, or of hurt. Fourthly \Vith 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. With or \vithout consent, when she is undel Fifthly sixteen years of age. Explanation - Penetration is sufficient to constitute the sexual in~ tercourse necessary to the offence of rape. Exception - Sexual intercourse by a man with his Dwn wife. the wife not being under fifteen years of age, is not rape.'" A nodding acquaintance with the judicial interpretation of the ingredients of rape is necessary in order that a practitioner may know what aspects he ought to bear in mind when he prepares a medical report or gives evidence in a case involving a charge of rape. Peneh·ation. (1) In Anthony,! it was held that for the offence of rape, while there mLlst be penetration in the technical sense, the slightest penetration would be sufficient and a completed act of sexual intercourse was not necessary. (b) Vulval penetn!tion, \vith or without violence, is as much rape ell) va.,ginal penetration. It is not necessary that the hymen should be ruptured in every case. The 1ndian Penal Code merely requires medical evidence Df penetration, which can occur without the hymen being rup tured. 2 (3) depth of the penetration is immaterial so far as the offence of rap";is c~;~Z~d.· From the mere-f-a-c-t-that there is no -
#
dilation of the vaginal canal it should not be assumed that the offence was not committed when the injury to the hymen clearly shows that there was pepetration by the organ. (4) Though rupture of the hymen is by no means necessdlY in law to constitute rape, courts are reluctant to believe that there could hav\" t
i
1
(960) A.I.R.
~Iaclms,
.'308.
.~ fantan v, Emperor, (19:34) A.Ln, Lahore. 797.
') v Stabe, (J 9.57) A,LIt Orissa, 78
492
MEDICAL LAW AND ETHICS IN INDIA
been penetration without that, which is so near the entrance, having JI been ruptured. 1 (5) The mere existence of injury to the vagina docs notnecessarily~ and inevitably justify the inference that there has been rape. 2 U (6) t In rape cases, if the glans of the male organ is covered by a uniform layer of smegma, it negatives the possibility of recent, com plete penetration. The prosecution must, therefore, get the male organ of the accused examined, ,othelwise the accused could say that medical examination would have negatived the possibility of recent, complete penetration or proved that there was no penetration. The prosecution should, if medical examination is capable of yielding conclusive results, ensure such examination within a period of time during which conclu sive results can be achieved. s , Consent. A medical practitioner must remember that though it is: 1 not for him to decide or express an opinion as to whether the intercoursej was with or \vithout the consent of the woman, he might be asked questions to help the court to determine this point. The medical prac- i titioner might also be asked questions concerning injuries on the body l of the woman and he must, therefore, examine the woman to note marks ; ofil1jury. The clause "without her consent" in the section needs to be ex plained. The consent of the woman for the purposes of this section must have been obtained prior to the act. It may be noted that c.9nsent,~lid defence to a crimins! charge, must be re-al, that ~ it must not be vitiated by immaturitl:, misco_!!£..eption, misun~llii: i~ or fraud.!
i
~h;.£JEnu~o~c~ ne~_~l.~t. Where a man had intercourse
v.,Tith a woman while she was asleep, he was held to have committed rape, The consent of a girl under ten years of age was held to be of no ~illi~c:~ Consent would mean that the girl was willing that the' act should be done; if, from her tender years, not knmving what being done, she merely submitted without exercising her will, it did not amount to consent. Consent given bv a woman of unsound mind is also of no avaiL Whe-;-a-~-;- had~-;'~l knowledge of a girl ~imbecile mind, the jUly fonnd that it was without her consent, shc being incap able of giving consent from defect of understanding and it was held that
wasJ'
1
4
Mehrei Din v. Emperor, (1927) AJ.R. Lahore, 222. Maung Ba Yin v. The King, (19.38) A.LH. 298 at .300. Ram Kalu v. Emneror, il94()l AJ.H. AlL 191 at 194. Sec. 90, Indiall Penal Code.
MATIUMONIAL MATTERS, SEXUAL OFFENCES
493
the act amounted to rape. Similarly, <:2!lse.nt-K~~ntoxicated woman is of no avaiL In eases of rape it becomes necessary for the mediealpractitioner called upon to examine the alleged victim to determine whether or not she has been raped. In these cases he may also have to determine whether or not the alleged victim is a virgin. The characteristic signs of virginity and defloration are given below to aid the medical practitioner in coming to a conclusion. Signs of Virginity and Defloration
Signs of Virginity . 1.
The labia majora are adjacent to each other, fully developed and completely close the vtIlva.
2. In young girls, the labia minora are in contact and are covered by the labia majora. In women, the labia minora are in contact and are not totally covered by the labia majora. :3. The fourchette, posterior com missure and fossa navicularis are intact.
Signs of Defioration 1. The labia majora are not op posed to each other, not promi nent and, at the lower end, thE; vulva can be discerned. 2. The labia minora are not in contact, are totally exposed and are separated from the labia majora.
The posterior commissure is ruptured, usually at the very first act of sexual intercourse and the fossa navicularis (lis appears exposing the vulva more openly, below and behind. 4. The hymen is intact, rigid and 4. The hymen may be torn or may
inelastic with a narrow opening, be intact; in the latter case, it
scarcely allowing a small Hnger is loose, elastic, \vith a wide
to pass. opening allowing the passage
of two Hngers. 5. The vagina] opening is narrow ,J. The vaginal opening is broad with rugose vaginal walls. and the vaginal walls are not rugose. In spite of the clear-cut distinctions mentioned above, there may be cases which are baffiing and, in examining these, a heavy responsibility rests on the medical practitioner as grave legal consequences may re sult from his opinion. 3.
Examination of an alleged victim of a sexual offence. For the ex amination of an alleged victim of a sexual offence, the following points may be remembered: (1) As far as posible an alleged victim of a sexual offence should) :not be examined without the authority of a court of law or of the Police. ? Notes taken of the examination should be carefully preserved to be \ produced hefore the court or the Police.
494
l (2)
J\1EDICAL LAW AND ETHICS IN INDIA
The consent of a woman for her examination must first be obtained (or, if she is under 12 years of age, of her parent or guardian). Examining a woman without her consent· might involve a medical prac titioner in a charge of indecent assault with intent to outrage the mo desty of the woman. Consent cannot be taken for granted because a court or the Police has sent the case. Generally, consent is obtained verbally. If the woman hesitates, she should be asked to put her consent in writing. If wlitten consent is refused, the wom~U1 must be sent hack to the authority that has sent her. (3) The examiner should acquaint himself with all the available data regarding the alleged offence before undertaking the examination of the woman. He should ask the woman to give him, in as much detail as possible, her version of the assault and its consequences in order to co-relate it to his findings. (4) The examination must be carried out without delay lest any important clue be missed. (5) If the victim is in her menstrual period, the examination may be postponed. If the examination is carried out during the period, a second examination should follow at the termination of the period. (6) A woman should always be examined in the presence of Cl. third person, preferably a nurse or a relative of the woman, lest the practitioner be falsely accused of outraging her modesty or even of rape. (7) The woman should be placed upon a bed crosswise with the thighs separated and the legs elevated and flexed and the heels apart; thereby the hymen is stretched as required for the examination. Pyrex glass rods of various sizes with knobs at the end should be kept ready. These glass rods should be warmed and passed through the hymenal orifice, knobs first and then brought forward with a view to evening the edges of the hymen in order to differentiate a hymen with notched or serrated edges from one which has an incomplete tear. (8) The appearance of the external genitals should be noted: vl/hethel' their eondition is altered by sexual intercourse and whether there are signs of trauma on them. If there is genital trauma, the nature of the trauma should be noted and also whether the trauma is due to the introduction of a foreign body into the vagina or due to mainipula tion of the genitals. (9) It should be observed whether the hymen is intact, torn or lacerated. (10) The presence or absence of vaginal or urethral discharges me blood should be observed.
lvfATRIMONIAL MATTERS, SEXUAL OFFENCES
49.5
(11) The presence or absence of venereal disease (genital or extra genital) should be noted. (12) The presence or absence of extra-genital trauma and, if pre sent, its character and position should be observed. (13) The presence of semenal stains on gannents should be looked for. Rents in the gannents or foreign material, like grass, sand, etc., on the garments should also be looked for. J Examination of a person accused of a sexual offence. The following points should be borne in mind in examining a person accused of a sexual offence: (1) Since the examination of the accused may have serious con sequences for him, it should be noted by the practitioner that, prior to the examination, the accused's consent to the examination must be ob tained. The acc~sedshoukLb~~.Jdd,before.. beipg asked to consent that, the results of the examination would be -reported to the authorities and, -r- ~~haps, cited against him. Consent, if oral, should be taken in the presence -of a third person. If the accused refuses to give his consent, the examination should; not be forced upon him but his refusal should be reported to the authorities concerned and he should be re turned to them. (2) Examination of the genitals of the accused: (a) The practitioner must note whether there are any scratches or abrasions on the accused caused by the victim during the struggle for the prevention of intromission. (b) He should minutely examine the prepuce, glans penis and the frenum for tears. (c) If the accused is not circumcised, the foreskin may be 1'e- ; tracted anel the presence or absence of smegma on the corona glandis should be noted. The absence of smegma would lead to the conclusion that the sex act might have been perfonned but the presence of smegma absolutely negatives the possibility of complete penetration because the smegma gets rubbed off· during intercourse. S~gg!a. ll~allv-2:.equi1'e~bout t:wenty-fou~. The matting of pubic hair by discharge should also be noted. (.3) The existence of venereal disease either in a manifest or a latent fonn, mnst be looked for. For this purpose, repeated examinations are necessary. (4) l'.farks of struggle on the face and body of the accused are gEcJl(';rally present jf resistance has been offered by the victim.
-.--
~.-.~.-
496
MEDICAL LAW AND ETHICS IN INDIA
01'\
(5) Female hair on the face, body or clothes of the accused feminine pubic hair in his prepucial fold affords a valuable indica tion of the commission of the offence. The hair should be preserved and produced in court as evidence. (6) Rents and foreign matter on the clothes of the accused ~hould also be looked for.
Death During Intercourse. In a recent African appeal to the Privy Cou:ncil/ the accused was charged with the murder of his wife. ril1e medical evidence led showed that sexual intercourse had taken place just before death, which was due to asphyxia caused by pressure on the chest applied simultaneously with pressure on the neck and thrQat. The medical witnesses were unable to say how severe or how prolonged such pressure would have to be in either place to cause death. The accused, having been convicted of murder, appealed to the Court of Appeal for Eastern Africa which substituted a conviction of manslaughter. The Crown ap pealed, seeking to restore the conviction of murder, and the accused appealed against the conviction of manslaughter, contending that the dcath was caused accidentally in the course of sexual intercourse. it was held that the accused was guilty of manslaughter. The natural evidence to speak with precision about the degree of force used, to gether with other circumstances, opened up both man-slaughter and accident as an alternative possibilities requiring consideration and it was the duty of the judge to deal with the alternatives that emerged from the evidence as fit for consideration, notWithstanding the fact that they were not put fonvard by the defence. On the evidence it was held that the accused was guilty of manslaughter. The natural inference from the medical evidence, in the absence of explanatory evidence by the accused, was that he pressed his wife's neck must f' too hard; he had gone well beyond the limits of the normal accom paniments of intercourse and the degree of force used was unlawfuL This t finding was reached inspite of the fact that the court held that then}' was complete absence of motive and there were no external signs o~ any struggle. The qnestion was whether what had been done was within the limits permitted by the wife's submission to intercourse and its normal accompaniments or whether it went beyond these limits so as to constitute an assault upon her, amounting at the very least to a matrimonial offence. If death had been caused solely by the pressure on the chest, it would have bee!1 quite consistent with its being an accident. 'Without expressing a final opinion, the Privy Council said 1
The Oueen v. Sharampal Singh: (1962) A.C. 188,
MATRIMONIAL MATTERS, SEXUAL OFFEI\CES
497
that it was possible that, as the Court of Appeal thought, the accused was applying pressure in an excess of sadism to frighten or torn1ent the wife, or to overcome resistance. The accused was found guilty of manslaughter. Unnatural Sexual Offences. Section 377 of the Indian Penal Code .which deals with this topic reads as follows ; "Whoever voluntarily has ~rnal intercourse a~ainst the order of nature with any man.!.... \~an or animaL shall be punished with trans portation for life, or with ~mprisonment of either description for a term which may ~;(t(:;!1dto ten years, and shall also be liable to fine. Explanation.-Penetration is sufficient to constitute the carnal inter course necessary to the offence described in this section." S.2sl2I!!L.is an unnatural sex act via the anus be~veen tV'lO huma!l 1?eir~~lly n1ale~:.l.!_ is cont::~ Jo the l~~mate object of marria~ and constitutes a valid ground for divorce.
If sudden force is used in committing the offence of sodomy, a mark of injury is likely to be left. From the following signs one may opine that sodomy has taken place (i) anal and extra-anal traum~l;/ (ii) presence of semen in the anal canal;./ (iii) transmission of venereal disease/, Anal trauma depends upon the disproportion between the size of the penis of the active agent and the size of the anus and upon the amount of force used. Lesbianism is the name given to homosexual relationships between women. The question of lesbianism arose in a Scottish case l where the husband was charged with a severe assault on his wife and another woman. It was argued on behalf of the husband that he had discovered them committing acts of lesbianism and he was provoked to assault them. The trial judge told the jury that lesbianism was as serious an infringement of the duty of a wife as adultery was, and therefore, if the assault was the result of the indignation of the husband against the con duct of the two women, that would constitute provocation in law. The question of lesbianism also arose in a divorce case :2 the court granted a divorce to a husband on the ground of cruelty due to his wife's sexual perversion, a constant indulgence in lesbianism, which caused injury to his health. Ill.lIf. Advocate v. Callander (1959) The Medical Annual, p. 286. Gardener v. (947) 1 All E.R. 630.
2
M.L.
32
498
IvIEDICAL LAW AND ETHICS IN E\D1.\
Part III INTERSEXUALITY
1
There is no precise definition in law or in medicine as to what really' constitutes the male sex or the female sex. Indian Penal Code only states that the word 'man' denotes a male human being of any and and that the word 'woman' denotes a human being of any 1 In an English case,2 Byles, J. said, "The word 'man' in a scicntiGc treatise on zoology or fossil organic remains would include men, women, and children as constituting the highest order of vertebrate animals. It is also used in an abstract and general sense in philosophical or religious disquisitions. But, in almost every other connection, the word 'man' is used in contradistinction to 'woman'. This restricted sense is its ordinary and popular sense." Neither the statutory definitions of 'man' and 'woman' nor the judi cial definition of 'man' any help for determining sex. According tOI Armstrong," the sex of an individual is the anat.gmical structure of the gonads irrespective of the external appearance and the social anal sexual inclinations. But, as he himself says, it is not a true legal defini tion as the law has never defined sex. The same position obtains in Indian law. A celebrated English psychiatrist' has the following de finition of male and female: man is a person possessing maseuline sexual organs and who, given favourable circumstances, is able to fertilize a female. A woman is a person possessing female sexual organs a,nd W11O, given favour:lble circumstances, is capable of bearing a child." As there is no legal definition of a man or a woman, there is no precise definition in law of an intersex. In medical parla~~ce~ intersex is an individual intermediate in sexual characters between n ~--~----~------~~--~----~--~ !;ypical male and a typical fel~ Such a human being has some male dl1d some female sexual An intersex, howcver, never has twp perfect sets of both male and female organs. Intersexuality or henna l;}uoditism consists in imperfect sex differentiation. The sex of an individual can, generally speaking, ascertained with accuracy in the following manner : (1) <&1e~~ asccltained by examining a part of the individual's skin under a microscope../
i"A
I
1 :1 I
S"ction JO. e/lOrlloll v. Lings, J 8(8) L.li. 4 GP. :374 at 392. (1955) B.MT. ~fa\' 14lh. 117fl. Clifford . (1954) B.,H.]. April 816.
MATRE\10NIAL MATTERS, SEXUAL OFFENCES
499
Hormonal sex, ascertaiined by investigating biochemically whether the indiviclual's secretions are of testicular or of ovarian origin . ../ (3) Anatomical sex, ascertained by physical inspection. /~~
(4) G..Qpadal sex, ascertained by microscopic examination of a part of the individual's gonad./~ (S) Psychological sex. ascertained by observing the individual's behaviour....I Till such time as a child reaches full term its sex is not definitely detelmined. Sometimes, however, even at full tenn, the differentiation into male or female does not occur: this explains the birth of an inter sex. Change .of ~e~ or perfeeti~n of .se~. The gonads ca~ll1ot be removedf bec.anse an n:d~vIdnal ~o de~Ir~s; It IS llnlaw~ul and It would b~ ethIcaL But, It IS submItted, It IS legal for an mtersex to pedect hIs sex according to his choice. It is not unethical to use medical, psychiatric and surgical means to perfect an intersex, an unfortunate individual, to· wards his predominant sex.
un-(,
Effect of change of sex. An English court has decided that ~re ,(ersal of sex status does not jnv~date a legacy, the perSall remaill~ the same no matter whether regarded as ti daughter or a son.1 ~
Correction of birth certificate. In a Scottish case,2 it was held that the Registration of Births, Deaths and 'Alarrlages (Scotland) Act, 1954, could not be invoked to correct an entry of birth from male to female on the ground that the sex of the individual had changed. The application was made on behalf of H 50-year olel man, father of two children, who, for several years, had be~n living as a woman. It was held that the register was c.ssentially a r~corcl of facts and not a narrativc of events ; and, therefore, a cntry of Luth could not be corrected because of some subsequent change of circumstances.
I
In 19.57, in the House of Commons, a question was put to the then i\Iinister of Health whether a correction could legally be made in the ori ginal registration of birth by reason of a subsequent change of sex. The l\finister replied that the corrections authorised to be made in the re gister under the English statute related only to errors made in any parti cular at the time of original registration. 3 It is submitted that the HJ52) B.}l.J. 14th ]J. 1293 1957} IL'I.1. lOth Aagllst, p, :359 1957) B,M.] .. Octoher 19th, p, 95:3.
500
MEDICAL LAW AND ETHICS IN INDIA
same legal position obtains in India. As a correction can be made in the register only when the facts ascertained at the time of birth are incorrect and as no account can be taken of later changes, a practi tioner who is requested to make a declaration of change of sex for altering an entry in the birth register must be satisfied, before making such a declaration, that a mistake was made at the time the entry was first made in the register.
APPENDIX I
GLOSSARY OF SOi\1E LEGAL TERMS
Action - a proceeding in a civil court.
Appellant - the person who files an appeal.
Common Law - judge-made law as opposed to codified law, law
passed by a legislature. Cognizable offence an offence for which a police officer may arrest a person without a warrant. . Cause of action - a set of which give a person a right to file a proceeding in a civil court. Complaint an allegation made orally or in writing to a magistrate that some person has committed an offence with a view that a magistrate may action against such person under the Criminal Procedure Code. Defendant the party against whom a civil action is filed. Damage the injury suffered by a party. Damages the amount of compensation payable to a party to whom injury has been done. Decree a document under the seal of a court sctting out the relief granted to a party or parties. Deposition evidence given on oath. Expert witness a witness who has acquired special knowledge, skill or experience in any science, art, trade or profession. Examination-in-chief - examination of a \vitness by the party \vho calls him. Cross-examination - examination of a witness by the opposite party. Re-examination - examination of a witness by the party calling him cross-examination is over. It is restricted to the clarifi cation of answers given by the witness during cross-examination. Finding - a conclusion reached by a court of law on a particular ques tion. Issues - points of dispute \vhich are raised by the court on a case before hearing the parties. Judgment the decision given by a COUlt of law. Plaint the written document filed by a party by which a civil proceed ing is commenced in a civil court. Plaintiff - the person who files the suit. Res Ipsa Loquitur - a Latin expression which means 'the thing speaks for itself'. Certain acts by themselves are considered acts of withou t any evidence being led by plaintiff to show that the defendant was negligent.
502
,\fEDICAL LAW AND ETHICS Ii\" INDIA
I\espondent - the person against whom an appeal is Bled, Respondeat Superior - a Latin expression ,vhich means 'let master respond', i.e., the master is held liable for an act of negligence done by his agent or servant. Statute the law as passed by a legislature. Suit a civil proceeding in a civil court of law. Subpoena - an order issued by a court requiring a person to attend court at a particular time and place as a witness; another name for subpoena is "witness summons", Subpoerw Duces Tecum - an order by a court requiting a person or company to bring and produce documents mentioned by the court before it at a particular time and place. The person who brings documents in obedience to this order is not a witness and 'he cannot be ~examined by any party. Summons- the official notice issued by a court upon a party informing him of a suit filed against him in a court of law. 'Written Statement - the reply filed by the defendant to an action filed against him in a civil court of law.
I
APPENDIX II SELECT BIBLIOGRAPHY
*
ALLEN, Clifford, A Text Book of Psychosexual Disonlers. A:!'.cfERICAN lVh<:DICAL ASSOCIATION, Law Department, Medico-Legal Forms
with Legal Analysis. AR;\fSTRONG, C. N., Diversities of Sex, an article in the issue of British Medical Journal, May 14th, 1955. BECCLE, Dr. H. c., Lecture on Projected Changes in l'..1ental Health Laws, reproduced in the Medico-Legal Journal, VoL 28, p. ·4. BRITISH ~IEDICAL ASSOCIATION, The Medical Practitioners' Handbook. CAMPBELL, Sir David, The Doctor's Code, an article in the issue of British Medical Journal of September 1st, 1962. CAHNAHAN, Charles \Vendell, The Dentist and the Law. CAWADIAS, P., Hemwphroditos (The Human Intersex). Cox, Major H. \V. V., Medico-Legal Court-Companion. DAVIDSON, Maurice, Medical Ethics. DONALDSON, Samuel \Vright, The Roentgenologist in Court. EARNGEY, \V. G., Hon'ble Judge, Voluntary Mercy Deaths, an article in the Medico-Legal Review (1940) VoL 8, p. 91. FRENCH, Alistair, Medical Certification, an article in the Practitioner, July, 19,57. GLAISTER, John, Medical Jurisprudence and Toxicology. GOODHEART, Prof. A. L., Hospital and Trained Nurses, an article in ,54 Law Quartery Review, p. ,53,3. GORDON, t, TURNEH, R, and FRICE, T. \V., Medical Jurisprudence. GRAD\VOHL, R. B. H., Legal }'1edicine. GHOESCHEL, (See HAYT). HADFIELD, Stephen J., Law and Ethics for Doctors. lIAINES, (See PETEHSON). HAYT, GROESCHEL and MCMULLAN, Law of Hospital and Nurse.
HAYT, HAST and GROESCHEL, Law of Hospital, Physician and Patient.
HALSBURY'S LAWS
OF
EKGLAND, Third Edition, Vol. 26, Medicine and
Pharmaq/. HERZOG, Alfred vV., lJ1edical Jurisprudence. " For an exhaustive list of literature in English on LEGAL l\IEDIcINE, includ ing Englis11 translations of many important works from other languages, see Bi.bUography of Medico-Legal V\'orks ill English, by HOBERT P. BHlTAI1'<, published under the auspices of the British Academy of Forensic Sciences by MESSRS. S'VEET
& !\L,>,.XWELL LTD.
.504
!-.!EDICAL LAW A.ND ETHICS IN INDIA
HOUTS, Marshall, COUlt1'00rn Medicine.
HUSSAIN, Mazhar, The L~w Relating to Drugs in India.
JOHNSON, Wingate 11., The True Physician.
KEATING, V., Anaesthetic Accidents.
KITCHIN, D. Harcourt, Law for the Medical Practitioner.
KITCHIN, D. Harcourt, Legal Problems in Medical Practice.
LANCET, The Editor of the, The Conduct of Medical Practice.
LEVILL, Walter Montague, The Law in Relation to Surgery, a chapter
in Vol. .5 of British Surgical Practice. LEVINSON, Arthur A., Socia-Legal Aspects of Euthanasia, an article in the Journal of Forensic Medicine, (1961) Vol. 8, p. 57. LEVINSON, Samuel A., Symposium on Medico-Legal Problems. LONG, Rowland H., The Physician and the Law. LYON'S Jl.Jedical Jurisprudence for India. MANT, A. Keith, Forensic Medicine, Observation and Interpretation. 1fARSHALL, John, The Ethics of Medical Practice. ~vlcFADDEN, Charles J., Medical Ethics. McLAREN, J. vV., l''t'lodem Trends in Diagnostic Radiology, (Second Series). McLELLAN E. B., Bar-at-Law, Mental Health Act, an article in Medical Annual, 1960, p. 238. 11dvIuLLAN, (See HAYT) MEREDITH, William C. J., Malpractice Liability of Doctors and Hospitals;
Common Law and Quebec Law. MITHAL, B. M. Text Book of Forensic Pharmacy. MODI, J aisingh P., A Textbook of Medical Jurisprudence and Toxicology. MORITZ (See REGAN). MORLEY, Pro£. John, Medical Ethics and Medical Etiquette, an art e in the Medico-Legal Journal (1949) p. 16. NATHAN, The Rt. Hon. Lord., Medical Negligence; Being the Law of Negligence in Relation to the Medical Profession alul Hospitals. P;TErtSON, Frederick, HAINES, vValter S., WEBSTLd, Ralph \Y., Legal: Medicine and Toxicology. PLANT (See SHARTEL) PRICE, (See GORDON) RATANLAL and DHIRAJLAL, The Indian Code of Criminal Procedure. RATANLAL and DIIIRAJLAL, The Law of Crimes. REGAN, Louis J., 11 ORITZ, Allan R., Han 'book of Legal Medicine. REGAN, Louis J., Doctor and Patiellt allli. the Law. RIDDELL, Gt;orge Allardice, Medico-LL~Ll Problems. ROBEHTSON, \Yilliam George Aitchison, l'.ledical Conduct and Practice. ROHLEDER, Hermann, Test Tube Babies. Roy, L. ~urtis, The Le{!,al Liability of Allaesthesiologists, an article in Anaesthesia and Analgesia, Vol. 41, (1962), p. 633.
APPENDIX II
505
on Torts. Robert, Medical Ethics: A. Guide to Professional Conduct.
SHARTEL, Burke, PLANT, Marcus L., The Law of Medical Practice.
SL\fPSON, Keith, Forensic Medicine.
S'.fITH, Frederic John, London Hospital Lectures on Forensic Medicine
and Toxicology. S]l.HTH, Sydney, Forensic Aledicine, A Text-Book for Students and Practi tioners. SPELLER> S. R, Law Relating to Hospitals and Kindred Institutions. SPEHRY, \Villard L., The Ethical Basis of Medical Pmctice. STIWAS, Norman St. John, Lite, Death and the Law. STRYKER, Lloyd Pant Courts and Doctors. TAYLOR'S Principles and Pmctice of Medical Jurisprudence. THOINOT, L., Medico-Legal Aspects of Moral Offences. THO:"1PSON, A. P., Professional SecTecy, an article in the Practitioner, July, 19.57, p. 34. THWAITES, J. G., Into Gelwral Practice: A Guide fOT Beginners and OtheTs. TRAVEHS, R L., HlIsband and Wife in English Law. TRUMAN, Stanley R, The Doctor: His Career, His Business, His Human Relations. TURNEll, (See GormoN). VVASl\1ETH, Dr. Carl, Anaesthesi~,aw. WEBSTEll, (See PETERSON}_ "'-:::::::_ _ WILLIAMS, Glanville, The Sanctity of Life ;;ncrfhe--Griminal Law. WOOD Hugh, M. D., Medical Secrecy, an article in Lancet of 26th April 1941, p . .583. SALl\WND
SAUNDBY,
M L,
33
I N DE X
AI30RTION English and Indian Law distinguished, 323,
justification for pcrforming, 322, 323,
miscarriage, what is, 324,
necessitv for, when exists, 323, 324,
punislm;ent for illegal, 324, 325,
quickening, what is, 324.
>\DULTERY artificial insemination and, 412, 401 3.
ADVERTISING~~
drugs, of, 20, 444~447, drugs, of, restrictions upon, 326. ethics of, 89-9l.
AGE-
certificates 01, 335-338.
diaphyseo-epiphyseal union in dcter
mining, 336, 337,
diaphyseo-epiphyseal union, table of,
:338,
determination of, 3:36-338,
medical evidence of, 335, 335,
skeletal changes in determining, 338,
teeth in determilling, :337, 338.
AGENCY contracts of, 25.
ALL INDIA INSTITUTE OF MEDICAL SCIENCE objects of, 13. ANAESTHETICS~~
consent to usc, form of, 304,
general health of patient, considera 233.
tion of, negligence in administering, 230··236,
see also Negligence.
ANAESTHETISTS
{ i,
ATTENDANCE-
duty of, n, 74, 215-221,
ethics of, 73, 74"
negligence in, 215-221.
AYURVEDIC AND Ur\ANI SYSTEMS OF MEDICINE-
Ayurvedic system, what is, 62,.
list of practitioners of, 63, 64,
Maharashtra Board of, 62, 63,
Maharashtra Faculty of, 6:3,
Maharashtra "Medical Practitioners fiet, 1961, 62-64,
practitioners of, who are, 62,
privileges of registered practitioners of,
64,
registration of practitioners of, 63, 64,
Unani System, what is, 62.
BIOCHEMIC
PRACTITIONER~-
See Homoeopathic Practitioners.
and
Biochemic
I3IRTH Births, Deaths and Marriages Regis tration Act, 1886, 30,
certificate of, correction of, 499-500,
medical practitioners' obligation notify, 360, 361,
notification of, 360, 361,
.registration, of, 360, 301.
to
BLOOD TRANSFUSION-
agreement for, form of, 314,
agreement for blood-plasma transfu
sion, form of, 315,
agreement with blood donor, form of,
316,
refusal to permit, form of, 3
rdcase and receipt (blood donor), form
of, 317.
duties of, 162-165,
health of patilCnt, consideration of, by, BURKS2,32, 233,
negligence in causing, 221-224. negligence of, 230-236. sec also BUSINESSNegligence. ethics of medical practitioner engaging lINIMALS ill. 74. contagious diseases of, 16.
ARTIFICIAL INSEMINATION
adultery and, 412, ,113,
agreement for, 311, 312,
A.I.D., 4tO, 411,
A.LH., 410, 411,
ethics of, 413,
legal aspects of, 411-413,
neglil~enee in. 41:3,
pitfalls 413,
report of the Fcversham Committee
on. 414, 415,
safeguards suggested {or, 413, 414,
test-tube babies, what are, 410.
CASUALTY OFFICERS llegligence of, 224-225. CENTHAL Co.MMITTEE FOR FOOD STANDARDS ohjects
l3.
CERTIFICATES~-
admissibility of, ill evidence, 334,
age, of, 33.5-338,
hirth, of, correction of, 499, 500,
death, of, medical practitioner's obliga tiOll to issue, 361,
MEDICAL LAW AND ETHICS IN INDIA death,
CORNEAL GHAFTINGdentists' right to 148,
Bombay Comeal Grafting Act, 1957,
Employees State Insurance Act, under,
10, 11,
347-352,
authorisation to use eyes (dollor),
government servants, required by, 35{i form of, 308,
358,
authorisation to use eves (next of
kin), form of, 308. .
impotency of fcmale, of, 482,
impotency of male, of, 480, 481,
CORONERS-
Indian Factories Act, 1948, under, .'342 Bombay Coroner's Act, 1871, 32.
344,
Coroner's court, 326-330,
industrial laws, under, 342-352,
duty of, 23, 24, .329, 330,
leprosy, required for, 352,
functions of, 327, 328,
lunacy, required for, 353, 354, see also
Indian Coroner's Act, 187l, 23, 2; .
Mental Defects and Disorders,
inquest, when to be made, 327, 8,
Mines Act, 1952, under, 344,
contents of, 329, 330,
inquisition, personal injury cases, required in, 358 origin of office of, 326, 327,
360,
post-mortem, examination upon order
Plantations Labour ~Act, 1951, under,
of, 24,
344
powers of, 330.
poten~y of femalc, of, 481,
COURTS
potency of male, of, 480,
civil, 34,
requirements, of, 332-335,
Coroner's, 326-330,
right to issue, 147, 148,
criminal, 34,
vaccinatioll, required for, 354-350,
procedure of, 34.
valid, who can give, 65,
Workmen's Compensation Act, 192.'3, CRIMES-
under, :344-346. abortion, 322-325, see also Abortion,
abusing modesty of a woman, 330, 331,
CHILDREN- Coroner and, ;326-:330,
liability to, in absence of definitions of, 25-28,
contractual relationship, 227,
drugs, in relation to, 325, 326.
Factories, working in, 30,
euthanasia (mercy-killing), 26,
liability of hospital to, in non-medical
Illdian Penal Code, 1860, 25-2H, matters, 226, 227,
negligence, criminal, 318-322,
llegligence in treating, 226, 227, see
opium, regarding, 325, 326,
also Negligence,
speeding OIl emergency calls, TH.
plantations, working in, 29, 30.
Cm.1MON LAW-
role of, ill cases of negligt'nee, 171, DANGEROUS DISEASES
1"79 animal contagious, 16,
wlm't-is, 32, 33.
Bombay A.1!imal COlltagiolls Diseases
Act, 1948, 16,
COMPANY Epidemic Diseases Act, 1897, 12.
deutistry, practice of, by, .'54. notification, of, 361-363,
CONSENT-
prevention of epidemic, 12.
definition of, 295, 296,
what are, 362.
forms of, see Forms,
DEATH-
free consent, what is, 296,
certificate of, 339-342,
kinds of, 296, 297,
certificate of, form of, 340,
married pcrsom, concerning, 303,
certificate, medical practitioner's 01> minors, concerning, 301-303,
ligation to issue, ::::'51,
necessity to obtain, 297-300,
certificates, when not to be iSSllCiiol,
IJatient, of, 163,
341, 342,
reasons for obtaining, 300, 301,
certificate, vV.H.O. recommcndations,
:;exual offences, in cases of, 492, 493.
340 341
CONSIDERATION-See also Contracts, eOl1)s~, authorisation to retain alHj
what is, 24. dispose of, 307,
dead foetus, form of consent to (b
CONSULT ATIOT posal of, 314,
ethics of, 7,1-77. medical practitioller's obligation to
CONTHACTS-
issue certificate of, ,361.
agency, of, 25,
notification of, 360, 3G1,
consideration, what is, 24,
registration of, 3Gl .
goodv\'ill, sale of, 24,
DEBTS Indian Contract Act, 1872, 24, 25,
time-barred, recovelY 24. mental defects and disorders and, 436.
437,
DENTISTRY
restraining profession or 25,
company, practice by, 54,
wliat are, 24.
consent of patient in, 229, 230.
INDEX
.s09
cash memorandum in respect of sale extraction, negligence in, 229, 230,
of, 20,
fracture of jaw in, 227, 228, 230,
containers of, 452-4,57,
leaving of sponge during, 228,
meaning of, 52,
control of, 19,
negligence in, 229, 230, see also Neg
crimes in relation to, 325, 326,
ligence,
Dangerous Drugs Act, 1930, 18, 19,
res ipsa loquitur rule applied to, 228,
dangerous, what are, 18, 444, 445,
229,
cliispensing by unregistered persons,
right to practice, 150, 15J,
440-442,
what is, 52.
Drugs Act, 1940, 19,
Drugs Control Act, 1950, 19, 20,
DENTISTS
attendance by, 53,
Drugs and Magic Remedies (Objec x;tificates, Tight to issue, 148,
tional Advertisements) Act, 1954,
Lims against, 227, 230,
20, 21,
code of ethics of, 109-115,
ethics regarding, 89,
company, practice of dentistry by, .54,
export of, 447-452,
dental councils, powers of, 5:3,
formulary, what is, 444,
dental hygienists, who are, 53,
handling of, 94,
dental mechanics, who are, 53,
hospitals, provisions ~pplicable to,
dental operation, what is, 53,
458-463,
Dentists' Act, 1.948, 6, 7, 51-54,
import of, 447-452,
dentistry, meaning of, 52,
inspector, 19,
cluties of, 16.5, 166,
licences in respect of, 459, 460,
extraction, negligence in, 229, 230,
legislation upon, background of, 442,
Indian Dental Council, 5:3, 54,
443,
negligence of, 229, 230, see also Neg manufactured, what are, 444,
ligence,
manufacture of, 457, 458,
practice, right to, 150, 151,
maximum price of, 19, 20, 467,
qualifications of, 51, 52,
meaning of, 444, 44-5,
register of, 7,
medical practitioners, provisions appli
Register, Indian Dentists, 7,
cable to, 4-58-463, register, State, 7,
}ledicinal and Toilet Preparations removal of name from Tegister, 54,
(Excise Duties) Act, 1955, 21,
res ipsa loquitur rule, as applied to,
misbranded, what are, 19,
228, 229,
negligence of pharmacists, 271, 272,
State Dental Councils. 54,
see also Negligence, who are, 52. '
llegligence in administering, 2:30-236. DlAPHYSEO-EPIPHYSEAL UNION see also Negligence,
See also Age. notified, what are, 21, 452,
age. determination of, by examination notified, restrictions upon sale of, 21.
00 of, 336, 3,'37, skeletal changes in determining age, opium, Testrictions upon, 325, 326,
3:38, patient's card, 461,
table of, 338. pharmacopoeia, what is, 444,
Pharmacy Act, 1948, 17, 18,
DISPENSARY Pharmacy Council of India, 440, 44 L
goodwill of, :32, poisons, what are, 444,
tellancy of, 32. 1'{)sse55ion of, 463-467,
DISCIPLINARY COUNCILS
prescriptions of, 46.'3,
clue inquiry by, 135, l.'36,
prescriptions, handling of, 94,
Functions of/ 132, 133,
purchasers of, duty towards, 468-471.
infamous COnchlct, what is, 1.'36,
regarding pharmacy
(lualifications legal advisors of, 134,
granted outside India, 44 J,
ohjects of, 1,'32,
qualified persons, who are, 447,
procedure of, 1.'33-135,
quantities prescribed hy govennnent,
professional misconduct, proof of, ] 36,
00
1:37, sal~ 'of, 468-471,
professional misconduct, what is, 1:36, supply .of,468-47:',
ruJes under the B()mhau Medical Act. Technical Advisory Board, 18,
1912, l.'37-141. transf,,!' of, 447-452,
transl"pment of, 447-452
DISEASES-Sec Dangerous Diseases. jT::":G DECLAHATIONS
DRUGS evidence, as, 389,
advC'rtisement of, restrictions upon, 20,
expectation of cleath in, 388,
21, 444-447,
mode of recording, 389.
110mbau Drugs (Contro/) Act, 1.96'0. 21, 22,
E~fERGENCY CALLS Bombay ProhilJitioll Act, 1.949. 22, 23.
speeding on, ,'331. ~-,
.510
!vlEDICAL LAW AND ETHICS IN INDIA
EPIDEMICS-See also Dangerous Dis eases, prevention of, 12. ETHICSadvertising, of, 89-91, aims of the doctor, 7 J, 72, artificial insemination, of, 413, attendance, of, 73, 74, b,;.siness, of engaging in, Code of Bombay ~'Ie(Hcal 99 104,
Code of Dental
Code of Indian
382,
Evidence,
issue, what are, 384,
to obey summons, ,377, 378,
statements, reference to, 39G
398,
hypothetical questions, 393,
medical experts, qualifications of, ,'390 111t~U11~al
experts, questions put to, 392,
39,:3,
medical testimony, 383, 384,
mode of pyoof, 387-389,
privilege in America, 380,
professional communications, 378,
of facts, ,386,
in cross-examination, 383,
383,
what are, 384-386.
reports, preparation of, 380, 381,
reports, reference to, 398,
of a good witness, 402, 380,
witness as expert,
381, 382.
EXPERT EVIDENCEexamination of expert witness, :392, m;t:3.
excerpt of, 393-396,
qualifications of expert vvitness, :300·
382.
right to give, 148, 149,
value of leading, 209, 210,
who call give, 65, 210, 211,
who is a medical expert, 65,
S(J
336,
conrts approach to, 401, 402,
appreci"tion of, 349, 400,
admissibility of, 334,
·100, 401,
383, .
886, 387,
reference to, by witlles"
qUcstiOllS,
FACTORIEScertificates required nnder Indian FliC tories Act, 1948, 342-344.
FEES-
charging colleagues, 78,
dichotomy or splitting of, 79,
ethics of charging, 78-80,
'no-cure, basis, 79, 89, 80,
principles 78, 79,
suit for 144, 149.
FEVERSHAI-.1 artificia I insemil1ation, of, 011,
414,
report of, 415.
FOlUdS access to consC'nt to, 310. artificial insemination, agreement for,
:311, 3
authori as, 389,
mode of
declaratiolls, death in, 389,
expectation
or
agrepmcnt
314,
511
INDEX blood transfusion, refusal to permit,
.315,
body, authorisation to retain and dis
nose of, 307,
cosmetic purposes, consent to opera
tion for, 305,
disposal of dead foetus, consent to,
314,
eyes (donor), authorisation to use, 308,
eyes (next-to-kin), authorisation to
use, 308,
grafting, consent to removal of tissue
for, S06,
observers, authority to admit, photographs, consent to taking of, photogmphs, conscnt to publication <
S10,
prosthesis, consent to use
rclease and receipt (blood
shock therapy, consent to, 306,
,~terilisation, request for, 307.
surgery, anaesthetics and other medi
cal services, consent to, 30~, tissues, consent to operations and grafting of, 305,
treatment, consent to, 308,
X-ray therapy, consent to, 309.
GIFTS non-testamentary, testamentary, or le2'aClles. :370, :171.
GOODWILL
sale of, 24, 25.
GOVEHNMEKT SERV ANTS
certificates required by, 356-358,
form of consent to inspect,
310,
vicarious liability of, miscellaneous
instances, 287., 288,
vicarious liability of, 272, 281,
vicarious liability of, regarding anaes
thetists, 201,
vicarious liability of, regarding em
ployees, full and part-time, 201,
vicarious liability of, regarding medi
cal officers, 200,
vicarious liability of, nurses,
281, 282,
vicarious liability
geons and physicians
patient; 284,
vicarious lia hility
ing surgeons or _k.,,·.:,,:~
IJ\IPOTENCY curability of, 483,
determination of, 479, 480,
female, 478, 480,
female, certificate of, 481,
male, 477, 478.
male, certificate of, 480, 481.
INDIAN RED CROSS SOCIETY-See also Red objects of, 12. INDUSTlUAL DISEASES
notifiable, what are, 362, 363.
what are, 361-363.
fNDUSTHIAL LA\V8 certificates 342-352. INFAMOUS CONDUCT-
what is, 13:1, 1.36.
l:--JJECTIOKS. SYRINGES AND l\EEDLES hroken lleedle~ and syringes, 253, 254,
HOJ'vIOEOPATHIC AND BIOCHElvlIC PRACTITIONEHSfailure to appropriate injections,
biochemistry, what is, 5G, 2.54,
Bombay Homocopathic aild Bioche
intravenOllS injections, 2,51, 252,
mic Practitioners Act, 1959, 5, 56 negligence in llse of, 250-254.
511,
INQUEST See also Coroners,
Bomel of what is. 327, 328.
of
code of ethic:; of,
l\iSAXITY-Scc \1cntal Defects ami Court of Examiners .57,
Disorder~, C'lllistmcnt of,
,56,
control
UpOll)
,5R,
HOSPITALS-
appointments Ot medical practitioners
to public and local. 146, 147,
authorities to maintaiu,
202, 203,
children, ill treating, 226,
227,
drugs, applicable to, 4.'58 46:3,
(lutie;; to invitees, 247-249,
duties 247, 249,
duties extraneous dangers,
non-medical
matters,
IXTERSEX wbat is, 498.
INTOXICATIKG LIQUOR Boml)all Pmhibition Act, 1949, permits for, 2,3,
2:3,
permits for, 22,
medical exo.minatioll for illegal con,
sumption of, 2,3,
restriction upon prescription 22.
rUBY SERVICE . of medical 149.
practitiouers
MEDICAL LAW AND ETHICS IN INDIA
.
LABOUR BENEFITScoitus interruptus, consequences amount of workmen's compensation,
of, 475,
factors to be considered in award
consummation of 474,
ing,28, 29,
contraceptives, of
Bomhay District Alunicipal Act, 1901,
use of, 474,
31,
evidence in, 473,
Bombay Municipal Boroughs Act. fecUl1datio ab extra, legal consequ
1925, 31,
ences of, 477,
certificates under Employee's State In
gestation, judicial observations re surance Act, 347-352,
garding duration of, 484-490,
certificates under Indian Factories
gestation, notional period of, 489, 490,
Act, 1~48, 342-344,
impotency, curability of, 483,
certificates under Mines Act, 1952,
impotency, determination of, 479, 480,
;344,
impotency in female, 478, 479,
certificates under Plantations Labour
impotency in male, 477, 478,
Act, 1951, 344,
legitimacy, 483-490,
certificates under \Vorkmen's Com mental defects and disorders and,
pensation Act,
436,
certifying surgeons,
non-consummation of marriage, rea
children working in
sons for, 477,
children working in
30,
:'IlEDICAL DEGHEES-
City of Bomhay Municipal Act, 1888,
penalty for false assumption of, 59,
31,
right to 4.
dangerous diseases, regarding, 31,
I.,IEDICAL EXPERTS-See Evidence Employees Insurance Corporation, 29,
and Expert Evidence. Employees State Insurance Act, 1948,
MEDICAL PRACTITIONERS29,
adults ineapable of taking care of llldian Factories 1948, 30,
themselves, duty towards, 154,
Mines Maternity Act, 1941, 29,
advertisements by, 89-91,
occupational diseases, regarding, 28,
')9 anaesthetic, ehoice of, 16:3,
anaesthetists, duties of, 162-16.5,
1951, 29, 30,
Pl;;ntations Labour attendance, duty of, 73, 74, 215-221,
wllat are, 31,
notification of, by, 360, 361,
'Workmen's Compensation Act, 1923,
engaging in, 74,
28. skill, duty to exercise,
care LEGITHvIACY-See Matrimonial Cases.
152,
LEPERS-
certificates, right to issue, 147, 148,
certificates required hy, 352,
childrcn, duty regarding, 154,
Lepers Act, 1898,
children, liability to, in absence of
Lepers Bombay (Amendment) Act,
contractual relationship, 151, 152,
1955, 16,
clinical judl;Sment, use of, 249, 250,
pauper lepar, who is, 12,
Code of EtHics of the Bombay Medi reports upon,
cal COllllcil, 99-104, .
restrictions UpOll movements of, 12, Hi.
Code of Ethics of the Indian Medical
LESBIANISr-l Association, 95-99,
what is, 497. etiquette towards,
common sense, use of, 249,
LUNACY-See 1\1ental Defects and communications with
Disorders. method of, 243, 244,
LUNATICS-See ~fental Defects and conscllt of patient to treatment, ne Disorders. cessity of obtaining, 163,
consultatioll, ethics of, 74-77,
corneal grafting, right to perform, 151,
MAIlRIED PERSONSdangerous diseases, duty to notify, 160,
consent 30:3. 161,
Declaration of Geneva, 68,
MATRLMONIAL MATTERSdrugs and, 458-463,
artificial legal conseqll' duties of, when arise,
ences employees, duty towards,
conseqllences of
artificial of patients by,
creation 476,
to communicate and warn of
certificate impotcncy of female,
238-244
482,
failure to keep' ahreast of advanc0s
certificate of impotency of male, 480
in meclical science,
481,
charging from
78,
ccrtificate of potency of female, 481,
ethics of charging, 149,
of potency of male, 480,
right to sue for, 143,
INDEX
51,3
evidence of persons suffering from, Geneva Convention, duties under, 10505,
438,
1056
feeble mindedness, what is, 431,
Hippocratic Oath, 67, 68,
general propositions of law regarding,
how much should a patient be told,
4205, 426,
91, 92,
halucination, what is, 433,
International Code of Ethics, 68, 69,
hashish insanity, what is, 431,
jury service, exemption from, 149,
illusion, what is, 433,
medical expert, right to give evidence
imbecility, what is, 431,
as, .148, 149,
medical expert, who is, 605,
impulse, what is, 433,
medical secrets, disclosure of, 80-87,
Indian Lunacy Act, 1912, 12,
negligence of, see Negligence,
insanity, real and feigned differen non-medical men, assisting or obtain tiated, 4:34, 4305,
ing assistance of, 72, 73,
lunatics, discharge of, 425,
nursing homes, running, 88, 89,
lunatics, who are, 419, 420,
mania, what is, 432,
operations, duties regarding, 161, 162,
patient, right to choose, 143,
manic-depressive psychosis, what is,
patients, soliciting of, 89-91,
432, 433,
matrimonial relationships and, 435,
poisoning, duty of, when suspected,
1059, 160,
436,
McN:mghten's test, 427, 428,
poisons, duty regarding, 157-160,
prescriptions by, 165,
melancholia, what is, 432,
practice, right to, 149, 150,
mental disorder, what is, 420,
public and local hospitals, appoint
moral imbeciles, who are, 431,
ment to, 146, 147,
non compos mentis, defence of, 431,
publications by, 90,
432,
Red Cross and allied emblems, right
obsession, what is, 4,'33, 434,
to use, 144-146,
opium in, 431,
register of, see Register of Medical
paranoia, what is, 432,
Practitioners,
psychopathic disorder, what is, 420,
reception orders, 422, 425,
registered, pretending to be, 61, 62,
schizophrenia, what is, 432,
registration of, 61,
severe subnormality, what is, 420,
risks, duty to disclose, 1056, 157, 23R 244,
subnormality, what is, 420,
secrecy, duty of, 160,
torts and, 437, 438,
sign-boards of, 91,
transfer of property and, 437.
skill and care expected of, 162, 163, MINES-
titles and descriptions, right to use,
certificates required under j\1illcs Act,
144,
1952, 344.
treatment, form of consent to, ,')08,
MINORSunregistered, prohibition upon prac tice by, 64, 65,
consent concerning, 301-303. who are, 65,
J\HSCARRIAGE-See also Abortion,
withdrawal from case by, 1052, 153
quickening, what is, 324,
X-ray examinations, duty regarding,
what is, 324.
162. MISCONDUCT MEDICAL SECRETS-See Professional proof of, 136, 1:37, Communications and Secrecy. what is, 136. MEDICAL TITLESpenalty for false assumption of, 059, right to confer, 4. NEGLIGENCE-See also Hospitals anel ME~T AL DEFECTS AND Operations,
DISORDERS anaesthetists, of, 230-236,
amentia, what is, 430, 431,
artificial insemination, in, 413,
asylums, persons who may be received
attendance and examination, in, 215 in 421,
221,
Bombay Lunacy (Amendment) Act, 17,
burden of proof of, 203,
certificates in cases of, 353, 354, 435,
burns., in causing, 221-224,
cocaine insanity, what is, 431,
casualty officers, of, 224, 225,
confusional insanity, what is, 431,
children, in treating, 226, 227,
contracts and, 436, 437,
civil and criminal, differentiated, 318,
defence of insanity, 430,
319,
delirium tremens, what is, 431,
clinical judgment, nse of, as, 249, 2050,
delusion, what is, 433,
Common Law, role of, in cascs of, 171,
dementia, what is, 432,
172,
Durham's test, 427,
common sense, use of, as, 249, 250,
epileptic insanity, what is, 4:32,
contributory negligence, plea of, 211,
514
MEDICAL LAW AND ETHICS IN INDIA
criminal, defence of contributory neg
in, 32 I, 322,
of unqualified person, 320,
321,
criminal, what is, 318-322,
damage 188, 189,
dentists, of, against, 227-230,
doing an aet beyond one's compe tence as, 226,
drugs and anaestheties, in administra tion of,
due skill what is, 176-179,
duty of of, as, 186-188,
error of and, distinguished,
of, 209-211,
203,
to communicate risks as, 238,
failure to communicate with collea gues as, 243,
failure to keep of advances
as, 237,
in medical foresee a bility
in, 190, 19L
gratuitous service 192, 193,
infamous condLlct distinguished,
186,
ingredients, of, 186-191,
injections, in giving of, 251-254,
intervention by third party in, 191,
192,
irrelevallt factors in
192
195,
judi;;~ll
observations on mt:Cll(,al, 172
II;),
liability for, where contractua I rela tionship is absent, 192,
limitation, plea 212,
medical negligence, what is, 179,
misadventure and, distinguished, 183
]85,
motive of, 193,
neeelles, in use of,
negligent person, 111 piIl pointi11g, 194,
new practices and methods, as, 266
in use of, 250-254,
175-180, 195-198,
vicarious liability in cases of, 199-203,
vicarious liability, what is, 281, 282,
see also Vicarious Liability,
what
175-180,
as, 288-292,
X-faY examination, in, 292-293.
wrong
NURSES-
Bombay Nurses, Midwives and Health Visitors Act, 19.54, 9, 10, 49, 51,
Bombay Nursing Council, 50,
Code of Ethics 120-126,
duties of, 166,
ethics of, 92, 93,
Indan Nurses Register, 49,
Indian Nursing Council Act, 1947, 8 9, 47-49,
list of, 50,
negligence of, see also ;\T egli gencc,
nurses' establishment, what is, 51,
Pledge of Florence Nightingale, 68.
70,
(lUalifications, of, 50,
Tecognised qualifications, what are, 4<'),
registration, of, 50,
training institutions of 5L
who are, 49.
KUHSING COUNCILS-
Bombav. 50,
duties . of, 50,
Indian, 8, 48,
powers of, 49,
State, 8, 9.
NURSING HOr-.
ethics regarding, 88, 89,
inspection of, 47,
maintenance of, 10,
medical practitioners running, 88, 89,
rr:'gistration of, 46, 47.
271,
249,
non-medical matters, in, nurses, of, 255,
operations and, 255, 266,
operation with new instruments, as.
260, 261,
overconfidence, as, 184,
packs, in use of, 272-281,
panel patients, failure to
OATHS~
Declaration of Geneva, 61),
I!,ippocratic Oath, 67-68,
International Code of Ethics, 68,
Pharmacisb' Oath, 70, .
Pledge of Florence Nightingale, 69, 70.
OPEHA. TIONS-See also 180,
and Surgeons,
of, 271, 27'2,
abdominal, difficulties of, 2.57,
of duty discharged to
apparatus, lack of, 257,
current standard, 211,
conditions peculiar to patient, consi
plea of mis<1.dventure, 21 L
deration of, before, 257, 258
plea of 'no duty', 211,
consent to, 304,
piea of res iudicata, 212,
consent to, for cmmetic purposes,
proof of, requirements o-f, 20:3-211,
form of, 305,
res ipsa loquitur rule in, 203, 209,
illstruments used for, 260, 261,
settled practice, departure from, as,
medical practitioner's duties in, 161,
269, 270,
sbip's smgcon, of, 198, 199,
sponges, ill use of, 272-281,
swabs, in lISt' of, 272-281,
162
neglig~nce in, 255-266,
new il1strumellt, use of, as negligence,
260, 261,
INDEX
.515
observers. form of authority to admit, autopsy and tissue donation, form of
309, '
authorisation for, :313,
over-confidence of surgeon, 258, 259,
Coroner and, 24, 330.
post-operative care, 259, 260,
PRESCRIPTfOl'\S-
safeguards suggested to obviate negli drugs, of, 463,
gence during, 261-266,
ethics regarding, 89,
swabs, packs and sponges, negligence
handling of, 94,
in use of, 272-281,
medical practitioners, by, 165.
tissues, fonTI of consent to grafting of,
PROFESSIONAL COMMUNICA 305
TIONS-" tissue;, form of consent to removal ot,
privilege attached to, 378,
for grafting, 306,
privilege in America, 380.
unsatisfactory result not proof of neg
ligence, 255, 256.
PUBLIC HEALTH
inoculation, 11, 14, 15,
OPIUMvaccination, 11, 14, 15.
Bombay Opium Smoking Act, 19.'36,. crimes concerning, 325, 326,
QUARANTINAL DISEASES Dangerous Drugs Act, 1930, 18,
Standard International Quarantinal manufacture of, 18,
Message, 14. medicinal and toilet preparations
what are, 14. containing, 21,
mental defects and disorders, in, 431, QUICKEKING what is, .'324. Opium Act, 1857, 18,
Opium Act, 1878, 18,
H.ADIOLOGISTS~restrictions placed upon, 325, 326.
duties of, 162, 167-169,
negligence of, 292, 293, sce also
ligence,
PATIENTS-
skill and care required of, 167, 168,
adults incapable of taking care of
fErns, ownership of, 168, 169.
thernselves, duty towards, 154,
conditions peculiar to particular, 2.57, HAPE-
258,
consent in cases of 493,
health of, generally, consider'ltion of.
defloration, of, 49.'3,
hefore operation, 232, 233,
examination accused, 49.5, 496,
medical practitioners right to choose,
examination of victim, 49.'3-495,
143,
penetration in, 491, 492,
soliciting of, 89-91.
virginity, signs of, 493,
PERSONAL INJURY CASES virginity and defloration distinguished,
ccrtificates required ill, 358-.'360. 49.'3. PHAR!vIACISTS
BED CROSS-
advertisements by, 94,
Indian Red Cross Society Act, 1920,
cash memorandum, issue of, by, 20,
12, 13,
Code of Ethics, 126-132,
right of medical practitioners to use,
drugs, hanc1.] ing of, 94,
144-146.
duties of, 165, 167, 468-471,
REGISTERED MEDICAL PRACTI ethics of, 93-95,
TIONERS-See also Ivledical Prac medical practice by, 94, 95,
titioners, negligcnce of, 271, 272,
certificates, right to issuc, 147, 148,
prescriptions, handling of, 94,
corneal grafting, right to perform, 151,
qualifications, foreign, of, 441,
expert evidence, right to give, 148,
qualified persons, who are, 4.47,
149,
register, State, 17,
fees, right to sue for, 143, 144, H9,
removal of name from register, 441,
jury scrvice, exemption from, 149,
unregistered persons, dispensing by,
public hospitals, right of appoint 441-442. ment to, 146, 147,
1'0ISOI\,S practice, right to, 149, LSO,
clutv of medical practitioners regard rights or, 4.
iJlg, 1.'57-160, REPORTS- medical practitioner's duty when preparation of, .380, 381,
Salling sllSpected, 159, 160,
reference to. by witness, 398.
Poisons Act, 1919, 18.
what are, 444.
POST IvfORTE;\cf EXAMINATION SALES TAX-
See aLso Coroners. Bombay Sales Tax Act, 19.59, 32,
medical practitioners, provisions appli
autopsy, form of authorisation fo!'. cable to, 32,
3J3,
:\!EDICAL LAIN AND ETHICS IN INDIA
516
SECHECY
duty of, 160,
disclosure of medical secrets, 80-87,
disclos\l re of medical secrets in law-
courts, 83, 84.
ethics of, 160,
privilege in AlIlerica, .'380,
professional communications, privilege
attached to, 378. SEX. birth certificate, correction of, 49~), 500,
change of, 499,
determination of, 498, 499,
intersex, what is, 498,
perfection of. 499.
SEXUAL OFFENCES
consent in cases of, 493,
death during sexual intercourse, 'WG,
497,
defloration, signs of, 493,
examination of accused, 495, 496,
examination of victim, 493-495,
lesbianism, 497,
penetration in cases of, 491,
rape, 490-496
sodomy,
virginity, :;igns of,
virginity and defloration distinguished, 493. SHIP'S SUHGEONskill expected of, 199. SKELETAL CHANGESage, determination of, examining, 3.38,
50DO:vl1' ""hat is, 497. STATUTES, A.ll India Institute cal Sciences 1.95(), n, l3irths, Deaths Jfarriages tion Act, 1886,
Bomhau Anatomy 10,
BomlJw! Animal Contagious Diseases
Act, '1948, 16,
Bombal! Corneal Grafting Act, .l957,
10, iI,
}3ollliJalj Carollers Act, 1871, 32,
Bombau District Municipal Act, 1901,
3r,
Bomba!! District Vaccination Act, 1892,
1, 15,
Bombau Drugs Control 1960, :2l,
»
Bo-;;;'w!1 I-!omoeopathic and Biochemic Practitioners Act, 1959, 5, 56, 58,
Bombay Lunac!! (Amendment) Act, 17,
BomhGlI Medical Act, 1912, 5, 60-62,
Bombay Boroughs 1925, 31,
l30mbau Nurses, !If idwives and H ealt!!
Fisltors Act, 195,1, g, 10, 49-51,
J30mbau ,11.,7 ursil1g llomes Registration
Aet, 1949, 10, 46, 47,
Bomb;IY Opium Smoking Act, 19.:36',
') J BO-;lIbau Prohibition Act, 2:3,
Bombau Rent Act, 32,
Bombay Sales Tax Act, 1959,
Bombay Vaccination Act, 1877, 16,
Bombay Veterinaru Practitioners
1953, 7, 8, 51-56
City of Bombay Municipal Act, 1888,
31,
Dangerous Drugs Act, 1930, 18, 19,
Dentists Act, 1948, 6, 7, 51-54,
Drugs Act, 1940, 19,
Di'ugs (Control) Act, 1.950, 19, 20,
D1'llgs and Magic Remedies (Ob;ec tionable A.dvertL'iements) Act, 1954,
90 01 El~p~Y'eds' State Insu,rance Act, 1948,
99
Ep~di~mic Diseases Act, 1897,
Indian Indian Indian Indian Indian
Contract Act, 1872, 24,
Coroners Act, .1871, 23,
Factories Act, 1948, 30,
Lunacy Act, 1912, 12,
Medical Council Act, 1956, 4,
59, 60,
Indian Medical Degrees Act, 1916, 3, ; 4,58, .59,
Indian Nursing Council Act, 1947, 8,
D, 47-49,
Indian Penal Code, 1860, 25-28,
l1ldian Port Health Rules, 1955, 14,
Indian Red Cross Society Act, 1.920,
12., ]3,
Lepers Act, 1898, 12,
Lepers Bombau (Amendment) Act,
1.955, 16,
Maharashtra Medical Practitioners Act, 1.961, 5, 6, 62-65,
medical practitioners, affecting, 3-6,
Medicinal and Toilet Preparations
(Excise Duties) Act, 1955, 21,
Milles Maternitu Benefits Act, 1941,
29,
nur,;es and midwives, affecting, 8-10,
nursing homes, affecting, 8-10,
objects of, relating to medical and
allied professions, 3,
0111urn Act, 1857, 18,
OpiLlm Act, 1878, 18,
Pharmac!f Act, 1948, 17, 18,
Plantations Labour Act, 1951, 29, 30,
Poisons 191.9, 18,
public affecting, 11-17,
FreGentioll Food Adulteration Act, 1954, 1,3,
~terilisatioll, affecting, 408-410,
Slum Areas Improvement and Clear ance Act, 1956,
purposes, affecting, 1 O-lJ, Act, 1880, 11,
veterinary and veterinary surgery, 7, 8, 192.'3,
Vv'or/;:men's Compensation 29,
STERILISATION- American law on, 408-'±lO.
compulsory, 405,
406,
11':DEX
.517
certificates, right to issue, 148,
legality of, 407-410, .
request for, form of, 307,
expert evidence, right to give, 148,
safeguards suggested for, 406, 407,
149,
statute law on, 408-410,
list of, 55, 56,
therapeutie, 406,
, negilgence of, see Negligence,
voluntary, 405, 406.
privileges of, registered, 55,
registration of, 54,
SURGEONS-See also Negligence aDd
unregistered, 8.
Operation,
health of operating, 260,
VICARIOUS LIABILITY
negligence of, 255-266,
anaesthetists, regarding, 201,
over-confidence of, 258, 259,
physicians or surgeons, consulted by
post-operative care by, 259, 260,
patient, regarding, 284,
safeguards suggested to obviate neg employees full and part-time, re ligence by, 261-266,
garding, 201
swabs, packs and sponges, duty of, to
medical officers, regarding, 200,
remove, 272-281.
miscellaneous instances of, 287, 288,
nurses, regarding, 200, 202, 281, 282,
SWABS, PACKS AND SPONGES
284-287,
negligence in use of, 272-281,
visiting surgeons and physicians, re
surgeon's duty to remove, 272-281.
garding, 282-284,
what is, 199,
when arises, 199, 28~-288.
TEETH-
age, examination of, to determine, 337,
388,
negligence in extraction 229, 230.
WESTERN MEDICAL SCIENCE
TENANCY-
Bombay Medical Act, 1912, 60-62,
dispensary, of, 32,
Bombay Medical Council, 60, 61
Bombay Rent Act, 32. Indian Medical Council Act, 1956, 4,
59,60,
TEST-TUBE BABIES-See also Artifi Indian Medical Council, 60,
cial Insemination, Illdian I'dedical Degrees Act, 1916, ;3,
what are, 410. 4, 58, 59,
THERAPEUTIC PURPOSES
Maharashtra Medical Practitioners
corneal grafting, 10,
Act, 1961, 5, 6, 62-65,
unclaimed bodies, 10.
meaning of, 58,
TORTS medical qualiHcations and titles, what
are, 4,
Government's liability in, 33. medical register, 60,
UKCLAH,IED BODIES-
pretence of being registered, 61, G2,
Bombay Anatomy Act, 1949, 10,
State Government control over Medi supply of, for therapeutic purposes, lO.
cal Council, 62,
titles, grant of, 3,
UNNATURAL SEXUAL OFFENCES
unauthorised degrees, grant of, 59.
lesbianism, 497,
WILLS~, sodomy, 497.
bequests to medical practitioners, 370,
UNQUALIFIED PRACTITIONERS
371,
criminal negligence of, 320, 321.
sound and disposing mind, tests to
determine, 367-869,
sound and disposing mind, what is,
VACCINATION865-367.
Bombay District Vaccination Act. WIT?\ESS-~See Evidence and Expert 1892, 14, 15,
Evidence. Bombay Vaccination Act, 1877, Ie,
certificates of, 354-356,
WITNESS SUMMOKS-Sec Evidcnce inocnlatioI1, what is, 11
and Expert Evidence. public vaccinator, 16,
WORKMEN'S Cmv1PENSATION
Vaccination 1880, 11,
determination of, 344-346,
variolous matter, inoculation 11
\It' orkmen's Compensation Act, 192.'],
(Ln.),
28, 29.
what is, 11,
who Illay vaccinate, 14, 15.
VETERINARY PRACTITIONEHS~ X-RAYS~ Bombay Vcterinary Council, consent to therapy, 309,
Bombay 'Veterinary Practitioners Act, negligencc in taking, 292, 293,
1953, 7, 8. 54-56,
ownership of films, 168, 169.
