Dr. Prashant Kumar Jha, Reader, A.L.N. Rao Memorial Ayurvedic Medical College, Koppa.
A story described by a senior consultant at United Kingdom reveals the interesting approach of law of that nation. A patient approached a GP (General Practitioner) for some problem. The patient was not responding with prescribed dose. Then GP consulted a Consultant. Consultant asked to change the dose but keep patient under observation. He emphasized that if anything goes wrong, patient should be properly taken care of accordingly. All the conversations were recorded and were sent to National Health Department also. Unfortunately patient collapsed. Relatives of patient went to court. Court asked the police to bring all the documents and voice recordings. After forensic tests of availed proofs, it was confirmed that the mistake was from the side of GP. Court found him guilty and his registration for practice was cancelled and a case of culpable homicide was launched against GP. Important points to be noted in this case are:
1. Lack of sincere concern by GP
2. Lack of conscious monitoring
3. Recording of data and documentation and availing those to national health department by the time
4. Legal conscious of relative of patient towards the right
5. Fast judgment
Lot of other conclusions can be derived from the presented real story but that is matter of United Kingdom, a developed country with strong health system. In India, law has been framed in good manner, but lack of awareness gives the option of malpractices. Lack of legal consciousness of people about their right over allowed malpractices brings ‘feel free from fear environment’ amongst any such practitioner. The beliefs are perceived to them that what they are doing is not a matter of screening at all. Such approach brings the negligence of learning while studying and deficiency of medical ethics when practicing.
It is true that India is developing with greater pace and awareness of citizens towards the rules and regulations is sign of development of any nation. The reason is obvious why government with help of media, NGOs (Non-governmental Organizations) and other sources is trying to make people more aware about their right given by State (nation).
It is universal truth that ‘medical profession is one of oldest profession on this earth and most humanitarian’. It is code of conduct of medical practitioners with full of ethical base and moral values why he is simile to god. For a medical health providers better said in India as doctors, some qualities are well dealt as:
1. Should have complete understanding of psychological and physical levels of patients and these should be documented with medical history of patients
2. They should have adaptability in accordance with situation
3. They must respect their profession and to maintain that respect, they should act accordingly.
4. They should have sincere concern towards the patients and their professional ethics
5. Their behavior should bring confidence among the patients
6. They should be judgmental with attitude and life-style of patients etc.
When any practitioner lack such qualities during performing the duty, matter of medical negligence automatically comes ahead with lot of legal things. Medical Jurisprudence For India has clearly mentioned the legal concerns of medical practice in sections 51, 52, 80, 81, 85-91, 194, 195, 284, 299, 300, 301, 302, 304, 304-A, 305-309, 312-316, 326, 328, 337, 338, 354, 363-A, 366-A, 375, 376-A, 377, 377-D and 498-A of Indian Penal Code (Lyon’s Medical Jurisprudence for India published from Delhi Law House. Some modifications are made by author).
Indian Penal Code (IPC) defines Oath in section 51 as, “the word “oath” includes a solemn affirmation substituted by law for an oath, and any declaration required or authorized by law to be made before a public servant or to be used for the purpose of proof, whether in a Court of Justice or not”. For anyone practicing as health care provider, it is understood by law that such oath has been undertaken as declaration at the time of registration. The medical oath mentioned with website of Indian Medical Association can be segmented in 12 parts as:
1. I solemnly pledge myself to consecrate my life to service of humanity.
2. Even under threat, I will not use my medical knowledge contrary to the laws of Humanity.
3. I will maintain the utmost respect for human life from the time of conception.
4. I will not permit considerations of religion, nationality, race, party politics or social standing to intervene between my duty and my patient.
5. I will practice my profession with conscience and dignity.
6. The health of my patient will be my first consideration.
7. I will respect the secrets which are confined in me.
8. I will give to my teachers the respect and gratitude which is their due.
9. I will maintain by all means in my power, the honour and noble traditions of medical profession.
10. I will treat my colleagues with all respect and dignity.
11. I shall abide by the code of medical ethics as enunciated in the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002.
12. I make these promises solemnly, freely and upon my honour.
The first segment of oath clearly suggests the dedication for high purpose of service of humanity. In second segment, not using of acquired knowledge against the laws of humanity is told. Human life is considered as supreme to anything in third segment while fourth segment deals with not differentiating the patient on the basis of region, citizenship, race, party or social standings. The fifth and sixth segment sequentially details about the moral values and importance of health of patients above anything. Seventh and eight segments clearly mention to maintain the secrecy and respect to teachers respectively. Ninth to eleventh segment suggest to maintain the dignity and honors oneself along with others and acting under the codes and conduct medical ethics as mentioned in regulation of 2002. The last segment apparently mentions to make all the said promises in earlier segments without any pressure from anyone.
Section 52 of IPC deals with meaning of “Good Faith” as, ‘Nothing is said to be done or believed in “good faith” which is done or believed without due care and attention’. Hence, it is duty of practitioner to give proper attention to patients with complete care. The patients or relatives of patients must be made aware about the changes supposed to occur physiologically in patients in any form. Knowingly or unknowingly hiding of any information regarding the alteration with normal physiology of patients is criminal offense.
Section 80 covers the ‘accident in doing a lawful act’. It is disclosed that ‘nothing is an offence which is done by accident or misfortune and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution’. This section clearly defines that knowledge in doing a lawful act is not wrong. But what happens if any practitioner is not aware about the unexpected side-effects of medicine while prescribing?
‘Act likely to cause harm, but done without criminal intent, and to prevent other harm’, is mentioned with section 81. According to this, “nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property”. The explanation given for this clear the idea as it is question of fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm. It means that if any option in course saving the life is not present, such step can be undertaken which gives the chances of risk.
Sections 85 and 86 deal with act of a person who is intoxicated. If person performs any act with knowledge that he/she is intoxicated, then only it is criminal offense. It means in case of any intoxication any doctor should not treat a patient if risk of life persists. Section 87 details the interesting thing that any act not intended and not known to be likely to cause death or grievous hurt, done by consent is an offence by reason of any harm which it may cause. It means that if consent of patient has been taken and he/she is informed about the effects which may not extend to death, any harm effect caused during the treatment will not be treated as offense.
‘Act not intended to cause death, done by consent in good faith for person’s benefit’, is mentioned with section 88 of IPC. Supposed a surgeon, knowing that a particular operation is likely to cause the death of anyone, who suffers under a painful complaint, but not intending to cause patient’s death and intending in good faith, patient’s benefit performs that operation on patient, with patient’s consent. It is understood that surgeon has committed no offence.
Section 89 addresses that ‘act done in good faith for benefit of child or insane person, by consent of guardian’. If a patient is insane or unsound or child of under twelve years, then guardian or any person with lawful charge of that person may sign the consent. In that case if anything wrong happens, this will not be treated as offense. But if it is proved that consent was signed due to fear or misconception, then matter of offense happens as dealt in section 90. Section 91 details the exceptions in sections 87, 88 and 89. Means these sections do not extend to acts which are offences independently of any harm which they may cause, or be intended to cause, or be known to be likely to cause, to the person giving the consent, or on whose behalf the consent is given. Suppose a miscarriage is caused in good faith for the purpose of saving the life of the woman with consent of woman/guardian, then it is not offense. But if miscarriage has happened due to mishandling, matter of offense is there.
Sections 194 and 195 point out the giving or fabricating the false evidence with intent to procure conviction of capital offence. If any innocent person is convicted due to false evidence availed by doctor, he/she will be liable to be prosecuted under the laws of land and the terms of conviction will be more than for what such false or fabricated evidence was produced.
Negligent conduct with respect to poisonous substance is dealt in section 284 of IPC. If anyone does any act with poisonous substance so rash or negligent that it may cause endanger to human life, or to be likely to cause hurt or injury to any person, or knowingly or negligently omits to take such order with any poisonous substance in his possession as is sufficient to guard against any probable danger to human life from such-poisonous substance, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Paracelus has clearly defined the difference of drug from poison by means of difference of dose. Hence, it is essential to have proper knowledge before prescribing or giving any medicine which may endanger the human life.
Sections 299-311 reveal the offenses affecting the life. In section 299, it is mentioned that if any person causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Means if knowledge or intention or both lie with doctors about the prescribing medicine which may cause the death and it is not contradictory with any other section of IPC, then only matter of culpable homicide happens. Section 300 exposes that if any such act which may lead to death of anyone done with intention of death or injury leading to death or serious harm will be considered as murder. If the person whose death occurs is not known to him and is caused by someone else, then it is matter of culpable homicide as mentioned with section 301. Punishment for murder is given in section 302 and 303. Section 304 deals with act of culpable homicide not amounting to death whereas in 304A describes the death caused by negligence. It is related with negligence or rash act leading to death. The important point is that if it is unintentional, it will be not the matter culpable homicide.
Section 305 and section 306 are related with assisting or encouraging any person in matter of suicide. Section 305 is restricted to abetment of suicide of child or insane person while section 306 deals with abetment for suicide to anyone. In section 305, maximum punishment up to death sentence can be given while in section 306, the punishment for terms not exceeding to ten years with fine is proposed. The behavior of doctors should always be caring. If due to any harsh demeanor, patients take such steps of suicide; the acts of doctors are under screening if proved.
Section 307 exposes the matter related to attempt to murder. If any intentional attempt to kill the person is made and patient is even alive, matter of section 307 is there. Section 308 deals with matter of culpable homicide but not of murder if death occurs. This is only when it is proved that such act was result grave or sudden provocation. Suppose doctor is instigated to give poison or mishandling during the surgery and by these acts, death occurs, the matter of 308 automatically comes ahead. Section 309 is connected with suicide. Suicide may be of different nature. In case of doctors, if any doctor takes a drug with knowledge that in case of any alteration death may happen, the case of suicide exists.
Sections 312, 313 and 314 are related with matters of miscarriage. Section 312 describes, ‘whoever voluntarily causes a woman with child to miscarry, and if such miscarriage is not in good faith for saving the life of the woman, then punishment sure with imprisonment or imprisonment with fine. If such act of miscarriage is committed without the consent of woman, punishment is prescribed under section 313 for life imprisonment or up to 10 years with fine. If any such act of miscarriage with or without consent of woman causes death of woman, section 314 deals such case with punishment up to ten years with fine. Since 1956, section 313 and 314 are substituted by Act 26 of 1955, section 117 and schedule, for ‘transportation for life’.
Sections 315 and 316 respectively deal with intent to prevent child being born alive or to cause it to die after birth and causing death of quick unborn child by act amounting to culpable homicide. 315 clearly mentions that if the birth of any child is intentionally prevented being born alive or is caused child to die after its birth, and this is not in good faith for the purpose of saving the life of the mother, then person doing such act is liable to be convicted for with imprisonment up to 10 years with or without fine. Section 316 describes the death of quick unborn child. It also reveals that if a pregnant woman is harmed to die or such act brings the death of quick unborn child, then this section deals the case with same punishment of imprisonment extending up to ten years.
Section 326 exposes the matter of grievous hurt by dangerous weapons or means. The means goes for instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal. So anything including causing chemical inhalation or unnecessary surgery or inclusion of poison mentioned with medical jurisprudence etc. which may cause harm to patient may come under this section. Causing hurt by poison is specifically mentioned under section 328. Here, any stupefying, intoxicating or unwholesome drug, or other thing including poison (known) are included.
In Juggankhan versus The State of Madhya Pradesh case, the accused, a registered Homoeopathic doctor, administered 24 drops of stramonium and a leaf of dhatura to the patient suffering from guinea worm. The accused had no knowledge of the effect of such substance being administered and yet he did so. In this background, the inference of the accused being guilty of rash and negligent act was drawn against him. This judgment shows that if the doctor does not possess the knowledge and still treats, he is prima facie acting with rashness or negligence. This case was dealt under section 337 and section 338. The section 337 details that causing hurt by act endangering life or personal safety of others while section 338 reveals the Causing grievous hurt by act endangering life or personal safety of others.
Section 354 details about the assault or criminal force to woman with intent to outrage her modesty. This covers the area of work, clinic etc. for students, patients and colleagues. Section 363A is related with kidnapping or maiming a minor for purposes of begging. Any doctor, if found guilty for maiming to male below 16 years and female below 18 years of age which may lead to begging, will be treated under this section.
Section 366 A details about the procuration of minor girl. It induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years.
Section 377 is connected with punishment of rape. 377 D better suits to hospital related matter. It says, ‘Intercourse by any member of the management or staff of a hospital with any woman in that hospital’. It discloses that whoever, being on the management of a hospital or being on the staff of a hospital takes advantage of his position and has sexual intercourse with any woman in that hospital, is liable to be screened under this section.
Husband or relative of husband of a woman subjecting her to cruelty is dealt under section 498 A. Cruelty includes any mental or physical harassment which may cause danger to life or health or injury.
Other sections of IPC and Other Acts are also taken in considerations when any matter of screening persists in any case. It is very much essential for medical students to have idea related with legal aspects of medical profession to be on safer side and to serve humanity in better way. It is understood by law that if a person is having any degree then that person is having minimum knowledge regarding that profession and is accordingly treated. Hence, it is mandatory for any student, teacher or any related professional to grab maximum information which would not add to sacred profession of medical science but also the humanity, society and nation.