Reflections on Medical Law and Ethics in India

Abstract

The editor and authors of this book appear to use the term 'reflections' to mean 'serious thought or consideration'. The editor is Associate Professor of Law, Kolkata. I am not sure what to make of the additional fact provided that Bhat is also a member of the International Institute of Space Law. Bhat has two chapters in this book to his credit.

Reflections on Medical Law and Ethics in India. B. Sandeepa Bhat (ed). Eastern Law House Private Ltd., Kolkata, 2016. '695, 297 pp. ISBN 978-81-7177-298-8.

The editor and authors of this book appear to use the term 'reflections' to mean 'serious thought or consideration'. The editor is Associate Professor of Law, Kolkata. I am not sure what to make of the additional fact provided that Bhat is also a member of the International Institute of Space Law. Bhat has two chapters in this book to his credit.

The remaining eight chapters are distributed among authors from Kolkata, Bengaluru and Thiruvananthapuram. Chapters 4 and 5 have two co-authors each. Both authors of Chapter 4 are from Bengaluru. Chapter 5 has one author from Kolkata and the other from Bengaluru.

Chapter 8 deals with medical negligence, one discussing the concept, interpretation and application in India; Chapter 9 (also dealing with malpractice) describes common errors by doctors and hospitals; Chapter 10 talks about negligence in relation to the Consumer Protection Act. As can be expected, there is some duplication in these chapters.

In the Preface, Bhat summarizes the contents of each chapter serially. These five pages are worth studying to get a sense of the general contents. Pages 17-22 provide a table of legal cases referred to in the book with references to where details can be obtained on them.

We are told in the Preface that 'this book comprises of ten scholarly articles contributed by the select few experts available in the field of medical law in India'. It would be of interest to seek the opinions of medicolegal experts in New Delhi, Mumbai, Chennai and other centres where scores of legal luminaries work on the subject. There is no representative from the medical profession. I wonder whether medical doctors who have obtained their Legum Baccalaureus (LLB) and Master of Law (LLM) qualifications have been found wanting by the editor. I make this point as there have been respected volumes by physicians that have served generations ofjudges, lawyers and, of course, medical doctors and lay persons well. Off hand, I can recall the works of Drs Jaising P. Modi and Homi Shapurji Mehta.

In the introductory chapter, Ms Bismi Gopalakrishnan outlines some of the difficulties we face in enforcing the provision for health for every citizen. The Constitution of India treats health as a directive principle rather than a fundamental right. Directive principles aimed at state governments are like guidelines that lack the teeth granted under law. Besides, these principles have been scattered in diverse types of legislation and not gathered together into a compact form. Finally, while health is a state subject, laws are made by Parliament. Gopalakrishnan provides examples of how courts have tried to remedy resultant drawbacks. A reading of the far-sighted rulings can, however, be demoralizing as authorities cheerfully disregard directions handed out by the court so as to preserve status quo ante. A case in point is the Supreme Court ruling in 2002. It required states to provide the minimum prescribed standards mentioned in the Mental Health Act in all psychiatric and mental health institutions. A survey today may show that this ruling is honoured more in the breach than in the observance. Gopalakrishnan provides a helpful table showing major judicial decisions on health matters. After a detailed consideration of the difficulties faced by the common man, problems in seeking and obtaining justice from courts and lackadaisical attitude of governments, Gopalakrishnan suggests the creation of a National Right to Health Commission.

Unlike Gopalakrishnan, who has a demonstrated interest in laws pertaining to health, the next author, Ms Mercy Khaute has human rights as her expressed field of interest. She has written the chapter on 'Law and social order' in Healthcare Services in India. She reiterated the point made in the earlier chapter that since health is not a fundamental right, entitlements provided under various development programs have been skewed in favour of urban populations. Implementation of the law is haphazard. She provides the example of the Clinical Establishments Act 2010, which has, thus far, been implemented only in six states besides the Union Territories. Maharashtra, Karnataka, Tamil Nadu, Kerala and many other important states have kept this Act in abeyance without any compunction. A large part of her chapter deals with the problem of vandalism in hospitals by disgruntled patients or their families and points out that the deterrent provisions in the Prevention to Public Property Act 1984 have rarely been enforced. I found her survey of concern in parents of doctors faced with the grim reality of vandalism and hooliganism unsatisfactory. 'The survey has been carried out (on 50 parents) over informal telephonic conversations...'

Sandeepa Bhat deals with legal regulation of abortion in India (Chapter 3) and 'Euthanasia in India-is ethics in the way of law?' (Chapter 6). A search through his publications shows most of them to be on space law, remote sensing and similar topics. The introductory section to his first chapter carries an extensive but selective quotation from Mother Teresa's letter to the U.S. Supreme Court on Roe v. Wade without the expected quotation marks. The source referred to is secondary (Wall Street Journal) when the entire original letter is available online (http://groups.csail.mit.edu/ mac/users/rauch/nvp/roe/mothertheresa_roe.html). His chapter provides a review of the MTP Act in India and asks some valid questions at the end.

Bhat's second chapter (euthanasia) provides a good review of the subject. Gandhiji's views are well depicted. Bringing the debate almost up to date is the discussion on Staff Nurse Aruna Shanbag's case and Ms Pinky Virani's plea to the Supreme Court. The current legal position on termination of life is clearly enunciated. In his conclusion Bhat refers to the absence of any evidence of a shift in Indian law from total reliance on the sanctity of life as a basic principle to its replacement by emphasis on the quality of life.

Chapter 4 by Sairam Bhat and Srividya Sastry discuss surrogate pregnancy. The surrogacy trade in India is valued at USS 2.5 billion. Surrogacy abroad and in India is reviewed. Guidelines from the Indian Council of Medical Research and the Indian National Academy of Medical Sciences are listed but, as noted above, being guidelines they can be and are flouted. The Assisted Reproductive Technology Bill (2010) is also considered. The rights of the surrogate mother are dealt with in fair detail. The authors point to an opportunity to do good that was missed by the Supreme Court of India (p. 97). They offer points that could be considered should our legislators decide to protect the rights of the surrogate mother.

Chapter 5 (Shameek Sen and Kirandeep Kaur) analyses the Transplantation of Human Organs and Tissues Act passed in 1994 in India and compares it to similar acts in other countries and to WHO guidelines on the subject. The practice elsewhere of the state rewarding the donor of an organ is of interest. This chapter does not deal with withdrawal of life support systems in brain dead patients where organs are not to be removed for transplantation. This is dealt with in the chapter on euthanasia on pages 148-9. The conclusions derived here are based not on law but on the Indian Medical Council's regulations. Withdrawal of life support systems under other circumstances such as persistent vegetative state is dealt with in the discussion on the Supreme Court ruling in the Aruna Shanbag case in 2011.

Mahesh Menon discusses consent for procedures and forms of treatment and the role of documentation in Chapter 7. The Nuremberg trials and Code, the Declaration of Helsinki, Guidelines for biomedical research produced by Council for International Organizations of Medical Sciences and other documents are discussed here. The doctor not well acquainted with legal terms will benefit from the descriptions of fiduciary relationships and those based on contract; and those of coercion, fraud and misrepresentation. The details that must be imparted to patients before obtaining consent for procedures or treatments are comprehensive (pp. 172-3 and 174). The section on documentation is to be found on pages 179-82. An error that needs correction occurs on page 175 where the author states, 'Section 87 of the Indian Penal Code states that any act done without the intention to cause death or grievous hurt . is an offence, even if harm has resulted from it.' I presume the author intended to state that such an act is NOT an offence.

Chapter 8 on medical negligence (Aditya Kamath) defines a professional, describes the law of tort and the two key cases (Bolam v. Friern Hospital Management Committee and Bolitho v. City and Hackney Health Authority). The wealth of legal detail in this chapter may be of help to medical doctors. The next chapter (Monalisa Saha) duplicates much that is dealt with in Chapter 8. It does provide details on the laws of tort and contract, criminal law and the consumer protection law. I was surprised to see the author recommending Practice defensive medicine as far as possible as the first precaution that should be taken by the doctor. Chapter 10 (Madhubanti Sandhya) is also on medical negligence and misconduct but in relation to consumer laws. The case of IMA v. V.P. Shantha is discussed in fair detail as it was the Supreme Court's decision on this case that brought doctors and medical services squarely under the Consumer Protection Act. The Bolam case and the Bolitho case are also discussed here. The footnote on page 273 needs correction. The District Forum set up under the Consumer Protection Act can only deal with complaints where the amount claimed as damages is LESS than rupees twenty lakhs. As the next sentence correctly states, for sums above twenty lakhs, the case must be brought before the state commission.

The publishers aim for a wide audience:'medical practitioners, paramedical staff, hospital administrators, lawyers, researchers, students and the public in general.'

All in all, medical doctors and administrators will find this a helpful volume but are likely to discover that the essays included here, like the curate's egg, are good in parts. (See the cartoon titled True Humility drawn by George du Maurier in Punch on 9 November 1895.)