Presentation on theme: "E M Laws in India Dr.L.R.Murmu MBBS, MS ( surgery ) [ AIIMS ]"— Presentation transcript:
1 E M Laws in India Dr.L.R.Murmu MBBS, MS ( surgery ) [ AIIMS ] LLB, LLM [ University of Delhi ]Additional Professor Surgery,Casualty & Emergency Services,All-India Institute of Medical Sciences,New Delhi
2 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.
3 Sources of Law Primary Source Laws passed by the Parliament or the State LegislativeOrdinances passed by the President and the GovernorSubordinate legislation : Rules and regulations made by the executive through the power delegated to them by the Acts.
4 Source of Law Secondary Sources Judgements of the Supreme Court, High Court and Tribunals (The ratio decedendi is a binding precedent)Judicial legislationJudgements of Privy Council ( London )Judgement of Foreign CourtsInternational Treaty
6 Law and MedicineMedical Jurisprudence : It deals with legal aspects of medical practice.Forensic Medicine : It deals with medical aspects of law.
7 Medico-legal CaseIt is a case of injury or ailment etc, where attendingdoctor after taking history and doing clinicalexamination of the patient thinks that someinvestigations by law enforcing agencies areessential so as to fix responsibility regarding thesaid injury or ailment etc,. according to law.
8 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
9 What cases are labeled medico-legal Cases of TraumaCases of BurnsCases of ElectrocutionCases of PoisoningCases of Industrial accidentsCases of sexual offencesCases requiring age estimation
10 What cases are labeled Medico-legal Cases of criminal abortionCases of animal or snake biteCases of Coma where cause could not be ascertainedCases of starvation including “Hunger strike”Unclaimed newly born
11 What cases are labeled Medico-legal Cases of hanging, strangulation, drowning and suffocation etc,.Cases brought by police or sent by court for medical examination.Cases brought dead and where death certification due to disease or natural cause is not possible being not apparent.Cases that are result of medical malpraxis
12 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 CaseSection 176 IPC ( Indian Penal Code ) : Provides for prosecution of the doctor for the failure to informPolice informed again when patient dies or is discharged from hospital
13 Consent for treatmentSection 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.
14 Consent Where may not be obtained Medical EmergenciesNotifiable diseasesImmigrantsNew admission to prisonsCourt orders for examination & treatmentUnder section 53 (1) of Cr.P.C., a person can be examined on request of the police by use of forceMembers of Armed Forces
15 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 signifyconsent, 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 forthe thing to be done with benefit.
16 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 of the Indian Penal Code (IPC) : Hurt : whosoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
17 Grievous Hurt Section 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 faceFracture or dislocation of a bone or toothAny 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
18 Medico-legal Evidence Evidence on the person of the patient need to be preserved under sealed cover and handed over to the policeBlood stained clothesForeign bodies e.g bullet etc,.Gastric lavage
19 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
20 Patient’s statement to Police Certificate of medical fitness regarding patient’s ability to give statement to police must bear time and dateCertificate of unfit for statement must give reasons as to why patient is not in a position to give statement
21 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.
22 Medical Certificate Defined “A medical certificate can be defined as adocumentary evidence vouching for thetruth and correctness of a fact as ascertainedby the medical professional issuing such adocument at that moment of time”.
23 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.
24 Essential features of medical 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.
25 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.
26 Criminal NegligenceWhen 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.
27 Criminal Negligence Examples Injecting anaesthetic in fatal dosageOperation on wrong patientPerforming criminal abortionAmputation of wrong limbLeaving instrument inside the bodyLeaving tourniquets too long resulting in gangreneTransfusing wrong bloodToo tight plaster causing gangrene or paralysis
28 Dying Declaration Section 32 of The Indian Evidence Act A dying declaration or statement made by the person on the verge ofdeath as to the cause of his death or as to any of the circumstancesof the transaction which resulted in his death, such a statement, oralor in writing, made by the deceased to the witness is a relevant factand is admissible in evidence.Provided it has been made by the deceased while in a fit mental condition.
29 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.
30 Consumer Protection Act, 1986 Indian Medical Association vs V. P Consumer Protection Act, Indian Medical Association vs V.P.Shantha and othersSupreme 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.
31 Supreme Court Ruling, 1989 Pt Parmanand Katara vs The Union of India Private medical practitioners were duty bound to render first aid treatment to all patients who approached them.The Supreme Court in this case conferred a right on the patients - the right to emergency medical care.
32 Constitution of India Article 21 No person shall be deprived of his life or personalliberty except according to procedure established bylaw
33 Supreme Court Ruling, 1989 Pt Parmanand Katara vs The Union of India 1. Whenever any medico-legal case attends the hospital, the medical officer on duty should inform the duty constable, name, age, sex of the patient and place and time of occurrence of the incident, and should start the required treatment of the patient. It will be the duty of the constable on duty to inform the concerned police station or higher police functionaries for further action. Full medical report should be prepared and given to the police, as soon as examination and treatment of the patient is over. The treatment of patient would not wait for the arrival the police or completing the legal formalities
34 Supreme Court Ruling, 1989 Pt Parmanand Katara vs The Union of India 2. Zonalisation as has been worked out for the hospitals to deal with medico-legal case will only apply to those cases brought by the police. The medico-legal cases coming to hospital on their own (even if the incident has occurred in the zone of other hospital) will not be denied the treatment by the hospital where the case reports, nor the case will be referred to other hospital because the incident has occurred in the area, which belongs to the zone of any other hospital. Same police formalities as given in para-1 above will be followed in these cases.
35 Supreme Court Ruling, 1989 Pt Parmanand Katara vs The Union of India 3. All government hospitals, medical institutes should be asked to provide the immediate medical aid to all the cases irrespective of the fact whether they are medico legal cases or otherwise. The practice of certain Government institution to refuse even the primary medical aid to the patient and referring them to other hospitals simply because they are medico legal cases is not desirable. However after providing the primary medical aid to the patient, patient can be referred to other hospital if the expertise facilities required for the treatment are not available in the institution.
36 Supreme Court Ruling, 1989 Pt Parmanand Katara vs The Union of India When a man is in a miserable state hanging between life and death reaches the medical practitioner either in a hospital, public authority or a private person or a medical professional doing only practice he is always called upon to rush to help such an injured person and to do all that is within power to save life. It is a duty coupled with human instinct, which needs no decision nor any code of ethics nor any rule of law.
37 Supreme Court Ruling, 1989 Pt Parmanand Katara vs The Union of India 13 (MCI Code). The patient must not be neglected: A physician is free to choose whom he will serve. He should, however, respond any request for his assistance in an emergency or whenever temperate public opinion expects the services. Once having undertaken a case, the physician should not neglect the patient, nor should he withdraw from the case without giving notice to patients, his relative or his responsible friends sufficiently long in advance of his withdrawal to allow them to secure another medical attendant. No provisionally or fully registered practitioner shall willfully commits an act of Negligence that may deprive his patient or patients from necessary medical care.
38 Supreme Court Ruling, 1989 Pt Parmanand Katara vs The Union of India Not summon a doctor to give evidence unless the evidence is necessaryPay due respectNot made to wait and waste timeAvoid harassment by way of request for adjournment etc,.
39 Article 141 Law declared by Supreme Court to be binding on all courts The law declared by the Supreme Court shall be binding on all courts within the territory of India
40 Consolidated Omnibus Budget Reconciliation Act 1986 ( COBRA) US Congress enacted this to prevent the practice of dumpingof patient by private hospitalsThe hospital must perform a medical screening examination ofall prospective patients regardless of their ability to pay; andIf the hospital must determines that a patient suffers from anemergency condition, the law requires the hospital to stabilizethe condition, and the hospital can not transfer/discharge anun-stabilized patient unless the transfer or discharge isappropriate as defined by the Act
41 The Emergency Medical Treatment and Active Labor Act 1986 The Act brought legal terms and responsibilitiesto Inter-hospital transfer.The transferring facility does not have the capability tostabilize the patient and the benefits outweigh the riskof transfer.The patient requests for transfer.
42 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 treatmentThe 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.
43 Supreme Court Ruling, 1996 Paschim Banga Khet Mazdoor Samity v Supreme Court Ruling, 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)
44 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.
45 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.
46 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.
47 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.
48 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.
49 ConclusionThe 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.