Transcript Constitution of India Article 21

E M Laws in India
Dr.L.R.Murmu
MBBS, MS ( surgery ) [ AIIMS ]
LLB, LLM [ University of Delhi ]
Additional Professor Surgery,
Casualty & Emergency Services,
All-India Institute of Medical Sciences,
New Delhi
Federal System of Government
• Part XI of the Constitution ( Article 245 to 263 ) regulates
the legislative and administrative relations between the
Union and the States.
• Article 245 empowers the Parliament to make laws for the
whole country whereas the State legislatures have the
power to legislate for their respective States.
• Article 246 divides the subject areas of legislation based on
three lists i.e, Union List, State List and Concurrent List,
which are given in the VII Schedule of the Constitution.
• Parliament has the “residual power” of legislation.
Sources of Law
Primary Source
• Laws passed by the Parliament or the State
Legislative
• Ordinances passed by the President and the
Governor
• Subordinate legislation : Rules and
regulations made by the executive through
the power delegated to them by the Acts.
Source of Law
Secondary Sources
• Judgements of the Supreme Court, High
Court and Tribunals (The ratio decedendi is
a binding precedent)
• Judicial legislation
• Judgements of Privy Council ( London )
• Judgement of Foreign Courts
• International Treaty
Law and Medicine
• Medical Jurisprudence : It deals
with legal aspects of medical
practice.
• Forensic Medicine : It deals with
medical aspects of law.
Medico-legal Case
It is a case of injury or ailment etc, where attending
doctor after taking history and doing clinical
examination of the patient thinks that some
investigations by law enforcing agencies are
essential so as to fix responsibility regarding the
said injury or ailment etc,. according to law.
Who is to label the case
medico-legal
• This decision is taken by the casualty doctor
(emergency physician ) attending the case.
• Patients’ or their relatives’ request to label a case
medico-legal or not, shall have not effect on the
doctor’s decision.
• Indoor treating doctors can also make a case
medico-legal if they think that it should have been
made but it was not made
What cases are labeled
medico-legal
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Cases of Trauma
Cases of Burns
Cases of Electrocution
Cases of Poisoning
Cases of Industrial accidents
Cases of sexual offences
Cases requiring age estimation
What cases are labeled
Medico-legal
• Cases of criminal abortion
• Cases of animal or snake bite
• Cases of Coma where cause could not be
ascertained
• Cases of starvation including “Hunger
strike”
• Unclaimed newly born
What cases are labeled
Medico-legal
• Cases of hanging, strangulation, drowning
and suffocation etc,.
• Cases brought by police or sent by court for
medical examination.
• Cases brought dead and where death
certification due to disease or natural cause
is not possible being not apparent.
• Cases that are result of medical malpraxis
Reporting of Medico-legal Case
• 39 Cr.P.C ( Code of Criminal Procedure ) :
The attending doctor is duty bound to
inform the police about the Case
• Section 176 IPC ( Indian Penal Code ) :
Provides for prosecution of the doctor for
the failure to inform
• Police informed again when patient dies or
is discharged from hospital
Consent for treatment
• Section 13 of Indian Contract Act 1872 defined
the consent as “ when two or more person agree
upon the same thing in the same sense they are
said to consent”.
• Consent for treatment can be given by a person
who is conscious, mentally sound and is of above
18 years age.
• A conscious adult has the right to refuse treatment.
Consent
Where may not be obtained
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Medical Emergencies
Notifiable diseases
Immigrants
New admission to prisons
Court orders for examination & treatment
Under section 53 (1) of Cr.P.C., a person can be
examined on request of the police by use of force
• Members of Armed Forces
Act done in good faith for benefit of a
person without consent
Section 92 Indian Penal Code
Nothing is an offence by reason of any harm which it may
cause to a person for whose benefit it is done in good faith,
even without that person’s consent, if the circumstances
are such that it is impossible for that person to signify
consent, or if that person is incapable of giving consent,
and has no guardian or other person in lawful charge of
him from whom it is possible to obtain consent in time for
the thing to be done with benefit.
Definition of Injury and Hurt
• Section - 44 of the Indian Penal Code (IPC) :
Injury : denotes any harm whatsoever illegally
caused to any person in body, mind, reputation or
property.
• Section - 319 of the Indian Penal Code (IPC) :
Hurt : whosoever causes bodily pain, disease or
infirmity to any person is said to cause hurt.
Grievous Hurt
Section 320 of IPC
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Emasculation.
Permanent privation of the sight of either eye.
Permanent privation of the sight of either ear.
Privation of any member or joint.
Destruction or permanent impairing of the powers of any member or
joint.
• Permanent disfiguration of the head or face
• Fracture or dislocation of a bone or tooth
• Any hurt which endangers life or which causes the sufferer to be
during the space of twenty days in severe bodily pain or unable to
follow his ordinary pursuits
Medico-legal Evidence
Evidence on the person of the patient need to
be preserved under sealed cover and handed
over to the police
• Blood stained clothes
• Foreign bodies e.g bullet etc,.
• Gastric lavage
Preparation of medico-legal reports
• Reports must be prepared in duplicate on proper pro-forma
giving all necessary details : identity of the patient, full
description of injuries, results of tests, diagnosis and
treatment.
• Avoid abbreviations, over writings. Correction if any,
should be initialed with date and time.
• Reports must submitted to the authorities promptly.
• Medico-legal documents should be stored under safe
custody for 10 years
Patient’s statement to Police
• Certificate of medical fitness regarding
patient’s ability to give statement to police
must bear time and date
• Certificate of unfit for statement must give
reasons as to why patient is not in a position
to give statement
MLC Reports : Subsequent opinion
• Ask the police officer to submit application
in duplicate requesting clarification or
opinion regarding any point in the report.
• The clarification/opinion be given on the
reverse of the applications.
• One copy of application given to the police,
and second attached to carbon copy of the
original report prepared earlier.
Medical Certificate Defined
“A medical certificate can be defined as a
documentary evidence vouching for the
truth and correctness of a fact as ascertained
by the medical professional issuing such a
document at that moment of time”.
Essential features of
Medical certificate
• Issued on the letterhead of the doctor or the
pro-forma of the organization.
• Mention date, time and place of issue.
• Issue only for a legitimate purpose.
• State only the facts within the personal
knowledge.
• Limited to the actual period of care.
Essential features of
medical certificate
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True in every detail and not misleading.
Frame according to the actual requirement.
Make it in duplicate.
Get patient’s signature, or left thumb
impression or two identification marks on
the certificate.
• Hand over to the patient himself/herself.
Consequences of Issuing
False Certificate
• Name may be struck off from the medical register
for professional misconduct.
• Liable to be held responsible for deceit, breach of
contract etc,.
• Under section 197 of IPC punished in the same
manner as if he gave false evidence.
• If he makes, alters or effects any addition in a
certificate with intend to deceive. Liable to be
punished for forgery under section 463 of IPC.
Criminal Negligence
• When the doctor has shown gross
ignorance, gross carelessness or gross
neglect for life and safety of the patient.
• He is liable to be prosecuted in a criminal
court for causing injury or death by a rash
and negligent act not amounting to culpable
homicide under section 304-A of Cr.P.C.
Criminal Negligence
Examples
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Injecting anaesthetic in fatal dosage
Operation on wrong patient
Performing criminal abortion
Amputation of wrong limb
Leaving instrument inside the body
Leaving tourniquets too long resulting in gangrene
Transfusing wrong blood
• Too tight plaster causing gangrene or paralysis
Dying Declaration
Section 32 of The Indian Evidence Act
A dying declaration or statement made by the person on the verge of
death as to the cause of his death or as to any of the circumstances
of the transaction which resulted in his death, such a statement, oral
or in writing, made by the deceased to the witness is a relevant fact
and is admissible in evidence.
Provided it has been made by the deceased while in a fit mental
condition.
Dying Declaration : Recording
• Treating doctor has the duty to get the dying
declaration recorded in such cases of trauma
where there is likely hood of death.
• Doctor should intimate the police for calling the
Magistrate to record the declaration.
• If there is no time the attending doctor should
record the dying declaration.
• Mental fitness of the victim must be entered in the
record of the case mentioning date and time.
Consumer Protection Act, 1986
Indian Medical Association vs V.P.Shantha and others
Supreme court of India ruled who all are covered
under the Act and held as follows :
• Service rendered for fee.
• Service rendered for free to some, and for fee to
others.
• Service rendered are paid by insurance company.
• The employer bears the expenses for service
rendered to an employee.
Supreme Court Ruling, 1989
Pt Parmanand Katara vs The Union of India
• Private medical practitioners were duty
bound to render first aid treatment to
all patients who approached them.
• The Supreme Court in this case
conferred a right on the patients - the
right to emergency medical care.
Constitution of India
Article 21
No person shall be deprived of his
life or personal
liberty except according to
procedure established by
law
Supreme Court Ruling, 1989
Pt Parmanand Katara vs The Union of India
1. Whenever any medico-legal case attends the hospital, the
medical officer on duty should inform the duty constable,
name, age, sex of the patient and place and time of
occurrence of the incident, and should start the required
treatment of the patient. It will be the duty of the constable
on duty to inform the concerned police station or higher
police functionaries for further action. Full medical report
should be prepared and given to the police, as soon as
examination and treatment of the patient is over. The
treatment of patient would not wait for the arrival the
police or completing the legal formalities
Supreme Court Ruling, 1989
Pt Parmanand Katara vs The Union of India
2. Zonalisation as has been worked out for the hospitals to
deal with medico-legal case will only apply to those cases
brought by the police. The medico-legal cases coming to
hospital on their own (even if the incident has occurred in
the zone of other hospital) will not be denied the treatment
by the hospital where the case reports, nor the case will be
referred to other hospital because the incident has occurred
in the area, which belongs to the zone of any other
hospital. Same police formalities as given in para-1 above
will be followed in these cases.
Supreme Court Ruling, 1989
Pt Parmanand Katara vs The Union of India
3. All government hospitals, medical institutes should be
asked to provide the immediate medical aid to all the cases
irrespective of the fact whether they are medico legal cases
or otherwise. The practice of certain Government
institution to refuse even the primary medical aid to the
patient and referring them to other hospitals simply
because they are medico legal cases is not desirable.
However after providing the primary medical aid to the
patient, patient can be referred to other hospital if the
expertise facilities required for the treatment are not
available in the institution.
Supreme Court Ruling, 1989
Pt Parmanand Katara vs The Union of India
• When a man is in a miserable state hanging
between life and death reaches the medical
practitioner either in a hospital, public authority or
a private person or a medical professional doing
only practice he is always called upon to rush to
help such an injured person and to do all that is
within power to save life. It is a duty coupled with
human instinct, which needs no decision nor any
code of ethics nor any rule of law.
Supreme Court Ruling, 1989
Pt Parmanand Katara vs The Union of India
13 (MCI Code). The patient must not be neglected: A
physician is free to choose whom he will serve. He should,
however, respond any request for his assistance in an
emergency or whenever temperate public opinion expects
the services. Once having undertaken a case, the physician
should not neglect the patient, nor should he withdraw
from the case without giving notice to patients, his relative
or his responsible friends sufficiently long in advance of
his withdrawal to allow them to secure another medical
attendant. No provisionally or fully registered practitioner
shall willfully commits an act of Negligence that may
deprive his patient or patients from necessary medical care.
Supreme Court Ruling, 1989
Pt Parmanand Katara vs The Union of India
• Not summon a doctor to give evidence
unless the evidence is necessary
• Pay due respect
• Not made to wait and waste time
• Avoid harassment by way of request for
adjournment etc,.
Article 141 Law declared by
Supreme Court to be binding on
all courts
The law declared by the Supreme
Court shall be binding on all courts
within the territory of India
Consolidated Omnibus Budget Reconciliation
Act 1986 ( COBRA)
• US Congress enacted this to prevent the practice of dumping
of patient by private hospitals
• The hospital must perform a medical screening examination of
all prospective patients regardless of their ability to pay; and
•If the hospital must determines that a patient suffers from an
emergency condition, the law requires the hospital to stabilize
the condition, and the hospital can not transfer/discharge an
un-stabilized patient unless the transfer or discharge is
appropriate as defined by the Act
The Emergency Medical Treatment and
Active Labor Act 1986
The Act brought legal terms and responsibilities
to Inter-hospital transfer.
The transferring facility does not have the capability to
stabilize the patient and the benefits outweigh the risk
of transfer.
The patient requests for transfer.
EMTALA requirements for
legal transfer
• The transferring hospital provides medical treatment within its
capacity that minimizes the risks to the patient ( and unborn child ).
• The receiving hospital (a) has available space and qualified personnel
for the treatment; and (b) has agreed to accept transfer and to provide
appropriate treatment
• The transferring hospital sends all medical records (history,
examination findings, results of diagnostic tests, provisional diagnosis,
and treatment provided ) that are available at that time. The informed
written consent or certification as required by EMTALA.
• The transfer is effected through qualified personnel and transportation
equipment to provide life support measures during the transfer.
Supreme Court Ruling, 1996
Paschim Banga Khet Mazdoor Samity v. State of W.B.
“Failure on the part of a government
hospital to provide timely medical
treatment to a person in need of such
treatment results in violation of his
right to life guaranteed under Article
21.”(Para 10)
Guidelines dealing with emergency cases
• i) In the hospital, the Medical Officer in the
emergency/Casualty services should admit a
patient whose condition is morbid/serious in
consultation with the specialist concerned on duty
in the emergency department.
• ii) In case the vacant beds are not available in the
concerned Department to accommodate such
patient, the patient has to be given all necessary
attention.
Guidelines dealing with emergency cases
• iii) Subsequently, the Medical Officer will make necessary
arrangement to get the patient transferred to another
hospital in the Ambulance. The position as to whether
there is vacant bed in the concerned department has to be
ascertained before transferring the patient. The patient will
be accompanied by the resident Medical Officer in the
Ambulance.
• iv) In no case the patient will be left unattended for want of
vacant beds in the emergency/Casualty Department.
• v) The services of CATS should be utilised to the extent
possible in Delhi.
Guidelines dealing with emergency cases
• vi) The efforts may be made to monitor the
functioning of the emergency department
periodically by the Heads of the institution.
• vii) The Medical record of patient attending the
emergency services should be preserved in the
medical record department.
• viii) The Medical Superintendent may coordinate
with each other for providing better emergency
services.
Guidelines for maintenance of
admission register of patient
• a) Clear recording of the name, age, sex, address and
disease of the patient by the attending Medical Officer;
• b) Clear recording of the date and time of attendance,
examination/admission of the patient;
• c) Clear indication whether and where the patient has been
admitted, transferred, referred;
• d) Safe custody of the Registers;
• e) Periodical inspection of the arrangement by the
Superintendent;
• f) Fixing of responsibility of maintenance and safe custody
of the Registers.
Guidelines to identify the individual medical
officer attending to the individual patient
• a) A copy of the Duty Roster of Medical Officers should be preserved
in the Office of the Superintendent incorporating the modifications
done for unavoidable circumstances;
• b) Each Department shall maintain a register for recording the
signature of attending medical officers denoting their arrival and
departure time;
• c) The attending medical officer shall write his full name clearly and
put his signature in the treatment document;
• d) The Superintendents of the hospital shall keep all such records in
safe custody.
• e) A copy of the ticket issued to the patient should be maintained or the
relevant date in this regard should be noted in an appropriate record for
future guidance.
Conclusion
• The law precede the development and adoption of
policies beneficial to the public in general.
• EM laws in the developing countries could be
used as a powerful instruments to improve
emergency medical care.
• Enforcement requires linkage between the public,
health authorities, and law enforcing agencies.
• Monitoring of the implementation of the laws on
desired health objectives.