Textbook of Forensic Medicine and Toxicology PDF

Part 1—Forensic Medicine and Pathology 1 Introduction and History of Forensic Medicine The origin of medicine is as old as civilization. In the they deal with each other, their patients as well as early stages the mankind used spirituali...

1 Introduction and History of Forensic Medicine The origin of medicine is as old as civilization. In the early stages the mankind used spirituality, herbs, God worship and witchcraft etc. for the cure. Then they felt the need of formulating certain rules and regulations for these practices that led to the origin of medical jurisprudence with advancement of civilization various legal systems came into force and the knowledge of medicine became necessary for the purpose of law and justice and the concept of legal medicine or Forensic Medicine originated. The term Forensic Medicine, Legal medicine and Medical Jurisprudence are all used in different meanings. Forensic Medicine is an application of medical knowledge for the purpose of law both civil and criminal for example in cases of vehicular accidents. The Forensic expert is able to opinion whether the said injuries are due to vehicular accident or not, duration of injuries, nature of injuries and the cause of death etc. Likewise in case of sexual offences, he is able to give opinion whether the sexual act has been committed or not, the duration and type of injuries etc. The Forensic expert not only expertises in his own field but uses the knowledge of other branches of medical science to solve the problems related to forensic medicine for example while doing postmortem in cases of accidental deaths, criminal abortion and sudden deaths due to medical and surgical causes. Medical Jurisprudence deals with legal aspects of practice of medicine. The concept of doctor patient relationship, rights and duties of doctors, duties towards the patient and the state in particular the medical negligence etc. are all covered by the term Medical Jurisprudence. Medical ethics deals with the moral principles that guide the members of medical profession 2 Textbook of Forensic Medicine HISTORY OF FORENSIC MEDICINE IN INDIA AND ABROAD The word forensic medicine came from the Latin word ‘forensis’ meaning marketplace, as during ancient days the justice used to be dispensed from marketplaces or common meeting places. The total period of forensic medicine can be divided into three phases. 1. Ancient Phase The law and medicine problems were found as written records in China, India, Egypt and Babylon etc. dating back to 5000 BC to 3000 BC. The Hammurabi code by King of Babylon is the oldest medicolegal code. Chief justice and Chief physician of the King Zoser of Egypt was the first medicolegal expert. Different techniques were developed for the preservation of the dead bodies (mummification). Indian civilization such as excavation remains of the Indus valley civilisation (3200-2000 BC) gives the evidence of the use of medicines like shilajit and use of weapons made of bronze and copper. Manu (3102 BC) was the first lawgiver in India. His “Manusmriti” gives the knowledge about the laws prevalent at that time. Various types of crimes like sexual offences, seduction and adultery have been mentioned. Those who were having mental illness were not allowed to contract. King’s permission was required to practice medicine. Definite rules were laid down to practice and to learn medicine. It can be presumed that the origin of medical jurisprudence can be dated back to 3000 BC. At the same time a Chinese materia medica gives information about poisons. The Vedas of ancient India were composed between 3000 to 1000 BC. The Rig Veda, the oldest one mentions about kings and their administrati Marriage was prohibited in blood relations. The Atharva Veda mentions cures for wounds, snake bite and poisons etc. in the form of mantras or charms while other Vedas mentions crimes like incest, adultery, abortion and drunkenness etc. along with the punishment for them. During this time dead bodies were dissected that can be compared to anatomical dissection as well as pathological autopsy today. At that time Ayurveda was quite advanced. The first treatise was Agnivesh Charaka samhita I ntroduction During the period of 1000 AD to 1600 AD India was invaded by several foreign powers like Dutch, the French and East India Company so as to plunder its wealth and establish their colonies. Chaos and uncertainty prevailed in all spheres of life including law and order situation. Lastly the East India Company conquered and ruled over India in the middle of 18th century until it handed over power to the British crown in 1857. The first medicolegal autopsy was done by Bartoloneo D E Varignana in Bologna (Italy) in the year 1302 AD. The Constitutio Criminalis Carolina was published in Germany in 1532 AD which wrote about different types of homicides that were not punishable for example if a criminal who is deprived of his judgment power was not responsible for the act like a murder committed by an insane. 3. European Phase (1600-1947 AD) Paulus Zacchias was the principal physician to Pope Innocent X and Alexander VII an expert before the court “rota romana”, the court of appeal. His works “medicolegalis“ were published in seven volumes during 1621 to 1635 AD. This work remained an authority in medicolegal matters until the start of 19th century. He was considered as the father of forensic psychiatry as well as of legal medicine. An Italian physician Fortunate Fedele published the first book in forensic medicine in 1602. In 18th century the post of professorship was created in Germany. Orphila, professor of chemistry and legal medicine at Paris is considered as the father of modern toxicology. The British ruled over India till 1947 and introduced their system in every sphere like culture, education, administration, legal system and crime investigation etc. They introduced the allopathic system of medicine. The present legal system in India is a mixture of the English and Roman system, having been modified to suit the Indian conditions. The first medical school was established in Calcutta in 1822 that was later on converted into a medical college in the year 1835. Next medical school established in Madras in 1835, which was converted into a college in 1850. In Bombay first medical college was established in the year 1950. In 1857 AD, the first separate chair in medical jurisprudence was created in Madras medical college. Governor Lord Harris selected Dr Urguhart, 4 Textbook of Forensic Medicine system for personal identification. Towards the later part of 19th century that is in 1860 AD William Herschel, an Indian civil service officer posted at Nadia district of Bengal first used this method for identifying illiterate people while distributing money. After him Edward Richard Henry in 1891 AD developed the method further and published a book entitled “classification and use of recommendation the government of India also adopted this method of identification and established 1. The first book in Forensic Medicine was written by a physician of: A. U.S.A. B. U.K. C. Italy D. Denmark 2. The first medicolegal autopsy was conducted in: A. Italy B. Greece C. England D. Portugal 3. Who is known as the father of modern toxicology? A. Paulus Zacchias B. Bartolomeo De Varignana 1 C 2 A 3 C 4 B Part 1—Forensic Medicine Legal Procedures The legal procedures should be followed in the cases where death has resulted from some unnatural cause and under suspicious circums- tance. The investigating agency should be informed who conducts further investigations. Legal proce- dures in India are based on the Indian Constitution, Code of Criminal Procedure, Indian Penal Code and the Indian Evidence Act etc. The Criminal Procedure Code, 1973 (CrPC) deals with the procedure of investigation and trial of offences within the limitations of the Union Territories of India except Jammu and Kashmir and some other tribal areas. It provides for different classes of Courts and defines their powers. It also formulates duties of police in arresting offenders, dealing with absconders, in the production of documents and investigating offences. It defines offences into two categories; cognizable and non cognizable. Some cases are triable by both magistrates as well as Courts of Sessions as indi- cated in Section 2 of CrPC. However, when tried by a magistrate the punishment must be limited to magistrate’s powers. The Code also for the period of detention undergone by the accused during investigation, inquiry or trial is to be deducted from the sentenced of imprisonment awarded by the Court and the balance period only is to be undergone. A bar of limitation for taking cognizance ranging from 6 months-3 years has been prescribed in certain cases under Sec.468. The Indian Penal Code, 1860 (I.P.C) des- cribes various offences and with their punishments in the Courts of Law. It defines offences and several categories of the same offence are created such as House Trespass (Section 448-460) and theft 6 Textbook of Forensic Medicine and Toxicology police inquest. On receipt of information of an unnatural death, the police officer informs the nearest magistrate and thereby proceeds to the place of death. The police officer then conducts an inquest in the presence of two or more respec- table inhabitants of the neighbourhood (panchas). After the necessary investigation, a report is drawn up on the apparent cause of death as judged by the state of the body, the injuries present on the body, hearsay evidence and circumstantial evi- dence etc., this document is called panchnama or inquest report. This report is signed by the police officers and the persons present at the inquest. If any foul play or unnatural death is suspected, the police officer forwards the body for postmortem examination to the nearest government hospital along with the written request for conducting the postmortem examination and a copy of punch- nama (inquest papers). If the autopsy report con- firms that the death is due to an unnatural cause, further inquiry and trial of the case the usual manner by the magistrate concerned to whom the entire records of the case are by the police officer. Police Inquest cases where a person (i) has committed suicide (ii) has been killed by another man (iii) animal (iv) killed by machinery (v) killed accident (vi) died in suspicious circumstances raising reasonable suspicion that some other person has committed an offence. 1. In the above situation when the Police gets information, he will immediately the nearest Executive Magistrate empowered to hold inquest and then proceeds where the body of such person is found. He makes investigation in the presence more respectable person of the locality, up a report regarding the apparent case of death, describing such wounds, bruises, tures etc. found on the body and stating manner and type of weapon that has caused such injuries. 2. The report shall be signed by such and other persons or by so many of them who agree with the same opinion and shall be forwarded to District Magistrate/SDM. 3. When (i) The case involves suicide within seven years of marriage, or Coroner’s Inquest Coroner’s inquest no longer exist in India. However it used to the followed previously in Bombay. It is interesting that in Caltutta still for conducting the inquest, the dual system exists. The presidency town of Calcutta is under the Coroner’s system whereas in rest of Calcutta it is the police inquest. However, the Coroner system is prevalent in countries like U.K and some states of Coroner’s Court is a Court of inquiry Coroner conducts the inquest in unnatural, sudden and suspicious deaths. In his Court, the jurors are sworn to give a true verdict according to the evidence. Besides this, the Coroner has some judicial powers also. Medical Examiner’s System The Medical Examiner’s system for conducting inquest exists in most of the states in the Unites States. Medical examiner is a medical man who is appointed to perform the duties of a coroner. The medical examiner neither has judicial functions nor does he have authority ordering arrest of any person. In this system, the medical examiner visits the scene of crime and conducts further This system is superior to that of police or a coroner. CLASSES OF CRIMINAL COURTS (Sec. 6 CrPC) Besides the High Courts and the Courts cons- tituted under any law, there shall be in every state: (i) Courts of Sessions (ii) Judicial Magistrates of the first class and, in any Metropolitan area, Metropolitan magistrate (iii) Judicial Magistrate of second class, and (iv) Executive Magistrate. SENTENCE PASSED BY HIGH COURTS AND SESSIONS JUDGES (Sec. 28 CrPC) 1. A High Court can pass any sentence authorized by law. Magistrates Imprisonment Chief judicial magistrate Up to 7years First class judicial magistrate Up to 3years Second class judicial magistrate Up to 1 year 8 Textbook of Forensic Medicine and Toxicology This is also called subpoena. Literally sub means under and poena means penalty. The provisions regarding summons are dealt in the Sections 61 to 69 CrPC. The summon is issued in duplicate signed by presiding officer of the Court and bears the seal of the Court (Section 61 CrPC). The summons is delivered through a police officer, an officer from the Court or by any other person. The witness signs the carbon copy and returns it to the Court. According to 66 CrPC, if the witness is ment servant the summons can be sent to the head of the office in duplicate and the head in turn serves it to the concerned person. When sum- mons are issued to produce a document or any other article required for investigation or trial (Section 91 CrPC) the person in possession of the said document or article may send it instead of attending personally. If the witness fails to attend the Court without any valid reason he will be penalized in the form of paying damages in civil cases and Criminal cases notice will be served under Section 350 CrPC. After hearing from the witness if the Court thinks that there was no proper reason for not attending the Court, a bailable/non-bailable warrant may be issued to procure his attendance in the Court (Section 172- 174 IPC and Section 87 CrPC). If a witness receives two summons on the same date from the same type of Court he will attend the Court from which he received the summon first and will inform the other Court. If he receives two summons, one from Criminal Court and the other from Civil Court, he will attend the criminal Court first with intimation to the Civil Court because Criminal Courts have priority over Civil Courts and also the higher Courts have priority over lower Courts. The witness would not leave the Court without the permission of the presiding officer. In civil cases certain amount of money is paid to the witness towards his expenses for attending the Court, which is called conduct money. This amount is paid to the witness while serving the summons. At times the money is paid in If the witness thinks that the amount is less according to his status he can pray to officer in the Court for additional amount. can ignore the summon if no amount is paid. asked questions as to when he saw the body and started the postmortem examination. The question pertaining to description of the injuries, duration of injuries and possibly about the weapon of offence are also asked during examination in chief. Normally leading questions are not allowed where the Court is satisfied that the witness is a hostile one (Section 142 of the IEA). A leading question is the one, which suggests the answer. (Section 141 IEA) for example “did you carry out the postmortem examination”, “did you find a 5 cm laceration on the forehead”. To an ordinary witness, question such as “did you see the accu- sed inside the restaurant” or “ have you seen him beating A” are asked. In civil cases also the same procedure is followed. CROSS EXAMINATION During the cross examination the lawyer of the opposite party i.e. the lawyer of the accused (defence lawyer) examines the witness. The main objectives are: To elicit facts favourable to his client. To find out the weak points in the case. To verify the accuracy of the facts told. (Section 146 IEA). The defence lawyer always tries to discredit the witness and tries to prove that the report given is not correct and biased one. It is not necessary that the question should be confined to the facts told in examination in chief. (Section 143 IEA). The defence lawyer may even ask questions pertaining to the qualifications, experience etc., especially in the type of the case in question. During this time the Court observes whether a particular question should be answered or not. The Court has power to disallow a question if it is intended to insult or harass the witness but if it is relevant to the case the Court cannot disallow. The witness has to answer the question that relates to the case even if it is harmful to the witness or it exposes his fault or negligence (Section 146 IEA). If a witness is forced to answer that goes against him he cannot be arrested or prosecuted or cannot be taken as proof against him for any criminal proceedings When a question is not audible, the witness can request to repeat the 10 Textbook of Forensic Medicine and mission. The TA and DA are usually paid in the Court. CODE OF CONDUCT OF A DOCTOR INSIDE THE WITNESS BOX The doctor in the witness box should appear as a man of professional competence and integrity. He should be well dressed and look sober, prepare the facts of the case and take all relevant records / articles in his custody to the Court. The doctor should never be nervous inside the Court and speak loudly and clearly so that the presiding officer can record the deposition. It is essential that he should use jargon and if medical terms are to be explanation can be added. An expert may refresh his memory by reference to the professional treatise. The writing that is used to memory can be cross-examined by the opposite party (161 IEA). The doctor should never be over confident or arrogant. He should always use “Sir” or “Your honour” while addressing the Court. He should never use adjectives or exaggerations like very large bruise severe pain etc. And he should never loose the temper even if provoked by the opposite lawyer. The doctor should not avoid any question. If the answer is not known, always say, “I don’t know”. Nobody expects the doctor to know everything. Do not alter your findings to what is said in the statement. The answers should always be brief and to the point. If the lawyer limits the answer to “yes” or “no” which is not possible at times, the doctor can tell the judge that it requires explanation because you have taken the oath not only to speak truth but the whole truth. Always answer “in my opinion but not as I think or imagine or I am not sure etc”. When the answer demands quantity or number, the doctor should not tell the number unless he knows the exact number or quantity such as in cases of age estimation, the answer should be given within certain limits. The doctor should always answer within his own speciality. He should never comment on the points where he has little or no experience at all. to be made before it by the witness, in relation to matters of fact under inquiry, are called oral evi- dence. All documents produced for the inspection of the Court are called documentary evidence. Before accepting the documents the Court must be satisfied regarding the identification and the place of seizure. Ordinarily the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The defence makes use of the medical evidence to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitness. Types Documentary Evidence It includes all documents produced before Court during trial. According to Section 29 IPC the word document means “Any matter expressed or described upon any substance by means of letters, figures, marks or by more than one of these means intended to be used or which may be used as evidence of that matter.” The documentary evidences are embodied in the Sections starting from Section 61 to Section 90 of the IEA. The contents of documents may be proved either by primary or secondary evidences (Section 61 IEA). Primary evidence means the document itself produced for inspection of the Court, (Section 62 IEA). The secondary evidence means and include the certified copies, copies made from the original by mechanical process, copies made from or compared with the original and oral accounts of the contents of a document given by a person who has himself seen it (Section 63 IEA). Tape- recorded statements are admissible as evidence (K.S. Mohan vs. Sandhya Mohan AIR 1993 Mad 59). Evidence must confirm to the matters in issue and is admitted on the basis of relevance and admissibility. Oral Evidence Section 59 IEA says that all facts, except the contents of documents or electronic records may be proved by oral evidence. 12 Textbook of Forensic Medicine and period of absence in cases of employed persons. The signature of the patient should be at the bottom with the date indicating that he attended the clinic and the doctor has examined him while issuing the certificate. The signature is to be verified by the doctor. Death Certificate It is essential that identification and cause of death is to be determined for the lawful disposal of the dead body. The registration of Birth and Death Act came into force from 1st April 1970. As per the act all the births and deaths are to be registered throughout India. In case of death certificate the doctor must inspect the body and satisfy that the person is dead. He is legally bound to issue the certificate he has attended the patient during his last illness indicating the cause of death. According to the recommendation of Brodrick committee a doctor should not be allowed to issue a death certificate unless he has attended the deceased at least once during seven days preceding death. He cannot charge any fee for issuing a death certificate. He cannot delay or refuse to issue a certificate. He may subsequently sue the legal heirs for his pending dues. He must refuse to give a certificate on the following grounds. (A) if he is not sure about the cause of death. (B) any suspicion of foul play. (C) death by violent and unnatural cause, drugs, poisoning etc. If he is not sure regarding the cause of death and sus- pects some foul play he should not issue the certificate, instead he should inform the police. Issuing a false certificate under Section 197 IPC is punishable under Section 193 IPC with imprisonment that may extend to 7 years and also fine. In general in obtaining a certificate the public expectations are great because they think by giving some money anything can be written in a certificate and try to produce false certificates for various purposes. Death certificate is a predicament in any doctor’s practice. The relatives of the deceased my plead, persuade, pressurize, offer a price and at times even threaten the doctor. He may be tempted at times on humanitarian grounds to issue a certificate. The doctor may certify death in doubtful cases but must not give a cause of death and he should inform the police. Failure to do so may result in the doctor being prosecuted under regarded an assault in law. The victim should be explained the purpose and outcome of such examination before taking the consent. While examining a female, a lady registered medical practitioner should examine (Section 53(2) CrPC). Where the lady doctor is not available a female attendant should be present at the time of examination whose signature should be taken in the report. The findings are observed in detail and a report is prepared. The opinion or conclusion drawn should not be biased one as it is subjected to cross examination in the Court of law. The opinion must be kept pending till the reports are available in cases where necessary investigations are required. The negative findings are also to be pointed out in the report. These reports are produced in the Court of law. The doctor who has made the report should attend the Court to testify under oath, and then only they are taken as evidence. If the doctor is not available someone else can attend the Court to testify his signature and handwriting before being taken as evidences. Dying Declaration This topic is always in all the textbooks of forensic medicine is relatively an unimportant matter. Its major purpose is to render it admissible. Dying tion is any evidence from a person who the case is heard. Such a dying declaration have corroborative evidence to support can be accepted (Section 157 IEA). The dying declaration has been incorporate in Section 32 of IEA that reads as “a written or verbal of relevant facts made who is dead or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, without of delay or expenses which under the circums- tances of the case appears to the Court unrea- sonable” are themselves relevant facts in the following: (i) When it relates to the (ii) When a statement made by a person cause of his death or as to any of the circums- tances of the transaction which resulted in his death. Such a statement are relevant whether the person who made them was or was not at the time when they were made under expectation of 14 Textbook of Forensic Medicine and by the recording magistrate, the doctor and the witness mentioning the date and time. The declaration may take in the form of first information report of a statement before the police (Section 162 CrPC) during investigation. There is no prescribed form to record a dying declaration and no rigid rule can be formed. When a deceased person makes more than one dying declaration then they should be taken as one for the purpose of conviction. If the subject matter differs efforts should be made to reconcile. If at all the differences exist about the facts that should be covered by the explanation to the Section 161 CrPC and to be considered as a matter of fact in each case. If the person survives after making a declara- tion then he is called to the Court and his evidence is taken. Therefore the dying declaration recorded earlier acts as corroborative evidence. Dying Deposition There is no provision of dying deposition in the Indian Evidence Act therefore it is not followed in India. Here the magistrate records the evidence after administering oath. The accused or his lawyer is present and they are allowed to cross-examine the victim. WITNESS Section 118 IEA states about the person who may testify as witness in Courts of Law and reads as “All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions as a result of tender age, extreme old age, disease of mind or body or any other cause of the same kind.” Even a mentally ill person, lunatic is not incompetent to testify unless he is prevented by his lunacy from understanding the questions put to him. Types Common Witness (Ordinary Witness) Common witness is a person who has seen/ observed the facts. It has to be proved that he/ she was capable of perceiving the facts or has Short Questions 1. Cross Examination 2. Dying declaration 3. Powers of magistrates 4. Types of witness MULTIPLE 1. Section 174 CrPC deals with: A. Inquest B. Murder C. Exhumation D. Inquiry 2. Leading questions are permitted only in: A. Examination –in-Chief B. Cross Examination C. Re Examination D. Dying declaration 3. A Cognizable offence signifies: A. Arrest without warrant B. Imprisonment up to 1 year C. Imprisonment up to 5 years D. Only fine 4. The present Criminal Procedure Code has been enacted in the year A. 1947 B. 1963 C. 1973 D. 1985 5. Code of Civil Procedure which is being followed now a day was amended in the year: A. 1950 B. 1962 C. 1976 D. 1982 6. A second class Magistrate can pass a sentence up to: A. 1 year B. 2 year C. 3 year D. 4 year 7. Chief Judicial Magistrate can pass a sentence up to: A. 5 years B. 7 years C. 10 years D. Life imprisonment 8. Minimum age to be a witness in the court of law is: A. 7 years B. 12 years C. 16 years D. Any age 9. Dying declaration ideally is to be recorded by: A. Police B. Medical Officer C. Magistrate D. Session’s Judge 1 A 2 B 3 A 4 C 5 C 6 A 7 B 12 D 13 D 14 A 15 B 16 A Part 1—Forensic Medicine Laws in Relation to Medical Practice The medical profession is guided by a code of ethics which are formulated by the National Medical Council and State Medical Council alongwith World Medical Association. The ethics are nothing but the moral principles that guide the members of medical profession. The enforcement is done by the Medical Council of India and state medical council. INDIAN MEDICAL DEGREES ACT 1916 The Act was passed to grant the title in respect of the qualification of western medical science. According to the Act, we have right to grant medical degrees, diplomas and certificates to practice the western medical science but false use of a title is punishable under the Act. MEDICAL COUNCIL OF INDIA The Medical Council of India was established by the Indian Medical Council Act of 1956 to maintain a medical register for India and for the matters concerned with it. The act is applicable to the whole of India. Constitution and Composition of the Council The council consists of members as follows: 1. One member from each state other than territory, to be nominated by the central government in consultation with the state government concerned. 2. One member from each university, to from its medical faculty, by the university or court. 3. One member from each state in which a state medical register is maintained, to be elected 18 Textbook of Forensic Medicine and 1. Maintenance of a Medical Register: The Council maintains a register for the medical practitioners where the names of all the registered doctors are entered. It also contains the names of the doctors who were registered in the State Medical Council. If due to some reason the name of the doctor is erased from the State Medical Register, it is automatically also erased from the Central medical Register maintained by the Medical Council of India. 2. Medical Education: It maintains the uniform standard throughout the country in respect to Undergraduate and Post Graduate courses. There is a Post Graduate Medical Education Committee consisting of nine members to maintain a uniform standard in respect to Post Graduate Qualification imparted by different Universities. They also advice the and give guidance in this respect. Prior approval of M.C.I. is required for starting a PG course in any discipline. If not followed the M.C.I. has power to derecognised the said qualifications. As regards to Under Graduate Medical Education, the Council prescribes minimum standard. It appoints Medical Inspectors to inspect the various colleges before giving sanction either to start a new college or to renew it. Even to increase the numbers of seats in Medical College requires M.C.I.’s prior permission. The inspectors submit the report to the M.C.I. which is considered by the committee formed. Then the committee recommends to the Government to grant permission or not. In cases when the Council is not satisfied, it recommends the Government to withdraw the recognition. 3. Recognition of foreign medical qualifications to an Indian National with foreign degree which is not included in the part II of the third schedule applied to central government along with the full information in respect of the syllabus and duration of course etc. The Central Government forwards the applications to Indian Medical Council which has authority to enter in negotiations with any of the Medical Council of the Foreign Countries and can recognize such qualifications. Then the Central Government by the good of my patients, keeping myself far from all intentional ill-doing and all seduction, and especially from the pleasures of love with women or with men, be they free or slaves. All that may come to my knowledge in the exercise or my profession or outside or any profession or in daily commerce with men, which ought not to be spread abroad. I will keep secret and will never reveal. If I keep this oath faithfully, may I enjoy my life and practice my art, respected by all men and in all times; but if I swerve from it or violate it, may the reverse be my lot.” DECLARATION OF GENEVA 1968 It was amended at Sydney in 1968. At the time of being admitted a member of the medical profession: I will 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 practice my profession with conscience and dignity; The health of my patient will be my first consideration; I will respect the secrets which are confided in me, even after the patient has died; I will maintain by all means in my power the honour and the noble traditions of the medical profession; My colleagues will be my brothers; I will not permit considerations of religion, nationality, race, party politics or social standing to intervene between my duty and my patient; I will maintain the utmost respect for human life from the time of conception; even under threat, I will not use my medical knowledge contrary to the laws of humanity. I make these promises solemnly, freely and upon my honour. Professional Misconduct It is also known as infamous conduct or disgraceful act. It is the improper conduct of the doctors in the professional aspect. What really constitutes misconduct is controversial. But the M.C.I. has enlisted the acts or behavior that constitutes the 20 Textbook of Forensic Medicine and name, qualification and the name of his speciality. The same should be contents of his prescription paper, which may in addition contain his address registration number and telephone number. It is unethical to fix a signboard on a chemist shop or in places where he does not reside or work. He should not advertise himself through manufacturing firms directly or indirectly. 3. Association: It is unethical to show improper conduct or association with the patient or his family. He should not associate himself with the manufacturing firms in the form of ownership, should not receive any rebates or commission for prescribing medicines. He should not use abbreviations, which can be read in only one particular pharmacy to dispense medicine. 4. Abortion: He should not perform an abortion that is not under the cover of MTP Act or he will not assist any unqualified person for doing a criminal abortion. 5. Alcohol: He should not practice medicine under the influence of alcohol, which interfere the skilled performances. 6. Addiction: He should not use any drugs of addiction that can hamper the practice. 7. Dichotomy or fee splitting, receiving or giving commission or other benefits to a colleague or drugs manufacturer. 8. Using touts and agents for fetching patients. 9. Not informing about the notifiable diseases to Health Authority. 10. Disclosing the patient’s secrets learnt during examination and treatment without consent. 11. Refusal to treat a patient on religious grounds. 12. To run a chemist shop for the sale of medicine or for dispensing prescriptions of other doctors. 13. Issuing false certificates in connection with sick benefit insurance or passport etc. 14. He should not assist a person who has no qualification to attain or treat a patient. The Medical Council of India brought into force the new ethical regulations in year 2002 called the Indian Medical Council regulations, Reasons for Obtaining the Consent To examine, treat or operate upon a patient without consent is regarded as assault in law, even if it does not cause any harm and even if it is beneficial and done in good faith, for which the patient may sue for damages. If the doctor fails to give the requisite information to a patient before asking for his consent for a particular operation / treatment he may be charged for negligence. Types of Consent 1. Implied 2. Express Oral Written—informed. Implied Consent This type of consent is specifically stated patient and is seen in routine medical practice and is quite adequate. Here consent is the mere fact that patient comes to physician a problem or when a patient holds out an injection. If the procedure of diagnosis is simple and straightforward, the risk is negligible mon and the conduct of the patient implies ness to undergo treatment. In spite of if there is the slightest fear of complication, doctor should seek express consent. Express Consent May be written or verbal, and should be obtained for any procedure beyond the routine physical examination, like operation, collection of blood, blood transfusion etc. The nature and conse- quences of the procedure should be explained before getting consent. Oral consent in the pre- sence of a disinterested third party is as good as written one. Doctrine of Informed Consent In informed consent, the patient is informed about his/her condition of the disease, nature of the proposed treatment whether surgical or medicinal methods, any alternative procedure available or not, the possible risks and benefits of the proce- 22 Textbook of Forensic Medicine and examination is not required because the patient conducts himself/herself in a manner which implies consent. Written consent is not necessary in every case. However it should be taken for proving the same in the court if necessity arises. In medico legal cases written consent is a must. Any procedure beyond routine physical examination such as operation, blood transfusion, collection of blood etc. requires express consent. It must be taken before the act and not at the time of admission in to the hospital. The consent should be free, voluntary, clear, informed, direct and personal. There should be no undue influence, fraud, and misrepresentation of the facts, compulsion and threat of physical injury, death or other consequences. The doctor should inform the patient that he has the right to refuse to submit to the examination and that the results may go against him / her. If he/she refuses it is an absolute bar for examination except under S 53 CrPC. Written consent is taken for a specific procedure. It is not same as blanket permission for general procedure where the surgeon can decide in the operation itself regarding the type extent of operation. The doctor should explain the object of the examination to the patient and he should be informed that the findings would be embodied in a medical report. In criminal cases the victim cannot be examined without consent. The court also cannot compel a person to get medically examined against his will. If the person is arrested being charged of some offence and the examination of his body will provide some evidences toward the commission of the crime he can be examined by a registered medical practitioner even without his consent Part 1—Forensic Medicine and Pathology they deal with each other, their patients as well as with the State. Medical etiquette deals with the conventional laws of courtsey observed between the members of the medical profession. State Medicine is a term, which was suggested by Dr. Stanford Emerson Chaille in the year 1949, but now a days it stands rejected worldwide. In India few States like West Bengal, Manipur and Assam etc. use the word and the subject is known as Forensic and State Medicine. Forensic medicine can be divided into a number of sub branches. Forensic pathology deals with morbid anatomy, pathology of injury and different aspects of death with their medicolegal significance. Forensic psychiatry is a very interesting branch where legal aspects of mental disorders are studied. Forensic odontology where the ability of dentistry is undertaken when the question of identification and interpretation of bite marks arise. A number of factors are found in the teeth that are utilized for identification purposes. Forensic anthropology, studied of bodily shape and skeletal formation in legal sense and also for the identification purposes. The branch of forensic science that is a sister discipline of forensic medicine. Now-a-days this is mainly occupied by the non medical scientists mainly a biologist or chemist who deals with the criminal aspects of crime investigations. There is a strong link between the forensic medical experts and forensic scientists as the former collects the evidences during medicolegal autopsy or while examining living persons and the letter carries out the test and gives the opinion. Therefore both these branches are complementary to each other. when and Toxicology supposed to have been composed during 700 BC. Here we find regarding the rules of studying ayurveda, duties and rights of the students, privileges they can avail that can be considered the origin of medical ethics. In addition, there is a mention of poisons, their symptoms with their treatment. Between third and fourth century BC, the Arthashashtra of Kautilya was written. In this book the penal laws are defined and the rules regarding the application of medical knowledge to legal matters has been mentioned which can be considered as the origin of legal medicine in India. The physicians were allowed to practice only after king’s approval, similar to registration with medical council today. They were liable to be punished if there was any negligence during treatment. The other crimes like sexual offences, violation in marriage laws etc. were also punishable. There were provisions for the examination of dead bodies like post mortem examination of today. The body used to be kept in oil for examination in cases of sudden deaths. If any dead body that was swollen with eyes protruding out, marks on the neck, was taken granted that he has been killed by strangulation. Signs of death due to hanging, strangulation, drowning etc have been mentioned. In cases of poisoning the portions of stomach and heart were put in the fire and the nature of flame and sound were noted to determine the nature of poison. Depending on the seriousness of the crimes different types of punishments like whipping and cutting of body parts were awarded. Hippocrates the father of western medicine (460 BC to 377 BC) was first to write the code of medical ethics. He practiced in the island of Kos in Greece and discussed the lethality of wounds at large. During 44 BC Antistius had conducted the autopsy on the body of Julius Caesar who was assassinated. on. 2. Medieval Phase Justinian court during the 1st to 5th century AD came into existence after the name of Justinian the Roman Emperor who specified the role of medicolegal experts in dealing with medicolegal problems. During the period of 12th to 15th century AD a Chinese treatise was published named His-Huan- Lu. The inquest was made obligatory in all types of unnatural deaths. Different types of injuries were defined and the manner of investigations to be done in these cases was also suggested. and History of Forensic Medicine 3 a private practitioner and coroner of Madras as the first professor. Among the earlier professors were Dr Mouat, Dr John Moses of Calcutta medical college, Dr A Porter and Lt. D.G. Roy of Madras medical college and Major Collies Barry of Grant medical college, Bombay. The books that were followed were brought from England. The popular English authors books were Taylor’s principles and practice of medical jurisprudence and Capsers medical jurisprudence. The first book for India was written in 1856 by Dr Norman Chevers the other books written in 1888 by Dr I B Lyon named Medical Jurisprudence for India, outlines of Medical Jurisprudence by Lt. Colonel P. Henir and J D B Gribel in 1889 and Legal Medicine in India and Toxicology by Major Collies Berry in 1902. Dr Jaising P Modi, lecturer at Agra Medical College and then at Lucknow Medical College since 1918 was a leading medicolegal expert. His first book the Text Book Of Medical Jurisprudence And Toxicology was published in 1920. The book became popular not only with medical students but also among the lawyers and judges. The British rulers subsequently codified the criminal law in India in 1833. The present Indian penal code (IPC) came into existence in 1860 and superseded all previous laws. The criminal procedure code (CrPC) came into force from 1861. These laws are being followed till today. The procedure for crime investigation was systematized by the introduction of Indian Police Act of 1861 and the coroner system by the Indian Coroners Act 1871. The coroner system was followed in Calcutta, Bombay and Madras whereas the rest of the country followed the police system. The practice of modern medicine was first regulated by the formation of provincial medical councils in 1912 according to which the medical practitioners were required to register themselves in the respective state medical councils. In 1916 the Indian medical degrees act was passed to recognize the qualifications from reco- gnized institutions and to penalise persons having false certificates to practice medicine. The Indian Medical Council Act was passed in the year 1933 and the Indian Medical Council was established to control the state medical councils and to regulate infirmity in medical education throughout the country. One of the greatest contributions India has made to modern criminology is dactylography or fingerprint and Toxicology a fingerprint bureau in Bengal in 1897 AD. Subsequently this method was introduced in criminal investigation department of Scotland Yard in July 1901 by Henry himself who was posted there as assistant commissioner. Then the medicolegal work was undertaken and postmortem centers were established at different fingerprints”. By his places. During the time of East India company a post mortem was conducted in Madras in August 1693 by Dr Buckley in an alleged case of arsenic poisoning. This was probably the first medicolegal autopsy in modern India. MULTIPLE CHOICE QUESTIONS C. Orfila D. Fortune Fedele 4. In India the first book of forensic medicine was written in the year: A. 1850 B. 1856 C. 1860 D. 1875 5. The first separate chair in medical jurisprudence was created at: A. Grants Medical College B. Calcutta Medical College C. K.G. Medical College, Lucknow D. Madras Medical College 5 D and Pathology 2 (Section 379-382 and 401). These offences are categorised under the I.P.C. to keep the workload low for higher Courts as well as in expensive thus reducing the number of such Courts. Besides this the I.P.C. also provides a chapter on general exceptions in which the right of self defence of person or property and extending to causing deaths in certain circumstances is to be found. The IPC describes various punishments such as (i) Death (20 years in prison) (ii) Imprisonment for life including solitary confinement (iii) Simple imprisonment (iv) Forfeiture of property and fine. The Indian Evidence Act, 1872 (I.E.A.) relates to evidence on which the Courts could come to some conclusion about the facts of the case. Criminal law relates to the offences that are against the interest of the public namely offences against the person, property, safety of the public as well as security of the state. Civil law deals with disputes between two individuals or parties called the plantiff and defendant (accused). provides INQUEST An inquest is investigation in to the cause of death in cases of sudden, unnatural & suspicious deaths conducted by the legal authorities such as the Police Officer, Magistrate or the Coroner etc. 1. Police inquest TYPES OF INQUEST 2. Magistrate’s inqu Police Inquest (Sec. 174 Cr.P.C.) 3. Coroner’s inques 4. Medical Examine Police to Enquire and Report on Suicide etc. An officer-in-charge of the police station in whose jurisdiction the death has occurred conducts the relates the death of woman within seven years of her marriage raising a reasonable suspicion that some other person has committed the offence in relation to such woman or (iii) The case relates the death of a woman within seven years of marriage and any relative of the woman has made the request in this behalf or (iv) There is any doubt regarding the cause of death (iv) The police officer for any other reason considers it suitable to do so sends the body to the nearest civil surgeon or Medical Officer for examination. 4. The following Magistrates will be empowered to hold inquests, namely any District Magis- trate or Sub Divisional Magistrate, any other Executive Magistrate empowered by State Govt. or the District Magistrate. Magistrates Inquest (S.176 CrPC) Inquiry by Magistrate into Cause of Death is conduced in 1. The inquest is done by any District Magistrate, sub Divisional magistrate or any other executive transferred Magistrate or any Magistrate empowered by is done in the State Government. Following are the indications of Magistrate’s Inquest: killed by i. Custodial deaths in an ii. Deaths due to Police firing iii. Death inside prison iv. Dowry deaths v. Clause (i) or (ii) of sub Section (3) of Section Officer 174 CrPC. The case involves suicide by a informs woman within seven years of marriage or the case relates the death of woman within to the place seven years of her marriage raising a reason- able suspicion that some other person has of two or committed the offence in relation to such draws woman 2. In addition the Magistrate may hold an inquest fac- in the cases done by Police. The proceedings the of the Magistrate are not judicial proceedings, they only try to find out the cause of death. After inquest the body is sent for the post- Police Officer mortem examination. The inquest papers must be handed over to the Autopsy surgeon for infor- mation. During the investigation, the Magistrate shall inform the relatives of the deceased and by a woman also allow them to stay during investigation. (ii) The case Irritant Poisons 7 2. A Sessions Judge may also pass any sentence authorized by law but any sentence of death passed shall be subject to confirmation by the High Court. 3. An Assistant Sessions Judge may pass any sentence authorized by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding ten years. U.S.A. The POWERS OF MAGISTRATES (Sec. 29CrPC) in which the The Court of Chief Metropolitan Magistrates shall have the powers of the Court of a Chief Judicial Magistrate and that of a Metropolitan magistrate. The powers of the Court of Magistrate are given in Table 2.1. COGNIZABLE OFFENSE (Sec. 2 CrPC) Cognizable offence means an offence for which, and cognizable case means a case in which, a police officer may in accordance with the First schedule or any other law for the time being in force, arrest without warrant. These offences include rape, dowry deaths, ragging, deaths due to rash or negligent act etc. inquest. JURISDICTION IN CASE OF JUVENILES (Sec. 27 CrPC) Any offence not punishable with death or imprison- ment for life, committed by any person who at the date when he appears or is brought before the Court is under the age of eighteen years, may be tried by the Court of Chief judicial Magistrate, or by any Court specially empowered under the Children Act, 1960, or any other law for the time being in force providing for the treatment, training and rehabilitation of youthful offenders. SUMMONS (SUBPOENA) It is a written document compelling the attendance of the witness in the Court, to depose evidence, at a particular time and purpose under penalty. Table 2.1: Powers of magistrate Solitary confinement Fine (Rs) Yes Unlimited Yes 5,000 yes 1000 But in criminal cases no conduct money is paid the witness must attend the Court in the interest of the state or in the interest of justice. The government usually pays TA and DA to attend such Courts. If the witness does not attend the Court he will be charged for contempt of Court. After getting the summons the witness appears before the Court on the specified date and time with the records called for. Before deposing the evidence the witness has to take the oath. a govern- OATH The witness stands in the witness box and takes the oath. The main aim is that the witness will tell the truth during the evidence. The provision is incorporated in Section 51 IPC. He takes oath as follows. “I swear in the name of God, that what I shall tell, be the truth, the whole truth, nothing but the truth.” (Vide Indian Oath Act 44 1969 Section 4 and 6). The oath is taken in the case of all Courts other than high Courts and supreme Courts, which is administered by the presiding officer. In cases where the witness appear before a bench of judges / oblique magistrates, one of the judges or the magistrate can administer the oath. (Indian Oath Act 44 of 1969 Section 2). Perjury means willfully giving false evidence under oath or unable to tell what he knows or believes to be the truth (Section 191 IPC and Section 344 CrPC) he is liable to be prosecuted for perjury under Section 193 IPC with imprison- ment up to seven years and fine. EXAMINATION IN CHIEF (Sec. 137 IEA) After the oath or affirmation the witness will be examined by the lawyer of the party that has called him it is also known as direct examination. In criminal cases the state becomes a party so the burden of proof is always on the prosecution. It is always presumed that the accused is innocent unless otherwise proved. Before giving the evidence the doctor should always see the previously prepared report. If needed he can meet the public the Court. prosecutor and go through the files and other records. The doctor should help the public the presiding prosecutor to frame the questions so that proper Even he facts are elicited. The medical witness is usually Irritant Poisons 9 same and when the question is not understood properly he can again ask to explain. The witness should be clear, direct and precise in his answer. The doctor is an expert witness to the Court, not to either party even though one party has called him. The Court and the society want him to be impartial and assist the Court to reach a proper conclusion for the sake of justice. This has been well put by the famous French medicolegal autho- rity in 19th century Brovardel. He said, “Where the law has made a physician a witness, he should remain a man of science. He should remember that he has no victim to avenge, no guilty person to convict and no innocent person to save.” When a witness is harassed and humiliated he becomes angry, hostile and tense. His intellectual faculties are blunted so as to loose the power of giving proper evidence. He may ask the Court for some time to be in proper shape for further evidence. He may volunteer certain facts that are relevant to the case even if not asked by the lawyer. Here the leading questions are allowed and there is no time limit for cross-examination. RE-EXAMINATION already This is done by the lawyer who has called the witness (Section 137 IEA) the main aim is to clarify the points raised in cross examination and correct the mistakes done. However the lawyer should not bring any new points during the exami- nation that has not been raised in the examination in chief. If any new point arises the witness should be cross-examined. Raising a new point should be done after taking permission from the Court. Questions put by the Court The judge may ask any question to clarify doubts in the evidences. The Court is also empowered to recall and reexamine any witness already examined if it is essential to arrive at a decision (Section 165 IEA and Section 311 CrPC). The deposition is handed over to the witness after reading carefully and thoroughly he signs at the end of each page with date. Any mistakes in the deposition should be brought to the notice of the Court and then he can correct it with his initials. He should not leave the Court without prior per- Toxicology When the lawyer reads a paragraph from the book and asks to comment the doctor should always be careful. He must read the paragraph carefully even the paras before and after it to come to the conclusion. He must see that the book should be recent edition and the views expressed must be latest. He may or may not agree. It’s not necessary to agree upon everything written in the book. It should be remembered that views expressed in the book by reputed authors are taken as evidence even if the witness doesn’t agree to it. When attempts are made to influence the witness by one party or the other he must report no medical to the senior police officer or to the Court so that used a short the corrupt person can be penalized and at the same time he and his family members are given protection. refresh the A medical witness cannot claim professional privilege. He has to answer each and every ques- tion asked after obtaining the permission of the Court. A witness whether medical or otherwise is completely immune from actions for defamation (libel or slander) for anything he says in the witness box. This is quite important otherwise the witness will not disclose the actual facts because of fear of legal action later on. Volunteering of statements—At occasions the public prosecutor leaves certain ambiguities in the evidence and the advocates for the defence also put ambiguous questions, as a result the witness gives incomplete answers. The defence lawyer takes the advantage of these during an argument. When certain ambiguity is left or a general state- ment given by him is not applicable to the facts of the case in hand, the medical witness should come forward and volunteer for a statement making the position clear. When such statements are volunteered the Court writes “as statements volunteered” the statement has the same value as other statements given by the witness in res- ponse to questions put to him. The advocates of both the parties have a right to cross-examine such volunteer statements. MEDICAL EVIDENCE Section 3 IEA 1972 defines evidence as: All statements, which the Court permits or requires Irritant Poisons 11 Direct Evidence The oral evidence must be direct (Section 60 IEA) for example when it refers to a fact that could be seen/heard/perceived, it must be the evidence of that person who saw/heard/ perceived it. It must be direct if it refers to an opinion or to the grounds on which that opinion is held. The evidence must confirm to the matters in issue that is a knife that has caused stab injury, a medical prescription that resulted in the ill effects to the patient. Indirect Evidence (Circumstantial) At times the other surrounding facts are taken into consideration that are consistent with the direct evidence for example ‘A’ committed murder of ‘B’ with knife at a particular place, date and time. Here ‘C’ will depose that he saw ‘A’ on that day, date and time with a knife in hand just before the murder. This evidence of ‘C’ has a bearing to the fact. Hearsay Evidence Here the persons other than the witness give the statement. For example during the trial ‘A’ told that ‘B’ had told him that he has seen ‘C’ while committing the crime. Here ‘B’ can give the direct evidence as he has seen ‘C’ committing the crime. Varieties of Documentary Evidence Documentary evidence is of the following: Medical Certificate Medical certificates are regarded as the simple form of documentary evi- dence. They are issued by a registered medical practitioner in respect of ill health, age and mental condition. The certificates are also issued in cases of death, a vital document, may be needed during cremation, transportation outside state and certain claims. It is accepted in the Court of law as a piece of evidence as to the facts stated in the medical certificate. Even the doctor who has Medical certificate issued it may be summoned to the Court of law to Death certificate testify the contents of the certificate on oath and Medicolegal reports if needed cross examination can be done. Thus Dying declaration. the medical practitioner must exercise due care and skill in issuing such certificate. The certificate must state the exact nature of illness and should contain doctor’s opinion in clear language. In case of ill health the doctor should write the exact nature of illness, the duration of illness and probable Toxicology Section 39 CrPC. Under Section 17 (1)(b) of RBD Act 1969, any person may obtain an extract from the registrar relating to any death after paying the requisite fee, though it will not disclose particulars regarding the cause of death as entered in the register. This confidentiality can be over- ridden in public interest. International format of death certificate: The death certificate recommended by WHO for inter- national use, is in two parts. Part I: Records (a) immediate cause: the disease or condition directly leading to death and (b) antecedent causes viz, the morbid conditions, if any, giving rise to the cause mentioned in (a). (c) is the contributory cause to (a) and /or (b). Thus (a) must be due to (b) which must be due to (c), etc. When many conditions are involved, write the full sequence-one condition per line, with the most recent condition (immediate cause) at the top and the earliest (the condition that indicated the sequence of events between normal health and death) the last. The basic pathological condition is the one, which is mentioned on the lower most line, and this is the one that is used for statistical and epidemiological purposes. Part II: Records other significant conditions contributing to death, but not related to the disease or condition causing it. International forms are used by various municipal authorities in our country and are available for doctors. Doctors should necessarily use their rubber stamp after affixing signature to death certificate. Medicolegal Report These are the legal docu- ments prepared by the doctor at the request of investigating officers usually in criminal cases like injury cases, sexual offences, murder and poison- ing cases. These reports are made in both living and dead cases. The request usually comes from police officer or magistrate. It usually comes in two parts. The first part consists of observations and findings of the cases while the second part consists of the opinion and conclusion. The doctor starting the examination should write in detail the name of the individual, date, time and place of examination. The identification marks should be noted and the consent has to be taken because any examination without consent is Irritant Poisons 13 death and whatever may be the nature of procee- ding where his cause of death comes in question. The above provisions were made on mainly two grounds: (i) At times the victim being the only eyewitness to the incident, exclusion of his or her statement will not be justified to meet the justice. (ii) Impending sense of death that is taken as equal to oath and the person is believed to tell the truth at that time. Recording dying declaration: If there is time the magistrate should be called to record the declaration in the absence of magistrate the doctor should record it either at the site of accident or when the patient is being taken to the hospital. The police officer can also record it and even anybody like the panchayat head or the relatives can record the declaration depending upon the situation. However the weightage of dying declara- tion becomes less and less in the descending order. Procedure: In the hospital admitted cases; the treating physician first tries to stabilize the patient and then informs the police. If the doctor thinks that the patient life is in danger he will arrange for the dying declaration. The police inform the area mentioned magistrate for the purpose. The doctor first has to though it certify that the patient is in perfect mental condition to make a declaration i.e. the patient is declara- in “compos mentis”. If the magistrate is not dies before available or there is much delay of his arrival then must the doctor will write the declaration. The police it before it should be discouraged to be near the patient so as to avoid the undue influence. The doctor should d be there throughout the declaration to check the statement mental condition. If during declaration the patient by a person becomes unconscious or unfit for a declaration the recordings will be stopped at that time putting the signature of the person who is recording with an amount date and time. The declaration is recorded again when the doctor declares the patient fit. If the dying person is unable to speak but able to make sign in answer to questions this can be recorded and cause of death regarded as verbal statement. It can also be as to the recorded in the form of questions and answers. If at any stage a particular point is not clear he can be asked to make it clear. At the end the dec- laration is read before the patient who puts his signature or thumb impression. It is also signed Toxicology actually seen the facts. This principle is known as “first hand knowledge rule”. For e.g. ‘A’ told in the Court that he had seen ‘X’ and ‘Y’ fighting in a garden on a particular date and time. Expert Witness Section 45 IEA deals with opinion of experts. They Common are not only medical experts, but also experts in Expert other subjects. It reads as when a Court has to form an opinion upon a point of foreign law or of science or art or identity the handwritings and fingerprints that are relevant facts. Such persons because of their professional training and experience are capable of drawing a conclusion on the facts observed by them or by others and are called experts. They also give expert opinion on hypothetical questions as well as on matters of common knowledge. The answer should be given by an expert witness after understanding the questions clearly and whenever possible in a guarded manner, the examples like the findings are consistent with the alleged history, does not mean that another mechanism cannot produce the same findings. Conclusions must be based on the facts because it is more important than the opinions. Hostile Witness Hostile witness is one who purposefully makes statements contrary to the fact or has some interest or motive for concealing truth. Section 191 IPC states that whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by a law to make a declaration upon any subject, makes any state- ment which is false, and which he either knows or believes to be false or does not belong to be true, is said to give false evidence. The common as well as expert witnesses can be hostile. Long Questions 1. What is inquest? Discuss different types of inquest prevalent in India and which is the best. 2. Discuss the various types of documentary evidences in medicolegal practices. 3. Discuss the various types of evidences. Irritant Poisons 15 5. Magistrate’s inquest 6. Subpoena. 7. Difference between police and magistrate inquest 9. Expert witness 10. Hostile witness CHOICE QUESTIONS 10. In dying deposition which of the following is fulfilled? A. Statement is to be recorded by Magistrate B. Oath is to be taken by the patient C. Cross examination to be done D. All of the above 11. Which of the following document is accepted in the court of law as evidence without being examined the person who has written it? A. Dying declaration B. Expert opinion expressed in a treatise C. Chemical examiners report D. All of the above 12. Conduct money is paid to witness, if he/she comes from a distance of more than: A. 2 kms B. 3 kms C. 5 kms D. Any distance 13. Dying declaration can be recorded by: A. Magistrate B. Police C. Medical officer D. All of the above 14. Before recording the dying declaration, the attending medical officer has to: A. Certify the mental condition B. Make a medicolegal report C. Treat the patient D. All of the above 15. Leading questions are allowed during Examination-in-chief, if the witness: A. Has no previous criminal record B. A hostile one C. Comes to court for 2nd time D. Has a criminal record 16. Summon is a document of the court: A. Compelling attendance of a witness B. Guarantee money of witness C. Providing legal immunity to witness D. That can be attended at will 8 D 9 C 10 D 11 D and Pathology 3 from amongst themselves by all the persons enrolled on such register who possess a qualification included in the 1st, 2nd or part II of the third schedule. 4. Seven members to be elected from amongst themselves by persons enrolled on any state medical register and possess a qualification included in part 1 of the third schedule. 5. Eight members to be nominated by the central government. The president and vice president are elected from amongst the members for a term of 5 years or till their membership expires, This is a provision that they can get re-elected or re-nominated. The council meets at least once in a year and all acts of the council are decided by a majority of the members present and voting. An elected or nominated member is deemed to have vacated his seat if he is absent without excuse, for 3 consecutive ordinary meetings of the council or if he is no longer a member of the medical faculty or he/she ceases to be enrolled in the medical register. The council constitutes from amongst its members an executive committee (of not less than seven members) and any other committeesm required. The president and the vice-president of a union the council are also the president and the vice- president of the executive committee respectively. It also appoints a registrar who acts as a secretary and if necessary as a treasurer to look be elected after the day to day business of the council. senate Functions of The Medical Council of India The main functions of the Medical Council of India are as follows: Toxicology official gazette notification may amend the part II and includes such qualifications. 4. Appeal against disciplinary action: When name of any doctor is removed from the state medical register, he may appeal to Central Government after exhaustion of all the official remedies under the state medical council. He should apply within 30 days from the date of decisions alongwith all the relevant documents. The Central Government in consultation with the Medical Council of India will decide which is binding on state medical council. 5. Warning notice: The Medical Council prescribes standard of professional conduct and code of ethics for the doctors. If the medical practitioner fails to abide the code he can be issued warning notices in respect to professional misconduct. Universities CODE OF MEDICAL ETHICS The oldest one is the Hippocratic Oath which is being followed till date. It reads as follows: I swear by Apollo the physician, by Aesculapius, Hygiea and panacea and I take to witness all the Gods, all the Goddesses to keep according to my ability and judgment the following oath: “To consider dear to me as my parents him who taught me this art; to live in common with him and if necessary to share my goods with him; to look upon his children as my own brothers, to teach them this art if they so desire without fee or written promise; to impart to my sons and the sons of the master who taught me and the disciples who have enrolled themselves and have agreed to the rules of the profession, but to these alone, the precepts and the instruction. I will prescribe regimen for the good of my patients according to my ability and my judgment and never do harm to anyone. To please no one will I prescribe a deadly drug, nor give advice which may cause his death. Nor, will I give a woman a pessary to procure abortion. But I will preserve the purity of my life and my art. I will not cut for stone, even for patients in whom the disease is manifested I will leave this operation to be performed by practitioners (specialists in this art). In every house where I come I will enter only for Irritant Poisons 19 professional misconduct. If the doctor’s act falls in any of the enlisted acts, he is liable for disciplinary action. The conduct of the doctor is judged by the professional omen of good repute and competence. The M.C.I. is also empowered to take action against an act done by the doctor even if it is not included in the list. The use of Red Cross Emblem by the doctors is prohibited. The Medical as well as paramedical staffs use it, which is wrong. They can be penalized under section 13 of Geneva Convention Act 1960 up to Rs.500/- fine and forfeiture of the property on which it has been used. Section 12 of the above act 1960 prohibits its use and allied emblem without the approval of Central Govt. Warning Notice The Medical Practitioner is required to observe certain rules of conduct contained in the code of Medical Ethics prescribed by the M.C.I. and the State Medical Councils. If the doctor fails to observe these, that will be taken as professional misconduct and action can be taken against the doctor. The list of conduct is not a complete one. The doctor can be penalised for a conduct even if not included in the list depending on its nature. He may be issued warning notice or the name may be erased from the register. the following are the few examples for which action can be taken. 1. Adultery: If a doctor has voluntary sexual intercourse with a married woman other than his spouse. 2. Advertisement. A physician should not exhibit publicly the scale of fees except in the waiting hall of the patients or in his chamber. The doctor can publish in the newspapers or journals regarding his change of address maximum two times. Even he can publish regarding his timings, interruption or restarting of the practice, in the press after a long interval. He can write to the lay press in his name on matters of public interest and even can deliver public lectures or can give talks on the radio. He should not use an unusually large signboard and to write on it anything other than his Toxicology are binding on all doctors in India. Its salient points are as follows: 1. The doctors are free to choose their patients but should not arbitrarily refuse treatment and must not refuse to help in an emergency. 2. Doctor should not refer their patients for consultation to other doctors or clinical investigations unless absolutely necessary. 3. Once a case is taken, the doctor must not abandon or neglect the patient without proper reason and appropriate notice to the patient and his family. 4. Doctors must display their fees and other charges clearly and should write clear prescriptions for dispensing medications. 5. Doctors must not provide any endorsement for medications and equipment with or without any financial gains. 6. Drugs should be prescribed with their generic name as far as possible. 7. No sex determination tests should be done with the intention to destroy the female fetus if present. 8. The patients must not be subjected for trials except under ICMR guidelines. 9. Doctors should keep records for a minimum period of 3 years for in patients and must produce the documents if asked for within 72 hours. 10. The doctors should undergo 30 hours of CME training in every five years for renewal of registration. CONSENT It is defined as voluntary agreement, compliance, and permission. Section 13 of Indian Contract Act defines that “two or more persons are said to consent when they agree upon the same thing in the same sense.” According to Section 14 of Indian Contract Act, Consent is said to be free, when it is not caused by (i) coercion, as defined in section 15, or (ii) undue influence, as defined in section 16 or (iii) fraud, as defined in section 17, or (iv) misrepresentation, as defined in section 18, (v) mistake subject to the provisions of sections 20, 21, 22. 2002. They Irritant Poisons 21 dure and the percentage of chances of success and failure. The patient should be told in a simple language so that he can understand and give consent in the presence of third party. After that any untoward reaction or harm to the patient cannot lead to charge the doctor for negligence. The exceptions to the informed consent are: 1. Emergency—in an emergency it is assumed that the patient gives consent. So the consent is implied in these cases. 2. Incompetence—the incompetent patients may be treated without permission. In general incompetent patients are unable to make rational decisions. In this category the patients of unconscious, delirious, senile or grossly psychotic in nature are included. When patients by the are in intensive care unit they are treated without informed consent. So it is best either in an implied in emergency or incompetence situation. with 3. Therapeutic privilege—in this category the his arm for physician can be excused of taking informed consent when disclosure of information could have a detrimental effect on the patient. and uncom- 4. Waiver—the last exception allows a patient to willing- waive his right to informed consent. In these everything, cases the patient may delegate the right to the the physician or to a third party to make the deci- sion for him. If one of the exceptions to the informed consent applies, the physician should document the exception under these circumstances how disclo- sure and consent should occur but in emergency time may not permit disclosure and consent. If patient is incompetent or therapeutic waiver is used, a surrogate should give informed consent for the patient. Informed refusal:The doctor has a duty to inform the patient that he has a right to refuse the treatment/investigations to be done. If after listening to the doctor, he thinks so, he can refuse to consent. Rules of Consent Consent is necessary in every medical exami- nation. Ordinarily, formal consent to medical Toxicology any evidences in his favour. Under section 87 IPC a person above 18 years of age can give consent to suffer any harm if the act is not intended and not known to cause death or grievous hurt. Under section 88 IPC a person can give consent to suffer any harm if the act is not intended and not known to cause death or grievous hurt if the act is done in good faith and for the benefit of the person. Under section 89 IPC for a child under 12 years of age or a person of unsound mind cannot give consent to suffer any harm for an act which may cause grievous hurt or death even in good faith, but the consent has to obtained from the guardian of the child or person. Under section 90 IPC - consent given by an insane person or given under fear of injury, death etc. or due to misunderstanding of a fact is invalid. Under section 92 IPC any harm caused to a person in good faith even without the person’s consent is not an offence if the circumstances were such that it was impossible to obtain consent of the person or his lawful guardian in time for the thing to be done for the benefit of the person, but the act should not extend to intentional causing hurt other than for preventing death or hurt or curing of grievous disease or infirmity. threater Professional Secrecy In the Hippocratic Oath there is an affirmation by the doctor that whatever in connection with my professional practice or not in connection with my professional practice or not in connection with what I see or hear in the life of men, which ought not be spoken of abroad, I will not divulge, as reckoning that all such be kept secret’. Even the places where oath is not formally given in qualifying ceremony, there is an implied acceptance of its spirit and intentions as the ideal standard of his professional behaviour. Therefore,

Textbook of Forensic Medicine and Toxicology PDF

Document Details

Tags

Related

Summary

Full Transcript

Upgrade to continue