E M Laws in India

Dr.L.R.MurmuMBBS, MS ( surgery ) [ AIIMS ]LLB, LLM [ University of Delhi ]

Additional Professor Surgery,Casualty & Emergency Services,

All-India Institute of Medical Sciences,New Delhi

Federal System of Government

• Part XI of the Constitution ( Article 245 to 263 ) regulates the legislative and administrative relations between the Union and the States.

• Article 245 empowers the Parliament to make laws for the whole country whereas the State legislatures have the power to legislate for their respective States.

• Article 246 divides the subject areas of legislation based on three lists i.e, Union List, State List and Concurrent List, which are given in the VII Schedule of the Constitution.

• Parliament has the “residual power” of legislation.

Sources of LawPrimary Source

• Laws passed by the Parliament or the State Legislative

• Ordinances passed by the President and the Governor

• Subordinate legislation : Rules and regulations made by the executive through the power delegated to them by the Acts.

Source of LawSecondary Sources

• Judgements of the Supreme Court, High Court and Tribunals (The ratio decedendi is a binding precedent)

• Judicial legislation

• Judgements of Privy Council ( London )

• Judgement of Foreign Courts

• International Treaty

Law and Medicine

• Medical Jurisprudence : It deals with legal aspects of medical practice.

• Forensic Medicine : It deals with medical aspects of law.

Medico-legal Case

It is a case of injury or ailment etc, where attending

doctor after taking history and doing clinical examination of the patient thinks that some investigations by law enforcing agencies are

essential so as to fix responsibility regarding the said injury or ailment etc,. according to law.

Who is to label the case medico-legal

• This decision is taken by the casualty doctor (emergency physician ) attending the case.

• Patients’ or their relatives’ request to label a case medico-legal or not, shall have not effect on the doctor’s decision.

• Indoor treating doctors can also make a case medico-legal if they think that it should have been made but it was not made

What cases are labeled medico-legal

• Cases of Trauma• Cases of Burns• Cases of Electrocution• Cases of Poisoning• Cases of Industrial accidents• Cases of sexual offences• Cases requiring age estimation

What cases are labeled Medico-legal

• Cases of criminal abortion

• Cases of animal or snake bite

• Cases of Coma where cause could not be ascertained

• Cases of starvation including “Hunger strike”

• Unclaimed newly born

What cases are labeledMedico-legal

• Cases of hanging, strangulation, drowning and suffocation etc,.

• Cases brought by police or sent by court for medical examination.

• Cases brought dead and where death certification due to disease or natural cause is not possible being not apparent.

• Cases that are result of medical malpraxis

Reporting of Medico-legal Case

• 39 Cr.P.C ( Code of Criminal Procedure ) : The attending doctor is duty bound to inform the police about the Case

• Section 176 IPC ( Indian Penal Code ) : Provides for prosecution of the doctor for the failure to inform

• Police informed again when patient dies or is discharged from hospital

Consent for treatment

• Section 13 of Indian Contract Act 1872 defined the consent as “ when two or more person agree upon the same thing in the same sense they are said to consent”.

• Consent for treatment can be given by a person who is conscious, mentally sound and is of above 18 years age.

• A conscious adult has the right to refuse treatment.

ConsentWhere may not be obtained

• Medical Emergencies• Notifiable diseases• Immigrants• New admission to prisons• Court orders for examination & treatment• Under section 53 (1) of Cr.P.C., a person can be

examined on request of the police by use of force• Members of Armed Forces

Act done in good faith for benefit of a person without consent

Section 92 Indian Penal Code

Nothing is an offence by reason of any harm which it maycause to a person for whose benefit it is done in good faith, even without that person’s consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent, and has no guardian or other person in lawful charge ofhim from whom it is possible to obtain consent in time for the thing to be done with benefit.

Definition of Injury and Hurt

• Section - 44 of the Indian Penal Code (IPC) : Injury : denotes any harm whatsoever illegally caused to any person in body, mind, reputation or property.

• Section - 319 of the Indian Penal Code (IPC) : Hurt : whosoever causes bodily pain, disease or infirmity to any person is said to cause hurt.

Grievous HurtSection 320 of IPC

• Emasculation.

• Permanent privation of the sight of either eye.

• Permanent privation of the sight of either ear.

• Privation of any member or joint.

• Destruction or permanent impairing of the powers of any member or joint.

• Permanent disfiguration of the head or face

• Fracture or dislocation of a bone or tooth

• Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain or unable to follow his ordinary pursuits

Medico-legal Evidence

Evidence on the person of the patient need to be preserved under sealed cover and handed over to the police

• Blood stained clothes

• Foreign bodies e.g bullet etc,.

• Gastric lavage

Preparation of medico-legal reports

• Reports must be prepared in duplicate on proper pro-forma giving all necessary details : identity of the patient, full description of injuries, results of tests, diagnosis and

treatment. • Avoid abbreviations, over writings. Correction if any,

should be initialed with date and time.

• Reports must submitted to the authorities promptly.

• Medico-legal documents should be stored under safe custody for 10 years

Patient’s statement to Police

• Certificate of medical fitness regarding patient’s ability to give statement to police must bear time and date

• Certificate of unfit for statement must give reasons as to why patient is not in a position to give statement

MLC Reports : Subsequent opinion

• Ask the police officer to submit application in duplicate requesting clarification or opinion regarding any point in the report.

• The clarification/opinion be given on the reverse of the applications.

• One copy of application given to the police, and second attached to carbon copy of the original report prepared earlier.

Medical Certificate Defined

“A medical certificate can be defined as a documentary evidence vouching for thetruth and correctness of a fact as ascertained by the medical professional issuing such a document at that moment of time”.

Essential features of Medical certificate

• Issued on the letterhead of the doctor or the pro-forma of the organization.

• Mention date, time and place of issue.

• Issue only for a legitimate purpose.

• State only the facts within the personal knowledge.

• Limited to the actual period of care.

Essential features ofmedical certificate

• True in every detail and not misleading.

• Frame according to the actual requirement.

• Make it in duplicate.

• Get patient’s signature, or left thumb impression or two identification marks on the certificate.

• Hand over to the patient himself/herself.

Consequences of Issuing False Certificate

• Name may be struck off from the medical register for professional misconduct.

• Liable to be held responsible for deceit, breach of contract etc,.

• Under section 197 of IPC punished in the same manner as if he gave false evidence.

• If he makes, alters or effects any addition in a certificate with intend to deceive. Liable to be punished for forgery under section 463 of IPC.

Criminal Negligence

• When the doctor has shown gross ignorance, gross carelessness or gross neglect for life and safety of the patient.

• He is liable to be prosecuted in a criminal court for causing injury or death by a rash and negligent act not amounting to culpable homicide under section 304-A of Cr.P.C.

Criminal NegligenceExamples

• Injecting anaesthetic in fatal dosage• Operation on wrong patient• Performing criminal abortion• Amputation of wrong limb• Leaving instrument inside the body• Leaving tourniquets too long resulting in gangrene• Transfusing wrong blood

• Too tight plaster causing gangrene or paralysis

Dying DeclarationSection 32 of The Indian Evidence Act

A dying declaration or statement made by the person on the verge of

death as to the cause of his death or as to any of the circumstances

of the transaction which resulted in his death, such a statement, oral

or in writing, made by the deceased to the witness is a relevant fact

and is admissible in evidence.

Provided it has been made by the deceased while in a fit mental condition.

Dying Declaration : Recording

• Treating doctor has the duty to get the dying declaration recorded in such cases of trauma where there is likely hood of death.

• Doctor should intimate the police for calling the Magistrate to record the declaration.

• If there is no time the attending doctor should record the dying declaration.

• Mental fitness of the victim must be entered in the record of the case mentioning date and time.

Consumer Protection Act, 1986 Indian Medical Association vs V.P.Shantha and others

Supreme court of India ruled who all are covered under the Act and held as follows :

• Service rendered for fee.• Service rendered for free to some, and for fee to

others.• Service rendered are paid by insurance company.• The employer bears the expenses for service

rendered to an employee.

Supreme Court Ruling, 1989Pt Parmanand Katara vs The Union of India

• Private medical practitioners were duty bound to render first aid treatment to all patients who approached them.

• The Supreme Court in this case conferred a right on the patients - the right to emergency medical care.

Constitution of India Article 21

No person shall be deprived of his life or personal

liberty except according to procedure established by

law

Supreme Court Ruling, 1989Pt Parmanand Katara vs The Union of India

1. Whenever any medico-legal case attends the hospital, the medical officer on duty should inform the duty constable, name, age, sex of the patient and place and time of occurrence of the incident, and should start the required treatment of the patient. It will be the duty of the constable on duty to inform the concerned police station or higher police functionaries for further action. Full medical report should be prepared and given to the police, as soon as examination and treatment of the patient is over. The treatment of patient would not wait for the arrival the police or completing the legal formalities

Supreme Court Ruling, 1989Pt Parmanand Katara vs The Union of India

2. Zonalisation as has been worked out for the hospitals to deal with medico-legal case will only apply to those cases brought by the police. The medico-legal cases coming to hospital on their own (even if the incident has occurred in the zone of other hospital) will not be denied the treatment by the hospital where the case reports, nor the case will be referred to other hospital because the incident has occurred in the area, which belongs to the zone of any other hospital. Same police formalities as given in para-1 above

will be followed in these cases.

Supreme Court Ruling, 1989Pt Parmanand Katara vs The Union of India

3. All government hospitals, medical institutes should be asked to provide the immediate medical aid to all the cases irrespective of the fact whether they are medico legal cases or otherwise. The practice of certain Government institution to refuse even the primary medical aid to the patient and referring them to other hospitals simply because they are medico legal cases is not desirable. However after providing the primary medical aid to the patient, patient can be referred to other hospital if the expertise facilities required for the treatment are not

available in the institution.

Supreme Court Ruling, 1989Pt Parmanand Katara vs The Union of India

• When a man is in a miserable state hanging between life and death reaches the medical practitioner either in a hospital, public authority or a private person or a medical professional doing only practice he is always called upon to rush to help such an injured person and to do all that is within power to save life. It is a duty coupled with human instinct, which needs no decision nor any code of ethics nor any rule of law.

Supreme Court Ruling, 1989Pt Parmanand Katara vs The Union of India

13 (MCI Code). The patient must not be neglected: A physician is free to choose whom he will serve. He should, however, respond any request for his assistance in an emergency or whenever temperate public opinion expects the services. Once having undertaken a case, the physician should not neglect the patient, nor should he withdraw from the case without giving notice to patients, his relative or his responsible friends sufficiently long in advance of his withdrawal to allow them to secure another medical

attendant. No provisionally or fully registered practitioner shall willfully commits an act of Negligence that may deprive his patient or patients from necessary medical care.

Supreme Court Ruling, 1989Pt Parmanand Katara vs The Union of India

• Not summon a doctor to give evidence unless the evidence is necessary

• Pay due respect

• Not made to wait and waste time

• Avoid harassment by way of request for adjournment etc,.

Article 141 Law declared by Supreme Court to be binding on

all courtsThe law declared by the Supreme

Court shall be binding on all courts within the territory of India

Consolidated Omnibus Budget Reconciliation Act 1986 ( COBRA)

• US Congress enacted this to prevent the practice of dumping of patient by private hospitals

• The hospital must perform a medical screening examination of all prospective patients regardless of their ability to pay; and

•If the hospital must determines that a patient suffers from an emergency condition, the law requires the hospital to stabilize the condition, and the hospital can not transfer/discharge an un-stabilized patient unless the transfer or discharge is appropriate as defined by the Act

The Emergency Medical Treatment and Active Labor Act 1986

The Act brought legal terms and responsibilities to Inter-hospital transfer.

The transferring facility does not have the capability tostabilize the patient and the benefits outweigh the risk of transfer.

The patient requests for transfer.

EMTALA requirements for legal transfer

• The transferring hospital provides medical treatment within its capacity that minimizes the risks to the patient ( and unborn child ).

• The receiving hospital (a) has available space and qualified personnel for the treatment; and (b) has agreed to accept transfer and to provide appropriate treatment

• The transferring hospital sends all medical records (history, examination findings, results of diagnostic tests, provisional diagnosis, and treatment provided ) that are available at that time. The informed written consent or certification as required by EMTALA.

• The transfer is effected through qualified personnel and transportation equipment to provide life support measures during the transfer.

Supreme Court Ruling, 1996 Paschim Banga Khet Mazdoor Samity v. State of W.B.

“Failure on the part of a government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21.”(Para 10)

Guidelines dealing with emergency cases

• i) In the hospital, the Medical Officer in the emergency/Casualty services should admit a patient whose condition is morbid/serious in consultation with the specialist concerned on duty in the emergency department.

• ii) In case the vacant beds are not available in the concerned Department to accommodate such patient, the patient has to be given all necessary attention.

Guidelines dealing with emergency cases

• iii) Subsequently, the Medical Officer will make necessary arrangement to get the patient transferred to another hospital in the Ambulance. The position as to whether there is vacant bed in the concerned department has to be ascertained before transferring the patient. The patient will be accompanied by the resident Medical Officer in the Ambulance.

• iv) In no case the patient will be left unattended for want of vacant beds in the emergency/Casualty Department.

• v) The services of CATS should be utilised to the extent possible in Delhi.

Guidelines dealing with emergency cases

• vi) The efforts may be made to monitor the functioning of the emergency department periodically by the Heads of the institution.

• vii) The Medical record of patient attending the emergency services should be preserved in the medical record department.

• viii) The Medical Superintendent may coordinate with each other for providing better emergency services.

Guidelines for maintenance of

admission register of patient • a) Clear recording of the name, age, sex, address and

disease of the patient by the attending Medical Officer;

• b) Clear recording of the date and time of attendance, examination/admission of the patient;

• c) Clear indication whether and where the patient has been admitted, transferred, referred;

• d) Safe custody of the Registers;

• e) Periodical inspection of the arrangement by the Superintendent;

• f) Fixing of responsibility of maintenance and safe custody

of the Registers.

Guidelines to identify the individual medical

officer attending to the individual patient • a) A copy of the Duty Roster of Medical Officers should be preserved

in the Office of the Superintendent incorporating the modifications done for unavoidable circumstances;

• b) Each Department shall maintain a register for recording the signature of attending medical officers denoting their arrival and departure time;

• c) The attending medical officer shall write his full name clearly and put his signature in the treatment document;

• d) The Superintendents of the hospital shall keep all such records in safe custody.

• e) A copy of the ticket issued to the patient should be maintained or the relevant date in this regard should be noted in an appropriate

record for future guidance.

Conclusion

• The law precede the development and adoption of policies beneficial to the public in general.

• EM laws in the developing countries could be used as a powerful instruments to improve emergency medical care.

• Enforcement requires linkage between the public, health authorities, and law enforcing agencies.

• Monitoring of the implementation of the laws on desired health objectives.