Medical Juris 4

8/12/2019 Medical Juris 4

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Consent

Voluntary agreement, compliance or permission for

a specified act or purpose.

To be legally valid, It must be voluntary & free.

It must be intelligent & informed.

It must be clear, fair, uninhibited, direct &

personal.

It must not be obtained under any fear, force, fraud,

pressure, misrepresentation of facts, threat ofphysical injury or death etc. As per Sec.13 of Indian

Contracts Act,' Two or more people are said to

consent when they agree upon the same thing in the

same sense.


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Types of consent

I. Expressed

It is one which is stated in distinct & explicit language. It isessential when the examination is beyond routine generalexamination.

Types :

1.Verbal 2.Written 3.Informed

But for relatively minor examinations/procedures (like P-Vg/Per-rectal), verbal expressed consentwill suffice & forcomplicated surgical procedures, written expressed consentwill required. Informed consent: Consent which is obtainedafter knowing all the pros & cons of the act for which aconsent has been given.i.eNature & quality of the act.The risks

involved in it. Whether he has any other choice for the act inquestion


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II.Implied

It can be imputed from the patients behaviour& conduct.e.g. when a patient comes to

doctors clinic & narrates his complaints, then

it is implied that he has given consent to the

doctor for examination. But beyond routine

general examination (inspection, palpation,

percussion, auscultation) i.e. medical /surgical

procedures, expressed consent required.


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Rules of consent Verbal consent should better be obtained in presence of a dis-

interested party to avoid future denial.

Expressed consent should always be obtained for anyprocedure beyond medical examination involving some risk.

Written consent is to be taken in presence of a witness forconduction of examination & to prepare medical & medico-legal report.

In criminal cases, victim can not be examined without his/herconsent.

Compulsory immunization programme can be carried outwithout consent. In such cases, law provides consent.

Consent can not provide immunity against professional

negligence. Except in circumstances of privileged communication, secret

information about the patient can not be disclosed withouthis/her consent.


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In cases of sterilization or any procedure suspected toaffect potency or fertility, consent from both thespouse is required while for any medical/surgical

procedure of spouse, consent from the other spouse isnot obligatory.

Consent of legal heirs of the deceased is notnecessary in medico-legal postmortem examinationwhile it is necessary in pathological postmortem

examination. Consent of legal heirs of the deceased is necessary for

removal of any organ or tissue from the body while aliving adult subject can give valid consent fortransplantation, provided that it poses no danger tothe life of the donor.

IPC & Cr.P.C related to consent:


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ii) 88 IPC:Act not intended to cause death, done by consent ingood faith for persons benefit:

Nothing which is not intended to cause death, is an offence by

reason of any harm which it may cause, or be intended by thedoer to cause, or be known by the doer to be likely to cause, toany person for whose benefit it is done in good faith, and whohas given a consent, whether expressed or implied, to sufferthat harm, or to take the risk of that harm.

iii) 89 IPC:Act done in good faith for benefit of child or insaneperson, by or by consent of guardian:

Nothing which is done in good faith for the benefit of aperson under 12yrs of age, or of unsound mind, by or by

consent, either expressed or implied, of the guardian or theother person having lawful charge of that person, is an offence

by reason of any harm which it may cause, or be intended bythe doer to cause, or be known by the doer to be likely to causeto that person.


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iv) 90 IPC: Consent known to be given under fear or

misconception.

Consent of insane person. Consent of child: under 12yrs of age.

v) 92 IPC:Act done in good faith for benefit of a personwithout consent:

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 persons consent, if the circumstances aresuch that it is impossible for that person to signify consent, orif that person is incapable of giving consent, and has no

guardian or the other person having lawful charge of thatperson from whom it it is possible to obtain consent in time forthe thing to be done with benefit.


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vi) 93 IPC:Communication made in goodfaith:

Disclosure of a fact done in good faith for thebenefit of the person is not unlawful even if itcauses some harm to whom it is disclosed.

vii) 354 IPC: Outrage of female modesty orindecent assault:

Examination of female patient especially ofher genitalia by a male doctor in absence of

female attendant.


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Cr.P.C.

i) 53 Cr.P.C:

Examination of accused by a medicalpractitioner at the request of police officer:

I) Examination of accused by a medical practitionerat the request of police officer not below the rank ofsub-inspector, and for any person acting in good faithin his aid & under his direction, even without hisconsent, and by use of force, if there is reasonableground to believe that such examination will affordevidence, as to the commission of an offence.

II) Whenever the person of female is to be examinedunder this section, the examination shall be madeonly by, or under the supervision of, a femaleregistered practitioner.


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CONSUMER PROTECTION ACT,1986(COPRA)

Act passed in 24th December, 1986 & amended in

June 1993 & August 1993. Services rendered by doctors has been brought under

the purview of act in 1995 by Supreme Court.

Purpose:

To provide protection of the interest & rights of the

consumer of the purchasable commodities & to settle

the disputes arising out of it in cheap & speedy way

particularly to those consumers who are unable to getit involved in costly & time consuming litigations in

the court.


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Composition

Three tier structure

1. District Consumer Redressal Forum

Established by State Govt.with prior approval of

Central Govt.in each district of the state.

It is presided by retired judge of Sessions Court

with two other members (have knowledge,

experience & capacity to deal with problems such

as economics law, commerce, industry etc.); ofwhom one should be lady.

Here, consumer complains seeking compensation

upto Rs.5 lakh.


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2. State Consumer Redressal Forum

It is presided by retired judge of High Court with

two other members; of whom one should be lady. It hears appeals from the District Forum &

consumer complains seeking compensation between

Rs.5 lach to 20 lakh.

3. National Consumer Redressal Forum

It is presided by retired judge of Supreme Court with four

other members; of whom one should be lady.It hears appeals from the State Forum & consumer

complains seeking compensation over 20 lakh.

P d


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Procedure: The procedure is very simple.

There is no court fee.

The complain has to be filled within 2yrs of cause of action;

unless the court condones the delay for special reasons. The complainant has to submit his complaint to the members of

the concerned forum. Then, the concerned forum issues notice tothe opponent by sending the copies of the complaint & asks himto reply within 30 days. If the opponent fails to reply, a hearing is

held & it is not necessary for the parties to be represented by thelawyers. The complaint lodged are supposed to be solved within90 days of the submission of the complaint; unless the goods inquestion are to be sent to an approved testing laboratory in whichcase the period is extended to 150 days and appeal against the

order issued by forum need to be lodged in higher authoritywithin 30 days.

For non-compliance of order issued by forum, a person liable forimprisonment from 1mth to 3yrs with/without fine.


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Views in favour of inclusion of medical serviceunder COPRA

Medical Council which deals withnegligence

of physicians is the organization ofphysicians; so it may have soft corner for

their members.

Some of State Medical Council are sluggish

in their activity; so justice may be delayed.

Existing court procedures for solving

such complaints are time consuming &

expensive.


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Views against the inclusion of medical service underCOPRA

To guard the pardoning tendency of the members,

other persons including Legal professionals may beincluded in Medical Council to deal with negligencecases.

There are I.P.C., Cr.P.C. to deal with negligent cases,so there have no such establishment to deal with suchcases.

To avoid belittling of the prestige of physician, trialof the cases in the court can better done in the camera& information regarding such cases should not be

published through media. There should have provisions: for hard penalty for

blaclmailers, for compensation to the harassedphysician.


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Criticism

-Act shattered the old relationship between doctor &patient which is based on mutual trust & faith. Inorder to protect his own interest, he may prescribeexpensive tests which in the ordinary course oftreatment not required.

-Though aimed at penalizing negligent doctor, act haspressurized the medical profession to resort todefensive attitudes while dealing with patients.

-The consumer fora which try such cases do not havemedical professionals on their panels who screenmedical complaints. Without expert guidance, theseconsumer courts raise the possibility of jeopardizingthe principles of justice.


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Human Organ Transplantation Act,1994

HOTA, 1994 was passed in 1993 & was enacted

in1994 & came into effect in West Bengal in1995.

Purpose

To legalize & regulate

removalof human organs including body tissue

from living as well as dying person (living

cadaver) where brain death has taken place(circulation & respiration is maintained artificially)

& its storage& transplantationfor therapeutic

purpose.


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Prevention of commercial dealings in human

organs.

Definitions Donor :

Means any person, > 18yrs of age, who

voluntarily authorizes the removal of any ofhis organ for therapeutic purposes.

Human organ:

Means any part of a human body consisting ofa structured arrangement of tissues which, if

wholly removed, can not be replicated by the

body.


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Transplantation:

Means grafting of any organ from any living

person or deceased person to some other livingperson for therapeutic purposes.

Guidelines as per the Act

For diagnosis of brain death the givenguidelines is to be followed.

Team of neurologist, anesthesiologist &

experienced doctor in intensive care unit of thehospital should certify the death.

None of the doctor has any interest in

transplantation of organ removed from the subject.


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British code (Harvard criteria) for diagnosis of

brainstem death:

Criteria

1.Preconditions

Comatose patient on ventilator.

Positive diagnosis of cause of coma

(irremediable structural damage).

2.Exclusions

Primary hypothermia.

Drugs.

Severe metabolic / endocrine disturbances.


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3.Tests

Absence of brainstem reflexes

-pupillary, corneal, vestibulocochlear, grimace

& gag reflex.

Apnoea.

Recommendations are to be followed for

testing the acceptability of foreign organ/tissue

by the patient.

The hospital should have compulsory

registration for removal, storage &

transplantation of human organs.


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The laboratories should have proper facilities

& should be certified by Appropriate

authority appointed by the Central /StateGovt.

The physician should have proper

qualification & experience. Human organs can not be removed for any

purpose other than therapeutic purpose.

After removal, it should be preservedaccording to current & accepted scientific

method to ensure vitality.

Wh th d


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Who are the donors

Any person, > 18yrs of age, who voluntarily

authorizes the removal of any of his organ for

therapeutic purposes. Written consent from

such person is to be taken after explaining him

to detail of the procedure to be followed & the

risks involved in it. If the risk involved is ofserious in nature, then organ donation can not

be accepted even if the donor is willing.

Advantages of living donor: Sufficient time is available for full appraisal of the

case in respect of the recipient.

Time gap between removal of the organ from the


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A person during his lifetime can give valid

consent for removal of his organ / tissue after

death in presence of at least 2 disinterestedparties. But even if the consent has been given

by the deceased during his lifetime, permission

must be obtained from the next-of-kin of thedeceased who is in possession of the dead

body.

Hospital is the legal possessor of the dead

body if no body turns up to claim within

72hrs.In such cases, organ /tissue can be

removed after 48hrs.


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Factors on which success of transplantation

depends

Quality of the organ. Time interval between cessation of arterial

blood supply to the organ & when it was

removed from the cadaver / when refrigerationof the organ was done.

How long the isolated organ was stored.

Transplantation of organs


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Lung--Within 15-30min.

Heart--Within 1 hr.

LiverWithin --15min.

Kidney--Within 45min.

Cornea--Within 2 hrs.

Skin & blood vessels--Within 2-4 hrs.

Bone --Within 6 hrs.

Persistent vegetative state: It is a condition in which brain death is

possible from varying degrees such as

intellectual deterioration to suppression of

Penalties


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Penalties

Whoever engages in coducting, associating

with or helping in removal of human organs

without taking permission of Appropriateauthority will be punished with imprisonment

upto 2yrs & fine upto Rs.10,000.

Whoever engages in commercial dealings inhuman organs will be punished with

imprisonment upto 2-7yrs & fine upto

Rs.10,000 to Rs.20,000. When a RMP is convicted under the act, the

Appropriate authority will report his name to

SMC SMC then removes his name from the

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Medical Juris 4

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