MEDICINE AND LAW

INTRODUCTION

The legal profession and the medical profession are both noble and learned
professions, having a long tradition of the observance of ethics. There are many things which
the two professions and disciplines have in common, though it is mostly in a criminal court
that the doctor’s knowledge and experience come to be tested when he appears as a witness in
a concrete case.

Medicine is a science. Science can be described as any organized body of knowledge.

The method of science is descriptive. It investigates facts, digests natural phenomena, which
is then presented in the form of a systematic theory.

Law on the other hand like ethics is prescriptive. It deals with human conduct as it
ought to be and seeks to lay down norms.

Areas of common interest

Over the years there have been extensive and intensive advances in various fields of
medicine, which have not been adequately attended by the legal system. Some of the topics
of concern are medical negligence, new techniques of reproduction, organ transplantation,
definition of death, genetics,

Health and Access to Medicine: Pharmaceutical Policies and Practices

Health and access to medicine is central in human development. Pharmaceuticals play

a central role in health care throughout the world. However, the pharmaceutical industry is
faced with difficulties as increasing research and development expenditure yields fewer new
treatments. Public and private budgets strain under the weight of high prices and limited
access. The world’s poor see little effort to address diseases prevalent in less affluent
societies, while the world’s wealthy overuse prescription drugs, risking their health and
wasting resources.

SOCIAL DETERMINANTS OF HEALTH

The social determinants of health are the conditions in which people are born, grow,
live, work and age, including the health system. The social determinants play an important
role in the health and well-being of individuals and communities. Poverty, low educational
attainment, unsafe or unstable housing, poor nutrition, lack of insurance, and limited
employment are social conditions that are directly linked with shorter lives, poorer health,
and disparities in health care access and outcomes. These are established risk factors that lead
to worse health outcomes in disadvantaged populations.

Healthcare providers are increasingly recognizing that social determinants are

important drivers of health in their patients, but a majority of providers do not routinely
identify or address their patients’ social needs in clinical practice.

Types of social determinants of health

1. Access to High Quality educational opportunities

2. Access to Medical Care Services

3. Access to Social Media and other technologies

4. Availability of community based resources and opportunities for recreational activities.

5. Availability of resources to meet daily needs

6. Culture

7. Language/literacy

8. Public safety

9. Residential segregation

10. Social norms and attitudes (discrimination, racism and distrust of government)

11. Socio-economic conditions: (Concentrated poverty and stressful conditions that

accompany it)

12. Transportation options

Law as a social determinant of health

Law, whether embodied in constitutions, statutes, regulations, court decisions, plays

an important role in causing, exacerbating and alleviating health harming social conditions.
The ways in which laws shape health conditions are:

1. The law can be used to design and perpetuate social conditions that can have far reaching
physical, mental and emotional effects on individuals and population.
2. The law can be used as a mechanism through which behaviours and prejudices are
transformed into distribution of well-being among the population.

3. Law can be determinative of health through enforcement of norms.

4. The law can be used to structure direct responses to health harming social needs that result
from things like impoverishment, illness, market failure, and individual behaviour that harms
others.

Medico-legal Partnerships

The theory behind Medico-Legal Partnerships is that many social and legal problems
are involved with a patient’s illness and these problems need to be addressed in a
multidisciplinary fashion to achieve good and effective care. Medical professionals are taught
to get people healthy and send them home. A medical-legal partnership is a team-based,
multi-disciplinary, collaborative intervention that embeds civil legal aid professionals in
health care settings to address seemingly intractable social problems that contribute to poor
health outcomes and health disparities. Healthcare teams with MLP’s can leverage legal
advocacy to address challenging unmet social needs.

Example: An asthma patient who lives in a rented apartment with leaks, mold and an
unresponsive landlord is unlikely to get relief without legal advocacy.

A woman with diabetes under a doctor’s care may get increased sugar levels when she runs
out of food.

A child may not do well in school as learning needs go unaddressed at home.

SOURCES OF LAW RELATING TO MEDICINE AND HEALTH

1 International Conventions:

WHO Constitution (1946) states that: “the enjoyment of the highest attainable
standard of health is one of the fundamental rights of every human being…”. The preamble
of the Constitution defines health as: “a state of complete physical, mental and social well-
being and not merely the absence of disease or infirmity”.

The Universal Declaration of Human Rights, adopted on December 10, 1948

mentioned health as part of the right to an adequate standard of living (article 25). Article 25
reads:
 1. “Everyone has the right to a standard of living adequate for the health and well-
being of himself and of his family, including food, clothing, housing and medical
care and necessary social services, and the right to security in the event of
unemployment, sickness, disability, widowhood, old age or other lack of
livelihood in circumstances beyond his control.
2. Motherhood and childhood are entitled to special care and assistance. All children,
whether born in or out of wedlock, shall enjoy the same social protection.”

The International Covenant on Economic, Social and Cultural Rights, 1966, in Article
12 states:

“1. The States Parties to the present Covenant recognize the right of everyone to the
enjoyment of the highest attainable standard of physical and mental health.

2. The steps to be taken by the States Parties to the present Covenant to achieve the
full realization of this right shall include those necessary for:

(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for
the healthy development of the child;

(b) The improvement of all aspects of environmental and industrial hygiene;

(c) The prevention, treatment and control of epidemic, endemic, occupational and
other diseases;

(d) The creation of conditions which would assure to all medical service and medical
attention in the event of sickness.”

The Committee on Economic, Social and Cultural Rights, a body composed of

independent experts in charge of monitoring the implementation of the Covenant, provided a
broad interpretation of article 12 of the Covenant (General Comments No.2014):

The right to health is an inclusive right, extending not only to timely and appropriate
health care, but also to the underlying determinants of health, such as access to safe and
potable water and adequate sanitation, healthy occupational and environmental conditions,
and access to health-related education and information, including on sexual and reproductive
health (Paragraph 11).

2. Constitution of India
 Right to Health has not been expressly included as a fundamental right in the Indian
Constitution. Most of the provisions related to health are in Part-IV (Directive Principles).

11th and 12th Schedules

In the 11th and 12th schedules of the Constitution, the subjects of Panchayats and
Municipalities include drinking water, health and sanitation, family welfare, women and child
development, social welfare etc.

Directive Principles of State Policy

Article 38: The state will secure a social order for the promotion of welfare of the people.
Providing affordable healthcare is one of the ways to promote welfare.

Article 39(e): The state shall make sure that health and strength of workers, men and women,
and the tender age of children are not abused.

Article 41: State shall provide public assistance in cases of unemployment, old age, sickness
and disablement etc.

Article 42: State shall protect the health of infant and mother by maternity benefit.

Article 47: The state shall improve public health, securing of justice, human condition of
works, extension of sickness, old age, disablement and maternity benefits and also
contemplated. Further, State’s duty includes prohibition of consumption of intoxicating
drinking and drugs are injurious to health.

In Vincent v. Union of India, the court accentuated that a healthy body is the very
establishment of all human activities. It added that Article 47, a Directive Principle of State
Policy lays pressure on the improvement of general health and denial of medications harmful
to health as one of the essential obligations of the state.

Article 48A: State shall Endeavour to protect and impose the pollution free environment for
good health.

Part III Fundamental Rights

The provisions of Part-III (Fundamental Rights) which relate to Right to Health are:

Article 21 of the Constitution states: “no person shall be deprived of his/her life or personal
liberty except according to the procedure established by law.”
Article 23(1) prohibits traffic in human beings. Trafficking of women leads to prostitution,
which in turn is a major factor for spread of AIDS, this article has been linked to Right to
Health.

Article 24 states that no child below the age of 14 years shall be employed to work in any
factory or mine or engaged in any other hazardous employment. It is directly related to health
of children.

Indian Contract Act and Medical Profession

Contract is an agreement between two or more persons which creates an obligation to

do or not to do a particular thing. Contract may be implied or express.

While a doctor cannot be forced to treat any person, he has certain responsibilities for
those whom he accepts as patients. It is an implied contract. Implied contract is not
established when:

(i) the doctor renders first-aid in an emergency;

(ii) makes a pre-employment medical examination for a prospective employer;

(iii) performs an examination for life insurance purpose;

(iv) is appointed by the trial court to examine the accused for any reason; and

(v) when he makes an examination at the request of an attorney for last suit
purposes.

Most of the cases of breach of contract are the cases not of non-performance but of
negligent performance such as:

Wrong procedure

Procedure done at wrong site

Death attributable to surgeon’s negligence

Leaving object in the area of operation

Death due to mismatches blood transfusion etc.

Remedy for Breach

 Remedy in such cases are generally through recovery of damage in a civil court or in
consumer court where patient must prove that the doctor or hospital is in the breach of
contract by way of negligence and has caused specific damage to the patient.

If there is no damage, there would be no case for compensation.

CONSUMER PROTECTION ACT AND THE MEDICAL PROFESSION

Necessity of the Consumer Protection Act arose because the existing laws, i.e. the law
of Torts and IPC did not provide required justice because of delay, cost of litigation, standard
of proof required.

This Act was made applicable to doctors because there are no provisions in the Indian
Medical Council Act 1956; to entertain any complaint from the patient, to take action against
the medical practitioner in case of negligence, or to award any compensation.

The Consumer Protection Act (CPA) is a comprehensive legislation implemented in

the year 1986 in India to promote and safeguard the concerns of consumers. Under the act,
six different consumer rights, namely right to choose, right to be heard, right to education of
customer, right to seek redress, right to be informed, and right to safety, have been included
to protect the customers.

For the smooth execution, consumer councils and consumer courts have been
established in the district, state and central level to settle the consumers’ disputes. The CPA
was enforced in India as people were reluctant to avail the services of the civil courts owing
to the excessive court fee and a long delay to get a final verdict. CPA has been formulated to
be customer-friendly, as there is no court fee payment, the person can plead their own case,
and the decision is taken within 3-6 months.

Consumer:

A consumer is a patient who pays to get services of a doctor or hospital; any person
who pays for the patient; legal heirs/representatives of such patient; Spouses, parents and
children of the patient.

Medical services rendered by doctors/hospitals for payment are covered under the Act
as they are not contract of personal services, but contract for services. In 1995 the Supreme
court in the case of I.M.A. vs V.P Shantha, brought medical profession within the ambit of
CPA 1986. The apex court said the relationship between patient and medical professional is
contractual. A Consumer who Has been offered a service has the right to approach the court
if there is sufficient evidence that There Was Breach Of Duty, Medical Negligence, A
Consumer Has The Right To Move To The Consumer Dispute Redressal Forum

The doctor-patient relationship relies on the mutual trust and conviction. However,
over the years owing to the commercialization of the health care and the medical profession,
the profession has run out of faith. The law is not enforced to penalize all health care
professionals that cause injury to the patients; but is concerned only with negligent acts.

The CPA provides a forum to safeguard the rights of the customers and establishes
guidelines for the speedy redress of their grievances against unethical medical practices.

All service rendered to a patient by a medical practitioner is covered under the CPA
except when the service is provided free of cost, especially in charitable or governmental
dispensaries and hospitals, and primary health centers. If a patient or the relations of a patient
feel that the suffering or death of a patient is because of either negligence by the concerned
doctor or the health facility, they can complain to the Medical Council of India or to the
Consumer Court.

The Act covers all the medical practitioners and does not limit itself to the allopathic
system in order to ensure accountability and keep a check on quackery by non-allopathic
practitioners. Similar sorts of acts has even been implemented across the world and has
shown encouraging results in the field of medical care.

Despite the rise in the number of cases that are filed against medical practitioners
since enforcement of the Act, a study has revealed poor awareness among the medical and
dental professionals. Further, it has been observed that the quality of medical services offered
to the ordinary man has also improved significantly since implementation of the act.

Thus, there is an immense need to update the understanding about the Act among all
the stakeholders - patient, doctors, and hospital management.

To conclude, medical professionals should internalize quality-assured health

standards in their routine professional duties, to ensure protection of customer rights.

The enforcement of the consumer protection act is a crucial step in ensuring reforms
in doctor-patient relationship and to benefit the patient, doctor, and society in general in years
to come.
TORTS: PROFESSIONAL NEGLIGENCE (Malpractice, Malpraxis)

Professional negligence is the breach of a duty caused by the omission to do

something which a reasonable man guided by those considerations which ordinarily regulate
the conduct of human affairs would do or doing something which a prudent and reasonable
man would not do.

Medical negligence or malpractice is defined as lack of reasonable care and skill or

wilful negligence on the part of a doctor in the treatment of a patient whereby the health or
life of a patient is endangered.

The damage caused to a patient may be a physical, mental or functional injury to the
patient, while damages are assessed in terms of money by the court on the basis of loss of
concurrent and future earnings, treatment costs, reduction in quality of life. etc.

In order to achieve success in an action for negligence, the consumer must be able to
establish to the satisfaction of the court that:

(i) the doctor (defendant) owed him a duty to conform to a particular standard of
professional conduct;
(ii) (ii) the doctor was derelict and breached that duty;
(iii) (iii) the patient suffered actual damage; and
(iv) (iv) the doctor’s conduct was the direct or proximate cause of the damage.

The burden of establishing all four elements is upon the patient / consumer. Failure to
provide substantive evidence on any one element may result in no compensation.

LAW OF CRIMES AND HEALTH

Acts declared as crimes, go beyond mere compensation. For rash and negligent acts,
he may be prosecuted in a criminal court for having caused injury to or the death of his
patient by an act amounting to culpable homicide under Section 304-A of the Indian Penal
Code.

Examples:

Administering fatal dosages of anaesthesia or in wrong tissues.

Amputation of wrong finger, operation on wrong limb, ,removal of wrong organ, or errors in
ligation of ducts.

Operation on wrong patient.

Leaving instruments or sponges inside the part of body operated upon.

Leaving tourniquets too long, resulting in gangrene.

Transfusing wrong blood.

Applying too tight plaster or splints which may cause gangrene or paralysis.

Performing a criminal abortion.

Indian Penal Code

The Indian Penal Code lays down certain principles to determine the criminal liability
of the accused. Some of the provisions of the code directly protect the health of the people
and thus lay down punishments for those who are responsible to affect the health of the
people.

Section 52 of the Code reads: “Nothing is said to be done or believed in ‘Good Faith’,
which is done or believed without due care and attention.” The meaning of the expression
“good faith” is what is done with “due care and attention”. Due care denotes the degree of
reasonableness in the care sought to be exercised.

Section 3(22) of the General Clauses Act, 1897 defines “good faith” as: “A thing is deemed
to be done in “good faith” where it is in fact done honestly whether it is done negligently or
not.

Good faith excludes the element of negligence.

In the case of Sukaroo Kabiraj v. The Empress [I.L.R. 14 Cal. 566], wherein Kabiraj who,
having no knowledge of surgery beyond that he had acquired in his practice, operated a man
for internal piles by cutting them out with an ordinary knife, in consequence of which he died
from hemorrhage. It was held as the operation was one so imminently dangerous that even
educated surgeons scarcely ever attempted it, the accused was guilty of an offence punishable
under section 304-A of the Indian Penal Code.
Section 84 “Nothing is an offence which is done by a person who, at the time of doing it, by
reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is
doing what is either wrong or contrary to law”.

Every person is presumed to be sane. This presumption does not apply to a man
whose case is governed by this section. This section deals with the deficiency of will due to
weak intellect. It should be established under this section that the accused was of unsound
mind and his cognitive faculties are so impaired that he did not know the nature of the act
done by him or that what he is doing is either wrong or contrary to law.

Section 88 “Nothing which is not intended to cause death, is an offence by reason of any
harm which it may cause, or be intended by the doer to cause, to be known by the order to be
likely to cause, to any person for whose benefit it is done in good faith, and who has given a
consent, whether express or implied, to suffer that harm, or take the risk of that harm.”

Illustration appended to the section shows that a surgeon knowing that a particular operation
is likely to cause the death of the patient, who suffers under the painful complaint, but not
intending to cause his death, and intending, in good faith patient’s benefit, performs that
operation on the patient, with his consent. He is said to have committed no offence.

Section 89 exempts a person who causes any harm when the act is done in good faith for the
benefit of child less than 12 years of age, or of unsound mind, by or by consent of the
guardian or other person having lawful charge of that person.

Illustration to this section shows that A, in good-faith, for his child’s benefit, without his
child’s consent, has his child cut for the stone by a surgeon, knowing it to be likely that the
operation will cause the child’s death, but not intending to cause the child’s death. A is within
the exception, in as much as his object was the cure-of the child.

Section 92 exempts a person from any harm caused to a person for the act done in good faith
for benefit of a person without consent.

Example: A surgeon who finds a person to be operated immediately, in good faith he does so,
he is said to have committed no offence.

Chapter XIV of the Indian Penal Code

It specifically deals with offences affecting the public health, safety, convenience,
decency and morals.
 Section 269 punishes any person who unlawfully or negligently does any act which is,
and which he knows or has a reason to believe to be, likely to spread the infection of any
disease dangerous to life. The punishment provided is up to six months imprisonment with or
without fine.

The offence extends to willful acts done heedlessly but in the presence of the danger
thereby threatened to society of which the accused had knowledge or belief. Any act by
which a person or an animal is exposed suffering from communicable disease is a public
menace or a hospital for infectious disease erected near a town or city so as to cause serious
risk of infection to persons staying or passing thereby is an offence.

The main ingredient of this section is the disease must be infectious. The section comes into
play whether the communication of the disease is direct or indirect and whether they may be
infectious or contagious. The diseases, which the medical authorities agree to be infectious,
are all covered under this section and not those, which are suspected. Hence any person who
is affected by diseases like plague, cholera etc exposes himself or travels through a public
transport are likely to spread the disease and are attracted to this section.

In Chabumian’s case, the accused resided in plague-stricken house in the Ambala

Cantonment, and had been in contact with a plague patient. He was taken to the plague shed
with the patient who died there. The next day, the accused left the shed against orders, and
traveled by rail to the neighbouring town. He was held to have committed an offence under
this section as he had sufficient reasons to believe that his act was likely to spread the
infection of plague which is dangerous to life.

Section 270 deals with malignant act likely to spread infection of disease dangerous to life. It
punishes any person who malignantly does any act which is or for which he has a reason to
believe to likely to spread the infection of any disease dangerous to life. The punishment for
such an act is imprisonment of either description for a maximum term of two years with or
without fine. The only difference between this and the last section is in the last section the act
was a careless or a negligent act and in this section it is a malignant or malicious act not done
with a benevolent intention.

If a person is traced under this section then he will be guilty of homicide and not merely
nuisance.
Section 271 punishes a person who knowingly disobeys a rule of quarantine in existence
made and promulgated by the government.

Quarantine relates to a vessel, which is segregated for prevention of contagious disease.

Section 272 punishes a person who adulterates any article of food or drink making it noxious
for consumption and intending to sell such article as food or drink. The expression noxious
means unwholesome as food or injurious to health. Selling of inferior food is not an offence
but selling something, which is noxious, is an offence and the seller is punishable. It is very
important under this section that an article of food or drink has been adulterated and the
intention was to sell such article as food or drink.36 The adulteration is punishable only if the
article concerned is rendered “noxious as food or drink”. Mixing water with milk is not
punishable under the Code as after such mixture the milk will not turn unwholesome, though
a case may be an offence under the Prevention of Food Adulteration Act, 1954.

Section 273 punishes a person who knowingly sells or offers or exposes to sell any article of
food or drink which is rendered or has become noxious or is in a state unfit for food or drink.
The last section dealt with adulteration of articles rendering them noxious where as this
section punishes not only with the articles so adulterated, but also with those which have been
otherwise rendered noxious or unfit for human consumption. The section is attracted only if
the article is sold as food or drink and it has to be unfit for human consumption. In a case the
accused did not sell any article as food or drink but for the purpose of trade, an article which
was unfit for human consumption. It was held that no offence was committed. The article of
food or drink must be noxious whether by man or lower animals and this section is not
limited only to man. The word ‘unfit’ does not mean unsuitable for food or drink on account
of inferior quality brought about by harmless admixture or adulteration. For example, the
admixture of large quantity of dirt, wood, matches and black seeds in wheat offered for sale
does not make the wheat unfit for consumption within the meaning of this section.39

Section 274 deals with adulteration of drugs and punishes any person who adulterates a drug
or a medical preparation knowingly that it will be sold or used for any medicinal purpose, as
if it had not gone any adulteration and such adulteration has lessened the efficacy or changed
the operation of the drug or medicine or made it noxious. The section punishes the intentional
adulteration of drugs and medical preparations. It only punishes the adulteration that is a
fraud on those who may have to use it. The section, therefore, adds that the intention or
knowledge should be that it would be or is likely to be used for any medical purpose, as if it
had not undergone such adulteration. Section 274 is attracted when a person knows that an
adulterated drug or medical preparation is sold or offered to be sold or exposed for sale or
issued it from any dispensary for medicinal purpose or caused it to be used for medicinal
purposes by any person not knowing of the adulteration as unadulterated.

Section 276 punishes any person who sells or offers to sell or exposes to sell or issues from a
dispensary for medicinal purposes any drug or medical preparation as a different drug or
medical preparation and knows of such difference at the time of sell.

Section 277 punishes any person for fouling water of public spring or reservoir. Any person
who corrupts or fouls the water of any public spring or reservoir voluntarily and by doing so
has rendered such water less fit for the purpose for which it was ordinarily used shall be
punished. The water of a public spring or reservoir is used by public at large. A well, tank or
a cistern is included under this section. It is considered to be public property and used by a
large number of people. In many cases such water is used for drinking and cooking purposes.
If such water is fouled it may harm the health of the people. Some of the examples of fouling
water are spitting, washing clothes, cattle etc.

Section 278 punishes any person who voluntarily vitiates the atmosphere in any place so as to
make it noxious to health of persons in general dwelling or carrying business in the
neighbourhood or passing along a public way. The section applies to trades producing
noxious and offensive smells or manufacturing units by which the atmosphere is polluted.

Section 284 of the code punishes any person who with any poisonous substance which is
capable of endangering human life or causing hurt or injury to any person does any act which
is so rash and negligent so as to endanger human life or to be likely to cause hurt or injure
any person. Under this section any act or omission by the person who is in possession of
poisonous substances which is dangerous to human life is included. The object of these
sections is to protect people from danger, hurt or injury from substances which are naturally
dangerous.

The code also punishes any person who does any negligent act with respect to fire or
combustible matter,40 explosive substance, machinery, pulling down or repairing building,
animal.

Section 290 covers all miscellaneous nuisances, which are not otherwise punishable under the
code. Section 304 A is more relevant from the health point of view as it deals with causing
death by negligence. It lays down for the death of a person by rash and negligent act not
amounting to culpable homicide.

Here the question comes whether medical negligence cases can be filed under this section or
not. As it includes all the elements of medical negligence a victim can also attract this section
and proceed against the doctor for medical negligence,

Though the Code was made way back in 1860 and before independence but it still focuses on
various provisions affecting health and more importantly it punishes for affecting public
health.

The Code of Criminal Procedure, 1973

The Code under Chapter X Section 133 empowers a District Magistrate or a Sub-divisional
Magistrate or any other Executive Magistrate specially empowered in this behalf by the State
Government to make a conditional order on receipt of a report from a police officer that a
trade or occupation or keeping of any goods or merchandise is injurious to the health or
physical comfort to the community, he may order the person causing the same to desist from
carrying on, or to remove or regulate in such manner as may be directed, or to remove such
goods or merchandise or to regulate the same in such manner as he deems fit

LABOUR LAW: HEALTH

On the basis of the constitutional provisions on health in the Fundamental rights and
Directive Principles od State Policy, as well as international instruments, the Government is
committed to regulate all economic activities for management of safety and health risks at
workplaces and to provide measures so as to ensure safe and healthy working conditions for
every working man and woman in the nation. Government recognizes that safety and health
of workers has a positive impact on productivity and economic and social development.
Prevention is an integral part of economic activities as high safety and health standard at
work is as important as good business performance for new as well as existing industries.

The Four Codes adopted by the Government to regulate labour are:

Code on Wages, 2019 (No. 29 of 2019)

 The Occupational Safety, Health and Working Conditions Code, 2020 (No. 37 of
2020)

The Code on Social Security, 2020 No. 36 OF 2020

The Industrial Relations Code, 2020 No. 35 of 2020

3. PRECEDENT: JUDICIAL DECISIONS

Article 21 and right to health

Article 21 has been interpreted by the Supreme Court to include the right to health
thus establishing right to health as an implied fundamental right. In several decisions, a
plethora of health rights have been developed.

Ratlam Municipal Corporation (Council) v. Vardichand, [AIR 1980 SC 1622] the court held
that it is the primary duty of the state under Article 47 of the Constitution to ensure the living
conditions of the people are healthy and enforce this duty against any governmental body or
authority who defaults in doing so irrespective of the financial resources it has.

Francis Coralie Mullin v. Union Territory of Delhi [1981(1) SCC 608].: The Supreme Court
held that, right to life guaranteed in Article 21 of the Constitution in its true meaning includes
the basic right to food, clothing and shelter

Bandhua Mukti Morcha v. Union of India (AIR 1984 SC 812) the Supreme Court held that
although the DPSP are not binding obligations but hold only persuasive value, yet they
should be duly implemented by the State. Further, the Court held that dignity and health fall
within the ambit of life and liberty under Article 21.

Vincent v. Union of India [AIR 1987 SC 994] It was held that a healthy body is the very
foundation for all human activities. In a welfare state, therefore, it is the obligation of the
state to ensure the creation and the sustaining of conditions congenial to good health.

Parmanand Katara v Union of India [AIR 1989 S.C. 2039] held that every doctor at
Government hospital or otherwise has the professional obligation to extend his services with
due expertise for protecting life of a patient.

CESC Ltd. v. Subash Chandra Bose [AIR 1992 SC 573,585: (1992) 1 SCC 461]: The
Supreme Court relying on international instruments concluded that right to health is a
fundamental right. It went further and observed that health is not merely absence of sickness:
Medical care and health facilities not only protect against sickness but also ensure stable
manpower for economic development. Facilities

Unnikrishnan, J.P. v. State of Andhra Pradesh [AIR 1993 SC 2178, (1993) 1 SCC 645]: It
was held that the maintenance and improvement of public health is a constitutional
obligations cast on the state under Article 21 of the Constitution.

Consumer Education and Research Centre V. Union of India [AIR 1995 SC 922] The court
held that right to health and medical care is a fundamental right under Article 21 of the
Constitution. The state has an obligation to protect the health and vigor of a worker, both
while in service and after retirement. Health, medical care, and vigour are some of the
integral factors of a meaningful right to life.

Virender Gaur v. State of Haryana [1995 (2) SCC 577]: The Supreme Court held that
environmental, ecological, air and water pollution, etc., should be regarded as amounting to
violation of right to health guaranteed by Article 21 of the Constitution.

Paschim Banga Khet Mazoor Samity v. State of West Bengal [(1996) 4 SCC 37] The apex
court further widened the scope of Article 21 and held that it is the responsibility of the
Government to provide adequate medical aid to every person in the country, and to strive for
the welfare of the public at large. It added that the administration has an obligation to give
clinical guidance to each individual in the nation and the administration emergency clinics
run by the state are compelled by a solemn obligation to extend clinical help for saving
human life. Not providing medical treatment to an individual needing such treatment, brings
about infringement of his right to life ensured under Article 21. The Court laid down certain
guidelines for genuine clinical cases.

Mahendra Pratap Singh v. State of Orissa [AIR 1997 Ori 37]: The Court had held “in a
country like ours, it may not be possible to have sophisticated hospitals but definitely
villagers within their limitations can aspire to have a Primary Health Centre. The government
is required to assist people, get treatment and lead a healthy life. Thereby, there is an
implication that the enforcing of the right to life is a duty of the state and that this duty covers
the providing of right to primary health care.”

Burrabazar Fire Works Dealers Association and Others v. Commissioner of Police, Calcutta
[AIR 1998 Cal. 121] The Apex court held that Article 19 (1) (g) does not guarantee any
freedom which is at the cost of the community’s safety, health and peace. Article 19 (1) (g) of
the Indian Constitution guarantees the fundamental right of all citizens to practice any
profession, or carry on any occupation, trade or business. This is subject to restrictions
imposed in the interest of the general public under Article 19(6).

ARTICLE 21 AND RIGHT TO DIE (EUTHANASIA)

There have been several petitions before the Apex court with requests for premature
ending of life. This has led to the debate about the role of such practices in contemporary
health care. The debates cut across complex and dynamic aspects such as, legal, ethical,
human rights, health, religious, economic, spiritual, social and cultural aspects of the civilised
society.

The word euthanasia, originated in Greece and means a good death. Euthanasia is of
various dimensions:

 active (introducing something to cause death);

 passive (withholding treatment or supportive measures);
 voluntary (consent)
 involuntary (consent from guardian) and
 physician assisted (where physician's prescribe the medicine and patient or the
third party administers the medication to cause death)

Position in India

In India abetment of suicide and attempt to suicide are both criminal offences. The
constitutional validity of Section 309 of Indian Penal Code Section (IPC) was challenged in
the Supreme Court in P. Rathinam vs. Union of India [1994(3) SCC 394]. The Court declared
that Sec 309 of IPC is unconstitutional, under Article 21 (Right to Life) of the constitution.

In 1996, in Gian Kaur vs. State of Punjab [1996(2) SCC 648] section 306 of the IPC,
punishing abetment of commission of suicide, was challenged as unconstitutional before the
Supreme Court. The trial court had convicted the accused and on appeal the conviction was
upheld by the High Court. In the appeal before the Supreme Court it was contended that
‘right to die’ emanates from the right to life included in Article 21 of the Constitution. Any
person abetting the commission of suicide is merely assisting in the enforcement of the
fundamental right under Article 21; hence their punishment is a violation of Article 21. A
Constitution Bench of the Supreme Court held that the right to life under Article 21 of the
Constitution does not include the right to die.

In Aruna Ramchandra Shanbaug vs. Union of India & Ors. [Writ Petition (Criminal)
no. 115 of 2009, Decided on 7 March, 2011] the Supreme Court reconsidered its decision on
suicide. The court held that abetment of suicide (IPC Sec 306) and attempt to suicide (IPC
Sec 309) are two distinct offences, hence Section 306 can survive independent of Section
309. It was also clearly stated that a person attempts suicide in a depression, and hence he
needs help, rather than punishment. The Supreme Court recommended to Parliament to
consider the feasibility of deleting Section 309 from the Indian Penal Code.

MEDICAL ETHICS

The science of moral values or principles is called ethics. The word ethics is derived
from the Greek word ‘ethikos’, ie ‘rules of conduct that govern natural disposition in human
beings.’

Medical Ethics deals with moral principles which should guide the members of the
medical profession, while dealing with the patients, their relatives, community, and with
colleagues in profession. The Latin word ‘mores’ is concerned with goodness or badness of a
human character or behaviour.

Moral= Social or sexual behaviour; Ethics=Professional behaviour.

The primary objective of the medical profession is to render service to humanity with
full respect for dignity of human beings. Upon entering the medical profession, every doctor,
irrespective of specialty, has to discharge medico-legal responsibilities and to solve medico-
legal problems.

Everything a doctor does in practice of medicine is governed by legal system.

Origin of medical ethics

1. Charaka’s oath in 7th century BC;

2. Kautilya’s Arthashatra in 3rd-5th century BC
3. Sushruta in Sushruta Samhita-200-300 AD
4. Medical Council of India (Founded in 1933): Modern Code of Medical Law and
ethics in India. The 1933 Act was replaced by the 1956 Act
Hippocratic Oath

The modernised version of the Hippocratic Oath are the Declaration of Geneva, as
adopted by the third General Assembly of World Medical Association at Geneva,
Switzerland in September 1948. (amended in 1983) and the international Code of Medical
Ethics, as adopted by the General Assembly of the World Medical Association held in
London in October 1948.

As per the Declaration of Geneva, each applicant, at the time of registration, shall be
given a copy of the following Declaration by the Registrar concerned, and the applicant shall
read and agree to abide by the same.

“1. I solemnly pledge myself to consecrate my life to the service of humanity.

2. I will maintain the utmost respect for human life from the time of conception. Even under
threat, I will not use my medical knowledge contrary to the law of humanity.

4. I will not permit consideration 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 confided in me.

8. I will maintain by all means in my power, the honour and noble traditions of the medical
profession.

9. I shall treat my colleagues with all respect and dignity.

10. I shall abide by the Code of Medical Ethics as enumerated in the Indian Medical Council
Regulation 2002.

I make these promises solemnly, freely and upon my honour.

Bio-ethics

Bio-ethics as formulated in US in 1971, consists of four principles:

1. Non-malfeasance: Duty not to do harm;

2. Beneficence: Duty to do good;
 3. Respect to autonomy: Duty to respect human dignity, freedom and free choice of the
individual;
4. Natural and distributive justice: Ensuring equal share in the distribution of health care;
and priority in proportion to need.

The need for knowing ethics

Ignorance of medical law & ethics by young doctors leads to negligent behaviour,
failure in discharging compulsory duties towards the patient & state, leading to misconduct or
negligence.

Members of general public are increasingly aware of their rights due from a doctor,
questioning the legality of issues.

Doctors should also know who are the authorities proposing these rules and what
penalties one is likely to be punished with in the event of breach of them.