Forensic Medicine and Toxicology Exam Prep Manual PDF

Exam Preparatory Manual for Undergraduates Forensic Medicine and Toxicology (Theory and Practical) Exam Preparatory Manual for Undergraduates Forensic Medicine and Toxicology (Theory and Practical) (In accordance with syllabus prescribed by MCI)...

Exam Preparatory Manual for Undergraduates Forensic Medicine and Toxicology (Theory and Practical) Exam Preparatory Manual for Undergraduates Forensic Medicine and Toxicology (Theory and Practical) (In accordance with syllabus prescribed by MCI) V Dekal MD PGDMLE PhD (Criminology) Associate Professor Saveetha Medical College Thandalam, Chennai, Tamil Nadu, India The Health Sciences Publisher New Delhi | London | Philadelphia | Panama  Jaypee Brothers Medical Publishers (P) Ltd Headquarters Jaypee Brothers Medical Publishers (P) Ltd 4838/24, Ansari Road, Daryaganj New Delhi 110 002, India Phone: +91-11-43574357 Fax: +91-11-43574314 Email: [email protected] Overseas Offices J.P. Medical Ltd Jaypee-Highlights Medical Publishers Inc Jaypee Medical Inc 83 Victoria Street, London City of Knowledge, Bld. 237, Clayton The Bourse SW1H 0HW (UK) Panama City, Panama 111 South Independence Mall East Phone: +44 20 3170 8910 Phone: +1 507-301-0496 Suite 835, Philadelphia, PA 19106, USA Fax: +44 (0)20 3008 6180 Fax: +1 507-301-0499 Phone: +1 267-519-9789 Email: [email protected] Email: [email protected] Email: [email protected] Jaypee Brothers Medical Publishers (P) Ltd Jaypee Brothers Medical Publishers (P) Ltd 17/1-B Babar Road, Block-B, Shaymali Bhotahity, Kathmandu, Nepal Mohammadpur, Dhaka-1207 Phone +977-9741283608 Bangladesh Email: [email protected] Mobile: +08801912003485 Email: [email protected] Website: www.jaypeebrothers.com Website: www.jaypeedigital.com © 2015, Jaypee Brothers Medical Publishers The views and opinions expressed in this book are solely those of the original contributor(s)/author(s) and do not necessarily represent those of editor(s) of the book. All rights reserved. No part of this publication may be reproduced, stored or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission in writing of the publishers. All brand names and product names used in this book are trade names, service marks, trademarks or registered trademarks of their respective owners. The publisher is not associated with any product or vendor mentioned in this book. Medical knowledge and practice change constantly. This book is designed to provide accurate, authoritative information about the subject matter in question. However, readers are advised to check the most current information available on procedures included and check information from the manufacturer of each product to be administered, to verify the recommended dose, formula, method and duration of administration, adverse effects and contraindications. 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Inquiries for bulk sales may be solicited at: [email protected] Exam Preparatory Manual for Undergraduates: Forensic Medicine and Toxicology (Theory and Practical) First Edition: 2015 ISBN 978-93-5152-620-9 Printed at  Preface Writing a book on forensic medicine is my lifetime ambition. The basic aim of taking up this subject is to bring a reasonable standard of uniform medicolegal services throughout the country, a good ethical practice of medicine and also to bring life to the outdated term “Medical Etiquette”. Working on this project of writing a book was a slow and studious process, and I started doing it very soon after I completed my postgraduation. I also wanted to be sure that my book should not be just an addition in the series of books in forensic medicine. I wanted to come out with a book which is student friendly, short, precise, covers all the aspects of the subject, theory and practical and to help the students to face the examinations with confidence and also learn the basic skills, thus able to apply them throughout their lifetime. All my dreams came true when M/s Jaypee Brothers Medical Publishers (P) Ltd joined hands with me and gave me the opportunity to write this excellent student-friendly textbook. Only doctors who possess the basic degree of MBBS are called medical experts in the court of law, so allopathic physicians apart from the basic duty of curing patients of their ailments have yet another important responsibility, which is to fight for social justice by enlightening the court by the truth based on strong scientific proof. To be frank, only by the knowledge of this subject of forensic medicine and, of course, pathology, emergency medicine and surgery, we, the allopathic physicians, stand distinct in the huge crowd of doctors, but only a very few of us recognize this fact. Even though plenty of forensic medicine experts are available in the country, yet nearly 90% of the medicolegal workload of the country is still being carried out by the doctors who do not possess a postgraduate degree in forensic medicine. Ultimately, they have to depend upon the knowledge gained by them in the 2nd year of their MBBS course. This book is entitled Exam Preparatory Manual for Undergraduates: Forensic Medicine and Toxicology (Theory and Practical) and is prepared in accordance with the syllabus prescribed by the Medical Council of India (MCI). All the chapters in this book are carefully written for easy understanding. All the chapters are presented in question-and-answer format, to help the students understand how the questions would be asked in examinations and what they are expected to write as answer for each question. Even though the book is in a question-and-answer format, it carries all the points which a standard textbook is expected to contain. Questions are in the form of topics/headings and answers in the form of explanations; thus, students can study only this book, which would be more than enough for the undergraduate medical students and they would be rewarded back with excellent marks in their examinations. For the welfare of the students, the important set of practical exercises are also discussed; thus, the students can also prepare well for their practical examinations. This book will serve all the needs of the students for theory, practical and viva-voce examinations. Apart from the medical students, this book will also be useful for the investigation team, judiciary and other branches of students who need to have knowledge of forensic medicine such as the students of criminology, criminal justice and forensic science. V Dekal  Acknowledgments Apart from the senior professors, who enlightened me with knowledge, I would like to acknowledge people who are close to me and supported me at every stage of preparation of this book and made it into reality. Dr Ananda K, Professor and Head, Kempegowda Institute of Medical Sciences, Bengaluru, Karnataka, India. Dr K Thangaraj, Professor and Head, SRM Medical College, Chennai, Tamil Nadu, India. Dr P Sampath Kumar, Professor and Head, Sri Ramachandra Medical College, Chennai, Tamil Nadu, India. Dr B Santha Kumar, Dean, Government Madurai Medical College, Madurai (Formerly Director of Forensic Medicine, Tamil Nadu, India). Dr N Srinivasa Raghuavan, Professor and Head, Saveetha Medical College, Chennai, Tamil Nadu, India. Dr Karpagam Dekal, Medical Officer, Corporation of Chennai, Tamil Nadu, India. Dr Jagannatha SR, Associate Professor, Kempegowda Institute of Medical Sciences, Bengaluru, Karnataka, India. Dr J Magendran, Assistant Professor, Saveetha Medical College, Chennai, Tamil Nadu, India.  Contents Section I: Medical Jurisprudence 1 Chapter 1 Introduction and Scope of Forensic Medicine 3 Chapter 2 The Indian Legal System 5 Chapter 3 Medical Ethics and the Law 13 Chapter 4 Medical Negligence 20 Section II: Personal Identity 27 Chapter 5 Identification 29 Section III: Forensic Pathology 47 Chapter 6 Medicolegal Autopsy 49 Chapter 7 Thanatology (Study of Death) 56 Chapter 8 Postmortem Changes 62 Chapter 9 Violent Asphyxial Deaths 74 Chapter 10 Death due to Starvation 91 Section IV: Forensic Traumatology 93 Chapter 11 Injuries and their Medicolegal Considerations 95 Chapter 12 Regional Injuries 112 Chapter 13 Forensic Ballistics 120 Chapter 14 Thermal Injuries 127 Chapter 15 Electrical and Lightning Injuries 135 Section V: Sexual Jurisprudence 139 Chapter 16 Virginity 141 Chapter 17 Impotence, Sterility and Artificial Insemination 145 Chapter 18 Pregnancy and Delivery 149 Chapter 19 Abortion and MTP Act 1971 154 Chapter 20 Infant Deaths 159 Chapter 21 Sexual Offences and Paraphilias 165 Section VI: Forensic Psychiatry 171 Chapter 22 Psychiatry and Mental Health Act 1987 173 x Exam Preparatory Manual for Undergraduates: Forensic Medicine and Toxicology Section VII: Medical Toxicology 183 Chapter 23 General Considerations 185 Chapter 24 Agricultural Poisons 192 Chapter 25 Corrosive Poisons 195 Chapter 26 Metallic and Inorganic Irritants 201 Chapter 27 Organic Irritant Poisons 212 Chapter 28 Neurotoxic Poisons 222 Chapter 29 Cardiac Poisons 237 Chapter 30 Asphyxiants 240 Chapter 31 Miscellaneous Poisons 245 Section VIII: Practical 249 Exercise 1 Age Estimation by Dentition 251 Exercise 2 Age Estimation by Radiology 254 Exercise 3 Skeletal Remains 260 Exercise 4 Wound Certificate 266 Exercise 5 Drunkenness Certificate 269 Exercise 6 Sexual Offence Certification—Victim 271 Exercise 7 Examination of Accused of Sexual Offence 274 Exercise 8 Fetal Examination 275 Exercise 9 Leave and Fitness Certificate 276 Exercise 10 Death Certificate 277 Exercise 11 Postmortem Certificate 279 Exercise 12 Spotters 282 Index 285 Section I: Medical Jurisprudence Chapter 1 Introduction and Scope of Forensic   Medicine Chapter 2 The Indian Legal System Chapter 3 Medical Ethics and the Law Chapter 4 Medical Negligence  chapter 1 Introduction and Scope of Forensic Medicine Keywords: Forensic medicine, medical jurisprudence, medical ethics, medical etiquette. 1. What is forensic medicine? serious professional misconduct, etc. (in Forensic medicine or legal medicine is also short, it deals with the legal aspects of prac- called as state medicine. tice of medicine). Forensic medicine is a branch of medical Medical jurisprudence deals with the laws science which deals with the application which govern the practice of medicine, of medical knowledge to help or aid in the hence any violation of the said law relating to administration of justice. medical practice will attract penal action and The word “forensic” originates from the punishment against the doctor as per the Greek which means “open forum” — a public provisions of the Indian Penal Code. debating place (court of law). It is a branch of medical science which 3. Define medical ethics and etiquette. Bridges between the law and medicine. In Medical ethics deal with the moral short, the subject deals with the medical principle which should guide the members aspects of the law. of the medical profession in their dealings Forensic medicine can be broadly divided into: with each other, their patients and the state. Clinical forensic medicine: It deals with the Medical etiquette deals with the conven- examination of the living individuals, such as tional laws of courtesy observed between the cases of sexual offences, wound certificate, members of the medical profession. age estimation, etc. Forensic pathology: It deals with interpreta- 4. What is the scope of forensic medicine? tion of autopsy findings in the medicolegal Forensic medicine deals almost entirely with investigation of death (forensic thanatology crimes against human beings. In present — Study of death). days, almost all the offences against the hu- man body require medical opinion in order 2. Define medical jurisprudence. to deliver an impeccable justice in the court Juris: Law; Prudentia: Knowledge. of law. The primary interest is to provide the Medical jurisprudence deals with the legal source of information about medical science responsibilities of the physician with to confine the needs of the law. reference to those arising from physician- Forensic medicine is mostly an exercise of patient relationship, such as medical negli- common sense combined with the applica- gence, consent, rights and duties of doctors, tion of knowledge and experience acquired in other branches of medicine. 4 Section 1: Medical Jurisprudence Forensic medicine involves: In some cases, as in cases of sudden (i) Observation of facts, death, the authorities will have to depend (ii) Collection of evidence, completely on the medical witness in (iii) Interpretation of the scene of crime and establishing the cause of death. (iv) Reconstruction of the events based on medicolegal examination. 5. What are the circumstances a doctor may be In all cases of crime involving human called to the court? body, e.g. homicide, suicide, assault, sexual A doctor may be called to the court to testify: offences, traffic accidents, poisoning, etc., (i) As an ordinary witness who saw the help of the medical officer is sought by something happen. the investigative agency. In all such cases, (ii) As a medical practitioner who treated the the doctor will be required to appear in patient. the court as an expert witness and depose (iii) As an expert witness to give opinion on evidence. matters of science.  chapter 2 The Indian Legal System Keywords: Inquest, magistrate inquest, coroner’s court, evidence, witness, medical witness, criminal courts in india, dying declaration, compos mentis, dying deposition, summons, conduct- money, perjury, hostile witness, leading question, court procedure. INTRODUCTION circumstances of any unnatural, sudden and suspicious death. The legal system in India is governed by: Types of inquest Indian Penal Code (IPC) formed in the year 1860: There are basically four types of inquest It deals with substantial criminal laws of prevalent throughout the world and they are: India. It defines various offences and pre- (i) Police inquest scribes punishment for all offences. (ii) Magistrate inquest Criminal Procedure Code (CrPC) formed in the (iii) Coroner’s inquest year 1973: (iv) Medical examiner system of inquest. It stipulates the duties of the police/enquiry In India, there are only two types of inquest officer, in their dealings with the offender (police inquest and magistrate inquest). during interrogation and in the investigation Section 174 CrPC deals with police inquest of death. and section 176 CrPC deals with magistrate Indian Evidence Act (IEA) formed in 1872: inquest. It deals with laws of evidence and applies to Police inquest any court whether civil or criminal. This is the commonest type of inquest Case laws: conducted in India. Legal principles derived from judicial de- The officer in-charge of a police station, not cisions. It is different from statutory laws below the rank of sub-inspector (called the enacted by the legislature; but accepted as investigation officer of that particular case), precedence in similar types of cases in future. on receipt of information of a death, informs the executive magistrate and proceeds to the place where the dead body is found. 1. Define inquest? What are the various types Conducts the inquest in the presence of two  of inquest? Describe the procedure of police reliable witnesses, who should be respectable inquest? What is magistrate inquest and persons of the society (panchas). He comes to when magistrate inquest is conducted. a conclusion of the apparent cause of death, Inquest: (In: In; Quasitus: To seek) as judged by him and prepares a report called Inquest is defined as preliminary legal the inquest report (panchnama). inquiry into the cause, manner and 6 Section 1: Medical Jurisprudence Table 2.1 Difference between Coroner’s court and Magistrate court Coroner’s court Magistrate court Court of inquiry Court of trial Can summon a witness, issue warrant and impose fine Do Court of inquiry and hence cannot award any Court of trial and hence punishment is awarded after punishment trial If death is purely due to disease (natural This type of inquest is done in United death), he may handover the body to the Kingdom and some states of the USA. relatives of the deceased to bury the body This type of inquest was practiced in many according to their religious customs. If death parts of India during the British period; is unnatural or if he suspects some foul play it is no more in practice in India and was or the cause of death is not known, he sends lastly withdrawn from Bombay in the year the body to the nearest authorized autopsy 1999. Refer Table 2.1 for difference between center for postmortem examination, along coroner’s court and magistrate court. with a copy of the inquest report. Medical examiner system of inquest Magistrate inquest This is the type of inquest prevalent in most It is the inquest conducted by the executive states of the USA and also in many advanced magistrate appointed by the state government. countries. A medical examiner (forensic The Executive magistrates are of people of the expert) is appointed to perform the functions revenue department not below the rank of of coroner. Tahsildar, District Revenue Officer (DRO), On receipt of information of a death, the Revenue Divisional Officer (RDO), PA to medical examiner visits the scene of crime collector or the district collector can all act as and conducts the inquest. Thus, he is able executive magistrates. The executive magistrate to gather first-hand evidence which is in- conducts inquest in the following situations: terpreted in proper perspective owing to his (i) Dowry deaths knowledge of medical science and he him- (ii) Death in police custody self conducts the autopsy on the body and (iii) Death during police interrogation hence, better corroboration of evidences and (iv) Death due to police firing thus better administration of justice. (v) Death in a psychiatric hospital/mental This is said to be the most superior type of asylum inquest. (vi) Exhumation (vii) In any case of death, the magistrate may/ 2.  What are the various criminal courts of can conduct an inquest instead of or in India? What are the powers of various courts? addition to the police inquest (Section “Refer Fig. 2.1, and Tables 2.2 and 2.3.” 176 CrPC). Juvenile justice board Coroner’s inquest The aim is to provide care, protection, devel- Coroner is a person qualified either in opment and rehabilitation of the delinquent medicine or law or both, appointed by the juveniles. Govt. The Juvenile Justice (Care and Protection of He conducts the inquest in all unnatural and Children) Act, 2000. suspicious deaths. As per the act a ‘juvenile’ means a person He is empowered to summon any person for who has not completed 18 year of age. enquiry. Juvenile in conflict with the law’ means: A Coroner’s court is a court of enquiry, but he juvenile who is alleged to have committed an is not empowered to conduct a trial. offence.  The Indian Legal System 7 A juvenile cannot be retained in a place where 3. What is a cognizable offence? there are no provisions for rehabilitation. An offence means any act or omission pun- Juvenile courts are preceded by 1st class ishable by the law. women magistrates. Cognizable offence is an offence for which the police officer can arrest an individual without a warrant from the magistrate, e.g. rape, murder, dacoity, etc. In these cases, the arrested person is sent to the doctor by the police for examination. In a non-cognizable offence, the individual may go direct to the doctor, or file an affida- vit in court and then the magistrate sends the person to the doctor for examination. (Section 41 CrPC) 4. What is an evidence? What are the types of  evidences? Evidence means and includes all the state- ments which the court permits or requires to be made before it by the witnesses, in rela- tion to the matter of fact under inquiry. For the evidence to be accepted by the courts, it must be properly identified as to what it is, where it was found and how it is related to Fig. 2.1 Criminal courts in India the crime. Table 2.2 Criminal courts of India Court Location Powers Supreme court New Delhi Highest judicial tribunal of the country. Can pass any sentence Usually considers only appeals from the high court High court State capital Highest judicial tribunal of the state. Can pass any sentence Usually considers only appeals from the lower courts Session court (district District head Highest judicial tribunal of the district sessions court) quarters Can pass any sentence but death sentence has to be confirmed by the high court Table 2.3 Magistrate courts Court Location Powers Chief metropolitan magistrate Metropolitan areas Can pass a sentence of imprisonment up Chief judicial magistrate District (not being a Metropolitan area) to 7 years: Fine without limit Metropolitan magistrate Metropolitan area subdivision Can pass a sentence of imprisonment Judicial magistrate of first class of a district upto 3 years: Fine up to Rs. 5,000/- Judicial magistrate of second Taluk level Can pass a sentence of imprisonment class upto 1 year: Fine up to Rs. 1,000/- 8 Section 1: Medical Jurisprudence Chain of custody given more preference in the court of law. It is a method to verify the actual possession Oral evidence is the best type of evidence of an object from the time it was first iden- because it is subjected to cross-examination. tified, until it is offered as evidence in the Exceptions to oral evidence court. Dying declaration Types of evidences Expert opinion expressed in a treatise (text- i. Direct evidence books, journals, peer reviews) The witness testifies directly of his own Evidence of a doctor recorded in a lower court knowledge as to the facts in dispute; only Evidence of a witness given in a previous those witnesses who have first-hand knowl- judicial proceedings, etc. edge can give direct evidence in the court of Documentary evidence law—First-hand knowledge rule. Document means any matter expressed by ii. Circumstantial evidence: means of letters, figures or marks. (presumptive evidence) Documentary evidence includes all the The circumstances tend to prove the ultimate documents produced for the inspection of fact in issue; it is the evidence derived from the court. circumstances as distinguished from direct Examples and positive proof. Medical leave certificate, medicolegal reports iii. Substantial evidence like: Age certificate, sexual offences certificate, The evidence which a reasonable prudent dying declaration, postmortem certificate, etc. man will accept as adequate for arriving at Medical evidence the decision in that case. When any case is presented to a doctor for iv. Corroborative evidence examination, he gives his opinion in the The evidence that concurs with another. form of a certificate which includes the find- Generally, the eye witness is considered as ings observed by him and his opinion based positive evidence and the medical witness on the observations; hence, all the evidences or the expert witness is only corroborative of any expert are given in the form of a docu- in nature. ment. The investigation team investigates the case v. Hearsay evidence on the basis of his opinion and in all situa- Any statement made by a person other than tions, the doctor must come to the court, and the actual witness who has the firsthand testify under oath, cross-examined by the knowledge of the fact or crime. It is the defense, for his evidence to be accepted as a evidence of a third person, what was told proof in the court of law. to him by someone else. Such an evidence cannot be cross-examined as they are not Dying declaration: (Section 32 IEA) actual witness. It is the statement oral or written made by a person who is about to die, as a result of some unlawful act. The statement should 5. What are the ways in which evidence can be relate to the cause of his death, or to the presented in the court? circumstances which have resulted in his  What is documentary evidence? Give present condition. examples of documentary evidence. Describe: Dying declaration; compos mentis; Dying declarations are admissible in the dying deposition. court, and may provide useful information Evidence could be oral or documentary. to the court and may help to obtain justice. In case of death of such a person, the dying Oral evidence declaration is as such accepted as evidence In all cases, oral-evidence must be direct; it in the court without any cross-examination. must be the evidence of a person who saw, It is believed that any individual who is about heard or perceived. Hence oral evidence is to die will speak only the truth, but in the  The Indian Legal System 9 present days, due to the change in the equal value as that of a trial conducted in the attitude of the human beings, these types court. This is not practiced in India. of declarations have lost their values in the courts of law. 6. Who is a witness? What are the types of  If the individual survives after making such witnesses? Who is an expert witness? declaration, they are accepted as evidences, Witness: Sections 118 to 134 of IEA deals with but only as corroborative evidence; and the witnesses individual has to come to the court, repro- Witnesses are individuals who testify under duce those statements under oath, get cross- oath what he knows about the issue under examined by the defense before they are dispute. All persons are competent to testify accepted as concrete evidences by the court. unless they are prevented from doing so. Duty of a doctor while recording dying declaration Hence, there is no age limit to be a witness, Upon admission in to the hospital, in such but the individual who gives evidence should cases, the doctor should immediately inform have enough mental maturity to understand the judicial magistrate about the condition of the court questions and answer them logical- the patient for the purpose of recording the ly, or else it becomes easy for the defense to dying declaration. disqualify such witnesses. Hence, it is always Dying declarations are usually recorded by preferable that the age of the witness is more the judicial magistrates; in the absence of the than 12 years. magistrate or when there could be a relative People suffering from insanity and those under time delay for him to arrive then, it can be re- the influence of any drug or intoxication are corded by the police officer or any individual prevented to be witnesses in the court of law. who is present by the side. Even the doctor Types of witnesses himself can record such declarations when no one else is present or when there is no Common witness time to wait. Any individual who was present nearby or Compos mentis comes to know about any crime and has Before recording the statement and also seen, heard or perceived any information throughout the recording till the end, the regarding it, can be a common witness; and doctor should certify that the person is con- it is the social responsibility of every citizen scious and his mental faculties are normal. to inform the police regarding any crime and The doctor who certifies compos mentis can- also come forward to the court to give evi- not record the declaration even under emer- dence regarding what he knows about that gency. Some other doctor can record it, if it is particular incident or crime. so much urgent. The common witness is not permitted to If the individual dies or becomes uncon- volunteer any statement in the court of law scious before completing his declaration, and is bound to answer only what is being then the process of recording is stopped asked to him. at that stage and signed by the doctor and First hand knowledge rule by the person who was recording it and The common witness must possess the first handed over to the court in a sealed cover. hand information regarding the matter No additions or deletions or any alterations under dispute. should be made in the statement. Expert witness Dying deposition Expert witness is a person who has been This is superior to dying declaration and re- trained or skilled in technical or scientific corded only by the magistrate; while record- subject, and is capable of drawing infer- ing the deposition, the accused and his law- ences, opinions and conclusions from the yer are allowed to be present. The statements facts observed by him or noticed by others; made by the victim are then and there cross- Example: Doctor, firearm expert, fingerprint examined by the defense, and hence carries expert, chemical examiner, etc. 10 Section 1: Medical Jurisprudence An expert witness is expected to help the If both the summonses are from criminal court to arrive at the near truth, by his special court, then priority is to be given to the high- knowledge and skill. er court; if both the courts are of equal status, He is called to the court to clarify certain then he has to attend the court from which doubts, on that particular specialty and he received the summons first and inform hence should restrict himself in clearing the other court, that he may be summoned the doubts logically and scientifically; his later. answers must be direct wherever possible as he is there to help the court with his spe- 8. What is conduct money? cial knowledge. The expert witness is paid money to meet his As far as possible he should not volunteer expenses for coming to the court from his any statement; at the same time, never hesi- residence and back; it is usually paid along tate to volunteer a statement, if he feels that with the summons or in the court after giving there is a chance of miscarriage of justice evidence. If the doctor feels it insufficient, he due to failure of the court to elicit a particular can ask the court to get it enhanced; howev- issue. er, no such money is paid in criminal cases as it is considered as a responsibility of the 7. Write short notes on summons. expert toward the state. Summons: Is also known as subpoena. (Sub: Under; Poena: Penalty); Sections 61 to 69 9. What is perjury? Who is a hostile witness? of CrPC deal with summons.  What are leading questions and their Summons is a document compelling the at- importance in the trial? tendance of a witness in a court of law under Perjury penalty, on a particular day, time and place, Section 191 IPC defines perjury as “willfully for the purpose of giving evidence. giving and/or fabricating false evidence un- The witness is also required to bring with him der the oath.” Perjury is breaking the oath any document under his control, which he is and the witness is liable to be prosecuted bound by the law to produce as evidence. under section 193 IPC (imprisonment which Summons is issued to the witness by the may extend upto 7 years). court and usually served through the police. Hostile witness If the witness is a government servant, sum- After making a particular statement in the mons is sent to the head of the office where court, the witness contradicts his own state- he is working and served through him to the ment, and hence is supposed to have some witness. interest or motive to conceal part of the truth Usually, three copies are served and the wit- or gives completely false evidence, and then ness signs in one copy and sends it to the he is declared hostile by the court. court through the police who serves the sum- When the witness is declared hostile, then he mons, as an acknowledgement that he has can be cross-examined by the side by which received. he has been called, i.e. leading questions are The person who has received a summons is permitted even in examination-in-chief. bound to attend the court at the prescribed time and date without fail. Leading question If he is unable to obey the summons due to The question which suggests an answer or unavoidable and acceptable reasons, he has caries a hidden answer inside is a leading to intimate the court well in advance, about question. his inability to attend the court. Example: In case of an injury: If a person receives two summonses from – Direct question: Which weapon will different courts on the same day; he has to cause the injury? give priority to criminal courts over the civil – Leading question: Can the injury be court. caused by a single-edged knife?  The Indian Legal System 11 Importance of Leading questions: Re-cross examination Leading questions are allowed only in When a re-examination is allowed, then a re- cross-examination, since the aim of the cross-examination is also permitted to cross prosecution is to prove the crime, where- the new points introduced if any by the pros- as the aim of the defense is to weaken the ecution. witnesses. Court Questions Leading questions are not allowed in the At the end of the recording, the court ques- examination-in-chief; but allowed when tions are asked by the presiding officer the witness turns hostile as per section 154 (judge) to clarify his mind regarding the of IEA. whole presentation of evidence. Conduct of a doctor in the court 10. What is the procedure of trial in the court? Attend the court in time, neatly dressed and Conduct of a doctor in the witness box: always with the white coat. In any criminal trial, it is the duty of the Respect the court, approximate both hands prosecution to prove the crime beyond any together near the chest and bend forward as reasonable doubt. a token of respect before entering the court After the witness enters the witness box, and also after entering the witness box. they have to take oath before recording the Go to the court well-prepared and do not for- evidence. get to take all the necessary documents relat- Oath taking ing to that particular case. “I swear in the name of God that the evidence Be frank and clear on the subject matter; I shall give to the court shall be the truth, the speak audibly and clearly. whole truth and nothing but the truth”. Use simple language and avoid technical After the witness takes the oath, recording of terms as far as possible. evidence commences. Give reasonable time in between for the stenographer to type your statement. i. Examination-in chief Give direct answers whereever possible. Done by the side who has called him, usually If you don’t know the answer to a particular by prosecution. question, be frank to admit it. The witness is allowed to reproduce all the Never volunteer a statement; but, do not facts concerned with the case, which are hesitate to volunteer a statement if you feel known to him. Then the prosecution is al- that there is a danger of justice being miscar- lowed to put forth any questions necessary ried, owing to the court’s failure to elicit an to prove the crime. They are permitted to ask important issue. only direct questions. In medical science, it is always difficult to ii. Cross-examination separate fact from opinion; hence, the doc- It is done by the defense counsel to elicit tor attending the court as a scientific witness, points in his favor. The defense raises doubts has to express his opinion arising out of the and it is the duty of the prosecution to clar- facts observed by him. ify those doubts logically. The defense is al- In cases of medical negligence lowed to ask leading questions. It is hard to criticize a colleague, but never Usually after the cross-examination, the pre- conceal what you know to be true. Since, the siding officer puts forth his questions to the court or the complainant does not possess witness. But if the defense has introduced any knowledge on medical science; whereas, any new issues, then a re-examination is per- the medical man has enough medical knowl- mitted. edge to defend himself; the very purpose of Re-examination our evidence is to help the court in deciding By the prosecution to get more clarity, on the what’s right or wrong based on medical opin- said matter and to rectify deviations, if any. ion and hence never hide anything which (Not in all cases). you saw or know. 12 Section 1: Medical Jurisprudence There is no perfect witness, but efforts must Due to the bitter experiences in the past, the be made by everyone to be a perfect witness. doctor may feel hesitant to go to the court Our evidence should in no way be inferior to and many a times there may not be even a anyone else and thus a reasonable standard single question raised by the defense; but do has to be there, which can be achieved only not care for those things in your mind, de- by strong knowledge on medical science. velop a positive thought inside you; feel it is Many a times, you may have to wait for a long our duty as a citizen to attend the court and time for your evidence to be recorded, but give evidence whenever we are summoned, never lose patience. Wait for your turn and and be proud that since we have this special present the case clearly and nicely, thus win knowledge of medical science, we are being the respect of the court and I am sure that called by the court to assist it with our special when you go to the same court next time, the knowledge. judge will make every effort to record your A medical witness by his honest, unbiased evidence first. and straightforward opinion can win the confidence of both the prosecution and as well as the defense.  chapter 3 Medical Ethics and the Law Keywords: Medical ethics, etiquette, Hippocratic Oath, Indian medical council, state medical council, professional misconduct, dichotomy, covering, penal erasure, red cross emblem, profes- sional secrecy, privileged communication, euthanasia, malingering. INTRODUCTION lated to the competence, knowledge and skill of a doctor. Medical ethics deals with the moral prin- Ethical violation is professional misconduct ciples which should guide the members of and the state medical council takes action. the medical profession in their dealings with The first basic code of medical ethics is each other, their patients and toward the universally known as “Hippocratic Oath” state. (around 500 BC). Hippocrates was the Father Medical etiquette deals with the conven- of Western Medicine lived in Greece. tional laws of courtesy observed between the At the time of registration of a medical grad- members of the medical profession. uate has to sign a declaration which is the The word ethics is derived from Greek term modern version of Hippocratic Oath and is “ethikos” which stands for rules of conduct called as the Declaration of Geneva (1948). that govern the natural deposition in human The Declaration of Geneva (1948): Modern beings. Version of Hippocratic Oath Ethics is self-imposed code of conduct as- I solemnly pledge to consecrate my life to the sumed voluntarily by the medical profession. service of humanity. Code of ethics retains the moral guidelines I will give my teachers the respect and grati- and cannot run contrary to the society and tude which is their due. the ethical codes must always be in conform- I will practice my profession with conscience ity with the law of the land. and dignity. Code of ethics is different from the law, The health of my patients will be my first con- since non-adherence to the prevailing ethi- sideration. cal standards may not be considered as an I will respect the secrets which are confined offence by the law and hence any doctor, in me, even after the patient dies. who violates the ethical codes, cannot be I will maintain by all means and power, the punished by the law rather will attract an ac- honor and the noble traditions of the medi- tion for the infamous conduct by the medical cal profession. council. I will consider my colleagues as my brothers. Ethics reflects the conduct, character and at- I will not permit considerations of religion, titude of a doctor; whereas, negligence is re- nationality, race, party politics or social 14 Section 1: Medical Jurisprudence standings to intervene between my duty and have registered with any state medical coun- my patients. cil. The IMC has no direct role toward this I will maintain at most respect for human life function of maintenance of register. from the time of conception. ii. Medical education: It regulates the standards Even under threat I will not use my medical of undergraduate and postgraduate medical knowledge contrary to the laws of humanity. education. This is one of the most important I make these promises solemnly, freely and functions of the Indian Medical Council. The upon my honor. IMC maintains a uniform standard of medi- cal education throughout the country. There 1. What is the constitution and functions of are many medical colleges and universities Indian medical council? in India and the teaching pattern and exam Indian Medical Council was formed under the pattern varies from university to university, Indian Medical Council Act 1956. but the syllabus and number of years of study Constitution of the indian medical council and period of hours of training at different One member from each state, nominated by levels and different subjects are maintained the central government in consultation with at a uniform standard by the Medical Coun- their respective state government. cil of India. It prescribes minimum standard One member from each university, to be of education for undergraduate, postgradu- elected from amongst the members of medi- ate and super specialty courses. cal faculty, by members of its senate. iii. Recognition of medical degrees: All the One member from each state medical coun- medical degrees awarded inside as well as cil, selected from amongst the registered outside India are regulated and are to be medical practitioners of the state. recognized by the council, if the individual Seven members are to be elected from is practicing medicine in India. The medical amongst themselves, enrolled in any SMC. council maintains three schedules (Table 3.1). Eight members nominated by the central iv. Appellate tribunal: Appeals against any government. disciplinary action taken by the SMC. The president and vice-president are elected v. Disciplinary control: The council prescribes from amongst the members of the council. minimum standards of professional con- Executive committee constituted from duct, ethics and etiquette amongst its mem- amongst the members, comprising of the bers. The council periodically issues warning president, vice-president and 7 to 10 other notice (warning notice is a list of offences members. which are considered as infamous conduct). The council appoints a registrar and secretary for its day to day functions. The term of office will be 5 years from the 2. What is the constitution and functions of time of assuming charge. State Medical Council? State medical council Functions of the indian medical council State Medical Council consists of members i. Maintenance of medical register: Maintains elected by the registered medical practi- a register containing the names, address and tioners of the respective state and members qualification of medical practitioners who nominated by the state government. Table 3.1 Schedule of medical degrees First Schedule Second Schedule Third Schedule Part A Third Schedule Part B Medical degrees offered Medical degrees offered Medical degrees conferred Standard medical by different Universities in by different universities by Indian universities, qualifications of foreign India, which are recognized outside India, which are which are not mentioned countries, which are not by the council recognized by the council in the 1st schedule mentioned in 2nd schedule  Medical Ethics and the Law 15 The president and the vice-president are vii. Dichotomy: “Fee splitting” getting com-  elected amongst themselves; a registrar is mission/monetary benefits for referring nominated to carry out the day to day works a patient to another doctor, investigation, of the council. prescribing drugs of a particular compa- Functions of SMC ny or sending prescription to a particular retail shop, etc. 1. Maintenance of medical register: This is one of the most important functions of any state viii. Covering: Assisting/associating with un- medical council. qualified people to carry out the work of Every medical graduate, upon passing his a doctor. final year exams, has to get his name tem- ix. Violation of any of the provisions of the porarily registered in the SMC to pursue acts which govern the medical profes- his internship; upon completion of one sion which is in force from time to time. year internship he has to get permanently x. Issuing false certificates: Issuing false registered himself in the respective SMC certificate in any regard is an infamous and a permanent registration number is conduct. allotted to him. It is in common practice to issue medi- He needs to specify the registration number cal certificates to people working in wherever necessary. A doctor cannot start government and private sectors; issuing his medical practice before he gets himself false medical certificates without valid permanently registered in any SMC. grounds amounts to professional mis- 2. Disciplinary action and control: Disciplinary conduct. action is purely the function of the SMC. En- – As far as possible issue medical certif- quiry and action for any infamous conduct icate only when you have treated the are carried out by the State Medical Council patient. only. – At any one time do not issue sickness certificate for more than 15 days. 3. Issue warning notice periodically: Warning – When you have treated the person as notice is a list of offences which comprises outpatient, specify in the certificate of infamous conduct; it is not a complete list itself that you have treated him as and not intended to be complete also. outpatient only. – Do not issue certificates to unknown 3. What is infamous conduct? What are the acts persons; be sure that the individual  which amount to professional misconduct? comes in person and signs in front Write short notes on dichotomy; covering. of you in the prescribed place in the Definition leave certificate. Infamous conduct is any act done by a reg- – Death certificate: Efforts should be istered medical practioner which is consid- made to examine the dead body phys- ered disgraceful and dishonorable by his ically before issuing the certificate; do professional colleagues of good repute. not attempt to issue the certificate by There are various acts of a doctor labeled as going through the old treatment re- infamous conduct and are listed in the warn- cords, statement from the relatives or ing notice. Some of those acts which amount hearsay information; also issue death to professional misconduct are: certificate to the individuals for whom i. Abortion you were the only treating doctor in ii. Adultery the recent past. iii. Alcoholism xi. Notification of birth, death, infectious dis- iv. Addiction eases, etc. in interest of the community and v. Advertising public, the doctor is bound to notify these vi. Association to the concerned authorities. Failure to no- 16 Section 1: Medical Jurisprudence tify such diseases amounts to professional To be privileged, the communication must misconduct. be made only to a person having interest in xii. Withholding information about notifi- it, or in reference of which he has a duty. able diseases to public authorities; It is The doctor should first persuade the patient the duty of the doctor toward the com- to obtain his consent before notifying the munity/state to inform the authorities proper authority. The doctrine of privileged about any notifiable diseases he comes communication fails, if the information is across. revealed to more than one person. xiii. Refusal to treatment on religious or so- Examples cial grounds. i. Infectious diseases: xiv. Disclosure of professional secrecy: Never A patient suffering from communicable dis- disclose the secrets of your patients to ease like gastroenteritis, enteric fever, etc. anyone, even to the close relatives with- working in a common eating place like hotel; out the consent of the patient. In these situations, the patient should be per- suaded to stay away from the job till he be- 4. What is professional secrecy; when it can be comes non-infectious; if the patient refuses, revealed? Explain privileged communica- then the doctor can inform the employer tion with suitable examples. about illness of the patient. The doctor in the course of the treatment of A teacher or children’s nurse suffering from his patients will come to know certain in- tuberculosis or other easily contactable infec- formation about the patient. The doctor is tious diseases: The patient is advised that she is obliged to keep all the information provided unfit for the job till you become non-infectious; by the patient about his condition or any in- if the patient does not obey and continues to do formation he comes to know concerning the the same work; now the doctor can inform the patient as secret; and he should not divulge employer (Parents of the child) about the dis- the information about the patient to any- ease condition of the patient and not to employ one without the consent of the patient. He her till she becomes non-infectious. should not divulge such information to any- ii. A person suffering from venereal disease one even after the death of the patient. (syphilis or gonorrhea) is about to marry. First However, there exists no professional secrecy the patient is advised to postpone the mar- when a person subjects himself voluntar- riage or use condoms to prevent the spread ily for examination as in cases of insurance of the disease to his partner, till he becomes or examination for issuing driving license non-infectious; if he refuses to obey the and also in medicolegal cases. The doctor is advice then the doctor can make a privileged bound to reveal all information regarding the communication to the concerned person. patient to the concerned authorities in such iii. Servant and employees: circumstances. The consent for divulging the An engine driver, bus driver or ship’s employ- information is implied as he subjects himself ee suffering from epilepsy, high blood pres- voluntarily for such examination. Also, it be- sure, drug addiction or color blindness. The comes the duty as a physician to reveal all the doctor should advice them to quit the job, findings of the examination in such circum- if the patient fails to obey; then the doctor stances. can inform the concerned authorities in the Breach of professional secrecy is infamous interest of the community. conduct except, when it is required by the law to be revealed. The only exception is 5. What is procedure of initiation of charge of privileged communication. infamous conduct against a doctor? What Privileged communication are the punishments that could be given? It is a statement made bonafide upon any What is professional death sentence? subject matter by a doctor to the concerned Infamous conduct is an ethical violation and authorities, due to his duty to protect the in- hence no legal action can be taken against a terests of the community or of the state. doctor for such conduct, unless his act falls  Medical Ethics and the Law 17 into any of the punishable provisions of the 5 years. Upon completion of the suspen- penal code. sion, his name will be re-instated. Only the patient or the legal relatives of the (iii) Permanent erasure: (Penal erasure): It is patient can initiate an action for the infa- otherwise called as “professional death mous conduct committed by the doctor in sentence.” The name of the doctor may be the State Medical Council. permanently removed from the medical On receipt of the information of the complaint register. His degree is withdrawn and is against a doctor, the executive committee not allowed to practice medicine profes- analyses such a complaint and if it finds there sion anymore. is prima facie evidence, then the SMC sends This type of permanent erasure may also intimation to the concerned doctor, asking for be done when the doctor dies, or if he explanation regarding the alleged complaint. is convicted by the court of law for any The reply of the doctor if found satisfacto- serious offences committed by him like ry, then the petition of the complainant is rape, murder, etc. dismissed at that stage itself; if the council is not satisfied with the explanation given 6. What is warning and what is a warning notice?  by the doctor and feels that the doctor is Warning and warning notice guilty of committing an infamous conduct, Most students often confuse with the terms then the SMC forms an executive commit- warning and warning notice. tee, from amongst its members consisting of 5, 7, or 9 members depending as the situ- Warning ation warrants. Warning is the minimum punishment for a The executive committee summons the doc- doctor who is proved to have committed an tor for a personal enquiry, where the doctor infamous conduct. That is, giving a warn- is asked to be present before the committee ing to the doctor with an advice not to get on a particular date and time with the rele- involved in any such misconduct in future vant documents to prove his innocence. and if he indulges himself in such repeated The doctor may appear in person or can also misconducts it would attract a more severe send a representative, with authorization to punishment like temporary erasure. represent him for the enquiry. The complain- Warning notice ant is also summoned to be present during Warning notice is not related to any pun- the phase of the enquiry. ishment; it is a list of offences which are The complaint is first read and the doctor is considered as professional misconduct and given chance to defend himself against the any doctor committing any of those acts list- complaint with necessary relevant docu- ed in warning notice will attract a charge of ments if any; after hearing the statement of infamous conduct and subsequent enquiry both the parties, the executive committee and appropriate punishment by the state takes the action after following the due pro- medical council will be undertaken. cess of the law. Depending on the outcomen The list is not complete and not intended to the doctor is either found guilty or innocent; be complete; any new type of infamous acts if he is found guilty, there are three types of are done by a doctor in future, then those punishments meted out to the doctor. professional misconducts would be added in (i) Warning: For simple and minor issues, the subsequent warning notice. where the doctor is warned not to repeat such acts, and a severe punishment will 7. Mention a few important acts which govern  be awarded if he continues to involve the medical profession? himself in such a type of infamous acts. An act is a body of law, which lays down (ii) Temporary erasure: The name of the doc- certain guidelines for carrying out some tor may be temporarily removed from activity and also prescribes punishment if the medical register, for a variable pe- that activity is not carried out in accord- riod which may extend from 2 months to ance with the law. 18 Section 1: Medical Jurisprudence The doctor practicing medicine should be (ii) Non-voluntary: The patient is not in a aware of the important acts which are in position to give consent, e.g. comatose force. Some of those acts which are related to patients. medical profession are: (iii) Involuntary (compulsory): Decision by – The Indian Medical Councils Act 1956. the society to terminate the life of an – The Drugs and Cosmetics Act 1940; the individual; it is done against the will and Drugs and Cosmetics Rules 1945. consent of the individual. It is decided by – The Drugs and Magic Remedies (objec- the relatives / health authorities depend- tionable advertisement) Act 1954. ing on the severity of the case. Example: – Narcotic Drugs and Psychotropic An individual having a deadly dangerous Substances (NDPS) Act 1985. disease with high-risk of spreading the – Birth and Death Registration Act 1969. disease to the society. This is a very rare – Medical Termination of Pregnancy (MTP) situation, but these types of new diseases Act 1971. keep on changing from time to time. – Pre-conception and Pre-natal diagnostic Classification of euthanasia techniques (Prohibition of sex selection) Active: Inflicting death by an act of commis- Act 1994. sion, e.g. injecting lethal dose of morphine. – The Mental Health Act 1987. Passive: By an act of omission, e.g. withdraw- – The Consumer Protection Act 1986. ing life saving supports in comatose patient. – The Transplantation of Human Organs Pediatric: To the seriously sick or deformed Act 1994 (THOA). infants, e.g. severe congenital anomalies. Geriatric: Seriously sick, bed-ridden aged 8.  What is the status of using Red Cross individuals. emblem by doctors? Battlefield: Severely wounded or handi- Red cross emblem capped individual in the war field, to end Section 12 of the Geneva Convention Act, his sufferings and also to prevent him from prohibits the use of the Red Cross and allied getting caught and tortured by the enemy. emblems, for any purpose without approval by Legal status of euthanasia in India the Government of India. Euthanasia has been alternatively accepted Section 13 lays down penalty of ` 500 for and condemned in India. unauthorized use of such emblems and also Euthanasia is not legalized in India and forfeits the goods upon which the emblem is hence any doctor practices or helps in eu- used. thanasia will be charged of causing murder /manslaughter or abatement of suicide, 9.  What is euthanasia? What is active and respectively. passive euthanasia? What is the legal status Article 21 of the basic Constitution of India of euthanasia in India? gives right to live but not right to die. The word “euthanasia” was derived from the As per the supreme court view: Passive volun- Greek word which means ‘good death’. tary euthanasia can be visualized as a funda- Euthanasia is mercy killing, assisted suicide mental right protected under Article 21 of the or aid in dying. constitution, which assures right to privacy; Definition it gives the patient a right to refuse life-saving Euthanasia refers to infliction of a painless medical treatment. form of death on an individual suffering The right to personal liberty includes the from severe, incurable diseases, resulting in freedom to die with dignity. intractable pain and suffering to the patient. Active euthanasia though viewed as a crime, Various forms of euthanasia: no convictions have been made so far against (i) Voluntary: The patient gives consent to any individual for commission of such end his sufferings. offence in our country, since most of the  Medical Ethics and the Law 19 cases are not reported or undisclosed and The individual may do some act of commis- concealed. sion to sham a disease; examples: No doctor in any situation can encourage (i) He may injure the nasopharynx with such act, even on humanitarian grounds. sharp instrument, swallow the blood and Even though it may be the only better regurgitate in front of the doctor to mimic option for the patient, it is against the law hematemesis. and it should not be practiced. (ii) Excessive intake of digitalis may simulate a heart disease. 10. What is malingering? Name some diseases (iii) Eating large amount of carrot, produce  which are commonly feigned and how will carotinemia and may simulate jaundice you diagnose such cases? (iv) Chronic ingestion of coumarin will induce hemorrhagic diathesis. Malingering: (Shamming). Malingering means planned feigning or Diagnosis pretending a disease for the sake of gain. In most cases detection is easy, but in some cases it may be difficult. Reasons History is taken from the patient, relatives By soldiers or policemen to evade duties. and friends, and any inconsistencies in the Prisoners to avoid hardwork. description of the symptoms are noted. Businessmen to avoid a business contract. Usually the signs and symptoms will not Workmen to claim compensation. confirm (fix into) any known disease. Criminals to avoid legal responsibilities. Malingering can be diagnosed by keep- Diseases that are usually feigned are: ing the patient under observation and (i) Ophthalmia; (ii) Dyspepsia; (iii) Intestinal watching him without his knowledge. (abdominal) colic; (iv) Sciatica (back pain); Rarely an anesthetic may be given to detect (v) Epilepsy; (vi) Insanity and (vii) Artificial malingering. bruise.  chapter 4 Medical Negligence Keywords: Consent, informed consent, rules of consent, loco parentis, professional negligence, Section 304-A IPC, res ipsa loquitur, calculated risk doctrine, novus actus interveniens, vicarious liability, therapeutic misadventure, corporate negligence, products liability, contributory negli- gence, CPA, Professional indemnity policy, Workmen’s Compensation Act. INTRODUCTION To be legally valid, the consent given must be intelligent and informed. Negligence The doctor examining or treating a patient Diligence means due care and skill; without the consent amounts to the offence Negligence is the opposite of diligence. of assault. In negligence, the degree of skill and care Types of consent exhibited by a doctor while performing the There are two types of consent: (i) Implied procedure was below the prescribed standard. consent, and (ii) Expressed consent. Negligence is defined as “omission to do Implied consent: The behavior or the act something which a reasonable man would of patient or the individual, itself indicates do or doing something which a prudent that he has consented for the act; you can reasonable man would not do.” take it for granted that he/she has given the consent. This is applicable only for minor procedure of medical practice like general 1. Define consent? physical examination, checking the pulse, What are the types of consent? blood pressure or giving injection, etc. What is informed consent? Expressed consent: The doctor has to ask for  What is the role of consent in medical the consent and obtain it before any proce- practice? dure or treatment. Expressed consent is of Definition two types: (i) Oral consent, and (ii) Written Consent is defined as “voluntary agreement, consent. compliance, permission or accepting for the – Oral consent: It is of equal value as that act proposed by another” and is valid only of written consent, but when a dispute for that specified act or purpose. arises between the two parties then it Indian Contracts Act, Section 13 states that becomes difficult for the doctor to prove “two or more persons are said to consent that he has obtained a proper consent. when they agree upon the same thing in the Hence, oral consent holds good only for same sense.” simple procedures like per abdominal  Medical Negligence 21 examination, giving IV fluids or testing Informed refusal: When the doctor feels that the blood, etc. a particular type of treatment will be the – Written consent: It is always better to best for the patient and if the patient does go for written consent whenever the not accept for the proposed treatment plan, procedure is a slightly complicated or there are many chances that it could result in prolonged procedure like a suturing for some complications at later time; in spite of an injury, an incision and drainage for an explaining all these in detail, the patient still abscess, etc. refuses for the doctor’s proposed treatment plan, then the doctor has to bring all in writ- Informed written consent (The cornerstone of ing and get it signed by the patient; this is medical practice): called as “informed refusal”. This is the most superior form of consent in medical practice. Informed consent is called as Consent in medicolegal cases the “doctrine of full disclosure.” The law be- Informed written consent should be lieves that the patient alone is the best person to obtained in all medicolegal examinations. care for himself and he has the right to choose It should be informed to the individual that, what is good or bad for him and what is needed the opinion you are going to arrive after the to be done on him to get cured of his disease or examination, will be issued in the form of the problem he is suffering from. a certificate; which may go in favor of him or against him in the court of law; but, if he Informed written consent in medical practice refuses to give consent for examination then A doctor after examining the patient must it will definitely (100%) go against him in the explain to the patient and/or the relatives: court. (i) What’s the disease or problem he is suffering from? (ii) What is his proposed treatment plan for 2. What are the rules of obtaining consent? that disease or condition? What is loco-parentis? (iii) What are the other standard alternate Rules of obtaining consent treatments /procedures available for that Consent is a mandatory for every medical particular disease or condition? examination and treatment. (iv) What are the advantages and disadvan- Oral consent should be obtained in the tages of his proposed treatment; and why presence of disinterested third party. he prefers to follow that particular treat- Written consent is not necessary in all ment option? situations, but when a dispute arises it (v) What are the advantages and disadvan- becomes difficult for the doctor to prove that tages of the alternative line of treatment? he obtained a valid consent. Hence, any pro- The information provided to the patient cedure beyond routine physical examination should be in writing in simple language such as blood transfusion, collection of blood, and in the language in which the patient is etc. expressed consent, preferably written familiar. Then allow the patient to choose consent is necessary. what type of treatment he needs and to be In major procedures such as surgery, written done for him. informed consent is necessary and is man- In important situations like surgery, it is datory. always better to explain all these to the pa- The doctor should explain the objective of tient and to the close relatives of the patient his examination and also inform the patient and get it signed by the patient as well as the that he has the right to refuse consent. legal guardian. Since, if suppose the patient When the person subjects himself volun- dies, the relatives are the people who are tarily for examination, such as insurance going to file the case if any and hence they or for issuing driving license, no consent is should be convinced that the doctor did necessary and also there exists no professional everything which is good for the patient and secrecy. death was unavoidable. 22 Section 1: Medical Jurisprudence In criminal cases, the victim cannot be ex- (Example: Vaccination, where the govern- amined without informed consent; but the ment gives the consent) accused of a crime can be examined using In treatment or surgery, which is expected reasonable amount of force without consent, to involve his sexual capacity or fertility, the under the request of police not below the rank consent of both the husband and the wife are of sub-inspector (Section 53 CrPC). necessary. As per section 54 CrPC, an accused An adult individual cannot be detained person can request for medical examination inside the hospital without his consent, he to prove his innocence. has to be discharged under ‘Against Medical In cases of drunkenness or under the influ- Advice’. ence of any drug, the individual may be un- If any person has consented or given willing- conscious or not in a state to understand and ness for donation of any organ or body after give consent. In such situations, the doctor his death; the consent of the legal heirs is can examine the patient without consent if re- mandatory to harvest the organs, after death quested by the investigating officer, withhold of the individual (no individual has any right the results of examination and hand it over to over his body after his death). the authorities after the individual becomes fit Loco Parentis: (Local parent) to give consent. But if he refuses to handover In an emergency involving children when the the report at this stage, it has to be obliged; but parents or guardian is not available, the per- not in criminal cases (section 53 CrPC: If he is son in-charge can give consent (e.g. teacher accused of a crime), the doctor can handover in a school). the results without the consent. A prisoner can be treated forcefully in the Professional Negligence interest of the society. Same way an individ- (Medical Malpractice) ual starving himself to death can be treated forcefully without consent, since no individ- 3. Define professional negligence. What are the ual has the right to die. components to be established in a case of Consent given for committing a crime or ille- negligence against a doctor? gal act such as criminal abortion is not valid. Definition An individual under 18 years cannot give Professional negligence is defined as “omis- consent to suffer any harm (Section 87 IPC). sion to do something which a reasonable Section 88 IPC competent man would do or doing some- An individual above 18 years can give valid thing which a prudent reasonable man consent to suffer any harm which may result would not do, either of these results in direct from an act, done in good faith, not known or damage or death of the patient.” intended to cause death. Medical negligence arises when the standard An individual less than 12 years of age cannot of care exhibited by the doctor while doing a give consent to suffer any harm, done in good procedure or treatment was below the pre- faith and for his benefit. The consent has to be scribed standard. obtained from the parents or guardian, if they Negligence results either from the doctor’s refuse to give consent, the doctor cannot lack of knowledge and skill or failure to ex- treat the patient even to save the life (Section cise reasonable degree of care and skills 89 IPC). while performing the procedure/act. Consent given by an individual under fear or When a patient dies during the treatment intoxication or by an insane is invalid. due to alleged medical negligence, the doc-