MEDICO-LEGAL ISSUES OF HUMAN RIGHTS

The service which medical & legal professionals render is the noblest.

Meaning: Medicolegal- pertaining to the legal aspects of the practice of medicine.

Medico legal issues examine how the law regulates medical practice.

Definition:

The guidelines of medico legal work Delhi Government 1983, defines the
medico-legal case as A case of injury or ailment, where an attending doctor after
taking history and clinical examination of the patient/s, thinks that some
investigations by law enforcing agencies are essential, so as to fix the
responsibility regarding the case in accordance with the law of the land.

The following subjects deal with all the above aspects of Law and medicine &
require Medico-legal expertise:
Forensic Medicine
Medical Jurisprudence
Toxicology

For e.g : Examples of MLCs.

(a) Assault and battery, including domestic violence and child abuse
(b) Accidents like Road Traffic Accidents (RTA), industrial accidents etc.
(c) Cases of trauma with suspicion of foul play
(d) Electrical injuries
(e) Poisoning, Alcohol Intoxication
(f) Undiagnosed coma
(g) Chemical injuries
(h) Burns and Scalds
(j) Sexual Offences
(k) Criminal abortions
(l) Attempted suicide
(m) Cases of asphyxia as a result of hanging, strangulation, drowning,
suffocation etc.
(n) Custodial deaths
(o) Death in the operation theatre
(p) Unnatural deaths
(q) Death due to Snake Bite or Animal Bite
(r) Fire Arm injuries
(s) Drug overdose
(t) Drug abuse
(u) Dead brought to the Accident and Emergency Dept / MI Room (Found
dead) and deaths occurring within 24 hours of hospitalization without
establishment of a diagnosis

Even the medicolegal issues are involved in :

Fetal rights vs. Women's rights

Public Health Welfare (Preventing HIV transmission) vs. Civil liberties and
privacy rights

The cases that are required to be labeled as medicolegal, medico-legal report is to

be prepared in prescribed format and concerned police to be informed.

Practice of medicine involves both curative aspect as well as ethical or medico-

legal aspect related to
(a) doctor-patient relationship, (b) doctor-doctor relationship, (c) doctor-state
relationship in relation to the duties of a doctor.

IMPORTANCE OF THE TOPIC :

Medico legal experts can provide a link between these two professions for
their smooth & effective functioning in a scientific manner.
Health care has been transformed from an automatic provision for those in
need to a commodity available for commercial sale. The commercialization
of the health sector has had adverse effects on doctor and patient
relationship.
The medical man , instead of a caregiver has become a high profile sales
person ,hand in hand with corporate hospitals.
Today a decline in the standard of the medical profession can be
attributed to increasing number of litigations against doctors - medical
negligence.
 Even physician meets the law at every turn.

1. when, as the treating doctor, he is subpoenaed as a witness in a personal

injury lawsuit;

2. when his aid is sought as an expert in connection with a claim that

another member of his profession has been negligent

3. when he is faced in his clinic by a narcotic addict, a man with a gunshot

wound, or a young couple seeking a blood test .

Indian healthcare industry is worth about Rs.100,000 crores, accounting 5% of

GDP.

HUMAN RIGHTS PERSPECTIVE :

In Gujarat carnage Medico Friend Circle reported Several lapses in medico-legal

documentation without a systematic investigation wherein no Post mortems were
conducted & corroborated massive brutality and the systematic use of rape ,sexual
assault.

Every human being enjoys fundamental human rights without any discrimination.
(UDHR Art 3The very basic Right to Life & Personal Liberty includes Right to
Health which strengthens the human right approach to universal access to health
care.It guarantees a life in which inherent dignity & worth of each individual will
receive respect and take care of needs and rights of one another.
Article 5 No one shall be subjected to torture, or to cruel, inhuman and degrading
treatment and so forth
Article 25 of UDHR is concerned with the right to health.

ICCPR Art 6 Inherent right to life

Art 7- No one shall be subjected to torture

ICESC Art 12-Rt of everyone to the enjoyment of the highest attainable std of
physical and mental health.

No discrimination on the basis of HIV in health care, employment & other

services.
Considering the health as a fundamental right, the ethical issues like consent,
confidentiality, autonomy, justice, doctor patient relationship, malpractices, organ
donation, equitable and nondiscriminatory allocation of human organs and other
issues of use of spurious drugs, drug abuse, medico legal cases, prevention of
torture, scientific interrogative techniques like narco-analysis, brain mapping,
custodial death, mental health, female feticide, child abuse, elderly abuse, gender
based violence, domestic violence, human trafficking, sexual abuses and
exploitation, mass disasters, disposal of dead, identification of living and dead,
euthanasia and surrogacy require special consideration in reference to the legal
framework in India and human rights.

Medical Negligence is a tort and crime

The landmark case Indian Medical Association Vs. V.P.Shantha brought the
medical professionals within the ambit of service as defined in the Consumer
Protection Act, 1986.

It is an obligation on the part of the professionals to fulfil certain rights,

expectations of the patients. Duty of care applicable to persons in medical
profession included the Duty to maintain confidentiality (co-relative right).
- MR X ....................Appellant Versus Hospital Z ..................Respondent -
(1998)8 Supreme Court
Code of medical ethics by the Medical Council of India (MCI) was amended in 2002. It is called
Indian Medical Council (professional conduct, etiquette, ethics) Regulation, 2002. Rights are :

1. Prohibition of discrimination related to HIV/AIDS within public and private spheres.

2. Resurgence of Informed Consent for HIV-related testing, HIV-related treatment, and
HIV-related research.
3. Guarantee of confidentiality of HIV-related information (including HIV + status) and
exceptions to it.
4. The right to access treatment related to HIV/AIDS as a part of the right to health,
recognized under the Indian Constitution.
5. The right to safe working environment for health care workers and other persons whose
occupation may put them at risk of exposure to HIV.

Protection of strategies for risk reduction

Right to respect for the inviolability and integrity of the human being.
On July 21, 1988, the Court of Appeal of California, regarding John Moore vs.
the Regents of the University of California ,concluded that "plaintiff's allegation
of a property right in his own tissues is sufficient as a matter of law".

Patient's right to the control of his or her own body(cell genes).

Informed consent must be obtained before the administration of any medical

treatment, except in emergencies or situations in which the patient is incapable of
expression.

the practice of obtaining consent for the use of genetic material (such
as DNA) for diagnosis and banking.
use of a person's body without his consent to obtain information about
him invades an area of privacy essential to the maintenance of his
human dignity.

Right to First Aid

Right to Standard clinical care(HIV/AIDS patients) An HIV positive patient

approached NHRC complaining (2003) that he had been denied treatment both by
the Government and non-government hospitals.

Human Right in Administration of Justice :

INDIAN LEGISLATIONS :

Medico-legal profession is getting expertise in India.The Indian Association of

Medico-Legal Experts (IAML) have been entrusted With the responsibility of
medico-legal cases. The Madhya Pradesh Government has established a Medico
Legal Institute in Bhopal

GUIDELINES TO MEDICAL OFFICERS ON MEDICOLEGAL ISSUES :

Medical profession is governed by code of medical ethics and etiquettes laid down
by Medical Council of India.

1. Constitution (Art 21)

2. Medical Council Act (102 of 1956)
 3. Law of Torts
4. Consumer Protection Act, 1986
5. Indian Penal Code(Sec 304 ,304A ,336 ,337 ,338)
6. Indian evidence Act 1872(Sec 45 Expert Opinion)
7. Criminal Procedure Code 1973(Section 39 ,53)
8. Mental Health Act ,1987
9. Transplantation of Human Organ Act ,1994

Cr.p.c Section 39 , the attending MO is legally bound to inform the police about
the arrival of a MLC.

Sec. 53 deals with examination of the accused by medical practitioner at the

request of police officer if there are reasonable grounds to believe that an
examination of his person will afford evidence as to the commission of the offence.

Sec. 54 of the Criminal Procedure Code, 1973 further provides for the examination
of the arrested person by the registered medical practitioner at the request of the
arrested person.

Insurance companies cover medico-legal issues in some form or the other. For
example, the New India Assurance Company offers the Professional Indemnity
Policy for doctors and medical practitioners. This policy covers liability falling on
them as a result of errors and omissions committed whilst rendering professional
service.

ROLE OF FORENSIC EXPERT AND DNA TECHNOLOGY IN INDIA :

Forensic expert has a humanitarian as well as legal role in context of human right
violation. All these require proper investigation, analysis and documentation.

Analysis of forensic evidence is used in the investigation and prosecution of civil

and criminal proceedings. DNA evidence can link one offender to several different
crimes or crime scenes & narrow the range of possible suspects & also to establish
the guilt or innocence of possible suspects.

Role in Organ Donation : The forensic expert plays a significant role in facilitating
organ donation (brain dead and cadaveric) by coordinating between relations, legal
agencies, organ banks and transplant surgeons. INDIA has a flourishing, and illegal,
trade in human organs. And the legislation designed to prevent it is failing.
We should make organ transplants affordable by the average citizen in our public
institutions. But the affection clause is the loophole that actually drives the
entire transplant programme in the country.

Role in negligence cases : Forensic expert play a significant role in investigation of

cases of alleged medical negligence by conducting autopsy or by preserving
specimens for analysis at Forensic Science laboratory and at times such efforts
play in significant role in addressing the grievances of consumer as well as the
medical professionals.

Prevention against Custodial torture :Forensic science is an important tool in

detecting evidence of torture and other cruel, inhuman or degrading treatment or
punishment on prisoners.
Mental Health and Human Rights : Deaths in mental asylums are investigated and opinion
of forensic expert is taken regarding circumstances of death.

Rights of children :National commission of protection of child rights (NCPCR)

and child welfare committees (CWC) refers the cases with suspected violation of
child rights for forensic evaluation

Spurious Drugs and Human Rights

In India NDPS Act 1985, is the statutory framework for drug law enforcement in
India. Forensic toxicologist helps in examination of counterfeit or spurious
medications. Forensic pharmacists play an integral role in legal cases relating to
malpractice, drunk and drugged driving and adverse side effects of certain drugs.

Forensic expert and criminal abortion:

Gender based violence (Preconception and Prenatal Diagnostic Techniques
Act 2002)

prohibit such practices of sex selection.

In Strangulation, the close examination of ligature mark and the state of structures
in the neck region under the ligature mark provide vital clues as to the method
applied for strangulating the victim.

Autopsy:Autopsy is the systematic examination of a cadaver for study or for

determining the cause of death. Autopsy means "see for yourself". It is a special
surgical operation, performed by specially trained physicians, on a dead body. Its
purpose is to learn the truth about the person's health during life, and how the
person really died.

Every autopsy is important to expose mistakes, to delimit new diseases and new
patterns of disease, and to guide future studies. Morbidity and mortality statistics
acquire accuracy and significance when based on careful autopsies.

DNA Fingerprinting:
Determination of parentage

DNA fingerprinting or DNA profiling or any of the several similar techniques for
analyzing and comparing DNA from separate sources are used especially in law
enforcement to identify suspects from hair, blood, semen, or other biological
materials found at the scene of a violent crime. It depends on the fact that no two
people, save identical twins, have exactly the same DNA sequence. DNA evidence,
apart from its use in criminal law to determine the killer or the rapist, is also
employed for various other purposes. Amongst its varied applications, Paternity
testing, Personal identification (of a mutilated body or skeletal remains), study of
the evolution of the human population and study of inherited diseases like
Alzheimers disease etc. are included.

Scientific Interrogative Techniques and Human Rights : Use of scientific interrogative

techniques like brainmapping and narco-analysis has started a debate among
medical/forensic fraternity about violation of constitutional right.

LIMITATIONS :

common principles concerning individual rights and familial and societal

obligations are absent.(Consent forms)

Despite their vast benefits to the field of law, medical jurisprudential techniques
are not treated as primary evidence till date. The situation appears hearty only as
regards autopsy reports, which have been given the status of documentary evidence
under the Indian Evidence Act. The present Act continues to treat technical
findings, such as the results of DNA tests, as expert evidence. This situation will
continue till a legislation is drafted and enacted by the Parliament.

CONCLUSION AND SUGGESTIONS :

Previously unsolvable cases are now solved with ease with the development of
the field of medical jurisprudence.

The success rate in solving complex cases in Criminal Law has greatly increased
after the discovery and use of DNA evidence technologies. The introduction of
DNA evidence in the field of Criminal law has particularly facilitated convictions
in the matters involving the offence of Rape.

Ensure the quality medical care

Observe the Professional Standards

Reduce the unethical practice and improve the doctor patient relationship.

Create the awareness of the above mentioned rights.

The overall health allocation in our budget is one of the lowest in developing
countries should be increased.

There is a unanimity that medical and forensic evidence plays a crucial role in
helping the courts of law to arrive at logical conclusions. Therefore, the expert
medical professionals should be encouraged to undertake medico legal work.

Dr. Justice V.S Malimath has suggested comprehensive use of forensic science in
crime investigation & amendments in Criminal law.

McGeer :"Knowing is not enough: We must apply"

"Willing is not enough: We must do".

BIBLIOGRAPHY
 Rao, Dr. S V Joga, Current Issues in Criminal Justice and Medical Law - A
Critical Focus, Eastern Law House Pvt. Ltd., 1999.

Mukherjee JB. Legal aspect of medical practice.J Indian Med Assoc., Vol.
97 no. 11. pp.461-5,474. Nov. 1999
Indian Constitution
http://india.gov.in/citizen/health/medico_legal.php
International Instruments
Dogra T.D.; Lalwani S., Raina A. / OIDA International Journal of
Sustainable Development 02: 01 (2010) 11-15 13
CMAJ ,Vol. 140 ,May 1989

MR X ....................Appellant Versus Hospital Z ..................Respondent -

(1998)8 Supreme Court

John Moore vs. the Regents of the University of California (B021195 CCA
1988)