Medical Jurisprudence & Clinical Forensic Medicine: An Indian Perspective [1 ed.] 9780367688080, 9780367688073

Table of contents :
Cover
Half Title
Title
Copyright
Dedication
Contents
Epigraph
Disclaimer
Foreword
Preface
Acknowledgements
About the Editors
Contributors
List of Abbreviations
Section I Medical Jurisprudence
1 Introduction to Forensic Medicine
2 Medical Deontology
3 Medical Practice
4 Legal Procedure in India
5 Patient, Physician and the Law
6 Documentation, Certification and Record-Keeping
7 Gifts to the Physician
8 Physician and the Will
Section II Clinical Forensic Medicine
9 Establishing the Identity of the Individual
10 Medicolegal Aspects of Mechanical Wounds
11 Crimes Involving the Elderly
12 Crimes Involving Infants and Children
13 Sexual Crimes
14 Disorders of Fecundity
15 Medicolegal Aspects of Pregnancy
16 Forensic Psychiatry
17 Violation of Human Rights and Torture Medicine
18 Violence against Healthcare Professionals
19 Establishment of Healthcare Facilities
20 Basics of Healthcare Facilities Management
21 Medicolegal Management of Poisoning, Toxicity and Drug Overdose
Index

Citation preview

Medical Jurisprudence & Clinical Forensic Medicine This book on Medical Jurisprudence & Clinical Forensic Medicine addresses the evolving nature of law and medicine. It updates the medicolegal (ML) systems and discusses the concerns related to digitalization of courts, serving a subpoena through social media, ethical/ML issues in nanomedicine, telemedicine and online prescription practices, toxicology and mass disaster. It fulfils the increased demands of students, forensic medicine specialists, clinicians and lawyers to get authentic medicolegal information in situations of ethical dilemma or during ML urgencies. It features case-based discussions on ML and deontological issues supported by the latest legal/statutory information. Key Features: • Discusses the clinical and applied aspects of forensic medicine through illustrative case scenarios and reports. • Addresses the needs of clinicians and forensic medicine specialists in writing medico-legal reports for specific cases. • Provides evidence-based solutions to medicolegal and ethical dilemma faced during routine practice.

Medical Jurisprudence & Clinical Forensic Medicine An Indian Perspective

Edited by Dr Ambika Prasad Patra

MBBS, MD, FRCP, FFFLM, MBA (Hosp. Admin) Professor (additional) & Head of Department, Faculty of Medicine, Department of Forensic Medicine & Toxicology, Jawaharlal Institute of Post-graduate Medical Education & Research (JIPMER), India; Member of International Academy of Legal Medicine of Switzerland; Faculty member (by equivalent qualification) of Forensic & Legal Medicine of London; Member of Indian Academy of Forensic Medicine & Indian Society of Toxicology (ex-officio).

Dr Kusa Kumar Shaha

MBBS, MD, FFFLM, MBA (Hosp. Admin) Dean, JIPMER (Kariakal), Professor and Former Head of the Department of Forensic Medicine & Toxicology, JIPMER, India; NMC Inspector & DNB Examiner; Faculty member (affiliate) of Forensic & Legal Medicine of London; Member of Indian Academy of Forensic Medicine & Indian Society of Toxicology (ex-officio).

First edition published 2024 by CRC Press 6000 Broken Sound Parkway NW, Suite 300, Boca Raton, FL 33487–2742 and by CRC Press 4 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN CRC Press is an imprint of Taylor & Francis Group, LLC © 2024 Taylor & Francis Group, LLC This book contains information obtained from authentic and highly regarded sources. While all reasonable efforts have been made to publish reliable data and information, neither the author[s] nor the publisher can accept any legal responsibility or liability for any errors or omissions that may be made. The publishers wish to make clear that any views or opinions expressed in this book by individual editors, authors or contributors are personal to them and do not necessarily reflect the views/opinions of the publishers. The information or guidance contained in this book is intended for use by medical, paramedical, scientific or health-care professionals and is provided strictly as a supplement to the medical or other professional’s own judgement, their professional acumen, knowledge of the patient’s medical history, relevant manufacturer’s instructions and the appropriate best practice guidelines. Because of the rapid advances in medical science and the law, any information, rules or guidelines, or advice on dosages, procedures or diagnoses should be independently verified. The reader is strongly urged to consult the relevant statutory or legal authority, national drug formulary and the drug companies’ and device or material manufacturers’ printed instructions, and their websites, before using the information or administering or utilizing any of the drugs, devices or materials mentioned in this book. This book does not indicate whether a particular treatment is appropriate or suitable for a particular individual. Ultimately it is the sole responsibility of the medical or other professional to make his or her own professional judgements, so as to advise and treat patients appropriately. The authors and publishers have also attempted to trace the copyright holders of all material reproduced in this publication and apologise to copyright holders if permission to publish in this form has not been obtained. If any copyright material has not been acknowledged please write to us immediately and let us know so we may rectify in any future reprint. Except as permitted under U.S. Copyright Law, no part of this book may be reprinted, reproduced, transmitted, or utilised in any form by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying, microfilming, and recording, or in any information storage or retrieval system, without written permission from the publishers. For permission to photocopy or use material electronically from this work, access www.copyright.com or contact the Copyright Clearance Center, Inc. (CCC), 222 Rosewood Drive, Danvers, MA 01923, 978–750–8400. For works that are not available on CCC please contact [email protected] Trademark notice: Product or corporate names may be trademarks or registered trademarks and are used only for identification and explanation without intent to infringe. Library of Congress Cataloging‑in‑Publication Data Names: Patra, Ambika Prasad, editor. | Shaha, Kusa Kumar, editor. Title: Medical jurisprudence & clinical forensic medicine : an Indian perspective / edited by Dr. Ambika Prasad   Patra, Dr. Kusa Kumar Shaha. Other titles: Medical jurisprudence and clinical forensic medicine Description: First edition. | Boca Raton, FL : CRC Press, 2023. | Includes bibliographical references and index. |   Summary: “This book on “Medical Jurisprudence & Clinical Forensic Medicine” addresses the evolving nature   of law and medicine. It updates the medicolegal (ML) systems and discusses the concerns related to   digitalization of courts, serving a subpoena through social media, ethical/ML issues in nanomedicine,   telemedicine and online prescription practices, toxicology and mass disaster. It fulfils the increased demands   of students, forensic medicine specialists, clinicians and lawyers to get authentic medicolegal information in   situations of ethical dilemma or during ML urgencies. It features case-based discussions on ML and   deontological issues supported by the latest legal/statutory information”— Provided by publisher. Identifiers: LCCN 2023000461 (print) | LCCN 2023000462 (ebook) |   ISBN 9780367688080 (hardback) | ISBN 9780367688073 (paperback) |   ISBN 9781003139126 (ebook) Subjects: MESH: Forensic Medicine | Jurisprudence | India Classification: LCC RA1063.4 (print) | LCC RA1063.4 (ebook) | NLM W 32.5   JI4 | DDC 614/.1—dc23/eng/20230417 LC record available at https://lccn.loc.gov/2023000461 LC ebook record available at https://lccn.loc.gov/2023000462 ISBN: 978-0-367-68808-0 (hbk) ISBN: 978-0-367-68807-3 (pbk) ISBN: 978-1-003-13912-6 (ebk) DOI: 10.1201/9781003139126 Typeset in Warnock Pro by Apex CoVantage, LLC

DEDICATIONS

To my beloved mother, Smt. Syamadevi, who taught me that ‘learning and education are different—one is for living the life, and the other is for livelihood’. And to my beloved wife, Smt. Susmita Dash, for her selfless, untiring, incessant support, and my son, Arnav, who has sacrificed a lot for me while I was making this textbook. —Dr Ambika Prasad Patra To my parent; wife Monika; and son, Bhavesh. Their love, guidance, faith, support, motivation, and example continue to be the cornerstone of my personal and professional life. —Dr Kusa Kumar Shaha

CONTENTS Disclaimer��������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������� x Foreword�����������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������xi Preface��������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������xii Acknowledgements������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������� xiii About the Editors�����������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������xiv Contributors��������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������� xv List of Abbreviations������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������xvi

Section I  MEDICAL JURISPRUDENCE   1 Introduction to Forensic Medicine��������������������������������������������������������������������������������������������������������������������������������������������������� 3 Ambika Prasad Patra, Kusa Kumar Shaha and T. Neithiya   2 Medical Deontology����������������������������������������������������������������������������������������������������������������������������������������������������������������������������� 10 Ambika Prasad Patra   3 Medical Practice������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������ 21 Ambika Prasad Patra   4 Legal Procedure in India��������������������������������������������������������������������������������������������������������������������������������������������������������������������34 Ambika Prasad Patra, M. Senthil Kumaran and Bedanta Sarma   5 Patient, Physician and the Law���������������������������������������������������������������������������������������������������������������������������������������������������������48 Ambika Prasad Patra, Bibhuti Bhusana Panda and T. Neithiya   6 Documentation, Certification and Record-Keeping������������������������������������������������������������������������������������������������������������������64 Ambika Prasad Patra, A. Arthy and D. R. Rajesh   7 Gifts to the Physician���������������������������������������������������������������������������������������������������������������������������������������������������������������������������72 Ambika Prasad Patra, Bibhuti Bhusana Panda and Sudhansu Sekhar Sethi   8 Physician and the Will������������������������������������������������������������������������������������������������������������������������������������������������������������������������� 75 Ambika Prasad Patra, Bibhuti Bhusana Panda and Praveen Kumar Pradhan

Section II CLINICAL FORENSIC MEDICINE   9 Establishing the Identity of the Individual����������������������������������������������������������������������������������������������������������������������������������� 81 Ambika Prasad Patra, A. Arthy, D. R. Rajesh and T. Neithiya 10 Medicolegal Aspects of Mechanical Wounds����������������������������������������������������������������������������������������������������������������������������102 Ambika Prasad Patra, Sunil Subramanyam and Joshima Janardhanan 11 Crimes Involving the Elderly�����������������������������������������������������������������������������������������������������������������������������������������������������������120 Ambika Prasad Patra and M. Senthil Kumaran 12 Crimes Involving Infants and Children���������������������������������������������������������������������������������������������������������������������������������������126 Ambika Prasad Patra, Vinod Ashok Chaudhari and T. Neithiya 13 Sexual Crimes���������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������138 Ambika Prasad Patra, Vinod Ashok Chaudhari and T. Neithiya 14 Disorders of Fecundity����������������������������������������������������������������������������������������������������������������������������������������������������������������������153 Ambika Prasad Patra and M. Kumaran 15 Medicolegal Aspects of Pregnancy������������������������������������������������������������������������������������������������������������������������������������������������160 Ambika Prasad Patra and M. Kumaran 16 Forensic Psychiatry����������������������������������������������������������������������������������������������������������������������������������������������������������������������������� 170 Ambika Prasad Patra, T. Neithiya and V. Vijayanath 17 Violation of Human Rights and Torture Medicine������������������������������������������������������������������������������������������������������������������179 Ambika Prasad Patra, S. Janani, O. Murugesa Bharathi and T. Neithiya vii

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Contents 18 Violence against Healthcare Professionals���������������������������������������������������������������������������������������������������������������������������������186 Ambika Prasad Patra, M. Senthil Kumaran and Shweta H. Patel 19 Establishment of Healthcare Facilities����������������������������������������������������������������������������������������������������������������������������������������193 Ambika Prasad Patra 20 Basics of Healthcare Facilities Management�����������������������������������������������������������������������������������������������������������������������������201 Ambika Prasad Patra and T. Neithiya 21 Medicolegal Management of Poisoning, Toxicity and Drug Overdose�����������������������������������������������������������������������������208 Ambika Prasad Patra, Chaitanya Mittal and T. Neithiya

Index���������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������225



“Free, fair, honest, selfless treatment and testimony are the ornaments of a physician, be it a common man or a King.” —Caraka-Saṃhitā (The Compendium of Charaka), 100 BCE–200 CE

DISCLAIMER The editors of this volume have made a concerted effort to provide a compendium of contributions capturing the essence of contemporary clinical-forensic practice for the readership. This text, however, is not intended as a substitute for traditional clinical forensic academic programs, postgraduate training or practicums, postgraduate specialty internships, or residency programs that lead to establishing the clinician as a certified or licensed professional. The readership is strongly encouraged to keep abreast of the evolving empirical literature in the topical areas covered in this book.

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Neither is this volume intended as a substitute for readership knowledge and adherence to established ethical principles and legal guidelines of individual specialty disciplines as applicable to each clinician and their professional identity (i.e., psychology, psychiatry, social work, nursing, professional counsellors, addiction specialists, etc.). The editors make no assumptions of assuming any liability for any ethical charges or legal complaints emanating from failure to adhere to respective ethical and professional standards.

FOREWORD Clinical Forensic Medicine deals with the examination of living cases. The main objective is to use medical findings to administer justice. This field deals with clinical forensic works like examining victims and suspected perpetrators in criminal or sexual assault, custodial or domestic violence, child abuse, or any other issues having medicolegal ramifications in living cases. As a speciality, the subject of Clinical Forensic Medicine is gaining growing recognition in the medical fraternity, especially among clinicians. Nevertheless, Forensic Medicine textbooks with dedicated chapters for Clinical Forensic Medicine are also very scanty in India. Hence, I congratulate the authors for bringing out this Textbook titled ‘Textbook of Medical Jurisprudence  & Clinical Forensic Medicine: An Indian Perspective’ at the right time to meet the demands. I am thrilled to see the uniquely designed content on current issues clearly divided into sub-topics and subheadings related to a practising physician, especially the chapters like Violence Against Healthcare Professionals, Healthcare Facilities Management, Basics of Healthcare Facilities Management, which greatly help every segment of its readers. In India, hardly any medical professional is spared from rendering medicolegal services. This is a fact that growing numbers of health professionals are becoming engaged in general forensic services. Even the nurses and other paramedics are more involved in custody care, like examinations in sexual offense cases in One-stop-crisis centers (OCC). Thus, it is vital to master this specialist set of skills to deal with these forensic cases during clinical care. Moreover, this book has tried to answer the burning medicolegal issues concisely but lucidly. I became curious when I noticed the contents of some exciting chapters like Medical Deontology, Documentation, Certification and Record-keeping, Gifts to the Physicians, etc., in the Medical Jurisprudence section, which are hardly ever presented with dedicated chapters in Forensic Medicine textbooks. This Textbook is an outstanding and definitive text on clinical forensic medicine and medical jurisprudence. I hope this book will be an excellent resource for clinicians, all types of students dealing with forensic medicine (UG, PG, and Diplomates), toxicologists, and police officers. My best wishes to the authors for creating unique work in the medicolegal field. Their dedication and knowledge of the subject are sincerely appreciated

Prof. Dr O. P. Murty, MBBS, MD, FIAFM Professor, Faculty of Medicine, Department of Forensic Medicine and Toxicology, All India Institute of Medical Sciences, New Delhi- 110029 Editor-in-Chief, International Journal of Medical Toxicology and Legal Medicine (ISSN 0972–0448), New Delhi

Clinical forensic medicine is the application of clinical knowledge to the law. An expert can take a technical idea within his experience and make it accessible to all. —Professor Edward Ogden, PSM I am happy to know that, at last, there is an effort in India to solve the most litigant problem of examination of living persons to help the law which almost all clinicians. It’s my pleasure, fulfilled by my beloved academicians Prof. Ambika Prasad Patra and Prof. Kusa Kumar Shaha from an institute of National importance, JIPMER. Clinical Forensic Medicine (CFM) is “the application of appropriate forensic practices and principles, heretofore reserved for use by the pathologist at autopsy, to living patients in a clinical setting.” “Living forensic” patients include survivors of trauma and potentially catastrophic experiences resulting in injury. The CFM arose from “clinically” affirming that not all abuse or assault victims sustain fatal injuries. Appropriate medical documentation and interpretation of physical findings may aid law enforcement and social services in the legal evaluation of a case or situation. Additionally, timely collection of pertinent evidence may be performed as the case necessitates. Clinical forensic medicine is the application of clinical knowledge to the law. An expert can take a clinical concept from his experience and explain it in plain language so everyone can understand it. Clinical forensic medicine covers a range of medical topics, including examining victims of crime, sexual assaults, molestations, interpreting injuries and the effects of drugs on human behaviour, etc. In this book, almost all aspects of clinical forensic medicine have been discussed, mainly mentioning the Crime against the elderly and burning topics like Violence Against Healthcare Professionals, Healthcare Facilities Management, etc. I am thrilled to see the book’s content, most eagerly waiting for its birth so that I can take the book’s pleasure. Hopefully, we forensic people have the stigma of death specialists or mortuary men will be removed by the endeavours of these authors. This book will demand a place on the bookshelves of all medical types of graduates (UG, PG, Diplomates) and the medical professionals of any discipline to act as a source of light in the situations where it’s required. Wishing the authors a roaring entry and all the success of the book.

Prof. Dr Tapas Kumar Bose, MD, DFM, FIAFM Professor and Head, Faculty of Medicine, Department of Forensic Medicine and Toxicology at JIMSH Former Professor and Head, Forensic and State Medicine, Nilratan Sarkar Medical College, Kolkata 700137 Ex-President, Bengal Academy of Forensic Medicine Member Ethical Committee, West Bengal Medical Council, Government of West Bengal

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PREFACE This is a textbook on Clinical Forensic Medicine, not Forensic Pathology. The clinical ramifications and medical jurisprudence are the main focus of this book. The primary drive to write this book was the serious scarcity of evidence-based information relevant to medical practitioners and modern medical graduates in the existing Forensic Medicine textbooks. In fact, many clinicians, medical interns and graduates during my Legal Medicine consultancy requested me to go for a textbook with the right information for the wrong times (legal/medicolegal crisis) of a doctor. And this led to the preparation of this textbook, — Textbook of Medical Jurisprudence  & Clinical Forensic Medi‑ cine: An Indian Perspective, along with my colleague Prof. Kusa Kumar Shaha. Unlike conventional forensic medicine textbooks, junk and obsolete information are kept out of this textbook. Hence, the subject matter of this textbook is made deliberately unconventional, and all chapters have been designed to offer practical knowledge coupled with a philosophical instinct that enables one to analyse, interpret the medicolegal issue/cases and derive pragmatic conclusions. The relevant, evidence-based information that can answer the practical issues in the field only remains as part of this book. Many out-of-box topics (unconventional to conventional Indian Forensic textbooks) like Medical Deontology, telemedicine, Gene-manipulation, Forensic Genealogy, Forensic taphonomy, Disaster Victim Identification (DVI), Violence Against Doc‑ tors, Medical Records, Gifts to doctor, One-stop Crisis Manage‑ ment Strategy, Clinical Establishment Act and management of Healthcare Facilities, etc. are added to this textbook. This textbook information is tailored to meet the needs of Medical and nursing students, Interns, PG (Forensic medicine Clinical PG and nursing), Clinicians and Peripheral service Medical practitioners. For the convenience of the medical students and PG examination, almost all complicated, long answer type data have been presented with flowcharts, bulleted points, protocol diagrams, tables, and figures. For clinicians and private practitioners, the most helpful CLINICIAN’S CORNER is added to all relevant chapters, which is

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a compilation of queries from clinicians, peripheral doctors, medical students, and nurses during my Legal Medicine consultancy. The queries are based on the legal/medicolegal issues they have encountered during their practice and evidencebased replies/solutions to them. Anybody interested in receiving my Legal Medicine consultancy free of cost may write to the CLINICIANS CORNER forum email – clinicianscorner.patra@ gmail.com. Please ensure your queries are short and with pertinent data/information and name and affiliation details. In some instances, if one wishes to keep the name unknown among the forum members shall be respected. The contents are intended for India and the countries of the Indian subcontinent. Especially, medical jurisprudence may be influenced by laws, regulations, statutes, etc., of various states and countries. Hence, reader discretion is requested before making a decision. Medical knowledge is constantly changing, and so is the concept of the medicolegal approach. As new information becomes available, it becomes increasingly necessary to interpret medicolegal findings in that light. The author, editors, contributors, and publishers have, as far as it is possible, taken care to ensure that the information given in this text is accurate and up-todate. However, readers are strongly advised to confirm the information, especially about medical jurisprudence, guidelines, statutes, rule and regulations, with current legislation and standards of practice. The authors are equally respectful and sensitive to the female gender and away from any gender bias. This textbook is meant for both classes of medical men and women. However, for technical reasons, ‘he’ has been used as a pronoun across the book. Where the pronoun ‘he’ is used throughout this book, it is intended that the word ‘she’ is equally applicable, unless obviously inappropriate from the context. Ambika Prasad Patra (Primary Author and Editor) JIPMER, Pondicherry, India 03 October 2022

ACKNOWLEDGEMENTS In preparing this textbook Textbook of Medical Jurisprudence & Clinical Forensic Medicine: An Indian Perspective, I have received extensive cooperation, encouragement and appreciation from all my departmental colleagues of all categories and colleagues of the discipline of Forensic Medicine and Toxicology from across the Country. I  acknowledged my sincere thanks and obligation to all my department colleagues at JIPMER who have directly or indirectly extended their support while making this book. It is my pleasure to recollect and acknowledge the help I received during the preparation of the first edition of this book. I am indebted to all chapter contributors and colleagues who, by encouragement, advice or criticism, or by permission to use material, have contributed to this book. In particular, I would like to thank the following for their advice and criticism: Prof(Dr). O.P.Murty and Prof (Dr).Tapas Kumar Bose. I am thankful to Dr.T.Neithiya, Resident Physician in the Department of Forensic Medicine and Toxicology, JIPMER, for her continued support throughout the editing the chapter manuscripts and reorganising many chapters. The accolade goes to her for helping me design many figures, graphs, google forms and cloud repository management.

I am deeply obliged and thankful to my wife Mrs. Susmita Dash, for her incessant support in proofreading, chapter organising, preparation of the table of content, supplementary files and glossary of this manuscript. I am indebted to her day-to-day sacrifices and pain undergone during the entire course of writing this textbook. My thanks also go to CRC Press for the opportunity to publish this book, particularly to Ms. Shivangi Pramanik, Senior Editor—Medicine and Ms. Himani Dwivedi Editorial Assistant – Medical. My special acknowledgement to Ms. Shivangi Pramanik, for understanding my pain and bearing with the delay in submission due to multiple unfortunate incidences like COVID-19 infection and my troubled family time after losing my father and brother-in-law while preparing this book. I  am thankful to my family, my son Arnav bearing with my busy schedules while making this book. Ambika Prasad Patra (Primary Author and Editor) JIPMER, Pondicherry, India 03 October 2022

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ABOUT THE EDITORS Ambika P. Patra Professor Ambika P. Patra is currently in the Faculty of Medicine in the Department of Forensic Medicine  & Toxicology at JIPMER, Pondicherry. He received his MBBS & Doctor of Medicine degrees from Maharaja Krushna Chandra Gajapati Medical College and Hospital under Berhampur University, Government of Odisha and subsequently his Master of Business Administration in Hospital Management from Pondicherry University, Govt. of India. He is a faculty member (by equivalent qualification) of the Royal College of Physicians and the Faculty of Forensic and Legal Medicine, London, UK, International Association of Legal Medicine, Switzerland. Currently, he holds additional administrative posts Dy. Medical Superintendent at JIPMER. Question setter and university examiner (UG & PG) for the various medical universities across India. He is a nominated subject expert for the Madras High Court, Central Bureau of Investigation (CBI) Chennai and Cochin. He is an accolade of the Indian Society of Toxicology who has worked as Editor of the Journal of Indian Society of Toxicology during 2015–2021 and received the ‘Best Editor of Indian Toxicology Journals’ award in 2016. He is a bonafide editor, editorial board member and reviewer for 15 national & international PUBMED indexed/peer-reviewed journals like Human Experimental Toxicology, American Journal of Case Reports, Journal of Medical Evidence, International Journal of Medical Toxicology and Forensic Medicine, International Journal of Law and Society, The National Medical Journal of India, etc. He has presented more than 60 scientific papers and published above 60 papers on national and international platforms. He is an avid speaker and received ‘best paper awards’ in International conferences at Tokyo, Dalian, Kathmandu, etc. He frequently talks at grand rounds, seminars and conferences worldwide on biomedical ethics related to nanomedicine,

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oncology, telemedicine, gene manipulation, etc. His area of interest includes biomedical ethics/deontology, forensic toxicology and thanatochemistry. He is the official Mentor for peer-reviewers & researchers at Publons Academy of Clarivate (Web of Science). He has received the best Reviewer award by Publons Academy, Clarivate, in 2018. Kusa K. Shaha Professor Kusa Kumar Shaha is currently Dean and the former Head & Medical Faculty of Forensic Medicine & Toxicology at JIPMER, Pondicherry. He received his MBBS & Master’s degree from MKCG Medical College under Berhampur University and his MBA in Hospital Management from Pondicherry University. He has a special interest in Clinical Forensic Medicine & Ethics. He is a member of many professional organizations, including the FFLM. He received training in different fields of Forensic Medicine. He serves on editorial boards of national  & international peer-reviewed journals and member of various Forensic Organisations in India and Abroad. He is a past President  & editor for the JIST. In recognition of this commitment, he has shared the award of best Editor of Indian Toxicology Journals along with Dr. AP Patra in 2016 for the Journal of Indian Society of Toxicology. He has researched and published manuscripts in the areas of forensic pathology and Clinical Forensic Medicine at national and international scientific journals. He has the privilege of successfully organising national and international CME and workshop in India and assisted with many high-profile cases. He is an Subject expert, examiner, chairman and member of several Indian universities including AIIMS/NBE/UPSC/NEET-UG/INI CET. He worked as Controller of Examinations from 2018 to 2021 and currently working as Nodal Officer to AIIMS Madurai and Professor of examination at JIPMER.

CONTRIBUTORS Dr BIBHUTI BHUSANA PANDA, MBBS, MD Associate Professor, Department of Forensic Medicine and Toxicology, Sriram Chandra Bhanja Medical College, Cuttack, Odisha, India Dr M. KUMARAN, MD, DNB Assistant Professor, Faculty of Medicine, Department of Forensic Medicine and Toxicology, Jawaharlal Institute of Post-Graduate Medical Education and Research (JIPMER), Karaikal, India

Dr M. SENTHIL KUMARAN, MBBS, MD, DNB Associate Professor, Department of Forensic Medicine and Toxicology, All India Institute of Medical Sciences, Maduari, Tamilnadu, India

Dr V. VIJAYANATH, MBBS, MD, DNB Professor and Head, Department of Forensic Medicine and Toxicology, ESIC Medical College, PGIMSR, Rajajinagar, Bengaluru-10, Karnataka, India

Dr SUNIL SUBRAMANYAM, MBBS, MD Professor and Head, Faculty of Medicine, Department of Forensic Medicine and Toxicology, Pondicherry Institute of Medical Sciences, Pondicherry, India

Dr VINOD ASHOK CHAUDHARI, MD (FM), MBA (HCS) Additional Professor, Department of Forensic Medicine and Toxicology, Jawaharlal Institute of Post-Graduate Medical Education and Research (JIPMER), Pondicherry, India

Co-Contributors Dr A. ARTHY, MD, MBBS Assistant Professor, Faculty of Medicine, Department of Forensic Medicine and Toxicology, Adupadai Veedu Medical College, Pondicherry, India Dr BEDANTA SARMA, MBBS, MD Assistant Professor, Department of Forensic Medicine and Toxicology, All India Institute of Medical Sciences– Mangalagiri, Andhra Pradesh, India Dr CHAITANYA MITTAL, MD, MBBS Assistant Professor, Faculty of Medicine, Department of Forensic Medicine and Toxicology, Dr B. C. Roy MultiSpeciality Medical Research Centre, Indian Institute of Technology, Kharagpur, West Bengal 721302, India Dr S. JANANI MBBS, MD Assistant Professor, Department of Forensic Medicine and Toxicology, Government Stanley Medical College, Chennai, India

Dr JOSHIMA JANARDHANAN, MBBS, MD Associate Professor, Department of Forensic Medicine and Toxicology, DM Wayanad Institute of Medical Sciences, Meppadi, Wayanad, Kerala Dr O. MURUGESA BHARATHI, MD, MBBS Associate Professor, Faculty of Medicine, Department of Forensic Medicine and Toxicology, Indira Gandhi Medical College and Research Institute, Government of Puducherry, Pondicherry, India Dr T. NEITHIYA, MBBS, MD Resident Forensic Physician, Department of Forensic Medicine and Toxicology, Jawaharlal Institute of Post-Graduate Medical Education and Research, Pondicherry, India

Dr PRAVEEN KUMAR PRADHAN, MBBS, MD Assistant Professor, Department of Forensic Medicine and Toxicology, Sundergarh Government Medical College, Sundergarh, Odisha, India Dr D. R. RAJESH, MBBS, MD Associate professor, Department of Forensic Medicine and Toxicology, Indira Gandhi Medical College and Research Institute, Pondicherry, India Dr SHWETA H. PATEL, MBBS, MD Assistant Professor and Head, Department of Forensic Medicine and Toxicology, Government Medical College Godhra, Panchmahal, Gujarat, India Dr. SUDHANSHU SEKHAR SETHI, MBBS, MD Assistant Professor, Department of Forensic Medicine and Toxicology, Sundergarh Government Medical College, Sundergarh, Odisha, India

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LIST OF ABBREVIATIONS APSA BBS CrPC CSA CSF CWC D DM DNB DPR FIR FTA H&E Hb HbF HIV ICMR IEA IMA IPC IUD IUL MBBS MCI MD ML

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Aggravated penetrative sexual assault Battered baby syndrome Criminal Procedure Code Child Sexual abuse Cerebrospinal fluid Child Welfare Committee Diameter Doctorate of Medicine Diplomate of National Board Doctor Patient Relationship First information report Flinders Technology Associates Hematoxylin and eosin stain Haemoglobin Foetal Haemoglobin Human immunodeficiency virus Indian Counsil of Medical Research Indian Evidence Act Indian Medical Association Indian Penal Code Intrauterine death Intrauterine life Bachelor in Medicine Bachelor in Surgery Medical Council of India Doctor of Medicine medicolegal

MLC MSBP MTP NGO NMC OC OSCC POCSO PSA PSA RMP S. or Sec. SA SAAW SAFE SBS SC SH SMC STD VEGF w.r.t. WH WHO WMA WV

medicolegal case Munchausen syndrome by proxy Medical termination of pregnancy Non-governmental organization National Medical Commission ossification centres One-stop crisis center Protection of children from sexual offenses Penetrative sexual assault Prostate-specific antigen Registered Medical Practioner Section Sexual assault Sexual assault against women Sexual assault forensic examination Shaken baby syndrome Supreme Court Sexual harassment State Medical Council Sexually transmitted diseases Vascular endothelial growth factor with respect to Workplace harassment World Health Organisation World Medical Association Workplace violence

Section I Medical Jurisprudence

Introduction to Forensic Medicine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Medical Deontology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Medical Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Legal Procedure in India . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Patient, Physician and the Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Documentation, Certification and Record-Keeping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 Gifts to the Physician . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 Physician and the Will . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

CHAPTER 1 INTRODUCTION TO FORENSIC MEDICINE Ambika Prasad Patra, Kusa Kumar Shaha and T. Neithiya

Chapter Highlights • • • •

Evolution of medical jurisprudence in India and Asia Global impact of Indian system medicine Critical analysis of Indian medical jurisprudence Branches of forensic medicine

Introduction The etymology of the term ‘forensic’ is from the Latin word forensis, which stands for ‘forum’. Moreover, the word ‘forum’ is colloquially associated with an intellectual gathering or medium where the public may debate an issue or express opinions. The dictionary meaning of forum also refers to a law court or tribunal. Forensic medicine is a very narrow and insufficient term for this subject. Taylor’s Principles and Practice of Medical Jurisprudence (1865), a one-and-half-century-old textbook, defined its scope: • Medical jurisprudence, or, as it is sometimes called, forensic, legal, or state medicine, may be defined as the science that teaches the application of every branch of medical knowledge to the purposes of the law. • All synonymously used terminologies for this subject, i.e., medical jurisprudence, forensic medicine, legal medi‑ cine, and state medicine, have subtle inherent differences in practice. • Medicolegal: Etymology for medicolegal is from Latin word medicolegalis, i.e., Latin medicus (medical) + o + legalis (legal). The medicolegist is usually qualified in forensic medicine (in Asia and Europe) or forensic pathology in American countries. In India, a medicolegist is a medicine graduate (MBBS) with minimum qualification of doctor of medicine (MD) degree in forensic medicine and toxicology. • Medical examiners make physical examinations, conduct tests, testify as an expert for either the court or the state, and perform duties of a pathological or medicole‑ gal nature. 1. Legal medicine is the modern and simplified version of the erstwhile term medical jurisprudence. It deals with the legal aspects of knowledge to the practice of medicine. The law assumes that every citizen is aware of every law, i.e., ignorance of the law of the land can’t be considered an excuse for committing an illegal act, even when it is an innocent act. Hence, it is mandatory for every doctor, especially clinicians, irrespective of specialty, to be aware of the legal aspects of their practice. Examples: • The doctor–patient relationship, doctor–doctor relationship, and doctor–state relationship. • Rights and obligations as a member of the medical profession. 2. State medicine is the term coined in 1949 to regulate medical practitioners’ conduct and professional

activities. Guidelines to standardise the medical practice in the country, including its social and legal aspects, which should be free from political implications and machinations. 3. Forensic medicine deals with applying clinical knowledge to administer justice. The term is popular in England and Scotland. ‘Legal medicine’ is a synonym popular in France and Germany. In some states of the USA, ‘medical jurisprudence’ was in vogue. However, in recent years, the term ‘forensic pathology’ has gained popularity. In India, the post-doctorate degree is awarded as ‘forensic medicine and toxicology’, and it has official recognition. 4. Scope in forensic medicine. a. Clinical forensic medicine involves interaction between living cases and law enforcement agencies, like the police, judiciary, etc., while forensic pathology is concerned with determining the cause, manner, and mode of death. • Clinical evaluation for consent, confidentiality, mental capacity, and forensic sample collection. • Medical evidence is collected and evaluated for professional negligence cases like anaesthetic/ operation deaths, drug reactions, etc. • Interpretation of injuries and other findings in the victims of assault or sexual assault and child abuse cases. • Examining substance abuse or alcoholism cases. • Age estimation. b. Forensic toxicology deals with the nature, source, clinical manifestations, diagnosis, and treatment of poisoning and the evidence of their presence from autopsy findings, body fluids and tissue, etc. c. Forensic pathology deals with the different aspects of death with their medicolegal significance and interpreting autopsy findings and analysing histopathology findings while deducing the cause of death. d. Forensic psychiatry deals with the legal aspects of mental disorders or unsound mental conditions. e. Forensic odontology is utilised when the question of identification and interpretation of bite marks arises. f. Forensic anthropology studies the bodily shape and skeletal formation in a legal sense and for identification purposes. g. Forensic radiology deals with using radiological findings for the administration of justice. h. Virtopsy is a multidisciplinary technology that combines the principles of forensic pathology, roentgenology, physics, biomechanics, and computer graphics. It is an alternative to traditional autopsy. This uses scanning and imaging technology. • Post-mortem CT (PMCT). Can provide realistic 3D images of any internal organ or internal body part. Helps in the collection of samples

DOI: 10.1201/9781003139126-2I-3

I-4 from internal organs and body cavities using PMCT-guided biopsy (pm-biopsy and PMCTguided angiography). • Post-mortem MRI (pm-MRI). • Disadvantages: Requires a highly costlier setup. Compared to a traditional autopsy, the cost may rise by 10- to 50-fold. • Advantages: Ensures less-than-minimal invasion and the least possible disfigurement of the dead body. i. Forensic science. Many learned people, including some judges and doctors, confuse forensic science with forensic medicine in their speeches. They are two different disciplines. While forensic medicine uses the knowledge of medicine, forensic science mainly provides laboratory services and crime scene sample collection. It uses the knowledge of basic sciences, like physics, chemistry, serology, etc. • Forensic science, also known as criminalistics, applies science to criminal and civil laws. However, this science is mainly used in criminal investigations, except for civil cases, like DNA fingerprinting for disputed paternity. • Forensic science laboratories (FSL). Forensic medicine is restricted to the faculty of medicine in medical colleges. Forensic science has different cadres of FSL at the district, state, and national levels. Some major departments in FSL are DNA analysis, fingerprint analysis, bloodstain pattern analysis, firearms examination and ballistics, tool mark analysis, serology, toxicology, hair and fibre analysis, entomology, questioned documents, anthropology, epidemiology, footwear and tire tread analysis, drug chemistry, paint and glass analysis, digital audio-video and photo analysis, etc. j. Forensic neurology. Behavioural neuroscience deals with evaluating an individual’s neurological status in a legal matter, for example, analysis of mermer waves in brain mapping of a suspected criminal, EEG analysis in somnambulism, etc. k. Forensic psychiatry. Application of psychiatry knowledge for legal purposes. It usually takes the help of behavioural neuroscience, like forensic neurology. l. Forensic neuropathology. This is an essential subject required in routine forensic pathology practice. Sometimes, it is difficult to appreciate some brain pathologies, like diffuse axonal injuries (DAI), concussion, dating the brain haemorrhages, etc., to establish the exact cause and manner of death on macroscopic examination. m. Forensic obstetrics. Medicolegal evaluation of deliveries associated with the morbidity and mortality, and their reporting. n. Forensic toxicology. Comprehensive study of poisons and their forensic analysis in poisoning cases. o. Forensic dentistry. Medicolegal aspects of the study of teeth. p. Forensic osteology. Medicolegal of bones.

Medical Jurisprudence & Clinical Forensic Medicine q. Forensic criminology. Crimes and criminals. It is not the same as criminalistics (a forensic science subject). r. Humanitarian forensic. This is an emerging specialty exploiting forensic medicine knowledge for humanitarian services.

Evolution of Medical Practice in India and Asia • Vedic era (1500 and 500 BCE). The Vedic civilisation flourished between 1500 BC and 500 BC on the IndoGangetic Plains of the Indian subcontinents. There are four volumes of Vedas, viz. Rǔg Veda, Sām Veda, Yajǖr Veda, and Atharva Veda. The Atharva Veda is the principal source of information on medicine during the early Vedic period. The Vedic chant healing system of the 1500 BC era gradually shifted to tangible forms of medical science. • The era of classical Indian medicine (1000 BC–400 CE). A systematic, organised medical education for the first time in the world was fostered through international universities like Taxila, Nalanda, etc., with the support of kings, which was the golden period of medicine in the world. The list of medical treatises, scriptures, and some prominent physicians and surgeons of this period are described in the following: 1. The era of Suśruta (800–700 BC). He was an ancient Indian surgeon and the world’s first known surgeon (Father of Plastic Surgery). He had classified diseases and injuries nearly similar to modern medicine classifications, especially injuries. It also outlines the conduct of surgeons towards society, patients, and the king (state) in those days. The codes of modern medical ethics (Declaration of Geneva Convention, Hippocratic Oath, etc.) look almost similar to those ethical guidelines mentioned in Suśruta and Charaka Samhitā (Figures 1.1 and 1.2). 2. The era of Bṛhat-Trayī (Sanskrit: The Great Triad). It is more modern than Suśruta Samhitā and dates from approximately 600 BC to 200 CE. Its principles encompass most of the modern-era Ayurvedic textbooks. The Great Triad refers to three well-known encyclopaedias of early Indian medicine, i.e.: a. Atrĕya Samhitā (written around 600 BC) b. Agnivesha Samhitā (around 800 BC) c. Ĉharaka Samhita (around 900 BC) i. This textbook asserts three basic principles of medicine: aetiology, symptomology, and therapeutics. ii. It has classified the diseases and gives importance to health education and preventive medicine. It describes theories on the human body, diagnosis,  and  treatment of various illnesses. iii. Medical education. It advocates that teamwork (physician, nurse, and patient) is necessary for fostering good health. It has a Ĉaraka’s Oath section for medical graduates, which outlines the code of conduct for ancient India’s would-be physicians.

Introduction to Forensic Medicine

FIGURE 1.1  Statue of Maharshi Sushruta (800 BCE), the author of Sushruta Samhita and the founding father of surgery, at the Royal Australasian College of Surgeons (RACS) in Melbourne, Australia. [Source: Wikipedia, the Free Encyclopedia (https://en.wikipedia. org/wiki/Sushruta_Samhita). Reused under open content licenses.]

I-5 d. Medical ethics. The research works of Curtin et al. (2008) revealed that Charaka Samhita is the earliest text of the world that set a code of medical ethics for physicians and nurses, attributing ‘moral and the scientific authority to the healer’. • This asserts that there are four crucial pillars of medical practice: Vaidya (physician), Aptűh (patient), Anuvaïdyā (nurse), and bhėsaĵ (medicines). • The nurse must be knowledgeable, skilled at preparing formulations and dosage, sympathetic towards everyone, and clean. • The physician must be compassionate towards all and express joy and cheer towards those patients suffering from incurable diseases. • The patient is responsible for being positive and has to describe his symptoms and feelings. He should remember and respectfully follow the physician’s instructions. e. Health philosophy. The fundamental calling of this text to include goals for both spiritual and physical health. f. Medical Etiquette. It mandates that: • A physician must seek consent before entering a patient’s house (in ancient India, most of the physicians used to visit households and villages of their area on call instead of sitting in the outpatient departments, unlike today). • A physician must ensure a male member of the family accompanies a female patient. • A physician, while attending a minor, must inform and gain consent from the parents or guardians in the house. • A physician must never resort to extortion for his service. • A physician must speak with soft words and never use cruel words. • A physician must ‘only do what is calculated to do good to the patient’. • A physician must maintain the patient’s privacy and confide in his secrets. Impact of International Universities during 100 BC–1200 CE

FIGURE 1.2  The preserved pages (made up of palm leaves) from a transcript of Sushruta Samhita collected from Nepal and stored at the Los Angeles County Museum of Art. The text is dated 12th–13th century, while the art is dated 18th–19th century. [Source: Wikipedia, the Free Encyclopedia (https://en.wikipedia. org/wiki/Sushruta_Samhita). Reused under open content licenses.]



1. The University of Ancient Taxila  (Takṣaśilā) was an international university (1000 BCE) located in the city of Takshashila (Taxila) near the bank of the Indus River, presently in Western Pakistan. • Internationally renowned for its sciences, especially medicine, mathematics, and astrology. It has a significant impact on Greek and Egyptian philosophers of medicine, for example, Hippocrates, Empedocles, Origen, etc. • Charaka Samhita, another ancient Indian scripture from Taxila University proposed to ‘show goodwill and sympathy to the sick and show the feeling of satisfaction on his recovery; despite someone having ill will towards you’. The previous statement highlights the level of morals and ethics practiced by the physicians in the Taxila era. 2. The Nalanda (Nālandā) University is an international residential university in India from 427 to 1197 CE. • This was probably the world’s first university that had fostered women faculty and chancellors in that era.

Medical Jurisprudence & Clinical Forensic Medicine

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• The ancient Indian medicine philosophy, especially medical ethics, tremendously influenced world medicine culture, for example, Greek, Egypt, Tibet, Maldives, etc. Even modern medical ethics (Charaka’s Oath) is the same as what is proposed in Charaka Samhita. 3. The Hippocratic Oath of the Greek physicians, which states, ‘Primum non nocere’ (first, do no harm), is a direct inspiration from Charaka Samhita text from Taxila University and the medical manuals of Atreya and Agniveśa (200–300 BCE). Similar arguments were made by 20th-century scholars like Ludwig Edelstein and Danielle Gourevitch that the Hippocratic Oath does not accurately reflect the practice of medicine in 5thcentury Greece; instead, it looks as if inspired by the philosophy of medical ethics from the East, especially the classical Indian medicine treaties. The major drawbacks of Hippocratic principles of medicine compared to that of the Ancient Indian Medicine, include: • Scanty and unsystematic anatomical knowledge. • Lack of specific diagnosis and a sort of nihilism in therapy. • The ‘four humour’ theory (blood, phlegm, yellow bile, and black bile) of diagnosis closely resembles air, bile, and phlegm. 4. The era of modern medicine. • The Indian Medical Association (IMA), a national voluntary organisation of physicians in India, was established in 1928. It is noteworthy that IMA was established about 19  years before the World Medical Association (WMA) could be founded, in 17 September 1947. • The Medical Council of India was first established in 1934 under the Indian Medical Council Act 1933, during British rule. It has enforced the Hippocratic Oath—a Western template of the Charak’s Oath—on medical graduates. • The globalisation of traditional Indian medicine (Ayurveda) practice in short- and long-term training has gained momentum in the past two decades. • A recent review (Dahanukar et al., 2000) points out that more than 13,000 plant species identified in traditional Indian medicine have been exported worldwide during this period. • The most significant contribution of Indian forensic medicine to the world is fingerprinting. • In India, different systems of medicine prevail, and other states have different code of ethics, but the guiding principle is the same. The Indian Medical Council Regulations 2002 was a code of ethics for medical practitioners. In those good old days, doctors were considered next to gods in India, and it was rare for doctors to be sued. • The era has changed since the Consumer Protection Act (CPA) was enacted in 1986, which was sufficient to ruin the indigenous doctor–patient relationship trends, and the relationship shifted to become that of a consumer and a supplier of services as decided by the Supreme Court of India in Indian Medical Association v. VP. Shantha and Others (decided on 13 November 1995). • Fear of lawsuits and violence from patients and relatives has made doctors defensive, resulting in a vicious cycle further deteriorating the

doctor–patient relationship. However, the government of India amended the CPA in 2020 to restore the previous indigenous doctor–patient relationship. How far it will heal the gap, only time can say. People, in general, are becoming more and more ‘medico-phobic’. There is an increasing distrust between doctors and patients. Medicolegal problems have increased exponentially in every discipline of medical science. • Doctors become overcautious in their approach that the patients are being over-investigated and over-treated. It is therefore not surprising that there have been more lawsuits and escalation in insurance premiums. • Current ethical-legal issues, like sex determination of unborn foetus, MTP after 20 weeks in pregnancy resulting from rape, approaching late in pregnancy with multiple anomalous foetuses, pregnancy with multiple infertility, and artificial insemination, in vitro fertilisation and embryo transfer (IVF-ET), surrogate mother, organ donation and transplantation, euthanasia, etc., are under debate. To control and regulate this, the government has a massive role in consulting medical experts. The future of medicolegal issues is struggling to thrive for better and safe medical services. Hence, the practice of medicine that started as an art and became a science has finally gotten the status of business. Today, medical care services are commodities in a heavily commercialised society.

Evolution of Medical Jurisprudence in India and Asia The practice trends in medical jurisprudence and forensic toxicology have evolved through various phases during different invasion periods of the post-Vedic era. Developments during Vedic and Post-Vedic Eras of Indian Medicine • There were remedies in the form of charms to cure wounds, burns, poisoning, snakebite, and insanity given in detail by the Atharva Veda (v. 4.7.1). • Dead animals were dissected during this period for the condition’s sake of medical knowledge. • In Charaka Samhita: • Different concepts related to poisoning were discussed. • Responsibilities and duties of physicians were defined. • Medical practitioners were expected to undergo training and obtain permission from the king to practice medicine. • Medical codes, training, and state control of medical practitioners: Charaka exhorts medical practitioners to religiously observe the following rule of conduct, which can be considered the origin of medical ethics: • Neither for the self nor for the desire of any material gain, but solely for the good of the suffering humanity, should you treat your patients and excel all. • You must not betray your patients, even at the cost of your own life.

Introduction to Forensic Medicine

•

•

•

•

• You must not get drunk, commit evil, or have evil companions. • You must be pleasant of speech and thought, always striving to improve your knowledge. • When you go to a patient’s home, you should direct your words, mind, intellect, and senses nowhere but to your patient and his treatment. • Prescribed for professional norms and conduct rules, for example, a woman should not be attended to in the absence of her husband or guardian and should not divulge any professional secrecy. Sushruta, the Father of the Surgery: • Described types of weapons, wounds, and bone fractures. • Classified poisons into plant, animal, and artificial poisons. • Managements of snake envenomation. • Emetics and their use are mentioned. • Abortions and foetal development at various months of pregnancy and delivery have been very accurately described. In ancient India, physicians were expected to report the prevalence of any disease to authorities. Kautilya (popularly known as Chanakya, either in the 4th century BC, during the reign of Chandragupta Maurya, or in the 2nd century AD) Arthasartra1 (2.36.10) mentions that any physician who undertakes the treatment of a patient from wounds or excess of food or drinks must inform gopa or sthanika (administrative authority), lest he be found guilty. Kautilya’s Arthashastra: • States that death can be caused by four ways of stopping the breathing (strangling, hanging, asphyxiation, or drowning), poisoning (by poisons, snake or insect bite, or narcotic drugs), or two ways of physical injury (by beating or by throwing from a height). • Describes the importance of autopsy in establishing the cause of death. It states: ‘The magistrate shall conduct a postmortem on any case of sudden (unnatural) death after smearing the body with oil to bring out bruises, swellings and other injuries’ (verse 4.7.1). Atharva Veda mentions that in death due to poisoning, the undigested parts of the meal shall be tested by feeding it to birds. If these parts, when thrown in the fire, produce a crackling sound and become multicoloured, poisoning is proved. If the heart or stomach does not burn when the body is cremated, then poisoning is also confirmed (verses 4.7.12, 13).

Chinese medical jurisprudence (1235 CE onwards). The ancient literature of Chinese traveller Xuanzang, who visited India during the period of Emperor Harsha Vardhan (590–647 CE), described the influence of Indian Vedic medicine taught in Nalanda and Taxila on the Chinese and Tibetan medicine and the same way on the medicolegal system as well. Sung T’zu—a pioneer of Chinese medical jurisprudence during the Yuan Dynasty (1235 CE)—made significant observations of the usefulness of insects (flies, arthropods) in solving crimes. In his criminology treatise The Washing Away of Wrongs, he has recorded an interesting forensic entomology case: A slashed deadbody occurred in a village and the offender was unknown. The local detective was ordered to solve the crime. The investigator had all villagers bring

I-7 their sickles to one spot and lay them out before the crowd. Flies were attracted to one of the sickles, probably because of invisible remnants of tissue still remaining on it, and the owner subsequently broke down and confessed to the crime. He commented on decomposition, that ‘during the hot months, if maggots have not yet appeared at the nine orifices [of the body], but they have appeared at the temples, hairline, rib cage, or belly, then these parts have been injured’. Legal System during Islamic Invasion Period in India • Prior to the British colonial rule. The facts compiled by the famous historian Donald Davis in his well-known textbook The Spirit of Hindu Law (Cambridge University Press, 2010) are as follows: • Sharia (Islamic) law is mostly taken from the Fatawae-Alamgiri that was imposed on Indians since Aurangzeb’s rule (1658), though Sharia is purely an Islamic law made for Muslims but imposed on nonIslamic religious sects as well, for example, Hindus, Buddhists, Sikhs, Jains, Parsis, etc., during the entire period of Islamic rule. • Excerpts from the Dharmashastra (popular as Manusmriti) played a historic role in constructing a legal system for all citizens in undivided India (which included regions of Pakistan, Afghanistan, Burma, Bhutan, Srilanka, Nepal, etc.), except the Muslim citizens. Even the present legal system of India, i.e., criminal procedures, penal codes, etc., are the same British Empire criminal procedure codes (continuing from 1872). It remains largely unchanged. However, nearly 1800 such laws were either disabled or changed since 2014, though not the entire penal and procedure codes.

Legal System during the European Invasion Period in India

British, Portuguese, and French sea traders first gained access to India around 1498–1500 CE. By the early 16th century, most of India was taken over by the British Englishmen, a few by Portuguese and French in South India. They took advantage of the internal conflicts among the then-Islamic kings ruling India.

British Colonisation Period

The British introduced a modern system of medicine, new legal procedures, and other administrative changes. In crime investigation, the coroner’s system was introduced in Kolkata and Mumbai by the Coroners Act 1871, and the police system was reorganised all over the country. Medical institutions were established to teach modern medicine, in which medical jurisprudence was one of the subjects. • The first death certificate in India was issued in 1678, at Madras port (presently Chennai). • The earliest medical certificate in India was issued on 16 August 1693 for a suspected poisoning case. • The first recorded medicolegal autopsy in India was done on 28 August 1693 in Chennai. • The first wound certificate was issued on 9 August 1695 (Friday) in a drunkenness brawl case involving British and Portuguese soldiers. The wound certificate given by him stated that the wound was not dangerous.

Medical Jurisprudence & Clinical Forensic Medicine

I-8 • The first coroner appointment in Madras was on 16 April 1697 by the East India Company in Madras. • The first medical school came into existence in Calcutta (presently Kolkata) in 1822, which later, in 1835, converted into a medical college. Madras Medical College was also started in Chennai in the same year. • In 1857, the first chair professor of medical jurisprudence was established at Madras Medical College, the then coroner of the city.

Post-Independent India

Recent trends in India are encouraging. The terminology medical jurisprudence changed to forensic medicine after independence. A medicolegal institute attached to the Gandhi Medical College in Bhopal, MP, was established in 1977. A standing committee on forensic medicine, functioning in the Bureau of Police Research and Development (BPRD), under the Ministry of Home Affairs in New Delhi, includes some medicolegal services in India. Most of the states have now appointed a medicolegal adviser to the government. An Institute of Criminology and Forensic Science under the administrative control of the Ministry of Home Affairs (Government of India) was established on 26 July 1971 in New Delhi, with the following threefold objectives: • To impart training to police, judiciary, and correctional services. • To conduct research in the field of criminology and forensic science. • To be an educational institution at the postgraduate level. The Indian Academy of Forensic Science was established in 1961 in Calcutta, while the Indian Academy of Forensic Medicine (IAFM) was established in 1972 at Panjim, Goa. The main objectives of IAFM are: • To encourage the study, improve the practice, elevate the standard, and promote the progress of forensic medicine. • To highlight the importance and raise the standards of medicolegal work concerning administration justice.

Dactylography: A Gift from the Indian Forensic System to the World

The study of dactylography is the most reliable datum for identification, the first-ever known innovation in this field of medicolegal investigation. English began using fingerprints in July 1858 when Sir William James Herschel, Magistrate of the Hooghly District in Jungipoor, India, first used fingerprints on native contracts. Later, he made it a habit to use his index finger. Thus, initially, fingerprints were used not upon scientific evidence but upon superstitious beliefs. In 1877, Herschel was appointed as Magistrate and Collector of the Hooghly District of Bengal, and this appointment gave him control of the criminal courts, the prison, and the department for the registration of deeds. Based on Herschel’s theory, Sir Francis Galton, in 1892, of England, the influential English scientist and traveller, devised the systemic study and methods of using fingerprints for personal identification. Evolution of Forensic Toxicology • The medieval period, i.e., the period between the 15th and 18th centuries, can rightfully be called the ‘age of arsenic’, because poisoning with arsenic was rife during this period.

• The age of arsenic was finally brought to an end by two celebrated toxicologists, a Spaniard turned French man, Mathieu Joseph Bonaventure Orfila (1787–1853), and the Englishman James Marsh (1794–1846). Marsh developed the celebrated Marsh test in 1836, by which arsenic could be detected very easily. • The last 150 years have seen great progress in the analysis of poisons. Today, with modern techniques and instrumentation, the most minute traces of alien compounds can be detected, not only from tissues and organs collected at the time of post-mortem examination, but also in samples such as blood and urine collected from living individuals. • Such was not the case with Napoleon Bonaparte (1769– 1821), however. A  neutron activation analysis of locks of his hair showed high levels of arsenic, and many historians now think that Napoleon might have been poisoned by his enemies while he was exiled on the island of St. Helena. • In April 1934, Lieut. Col. C. Newcomb, Principal, Madras Medical College, mentioned about datura poisoning; the drug is given not with intent to kill, though sometimes the victim died, but with the intent to stupefy so as to facilitate train robbery. • Evolution of Antidotes. Devised by King Mithridates VI (132 to 63 BC). Athrava Veda, Charaka Samhita, and Sushruta Samhita discussed about remedies for various poisons. Currently, we have moved from the age of Mithridatium, bezoars, and terra sigillata to the age of physiological antidotes and chelating agents.

Global Impact of the Indian System of Medicine The Hippocratic Oath of Greek physicians, which states, ‘Primum non nocre’ (first, do no harm), is a direct inspiration from the Bhagavad text from Taxila University and the medical manuals of Atreya and Agniveśa (200–300 BCE).

Critical Analysis of Indian Medical Jurisprudence Due to the CPA Act, the doctor–patient relationship has become increasingly entrenched. Thus, medicine has become a business rather than a healthy relationship. This change has not left the field of forensic medicine either. In the early 20th century, autopsy was considered to play a fundamental role in medical education guided by the Osterian philosophy. Medical necropsy continues to have a multifactorial part in the delivery of new-age medical education. It is the most solid strategy to estimate the validity of clinical judgements. The Usefulness of Medical Autopsy

1. Educational role. It highlight the core areas of knowledge learned effectively by medical scholars, including clinicopathological correlation, pathophysiology, anatomy, and observational expertise. Post-mortem also increases the mindfulness of patients with multiple conditions and the situation of incertitude in medical knowledge. 2. Clinical role. Various studies highlighted discrepancies between clinical diagnosis and autopsy findings. Autopsy plays a vital role in Clinical auditing

Introduction to Forensic Medicine



and conclusive diagnosis despite the advancement in diagnostic techniques. 3. Pathologist’s perspective. Many clinciians believe autopsy as the ultimate medical consultation for a direct identification of an unknown pathology.

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References



Above all, ‘much can be learned about the living from the study of the dead’. But currently, much of these opportunities that are being lost can be brought back to purpose by giving simultaneous attention to a number of factors: • Better and greater exposure of medical students to autopsies. • Better training of pathology trainees and a greater commitment from senior staff. • Improved mortuary design to create more teaching and learning environment. • Use of modern imaging techniques to enable clinicians to see, discuss, and refer to, at any time, the gross findings of the autopsy with the pathologist. • Improved public education about autopsies and their benefits for the health of future patients and the nation. • Application of modern laboratory methods in the post-mortem detection of genetic and biochemical abnormalities.







1. Taylor, A. S., The Principles and Practice of Medical Jurisprudence, London, 1965, p xvii (In: MA Crowther, Brenda M White, Medicine, Property and the Law, in Britain, 1800–1914, The Historical Journal, 314, 1988, p. 855). 2. Boslaugh, S., Encyclopedia of Epidemiology (Vol. 1), SAGE Publications, 2007. ISBN 978-1412928168. 3. Ray, P., Gupta, H. N.,  & Roy, M., Suśruta Saṃhitā: A Scientific Synopsis, Indian National Science Academy, 1980, p. 4. 4. Meulenbeld, G. J., A History of Indian Medical Literature (Vol.  IA), Cambridge University Press, 2000, pp. 342–344. 5. Wendy, D., On Hinduism, Oxford University Press, 2014, p.  79 (Quote:  A basic assumption of Hindu medical texts like the Caraka Samhita (composed sometime between 100 BCE and 100 CE) is the doctrine of the three). 6. Ariel, G., The Strides of Vishnu: Hindu Culture in Historical Perspective, Oxford University Press, 2008, pp. 141–142. 7. Valiathan, M. S., The legacy of caraka orient longman. Current Science, 2003, 85(72). 8. Robert, S., Ayurveda: Life, Health and Longevity, Penguin Books, 1992, pp. 189–190. 9. The Hippocratic Corpus (c. 450-c. 350 B.C.), The Hippocratic Oath from about Maidens, The Ethics of Suicide Digital Archive, n.d. 10. Sarah, B., Encyclopedia of Epidemiology (Vol. 1), SAGE Publications, 2007, p.  547 (Quote: ‘The Hindu text known as Sushruta Samhita is possibly the earliest effort to classify diseases and injuries’). 11. Batchelor, S., Confession of a Buddhist Atheist, Random House Publishing Group, 2010, pp. 255–256. 12. Marshall, J., A Guide to Taxila, Cambridge University Press, 2013, pp. 23–24. 13. Curtin, L., Guest editorial. International Nursing Review, 2001, 48(1): 1–2. https:// doi.org/10.1046/j.1466-7657.2001.00067.x. 14. Mathiharan, K., Origin and development of forensic medicine in India. The American Journal of Forensic Medicine and Pathology, 2005, 26(3): 254–260. 15. Mittal, S., Mittal, S., & Mittal, M.S., Evolution of forensic Medicine in India. Journal of Indian Academy of Forensic Medicine, 2007, 29(4): 89–91.

CHAPTER 2 MEDICAL DEONTOLOGY Ambika Prasad Patra

Chapter Highlights • • • • • • • •

•

Medical ethics—360 degrees discussion Deontology vs. Teleology Ethics vs. Morality and Ethics vs. Law Medical ethics vs. professionalism vs. medical etiquette Universal principles of ethics Ethical dilemma in Clinical practice Ethical issues in emerging techniques—Gene manipulation, Stem cell research, e-Pharmacy, etc. Various declarations and ethical guidelines for regulation of research • ICMR Ethical Guidelines for Biomedical Research • ICMR Guidelines for Stem Cell Research, 2017 Clinician’s Corner

Introduction Ethics is a set of moral principles relating to a specified group, field, or form of profession. This is a vast discipline encompassing almost all professions, like medicine, law, journalism, etc. It has a variety of connotations depending on the context or the nature of the profession. Etymology. Ethos, from mediaeval English, French éthique, Latin ethice, Greek ēthikē—all are based on ēthos, or the ‘science of morals’, or ‘teaching of morals’. Synonyms. Doctrine, belief, golden rule, guideline, formula, standard, criterion, tenet, truism, code, maxim, motto, notion, dictum, dogma, canon, law. Law vs. ethics. Ethics, morality, and law are often used synonymously while not at all the same. Moral values serve as a code for one’s professional behaviour. It is essential to understand the differences between law and ethics. Medical ethics is a set of professional codes of conduct for registered medical practitioners (RMP). Nevertheless, medical TABLE 2.1  Comparison of Law and Ethics Law Rules of conduct or action prescribed or recognised as binding or enforced by a controlling authority, such as local, state, and federal governments. Breaching the law is considered a criminal act. Enforceable by the enforcement agencies like courts and police. Violations or breaches of law attract criminal proceedings.

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Ethics A set of standards of behaviour and a concept of right and wrong in any given situation, beyond the legal consideration. Breaching ethical codes is not a criminal act but a professional misconduct. Ethics is not enforceable by law but by autonomous professional bodies, like the State Medical Council and NMC. Violations of moral codes of conduct attract disciplinary action by the State Medical Council, for example, penal erasure/professional death sentence, etc.

ethics is not the whole of ethics; instead, some relevant ethical principles are applied to clinical practice and medical research.1 Hence, this chapter will be restricted to the normative ethics concerned with the professional obligations and responsibilities of doctors (Table 2.1), i.e., medical deontology.

Branches of Ethics A brief idea about the classification and theories of ethics is essential for a better understanding of medical ethics. Several branches of ethics have evolved with the progress of society. However, only the significant classes of ethics having clinical relevance have been discussed here.2–9 1. Normative ethics is also called prescriptive ethics. • The traditional ethics. • It is based on how one should act and determines whether an action is right or wrong, i.e., it determines what things are good or bad and which behaviours are right and wrong. • It determines an individual’s moral duty or responsibility or conduct. 2. Applied ethics uses a normative theory to make moral decisions about a particular topic. • It applies normative ethical theory to evaluate and prescribe actions in specific situations and contexts. • It has six domains: decisional ethics, professional eth‑ ics, clinical ethics, business ethics, organisational eth‑ ics, and social ethics. 3. Descriptive ethics is also called comparative ethics. • It compares how different groups of people have answered and responded to the moral questions. • It deals with what people actually believe (or made to believe) to be right or wrong and accordingly holds up human actions as acceptable or not. This decides the punishable unethical acts under a custom or a law. • It studies the changes in public morality with the advancements over time, i.e., rightness or wrongness of action changes with time and technology. 4. Metaethics is also known as analytical or philosophical ethics. • It studies the meaning and function of moral language. • Deals with the study of the origin of the ethical concepts instead of focusing on the nature of an act, i.e., right or wrong. • It determines what (if anything) is meant by moral terms, i.e., it questions why and what goodness or rightness or morality is. Example: To understand the dimensions of ethics, let us consider the ethical aspects of aborting a foetus. 1. Normative ethics. Is it morally acceptable to take a budding life? One should avoid killing a foetus. 2. Comparative ethics. Compare the proportion of the population that believes abortion is morally acceptable to that it is unacceptable. DOI: 10.1201/9781003139126-3

Medical Deontology 3. Metaethics. Is there a definite answer to the moral question of taking a human life? What contexts should it be accepted, and what are its unacceptability? 4. Applied ethics. When the mother’s life is in danger or the pregnancy is from rape, abortion should be considered ethical (Figures 2.1 and 2.2).

FIGURE 2.1  Branches of ethics.

FIGURE 2.2  Concept of normative ethics.

I-11 Types of Ethics (Theories)

Medical ethics encompasses philosophy, history, and sociology principles. The 1st century’s ethical principles are not in practice today. This field of ethics continues to develop and change throughout history. As society changes, the ways of moral thinking change. Hence, various ethical approaches have evolved over the centuries. However, some common ethical approaches relevant to the medical field are discussed in the following.1–9 1. Deontology is the ethics of duty and responsibilities and acts as a prototype of normative (~creating standard) ethics. It is well known as the—duty-based ethics.6, 8 • This approach serves as the basis for making the right moral decisions. • This principle defines (codfies) both the actions and the outcome of action, i.e., it can regulate the conduct of an entire professional agency within a defined professional sphere. Hence, deontology is preferred while implementing universal codes of ethics. • It sets definite, standardised ethical guidelines for a profession which a professional must comply with during his professional practice. Noncompliance would be considered professional misconduct. • The universal principles of ethics (UPE)—a brilliant example of a deontological approach. • These medical ethical guidelines (code of ethics and professional conduct) are usually promulgated and regulated by certain autonomous statutory bodies, like the Medical Council of India/National Medical Commission (NMC), Indian Council of Medical Research (ICMR), National Human Rights Commission of India (NHRC), and WHO. • Disadvantages: The principles of deontology may be suitable for a professional entity like the doctor– patient relationship, nurse–patient relationship, etc., but may not be applicable in complex, non-uniform settings, like social justice, equitable resource distribution, etc. Example: Free rice distributed by the government to the poor may be good, but at the expense of the taxpayer’s hard-earned money (despite that they are deprived of receiving such freebies opportunity). Here, utilitarianism overrides the deontology principle. 2. Teleology or consequentialism. Teleos means ‘end point’; logic means ‘science’. This is also known as utilitarian ethics.7 • It is a class of normative ethical theory where the morality of an action is judged by its outcome alone. • This principle argues that the type of consequence of an action or conduct should judge the rightness or wrongness of that action/conduct. • Teleological ethics encompass two broader theories, i.e., consequentialism and eudaimonism. The ethical doctrine that characterises the value of life in terms of happiness, i.e., a morally right (or wrong) action should ultimately produce a good outcome. It should be accepted irrespective of the moral value of the action. For example, it is a good outcome if a student has passed his examination irrespective of whether he has cheated or not in his examination. This restricts the utility of teleological ethics in the field of medicine.

I-12 • Consequentialists believe that any action is a right action if and only if the act will produce/probably produce, or is intended to produce, a greater good over the bad outcome. For example: Install poi‑ soned baits for the rats to prevent them from eating away the grains. This theory ignores the killings of those rats that died of poisoned bait and who never came to eat grain but to eat the meat on the bait. Moreover, this may be ignored for a good outcome that the ‘grains are saved’. Hence, this theory is also called ethical ego. • In ethical egoism, moral agents are meant to act in their best self-interest. He may ignore others’ interests but should not harm others’ interests. It differs from psychological egoism, where people act in their self-interest, which may harm others. Example: ‘What is morally right should be good for me. I have no duties to others. The only duties I  have are to myself only.’ • The issue with consequentialism is that different consequentialist theorists differ in defining moral goods. For example, the parameters for general good (a good outcome), like pleasure, absence of pain, satisfaction, etc., may vary due to subjective variations. Thence, it cannot be implemented in the general population due to its lack of definable outcomes, unlike definable actions of deontology. • This may be why this theory is not used widely, especially in medical ethics. However, its knowledge may help deal with some dilemmatic ethical situations during clinical practice. A  typical example of teleology or consequentialism is the Covid-19 vaccination drive during 2021–2022—a consequentialist believes that Covid vaccination may achieve protection (good outcome) for a significant number of people (the greater good) even though there will be chances of (iatrogenic/AEFI) vaccine-related deaths, harming a few. • Most of the government public-welfare policies, for example, reservation system in education, distribution of free rations, LPG, medicines, etc., to belowpoverty-line category people at the exchequer of the public tax are based on the principles of utilitarian or teleological ethics. 3. Virtues. This is the oldest ethical philosophy preached from the classical Indian medicine era (Charaka’s Oath, 800–600 BCE). • Virtue ethics is a character-based approach to morality, i.e., it believes in understanding and living a life of a high moral character. • Four types of virtue ethics: eudaemonist ethics, taget-centred ethics, agent-based (exemplarist), and Platonistic ethics. • Eudaimonism (Greek ~good spirit)—a conduct or a condition of ‘good spirit’ which is commonly translated into ‘happiness’ or ‘welfare’. • Individuals who possess more virtues are more likely to make good decisions and behave ethically. • In contrast with the other two major approaches in normative ethics, viz. deontology and consequentialism, virtue ethics treat morality, integrity, or character as central to all ethics.

Medical Jurisprudence & Clinical Forensic Medicine • However, it does not rule out the importance of other concepts, like eudaimonia, to the extent that the other theories consider moral integrity central to all decisions. • Disadvantages: It can be considered as a foundation for other ethical approaches. It is difficult for global implementation due to: – Cultural, social, and geographic variations in moral values or virtues. – Variations due to generation gap in the same society. – Several virtues may often put one into an ethical dilemma of choosing which virtue should be given priority in complex, challenging situations. – Inability to measure the virtues of a professional. 4. Principlism. It is also known as principle-based ethics. It uses ethical principles as the basis for making moral decisions.4, 5 • Principlism is an applied ethics approach that helps deal with moral dilemmas based upon applying certain ethical principles. • This approach to ethical decision-making is adopted in many professional fields because it usually avoids complex debates of morality at the theoretical level. • Instead of engaging in abstract debates like other normative ethics, it offers a pragmatic and practical method to deal with real-life ethical dilemmas.2 • Disadvantages: The principles lack any systematic relationship because they are drawn from conflicting moral theories and often lead to conflicting conclusions.

Medical Deontology Concept

Deontology (Greek, deon, ‘duty or obligation’) is a branch of ethics that guides a person’s moral or ethical actions. Hence, in simple terms, it is known as duty-based ethics.6 Deontology is also known as Kantian ethics (by Immanuel Kant, a German epistemologist), which argues that one has to be transparent about what is right or wrong i.e. determined by the action. For example, a patient who refuses to take an injection and prefers oral medication must be aware of the importance of having an injection for his infection. As per Kantian ethics, the doctor must inform his patient about the importance of injection before accepting his informed refusal.8 The concept of medical deontology is a set of ethical standards and principles of behaviour of medical practitioners while discharging their duties, i.e., their decisions and conduct must be directed toward the maximum benefit and/or safety of the patient.

Premises of Medical Deontology

This ethical approach helps in finding out ethical issues in three basic directions.3, 6, 8, 9 1. Doctor–patient relationship. The maxim ‘Do no harm’ should be the primary ethical principle in medicine. • Some qualities like compassion, kindness, keenness and responsiveness, care, and an attentive attitude to the patient should be inherent in any medical sphere.

Medical Deontology • By virtue, the doctor–patient relationship or interaction is deontological in nature. Ethical codes of conduct regulate this tradition, and when this concept is breached, the context of medical negligence arises. 2. Relationship between doctor and the patient’s family members or society. A  doctor beholds a duty to both patient and society. • However, when there is an ethically conflicting situation between the patient and society, deontology answers to whom the doctor should give preference. • For example, should a doctor inform the would-be bride of his HIV-positive patient about his disease if he will marry the woman without informing her about his HIV-positive status? • Ethically, a doctor should prefer the ‘best interest’ (do no harm) of the patient and society over patient confidentiality under such dilemmas. • Similarly, the practices of fundamental principles like autonomy and informed consent may be breached in newborn care, for the mentally handicapped, or for patients in a permanent vegetative state. • Deontological ideologists (doctors and other healthcare staff) usually give in to the public health administration, like politicians and hospital administrators (utilitarian ideologists), and follow some health-related policies using the utilitarian approach. • Unlike deontology, utilitarianism generalises the guidelines or rules, even if the policy may deprive some of taking the benefits. Often, this is called social justice by politicians. • The decisions of deontology may be appropriate for the individual but do not bother about a good outcome for society.

FIGURE 2.3  Deontology and teleology approaches.

I-13 3. Relationship between the healthcare professionals and the third parties. Third parties concerned with the patient, i.e., health or life insurance companies who pay for the patients, are regulated under the indemnity insurance laws. • They are entitled to know about the patient’s details as their client. The doctor, ethically bound to maintain patient confidentiality, is under a dilemma whether to share the patient’s details with the insurance company or not. • In the Kantian view, the insurance company is authorised to receive patient’s information and should be shared with patient details, but after discussion and consent of the patient. • However, suppose the patient refuses to share his information with the insurance company. In that case, the doctor is legally bound to share (only) relevant patient information with the insurance company. • In a deontologist’s view, sharing patient information helps the insurance company serve the patient better. Hence, in this context, patient beneficence is more concerned for the doctor over the patient’s confidentiality if the secret was divulged with the knowledge of the patient.

Why Deontology in Medical Practice?

For universal implimentaion of an ethical policy, one must predict the outcome of a particular action prescribed/prohibited by the ethical code. For example, a drunk surgeon (anywhere in the world) has high chance that can cause death or damage to his patient. Here, his actions are predictable and hence drinking on-duty is universally a professional misconduct. Deontology can create a standardised ethical code of conduct that would serve an expected good outcome. It defines the actions, and the outcome which can be predictable. This feature of ‘deontology’ makes it suitable for universal implementation. Hence, it gained significance in medical practice and implemented through the UPE (Figure 2.3).

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Codes of Ethics Codes of Ethics (CoE) are a set of guiding principles for best practices of individuals in a profession or organisation. They are meant to set a common ethical policy across a profession/ organisation. Examples of codes of ethics: medical ethics, business ethics, ethical journalism, etc. Sources of CoE • Professional bodies decide what should be the CoE for their profession, i.e., medical councils, ICMR, NMC, IMA, WMA, WHO, Geneva Declarations, etc. • Culture, religion, family upbringing, society, etc. may contribute to personal ethics and morality development. However, the source of CoE must be different from that of personally/culturally/religiously acquired ethics. • Professional CoE is not decided by the society, religion, family culture, etc.; rather, it is framed by the concerned professional organisations, viz. NMC, medical councils, medical associations, etc.

Universal Principles of Ethics The professional codes of medical ethics are based on the UPE. This is the fundamental tenet of medical deantology that every medical practioner must abide. It determines or guides the moral obligations of the medical practitioners to the patient, society, and to the fellow professionals. There are several ethical codes under UPE; however, mostly, four basic codes are widely used, as mentioned next.3, 6, 8, 10 1. Autonomy. • Principle: The oldest known, practiced ethical principle in Indian medicine—respect for a patient’s ability to make informed, independent decisions about his personal matters. • After receiving complete information about the disease, diagnosis, and treatment, patients have the right to refuse or choose the treatment. • Informed consent or informed refusal is an integral part of a patient’s autonomy. • Disadvantage: Sometimes, the patient does not know what exactly benefits him due to his personal biases or beliefs. For example, a patient having severe dehydration requiring IV fluid drips may choose ORS due to his fear of injections. 2. Beneficence. Refers to acts in the best interest and safety of the patient, i.e., it guides physician’s actions and ensures only the well-being and safety of the patient, and nothing else. Example: A snakebite patient wants to take only tablet, for his fear for injection. But it is the duty of the doctor to convince him to take ASV injection to save his life. Here, beneficence (safety of his life) dominates over autonomy (his wish not to take injection). 3. Non-maleficence. Based on the concept of primum non nocere (first, do no harm). Consider the best possible action i.e. in the best interest of the patient and safety of his life. Example: A  doctor may prescribe a life-saving medicine but should refrain from prescribing costlier medicine (to re-

ceive more commission from pharma company) in the guise of saving the life of the patient. However, prescribing a costlier medicine, when there is no other choice, is not an unethical practice. 4. Justice and equality. Concerns fairness and equality in distributing scarce health resources and/or while taking the decision of who should receive treatment first. Example: When bomb blast cases rush into a hospital with limited supply of resources, a patient having a fair chance of surviving after treatment is treated first before others (the principle of emergency room triage). These four values of medical ethics may be enough for an individual medical practitioner to deal with an ethical conundrum and to create a goal-directed treatment plan. Other common ethical principles in medicine include: 5. Veracity. The obligation to an honest disclosure of the patient’s health-related information safeguarding his life. 6. Dignity. The patients both living and dead have the right to dignity. 7. Fidelity. The act of being faithful to patients as if it is the service rendered for the cause of the ‘almighty’. 8. Privacy and confidentiality. See Chapter  3 and Chapter 5 for details.

Conflicts in Biomedical Ethics There is neither any hierarchy among the aforementioned four ethical principles (UPE), nor are they ranked in order of their relevance (for clinical application). Nevertheless, it is common to see these values, i.e., autonomy, beneficence, non-maleficence, justice and equality, etc., in conflict with each other in real-life situations (see Figure 2.4). Hence, it may lead to confusion or dilemma in a physician. It is the situation, i.e., treatment, medical teaching, biomedical research, etc., that decides which ethical value is given preference over the other. In an ethical conundrum, one should keep in mind that any decision should ultimately benefit the patient, his life, and his health, without any (hidden) harm.9, 10

Ethical Dilemma in Clinical Practice Ethical dilemmas are referred to as moral paradoxes. These are situations in clinical practice wherein two equally important ethical values conflict with each other, viz. all available options look either right or wrong. Ethical dilemmas are better understood by practical clinical situations and illustrations as, mentioned here:9, 10 1. Moral vs. ethics vs. legal. A  medical practitioner has three medicolegal responsibilities—moral, ethical, and legal obligations. There is confusion among many about the fundamental differences between moral, ethical, and legal obligations. Example: Suppose your colleague, a clinician, is an alcoholic. Now, the following three situations will clarify this dilemma. a. Moral. If he drinks very often and is an infamous drunkard in society. • Inference: Drinking alcohol may be immoral, but neither unethical (as per NMC/medical council codes) nor illegal (as per the law).

Medical Deontology

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(

).

FIGURE 2.4  Conflicting principles of ethics in different situations.

b. Ethical. If he visits OPD drinking alcohol and exam‑ ines the patient. • Inference: Drinking alcohol while on duty violates the ethical codes of conduct—the Rules and Regulations laid down by the Medical Council of India (2002). Hence, this act is considered unethical. It may attract disciplinary action by the State Medical Council (SMC). However, he will not be held legally responsible. c. Legal. If he injures or kills a patient while under the influence of alcohol. • Inference: He’ll be held responsible morally, ethically, and legally. Police may prosecute him under Sections 304(A), 302, 85, and 86 IPC, as well as disciplinary action by the SMC for violating the ethical codes of conduct (professional misconduct). 2. Autonomy vs. beneficence. A  film star with full-term pregnancy insists on caesarean section (C/S) delivery, although the doctor explained that vaginal delivery is safer for her than C/S. But she is insistent on caesarian surgery to protect her beauty. What should the obstetrician do—respect her wish (autonomy) or the safe clinical decision (beneficence)? 3. Justice vs. equality. When a local politician walked into the OPD for a health check-up without being in the queue while hundreds of patients were waiting in line. What should the doctor do—ask him to come in the queue (equality) or give him preference over others (justice)? 4. Autonomy vs. beneficence vs. non-maleficence. A 40-yearold poor single lady with two young teenage children was diagnosed with breast cancer. She has requested doctor not to divulge this diagnosis to her children, nor does she want to take cancer treatment, thinking that it will drain up all her property, leaving her children to beg. Instead, she can die leaving some money for her children. What should the oncologist do—respect her wish

(autonomy) or do the safe clinical decision (beneficence) or tell her children to encourage her for cancer treatment (non-maleficence)? 5. Equality vs. equity. The below-poverty-line-category patients receive free-of-cost medicines and treatment in hospitals (equity), while many others (APL) cannot get (equality) that benefit and have to pay for the services. Why? Is it justified? Many ethical dicisions, including the government policies, are based on the equitable distribution of resources rather than equal distribution among all. Many such situations can lead to the dilemma of choosing one ethical value over another. In such situation, the gold standard approach is to ensure the safety of patient life and his maximum health benefits without any hidden intent of personal gain or malice. The social justice should be given preference over other values, with some exceptions (Figure 2.4).

Professionalism and Etiquette 1. Professionalism Professionalism refers to the professional standards (skill, com‑ petence, and behaviour) that are expected in the members of a trained profession. Competence and behaviour are outcomes of good knowledge and character, respectively (Figure 2.5). Profes‑ sional standards are set by medical councils and are evaluated periodically (Figure 2.5).11 2. Etiquette • Etiquette is the rules of acceptable behaviour. It is the outcome of professionalism which is guided by professional codes of conduct laid down by medical councils (vide published in Part III, Section  4 of the Gazette of India, dated 6 April 2002, amended 8 October 2016) (see details in Chapters 3 and 5). This is behaviour of a professional/

Medical Jurisprudence & Clinical Forensic Medicine

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be used for targeting specific stretches (short palindromic/ mirror-image codon repeats) of an entire genetic code or editing the DNA at particular locations. This technique successfully used to engineer probiotic cultures in food and farming industries.12 Genetically modified (GM) crops and vegetables are at a rise in India, for example, most marketed BT-brinjals and other such vegetables. Besides, genetically modified organisms (GMOs) techniques are widely applied in fishery, poultry, and dairy industries too. Research on GMOs has become a growing concern for deontologists. There have been many public protests seen against GM products due to the unknown safety profile (long-term) of GM foods, their potential threats to the environment, the business of natural vegetables and crops, unclear laws, etc.12 Ethical Concerns • The stability of engineered genes is the biggest question yet to be answered. • Potential loss of biodiversity is the biggest threat from GM products. • The chances of GM products and GMOs introducing engineered genes into the population gene pool and their potential long-term effects are unknown. • Usually, GM crops and vegetables are developed to make them resistant to pests and insects and to prevent crop damage. However, this way, the non-target gene pool, for example, insects which are not pests, may be affected or may become extinct.

FIGURE 2.5  Elements of Professionalism. doctor towards the society/patients, his fellow colleagues, and his profession. • The SMC, from time to time, publishes a list of unprofessional behaviour/conduct in its warning notice to warn doctors to stick to the prescribed etiquette.

Ethics in Biomedical Research 1. Children in Medical Research It is well known that children are a vulnerable population, and they have a diminished capacity to give consent. Surrogate consent must be carefully evaluated and documented, ensuring that the surrogate fully understands the risks and procedures involved. Children may only be included as participants if the research targets childhood diseases.

Regulatory Authorities for GM Products12

2. Research in Genomic Medicine Genomic medicine is at the peak of its growth due to its miraculous benefits beyond the limits. Genomics science is being exploited for customised therapeutic strategies for some incurable diseases and is popularly referred to as personalised medicine. It is associated with various ethical concerns, like:



a. Breach of confidentiality and misuse of genetic information, leading to gene angst. b. The primary purpose of genetic medicine is to cure and heal incurable genetic disorders, cancers, etc.; however, it may be misused against the law of nature, for example, artificial enhancement of genes or creation of superhumans, etc. c. Gene manipulation with the inheritable genetic material possesses severe ethical concerns for interfering with the natural process of evolution. i. Gene manipulation. About 10–15% of the world’s croplands produce genetically engineered (GM) crops, the DNA of which has been modified using genetic engineering techniques.

Gene Editing

The gene editing technology is well known as CRISPR (clus‑ tered regularly interspaced short palindromic repeats) tech‑ nology, which is used for altering the genetic expression of an organism by editing/changing its genome. The technology can



1. Genetic Engineering Appraisal Committee (GEAC). The primary biotechnology regulator in India. The GEAC functions as a statutory body under the Environment Protection Act 1986 of the Ministry of Environment and Forests (MoEF). It is a modified form of erstwhile Genetic Engineering Approval Committee. Under the EPA 1986, ‘Rules for Manufacture, Use, Import, Export, and Storage of Hazardous Microorganisms/Genetically Engineered Organisms or Cells 1989’, GEAC is responsible for granting permits to conduct experimental and large-scale open-field trials and also grant approval for commercial release of biotech crops. The Rules of 1989 also define five competent authorities, i.e., the Institutional Biosafety Committees (IBSC), Review Committee of Genetic Manipulation (RCGM), Genetic Engineering Approval Committee (GEAC), State Biotechnology Coordination Committee (SBCC), and District Level Committee (DLC), for handling various aspects of the rules. 2. Biotechnology Regulatory Authority of India (BRAI)  for regulating uses of biotechnology products, including  GMOs, was proposed by the Department of Biotechnology in 2008, but the bill got lapsed due to the dissolution of the 15th Loksabha.

Stem Cell Research Human stem cells (HSC) are undifferentiated embryonic cells that can differentiate and proliferate indefinitely to produce various types of cells. Hence, embryonic stem cells (ESC) hold great promise in regenerative medicine. After successful use of hematopoietic cells in treatment, ESC became the focus of research to evaluate stem cell therapy for a variety of medical

Medical Deontology conditions, like cancer, regeneration of tissues, unrecognised toxicities, genetic and congenital disorders, etc. Stem Cell Properties • They are the earliest cell type in a cell lineage, viz. neural or endodermal or mesodermal cell lineage, etc. • They have an inherent potential for unlimited proliferation and differentiation to cells of any germ layer. • They are found in both embryonic and adult organisms, but they have slightly different properties in each. • They differ from the progenitor cells (which cannot divide indefinitely) and precursor or blast cells (committed to differentiating into one cell type, like hematopoietic tissues). Stem Cell Types

1. Human embryonic stem cells 2. Human somatic stem cells 3. Human-induced pluripotent stem cells

Revised ICMR National Guidelines for Stem Cell Research, 2017 The International Society for Stem Cell Research is an independent non-profit organisation founded in 2002 to collate and exchange information about stem cell research. It has published a ‘patient handbook’ on stem cell therapies to provide the scientific and ethical background to patients who may wish to participate in stem cell clinical trials. It has also urged governments to recognise the dangers of the unapproved therapy in vulnerable populations and prepare national guidelines for stem cell research.13 The Indian Council of Medical Research (ICMR), in association with the Department of Biotechnology (DBT), had first framed the Guidelines for Stem Cell Research and Therapy in 2007. The National Apex Committee for Stem Cell Research (NAC-SCRT) and the drafting committee decided to update these guidelines from time to time based on new knowledge generated in the field. Hence, these were once revised as National Guidelines for Stem Cell Research (NGSRT) in 2013. Again, the ICMR and DBT have issued the Revised National Guidelines for Stem Cell Research, 2017, to incorporate the recent advances in stem cell research.13 The revised guidelines focus on the ‘Ethical Consider‑ ations Determining Specific Principles Related to Stem Cell Research’ and ‘Restricted and Prohibited Areas’ in stem cell research. These guidelines apply to all stakeholders of basic and clinical research involving human stem cells and their derivatives:13 • • • •

Research personnel Institutions and organisations Sponsors and oversight committees Regulatory committees

Exceptions • The guidelines do not apply to research using nonhuman stem cells or tissues. • It does not apply to hematopoietic stem cells used for the treatment of various haematological, immunological, and metabolic disorders, because i.e. already an established standard of medical care.

I-17 ICMR Stem Cell Guidelines, 2017 • It ensures all research with human stem cells is conducted ethically and scientifically. The general principles of biomedical research involving human participants will be entirely applicable in human stem cell research cases, in addition to the following HSC-specific guidelines. All researchers and stakeholders are required to comply with all regulatory requirements pertaining to stem cell research. The guideline focuses on monitoring and regulatory mechanism for:13 • Research practices in basic and clinical sciences. • Product development based on categories of research and level of manipulation. • Procurement of gametes, embryos, and somatic cells for derivation and propagation of any stem cell lines, their banking and distribution. • International collaboration, exchange of stem cell lines, education for stakeholders, and advertisement. • Section  7.4 of the guidelines say that ‘each institution shall constitute Institutional Committees for Stem Cell Research (IC-SCR) as provided by the guidelines’. • In Section 8.0, ‘a National Apex Committee for Stem Cell Research and Therapy will monitor and oversee activities at the national level and IC-SCR at institutional level’. • Section  10.0 mentions preclinical and clinical trials using stem cells and their derivatives. • In Section 10.3, titled ‘Use of Stem Cells for Therapeutic Purposes’, the guidelines say, ‘Use of stem cells for any other purpose outside the domain of clinical trial will be considered unethical and hence NOT permissible.’

Ethical Concerns in HSC Research Embryonic undifferentiated stem cell research may pose a dilemmatic situation in picking between two ethical principles: • The duty to alleviate suffering • The duty to regard a budding human life It is difficult to regard both of these moral principles in embryonic stem cell research. To acquire embryonic stem cells, the embryo must be sacrificed, i.e., at the cost of a future human life and existence. Yet embryonic stem cell research could prompt the revelation of new treatment modalities that would resolve the incurable diseases and sufferings of numerous desperate patients. Nevertheless, the moral guideline should be based on the principle that ‘an individual has a right to life’. Does the embryo have the status of an individual? Between a needy patient and an embryo, a complete individual has the priority of life first.13

e-Pharmacy

E-pharmacies, or ‘online pharmacies’, are meant for dispensing medicines through virtual platforms. These are recent entrants in the Indian e-commerce industry. In April 2018, the Health Ministry of the Government of India came out with the draft proposal to amend the Drugs and Cosmetics Rules of 1945 to regulate the ‘sale of drugs by e-pharmacy’ by virtue of the Drugs and Cosmet‑ ics (Tenth Amendment) Rules, 2018 w.e.f., 12 October 2018. The primary aim of e-pharmacies is to regulate the monopoly of offline pharmacies, prevent black marketing and illegal hoarding of essential drugs, and provide patients with easy access to pharmacies at home.12, 14

Medical Jurisprudence & Clinical Forensic Medicine

I-18 Rules • It has legalised e-pharmacies in the country. • It allowed the business of distribution or sale, stock, exhibit, or offer for sale of drugs through web portals or any other electronic media on prescriptions from RMPs to a pharmacist. • Prescription from an RMP is mandatory for procuring drugs online. • The prescription may be handwritten or in electronic mode, duly signed to dispense the medicines. • There should be limit on the quantity of the drugs that can be sold to a patient per prescription. • The prescriptions must (both manual and electronic/ digital) technically bear all relevant aspects of the legally valid prescription. Ethical and Legal Challenges • Difficult to examine the genuineness of the prescriptions in routine practice. And this may potentially foster the illegal sale of scheduled and contraband drugs, like ketamine, phenogram, morphine, codeine, etc., which may be abused. • There is no clarity in the rule; each time a new prescription is required for procuring drugs or an old prescription would do the work perennially. This way, illegal stashing of essential medicines may be made using an old prescription for multiple times. • This may foster self-medication, which may have serious outcomes, like unregulated social health issues.

Declarations and Oath Declarations are written statements made solemnly under penalty of perjury, i.e., violations by the declarant attract certain penalties. Professional ethics are implemented through some declarations or oaths that are supposed to be abided by the professionals of that profession. Professional ‘codes of conduct’ are undertaken by doctors through oath. Declarations are made to achieve some specific goal and/or implement professional standards and/or to prevent unethical practice. Many international, national, and organisational declarations mentioned in the text that follows are available for a particular purpose.14, 15 1. Declaration of Geneva. The oldest policies of the World Medical Association originally adopted in 1949. This code was amended several times in the past, and the latest was in 2017. This declaration laid down the International Codes of Medical Ethics. The Declaration of Geneva (2017), published by the WMA reads, as:

As a member of the medical profession: • I SOLEMNLY PLEDGE to dedicate my life to the ser‑ vice of humanity; • THE HEALTH AND WELL-BEING OF MY PATIENT will be my first consideration; • I WILL RESPECT the autonomy and dignity of my patient; • I WILL MAINTAIN the utmost respect for human life; • I WILL NOT PERMIT considerations of age, disease or disability, creed, ethnic origin, gender, nationality, political affiliation, race, sexual orientation, social

• • • • • • • •

standing or any other factor to intervene between my duty and my patient; I WILL RESPECT the secrets that are confided in me, even after the patient has died; I WILL PRACTICE my profession with conscience and dignity and in accordance with good medical practice; I WILL FOSTER the honour and noble traditions of the medical profession; I WILL GIVE to my teachers, colleagues, and students the respect and gratitude i.e. their due; I WILL SHARE my medical knowledge for the benefit of the patient and the advancement of healthcare; I WILL ATTEND TO my own health, well-being, and abilities in order to provide care of the highest standard; I WILL NOT USE my medical knowledge to violate human rights and civil liberties, even under threat; I MAKE THESE PROMISES solemnly, freely and upon my honour.

The latest Geneva Declaration acknowledges respect for the human rights of patients, the value of sharing knowledge with the community/profession, and the right and obligation of physicians to care for themselves. 2. Declaration of Helsinki by the World Medical Association (WMA) in 1964 prescribes ethical guidelines for human experimentation. It defines international standards for conducting biomedical research involving humans. The present drug trials, genetic research, etc. are based on the policies of this declaration in addition to the ICMR guidelines. 3. Declaration of Tokyo (1975) is a set of moral guidelines for medical professionals to prevent torture and other cruel, inhuman, or degrading treatment or punishment in custody (details in Chapter 17). 4. Nuremberg Code (1947) was an outcome of the US military court (US v. Brandt) during trials of Dr  Brandt, a German Nazi concentration camp doctor involved in inhuman experimentation. This court verdict was later considered a guiding principle for developing the Nuremberg Code and Helsinki Declaration. 5. Hippocratic and Charak’s Oath, implemented by the National Medical Commission (Indian Medical Council Act), are to be undertaken and followed by every medical graduate in India before entering (registering at SMC) his profession. This oath prescribes the moral guidelines of practice for medical professionals.

ICMR—Ethical Guidelines for Biomedical Research

The Indian Council of Medical Research (ICMR) is the apex body for formulating, coordinating, and promoting biomedical research in India. It deals with anything related to medical research. The recent ICMR ethical guidelines are:14 • National Guidelines for Ethics Committees Reviewing Biomedical and Health Research During Covid-19 Pandemic, 2020 • ICMR Policy on Research Integrity and Publication Ethics (RIPE), 2019 • National Ethical Guidelines for Biomedical and Health Research Involving Human Participants, 2017 • National Ethical Guidelines for Biomedical Research Involving Children, 2017

Medical Deontology

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National Ethical Guidelines for Biomedical and Health Research Involving Human Participants (2017) The National Ethical Guidelines for Biomedical and Health Research Involving Human Participants is a revised version of the 2006 guidelines released by ICMR in 2017. These guidelines are based on the four basic principles of research ethics: non-maleficence, respect for autonomy, beneficence, and justice. The detailed guidelines can be accessed at the ICMR website.14 ICMR Research Ethics recommends that researchers must be careful of the following ethical issues while conducting biomedical research. Violations would attract penalties in several ways. Ethical issues in health research involving human participants: • Benefit-risk assessment. The benefit of the volunteers must be reasonably more than the potential risks. • Mandatory informed consent process. • Privacy and confidentiality of volunteers/patients. • Selection of vulnerable and special groups as research participants. • Distributive justice, payment for participation, and compensation for research-related harm should be as per ICMR guidelines. • Conflict of interest between the research funding company and the researchers must be declared clearly. • Post-research access and benefit sharing with the community and with professionals. This is to prevent the monopoly over the research result information by the funding companies.

are highly educated, with good moral integrity, and are concerned for their own patients. Then, why does MCI unnecessarily impose a template of the Codes of Medical Ethics (Professional Conduct, Etiquette, and Ethics) Regulations of 2002? Does MCI not have faith in doctors’ ethical and moral integrity? Answer: The source of your professional ethics cannot be from the moral pool of your personal, social, religious, or personal beliefs. To avoid the subjective differences in personal ethics and chaos thereof, all professional disciplines, including medicine, have a defined set of codes of conduct prescribed by their highest autonomous organisation, like the NMC/Medical Council of India. • Does the MCI/NMC have faith in the ethical and moral integrity of doctors or not? MCI/SMC believes that all its members (registered medical practitioners) are competent enough to understand and follow the regulatory guidelines of MCI/SMC, including the Ethical Codes of Conduct Regulations, 2002. Violations of the Ethical Codes of Conduct (2002) Regulation by the Medical Council of India will be considered as professional misconduct and attract disciplinary actions, like penal erasure and temporary cancellation of registration.

Note: For more details, please access the ICMR website at https://ethics.ncdirindia.org/ICMR_Ethical_Guidelines.aspx

Clinician’s Corner

1. What is the difference between the MORAL, ETHICAL, and LEGAL responsibility of a doctor?

Answer: A  medical practitioner has three major responsibilities/duties/obligations: moral, ethical, and legal responsibilities. For example, your colleague (a doctor) or friend is an alcoholic. Now, read these three scenarios: • He drinks very often and is an infamous drunkard in his colony. He has a questionable morality, but he’ll neither be ethically nor legally held responsible. • He visits the OPD and treats patients while drinking alco‑ hol. He has a questionable morality and breaches ethical conduct. He may attract disciplinary action under the violation of the ethical codes of conduct (2002) regulation by the Medical Council of India. However, he will not be held legally responsible. • He injures or kills a patient under the influence of alcohol. He’ll be held responsible morally, ethically, and legally. Police may prosecute him under Sections  304(A), 302, 85, and 86 IPC, as well as disciplinary action by the State Medical Council for a serious breach of the ethical code of conduct.

2. I have been a general practitioner for the last 20 years. Please tell me all doctors, at least in India,

3. I am an oncologist. A  40-year-old widow with two children, a 17-year-old boy and a 12-year-old girl, was referred to me by her gynaecologist to exclude uterine cancer. She was now diagnosed to have grade 3 endometrial carcinoma. She is requesting me to neither inform her kids about her cancer status nor continue cancer therapy (except palliative care) due to the high cost of treatment. She is afraid that this treatment will drain up all her savings before she dies of cancer, leaving her kids to beggary and homelessness. What should I do?

Answer: A doctor’s ethical obligations are to respect all tenets of ethical principles, but in such tricky, dilemmatic situations, a doctor should give priority to the safety, health, and life of a patient. Hence, in this case, beneficence (patient health and life) and nonmaleficence (her children have the right to know) are preferred over autonomy (her wish to keep secret). Hence, better inform the children.

4. I am a general surgeon. Once, it happened that I had to cancel an elective hernia surgery of a local politician’s family member. But on the fateful day of the scheduled operation, my mother got a cerebral stroke and was hospitalised in another city (my native place). Hence, I  had to cancel the elective surgery after informing the patient and family members and rush to my hometown. Two months later, I was surprised to receive memos from the State Medical Council and from the CMO of my hospital stating, ‘Explain why appropriate disciplinary action should not be taken against you for this blatant breach of the provisions of the Ethical Codes of Conduct 2002.’ I felt very bad as a doctor. Even I do not have a right to attend to my sick mother. What kind of justice is this?

Medical Jurisprudence & Clinical Forensic Medicine

I-20 Answer: A surgeon can’t leave a patient under his care without the patient’s consent. In difficult, unforeseen situations, the doctor has two choices:

a. Ask the patient if he is convenient to postponement (in case of elective surgery). b. If he denies or need emergency surgery, immediately refer the case to an appropriate surgeon.

Write explanations to authorities with facts about your rights and what has transpired.

5. I am a practising gynaecologist. A  39-year-old married female who had taken regular antenatal checkup from me now delivered a congenital malformed baby with missing lower limbs and webbing of fingers. The lady had a normal pregnancy course, though she underwent CS delivery due to pre-existing diabetes. However, the radiologist I referred the patient to for USG scanning during ANC had given USG reports with ‘no congenital anomalies in head, neck, and spine’ during all four times. I have advised it as ‘antenatal USG abdomen’. Now the patient sued me for a malformed baby. What should I do?

Answer: The h/o, 39-year-old diabetic woman, itself a high-risk case for congenital anomalies. Why the radiologist focused USG only on the head, neck, and spine during all four times of ANC visit is outside the guidelines of the International Society for Ultrasound in Obstetrics and Gynecology Guidelines, which specifically insist on documenting the presence/absence of limbs. Here the radiologist would be liable for negligence/damages if you have:

• Written ‘USG abdomen for ANC’ on your ANC prescriptions. Keep them for evidence in consumer court. • Explained to the patient about the high-risk nature of her age and diabetes for congenital anomalies.

References

1. Markose, A., Krishnan, R., & Ramesh, M., Medical ethics. Journal of Pharmacy & Bioallied Sciences, 2016, 8(Suppl 1): S1–S4. https://doi.org/10.4103/0975-7406.191934 2. Hain, R.,  & Saad, T., Foundations of practical ethics. Medicine, 2016, 44(10): 578–582. 3. Alexander, L., & Moore, M., “Deontological ethics.” In The Stanford Encyclopedia of Philosophy, E.N. Zalta (ed.), Metaphysics Research Lab, Stanford University, 2021. 4. Clouser, K.D., & Bernard, G., Morality vs. Principlism, John Wiley and Sons, 1994. 5. Clouser, K.D., Common morality as an alternative to principlism. Kennedy Institute of Ethics Journal, 1995, 5(3): 219–236, 224. 6. Beauchamp, T.L., & Childress, J.F., Principles of Biomedical Ethics (5th Ed), Oxford University Press, 2001. 7. The Ethics Centre, What Is Teleology? – Ethics Explainer. The Ethics Centre. April 4, 2022. https://ethics.org.au/teleology/. 8. Johnson, R., & Cureton, A., “Kant’s moral philosophy.” In The Stanford Encyclopedia of Philosophy, E.N. Zalta & U. Nodelman (eds.), Metaphysics Research Lab, Stanford University, 2022. 9. Heuer, U., “The paradox of deontology revisited.”  In Oxford Studies in Normative Ethics, M. Timmons (ed.), Oxford University Press, 2011, pp. 236–267. 10. Winkler, E.A., Are universal ethics necessary? And possible? A systematic theory of universal ethics and a code for global moral education. SN Social Sciences, 2022, 2(5). https://doi.org/10.1007/s43545-022-00350-7. 11. Goldsmith, J., The NMC code: Conduct, performance and ethics.  Nursing Times, 2011, 107(37): 12–14. https://pubmed.ncbi.nlm.nih.gov/22010552/. 12. George, A.A., “Genetically modified crops and regulations in India—Clear IAS.” ClearIAS, October  4, 2014. www.clearias.com, www.clearias.com/ genetically-modified-crops-and-regulations-in-india/. 13. Shankar, R., “ICMR releases revised draft national guidelines for stem cell research, 2017.” Topnews(blog). Pharmabiz.com, July  19, 2017. http://pharmabiz.com/ ArticleDetails.aspx?aid=103216&sid=1 14. Indian Council of Medical Research, ICMR Ethical Guidelines, 2018. https://ethics. ncdirindia.org/ICMR_Ethical_Guidelines.aspx. 15. The World Medical Association, Declaration of Geneva, October, 2017. www.wma. net/policies-post/wma-declaration-of-geneva/.

CHAPTER 3 MEDICAL PRACTICE Ambika Prasad Patra

Chapter Highlights • • • • • • • • • • • •

Macro- and micro environments around medical practice Medical education and licensing in India National Medical Commission Medical councils and related laws Registered medical practitioners Physician and the patient Consent Telemedicine Virtual medicine in Covid-19 pandemic Medical tourism ABCD of safe medical practice Clinican’s corner

Introduction The evolution of medical practice has taught us one thing: medical practice, which originated as the noblest, most respected profession in the Charakas era, has entered into an era of consumerism. Once accepted as the person ‘next to god’ by society, doctors are now considered just service providers to their consumers. The practice of medicine is an art, not a trade; a calling, not a business; a calling in which your heart will be exercised equally with your head. —Acharya Charaka, 900 BCE The culture of medical practice in India and most parts of Asia had traditionally been patient-centric and self-regulated, until a Western template of medical practice was thrust upon this country. This stigma of British colonial era has continued till now in our minds. The holy doctor–patient relation has been further worsened with consumer laws. The entry of corporate culture by business entrepreneurs into the healthcare sector has led to the consumerisation of medical service, ruining the holiest relationship of doctor and patient. The purest form of the doctor–patient relationship is now more observed in texts than in practice. Due to consumerisation, defensive medicine became the ultimate practice. There is serious surge in medical litigations, acts of violence against doctors, etc. A registered medical practitioner (RMP) now lives with a fear of legal litigations or violence at the workplace. When a sincere, naive, medical student completes his medical degree, he enters into the practice with many dreams to save his patients. But he is often confused to see doctors violated by the patients, attendants, police, etc. He fails to understand why this happened to him despite completing his degree successfully.

medical graduates violated by the public or police, even their subordinates or colleagues. Where does it go wrong? Nevertheless, it is evident that having ample skill and knowledge of medicine may not be sufficient to thrive in medical practice, until the doctor is oriented to the macro- and microenvironments surrounding his practice field.

Macro- and Microenvironments of Medical Practice Two broad environments surround the medical practice. These environments should be clearly understood because they incessantly interact with the medical practice, and most real-life issues usually come from these environments only. Somebody not oriented to these environments may face problems from the same domain.1 Medical Practice Environments 1. Microenvironment. The immediate small-scale operating environment around the doctor, for example, comprises the healthcare professionals who work in a hospital, like doctors, paramedics, patients, healthcare administrators, etc. The following are three essential qualities a doctor must have to survive in this microenvironment (Figure 3.1): a. Skills and knowledge of medicine. These are basic tenets of medical practice. Note the golden rule: knowledge alone will give you confidence, and skill alone may sharpen your habits, but for competent decision-making (right decision at the right time), one needs both knowledge and skill. One should apply this principle in practice.

How often is it true that a best medical graduate turns out to be the best medical practitioner? The answer is an open truth—very insignificant numbers, though. The author has witnessed a dismaying number of best

FIGURE 3.1  The cog system of successful medical practice.

DOI: 10.1201/9781003139126-4I-21

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FIGURE 3.2  Macroenvironment around the medical practice. b. Knowledge of legal medicine. Legal hurdles for doctors mostly arise from microenvironments (litigant patients, negligence suits, medicolegal issues, etc.) and few from the macroenvironment. c. Ethics, etiquette, and professionalism. Professionalism is an outcome of competence, skill, and character built on moral standards recommended by the medical council (medical ethics and etiquette). For details, see Chapter  2, ‘Medical Deontology’ (Figure 3.1). 2. Macroenvironment. It refers to all those factors or external forces that indirectly affect the routine medical practice or the working conditions in a hospital, for example, external factors like the sociocultural environment, laws and regulations, medical technology, etc. (Figure 3.2). • Laws and regulations. One must keep himself updated with the laws related to healthcare professionals, like the MTP Act, PC-PNDT Act, Essential Services Maintenance Act/ESMA, etc. Ignorance of the law is not an excuse for your mistakes in court. Never expect sympathy from the court for an inadvertent, innocent mistake by you due to a lack of knowledge about the law of the land. The court presumes that every citizen is aware of all laws of the land. • Government rules/statutes. A healthcare professional must abide by the government rules, regulations, or statutes published from time to time. For example, Covid-19 guidelines, duty in notifiable diseases, government health schemes, national disease control programs, warning notices of SMC, changing medical council rules, etc. • Sociocultural norms. One must be sensitive and deal respectfully with some social issues, like cases related to teenage marriage in a society (which may contradict POCSO laws), feeding honey at birth instead of first milk, examining female patients, etc. • Society. A doctor should be respectful and sensitive to the language, food habits, attire, lifestyle, etc. of the society he works in. One should refrain from unnecessary comments or poking into social issues unrelated to his profession.

Medical Jurisprudence & Clinical Forensic Medicine • Religious practices. One must be patient, sensitive, and careful while dealing with religious issues. For example, many denied taking Covid vaccine on religious grounds, some religions/sects do not permit autopsy, etc. • Political issues and politicians. Many instances of violence against doctors by unruly politicians and bureaucrats have been reported. A  doctor who is aware of his duties and responsibilities and his rights clearly can deal better with autocratic politicians or bureaucrats. Speak politely yet firmly of your point. This way, one need not give in to somebody’s red eyes. Some interesting cases about this may be read in the ‘Clinician’s Corner’ section. • Media. This tenet is a double-edged sword that may worsen your case if not handled appropriately. Maintain equidistance and avoid giving over-enthusiastic public bites. Any sensitive issues directly related to your work, better give brief careful statements. Note that a doctor is not obliged to provide any explanation or answer to the media. You can keep silent or say, ‘No comments as of now.’ Never speak ill of others or colleagues, irrespective of your personal views on them. Many RMPs have been penalised by the medical council disciplinary board for their offensive media debates/comments about other doctors on sensitive medicolegal issues. In ML cases, just say, ‘It’s a confidential or sub judice matter. You may collect information from the concerned court.’ • Social media. Another monster-like media can ruin you if not handled carefully. Ideally, one should not use his professional ID for social media if it is not used for business purposes. An alias/masked ID is better for personal use. • Changing medical technology/trends. A  physician trained in the old-school manner should be able to rapidly update himself with the changing medical technologies, like nanomedicine, nano-oncology, monoclonal antibody–mediated therapies, etc (Figure 3.2).

Medical Education and Licensing in India The National Medical Commission Act, 2019 defined the term ‘medicine’ under Section 2(j) to read as ‘modern scientific medicine in all its branches and includes surgery and obstetrics, but does not include veterinary medicine and surgery’. Hence, medi‑ cine means all systems of medical practice in India except the veterinary sciences. The National Commission for Homoeopathy Act 2020 has not defined the term medicine or surgery (Figure 3.3).2 1. Medical Education in India The original system of medical practice in India is Ayurveda (science of life), which continued from ancient India. Even presently, Ayurveda household remedies are common forms of medical care in Indian households, especially in rural India. Ayurveda as a system of medical practice was predated by Western medicine during the British colonial rule. Currently, in India, the standard medical degree in modern medicine is bachelor of medicine and bachelor of surgery (MBBS). However, alternative systems of medical degrees collectively referred to as AYUSH, i.e., Ayurveda and Yoga (BAMS), Unani (BUMS), Siddha (BSMS), and homeopathy (BHMS), are also commonly practiced in India. Often, there is cross-pathy practice among

Medical Practice

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Medical Councils and Related Laws National Medical Commission5–8 Abbreviation NMC Predecessor Medical Council of India Formation 25 September 2020 Purpose Medical education and practice regulatory agency Headquarters New Delhi Chairperson A lways a medical professional (doctor) Main organ Commission Affiliations Ministry of Health and Family Welfare Formation National Medical Commission (NMC) Act 2020 History

FIGURE 3.3  Regulation of medical practice in India. these AYUSH and modern medicine practitioners which is, though not legal, practiced rampantly. The MBBS degree is a credential earned after completing a five-and-a-half-year undergraduate medical course. The curriculum is divided into one year of basic clinical science subjects and three and a half years of paraclinical and clinical studies, followed by one-year clinical internship (house surgeon). Before beginning the internship, medical students have to clear several university examinations, the final one of which is conducted in two parts. Postgraduate education in medical specialities typically takes three additional years of study after getting an MBBS degree and concludes with the certificate of a master of surgery (MS) or doctor of medicine (MD) degree. Postgraduate diplomas in various medical specialities also are awarded upon the completion of two-year training programs. The same rules also apply to acquiring degrees in alternate medicine courses. 2. Medical Licensing in India The National Medical Commission (NMC) has been empowered by certain acts of Parliament. It governs all systems of medical practice, including allopathy, and ensures maintenance of highest standards of practice in this field of medicine. • The modern system of medicine. Indian Medical Council Act 1956/NMC Act 2020 and governed by the new National Medical Commission (erstwhile Medical Council of India/MCI). 3 • The AYUSH system of medical education. National Commission for Indian System of Medicine Act 2020, National Commission for Homeopathy Act 2020, etc. Before the NMC Act was enacted in 2020, these systems were regulated by a separate ministry, the CCIM (Central Council of Indian Medicine), CCH (Central Council of Homeopathy), etc.4 All medical practitioners in India are officially mandated to register with one of the country’s 29 State Medical Councils (SMC) after completing a degree in a particular system of medicine. This pattern of medical education system is similar in almost all countries of the Indian subcontinent too.

• The Medical Council of India (MCI) was an autonomous (a council of professionals) and regulatory authority for medical education and practice in India until 2020. It was established in 1934 under the Indian Medical Council Act 1933, repealed in 1956, and further modified in 1964, 1993, and 2001. • The main objective was to establish uniform standards of medical education and practice, and the recognition of medical qualifications within India and abroad. • However, after years of apathy of office bearers, corruption allegations, toothless administration, etc. brought MCI officials under the scanner. The NITI Aayog and the planning commission have recommended the replacement of MCI with the National Medical Commission (NMC). One fine day, a commission (an authority that acts as an agent) engulfed this autonomous body. • The Supreme Court had also allowed the central government to replace the MCI and said five specialised doctors from reputed institutes should monitor the medical education system in India (from July 2017). • The National Medical Commission ordinance was brought in January  2019 by the president of India to replace  MCI. Most states approved this decision, and both houses of Parliament passed the final bill in 2019. President of India, Pranab Mukherjee, approved the National Medical Commission Bill 2019 on 8 August 2019. • Since 25 September  2020, the National Medical Commission (NMC) has replaced MCI. The NMC was constituted by an act of Parliament, the National Medical Commission Act 2019, and came into force on 25 September  2020 by a gazette notification dated 24 September 2020.

Objectives of NMC The National Medical Commission Act 2019 laid down the following objectives for NMC, which is aimed at: • Providing a medical education system that improves access to quality and affordable medical education, ensures availability of adequate and high-quality medical professionals in all parts of the country. • Promoting equitable and universal healthcare that encourages community health perspective and makes services of medical professionals accessible to all the citizens.

I-24 • Promoting national health goals. • Encouraging medical professionals to adopt the latest medical research in their work and to contribute to research. • Ensuring transparent and periodic assessment of medical institutions. • Facilitating maintenance of a medical register for India and enforcing high ethical standards in all aspects of medical services. • Having a flexible attitude to adapt to the changing needs and having an effective grievance redressal mechanism for matters connected therewith or incidental thereto. Note: All rules and regulations of the Indian Medical Council Act 1956 are prevailing after the formation of the NMC and will continue further as per Section 61(2) of the NMC Act 2019.

Regulation of NMC6

There is a decent division of labour with specific accountability and responsibility of the NMC board members and executives. Hence, the commission consists of four autonomous boards to regulate medical education and practice in India. Autonomous Boards

1. Undergraduate Medical Education Board (UG-MEB) 2. Postgraduate Medical Education Board (PG-MEB) 3. Medical Assessment and Rating Board 4. Ethics and Medical Registration Board (EMRB)

Composition of NMC

The NMC board comprises members from various fields who can use their expertise to develop medical education and practice standards in the country. The NMC consists of 33 members (from various areas, states, and centre), as follows: 1.  Chairperson. To be occupied by medical professionals only. This is to keep the autonomous status (like MCI) intact. 2. 10 ex officio members. It includes: • The presidents of the: • Undergraduate Medical Education Board • Postgraduate Medical Education Board • Medical Assessment and Rating Board • Ethics and Medical Registration Board • The director general of Health Services, New Delhi • The director general of the Indian Council of Medical Research (ICMR) • The director of any of the  All India Institutes of Medical Sciences (AIIMS) • Two members from among the directors of any of these following on a rotation basis: • Jawaharlal Institute of Postgraduate Medical Education and Research (JIPMER) • Postgraduate Institute of Medical Education and Research • Tata Memorial Hospital • North Eastern Indira Gandhi Regional Institute of Health and Medical Sciences • All India Institute of Hygiene and Public Health • One member to represent the  Ministry of Health and Family Welfare 3. 22 part-time members:

Medical Jurisprudence & Clinical Forensic Medicine • Three members are appointed from among persons with special knowledge and professional experience areas—management, law, medical ethics, health research, consumer or patient rights advocacy, science and technology, and economics. • Nine members appointed from among the nominees of the states/union territories for the Medical Advisory Council. • Ten members appointed (rotational basis) in the Medical Advisory Council from among the nominees of the states/union territories. Note: At least 60% of the members must be medical practitioners.

Functions of the NMC

The NMC now carries out all functions of the erstwhile MCI, but in an organised way—i.e., it created various boards and committees comprising relevant medical, management, law, science, deontology, etc. experts as its members. There are several functions bestowed on the NMC. • The erstwhile MCI acts and amendments presently car‑ ried on to the NMC are: • The Indian Medical Degree Act 1916 • The Indian Medical Council Act 1956 • The First Schedule of the IMC Act • The Second Schedule of the IMC Act • The Third Schedule of the IMC Act The following are the primary functions of, but are not limited to, the NMC. 1. Regulatory Authority • Promote, coordinate, and frame guidelines and lay down policies for the proper functioning of the commission, the autonomous boards, and the State Medical Councils. • Ensure coordination among the autonomous boards. • Take measures and ensure compliance of the State Medical Councils with NMC guidelines. • Frame guidelines for determination of fees and all other charges in respect of 50% of the seats in private medical institutions and in deemed-to-be universities as per the provisions of the NMC Act, and exercise such other powers and perform such other functions as may be prescribed. 2. Regulate Medical Practice • Establish uniform standards of medical education and healthcare practice. • Lay down policies for maintaining a high quality and high standards in medical education and make necessary regulations in this behalf. • Lay down policies for regulating medical institutions, medical researches, and medical professionals and make necessary regulations in this behalf. • Assess the requirements in healthcare, including human resources for health and healthcare infrastructure, and develop a road map for meeting such requirements. • Issue permission to start new medical colleges and new medical degrees/courses, to increase seats, etc.

Medical Practice • Recognition/derecognition of medical qualifications within and outside India. • Maintain the proper standard of medical education. Periodic inspections are made in various medical institutions across the country by independent reviewers to audit the actual standard of medical facility, education, and practice standards. • Periodically issue warning notice bearing the list of acts/ conducts that shall be considered professional misconduct. • Appellate authority. The NMC exercises appellate jurisdiction w.r.t. the decisions of the autonomous boards. Anybody dissatisfied with the findings or disciplinary actions of the State Medical Council (SMC) can appeal to the Central Health and Family Welfare (H&FW) Ministry within 30 days of the decision. The H&FW Ministry will take the final decision after consulting the concerned board of NMC.

I-25 4. Medical Registration7 The IMC Act 1956 empowers the NMC to provide for the registration of medical practitioners in India and matters connected therewith. The objective is to protect the health and safety of the public by providing mechanisms to: • Ensure that registered medical practitioners are competent and fit to practise medicine. • Uphold standards of practice within the medical profession and maintain public confidence in the medical profession. Registration of Medical Qualifications • Permanent and provisional registration • Registration of additional qualifications like MD, MS, MCh, etc. • Issue Good Standing Certificates for doctors going to practice abroad.

3. Recognition of Medical Qualifications7

5. Maintenance of the Medical Register

• The Indian Medical Council (IMC) Act 1956 empowers the NMC for the recognition or derecognition of medical qualifications provided by the medical institutions of India and foreign medical qualifications. All recognised medical degrees are enlisted in three schedules of the NMC. • Schedules of the IMC Act: 1. Schedule I of the IMC Act. Includes a list of recognised and permitted medical qualifications awarded by Indian universities/institutions, for example, MBBS, MD, MS, DNB, DM, MCh, etc. 2. Schedule II of the IMC Act. Includes a list of recognised medical qualifications awarded by medical institutions outside India, i.e., foreign medical degrees. Examples: FRCP, MRCP, FRCS (by the Royal College of Physicians/ Surgeons of London/England), MBBS (Kathmandu), MBChB (Birmingham), MBBChir. (Cambridge), etc. 3. Schedule III of the IMC Act. The third schedule of the IMC Act (Section 13): • Part I. It includes a list of recognised medical qualifications NOT included in Schedule I. These are usually diplomas or medical/surgical degrees awarded by some Indian state governments, societies, and boards. • Example: DGO (diploma in gynaecology and obstetrics) and FCPS (ophthalmology) by the College of Physicians and Surgeons, Bombay; DMSM (diploma in modern medicine and surgery) by the Orissa government; LMP (licensed medical practitioner) by the Gujarat and Kolkatta government, etc. • Part II. It includes a list of recognised medical qualifications granted by medical institutions outside India and not included in Schedule II—for example, diplomas/degrees/fellowships awarded by foreign societies and boards. • Example: MBBS (Karachi and Dacca), MD (Geneva, Switzerland), MBBS and MD (Durham, UK). Certificates/diplomas of the following approved examining boards of the USA and Canada—FRCS and FRCP (Canada).

Maintain and update the Indian medical register in sync with the entries in the State Medical Council registers.

Mutual recognition of medical qualifications with medical universities or institutions outside India. It may derecognise some degrees mutually if necessary.

6. Right to Information The NMC has been brought under the purview of the RTI Act for necessary public information. This is to maintain transparency and public participation in developing medical practice in India. 7. Professional Codes of Conduct The NMC lays down policies and codes to ensure observance of professional ethics in the medical profession and to promote ethical conduct during the provision of care by medical practitioners. State Medical Council The State Medical Council is an autonomous body established under the State Medical Council Act, which is carried over by the NMC Act 2019. The Indian Medical Council Act 1956 (Section 2[j]) defined the State Medical Council as a medical council constituted under any law for the time being in force in any state regulating the registration of practitioners of medicine. Constitution of SMC The SMC comprises: • Members elected from among themselves by registered medical practitioners (RMP) • Members nominated by the state government • The president and vice-president of the council—elected by the members from among themselves Functions of SMC • Medical Register • The Indian Medical Council Act 1956 defined the ‘state medical register’ as a register maintained under any law for the time being in force in any state regulating the registration of practitioners of medicine. • Registration of medical graduates. Any person having any of the recognised medical qualifications can get his name registered with payment of nominal registration fees. It is necessary to undergo a period of training/internship/ horsemanship/house surgeon before granting such

Medical Jurisprudence & Clinical Forensic Medicine

I-26 qualification. A provisional registration certificate issued by SMC to practice as an intern/house surgeon. • Registrar appointment. SMC appoints a registrar, who upkeeps the register of the medical practitioners and facilitates the process of provisional/permanent medical registration. • Medical Register Maintenance • Maintaining and updating the details, i.e., name, residence, qualification, date of registration, etc., of the RMPs. The SMC registrar periodically informs the NMC about the time-to-time entries/additions/corrections/ deletions in the state medical register and automatically updates the same in the central medical register. • Disciplinary Control • Warning notice. Issued by SMC from time to time for awareness of RMPs about activities considered as professional misconduct. • Discipline action. SMC has disciplinary control over all RMPs in allegations/suo moto cases of professional misconduct or malpractice. • Penal erasure. Temporary or permanent removal of medical registration of an RMP as a disciplinary measure/punishment. The SMC is the authorised body to revoke/restore the names in the medical register. The blacklisted RMP names are intimated to the NMC for needful action. • Warning Notice • It is a misnomer as it is not related to any punishment but is a list of conducts or activities considered infamous conduct or professional misconduct if any medical practitioner indulged in it. • If any doctor involved or alleged to be involved in the activities enlisted in the warning notice shall attract the charge of infamous conduct and disciplinary action by the SMC thereof. • After receiving complaints or sou moto, an enquiry will be started by the State Medical Council for further action. • The warning list is neither a complete one nor intended to be complete. For example, if any unlisted act or conduct is perceived as professionally unsound, then the same will be entered into the existing list of warning notice and the NMC publishes/circulates the updated list among RMPs. • What is the difference between a warning letter and a warning notice? A warning letter is a communication or memo issued to an RMP after receiving complaints by the SMC. After perusal of the matter, if the SMC disciplinary board decides that a warning to the RMP would be sufficient for the first time, then a warning letter will be issued to him with a caution note for refraining from such conduct/activities in the future. • Professional Misconduct • Any disgraceful or dishonourable act or conduct, irrespective of whether i.e. enlisted in the warning notice and/or NMC Professional Codes of Conduct 2022 guidelines or not, shall be considered infamous conduct. Note that which activity shall be

professional misconduct is decided neither by the police nor the law but by medical profession bodies (NMC, SMC). See Chapter 5 for more details. • Penal Erasure • Also known as professional death sentence. It is a temporary or permanent penal action taken in proven serious professional misconduct by an RMP. The doctor’s name is removed/suspended/blocked from the medical register. Examples: – Disciplinary action by the SMC taken after receiving a complaint against the RMP from the aggrieved patient. – Breaching NMC ethical codes of conduct guidelines, professional misconduct, or disobeying warning notices. • Professional death sentence is permanent penal erasure in case of: • Death of the medical practitioner. • Fraudulent entries or entries by an error in the medical register. • Doctor convicted for crime. • Note: The convicted medical practitioner can appeal to the central health ministry against the action taken by SMC, who, in consultation with NMC, can modify the punishment. • Grievance Redressal • Redressing grievances of the RMPs, public, or patients when received through a proper channel. The SMC can take suo moto action if necessary in particular issues. Grievance Redressal Procedure of SMC 1. Initiation of enquiry. When any complaint is received by the registrar (of SMC office) from an aggrieved patient or any authority or organisation against an RMP, the process for enquiry is started. The SMC registrar can start suo moto enquiry when an RMP indulges in serious professional misconduct or is convicted for a criminal offence. 2. Cognisance. The registrar of the council submits the complaint to the president for further escalation of the issues. 3. Enquiry committee. The president refers the complaint to the executive committee (EC), and further investigations are made through the committee. May consider legal advice (if needed). Some designated committee members enquire about the facts on the ground within the ambits of Sections 193, 219, 228 of IPC. 4. Summons. A notice issued to the accused RMP through his employer (if employed) specifying the nature and particulars of the allegations against him. He may be summoned to attend before the SMC-EC on a specified date and time or may direct him for a written explanation with necessary proofs (if any) against the charges within a specified duration. 5. Judgement. After receiving the facts/explanations/evidences from both parties, the EC will conclude the case under the chairmanship of the president. The final judgement is based on the vote count among the EC members in favour or against the complaint.

Medical Practice • If the majority vote favours the allegation, then again a vote is retaken to decide whether the name of the RMP should be removed from the SMC register or if he may be warned. • In case of penal erasure/blacklisting/suspension of the name from the register, it should be widely circulated to NMC, local press, various medical associations, etc. One can find the blacklisted doctor’s name simply by visiting an NMC website. • If no prima facie evidence is found and the RMP is not guilty, the decision is communicated to the complainant. 6. Appeal. The aggrieved party is free to appeal to the Central Government Health Ministry within 30 days from the date of the decision, along with copies of all relevant documents. The final decision of the Health and FW Ministry, which is given after consulting the NMC, is binding on the state government, the State Medical Council, and the patient. A  dissatisfied party may appeal the case further to a high court or the Supreme Court.

Registered Medical Practitioners • A registered medical practitioner (RMP) refers to a person holding a qualification granted by an authority mentioned in the Indian Medical Degrees Act 1916. It also includes persons entitled to be registered as a medical practitioner under any law as per the Medical Council of India (MCI) Act 1956 or recognised by the National Medical Commission (NMC). • Having registered with the medical council, his name/ details entered in medical register, and received his medical registration number, he is eligible to practice medicine legally. With this, the RMP can enjoy some privileges, professional rights, and is obliged to maintain some responsibilities, viz. legal, ethical, social, or humanitarian. • Privileges of the RMP. A registered medical practitioner can: • Sell medicines, but only to his patients and to his prescription. He shall comply with all legal and pharmacy dispensing rules/laws. • Prescribe dangerous drugs to anybody who is his patient. No law or rule is barring a doctor for writing prescriptions for himself or his family members, but it must be under reasonable medical grounds. • Issue medical certificates to patients he has treated. This may include his family members too. No law prevents a doctor from issuing medical certificates to himself or his family members who have been treated under his care. However, selfcertification may be questionable on technical basis for some diseases where the RMP is unlikely to examine himself, for example, doing light/corneal reflex tests, percussion test on chest, etc. Hence, it should be avoided due to the technical improbabilities of self-examination. And many consider it as an unsound practice. • Harvest organs for transplantation, i.e., eye donation camp or from a dead body (Bombay Corneal Grafting Act 1957).

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FIGURE 3.4  Ethical, moral, and legal responsibilities of an RMP. • Depose evidence at any inquest or in any court of law as an expert under Section  45 of the Indian Evidence Act 1872 (1 of 1872) on any matter relating to medicine. • Use a signboard or notice on his premises about his treatments or services. • Publish a scientific paper or a column in a newspaper/ magazine or write books about his patients’ diseases or disorders and their management. But it should be meant for a bona fide scientific or social standpoint, keeping the patient’s privacy and identity a secret. • However, misusing this right and blatant posts by many doctors on their social media accounts about their surgeries, achievements, patient interviews, etc. to promote themselves or for self-glorification have been identified as a type of professional misconduct (Figure 3.4).

Physician and the Patient (Please see Chapter 5, ‘Patient, Physician, and the Law’, for more details.)

Consent

This is an agreement, compliance, or permission given voluntarily without compulsion after getting all concerned information about the facts before approval. Components of Consent 1. Freeness. Given voluntarily, without coercion, intimidation, or manipulation. 2. Prior authorisation. Must be obtained before the commencement of activities. 3. Total information. All information about the pros, cons, and even remotely possible information should be given (Figure 3.5).

Legally Valid Consent

Some relevant consent laws governing what should be legally valid consent are listed in the following: • Section 87 IPC states that a person of age 18 years and above can give valid consent if he is in a sound state of mind. The Indian Contract Act (Section 11) states that every person of the age of majority is competent to be a part of a contract. • Sections 89, 90, and 92 IPC. Consent becomes null and void if it is not in the best interest of the patient or is obtained in an unfair manner.

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FIGURE 3.5  Types of consent.

• Section  89 IPC. A  child under 12  years cannot give valid consent for a medical examination. But consent is not mandatory to save his life or for his safety, with good faith. A child of 12 years old and above can consent to medical examinations and minor medical procedures, for example, routine injection or IV lines. • Section 90 IPC. If consent is obtained by misinterpretation, through fear, from a mentally unsound or intoxicated person, or from a child 18  years) has the right to refuse examination or treatment. • The family members/legal heirs of incompetent patients (unconscious, intoxicated, mentally unsound, minor) are equally competent to give informed refusal. • Even prisoners and those accused of crime have the right to refuse treatment but have some limitations for medicolegal examination. 3. Informed permission. This is a proxy system for getting informed consent from minor children. • The IC of a minor (under 18 years) child is not valid. Hence, his parents/legal guardians must permit for treatments or interventions on behalf of the child after understanding the facts. • Hence, technically this is not an informed consent but an informed permission. • Exemptions to informed permission. A  legally emancipated child may provide informed consent for himself. An emancipated minor child is one who is: a. Under 18 and married b. Serving in the military c. Able to prove financial independence d. Mother of children (married or not) 4. Open consent. The consent given for unrestricted redisclosure of personal information originating from a confidential relationship, for example, patient medical records, user–company relationship, etc. • The most typical way of giving open consent is ticking the ‘Accept’ or ‘I agree’ ticking box while installing smartphone apps or computer software. The user often ticks the checkbox without reading the

I-29 huge terms and conditions list. Because he has no other choice but to use that app/software, the user often blindly consents to the app/software company owner accessing his privacy, viz. contacts, media, photos, etc. Suppose the user will ‘decline’ the terms—he wouldn’t be able to use the app, nor will his money which he paid to purchase the app be refunded. • Open consent is given in biobanking, for example, semen/stem cell banks, etc. This way, the user can get the full benefit of the future services from the agency/ company. • Open consent is a debatable concept and needs refinement of laws before the public can succumb to corporate monopoly like the software companies are doing (Figure 3.6). Exceptions to the Doctrine of Full Disclosure (Informed Consent) 1. Presumed consent 2. Loco parentis in emergency conditions 3. Therapeutic privilege Indirect Consent

1. Presumed consent. In an emergency, if a patient is not in a situation to give his consent, the consent is presumed and treated to save his life. • The ‘acts of good faith’ is legally acceptable and not punishable (Section 92 IPC). • Note: The permission/consent here should be given by the chief doctor or the senior-most doctor. • In a minor, the same principle is applied even if he gives consent.



2. Loco parentis. Loco, without careful thought; parentis, parenting. • In the absence of the natural parent or formal legal approval, a legal doctrine describing a relationship like that of the natural parents of a child is acceptable as per the provisions of loco parentis under the consent law. • A relationship in which a person in charge of a child puts himself in the situation of a parent by assuming and discharging the obligations of a parent for the child and gives consent for his safety and life. • It is temporary in nature—legal validity stops upon the arrival of the natural parents or legal guardians. • Example: In an emergency involving children not being able to give valid consent, a schoolteacher can give consent to treat the child if he becomes sick during a picnic trip.



3. Therapeutic privilege. A condition wherein a doctor is privileged to conceal the whole or part of the health information to the patient, in good faith and for the patient’s benefit; instead, informs a competent family member of the patient. • In simple terms: Don’t lie, but don’t tell the whole truth as well. This is an exception to the rule of ‘full disclosure’. • The law allows the doctor to take any and all actions in the best interest of the patient’s health and safety. Hence, therapeutic privilege is only considered when

Medical Jurisprudence & Clinical Forensic Medicine

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•

• • • •

such situations arise where his disease or diagnosis information can be life-threatening or can worsen his health conditions. Examples: Therapeutic privilege taken by a doctor in breaking bad news about the diagnosis of a fatal malignancy, or HIV may not be disclosed directly to the patient if disclosing the information would bear the risk of harming the patient  (e.g. causing depression, resignation, or anxiety). Instead, if possible, the physician should explain the risks to the patient’s spouse or next of kin. Criticism against therapeutic privilege. Although there is legal recognition of therapeutic privilege, it is controversial on ethical grounds. Contrary to this belief, informed patients may take a better decision after getting the whole truth. Withholding information from patients may erode the doctor–patient relationship. A therapeutic privilege protocol should be followed to determine the suitability of the cases for TP.

Professional Secrecy It is the bona fide right of the patient to his privacy. It is the legal and ethical obligation of a doctor to preserve patient confidentiality (right to privacy) intact. • Patient Confidentiality • All patient-specific information must be kept confidential at all costs, except under legal compulsion or for public goodness. • Patient information may be disclosed with his permission, but only to the desired party/purpose for which the consent was obtained. • Exceptions • Legal compulsion. Court order, police investigations, and patient’s insurance companies have the right to access the patient’s information. But in case of insurance companies asking for patient details, the patient must be informed about the same and give his confirmation, while in police or court cases, it is not necessary to inform the patient. • Ethical obligations. Asked by another doctor presently treating the patient for academic, statistical, or research purposes but without disclosing patient identity (names/face). It is the responsibility of the doctor/researcher to keep all marks/signs of identification confidential. • Privileged communication. The doctor is dutybound to disclose patient information only to the concerned authority.

Critical Analysis of Current Medical Practice Privileged Communication • It is bona fide information of a doctor about his patient on a matter of public concern to the relevant authority. The doctor makes this statement to protect the interest of the community. • Examples:

• If a doctor knows that his HIV+ patient is going to marry a healthy woman, then he must advise/counsel the patient to avoid this marriage or marry an HIV+ woman. Despite all possible efforts, if the doctor fails to prevent the patient from marriage, he has to inform the bride about his HIV-positive status. • If a colour-blind patient joins the railway or traffic police service, the doctor must inform the concerned authority upon receipt of the information. • Even upon receipt of a single case of anthrax or Covid-19, the doctor must inform the concerned health authority, viz. CDMO. • Similarly, a doctor must inform the concerned authority about communicable diseases, notifiable diseases, and suspected (medicolegal) cases, for example, gunshot wounds, child abuse, sexual abuse, etc. Conditions for Privileged Communication • • • • • • •

Infectious diseases Venereal diseases Employers and employees Notifiable diseases Suspected crime Patient’s own interest In courts of law, police cases

Telemedicine WHO defines telemedicine as:8 The delivery of health-care services, where distance is a critical factor, by all health-care professional using information and communications technologies for the exchange of valid information for the diagnosis, treatment, and prevention of disease and injuries, research and evaluation, and the continuing education of healthcare workers, with the aim of advancing the health of individuals and communities. Scope • Offers access to medical and health services to patients in remote locations and vulnerable populations. • Includes all communication channels with the patient that leverage information technology platforms, including voice, audio, text, and digital data exchange. Who Can Practice Telemedicine? • A registered medical practitioner is eligible to provide telemedicine consultation to patients within India if indications are there. • Any RMP who wishes to practice telemedicine should be familiar with the regulatory norms, guidelines, processes, and limitations of telemedicine practice. • Any misconduct complaints or breach of medical council ethical codes of conduct will be dealt through the State Medical Council of the state where the RMP is located at the time of teleconsultation. Exclusions to Telemedicine Practice • RMP of foreign nationality/outside the jurisdiction of India (unless specifically indicated).

Medical Practice • Absence of prescribed specifications for hardware, computer programs, infrastructure, building and technology maintenance, etc. • Lack of prescribed standards and interoperability of data management systems (security of patient-related information). • Conduct of remote surgeries or invasive procedures. • Research and statistical purposes or conferences, workshop, CMEs, etc. Technology

There are three primary modes of telemedicine consultation: 1. Video 2. Audio 3. Text (chat, messaging, email, fax etc.)

Ethical and Legal Issues of Telemedicine 1  Ethical Issues8 a. A telemedicine facility should be used in situations where the RMP cannot be physically present within a safe and acceptable time period and for the management of a chronic condition or follow-up after initial treatment after the establishment of mutual trust and respect. This is achieved by ensuring patient confidentiality, privacy, data integrity and by getting proper informed consent. b. The RMP has full autonomy and privacy with respect to telemedicine consultation in timing, following ethical and legal framework, exercising their professional discretion in deciding which mode of consultation is required for the patient and the appropriate platform for telemedicine consultation. c. The RMP should keep a detailed record of the advice they deliver as well as the information they receive on the basis of which advice was given, to ensure accountability, responsibility, traceability. d. The possibilities and weaknesses of telemedicine must be duly identified. The condition of the patient and the capacity of caregiver decide the quality of care in emergency situations, as the RMP can provide only advice and treatment suggestions. 2.  Medical Ethics, Data Privacy, and Confidentiality a. The RMP should abide by NMC Act 2019 rules and regulations with respect to the principles of medical ethics and with the relevant provisions of the IT Act. b. The RMP will not be held responsible for breach of confidentiality if there is reasonable evidence to believe that patient’s privacy and confidentiality have been compromised by a technology breach. 3.  Misconduct • RMPs insisting on telemedicine when the patient is willing to travel to a facility and/or requests an in-person consultation. • RMPs using patient images and data without the consent of the patient. • RMPs who use telemedicine to prescribe drugs from the prohibited list and all those drugs are known to cause dependence or addiction. • RMP prescribes medicine without diagnosis or provisional diagnosis.

I-31 • RMPs are not permitted to solicit patients for telemedicine through advertisements or inducement. • Penalties similar to regular/physical medical practice. • Log or record of a telemedicine interaction, patient records, reports, documents, images, diagnostics utilised in telemedicine consultation, and prescription provided should be maintained as digital trail/documentation for three years. If audio or video recording of doctor or patient is required, they should be taken only after getting explicit informed consent from the respective person. Recordings without consent will not be taken as evidence. • Fee for telemedicine consultations should be treated the same way as in-person consultations, and a duly signed receipt or invoice should be issued to the patient. Note: Some medical care virtual platforms providing medical consultations (smartphone apps, computer programs) online usually do not confirm the norms of a sound, tangible medical practice to telemedicine guidelines. It was rampantly allowed during virtual medicine in the Covid-19 pandemic due to global lockdowns. But ideally, RMPs should refrain from prescribing through messages, emails, online platforms without physically examining the patient.

Medical Tourism Medical tourism refers to traveling to another country or another state to obtain medical treatment or services. Its two types are international and domestic health tourism. Healthcare service is a state’s responsibility. The disparities in healthcare rules, regulations, and service qualities among states and countries are the primary reason for the evolution of medical tourism.9, 10 • India is a rapidly growing and primary medical tourism centre in Southeast Asia. Chennai alone contributes to 45% of international health tourism and 40% of domestic health tourism. • A policy announcement by the Ministry of Tourism (MoT), India, is to extend its Market Development Assistance (MDA) scheme to cover Joint Commission International (JCI) and National Accreditation Board of Hospitals (NABH) in developing certified hospitals for health tourism. Legal and Ethical Issues • Illegal organ transplantation. The Declaration of Istanbul distinguishes between ethically condemned transplant tourism and travel for transplantation. Illegal purchase of organs/tissues for transplantation had been methodically documented in countries like China, Pakistan, Colombia, etc. Unrelated organ donor is illegal in India. • Illegal transborder trade. Rampantly seen for newborn babies, foetus/surrogacies, stem cells/tissues, and organs. In India, these activities are criminal offenses. • Illegal clinical trials and research. Medical tourism centred on stem cell treatments are often blatant, grossly violating ethical norms. Illegal drug trials on foreign nationals under the guise of treatment are convenient for corporate criminals. • Lost health insurance schemes. An insurer of one country may not comply to the laws of another country.

Medical Jurisprudence & Clinical Forensic Medicine

I-32 • Unequal health services. The hefty money from medical tourists may lure doctors more, leading to a lack of time for services to native/local patients. • Prohibited health laws. Foetal sex determination is illegal in India but may not be in Pakistan. Hence, one can exploit this opportunity through medical tourism. Disparity in healthcare laws leads to service inequalities. • Transborder transmission of diseases. An infection prevalent in one country may be transmitted to another. • Negligence torts/patient damages. Any damage to a patient may be heard adequately if the serving country has different tort laws for foreigners. India has same grievance redressal policy for foreign nationals/medical tourist as that for an Indian national. • Health tourists may develop deep vein thrombosis/ pulmonary embolism while on air travel after some surgeries.



Answer: A  good knowledge of medicine will protect your patient. To protect yourself from your patient, you need to have good knowledge of legal medicine.

ABCD . . . of Safe Medical Practice



A. Attention. Prompt attention and patient listening prevent impending workplace violence. B. Bona fide information. Timely intimation (communication) of all relevant patient information alone can prevent/protect 80% of litigations. C. Consent. Record informed consent and attest with disinterested witnesses, preferably patients’ family members. D. Documentation. Documenting information is the most sound and hygienic medical practice. Communication and documentation together can prevent/protect 99% of litigations. Preservation of documents is equally important. E. Empathy. The most pleasant sign of a doctor which cannot only prevent workplace violence but also increase the healthcare professional’s public appeal.

Clinician’s Corner

1. The public, patients, and media usually violate the doctors. Why?

Answer: Due to a lack of understanding of the macroenvironment around the medical practice. It is as essential as the knowledge of medicine. (See text for details.)

3. What are common hurdles in medical practice, and how to deal with them?

Answer: Legal hurdles for doctors arise from the macroenvironment and few from the microenvironments. (See text for details.)

Regulatory Controls • The World Health Organization in 2004 launched the World Alliance for Patient Safety. This body assists hospitals and governments around the world in setting patient safety policies and practices relevant for medical tourism. • An international healthcare accreditation certifies the level of quality for healthcare providers, like hospitals, primary care centres, medical transport, and ambulatory care services.

2. Many doctors with good skill and knowledge of their subject are seen in litigations. Why?

4. A lady judicial magistrate class 2 has visited my OPD for a health check-up. I  politely asked her to come in and offered her a seat. But after some time, in the middle of our talk, she asked me, ‘Do you know who I  am?’ And she kept asking the same question multiple times with a rising voice. Finally, she screamed at me, ‘If I want, I can finish your career in minutes!’ Cutting a long story short, finally, I came to know she was annoyed because I  did not offer my seat to her; instead, I offered the seat before me. Did I commit any mistake not offering my seat to her? Would there be any legal problem for me? What should I do?

Answer: Certainly, you were at no fault. Some may choose to offer their own chair to another higher official, but it is not an official requirement. Instead, it is a break in the protocol of your own official position. Offering a chair in front of you to anybody, whatever the hierarchy is a polite and dignified gesture. Such an act of any official or individual is highly condemnable and must be reported through the proper channel. You should write to the concerned High Court registrar of that region, mentioning every detail that has happened. Attach any evidence you have, like CCTV footage or eyewitness testimony. Nothing to worry about, even if you do not have any such direct evidence. Alternatively, you can visit the Centralized Public Grievance Redress and Monitoring System at https://pgportal.gov.in/ to lodge your complaint. Note that this CPGRAMS website is meant for lodging public grievances against the judiciary departments and almost all other departments (like the post, health, banking, education, etc.) that belong to the state and central government. If you are not satisfied with the redressal of your grievance, you can raise this concern with the Nodal Appellate Authority following the same procedure. The final status of your appeal can be checked online through the same portal. In my experience, the high court registrar and other senior judiciary usually help the victimised officers and appropriately penalise the erring judicial officers.

5. I am an Ayurvedic graduate (BAMS), but I have been working in a primary health centre (PHC) in a tribal area of Odisha for the last seven years. I  am well versed with allopathic medicines and minor surgeries. I  am able to prescribe allopathic medicines for common ailments. Some local people often threaten me with legal actions for prescribing allopathy medicines. I never prescribe them for any disease if I am not sure. Is it illegal, what I am doing?

Medical Practice Answer: I  think you are in potentially dangerous practice even though your intentions are clean and noble. It is hazardous to your career. I know many such cross-pathy practices are rampant in the Indian subcontinent, and a majority of them don’t come under the radar of the law, and very few have yet been prosecuted. Cross-pathy trouble arises when you encounter a litigant patient or something goes wrong due to your treatment. I have seen the spoiled life of a general surgeon caught doing caesarian sections. In one case, the patient died due to post-operative complications. His 10 years of O&G practice was ruined with a single case, and now he is under legal noose for cross-pathy practice. No court or consumer forum would listen to your good faith in case of complications/death/damage to the patient. You may lose the license of your clinic, and your medical registration may be suspended too. For your information, I am citing an interesting reference as follows: [Mahapatra, Dhananjaya. ‘Should AYUSH Practitioners Conduct Surgeries?’ The Times of India, September  2022. https:// timesofindia.indiatimes.com/india/should-ayush-practitioners-conduct-surgeries/articleshow/94313124.cms.]

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References

1. Mennen, M., Micro and Macro Environmental Analysis of the Health Care Sector in the US and France – Potential Opportunities and Threats. Grin Publishing, 2010. 2. “National medical commission act, 2019.” India Code, 2019. http://hdl.handle. net/123456789/11820. 3. PTI, “National medical commission bill passed by Lok Sabha.” Economic Times, July  29, 2019. https://economictimes.indiatimes.com/news/politics-and-nation/ national-medical-commission-bill-passed-by-lok-sabha/articleshow/70436199. cms. 4. Mahapatra, D., “Should AYUSH practitioners conduct surgeries?” The Times of India, September, 2022. https://timesofindia.indiatimes.com/india/should-ayushpractitioners-conduct-surgeries/articleshow/94313124.cms. 5. “President gives assent to National Medical Commission Bill; panel to replace MCI will be formed within six months.” Firstpost, August  8, 2019. https://www.firstpost.com/ india/president-gives-assent-to-national-medical-commission-bill-panel-to-replacemci-will-be-formed-within-six-months-7134191.html. 6. National Medical Commission, Rules  & Regulations, NMC, August, 2019. www. nmc.org.in/rules-regulations-nmc/. 7. National Medical Commission, Recognised Medical Qualifications Granted by Medical Institutions Not Included in the First Schedule, December, 2020. www.nmc. org.in/acts-amendments/the-third-schedule-of-imc-act/. 8. Tee-Melegrito, R.A., “Telemedicine: Definition, uses, benefits, and more.” Medicalnewstoday.Com., September  30, 2022. https://www.medicalnewstoday. com/articles/telemedicine. 9. Roger, L.M., Colombia’s organ trade: Evidence from Bogotá and Medellín. Journal of Public Health, 2010, 18(4): 375–384. https://doi.org/10.1007/s10389-010-0320-3. 10. Haider, Z., “Debt drives kidney harvesting in Pakistan’s citrus orchards.” Reuters, September  11, 2017. https://www.reuters.com/article/us-pakistan-traffickingorgans-idUSKCN1BM17K.

CHAPTER 4 LEGAL PROCEDURE IN INDIA Ambika Prasad Patra, M. Senthil Kumaran and Bedanta Sarma

Chapter Highlights • • • • • • • • •

Basics of law enforcement, judiciary, and courts in India Inquest procedure Role of doctor in medical evidence, summons, and witness Witness vs. expert witness Daubert and Frye tests Tips for serving summons Doctor in court: guidelines Maltreatment of doctors by magistrates or bureaucrats ‘Clinican’s Corner’

Introduction The Indian judicial system is essentially a common law system, viz. judges develop the law through their decisions, orders, and judgements. Unlike Western countries, in the Indian subcontinent, medicolegal services are expected from all registered medical practitioners irrespective of their specialty. The medicolegal service is an obligation by the doctor toward the state’s welfare. Hence, forensic medicine and toxicology are taught as integral subjects in the primary clinical curriculum of medical schools in India and nearby countries. Therefore, it is an essential requirement for a medical practitioner to learn the basics of the country’s legal system and legal procedure.

Law Enforcement System Evolution of Legal System in India and the Indian Subcontinent

In ancient India, strict legal systems evolved during the Vedic era. A well-written legal treatise, Dharmashästra, was adopted by almost all rulers of that period. The king was obliged to punish the guilty based on the evidence and/or reasoning and not on any religious scripture. The oath taking in court procedures currently followed worldwide is primarily a procedure that originated from ancient Hindu law. During the Islamic era, Sharia law was imposed and was not amendable. The British, via the East India Company, took control over the Indian territory and realised the necessity for making the law evidence-based instead of religious-based. For drafting a penal code, the first law commission was selected in 1834, chaired by Lord Macauley, and drafted the Indian Penal Code (IPC). This draft was passed on 6 October 1860 and came into practice from 1 January 1862. Unfortunately, today in independent India, the same IPC of 1860 continues without any major changes.1

of ‘common law’ arises as a precedent from an earlier judgement. This law is not used in all cases. The common law guides the judicial decision-making process in some unusual instances, in which the result cannot be decided based on current laws or written regulations. 2. Civil law is concerned with the private affairs of citizens, like marriage, property ownership, etc. Civil law deals with cases where wrong is done against a particular individual. It differs from common law in that civil laws are guided by specific tort laws called civil procedure codes (CPC). 3. Religious law refers to ethical and moral codes taught by religions. There is no specific religious law in India, unlike in Western or Islamic countries. Instead, some special laws are made to benefit some religious groups of India, for example, the Muslim Waqf Act 1995, Christian Personal Law, etc. 4. Mixed law, or pluralistic law, consists of elements of some or all the other main types of legal systems. India maintains a hybrid legal system with civil law, common law, customary Islamic ethics, or religious law within the legal framework. 5. Customary laws (Opinio juris) are the uncodified laws, rules, and regulations agreed upon by the people, for example, Muslim customs, tribal customs, etc. It includes customs and beliefs of indigenous people. The courts of India recognise customs as law only if the custom is: • Ancient or immemorial in origin • Reasonable in nature and continuous in use • Certain in its extent and invariable in its practice and operation (Figure 4.1) Branches of Law 1. Civil law is based on the principles of tort law and settled in civil courts without the provision of any criminal proceeding; instead, it can direct the guilty for compensation to the suffered party, for example, land or property disputes, divorce or compensation cases, a title suit, etc. 2. Criminal law includes matters of offense against society at large. These cases are tried in criminal courts. This law deals with codified criminal offenses against public interest, safety and security of a person, property, the state, etc.

Types of Criminal Laws

The Constitution of India is the supreme law of the land. The courts function as the interpreter and protector of the Constitution. The Constitution of India is made and amended by the democratically elected members of Parliament.1–4

Whether it is a civil or a criminal case, the role of a medical expert remains more or less the same. Nevertheless, basic knowledge of the legal system, the law, and the legal procedure helps a doctor deal with routine medicolegal cases safely and flawlessly. The criminal law follows specifically defined codes, i.e., the Indian Criminal Procedure Code (CrPC), Indian Penal Code (IPC), Indian Evidence Act (IEA), etc.5–8

1. Common laws are unwritten laws based on legal precedents established by the courts. Judges and similar quasijudicial tribunals create these laws by being stated in written opinions. The defining characteristic

1. Statutory law, or substantive law, defines and determines the rights and obligations of the citizen to be protected by law. The legislature passed these laws and codified them in the Indian Penal Code (IPC).

Legal System of India

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DOI: 10.1201/9781003139126-5

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FIGURE 4.1  Evolution and composition of the present criminal law in India. TABLE 4.1  Difference between Civil and Criminal Law Systems Civil Law

Criminal Law

• The aggrieved party (privately) acts against the defendant party, for example, tort laws.

• The state, on behalf of the victim, acts through the police and public prosecutor (government lawyer).

• Plaintiff vs. defendant.

• State vs. defendant.

• Burden of proof: preponderance of evidence.

• Burden of proof: beyond a reasonable doubt.

• Punishment as liability, i.e., pay-off compensation for monetary damages, property recovery, etc.

• Punishment as the guilt of a crime, i.e., imprisonment, fine or death sentence, etc.

• The Indian Penal Code (IPC), 1860, deals with the substantive criminal law of India, which defines offenses and prescribes punishments. It defines the crime or ‘wrong’ and their ‘remedies’ and determines the facts that constitute a wrong, i.e., the subject matter of litigation, in the context of the administration of justice (Table 4.1). 2. Procedural law, or adjective law, deals with the technical aspects, i.e., sets forth the methods, rules, and procedures for court cases. a. Criminal Procedure Code (CrPC) 1973. Prescribes the procedure for investigation, prosecution, and trial for punishing offenses under substantive law. It deals with: • Police duties in arresting offenders, dealing with absconders, producing documents, etc. • Procedure for court trials, appeals, references, revisions, etc. • Offenses against a person, property, public safety, security of the state, etc. b. Law of evidence defines the rules and methods of admitting and using evidence in a legal trial. • Indian Evidence Act (IEA) 1872 deals with the laws of evidence and is common to both

criminal and civil procedures, i.e., applies to all judicial proceedings.

Judiciary and the Courts of Law An impartial and independent judiciary is essential for a democracy to function effectively. The Constitution of India provides for a single unified judiciary system under the  Ministry of Law and Justice. The Indian judiciary comprises a court system that interprets the law and its administration. India has a single integrated judicial system i.e. managed and administrated by judicial service officers. The judiciary in India has a pyramidal structure, with the Supreme Court (SC) at the top. High courts are below the SC, and below them are the district and subordinate courts. The lower courts function under the direct superintendence of the higher courts. The president of India appoints the high court and Supreme Court judges on the recommendation of a collegium. And the judges of subordinate judiciaries are appointed by the governor on the recommendation of the high court (Figure 4.2).3, 4 Hierarchy of Criminal Courts of India 1. The Supreme Court of India is India’s highest court, the apex court, the top court, and the last appellate court in India. The chief justice of India is its top authority. This was created under Article 124 of the Indian Constitution. 2. The high courts of India are next in the hierarchy. They are judicial bodies in the states and union territories controlled and managed by chief justices of states. It is governed by Article 141 of India’s Constitution and is bound by the Supreme Court’s judgement. Below the high courts are district courts, and the subordinate courts, controlled and managed by the sessions judges of districts. 3. Sessions Court, also known as district court, situated in each district at headquarters, acts as a trial and appellate court. 4. Subordinate courts are divided into two parts: civil courts, of which a subjudge is a head, followed by the district munsif court at the lower level, and criminal

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FIGURE 4.2  Major branches of the criminal law system in India.

FIGURE 4.3  Hierarchy of courts of law. courts, headed by the chief judicial magistrate (CJM) or chief metropolitan magistrate at the top and followed by additional CJM/ACMM and judicial magistrate (JM) or metropolitan (MM) at the lower level. Types of Subordinate Courts and Magistrates • • • • • •

Chief metropolitan magistrate Chief judicial magistrate (CJM) First-class judicial magistrate court Second-class judicial magistrate court Special metropolitan magistrate court Juvenile courts

Executive courts are managed and controlled by the state government through the district magistrate and commissioner, respectively. Although executive courts are not part of the judiciary, the high courts and the session judges are empowered to inspect or direct the working of executive courts. Executive magistrate (RDC, district magistrate/collector, subdivisional magistrate, Tehsildar, etc.). The powers granted to

the executive magistrate are limited and are mainly administrative. Their role is to fill the gaps in the duties of the judicial magistrate and is hence supplementary and not complementary. The executive magistrates focus mainly on law and order administration through the police and have no concern over the judicial aspect of the process. Even with limited powers, executive magistrates are allowed to order detention for not more than 7 days (S.167 CrPC) instead of the judicial magistrates. The latter can order up to the mandated 15 days (Figure 4.3). Other Types of Courts in India4–9 • Mahila court is presided by a woman judge of the additional chief metropolitan magistrate cum assistant sessions judge. These courts deal exclusively with cases relating to offences against women. • Juvenile courts, or juvenile justice board, is meant for the trial of offences committed by juveniles. The Juvenile Justice (Care and Protection) Act 2000 has provided that a juvenile is a person who has not completed 18 years of age. The juvenile court is usually presided by a first-class woman

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magistrate. Where an enquiry into a juvenile offender has been initiated, and when the offender ceases to be a juvenile, his trial may be continued in other criminal courts. Serious crimes like brutal murder and sexual assault committed by a juvenile may be tried in a criminal court other than a juvenile court with consent of the JJ board.9 • Special metropolitan magistrate courts. Under Section 18(1) CrPC, the high court, on the request of the central/state government, may confer the powers of a metropolitan magistrate or judicial magistrate to a suitable person as a special metropolitan magistrate (SMM), provided he possesses the necessary qualification or experience w.r.t. legal affairs as prescribed by the high court.10 • Appointment. The persons to be appointed as special magistrates should be either persons in government service or those who have retired from government service, viz. a subregistrar. Such an appointment is only for a term of one year (Andhra Pradesh, two

years) at a time. The sentencing powers of a special magistrate should correspond to the powers of a second-class magistrate. • Objectives. In remote or inaccessible areas with a sparse population, governments may appoint an SMM to dispose of petty cases instead of appointing a full-time magistrate. This helps the remote area inhabitants, who otherwise would have to travel a long distance to reach a magistrate’s court. • Powers. The SMM conferred summary powers to expedite the disposition of a large number of petty crimes/cases in a particular designated locality or jurisdiction. His jurisdiction area mostly remains one (except in Maharashtra). The sentencing powers of a special magistrate should correspond to the that of a second-class juridical magistrate (changed from first-class to second-class JM after recommendation of the Joint Parliamentary Committee with deletion of Section 15 CrPC) (Tables 4.2 and 4.3).

TABLE 4.2 Types of Criminal Courts No.

Criminal Courts

Location

Powers

1.

Supreme Court

New Delhi, one of the capitals of India

• Highest judicial tribunal of the country supervises all courts in India. • Can try any offenses and pass any sentence authorised by law. • Purely an appellate court.

2.

High Court

Capital of every state usually (24 courts for 29 states)

• Highest judicial tribunal of the state. • Can try any offense and pass any sentence authorised by law. • Purely an appellate court.

3.

District/Session Court Additional Sessions Court

District headquarters

• Highest judicial tribunal of the district. • Can try only cases committed to it by a magistrate. • Can pass any sentence authorised by law, but a high court must confirm a sentence of death passed by it. • Can pass a sentence of imprisonment up to ten years, fine without limit.

Additional/Assistant Sessions Court 4.

Magistrate Courts (1) Judicial Magistrate A.

Chief Metropolitan Magistrate

Metropolitan area

Chief Judicial Magistrate

District (not being a metropolitan area)

Metropolitan Magistrate

Metropolitan area

Judicial Magistrate First-Class

Subdivision of a district

C.

Judicial Magistrate Second-Class

Subdivision of a district

D.

Special Metropolitan Magistrate

Area of jurisdiction fixed by Second-class judicial magistrate. the high court and the A government employee/retired employee as decided by the high court government; may exceed upon the request of the government is given power of special judicial the limits in Maharashtra magistrate to dispose a large number of petty cases in a remote, inaccessible area. The tenure of the appointment is for one year only.

E.

Juvenile Courts, or Juvenile Justice Board

The Juvenile Justice (Care and Protection) Act 2000 classifies a juvenile is Comprise a metropolitan magistrate or a first-class a person who has not completed 18 years of age. judicial magistrate and two social workers with at least one woman member

B.

(2) Executive Magistrate

In charge of district, subdivision, or Taluk

Can pass a sentence of imprisonment up to seven years, fine without limit.

Can pass a sentence of imprisonment up to three years, fine up to Rs 10,000. Can pass a sentence of imprisonment up to one year, fine up to Rs. 5,000.

Appointed by the state government, usually officers of revenue department, district collector, subcollector, or Thashildar

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I-38 TABLE 4.3 Types of Punishment Authorised by the Indian Law • Death sentence/capital punishment • Life imprisonment (regarded as equal to 20 years in prison) • Imprisonment • Rigorous, i.e., with hard labour, including solitary confinement • Simple • Forfeiture of property • Fine

Law Enforcement System The primary functions of the law enforcement system are the investigation and prosecution of the suspects or the accused, in addition to law and order implementation. There are two major types: 1. Inquisitorial system. Involves an extensive investigation and interrogations under the control and supervision of the court. The defendants have the burden of proving innocence. This system requires the active participation of judges in the trial process. 2. Adversarial system. An accused is presumed not guilty, and the prosecution is to prove beyond all reasonable doubt the guilt of the accused. This system presumes that the best way to get the truth is to have ‘contest’ between the prosecution and the defence. The Justice Malimath Committee (2003) on Reforms of the Criminal Justice System discussed the merits and demerits of adopting an adversarial process. The committee noted the advantages of an adversarial system in criminal trials: the rights of the accused are better protected, and a fair trial is ensured. However, the committee felt that certain inquisitorial elements should be included in the Indian judicial process to make it more effective. The adversarial system requires a high burden of proof. It correspondingly involves an inflated cost, making justice inaccessible to the poor. It takes a long time for the trial. In India, the criminal justice system mostly follows the adversarial system. It is mixed with some elements of the inquisitorial system too.7

FIGURE 4.4  Legal procedure for disposing criminal cases.

The police and the public prosecutor (government lawyer) collect and present evidence as per the CrPC and IEA norms to the court to prosecute the accused person. In this legal process, they need the help of a medical man because they are dealing with human subjects or biological evidence. This is the point where medicine and the law intercept each other. Being a man of science, a medical expert must always serve only one authority, which should be the ‘truth of science’. The burden of proof is a standardised norm that in criminal cases, the prosecution must provide evidence of sufficient quality to convince the court ‘beyond reasonable doubt,’ which means that the accused is guilty. The standard is based on the ‘balance of probabilities’ in civil cases, so the court should be confident of more than 50% of the defendant’s culpability.

Inquest Procedure The inquest (Latin quaesitus: to seek) is defined as an enquiry or investigation into the cause of death, especially under suspicious or unnatural conditions. It is conducted in suicide, murder, killing by an animal or machinery, accidents, deaths due to torture or ill-treatment, occupational diseases, suspected medical negligence, suspicious (unnatural) deaths, deaths due to anaesthesia or operation, and unidentified or skeletonised bodies.1–6 Types of Inquest A. Inquest procedure practised in India 1. Police inquest 2. Magistrate inquest B. Inquest procedure not practised in India 1. Medical examiner’s system 2. Coroner’s inquest 3. Procurator of fiscal system (Figure 4.4) Magistrate inquest. May be initiated by any magistrate and is not practised routinely unless there is an indication under section 176 CrPC. However, a judicial magistrate can order an

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inquest in addition to or instead of that by the police in any case of unnatural death. The purpose of the magistrate inquest is to ensure that: • No person is unjustly deprived of his rights and liberty as a citizen. • No person can die due to neglect or brutality of the people in charge of him. • Identity is established in the unidentified and doubts are excluded regarding the cause of death or manner of death in the case of a buried body. Indications of Magistrate’s Inquests 1. Suspected human rights violation cases a. Lock-up deaths, death of a convict in jail b. Deaths during police interrogation c. Deaths in prison d. Deaths in police custody e. Deaths due to police firing

FIGURE 4.5  Police inquest procedure.

2. Admission of a mentally ill person to a psychiatric hospital under specific provisions of the Mental Health Act 1987 3. Death in a psychiatric hospital 4. Rape alleged to have been committed on any woman in the custody of the police 5. Exhumation cases 6. Alleged dowry death (suicide/death of a woman within seven years of marriage) Police inquest. The most familiar mode of the inquest procedure followed in India. It is usually done by a police investigating officer not below the rank of subinspector of police or station house officer (SHO). Often, a head constable may be given the charge of SHO in the absence of the actual SHO and is empowered to initiate an inquest. Police inquest is done under Section 174 CrPC. Documents to be Submitted by the Police before Starting the Autopsy

1. Post-mortem requisition. Primary document bearing all details and a brief history of the case. 2. Police Form 25 or Form No. 35A/B/C, as per the need of the case. 3. Death summary/death reports, hospital case sheets/ treatment summary, medicolegal certificates, etc., if hospitalisation was there before deaths. 4. Desirable but not mandatory documents from the police: • Police investigating officer’s report, which includes statements of panchas or relatives. • Crime scene assessment reports or photographs, viz. this information is beneficial to avoid speculation errors by the doctor. • Seizure memo of items seized at the scene. Autopsy may be started on the provisional receipt of electronically sent documents (email, mobile messages, etc.) instead of unnecessarily waiting for physical documents (Figure 4.5).

Framing of Charges and Guilty Plea

Once the police submit the report, the magistrate examines its contents to decide whether there is prima facie evidence of the commission of the offense. At this moment, the magistrate will not determine the guilt but will merely decide whether there is

FIGURE 4.6  Common protocol of police inquest. enough material that points to the fact of committing a crime. Then, he will read out the contents and explain the charges against him. If the accused pleads guilty voluntarily, then he proceeds to convict the accused and impose adequate punishment. If the accused pleads not guilty, the case proceeds to trial before the appropriate court (Figure 4.6). Medical Examiner System • Conducted mostly in the United States, UK, and UAE. A medical man is appointed to hold an inquest. • He/she visit the scene of crime/accident to gather firsthand evidence and interview people to gather all the possible information regarding the circumstances of death. • They perform an autopsy and determine the manner and the cause of death. • The system is superior to other inquests where a nonmedical men/coroner conducts the enquiry, as it is the most scientific investigation of crimes.

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I-40 • But the medical examiner does not have any judicial powers, for example, he cannot examine the witness under oath and cannot authorise the arrest of any person. Coroner’s Inquest • A coroner is either an advocate or an attorney or a firstclass magistrate with five years’ experience, or a metropolitan magistrate. • The state government appoints them to enquire into the causes of unnatural or suspicious deaths. • The coroner’s court is a court of enquiry only with limited judicial powers, summons, arrest warrants, etc. but cannot punish. • The coroners have quasijudicial power similar to a court of law or judge, with the ability to remedy a situation or impose legal penalties. • The British introduced the coroner system in Calcutta and Bombay in 1902. Later, the system was removed from Kolkata, and later from Mumbai (from 26 July 1999).

Evidence Law ‘Evidence’ (Sec. 3 IEA) means and includes.1, 2, 8

1. All statements which the court permits or requires to be made before it by witnesses concerning matters of fact under enquiry (oral evidence). 2. All documents, including electronic records, produced for the perusal of the court (documentary evidence) (Figure 4.7).

Evidence law deals with the rules and methods by which evidence is admitted and used in a legal trial. For example, if a knife used in a murder was produced before the court by a victim’s family member, it will not be accepted as valid evidence (illegal evidence). But the same knife, if seized by the police and produced in the court through proper channel, maintaining chain of custody, the court shall consider the knife as evidence for a further criminal trial. Chain of custody (CoC) of evidence is the legal way of documenting and transmitting evidence from its source collection or identification until its production before the court during the trial. • This method verifies the legal possession of evidence. • Each specimen must be preserved or kept in a sealed and labelled container bearing the descriptions of the specimen nature, serial identification number, time and date, source and destination addresses, and the signature with seal of the doctor or any other authority who has generated or transmitted the specimen. • Each custodian of the specimen/evidence across the CoC must hand over the specimen under receipt (entries like the name, affiliation, designation with signature, seal, and phone number to be made by the recipient in appropriate documents) to the next custodian in the chain. • This information must be documented each time the specimen moves along the CoC. • The evidence must not be damaged, contaminated, or altered while moving in the CoC. • The shorter the CoC, the better the productivity. • The concept of CoC is also applied in a civil procedure. For example, drug testing of athletes, tracing food products, etc. • A chain of custody becomes invalid or illegal if there is any missing link between the stages of custody.

FIGURE 4.7  Types of evidence.

Medical Evidence

The submissions by medical personnel, for example, autopsy reports, oral testimony, expert comments, etc., to the court or police are considered medical evidence used to prosecute the cases. All evidence must reach the court through the proper channel and chain of custody to be legally acceptable (Figure 4.7).7 Oral Evidence Oral evidence is more significant than documentary evidence as it permits cross-examination by the defence counsel. The court accepts documentary evidence only after oral testimonies by the doctor or any other witness concerned. 1. Indirect evidence or circumstantial evidence consists of collateral facts from which an inference may be drawn and are consistent with the direct evidence, such as finding blood on the clothes of the accused. 2. Hearsay evidence.  Any evidence offered by a witness without direct knowledge, but their testimony is based on what others have said. Exceptions to Oral Evidence

1. Dying declaration. Accepted in court as legal evidence in the event of the victim’s death (Sec. 32 IEA). 2. Expert opinions expressed in a treatise. Expert opinions printed in books. 3. Deposition of a medical witness taken in the lower court. 4. Report of specific government scientific experts. 5. Evidence was given by a witness in a previous judicial proceeding. 6. Public records: birth and death certificates. 7. Hospital records.

Documentary Evidence 1. Medical certificates  are documents prepared by the doctor at the patient’s request and handed over to him. Examples:  certificate of age, death, disability, sickness, unsoundness of mind, vaccination, etc. 2. Medicolegal reports  are documents prepared by the doctor at the request of some investigating authority, for example, police, magistrate, etc., and handed over to him. They may be related to living or dead, for example, injury or post-mortem reports. 3. Dying deposition is a statement made by a dying person under oath, recorded by the magistrate in the presence of the accused or his lawyer, who can cross-examine the witness. • The presence of a doctor in a dying deposition may be warranted to certify the dying man’s compos mentis (mental fitness).

Legal Procedure in India • Legally, the dying deposition is more valuable than the dying declaration as the accused has gotten the opportunity to challenge and cross-examine. There is no provision for a dying deposition in the Indian Evidence Act, so it is not followed in India. 4. Dying declarations (DD) are documents prepared on a person’s statements of dying due to some unlawful act. It is based on the common understanding that ‘the dying man’s last words are true’, and is legally considered valid evidence. Definition: Statement (written/oral) as to the cause of death of a person dying due to an unlawful act. The compos mentis of the patient should be confirmed by a doctor if his condition is sick. Executive magistrates can be called if there is time. An oath is not needed. Commonly, police records in the presence of a treating doctor, yet anybody can record and in any physical form can be recorded. • The treating doctor issues two certificates of dying declarations. • For a valid declaration, the dying man’s mental condition must be certified for compos mentis. • Certify that the declaration was made while the declarant was in compos mentis. Criteria for Recording Dying Declaration • The statement must be factual, not an interpretation of the deceased’s words. Use exactly victim’s own words without alteration of terms or phrases. • Prompting, assistance, influence, or leading questions should be discouraged during recording DD (except for certain clarifications). • Answers in the form of gestures and signs are considered in cases of sick, moribund patients and should be written exactly the way it was. • Once finished recording, it should be read over to the declarant, signed by the declarant, the doctor, and the witnesses. • Consider taking a left thumb impression (if not possible in severe burns, any available fingerprint or toe print may be taken) of the declarant if she becomes unconscious or unable to sign the declaration. • While recording the dying declaration, the presence of the police is discouraged. Signature of two disinterested witnesses. • The declaration is sent to the nearest executive magistrate in a properly sealed and labelled envelope through the police IO under receipt. Court Procedure • Summons and witness • Medical evidence • Court appearance

Summons and Witness A subpoena or summons is a document sent by a court of law (under Sec. 61–69 Cr.P.C.) to a concerned person compelling his physical or virtual attendance in the court at a particular date and time to depose his evidence regarding a specific case under penalty.

I-41 • All ordinary cases punishable with imprisonment of up to two years are classified as summons cases and are different from the warrant cases, with a punishment of over two years. The procedure for the trial of these cases is also different. • Summons is usually served physically through the police in person attached to the court or through a registered India post if the distance is too long. For doctors, it may be served through the institution head where he may be employed or through the magistrate in whose jurisdiction he resides (Cr.P.C. Sec. 61–69). However, digital summons (email, SMS, etc.) are now equally acceptable. • A summons bears the case/crime number or the name of the witness or accused, date, time, and place of deposition. What if a doctor receives two or more summons simultaneously? • The witness should serve the criminal court if the summons is from a civil court and the other from a criminal court. He must inform the civil court in writing of his inability to attend, citing the other summons. • If both courts are civil or criminal, he should first attend the higher court. • If both courts are of the same status, he should first serve the court from which he received a summons first, then attend the second court, or inform it in writing of his inability to attend, giving the reason. • Conduct money is the money paid by the court to a person under the compulsion of a summons as witness to meet his expenses to attend court. It generally incorporates a daily rate for each day the witness must attend in court (with a one-day minimum), plus a travel allowance to allow the witness to get to the place of the hearing. This conduct money is usually paid by the court in civil cases, but hardly in criminal cases. For employees in central government service, the TA and DA expenses can be claimed from the employer (on behalf of the court) as per their entitlement after producing a court attendance certificate. However, ironically, in almost all state governments, the same opportunity is not given to civil surgeons or other doctors, who spend almost invariably always from their own pockets to serve thousands of summonses during their professional life. This, in one way in many places, led to corruption at the expense of the concerned common men. • In civil cases to which the government is not a party, official witnesses appearing at the instance of a private party will be paid by the party through the court, and the fact certified as in the case of a payment by the state. • Punishment. Failure to attend a court summons may result in a bailable or non-bailable warrant of arrest to compel attendance by a witness (Sec. 71CrPC). If a person cannot attend the court, he must inform in advance with a valid justification, for example, health issues, natural calamities, death of the recipient, etc. If the reason is unacceptable, a non-bailable warrant may be issued against him to secure his attendance. He may be awarded a punishment of imprisonment of up to six months or a fine of up to one thousand rupees or both. Deflecting summons in civil cases, he will be liable to pay the incurred damages (Table 4.4).

Medical Jurisprudence & Clinical Forensic Medicine

I-42 TABLE 4.4 Types of Summons or Subpoena Subpoena Ad Testificandum • Subpoena for Oral testimony: is ordering the recipient to appear before Court and produce reports (evidence) for use at a hearing or trial. • And, testify (give) his evidence under oath [Oral testimony]

• Ex: doctor as testifying for his autopsy or injury reports in Court.

Subpoena Duces Tecum • Subpoena for production of evidence: is ordering the recipient to appear before the court and produce documents or other tangible evidence for use at a hearing or trial. • Ex: Forensic scientist or Chemical examiner deposing for his reports in Court [Oral testimony NOT required].

Witness A witness is a person who gives evidence in the court of law about the facts under oath (Sec. 118–134 I.E.A.). Types of Witnesses 1. Common witness.  He must observe or perceive facts by his senses. This is also commonly known as the ‘firsthand knowledge rule’. A person who has seen two persons fighting each other can become a witness to justify the facts (Figures 4.8 and 4.9). 2. Expert witnesses. (Sec. 45 IEA) (Sec. 45 IEA) are trained and skilled professionals in specific fields with scientific knowledge and experience in their subject. They help make an opinion from the observed facts and successful conclusion of the case. Examples: doctors, serologists, fingerprint or handwriting experts, ballistics experts, etc. • An expert witness alone does not prove or disprove a prosecution case but instead helps the court understand the scientific explanation behind the evidence. • Courts usually consider it in the context of other corroborative evidence. A  court can be guilty of judicial superstition if it fails to appreciate the problem against the scientific background of medical science. • The court shall also consider the deposition of medical experts when he answers hypothetical questions (Figure 4.10).

Daubert vs. Frye Test

These are United States federal laws since 1939. The Daubert standard determines the admissibility of expert witness testimony. A party in the United States may raise a Daubert motion during trial if it is felt there is presentation of unqualified expert evidence in the court.11 • These tests are the general legal principles, legal admissibility criteria, and competence of scientific evidence and expert opinion in the courts of law. • The Frye test is applied to the admissibility of expert opinion based upon scientific method which was superseded by the Daubert test in 1993, because the Frye test is based on the scientific knowledge of the expert only, whereas the Daubert test uses technical and other specialised knowledge in addition to the scientific expertise of the expert opinion.

FIGURE 4.8  Sample copy of a court summons. • Both Frye and Daubert tests can be used to prevent misuse of expert testimony. Admissibility of Daubert vs. Frye tests in Indian courts. Section 45 IEA, dealing with expert opinion, states that when the court has to form an opinion based on a foreign law/court ruling or science, etc., it demands that person (expert) to be especially skilled in such foreign law or science in order to admit his expert opinion for a case. There are no clear laws as to the admissibility of expert/scientific opinion in the Indian court. It follows the natural law of justice based on the following court rulings: • Many courts in India have opined that the medical witness evidence is only evidence of opinion and is hardly decisive. But they say the opinion of the autopsy surgeon who has performed the post-mortem examination and of the forensic science laboratory are reliable. • Section 293(2) CrPC. If a court thinks it fit, it may summon and examine an expert witness regarding the subject matter of his report. • The expert opinion taken by the courts is on the basis of trust and faith in the expertise of the medical witness. • The Supreme Court of India states that: – A medical witness called in as an expert and the evidence given by the medical expert are of an advisory character. – Unless there is something inherently defective in the medical report, a court cannot substitute its own opinion for that of the medical witness.

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FIGURE 4.10  A  doctor, though primarily considered an expert witness, acts as both a common and an expert witness. statement under oath to conceal the truth deposed earlier, he is declared a hostile witness under Section  191 IPC. • Any of the previous two witnesses can be hostile. Nevertheless, the party who calls him a witness is not bound by his evidence when the witness is declared hostile. • A witness who knows the truth but deposes the contrary under oath is not hostile; instead, it’s perjury if proved in the court. • Perjury is the offense of wilfully telling an untruth in a court after having taken an oath or affirmation, i.e., the intentional act of swearing a false oath. If proved, the witness may be awarded punishment up to seven years of imprisonment with or without a fine. Eyewitness vs. Medical Witness

FIGURE 4.9  Sample copy of a court attendance certificate. –

While on deposition, an expert witness is expected to put all material facts, including the date, which induced him to conclude before the court. • He should enlighten the court on the technical aspects of the case through simple explanations of the scientific jargons so that the court, although not an expert, may form its judgement after giving due regard to the expert’s opinion. Because once the expert’s opinion is accepted, it is not the opinion of the medical witness but that of the court. 3. Hostile witness or adverse witness. If a witness, due to some vested interest or motive, retreats from his

• Court presumes an eyewitness as the eyes and ears of the justice. Ocular witness’s account usually considered credible and trustworthy in courts. • If medical opinion gives alternative possibilities contrary to the eyewitness, court usually take a careful, independent assessment of all available evidence, including medical evidence, before making out a conclusion, instead of giving sole priority to the eyewitness accounts. • If there is conflict among witnesses’ accounts, the evidence may be tested for its inherent consistency with the accounts of other creditworthy witnesses, the probability of the story, the power of observation witnesses. Eyewitness vs. Expert Witness • Expert witness opinions are usually based on scientific assumptions for a particular issue. But the autopsy surgeon is an eyewitness (common witness) for the findings on the body. Hence, the law usually gives priority to the common witness.

Medical Jurisprudence & Clinical Forensic Medicine

I-44 • Expert witness opinion becomes paramount when there is no direct evidence or eyewitness accounts available. Under such blind cases, courts need a scientific, reasonable, and feasible explanation from the expert witness. Autopsy Report Opinion vs. Textbook Opinion • Many court rulings have given sufficient weightage to the evidence of the doctor who conducted the postmortem examination as compared to the statements or information given in a textbook. • However, that does not mean that each statement made by a medical witness should be accepted at its face value, even when it is self-contradictory. • In case of the conflicting opinion of two doctors, the court has the right to accept one and reject the other, especially that which tallies with the prosecution version. Examination of Witness The medicolegal reports, for example, autopsy reports, injury, medical certificates, etc., issued by a doctor are not accepted per se as evidence until the doctor has not testified the same before the court or recorded his evidence under Section 138– 159 IEA. Therefore, a doctor (irrespective of his specialty) who has attended a medicolegal case is usually summoned by the concerned court to testify his report (evidence deposition). However, the reports of a forensic science expert like the chemical examiner, serologist, ballistics, etc., the courts usually do not summons to testify unless it feels the requirement in some instances (Table 4.5). TABLE 4.5  Difference between Hostile Witness and Perjury Hostile Witness

The term ‘hostile’ refers to a witness who resiles from his earlier statement recorded by police under Section 161 IEA.

Perjury

Giving wilful false or fabricated evidence under oath. Interestingly, the Indian Evidence Act 1872 does not refer to any such term as ‘hostile’. It’s a creation by the judiciary. The harassing factors lead to witnesses’ bitter experience during a trial process.

Reasons: Threatening or bribing the witness by the opposite party, due to fear of potential threat to his life, family, or job, from the accused side, etc. Evidentiary value of hostile Usually not accepted. However, it is left to the discretion of the witness: This may be unacceptable. court. However, in his opinion, the judge may discard the evidence in toto or partially preserve the evidentiary value. Can the prosecution crossTo the discretion of the court. examine its own witness? It’s the discretionary power of the court to permit the party to cross-examine its witness. Punishment (Sec. 193 IPC): The The punishment is defined under witness, for giving false evidence, Section 193 of the Indian Penal shall be imprisoned with a fine Code 1860 as seven years of for up to seven years. imprisonment.

Court Trial Procedure • Section 137 IEA has laid down a specific stepwise procedure for examining witnesses in connection with the evidence or the case by the respective lawyers of both parties. • Section 138 IEA defines a definite order of examinations of witness and evidence deposition in court. 1. Oath (Sec. 51 IPC) • Oath is a solemn declaration required by the law from the witness. The witness has to take an oath as, ‘I do swear in the name of God, that what I shall state shall be the truth, the whole truth, and nothing but the truth.’ • It is compulsory for a witness by law. • A child witness < 12 years of age is not required to take an oath. • An atheist also needs to solemnise his evidence under oath. If the witness is an atheist, he has to ‘solemnly affirm’ instead of ‘in the name of God’. • Refusal for oath may attract six months’ imprisonment or Rs. 1,000 fine or both (Sec. 178 IPC). • Giving wilful false or untrue evidence under oath, the witness will be declared as a ‘hostile witness’ and punished for ‘perjury’ (Table 4.5). 2. Examination-in-Chief • Witness deposition and examination by the prosecution. Court and the party call the witness with intent to bring out the facts of the case (maybe against the accused). • Usually, it is started by the prosecution lawyer. • No leading questions (yes/no type) are allowed during this step. 3. Cross-Examination • The examination of a witness by the adverse party (defence lawyer) to test the veracity/accuracy of the statements made by the witness. • The defence lawyer questions the witnesses to elicit facts favouring his client, testify on the accuracy of statements, modify or explain what the witness has told during chief examination, and discredit the witness statements as far as possible. • The defence lawyer asks leading questions to benefit the accused. Don’t try to explain. A  witness should reply only in ‘Yes/no/maybe/may not/don’t know’ format. • Defence lawyer may try to bring in new or old facts. • Court has the power to stop such activities of defence at any time. If the court also demands, the witness must answer all the questions asked to him/her. • There is no time limit for cross-examination. 4. Re-Examination • It is an examination made again by the prosecution or party who called the witness to clarify the confusion and misleading information created by the defence

Legal Procedure in India

• • •

•

lawyer or to examine a new fact introduced by the defence lawyer. Re-examination is directed to the explanation of matters referred to in cross-examination. Leading questions are not allowed at this stage. A witness unable to clarify his answer in yes/no format during cross-examination will be allowed in the next step to explain his answer for a comprehensive understanding of the court. Remember: no new information should be brought in during this stage. If you do so, the defence lawyer has the right to cross-examine the same. Hence, stick your explanation only to the facts recorded during the chief examination.

5. Questions by the Judge and Court Verdict • A judge has the power to ask questions or clarifications at any examination stage. • He may recall or re-examine any witness already examined (Sec. 311 CrPC). • The judge/magistrate allows both the prosecution and defence lawyers for closing arguments before giving his final verdict (Figure 4.11).

What Should the Doctor Do after Completion of Deposition? The witness may ask permission from the court to leave out of the witness box. He should wait in court until he has not: • Go through the printout of your deposition carefully for any mistakes/errors, etc., and sign all pages of deposition (printouts given to him by the court clerk). Note: never try to rectify any errors, spelling, etc. in your court proceeding papers despite you knowing it is incorrect (else, it will be considered contempt of the court). In that case, bring the errors/mistakes to the notice of the court first, and after being permitted by the judge, you can rectify the errors with a pencil. • Signed in the court attendance register. • Received court attendance certificate. • Take leave permission from the court and bow down to the chair while you leave the court.

I-45 Guidelines for Court Appearances • A doctor may receive a summons (Figure 4.8) from the courts of law, judiciary commission, police, or any other statutory bodies authorised to summons a witness. • If a case detail is available, he/she must go through it. If it is unavailable, he can look in the court before standing in the witness box. • Any other relevant documents/books can be carried. • The medical witness may be questioned on the nature and extent of injury, the probable prognosis, the quality and appropriateness of treatment administered, and the likelihood of natural diseases affecting the clinical outcome. Preparation should include the study of the case from all possible angles. • If employed, you must first intimate to your immediate authority or employer. It’s a legal obligation of the concerned authority and employer to allow you to serve the summons. The employer or any such authority is not authorised to prevent you from serving the summons without prior and written permission from the concerned court or summoning authority. • The leave needed by an employee to serve the summons is considered on-duty leave and must not be debited from his or her leave account by the employer. • Courtroom etiquette: a witness is legally bound to adhere to courtroom etiquette, for example, well-groomed, should be in uniform and must behave professionally in the courtroom, mobile phones turned off or turned to silent mode, etc. • Almost all courts have an etiquette to schedule the doctor’s deposition as early as possible as a token of respect for the service time of a doctor. However, recently, there has been a significant increase in the courtroom harassment of doctors in various ways. • After reaching, he/she should inform the lawyer who has been summoned. He/she can discuss the case with the lawyer. • Before starting, he/she must address the judge and take an oath. • While in the witness box, he must be prepared mentally to face any question, especially during cross-examination. If the question asked during cross-examination is irrelevant to his scope of expertise, it can bring the judge’s notice. • He/she must justify facts scientifically with easy language understood by ordinary people.

FIGURE 4.11  Stepwise witness deposition procedure in trial courts.

Medical Jurisprudence & Clinical Forensic Medicine

I-46 • A voluntary statement is better to avoid unless he/she thinks that injustice will result if he fails to do so. The answer should be limited to the expert’s knowledge. • After completing the deposition, the doctor must go through the final report prepared by the typist based on his evidence. If any correction is required, he may suggest it. If it is as per what he/she has stated, he/she must certify it with a signature at the bottom of each page. • Once finished, take permission from the court before leaving the premises. • Before leaving, you should collect the attendance certificate (Figure 4.9), duly signed.

Critical Review of Medicolegal Procedure in India • The present situation of the Indian legal justice system can be assessed by its fundamental bases, i.e., based on laws made during 1860–1872, which are more than a century old. Many legal activists and lawyers press the Indian government to amend the archaic penal, evidence, and procedure codes. • The excruciatingly slow pace of the Indian legislature and justice system lags behind the rapidly progressing medical science. • A wholehearted implementation of electronic legal procedure, for example, e-filing of cases, e-deposition, electronic witness recording, etc., is far away from ordinary citizens’ reach. • A poorly legislated police system cannot bear the burdens ranging from VIP duties up to criminal investigation. • Instead of strangling the age-old tradition of ‘Lok Adalat’ or ‘panchayat system’ in rural India, improvising them to alternative dispute resolution systems (mediation, arbitration, conciliation, etc.) could have burdened the caseloads in courts, ensuring speedy justice in trivial cases.

• Publicly blaming or alleging a fellow doctor other than in an appropriate forum, irrespective of the truthfulness of the allegations. • A professional must refrain from commenting on public platforms on the issues considered confidential (like medicolegal cases, sub judice matters, etc.). If reporters pester for a reply in a medicolegal case or similar law and order issues, a doctor has every right to say, ‘No comments. It’s a medicolegal issue and/or the matter is sub judice. The results will be given to the court from where you can get the answers.’ 2. I am a neurosurgeon faculty from a central government institute. I  receive frequent court summons for head injury cases (traffic accident, assault, etc.) treated under me. Most often, in court, I feel insulted by how the lawyers and magistrates behave or question me. I  was asked to wait up to two hours just to receive my court attendance certificate—even after my deposition had been completed. Can I raise a complaint if a judge is unfair to me?

Answer: Yes, you can. • Any conduct by a magistrate or judge allegedly improper may be reported to the concerned judicial head of that court wherein the alleged magistrate or judge presides, i.e., for all judicial magistrates—the registrar of district Sessions Court and all judges, the registrar general of high court. • Every citizen can lodge their grievances online at the Centralized Public Grievance Redress and Monitoring System (https://pgportal.gov.in/). • This CPGRAMS website (https://pgportal.gov.in/) is meant for lodging public grievances against the judiciary departments and almost all other departments (like the post, health, banking, education, etc.) that belong to the state and central government. However, you cannot file a complaint against the following issues. Exceptions to Public Grievances • • • •

Clinician’s Corner 1. I am a state cadre medical officer. I  have given my views on the questions I  asked on a TV news program. The issue was based on the post-mortem cause of death in a high-profile, suspicious political murder case. My State Medical Council has sent me a letter about disciplinary action against me, and our CDMO is also saying so. What should I  do if SMC takes disciplinary action against me?

Answer: Let the action first start against you. Based on that, if you’re not satisfied with the decisions of the SMC disciplinary committee, you appeal to the Ethics and Medical Registration Board (EMRB) of the NMC within two months. • Please note that the following activities of the RMP shall be considered professional misconduct:

RTI matters Court-related or sub judice matters Religious matters Suggestions

• Appeal mechanism. If the complainant is not satisfied with the redress of his grievance, he is given a onetime opportunity to raise this concern with the Nodal Appellate Authority following the same procedure. The final status of the appeal can be checked online through the same portal. One has to accept the final verdict or resolution after a maximum one-time reappeal in case of a dissatisfied solution.

References

1. Sneha, A.M., & Rath, R., Legal Education System in India, Atomic Owl Digital Media Private Limited, 2017. 2. Paranjape, N.V., Jurisprudence and Legal Theory, Central Law Agency, 2019. 3. Dogra, T.D., & Rudra, A., Lyon’s Medical Jurisprudence & Toxicology (11th Ed), Delhi Law House, 2005, p. 367.

Legal Procedure in India

4. Modi, J.P.,  Modi: A  Textbook of Medical Jurisprudence and Toxicology (27th Ed), Edited by K. Kannan, Lexis Nexis, 2021. 5. Takwani, C.K., Indian Penal Code, Eastern Book Company, 2014. 6. The Code of Criminal Procedure, 1973, In: Justice Mallick MR, Criminal Manual (Major Criminal Acts), Professional Book Publishers, 2004, p. 131. 7. Deepalakshmi, K., “The Malimath Committee’s recommendations on reforms in the criminal justice system in 20 points.” The Hindu, January 17, 2018. https://www. thehindu.com/news/national/the-malimath-committees-recommendations-onreforms-in-the-criminal-justice-system-in-20-points/article61493071.ece.

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8. The Indian Evidence Act, 1872, In: Justice Mallick MR, Criminal Manual (Criminal Major Acts) Professional Book Publishers, 2004, pp. 25–26. 9. Official Website of District Court of India, Juvenile Justice Board, September  27, 2020. https://districts.ecourts.gov.in/rudraprayag/juvenile-justice-board. 10. “CrPC Section 18—Special Metropolitan Magistrates.” A Lawyers Reference, 2022. https://devgan.in/crpc/section/18/ (Accessed 19th October, 2022). 11. Kantak, M.P., Ghodkirekar, M.S.,  & Perni, S.G., Utility of daubert guidelines in India. Journal of Indian Academy of Forensic Medicine, 2004, 26(3): 110–112.

CHAPTER 5 PATIENT, PHYSICIAN AND THE LAW Ambika Prasad Patra, Bibhuti Bhusana Panda and T. Neithiya

Chapter Highlights • • • • • • • • • • • • •

Doctor vs. patient Rights of doctor and patient Doctor–patient relationship Legality of emergency medical services Legality of doctor’s fees Professional misconduct NMC and Supreme Court guidelines for arresting doctor in negligence allegations Medical boards: composition and tenure Tests for medical negligence Defences against negligence Compensation systems and consumer protection laws in India Critical review of consumerisation of health service Clinician’s Corner

Introduction Who Is a Physician? The dictionary defines a physician (Merriam-Webster Diction‑ ary) as a person skilled in the art of healing. The Western world views a physician as one educated, clinically experienced, and licensed to practice medicine. The traditional Indian philosophy of physicians extends this definition further. Suśruta (800–700 BC), an ancient Indian physician and the world’s first known surgeon (Father of Plastic Surgery), said in his Suśruta Samhita that a physician is a social educator who must be skilled and intelligent enough to treat the disease. Simultaneously, he should have an empathetic touch to heal the suffering as (Sushruta’s treatise): Saint cures the disease with his brain and heals the suf‑ fering with his heart.

Who Is a Doctor? Colloquially, a registered medical practitioner is called a doctor, viz. a person who has successfully acquired a medical degree, like MBBS, and mandatory rotatory internship (house surgeon). For details, see Chapter 3, ‘Medical Practice’.

Rights of a Patient A person who consulted a doctor for health-related issues like healthcare and preventive or medicolegal services and consented (implied or expressed) to necessary medical examinations, diagnosis, and treatment is a patient.1, 2 The autonomous bodies that protect patient rights are:

1. Medical council and NMC 2. Consumer courts 3. Judicial courts 4. Charter of patient rights 5. Consumer

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Charter of Patient Rights • Right to health and fair medical treatment is enshrined under Article 21 of the Constitution. Every patient has the right to access healthcare facilities and emergency care irrespective of age, sex, religion, socioeconomic status, etc. • Right to: – Choose and change his doctor or facility – Receive continuous care – Choose comfort while on treatment – Complain and redressal of grievances – Confidentiality of his illness – Be treated with care, compassion, and respect – Know all the information regarding his illness – Privacy during treatment – Refuse treatment or any specific treatment – See/have his treatment records – Know the professional status of the healthcare providers • Right to access healthcare services in the following situations: – Irrespective of their ability to pay, timely emergency care at any healthcare facility. – Treatment and rehabilitation and the consequences must be made known to the patient. – Provision for special needs in the case of newborn infants, children, pregnant women, the aged, disabled persons, patients in pain, a person living with HIV, or AIDS patients. – Counselling without discrimination, coercion, or violence on matters such as reproductive health, cancer, or HIV/AIDS. – Palliative care i.e. affordable and effective in cases of incurable or terminal illness. – A positive disposition displayed by healthcare providers that demonstrates courtesy, dignity, patience, empathy, and tolerance for humans. – Health information that includes the availability of health services and how best to use such services, and such information should be in the language understood by the patient. – Refuse treatment, and such refusal should be verbal or in writing, provided that such refusal does not endanger the health of others. – Be referred for a second opinion upon request to a health provider of one’s choice. The second opinion should be taken only with the consent of the physician. • Participation in treatment decisions. The patients have the right to get informed about the available treatment options, health plans, healthcare professionals, and healthcare facilities. Parents, guardians, family members, or other individuals the patient designates (special educator in case of mental or physical disability) can represent them if the patient in question cannot make decisions. DOI: 10.1201/9781003139126-6

Patient, Physician and the Law • Complaints and appeals. The patient has the right to a fair, fast, and objective review of any complaint s/he has against the health plan, doctors, hospitals, or other healthcare personnel. This includes complaints about waiting times, operating hours, healthcare personnel’s conduct, and healthcare facilities’ adequacy. • Confidentiality and privacy. Patients have the right to confidentiality regarding their conversations with healthcare providers and to protect healthcare information. The patient also has the right to review and copy their medical record and request that the physician change it if it is not accurate, relevant, or complete.

Responsibilities of Patients • To comply with the prescribed treatment or rehabilitation procedures. • To enquire about the related costs of treatment and rehabilitation and to arrange for payment. • To respect the rights of other patients and health providers. • To provide healthcare providers with relevant and accurate information for diagnostic, treatment, rehabilitation, or counselling purposes. • Make sure that doctor, dentist, or any hospital or clinic one is going to has up-to-date information about how to contact the patient. • Take any medicine which is prescribed and finish the course of treatment. Do not take out-of-date medicine, and give old medicine to your pharmacist to get rid of old medicine. • To utilise the healthcare system properly and not abuse it. Healthcare staff has demanding jobs to do, often under stressful circumstances. Help them by treating them considerately. Violence or racial, sexual, or verbal abuse is entirely unacceptable. • Use emergency services in a real emergency, as there will be seriously ill people who need to use these services. • Look after your health and think about how you could have a healthier lifestyle. Be on time for appointments and tell the clinic, practice, or hospital if you cannot keep your appointment. • Pass on your comments to the healthcare staff. Improving services is helped if the people providing them know what you think about the services. Help staff by filling in surveys if you are asked to, and use any other ways of providing feedback. (Make sure that they have been given copies of all the relevant records.) • As per the decision of the Bombay High Court (Raghunath Raheja v. Maharashtra Medical Council), every patient or his legal heirs have the right to get copies of all the case papers upon payment of relevant charges. • Make sure that they have received the bills for all the payments made. • Rights on patient medical records. All the original documents should be handed over to the patient at discharge with minimal charges. Upon further requests for valid needs (upon written request by MCI), a copy should be given within 72  hours. The period of filing the negligence suit allowed to the patient is two years. However, the period may be extended based on the court’s discretion. Hence, for the doctor’s defence, consent forms or any other documents bearing the

I-49 signature and particulars of the patient should be preserved for three to five years. Failing may attract payment of compensation fine (PS Grewal Dr v. CS Chawla 107 CPJ 125NC).

Rights of a Doctor • • • • • • • • • •

Right to choose patient, except in case of emergency. Right to use title and qualification against his name. Right to practice medicine. Right for treatment—he can treat all patients, including his family and himself. Right to dispense medicines to his patients. Right to prescribe medicines, including dangerous drugs (schedule H and L drugs). Right to give expert evidence in the court of law for the medicolegal examinations or on the grounds of his speciality. Right to issue medical certificate. Right to demand a reasonable fee. Right for appointment in public and private sector hospitals.

Responsibilities of a Doctor A doctor has three broad areas of responsibility or obligations, i.e., moral, ethical, and legal. 1. Moral responsibility. Towards himself and to his profession. 2. Ethical responsibility. Towards his profession, colleagues, and society. He must work within the framework of ethical codes of conduct for Registered Medical Practitioners (Professional Conduct) Regulation 2022 by the National Medical Commission (NMC). For details, see following section. 3. Legal obligations. Towards the law of the land. He has to abide by and work in sync with the healthcare laws and government instructions issued from time to time.

Physician–Patient Relationship • The doctor–patient relationship is a professional relationship guided by moral, ethical, and legal obligations. Both the patient and the physician have certain rights as well as responsibilities. To understand the doctor– patient relationship, one should be aware of who is a physician and a patient. • When a person who consulted a doctor for healthrelated issues like healthcare and preventive or medicolegal services consented (implied or expressed) to necessary medical examinations, diagnosis, and treatment and the doctor has chosen the patient for further treatment, there is the legal establishment of the doctor–patient relationship. This relationship is said to be established once the patient has chosen his doctor (so he has the right to end this relationship at a point in time, even before the treatment) and the doctor has consented to carry on the treatment. • A patient can choose his doctor except for medicolegal services and during medical emergencies. Similarly, a doctor cannot end this relationship unless the treatment is complete or the patient abandoned him.

Medical Jurisprudence & Clinical Forensic Medicine

I-50 • Exceptions. A  patient who needs treatment in a medicolegal case cannot deny in isolation to the medicolegal services, viz. medicolegal issues are state affairs where the wish of the patient to choose his doctor has little role unless she is a sexual assault victim. A lady doctor is always given preference for sexual assault cases. Duties (Moral and Legal Obligations) of Doctors

Regulations 2022, replacing the erstwhile Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations 2002. Any RMP violating the regulations shall be considered in a professional misconduct. The list given by NMC does not constitute a complete list of professional misconduct and can be modified or added to from time to time depending upon the circumstances.

(Please see Chapter 3, ‘Medical Practice’.)

Professional Misconduct The act of violating ethical responsibilities is called professional misconduct, viz. breaching the codes of conduct laid in Regula‑ tions for Professional Conduct by the Registered Medical Practi‑ tioners (2022) by the NMC.3, 4 Definition: The doctor’s conduct that can reasonably be re‑ garded as disgraceful or dishonourable and unethical as judged by the professional brethren of good repute and competence. Note: It is not the court that will judge the doctor’s conduct in question; instead, the opinion of his fellow professional brethren (through the State Medical Council) is considered before taking a decision. The abuse of professional position and noncompliance with applicable laws and regulations come under this professional misconduct. • The NMC has recently laid down a list of actions in the Registered Medical Practitioner (Professional Conduct)

Medical Malpractice Definition: Medical malpractice is  any act or omission by a physician during the treatment of a patient that deviates from accepted norms of practice  in the medical community and causes an injury to the patient.1–7 An act of medical malpractice usually has three characteristics: • Firstly, it must be proven that the treatment has not been consistent with the standard of care, i.e., the standard medical treatment accepted and recognised by the profession. • Secondly, it must be proven that the patient has suffered some kind of injury due to negligence. In other words, an injury without negligence or an act of negligence without causing any injury cannot be considered malpractice. • Thirdly, it must be proven that the injury resulted in significant damages, such as disability, unusual pain, suffering, hardship, loss of income, or a significant burden of medical bills.

TABLE 5.1  List of Unethical Acts Unethical Acts 1. Unethical advertising. 2. Patents and copyright inhibit patient care when larger populations are taken into consideration. 3. Open shops for dispensing drugs. 4. Dichotomy/fees splitting/cut practice. 5. Practising secret remedies which are not approved. 6. Torture and violation of human rights. 7. Practising euthanasia without recommendation. 8. Financial association with pharmaceuticals and the allied health sector industry. 9. Improper prescription. Act of Omission 1. Not maintaining proper medical record. 2. Not displaying registration number. 3. Duty lapses. 4. Not providing proper information at MCI inspection. 5. Not mentioning appropriate diagnosis or provisional diagnosis while prescribing medicine through telemedicine. Act of Commission  1. Adultery.   2. Drunk on duty.   3. Court conviction.   4. Sex determination of foetus.   5. Illegal abortion.   6. Issuing false certificate.   7. Violation of provisions of the Drugs and Cosmetics Act.   8. Covering nonmedical staff if doing medical work.   9. Disclosure of professional secrets. 10. Refusing treatment without genuine grounds. 11. Publishing without consent. 12. Use of tout or agents. 13. Claiming to be a specialist when he has no special qualification in that branch. 14. Conducting research without ICMR guidelines. 15. Undertaking IVF/AI without informed consent. Note: Acts of omission and commission constitute professional misconduct.

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Torts Tort (अपकृित)—non-criminal, non-contractual offences; civil cases. It deals with professional negligence. Medical malpractice liability is usually based on the tort of negligence. The law of torts in India is a body of law that addresses and provides remedies for non-contractual acts of civil wrongdoings. Examples of harms under tort law are loss of wages, bodily pain, mental agony, etc. • A negligent tort is one among three categories of tort laws that deal with medical negligence, accidents, etc. Medical malpractice is a specific subset of ‘tort law’. The main aim of tort is compensation for harm suffered as a result of the breach of a duty fixed by law. Another essential aim of tort is to deter harmful conduct of professionals which is likely to cause damage to the patients. • The law of medical malpractice differs significantly between countries. Negligence is an offence under tort, IPC, Indian Contracts Act, and Consumer Protection Act in India. • Professionals potentially liable under medical malpractice laws are: • Physicians, surgeons, psychiatrists, and dentists • Nurses, midwives, nurse practitioners, and physician assistants • Allied health professionals (physiotherapists, social workers, psychologists, pharmacists, optometrists, and medical radiation practitioners) • Negligent acts or omissions that attract medical malpractice claims:

• Failure to properly diagnose a disease or medical condition • Failure to provide standard treatment for a medical condition • Unreasonable delay in treating a diagnosed medical condition Sometimes, medical malpractice action may be allowed even without a mistake from the doctor, i.e., issues of informed consent—patients may allege that they were not adequately informed of the risks before agreeing to treatment and would have declined if they had proper information in advance.

Medical Negligence • The term negligence means lack of standard care. Omission to do something which a reasonable man would do, or act of commission—doing something which a reasonable man would not do. • The negligence charges might arise from diagnosis, treatment, aftercare, or health management errors. • Definition: Absence of standard or reasonable skill and care or wilful negligence by a doctor while dealing with the patient causes bodily injury or death (Charts 5.1 and 5.2). Causes of Medical Litigations6, 7 • Poor communication. • Improper/inadequate documentation.

TORTS

Act of Injury

Physical contact with patient

INTENTIONAL

UNINTENTIONAL

Present

Absent

Not Applicable

Assault

Indecent assault

Negligence

CHART 5.1  Types of medical litigations/torts against healthcare professionals.

Types of Negligence torts

CHART 5.2  Classification of torts.

Slightly Neglect

Unsatisfactory conduct by the doctor.

Warning /minor penalties by SMC

Ordinary Neglect

Mental stress and/or Monetary loss by patient.

Civil courts/tort/ compensation laws

Grossly Neglect

Rash & Negligent act – gross inaction by doctor.

Criminal courts/laws. Imprisonment

Medical Jurisprudence & Clinical Forensic Medicine

I-52 • Blunder diagnosis. • Careless treatment (poor adherence to standard protocols). • Delay in attending patient and hence the treatment. • Failure to refer in time. • Hurt patient ego (due to erratic/apathetic behaviour). • Hefty medical bills, non-flexible attitude by the staff. • Litigant patients—by virtue, they are litigant in nature. They are very cunny, may be very polite during hospital stays, are well-informed with wide contacts, and may surreptitiously try to trap the doctor/hospital at the slightest mistake or omission. Usual motive is for monetary gain or other vested benefits. Note: Error in diagnosis (leading to wrong treatment) and damage to the patient are not legal grounds for negligence.

Constituents of Negligence The following four acts (4Ds) constitute a negligent act. To establish the negligent act, the complainant has to prove all 4Ds exist individually and are interlinked. The absence of any one or more links or acts leads to the forfeiture of his case.1–3 1. Duty of care. The duty of care must exist, and a valid doc‑ tor–patient relationship must be established. A doctor is duty-bound to treat the patient as soon as he agrees. But a doctor cannot refuse the treatment of a patient in an emergency. The doctor–patient relationship did not form when a doctor did not agree to treat the patient and if he examined the patient on a request from a third party, like an insurance company. 2. Dereliction of duty. Breach of duty, i.e., wilful negligence by a doctor, or absence of, or failure to maintain, or decrease in standard of skill and care. It is a negligent act on the doctor’s part to perform his duties towards the patient. It is a failure on the part of a doctor to maintain the applicable standard of care and skill (example: doctor did not give proper treatment after agreeing for treatment). 3. Direct causation. There must be evidence of ‘definite damage’ to the patient, and the damage must directly arise from the dereliction. Mere dereliction without any damage may not hold the accused negligent. The damage caused to the patient must have been due to the direct effect of the negligent act of the treating doctor without any contribution from the plaintiff and without which injury would not have occurred. 4. Damage. There should be visible physical or mental damage that the patient has suffered due to the doctor’s negligent act. Damages are to be direct consequences of a breach of the same duty. Damage may be mental or physical injury, disability, or death, and it must be reasonably foreseeable. Example: Loss of wages, medical expenses, mental duress, increased pain and suffering, loss of body part or function, reduction of life expectancy or death.

For example, simply, the presence of gauze packs in the peritoneum after abdominal surgery may not be held as negligence until it has not caused septicaemia or abdominal pain in a postoperative case (Figure 5.1).

FIGURE 5.1  The process of a negligence litigation. Analysis of 4Ds 1. Duty of care. The duties that a doctor owes to his patient: a. A duty of care in deciding whether to undertake the case. b. A duty of care in deciding what treatment to give. c. A duty of care in the administration of that treatment (Table 5.2). 2. Dereliction of duty. a. Absence of reasonable care and skill standard care/skill/scope. b. Reasonable skill and care are the degree of standard skill and care expected for the expertise of a doctor. The skill and care expected for a specific task may be different—for an intern/house surgeon, a general practitioner, a specialist, and/or a superspecialist. c. The degree of care and competence. An ordinary, competent doctor of that profession would exercise those skills in the circumstance in question. d. The courts test the reasonableness, called the reasonable person. The ‘reasonable person’ is how an average or typical member of the said community (physician or surgeon) should behave in situations that might pose a threat of harm (through action or inaction) to the public. e. Specialist vs. quack i. Specialist: with requisite qualifications and skill. Quack: practising outside your qualification and skill (Poonam Varma v. Ashwin Patel AIR 96 SC). ii. Specialist (NMC): one must have special qualifications in a specific field or speciality. f. Special qualification in that branch (SC: within the scope of qualification/skills/experience). • Expertise: DM, MD, DNB, diploma, etc. • Consultant: professional adviser or an expert in a particular field. He is entitled to a fee for his services or advice.

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TABLE 5.2  Standard of Care vs. Degree of Care

Standard of Care

It is a constant and remains the same in all cases. The doctor’s conduct is reasonable and need not necessarily conform to the highest or lowest degree of care possible.

law but cannot form a basis for criminal law. The Delhi High Court (2005) laid down in civil law three degrees of negligence:

Degree of Care

It is a variable and depends on the circumstance. It refers to what amounts to reasonableness would have in a given situation. Degree of care of a regular skilful member of the profession may reasonably be expected to exercise in the actual circumstances. The degree of care varies with competence and expertise: intern, general practitioner, specialist, superspecialist.

• Experts: superspecialty (cardiology, nephrology, endocrinology, haematology, etc.). • Cross-specialty/Cross-pathy. • Attending seminars/CME vs. qualifications. • Can specialists do general practice? Yes. MBBS basis. 3. Damage. a. Types of negligence suits. For negligence to amount to an offence, the element of mens rea must be shown to exist. Civil, criminal, contributory, ethical negligence. Damages are assessed by courts in terms of monetary benefits based on: Pain and suffering (physical and/or mental) Loss of earning (present and future) Reduction in quality of life or life expectancy Expenses incurred Reduced functionality of body parts or disability (both permanent and temporary) • Loss of potency • Death b. Negligence pleas are based on the degree of loss. • Unsatisfactory conduct by the doctor • Mental stress and monetary loss by the patient • Rash and negligent act—gross inaction by the doctor c. To fix criminal liability on a doctor or surgeon. Not just lack of necessary care, attention, skill but a high degree of negligence is necessary to prove the charge of criminal negligence u/s 304-A IPC. The degree of negligence required should be as high as can be described as ‘gross negligence’. d. Supreme Court ruling on criminal negligence. When a patient agrees to go for medical treatment or surgical operation, every careless act of the medical man can’t be termed as ‘criminal’. It can be termed ‘criminal’ only when the medical man exhibits gross lack of competence or inaction and wanton indifference to his patient’s safety, which is found to have arisen from gross ignorance or gross negligence. e. Degree of negligence. The legal concept of negligence differs in civil and criminal laws. The degree of negligence required to prosecute under the charge of criminal negligence should be gross or even high. Negligence which is neither gross nor of a high degree may provide a ground for action in civil

i. Lata culpa, gross neglect ii. Levis culpa, ordinary neglect iii. Levissima culpa, slight neglect Burden of Proof • The burden of proof for establishing all four elements is upon the patient/plaintiff. • Failure to provide substantive evidence on any one element may void the charge. • The doctor may be liable for both civil and criminal negligence for his single unprofessional act, i.e., in civil court, he pays for damages and gets imprisonment by the criminal court. • The law considers the doctor negligent only when established by the tests for negligence and his professional colleagues. • In legal terms, damage means physical, mental, or functional injury to the patient, and it must be quantifiable. Civil Negligence • It’s a form of negligence for which a patient brings an action for damages in a civil court against who owed him a duty in care, or if he had suffered an injury in consequence of negligence or unskilled treatment. Absence of ‘gross carelessness’ or ‘gross inaction’ by the examples: loss of earning, increased expenses, mental stress. • Decreased life expectancy. Doctor is a prerequisite for civil suits damage usually compensated by monetary benefits. • Res Indicata. Duration of lodging complaint is within two years and shall not stand after two years of the act/ hearing. But this depends on the court’s discretion. • When a doctor brings a civil suit for realisation of his fees from the patient or his party, against a patient who had refused to pay the fees on the plea of negligence during the legal course.

• • • • •

Ethical Negligence There is no damage to the patient directly, or a specific patient may not even be affected as well. In such a case, no compensation is to be paid. It covers the acts of violation or breach of ethical codes of medical practice, i.e., breach of MCI’s Code of Medical Ethics (Rules and Regulations), 2002. This is synonymously used with professional misconduct. Disciplinary action may be taken by the State Medical Council. Criminal Negligence



1. Negligence is gross, wilful, wanton, careless, and culpable disregard for the life and safety of the patient. Consent gives no protection. Prosecuted under section rash or negligent act (Sec. 304-A). Trial in criminal court. Imprisonment for two years, fine, or both. Examples: a. Wrong medicine in the eye—loss of vision b. Leaving instruments/swabs in the abdomen c. Careless blood transfusion d. Operation on a wrong limb/patient e. Issuing a false certificate (Figure 5.3)

Medical Jurisprudence & Clinical Forensic Medicine

I-54 TABLE 5.3  Difference between Civil and Criminal Negligence Civil Merely absence of care and skill, where damages could be compensated monetarily. Civil or consumer courts—not a criminal offence.

Trial Dispute Between Complainant Act of Negligence Consent Damage Evidence Burden of proof Punishment Role of NMC

Example

Party and doctor Sufferer party Lack of care and skill—cause repairable damage or harm Good defence Loss of wages Strong Lies on the patient to prove all the four constituents of negligence and interlinking between them beyond a reasonable doubt To pay damages The NMC/medical council can act against the doctor and punish him accordingly.

An orthopaedic surgeon was fixing a humerus fracture improperly, leading to permanent deformity.

Criminal Gross absence of care and skill, and the damage/death cannot be compensated monetarily. Criminal court after registration of police complaint. Criminally prosecuted under 304(A) & other appropriate sections of criminal codes. State and doctor Public prosecutor on behalf of the state Gross inattention—causes irreparable damage Not a defence Loss of life Beyond reasonable doubt Lies on the doctor Imprisonment + pay damages These cases can be simultaneously filed both in civil and criminal courts, and the NMC/medical council can also give a warning, temporary or permanent erasure of registration, depending upon the severity. An orthopaedic surgeon was operating on a humerus fracture correction in a drunk condition, leading to improper fixation and loss of life of the patient.

4. Reasonably foreseeable damage. • This is used to decide culpability and to determine whether a reasonable man would have foreseen the damage on the facts of a particular case. The doctor must have shown competence to ‘reasonably foresee’ the untoward event that a fellow professional brethren of the same competence would have foreseen. • While assessing the standard of care, it is judged in the light of knowledge available at the time of the incident and not at the trial date. A simple lack of care, an error of judgement, or an accident is not proof of negligence by a medical professional. So long as a doctor follows a practice acceptable to the medical profession, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure the accused followed. • When it comes to the failure to take precautions, what has to be seen is whether those precautions were taken which the ordinary experienced men have found to be sufficient; a failure to use extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence.

•

•

•

Tests for Negligence1–3

1. Bolam Test • Bolam v. Friern Hospital Management Committee (1957). It is an English tort law case that lays down a rule for assessing the standard of reasonable care in negligence cases. Mr  Bolam was a voluntary patient at  Friern Hospital, a mental health institution, for recurrent depression. He agreed to undergo  electroconvulsive therapy. He was not given any  muscle relaxant, and his body was not restrained during the

•



procedure. Violent convulsions led him to some severe injuries, including fractures of the acetabula. He sued the Friern Hospital committee for compensation. Three criteria to be fulfilled for a positive Bolam test result: a. It must be proved that there is a usual practice. b. It must be proved that the defender (doctor) has not adopted that practice. c. It must be established that the course the defender (doctor) adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care. (This is the essential criteria of the test out the previous item.) Principles of Bolam’s test. The Bolam test is a test judged by peer medical professionals from the same field. The legal principles of the Bolam test are based on: – Determining the liability in medical negligence litigations. – The court accepting the opinion given by the reasonable and responsible body of professional colleagues on the defendant doctor’s conduct. Test applicable to all kinds of negligence and not only medical negligence. All Indian courts use the principles of the Bolam test in all medical negligence litigations, with few cases of rejection of the Bolam test in the Indian Supreme Court. The Bolam test has instilled confidence in the professional precisely because it allows flexibility regarding differing medical views. So, the Bolam test is the gold standard for negligence torts (Figure 5.2).

2. Bolitho Test • Bolitho vs. City and Hackney Health Authority (1997). An English tort law case. • Patrick Bolitho, a 2-year-old child, was brought to a City and Hackney Hospital for cough and breathing

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FIGURE 5.2  Genesis of the Bolam test. difficulties. The doctor called to deal with him had missed attending the case due to a low battery on her pager. The child died as a result. The child’s mother sued for their not attending the case, arguing that her child would have been saved if he had been intubated in time. Hence, the court looked for answers for: – Is a logical basis for intubating such a case an accepted practice by peer professionals? – Could intubation have saved Bolitho’s life? • Bolitho’s verdict. The expert opinion on the matter was divided on whether to intubate or just to give symptomatic treatment. On the facts, the court decided that not intubating Bolitho in the circumstances at hand was not a negligent way of doing the treatment. It is not a usual practice, unlike saving the life that could have saved Bolitho’s life. But usually not practised for a dying patient from croup. • The outcome of the Bolitho case. The court, to reach its conclusions, must take an enquiring stance to examine the medical evidence offered by both parties in litigation. The Bolitho test requires that the standard practice proclaimed by the professional peers must be justified logically and must have considered the risks and benefits of competing treatment options. • To summarise Bolitho’s principle: – The defence could not be considered reasonable if the body of doctors were not capable of withstanding logical analysis. TABLE 5.4  Difference between Bolam and Bolitho Tests Bolam Test 1. It can only justify a reasonable standard of care as provided by the responsible, reasonable, and respectable body of medical experts. 2. Is peer opinion logically supported? No. 3. Can the court reject the peer evidence? No. 4. It does not apply in deciding causation. 5. Most commonly used test—gold standard.

Bolitho Test 1. The court will not accept a defence argument as being ‘reasonable’, ‘respectable’, or ‘responsible’ without first assessing whether such opinion is susceptible to logical analysis. 2. Is peer opinion logically supported? Yes. 3. Can the court reject the peer evidence? Yes. 4. It does test for deciding the causation. 5. Very rarely required—in India, Bolam test was rejected only on two occasions.

FIGURE 5.3  Process of investigation medical negligence cases. – The patient’s interest/autonomy is not being neglected, as it was affirmed that medical specialists could not be free to adjudicate on their matters. – The Bolitho test helped clarify what ‘a responsible body’ meant, defining it as one whose opinion had a ‘logical basis’ (Table 5.4).

Criminal Negligence Can Be Charged under the Following Sections • 304A IPC. Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment up to two years or with a fine, or with both. • 336, 337, or 338 IPC. In case of serious injuries. • 87 IPC. Act intended to cause grievous hurt or death. • 52 IPC. Act not done in good faith. • 89, 90, and 92 IPC. Consent becomes null and void if it’s proven the act was not done for the patient’s benefit (Figure 5.3).

Defences for Doctor It’s not necessarily the doctor i.e. fully responsible in all cases of negligence allegations. In fact, in majority of negligence torts, the doctor is not guilty of the charges. Hence, in case of allegations, the medical care professional may undertake the following defence strategies:6–9 • Keep calm. First, keep calm and don’t be scared of the police or anybody. Peruse the matter personally and find out where the mistake/error happened. • Communication. Once you identify the mistake, try to convince the patient’s family about the mistake/error if it is from that side. Never use accusing, provoking words. Cordially but firmly tell only about facts and nothing to the patient’s family. Never take excuses to cover up your mistakes. • Inform the insurer. If you have taken any medical indemnity insurance, it’s the right time to inform the

I-56 insurer once you know about some mishap with the patient. • Police help. If any death/OT table death occurred, it’s better to seek police help immediately before the raged attendants ransack your hospital. • CCTV coverage. Use high-quality, round-the-clock IR-CCTV surveillance of your entire hospital facility except for examination, OT rooms, and lavatories. Legal Defences 1. Error of diagnosis and treatment. Rest assured if the death/damage occurred while discharging duty as per the accepted standard protocol. 2. Break 4D links. No duty or no damage/death—hence, no negligence. Example: If a surgeon operated on the patient while drunk but the operation was successful and the patient is doing well, the patient can’t sue the surgeon for negligence because he was drunk (no damage/death). Such case will ultimately be null and void. This defence, however, does not apply to emergency services. 3. Error of judgement. In an error of diagnosis, and thence the treatment, leading to damage/death of a patient, the medical practitioner will not be held liable for negligence if the medical practitioner has followed the standard practice/protocols of skill and care an ordinary competent person would have done. 4. Res ipsa loquitur. The doctrine of res ipsa loquitur means the fact speaks for itself. The act of gross incompetence, away from the standard practice/protocol, rash and unprofessional act. The damages to the patient give prima facie evidence of the wrongdoing. Example: Amputation of the wrong limb, injecting an S/C drug in IV line, operating without gloves/protection, etc. 5. Doctrine of common knowledge. The doctrine of common knowledge refers to information that an average logical person can have, i.e., common sense. The damage to a patient could have been prevented using common sense. Example: An acute diarrhoea case was treated with antibiotics and vitamins, but no IV fluids were given, leading to the patient’s death. 6. Reasonable foreseeability. The doctor failed to act or omitted where a reasonable man could have foreseen and prevented the damage. Example: Putting a plaster cast without fracture reduction in a humerus fracture case, leading to malunion. The doctor could have foreseen the outcome of an unreduced fracture casting. 7. Medical misadventure. Some unforeseen, dangerous adverse events occurred in the patient after treatment which was beyond the imagination of a standard practitioner. • It may be due to biological unpredictability in some patients. • It may be related to therapeutic, diagnostic, or experimental procedures. Example: A patient collapsed after receiving a diclofenac injection and died within minutes. Diclofenac injection never led to death in thousands of patients before. Hence, it may be due to medical misadventure. 8. Contributory negligence. There is clear evidence of negligence on the part of a doctor, but the extent of damage/death is contributed by the negligent act of the patient as well.

Medical Jurisprudence & Clinical Forensic Medicine • Both have contributed to the damage. Hence, the court will determine the compensation accordingly. • This plea is not applicable in gross inaction/criminal proceedings against the doctor. It is applicable as a defence only in civil cases. • Example: If a patient dies due to postoperative septicaemia, the doctor may plea that the patient did not take the prescribed medicines or did not come for follow-up. • Limitation of contributory negligence: a. Avoidable consequences rule. A common tort law principle which prevents the recovery of damages to a tort victim because he could have avoided the damage by the use of reasonable effort or expenditure, i.e., even though both the doctor and the patient are negligent, the patient could have avoided the foreseeable damage. – Example: A  village man visited OPD for a nail prick wound on his foot. The doctor treated the wound with bandages and ointment and prescribed antibiotics. The patient was advised to regular wound dressing with prescribed ointment. The wound did not heal even after a week of treatment. Instead, it became an ulcerated wound. The frustrated patient, on the advice of his neighbour, used some herbal medicaments for a complete cure. But the wound ulcerated further to an extent which warranted amputation of the foot. In this case, the compensations for his loss may not be granted on the principle of the ‘avoidable consequences rule’ by the courts if he brings a negligence tort against the OPD doctor. b. Last clear chance doctrine. Unlike the ‘avoidable consequences rule’, here, the doctor cannot claim contributory negligence if the doctor had a clear opportunity to stop the damage to the patient but failed to do so. Example: In the previous illustration, if the village patient revisited the OPD doctor and the doctor failed to do a culture and sensitivity test of the wound swab to prescribe the exact antibiotic for complete healing, the amputation of the foot would be the complete responsibility of the doctor, based on the last clear chance doctrine. 9. Res indicata. The negligence allegations or compensation claims by the aggrieved patient/family have to be made within two years of the said occurrence. Allegations made beyond this permitted duration can be defended on the basis of res indicata. However, allowing/ rejecting a plea in such cases is entirely upon the discretion of the court. If it feels to be allowed after two years, it can do so. 10. Res judicata. When the matter has already been filed/ heard in a court, another case on the same matter against the same person/doctor cannot be filed in another court. One cannot be legally sued twice for the same crime (Sec. 300, CrPC). However, the lower court’s decision can be challenged by a higher one. 11. Novus actus interveniens is an unrelated action/event intervening in the primary act. The damage has already

Patient, Physician and the Law happened to the patient and then worsened by some event unrelated to the first one. The doctor can take advantage of the new act as it is often difficult to prove which act is responsible for the damage. Example: A cardiothoracic surgeon performing surgery at night severed the coronary vessels due to darkness following a sudden power failure. The backup generator also failed due to a lightning strike on the building. The death of the patient may be attributed to unforeseen power failure during the operation. 12. Volenti non-fit injuria. This doctrine says that a person who knowingly and willingly puts himself in a dangerous situation cannot sue others for the resulting injuries. Example: An alcohol addict at a rehabilitation centre was treated successfully for alcohol withdrawal syndrome and was kept in the hospital for observation for a few days. But the patient left against medical advice and again started drinking. One day, the patient developed seizures and died. The doctor is not guilty. 13. Product liability. During a standard operation of a medical device, machine, or any other medical product, if the device goes wrong and causes injury/death to a patient undergoing treatment, then the doctor may take the defence of faulty product (if it is within the company’s warranty period/service agreement) as a cause of injury or death. 14. Composite negligence refers to the failure or omission of two or more people leading to the death of/damage to the patient, i.e., along with the doctor, other hospital staff together contributed to the injuries. In this case, all the negligent doctors/staff must share the compensation with the injured person. Example: Suppose, after abdomen surgery, one gauze piece was left in the abdomen, leading to acute abdomen, then the doctor may defend that the scrub nurse gave him a wrong gauge count while closing the abdomen. The compensation has to be shared by both the surgeon and the scrub nurse. 15. Vicarious liability. An employer or senior supervisor is vicariously responsible for the negligent acts of his subordinate employees if it is within the scope of his duty. The unit head will be answerable for the mistakes of a resident under his supervision, though the resident is not left free. He may be part of contributory negligence. However, acts done by a subordinate without informing/ knowledge of the unit head/superior cannot be brought under vicarious responsibility. 16. Borrowed servant doctrine. If a borrowed employee committed some negligence during duty, the employer in charge of the employee at the time of the incident would be held responsible in addition to the borrowed employee. An anaesthetist brought only for surgery from another hospital is a borrowed servant for this surgery. 17. Corporate negligence. For certain omissions/commissions, the hospital, not the doctor alone, is to be held responsible for the patient damages/death. Example: While surgery, if the oxygen supply line carries halothane, leading to anaesthetic death of the patient, then the hospital facility management/administration should be responsible instead of the anaesthetist. 18. Doctrine of calculated risk. The actions of a doctor taken in the best interests of the health/life of the patient (with his consent) leading to any damage/death shall

I-57 not be considered an act of negligence. The outcome of a calculated risk-benefit depends on the probability by chance. Example: If a brain surgery turns out to be fatal in a severe head injury case where the doctor has already informed the patient/family about the potential poor prognosis/outcome of that surgery, then he shall not be held responsible for the death if he has taken an informed consent.

Medical Malpractice Laws Different Laws and Remedies • • • • •

Civil laws: private right, right has remedies, many people Criminal laws: public wrongs, punishment, state right State Medical Councils National Medical Commission Human rights commissions

Defending Negligence Charges Don’t get frightened, stay calm, avoid anger, continue followup and treatment of the patient, take the help of a legal and medicolegal consultant, and don’t give unnecessary details. Ask for an expert witness. Attend regularly, personally. Don’t be overconfident!5–9 Prevention of Negligence 1. Communication. Timely, bona fide information is the patient’s right before starting and during the treatment, and even after discharge.6–8 • Explain misunderstanding/misrepresentation by giving proper examples. • Explain t/t modalities, especially in complicated cases. • Queries must be solved. • Behave in a compassionate, sensitive, and humane manner. • Don’t avoid communicating with relatives. • Avoid ‘loose talks’. • Inform police. Unexpected, unexplained death; death on the table; homicides; suicides; accidents; poisonings; undiagnosed death; brought dead; suspected foul play; or any other medicolegal cases and sexual offences, PO suspected mob violence, physical assaults, etc, inform police. 2. Documentation. Around 90% of negligence litigations can be avoided simply by adequate documentation. If adequate communication and documentation have been ensured, that can avoid 98% of litigations. (See Chapter 6, ‘Medical Documentation,’ and Chapter  18, ‘Violence against Doctors’.) 3. Informed consent. (See Chapter 3, ‘Medical Practice’.) 4. Referral. The patient has the right to emergency services and follow-up services. If a doctor is not in a position to attend an emergency case or follow up patient treated earlier, he should refer to the appropriate doctor at his disposal. For follow-up services, one should refrain from prescribing over the phone, WhatsApp, or other remote prescription methods. Instead, referring the patient to an appropriate doctor is a better choice.

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I-58 Long-Term Steps

1. Mandatory posting in the department of forensic medicine and toxicology during internship, postgraduation, and superspecialty curriculum. 2. Integration of legal medicine DM/dip. courses of medical ethics and legal medicine. 3. Collaborative clinical practice. As we have a ‘busy schedule’ and other liabilities, delegate work to an equally competent colleague. For the ‘multispecialty approach’, having different subspecialties under one roof facilitates easy availability of ‘second opinion’. Aid from legal medicine, consultants can be obtained by doctors and courts. 4. Avoid ‘cross-pathy’ and cross-specialty practice. Due to liberalised norms in the NMC Act 2020, many alternate medicine practitioners practice allopathy, some general surgeons do caesarean section, general physicians treat paediatrics, Ayurvedic persons prescribe allopathy, etc.; this may create huge trouble if some wrong happens with the patient. This way, the indemnity insurance company may also refuse to pay for the case on the grounds of cross-pathy practice.7

Compensation Systems Various compensation systems currently available in India against medical negligence are:

1. Consumer Protection Act 1986. It provides fines to the patients by the negligent doctor. 2. Medical indemnity insurance compensates for all expenses arising from such litigation of negligence or professional misconduct. 3. Medical and life insurance by the patient itself. 4. Employee Compensation Act 1923. It provides compensation to employees and their dependents in case of any injury, disability, or disease caused by an industrial accident and occupational diseases. Compensation is to be

FIGURE  5.4  Pyramid of redressal mechanism for negligence suits. Hierarchy of redressal mechanism in negligence suits.



given according to the nature of the injury, disability, or death. 5. Employee State Insurance Act 1948. 6. Criminal liability. File a complaint with the local police authority, and the negligent doctor will be punished with the respective Indian Penal Code. 7. National Medical Commission (NMC). Aggrieved party can file a complaint of negligence against the medical practitioner to the concerned State Medical Council. The punishment ranges from warning notices to penal erasers through temporary erasers of medical registration (Figure 5.4).

Consumer Protection Laws in India Consumer Protection Act 1986 aims to provide consumers with easy recourse for their grievances. • According to the act, consumers purchase goods or hire services for consideration. • The need for action arises if goods purchased are defective or the service hired is deficient. • Services rendered free of charge or under a personal service contract are exempted. • According to the Supreme Court of India 1995, medical services also come under the purview of CPA. • CPA 2019 adds services of product, online purchases, and unfair contracts in its purview but doesn’t clarify medical services. • The complaint is accepted within two years of the occurrence of the cause of action. Consumer Court (Three-Tier Redressal System) 1. District Consumer Redressal Forum • Chaired by three members: district judge (president); other two are eminent citizens (one of whom should be a lady). • Compensation up to 5 lakhs.

FIGURE  5.5  Dispute redressal procedure in Consumer courts.

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2. State Consumer Redressal Forum • Chaired by three members: high court judge (president); other two are eminent citizens (one of whom should be a lady). • Compensation up to 5 to 20 lakhs. • Hears appeal from district forum. 3. National Consumer Redressal Forum • Five members: Supreme Court judge (president) + four members (one lady). • Compensation claims over 20 lakhs; hears appeal from state forum (Figure 5.5).

Medical Service and CPA

In the earlier days, the Law of Torts and Contract Act governed this service as cases of negligence were increasing (Consumer Protection Act) in 1986. In the landmark decision of the Supreme Court of India in 1995, medical services were included in CPA. Medical service is provided in three categories:

1. Service rendered free of charge. 2. Charges paid by everybody. 3. Everyone pays the charge, but some are exempted.

The following was concluded from the judgement:

1. The health service provider where no charge is taken from any person availing the service and given free service is outside the purview of service. 2. The medical services delivered on a payment basis fall within service in Section 2(1)(O) of the act (1986). 3. Services under insurance cover or where payment is done by other persons and made accessible for the patient are covered under this act. 4. Payment of the token amount for registration purposes cannot be created as a charge.

Rendering free-of-cost services is exempted from CPA. But this does not absolve one from the charges of negligence. They may be charged with civil negligence and may have to give compensation. Punishments • The noncompliance with the directions of National Consumer Disputes Redressal Commissions/Central Authority is punishable with imprisonment of six months, with fine up to 20 lakhs. TABLE 5.5  Dos and Don’ts in CPA Dos • Take due cognisance, attend personally and/or lawyer • Answer briefly, clearly, and comprehensively • Affidavits of colleagues • Ask for an expert witness • Ask for compensation • Give references • Demand cross-examination • Explain misunderstanding, misrepresentation

Don’ts • • • •

Ignore/disrespect the court Get panicky/frightened Give unnecessary details Volunteer to hand over documents unless demanded

• Punishment for false or misleading information is imprisonment of two years and a fine of up to 10 lakhs. • For repeat offenses, five years’ imprisonment and 50 lakhs fine (Table 5.5).

Medical Indemnity Insurance Medical indemnity insurance (MII) ensures the financial safety of medical practitioners, for example, doctors, nurses, surgeons, etc., from legal claims of their patients. The MII policy liberates the burden of a medical practitioner from fighting a legal battle and paying compensation for a patient’s damages. When the patient incurs any damages due to the doctor’s or hospital’s unintended mistakes, he can file a claim, and the medical indemnity insurance authorities are liable to pay him the compensation.9 What Coverage Does the Medical Indemnity Insurance Provide? • If a patient or any third party files a claim for any treatment-related injury, harm, or death. • Legal costs and expenses incurred while defending the case/claim. • Compensation payable to the patient. • Some premium amounts or MII companies even fight the case on behalf of the doctor. Why Is Medical Indemnity Insurance Important? • Every doctor or medical professional would like to treat patients with dedication and sincerity. However, erroneous diagnosis or treatment cannot be avoided while dealing with a human body. To err is human. Hence, a patient who incurred any mental/physical/ monetary damage may file a legal suit against the doctor. • In addition, consumer courts nowadays award hefty compensations, in crores and lakhs, which is impossible for a doctor to pay unless he has indemnity insurance. • It is a burden for a busy practitioner to visit this lawyer, court hearings, etc. frequently. Who Is Eligible to Get Coverage? • It covers all healthcare providers, including physicians, surgeons, cardiologists, pathologists, etc.; diagnostic/ scanning centres; aesthetic cosmetic practitioners; mental health clinics; and medical staff suppliers. What Issues Are Covered Under MII? • Different types of plans are available, depending on the customer needs. But every plan should cover at least the legal liabilities and any claims that arise due to accidents or unintentional mistakes made by the medical practitioners. • The policy pays for the legal battle cost if the doctor/ agency wishes to defend the case. • A hospital can insure the employed doctors or health assistants. Even unqualified, unskilled staff, like peons, sweepers, etc., who work in the clinic can also get

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I-60 coverage for any errors/omissions and negligence on their part.

businesses mentioned therein, i.e., healthcare service, if violates any law, would be brought into consumer forum as well. • So healthcare can be included under this definition.

Exclusions from the Policy Coverage • Medical procedures done under the influence of alcohol or narcotics. • Criminal proceeding for gross, rash, negligent acts. • No compensation for loss of goodwill of doctor. • Some MII companies exclude medical treatments for plastic surgery, weight loss, complications associated with AIDS, etc. MI Insurance Claim Procedure





1. Inform the insurer. First things first. Inform the insurer immediately about the unfortunate event with the patient with all the available details. Immediately can be after the unfortunate incident with the patient or after receiving a legal notice from the patient. Always carefully review the policy terms and conditions before signing in. 2. Submit all the relevant documents related to the case. Patient case sheet/treatment details, copies of court notices, summons, etc., to the insurer soon received at your end. 3. Claim settlement. It is the responsibility of the insurer to thoroughly investigate the matter and prepare for the defence in the court or to pay the compensation to the third party.

Critical Review of Consumerisation of Health Services The practice of medicine is an art, not a trade; a calling, not a business; a calling in which your heart will be exer‑ cised equally with your head. Acharya Charaka (900 BCE) Timeline of CPA • CPA, 1986. Medical Service is not included. • CPA, 1995. Healthcare was included as a service in Section 2(1)(O) of CPA by the Supreme Court of India in 1995 in IMA vs. VP Shanta and Others case. • CPA, 2019. Healthcare has not been included in the list of services enlisted under its definition but is not included in the exclusion list. • The medical practice in India has been under the Consumer Protection Act since 1957 and was based on the British court case Bolam v. Friern Hospital Management Committee. The healthcare professionals were held responsible for any medical negligence and malpractice based on Bolam’s test. • Now, the government of India introduced the new Consumer Protection Act 2019, in which ‘healthcare’ has been removed from the section that defines ‘service’ provided by various agencies, facilities, and businesses. However, the section also indicates that the definition of service is not limited to the facilities and

Consumer Protection Act—Necessity Advantages of CPA • Speedy disposal • Without fees • Expected quality health services Disadvantages of CPA • Deterioration of doctor–patient relationship • Costlier healthcare services due to increased practice of defensive medicine • Cheaper, easy way of lodging consumer complaints leading to increased number of frivolous complaints and police harassment of RMPs • No compensation possible for the loss of reputation, mental, physical, and financial harassment of doctors in frivolous complaints

Guidelines for Arresting Doctors from Frivolous or Unjust Prosecution against Medical Negligence

1. Supreme Court Rulings • The prosecution of healthcare professionals in case of death of a patient by a medical negligence dealt under Section 304-A IPC. The Honourable Supreme Court, in its judgement dated 5 August 2005 (Jacob Mathew v. State of Punjab), has taken note that the investigating officers and the private complainant cannot always be supposed to have knowledge of medical sciences to figure out the applicability of Section 304-A IPC. • Without sufficient parity, if the criminal process started, it can lead to serious embarrassment and harassment of the medical professional. • Hence, to protect doctors from frivolous or unjust prosecution against medical negligence, the Honourable Supreme Court, in the said judgement, observed that stator rules or executive instructions with certain guidelines need to be framed and issued by the government of India and/or the state government in consultation with the medical council of India. • The Honourable Court had also held that doctor accused of rashness or negligence may not be arrested in a routine manner (simply because a charge has been levelled against a doctor). Unless arrested, the arrest may be withheld. • Further, the Honourable Supreme Court (Lalita Kumari v. State of UP &OR’s, judgement dated 12 November 2013, partially modified on 5 March 2014) held that the preliminary enquiry in medical negligence cases should be made time bound, and in any

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case, it should not exceed 15 days generally, and in exceptional cases, it must be reflected in the general diary entry.

2. NMC Ethics and Medical Registration Board Guidelines • Some specific directions issued by the Honourable Supreme Court to frame specific guidelines needed for prosecution of doctors for causing death of innocent patients due to gross medical negligence or reckless therapy (vide letter no. NMC/MCI/ EMRB/C-12015/0023/2021/ETHICS/426, dated 29 September  2021). The NMC (Ethics and Medical Registration Board) recommended to frame the following guidelines for protecting of which criminal rashness or unjust prosecution against medical negligence: • The prosecuting/investigating agency, upon receipt of any complaint of criminal rashness or negligence, is an ingredient against medical practitioners under the Indian Medical Council Act 1956/NMC Act. Prior to making an arrest, refer the complaint to the District Medical Council Board (DMCB) for its recommendations as regards to the merit of the allegation of criminal rashness or negligence contained in the complaint. • The district medical board should be in government medical colleges and in district hospitals if the district doesn’t have a medical college. The reason being the availability of all the experts with them. • The Department of Forensic Medicine and Toxicology in every medical college which can be a nodal department for such board. • The district medical board, upon receipt of such a case, examines the allegation contained therein within two weeks from the date of its receipt and forwards its recommendations to the prosecuting/ investigating agency. • The prosecuting/investigating agency or the accused doctors (against whom the complaint is lodged), in case dissatisfied with the recommendations of the district medical board, may request to refer the matter (stating the reasons for dissatisfaction) to the state medical board’s recommendation within a period of two weeks from the receipt of recommendation of the district medical board. • The state medical board should have a pool of specialist from the state from each specialty apart from permanent members appointed by state government. Two specialists of the concerned branch (of the accused doctor) should be included in the board on the day of receipt of the complaint or appeal. • The state medical board, upon receipt of any such reference from the prosecuting/investigating agency, would examine the matter within two weeks from the date of receipt of such reference. The state medical board shall provide reason for endorsing or rejecting the recommendation of the district medical board. • The prosecuting/investigating agency, upon receipt of recommendations of the district or state medical board, may further proceed in the matter in

accordance with the law. However, in case arrest of a registered medical practitioner in the employment of state/central government is being made, the controlling officers (heads/in-charges) of such medical practitioner would be informed by the prosecuting/ investigating agency. Likewise, in case the registered medical practitioner is engaged in private practice, the concerned State Medical Council—or in case there is no State Medical Council in that state/UT, the EMRB of NMC—must be informed. • A doctors accused of rashness or negligence may not be arrested in a routine manner (simply because allegation has been levelled against him). Unless the alleged negligence is of gross nature and arrest is necessary for furthering the investigation or for collecting evidence, or unless the investigation officer is satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld. • The prosecuting/investigating agency prior to arrest of the doctor in such cases shall place factual position for consideration of concerned superintendent of police/DCP. • The medical boards should apply Bolam’s test to facts standard of responsible body of medical opinion. 3. Composition and Tenure of Medical Boards 1. District medical board. All permanent members of the board should be changed at least every two years. If the board is in a medical college, then one member from the Civil Surgeon Office (Department of Forensic Medicine and Toxicology) should be included. 2. State medical board. Permanent members of the board should be changed every two years, and a member from the Director General of Health Services (DGHS) should be included.

Clinician’s Corner

1. I am a O&G specialist in a maternity home. Months back, I  had done a hysterectomy surgery. When I was out of station on vacation, the patient called me for some bloody discharges and mild abdominal pain. Over the phone I  had told her some medicines. Now her husband threatens me with dragging to court because she had developed some side effects after taking the medicines that I  had told her over phone. But actually, the pharmacy gave her another/wrong medicine with a similar brand name, which caused her side effects. Patient has now recovered and is doing well. Why should I be blamed despite that I had tried to help her even during my vacation?

Answer: Please read the following points that may go against you in the court: • Referral service. During any situation (like vacation) when a doctor is not able to examine a patient, he must not adopt any other contingent option

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I-62 except referring the patient to another appropriate specialist. • Mobile phone treatment/prescription. He must not prescribe over the phone without examining a patient. There was little relaxation in a few cases during the Covid pandemic, but that does hold legal grounds always. • Prescribing brand names. Courts usually reprimand for not writing generic names in bold, legible letters instead of writing brand names in prescriptions. • The pharmacy dispenser’s act may be taken as contributory negligence, but that can’t absolve you completely from the charges. However, if the medicines you are telling are scheduled H and L category drugs, then the pharmacy may lose license for selling them without a valid prescription.

3. What if a doctor is not in a position to give emergency care due to a lack of beds, medicines, or finished duty hours, etc.?

Answer: Every doctor and hospital are duty-bound to provide emergency medical services irrespective of any reason or inability. Denying emergency medical services for whatsoever reason shall be liable for legal and disciplinary action and forfeiture of practice license under the Clinical Establishment Act. • Lack of beds. To save a life, beds are essential. A makeshift arrangement is a humanitarian responsibility of the state and the clinic/hospital/doctor. • Lack of medicines. If family members are available, write a prescription (use generic drug names) to arrange medicines from an outside pharmacy (but never write brand names of pharmacy/diagnostics/medicines). If the patient insists, the doctor may suggest some names of diagnostics or pharmacies. • If no family members are available with the patient to undertake his care, in that case, it is the legal obligation of the clinic/hospital/state and doctor to arrange and stock emergency life-saving medicines. • Finished duty hours. There is no time or shift limit for providing emergency medical services for a doctor.



1. You have declared the approximate surgery cost to the patient before surgery, and the patient has signed the consent form. 2. You have issued itemised GST bills (for private clinics). 3. All private clinics should put a price chart on their notice boards and abide by the tax rules. It is better to give a price range before starting surgery to accommodate unforeseen costs during/after surgery.



5. Can I deny a patient if I don’t like him?

Answer: A doctor has the right to choose his patient, but with exceptions to: • Critical patients needing emergency medical care. • Medicolegal cases. • A patient whose treatment has already started can’t be stopped midway without patient’s consent. But a patient has the right to quit your treatment at any point.

2. What is the definition of a medical emergency? At midnight, 12:00 a.m., a tribal scabies patient came to my PHC for emergency treatment because he could not sleep due to itching. Should scabies be a medical emergency?

Answer: Neither Indian law nor any court order has defined a medical emergency. Nevertheless, the definition of a medical emergency is largely left to the discretion of medical profession. The professional consensus is that a medical emergency is seen from the patient’s viewpoint instead of purely pathological/traumatic incidences. Scabies per se may not be an emergency condition, but the itching that made the patient sleepless is an emergency. Hence, any health condition which bothers a patient at any time of the day or night and for which he wants to be examined and treated is a medical emergency.

Answer: Please rest assured if you have done the following:

4. I am an ophthalmologist. After cataract LASIK surgery, the patient’s family sued me for taking a higher price than other clinics in my town. What should I do now?

Note: You can halt treatment to a violent, abusive, unruly patient/attendant (uncooperative despite your repeated requests), and the same must be documented adequately. This does not apply to emergency medical care. (For details, see Chapter 18, ‘Violence against the Doctor’.)

6. Recovering fees is a bona fide right of a doctor. What if no family members are available with the patient to fulfil the admission formalities by completing the payment of fees?

Answer: The bona fide right for a doctor’s consultation fees is not applicable in emergency medical care and medicolegal services. Recovery of treatment expenses can be made at the time of discharge. Nevertheless, a doctor can receive consultation fees for his services, even emergency medical care. Point is, a patient must not be deprived of emergency medical service due to his inability to pay the fees upon hospital admission.

7. Can I ask for fees for issuing medical fitness certificates, signing insurance claim reports, etc.?

Answer: Medical (treatment, fitness) is the bona fide right of the patient one can’t deny for want of fees from the patient. However, nominal clerkage charges may be asked for. Issuing death certificates and insurance claim reports is your medicolegal obligation, and you should not ask for fees to issue them. However, in all such cases, one can ask for a nominal clerkage charge for issuing duplicates.

8. I am working as gynaecology specialist at a government hospital cum medical college. In our unit, one baby was delivered with major congenital anomalies. She was not advised anomaly scan as level 2 ultrasound is not available in our hospital and we can’t advise for it to be done from a private centre. What are the legal implications in the present scenario? Who is responsible for negligence? Treating doctors or authorities?

Patient, Physician and the Law Answer: The primary responsibility of the doctor is to do no harm to the patient (beneficence and non-maleficence), and it can’t be compromised for an administrative/infrastructure deficiency. If it is for the benefit of the patient’s health and life, one can refer him to an outside or private diagnostic centre, even to a better private hospital, provided that: • The doctor must not refer in the names of specific private diagnostic centres or hospitals. • The doctor must not collude with or receive any commission or part of such agencies/centres. • The doctor can tell some names if the patient insists for her guidance but should not write the same on the prescription. Here, the situation is tricky. The patient’s best interest seems to be jeopardised due to the lack of 4D USG, but the consumer court may ask why the patient was not referred to a private or another government hospital where 4D USG was available.

9. I am an orthopaedic surgeon and running a private nursing home. Recently, I have been sued by a patient in district consumer forum for some issue. I  have taken an indemnity insurance policy from a company for the last two years. I  have completed all my premium payments in time. But now the indemnity insurance company is unwilling to pay or fight for my negligence case on the ground that I did not inform them about this case at the time of hospitalisation/ discharge and the medical mistake was preventable. What should I do now?

Answer: Note that a medical indemnity insurance company (MIIC) must pay and/or undertake arrangements for a legal battle (based on the premium conditions). Rest assured if you have done the following:

1) Informed your insurer immediately about this case with all the available details. Immediately can be after the

I-63 unfortunate incident with the patient or after receiving a legal notice from the patient. It depends on the doctor’s situation, not on the insurer. Better to go through the policy terms and conditions in your policy certificate again. 2) Submitted all relevant documents related to the case with copies of court notices/summons, if any, to your insurer. 3) It is the responsibility of your MIIC to thoroughly look into the matter and arrange for the defence of the particular case whenever required. Often, the local insurance officials create such a nuisance. In that case, you should escalate a customer care complaint to its central authority through your registered email or phone. But first, finish the previous three points through the proper channel and keep evidence for the same. Better hire an insurance lawyer if required. Note: An MIIC can’t hold the service whether a doctor did a wrong or right, unless the doctor has been convicted for a criminal offence. Its job is to pay for all civil expenses, i.e., third-party loss, legal battle cost, etc.

References

1. Lyon, I.B.,  LYON’S Medical Jurisprudence  & Toxicology (11th Ed), Edited by T.D. Dogra & A. Rudra, Delhi Law House, 2021. 2. Modi, J.P.,  Modi: A  Textbook of Medical Jurisprudence and Toxicology (27th Ed), Edited by K. Kannan, Lexis Nexis, 2021. 3. Adlakha, P.,  & Nagpal, N., India: Medical Negligence India, April  29, 2021. www. mondaq.com, last visited on 27.06.2021. 4. Code of Medical Ethics Regulations, 2002., Sec. III. (Vol. 4), 2002 https://www.nmc. org.in/rules-regulations/code-of-medical-ethics-regulations-2002/. 5. James, J.P., Byard, R.W.,  & Corey, T.S., “Medical practice—Medicolegal perspectives.” In Encyclopaedia of Forensic and Legal Medicine (Vol. 3), M. Flynn (ed.), Elsevier, 2005, pp. 319–326. 6. Tukur, B., & Nkanta, C., Medico-legal issues in clinical practice: An overview. Dala Journal of Orthopedics, 2017, 1(1): 89–98. 7. Tiwari, S., Baldwa, M., Tiwari, M., & Kuthe, A., Textbook on Medicolegal Issues: Related to Various Medical Specialties, Jaypee Brothers Medical Publishers (P) Ltd, 2012. 8. Modi, J.P., “Medical negligence and consumer protection act.” In A Textbook of Medical Jurisprudence and Toxicology (26th Ed), Lexis Nexis, 2019, pp. 107–144. 9. Goel, N., “Medical indemnity insurance coverage and importance.” PolicyX. com, September  24, 2022. www.policyx.com/health-insurance/articles/medicalindemnity-insurance/.

CHAPTER 6 DOCUMENTATION, CERTIFICATION AND RECORD-KEEPING Ambika Prasad Patra, A. Arthy and D. R. Rajesh

Chapter Highlights • Basic rules for medical documentation and medical record-keeping • Various types of medical records • Rules for medical certificates • Rules for medicolegal certification • Medical records department (MRD) • Medical coding system • Medical record management • Legal aspects of medical records • Retention and destruction of medical records • Clinician’s Corner

General Considerations Historically, medical records have been kept in a variety of ways. Medical records carved on wood, stone, and hieroglyphics have been discovered. The earliest documentation of medical records in India is found in Atharvaveda. In the 1880s, physicians at Mayo Clinic Minnesota kept the patients’ records in a personal leather-bound ledger. This was replaced in 1907 with patientbased records, a method still used. In the UK, the first major attempt to standardise medical records came in 1965 with the publication of the Tunbridge Report. In this report, Tunbridge proposed that medical records should be standardised so that information stored could be used to the fullest advantage. In 1968, Weed described the problemoriented medical record (POMR), where the medical record is structured around the patient’s problem rather than medical problems and is updated in detail daily.1

Principles of Documentation Medical documents are notes entered by health providers recording the examination finding, advice for investigation, treatment advice, orders for the administration of drugs, surgical intervention, etc. These records should ideally be made at the time of consultation and not later. Maintaining medical records is beneficial for the patients and the doctor. A complete, updated, accurate medical record acts as a shield against false allegations and as a defensive sword for fighting cases of medical malpractice litigation.1 For the patient, a well-documented medical malady improves the quality of healthcare service received. Apart from the benefit for doctors and patients, a good, standard medical record can benefit the society by providing data for research, death audits, etc.1–3 Documents Covered under the Array of Medical Records • The treating physician took notes or notes provided by a previous attending physician, including discharge summary. • Referral letters. • Laboratory reports, including slides, printouts given by automated analyser, radiological films, ECG, EEG, etc. I-64

• Clinical research data. • Certificates issued by health professionals, including death certificates, disability assessment certificates, medicolegal legal certificates, such as injury documentation, autopsy report, etc. • Health insurance–related forms. • Notes recorded by paramedical staff regarding the management of the patient. Objectives of Maintaining Medical Records • Record of clinical assessment, management plan, and progress of patients • Routes for communication between medical staff • Legal documents • Tools for the training of medical staff • Retrieval of information in clinical research and audit • Anticipate future health problems • Serve as a basis for standard preventive measures • Clinical research • Epidemiology, statistics Basic Rules for Medical Documentation • Records should be made at the time of consultation and not later. • Patient identification details should be present on all pages. • Attending doctors and paramedical staff names with signatures should be present whenever warranted. • Abbreviation, ambiguous terms, and offensive comments should not be used. • Abbreviation can harm patients. The term ‘TBI’ to a neurologist means traumatic brain injury, and to a physician means tuberculosis infection. • Ambiguous terms should be avoided in describing patient symptoms or in mentioning the treatment plan. Terms such as ‘moderate’ or ‘occasional’ are of no use unless they have a standard reference value.2 If such terms are used, it is advised to state the defined term is in concordance with which standards. For example, instead of ‘heavy smoker’, it can be documented as ‘heavy smoker as per WHO’, or ‘smokes more than 20 cigarettes daily’. • Comments such as ‘an alcoholic’ or ‘drug abuser’ should be avoided in the absence of objective proof. Instead, terms such as ‘drug-seeking behaviour’ can be used.2 • Manipulations should not be done. • It is quite common for doctors to manipulate prior records once the patient becomes difficult or a suit is filed. Such practices are identified and condemned by the court repeatedly. • If there is a genuine typographic error or misspelling correction to be made in the document, a single line across the entry should be made, and the correct information is to be recorded along with the signature, date, and time.1, 2 DOI: 10.1201/9781003139126-7

Documentation, Certification and Record-Keeping • If an omission has been made in the record, the same can be later recorded by mentioning the right date and time. This helps in achieving transparency and shows that the doctor values the records.1 It is advised that the doctor recording the information should sign each page to avoid tampering. • The burden of proof regarding the accuracy and authenticity of the record depends on the circumstances for which the document is being scrutinised. Types of Medical Records Based on the physical nature of records, medical records are of two types: 1. Paper records (hard copies) 2. Computerised records Based on their purposes, medical records can be: 1. Personal medical records 2. Impersonal medical records a. Paper-based patient records (PPR). This conventional method of recording medical data is most prevalent across India due to its ease of use and customisation. However, this method is slowly being replaced by electronic data, and India is catching up too. PPR is criticised because of the following reasons: i. Illegible penmanship of doctors. The handwriting of doctors has drawn condemnation from the court and society. The National Accreditation Board for Hospitals (NABH), in its Guidebook to Accreditation Standard for Hospital 2015, has warranted handwritten prescriptions to be written in capital letters. Nongovernment organisations, such as the Forum for Enhancement of Quality in Healthcare, also appeal to doctors to write prescriptions in separate capital letters. ii. Storage space. Many medical colleges and hospitals have a block allotted for medical record storage. iii. Loss of data. Appointment schedules and finances are not integrated well into PPR. Also, the data needs to be duplicated or triplicated, and consequently, the doctors don’t maintain an accurate medical record. 3 Failure to tag or improper tagging of continuation sheets leads to loss of data. Laboratory and radiological reports are also missed in similar ways. iv. Duplicates. Duplicate medical records occur when one patient has multiple medical records for his/her illness. When such multiple records are existing for a single patient, the doctor can miss critical information as it is present in the duplicate, stored in a hospital medical record department, or lost by the patient.4 v. Difficulty in retrieving data. It is observed that with PPR, productivity in healthcare is often affected as they are often unavailable or missing. The process of retrieving the data is also time-consuming and uses valuable humans. 3

I-65 vi. Time taken to fill in. If an inpatient hospital record is observed, it is noticed that 60–70% of the data entered are repetitive, such as the basic identity detail of the patient on every page, medication advice, examination findings, etc. This takes the doctor’s time in doing a monotonous job and subsequently does not value the importance of documentation. vii. Ability to manipulate. Paper records always have a scope of being manipulated and not traced back. viii. Expensive. The cost of paper, ink, human hour, infrastructure for storage, and other stationaries makes maintenance of physical records expensive. The cost incurred in repeating investigations due to missing records adds a cherry to the cake. The Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations released in the year 2002 have appealed for computerising medical records for quick retrieval. Here, computerisation includes both scanning and storing PPR in computers and electronic patient records. b. Computer-based records. Computer records are very convenient and do away with the inadequacies of paper records. The main problem presently is that doctors are not trained to use computers. Most medical universities are thinking of including computers at the undergraduate level to make future doctors adapt to computer-based records. Currently, unsubstantiated data shows that in most places, laboratory, pharmacy, and billing sections are fully computerised. Computerisation of visits to OPDs, discharges, summaries of inpatients, and vaccination records are on the way. Electronic patient records are generated by physicians during live interaction or at the time of telemedicine consultation. Though the upfront cost of establishing records by this means might be high, physicians who use EPR respond by saying that patient care becomes better with the implementation of EPR. The top few benefits identified by them were remote access to the patient records, synchronised laboratory reports, alert on medication errors, and reminder for preventive care or follow-up.5, 6 To have a uniform standard system for the maintenance of EPR across the country, the Ministry of Health and Family Welfare notified the Electronic Health Record (EHR) Standards for India. The salient features of this document are as follows: • Standard patient identifier. • Standard minimal set of architectural requirements and functional specifications that supports good medical practice. • Standard reference model, to avoid miscommunication and misunderstanding. • Standard medical terminology. • Data standards for images (such as scanned documents, pictures, etc.), waveform (such as ECG, EEG, etc.), audio (such as digital stethoscope), and video (such as ultrasound, endoscope, etc.). • Discharge or treatment summary format should be on par with the recommendation given by the NMC.

I-66 • E-prescription should satisfy the requirement of medical prescription given by the Pharmacy Council of India. • Standards have been laid down for the exchange of data in the form of messages, summaries, images or waveforms, and health records. The hospital should work on the basis of PPR or EPR. Studies have shown that the combined use of these (where the doctor writes down notes at the time of seeing the patient and then later gets it converted into EPR) results in inconsistency in the documentation.7 1. Impersonal Medical Records These are the anonymised documents or records used for research and statistics purposes. Health-related data is gathered from the offices’ many hospitals or healthcare providers through proper channels. Essentially, the identification details of a patient, for example, name, phone number, address, photograph, etc., are not warranted in such documents.

2. Personal Medical Records

a.   Inpatient Records These records for inpatients are also synonymously known as bed-head tickets (BHT). Although the BHT usually carries the daily notes on the patient on a bed, a complete inpatient record bears the following features: • Personal data of a patient, with a detailed postal address. • Department of admission, along with bed and ward number. • Complaints (patient’s language). • Detailed history of present illness. • Patient’s medical history (family history). • Socio-economic history. • Developmental history and immunisation (paediatrics). • Dietetic socio-economic. • Detailed physical examination. • Referral details (including a request for referrals). • Diagnosis. • Differential diagnosis. • Plan of investigations > report of investigations. • Final diagnosis. • Empirical treatment. • Change in treatment after final diagnosis is reached. • Medication record should show all prescribed medications, including dietary supplements, and dressings, including self-medication, if any. • Risks and warnings. This is vital information that the physician needs to be made aware of quickly. Risks and warnings need to be highlighted before seeing or treating the patient—for example, allergies, drug sensitivities, or high-risk medical conditions. This should also include the legal status of the patient. An important risk would also be a history of violent tendencies, HIV status, or known abuse of healthcare services. • Entries in the BHT. The BHT should ensure admission entry, follow-up entries, and discharge entries. Follow-up entries are those made between admission and discharge. There may be special entries, for example, consent, unusual events, patient information, etc. Every entry should be legible, with the date, time, and notes of the examination. The treating doctor should sign at the end of the notes. This should be followed

Medical Jurisprudence & Clinical Forensic Medicine by the name of the doctor. Every new page of the BHT should have the page number, date, and name of the patient. b.   Outpatient Records The outpatient ticket should contain patient details, clinical details (complaints), relevant findings, provisional diagnosis, and investigations ordered. Details of OPD procedures, investigations, current medications, prescribed dietary supplements, dressings, future management plans, and referrals to other doctors should also be mentioned. Allergies and sensitivities should also be noted on the OPD card. c.  Surgical Operation Notes The plan for the surgery, consultations received, pre-anaesthetic check-ups, and informed consent (in vernacular) must be promptly documented. Requisition for blood where required must be kept in records. Operation notes must be maintained and signed by the senior surgeon. A list of equipment used and a count of all equipment must be noted. Postoperative notes should be entered regularly. d.  Anaesthesia Records It usually shows the anaesthetic check-up, anaesthesia given for the procedure and any event during the operative procedure, and the management of the event. The postoperative progress must be documented in detail. The surgery record should also show the actual items consumed during the operation. e.   Discharge and Transfer Notes • A patient would need to leave the hospital under the following circumstances: – After curing the ailment that the patient was admitted for. – Referral to another hospital/ward for further management. • The information provided in the discharge card serves as a record of the present episode of illness and also as a clinical communication for the other doctors involved in patient care. The patient must be informed as to what information will be communicated in the discharge card/summary. The information should be concise and compact, containing all the relevant information. It should contain complaints for which the patient was admitted, care of the patient, progress, events in the ward, confirmed diagnosis of current illness, significant past illness, risks and allergies, procedures and treatments offered, care plan, projected and actual outcomes, and provision of information to patient and caregivers. If professionals from other disciplines are involved, it should be mentioned. The entire discharge summary information must be validated by a responsible clinician. When the discharge card is handed over to the patient, it should be recorded in the bed-head ticket.

Medical Certification The three elements present in medical records are patient identification, medical details, and treatment orientation evidence. Basic identity details of the patient should be on all the pages in case of PPR. This will prevent:8–10

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1. Patient Identification a. Basic identity details of the patient: i. Name ii. Age iii. Sex iv. OP/IP number (local identifier) b. Additional information that needs to be on the preliminary page of the IP/OP sheet: i. Demographic data ii. Contact information iii. Occupation iv. Marital status v. Religion vi. Mark of identification vii. Government-issued patient identifier (UIDAI preferably) 2. Medical Information a. History i. Past medical ii. Present complaints b. Examination findings i. General (importantly vitals) ii. Systemic iii. Local c. Investigation i. Past reports with date ii. Advised investigation iii. Laboratory or radiological reports received with date d. Diagnosis i. Provisional diagnosis before the investigation ii. Diagnosis after an investigation in standard terminology iii. Terminology-generated classification (especially in electronic medical records) e. Treatment i. Medication ii. Surgery iii. Follow-up, if required iv. Referral, if required v. Consultation advice vi. Non-compliance of the patient f. Miscellaneous i. Consent form ii. Insurance record 3. Treatment Orientation Evidence a. Date and time b. Signature in full, name, and designation of the doctor who is recording c. Information regarding doctor who was consulted directly or telephonically d. Progression of the patient in simple terms e. Information given to the patient/relatives f. Discussions among doctors regarding management

Medical Certificates List of Certificates Issued by a Doctor

By the national commission, the list of certificates or reports issued by doctors for various acts/administrative requirements includes:

• Under the acts relating to birth, death, or disposal of the dead • Under the acts relating to lunacy and mental deficiency and under the Mental Illness Act and the rules made thereunder • Under the Vaccination Acts and the regulations made thereunder • Under the Factory Acts and the regulations made thereunder • Under the Education Acts • Under the Public Health Acts and the orders made thereunder • Under the Workmen’s Compensation Act and Persons with Disability Act • Under the acts and orders relating to the notification of infectious diseases • Under the Employee’s State Insurance Act • In connection with sick benefit insurance and friendly societies • Under the Merchant Shipping Act • For procuring/issuing passports • For excusing attendance in courts of justice, in public services, in public offices, or in ordinary employment • In connection with civil and military matters • In connection with matters under the control of the Department of Pensions • In connection with quarantine rules • For procuring a driving license

Contents of Medical Certificates

The Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations 2002 articulate that the certificate issued by a doctor should contain: • • • • • • •

Signature and/or thumb mark of patient Address of patient Identification mark (at least one) Full signature of the doctor Registration number of the doctor Date of examination Place of examination

Medicolegal Certification and Report-Writing The medical record is compiled and stored by a hospital, but the information it contains is the property of the patient. If a patient desires it, it should be given to the patient at a reasonable charge. The information in the medical records cannot be disclosed to anyone except with the patient’s consent.9, 10 The information can be shared under the following circumstances:

1. Referring to another doctor. 2. If asked by the court of law, you may have to submit the original, in which case you must photostat the original document for your record. 3. Consumer protection cases. 4. Only upon a written request should it be given to police or insurance companies.

Principles of Medical Certification • While documenting, it is important to remember that the patient has the right to access his/her medical record

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I-68 and that medical records act as the lens through which the court sees the case. • Illegible, incomplete, or manipulated records stand against the doctor as it questions the credibility of patient care. • Electronic patient records which are contemporaneous and complete have been shown to reduce medical errors by improving communication and preventing medication errors. • A good medical record is available, is clinically relevant, and contains in longitudinal time series various health episodes faced by the patient in his/her life.

Standard Statement • For sickness certification: I, Dr _____________________________________, after careful examination of the case, certify hereby that _______________, whose signature is given above, is suffering from __________________, and I consider that a period of absence from duty of ____________________, with effect from __________________, is absolutely necessary for the restoration of his health. • For fitness certification: I, Dr  ________________________, after careful examination of the case, certify hereby that ______________________, upon restoration of health, is now fit to join service.

Medical Reporting • Signature to be placed on each page to avoid tampering. • In case of sexual assault, a copy is to be provided to the survivor as it is his/her right. • In case the report has to be handed over to the police, care is to be taken to receive an acknowledgement.

Medical Record-Keeping Medical Record9

A medical record is a complete compilation of all or any information that might be useful to the concerned medical staff. These records help compile all vital information in one place for easy and quick reference and also bring standardisation to medical procedures. Medical records provide complete and accurate information on the following aspects: • Identity of the patient (name, address, age, gender, etc.). • Medical conditions experienced in the past, along with specific symptoms, age at which they happened, duration of illness, etc. • Treatments received in the past, including any surgical or non-surgical procedures, duration of those treatments, specific points captured through those treatments, etc. Parts of the body that received treatments/services in the past, along with specific details of the materials (if anything specific) used. • Any current condition, such as allergies, pains, medications, ailments, etc. Medical records provide a complete remedial history of a patient to allow the hospital staff to plan and provide treatment in the most effective manner.

Retention of Medical Records • As mentioned earlier, medical records contain detailed and specific information about a person’s medical history and treatments. • This information is often critical and confidential. However, it is impossible to retain all the medical records of all the patients visiting a hospital. Hence, as per hospital policy, these records are retained for a standard amount of time, after which they shall be destroyed pertaining to their confidential nature. • Storing hard copies of medical records poses a challenge. Apart from the warranted storage space, the need for protection from animal and insect activities is also necessary. • Using medical record management technology is essential for quick, hassle-free retrieval at the time of need (Figure 6.1). • Electronic medical records do not occupy physical space, and retrieval can be ensured at the right time. However, emphasis should be placed on the protection of data from corruption and breach. It is suggested to have a backup copy at a central database with a different server. • Access to medical records, whether electronic or paper, should be restricted to protect from manipulation and theft. • Medicolegal records must be stored for a minimum of up to 20 years or until the case is closed. • Depending on the type of cases handled and with the emergence of public awareness, every hospital should frame their policy that will protect them from unnecessary harassment. • The following factors guide this retention of medical records by a hospital: • Chances or duration after which a patient might be readmitted. • The type of medical condition of patients, i.e., hospitals are likely to retain records with rare diseases for a longer time. • The hospital staff devotes the time and cost to medical research works. Generally, in the case of scenarios where extensive research was done for a patient, the records shall be retained for a longer time. The cost of research undertaken for the patient’s conditions.

Filing, maintenance, storage, and protection of records

FIGURE 6.1  Medical record management.

Documentation, Certification and Record-Keeping

• •

•

•

Often, for reasons not entirely medical, records of procedures involving very high costs are required to be retained for a longer duration. Legal bindings can also regulate the period of retention of records. Feasibility of the storage of records in alternate forms. Besides paperwork stored as files, medical records can also be retained in CDs, disks, films, etc. The cost of these alternate retention methods can also affect the duration of the retention of records. The Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations 2002 mandate every physician shall maintain medical records pertaining to indoor patients for a period of three years from the date of commencement of the treatment. If any request is made for medical records either by the patients or an authorised person (like his lawyer) or legal authorities, the documents must be issued within the period of 72 hours, and refusal to do so would amount to misconduct. The professional codes and conduct rules (2002) of the Medical Council of India, which is adopted by the National Medical Commission (NMC), too, have laid down some specific recommendations for preserving medical records. See Table 6.1 (Figure 6.1).

TABLE 6.1  Retention Period of Medical Records as Per Various Acts/Provisions8–11 Type of Record Outpatient records Inpatient records Medicolegal/legal case records Casualty register Surgical records Medical records of paediatric patients Medical records of dead patients Obstetric medical records ANC-USG scan repots Maternity records ART-related records Hospital income tax– related records Hospital biomedical medical waste–related medical records Birth register Death register

Retention Period 3 years 10 years; can be preserved in digitalised format after 3 years, if disposal of paper copies is inevitable 20 years, or until final verdict by the Supreme Court; must not be disposed of if the chances of appeal to higher courts exist 30 years 10 years 21 years (when the patient becomes major) 10 years (7 year for legal presumption of death) 5 years (to be calculated from the end of the calendar year of the case/duration of a term pregnancy) 2 years (Sec. 29/9.6, PC-PNDT Act) 25 years 10 years (National Clinical Registry, ICMR Guidelines) 8 years (especially for private clinical establishments and diagnostic centres) 5 years (disposal of prosthetics, radioactive waste, dead foetuses, human body parts, etc.) Lifetime Lifetime

Note: Irrespective of the recommended retention period, any medical records related to any sub-judice matter must be preserved until delivery of the court verdict.

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Medical Records Department (MRD) The medical records department is one of the essential departments in a hospital that maintains and documents all records related to patient care. The primary function of this department is to file, index, and retrieve medical records. The medical records department renders services to patients, medical staff, and hospital administration. As discussed earlier, the quality of care primarily depends on the accuracy of information written in the medical records. Therefore, the primary responsibility of the medical records department is to ensure that medical records are accurately written, properly filed, and easily accessible to all concerned departments of the hospital.11–13 Functions of the Medical Records Department The medical records department is responsible for performing the following functions: • Collect all relevant medical information and fill it in a medical record form/sheet. • Organise all gathered information in the standardised format. • Maintain records for a specific period as mentioned in the hospital policy. • Retrieve and provide relevant medical records of any current or past patient (within the stipulated time as mentioned earlier) as and when needed for the treatment. • Forward important documents, such as birth and death certificates, to concerned or other people in relation with the patients. • Handle and provide registration and discharge documentation. • Handle any medicolegal issues regarding a patient’s admission or release, and communicate with institutions, such as insurance companies, legal departments, etc. • Perform, maintain, and assess statistical calculations for updating records. This allows the medical staff easy access to a patient’s vital information for present or future use. Medical Coding System • Medical records contain huge comprehensive information. Going through all the information written in the document is often time-consuming. In addition, it is not always easy to go through the amount of information available in medical records. Besides, some information may often be interpreted differently by different diagnosticians. Therefore, to save time and increase the efficiency of medical services, the medical records department now relies on the medical coding system. • Medical coding or medical coding system refers to an arrangement of specific alphanumeric codes that are given to a particular medical condition with a given set of symptoms. • The alphanumeric codes are specific for each condition and make it easier for the attending staff to interpret the conditions precisely.

Medical Jurisprudence & Clinical Forensic Medicine

I-70 • Medical coding is based on the International Statistical Classification of Diseases (ICD-10). This code is generally used for injuries and physical illness. Surgeons and internal conditions are coded by using the International Classification of Procedures in Medicine (ICPM). While the system followed for medical coding is reasonably complicated, its importance cannot be undermined, considering its several vital functions. • The significant aspects of the medical coding system are as follows: – Medical coding system helps in consolidating and collecting information about a person’s condition, symptoms, and treatments using a single alphanumeric code. – These codes use standard language to depict medical conditions. This helps understand the patient’s needs and treatments to be given much easier for both hospitals and patients travelling to different parts of the world for treatment. – The unique coding system makes it very easy to interpret the data. The interpretation of the same information can vary from person to person in medical science. Hence, the coding system provides uniformity in performance. – These codes are also used by government medical authorities to analyse the general health condition of the public at any given time. – These codes can be assessed much more quickly, instead of the complete medical record, to get a clearer idea about the status of health in any given part of society at any given time.

• Doctors and hospitals (Bombay High Court) must make medical records available to all patients or their relatives after levying appropriate fees. • Doctors and hospitals could not claim any secrecy or confidentiality in the matter of copies of the case papers relating to the patient (Maharashtra Medical Council). • Well-maintained medical records help the doctors and the hospitals in their defence in medical negligence cases. • The Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations 2002 state that every physician shall maintain the medical records pertaining to his/her indoor patients for a period of three years from the date of commencement of the treatment. In case of requests made for any medical records by the patients, authorised attendant, or legal authorities involved, the documents shall be issued within 72  hours, and refusal to do so would amount to misconduct.

Clinician’s Corner

Disposing Medical Records There is no specific or defined set of rules for destroying medical records available in India. It is recommended that hospitals establish policies on the destruction of medical records in a justifiable manner. The following suggestions can be followed whenever feasible:11–13 • Scanning and computerising medical records prior to destruction • Recording the date and method of medical record destruction • Recording the data i.e. being destroyed • If outsourcing record disposal to an external agency, ensuring that the agency is certified and has liability insurance

Answer: As per the Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations 2002, you must maintain the medical records of indoor patients for a period of three years. • You have to issue copies of medical records to the patients or authorised person (lawyer, family member) or legal authorities (police, insurance company, or court) within three days’ period. • Refusal to do so would lead to punishment under professional misconduct. • If you have no space, use computerised medical reports or keep scanned copies. • If you issue scanned copies, attest them, or you may use digital signature in digital medical records. • All medical record copies to be issued to the patient are to be attested by the treating doctor.

Few Methods of Destruction of Data12, 13 • Shredding, burning, pulping, or pulverising for paper records • Recycling or pulverising for microfilm or microfiche records • Cutting or shredding for medical records on DVDs • Demagnetising for magnetic tapes Legal Aspects of Medical Records

8–11

• The patient, his family members, or an authorised person by the patient (his lawyer or insurer) has the primary right to his medical records and access to the information therein.

1. I have been running a small orthopaedic nursing home for the last six years, where my son along with me are practising as consultants. We are treating many traffic accident cases due to the closeness of our nursing home to a highway. Recently, a patient who was treated for an accident three years back is now asking for his hospital documents (case sheet copies and radiographs) for some legal purposes. But it is unlikely for me to store such a huge pile of year-old hospital records due to space constraints. Hence, the same thing was explained to the patient. However, now his lawyer is asking for the same documents and is threatening me with consequences if I’ll fail to issue the same. Please guide me on what I should do.



2. I am a general surgeon and own my private clinic. Often, patients ask for year-old treatment documents, which is time-consuming and difficult for me or my staff to retrieve. • Can I ask for fees from the patients asking for their past treatment documents? Will there be any legal problem?

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Answer: Yes, you have the right to ask for a nominal fee. But remain mindful that it should not be an exorbitant amount. Levy only a nominal fee for clerkage charges. Mention about the same in your display board and back of prescriptions. You cannot charge it at the time of discharge or first instance. It should be applied for subsequent requests.

3. I am a medical student. My father was treated in a branded corporate nursing home for femur fracture surgery. However, at the time of his discharge, they had not given the digital X-rays or other laboratory reports with the discharge summary. Now, when I ask for it to be handed over to us, the hospital authority refuses to give it, citing as reason that all findings of those reports are mentioned in the discharge summary and hence the reports, per se, are not necessary to be handed over to patients. May I  know my legal right to get my father’s X-ray reports?

Answer: You can get your answer from the following rulings by the Honourable Bombay High Court and SMC-Maharastra: • Doctors and hospitals should make medical records available to all patients or their near relatives on demand, after levying appropriate fees (Bombay High Court). • Doctors and hospitals cannot claim any secrecy or confidentiality in the matter of copies of the case sheet or medical reports relating to the patient (Maharashtra Medical Council). • You should request that the said hospital, citing the previous rulings, issue the original X-ray and other reports of your father. However, the hospital can levy some charge for issuing you duplicate copies of your medical

reports, but certainly not for providing the original case sheets, radiographs/reports, etc., which are supposed to have been given at the time of discharge. • In case the hospital is resistant to comply, you may submit a written request through your father to the competent authority of that hospital with copies to the registrars of your state medical council and district registering authority of clinical establishments (DRA).

References







1. Gutheil, T.G., Fundamentals of medical record documentation. Psychiatry (Edgmont), 2004, 1: 26. 2. Mathioudakis, A., Rousalova, I., Gagnat, A.A., Saad, N., & Hardavella, G., How to keep good clinical records. Breathe, 2016, 12: 369. 3. Ornstein, S.M., Electronic medical records in family practice: The time is now. The Journal of Family Practice, 1997, 44(1): 45–48. 4. McClellan, M.A., Duplicate medical records: A  survey of twin cities healthcare organizations. AMIA Annual Symposium Proceedings, 2009, 2009: 421. 5. Manca DPD electronic medical records improve quality of care?: Y., Do electronic medical records improve quality of care?: Yes. Can Fam Physician, 2015, 61: 846. 6. Collier, R., National physician survey: EMR use at 75%. Canadian Medical Association Journal, 2015, 187: E17. 7. Stausberg, J., Koch, D., Ingenerf, J., & Betzler, M., Comparing Paper-based with electronic patient records: Lessons learned during a study on diagnosis and procedure codes. Journal of the American Medical Informatics Association, 2003, 10: 470. 8. National Medical Commission of India, “Code of medical ethics regulations, 2002, maintenance of medical records, clause 1.3.” 2021. https://www.nmc.org.in/ rules-regulations/code-of-medical-ethics-regulations-2002/. 9. Lyon, I.B.,  LYON’S Medical Jurisprudence  & Toxicology (11th Ed), Edited by T.D. Dogra & A. Rudra, Delhi Law House, 2021. 10. Modi, J.P.,  Modi: A  Textbook of Medical Jurisprudence and Toxicology (27th Ed), Edited by K. Kannan, Lexis Nexis, 2021. 11. Thomas, J., Medical records and issues in negligence. Indian Journal of Urology: IJU: Journal of the Urological Society of India, 2009, 25(3): 384–388. https://doi. org/10.4103/0970-1591.56208. 12. Strong, K., Enterprise content and records management.  Journal of AHIMA, 2008, 80(2): 38–42. 13. Tomes, J.P., Healthcare Records Manual, Warren Gorham Lamont, 1993.

CHAPTER 7 GIFTS TO THE PHYSICIAN Ambika Prasad Patra, Bibhuti Bhusana Panda and Sudhansu Sekhar Sethi

Chapter Highlights • Principles of gifts and the act of gifting • Legal and ethical aspects of receiving gifts from patients and pharmaceutical companies • NMC/medical council’s ethical guidelines on ‘gifts to doctors’

Principles of Gifts and the Act of Gifting Gifting is an act of giving, i.e., something i.e. given to somebody as a gesture of gratitude or to incentivise a noble act. Doctors belong to the noblest profession. An ordinary Indian perceives a doctor as next to a god. Gifting to doctors has been an age-old practice all over the world. This probably began as a gesture of respect for physicians’ invaluable services to society. However, this act of pleasant gifting has been exploited over the decade by many healthcare product industries for mere business gains, especially after the consumerisation of medical practice in India. Now, gifting to the doctor is no more considered a token of sincere appreciation. There is evidence of the breach of the trust-based doctor–patient relationship due to unfair gifting practices. Unfair gifting practices may likely influence the physician’s decision and his prescription. This is a conspicuous breach of beneficence and justice to the patient. Furthermore, such practice is associated with many ethical and legal implications.1–3 The recent steps taken by the National Medical Commission (NMC) to amend the code of ethics for doctors to incorporate specific sections against unfair gifting practices is a significant step in this direction. The aim of such action by the NMC is primarily to prevent some pharmaceutical and other medical products industries from influencing doctors’ use of unwarranted, expensive drugs or devices for personal gain.4–6

Types of Gifts Usually, the gifts may be categorised into two broad types: 1. Testamentary gifts. The gifts made by a patient in his will are known as testamentary gifts or legacy to the doctor. 2. Non-testamentary gift. A patient’s gifts to his physician during his lifetime are known as non-testamentary gifts.

Legal and Ethical Aspects of Gifts Ethical Challenges of Receiving Gifts from Patients6–10

The Charaka Samhita (Vimana Sthana, Chapters 8 and 9) mandates that ‘a physician must never involve himself in any profitable activities with the patient or patient’s family such as asking for cows, lands, negotiating loans, arranging marriage, buying or selling property’. These spoil the purity of the doctor–patient relationship. Such high moral codes of conduct have been the I-72

core principles of Indian philosophy and have been prevailing in India since the era of the classical Indian medicine (200 BC—400 CE).1–3 Usually, receiving low-cost gifts for office use like pens and calendars, gifts of patient care, and educational gifts like books or, at best, modest refreshments may be acceptable in routine practice by doctors. However, there should be a fundamental absence of the conflict of interest between the gift and the patient benefit in any case. The gifts to doctors from pharmacy industries may create conditions that risk biased professional judgement, leading to biased treatments. This is a breach of both the fundamental patient–physician relationship and patient autonomy and compromises his benefits. Therefore, to preserve the trust i.e. fundamental to the patient–physician relationship and public confidence in the profession, doctors should:

1. Decline cash gifts in any amount from anyone directly interested in doctors’ treatment recommendations. 2. Decline any gifts for which reciprocity is implied. Accept an in-kind gift for the physician’s practice only when the gift directly benefits patients, including patient education, and it is of minimal value.

The Indian Medical Council Regulations 2002 (Chapter 6, ‘Professional Conduct, Etiquette, and Ethics’) say that ‘[a] medical practitioner shall not publicly endorse any drug or product of the industry’. The Union Health Ministry has reiterated the same in the Question Hours of Parliament Sessions 2019. Doctors are prohibited from taking gifts, travel facilities, hospitality, cash, monetary grants, etc. from pharmaceutical and allied health sector industries that may attract disciplinary measures under the respective codes of conduct in MCI Regulation 2002 and as per provisions of the Uniform Code for Pharmaceutical Marketing Practices (UCPMP) prepared by the Department of Pharmaceuticals. The National Medical Commission (NMC) India is serious about setting right the numerous infractions of its ethical code violations regarding gifts received by doctors.

Legality of Receiving Gifts6, 7 • Legal definition of ‘gift’. Section  122 of the Transfer of Property Act defines a gift as a transfer of property made voluntarily and without consideration by one person, called the ‘donor’, to another, called the ‘donee’, and accepted by or on behalf of the donee. – There is no legal bar to a physician in receiving a gift from his patient. In testamentary gifts, there should be no reasonable doubt about the patient’s legacy by exercising his own free will. However, doubts arise when a physician attests to a will that directly or indirectly benefits the doctor. In cases where a physician is aware of the intentions of his patient, in order that no doubt may be cast on his benefit in accepting the gift, he should see that the patient has had the advice of an independent, responsible third party, like his counsel or legal advisor, etc. DOI: 10.1201/9781003139126-8

Gifts to the Physician • Legal validity of gifts. To avoid a legal and ethical violation, a physician should consider the following points while receiving the gifts: 1. The patient must gift voluntarily and without any fraud, coercion, or undue influence on the part of the beneficiary, either directly or indirectly. 2. The patient has obtained independent advice from a third party in making a gift to his doctor. 3. The physician must not have used any means to induce a delusion or impression in his patient when making the will; this would amount to fraud. 4. The physician must never be the party in dictating or helping to draft the will. This would amount to an undue influence upon the testator. 5. No factually incorrect information, such as the false news of the death of a natural heir, should have reached the testator when the will was being made, as it would amount to fraud. 6. No actual or implied threat may have been made, as it would amount to coercion.

Burden of Proof in Legal Challenges against Receiving Unfair Gifts8–10 • In cases of legal dispute, it becomes essential to prove the validity of a gift or legacy made by a patient. It is the onus of the doctor to prove that the patient was of sound mind when making the will of the gift or legacy. • Receiving any gift by a public servant that raises conflicts of interest is illegal in India. Moreover, this applies to doctors working in public sector institutions. However, any registered medical practitioner, including those working in private sectors, receiving gifts of cost above 5,000 INR may attract penal provisions as per the MCI Regulations 2002 if it is deemed fit for breach of code of conduct. Furthermore, the punishment may be permanent or temporary suspension from the medical register.

Legality of Visits by Medical Representatives6–10 The primary role of a medical representative (MR) is to appraise the doctor about his pharmaceutical product or devices. Moreover, the ultimate beneficiary of this information is the patient through the doctor. Hence, it is neither illegal nor unethical to entertain MR or to attend seminars organised by pharmaceutical companies, except under the following circumstances: • A doctor should not receive gifts or commissions or freeof-cost services in exchange for prescribing or recommending certain brands or products of a pharmaceutical company. • A doctor should refrain from entertaining MR  visits during duty hours at public places, like OPD, IPD, etc. The doctor should encourage MR visits in his free time instead of entertaining them during the patient visit period. • A doctor should not recommend or coerce a patient to visit a specific pharmacy or diagnostic centre. Nor can a doctor write the name of such establishments in his prescription.

I-73 • No doctor should take the name of a brand or specific medical product until the same is requested from the patient side. Can a doctor working in a government hospital recommend his patient do laboratory tests, have diagnostics, or purchase medicines from an outside source? • Even in a government hospital, a doctor can ask patients to arrange tests, diagnostics, or medicines from outside, wherever the patient wishes, if the same medicines, diagnostics, or services are unavailable in the government hospital. However, the doctor must not write or recommend medicine brand names or the names of stores or centres unless the patient insists on the same. The only aim in this context is to help the patient get the said services. Moreover, this applies to private sector doctors as well. • Always write generic names of drugs or the medical equipment in the prescriptions. • Some state governments have prohibited doctors from prescribing medicine brand names in government hospitals in India. Even the pharmacies or outlets allowed within the government hospital campus also sell medicines under generic names instead of company brand names.

Critical Review • A large-scale population-based study by Halperin et al. (2004) on gifts received by doctors demonstrated that (1) receiving gifts by doctors is endemic. (2) A physician considers himself immune from being influenced by gifts and is suspicious that the ‘next doctor’ is influenced. (3) Unfortunately, there is a significant correlation between the willingness of a doctor to accept gifts of high value and their empathy towards this practice. • The existing policies to curb unfair gifting practice are based mainly on limiting the gift cost, educational initiatives, mandatory disclosure, etc., which have proven insufficient in actual practice. This is because these are based on a faulty model of human behaviour, as shown in the previous study. • Compared to the number of occurrences of unfair gifts to doctors, especially by pharmaceutical companies, examples of the legal proceeding against unruly doctors are very sparse. This should be looked into by statutory bodies like the NMC or State Medical Council, and the existing check mechanisms against unfair gifting practice reconsidered. • Profit-making is the primary objective of a business. Profit and ethics, especially in the healthcare sector, are essential for the sustainability of the business. Bringing the medical profession under the ambit of consumer protection law is a welcome step. However, over a decade, that has killed the moral man within a doctor who has encountered countless litigations in consumer courts. Moreover, expecting high morality by sacrificing flamboyant gifts or benefits from him became a challenging task. • The presence of members in medical councils and NMC having political affiliations or connections is often one of

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I-74 the causes for such toothless attitudes toward stopping such unfair gifting practice. • Exemplary punishments to unruly doctors, for example, temporary or permanent penal erasure (removal of name from the medical register), may be detrimental to the unfair gifting practice.

References



1. Curtin, L., Guest editorial. International Nursing Review, 2001, 48(1): 1–2. https:// doi.org/10.1046/j.1466-7657.2001.00067.x. PMID 11316272. 2. Rao, M.S., The history of medicine in India and Burma. Medical History, 2012, 12(1): 52–61. https://doi.org/10.1017/S002572730001276X. PMC 1033772. PMID 4230364 3. Majumdar, M., & Kaunain, S.M., “Explained: Hippocrates, charaka, and the oath of medical ethics.” The Indian Express, February 13, 2022. https://indianexpress.com/ article/explained/explained-hippocrates-charaka-and-the-oath-of-medical-ethics7770353/.











4. Harsh, V., “Code prohibits doctors from taking gifts from pharmaceutical companies” The Economic Times, n.d. https://economictimes.indiatimes.com/industry/ healthcare/biotech/pharmaceuticals/code-prohibits-doctors-from-taking-giftsfrom-pharmaceutical-companies/articleshow/70190086.cms?from=mdr (Accessed 26th April, 2022). 5. Anderson, J., Is it better to give, receive, or decline? The ethics of accepting gifts from patients. JAAPA, 2011, 24(6): 59–60. 6. “Code of medical ethics regulations, 2002.” NMC, 2021. nmc.org.in, www.nmc.org. in/rules-regulations/code-of-medical-ethics-regulations-2002. 7. “Code prohibits doctors from taking gifts from pharmaceutical companies.” The Economic Times, 2021. https://m.economictimes.com/industry/healthcare/biotech/pharmaceuticals/code-prohibits-doctors-from-taking-gifts-from-pharmaceutical-companies/articleshow/70190086.cms. 8. College of Physicians and Surgeons of British Columbia. Boundary Violations in The Patient-Physician Relationship Faqs [Internet], 2017. www.cpsbc.ca (Accessed 20th June 2020). 9. Marco, C.A., Moskop, J.C., Solomon, R.C., Geiderman, J.M., & Larkin, G.L., Gifts to doctors from the pharmaceutical industry: An ethical analysis. Annals of Emergency Medicine, 2006, 48(5): 513–521. https://doi.org/10.1016/j.annemergmed.2005.12.013. Epub 2006 Feb 8. PMID: 17052550. 10. “Medical ethics and professionalism.” ACP, 2021. Acponline.Org, www.acponline. org/clinical-information/ethics-and-professionalism.

CHAPTER 8 PHYSICIAN AND THE WILL Ambika Prasad Patra, Bibhuti Bhusana Panda and Praveen Kumar Pradhan

Chapter Highlights

• A satisfactory note of witnesses and magistrate should be present regarding voluntary execution of documents in case of ‘living will’. One copy of the ‘living will’ is to be sent to the office of the judicial magistrate, one copy to the registry of the district court, one copy to the municipal corporation for the record, and one to the family physician. An executor may be appointed to carry out its term after death or ill health. • A will can be modified or revoked at any time before the death of the testator in the presence of his counsel. • A will comes into effect after the testator’s death or illness. It must satisfy the condition of execution of the will.

• Essential aspects of a Will • Medicolegal aspects of a Will • Role of doctor in making the ‘Will’

General Principles of a Will The will is a document that carries the patient’s wishes that could be followed after his death or when he is unable to communicate.1 The will is usually prepared for property, known as a ‘property will’, but may be executed for other conditions, like an organ transplant, will for passive euthanasia, during a dying declaration, or any other specific wish.2 According to the Indian Succession Act, a ‘will’ must follow certain principles, for which it should be valid in the court of law. ‘Testamentary capacity’ means the ability of a person to make a valid will. The testator is the person who is legally capable of making a valid will.1–3 Criteria for Making a Legally Valid Will1–5 • The testator must be a major (more than 18 years or more than 21 years if under the guardianship of law). • The testator should possess a sound and disposing mind when making the will. The wills made during the transient period of mental soundness, like a lucid interval in schizophrenia or head injury, may be legally valid if he is medically certified as having a sound mind at the time of executing the will. • The capacity to make a valid will is based on medical certification of the testator. • The medical officer should verify whether the testator knows the nature and consequences of the act and whether he knows about the extent of his property. • The testator can communicate his decision clearly, and this is a voluntary process and cannot be obtained under coercion. The physically handicapped, deaf, dumb, or blind can make a valid will. A deaf or dumb or blind person is not incapacitated from making a will if he knows what he is doing. • The will must be written in a clear statement. A will written by the testator himself is called ‘holograph will’. • A declaration stating that he has understood the consequences of executing the will should be present. • Any instruction should be clearly mentioned. • The name of the guardian or relative or decision-maker on behalf of the patient should be mentioned when needed in adverse conditions. • The testator should sign a will in the presence of two witnesses. One of them must be a doctor, and it must be countersigned by a judicial magistrate if it is a living will. A legatee must not be a witness.

DOI: 10.1201/9781003139126-9

Legal Definitions1, 2 1. Will. It is defined as the legal declaration of the wishes of a person (testator) concerning his property that he desires to be effective after his death. 2. Testator. A  person competent for making a valid will and executing it. 3. Testament. It is a legal document made by the testator whereby he disposes of his property, but such disposal comes into effect only after death. 4. Codicil. It is an extra or additional part of a will that either modifies it or revokes part of it, i.e., an appendix of a will, explaining, altering, or adding to its dispositions. 5. Executor. The legal representative of a testator for all purposes to execute his will after his death. All property of the testator vests in him after his death. 6. Legatee. The beneficiary(ies) who inherits the property under a will. 7. Probate. A copy of the will, certified under the seal of a competent court.

Medicolegal Aspect of a Will A Will Is Valid in the Following Conditions6, 7



1. During the lucid interval, if suffering from some mental illness. 2. The presence of isolated delusion in a person with a demonstrable orientation to the time, place, and person may not affect his right to proper dispersal of property or making a will. However, the will may become questionable if the delusion in some way intersects the domains of his will, for example, an elderly person made a will to donate his property to a charity organisation under the delusion of persecution against his spouse. 3. If the testator commits suicide immediately after making the will, in the absence of evidence of mental disorder. 4. Failure to communicate or inability to understand by reading. 5. Partial drunkenness (Figure 8.1).

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FIGURE 8.1  The essential features of a legally valid testament. A Will Becomes Invalid1, 2, 5–7



1. When it is made at the deathbed and the person is incapable of knowing the will’s nature and consequences. 2. If any dying person is with delirium or disorientation. 3. When it is made under the influence of alcohol or other substances, even if there was a transient loss of reasoning capacity. 4. When it is made under duress or undue influence. This may include an undue emotional influence while making the will by a person directly or remotely benefitting from the will terms. 5. When it raises sufficient suspicion and looks unreasonable, i.e., the ‘will’ was made so that one would not have done under the ordinary course of nature. For example, a person made a will to donate his house to a local politi‑ cian, deserting his whole family, including himself.

Special Circumstances

6, 7

1. Senile and pre-senile dementia and soundness of mind. • Dementia or loss of intellectual function is a natural consequence of ageing. • According to a few, dementia occurring before the age of 65 years is pre-senile dementia, which occurs thereafter as senile dementia. • Alzheimer’s disease accounts for 50–90% of cases of pre-senile dementia in the West. Diseases like cerebral infarction also cause loss of intellectual function. • Alcohol abuse, certain metabolic disorders, cerebral neoplastic diseases, subdural haematoma, syphilis and HIV infection, drugs, narcotic poisoning, heavy metal intoxication, and endocrinal and deficiency disorders as causes of dementia must be excluded before concluding that primary dementia has set in. 2. Benign senescent forgetfulness, eccentricity, and sound‑ ness of mind. • In the elderly, dementia must be distinguished from the minor degree of forgetfulness that accompanies ageing and is called benign senescent forgetfulness.

• This condition is often accompanied by slowing physical and mental agility, inability to change course, and rigidity of thinking. 3. Delusion and hallucination. A delusion is an abnormal belief. Delusions may be somatic (e.g. the body is giving off a foul smell), grandiose (e.g. falsely believes himself as the ruler of a state), and paranoid (e.g. someone is trying to kill him). A person with delusions can make a valid will when the delusions are unrelated to the person’s property. Hallucination is an abnormal sensation. Hallucinations may be auditory, visual, olfactory, tactile, or other senses. Note: A  person’s testamentary capacity remains unaffected if there is intact reasoning capacity with a sound, disposing mind when making the will (Table 8.1).

Role of a Physician in the Process of Making a ‘Will’ • A layperson as a witness attesting a testament is to identify the testator’s signature. However, a medical practitioner has a special responsibility in cases he attests to a will. In the court of law, the doctor might be required as an expert witness to depose his assessment of the testator’s ‘compos mentis’ when making the ‘will’ and as a common witness to identify the testator’s signature. • A medical practitioner should assess that a testator possesses a sound and disposing mind to make a will. The testamentary capacity is not necessarily a high degree of knowledge or reasoning capacity. It is sufficient for certification if his reasoning capacity is that of an ordinary human being and satisfies the legal standards. As with many competency tests, only a minimum level of functioning is required. A  doctor should certify only when he is professionally satisfied that the testator possesses a sound and disposing mind. • If an unusual distribution of property is to be made, try to ascertain whether this is due to any delusion or whether it is deliberate.

Physician and the Will

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TABLE 8.1  Legal Validity of Testamentary Capacity in Some Common Mental Conditions or Illnesses Mental Illnesses/ Conditions

Responsibility

Dementia (senile and There is no age limit for the onset of pre-senile) dementia, to the extent that it can affect a person’s reasoning capacity and deprive him of a disposing mind for a valid will. However, this is not true if the testator is medically certified as having a sound, disposing mind while making the will. Benign senescent Forgetfulness and senescence cannot be valid forgetfulness grounds for depriving one’s testamentary capacity, unless the contrary is proven. The age of a testator is not a valid medical reason for questioning the validity of his will. Eccentricity If any other mental derangement like delusion is not present, it will not prevent a person from making a valid will. Delusions and These are the hallmarks of psychosis that hallucinations affect a person’s perception and influence his thought and judgement. Hence, these conditions may likely deprive a person of a sound and disposing mind. However, isolated hallucinations or delusions (which are often seen in the remission phase of treated schizophrenia cases) without signs of detachment from reality or the hallucinations or delusions are not affecting his reasoning capacity are unlikely to be a valid ground for rejecting his testamentary capacity.

CASE REPORT From the primary author’s experience, a 42-year-old retired soldier whose wife divorced him on the grounds of schizophrenia could remarry after 5 years of successful treatment under court supervision. He was certified to be in sound mental condition before his second marriage. He had a clear reasoning capacity and a sound disposing mind. However, he complained of frequent auditory and visual hallucinations related to the Kargil War (1999 invasion of Pakistan militants in Kargil district), where he fought as a captain. One hallucination that he shared with the author was, “Mr Atal Bihari Bajpayee (the then Prime minister of India) is taking my name (he pointed to the TV news running on the TV set before us) and requesting him to come back to the military service again”. Note: He was aware that (which he had admitted to me) these are hallucinations and are not real. However, such voices kept hitting his ears and pictures displayed on TV or public hoardings. • Finally, after asking everyone in the room to leave, question the patient whether any pressure or indirect influence or coercion has been brought upon him for the matters related to his will. • A will made by a prisoner detained by lawful authority does not have a disability aspect merely because of the imprisonment. The physician’s role is to examine the testator’s (mental and physical) fitness to make a valid will. The testator must be of a sound and disposing mind (Sec. 59 of the Indian Succession Act

1925) and has attained majority (age more than 18 or 21 if he is under the guardianship of law) (Figure 8.2). The physician has to test the following points by thorough questioning:

1. Understanding of the nature of the will. 2. Knowledge of the property to be disposed of. 3. An ability to recognise those who may have justifiable claims on his property.

If the testator is seriously ill, he must be made to read aloud in the presence of the doctor. The physician has to ascertain the sound mental condition of the testator by looking at the insanity by disease, drugs, alcohol, etc., affecting the sound disposing of the mind. To ascertain that the testator understands the nature and consequences of the act (making the will) despite old age, feeble heath, defective memory, mental sluggishness, even on his deathbed, for those who are seriously ill. The physician also has to clarify that the patient/testator is in the lucid interval when making the will if he is suffering from some mental illness/ insanity. A deaf, dumb, or blind and aphasic, agraphic, or alexic person can make a valid will if they understand their actions and express their wish through gestures and signs. An intoxicated person, if he has a sound, disposing state of mind and reasoning power, and a person with delusions can make a valid will when the delusions are unrelated to the person’s property. In the presence of at least two witnesses (one could be his doctor), the testator should sign his will. None of the witnesses should be the beneficiary of the will. The testator wrote a will by himself (holograph will), and it must be certified. Diagnosis of mental disorder can be based on proper history taking and examination to ascertain the physical and psychological status. Proper personal, family, and medical history is to be considered. A detailed physical examination may be helpful for opinion formation. Mental status examination, like patient behaviour, speech, mood, orientation, thought, memory, intelligence, and insight, is to be considered before making any opinion (Table 8.2).6 If the ‘will’ is regarding the treatment plan, if the testator becomes seriously ill or is willing to donate his organs in

:

FIGURE 8.2  Reasons a doctor should certify a will. TABLE 8.2 Common Protocol for Assessing Compos Mentis (for Testamentary Capacity)6, 7 Parameters to Be Examined Orientation General awareness Power of reasoning capacity Disposing mind

Method of Assessment Questions to determine his orientation to the time, place, and person. Questions about his age and relatives, both dead and alive. Simple mathematical arithmetic, for example, What is the sum of 1 and 2? Or if he is illiterate, What is blood’s colour? Questions about the extent of his properties and the manner of distribution desired by him.

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I-78 the future, the following extra things need to be done by the doctor:1, 2, 6, 7 1. Declaration stating that he has understood the consequences of executing the will. 2. Any instruction should be mentioned, and terminology used at the time of ‘will’ should be discussed with the physician, universally acceptable. 3. The name of the guardian or relative/decision-maker on behalf of the patient/testator should be present. 4. Satisfactory note of witnesses regarding voluntary execution of documents. Copy of the ‘living will’ is to be sent to the office of the judicial magistrate, registry of the district court, municipal corporation, and a family physician.

References





1. Lyon, I.B.,  LYON’S Medical Jurisprudence  & Toxicology (11th Ed), Edited by T.D. Dogra & A. Rudra, Delhi Law House, 2021. 2. Modi, J.P., “Mental Ill heath and its Modi, J.R.,” Medicolegal aspects. “In A Textbook of Medical Jurisprudence and Toxicology (26th Ed), Edited by Kannan K., Lexis Nexis, 2019,” p. 938. 3. Mukherjee, J.B., “Forensic psychiatry: Civil responsibility of insane.” In Forensic Medicine and Toxicology (4th Ed), Academic Publishers, 2011, pp. 760–761. 4. Nandy, A., “Forensic psychiatry.” In Principal of Forensic Medicine Including Toxicology (3rd Ed), NCBA, 2010, pp. 621–622. 5. Raja, V., “Should you have a ‘living will’ made? Here all you need to know.” The Better India, 2019, www.thebetterindia.com last visited on 07.05.2021. 6. Mayo, C., Living Wills and Advance Directives for Medical Decisions, 2020. www.mayoclinic.org/healthy-lifestyle/consumer-health/in-depth/living-wills/ art-20046303. 7. Sanbar, S.S., “Common competency areas.” In American College of Legal Medicine (7th Ed), S.B. Bisbing (ed.), Elsevier, 2007, pp. 328–329.

Section II Clinical Forensic Medicine

Establishing the Identity of the Individual . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 Medicolegal Aspects of Mechanical Wounds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 Crimes Involving the Elderly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 Crimes Involving Infants and Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 Sexual Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 Disorders of Fecundity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 Medicolegal Aspects of Pregnancy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160 Forensic Psychiatry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170 Violation of Human Rights and Torture Medicine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179 Violence against Healthcare Professionals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186 Establishment of Healthcare Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193 Basics of Healthcare Facilities Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201 Medicolegal Management of Poisoning Toxicity and Drug Overdose . . . . . . . . . . . . . . . . . . 208

CHAPTER 9 ESTABLISHING THE IDENTITY OF THE INDIVIDUAL Ambika Prasad Patra, A. Arthy, D. R. Rajesh and T. Neithiya

Chapter Highlights • Morphometric methods • Somatometry • Somatoscopy • Arthrometry • Latest identification methods • Forensics biosensors • Thermal analyser for deception detection • Electronic nose (e-Nose) • Digital cephalometry • Forensic odontology • Forensic radiology • Dactylography • Forensic taphonomy • Forensic phenotyping • Identification from blood and tissues • Lyon’s hypothesis • Barr bodies • DNA analysis • Forensic genealogy • Fixing identity • Charred, decomposed bodies, and from skeletal remains • Disaster victim identification (DVI) • Age determination in sports

Introduction Definition Establishment of the individuality of a person—living or dead. The determination of the precise identity of an individual. This is a scientific process to determine and/or establish an individual’s identity. Establishing identity is a challenging and complicated task requiring a collaborative approach of investigating officers, forensic scientists, and civil surgeons. This chapter discusses the role of civil surgeons or forensic pathologists in dealing with unidentified bodies or establishing the identity in disputed identity cases (Figure 9.1). Objectives • Basic human necessity. In all aspects of a person’s life, his individuality establishes his identity for all legal

purposes. Hence, the proof of identity is closely linked to all aspects of life. • Legal requirements. Since identification serves as the basis for the issuance of many legal documents, such as the Aadhar card, PAN card, birth certificate, driver’s licence, passport, voter identity card, ration card, and institutional identity cards, legal documents may be used to establish a person’s identity. • Establishing the identity of an unknown person is the primary responsibility of the police in cases of unknown dead bodies. It also has great medicolegal significance in both the living and the dead. For example, unclaimed or disfigured dead bodies, mass disaster victims, or any other such cases. • In civil and criminal cases. Disputed paternity, impersonation, forged insurance claim disputes, disputed inheritance, disputed pension claims, etc. To initiate any legal action on any complaint against a person. In all criminal cases, the police need to identify all parties connected with the case for further legal proceedings. • The term corpus delicti means the ‘body of crime’ or ‘the essence of offence’. Example: the knife at the murder location, bullet cartridge in a gunshot death, presence of fingerprint or footprint, or DNA traces of a person (accused). To arrest and prosecute an accused person, the police must first identify the body and provide evidence (corpus delicti) that the victim died as a result of the accused’s unlawful conduct. • Civil surgeons should be mindful of the fact that an unclaimed body, dead body parts, or skeletal remains may sometimes be brought to the doctor for conceding a false allegation. • Though corpus delicti is a crucial component of the criminal investigation, the Supreme Court has ruled that the existence of corpus delicti evidence which is recovered from crime scene is not always required for an offence to be proven, as crime scene is subjected to contamination by trespassers, untrained police officer. This phenomenon is called the ‘law of multiplicity of evidence’ (Figure 9.2).

FIGURE 9.1  Tenets of identification of an individual. DOI: 10.1201/9781003139126-11II-81

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Medical Jurisprudence & Clinical Forensic Medicine TABLE 9.1 Identification Features in Living Individuals • Appearance • Birthmarks (mole is preferred over the scar, nevus) • Fingerprints • Iris scan/retinal scan • Gait • Mannerism and tics

FIGURE 9.2  Approaches for identification.

Methods of Establishment of Identity The identification process involves close cooperation between the investigating police team, the concerned experts, and other interested parties, for example, family and friends. This way, there would be a scientific pooling of efforts and information as to the identity of an individual. Experts to be considered in the team for establishing the identity should include: 1. The civil surgeon or the medical jurist or forensic pathologist 2. Trace-evidence expert 3. Odontologist 4. Anthropologist 5. Anatomist 6. Physicians (if required) However, in India, a medical jurist who has competence in one or more of the fields previously mentioned, such as odontology, anatomy, or anthropometry, may suffice. Physical or circumstantial evidence can be used to support individuality. Evidence used to prove identification may have either individual and class characteristics or both.

Morphological and Individual Characteristics 1. In living. Comparing recognised traits, such birthmarks, is a frequent method of identification. However, it is uncommon to identify a suspect via indirect evidence, such as CCTV video, personal notes, satellite photos, audio recordings, dressing style, etc. Using satellite and remote camera images, US agents were able to identify Osama bin Laden in a small Pakistani home (Table 9.1). 2. Both in living and dead. In dead, the technique depends on the condition in which the dead body is found, for example, decomposed, charred, mutilated, etc. Dental record analysis is one of the best methods for identifying grossly charred, decomposed, or mutilated bodies, but a major limitation is the availability of antemortem dental records or databases. The favoured techniques are skeleton analysis, fingerprinting, dental analysis, and DNA analysis. Noting all the features mentioned in Table 9.2, complete photography and preservation of the clothing and accessories before giving the body to the relatives (Table 9.2).

Age Estimation • In disputes over civil and criminal affairs, the law of the land has established age restrictions for certain legal

• Occupational marks • Speech, language, and accent, forensic voice identification • Intellect and memory, educational status • Handwriting, likeness of features • Personal impression, like gesture • Teeth, eyes, hair, or voice

TABLE 9.2 Identification Features in Both Living and Dead Individuals • • • • • • • • • • • •

Age Sex Race Religion Physical development Clothes and accessories Complexion and racial characteristics Anthropometry (Bertillon method) Congenital malformations Deformities and injuries Scars from trauma or surgery Any pathology marks

• • • • • • • • • •

Birthmarks Tattoos Occupational marks Bloody prints (footprints, lip prints, handprints, etc.) DNA analysis Neutron activation analysis Dactylography Dental examination Superimposition techniques Trace evidence—hair, fibres, blood, body fluids, foreign bodies, etc.

rights, privileges, or restrictions for citizens. However, a person’s age has the greatest legal ramifications, and as a routine part of clinical forensic medicine, doctors must validate this biological factor for the law. • Common medical-legal situations demanding proof of age. Certifying juvenile delinquents, athletes, sexual crimes, immigration issues, property inheritance, human trafficking, offences against children, government job applicants, etc. The beneficiaries need age certification to receive some government benefits, especially government schemes meant for senior citizens. Autopsy of the unknown bodies also needs to fix the age of the deceased. • In India, when the institutional head of the law enforcement authorities asks the medical officers to confirm the ‘age’, the head of the medical institution often appoints a board of experts (comprising at least three members from the relevant faculty or specialisation). Depending on the nature of the medicolegal issue, such a medical board typically includes experts from clinical forensic medicine, radiology, dentistry, and paediatrics or obstetrics. Tips for Age Estimation • The medical examiner should prefer the observed trait or biological characteristics that strongly correlate with the chronological age. • The computed tomography (CT scan) image cannot be compared with the inference that was derived using X-rays unless there is tested proof that there is no significant difference between the two techniques. The reference data against which the empirical finding is compared is collected using the same technique.

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FIGURE 9.4  Types of anthropometries used for identification purpose. FIGURE 9.3  Types and characteristics of evidence. • To estimate age in children, adolescents, and teens, use a wrist X-ray (on the right side only), taking into account Tanner’s staging, secondary sexual features, and other developmental changes like teeth. In addition, consult a pelvic, elbow, or shoulder radiologist for adults (18 to 25 years old). Examine the bone and teeth for signs of age-related wear and tear in adults (over the age of 25). • A population or race’s skeletal maturation, dental alterations, and age-related degenerative process may be influenced by genetics, water quality, dietary habits, and physical and social environment. When handling such cases, the medical examiner should consider how endocrine problems affect bone development.1 • When reporting, always give an ‘age range’ rather than a specific age. Give the court the most precise, believable age range that can only be ascertained scientifically so that it can make a reasonable decision.  A significant concern for forensic investigators and the courts is incorrect ‘age ranges’ (Figure 9.3).

Physical Characteristics • Physical characteristics include sexual maturity and anthropometric features, like stature, appearance, etc. They are highly variable and, hence, are not reliable in fixing the identity.2 • Sexual maturity criteria consider Tanner stages or sexual maturity rating (SMR) scale for the physical development in children, adolescents, and adults. The physical changes during puberty, thelarche, and menarche are examined using SMR. It gives physical measurements of development based on visible primary and secondary sex characteristics, i.e., changes in the size of the breasts, genitals, testicular volume, and development of pubic hair. • However, Tanner’s scale is based on the British population; hence, it is recommended to use an appropriate reference chart according to the population served. The examiner should be mindful of genetic, socioeconomic, and environmental factors influencing menarche and sexual maturity.

Physical Methods for Identification

Physical methods commonly used for establishing the identity may fall into two broad categories, i.e., somatoscopic or somatometric methods.

1. Anthropometry • Etymology, Greek: anthropos, ‘human being’, -metria < metron, ‘measure’. • Alphonse Bertillon, a French police officer, introduced this method of recording the identification features. Hence, this is also known as Bertillonage anthropometry or Bertillon identification system. • Bertillonage deals with the accurate measurements of various body parts and documentation of specific identification marks or physical descriptions of the individual. Principle • The anatomical proportions and measurements of the body remain nearly unchanged after the age of 21 years (complete skeletal maturity) of an individual in the ordinary course of nature. • The anatomical proportions and measurement of the different body parts are different in different individuals, i.e., specific to a particular person (Figure 9.4). Data Collection (3 Types) a. Descriptive data (see following section, in somatoscopic methods). b. Bodily marks. Always record the marks with reference to the nearest anatomical landmark (bony prominence, nose, outer canthus, etc.). Record the shape, size, and colour of the mark. Always search for a permanent mark over the exposed part of the body. The following types of body marks are recorded in the descending order of preference: i. Birthmarks. Mole, nevus, or haemangioma. A mole is always preferred as the best identification mark, irrespective of its size. Note its size, colour, elevated and haired or flat, and the anatomical landmark. ii. Tattoo marks are permanent and temporary types. These may be used to corroborate one’s occupation, personality (religious, drug addict, etc.), and origin (from the language of tattoo inscriptions). Always consider only the permanent tattoos if moles are not available. Describe the colour, inscriptions/description (word, name, picture, etc.), and the anatomical landmark of tattoos. iii. Scars. If nothing is available, consider a scar. An old, healed scar is always preferred over a recent one. Document its nature (old, healed, surgical, or cut mark, etc.), shape, size, colour (pigmented or pale), texture (soft, hard), appearance (glistening, dull), and location. c. Body measurements. Refer to the next section in stature estimation.

II-84 2.  Somatoscopic Methods Somatoscopy (somato, ‘body’, scope, ‘viewing instrument’) is the qualitative evaluation of visible physical features of the human body, i.e., body posture, skin or iris colour, facial peculiarity, etc. Even if a person’s somatoscopic characteristics may not be a highly reliable method for determining his identity, as it is commonly subjective and can sometimes be misleading, they are nonetheless regarded as essential when investigated collectively. Innovations in colour charts (for skin, iris, hair, etc.), recent developments in digital superimposition technology, and 3D models from lifetime photographs, skulls, dentures, etc. have brought more clarity and objectivity to somatoscopic studies. • Subjective somatoscopic observations are hair or skin colour for a race, shape of orbit for sex determination, etc. • Objective somatoscopic observations are studying fingerprint patterns, superimposition techniques, etc. Common somatoscopic features include: a. Body posture. Always consider posture in the erect position. Instead of fixing a suspect’s identity, posture might be a great way to confirm their identity. For instance, recognising someone from CCTV footage or films without hiding their face, head, or neck. The four primary postural types—type A through D—are unique to an individual. b. Head. Some areas of the head have reliable characteristics that can be exploited to corroborate the identity. i. Eyes: axis (horizontal or oblique) and epicanthus folds (thin, thick, mongoloid folds). ii. Face: height, shape, form (arched or projected). iii. Occiput: shape and projection (flat or bulging). iv. Nose: externally nasal root, bridge, tip, and nasal wings or alae. Internally, examine the nasal cavity and septum. v. External ear: shape and size of the earlobe, helix and antihelix, tragus and antitragus are examined. c. Neck. Examine for length, Adam’s apple projection, size, and neck thickness. d. Extremities, hands, and feet. Examine width, symmetry, and any muscular defect on the elbow or knee. The left hand should be preferred as it is less affected. Fingers size, thickness, shape, and thumb dexterity (high or low). Fingernails may be broad, narrow, or long, and the shape may be flat or arched. Nail groove or depression patterns are often specific to an individual. Examiners should be mindful of the handedness of the individual. e. Buttocks. Masculine or feminine type and symmetrical or asymmetrical. f. Skin colour. The skin colour can be examined using Von Luschan’s chromatic (VLC) scale, consisting of 36 opaque-coloured glass tiles. Select a skin area which is not exposed to the sun, for example, underarms, chest, shoulder blades, thighs, etc. The VLC scale is ideally used to establish racial classifications of populations according to their skin colour. However, the examiner should be mindful of factors affecting skin colour, viz. cosmetics, soap, climate change, disease, malnutrition, etc. g. Iris colour. It is more specific than skin colour and evaluated using a variety of charts, such as the Martin

Medical Jurisprudence & Clinical Forensic Medicine TABLE 9.3  Standard Anatomical Landmarks on Face and Skull Used in Superimposition and Facial Reconstruction Techniques • Eyes within the orbit • Supraorbital ridges • Zygomatic bones below the eyes • Nasion • Prostheion of central line

• • • • • •

Nasal spine Lower border of nose Lower border of upper jaw Teeth Angles of the jaw External auditory meatus

and Schultz eye colour chart. Using a hand lens, the iris is studied to define its pattern, which might be homogenous, speckled, diffused, rayed, zonal, etc. h. Identification using digital craniofacial superimposition techniques. To ascertain whether an unidentified skull is that of a person in the photograph of a missing person, craniofacial superimposition techniques is used. i. These techniques are preferably used for ‘identification by exclusion’ instead to confirm the match (identification), i.e., it can detect a mismatching skull and photographs pair better than a matching pair. ii. The interpupillary distance of a person remains constant in all directions; hence, it does not matter in which view the lifetime photograph is available for matching. iii. The latest development in craniofacial superimposition in forensic identification is the use of genetic algorithms. i. Facial reconstruction (3D models). Using facial markers and clay over the suspected skull, forensic anthropologists reconstruct a 3D model replica of the individual (missing person). It uses the standard landmarks on the skull and the face, like in the craniofacial superimposition technique. The probable shape, size of bony prominences, soft tissue thickness, age, etc. are assessed using computer programs and facial markers (Table 9.3). 3.  Somatometric Methods These use the quantitative expression of the human body, i.e., morphometric features. It is applicable for living cases, cadaver, and skeletal remains (ancestral origin, stature, and sex)1 (refer skeletal examination in the following). Somatometry Is Helpful in the Study Of 2–8 • Age estimation from different body segments in each set of individuals or populations.1 The examiner also needs to look at information like the subject’s date of birth, age, sex, ethnicity, location, socioeconomic situation, etc. Age should be given in days up to one month; beyond that, it should be written in decimals of years, using tables for their calculations if necessary. (Discussed earlier.) • The somatometric method aims to measure the standard landmarks on the bones. For example, the cephalic index (refer to the following) is used for race determination, and the femoral or mandibular canine index for sex determination. Studies of morphological variation naturally have a comparative perspective, with variation within and across populations serving as the primary focus. 3

Establishing the Identity of the Individual

FIGURE 9.5  Procedure for digital craniofacial superimposition. • Chronological age (Attallah and Marshal, 1989) can also be determined using seven body measurements in both live and dead individuals with reasonable accuracy.8 • Somatometry is extensively used in estimating stature from different body segments, including asymmetric limbs, and amputated or mutilated limb segments using already-published multiple regression equations for several populations. For this, one must first identify the side (whether left or right), then apply the appropriate formula.1 Osteometry (measurement of skull) and cephalometric (measurement from radiology image) measurements of the head and face can be used for estimating stature (Figure 9.5). Stature Estimation5–9

1. Clinicians, particularly paediatricians, utilise stature for routine evaluations of growth and development, dietary therapy, etc. There are several methods for estimating stature from bones, but correlation (regression analysis) studies are the quickest and most accurate. 2. Almost all the bones and body components have been investigated to determine stature and have exhibited varying degrees of association with stature, ranging from modest to high. The smaller body components, such as the length of the hand or palm, the middle finger, etc., as well as the smaller bones, such as the metacarpals, metatarsals, and sternum, are used to assess a person’s stature. Long bone fragments are selected for stature estimation if fragmented bones are available.1, 20, 21 3. The police regularly consult forensic anthropologists or forensic medicine doctors to assess stature in order to identify unidentified human remains so that  the deceased’s places, lifetime heritage, and homicidal intent can be obtained. For instance, determining the identification from a group of skeletal remains, disfigured body parts, mass catastrophe victims, bomb explosion sites,

II-85 etc. (for which height is a vital need in addition to age and sex). 4. Factors affecting stature: a. Diurnal variation. Stature changes by 15–20 mm/ day and more in children. Some studies have observed a maximum mean daytime loss of stature up to 2.81 cm.22 b. Ageing. The average stature is inversely proportional to that person’s age. c. Body weight. An obese person may show less stature variation than a lean individual. d. Posture. A relaxed, supine posture may record greater stature (by 10–30 mm) than in the erect position. e. Death. After natural death, except during the rigor mortis phase, the stature may increase up to 2 cm due to flattening of the normal vertebral curvature and the widening of joints, with few exceptions. f. Growth-related disorders. Malnutrition, endocrine disorders, etc. 5. Remarks: • Diurnal variation in stature is a biological phenomenon. Hence, its effects can be reflected in the reliability of the estimated stature values. Therefore, stature alone is not considered a reliable tool for confirming the identification of an individual. • A researcher should be mindful of the time of the day at which the measurements are to be recorded for making standard reference data of the stature for a particular population.23 • The primary difficulty in developing a stature estimation formula is the non-availability of skeletal series with known body length data.20, 22 • Nevertheless, forensic stature estimation may be less precise than Trotter and Gleser’s (biological) stature estimation. • However, a forensic stature is the only stature available for a missing person and is considered accurate for forensic cases. 6. Body measurements: • Stature. Total height, head to heel in adults and crown-rump length in infants, is measured using a stadiometer. • Measurement of individual body and cephalometry. Vernier or sliding callipers and spreading, springjoint callipers were used to measure the distance. Digital callipers should be preferred. • Length and breadth of the head, nose, ear, and chin • Length of the left foot • Length of the left forearm and hand • Left middle and ring finger • Length of the right ear 7. Precautions: • The precision and reliability of measurements are of paramount significance in anthropometry, especially for stature estimation, which can be obtained by following international standards. • The most frequent anthropometry mistakes are misreading or misinterpreting measures (personal errors) and misaligning the body, body parts, or bones (technical errors). Recalibrate the digital devices often. To reduce these inaccuracies, anthropometric measurements (for a specific body part or

Medical Jurisprudence & Clinical Forensic Medicine

II-86 bone) should be recorded using globally accepted standard standards. 8. Some standard anatomical landmarks for anthropometric measurement of the parts of the upper and lower extremity are given here: • Body length of a dead body. The recumbent length of the body represents the stature of the cadaver measured using the calibrated autopsy table. • Arm length. Represents the straight distance between acromion and dactylion when the subject is lying on a plane surface in supination, with his/her arms by his/her sides. • Forearm length. It represents the straight distance from the tip of the olecranon process to the midpoint joining the radial and ulnar tuberosity when the subject is lying on a plane surface with his/her arms flexed. • Palm length. It represents the straight distance from the distal flexion crease of the wrist to the dactylion (tip of the middle finger) in extension after trimming the nails. • Middle finger length. It represents the straight distance between phalangium III of the middle finger and dactylion of the same finger. • Thigh length. Distance between the uppermost part of the femur head prominence to the centre of the knee. • Leg length. Distance between tibial spines to the centre of the transverse ankle line. • Foot length. Represents the distance from pterion to acropodion when the foot is stretched. • Big toe length. It represents the distance from the first metatarsophalangeal joint to the tip of the big toe. 9. Limitations: • Applicable to adults only (>21 years). • Prone to personal or technical errors and requirement of delicate instruments and well-trained technicians. • Hence, for concrete identification, dactylography is now preferred over Bertillonage anthropometry, wherever possible.

2. Determining age and sex from skeletal remains: a. Bone examination. Essentially, whether evaluating skeletal remains or radiographs, the examination’s goal is the same, i.e., to look for: i. Epiphysial closure (ossification status) (Figure 9.7) ii. Skeletal maturation index iii. Pathological or incriminating findings (cut marks, souvenir bullets, degenerative changes, etc.) (Figure 9.6) b. Skeletal degeneration changes as age indicators. Degenerative changes due to wear and tear in adult life depend on human behaviour and various environmental factors. The hormonal and metabolic changes in adulthood and pathological conditions in the elderly increase the estimated age range in older individuals. Thus, multiple age indicators should be used whenever possible to get a reliable and precise age interval. The most commonly used bone surfaces for age estimation in the elderly are: i. Face or medial surface of the pubic symphysis. It is considered to be one of the widely used parameters for age estimation. Ten phase morphological changes given by Todd in 1920 marked the beginning of the use of pubic symphysis. Over the last century, Todd’s methods have been studied and modified multiple times. Suchey and Brooks revised Todd’s method to six phases so that it can be applied to a wide range of populations, including Asia, Europe, North America, and South America.17 However, later studies showed that the range increased with older individuals, and the accuracy in females was about only 72%. Hartnett altered the age range and added the seventh phase in the Suchey and Brooks

Skeletal Examination This involves examination of bones and radiographs. Radiographs are used for living subjects. The police may bring a bunch of skeletal remains from crime scene (graveyard, burial site, decomposed skeletal remains, etc.) for medicolegal evaluation for establishing:9–16 • Identification (probable age and sex) • Cause and the manner of death • Time passed since death 1. Skeletal remains. From anatomical knowledge, first determine if the objects are made of bone or not, as well as their species. Based on the shape, size, and morphology of the bones, you may tell if the collection of bones belongs to a single person or to several people. When bones are broken apart or partially burned, they should be reorganised and placed in anatomical order. Precipitin or antihuman globulin inhibition tests for species, DNA analysis, and biochemical testing for age are performed on dry bones sent to FSL.

FIGURE 9.6  Appearance of different stages of epiphysis closure in long bones (tibia). The ages mentioned against the bones are in years.

Establishing the Identity of the Individual

FIGURE 9.7  Differences between the mandibular angles (gonion) and chin (trigon) of a male and female of same age group. method.18 A  summary of the Hartnett phase is given in Table  9.5. As these researchers were studying dry bone, utilisation and phasing using computed tomography and other non-invasive methods are being explored for virtopsy and living age estimation. CT has been used to study variables from the body of pubic symphysis, and this has shown better results than pubic symphysis. ii. The auricular surface of the ilium. The auricular surface is studied in the deceased to estimate the age at the time of death. The advantage of using an auricular surface is that it is resistant to degradation forces and has better interpretable changes in individuals beyond 50 years of age. iii. Acetabulum. Maillart et  al. studied the morphological changes that occur in the acetabulum and developed age indicators based on the appearance of the acetabular rim, acetabular fossa appearance, porosity of the lunate surface, and apical activity.10, 19 This was a preliminary

II-87 study done in 2015 and requires further largescale study. iv. Cranial suture closure pattern. It is one of the oldest and most controversial age indicators in adults more than 25 years of age. Direct observation for suture closure at the ectocranial and endocranial surface is done when the skeletonised skull is received. In the case of living and non-skeletonised unclaimed deceased, computerised tomography is used. Skull closure occurs earlier in males and occurs from endocranial surface. A  brief overview of sutural closure is given in Table 9.6. Direct observation. The Acsadi–Nemeskeri complex method is used in general. The suture is divided into parts and is given a score ranging from 0 to 4 as per the level of closure. The score is then compared with a standard reference table (Figures 9.8 and 9.9). v. Mandible. Usually, the mental foramen and gonial angle (the angle formed by the body and ramus) of the mandible are examined to predict an age range, i.e., elderly, adult, or children. Sex can be predicted by examining the degrees of eversion and thickness of gonial angle and chin prominence, as well as the degree of and the sex of the person. • Adults: The mental foramen is midway between the upper alveolar and lower borders. • In males: Thick, everted gonion and gonial angle 90º to 110º. Prominent chin with wider trigon. Females: Less everted/ may be inverted, slim gonion, and gonial angle greater than 120º. Smaller chin with pointed trigon. • Children and infants: Mental foramen is close to the lower border, and gonial angle of mandible is >140º. • Elderly: Mental foramen is close to the upper alveolar border. The gonial angle is about 140º (Figure 9.7).

FIGURE 9.8  Differences in chin and gonial border between a male and female mandible of the same age group.

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FIGURE 9.10  Osteometric board.

FIGURE 9.9  Demonstrating the shift in position of the mental foramen towards the alveolar border (white bar) with increasing age. Osteometry • It is a technique for taking measurements of bones, including the skull. • The ‘big four parameters’ of forensic anthropology are age, sex, race, and stature. And osteometry is used for the estimation of stature from the age, sex, and race of an individual. • Osteometry can also help in the analysis of the variation in the skeleton of different populations. • Osteometric instruments: Osteometric board, digital sliding calliper, and spreading calliper for cephalometry (Figure 9.10). Stature from Skeletal Remains5–9







1. For calculating stature from skeletal remains, the use of multiple and long bones, especially of lower limbs, give a closer estimate of stature than that of upper limbs. 2. The highest correlation with stature is given by femur (r = 0.8) and tibia (r = 0.8), followed by humerus (r = 0.7) and radius (r = 0.7). 3. Right-sided bones are preferred, if it is dry and without cartilage. 4. Formulae are different for dry and wet bones, not valid for children, giants, and dwarfs. 5. An osteometric board (Figure  9.10) provides the most accurate measurement for the bones. However, sliding callipers (Figure 9.11) can be used as an alternative. 6. Stature estimation based on some regression formulae—Pearson’s formulae, Trotter and Gleser’s formulae (1958), Pan’s formulae, and Harrison and Dupertuid’s formula. 7. All these regression formulae are based on skeletal remains of European, North American, and Negroes, hence not suitable for Indians and the population of the Indian subcontinent. 8. Hence, Pan’s formulae (1924) and Trotter and Gleser’s formulae (1958) are used in India and the Indian subcontinent with appropriate correction factors (multiplication factors). 9. The multiplication factors used are as follows: (i) humerus, 5.30; (ii) radius, 6.90; (iii) ulna, 6.30; (iv) femur, 3.70; and (v) tibia and fibula, 4.48. 10. Gross formulae are not accurate. The accuracy of determining the stature is:

FIGURE 9.11  Sliding calliper.

TABLE 9.4  Steele’s Regression Formula for Stature Assessment from Dismembered Body Parts and Fragmented Bones with a Correction Factor Stature equals to: • Whole skeleton length + 2.5–4 cm for soft tissue thickness • Length between the tip of both side of the middle fingers in an outstretched hand • (2 × length of arm) + 30 cm + 4 cm • 2 × (vertex to symphysis pubis length) • 3.3 × (sternal notch to symphysis pubis length) • 5/19 × (tip of olecranon to tip of middle finger) • Max foot length / 0.15 • Vertebral column length / 0.35 • 1/8 × skull length • 1/7 × head length (vertex to chin) • The sum of articular lengths of five metacarpals



a. b. c. d.

Humerus, 20% Femur, 27% Tibia, 27% Vertebral column, 35% (Table 9.4)

Determine Ancestry/Race1–4 • Forensic anthropologists predict individuals’ ancestry or race from the morphometric and skeletal examination. The three common ancestries determined in forensics are Caucasoid, Negroid, and Mongoloid origin. • However, studies have shown that genetic variation within a population is a critical issue questioning the application of existing ancestry data in forensic practice. Determination of race from skeletal remains is a cumbersome task.

Establishing the Identity of the Individual • Several multivariate equations were proposed by some researchers who considered the skull, femur, and a few other long bones for ancestry determination. • Physical traits used in living individuals for the determination of ancestry can also be used for fresh unknown dead bodies. • The skull is the most suitable bone for determining ancestry, with an accuracy rate of 85–95%; the pelvis gives an accuracy rate of 70–75%. The rest of the bones are of not much use in determining the ancestry. Newer researchers classify ancestry as African, Asian, and European and observed that only 17–58% of individuals have the expected trait. 3, 4 • Due to environmental change, interracial breeding, etc., a genetically identical population or endogamous group may have intrinsic variability within their population, making it difficult to identify race or ancestry.1 • In light of the chance error for that population, ancestry determination for repairing identification in a population should be utilised as a corroboration method. In the study, Hefner and L’Abbe and others attempted to establish ancestry using straightforward non-metric morphological features. 3, 4 These should only be employed with statistical probability, it is advised.

• The cephalic index (CI) or cranial index value in humans is calculated using the maximum value of two basic biometric parameters, i.e., the biparietal diameter (BPD— side-to-side length) multiplied by 100 and divided by the occipitofrontal diameter (OFD—front-to-back length). The index is used to categorise both humans and animals alike. The cranial measurements are usually made digitally using head CT scans in the living or using spreading callipers in the dead (Table 9.5). Factors Influencing CI

5–9





1. Asymmetrical skull shape. 2. Environmental factors and sociocultural habits like cradling infants: a. Head shape is greatly affected by geographical, sex, age, and racial factors. b. Many forensic anthropologists questioned the usefulness of the cephalic index. c. Franz Boas et al.  studied (1910–1912) how the CI of children differed significantly from their parents among the immigrants to the United States, indicating that local environmental conditions significantly influenced the development of head shape. Even an environmental shift by the mother during pregnancy may have a prenatal developmental change in the head shape. 3. Changes in the genetic and hereditary conditions. For example, dolichocephaly may be associated with disorders like Sensenbrenner syndrome, Crouzon syndrome, Sotos syndrome, and Marfan syndrome.

Uses of CI

2. Cranial morphometry is a suitable means to model racial ancestry. In the early 20th century, anthropologists widely used the cephalic index to categorise human populations based on race or ancestry. 3. Archaeologists use it to study the excavated skulls. 4. Veterinary researchers use it for categorising animal populations, especially for animal breeding. 5. Currently, CI is mainly used to describe individuals’ appearances and for estimating the age of  foetuses  for legal and obstetrical purposes. Other Less Commonly Used Indices for Determining Race

1. Brachial (radiohumeral) index = (radius length/humerus length) × 100 2. Crural (tibiofemoral) index = (femur length/tibia length) × 100 3. Humerofemoral index = (humerus length/femur length) × 100 (Table 9.6)



Determining the Cause and Manner of Death • From the fracture, cut marks, bullet marks, etc. • Heavy metal poisoning—As, Pb, etc. • Diatoms test in case of drowning (Figure 9.12).

Determining Time Since Death

Cephalic Index (CI)4, 5



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1. Fixing the race and sex of an individual whose identity is unknown.

• Wet, humid, offensive bone: within 1–2 days, depending on the season, site, air, and sunlight exposure. • Bones with intact dried cartilage and soft tissues shreds: within 3–4 months. • Skeletonisation without soft tissue or cartilages: 3–6 months (exposed air and sunlight) up to 1 year (buried bodies). TABLE 9.5 Compilation of Cephalic Indices and the Corresponding Head Sizes in both sexes Cephalic Index Values (%) Females

Males

81.1

Skull Category Dolichocephalic or scaphocephaly Mesaticephalic, mesocephalic, or mesocranial Brachycephalic or brachycranial

Meaning Long head Medium-sized head Short head

TABLE 9.6  Mean Cephalic Indices of Some Indian States12–14 Study Population

Mean Cephalic Indices (%) Male

Female

Corroborating Skull Categories

Indians mean values Punjab

77.92

80.85

Mesaticephalic

80.52

77.92

Mumbai

94.41

82.16

Gujarat 80.81 Uttar Pradesh 79.8 Karnataka 78.26

74.87

Odisha

75.78 ± 4.85

Mesaticephalic and brachycephalic Hyperbrachycephalic and brachycephalic Mesaticephalic Mesaticephalic Mesaticephalic and dolichocephalic Mesaticephalic

76.22 ± 5.14

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Medical Jurisprudence & Clinical Forensic Medicine – Clavicle. Prominent bony tuberosities around the rhomboid fossa, viz. the capsular ligament attachment area along the margins of medial and lateral ends of the clavicle, i.e., first costochondral junction and rhomboid fossa of the costoclavicular joint. The absence of prominent rhomboid fossa is more common on the left-side clavicle due to the majority right-handedness.

FIGURE 9.12  Skull bones with signature fractures caused by heavy blow/impat. Left: caused by a large hammer blow in a female (white arrow). Right: head bashed against wall in a male (black arrow). Forensic Tests



1. Immunological test: 5 to 20 years



2. Precipitin test: up to 10 years 3. Nitrogen and amino acid (proline and hydroxyproline) content: • 3.5–5 gm% nitrogen indicates less than 50 years. • Below 2.5 gm% indicates more than 250 years. • Presence of 15 amino acids indicate a recent death. Absence of proline and hydroxyproline indicates very old sample. • By 100 years, less than 7 amino acids are found.

Signatures on Human Bones

Some bones in a person may bear the telltale sign about his occupation, habits, handedness, and the manner of his death. 1. Handedness. Persistent, prolonged physical activities in one-side limb may lead to a relative increase in the growth in that side of limb’s muscles and bones due to stress or strain through the ligaments, muscle attachments over the bone surface, especially around the joints. Therefore, the changes around the joint of long bones, viz. muscle and ligament attachment sites, are considered to examine ‘handedness’. • Handedness may affect the long bones of the dominant side in terms of trabecular structuring. For example, such changes are evident in the skeletal remains of prehistoric spear-throwing peoples. Nevertheless, athletes involved in javelin, discus, hammer throwing, weight tossing, etc. may show differences between the sides. • Preferred bones for determining handedness: – Scapula, clavicle, and long bones of the arm. The dominant hand’s shoulder girdle and arm bones are the best ones to examine for handedness. The ‘deflection angle’ is associated with the dominant side. The examiner should focus on the deflection angle of the dorsal inclination of the glenoid fossa of the scapula, epicondylar breadth of the humerus, extensor facets, and combined lengths of long bones of the upper extremity. The degree of development of the facet may be scored on a scale of 1 to 3, where 3 is the most levelled facet. Ulna may also aid in identifying handedness.

2. Amputated limbs. The amputation of a limb leads to the loss of function and disuse atrophy of the affected limb. – Amputation in the upper extremity causes atrophy of the shoulder girdle and clavicle of the amputated side and an increase in the size of the opposite-side limb with prominent bony growths at ligament and muscle attachment sites of scapula and clavicle due to compensatory overburdening of the physical activity. – Loss of a lower extremity leads to atrophy in the pelvic girdle. – In the 40s and later, atrophic areas appear in the iliac fossa and the fossa of the scapula (age changes, per se). 3. Occupational stress marks. The skeleton may record stress and strain during life, especially when it is persistently repetitive, involving specific body parts. Examples: Occupations frequently need kneel-down postures seen in Islamic clergies and housemaids for cleaning. Kneeling with toes downward, sitting with heels up, toes downward, may impart stretch effects around the sacroiliac joints and femora. The sacroiliac joint may show accessory articular facets on the dorsal surface of the sacrum. 4. Skeletal trauma is, broadly, of four types—blunt, sharp, projectile/missile injuries, and due to rapid deceleration. Trauma to the skull and postcranial skeleton differs in effect in childhood and old age compared to middle-aged individuals. 5. Bone pathology and abnormalities are of utmost importance to forensic anthropologists since they are essential in the assessment of individuality and can help establish identification.

Dental Examination Forensic odontology is the application of dentistry science for the administration of justice. This field deals with establishing identity in unknown, age estimation, and bite mark analysis. The major challenge with dental identification is lack of sufficient antemortem dental records.10, 12–14 Scope • Ideal forensic tool in highly decomposed or charred bodies. Teeth are resistant to decomposition and heat. • Teeth examination helpful in identifying unknown dead individual by comparing post-mortem dental radiographs with antemortem X-ray/OPG. Comparison can be done by both manual and computer programs. • Bite mark pattern used in tracing the criminals, especially sexual assaults or from a bitten fruit found at the crime scene, etc.

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• Teeth also used to estimate race, stature, sex, and age of an individual.



Age Estimation from Teeth Applicable to both living and dead individuals. Use both radiography and physical examination. The orthopantomogram (OPG) gives the best results compared to regular X-rays. The degree of dental maturity in a subject is compared against the average for the individual’s chronological age group for that population. Dental examination in living cases, unlike in dead, has limitation for destructive methods, like Gustafson’s method and dentin aspartic acid racemisation (quantitative) method. • In children and young adults. Examine dental maturity indicators, viz. teeth eruption status, teeth mineralisation, space for permanent teeth, etc. This is useful to estimate age up to 22–25 years. • In adults above 25  years old. Dental maturity usually completes by 25–32  years of age. Nevertheless, ageassociated secondary or degenerative changes—dentine apposition, attritions, root resorption, gum line resorption, etc.—are used for determining the age (Table 9.7). TABLE 9.7 Characteristics of Temporary and Permanent Teeth Temporary Teeth

Permanent Teeth

• Physical appearance: 1. Milky-white colour, constricted neck with a ridge at the junction, with the crown may present. 2. Small, spread-out molar roots, shovel-shaped incisors. • Total 20 teeth. • Period of mixed dentition ranges from 7 to 12 years (see Table 9.11). • Premolars and third molar do not have temporary counterparts.

• Physical appearance: 1. Ivory-white colour, wider, indistinct neck. Serrated margin of incisors (Figure 9.13) 2. Large, long molar roots (Figure 9.14). • Total 32 teeth (8 teeth in each half of each jaw). • 4 central incisors, 4 lateral incisors, 4 canines, 4 first premolars, 4 second premolars, 4 first molars, 4 second molars, and 4 third molars. • Two types: 1. Successional teeth (10 in each jaw) erupt in place of their temporary teeth. All permanent teeth except the molars. 2. Superadded teeth. All permanent molars, and they do not have a temporary predecessor (Figure 9.10.b).

1. Dental Age in Children • Tooth eruption. Occurs in two batches, i.e., primary (temporary or deciduous or milk teeth) and secondary (permanent) teeth. The word ‘eruption’ continuous tooth movement from dental bud to occlusal contact. First crown and latter root is formed. However, the common appearance of tooth at gingival surface is considered as erupted teeth. Tooth eruption occurs earlier in females than in males. • Tooth mineralisation. Enamel is the outer lining of teeth and provides hardness to the teeth—the hardest part of the human body. It is not a living material but can be repaired through a process called dental mineralisation. • Mineralisation is the process of hardening of the enamel of the teeth by mineral deposits, viz. calcium, phosphate, and fluoride from saliva. It starts from the crown and extends downwards to the root. • This is a continuous process—starts during intrauterine life and continues throughout adulthood. • Tooth mineralisation is least affected by external environmental conditions, like nutrition and endocrinopathies. • The grades of tooth enamel mineralisation may corroborate different age groups. Grading (mineralisation) systems used to determine age.: • Demirjian et al., 8 grades, and Moorrees et al., 13 grades, for tooth formation in single-rooted teeth and 14 grades for multiple-rooted teeth (molars, premolars) (Figure 9.13, Tables 9.8 and 9.9).

2.   Dental Age in Adults Age-related degenerative changes occur with advancing age, especially after 25  years. This is being exploited to estimate chronological age using morpho-histological, radiological, and biochemical techniques. a. Morpho-histological (Gustafson’s) methods. Gustafson’s contribution is considered a legacy in forensic odontology. He is the first to use the degenerative changes in single-rooted teeth to estimate age for individuals beyond 25 years of life. • Six criteria considered and scored from 0 to 3. • From the total score, age is estimated with an error of 3.6 years. • Criteria considered in Gustofson’s method are: • Occlusal attrition. Grit in diet wearing down the occlusal surface of the tooth. These criteria widely vary across different cultural groups. • Periodontosis. Tooth continues to erupt, though slowly, throughout the life of an individual. With

TABLE 9.8 Chronology of Temporary Teeth Eruption Pattern Maxilla (Months) Right Tooth4

Mandible (Months) Left

Right Male

Left

Male

Female

Male

Female

Female

Male

Female

Central incisor

10.4± 0.91

9.91± 0.45

9.89± 0.58

9.97± 0.49

8.85± 1.05

9.89± 0.59

9.45± 0.58

9.55± 0.39

Lateral incisor

11.38± 0.55

12.35± 0.39

11.46± 1.03

12.17± 0.65

13.25± 0.84

13.97± 0.53

13.59± 0.49

13.89± 0.57

Canine

19.14± 1.22

20.27± 0.93

20.03± 1.03

19.50± 1.22

22.12± 0.45

23.12± 0.26

21.17± 0.48

22.89± 0.57

First molar

15.05± 1.32

15.61± 1.21

16.08± 1.22

15.59± 1.04

17.03± 1.03

16.54± 1.07

17.54± 0.34

15.48± 0.45

Second molar

28.12± 1.5

26.91± 0.58

28.56± 0.83

27.12± 1.6

25.79± 0.85

26.48± 1.1

27.18± 1.3

26.16± 0.45

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TABLE 9.9 Chronology of Permanent Teeth Eruption Pattern Maxilla (Years) Tooth3

Male

Mandible (Years) Female

Male

Female

Central incisor

7.73 + 1.2

6.8 + 0.92

7.46 + 1.2

6.9 + 0.92

Lateral incisor

8.7 + 1.2

7.9 + 1.02

8.54 + 1.1

7.9 + 1.07

Canine

11.68 + 1.2

11.4 + 1.3

11.2 + 1.1

10.8 + 1.3

First premolar

10.78 + 1.3

10.4 + 1.41

10.5 + 1.3

10.6 + 1.41

Second premolar

11.5 + 1.3

11.3 + 1.3

11.21 + 1.19

11.5 + 1.32

First molar

5.4 + 1.18

5.14 + 1.24

5.4 + 1.07

5.18 + 1.24

Second molar

12.64 + 1.13

12.2 + 1.17

12.3 + 1.02

11.9 + 1.17

Third molar

18–25

18–25

18–25

18–25

FIGURE 9.13  Dental status of a 7.5-year-old boy. Note the characteristic amber-white colour of permanent teeth (incisors) stand out against the milky-white temporary teeth (canines). See the characteristic serrated margin and shovel look of permanent incisor teeth.

FIGURE 9.14  Dental model depicting the natural eruption pattern, crown and root shapes of permanent teeth, and space for third molars (arrow).

attrition happening at one end, this eruption increases the longevity of the tooth. • Secondary dentin deposit. The pulp chamber is occluded with age by the deposition of secondary dentin. • Cementum apposition. The thickness of cementum near the apical third of the root slowly increases as age advances. • Root resorption. External apical root resorption is seen to be age-progressive. • Root transparency. This occurs due to age-related occlusion of dentine tubules, leading to sclerosis. • Drawbacks. Gustafson’s method involves direct observation of the tooth with the gum, then extraction of the tooth, cutting, and grounding to 0.25 mm thickness for further observations. Thus, it is not suited for age estimation in the living. Shortcomings of his inferences were overcome in later studies by using multiple regression for the parameters observed or by modifying the scoring parameters (Figure 9.14). b. Radiological methods. Radiological techniques are applied to both living and dead cases. Pulp–tooth area ratio and tooth coronal index are used for age estimation. • Cone beam CT gives 3D images providing an opportunity for studying various somatotopic and somatometric features of a tooth.5

• Olze et  al. recommend applying the four criteria of Gustafson (attrition, periodontal recession, cementum apposition, and secondary dentin formation) on OPG.6 • All these techniques still need to be tailored as per the local population (Tables 9.10 and 9.11). c. Carbon (C14) dating. Use of carbon-14 birth dating of enamel to give precise age and geographical origin.7, 8 Access to the infrastructure required and the cost become the challenges in this case. d. Biochemical method. Racemisation of amino acids from L-isomer to D-isomer occurs throughout life. The relative amount of L-form and D-form of aspartic acid in enamel and dentine can be used to establish chronological age.9, 10 The pitfall of this technique is that it presumes that oral temperature is maintained constant at 37°C and that aspartic acid is not replaced by remodelling or diagenesis since tooth formation.5 e. Dental charting. Dental charting is the documentation of technology-assisted dental charting, such as geospatial or geographic information systems (GIS) technology being studied. Electronic charts assist in drawing, colour coding, and adding in extra details too.11 With rising electronic medical records and stress by INTERPOL to maintain dental records, this

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TABLE 9.10  Gustafson’s Scoring for Age-Related Changes in Teeth Score 0

Score 1

Score 2

Score 3

Attrition

Nil

Within enamel

Reaching dentin

Reaching pulp

Periodontosis

Nil

Just begun

Along the first one-third of the root

Passed two-third of the root

Secondary Dentin

Nil

Began in the upper part of the pulp cavity

Filled half of pulp cavity

Filled nearly or whole of the pulp cavity

Cementum apposition Normal

Higher than normal

Great layers

Heavy layers

Root resorption

Nil

Only at small isolated spots Great loss of substance

Great areas of cementum and dentin affected

Root transparency

Nil

Little

More than two-thirds

More than one-third

TABLE 9.11  Rough estimation of age during the period of mixed dentition (7-12 years): Total Permanent Temporary Years

24 04 20 06 M1

24 08 16 07 C1

24 12 12 08 L1

Determination of age during the period of mixed dentition (7-12 years): Mixed Dentition = (Age in years -5) X 4 (No. of Permanent Teeth)

24 16 08 09 B1

24 20 04 10 B2/canine

24 24 00 11

28 28 00 12

might soon spin in the direction of more developments in technology-assisted dental charting.12 • Modified FDI charting or notation. Commonly used dental chart is the two-digit  numbering system, in which the first digit represents a tooth’s quadrant, and the second digit represents the number of the  tooth  from the midline of the face. Orientation of the  chart  is traditionally in ‘dentist’s  view’, i.e., patient’s right corresponds to the  left notation chart  (Figure  9.10)—hence, the counting start and end on left side (Figures 9.15a and b). FIGURE 9.15  (a) Dental radiograph (OPG) of a 7-year-old boy showing erupted temporary teeth and permanent first molar teeth (arrows) in all quadrants. Note all successional permanent teeth are below the level of their deciduous counterparts, except superadded teeth/premolars (asterix) behind temporary molars. M3 denotes spacing for permanent third molars.

Age in Sports

The Sports Authority of India (SAI), under the patronage of the Ministry of Youth Affairs and Sports, Government of India, has laid down National Code Against Age Fraud (NCAAF) in sports to prevent fraudulent entry into professional sports. Annexure D of NCAAF prescribed medical certification of the age of athletes before issuing ID cards. Medical Examination

FIGURE 9.15  (b) Showing FDI chart above the dental radiograph schema of a 6.5-year-old child. All temporary teeth have been erupted, and all permanent teeth (blue) are yet to erupt, except first molar teeth. Note spacing behind first molar teeth for eruption of second and third molars.

• The medical and scientific testing parameters on which the medical examination is to be conducted must comply with Annexure II (see Figure 9.16). • The SAI notifies the list of panels of doctors, hospitals, and appellate panels/hospitals, which should necessarily be government hospitals. • The athletes or the appellants are sent to the head of the listed hospital or the civil surgeon (forensic medicine and toxicology department). The civil surgeon should form a medical board having a dental surgeon, radiologist, and physician (a female doctor for a female athlete) and any other medical personnel as deemed necessary by him. The list of appellant panels and hospitals notified by SAI shall be applicable to National Sports Federations (state and union territory level) as well. • The cost for medical examinations conducted by SAI and NSF shall be reimbursed by the concerned government.

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Medical Jurisprudence & Clinical Forensic Medicine

FIGURE 9.16  Annexure II of SAI to determine age. [Source: Sports Authority of India (internet). Cited 13 October 2021. Available from: http://saicrc.in/.]

Establishing the Identity of the Individual • Rohrar’s index (RI). The Rohrer’s index (see Figure 9.16) assumes the body is a three-dimensional cube and measures body weight per cubic unit of volume, which is more specific, unlike body mass index (BMI), which measures the body weight per square unit of area.

Identification from Blood and Tissues • Blood, body fluids, tissues (hair, nails), etc. which are recovered at a crime scene or on the victim’s body are an incriminate link between the genetic markers, i.e., ABO blood group, DNA profile, etc., and are commonly used to trace the identity of an unknown suspect (criminal) or a missing person. Hence, these are referred to as trace evidence. • Locard’s exchange principle. Postulated that ‘every contact leaves a trace’, which forms the backbone of trace evidence theory. A crime perpetrator exchanges matters with the crime scene, i.e., he will bring something from and leave something at the crime scene that can be used as trace evidence. • Blood as forensic tool. Blood and body fluids (with blood group antigens) are exploited as cost-effective and reliable methods compared to DNA typing. However, it has only an exclusion value (see Table 14), unlike the DNA and fingerprint system. • The genetic markers of blood, viz. red blood cell (RBC) surface antigens or blood groups, RBC enzymes, and serum components (haptoglobin, Gc) follow Mendelian laws of inheritance and show a high degree of polymorphism (for an individual). Each parent contributes a gene towards a given blood group in a child, which may exist in homozygous (AA) or heterozygous (Ab) forms. • These genetic markers or blood group systems may also be systems in other body fluids, like semen, saliva, sweat, etc., even in the hair follicles. • Individuality of cells. In addition to the red cell antigens (blood group) and enzymes, the chromosome in somatic cells is exploited to determine the individuality of cells. It is based on Lyon’s hypothesis (single active X-hypothesis) (Table 9.12). Lyon’s Hypothesis20 • Also known as the single active X-hypothesis (M. F. Lyon, 1925), this theory states that one X chromosome is randomly inactive in mammalian female somatic cells, regardless of the X chromosome’s paternal or maternal origin. This is because females have two X chromosomes (XX), whereas males only have one (XY). In all subsequent cell divisions, the inactive X stays dormant and visible as Barr bodies (Oxford Reference, 2022). • The Barr body (Barr, M. L. et al., 1949) is an inactive X chromatin in a somatic cell that appears in the nucleus at interphase. Under light microscope, Barr bodies can be demonstrated as darkly stained small mass close to the rim of the nuclear membrane of 30–60% of somatic cells (buccal mucosa or cervical smears, neutrophils, etc.). Fluorescence in situ hybridisation (FISH) staining using confocal microscope is the best method for detecting Barr bodies. • Barr bodies indicate a tissue is from a female but not necessarily always a female. It can only indicate presence

II-95 TABLE 9.12  Genetic Markers of Blood/Body Fluids and Their Approximate Exclusion Values in Heterogeneous Indian Population Exclusion Rate (In a Mixed Indian Population)

Blood Group System RBC surface antigens

ABO Rhesus MNS Kell (using anti-K) Duffy (using anti-Fy) Kidd (using anti-Jk) Serum groups Haptoglobins (Hp) determined using Gc protein specific antiglobulin given in bracket. RBC enzymes • Phosphoglucomutase (PGM) • 6-phosphogluconate dehydrogenase (6-PGD) • Adenylate kinase (AK) • Adenosine deaminase (ADA) erythrocyte acid phosphatase (EAP) • Glutamate-pyruvate transaminase (GPT) • Esterase D (Es D) Expected exclusion rate for all systems

15–19% 25–30% 30–35% 2–5% 3–6% 3–6% 15–18% 12–16%

4–15%

90–95%

FIGURE 9.17  H&E stained buccal mucosal smear demonstrating Barr bodies (dark purple dots) at periphery of nucleus. of an extra X chromatin in the somatic cells. For example: In a normal euploidy (46, XX) female, one Barr body/ cell; in Klinefelter syndrome (47, XXY), one Barr body/ cell; and people with a (47, XXX) karyotype have two Barr bodies/cell (Figure 9.17).

DNA Analysis It is helpful in tracing the suspects of a crime, settling disputed paternity cases, identifying victims of disasters, locating missing persons, etc. The principle involved is:21 • Deoxyribonucleic acid (DNA) molecules in a cell (nucleus) have ‘coding regions’ (genetic information for all biological traits/functions) and ‘non-coding regions’ (silent regions with codon sequences specific to a person).

II-96 • DNA profile. Most part of the DNA molecule has a ‘non-coding region’ which is unique, forming the basis for individualisation, except for monozygotic (identical) twins. Hence, it can be used as evidence to convict a suspect and free an innocent person. • DNA samples can be person-to-scene, scene-to-scene, or person-to-person matches. Samples obtained from crime scenes or suspects, from blood, hair, or body fluids, are analysed to develop a DNA profile which is compared against other profiles within DNA database. Different types and functions: 1. Autosomal DNA. Autosomal DNA (nuclear DNA) is present in 22 paired chromosomes, one inherited from the mother, and the other from the father. The ‘coding DNA’ has three distinct functions, i.e., genetic information (skin/hair colour, etc.), immunological, and structural, which depend on the base– pair sequences and sugar–phosphate backbone. 2. Mitochondrial DNA (mt-DNA). Mitochondrial DNA is a small circular chromosome inside the mitochondria that encodes 13 proteins/enzymes. Mitochondria and mt-DNA are exclusively received from the mother through the egg cell. Hence, it is used to determine the maternal lineage of a person. It is an ideal forensic tool for old, scanty, and environmentally challenged samples, where the nuclear DNA may have been damaged/lost. • DNA profiling/typing. DNA is extracted from a sample after cell lysis and is amplified using polymerase chain reaction (PCR). Depending on the case, specific commercially available DNA markers—short tandem repeats (STR)—are used for analysis. The combination of STRs constitutes a DNA profile. Each country decides which tools its laboratories will use to analyse the genetic markers. • DNA database. Created at the national level. INTERPOL has created a DNA database contributed by its 84 member countries. The police can submit a DNA profile from offenders, crime scenes, missing persons, and unidentified human remains, and INTERPOL provides the search result within minutes. – UMID database. The primary author-cumeditor of this book is working on a nationallevel project in collaboration with the AIIMS, New Delhi, to develop a nationwide DNA database in India for establishing the identity of unidentified or missing persons. The family member of a missing person may search our website, UMID (Unidentified Bodies and Missing Person Identification Portal and DNA Database), an online portal, and provide necessary DNA samples through the concerned police. After comparing the phenotype and genotype data of an unidentified dead body recovered by the police that’s registered at the UMID portal, the identity of the missing family member will be established or excluded. • Ancestry from DNA. Biogeographical ancestry information can be collected from the DNA database. Ancestry-informative single nucleotide polymorphisms (SNPs), short tandem repeats (STRs), variable

Medical Jurisprudence & Clinical Forensic Medicine

FIGURE 9.18  Inheritance pattern of mitochondrial DNA. Note the maternal lineage of m-DNA in each generation. number of tandem repeats (VNTRs), or even specific insertions/deletions (INDELS) have been shown to be accurate in pointing to the ancestry.14, 15 • Ideal DNA samples at autopsy. A  piece of air-dried femur shaft buried in rock salt is better than femoral blood or other tissues. Spleen is a DNA-rich specimen but not preferred due to rapid autolysis/decomposition. Dental pulp could be the best sample for DNA fingerprinting in decomposed or charred bodies. However, some prefer prostate and cervix tissue bits in the early decomposition period. • Single person—multiple DNA. A person’s blood sample may show DNA profile of another person or multiple DNA profiles under the following circumstances: – Recent blood transfusion. The DNA from white blood cells contaminate the recipient’s blood. Many studies show patients receiving large transfusions showed the presence of donor leukocytes for up to a year and a half. – Stem cell and bone marrow (BM) transplantation. – Common ancestry. People from a common ancestor (Gotra/Gothra) may share 5–25% of their DNA. People having common ancestry (shared DNA) have identity-by-descent (IBD) segments of DNA. And the rest of the DNA segments are different. – Identical twins. – Congenital chimerism (fusion of two zygotes). Two separate ova are fertilised by two sperms, giving rise to two zygotes which fuse and form two distinct cell lines in a single individual. • Precaution: It is better to exclude the history/occurrence of blood transfusion, BM/stem cell transplantation, and collect DNA samples from multiple sources besides blood, i.e., saliva, semen, buccal mucosa swab, hair, nail, etc (Figure 9.18).

Fingerprints • The study of fingerprints, known as dactylography, is an important forensic tool gifted by India to the world. In fact, for thousands of years, palm and fingerprints have

Establishing the Identity of the Individual been used as a signature and identification marks in revenue records, official letters, business contracts, etc. in India.11, 22 • Novelty of the fingerprint technique. The fingerprint plays a significant role in forensic investigations to confirm or disprove a person’s identity. The fingerprint technique is a universally accepted method for identification and is recommended by the INTERPOL. • Fingerprints are unique, and no two persons can have the same fingerprints, not even identical/monozygotic twins. • They do not change during the life of a person unless the basal layer of epidermis is destroyed. • Fingerprints do not change with age or other pathologies, except in high-voltage electrocution, leprosy, intentional damage to the skin, or being destroyed by plastic surgery. Hence, pupil and retinal scans are considered along with fingerprints in biometrics. Even superficial burns do not affect the fingerprints. • The shape, size, number, and pore characteristics of fingerprint patterns make each fingerprint unique. • One can be identified from a partial fingerprint by analysis of pore (minute sebaceous gland openings over the ridges) characteristics/distribution. • Uses: • Criminal identification systems—national fingerprint database, crime scenes, INTERPOL database, etc. • Biometric systems—Aadhaar, banks, smartphones, computers, etc. Automated technology developed for rapid scanning and storage of fingerprints. • Identification of missing persons. • Identification of mass disaster victims to hand over to their family. • Embryonic development of fingerprint. Skin is made of three primary layers: subcutaneous tissue (hypodermis), dermis, and epidermis (outermost). The epidermis consists of five layers, with stratum basalis being the innermost. The widely accepted hypothesis postulated on the development of fingerprint ridges during embryonic life is: • Due to the differential growth of stratum basalis and the constraints of the neighbouring layers, the stratum basalis layer suffers compressive stress. This results in buckling and formation of the primary ridges perpendicular to the direction of the force. • Cellular proliferation increases the height of the ridges, and the nervous system is also involved in the formation of ridges. • Fingerprint patterns. Fingerprints are produced by the microscopic skin ridge patterns present on the finger, palm, toe, and sole. Three primary patterns of fingerprints recognised are arch, loop, and whorl. These patterns have further subclasses too. Most fingerprint patterns have a core point, ridge, and delta. 1. Loops are the most common (60–70%) fingerprint pattern seen in the population. Subclasses are radial and ulnar loops. 2. Whorls are the next common (30–35%). Subclasses—plain, double loop, central pocket loop, and accidental whorls.

II-97 3. Arches are seen only in 5% of the population and are of two types: plain and tented arches. • Types of fingerprints at a crime scene. Usually, three forms of fingerprints present at a crime scene are: 1. Visible prints. These fingerprints are easily visible to the naked eye, viz. bloodstained fingerprints, prints from grease, dark oil, dirt, etc. These prints are generally photographed and may not require development; however, enhancement might be required. 2. Impressions or plastic prints. Fingerprints left on a moulded wet surface like muddy wall, wet soap bars, chewing gums, putty, butter, etc. are known as plastic prints. Here the prints are three-dimensional and do not require any development. 3. Latent fingerprints. These are invisible prints and require development followed by enhancement to make them visible. Waxy secretions from sweat and apocrine glands are a part of latent prints; hence, the development methods target visualising the compounds of this secretion, viz. physical visualisation techniques (powder dusting, magna brush, small particle reagent), chemical (silver nitrate, iodine fume, ninhydrin, cyanoacrylate ester), or special illumination (oblique lightning, alternative light, laser). • Exemplar fingerprint. Any collected fingerprint needs to be compared with a known fingerprint (called ‘exemplar’) to bring out a match/mismatch. An exemplar fingerprint is a representative print collected from known/suspected individuals and/or from a stored database. • Techniques for collecting fingerprints. Plain or flat or slap fingerprint is obtained when fingertips are placed flat in the scanner. A  digital scanner can record ridge details in fingertips. This can autogenerate a database. Rolled fingerprint is when the finger is rolled across the scanner from one side of the nail to the other side of the nail. The thumb is rolled towards the body, while the other fingers are rolled away from the body. There can be 100 or more minutiae in rolled fingerprints. This technique is best suited for comparing with latent prints from a crime scene. • Forged fingerprint. Fake fingerprints are made of silicon, glue, or latex. Here an individual will use or steal another person’s identity. The three ways of forging fingerprints are:5, 6 1. Obliteration. The fingerprint pattern is destroyed by abrading, cutting, or burning using flames or chemicals. Unless 1  mm thickness of skin, including the basal layer, is destroyed, the original ridges will grow back in months. Ten print search or searching for manually marked fingerprint characters or studying dermal papillary ridge patterns can be used in these cases to establish identity. 2. Distortion. Plastic surgery is performed to remove a portion of the friction ridge skin and transplant the same to another finger. Surgery can also be performed to distort the ridge pattern within the same finger too. Once a distorted print is spotted, an unaltered skin region can be used for identification. 3. Imitation. A large area of friction skin from the palm, toe, or sole is transplanted to fingertips. A collection

II-98 of fingerprints by rolling method helps in the detection of such prints. 4. Algorithms are being developed to detect altered fingerprints and then match the same to unaltered prints of an individual present in the database. Using multiple biometric traits (multibiometric) in the identity management system is also being adopted by national security agencies to combat the growing threat of identification trait alteration. • Fingerprint record maintenance. The Fingerprint Analysis and Criminal Tracking System (FACTS) is an Indian version of the Automated Fingerprint Identification System (AFIS). FACTS capture, encode, store, and match fingerprints. The Central Fingerprint Bureau maintains in India the fingerprints of interstate and international criminals under the aegis of the National Crime Records Bureau.22 • Fingerprint matching. The comparison of fingerprints happens on three levels; the results could be identification, exclusion, or inconclusive. Analysis, comparison, evaluation, and verification (ACE-V) are the standard method used by fingerprint experts for matching fingerprints. • Level 1. Pattern type, subcategory, and ridge count between the core and delta are considered. This level cannot establish identity but can narrow down the data and open the way for exclusion. • Level 2. The type and position of minutiae along the friction ridge are analysed at this level. Minutiae are bifurcations, ridge endings, and dots present along the ridges, and they are characteristic/unique to a person. This level is for individualisation and exclusion. • Level 3. The dimensions of friction ridge, minutiae features, edge shape, edge width, and pores (size, shape, and position) are examined. These features, though, are not always available but help reach a diagnosis if present.

Disaster Victim Identification (DVI) One of the primary objectives of autopsy in mass disasters is to identify the victims of a disaster. A mass disaster (MD) is a man-made or natural casualty. The Royal College of Pathologists defines mass disaster as an episode in which the number of fatali‑ ties exceeds that which can be dealt with using normal mortuary facilities. DVI is the defined method to identify victims of disasters. The INTERPOL (1984) Guide to Disaster Victim Identification is an internationally adopted standard DVI protocol with four steps to DVI.23 1. Scene examination for recovering all disaster victims, body parts, trace evidence, and victim’s belongings/ properties. 2. Post-mortem examination. The primary aim of PM examination is to collect data for identification. However, the cause and manner of death are also not ignored. Depending on the requirement, a temporary mortuary set-up is made to collect these forms of identification space work separately. Divide the team into two—antemortem (AM) and post-mortem (PM) teams—for collecting the respective data. The PM team will do the work. The AM team will compile the list of likely missing persons

Medical Jurisprudence & Clinical Forensic Medicine from available records/sources and collate their identification details. If someone is included on a national DNA and fingerprint database, it can be the finest comparable information. Methods commonly used to collect forensic evidence to identify the victim are:10, 21–23 • Fingerprint data. This is the most highly reliable data. But antemortem fingerprint records or databases must be available for matching. Smartphones, laptops, books, etc. used by the victim, if available, may be used to recover his AM fingerprint record. • Dental examination. Teeth provide the most reliable forms of identification as they are highly durable and resistant to burns, explosions, etc. Antemortem dental record is a prerequisite. The AM team will find out the address/phone numbers of all possible dentists and collect the latest teeth charts and radiographs from them for comparison. ‘Smile photos’ may be used to compare with PM dental data from a victim. • DNA profiling. A  costly, time-consuming, laborious method but does not need antemortem data. A direct comparison can be made between the victim’s and his family’s blood samples. DNA samples of the victims can be recovered from his toothbrush, shaving razor, hairbrush, comb, etc. if available. • Visual identification. Physical identification markers like clothing, appearance, tattoos, scars, surgical implants, etc. unique to the victim may help fix his identity. But this method has corroborative value and should not be considered alone in doubtful cases. 3. Collection of antemortem data. The AM team will collect the dental/medical records, fingerprints, and DNA data recovered from the database and victims’ homes or provided by family members. 4. Reconciliation of collected information.  Once the previous procedures are completed, the body will return to cold storage for future handover to the concerned family through the police. The forensic team of specialists compares and reconciles the PM and AM data to identify the victims (Figure 9.19).

Fixing Identity in Decomposed and from Skeletal Remains

The fingerprints can be retrieved from the degloved hand’s skin even in advanced decomposition cases. The degloved skin should be injected with liquid paraffin and left for cooling before taking fingerprint impressions. The fingerprint architecture remains intact in mummified bodies too but cannot be reproduced when the fingertips have hardened, shrivelled, and shrunken. Injecting liquid paraffin under the skin of finger pulp (soaked with glycerine for softening the skin) would be helpful. In completely charred or skeletonised bodies, the dental data or tooth pulp tissues for DNA analysis can be helpful.

Latest Developments in Forensic Identification 1. Forensic Phenotyping • Forensic DNA phenotyping is the process of predicting an organism’s phenotype using only genetic information collected from genotyping or DNA sequencing.

Establishing the Identity of the Individual

FIGURE 9.19  Protocol of disaster victim identification process. • This is also known as molecular photo-lifting, i.e., photocopying the look of an individual from his DNA sample. This technology makes probabilistic inferences regarding a person’s observable or external characteristics and/or biogeographic ancestry (phenotype) from his DNA traces for forensic purposes even in mutilated or grossly decomposed dead body. • The aim is to aid criminal investigations by helping identify unknown or suspected perpetrators from their body fluid or DNA samples. • This method is also used by the primary author-cumeditor of this book in his national-level UMID research project to establish the link between the unknown dead bodies and the missing persons. • Body features that can be predicted using DNA markers (DNA phenotyping): – Eye colour, hair colour, skin colour – Height – Facial feature – Baldness – Age of the person – Ancestry or racial origin 2. Forensics Biosensors a. Prostate-specific antigen (PSA 30). It is a glycoprotein secreted from the prostate and form the bulk of the semen. It can be a sensitive marker in vaginal fluid samples—a biological marker for detecting recent (24–48  hours) sexual intercourse or condom failure. b. Thermal analyser for deception detection (TAD). The latest automated lie detection technique.

II-99 • Novelty: Unlike the intrusive traditional lie detection method, this is an automated technique that neither leads to any interpretation bias nor deception by seasoned criminals. • Principle: Thermal imaging technology uses remote monitoring IR video recording to detect the changes in the radiated heat (due to stress) from the face (forehead, inner canthi, and nostril area) of the suspect. • The suspect is often unaware that his skin temperature recording has started remotely using infrared (ID) sensors. • It remotely analyses a suspect’s periorbital and nostril areas during interrogation for changes in skin temperature, and the data is converted to a relative blood-flow velocity. • At the same time, the interrogated person’s respiration pattern is deduced from the skin temperature differences (changes) around the nostrils. • Advantages: Some seasoned criminals can deceive the traditional lie detection techniques, but that may be unlikely in TAD. c. Electronic nose (e-Nose) is a smartphone-based device that identifies the specific odour of samples. It can identify the components of a particular odour and analyse the chemical constituents of that substance. An electronic nose consists of an array of electronic sensors, just like an olfactory neural network. It has broader utility in forensic toxicology, criminal identification, and sample processing at a crime scene (vomitus, left out food or drinks, cigarette buts, etc.) 3. Stable Isotope Analysis (SIA) • Stable isotopes are hydrogen, carbon, oxygen, nitrogen, and sulphur, which have widespread applicability in the natural sciences. This approach is now used to fix the identity of unidentified human remains. • This method can predict the geographic region of origin and residence patterns based on bone, teeth, hair, and nail analyses for stable isotopes. • Stable isotope analysis (SIA) is the process of identification of isotopic signature in bone, food material, or any organic or inorganic material using a magnetic sector mass spectrometer (MSMS). It finds out the isotope ratio analysis through thermal ionisation. 4. Neutron Activation Analysis (NAA) • A sensitive and specific method for tracing the identity of a suspect. This method can identify even from an old, scanty sample and detects abnormal amounts of metallic elements not only in hair, nail bone, or teeth, even in a highly decomposed, body also from drugs, soil, glass particles, gunshot residues, paints, etc. • It is used for determining the concentrations of any element in question, viz. the level of carbon or nitrogen in organic materials, antimony or copper of firearm samples, arsenic or lead of toxin traces, etc. • Principle: NAA is a nuclear process which detects exclusively the nucleus of the elements in the sample instead of its chemical form. Note that the levels of various trace elements differ from person to person, i.e., the elements

II-100 in various samples, like hair, nail, saliva, etc., remain uniform in an individual. • Method: The processed sample (like bone or hair) is bombarded with neutrons in a cyclotron, where the nuclei of the atoms capture neutrons, leading to a certain level of radioactivity. The resultant radioactivity or the emission spectrum (specific for that sample) is measured using a computer program. This emission spectrum depends upon the sample mineral contents that vary from person to person. Hence, NAA is individualistic in nature. • Limitations: It needs a comparison sample to compare with the test sample. A high-cost and cumbersome technique. 5. Forensic Immunochromatography • Body fluid identification. Rapidly detect substances, drugs, medications, etc. from blood and bodily fluids in up to five body fluids simultaneously. • Smartphone-based kits are available for the portability and rapidity of this technique. The biosensors use chromatographic principles that can detect the desired results within minutes for rapid and portable identification of forensic saliva samples.

Medical Jurisprudence & Clinical Forensic Medicine 6. Latest Trends in Cephalometric Identification Computer programs, for example, FORDISC and Ancestree, are now used to determine ancestry. It works on a machine learning ensemble algorithm to establish the ancestry of the skull.6, 7 Here, cranial measurements are collected using a calliper entered into this program console to get the software predicted ancestry with statistics.7 7. Forensic Taphonomy • Etymology: Greek grave (taphos) and laws (nomos), i.e., laws of burial. It is the scientific study of post-mortem processes. Taphonomy was first applied in palaeontology for a structured approach to explain the history of a set of human remains, termed the ‘death assemblage’. • Forensic taphonomy is an interdisciplinary study that deals with interpretation of post-mortem changes of human remains in nature. It studies post-mortem changes from the time of death until its discovery. • A dead body may encounter several natural or manmade actions, like shifting the body, scavenging, floating in a flowing river, etc. This can be analysed by a forensic taphonomist. • Taphonomic assessment can provide:

FIGURE 9.20  Process of identification in forensic genealogy (without direct DNA samples of a suspect).

Establishing the Identity of the Individual • Valuable information about the death event, transport of the victim’s body by a perpetrator or by natural forces, and the timing and nature of events after death. • Approximate death interval. • It can differentiate injuries from post-mortem changes. • Provides an organised approach for post-mortem data collection during the recovery of body remains. • Information to understand the post-mortem environments and their interaction with the human body. • Bone modification by scavenger species, butchering modification, etc. 8. Forensic Genealogy Genealogy is the study of the family tree, i.e., the pedigree or line of descent of a specific person from ancestors. Genealogy practice uses genetic information (DNA profiles from public database) to identify missing persons, victims, or suspects in criminal cases. • Principle: Genealogy is based on the principle of common ancestry and shared DNA. When two people share DNA due to common ancestry/family, a DNA database search can find out the identity-by-descent (IBD) segments of their DNA. This way, if the DNA from the crime scene cannot be matched directly due to lack of any suspect, the closely matched IBD segments of exemplar DNA can be traced online from a DNA database, thereby zeroing down on the actual culprit. This is possible when multiple peoples share common ancestors and anyone of them has their DNA profile in the database. • Procedure: Compare fingerprint and DNA evidence from the crime scene with publicly available DNA/ fingerprint information. Forensic genealogists take a bottom-up approach to generate the pedigree/family tree and find as much information as possible about the suspect and to track a suspect by assessing fingerprints or any DNA evidence from the crime scene (see Figures 9.19 and 9.20).

References

1. Gravlee, C.C., Bernard, H., Russell, L., & William, R., Heredity, environment, and cranial form: A reanalysis of Boas’s immigrant data (PDF), American Anthropologist, 2003, 105(1): 125–138. https://doi.org/10.1525/aa.2003.105.1.125.

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2. Das, R.K., & Mohanty, S., “The study of cephalic index in Eastern Odisha population.” The Free Library, April 1, 2019. www.thefreelibrary.com/the study of cephalic index in eastern odisha population.-a0584978390 (Accessed July 20 2022). 3. Rathnakar, P., & Bannur, B.M., Comparative study of cephalic index in north indian and south indian students. National Journal of Clinical Anatomy, 2015, 4(3): 134–138. 4. Yagain, V., Pai, S., Kalthur, S., Chethan, P., & Hemalatha, I., Study of cephalic index in Indian students. International Journal of Morphology, 2012, 30: 125–129. 5. Kiran, V.Y., Pai, S.R., Kalthur, S.G.,  & Chethan, H.I., Study of cephalic index in Indian students. International Journal of Morphology, 2012, 30(1): 125–129. 6. Mora, S., & Gilsanz, V., Pubertal growth of the male skeleton. Osteoporosis in Men, 2010: 95–103. https://doi.org/10.1016/B978-0-12-374602-3.00008-0 7. Krishan, K., Sidhu, M.C., Kanchan, T., Menezes, R.G., & Sen, J., Diurnal variation in Stature—Is it more in children or adults? Bioscience Hypotheses, 2009, 2(3): 174–175. https://doi.org/10.1016/J.BIHY.2009.02.008 8. Attallah, N.L.,  & Marshal, W.A., Estimation of chronological age from different body segments in boys and girls aged 4–19 years, using anthropometric and photogrammetric techniques. Medicine, Science Law, 1989, 29(2): 147–155. 9. Ozaslan, A., Iscan, M.Y., Ozaslan, I., Tugcu, H., & Koc, S., Estimation of stature from body parts. Forensic Science International, 2003, 132: 40–45 10. Scott, G.R., Pilloud, M.A., Navega, D., Coelho, J.O., Cunha, E., & Irish, J.D., rASUDAS: A new web-based application for estimating ancestry from tooth morphology. Forensic Anthropology, 2018, 1(1): 18–31. 11. Lee, H.,  & Gaensslen, R., “Methods of latent fingerprint development.” In Advances in Fingerprint Technology (2nd Ed), H. Lee & R. Gaensslen (eds.), CRC Press, 2001. 12. Astekar, M., Saawarn, S., Ramesh, G.,  & Saawarn, N., Maintaining dental records: Are we ready for forensic needs? Journal of Forensic Dental Sciences, 2011, 3(2): 52. 13. Manica, S., A new website to aid the interpretation of ante-mortem dental records. Journal of Forensic Odontostomatol. 2014, 32(1): 1. www.internationaldentalcharts. org. 14. Schmeling, A., Dettmeyer, R., Rudolf, E., Vieth, V., & Geserick, G., Forensic age estimation: Methods, certainty, and the law. Dtsch Arztebl Int, 2016, 113: 44. 15. Maillart, C., Telmon, N., Rissech, C., Malgosa, A., & Rouge, D., The determination of male adult age at death by central and posterior coxal analysis–A preliminary study—PubMed. Journal of Forensic Sciences, 2004, 49: 208–214. 16. Hartnett, L., & Kristen, M., “Analysis of age-at-death estimation using data from a new, modern autopsy sample-Part I: Pubic bone.” Journal of Forensic Sciences, 2010, 55(5): 1145–1155. https://doi.org/10.1111/j.1556-4029.2010.01399.x. 17. Brooks, S., & Suchey, J.M., Skeletal age determination based on the Os Pubis: A comparison of the Acsádi-Nemeskéri and Suchey-Brooks methods.  Human Evolution, 1990, 5(3): 227–238. https://doi.org/10.1007/bf02437238. 18. Hartnett, K.M., Analysis of age-at-death estimation using data from a new, modern autopsy sample—Part I: Pubic bone: Age-at-death estimation using the pubic bone.  Journal of Forensic Sciences, 2010,  55(5): 1145–1151. https://doi. org/10.1111/j.1556-4029.2010.01399.x. 19. Maillart, C., Telmon, N., Rissech, C., Malgosa, A., & Rouge, D., The determination of male adult age at death by central and posterior coxal analysis—A preliminary study—PubMed. Journal of Forensic Sciences, 2004, 49: 208–214. 20. Harper, P.S., Mary Lyon and the hypothesis of random X chromosome inactivation.  Human Genetics, 2011,  130(2): 169–174. https://doi.org/10.1007/ s00439-011-1013-x. 21. Gill, P., “National DNA databases, strength of evidence and error rates.” In Misleading DNA Evidence, Elsevier, 2014, pp. 81–129. 22. Central Finger Print Bureau | National Crime Records Bureau [Internet]. [cited 2021 Nov 7]. https://ncrb.gov.in/en/central-finger-print-bureau. 23. “Disaster victim identification (DVI).” Interpol.Int., n.d. https://www.interpol. int/en/How-we-work/Forensics/Disaster-Victim-Identification-DVI (Accessed March 3rd, 2022).

CHAPTER 10 MEDICOLEGAL ASPECTS OF MECHANICAL WOUNDS Ambika Prasad Patra, Sunil Subramanyam and Joshima Janardhanan

Introduction Potentially, all wounded cases have legal and ethical ramifications. A doctor may or may not be able to treat the wounds due to his speciality limitations, but the doctor is duty-bound, irrespective of his speciality, to examine the wounded and issue a medicolegal report. Hence, this chapter primarily discusses the legal aspects of injuries, the role of a doctor in dealing with the injured, and the basic pathology of wounds. In addition, another important role of the doctor— examination of the weapons of offence—is also discussed here. The court may summon a doctor for deposing evidence concerning his wound certificate (or any such medicolegal reports). This chapter is intended to arm you with the ‘dos and don’ts’ while dealing with wounded cases, issuing wound certificates, and during court appearances.

Definitions and Classification The terms ‘injury’ and ‘wound’ have been used synonymously in general but are not the same scientifically. Remember, all wounds can be an ‘injury’, but not all injuries can be a ‘wound’. Hence, one should carefully understand the basic differences between these two words. Definitions1–3 1. Injury. It is a legal term which, under Section 44 of the Indian Penal Code (IPC), is defined as any harm what‑ ever illegally caused to any person, in body, mind, reputa‑ tion, or property. Explanation • The primary requirement to prove the ‘injury’—the act must have been done ‘illegally’, i.e., the act was done without consent and not with goodwill or intention. • Hence, all injuries made to a person with good intent, like surgery, injecting medicines, doing perirectal examinations, etc., are excluded from the definition by the word ‘illegally’. • The nature of the injury may range from physical to mental to property loss. For example, slapping or use of abusive words or stealing/cheating or even posting a defamatory post on social media against a person without his consent will amount to injury. 2. Wound. The terms ‘wound’ and ‘injury’ are widely used synonymously even though technically they are different from each other. Unlike injury, wound is a medical term and is defined as the breach in the continuity of the skin or mucosa due to external violence or some mechanical agency rather than due to disease. Explanation • Here, to indicate a wound, the division of tissue continuity or rupture of the integument or mucous membrane must be due to mechanical forces and undoubtedly not due to any disease process. II-102

• A light punch over the abdomen by a friend to another friend made out of jest does not lead to splenic rupture in the ordinary course of nature. However, if the spleen ruptures in such a case due to an enlarged, fragile malarial spleen, what will be the fate? Does it amount to an injury? Should the splenic rupture be levelled as a wound? • Unlike the definition of injury, wound does not encompass ‘illegal’ or ‘intention of good or bad faith’. Hence, a wound may range from a simple scratch to surgery to gunshot wound. In the previously cited case, neither the ‘ill intention’ of the friend is apparent nor the splenic rupture is due to the punch alone. Had the spleen not been fragile, such light punch would not have caused the rupture. Wound Classification Wound classification has been made with the following objectives: • • • •

Be a guide for proper diagnosis and interpretation Ensure widely accepted, uniform wound documentation Plan a justified wound management Derive prognostic information

Three Major Classes of Injuries 1. Aetiological—cause or genesis of the injuries. 2. Legal—based on the penal code definitions, i.e., simple or grievous injuries. 3. Medicolegal—based on the manner and time of causation. Aetiological Classification of Wounds

This classification is based on the cause of injury. Individual wounds will be dealt in detail in their respective chapters of the Forensic Pathology and Toxicology textbook series Charts 10.1–10.4. Legal Classification of Wounds This is based on the graveness of wounds and their associated legal implications. Indian law classifies and recognises wounds as per the following: 1. Hurt (Sec. 319 IPC). 2. Grievous hurt (Sec. 320 IPC). a. Hurt. Section  319 IPC defines hurt as, whoever causes bodily pain, disease, or infirmity to any per‑ son is said to cause hurt. In simple terms, the physical component of ‘injury’ is hurt. It excludes natural diseases or disorders. b. Grievous hurt. This includes specific forms or degrees of bodily pain/infirmity that can affect an individual significantly in the ordinary course of nature. Hence, Section 320 IPC defines these physical infirmities under the following eight clauses: i. Emasculation ii. Permanent privation of the sight of either eye iii. Permanent privation of the hearing of either ear iv. Privation of any member or joint DOI: 10.1201/9781003139126-12

Medicolegal Aspects of Mechanical Wounds

II-103 Mechanical

Acute wounds

Thermal

Chemical Wounds Venous/vascular ulcers

Diabetic ulcers Chronic wounds Pressure ulcers

Ischemic wounds

CHART 10.1  Classification of injuries based on the causes of wound (aetiology).

Mechanical injuries

Chemical injuries

Thermal injuries Blunt force

Cold Heat

Sharp force

Acidst

Alkalies

Electricity and Lightning

Firearms

Radiation

CHART 10.2  Classification of acute wounds.

v. Destruction or permanent impairing of the powers of any member or joint vi. Permanent disfiguration of the head or face vii. Fracture or dislocation of a bone or tooth viii. Any hurt which endangers life or which causes the sufferer to be during the space of 20 days in severe bodily pain or be unable to follow his ordinary pursuits.

Explanations: Consider the following tricky situations for your interpretation and answer whether any one or more of the previous eight clauses of grievous hurt shall be applicable or not.

1. Caused corneal abrasion, but the accused donated his cornea for treatment. Applicable, clauses i, iv, v, and vi. Because reversing corneal abrasion by treatment does



not fall under the ambit of the definition, viz. the loss of eyesight would have been permanent if it were not treated. 2. Chipping fracture of the edge of incisor tooth without complete fracture. Applicable, clauses v, vi, and vii. Because the definition does not specify any amount of fracture. 3. Made scratches on face. Not applicable. To apply clause vi, disfigurements should be permanent. Scratches may heal without any scars. 4. Caused shoulder dislocation, but the accused bear all treatment cost/treated the dislocation. Applicable, clauses i, v, and vii. See explanation (a). 5. Caused a person severe bodily pain, to be unable to follow his daily pursuits, but the victim was discharged on the 19th day from the hospital. Mere hospital discharge on the 19th day can’t only be a ground for ineligibility

Medical Jurisprudence & Clinical Forensic Medicine

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MECHANICAL INJURIES

Firearms

Sharp force

Blunt force

Abrasions

Rifled firearm injuries

Incised injuries

Contusions Chop injuries

Lacerations

Fractures and dislocations

Shotgun firearm injuries

Stab injuries Blast injuries

CHART 10.3  Classification of mechanical wounds. THERMAL INJURIES

Cold

Electricity

Heat

Frost bite

Burns

Trench foot

Scalds

Radiation

Low voltage electrical injury

High voltage electrical injury Immersion foot Lightning injuries

CHART 10.4  Classification of thermal injuries. for clause viii. Hence, the applicability will depend on whether the victim is able to prove his suffering continued beyond his hospital discharge. Note: Some authors use terminologies like simple injury and dangerous injury, although these terms are not codified in the Indian Penal Code. However, these terminologies are associated with some of the judgements on a case-to-case basis. Simple in‑ juries are those which are not grievous. Usually, simple injury and hurt are used synonymously. This is used as a counterpart of grievous wounds in ‘wound certificates’. Medicolegal Classification of Wounds

This is based on the manner of occurrence of the wounds, i.e., deliberate harm, self-harm, or accident. • • • • •

Deliberate harm: homicidal injuries or assault Deliberate self-harm: suicidal injuries Accidental injuries Fabricated or self-inflicted injuries Defence injuries

• Therapeutic injuries • Post-mortem wounds

Homicidal Wounds

Usually, sharp-weapon wounds (incised, stabbed, firearm) and heavy blunt force wounds (gross laceration, chops) indicate deliberate harm. But it can involve any type of injury, ranging from abrasions (cornea) up to burns and snake envenomation. • If inflicted upon a conscious person with an intent to disfigure, wound, or kill, incised wounds are usually found on accessible and vulnerable parts of the body, i.e., the head, face, neck, etc. • Attempts to ward off an attack by the victim produce defence wounds on his hands and arms. • The main points that differentiate homicidal attacks from others are irregularity of direction and site with involvement of the face and defence wounds. • Irregular superimposed incised wounds in the same or random directions without defence wounds may

Medicolegal Aspects of Mechanical Wounds

II-105 • Stabbing due to grasping the knife, when the type of injury will depend upon whether the weapon is single- or double-edged. In the former, there will be one line of cuts sited according to the position of the weapon’s edge, while in the latter, there will be an opposing second line. • They are usually situated on the palm and the opposite bends of the fingers or thumb. Gripping the knife loosens skin tension, causing the cuts to be irregular and ragged. They may be duplicated by the thrust and withdrawal of the weapon. • Stabbing due to warding off the attack, either with the palm or back of the hand, which will result in cuts on the most prominent parts. • With slashing attacks, the victim may attempt to grasp the weapon, but more commonly he holds up the hand or forearm, and as the weapon is usually very sharp, the wounds may be extremely severe (Figures 10.2 and 10.3).

FIGURE 10.1  Typical homicidal wounds. Note the irregular and random pattern of wounds pathognomonic of homicidal intent (assault). Top: involving head, neck, and face. Bottom: randomly located cut wounds and defence cut on the hand. most likely be homicidal and indicates the victim was unconscious (carbon monoxide, alcohol, etc.) or sleeping at the time of the attack. Absence of the defence wounds may indicate a surprise attack too (Figure 10.1). • Homicide wounds involve the clothing of the victim. Sharp wounds on bare skin in a clothed victim may likely be due to suicide attempt (Figure 10.1). Defence Wounds

Defence wounds are the result of the immediate and instinctive reaction of the victim to save himself, either by raising the arm to ward off the attack or grasping the weapon. Pathognomonic of homicidal attack in conscious person. This helps in differentiating between homicide and suicide. The absence of defence wounds does not rule out a homicidal attack, for it is possible for the victim to be incapable of defence for a variety of reasons, including surprise or loss of consciousness due to alcohol or concussion. In addition, mechanical factors may play a part, such as hands in the pockets or coat sleeves partly off.

FIGURE 10.2  Typical defence cut (left) and stab wounds (right). Not necessarily, defence wounds involve hands or grips only (bottom). Multiple weapons by three assaulters were involved.

Types 1. Defence cuts. If the weapon is sharp, the victim may be confronted with stabbing, slashing, or both. It usually involves hands but may involve the entire extremity (Figure 10.2). 2. Defence blunt wounds. If the weapon is blunt, there will be bruises on the forearm or back of the hands, which may show some characteristic peculiar to the weapon, such as the screw thread of a piece of piping. 3. Defence stab wounds. In cases of stabbing, the following types are encountered:

FIGURE 10.3  Typical defence chop wound caused by a heavy sharp weapon (wide sickle).

II-106 Suicidal Wounds • These are usually incised wounds and sited at points considered most vulnerable by an ‘ordinary person’, such as neck (carotid artery), fronts of wrists (radial artery), or, occasionally and usually, by those with medical knowledge, groins (femoral artery). • They are usually multiple, superimposed, parallel, and of varying depth (tentative or hesitation cuts). If the right hand is used, the direction will be from left to right, the depth being greater on the left side and trailing off to the right and downwards, for purely mechanical reasons. • Too much emphasis, however, must not be placed on information as to whether the person is left- or righthanded, as many people under such circumstances are ambidextrous and on occasion both hands may be used. The weapon may still be grasped in hand by a cadaveric spasm. • A masochistic (enjoying misery) person may stand in front of the mirror to assist himself in the slashing operation. Most often, it looks like a suicide occurrence at its outset. The traditional theory of suicide, standing in front of the mirror for better accuracy, is not entirely accepted. • Stab wounds are usually homicidal and may involve the entire or lower abdomen or chest. It may be randomly present anywhere on the body. • Suicidal stab wounds are rare and unusual, unless the victim is a frenzy, psychotic, or alcoholic freak. Harakiri, a suicidal stabbing method using a long sword by ancient (defeated) warriors, is rare now. Suicidal stab wound locations may vary with the type of weapon. If a small kitchen knife is used for suicide, it may involve the lower abdomen or upper chest (Figure  10.4). Repeated penetration through the same wound is usually in favour of suicide. It is unlikely for a suicider to stab his chest using a large weapon/object. • Suicidal stabbing is usually associated with impact against the bare skin rather than through clothing. • An irregular or random arrangement of wounds is against suicide, unless a lunatic victim, and defence wounds do not occur in suicidal stabbing (Figures 10.4 and 10.5).

FIGURE 10.4 Stab wounds are usually homicidal. A  19-year-old student, under the influence of alcohol, stabbed on his chest with a broken beer bottle. Note the typical suicidal stabs on the upper chest (circle). Internal mammary artery ligation surgery (arrow) was done to save him. Note the probe within the severed internal mammary artery.

Medical Jurisprudence & Clinical Forensic Medicine Accidental Wounds • Accidental wounds are mostly abrasions, contusions, and lacerations. However, sharp cuts or penetrative injuries can be accidental too. Such injuries usually occur from falling upon a sharp edge, thorn prick, or impact from a shattered object/glass. Another type of accidental cut is that sustained in transport accidents. Sometimes, such injuries are confused with homicidal injuries, especially in the dead (fall from a height). • Conversely, homicidal injuries (blown away by a car) may mimic a traffic accident. It is a matter for the court to determine the intent of such injuries. The interpretation of such wounds must be based on experience and surrounding observations. • Hanging and stabbing are usually considered suicide and homicide manners, respectively. However, multiple ligature marks around the neck are homicidal. However, it may occur accidentally in mentally ill/challenged persons (Figure 10.5) or in children while playing.

Fabricated or Self-Inflicted Wounds

Fabricated, fictitious, forged, or invented wounds are usually superficial injuries mostly produced by a person on his own body (self-inflicted) or by the assistance of another person (assisted wounds). Example: In movies, usually seen is a fellow police firing at the edge of the arm of other police after encounter killing, which is a good example of assisted wounds (Figure 10.6). Characteristics • Fabricated wounds are usually superficial (cuts, burns, bruises, etc.), single, or multiple (parallelly placed) wounds having equal depth along the entire length. Mostly, the clothing is not cut or damaged, except for bloodstains. The history does not corroborate with the injuries. • Location: The wounds are usually located over the accessible, exposed parts of the body (head, extremities, back of the body, etc.). – Painful and sensitive areas, i.e., neck, eyes, teeth, lips, etc., are usually spared.

FIGURE 10.5  Note the multiple rounds of ligature and ligature marks, raising suspicion of homicide. But in this case, a mentally ill, frenzied patient was found suspended by the neck from the psychiatric ward staircase railing. Note that the ligature is positioned above the thyroid prominence level with protruding tongue—a sign of suicidal hanging due to upward compression of the hyoid bone.

Medicolegal Aspects of Mechanical Wounds

FIGURE 10.6  Fabricated wound (artificial bruise) using juice/alkaloid of cashew nutshell (marking nut). The bruise was made over a pre-existing infected wound.



–

However, often it may be present in concealed areas, like genitalia/private parts in women and children. These areas may be soiled with starch to mimic semen. – Rarely, a pre-existing minor laceration, stab, or ulcerated wound may be further mutilated with fabricated motives. • Direction: The direction of self-inflicted wounds should corroborate with the handedness of the wounded. For example, a right-handed person may have a cut on his left arm’s outer aspect obliquely in the above-to-downward direction. The tail of the cut should point towards the person’s right hand. • Assisted wounds. Any of the previously mentioned may not be seen with ‘assisted wounds’, except in the superficial nature of injuries on accessible parts of the body with history mismatching the injury pattern. • The motive is to boil a serious issue out of a simple wound. The reasons vary—revenge, slandering reputation, malicious gain, thefts/robbery, sympathy seeking, as a part of paranoiac mental illness, etc (Figure 10.6).

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FIGURE 10.7  Typical post-mortem chop wounds in a dismembered and disfigured body of a 19-year-old Muslim girl who was missing for three days. Some unidentified, dismembered body parts were found in garbage bins at different parts of the city by the police. All bags were produced for identification. Anatomical arrangement of the body parts matched the missing girl’s identity. Accused (father) statement: she eloped with a Hindu boy for love marriage, and the irked parents’ killed her after she returned home six months later. The accused chopped off her body parts into smaller pieces after strangulation, and her face was disfigured to destroy her identity and prevent detection. The dismembered body parts were thrown at different parts of the city. Note the typical pale-pink wound margins without contusion or haemorrhage (vital reaction). [Source: Dr Anand P. Rayamane, Mysore Medical College and Research Institute, Government of Karnataka, Mysore, India.]

Post-Mortem Incised Wounds and Mutilation Post-mortem mutilation and dismembering of the body are usually a part of destroying the victim’s identity and/or for convenient transport. In most cases, the mutilation is performed after death (commonly from strangulation) and may involve the removal of certain parts, such as the breasts and head, with incised wounds of other parts of the body and genitalia (Figure  10.7). • These wounds may be associated with sadistic murderers. These are usually associated with a sexual basis, the mutilation being part of the sexual satisfaction; hence, an absence of sexual assault per se is a feature (Figure 10.7).

Therapeutic wounds These are injection marks (puncture wounds), surgical incisions (tracheostomy), stabs (pleural/peritoneal drainage), etc. (Figure  10.8). These should be mentioned as surgical wounds or sutured wounds in reports after confirmation. Example: A tracheostomy wound of 2 cm long was found in situ (Figure 10.8).

FIGURE 10.8  Right: Note multiple punctured marks on the right side of the neck, suggestive of central jugular venous lines. Left: Tracheostomy wound in situ. Bottom: A stab wound on chest parallel to the fifth intercostal space, suggestive of central jugular venous line surgical (pleural drainage, sutures cut opened) wound. Note the marks of surgical adhesives around the wound.

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Pathology of Wounds2–9 Various types of mechanical forces may act on the human body. The body counters these forces by virtue of either tissue elasticity and/or the rigidity of the skeletal framework. However, when the force exerted exceeds the limits of tissue elasticity, it results in a breach in the continuity of the tissue, i.e., a wound.

Wound Factors

Wounds are influenced by the following factors: the amount of force delivered, duration of impact, nature of the target tissue, nature of the weapon (heavy or light, sharp or blunt), and the body surface area over which the force is delivered. • Mass and velocity. – Biomechanics of traumatic injuries depend on the formula kinetic energy = 1/2 mass × velocity. – This means that the intensity of force applied is directly proportional to the weapon mass and the square of the impact velocity. – The kinetic energy produced from the relative movement of a weapon and/or body is transferred to the underlying tissues, resulting in injury. Example: Injury from a car moving at 80 km/hr speed is markedly more severe than that caused by the same car at 10 km/hr. • Impact. Determined by the force applied through the surface area of the weapon. – A wooden rod can cause more laceration of the tissues than a wooden plank if applied with the same force because the impact is directly proportional to the force and inversely proportional to the surface area of the weapon. • Impact duration. The duration of energy transfer occurs between the weapon/surface and the tissues. Severe injuries are produced if the impact duration is sudden. Damage can be reduced by delaying the impact. This is the principle used in car seat belts, which delay the impact time by stretching the belt fabric slower and reducing energy transfer time. • Amount of force applied by the weapon. Depends on the weapon mass, the speed, and the direction of impact, i.e., the kinetic energy.

• Direction of impact. A weapon with a tangential impact can cause a glancing blow due to the transfer of only a part of kinetic energy compared to the damage caused by a perpendicular blow. – Wounds can be caused by compression, traction, torsion, or shear forces. The damage severity depends on the target tissue nature. For instance, a violent compression may result in the rupture of the liver or intestine but may not cause significant damage to muscular body parts.

Wound Age Estimation5, 6 The age of a wound is essential for police investigation, court trial, and criminal responsibility, especially when the time of injury/murder is unknown. Hence, wound age estimation is an essential medicolegal service rendered by the clinical forensic medicine unit and, in fatal cases, by the autopsy surgeon. Wound age is determined by morphological examination (colour, appearance, wound healing stage, etc.) and histopathological analysis of the wounds (Figure 10.9).

Wound Healing1, 4

Wound healing is a complex yet well-defined order of physiological process, i.e., inflammation, proliferation, and maturation within and around the wound. The wound healing involves different phases of cellular and biochemical changes within the wound for tissue repair. 1. Injury classically heals by either of the following methods: a. Healing by primary intention b. Healing by secondary intention 2. Clean, uninfected wounds heal by primary intention. Wound healing happens in four stages: a. Stage of haemostasis b. Stage of inflammation c. Stage of proliferation d. Stage of tissue remodelling Many factors may influence wound healing, for example, body constitution, nutrition, tissue type, contaminations, etc. Simple

FIGURE 10.9  Histochemical changes within antemortem wounds w.r.t. time of injury.

Medicolegal Aspects of Mechanical Wounds

II-109 • After 24 hours. Dark, dried scab. The proliferation of the vascular endothelium and connective tissue cells. • After 36–48 hours. The scab starts falling, leaving a pinkish-red base with granulation tissues. Capillary network complete; fibroblasts running at right angles to the vessels. • After 3–5 days. The scab falls off except at margins. Collagen deposits at maximum. Capillary obliteration occurs. Abundant collagen tissue at the centre/wound base. • After 2 weeks. Wound healing complete. Scab falls off, leaving a whitish, pale base without bleeding points (Figure 10.10).

Histopathology of Wounds5–9 FIGURE 10.10 Different stages of wound (abrasion) healing: (a) 2  hours—red bleeding grazed abrasion; (b) 6  hours—brown, red moist scab without bleeding; (c) 2nd day—dark-brown dried scab; (d) 5th day—gradually receding scab leaving behind granulation tissues from wound margin and over base; (e) 8th day—scab fallen leaving behind raw reddish base; (f) 12th day—scab fallen off, leaving whitish base. cut wounds heal by primary intention, which follows a certain time interval. It may or may not lead to scarring. But gaping wounds, large tissue defects, and infected wounds heal by secondary intention and unpredictable wound healing time. Here, the stages of wound repair remain the same as the primary intention; more time is required for complete healing and healing with a large scar (Figure 10.10). Typically, abrasions or many simple wounds heal by first intention. It progresses from periphery to centre. Age of wounds can be determined by colour change and histologically. The changes that occur in an uncomplicated wound in life can be summarised as follows: • Fresh. Bright red, with bleeding points. • 12–24  hours. Brownish red. Edges red and swollen; adherent with blood and lymph, with leucocytic infiltration. Lymph and blood dry up, leaving a bright-red scab.

The predictive accuracy of histopathological findings and immunohistochemical markers of wounds like abrasions, contusions, etc. shows reasonable predictive accuracy for the precise dating of the age of wounds. The following immunohistochemical markers (from granulocytes, macrophages, fibroblasts, and connective tissues) of the skin or other organs are used for determining wound age: • Time-dependent changes in the pro-inflammatory cytokine levels, like interleukin-1β, interleukin-6, tumour necrosis factor-α, etc., in human dermal wounds. • Time-dependent changes in the wound margin tissue levels of fibronectin, IL-8, MCP-1, MIP-1α, CD14, CD32B, CD68. • Fibronectin matrix deposition and fibronectin receptor expression in healing in skin wounds. • Time-dependent pericellular expression of collagen type IV, laminin, and heparan sulphate proteoglycan in myofibroblasts. • Time-dependent rearrangement of the epithelial basement membrane collagen (types I, IV, VI, VII) in skin wounds. Principles • Usually, IHC studies are done using antibodies against CD15, CD45, IL-15, tryptase, glycophorin-A MMPs

TABLE 10.1  Wound Healing by First Intention Time-Dependent Immunohistochemical Changes within Wound Duration of Wound Within 20 minutes Within 1 hour 1–2 hours 2–4 hours 4–6 hours 6–8 hours 12–16 hours 16–32 hours 32–72 hours 3–4 days 4–10 days Beyond 10 days

Immunohistochemical Changes Fresh haemorrhage with tissue damage. Infiltration of neutrophils and, granulocytes along the wound margin. Further increase in polymorphonuclear (PMN) cell infiltration, interstitial oedema, mast cell degranulation, and release of histamine, serotonin, etc. Appearance of mononuclear cells/monocytes. Fibrin deposition may be started along the wound margin. Signs of reactive hyperaemia with increasing fibrin depostion along the wound margin. Appearance of tissue macrophages, necrobiosis, with increased phagocytosis by the PMNs. Rising numbers of macrophages and mononuclear cells, but still, leucocytic infiltration dominates. In smaller wounds, epithelial regeneration is seen along the wound margins. Angioneogenesis (new vessels) starts with increased fibroblasts and fibrocyte activity and collagen deposition along the wound margins. Epidermal cells spread across adjoining sides of the wound, forming a scab. Mononuclear cells predominate with declining PMNs. Increased macrophage, histiocyte, and fibroblast activity. Gradual disappearance of PMNs. Further increase in collagen deposition and granulation tissue formation. Appearance of neovascularisation. Deposition of dens collagen and spreading of granulation tissue formation. At this stage if the wound get infected, will lead to non-healing and disturbed wound healing stages. Gradual decline in cellular enzymatic activity and rising deposition of ground substance forming dens collagen tissue and scar. At first soft scar is formed. Later it transforms into a dense scar rich in collagen with reduced vascularisation.

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•

•

•

•

(endopeptidases involved in degrading extracellular matrix proteins: MMP-9 and MMP-2), etc. Histopathological staining using immunohistochemical markers (antibody) for the specific tissue (nuclear or cytoplasmic) proteins (antigens) like fibronectin, interleukins, collagen, CD14, etc. within the skin or organ bits. Then, the immunohistochemically stained slide is visualised under microscope to quantify the same. The timedependent changes in the levels of these markers determine the approximate death interval or age of the wound. Immunohistochemical reactions are evaluated by qualitative methods, viz. not expressed (0), isolated, and disseminated expression (+), expression in groups or widespread foci (++), and widespread expression (+++). The time-dependent changes in the inflammatory cytokine levels, for example, IL-1β, IL-6, TNF-α, etc., in dermal wounds can be analysed by using ELISA. The quantity/levels are matched with the available data for a particular period.

Limitations • Post-mortem autolysis may lead to the degradation of these tissue antigens. • The immunohistochemical reactivity of these tissue antigens depends on the nature or characteristics of the tissues. • Skin is a relatively resistant organ (for autolysis) compared to liver, spleen, or kidneys for proteolysis of tissue antigens (markers). • Immunoreactivity is usually lost early in nuclear antigens as compared to cytoplasmic ones. Hence, cytoplasmic markers should be chosen for the studies. • Immunohistochemical detection of tissue-specific antigens from wounds may be useful in living cases and early post-mortem interval within 24–36 hours or more than 7–10 days. • Some IHC markers like tryptase, glycophorin, IL15, CD15, CD45, MMP9, etc. are ‘highly expressed’ in the wounds of putrefied skin for 15 days. Benedetta, B., et al. (2021) detected glycophorin A  antigens (surface blood group antigen of RBC membrane) in the decomposed skin and bones up to 65–70 days. They have used monoclonal antihuman glycophorin A  antibodies in samples from decomposed bodies. Hence, the vitality of the wounds in decomposed bodies can be detected using glycophorin A markers. • Formalin-fixed tissue bits would produce poor results in immunohistochemistry. Hence, frozen section tissue bits should be used (Figure 10.9).

Vital Reaction1, 7, 10

Vital reaction is a set of pathophysiological processes, i.e., erythrocyte extravasation, inflammation, and cellular oedema, along the wound margins which prove the injury was inflicted when the individual was still alive. Vital reaction refers to wound vitality. Typically, the vitality of a wound can be assessed using a magnifying glass, which shows extravasation, redness, and oedema of the wound margins. Using haematoxylin-eosin (H&E) staining of the wound skin bits confirms all tissue changes of vital reaction. Absence of vital reaction signs in a wound is pathognomonic of post-mortem wounds. Vital reaction signs may disappear at the stage of cellular autolysis. Pathoanatomy • Zone of negative vital reaction. The central area (about 0.2–0.5 mm) of a wound becomes necrotic, with rapidly decreasing enzyme activity. • Zone of positive vital reaction. The area immediately next to the central zone (0.1–0.3  mm) may have relatively normal tissues and may show rapid enzyme activity and higher concentrations of tissue repair factors/ enzymes, leukotrienes, chemoattractant, tissue factors, etc. This zone expresses the tissue repair process and can be mapped by immunohistochemistry techniques to estimate the wound age (Figure 10.9). • Based on the appearance and concentration of various enzymes in this zone, a rough approximation can be given with regards to the time since injury (Figure 10.12). • Fat or air embolism may occur in many types of mechanical injuries. Post-mortem detection of fat/air embolus in the tissue bits of lungs, heart, brain, or other organs is a sign of vitality, i.e., it endorses that the wounds that caused the embolism are antemortem in nature (Figure 10.11).

Medicolegal Masquerades11

Often, some serious cases of death (homicide, suicide, etc.) or injury appear as a natural death or simple injury or disease process, i.e., appearance masquerades over a serious underlying cause, and vice versa. A simple injury or post-mortem finding may appear grave or raise unnecessary suspicion. In both cases, the serious omission of a grave or aggravation of a simple condition is possible. Often, a detailed history to find out the cause of the lesion is either unavailable or unreliable, as in the cases of young children and mentally subnormal or unidentified deaths. This can be avoided by using universally accepted autopsy and wound examination protocols.

Molecular Methods to Determine Wound Age9, 10 If the dried bloodstain over the wound, even other biological stains, has sufficient quality and quantity of mRNA, the wound age can be determined. The mRNA levels of inflammatory cytokines and other wound-healing factors can be assayed using real-time polymerase chain reaction (PCR) to evaluate wound age. This is possible in challenged samples of several months, even years, old (Table 10.1).

Antemortem and Post-Mortem Injuries Tissue vitality signs (vital reaction) differentiate antemortem wounds from post-mortem injuries.7

FIGURE 10.11  Pathoanatomy of antemortem wound with enzyme activity along its margin.

Medicolegal Aspects of Mechanical Wounds

II-111 • These are usually seen in the bodies stored for a long time in the morgue without cold storage. Often, ant bite marks may be at unusual places other than the moist skin folds if tight underwear/vests are present (Figure 10.9 left). • Transport artefacts usually involve extremities (Figures  10.13 and 10.14) and neck spine (undertaker’s fracture).

Contusions

Contusion means a bruise, where blood capillaries below the skin/ mucosa are ruptured, producing subcutaneous/submucosal/subfascial haematoma. Contusions are antemortem in nature and are caused by hard, blunt surfaces or objects. However, often, postmortem lividity is confused with the bruises. Hence, suspicious bruises should be incised at autopsy to examine subcutaneous/ intramuscular haemorrhage (Figures 10.14 and 10.15).

Examination of Wound12, 13 FIGURE 10.12  Showing pinkish, excoriated perianal lesion in a 2-year-old girl referred from gynaecology OPD to rule out sexual abuse. Living Cases

Essential Points of Examination

1. History—can be a lead for search if it matches with the wounds or an index of suspicion if it does not corroborate with the injury pattern/manner.

• Skin diseases. Some active skin diseases, residual dermatoses, or post-inflammatory spots, for example, generate suspicion of child abuse or battering, sexual assault, or other medicolegal cases. • Drug reactions (toxic epidermal necrolysis), skin infections (staphylococcal scalded skin syndrome), mimic scalds. • Infected and excoriated mucosa of anus or genitalia in a child–child sexual abuse (Figure 10.12). Dead Cases Some post-mortem artefacts or changes may raise a false alarm of sexual assault or homicide or suicide deaths. Examples: • Due to putrefactive gases and skin autolysis, surgical wound dehiscence may masquerade as cut or stab wounds (pseudo-stabs). Usually, maggots appear around the natural body orifices (moist skin) but may occur first on the injured skin instead. • Post-mortem pink teeth is due to seepage of haemoglobin from autolysed red cells into the dentinal tubules, which may masquerade an antemortem injury. • Detection of post-mortem ethanol in blood (which is due to endogenous production of alcohol from putrefying bacteria and fungi) may raise a medicolegal concern. Post-mortem artefacts. Usually, post-mortem wounds are accidental in nature; however, the intention of disfigurement or mutilation of the body or wounds has to be ruled out. (See ‘Medicolegal Wounds’ for details.) Accidental post-mortem wounds may be due to artefacts, for example, during body transport, ant bite, rodent nibbling marks, etc. • Ant bite marks may mimic superficial abrasions (Figure 10.12) and involve the moist, folded areas of the body, like groin or axilla folds, hypothenar area, etc. • Rodent nibbling marks mimic abraded lacerations and may be confused with an attempt at disfigurement on the face. Usually, it involves the soft skin around natural body orifices, i.e., anus, nostrils, eyelids, etc.

FIGURE 10.13  Note post-mortem artefact due to ant bite marks mimicking superficial abrasions and abraded contusions. Right: Ant bite marks present over groin folds and labia due to moist, soft skin. This case mimicking sexual assault had created a public outrage until the actual cause was clarified by the autopsy surgeon. Left: Ant bite marks below the level of underwear and at unusual places.

FIGURE 10.14  Note the artefact wounds involving toes and foot caused while transporting critical patient to the hospital holding him on the pillion bike seat with bare feet. Right: Superficial post-mortem burns (artefact) along the medial border of the foot in a ‘brought dead’ case. This was caused by the hot plate of motorbike silencer pipe (close to footrest). Left: Perimortem grazed abrasions (mild redness) involving toes when the toneless foot fell off the footrest and was grazing the road.

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and colour of scab or various other morphological changes which may occur as part of the healing process. 5. Type of trauma: Blunt force/sharp force. 6. Remarks: Mention if radiological imaging or further investigations is required. FIGURE 10.15  Demonstration of contusion/bruise. To differentiate contusions from post-mortem staining, incisions are given to examine subcutaneous and intramuscular haemorrhage.



In Dead • Wound examination is the critical step of autopsy examinations. • It differs from the wound examination procedure in the living. No need for taking consent from the legal heir or relative, whereas a request from investigating police officer is the only requirement. • Preserve skin bits, mucosa, or injured organ samples and transmit to the pathology department for histopathological and immunohistochemical examinations whenever required, for example, snakebite, gunshot wounds, electrocution, insect bites, etc. This can help in differentiating antemortem or post-mortem wounds and estimate the wound age. • Photography, wound examination, and sample preservation should be made a protocol for all autopsies. • Recommend radiological imaging of the wounds wherever required, especially in doubtfull, firearm and explosive injuries.

2. Consent, unlike in dead, is essential in living subjects. However, if the accused does not consent for examination, the police officer may put some reasonable force for his cooperation under Section 53 CrPC. 3. Examination proper: • Site and nature of cuts in clothing. • Site of wounds on body; height from ground. • Nature of wounds i.e., width, shape, direction of wound. • Depth and direction of penetration. • Injuries to viscera and cause of death. • Examination of weapon and correlation with findings.

In Living Subjects

Injury has to be described in detail as given in the prescribed format (Fig.10.18). Some of the key information which should be recorded in the injury certificate are: 1. Type of injury: This includes the name of injury, like abrasion, contusion, chop, etc. 2. Dimensions of the injury: The measurement of the injury should be mentioned under this heading. Some injuries, like abrasions and contusions, have two dimensions, i.e., length and breadth, while others, like laceration, stab chop and incised wounds, etc. have three dimensions, i.e., length, breadth, and depth. Length and breadth are measured in centimetres, while depth of a wound is mentioned in relation to the tissue on which the injury lies. For example: muscle deep, bone deep, or cavity deep. 3. Location of the injury: The part of the body where the injury is present has to be noted under this heading. Care has to be taken to not use complicated medical terms and describe the location in simple language which can be comprehended by investigators and the judiciary. 4. Time since injury: Information related to time since injury can be given in the form of colour of the injury or presence

Precautions The autopsy surgeon should cross-match the wounds on the body with the woundlist in the police panchnama report. • Any disparity, report and discuss with the police IO before starting the autopsy. • Discuss any mismatch between the history and patterns of wounds. • Never forget to examine the genitalia, neck region, inner mucosa of both lips, back and concealed body parts (axilla, groin, nape, etc.) in all bodies especially in women, children, and the elderly. Set this as your autopsy protocol. In the primary author’s experience, many suicidal death cases reported by the police turned to homicidal cases just after the discovery of contusions in the inner mucosa of the lips at autopsy. • Never go exclusively by police history alone. Especially snakebite cases. Many homicidal poisoning cases were forged as snakebite deaths by some police, leaving the gullible doctor to suffer a lot later on (Table 10.2).

TABLE 10.2  Differences between Antemortem and Post-Mortem Wounds Wound features

Antemortem wounds

Postmortem wounds

Vital reaction Margins

Present Dark red, haemorrhagic, swollen, everted.

Haemorrhage, extravasation along wound margins Spurting of blood Clot

Microscopic or visible haemorrhage, in wound margin is pathognomonic sign. Seen in arterial wounds. Firmly attached, clotted blood seen in and around wound margin. It mostly sticks to wound margins (magnifying glass examination recomended). Extravasated blood stains the surrounding tissue and Extravasation and tissue staining may be nil or mild. cannot be washed off easily. Watery blood. Increased enzyme activity Absent

Sticky clots and extravasation Immunohistochemical reaction

Absent Absent, and margin may be inverted or flat; may look pale, pink, and lifeless. Absent, unless injury inflicted during perimortem period. Absent, even in arteries. Fluid blood may ooze out. Soft, loose clots and easily washable.

Medicolegal Aspects of Mechanical Wounds

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Weapon of offence

Blunt

Sharp

Pointed

Light

Heavy

Firearms Smooth bore

Rifled

CHART 10.5  Classification of weapons. Examination of Wounds in Skeletal Remains

In examining bone injuries, one generally looks for fractures, cuts, slashes, and punctures by a sharp, pointed instrument or weapon. Fractures may be crushing (which is a massive, relatively minute aggregation of comminuted fractures), chipping, stellate, comminuted, or shattering. Types of Bone Injuries Four major causes of injuries are commonly observed in bones: 1. Blunt trauma 2. Sharp trauma (cutting, slashing, puncturing) 3. Projectiles (firearm bullets, missiles, bomb splinter wounds) 4. Rapid deceleration (as seen in traffic accidents) Factors • The cause of blunt trauma may be static or dynamic, the former owing to a gradual force, with weight as a causative agent, the latter to velocity of body or weapon. • In the skull, relative plasticity and/or shape adaptability may affected by the severity of the blunt trauma, which must be very strong to be effective. • Age is a factor, i.e., the elasticity of the young skull and the loss of elasticity in old age because of suture closure and age-related osteoporotic changes. • The destructive capacity of a projectile depends upon weight, shape, presenting area, and velocity. The amount of kinetic energy transferred from the projectile on the tissues is directly proportional to its speed and weight.

Examination of Weapons

examination, the examiner should verify that the seal over the evidence is intact and the chain of custody is maintained. 2. Note the evidence package and the label on it to be crossmatched with the crime number mentioned in the police requisition letter. 3. Note the type, number, weight, nature, and physical characteristics of the weapon. 4. Measure all dimensions of the weapon and chart it in a neat diagram (Fig.10.16), which is to be annexed with the final report. 5. Note if any stains, marks, or breaks are present anywhere on the weapon. 6. Photograph the weapon with scale and tag. This will be a helpful document for future reference. 7. The examiner should sign over the weapon before packing to help identifying the weapon when presented in the court. 8. Weapon is packed, sealed, and signed before handed over to the investigating officer along with the final report, opining if the examined weapon could or could not have caused the injuries (Chart 10.5).

Evidence Processing • The chain of custody is maintained each time the weapon is transferred from the crime scene to the courtroom. • Any breach in this chain of custody brings down the credibility and acceptability of evidence during the trial and may be liable for rejection by the court. • The authenticity of evidence lies in its chain of custody. • Hence, always transfer sealed, labelled and signed evidence package after weapon examination. Better to sign on the weapon using a permanent marker pen. Hand

For a scientifically lucid wound certificate, it is logical that the expert who is certifying the injury also examine the alleged weapon of offence.12, 13 Steps to Be Followed While Examining an Alleged Weapon of Offence

1. The alleged confiscated weapon must be received in a sealed packet along with a requisition letter from the investigating police officer, and before commencement of the

FIGURE 10.16  Illustration of documenting a weapon of offense in autopsy report mentioning the measurements and identification marks (rusted mark on the blade, broken chipped off handle upper border, etc.), if any, to identify at the time of deposition in the court.

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Medicolegal Aspects of Various Injuries

1. How to determine the manner of injury, i.e., accidental or deliberate harm or suicide?



c.



d.



e.



f.

The reason for a medicolegal autopsy is to establish whether the death is or is not due to natural causes. If it is not due to natural disease or if the natural disease has been affected by some internal factor, then it must be attributed to one of three reasons: accident, suicide, or homicide. In deciding into which of these three categories it will fall, the medicolegal expert must bear in mind that his contribution must be to arrive at the truth, because what may appear to be satisfactorily explained as suicide in the minds of some may not be acceptable in the minds of others. Hence, in arriving at an opinion, it is essential that the medicolegal evidence is well documented to be available for the appreciation of others than the original examiner. For this reason, it is essential that the examiner maintain an objective approach and not rely too much on information which may later prove inadequate or incorrect. • The crime scene (locus) constitutes one of the most vital parts of the investigation, the value of which may be destroyed by premature removal of the body. If it must be removed, a photograph must be taken and a chalk line should be drawn around the position in which it was lying. If injuries are present, an examination for objects which might have caused them should be carried out without delay. The discovery of hairs or blood on a piece of furniture may be of considerable importance. The presence of a weapon may not necessarily be of significance, but its absence will be highly suggestive. • The position of the injuries may assist, for quite clearly, there are certain parts of the body where self-infliction is impossible, while others are sites of election for suicidal wounds with typical superimposition and neat arrangement. • The examination of the clothing may give information of vital importance in the form of tears, cuts, particles of fibre, stains of oil, or blood, all of which may assist in building up a complete picture of the episode. Too much stress cannot be laid upon the importance of proper collection and preservation of such material for subsequent laboratory examination after photographing the body before removal, and of study of the relationship of damage to the clothing with wounds. • The nature of the injuries, including the number, direction, and damage to internal viscera, with photographs. • The presence of defence wounds or attempts to resist attack. • The presence of other means of ending life, for example, carbon monoxide, aspirin, or corrosives. • Collection and examination of relevant material, such as stab wounds, for further examination. • Each type of injury will assist in producing a comprehensive picture: a. Abrasions will be of significance in establishing the direction of an impact and the type of surface involved. b. Bruises and lacerations will help in deciding whether the injuries are consistent with a fall or blow. The site is of great importance, for injuries on top of the



head will postulate either a fall headfirst or a direct blow. The character of the bruise or laceration indicates the object or weapon which has caused it. Examining such wounds may show the presence of foreign material. The interpretation of incised wounds depends upon: • The site. Suicides choose the neck, wrists, and groins, and the side will be opposite to that of victim’s handedness. • The character of the wounds. Suicidal wounds tend to be superimposed upon one another, are symmetrically arranged, and are in unnecessary multiplication. Presence of hesitation or tentative cut marks are common. • Defence wounds will be absent in suicide, but occasionally, small cuts on the fingers may be found if a safety razor blade has been employed. • The weapon in suicides is grasped in cadaveric spasm, while its absence or the reverse position of a weapon in hand will give strong grounds for homicides. Stab wounds can be assessed in a similar manner as with incised wounds: • The site must be one of accessibility, and the commonest choice is the region of the heart or upper abdomen where the direction may assist. The clothing is usually drawn up or is displaced. • The nature. Wounds in suicide may be just as determined as in homicide but are less likely to be multiple. Cases have, however, occurred with at least two and sometimes more determined self-inflicted stab wounds in the chest. Partial withdrawal and reintroduction may occur. • Defence wounds may be present, which will exclude suicide. • The weapon may give the same information. Lacerations, blunt instrument injuries, and crush injuries: • The site is of great importance and taken in conjunction with the nature of the wound, it may avoid confusion in injury due to a fall with that due to an assault by a blunt object. Such observations not only clarify some ordinary explanation but also save time for the investigating officers. • The examination of the clothing in this type of injury is of extreme importance. The presence of soil of a different character from that in the place where the body was found may indicate not only that it has been ‘dumped’ but also the district in which the crime was committed. • Defence wounds may give rise to suspicion in what would appear to be otherwise an ordinary fall or impact due to a vehicle (Table 10.3).

2. Are the injuries antemortem or post-mortem in nature?

It is possible to distinguish whether a particular injury was caused before or after the death of the individual by its gross features as well as histological and histochemical examinations, which have already been discussed in an earlier part of this chapter.

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TABLE 10.3  Determining the Manner of Wounds Homicide

Suicide

Irregular

Site of mutilation Character Clothing

Alleged Of choice (neck, vulnerability wrists, groins) Multiple Multiple May be involved Exposed part (usually) May be present Absent (but possible cuts in hands from object—razor blade) May relate to Absent fight

Secondary injuries



5. Can there be a fatal internal injury with no significant external injury? • There have been numerous recorded instances in the authors’ experience where little or no injuries were noted externally, but the underlying vital structure was damaged and which ultimately caused the death. • Common examples: liver or spleen rupture, intestine and mesenteric injuries following blunt trauma over the abdomen. The external injuries in such cases are usually invisible due to the yielding abdominal muscles. An extended focused assessment sonography for trauma is recommended in all such trauma cases to rule out spleen/liver laceration, severe intraperitoneal bleed. • A blow over the chest can also bring about a similar outcome where the underlying ribs fracture and then proceed to puncture either the lungs or heart.



6. Can resuscitative efforts produce injuries which look like those produced by an antemortem event?

Accident

Grouping

Defence wounds



Arranged

Vulnerable part to impact Vulnerable part to impact Usually single May be involved None

May be associated with accident

3. Can the time since injury be estimated? • Based on morphological changes which occur consequent to the healing process, the time since infliction of injury can be estimated. • These changes are quite conspicuous in case of superficial injuries, like abrasion, contusions, and incised wounds, while being moderately discernible in case of injuries with depth, like lacerations, stab, or chop injury. A detailed discussion of these timerelated changes is dealt with in respective sections of mechanical injuries. • The reparative process also brings about significant cellular and enzymatic activity at the injured site which changes as time progresses. • Histological and histochemical methods used for estimating the age of the injury.



4. Did the injury cause or contribute to the cause of death?

• Resuscitative efforts which are done during the perimortem period (during the time of death) can produce injuries which simulate antemortem injuries. • Aggressive chest compressions can cause rib fractures, usually second to fifth rib on the left side, along the midclavicular line, with intercoastal muscle contusions or even sternal fractures, which look like thoracic injuries sustained in an assault or road traffic accident. • Therefore, it would be prudent on the part of the forensic expert to peruse the treatment chart of the patient to avoid being misled by resuscitative artefacts while opining on the manner and causation of injuries noted on the body.

Injury to vital organs or major blood vessels can directly result in death. Some injuries might not be fatal as such but, over the course of time, may cause complications which can result in death (Chart 10.6).

• Fatal injury need not be always synonymous with instant death. • There are many literatures which cite occasions where a person, after receiving a fatal injury, survived for hours, sometimes even continuing a regular activity or conversation, before succumbed to the injury. • These physical activities which a person does after being mortally injured are considered as volitional activities.

CAUSES OF DEATH DUE TO TRAUMA

Delayed

Immediate Infections Haemorrhage Reflex vagal inhibition

Shock

Gangrene Trauma complicating a natural disease Thromboses and embolisms Crush syndrome

Mechanical injuries to vital organs

Suprarenal haemorrhage Disseminated Intravascular Coagulation Natural disease caused by traumatic lesion Malignancy caused by traumatic lesion

CHART 10.6  Causes of death due to injury.

7. Can there be a delay in death following a fatal injury, and if yes, is it likely for the victim to perform some act before succumbing to the injuries?



8. Can an injury precipitate a natural disease which may then ultimately cause death? • There are recorded instances where a sudden blow or physical trauma has precipitated a myocardial infarction or arrhythmia. • Many times, mere shock of a violent event, like a bomb blast, can trigger a cardiac event. This is commonly seen in individuals with either pre-existing conditions, like hypertension and coronary artery disease, or with a generally nervous disposition.

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II-116 • A direct physical injury or exertion during a violent attack can cause previously undetected aneurysms to rupture, resulting in a fatality. This is commonly seen in arterio-venous malformations of brain, often aneurysms, which may rupture following a blow to the head. Even a mere slap can precipitate rupture of such AV malformations leading to subarachnoid and subdural haemorrhage. • The correlation between trauma and malignancy has long been debated, and more often, they are found to be coincidental rather than subsequential. It is more likely that an injury may call attention to a pre-existing asymptomatic growth. • The relationship between a particular injury and malignancy at the same site can be established if it follows Ewing’s postulation, i.e, – There must be evidence of integrity of the part prior to the injury. – Presence of undeniable and adequate trauma should be proven. – There should be a reasonable time interval between injury and appearance of the tumour. – Tumour should develop at the exact site of injury. – Nature of tumour should be proven by histopathology.

9. How to elicit wounds in a decomposing body infested by maggots? • Maggots usually appear within and around the natural orifices of a decomposing body. If maggots, instead of appearing at the nine body orifices, are present in some other places, for example, head, hairline, rib cage, abdomen, etc., there is a high chance that these parts have been injured during life. The nature of a maggot-infested wound can be predicted whether a penetrating or a blunt wound. However, precisely identifying the wound type in advanced decomposition is difficult. Therefore, maggots infestation can precisely predict the presence of a wound, more likely about the nature of wound (sharp vs. blunt trauma), but less likely to predict the exact nature (cut, laceration, abrasion, contusion, etc.) of the wound.

Examination and Reporting of Thermal Injuries Thermal Injuries (302 IPC, 306 IPC, 304(B) IPC, 326 IPC, 498(A) IPC) • Burns can be differentiated based on their appearance and contents, with antemortem blisters having a red inflamed base and containing serous fluid, while the base of post-mortem blisters are hard and yellow and filled with either air or thin, clear fluid. • The distribution of burns on the body can also shed some light on the manner of ignition and position of the burn victim. Detailed analysis of thermal injuries will be dealt with in its respective chapters.

FIGURE 10.17  Jackson’s triad in burn wound.

Jackson’s Burns Wound Model

A thermal wound has a raised centre (blister), with raised edge and pale areola. The periphery of the wound is surrounded by a pale zone. Pathologically, the wound has the following areas: • Zone of coagulation. Primary injury nearest the heat source. Characterised by irreversible tissue necrosis. • Zone of ischaemia. Area of potentially viable tissue surrounding the zone of coagulation. • Zone of hyperaemia. Peripheral zone with increased blood flow and inflammation. Vital reactions with hyperaemia outside to the blanched skin. Post-mortem burns and blisters present without vital reaction (Figure 10.17).

Examination and Reporting of Ballistic Wounds 1. Firearm and blast injuries [299 IPC, 302 IPC, 307 IPC, 326 IPC] examination should reveal the following information: • • • • • •

Type of weapon used Range of firing Direction of firing Time since infliction of injury Cause of death Manner of the injury (suicide/homicide/accident)

2. Examination and reporting of explosion injuries. A  unique feature of firearm and blast injuries is that a combination of all kinds of blunt and sharp force injuries can be seen in and around the same injury site. Questions faced by the forensic experts when they encounter a case with explosive injuries are: • The probable cause of the explosion • Identification of the dismembered parts • Number of deceased people and cause of death in each case

Wound Laws Relevant to the Doctors Indian Laws w.r.t. Injury and Wound • Sec. 39 CrPC: Intimation regarding certain offences to the police

Medicolegal Aspects of Mechanical Wounds • Sec. 53 CrPC: Examination of an arrested individual by a medical examiner at the request of a police officer • Sec. 44 IPC: Definition of injury • Sec. 175 IPC: Omission to produce document to public servant by person legally bound to produce it • Sec. 176 IPC: Omission to give notice or information to public servant by person legally bound to give it • Sec. 197 IPC: Issuing or signing false certificate • Sec. 299 IPC: Culpable homicide • Sec. 300 IPC: Murder • Sec. 302 IPC: Punishment for murder • Sec. 304 IPC: Punishment for culpable homicide not amounting to murder • Sec. 304(A) IPC: Causing death by negligence • Sec. 304(B) IPC: Dowry death • Sec. 306 IPC: Abetment of suicide • Sec. 307 IPC: Attempt to murder • Sec. 319 IPC: Hurt • Sec. 320 IPC: Grievous hurt • Sec. 321 IPC: Voluntarily causing hurt • Sec. 322 IPC: Voluntarily causing grievous hurt • Sec. 323 IPC: Punishment for voluntarily causing hurt • Sec. 324 IPC: Voluntarily causing hurt by dangerous weapons or means • Sec. 326 (A) IPC: Voluntarily causing grievous hurt by use of acid, etc. • Sec. 351 IPC: Assault • Sec. 498A IPC: Husband or relative of husband of a woman subjecting her to cruelty • Sec. 113(A) IEA: Presumption as to abetment of suicide by a married woman • Sec. 113(B) IEA: Presumption as to dowry death

Wound Certification • A physician attending any wounded case needs to document the injuries in a legally accepted format (Fig. 10.18) of their respective country. • Such wound certifcate should have details such as date, time, and place of incident; details of the injuries, namely, type of injuries, dimensions of injuries, anatomical location of injuries, causative agents, age of injuries; and legal classification of injuries. • Remember, a medical opinion is just an opinion and not the final judgement. • The physician should also opine whether the injuries are consistent with the history provided or not (Figure 10.18).

Preparation for Court The court may summon a medical expert who has treated and certified an injured for witness deposition for the concerned case. Usually, clinicians from departments like orthopaedics, surgery, neurosurgery, CTVS, emergency medicine, etc. are frequently summoned for a deposition even if the patient has died and the autopsy was done. It may happen that both clinician and the autopsy surgeon will be summoned to deposit their reports, usually in assault or traffic accident cases. Sometimes, the opinions in the wound certificate and autopsy report may vary. And the defence lawyer may try to take advantage of the disparity between the reports for his

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FIGURE 10.18  Wound certificate format. client. Hence, he may try his best to sabotage your report and deposition. The doctor can’t stop the defence lawyer from doing his job but can save himself by adopting some basic precautions: • Positive examination. Examine the wounds and write the report (in all ML cases) yourself instead of leaving it to your subordinates. If you dealt directly a case, this would give you a picturesque memory of the case in court. • Documentation. This is a critical phase. Remember, your success in defending your report before the court depends on how much you have invested in report-writing. Document all positive and vital negative findings. Analyse all possible scientific questions that can haunt your opinion before finalising it. And stick unshakably to your opinion once it’s final. Explain with all scientific logic that you have foreseen during report-writing when asked in the court. • Preparation. To refresh your memory, it is better to take time to peruse all documents—case sheets, photographs, and your report—before visiting the court. This would help you make a strategy to depose your case successfully. Clinicians must take copies of case sheets and report while visiting the court. • Pre-deposition phase. After visiting the court, it is better to discuss this case with the public prosecutor. He can give you a brief picture about the case, for example, aspects of the case beyond your knowledge, possible questions from the defence, ways to answer some legally complicated questions, etc. • Reporting errors. If you find some errors or feel a minor change essential in your report (but can’t change your opinion), propose this to the judge through the public prosecutor before deposition. • Follow the rules of deposition. Avoid using medical jargons while testifying or explain beyond the point you’re asked. – Especially during cross-examination answer, only in the format yes/no, may/may, or can’t say/don’t know. – Avoid using qualitative adjectives which you can’t explain, for example, very large abrasion, extensive burns, severe laceration, etc. – Stay calm and answer to the point if the defence lawyer tries to irritate you with offensive questions. It is

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not wrong to say ‘I don’t know’ or ‘I can’t say’ if it is so. Never try to explain, even if you feel so, and answer looking at the judge. – Avoid commenting on others’ reports. The defence counsel may try to get your answer for the autopsy report (or vice versa) to put his words into your mouth. Hence, it is better to refrain from commenting on others if it is directly not requested by the judge to do so. You can say, ‘I cannot comment on others’ examination reports.’ (See Chapter 4, ‘Legal Procedure’, for more details.)

Case Atlas

Different types of imprint abrasions. Right: Imprints from the vest neck line and car seat belt. During the accident, the passenger violently pressed against a hard wide flat surface of the car. Left: Rope-braid mark caused when the arm violently pressed against the side rope of the trolley of a truck. He was a labourer sitting on the rear carrier, and the accident happened after a sudden braking.

Different types of abrasions. Top: Brush burns/grazes (lower face), scratches, and abraded contusions (shoulder). All wounds are soiled with road dust. Bottom: Grazed abrasions, scratches and abraded contusions. All are typical signs of a traffic accident.

Medicolegal issues with pressure abrasion. Often, superficial burns (top) are confused with superficial abrasions (bottom). Note soot deposits along the margin and floor of the burn wounds.

Different types of pressure abrasions. Note parchmentised/ thinned-out skin of the ligature wound with denudation of superficial layer of skin. Top: Ligature mark from a soft dupatta. Bottom: Ligature mark due to nylon lungi, which is supposed to have caused a narrow mark but looks wider due to slipping noose (slippage signs). Left: Knot mark over the mastoid area.

Laceration types. Left: Tears or stretch laceration, due to undue, tangential stretching force. Right: Split laceration, caused by thin-edged, rough, hard, and blunt surface/object/ weapon. Bottom: Crush laceration, Upper back hard, rough, blunt, heavy object/surface/weapon.

Medicolegal Aspects of Mechanical Wounds

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References



Medicolegal issues with lacerations. The lacerations of skin with underlying flat bone (scalp) or subcutaneous muscles (neck) may mimic incised/cut wounds. Right: Chop wound of scalp mimicking a lacerated wound. Left: Laceration of scalp by a lathi (thick wooden rod) mimicking cut wounds.







Medicolegal issues with lacerations. Stab, chop and cut wounds confusing with lacerations. Right and left: Upper back of body caused by an axe (assault), stretched due to underlying trapezius muscle. Centre: Chop (defence) wound of hand by axe.

1. Kumar, V., Abbas, A., Fausto, N., & Aster, J., Robbins and Cotran Pathologic Basis of Diseases (8th Ed), Saunders, Elsevier Inc, 2022, pp. 102–104. 2. Saukko, P., & Knight, B., Knight’s Forensic Pathology (4th Ed), CRC Press Taylor and Francis Group, 2016, pp. 234–235. 3. DiMaio, V., & DiMaio, D., Forensic Pathology (2nd Ed), CRC Press, 2001, pp. 92–115. 4. Guo, S.,  & DiPietro, L., Factors affecting wound healing.  Journal of Dental Research, 2010, 89(3): 219–229. https://doi.org/10.1177/0022034509359125 5. Betz, P., Histological and enzyme histochemical parameters for the age estimation of human skin wounds. International Journal of Legal Medicine, 1994, 107(2): 60–68. https://doi.org/10.1007/bf01225491 6. Berg, S., Age determination of skin wounds. Z Rechtsmed, 1972, 70(3): 121–135. 7. Raekallio, J., Histochemical distinction between antemortem and post-mortem skin wounds. Journal of Forensic Science, 1964, 9(1): 107–118. 8. Raekallio, J., Application of histochemistry to forensic medicine. Medicine, Science and Law, 1966, 6(3): 142–146. 9. Raekallio, J., Determination of the age of wound by histochemical and biochemical methods. Forensic Science, 1972, 1(1): 3–16. 10. Baldari, B., Vittorio, S., Sessa, F., Cipolloni, L., Bertozzi, G., Neri, M., Cantatore, S., & Fineschi, A.M., Forensic application of monoclonal anti-human glycophorin a antibody in samples from decomposed bodies to establish vitality of the injuries. A preliminary experimental study. Healthcare, 2021, 9: 514. 11. Asati, D.P., Singh, S., Sharma, V.K., & Tiwari, S., Dermatoses misdiagnosed as deliberate injuries. Medicine, Science and the Law, 2012, 52(4): 198–204. https://doi. org/10.1258/msl.2012.011054. 12. Modi, J., Kannan, K., & Mathiharan, K., Modi’s Textbook of Medical Jurisprudence and Toxicology (25th Ed), Lexis Nexis Butterworth India, 2011. 13. Camps, E., Robinson, E.,  & Lucas, G.B., Gradwohl’s Legal Medicine. Wounds and Trauma (3rd Ed), Year Book Medical Publications, Inc., 1980.

CHAPTER 11 CRIMES INVOLVING THE ELDERLY Ambika Prasad Patra and M. Senthil Kumaran

Chapter Highlights • • • •

Elder abuse and related laws Starvation—biochemistry and pathology Acute vs. chronic starvation Role of the doctor in: • Elder abuse and neglect • Battered elder syndrome • Starvation deaths • Hunger strike

Introduction There is a steady increase in crimes against the elderly. There is a persistent rise in the incidences of elder abuse, battering, neglect, suicide, homicide, etc., and these are serious social concerns across the globe. Nevertheless, more commonly encountered issues against the elderly are economic crimes, like usurping their property, robbery, theft, cheating, criminal breach of trust, etc. There has been a rapid increase in such cases against senior citizens in the last five years. However, often, these cases are accompanied by bodily injury or psychiatric manifestations.1 Medical practitioners like family physicians, geriatric specialists, etc. usually encounter such cases. However, elderly battering, neglect, or starvation deaths pose a significant challenge for doctors. Therefore, a medical practitioner should be mindful of his/her social, medical, and medicolegal responsibilities while dealing with such cases.

Elderly and the Laws in India Usually, a person aged 65  years or older is referred to as an ‘elderly’ person. However, there is no fixed age limit; rather, it varies between 60  years and above and 75  years and above among different countries. The Maintenance and Welfare of Parents and Senior Citizens Act 2007 of India provides a legal right to the elderly to live in self-respect and peace. According to this law, a ‘senior citizen’ means any citizen of India who has attained the age of 60 years and above. Medically, this age limit is termed the ‘geriatric age’. Similarly, the United Nations organisation considers individuals aged 60  years or older as elderly (Group for Economic and Social Studies 2009).2 Common Concerns of Elderly Persons

2–5

• Healthcare issues. Physical or mental disabilities, nutritional problems. • Domestic violence. Neglect by family men, the guilt of being a burden, losing the will to live in deprived and neglected ones. • Social issues. Inhumane living conditions, unemployment, financial scarcity. Legal Provisions for the Elderly6–9 Elderly rights are one of the fundamental rights of  India. The government of India provides various concessions and facilities II-120

to its senior citizens. The government of India has implemented special laws for the safety and dignity of the elderly. Article 41 of India’s Constitution has made provisions for public assistance for senior citizens. For example, the Indian government has created well-equipped old age homes in every district to facilitate seniors with a normal life. The Hindu Adoptions and Maintenance Act 1956 was the first personal law in India, which made provisions for maintenance of aged and sick parents according to the court’s discretion. It is the legal responsibility of offspring and relatives of seniors to provide sufficient support for senior citizens. This obligation applies to all Indian citizens, including those who live abroad. According to Section 125 of the Criminal Procedure Code, the magistrate can order the son or daughters, including married daughters, to provide enough means to care for their parents who cannot sustain themselves. Non-compliance with the order may lead to legal punishment according to the provisions of this act. The most important and recent one is the Maintenance and Welfare of Parents and Senior Citizen Act 2007, comprising 32 sections. According to this act: • Senior citizens are those Indians who have attained the age of 60. • The term ‘parents’ means father and mother; ‘children’ are adult son, daughter, grandson, granddaughter, and any other beneficiary. • Parents and grandparents who cannot maintain themselves from their income can demand maintenance of up to 10,000 INR. • The Indian government is going to open and manage old homes to accommodate 150 more senior people. • Section 24 of the act mentions punishment for abandoning parents or elderly people, i.e., 5,000 INR with imprisonment of three months. • Provides a simple, speedy, and inexpensive mechanism for protecting the life and property of older persons.

Starvation, Neglect, and Abuse Elder Abuse and Neglect

Abuse can happen to any older person, commonly occurring at home by adult offspring, at a relative’s home (especially for childless couples). However, this may be done by a caregiver or a stranger at an eldercare facility.10 The following types of abuse are more commonly seen among the elderly: • Emotional abuse. • Abandonment is common among parents with single highly ambitious offspring or multiple offspring. • Financial exploitation is the most common type of abuse by acquaintances, as well as by strangers. • Sexual abuse or assault is common for elderly women living single or widowed with poor living conditions. DOI: 10.1201/9781003139126-13

Crimes Involving the Elderly • Neglect. This is the most common form of elder abuse, in which there is a failure to support the needs of a dependent elderly person, for example, medical care and physical rehabilitation. It may be an imposed selfneglect too. – The commonest neglect is to support a disabled or deceased elderly patient in his or her daily pursuits. The presence of preventable bedsores may be a suggestive sign. – The extreme forms of elderly neglect are myiasis of the ear or oral cavity and lack of medical aids (glasses, walker, dentures, hearing aid, medications). – Displays signs of insufficient care, for example, hazardous, unsafe, unclean living conditions, unpaid bills despite adequate financial resources, etc. – Leaving parents in. – Deliberate imposing starvation on parents is a common occurrence and a commonly overlooked phenomenon. • Battered elders. Physical abuse of elder parents, or family members using physical force that may result in bodily injury, physical pain, or impairment. – It may involve forced labour, even begging too. – Motive: Financial coercion by offspring, the generation gap in the behaviour of parents and the offspring, and it may be due to vengeful attitude by offspring having a problematic childhood, etc.

Battered Elder Syndrome

The battered elder syndrome (BES) is a widespread social concern. The incidence of BES is as frequent as spouse or child battering. It resembles spouse or child battering in that the abusers are usually family members, the abuse recurs, and the victims do not want to revolt openly or seek outside protection. Usually, moderate BES is common; however, about 19–42% are severe enough for urgent intervention. Factors associated with BES are usually financial hardship of the abuser, alcoholism, drug abuse, and conflicts related to property share. The common belief that the abuser in BES is always a male and a female being the victim is incorrect. From the author’s experience, in many domestic violence cases of BES, the woman who looks after the family is most frequently the abuser. The following are some of the features of battered elder syndrome. Suggestive Signs • May be depressed, confused, withdrawn, isolated from friends and family. Often lacks eye contact. • Sobbing while speaking. • Appears dirty, underfed, dehydrated, or not receiving needed care for health issues. • Presence of signs of malnutrition in a well-off family. • Presence of recurrent injuries. • Signs of starvation. Specific Signs • Presence of non-accidental, non-pathological injuries, i.e., unexplained bruises, burns, scars, etc. • Presence of multiple wounds in a person at different stages of healing (classical sign). • Fractures with different stages of healing and callus formation may be present. Usually, the fractures are

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• • •

•

•

undisplaced and involve small bones, like a phalanx, metacarpals, ribs, etc. Mismatching history, i.e., the accident’s manner doesn’t correlate with the type and patterns of injuries. Undue or unexplained delay in hospitalisation or seeking treatment for the victim. The attendant (the abuser) is unwilling to leave the patient alone with the doctor while taking history or examination despite repeated requests. This sign is more common among female abusers. While taking history, the attendant (the abuser) would frequently try to prompt the answer to patient or answer over the patient’s reply. Often, the attendant becomes abusive and violent if the doctor requests him/her not to answer over the patient. Nonaccidental deprivation of food, for example, signs of malnutrition, starvation.

Starvation The most brutal, inhuman, and deliberate mass starvation deaths caused due to man-made famine in India is the Bengal Famine of 1943 by the infamous British prime minister Winston Churchill (Figure  11.1). Allegedly, Churchill diverted the produce, the public tax from India, for the use of his British Army engaged in World War II. His maleficent governance and economic policies can be explained in a single cliché line: ‘Supply the Army’s needs and let the Indian people starve if necessary.’ And this was as per his War Cabinet’s willingness in 1943 (Bengal Famine Inquiry Commission 1945a, Greenough, 1980). About 30 million Indians from the Bengal province of Britishruled India (present-day Bangladesh, West Bengal, Odisha, and Bihar) were killed from starvation, infections, and other diseases aggravated by malnutrition. The severity of food scarcity and lack of healthcare facilities led to population displacement; jobless men sold their small farms and left home to join the British Indian Army for a paltry salary (Figure 11.1). Starvation may result from complete or partial deprivation of a regular and constant supply of food needed to maintain health. It is regarded as acute starvation when there is a sudden and total stoppage of food and water, as in landslides. Chronic starvation results from a gradual deficient supply of food, as in famines. Starvation may also result from the use of unsuitable food. The effects of deprivation of food are essentially purely medical. Though poverty or famine-related starvation deaths have medical and social implications, it has little medicolegal interest. In medicolegal practice, starvation is associated with neglect, maltreatment, and deliberate food deprivation. Pathophysiology of Starvation • In case of starvation, to begin with, the primary source of energy production is lipolysis, i.e., the body glycogen stores are used for up to 24  hours. This is followed by (about 30–60 hours) gluconeogenesis using glycerol for conversion into glucose. • In gluconeogenesis, proteolysis provides alanine and lactic acid produced from pyruvic acid, and acetyl CoA delivers dissolved nutrients (ketone bodies) for use by muscle tissues and the brain. • During late phases (about 72–96  hours and beyond), when complete depletion of fat stores occurs, protein

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FIGURE 11.1  Deliberate, chronic starvation and malnutrition among the common citizens of British-ruled India (1943) in Bengal Province due to man-made (Bengal) famine after the complete diversion of public produce by British Prime Minister Winston Churchill for the use of his British Army engaged in World War II. [Source: Wikimedia Commons, by Unknown Author. Reused under open content  license. Available at: https://commons. wikimedia.org/wiki/File:Famine_in_India;_a_group_of_emaciated_young_men_wearing_loin_Wellcome_V0029717.jpg.] is again rapidly used as a source of energy. There is a decrease in the blood levels of sugar, proteins, chlorides, and cholesterol. This leads to a significant rise in levels of nonprotein nitrogen (NPN), urea, and plasma-free fatty acid (FFA) in the blood and the appearance of ketone bodies in the urine. • Complete loss of GI tract fat depot leads to pan mucosal atrophy. Even feeding with oral glucose would not help the starved due to the inability of his gut mucosa to absorb glucose given by mouth. Starvation: Clinical Manifestations Factors affecting the severity of clinical manifestations of starvation depend on: • Duration and type of deprivation. The period and extent of food deprivation may be described as acute or chronic starvation. • Body weight and build of the individual, i.e., obese individuals better bear food deprivation than lean individuals. Subcutaneous fat disappears and muscle wasting starts affecting the face and limbs at first. • Age. Elderly persons bear food deprivation better than adults, and adults better than children. • Sex. Usually, females bear starvation better than males. • Physical inactivity, like that which occurs in psychotic catalepsy, leads to diminished metabolic activity and vital functions and may delay the ill effects of food deprivation. • Water vs. food deprivation. Complete deprivation from both food and water kills more rapidly than abstinence from food alone. – Based on past evidence, it can be safely said that in an apparently healthy individual under complete

Medical Jurisprudence & Clinical Forensic Medicine abstinence from both food and water, death may take at least 10–20 days to occur, depending on the body build of the person. – Children and infants may die early from complete food and water deprivation within 2–5 days, depending on their nourishment status, body build, and health condition. – If water is available, death from starvation may occur after 2–3 months, depending on the amount of water and body build of the victim. – In chronic starvation, there is usually no absolute food and water deprivation. The victim has only food insufficient in quantity and improper in quality; death may occur after several months (Figure 11.1). In such cases, death may not occur from starvation but due to some intercurrent infections, like tuberculosis, gastroenteritis, malaria, renal failure, etc. Signs of Acute Starvation • In acute starvation, both water and food are withheld either deliberately or accidentally. • Thirst, pain, and irritation of the stomach. The feeling of hunger may be lost in about 48  hours, but thirst becomes intense. The person complains of intolerable thirst. • Acute starvation as a result of deliberately fasting unto death is seen in some religious communities and political agitations. • Weak and slurred voice. Pale and cadaverous look. • Sign of complete prostration—the starved person lies facedown or bows very low with an empty stomach. • There may be epigastrium discomfort, dizziness upon rising, and emaciation. • Absolute constipation and oliguria may be seen. However, constipation may be preceded by a phase of watery diarrhoea due to superadded infections. • Dehydration features become prominent along with features of starvation. • The common features are a pale appearance, apathy, easy fatiguability, sunken eyes, dry and wrinkled skin, dry and dirty tongue, and thick saliva. • The body develops an offensive odour. • Occasional convulsions may precede death. However, the mind may remain clear and unaffected until death. Witnessing own death with a clear mind like seen in death from strychnine or tetanus toxicity. Signs of Chronic Starvation • In chronic starvation, food is usually withheld wholly or partially for a prolonged period. There is also a reduction in fluid intake. • Skin and hair become dry, lustreless, and depigmented. Eyes and cheeks are sunken; bony prominences are more perceptible. • Loss of subcutaneous fat first from the face and extremities and last from the female breasts. • The person looks pale and emaciated, and the extent of emaciation increases with the duration of starvation. • There is pronounced apathy, fatigue, and intolerable thirst due to dryness of the tongue. • Skin changes: dry, lustreless, flecky skin emitting fetid odour.

Crimes Involving the Elderly • Gums are swollen, are ulcerated, and may be sloughed out on trivial injury. • Bilateral ankle oedema and facial puffiness may be present if associated with protein malnutrition. • Complete prostration is commonly seen. • Terminal noninfective diarrhoea may develop. • Superadded infections and aggravation of pre-existing diseases may be seen due to a lack of body immunity and nutritional balance. • Severe acid–base disbalance may occur, leading to acidosis. • The body develops a very offensive odour, like putrefaction. • The person eventually becomes delirious from hunger pain and may die due to circulatory failure or intercurrent infection. Diagnosis: Starvation Biochemistry Biochemical Changes in Body Fluids • Blood sugar. The fasting sugar level may be variable, i.e., normal to low. Nevertheless, in most starved cases, the blood sugar level fluctuates around the normal limits for up to 24 hours. • Plasma cholesterol level decreases with increased lecithin P level seen in most of starvation cases. • Total plasma protein. Total protein content may be lower than normal, with an altered albumen/globulin ratio (1:2). • Nonprotein nitrogen (NPN). The content of blood NPN is raised during starvation. • Blood urea. Levels are raised in most cases, usually after 24 hours of food deprivation. • Plasma chlorides. The chloride level comes below the normal limits, usually after 24 hours of food deprivation. • CSF. Shows raised protein and ketone bodies and low chloride levels. • Urine. Shows the presence of ketone bodies, albumin, and chloride. The presence of ketone bodies in urine is an ominous, life-threatening sign. Autopsy Features: Starvation Deaths 1. External examination. In cases of death due to starvation: • Emaciated body, pale face with sunken eyes and hollow cheeks, with visible bony prominences. Dry, rough, inelastic skin, which may be wrinkled and pigmented. Dry hair, lustreless, with brittle nails. • Eyes—cornea usually clear. Pupils may be dilated. • Dry and cracked, shrivelled lips with coated tongue. Gums may be swollen and necrotic in chronic starvation. • Scaphoid, concave abdomen and wasted, thin limbs. Ankle oedema may present, which can be demonstrated by thumb pressure for about half a minute. • Body weight is reduced by 35–40% of the actual body weight. • Body length—stature may slightly increase due to loss of muscle tone. • Body temperature—the surface temperature is usually lower than normal, though rectal temperature may remain unaffected.

II-123 • Post-mortem lividity/staining may not be that prominent and sparse on larger surfaces, like the back of the body. • Rigor mortis appears early and lasts for a shorter period. This is due to widespread muscle wasting and reduced muscle mass. • Decomposition—greenish discolouration of the right iliac fossa may be seen earlier than usual. 2. Internal examination. • All organs and tissues are pale. Almost all organs may show a reduction in size and weight except the brain. • Full thickness thinning of the entire GIT walls due to complete fat loss. Hence, the stomach and intestine walls look translucent, parchmentised, or tissue-paper-like. • The entire stomach and intestines are usually collapsed, with a thin, parchmentised, translucent wall. The stomach and intestinal mucosa show generalised atrophy, with bile staining, and may be ulcerated. Large bowel contains offensive watery fluid and gas. • Fat is nearly absent in the subcutaneous tissues, omentum, and mesentery. • The omentum and mesentery may be shrunken and translucent due to a lack of fat content. • Liver atrophy and necrosis due to protein deficiency may be seen. Distended gall bladder, with viscid, thick bile. However, the liver may be mildly enlarged in acute starvation, with variable degrees of fatty changes. • Perinephric fat around the kidneys may be absent. • Muscles are darker, wasted, without adipose tissue, and closely adherent to the long bones. Long bones may show undisplaced stress fractures. • The heart is smaller due to brown atrophy with empty chambers. • Lungs are pale and collapsed and exude very little blood on the cut section. • Urinary bladder is usually empty. • Typical features of starvation: absence of body fat (emaciation, dry skin, scaphoid abdomen), atrophy of the GIT walls, and gall bladder with viscid bile (Figure 11.2). 3. Opinion: It may be tricky for the autopsy surgeon to form a definite opinion as to whether the cause of death was a disease or starvation. – The physical appearance of starvation may mimic other conditions or diseases too. Hence, in cases of death from alleged starvation, rule out the exhausting conditions or debilitating diseases, like TB, HIV, cancer, etc. Note: Starving people are more likely to get acute infections, for example, dysentery, pneumonia, etc. Hence, it is prudent to preserve relevant samples for histopathology of organs (lungs, kidneys, liver, etc.), microbiology, and biochemical tests (urine, CSF, and blood). – Hence, while giving an opinion, the doctor should use his scientific acumen to rule out whether the emaciation and death are due to wasting disease or infection alone or as a complication of starvation. In such situations, the guarded opinion as to the cause of death may be given, like the death of the deceased may be caused due to complications of starvation and malnourishment.

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Medical Jurisprudence & Clinical Forensic Medicine Legal Aspects of Starvation Deaths

FIGURE 11.2  A  body of a bagger brought dead to the hospital. Emaciated, cachectic look, scaphoid abdomen, prominent rib spaces, dry and lustreless skin and hair suggestive of chronic starvation and malnutrition. 4. Manner of death. • Homicidal. In deliberate starvation, some food may be present in the stomach i.e. forcefully administered to deceive the autopsy findings of the surgeon. Rule out the presence of contusions or partially healed abrasions around the wrists, ankles, or other body parts. Search for signs of torture. • Suicidal. Starvation to commit suicide is unusual and rare. However, in some religious practices, an elderly jain or a Hindu maharishi (hermit) may undergo deadly starvation to achieve Mahäsamädhi (meditation until the heavenly abode). The intention here is not suicide. Often, a mentally ill person may leave home and wander around without food, leading to death (more common). • Accidental. Starvation is quite possible when people are trapped under falling masonry or in pits during earthquakes, floods, cyclones, etc. During such times, the natural course of the food supply is interrupted. Drought and famine were common causes in earlier times.

Reporting of Starvation-Related Deaths Before starvation-related deaths are to be reported, it has to be ascertained that the person died due to starvation and not due to any other reason. To establish death due to starvation, the following criteria are to be followed: • Documentation of recently increased death rates in the community compared to state averages. • Anthropometric indicators below state averages. • No mass disasters or other accidents. • Eating unusual foods, increased indebtedness, largescale outmigration for work, etc. • Sample dietary histories to assess daily calorie intake, and show starvation diets (12 years) for routine physical examination or from the parents/legal guardian for major examinations/procedures, for example, genital examinations, MTP, etc. The consent of husband or in-laws for/against MP is not mandatory—the consent of the pregnant woman is sufficient. 2. Preserve abortus and/or cord blood in a minor girl and rape survivor undergoing MTP and transmit the samples to FSL through police or counsellor for DNA analysis to identify the perpetrator. All blood samples must be collected in FTA cards and air-dried before dispatch.

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3. Abortion following the pregnancy from any sex-selection technique shall be treated as criminal abortion. Both the doctor and the pregnant women will be prosecuted as per legal provisions. Neither, the patient can allege negligence against the doctor too. 4. Death or damage to the pregnant woman following MTP performed at an unlicensed centre or by unqualified professionals, or performed using unsafe methods, both the doctor and the patient will be criminally prosecuted. The negligence allegations by the patient or her family would legally be null and void. 5. Death sentence in pregnant women is deferred legally until the child is delivered. 6. Some women may visit hospital with spurious allegations of pregnancy, viz. feigning pregnancy to defer arrest, maligning against a man, pseudocyesis, etc. The doctor cannot refuse examination just because of absence of pregnancy signs. However, the same can be mentioned in medical reports. Pseudocyesis is a hysterical pregnancy condition where a female believes that she is pregnant. A  psychiatric referral is indicated in such cases. 7. The medicolegal requirements for all MLC cases involving false pregnancy and disputed paternity—requisition from court or legal authority, a woman medical examiner, FTA cards (to be procured by the police or the government institution) for blood samples to be collected from all couples and the disputed child.

Protocol to Address Medicolegal Issues in fatal Pregnancy and Abortions cases • Apart from dealing with the various medicolegal issues in living patients (clinical forensic medicine cases), the forensic medicine expert plays a vital role in the pregnancy-related death investigations. When requested to perform the autopsy on a fatal case of pregnancy, the experts’ responsibility is to determine the manner, mode, and the cause of death. An evidence-based autopsy report is highly needed, especially in negligence allegations, operative deaths, criminal abortions, etc. Preserve every relevant sample, i.e., histopathology, microbiology, culture, chemical, biochemical, or serological samples before issuing final autopsy report. A provisional opinion may be given reserving the final opinion until all investigation reports received. • All relevant history is collected from the investigating police officer, hospital records, family members, and other possible sources. Visiting the crime scene often is helpful, especially in operation table deaths. Plan the autopsy based on the history, circumstantial evidences, and differential diagnosis. This will give a clarity as to the nature of pre-autopsy precautions, procedure, sample collection, and report preparation. Police should arrange photography and videography during the autopsy. In such cases, police usually request to form a panel autopsy. Anybody who is legally authorised to conduct an autopsy may be a panel member. A  minimum of two members are required to form a panel, but ideally a set of odd numbers like three, five, or maximum seven may be taken in a panel. The senior member should lead the panel. However, while giving final opinion, every member in panel is free to give his

own opinion irrespective of the opinion of the senior or other members. However, one has to give evidencebased justification if his opinion differs from other panel members. In that case, the member with different opinion from that of the panel may give his own autopsy report separately. • During the external examination, document injuries, operative wound features relevant to present and previous pregnancies, and operative scars. Vulva, vagina, and cervix are examined, and necessary samples like swabs, smears, and vaginal washings are taken for chemical analysis for common abortifacient drugs, medicaments, irritants, etc. • The genitourinary block is removed using an unique autopsy technique. The skin incision encircles the vulva. The pubic symphysis is divided, and the genitalia containing the vulva, vagina, cervix, and uterus with tubes and ovaries are removed enblock. The structures are examined for any trauma, rupture, or ectopic pregnancy. The uterus is dissected like a classical caesarean section exposing the uterine cavity. The cavity is examined for evidence of curettage, perforation, retained membranes, foetal parts, infection, abruptio placenta, concealed haemorrhage, necrosis, gangrene, or any foreign materials or chemicals (Figure 15.4).

Clinical Corner

1. I am an Ayurvedic gynaecologist. The parents of a 19-year-old unmarried girl in her 25th week of pregnancy are pleading, requesting to save their daughter from shame in continuing the pregnancy. Many other doctors have denied her giving any MTP service. I have explained going for an MTP at this stage may cause the death of their daughter. After completely understanding the dangerous outcome, the parents are ready to give informed consent for the MTP. I feel pity on the parents of this girl. If I  undertake this MTP, any problem would be there for me, in case of an unfavourable outcome for the girl.

Answer: Why are all denying her MTP services? Probably, those doctors are still in the era of the old MTP Act, where there was no provision for MTP in unmarried women. • Note that as per the MTP Act Amendments of 2021, every major woman, irrespective of marriage and cause for pregnancy, can take the MTP services. There is no need for parental consent for MTP in a 19-year-old major woman. • Even an unmarried woman can consent to an MTP procedure. Husband’s consent is not mandatory for MTP in a married major woman too. • This is a typical case where you alone can’t do MTP. The medical board’s approval to conduct MTP is mandatory beyond 24th-week pregnancies. • When medically it is apparent that the chances of loss of life in any medical procedure (like MTP beyond 24th week) is the ethical and legal responsibility of the doctor to protect the life first. Here, beneficence and nonmaleficence (patient life) are preferred over the patient’s autonomy (social stigma to her family).

Medicolegal Aspects of Pregnancy • Informed consent has some limitations, i.e., it usually does not sustain in recognised life-threatening procedures. In such cases, if the patient dies, consumer courts may hold you guilty of violating MTP Act norms. And patient informed consent can’t save you.

2. I am an obstetrics and gynaecology associate professor at a government medical college. A  14-year-old unmarried girl was brought to my O&G OPD by the mother with the H/O 20 weeks of pregnancy. The mother was reluctant to give consent for MLC registration and police intimation. She was terribly worried about the police litigation and the subsequent defamation of her family and the girl’s future. She had given consent only for medical examination and treatment. She even said she’ll give in writing that she would be responsible for any future consequences. She was asking for only abortion and nothing else. I  have left the case without registering MLC after MTP and other needful medical treatment. Would there be any problem with me in future?

Answer: How to avoid unwarranted ML complications? Please be mindful that the medicolegal responsibility of a doctor is not towards the patient but towards the state. Hence, a doctor must register MLC and give police intimation irrespective of the consent of the patient/parent. If parents/legal guardians refuse to sign MLC registration, despite what you have explained, record their informed refusal and get it signed. If i.e. also denied, note down every fact in the MLC register and get it signed by two disinterested third-party witnesses (a fellow patient, hospital visitor, etc.). This way you could have been absolved from any kind of ML issues in future. Better preserve the abortus/PoC samples and the air-dried FTA card blood sample of the girl to be handed over to the police IO

II-169 for DNA analysis. Omission to it, the police may have ample scope to drag you into criminal proceedings for not preserving essential evidence. Please register an MLC in all the following cases after thoroughly explaining the pros and cons: • Suspected sexual abuse. • Suspicious history or findings in extreme age groups (children  & elderly), women, disabled, and mentally retarded cases. • If history does not match with the manner of injuries or X ray findings. • If multiple injuries at varying stages of healing (physical or radiological signs) in a particular case. • Cases brought by the police for examination. • Brought in dead. • Road traffic accidents, industrial accidents. • Suspicion of intentional harm or self-harm. • Intoxicated or mentally unsound cases brought by the police. What should be the level of suspicion? Anything that a doctor feels suspicious may be intimated to the police. Whether it is true or not, it is the job of the investigating police officer to decide.

Notes

1. The Pre-Conception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act 1994. 2. The Pre-Conception and Prenatal Diagnostic Techniques Rules (Regulation and Prevention of Misuse) 1996. 3. The Medical Termination of Pregnancy Act 1971. 4. The Medical Termination of Pregnancy (Amendment) Act 2002. 5. The Medical Termination of Pregnancy (Amendment) Act 2021. 6. The Medical Termination of Pregnancy Rules 1975. 7. The Medical Termination of Pregnancy Rules 2003. 8. The Medical Termination of Pregnancy (Amendment) Rules 2021.

CHAPTER 16 FORENSIC PSYCHIATRY Ambika Prasad Patra, T. Neithiya and V. Vijayanath

Chapter Highlights • • • • • • • • • •

Important definition and terminologies Basics of the human mind Unsoundness of mind Manifestations of mental disorders Legal aspects of unsoundness of mind Restraint and management of the mentally ill Rights and limitations of the mentally ill Recent laws, statutes, and guidelines Role of the doctor, report-writing, and court appearances The Mental Health Care Act, 2017

Introduction Psychiatry is the science of diagnosing, treating, and preventing mental illness and emotional and behavioural disorders. Forensic psychiatry deals with application of psychiatry knowledge to investigate crime for legal purposes for the administration of justice. Usually, it deals with the legal aspects of mental illness, viz. issues of mental competency, the plea of unsoundness of mind in courts, etc. Certification of unsoundness of mind for legal purposes is essentially established by forensic psychiatry knowledge. It helps the judiciary and the police in medicolegal cases to resolve various civil and criminal matters by helping create character sketches and building profiles of potential criminals and to understand the criminal’s thoughts, intentions, and reactions to the crimes they have committed (Kasemsap kijpokin, 2017).1

Definition and Terminologies The question of unsoundness of mind might be medically decided using the knowledge of any one of the behavioural sciences discussed here. Hence, the readers should acquaint themselves with some standard definitions in behavioural sciences.2, 3 • Forensic psychology is a subspecialty of psychiatry where a clinical psychologist administers psychological tests as diagnostic aids in determining a person’s mental state. • Forensic neurology (Neuroscience Practice Institute, PLLC 2022) uses the principles of neurology to evaluate an individual’s neurological status in a legal matter. A forensic neurologist assesses unsoundness of mind and competency of a person using investigations of organic dysfunctions of the brain, i.e., detailed history, physical examination, targeted imaging, laboratory, electrodiagnostics, and related studies, like MERMER or brain mapping tools, EEG, functional CT, f MRI, PET scan, etc., in conjunction with relevant research data from behavioural neurosciences. For example, the common neurotically demonstrable types of mental diseases like psychomotor epilepsy, hypoglycaemic attacks, delirium tremens, somnambulism, etc. II-170

• A mentally ill person is one who is suffering from a mental disorder other than mental retardation and is in need of treatment. • A mentally ill prisoner is one who is suffering from a mental disorder and ordered for detention in a psychiatric hospital, jail, or other safe custody i.e. decided by the court or competent authority. • Relatives include any person related to a mentally ill person by blood, marriage, or adoption. • A psychiatric hospital or nursing home is a place for mentally sick individuals maintained with the aid of the government or non-government agencies with facilities for outpatient treatment and registered with the respective licensing authority. Admitting a mentally ill to a standard nursing home is an offence in India. • Medical practitioner is a person with a recognised medical qualification under the Mental Health Act 1987, whereas a medical officer is in government service appointed by the state. • In-charge medical officer is a medical officer who is in charge of a psychiatric hospital or a nursing home. • Reception order means an order for admission and detention of a mentally ill person in an authorised psychiatric hospital or a nursing home. • A psychiatrist is a medical practitioner possessing a postgraduate degree or diploma in psychiatry recognised by a competent licensing authority and registered with the Medical Council of India (Table 16.1; Box 16.1). TABLE 16.1 Comparison of Psychiatry and Forensic Psychiatry Psychiatry

1. Diagnosis and treatment of mental disorders. 2. Outpatient-based (OPD) admission. 3. The doctor decides the duration of the hospital stay.

Forensic Psychiatry

1.  Exclusion of mental illness. 2. Must be based on requisition from police/court (reception order). 3. They are decided by the doctor but in confirmation with the court authority.

BOX 16.1  MAJOR APPLICATIONS OF FORENSIC PSYCHIATRY2 • Determining the competency in an alleged mental illness case. • Aiding in establishing criminal responsibility in an alleged mental illness case. • Analysis of the medicolegal aspects of behavioural and personality disorders. • Determining the medicolegal responsibilities in some neurological disorders by using specific tests, viz. tests for competency and unsoundness of mind. • Pretrial or under-trial assessment of the detained person upon request of the police or court.

DOI: 10.1201/9781003139126-18

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•

FIGURE 16.1  Psychological components of the human mind.

Basics of the Human Mind Studying the human mind’s thought processes and behaviour encompasses fascinating forensic psychiatry aspects. Let us understand some essential aspects of the human mind discussed in what follows. • Human mind. Bloom’s theory explains about three primary components of the human mind, viz. thought, feeling, and action (Figure 16.1; Table 16.2).4 Chemistry of the Human Mind

Criminal Mind

Multiple theories are available for the development of a criminal and unsound mind. Some of the causal associations between the development of a criminal mind and the mentally ill person are discussed as follows:5 • Genetic factors. Some genetic studies indicate evidence suggesting linkage to conduct disorder on chromosomes TABLE 16.2  Manifestations of three major psychological domains

Intelligence Skills Reason Knowledge Experience Education

AFFECTIVE ‘feeling’

Desire Motivation Attitudes Preferences Emotions Values

•

• •

• Serotonergic neurotransmission. It regulates impulsivity, addictive behaviour, suicide, mood regulation, sexual activity, appetite and eating disorder, cognition, sensory processing, and motor activity. • Monoamine oxidase (MAO-A). It regulates mood, anxiety, aggression, alcoholism, autism, suicide-related behaviours, and impulsiveness. • Catechol-O-methyl transferase (COMT). The catecholamine neurotransmitter group are dopamine, noradrenaline, and adrenaline. COMT gene on chromosome 22 is associated with prefrontal cognitive function, mood disorder, schizophrenia, and obsessive-compulsive disorder.

COGNITIVE ‘thinking’

•

CONATIVE ‘doing’

Drive Necessity Innate force Instinct Mental energy Talents

•

1 and 14. About six gene loci (1, 3, 4, 14, 17, and 20) are identified to develop behavioural disorders or antisocial behaviour (Dick D. M. et al. 2010, 77). C1QTNF7 (C1q and tumour necrosis factor–related protein 7) is the gene in chromosome 4p responsible for the genomewide association between conduct disorders and alcohol dependency. However, it is expected that the interaction of these individual genes with other environmental risk factors may lead to the development of mental illness or criminal tendencies. Aberrant mental development. Hyperactivity and impulsivity are among the most common personality or individual factors that predict criminal tendency development later (Pratt et  al. 2002). Hyperactivity is mainly noticed during 2 to 5 years of age. The commonly observed violence is seen among males with motor restlessness and concentration difficulties. Low intelligence and behaviours. Lower intelligence scores in early childhood often constitute an essential predictor of offending behaviour. In addition to their poor school performance and delinquent behaviour, these children tend to leave school at the earliest age. Risk factors. Some of the risk factors listed in the following and their interactions with some environmental conditions are commonly associated with developing the criminal mind. The etymology of insanity is from the Latin word insani‑ tas or insanus. The term insanity has neither any scientific nor specific legal connotation. The mental state of a person becomes an important factor. Insanity is considered  a  disability  that can  justify depriving someone of certain privileges and rights which all citizens can enjoy. The present Indian law does not recognise terms like insanity or lunatic, unlike the erstwhile Indian Lunatic Act 1912 of British India and the Indian Lunatic Asylum Act 1958. Demeaning terms like insanity, lunatic, crimi‑ nal lunatic, and asylum were changed to mentally ill person, mentally ill prisoner, and psychiatric hospital, respectively, in the amendments of the Indian Mental Health Act 1987 and 1993.

1. Mentally ill. Any person who needs treatment for any mental disorder other than mental retardation. The Mental Healthcare Act, 2017 recommends using terminologies like mental illness, mental challenge, and unsoundness of mind. 2. Unsoundness of mind (‘unsoundness of mind’ definition, Law Insider, 2022) means the state of mental disease or natural mental infirmity (cognitive function is impaired) to the extent a person is not able to know the nature of his acts that are contrary to the law, at the time of doing that act, but does not include a state of mind resulting from intentional intoxication or stupefaction alone or in combination with some other agent at or about the time of the alleged offence. a. The legal concept of an unsound mind is based on the belief that normal humans have rational thoughts, with the power to choose between right and wrong conduct. Thus, the law exempts those persons whose state of mind at the time of the offence confirms the definition of unsoundness of mind, from criminal responsibility (Table 16.3).

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II-172 TABLE 16.3  Factors Associated with the Criminal Mind Family Factors Child abuse, sibling abuse Teenage mothers Criminal parents Large family size coupled with poverty Parental conflict and disrupted families, for example, stepparents or children of living-in parents Extreme child-rearing, for example, extremely liberal, lack of discipline, undue family administration, restrictive rearing

Social Factors

Personal Factors

Socioeconomic The genetic deprivation constitution of a Peer group person influences Aberrant mental Influences from development, for school or college example, the ambience interaction of low Community intelligence, family, influences and social factors Situational factors during childhood

Manifestations of Mental Disorders Psychiatric nosology deals with the classification of mental disorders. Many different conditions are recognised as mental illnesses. Two widely used systems for classifying mental disorders are:1–3, 5 1. Chapter V of the 10th International Classification of Diseases (ICD-10), produced by the World Health Organization (WHO) 2. The Diagnostic and Statistical Manual of Mental Disorders (DSM-5), produced by the American Psychiatric Association (APA) The manifestations of mental disorders (signs and symptoms) are the outcome of dysfunction or malfunction of one or more domains of mind, i.e., cognition, conation, and affect. The symptoms in psychiatry are the experiences narrated by the patient, and a cluster of such symptoms may indicate signs of a specific psychiatric illness (Figure 16.2). Psychosis • This is a disorder of perception wherein thought and emotions (cognition and conation) are so impaired that contact is lost with the reality of external world and without internal needs. It is characterised by depersonalisation, loss of volition, and delusions. • Usually seen in schizophrenia and may be associated with hallucinations, incoherence, dissociation, etc. The most common causes are functional, drug- or substanceinduced, and sometime due to organic causes. Symptoms (alone or together): – Delusion. Unshakable false belief in something without its real existence. Different types are persecution, infidelity, reference, erotomania, grandeur, influence, hypochondriac, and nihilistic. – Illusion (amphetamines, LSD). Altered perception or false interpretation, e.g. a rope may perceived as a snake. – Hallucination (cocaine bugs, alcohol DT/KPs). False perception. Olfactory, tactile, gustatory, visual, auditory. – Delirium. Altered consciousness, disorientation (to time, place, and person), and blunted critical faculty. Korsakoff’s Psychosis

Found in chronic alcoholics.

FIGURE 16.2  Major classes of mental disorders.

– Wernicke–Korsakoff encephalopathy/syndrome results from thiamine (vitamin B1) deficiency psychosis due to chronic neurologic sequelae, causing hallucinations, disorientation, memory loss, and polyneuropathy. Haemorrhage is followed by atrophy of the mamillary body.

Neurosis • Irresistible desire compelling conscious performance of some act without forethought or motive, and is attached to the reality. Cognition intact but not able to control his actions, though understands what he is doing wrong or contrary to the law. • Causes: mood-altering drug/substance, schizoaffective and organic brain disorders. • Symptoms: obsession (OCD), mania (kleptomania, pyromania, mutilomania, erotomania, etc.), running amok (cannabis), phobia (agarophobia, claustrophobia, arachnophobia, acrophobia, etc.) (Figure 16.3). Automatism • The acts performed involuntarily in an unconscious state are known as automatisms, which are not persistent and pervasive, unlike insanity. • Automatic behaviour or unconscious movement ranging from simple, repetitive tics to a complex sequence of natural-looking movements and are rarely used as criminal defence. • Example: Seen in somnambulism, epilepsy, hypoglycaemia. The difference between insanity and automatism remains a grey area and is rarely used as a criminal defence. Causes 1. Insane automatism. Due to internal factors like functional hypoglycaemia (pancreatic islet cell tumour) and more common than neurological/psychiatric disorders (petit mal epilepsy, temporal lobe epilepsy).

Forensic Psychiatry

I-173 There have been instances of lesser sentences awarded on account of mental illness. • If the defence is established on the ground of insanity, such persons are committed to psychiatric hospitals as per Section 471 (i) CrPC. Elements of crime. Actus reus (AR), the guilty act, and men’s rea (MR), the criminal intent. The Doctrine of Criminal Responsibility of ‘Unsound Mind’

FIGURE 16.3  Vicious cycle of obsessive-compulsive disorders (OCD). 2. Sane automatism. Commonly transient, due to external factors like concussion head injury (lucid interval), hypoglycaemia (insulin overdosage), substance abuse, diabetes, and insanity. a. Hyperglycaemia, or high blood sugar levels, arises from diabetes itself, classified as insanity (even though temporary). b. Hypoglycaemia in people with diabetes taking excess insulin causes reduced blood sugar levels (caused by an outside source), causes automatism. Variants of Automatism

1. Somnambulism (sleepwalking). 2. Somnolentia (sleep drunkenness) is a state of dissociated consciousness or parasomnia at the third stage of sleep (slow-wave sleep). However, the individual is socially well-behaved, unaggressive, and well-adjusted in life. The doctrine of diminished responsibility is applicable for this condition and not held criminally responsible.

• Section 84 IPC states that ‘[n]othing 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’. • The mental illness developed during the trial or pretrial period, which is largely possible in an accused, is not a valid ground for exemption under Section 84 IPC. Not all mental defects can enjoy the benefits of Section  84 IPC. Some mental conditions are legally not eligible for a certifiable condition for the unsound mind (Figure 16.4). The Doctrine of Diminished Responsibility • The first recorded case of diminished or partial responsibility was by Alexander Dingwall of Scotland in 1867. While cross-examination, it was told that murder was due to the heat of circumstances, i.e., factors like loss of selfcontrol or an impulsive moment that makes somebody’s actions excusable or less blameworthy. Neither legally valid nor practised in India (Figure 16.5). Unsound Mental Conditions and Criminal Responsibility 1. Automatism. Consciousness is impaired so that he is not fully aware of his actions.

Automatism in Indian Law • The Indian Penal Code has not expressly recognised the concept of voluntariness and its subset of automatism. Generally, the criminal law provides a defence for the illegal acts and omissions of the person only when he involuntarily does such acts and omissions.

Legal Aspects of Unsoundness of Mind • The law presumes that for every criminal act (actus reus), there is a criminal intention (mens rea), and for an individual of sound mind, there should not be actus reus for his every criminal intention (Eckert 1997; Rathod Manvi 2022).1, 6, 7 • However, the onus to prove the absence of mens rea or presence of mental unsoundness at the time of committing the crime lies on the accused (Sec. 105 of IEA).

FIGURE  16.4  Dynamic relationship among the elements of crime that are essential for establishing criminal responsibility.

Medical Jurisprudence & Clinical Forensic Medicine

II-174

FIGURE 16.5  Doctrine of diminished responsibility: current status in India. 2. Delusion. Mere presence does not absolve the person from criminal responsibility. It can be considered or may/may not be, dependiing on a specific case. Clinically it is seen that some persons with frank auditory or visual hallucinations managed their daily pursuits like normal individuals. 3. Delirium. Not responsible. 4. Drunkenness. If with the knowledge or intent to commit a crime, voluntarily consuming alcohol is responsible (Sec. 86 IPC). If the administration of any intoxicant was without his knowledge or against his will, one is not responsible of his crimes. (Sec. 85 IPC). Crimes made under the influence of alcohol or substances: The same principle as hypnotism is applied here. Legally, a person cannot take advantage of his own misconduct governing in case he violated the law in the state of hypnotism, alcoholism, or substance abuse before committing a crime. 5. Mental disorder due to drugs or delirium tremens. May or may not be responsible for his crimes. 6. Hypnotism (mesmerism). Sleep-like trance state induced by a mesmeriser. Hypnotism: All those crimes committed under hypnotic trance are considered as the legal responsibility of the person who committed the offence. A person cannot be hypnotised against his will unless he has volunteered to be hypnotised. Hence, he is expected to have anticipated all the consequences of the act and agreed to become responsible for them. 7. Irresistible impulse is not a sufficient ground for exceptions for criminal liability of an individual unless associated with unsound reason.

8. Somnambulism. Not possible for exemption from criminal responsibility as it is difficult to prove such cases beyond reasonable doubt. 9. Somnolent and semisomnolence. Midway between sleep and wakefulness. Exemption from responsibility is usually not possible as it is difficult to prove such incidences beyond reasonable doubt. 10. Alterations in behaviour due to some medical conditions. There are some medical conditions legally falling short of certifiable unsoundness of mind, like encephalopathies, epilepsies, migraine, somnambulism, and psychopathic disorders, unless the defence can prove his unsound mental state when the act was done. 11. Mental deterioration due to old age conditions. Senile intellectual ability deterioration is a medical fact but has no legal exemption under Section 84 IPC. 12. With respect to cerebral concussion or diseases, hypoglycaemia, and somnambulism, Indian law has no special provisions; instead, dealt under S.84 IPC if deem fit to a particular case. Note that, mere absence of mens rea in a criminal act, e.g., accused did not run away from the crime scene, does not absolve the accused to bring within the ambit of Section 84 IPC, until the defendant has not clearly proved the absence of necessary mens rea to commit the alleged offense beyond reasonable doubt. Plea of Unsound mind Taken in the Following Situations

1. In conviction. 2. In trial.

Forensic Psychiatry

3. In capital punishment of a condemned prisoner. 4. In divorce and nullity of marriage please, i.e., mental illness makes the consent for consummation of marriage by sexual intercourse invalid.

Tests for Unsound Mind The following Western tests are widely discussed in the contest of defence pleas plea of insanity by the criminally prosecuted persons, e.g., accused of rape, homicide, terrorism, etc. However, some Indian forensic psychiatrists rely more upon tests like Right and Wrong test, Wild Beast test, The Insane Delusion test, etc., to declare a person legally insane.

1. McNaughton Rule (Right-and-Wrong Test) 2. The Irresistible Impulse Test (New Hampshire Doctrine) 3. Durham Rule/Product Test 4. Curren’s Rule 5. American Law Institute (ALI) Test

McNaughton Rule • Due to a defect of reason or disease of the mind, the defendant does not know the nature and quality of his act or whether the act that he is committing is wrong. • Principle: If the accused was conscious that the act was one which he ought not to do, and if the act was at the same time contrary to law, he is punishable. In all cases of this kind, the jurors ought to be told that every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes until the contrary proved to their satisfaction. To establish a defence on the ground of mental illness, it must be proved that at the time of committing the act, the accused was labouring under such a defect of reason, from the disease of the mind, as not to know the nature and quality of the act he was doing, or as not to know that what he was doing was wrong. • ‘Defect of reason’ requires an inability to exercise reason rather than a failure to do so at a time when the exercise of the reason was possible. Defects of reason must be total, not temporary, states or moments of lapses. • The disease of the mind test excludes emotional disorders, for example, irresistible impulse and lacking willpower. These are legal terms, not medical ones. McNaughton Rule (Right-and-Wrong Test), 1843: A 29-yearold Scotsman, Daniel McNaughton, had the delusion that spies sent by the Catholic Church with the help of Tories were against him and wanted to kill him. Hence, he decided to kill PM Sir Robert Peel but shot the PM’s private secretary, Edward Drummond, on 20 January 1843. The medical opinion suggested he was mentally ill and probably had paranoid schizophrenia, which forms the background for such a rule. Deficiency in the McNaughton Rule: It considers only the cognitive factors, i.e., the reason. Emotional factors, impulse control abilities of the individual, loss of self-control, hallucination, and isolated delusional belief are not taken into account. • The definition is based on the old psychological concept, and currently, it faces a massive disparity with the practical issues faced by the psychiatrists. For instance, could a hypoglycemic diabetic person with mental clouding ever be termed an insane in medicine? However, the law may consider him as a mentally unsound during the trial of his unlawful acts done under the hypoglycemic attack.

II-175 There is a huge gap between the legal insanity and the rapid developments in forensic psychiatry. The Irresistible Impulse Test (New Hampshire Doctrine) • Abner Rodger was not held criminally responsible for the act of stabbing and murdering the prison warden in prison. This is based on the explanation that despite knowing the quality and nature of the act, he was not capable of restraining himself from doing the act due to some mental disorder. In such cases though the cognition of the person is intact, there is impairment of the affect and/or conation. Hence, this test may be helpful for crimes involved with the affective and schizo-affective disorders. • Whether the impulse was strong or the offender was weak is the criticism given for this test. This test is used in combination with the right-and-wrong test. Durham Rule/Product Test • ‘An accused is not criminally responsible if his unlawful act was the product of mental disease or defect.’ Though this rule was broader than McNaughton’s rule, it’s not followed now. Mental disease is a mental disorder, and the mental defect is mental retardation. • The terms mental disease, mental defect, and product in the definition are ambiguous and often may prove counterproductive to the law, i.e., easy to be misused by the criminals during trial. Curren’s Rule • Donald Curren violated the Motor Vehicle Act. ‘An accused person will not be criminally responsible if, at the time of committing the act, he did not have the capacity to regulate his conduct to the requirement of law, as a result of mental disease or defect.’ It is superior to the Durham rule. A vast majority of mental diseases does not result in criminal behaviour. This rule also includes the irresistible aspect of mental state. American Law Institute (ALI) Test • A person is not responsible for criminal conduct if, at the time of such criminal conduct, as a result of mental disease or defect, he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to adjust his conduct to the requirement of law. It is a combination of McNaughton’s rule and the irresistible test as it considers volition capacity and the impairment of cognition. Note that, all the aforementioned mental tests are Western laws applied during the defense pleas in criminal prosecutions, and none of them are a direct part of the Indian laws or the Indian subcontinent. However, the excerpts or the concepts of the tests are seen associated with the Section 84 IPC.

Laws, Statutes, and Guidelines for Psychiatrists1, 6–8 Supreme Court has clearly stated that the mere mental illness or abnormality or isolated delusions, irresistible impulse or compulsive behavior of a psychopath affords no protection under Section 84 IPC.6

II-176 1. Management of property and affairs. • If any relative gives an application to the court, make an enquiry of unsound mind and incapability of managing his property and affairs. The medical certificate states insanity is of such a degree as to make him incapable of managing his property and affairs. It should be provided. • If it’s not dangerous to him or others, the court appoints a manager for the selling or disposal of the property in case of debts or to meet expenses. • The court can order a second enquiry if unsoundness of mind has ceased.

2. Illegal detention. Any unauthorised person who detains alleged/mentally ill person in a psychiatric hospital/nursing home or for gain, or two or more mentally ill persons in any place not being a psychiatric hospital or nursing home, will face imprisonment for a term up to two years and/or a fine (Sec. 83 MHA 1987). 3. Insanity and contract. A contract is invalid if he was incapable of understanding what he was doing due to insanity. Valid if the other party can show that he did not know. Insanity after the contracts. A mentally ill person is responsible for paying for the simple necessities of life, such as food, shelter, clothing, etc. Occasional sound mind or unsound mind. 4. Insanity and marriage contracts. A marriage contract is invalid if:

• Due to unsoundness of mind, he is incapable of giving valid consent to the marriage (The Hindu Marriage Act, 1955). • Has been suffering from a mental disorder that they are unfit for marriage or giving birth to a child despite being capable of giving valid consent, or due to recurrent attacks of insanity. • Burden of proof. The fitness of insane to be a witness or to give consent • Sec. 118 IEA—an insane person is not competent to give evidence. • Sec. 90 IPC—invalidity of consent. • Sec. 305 IPC—abetment of suicide of insane person. • If he is able to tell what he has seen and understands the obligations of an oath, he is competent. • If a mentally ill person is in the stage of lucid interval, he is competent.

Testamentary Capacity

The requirements for a valid will are: • Properly written document with sign and witness, and the testator is major and in a sound state of mind while making a will. • Will given in lucid interval for an insane person is valid. An intoxicated person becomes eligible only on certification by a doctor. • Force, under the influence, or dishonest representation of facts should not have been applied by others. • A deaf, dumb, or blind person can make a will if he can communicate effectively. • Convicts are not debarred from making a will. (For the procedure, refer to Chapter 6.)

Medical Jurisprudence & Clinical Forensic Medicine

The Mental Healthcare Act, 2017 An act to protect, promote, and fulfil the rights of persons with mental illness while delivering mental healthcare, services, and related matters (Mental Health Care Act, New Delhi: Ministry of Law and Justice, 29 May 2018).8

Mental Illness and Capacity to Make Mental Healthcare and Treatment Decisions

Diagnosis of mental illness. Mental illness is diagnosed as per nationally or internationally accepted medical standards and not based on political/economic/social status/membership or cultural/racial/religious grounds. All mentally ill perosns has right to receive the best available mental health care and be treated with humanity and dignity. Admitting a mentally ill patient to any hospital other than a recognised psychiatric hospital or mental healthcare center is a criminal offence under this Act. A person with mental illness can take decisions regarding his mental healthcare/treatment if such person can understand the information i.e. relevant to decide on the treatment, admission, personal assistance or appreciate any reasonably foreseeable consequence of a decision/lack of decision on his treatment, admission or personal assistance may communicate his decisions through speech, expression, gesture, or any other means. Advance Directive • An advance directive gives way to the individual who wishes to be and not to be treated for his mental illness irrespective of his earlier mental illness. • Can appoint his nominated representative, whose main duty is to ensure that the consultant is aware of such advance directive. • The duty of the treating doctor is to suggest proper treatment plan, though he is not held liable for any unforeseen consequences of the same. • Patient- and consultant-friendly online registration of advanced directive is available for both the patient and the psychiatrist. • All individuals other than minors have the right to make an advance directive in writing in the manner mentioned by the concerned registration authority. It is valid only if the individual loses his ability to decide on mental healthcare and treatment at a given time. With respect to a minor, the legal guardian shall make advance directives. • The procedure for revoking/amending/cancelling an advance directive by the patient is the same as for making an advance directive. However, if the professional/a relative/a caregiver decides not to follow an advance directive, they shall apply to the respective board to review, alter, modify/cancel the advance directive. The board shall, after giving an opportunity to hear all concerned parties, either uphold, modify, or alter/cancel the advance directive after considering it. • The advance directive will never apply for emergency treatment. • The central authority shall regularly review the use of advance directives. • The rights of the mentally ill are access to mental healthcare, community living, protection from cruel, inhumane, and degrading treatment, information and confidentiality, restriction on the release of information

Forensic Psychiatry

•

•

•

•

•

•

•

•

•

in respect of mental illness, legal aid, make complaints about deficiencies in the provision of services. A doctor can admit on the grounds of mental illness, which is severe and requires admission after the individual has understood the nature and purpose of admission and has given valid consent. In the case of minors, upon request of a nominated representative, certification for the admission requirement should be done by two psychiatrists. For admission request from the nominated representative, the following criteria can be used, or for the request for discharge from an independent person, the doctor can prevent discharge for a period of 24 hours if he feels the following: – The patient is unable to understand the nature and purpose of his decisions and requires support. – Potential threat or attempt to cause bodily harm to himself. – Behaved/behaving violently towards another individual/has caused/is causing another individual to fear bodily harm from him. – Shown/showing an inability to care for himself, which puts the individual at risk of harm to himself. This section’s admission for individuals with mental illness should be limited to 30 days. Report to the concerned board within 3 days the admission for a woman or a minor, within 7 days the admission for any other individual. If the admission requirement for more than 30 days or the individual with mental illness is discharged and if he requires readmission within 7 days of such discharge, he shall be admitted after receiving an application from the nominated representative. The state government may order a general or special direction for the removal of the prisoner with mental illness from where he is being detained to a mental health establishment. Any medical treatment should be given after informed consent from the nominated representative, where the nominated representative is available, and where it is immediately necessary to prevent: – Irreversible harm/death – Individual inflicting serious injury to himself or others – Individual causing severe damage to property belonging to himself or others Similarly, the following treatments should not be given: – Electroconvulsive therapy (ECT) without the use of muscle relaxants and anaesthesia – Electroconvulsive therapy (ECT) for minors – Sterilisation for males or females – Chained in any manner Seclusion/isolation and physical restraint may only be used when it is the only means available to prevent imminent and immediate harm to the person concerned or others. The mental health professional in charge of the mental health establishment will be responsible for giving the method, nature of restraint. The justification for its imposition, and the duration of the restraint is immediately recorded in the person’s medical case sheet. Research should be conducted after valid consent of the legal care taker.

II-177 • Not obeying the rule mentioned in this act shall be punishable with imprisonment and fine or both.

Critical Review of MHCA, 2017 • The Mental Healthcare Act, 2017 (MHCA) is a step toward aligning Indian mental health (MH) laws and policy with the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). • Amidst several positives, practical issues are partly attributed to the inherent conceptual limitations of MHCA. • Almost all countries across the globe have enacted legislations to ensure the rights of persons with mental illness (PwMI). The quasijudicial bodies like Mental Health Review Boards (MHRBs) and tribunals are created to ensure treatment and care of PwMI, and to protect their dignity. However, the structure and functions of such quasijudicial bodies may vary country to country. • Effective implementation of the MHRB in prsent form under MHCA, 2017 is compromised due to six-membered quorum. There is lack of clarity about the procedure to adjudicate decisions on matters where the quorum is divided into equal halves, i.e. lack of the realistic, odd combination of the quorum. In addition, inadequate human and financial resources, and overstretched area of functioning of MHRB further deepens the concern. • Although  MHRB has been envisaged as a quasijudicial authority to ensure the rights of PwMI, it deserves to be made more pragmatic. The size and composition of the MHRB currently envisaged is probable a barrier to  its functioning. A “smaller composition (3–5˝ members) of the MHRB” with a psychiatrist, a judicial officer and˝ a memebr from civil society (who lived and served with PwMI) would be more˝ pragmatic” approach. A periodic evaluation of the MHRB functionary and its implementaion of it’s guidelines would resolve the groundlevel pragmatic issues.

Role of the Doctor in the Practice of Forensic Psychiatry Forensic psychiatrists should responsibly use their expertise and influence to advance the health and well-being of individual patients. Psychiatrists are often summoned as witnesses in criminal, civil, and administrative proceedings and usually face trouble understanding complex legal rules and regulations. Their role is to be familiar with terminologies associated with MHA 2017 and needs basic knowledge in dealing with medicolegal issues associated with PwMI. • Various points are taken into consideration before deciding on unsoundness of mind. Psychiatrist should give his scientific opinion and leave the final decision to the Court. These include personal history, family history, absence of motive, want of secrecy, lack of concealment, use of needless force, multiple murders, want of accomplices, and indifference to the crime committed. • Mentally ill persons should be treated without violating human rights according to Section 81 of MHA, 2017 (Table 16.4).

Medical Jurisprudence & Clinical Forensic Medicine

II-178 TABLE 16.4  Medical Evaluation of Forensic Psychiatry Cases Role of Forensic Psychiatrist • • • • •

Certifying compos mentis Issuing other certificates Informed consent Confidentiality Complying to reception order • Voluntary and involuntary (restraint) hospitalisation of mentally ill • Protecting the respect and human rights of a mentally ill

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Certification • Medical certificate for involuntary hospitalisation • Certificate for invalidation from service (unfitness) • Treatment certificate • Mental fitness certificate • Certificate for leave and fitness to resume duties • Certification for mental illness for government benefits • Certification for disability

• •

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Report-Writing and Court Appearances • It should convey opinions, and the basis of those opinions should be organised properly, including a treatment plan. • Any report that ultimately may be read by all parties in the litigation, including those not directly connected to the litigation, should be borne in mind and written in simple language. • Consent, either verbal or written, is essentially submitted for the ability to present opinions and arguments that anticipate critical analysis, disagreement, and cross-examination. • The structure of the report depends on the type of report for civil, criminal, or administrative purposes, and to address a particular psycho-legal question. • In a criminal case, for example, this may include the individual’s thoughts, feelings, and behaviours immediately before, during, and after committing a crime. • In civil cases, an account of the circumstances regarding the claimed tortious act includes the individual’s thoughts, feelings, and behaviours surrounding the case and the subsequent alleged effects of the act on

•

the individual’s social, psychological, and occupational functioning. All the details from the source of information, identification, and case details should be given in the preliminary part of the report. Most forensic psychiatrists include a statement regarding the discussion of the limitations of confidentiality. Opinions should give clear answers to the legal questions of the case and not beyond that. If this is impossible, the medicolegal expert should explain why a definitive answer cannot be answered. The conclusions section is the report’s essential part and will be most carefully read and scrutinised. No new addition in the opinion is allowed if the matters related to such addendum is not mentioned in the body of the report. Neuroimaging and electroencephalography. In various forensic psychiatrists’ evaluations, neuroimaging and electroencephalography have produced important findings. Qualified experts must interpret these tests. Mental status examination. Examination and evaluation are based on general observations during the clinical interview and direct enquiry into related aspects of functioning.

References



1. Jiloha, R.C., Forensic Psychiatry: An Indian Perspective, Jaypee Brothers, 2019. 2. Lloyd, C., Trends in forensic psychiatry.  The British Journal of Occupational Therapy, 1995, 58(5): 209–213. 3. Taylor, S., Forensic Psychology: The Basics (2nd Ed), CRC Press, 2019. 4. Karunamuni, N.D., The five-aggregate model of the mind. SAGE Open, 2015, 5(2). https://doi.org/10.1177/2158244015583860. 5. Gunn, J.,  & Taylor, P.J., Forensic Psychiatry, Clinical, Legal and Ethical Issues, Butterworth Heinemann, 1999. 6. Math, S.B., Kumar, C.N., & Moirangthem, S., Insanity defense: Past, present, and future. Indian Journal of Psychological Medicine, 2015, 37(4): 381–387. https://doi. org/10.4103/0253-7176.168559. 7. Subramanyam, B.V., Modi’s Medical Jurisprudence and Toxicology (22nd Ed), Butterworths India, 1999. 8. Jayakumar, V., “The mental health care act 2017 INDIA Gazette_175248.” Scribd, May, 2017. www.scribd.com/document/347697796/The-Mental-Health-Care-Act2017-INDIA-Gazette-175248.

CHAPTER 17 VIOLATION OF HUMAN RIGHTS AND TORTURE MEDICINE Ambika Prasad Patra, S. Janani, O. Murugesa Bharathi and T. Neithiya

Chapter Highlights • • • • • • • •

Basics of human rights violations Declarations, codes, and laws on torture Torture methods Custodial deaths and autopsy procedure Hunger strike Legal and ethical aspects of hunger strike Role of doctor in hunger strike Forced refeeding syndrome

Introduction This chapter attempts to describe the global scenario of human rights violations and the role of a physician in dealing with its contraventions. Torture has been condemned on international platforms. Global efforts are being taken to eradicate human rights violations. The use of torture has been completely barred under the customary international law as jus cogens (the principle of international law that cannot be ignored by any country).

Basics of Human Rights Torture or human rights violations are always associated with some agenda or vested interest. All torture perpetrators work with an aim or objective. Objectives1 • Military/prisoners of war/autocratic governments. Coercion to extract information, confess a crime, sign documents, etc. • As part of revenge. Usually nonprofessional, amateur criminals. • As part of research. Inhuman, degrading drug trials by corporate companies, often without the volunteers’ knowledge. • Religious grounds. Commonly seen as a part of Islamic jihad. Nazi camps against Jews were also another such example. The victims may be sexually abused, especially women and children.2, 3 • To spread terror in a community. The atrocity of religious minorities by Islamic terrorist groups like al-Qaeda, ISIS, Boko Haram, Taliban, etc. It was responsible for 74% of all gruesome deaths of the non-Islamic community since 2015.2, 3 International Instruments or Agencies to Prevent Human Rights Violations • Universal Declaration of Human Rights (UDHR). The World War II cruelty opened the eyes of the West and called for the United Nations (UN) General Assembly on 10 December 1948 (General Assembly Resolution 217-A) to lay down the Universal Declaration of Human Rights (UDHR). This general assembly with an international instrument prohibited torture under its Article 5, which DOI: 10.1201/9781003139126-19

stated that ‘[n]o one shall be subjected to torture’. The inclusion of the ban on torture in human rights instruments opened the way for other international human rights treaties like the International Covenant on Civil and Political Rights (ICCPR), which, in addition to Article 5, added the right to dignity and protection of every individual from physical and psychological abuse. • Convention against Torture (UNCAT).  The UN General Assembly adopted this convention in 1984 with the aim of the worldwide spread of the movement against torture and the development of effective measures against it in all countries. In total, 136 countries ratified the convention. India signed this convention in 1977 and ratified it in 2021. • Humanitarian Forensics. Humanitarian forensics, a subspecialty of forensic medicine, deals with torture and human rights violations. Humanitarian forensics applies the knowledge of forensic and legal medicine to establish the truth about the injury, death, and disappearance of people during times of war, internal armed conflict, and terrorist action. The primary objective of humanitarian forensics is to examine reports of cases of human rights violations and to prevent future repetitions of such events. Forensic physicians and their auxiliary disciplines have a legal and moral obligation to examine and report all forms of violation of human rights.

Torture Torture (Latin tortura, ‘twisted’, and torquere, ‘to twist’) is a form of cruelty of fellow humans that has existed since the beginning of human civilisation. Torture is the infliction of physical pain, mental agony, or both to force a person to act against his/her will or to punish him/her for retaliation. Article 1 of the ‘United Nations Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment’ defines torture as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as: • Obtaining from him or a third person information or a confession • Punishing him for an act he or a third person has committed or is suspected of having committed • Intimidating or coercing him or a third person, for any reason, based on discrimination of any kind • When such pain or suffering is inflicted at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity

Declaration, Codes, and the Laws A. Declaration of Tokyo4 Whether a treating or an autopsy physician, it is often a doctor who first serves the victims of torture. In October 1975, the World Medical Association (WMA), during its II-179

II-180 29th General Assembly in Tokyo, laid down the guidelines for physicians not to be directly or indirectly involved in cruel, inhuman, or degrading treatment. And later, these guidelines were updated by the WMA in France in May 2005 and 2006, respectively. It declares torture to be ‘deliberate, systematic or wanton infliction of physical or mental suffering by one or more persons acting alone or on the orders of any authority, forcing another person to yield information, confess, or for any other reason’. B. International Human Rights Instruments (IHRI) There are four broad categories of international treaties that serve as guiding principles for protecting human rights in general and forming international human rights. • Types of IHR Instruments a. Declarations. Treaties adopted by the United Nations General Assembly (UN-GA) or similar bodies which by nature are declaratory. Thus, these are not legally binding, although they may be politically authoritative and very well-respected laws, often called soft laws. b. Conventions. These are multiparty treaties and are meant to become legally binding to all parties or signatory countries. Conventions are very specific to its points and language and usually prescribes procedures for ratification by the member country’s legislature. c. Recommendations. Multilaterally agreed treaties more or less similar to conventions; however, they cannot be ratified by the member states’ legislature and are meant to set some common standards. d. Guidelines. These are ‘administrative guidelines’ agreed multilaterally by signatory states, as well as the statutes of tribunals or other such institutions. Any of these international instruments or their principles, over time, can attain the status of customary law  for human rights violations, irrespective of acceptance by a specific state or not, because it gains recognition due to practice for a sufficiently long time. International Committee against Torture (CAT). It comprises ten independent experts to monitor the implementation of the convention against torture by its state parties.

• Some Major International Human Rights Treaties – 1948 Universal Declaration of Human Rights (Universal Declaration) – 1948 Genocide Convention – 1951 Refugee Convention – 1960 Discrimination in Employment Convention – 1966 Racial Discrimination Convention – 1966 Economic, Social, and Cultural Rights Covenant. • International Protocols • The office of the United Nations High Commissioner for Human Rights released some international protocols, for example, the Istanbul Protocol (2004), Minnesota Protocol (2016), etc., for effective investigation and documentation of torture, or extralegal, arbitrary executions and cruel, inhuman, or degrading treatment by states, authorities, or professionals. • These serve as an international manual for the states or professional bodies.

Medical Jurisprudence & Clinical Forensic Medicine • It sets standards of professional ethics to be followed, investigation procedures, securing evidence, and providing protection to witnesses. • It describes the procedures to be followed in case of recovery of human remains, principles to establish identity, types of evidences, samples to be preserved, and methodology to conduct an autopsy. • It explains the duties of the forensic physicians in performing autopsy of a potentially unlawful death. It emphasises the need for proper documentation, which includes maintaining photographic documents. It enumerates various methods of tortures usually encountered and the anticipated findings thereof. The list, however, does not cover the effects of neglect in an individual. • This manual describes that all states must take effective legislative, administrative, judicial, or other measures to prevent acts of torture. • The protocol recommends all professionals to work within the limits of ethical codes set by international instruments of the United Nations and the standards set by their respective professional bodies. • It recognises judges as ‘the ultimate arbiters of justice’ who play a unique role in the protection of the rights of citizens. • This manual reinforces the need for the professional independence of health professionals for the health benefits of torture victims. However, often, a doctor faces ethical dilemmas while serving torture victims where the law of the land conflicts with his/her ethical obligations to the torture victim. The doctor has to choose the health benefits of the torture victim or stick to his/her legal obligations towards the government or law enforcement agencies, for example, police, military, national security services, or in prison. • The doctor in a dilemma. It describes the roles of doctors, forensic physicians, and prison healthcare personnel, who are usually first to serve the victims of torture. The doctor should not accept any unethical and/or inhuman treatment or procedures on victims of torture, nor should he/she allow it to happen under his/her control. One must strictly abide by the UDHR guidelines of treating a human being. A doctor may also be expected to be a whistle-blower of such serious offenses. It is recommended that a doctor must not knowingly place the victims in danger of retaliation and reprisal. It enumerates the different types of tortures and describes the procedure to investigate and document torture. Nevertheless, doctors should have the right to resist and oppose torture. Medical associations should support those doctors whose lives and careers are jeopardised by their refusal to participate in torture practices of a government or similar agencies. Torture and the Indian Laws • Right against torture under the Constitution of India. Articles 12–35 of the Indian Constitution ensure the fundamental rights of its citizens. • In India, no specific arrangements have been expressed to safeguard the rights of individuals against torture. In the Indian Constitution, there is no specific mention of any provisions related to torture.

Violation of Human Rights and Torture Medicine • However, Part III of the Indian Constitution grants fundamental rights to every individual and says every human being has the right to life and should live it with dignity. – This also states that torture, in any form, must not be used on any person, which affects his/her right to live with dignity. – Sections 330 and 348 IPC provide punishment for any acts of torture with 3–7 years of imprisonment with/without fine. – Human rights in India. India enacted the Protection of Human Rights Act (PHRA) in 1993, subsequent to the mass killings of Kashmir Hindus by local Islamic terrorists. It was amended in 2006. National and State Human Rights Commissions (NHRC and SHRC) were constituted under this act, and this act paves the way for legal redressals of human rights violations across the country. NHRC (Procedure) Amendment Regulations 1997 laid down procedures for a suo moto cognizance taken by the NHRC for an incidence deemed fit for investigation or after receiving a complaint. The PHR Act described offenses like harassment, inequality, unlawful solitary confinement in prisons, irregularities in prison, debarment of legal aid, custodial rape, death, abuse, abuse of power by police or armed forces, illegal arrest, unlawful detention, police-motivated incidents, custodial violence, custodial torture, deaths in police firing and fake encounters, etc. among other offenses.5

Custodial Deaths Custodial death refers to deaths in prison, police custody, or custody of similar other authorities. It is important due to the common association of torture and physical abuse allegations in custodial deaths. According to the National Crime Records Bureau of India, most of the custodial deaths in India are due to some illness followed by suicide. A small number of cases are killed during an attempt to escape custody or in road accidents during prison transfer. However, death due to excited delirium syndrome (EDS) should be ruled out in custodial deaths, especially in alcoholics or drug addicts. Detainees on stimulant drugs or hallucinogens, for example, LSD, cocaine, methamphetamine, etc., or psychiatric patients who stop taking their medication suddenly are more prone to develop EDS. Due to acute violent nature of EDS, the signs may mimic a deliberate custodial killing (Figure 17.1).6

FIGURE  17.1  Rubber hose and PVC pipes are used for custodial battering. These cause severe pain without leaving any injury marks (tram track abrasions, bruises, etc).

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Autopsy Procedure7–9 Forensic physicians play a pivotal role in documentation and evidence collection in deaths due to torture. Autopsy surgeons are considered independent experts whose findings are vital in investigating suspected torture death. The autopsy report is the most crucial document for arriving at conclusions about the cause, manner, and mode of death. Nevertheless, the Minnesota Protocol (2016) of the United Nations provides a guideline for investigating potentially unlawful deaths. It describes the investigation, documentation, and autopsy procedures in torturerelated suspicious deaths. In India, the National Human Rights Commission (NHRC) has issued clear and concise guidelines (1993, 1997, 2001) in conducting an autopsy in a suspected death due to torture. INHRC Guidelines 2001 provide a comprehensive pro forma to document potentially unlawful custodial deaths. This pro forma established a uniform national standard for autopsies involving custodial deaths.7 The National Human Rights Commission India (2001) Guidelines for conducting an autopsy in custodial deaths: • It recommends a judicial magistrate must conduct all types of custodial death investigations. Often, special judicial magistrates are appointed, having special powers to deal specifically with such cases (see Chapter  4, ‘Legal Procedure’). • The commission must be informed about all custodial deaths within 24 hours of occurrence. • The autopsy of all custodial deaths must be conducted under videography by a panel of doctors made by the competent authority of a hospital or forensic medicine department. The doctors’ panel should comprise a mix of specialists relevant to a particular case. The available senior-most doctor, preferably a forensic medicine specialist, should lead the team. Uninterrupted and daylight autopsy is highly preferred to the extent possible. • Autopsy videography. The INHRC strictly recommends complete videography and photography of the autopsy examination to ensure a transparent post-mortem examination for a trustworthy autopsy report. The aim is to record complete and detailed findings of the post-mortem examination. Videography rules out any undue influence on the individuals conducting the autopsy examination. This helps in an independent review of the autopsy report later too. The video recording should start with a brief personal introduction of all autopsy team members and the date and start time. The autopsy surgeon should describe important positive and negative observations to the camera while conducting the post-mortem examination. It also recommends taking at least 20–25 coloured photographs, covering the whole body, taken at right angles to the object or body plane. The body tag/ticket bearing the hospital or post-mortem examination number, name, age, and date should first be videographed and incorporated in the photographs too. Video and photography should ideally be done by a person trained in forensic photography and videography in a camera with at least 10× optical zoom and 10 megapixel resolution. The post-mortem report, the videotapes, the memory cards of the autopsy videography, and the magisterial enquiry report must be sent to the commission within two months in a properly sealed and labelled parcel.

II-182 • It is advisable to go for histopathology, microbiology, serology examinations, and chemical analysis of viscera in all such cases to rule out poisoning or diseases. In case of the delay in receiving chemical analysis and/or other reports, the autopsy report, either with a provisional or pending opinion, must be submitted to the commission within two months. When the pending reports are received, the autopsy report with the final opinion is sent to the INHRC through the proper channel.

Precautions before Conducting the Autopsy8, 9

The commission recommends safe shifting of the body from the place of occurrence of crime to prevent loss of vital information. It insists on covering the body in body bags, with both hands wrapped in white paper bags. It also recommends whole-body radiography in deaths due to firearm injuries. Radiological evidence helps in documenting and locating radio-opaque foreign bodies, including firearm projectiles, besides providing photographic records of bony injuries and corroborating the duration of bony injuries. Who Should Be in the Autopsy Room?

Medical Jurisprudence & Clinical Forensic Medicine exclude smothering and other violent injuries. Subungual haematoma or minute lacerations in the nail beds suggest torture. The meticulous dissection of the wrist and ankle regions can show subcutaneous haemorrhagic extravasations in suspension by legs. All cases of alleged torture, irrespective of the gender of the victim, should be examined for signs of sexual abuse. The autopsy in torture deaths provides a scientific basis for how injuries have occurred and to determine the cause of death. However, the traditional autopsy often misses out on torture by neglect, in which food, drink, sleep, and toilet facilities are deprived until death. In such cases, death is primarily due to biochemical and metabolic disturbances. Examination of body fluids, like vitreous and cerebrospinal fluid (CSF), can provide vital information in such cases. Prolonged, uninterrupted interrogation for causing exhaustion and emotional breakdown is a more commonly applied method nowadays instead of physical forms of torture. However, some police personnel have developed an innovative way of beating on the mob with the use of a hollow rubber hose or a PVC pipe piece, which can produce severe pain but leave no signs of caning, i.e., tramline bruises (see Figures 17.1–17.3).

• Autopsy and the morgue room staff. • The lawyer of the deceased (alleged torture victim) or one family member of the deceased may be permitted to see the body and the injuries before the autopsy is started but should be discouraged to stay throughout the autopsy procedure. • The alleged police must not be involved with the case and should not stay in the mortuary during the autopsy examination. No other persons are authorised to witness the autopsy, including politicians and media personnel. Unauthorised trespass to the mortuary during the case would attract penal provisions as per the law.

Post-Mortem Examination7–9

The deceased’s clothing and belongings should be examined on camera for stains, tears, and trace evidence. A thorough external examination is the gold standard for all autopsies. Natural orifices should be examined for signs of physical abuse or foreign materials. Minor needle marks or electrical injuries are easily missed within the body orifices. A head-to-toe examination is essential for signs of blunt trauma, fabricated or concealed injuries. The presence of wounds with varying degrees of healing suggests chronic battering. Deep parallel musculocutaneous incisions are made at multiple areas of the palms, soles, back of the chest, abdomen, limbs, buttocks, and perineal areas for the presence of contusions or hidden injuries. These incisions are necessary for differentiating bruises from post-mortem staining. Examine all body cavities, for example, skull, thorax, and abdominopelvic, to ensure a complete post-mortem examination. In all cases, a layered, bloodless neck dissection is warranted and should not be omitted even when external injuries are absent. The skull is opened first, and the neck dissected last for a bloodless field. Layered dissection of the face can reveal facial soft tissue injuries and undisplaced hairline fractures. Dissect all limb joints for excluding fractures and hemarthrosis. Dissection of the shoulder, knee, and hip joints may reveal suspected suspension and positional tortures. The face, oral cavity, teeth, and gums are examined for torture signs. As a protocol, always examine the inner mucosa of the lower and upper lips to

FIGURE 17.2  Unusual location (inner aspects of thigh) of bruise—possibly due to crushing with boots in a case of alleged death in police custody.

FIGURE 17.3  Demonstration of bruise at autopsy. Note the conspicuous subcutaneous haemorrhage under the black spots seen after dissection (arrow)—an alleged death in police custody.

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TABLE 17.1  Autopsy Findings in Some Commonly Encountered Custodial or Torture-Related Deaths Torture Techniques

Autopsy Findings

Acute (single episode)

Deep bruises (usually in concealed or inaccessible parts of the body), abrasions, lacerations, scars, fractures. Abrasions, bruises, lacerations, scars, fractures (some are at different stages of healing), especially in unusual body parts which have not been treated. Skull fractures, scalp bruising, laceration, cerebral contusions, and chronic or acute on chronic subdural hematoma, SAH; after some time, cerebral cortical scars and atrophy. Cervical spine trauma to be considered when facial trauma is present. Assess nasal bridge alignment, crepitus, deviation of the septum; consider plain X-ray/ CT scan for nasal septum; assess for rhinorrhoea and orbital plate/crista galli fracture. Consider dislocation/fracture of the temporomandibular joint and laryngeal structures. Assess these as part with detailed neck and head examination using subcutaneous dissection. At the same time, look for tooth avulsions and fractures, dislocated dental fillings, broken dental prosthesis, bruised tongue, lesions from forcible insertion of objects into the mouth, electric shocks, or burns. Specific injuries with a shape suggestive of the causative object, for example, tramline bruising from rods, truncheons, or canes. Consequences of blunt force injuries to the orbit, including ‘blow-out’ fractures and/or loss of integrity of the globe, conjunctival haemorrhage, lens dislocation, subhyaloid haemorrhage, retrobulbar haemorrhage, retinal haemorrhage. Bruises or scars around the wrists. A chronic ulcer around wrist or ankle, with damaged hairs follicles, is most likely from the prolonged application of a tight ligature. Bruising or scars at the site of binding; prominent lividity in lower extremities; neck trauma (often minimal but may include fractures in larynx).

Chronic (repeated episodes of ) torture/abuse/battering

Suspension by the wrists Suspension by the neck or arms (e.g. ‘cross-suspension’, spreading the arms and tying them to a horizontal bar; ‘butchery’, tying the hands upwards together, or one by one) Suspension with the feet upwards and head downwards (‘reverse butchery’, ‘murciélago’)

Bruises or scars around the ankles, ligament damage, dislocations in ankles or other joints.

Suspension from a ligature tied around the elbows or wrists with the arms behind the back, or the forearms bound together behind the back with the elbows flexed to 90º and the forearms tied to a horizontal bar (‘Palestinian hanging’)

Abrasions, bruises, scars around the wrist(s); dislocation of shoulder joint, or ligamentous damage, muscular tears, and/or necrosis to upper arm or pectoral muscles; myoglobinurea from renal damage or failure.

Suspension of a victim by the flexed knees from a bar passed below the popliteal folds, while the wrists are tied to the ankles (‘parrot perch’) This can lead to cruciate ligament tears Forcible immersions of head in water often contaminated with urine, faeces, vomit, or other impurities (‘wet submarine’) Many other forms of positional torture, tying, restraining victims in contorted, hyperextended, or other painful positions Blunt abdominal trauma while lying on a table with the upper half of the body unsupported (‘operating table’) Hard slap of palm to one or both ears (‘teléfono’)

Abrasions, bruises, and/or lacerations; scars on the anterior forearms and backs of the knees; abrasions, bruises to the wrists and/or ankles.

Whipping Forcible removal of a fingernail or toenail

Burns

Signs of drowning/near drowning; faecal or other debris in the mouth, pharynx, trachea, oesophagus, or lungs; if survived - aspiration pneumonites. Fractures, dislocations, injuries to ligaments, tendons, nerves, and blood vessels, both recent and old healed wounds. Abdominal bruises, back injuries, injuries to abdominal viscera, including rupture; intramuscular, retroperitoneal, intra-abdominal haemorrhage. Rapid increase of pressure in ear canals causes ruptured eardrum(s); it leads to scarred tympanum. There may be injuries to the external ear. Use otoscope. Multiple depigmented, linear hypertrophic scars surrounded by a zone of hyperpigmentation are most likely due to whipping. Exclude plant dermatitis. Acute, laceration and bruising to the nail bed and skin of the distal phalanx; associated injuries of restraint. On healing, an overgrowth of tissue may be produced at the nail fold, forming a pterygium. Lichen planus is the relevant differential diagnosis, and this is usually accompanied by other skin lesions. Fungal infections produce thickened yellowish crumbling nails. Cigarette, hot objects result in characteristic burns (after healing, these wounds cause atrophic scars with narrow hypertrophic and hyperpigmented periphery; spontaneously occurring inflammatory processes lack this characteristic marginal zone); when the nail matrix is burnt, subsequent growth produces striped, thin, deformed nails, sometimes broken up longitudinal segments.

Electric shock (wires connected to a source of electricity, for Electric shock to hands, feet, fingers, toes, ears, nipples, mouth, lips, or genitalia. Gels or water often used to mask visible burns. The appearance of these burns depends on example, ‘cattle prod’: pointed electric instrument, metal the age of the injury. Immediately: red spots, vesicles, and/or black exudate. Within a on the tip) few weeks: circular reddish macular scars. After healing – small white, reddish, or brown hyperpigmented spots appears. Heated metal skewer inserted into the anus (‘Black slave’) Perianal or rectal burns. May be missed during external examination; even if signs are present, swelling and Repeated blunt trauma to the soles of the feet (and bruising may not be the dominant sign. Closed compartment syndrome may lead to occasionally the hands or hips) (‘falanga’, ‘falaka’, muscle necrosis (aseptic) or vascular compromise to toes and foot. Tarsal and ‘bastinado’) metatarsal fractures may be present. The aponeurosis and tendons may be torn. After healing, irregular scars involving the skin may occur. Sexual assault Sexually transmitted disease, pregnancy, injuries to the breasts or genitalia. All the signs of penetration of vagina, anus, or mouth may be present. Torture does not cover the effects of neglect (including deprivation of food and water) and withholding medical care (9) (10).

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Histologic examination is strongly recommended and is set as a protocol for all deaths related to torture. It has the following advantages:

1. It is an essential element for evaluating the age and nature of the injuries. It determines the signs of secondary complications, like infection, necrosis, etc. 2. It provides a permanent record for future review, viz. assists the reviewers in controversial or debated cases of torture death. 3. It has significant utility in spot autopsy cases, for example, exhumation, conflict zones, etc.

The tissue samples should be preserved in 10% formalin in properly sealed and labelled containers for onward transmission to the forensic pathology unit.

Chemical Examination of the Viscera

Irrespective of the history of poisoning or toxicity, the viscera should be preserved in all deaths related to torture. All routine viscera, i.e., stomach with its contents (tied cut ends), half of the liver, half of each kidney, a loop of the intestine, 10 ml of fluorinated blood, should be preserved in separate, properly sealed, labelled containers and handed over to the accompanying police for onward transmission to the forensic science laboratory (FSL) to exclude the presence of alcohol, drugs, toxins, or any other incriminating chemicals. All viscera are ideally preserved in a saturated solution of common salt. The Minnesota and Istanbul Protocols prescribed procedures for investigation and documentation of torture-related deaths. Some common torture methods and their autopsy findings are listed in Table 17.1.

Hunger Strike10–12 Hunger strikes are voluntary, indefinite fasting by an individual or groups as a form of protest. Hunger strike, the term, is a misnomer. Actually, ‘indefinite fasting for protest’ could be a better term which reflects more accurately the motives behind the fast. This is the demonstration of an aggrieved person who takes an informed decision of intentional, indefinite fasting until his demand is heard or fulfilled (by an authority). Usually, this is done to protest against some forms of injustice. The protester refuses food and water, depriving himself of essential nutrition and nourishment. This is a typical nonviolent way of protest commonly seen in India and Nepal to mitigate oppression and injustice emotionally. Historically, the world’s longest-run hunger strike, i.e., 116 days, was made by two Indian freedom fighters, Bhagat Singh and Shivaram Rajguru, in 1929. They declared an indefinite hunger strike while in jail against the British government’s discriminatory and inhuman treatment of Indian prisoners. After the British administration killed them, a massive public outcry and rebellion rose against British rule. Since then, hunger strikes have become a common method of peaceful protest in India. Pathophysiology of Hunger Strike During the first 12 hours of the hunger strike, the body receives glucose through the liver, followed by muscle glycogenolysis for energy. Between 24 and 72 hours of fasting, the body begins de novo synthesis of glucose by liver gluconeogenesis once liver and

muscle glycogen stores are depleted. Usually, after three days, the body usually begins processing liver fat stores for energy through a process called ketosis. And ketosis is marked by the presence of ketone bodies in urine, which is an alarming sign of a detrimental condition, i.e., acidosis and respiratory alkalosis. With time, it may lead to a fatal fluid and electrolyte imbalance.

Refeeding Syndrome There are instances of forceful feeding resulting in refeeding syn‑ drome (RFS) in patients who have starved for prolonged period. A doctor involved in force-feeding must be mindful of the following complications: – The hallmark biochemical sign of RFS is hypophosphatemia. – Other features include abnormal sodium and fluid balance, hypokalaemia, and hypomagnesaemia. – These patients may also develop thiamine deficiency, especially in alcoholics. – Hence, carefully monitored refeeding must be given priority.

Role of Doctor in Hunger Strike • A doctor is required to monitor the health status of the person at least once every day. • Monitor all vital parameters—BP, pulse, respiration, body weight, etc. • Routine monitoring of urine samples is done for its specific gravity and presence of albumin and ketone bodies. • The doctor should inform the concerned administration or police about the appearance of any amount of ketone bodies in urine or when the vitals go to alarming levels. • Appearance of ketone bodies in urine warns the concerned state authority. The police would take the person under custody because of an ‘attempt to commit suicide’. – Now the state becomes responsible for the life of the protesting person. – The individual may be hospitalised and asked for forceful feeding. – The same metabolic yardstick is also employed to start life-saving intervention in cases of fasting prisoners.

Critical Review 1. Medical issues. A doctor involved in force-feeding must be informed about the possibility of nutritional refeeding syndrome (RFS) to the demonstrator who has starved for a prolonged period. 2. Ethical issues. Allowing the hunger strike of a person, putting his life in danger, is definitely on a cross with the Hippocratic Oath that doctors take. Hence, the doctor has moral duty not to let the person suffer intentionally and starve to death. But this contradicts with Article 8 of the Declaration of Tokyo—the World Medical Association clearly considers force-feeding by doctors as a mode of torture and advises doctors not to practice this. The same is also advocated by the United States Code of Federal Regulations. 3. Legal issues. Articles 14, 19, and 21 of the Indian Constitution discusses the bodily autonomy of an individual, that a person has the right to make an informed decision with his body, and the right to life also means

Violation of Human Rights and Torture Medicine and includes the right to live with dignity, notwithstanding injustice and end-of-life care. Thus, a doctor has no say when it is an informed decision taken by a person to starve. • The Madras High Court justice N. A. Venkatesh held that mere hunger strike will not attract the offence of ‘attempt to commit suicide’, which is punishable under Section 309 of IPC. • Hunger strikes in custody. Force-feeding is usually seen with hunger strikes made in custody, for example, prisoner or undertrial prisoner. Section  52  of the Prisons Act (Jail Manual, Chapter XXVIII, Paragraph 742) says that prisoners who go on hunger strike shall be warned that no request for the redress of any of their alleged grievances shall be considered so long as the strike continues, that hunger strike is a major jail offence, that a mass hunger strike amounts to mutiny, and that hunger strikers are liable to be punished either departmentally or by prosecution under Section 52 of the Prisons Act 1894 (IX of 1894). • Force-feeding in many countries is considered an act of human rights violation. But in India, as of now, the legality of force-feeding remains a priority in the life of a human being. The Role of Doctors in Force-Feeding • The doctor asks for informed consent for treatment after explaining to the demonstrator his right to take an informed decision for fasting. • The doctor makes multiple counselling to the demonstrator about the ill effects of prolonged fasting, its complications, and the prognosis in persons having comorbid health conditions.

II-185 • He goes for multiple health check-ups of the hunger strike protester at different intervals and collects urine samples for the presence of ketone bodies. • The doctor recommends hospitalisation of the protester if the urine becomes positive for ketone bodies (any amount) or his vitals go down, or both. • Then, artificial feeding is started in a dignified way, usually with an intravenous dextrose solution.

References

1. Universal Declaration of Human Rights, United Nations, 1948. 2. HRW Slams Pakistan Over Dissent Crackdown, Alleged Rights Abuses, Human Rights News, Al Jazeera, n.d. www.aljazeera.com/news/2022/1/14/ hrw-report-pakistan-dissent-crackdown-alleged-rights-abuses 3. Grave Violation of Human Rights of Religious Minorities in Pakistan—Ipleaders, n.d. https://blog.ipleaders.in/grave-violation-human-rights-religious-minorities-pakistan/ 4. WMA Declaration of Tokyo. Guidelines for Physicians Concerning Torture and other Cruel, Inhuman or Degrading Treatment or Punishment in Relation to Detention and Imprisonment, The World Medical Association, 1975. 5. Jha, U., “The menace of custodial torture and police brutality—A study.” Indian Review of Advanced Legal Research, May  10, 2021. www.iralr.in/post/ the-menace-of-custodial-torture-and-police-brutality-a-study 6. Patra, A.P., Case-series on death of physically restrained patients in de-addiction centers due to excited delirium syndrome. Journal of the Indian Society of Toxicology, 2015, 11(2): 34–37. 7. India 2020 Human Rights Report. Country Reports on Human Rights Practices for 2020, United States Department of State, Bureau of Democracy, Human Rights and Labor, 2020. 8. Revised Format of Post-Mortem Examination in Case of Death in Police Custody. https://nhrc.nic.in/acts-&-rules/guidelines-1. 9. Guidelines Regarding Conducting of Magisterial Enquiry in Cases of Death in Custody or in the Course of Police Action. https://nhrc.nic.in/acts-&-rules/guidelines-1. 10. Sharma, R., Jain, A., Kumar, A., Bhadada, S.K., Grover, S., & Puri, G.D., Management of hunger strike: A  medical, ethical and legal conundrum. Medico-Legal Journal, 2020, 88(4): 215–219. 11. Eichelberger, M., Joray, M.L., Perrig, M., Bodmer, M.,  & Stanga, Z., Management of patients during hunger strike and refeeding phase. Nutrition (Burbank, Los Angeles County, Calif.), 2014, 30(11–12): 1372–1378. 12. Saxena, A., “Merely sitting on hunger strike will not attract offence of attempt to suicide U/S 309IPC:Madrashighcourt.”LiveLaw.in,February 20,2021.www.livelaw.in/news-updates/ madras-high-court-hunger-strike-not-attempt-to-suicide-309-ipc-170154.

CHAPTER 18 VIOLENCE AGAINST HEALTHCARE PROFESSIONALS Ambika Prasad Patra, M. Senthil Kumaran and Shweta H. Patel

Chapter Highlights • • • • • •

Burnout syndrome among doctors and solutions Basics of stress management Conflict management at the workplace Workplace harassment and its legality Dealing with Workplace harassment Tips for safe medical practice

Introduction Violence against healthcare workers (HCWs) is on the rise across the world. The World Medical Association (WMA) said it is an international emergency that undermines the very foundations of healthcare systems and critically impacts patient’s health.1 The Occupational Safety and Health Administration (OSHA) defines workplace violence as ‘any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behaviour at the work site which ranges from threats and verbal abuse to physical assaults and even homicide. It can affect and involve employees, clients, customers and visitors’.2, 3

Burden of Violence against Healthcare Professionals Nurses and physicians have a high prevalence of violence against HCWs in Asian and North American countries, especially in psychiatric and emergency departments.3 A  study conducted on 295 HCWs by the Indian Critical Care Medicine in 2019 showed that 3.7% faced physical violence and 50% verbal abuse. Maximum incidents were faced by HCWs in the age group of 20–30  years. Out of 158 incidents of workplace violence, 62% occurred in ICUs and 21% in an emergency.4 Kumar M. et al. showed that young doctors and female doctors tend to encounter more violence.5 The highest rates of vio lence were reported in the obstetrics and gynaecology department, followed by internal medicine and surgery. According to the Occupational Safety and Health Administration, workers in healthcare institutions are four times more likely to be harassed than private industry workers during working hours.4, 5

Root Cause Analysis A systematic review of data reveals a foray of factors responsible for the violence against HCWs, listed in the following:6, 7 a. Poor attention to the sick. The commonest complaint by attendants is a prolonged waiting period. Even for critically ill patients in many hospitals, the waiting period may range from one to five hours—a heart-wrenching fact. b. Poor communication. It includes irresponsible, incomplete, callous replies given to the patient or attendant queries by the hospital staff. The lack of empathy, training, and expertise leads to a poor way of explaining the II-186

diagnosis, duration of treatment, or breaking bad news, which is attributed to violent patients or attendants. c. Denial behaviour. In cases of mistakes detected by the attendants or some mishap that harmed the patient. The denial behaviour of the hospital staff further exacerbates the conflict. To avoid conflict, apologise politely for the mistakes and simultaneously assure with a resolution or remedy. d. Squeezed resources. It is the commonest in-situ problem in most of the hospitals in India and the Indian subcontinent. Lack of resources (like staff numbers, facility, and hospital supplies) is directly proportional to corruption, resource mismanagement, and workplace conflicts. e. Religious conflicts. Often, certain religious sects feel hurt by some treatment methods. For example, many religious sects openly rejected and even assaulted HCWs while treating them for COVID or its protection measures or during COVID vaccination drive. f. Sexual touch and violence. Some hospital violence was observed where the doctors or staff were alleged to have ‘sexual touch’ while examining female patients. This tricky situation could have been avoided by keeping a female attendant nearby or allowing female doctors the examination. g. Poor quality of services. The doctor and staff shortage in hospitals, especially at primery centers deprives patients for an early diagnosis of major diseases and the specialist care. This has resulted in patients getting diagnosed at an advanced stage at tertiary hospitals after having missed early diagnosis in primary care. Consequently, this leads to sudden high expenditure and patients’ families not able to afford it, leading to violence. h. Poor implementation of HCWs protection laws. The local administration and the police usually remain numb to violence against HCWs. Undue delay has been noticed in arresting and prosecuting culprits. Unfortunately, some politicians who possess government portfolios have never been ashamed of exerting violence on doctors.

Burnout Syndrome Burnout is a job-related stress syndrome resulting from chronic exposure to work stress. Burnout is a psychological syndrome characterised by emotional exhaustion, depersonalisation, and a sense of reduced accomplishment in day-to-day work. Numerous studies have shown that 25–60% of physicians report fatigue across various specialties. Physicians are inclined to burnout due to compulsiveness, guilt, self-denial, and working in a medical culture that emphasises perfectionism, denial of personal vulnerability, and delayed gratification. Contributors of Physician’s Burnout8 • Work factors. This includes excessive workloads, extended working hours, frequent night duties, risk of medical negligence suits, and methods adopted by physicians concerning death and illness. DOI: 10.1201/9781003139126-20

Violence against Healthcare Professionals • Personal characteristics. Associated with being self-critical, sleep deprivation, overcommitment, perfectionism, and work–life imbalance and an inadequate support system outside the work environment. Recent studies suggest that younger physicians have nearly twice the risk of stress compared with older colleagues. • Organisational factors. Such as negative leadership, expectations, lacking rewards, and less interpersonal collaboration. Dealing with Burnout9 • It is crucial to have a multifactorial approach by changing life habits and optimising work–life balance. These measures concentrate on the triad of relief from stressors, recovery via relaxation, and return to reality. If the symptoms are severe, psychotherapeutic interventions (antidepressants, preferably combined with psychotherapy) are recommended. • Burnout has become a pressing problem worldwide at a different level and has evolved as a challenge for public health. Unfortunately, it is still not clearly defined, and there is no consensus on the diagnosis.

Basics of Stress Management10 • It’s a fact that a smart labour is far more productive than a hard labour. Hence, the question is, ‘How hard do you work, and how much do you get done?’ • An easy first step is taking a brief ‘break’—break from everything mentally and physically. Carrying the work in mind even when on break spoils the essence of the break. • Each branch of medicine should have a ‘break room’ (or) ‘breakthrough room’. Consider including some play, music, healthy snacks, uninhibitory dancing, relaxation tapes, good books, a garden place to walk down on, a total atmosphere of ‘civilised liberty reverence’ to relieve the stress. • Stress management programmes. • A systematic review found minimal evidence to support the effectiveness of stress management training of moderate intensity (more than six hours contact over one month) in short-term reduction of job stress levels, but the beneficial effects diminished without booster sessions. • The intervention strategies planned can be either person-directed (cognitive behavioural therapy, relaxation, music composing, massage, etc.) or work-directed (attitude change, support from colleagues, problem-solving, decision-making, and changes in work organisation). • Participation in ‘wellness programmes’ is related to lower incidence of burnout among doctors.13 The medicine fraternity should meet periodically, invoke dialogue, ponder on the issues to ward away every evil of the workplace.

Conflict Management at Workplace9–11 Conflict is a disagreement or clash between ideas, principles, or peoples at a workplace. Conflict is a major barrier to teamwork and peaceful workplace ambience. The public at the receiving end of the service is the ultimate sufferer of the conflicts among healthcare workers. One can imagine how an indoor patient ward will run if there are conflicts among the doctors and nurses.

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1. Sources of Conflict a. Interpersonal Conflicts • Differences in language, social status, race, religious background, etc. • Differences in approaches between employees for a particular work. • Solitary workers and lack of team spirit. • The success story of one employee may clash with the ego of another and lead to consequent plotting against him. b. Organisational Sources of Conflicts • Inefficient administrators—confused, unclear, and frequently changing policies or job descriptions of the staff. • Compelling staff to work with limited resources. • Conflicts due to inequality—nepotism, favouritism, etc. • Corruption—an infection that can spread among good employees as well. • Interorganisational conflicts or conflicts with local government or politicians and bureaucrats would affect the hospital’s work culture. 2. Conflict Management Strategies Staff conflict should be openly brought out instead of suppressed or avoided. The administrators who have tried to diffuse or suppress conflicts in a department have been seen to be disastrous. Suppressed conflicts, in the long run, becomes destructive conflicts with collateral damage to the department. There are many tools and strategies available to resolve workplace conflicts. The most popular method is the LECPR technique. a. Listening. Patient listening is an active process and is a characteristic of leadership or good people. • This allows understanding the perspective of the conflicting parties. • It soothes the opposite party that you are interested in his perspective. This will end a violent argument. • The department head (HoD)/administrator would call for a meeting among all conflicting parties and listen to their arguments first. You can note down the points of each party while they are speaking. b. Empathising. It is understanding the feelings of others. This is a way of expressing concern to others’ problem. They want to be heard and understood. This is a critical step to foster a dialogue between two conflicting parties. Without it, it is not possible to move to the next step. If the HoD says, ‘I can understand your problem, we should resolve it sooner’, it would calm down the anguished employee. c. Clarifying the conflict. The mediator or the department head who has arranged the meeting after careful listening to all parties would clearly clarify the points of both parties to the audience, in point-topoint manner. • You can say, ‘What I  understand from you is .  .  . am I  right?’ This will make the issue clearer to all staff and delineate where the problem is. Now, it opens the way for resolution.

II-188 d. Permitted defence. Before reaching a conclusion, the mediator should give a last chance for each party to say their concluding point in their defence. But it should always be in a disciplined manner, by taking the permission of the chair. At this stage, only allow concise, to-the-point replies without repeating a rhetoric. e. Resolution. Should be neutral, unbiased, and trustworthy. A  biased resolution is more disastrous than ‘no resolution’ at all. It will lead to further worsening of the conflict with add-on distrust on the HoD. While delivering the verdict, ensure it should be: • Unbiased • Based on the service rules and regulations • Department or institutional policies • If the conflict is due to gaining some rights among the two equals, then use tiebreaking techniques, for example, seniority in age, joining time, cumulative appraisal points, etc. should be given preference.

Dealing with Workplace Harassments10–12 1. Identify the escalating situation. It is essential to identify the dynamic of the evolution of escalating behaviour of the patients and their relatives to stop the violence (Figure 18.1). Stages of escalating behaviour by the patients and their attendants: a. Confusion. • Fear. It occurs due to fear among the patient’s family members due to a lack of information about the admitted patient. • Anxiety. It typically happens when the family members of a patient feel that nobody in the hospital is concerned about the patient. Usually, this happens due to an inadequate number of hospital staff or deficient empathy or sense of responsibility among them. b. Frustration. If not decently cleared in time by the hospital staff, this anxiety and fear would pile up into anguish among the patient’s family members. They start asking questions, turning rude,

FIGURE 18.1  Identifying the signs of escalating behaviour at workplace.

Medical Jurisprudence & Clinical Forensic Medicine argumentative, and listless to any justification for the delay. This is the stage they want immediate justice by being served first. Hence, it is wiser to do something immediately for them, for example, start IV saline drip, dressing, etc., so that they can feel the hospital staff ’s concern about the patient. c. Blame game. The hospital staff and doctors are blatantly blamed by the patient’s family members, bystanders, media, etc. if anything goes wrong, i.e., if the patient’s condition deteriorates, the patient dies, etc. d. Anger. It is the ultimate culmination of stage III and is manifested by physical assault and manhandling of the hospital staff concerned for the treatment of the patient. e. Hostility. This stage is usually seen in sensitive cases, sensitive areas, politically related cases, situations blown out by the media, etc. May be manifested by mob attack and vandalism. Unlike stage IV, irrespective of the staff concerned with the patient’s treatment, the mob attacks any hospital staff that comes across its way (Figure 18.1). 2. Survival mindset for prompt action. The outcome of an escalated situation depends upon how one reacts within the first 15–30 seconds of an event. A  pre-emptive attitude of promptly identifying an escalating crisis, a litigant patient, and prompt reaction is essential. The healthcare staff should be trained in survival techniques. Train all staff regularly on how to respond to an escalated crisis. Rehearse the hospital staff periodically to make them mentally or physically capable of reducing the response time. 3. Prevention techniques. • Zero tolerance. Take zero tolerance for your staff’s rude, irresponsible behaviour across the cadre. Train and monitor your hospital staff accordingly. But incentives for courteous, good employees and prompt punishment for unreliable employees are essential for ensuring violence at the workplace. • Patience to listen. Cooperative behaviour is a basic requirement. First, say, ‘I am ready to help you’, or ‘I am ready to listen’. Listen to the full of their heart until the attendant’s anger is vented out. Patient listening can avoid 90% of the violence. • Secure your safety first. Never talk to a party in open public places, wards, corridors, etc.; arrange for a meeting in a secluded private room, like your office or duty room. • Always allow only one or two persons from the closest possible family members of the patient. • Talk to the closest possible family members only. Often, crook political leaders and goons may join the family and start talking on behalf of the patient. But make it clear that only the closest family person who can take decisions will be allowed to speak. • Deploy experienced, able security personnel. • Install infrared-enabled CCTV cameras at inaccessible heights and with cloud server backup for all recordings (Figure 18.2). • Communication. Timely and complete information about the patient’s condition and prognosis should be given to the attendants. Clarify all their doubts and

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•

FIGURE 18.2  CCTV footage of a resident doctor duty room near a ward depicting all stages of the escalating behaviour. Note, the mistake the resident doctor made was allowing multiple attendants to sit nearby him (Figure A) and those who are not the closest family members of the patient (safe distance was not maintained). Figure B depicts the transition of ‘anger burst’ stage to vandalism (Figure D). This violence has occurred allegedly due to the doctor’s not attending to the hospitalised patient in time. confusions. It’s better to deploy a responsible, experienced, empathetic employee as a communicator to the family members. • Conducive but firm behaviour. Often, the patient’s attendants will do requests for some undue favours, like not to give police intimation in traffic accident cases or poisoning, etc. Do nothing that you are not supposed to do, but the manner of communication should be polite yet firm. Instead of saying straight away ‘No’, you can say, ‘I wish I could help you, but . . .’ or ‘I understand your situation and could have helped, but . . .’, etc. • Public awareness. To the public and the staff through mass media, newspaper articles, etc. 4. Membership of professional bodies or associations. It is recommended that all healthcare workers be active members of their respective associations, so that when such unfortunate violence occurs, one can raise this issue through their association for a robust redressal. In the past, strong protests by various medical care associations put pressure on the government to punish the culprits. 5. 3P-formula to prevent workplace violence: policy + planning + practice = PREVENTION.

Medicolegal Sensitisation Like how the ABCD technique saves the life of a critical patient in the emergency room, the ABCD tips for medical practice can save a clinician from a violent, litigant patient. Medicolegal Tips (ABCDEF) for Safe Medical Practice • A—Attention: Promptly attend to each case, especially critical cases, which must be attended as soon as they arrive at the hospital. Set a protocol for preventing delay in treating patients in OPD or indoor. Incentivise the prompt and punish the unruly employees. • B—Bona fide information: Timely and prompt intimation to the patient’s family is highly essential, especially

•

• •

for patients admitted in ICU, OT, etc. You should discuss about parient’s present condition, diagnosis, treatment plan, prognosis, etc., where the family members cannot stay with him. Example: We have witnessed this during the Covid pandemic, where many of the disturbances or violences in the hospitals were because family members were unable to know what happened to their patient in the Covid ward. C—Consent: Written informed consent or informed refusal is mandatory for all medical procedures. Without valid consent, examining or treating a person legally amounts to an offense of assault. Sign consent only from the person concerned, irrespective of his condition (as long as he is conscious, oriented, and eligible for consent). Only in unconscious patients sign consent forms by family members. The patient and witness should sign the consent form. D—Documentation: Perfect and sincere documentation alone can save a doctor from 90% of negligence allegations/litigations. Like your prescription that can save the patient from disease, the document can save you from a violent, litigant patient. Preserve your medical records for the prescribed period (see details in Chapter 6, ‘Medical Records’). E—Empathy: The single-most entity that can douse off the anger of an aggressive patient or attendant. F—Female attendant: Examine all female patients in the presence of a female attendant. It’s better to allow female doctors for examining female cases.

Sound Practice of Healthcare Service For sound, fruitful healthcare services, one must understand the components of macro- and microenvironments surrounding the medical practice (Figure 18.2). For a sound medical practice, perfect harmony, synchrony, and balance among all these components are essential. Although absolute harmony is nearly impossible due to wider variation in the composition of different components, a nearly balanced system is possible if one adopts the following list of protocols or measures (Figure 18.3). 1. Microenvironments Management • Micromanagement is primarily looked after by the middle- and low-level management of a hospital, i.e., unit heads, HoDs, nursing superintendent, etc. However, it is under the supervision of higher-level authorities. • The responsibilities of the middle- and lower-level administrators are to regulate and monitor the microenvironment on a daily basis. • It includes interaction within the medical and nonmedical staff, like data entry operators, office staff, pharmacies, medical suppliers, diagnostic equipment, technicians, etc. • They cover the emergency, preventative, rehabilitative, long-term, hospital, diagnostic, primary, palliative, and home care. • Hence, the following points should be kept in mind to prevent workplace violence and escalation of issues: • Policies to establish synergies between health worker safety and patient safety. • Integrate staff safety and patient safety incident reporting and learning systems.

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FIGURE 18.3  Components of macro- and microenvironments surrounding the medical practice. • Develop integrated metrics of patient safety, health worker safety, and quality of care indicators, and integrate them with the health information system. • These services are centred on making healthcare accessible, high-quality, and patient-centred. • Healthcare professionals should always respect their patients and satisfy their healthcare needs using the available resources. • Develop linkages between patient safety, occupational health and safety, quality improvement, and infection prevention. • Monitoring these areas may reduce the risk of attacks and strengthen health systems against violence, which is crucial for those operating on the ground. 2. Macroenvironments Management • Micromanagement is the responsibility of the higherlevel authorities of a hospital, like the director, dean, medical superintendent, etc., because this involves interaction with the public, media, policymakers, government, etc. • These authorities should ensure implementation and monitoring of HCW safety laws, legislations, and rules by the local administration/government. • Incompetent administration or poor macromanagement will jeoparadise the workplace. • Include health and safety skills in education and training programs for health workers at all levels. • Incorporate health worker and patient safety requirements in healthcare licensing and accreditation standards. All hospitals should have a specific policy regarding workplace violence, violence root-cause assessment, and conducting early interventions. It’s a must for healthcare professionals to be trained to deal with violent behaviours. You should conduct annual reviews to determine the positive and negative aspects of the current policy.

Role of Society, Politicians, and Stakeholders Prevention and protection from violence against healthcare professionals need a multipronged, collaborative approach. It should be dealt with at different levels of society, as mentioned here:

1. Laws and government policies. a. Ordinances and acts to prohibit violence against medical care servicepersons and damage to property. • Most of the states in India have formed or are on the process to form acts to prohibit violence against medi‑ cal care servicepersons and damage to property. • These are applicable to all healthcare service institutions and for matters connected therewith and incidental thereto. • Punishment: any offence committed: • Shall be cognisable and non-bailable. • Shall be punished with imprisonment for three years and with fine up to 250,000. • In addition to the punishment, the offender shall pay a penalty of twice the amount of purchase price of medical equipment damaged and loss caused to the property as determined by the court. b. Restricted arresting by the police. As per Supreme Court observation (in Martin F. D’Souza v. Mohd. Ishfaq (3541), 2002), police officials should not arrest or harass doctors unless the prima facie evidence or the case falls within the parameters laid down by the court. The erring police officials, if found harassing the doctors, shall face needful legal action. 2. Institution-level policies. An institute should have zero-tolerance policy toward workplace harassment. Every medical institute must form an internal complaints committee for harassment prevention and redressal for its lady students and employees. a. Harassment of women employees at workplace. Section 354 (A) IPC includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication): i. Physical contact and advances ii. A demand or request for sexual favours iii. Making sexually coloured remarks iv.  Showing pornography v. Any other unwelcome physical, verbal, or nonverbal conduct of sexual nature • Punishment: For the first three types of harassment, three years, as compared to the fourth type (making sexually coloured remarks), which is one year. 3. Action by the medical fraternity. a. The National Medical Commission (NMC) action against workplace stress. The NMC has advocated creating a stress-free work environment after receiving grievances from nationwide resident doctors. Therefore, the Post-Graduate Medical Education Board (PGMEB) of NMC, in its official gazette (vide F.No.NMC-23(1)(161)/2022/Med/PG 029301, dated 10 August 2022), instructed that all medical colleges and healthcare institutes are to: • Improve the mental health and well-being of resident doctors. • Institute a committee to look into complaints and grievances (including anonymous complaints/grievances). • Make provisions for sanctioning proper leaves and a positive, conducive working environment. • Appoint a dedicated faculty member as a mental health counsellor, preferably from the psychiatry department.

Violence against Healthcare Professionals • Make mandatory yoga sessions for all, monitored adequately on a regular basis. • Have all medical colleges and PG healthcare institutes submit an action-taken report on the aforementioned issues to the National Medical Commission on a regular basis, especially mentioning cases of suicide, gender bias and incidences of dishonour to woman’s decency, etc. b. The Indian Medical Association has exerted pressure on the government to act on behalf of medical practitioners for acts of violence during the Covid19 pandemic. • The government of India came with an unprecedented health emergency ordinance in 22 April  2020, ‘The Epidemic Diseases (Amendment) Act 2020’, to make violence against health workers treating Covid-19 patients a non-bailable offence. • It states that any act of violence against healthcare personnel or to the property having direct interest due to the epidemic is punishable under this act. • The commission or abetment of such violence will be punishable with imprisonment for three months to five years and a fine of Rs. 50,000 to Rs. 2,00,000. • In case of causing grievous hurt, the imprisonment shall be for a term of six months to seven years and with a fine of Rs. 1–5 lakh. • The act also requires a concluding enquiry or trial within a year. • The judge must record the reasons and extend the time accordingly if not concluded. However, this cannot be extended for more than six months at a time. • The person convicted for causing hurt or grievous hurt to HCWs is liable to pay compensation, as determined by the court. • If damage to any property or loss is caused, the compensation payable shall be twice the fair market value amount. 4. Action by the society. a. The media has an essential role in achieving this goal. It should avoid unnecessarily painting a negative picture of the healthcare system and the professionals. b. The civil society should understand the working conditions and pressure on healthcare professionals. Instead of being violent, the society should be sensitive and empathetic towards healthcare service providers.

Role of Mentors • A mentor has leadership qualities, experience, and qualifications that can help employees to help themselves and help each other at the time of need. Mentorship can help in learning, broadening perspectives, and improving communication. • A healthy workplace should be envisaged with collective responsibility and teamwork. One of the requirements for a healthy workplace atmosphere is mentoring by experienced senior employees. They can foster an

II-191 idealist working attitude balanced with a realistic and pragmatic approach to crisis management. • The mentor can build ideal employees. Good mentoring begets better mentors and a prosperous working environment. The mentoring schemes will benefit in stress reduction and dealing with the crisis. • In medical colleges, faculty members should be encouraged to participate in mentorship programs. They can guide their mentee to develop communication skills, stress management, dealing with difficulties, etc. by providing valuable input and helping shape their mentees’ careers.

Clinician’s Corner

1. How to handle unruly patients or attendants who often dictate to the doctor how many IV drips to be given or that blood transfusion should be done or not? They pick up fights when I try to explain to them what the correct treatment is. Many times it starts with arguments and altercations and escalates into a violent end.

Answer: The National Medical Commission (NMC) has proposed a code of conduct in the Registered Medical Practitioner Professional Conduct Regulations 2022. The proposed regulations, once adopted, will replace the Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations 2002. • Section 26 of this proposed regulation says, ‘In case of abusive, unruly, and violent patients or relatives, registered medical practitioners can document the same, report the behaviour, and refuse to treat the patient. Such patients should be referred for further treatment elsewhere.’ • However, there is no specific definition of ‘abusive’ in law, as it is purely a subjective interpretation that may depend on any individual’s personal opinion. • This will empower doctors to say no to abusive, unruly, and violent patients or patients’ relatives.

2. I am a general practitioner running a private nursing home. Some patients often come to my nursing home to grab free treatment using violent tricks. When asked for payment of bills, they raise vague arguments about the quality of treatment, facility, staff behaviour, etc. They have vandalised my clinic after retaliation from my staff. How to deal with such future incidents?

Answer: Nonpayment of bills is a frequent complaint by many private practitioners. For such unruly patients/attendants:



• Apart from verbal intimation, write registered letters to their address with proof and give them a deadline for payment of fees. Ask for written replies if they are unable to pay by the deadline. Keep all proofs and hire a civil lawyer for this purpose. You can see at the first notice of the court that they will complete the payment. Increase private security at your facility. Install comprehensive, round-the-clock IR-CCTV coverage in your facility. 3. I’m a professor and head of general medicine department. Recently, I  was brutally manhandled

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II-192 by some undergraduate students at my medical college. This was after the death of a medical student from cerebral haemorrhage, possibly due to adverse effects of OC pill use. They accused me of delay in attending the case, which is not true. I  feel terrible that my own students have behaved like goons. What should my present and future course be for such violence? Answer: This is a tricky situation. As per the law, they shall be prosecuted under criminal intimidation and assault if you file an FIR. They would lose their career and probably a chance for a better life. But they are students, though unruly. As a teacher, we have to forget our pain and dishonour when it is related to our students. I  have witnessed how the most notorious students often become good citizens when counselled cogently. I suggest that a direct, healthy debate among the related students and the teacher would resolve this issue.

References 1. The World Medical Association, Inc., n.d. www.wma.net/wpcontent/ uploads/2020/05/WHA73-WMA-statement-on-Covid-19-pandemic-response-. pdf.



2. “Healthcare violence defined.” Stop Healthcare Violence, n.d. https://stophealthcareviolence.org/healthcare-violence-defined/. 3. Magnavita, N., Tarja, H.,  & Francesco, C., Workplace violence is associated with impaired work functioning in nurses: An Italian cross-sectional study. Journal of Nursing Scholarship, 2020. https://doi.org/10.1111/jnu.12549. 4. Li, Y.L., Rui-Qi, L., Dan, Q.,  & Shui-yuan, X., Prevalence of workplace physical violence against health care professionals by patients and visitors: A  systematic review and meta-analysis. SSRN Electronic Journal, 2019. https://doi.org/10.2139/ ssrn.3397188. 5. Kumar, M., A  study of workplace violence experienced by doctors and associated risk factors in a tertiary care hospital of South Delhi, India. Journal of Clinical and Diagnostic Research, 2016. https://doi.org/10.7860/jcdr/2016/22306.8895. 6. “Assaults on public hospital staff by patients and their relatives: An enquiry.” Indian Journal of Medical Ethics, n.d., September 2, 2022. https://ijme.in/articles/assaultson-public-hospital-staff-by-patients-and-their relatives-an-inquiry/?galley=html. 7. Wyk, B.E.V.,  & Victoria Pillay, V.W., Preventive staff-support interventions for health workers. The Cochrane Database of Systematic Reviews, 2010, 3: CD003541. 8. Gazelle, G., Liebschutz, J.M., & Helen, R., Physician burnout: Coaching a way out. Journal of General Internal Medicine, 2014, 30(4): 508–513. 9. Haar, R.J., Róisín, R., Larissa, F., Karl, B., Stephanie, R., Bertrand, T., Christina, W., & Rubenstein, L.S., Violence against healthcare in conflict: A systematic review of the literature and agenda for future research. Conflict and Health, 2021, 15(1). https:// doi.org/10.1186/s13031-021-00372-7. 10. Hart, J.L., Conflict management by physicians: A heavy hand in preference-sensitive decisions. Annals of the American Thoracic Society, 2018, 15(2): 171–172. https://doi. org/10.1513/annalsats.201711-842ed. 11. Violence against Healthcare Professionals in India: We Need to Stop!—Academike, June 9, 2021. www.lawctopus.com. 12. “Code of medical ethics regulations, 2002.” NMC, 2021. nmc.org.in, www.nmc.org. in/rules-regulations/code-of-medical-ethics-regulations-2002. 13. Khurana, R., “Complaint against mental harassment at workplace in India.” Vidhikarya, June, 2022. www.vidhikarya.com/legal-blog/complaint-againstmental-harassment-at-workplace-in-india.

CHAPTER 19 ESTABLISHMENT OF HEALTHCARE FACILITIES Ambika Prasad Patra

Chapter Highlights • • • •

Hospital, clinics, and nursing homes Medical educational institutions and establishments Clinical Establishment Act 2017 Modern mortuary and morgue facilities

Introduction At the beginning of the current century, the Indian government realised the need for a central legislation for the registration of clinical establishments to maintain uniform standards of healthcare services (of both public and private sectors) across the entire country. The 11th planning commission submitted a report on ‘Clinical Establish‑ ments, Professional Services Regulation, and Accreditation of Health Care Infrastructure’ to the government of India in its 2007–2012 Five-Year Plan. This proposed legislation for health facilities and services, in addition to disease control and medical care.1

Clinical Establishment Act The Clinical Establishment (Registration and Regulation) Act 2010 (CERRA) aims to register and regulate clinical establishments (CE) based on minimum standards of facilities and services to improve public health. This act laid down guidelines and restrictions to ensure better services to the patients and uniformity in the healthcare services. This act provides provisions for registration, accreditation, and regulation of both private and public sector healthcare facilities.2 Article 47 of the Constitution confers the right and primary responsibility upon the states to look after healthcare services, i.e., public health safety and improvements. A state can impose prohibition of consumption of some intoxicating drinks, drugs, etc. except for medicinal purposes that are considered hazardous for public health.2, 3

Implementation of the CERRA 20102, 3

From the time of the implementation of CERRA (28 January 2010), only 11 out of 36 states and union territories (UT), viz. Assam, Sikkim, Mizoram, Arunachal Pradesh, Himachal Pradesh, Uttar Pradesh, Bihar, Jharkhand, Rajasthan, Uttarakhand, and Haryana, and all union territories (except Delhi) have adopted this act under clause (1) of Article 252 of the Constitution. Many other states have their own clinical establishment and nursing home rules. As per CERRA, clinical establishments are also expected to follow standard treatment guidelines across the country and fix their charges for a specific type of procedure and service within the range of rates determined by the government from time to time. Some drawbacks of CERRA: • Health is a subject concerning the state government, with exceptions like national programs and missions.

• The success of CERRA depends on the cooperation in its implementation and monitoring by state governments. • Unfortunately, the discrepancies adopted by some states by virtue of their federal rights led to non-uniformity in the implementation of this act, especially in maintaining standardised costs and quality of healthcare services in private medical sectors. Objectives of CERRA 2010 • It is mandatory to register all types of clinical establishments as mentioned in the act. • Improve the quality of healthcare through standardisation of healthcare facilities by prescribing minimum standards of facilities and services for all categories of healthcare. • Prescribing guidelines/policies for clinic resource allocation to determine treatment standards and monitor the establishments. • The act recommends forming a core committee of experts to lay down the ‘standard treatment guidelines’ for common disease conditions in clinics. • Impose fines or penalties for non-compliance. • This act makes it mandatory for all clinical establishments to provide emergency medical care and treatment necessary to stabilise any individual brought to the clinic in an emergency medical condition. It includes women who come for deliveries and accident cases as well. This is irrespective of the payment of fees for the services, i.e., a clinic or doctor preventing an emergency case due to non-payment of fees shall be treated as a violation of CERRA and penalised accordingly. In case the doctor or clinic is not in a situation to provide emergency services to a patient, the patient must be referred appropriately without absolving the doctor from his duty. Specific Objectives of CERRA 2010 Different from Those of Its Predecessor Acts • Prevent quackery by unqualified practitioners. • Establish a digital registry of clinical establishments at the national, state, and district level for clinical establishments (except teaching hospitals). • Ensure compliance with other conditions of registration, like compliance to standard treatment guidelines, non-refusal or mandatory stabilisation of an emergency medical condition, mandatory display of hospital tariffs or cost of various services, maintenance of records, etc.

Types of Clinical Establishments

CERRA 2010 defines clinical establishment and brings all hospitals, nursing homes, maternity homes, clinics, dispensaries, etc. under the ambit of the act. This act applies to all types (therapeutic, diagnostic, and supplementary services) of clinical estab‑ lishments from all recognised systems of medicine, i.e., clinical establishments of allopathy, Ayurveda, Unani, homeopathy, etc.

DOI: 10.1201/9781003139126-21II-193

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II-194 Exception: Clinical establishments owned, controlled, or managed by the Armed Forces.

under this act. The National Council is primarily responsible for setting up standards for clinical establishments and ensure proper healthcare service delivery to the public. It has developed some minimum standards for CEs and undertakes their periodic review. • The elected members of the National Council (NC) make by-laws fixing a quorum and regulating its procedure and the conduct of all business to be transacted by it by meeting at least once every three months. It may constitute subcommittees and appoint persons for the consideration of particular matters.

Categories of CE under CERRA

1. Therapeutic services 2. Diagnostic services 3. Both therapeutic and diagnostic services 4. Public sector CE 5. Private sector CE

Definitions of Various Clinical Establishments • Clinics deal with outpatient services. It may be categorised as follows: a. Single practitioner (consultation services or with diagnostic services or with a short stay) b. Polyclinic (consultation services only/with diagnostic services/with short stay) c. Dispensary d. Health check-up centre • Nursing home means any premises used or intended to be used for reception of persons suffering from any sickness, injury, or infirmity and providing treatment and nursing. It usually provides a small- to moderate-scale beds for indoor services and may include both outpatient services too. • Note that the Nursing Home Act 1956 for nursing homes is applicable to only 14 states/UT out of 36 in India. This act makes mandatory registration of healthcare facilities, nursing home, clinics, diagnostic centres, infertility clinics, etc. To qualify for registration, the criteria laid down in this act must be met. • Maternity homes also come under the ambit of ‘nursing home’ but are exclusively registered for obstetric care meant for pregnant women. There is no specific mention in CERRA for ‘maternity homes’ to provide ‘artificial reproductive technique’ services, though they provide fertility-related treatments. • Hospitals. The word ‘hospital’ usually implies a clinic, dispensary, or other institution for the reception of the sick, whether as ‘inpatients’ or outpatients. But technically, a ‘hospital’ is a healthcare institution providing both outpatient and inpatient services with specialised staff and equipment. They are categorised as: • General practice hospitals and large-scale nursing homes. • Single-speciality hospitals and nursing homes. • Multispeciality hospitals and nursing homes, including palliative care centre, trauma centre, maternity homes, etc. • Superspeciality hospitals and nursing homes. • Indoor facilities with/without day care facilities • Even a single-bed clinic, for example, ENT, eye clinics, etc. Note: All these facilities mentioned now come under the purview of the Clinical Establishments Act 2010. 1. National Council • A body of councils called the National Council for Clinical Establishment (NCCE) has been established

Functions of the National Council • Compile and publish a national register of all registered clinical establishments within two years from the date of the commencement of this act. • Classify the clinical establishments into different categories. • Develop the minimum standards and their periodic review. • Determine within two years from its establishment the first set of standards for ensuring proper healthcare by clinical establishments. • Collect statistics in respect of clinical establishments. • Perform any other function determined by the central government from time to time. 2. State Councils These include a body of councils made at state or the union territory level. Their functions are:



• Compiling and updating the state registers of all clinical establishment. • Sending monthly returns for updating the national register. • Representing the state in the National Council. • Hearing appeals against the orders of the authority (within three months for penalty). • Publishing on an annual basis a report on implementing standards within their respective states. • The state government shall set up a district registering authority with the following members for each district relevant for the registration of clinical establishments: a. District collector as chairperson b. District health officer (CDMO) as convenor c. Three members with such qualifications and on such terms and conditions as may be prescribed by the central government

Minimum Standards to Be Followed by Clinical Establishments According to Section  12 of CERRA, clinical establishments must fulfil at least the following requirements to enable their registration:

1. The minimum standards of facilities and services 2. The minimum requirement of personnel 3. Provisions for maintenance of records and reporting 4. Such other conditions as may be prescribed • The minimum standards for hospitals may differ for different categories of CEs and are decided based

Establishment of Healthcare Facilities



on the ‘level of healthcare service’ provided by such establishments. • The National Council for Clinical Establishments, under the chairmanship of the director general of Health Services, Government of India, prescribed the following requirements for starting clinical establishments: 1. Application format for permanent registration of clinical establishments 2. Minimum standards 3. Formats for collection of information and statistics 4. Template for display of rates 5. Standard treatment guidelines of Ayurveda

This NCCE draft document issued by the government divided hospitals into four levels as follows: 1. Level 1 Hospital • The CEs where the healthcare services are primarily provided by qualified doctors. • It includes services like general medicine, paediatrics, first aid to emergency patient and outpatient services, obstetrics and gynaecology, nonsurgical and minor surgery services. • Bed strength should not be more than 30. • Services must be provided through trained and qualified manpower, with support and supervision of registered medical practitioners (RMPs). • It must have the required support systems for this level of care. 2. Level 2 Hospital • This level includes specialised surgery and anaesthesia services in addition to the services provided at level 1. • It is under the supervision and support of specialists. • It will also have other support systems required for these services, like pharmacy, laboratory, diagnostic facility, etc. 3. Level 3 Hospital • This level includes all the services provided at levels 1 and 2 in addition to multispecialty clinical care services laced with distinct departments, for example, dentistry, intensive care unit, etc. • It provides referral or tertiary healthcare services through specialists. • It will also have other support systems required for these services, like pharmacy, laboratory, and imaging facility. 4. Level 4 Hospital • This level includes all the services provided at level 3 in addition to medical teaching or training services. • It includes teaching institutions and has multiple superspeciality departments with tertiary-level healthcare services. • It shall have other support systems required for these services. • It requires permission and recognition from the National Medical Commission (NMC) or other registering bodies. Template for display of rates. The ministry’s draft documents made it mandatory for CEs or hospitals to follow a particular

II-195 template for the display of various rates related to patient care, laboratory investigations, diagnostics, emergencies, etc.

Registration of Clinical Establishments A registration certificate under the Clinical Establishments (Registration and Regulation) Act 2010 is mandatory for all clinical establishments controlled and managed by the following:

1. Government or government departments 2. Registered trusts and corporations 3. Private owners 4. Single-doctor clinic (irrespective of proprietary rights)

Options for Registration

Clinical establishments may be registered as any of them or both of the following services: 1. Clinical service provider. Involved with direct patient care, like hospitals, maternity homes, nursing homes, dispensaries, clinics, sanatoriums, or any institution that offers services in any recognised system of medicine. 2. Nonclinical service provider. Deals with supportive patient care, viz. pathological, bacteriological, genetic, radiological, chemical, biological investigations, or other diagnostic or investigative services with laboratory or other medical equipment. Registration Procedure • The state government shall set up an authority called the District Registeration Authority (DRA) for each district for the registration of clinical establishments, with the following members, namely, district collector as chairperson, district health officer as convenor, three members with prescribed qualification. No person shall run a clinical establishment unless it has been duly registered. • The minimum requirement of personnel and provisions for the maintenance of records and reporting should be available as prescribed by the act for registration and continuation of every clinical establishment. Also, the staff and facilities required for medical examination and treatment required in the emergency medical condition. Provisional Registration • Application pro forma with the fee shall be filed in person or by post or online within a period of six months from the date of establishment to the authority with all the prescribed requirements. • Grant to the applicant with a certificate of provisional registration given by the authority within a period of ten days from the date of receipt of application, and it is valid to the last day of the 12th month from the date of issue of the certificate of registration. However provisional registration is renewable. The authority shall not conduct any enquiry prior to the grant of provisional registration. • Within a period of 45 days from the grant of provisional registration, all particulars of the clinical establishment so registered provisionally must be published by the authority.

II-196 • Certificate shall be kept affixed in a conspicuous place in the clinical establishment in such manner so as to be visible to everyone visiting such establishment. In case the certificate is lost, destroyed, mutilated, or damaged, the authority shall issue a duplicate certificate on the request of the clinical establishment on payment of fees. • The authority shall publish the names of clinical establishments whose registration has expired. The application for renewal of registration shall be made 30 days before the expiry of the validity of the certificate of provisional registration, and in case the application for renewal is made after the expiry of the provisional registration, the authority shall allow renewal of registration upon payment of an enhanced fees. • Certificate to be non-transferable. – The certificate of registration shall be nontransferable. – In the event of change of ownership or management, the clinical establishment shall inform the authority. – In the event of change of category or location, or upon ceasing to function as a clinical establishment, the certificate of registration in respect of such clinical establishment shall be surrendered to the authority and the clinical establishment shall apply afresh for grant of certificate of registration. Permanent Registration • The DRA entertains applications for permanent registration of a clinical establishment only when it has complied with the minimum standards prescribed under

Medical Jurisprudence & Clinical Forensic Medicine CERA. The district authority shall publicly display the information provided by the Clinical establishment owner for 30 days before issuing the permanent registration certificate to the owner. This is for filing objections from the public, if any. If objections are received, it will be communicated to the clinical establishment for response within a period of 45 days. Permanent registration shall be granted only when a clinical establishment fulfils the prescribed standards for registration by the central government. • After the expiry of the given period and within the next 30 days, the authority shall pass an order either allowing or disallowing the application for permanent registration along with recorded reasons for disallowing an application. The disallowing does not exclude a clinical establishment from applying afresh for permanent registration after rectifying the deficiencies due to which the earlier application was rejected (Figure 19.1). • The certificate of permanent registration shall be valid for a period of five years from the date of issue. The applications for renewal of permanent registration shall be made within six months before the expiry of the validity of the certificate of permanent registration, and in case the application of renewal is not submitted within the stipulated period, the authority may allow the renewal of registration upon payment of such enhanced fees and penalties. Inspection and Cancellation of Registration • Cancellation of registration at any time after registration if: – The conditions of the registration are not being complied with.

FIGURE 19.1  Application procedure for registration of clinical establishments.

Establishment of Healthcare Facilities

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– The person entrusted with the management of the clinical establishment has been convicted of an offence punishable under this act, it may issue an explanation. If not justified, registration shall be cancelled. • Any registered clinical establishment may be subject to inspection or enquiry by the authority, which may do so through a multimember inspection team, as well as regarding its facilities, laboratories, and equipment, as well as the work i.e. carried out or done by the clinical establishment. The authority shall view that authority following inspection, and the clinical establishment shall report to the authority the action which is proposed to be taken or has been taken as a result. • If there is sufficient reason to suspect about the registration status of a Clinical establishment the competent authority of DRA can visit the establsihment premises for inspection at any point of time and the concerned Clinical establishment owner must offer reasonable cooperation for the inspection (Table 19.1).

Medical Educational Institutions (MEI) • Medical college. According to the National Medical Commission Act 2019, a medical college should comprise the medical college infrastructure, the attached teaching hospital/(s), and the hostels for the students and interns, with or without the residential area for faculty and other staff of the college or hospital. The medical college, hostels for students or interns, and teaching hospital or institution shall be in a unitary campus.4 • Starting a medical college. Before establishing a new MEI, it is mandatory to intimate the National Medical Commission through the proper channel. The concerned institution may receive either a letter of permission or a let‑ ter of intention from the NMC to start the medical college. • The same permission procedure applies in upgrading the existing medical seats and/or infrastructure and in starting new medical/allied health science courses. • Section 57(1) and Section 24(1) of the NMC Act enables the NMC to permit or suspend or recognise for the MBBS seats, courses, medical colleges, etc. The detailed matrix of guidelines for starting a new medical college may be referred from the NMC website (available at www.nmc.org.in/rules-regulations/establishment-ofmedical-college-regulationamendment-2020/): TABLE 19.1  Offences and Penalties for Violation of CEA Provisions Offence Holding clinical establishment without registration, the first and second contravention Knowingly serving in a clinical establishment that is not registered Deficiencies that do not pose any imminent danger to the health and safety of any patient and can be rectified within a reasonable time Disobedience of direction, obstruction during inspection and refusal to give information to the authority empowered

Fine 5 thousand to 5 lakh rupees 25 thousand rupees 10 thousand rupees 5 lakh rupees

Establishment of Medical College Regulation (Amendment) 20204–6 • The minimum number of faculty and staff requirements in various medical college departments is based on the annual intake/admission of the MBBS students. The postgraduate and super specialisation course seats are also determined through the same requirements matrix. The specifications of faculty/requirements may be checked at the NMC website or its official gazette. – Minimum Requirements for Annual MBBS Admissions Regulation 2020 – Teachers Eligibility Qualification in Medical Institutions Regulations 2022 • Staff quarters. There shall be accommodation for 100% of senior and junior residents. It shall be mandatory for all senior and junior residents to stay in the residents’ hostel or quarters in the hospital campus.

Morgue and Mortuary Facility Development 1. Morgue. A  place where dead bodies are kept in a body storage refrigerator with or without chemicals either for future post-mortem examination or before cremation.7, 8 • Used for the viewing or identification of bodies and temporary holding or storage of bodies before transfer to a mortuary. Morgue and mortuary are usually different facilities, but small hospitals with fewer body turnovers may be placed in the mortuary room. • Cold storage in morgue: – The typical number of bodies that must be stored should allow room for a potential increase in the number of bodies during the following ten years. AC plant room: When storing more than 12 corpses, a separate plant room of 25 to 30 square feet may be needed. There must be space in front of the cold chambers so that trays may be removed. To enable the attendants to reach the cart from either side, cabinet doors should open on both sides. – Dimension of chamber according to the average body size. The two types are the positive temperature of cold room (5.5°C/6.5°C) and the negative-temperature type, with value of -15°C/-25°C (used by forensic institutes to store unidentified bodies). – Service type. Cabinets with drawers that can store large numbers of bodies in lesser space, but mobility around the body is restricted. Walk-in cool room for individual trolleys, which is ideal for forensic set-ups. This allows mobility around the body. 2. Mortuary. A mortuary is a specific, culturally sensitive public space at a healthcare facility i.e. used to help dispose of dead patients or the deadly victims of crime. The World Health Organization (WHO) has recommended some standards concerning these facilities. • In 1975, the Bureau of Police Research and Development subcommittee reported that teaching

II-198 activities suffered seriously in teaching hospitals having more than 500 autopsies in a year. And this was attributed to the neglected and poor condition of mortuary facilities and services. Even today, most mortuary facilities in state hospitals/medical colleges are poorly staffed, poorly equipped, and poorly funded. • The division bench of Justice Amar Dutt and Justice Kiran Anand Lall (Punjab and Haryana High Court, no. 214 DB of 1997, dated 23 October  2005) has passed orders for the state to open ways and means for conduction of better post-mortems and medicolegal works. • Mortuary staff are obliged to look after the deceased per the law (Sec. 269 and 270 IPC) and the community. • Pathological autopsies are also a part of the service provided in the mortuary but are very sparsely done. Unfortunately, clinicians are not able to exploit the full service of a mortuary set-up even in many premier institutes with good mortuary set-ups and autopsy surgeons.

General Considerations for a Modern, Biosafety-Compliant Mortuary8

It has been shown that most morgue accidents and hazards are due to human errors and ignorance. Some biosafety guidelines have been established for biomedical and microbiological laboratories by various authorities, for example, the World Health Organization (WHO), the Department of Health and Human Services (1999), US National Institutes of Health, India, etc. Should the same principles be introduced to the morgue rooms too? Nolte et al. (2001) opined that the biosafety principles developed for clinical laboratories, biomedical research laboratories, and animal facilities could be broadly applied to morgues too. Therefore, the cornerstone of any autopsy biosafety program is the practice of standard infection control precautions. – Location. The mortuary complex should be in a separate building adjoining the main hospital facility. The building should have separate electricity, drainage, and plumbing supplies. The road to the mortuary must be away from the busy hospital traffic routes and public areas like the hospital canteen, laundry, etc. Separate entry and exit points for staff and family members. – Staff and working areas. • Doctors room. Size 100 sq. ft. This is where the doctor and police fulfil legal formalities and where post-mortem/death reports are generally written or dictated on the telephone or recorded on tape during an autopsy. It may also be used for discussion with members of the clinical staff. • Office room. Reception and registration of case. • Public room/area. Police and family members waiting area. If rooms are not possible, should have rest sheds at least. • Mortuary attendant’s and cleaner’s room. Size 100– 150 sq. ft. • Changing room. Two separate male and female changing rooms. Separate lockers for personal clothes and post-mortem room gowns, aprons, and boots. • Lavatory. Separate for consultant, resident, attendant, and public.

Medical Jurisprudence & Clinical Forensic Medicine • Post-mortem room. • Autopsy room size. Minimum 30 inches × 20 inches. • Sufficient daylight. An open-air (huge 2 ft. ventilating gaps are left between the ceiling and the side walls of the mortuary, with glass panes/ventilators) traditional mortuary allows light due to large skylights on the ceiling or side walls and enough windows. This is most ideal for autopsies. Hence, this type of traditional mortuary may be upgraded to a modern form of set-up, with OT concentrated lights (4,500–6,500 K) over body tables with tilting mechanism. • Ventilation. Sufficient windows, ventilators, and exhaust fans should be there. At least one exhaust fan per 150 sq. ft. area which facilitates continuous fresh air circulation within the workspaces is mandatory to remove contaminants. In a modernised mortuary, the room is equipped with HEPA filters or HVAC ventilation system to provide safe air quality. HVAC ventilation system means heating, ventilation, and air conditioning (HVAC) system, used to control the temperature, humidity, and purity of the air in an enclosed space. This is the most ideal ventilation for closed mortuary facility. It provides both thermal comfort and safe indoor air quality. • Odour control. A very sensitive aspect that will impact the community perception and the environment directly. This can be avoided by using odour control technologies, like activated carbon particles. • Sloped, water-impervious floors for quick drainage, tiled walls for easy and daily cleaning, two sinks for cleaning, shelving for jars (and tanks under) for depositing immediate specimens. Built-in storage cupboards, writing desk, and chairs. • Radiology, forensic photography sections. Scaled colour photography and sketching on the pictorial chart/Traumagram will be highly informative. A  medical observation room will allow the clinical staff to attend to an autopsy. • Stores. Three small stores (size 30 to 120 sq. ft. each). • Clean store. For clean gowns, aprons, rubber gloves, gumboots, towels, and other safety requirements. Chemical utilities like formalin and salt are also stored here. • Instruments and equipment stores. Reserved stock instruments, unused specimen jars, chemical solutions, electric resecting saw, portable trolley, etc. This should open directly into the post-mortem room. Sluice room for the thorough cleansing of all instruments and equipment. • Specimen room. For temporary storage of samples/viscera and to preserve viscera in formalin before being sent to the pathology department or permanent preservation of the related articles. • Waste disposal management. Must comply with the standard biowaste disposal rules and regulation. The drainage water must not contaminate drainage of other parts of the hospital to avoid risks of infection or radiation hazards. The routine cleaning of the

Establishment of Healthcare Facilities autopsy tables generates a high-lipid-content liquid waste. Hence, it possesses the risk of clogging the piping and drains. It can be avoided by using chemical cleansers and thermal jacketing down to the liquid waste treatment plant. Constitutive elements and sealing technologies for the ductwork or pipelines could prevent damage by corrosives, vapour phases, and condensates that may form within the system. Good exhaust mechanism should be provided to remove aerosols created during an infectious autopsy. • Adequate sign boards for fire exit, toilets, mourner’s room, corridors wide enough to allow passage of trolleys (min. 8 ft.). Embalmment can be room (optional). • Biosafety levels in mortuary. BSL I  is commonly installed routinely in tertiary healthcare set-ups. BSL III is for highly contagious diseases, like H1N1, Covid, swine flu, etc. • Teaching mortuary set-up. In addition to the previous requirements, the following facilities are required for a teaching mortuary facility based on the annual intake of medical students in the medical college: • Teaching gallery around the mortuary table (min. for 50 students/round). • Alternatively, advanced telecommunication devices/set-ups can be installed to directly relay the autopsy procedure into the classroom/lecture theatres. This is ideal for a medical college annual intake of 200 or more students. • At least two mortuary tables of stainless steel with arrangements for free drainage of a constant flow of water (hot and natural) from top to bottom. • Reference charts depicting weights and measurements of viscera, bones, etc. • Night autopsy mortuary set-ups: • Lighting conditions. Artificial lights can widely distort the colour temperature (kelvin) and the actual colour of the wound/skin/mucosa/organs thereof. But lamps with the closest colour temperature range of 5,000–6,500 K can provide illumination closer to daylight and may be used as a substitute. (Note: Most of the marketed bulbs fall within a temperature of 2,700–4,000 K.) Hence, the mortuary must have at least two OT lamps (5,000–6,500 K) per body table where night autopsy provisions are there.

Clinician’s Corner

1. I have completed my DM immunology recently. I ran my private clinic in my home without any other staff except me for the last three years. But recently, I have received a notice from the registrar of my district Clinical Establishment Regulatory Authority to either register immediately with penalties or face the consequences. How can a single doctor running a clinic in his home be equal to a full-fledged clinic? Should I be concerned about this notice? What else should I do as a precaution?

Answer: Of course, you have to be serious about it, or else, the district authority has the right to raid your premises and start a seizure, if required, under the violations of the provisions of

II-199 the Clinical Establishment Act 2017. My textbook has included a dedicated chapter on clinical establishment for mass awareness among clinicians. Please read Chapter 19 for more details. Note, CEA has clearly defined clinics, nursing homes, singlebed hospitals, etc. You should ensure which category your clinic falls into and register immediately.

2. I am an MD pathologist working in a government medical college as a senior resident. I want to open a small pathology diagnostic laboratory in my village. Do I need any licenses for it? Any suggestions?

Answer: Yes. The Clinical Establishment Act 2017, unlike its 2010 version, brought in stringent measures for private healthcare, diagnostics, and laboratory services. For details, see Chapter 19 on clinical establishment in my textbook.

3. How to open a maternity home, and what are the requisites for the same?

Answer: Read the registration procedure of Chapter  19 on clinical establishment from my textbook.

4. My father is not a doctor; he is a farmer. Can he be the official owner of my paediatric clinic? Is any specific qualification required to open a clinic or nursing home?

Answer: No specific qualification is required for registering for a clinical establishment. You only have to follow the guidelines and perquisites for facility and staff/infrastructure requirements. You can register in your father’s name.

5. I am a general practitioner running a private clinic single-handedly beside a busy main road. One evening, a weird-looking, suspicious person came to my clinic and requested me to visit a location half a kilometre down the road to help a fellow passer-by having acute chest pain, allegedly a heart attack. But being a lady, I was sceptical of the funky outfit of that person and declined to go along with him. I think I did it right to protect myself. What should I do in the future in such situations?

Answer: Note, as per the Supreme Court, to provide emergency services is the statutory obligation of all healthcare providers. But self-defence is your fundamental right. Hence, you can take your own attendant along with you or arrange for an ambulance to ensure that emergency services are delivered without fail. • Failure to do so would lead to legal prosecution under the violation of the provisions under the Clinical Establishment Act 2017, which includes suspension/cancellation of your clinic license and seizure of your premises. For more information, see Chapter  19 on clinical establishment in my textbook.

References

1. Government of India, Planning Commission| National Portal of India, October  1, 2022. www.india.gov.in/website-planning-commission. 2. Singh, R.S.,  “An overview of the clinical establishments (registration and regulation) act, 2010.” S&A Law Offices, November  25, 2015. https://www.mondaq.com/ india/healthcare/446404/an-overview-of-the-clinical-establishments-registrationand-regulation-act-2010.

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3. “The clinical establishments (Registration and Regulation) act 2010— Advocatetanmoy law library.” Advocatetanmoy Law Library, December  30, 2017. https://advocatetanmoy.com/2017/12/30/the-clinical-establishments-registrationand-regulation-act-2010/. 4. The National Medical Commission Act, NO. DL—(N)04/0007/2003–19, August 8, 2019. url - https://www.nmc.org.in/nmc-act/ 5. National Medical Commission, Rules  & Regulations, NMC, August, 2019. www. nmc.org.in/rules-regulations-nmc/.



6. National Medical Commission Act, Establishment of Medical College Regulation, (Amendment),

2020,

August,

2020.

www.nmc.org.in,

www.nmc.org.in/

rules-regulations/establishment-of-medical-college-regulationamendment-2020/.

7. World Health Organization (WHO), Ethical Practice in Laboratory Medicine and



8. Odega, K., Mortuary Services Set-Up ‘A Step Wise Guideline and Approach’, 2018.

Forensic Pathology, WHO, 1999. https://doi.org/10.13140/RG.2.2.31302.78408.

CHAPTER 20 BASICS OF HEALTHCARE FACILITIES MANAGEMENT Ambika Prasad Patra and T. Neithiya

Chapter Highlights • Fire safety • Hospital hazards • Iatrogenic, operative, and medical equipment–related fatalities • Occupational hazards • Biomedical waste management • Biomedical waste management rules 2018

Fire Safety • Any healthcare facility faces a major risk from fire. Many patients in hospitals are not only weak but also unable to care for themselves and save their lives on their own in the event of a fire. This enhances the requirement for safety devices to be put in place to stop and limit any risk of such a catastrophe. • Smoking materials are the most frequent cause of fire in medical institutions. If smoking is permitted in the hospital, all staff members should be aware of and follow the smoking policies. Smoking should be banned where oxygen is in use or is stored. • Equipment failure or inappropriate use is a major source of fire hazards. As a result, a routine programme of regular equipment inspection should be followed. The following list includes a few equipment risks that might trigger a fire emergency:1 • Cracked or split cords or plugs on electrical equipment or overloaded extension cords; • Greasy kitchen equipment; full laundry lint screens; • Breakdown of an oxygen machine or gas compressor, etc. • By conducting hospital fire safety training, all employees of a hospital should be aware of the following: • Hospital’s emergency plan and location of fire alarm. • How to operate fire-preventive equipment? • How to shut off oxygen machines and other compressed gas systems? • Location of fire extinguishers and how to use them. • How to move patients safely and quickly in any emergency? • A hospital should follow the RACE framework to prevent and handle any fire emergency. RACE stands for rescue/relocate/evacuate, activate/notify, confine, extinguish.

Hospital Hazard • At the hospital, policies and procedures for general safety help employees implement practices that improve both patient and worker safety. The Ministry of Labour, Government of India, had constituted a National Safety

Council (NSC), with objectives on generating, developing, and sustaining a movement on safety, health, and environment.2, 3 • The NSC conducts various safety programs, training activities, risk assessments, hazard evaluation studies, etc. It enables employees to use their skills and knowledge in creating a safe and error-free work environment. (For various hospital hazards, see Figure 20.1.) Radiation Hazards • Radiation is a term used to describe the energy that appears in the form of electromagnetic (EM) waves, such as radio waves, microwaves, ultraviolet (UV), X-rays, gamma rays, and visible light. Areas in healthcare with ionizing radiation hazards include diagnostic radiology, therapeutic radiology, dermatology, nuclear medicine, radiopharmaceuticals, oncology, areas where radioactive materials are stored or discarded. • The adverse health effect of radiological hazards may range from mild effect, such as reddening of skin, to serious ones, such as cancer and death, and the determining factors are the amount of radiation absorbed by the body, the type of radiation, the route of radiation exposure, and the length of time a person is exposed to the radiation, which should be investigated.

Iatrogenic, Operative, and Medical Equipment–Related Fatalities3 A general discussion of investigating medical device accidents is necessarily limited due to the vast diversity of technologies and devices. Chapters or entire texts could be dedicated to the techniques and subtleties of investigating individual technologies (such as anaesthesia machines, physiologic monitors, infusion pumps, heart–lung bypass systems, electrosurgical units, and critical care ventilators), as well as for disposable devices (including catheters, breathing circuits, electrodes, oxygenators, and trocars). Generic classes of device-related accidents could also be addressed for topics such as surgical fires, skin ‘burns’, and gas embolism. Accidents involving perceived failures of implants (e.g. cardiac valves, pacemakers, silicone prostheses, orthopaedic implants) require further unique investigative approaches i.e. currently beyond the scope (Figure 20.1; Table 20.1). Forensic Investigation of Hospital Hazards • An accident investigation’s objective is to ascertain what happened and what remedial and preventive measures may be implemented. In the end, juries and courts establish legal culpability; decisions over who should pay for patients’ actual or fictitious ailments have little to

DOI: 10.1201/9781003139126-22II-201

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FIGURE 20.1  Hazards in a hospital.

TABLE 20.1 Engineering Hazards in the Hospital Building-related mishaps

Collapse of building, fall of plaster/bricks/mortar from the ceilings/walls, damaging life and property

Maintained electrical supply

Failure of power supply, equipment breakdown, short circuiting, and fires, electrocution, and other hazards Accidental fall or Injuries or trapping of patients/public deaths/ failure of lifts complications due to delay in treatment Faulty air Spread of infections; adverse effect of conditioning uncontrolled temperature and humidity Malfunctioning of Delayed/faulty investigations and treatment of equipment patients Polluted water Infections, chemical toxins supply Faulty sewage Blockages, poor sanitation, infections disposal Communication Delay in investigations/treatment breakdown Slip/trip and fall Avoidable injuries to patients/staff/public Accidental fires

Loss of lives and property

do with improving the design and use of safe medical devices. • To provide a clearly stated, plausible medical opinion on what caused the accident during a deposition or trial is the goal of a forensic investigation in a medical malpractice or product liability case, especially in connection with disputes involving contracts, arbitration, and litigation, where forensic investigations are carried out. • A common mistake made when investigating a devicerelated incident is simply inspecting the device or

equipment without regard to all the applicable interfaces. Such investigations tend to overlook the following: • How the device was used. • How it was connected to the patient. • How the device responded with the patient, viz. ECG signals, temperature recording, respired volumes, or pressures, etc. • Whether the control settings were appropriate for the intended therapy or procedure (localised electrical or pneumatic power disturbances). • Electromagnetic or other such interference from nearby devices or sources. • Patient drug therapy and related sensitivities, adverse reactions, etc. • Human factors of usage, i.e., misinterpreted injections or dialysis fluid, expired medications or IV fluid, etc. • Review of the incident reports, medical records, equipment-related documents. • Interviews with affected personnel. • Equipment inspection and testing. • Knowledge on the general causes of medical device accidents and device interfaces is important. • All four interfaces—user/device; device/patient; device/ disposables, like leads, electrodes, reagents, infusion sets, plastic tubing, filters, reservoirs, and breathing circuits; device/user facility, like the source of electric power, pneumatic power (medical gases or vacuum), and interconnecting signal or data-transmission wiring— must be considered when assessing risks or determining the cause of an incident. In the absence of a thorough investigation that considers these interfaces, testing may reveal that the device functioned as designed; thus, the cause of the accident may not be thoroughly understood, appropriate recommendations for prevention cannot be fully developed, and the accident may recur (Table 20.2).

Basics of Healthcare Facilities Management TABLE 20.2 Examples of Various Medical Device-Related Adverse Events Apheresis/dialysis machine air embolism

Low air loss pressure sore treatment bed

Centrifuge contents ejection Defibrillator failure to discharge Dialysis machine contamination Electrosurgical grounding pad burn Epidural catheter breaks Heating pad ‘burn’ Infant incubator overheated Infusion pump infiltration

Manual resuscitator failure Medical gas mix-up

Laser eye injury

Ventilator barotrauma

Pharmacy intravenous solution compounder improper mixing Pressure monitor/transducer inaccuracy and fluid overload Radiation therapy overdose Rongeur break in spinal surgery Surgical drape and oxygen mask fire Tracheal tube fire

Occupational Hazard Occupational hazard is the hazard experienced in the workplace, which may lead to physical, mental, social, or economic trauma. • Physical hazard. Physical hazard can be defined as those environmental factors that are capable of bringing bodily harm without even touching the body, such as noise and vibration. Different types are heat and cold, poor lighting, vibration while using pneumatic tools, like drilling machine, or UV radiation • Chemical hazards. It is harmful and toxic substances that affect the health of the workers. There are three common ways in which chemical agents act, viz. ingestion, inhalation, and absorption through skin or mucous membrane.4 • Local action causing ulcer, dermatitis, cancer, and eczema. • Inhalation of gases or aerosols, for example, exposure to toxic gases like asphyxiating gases, such as carbon monoxide, sulphur dioxide, gasoline, chemical powders, chlorine, or cyanide, and anaesthetic gases, such as chloroform or ether, is common in industries.

FIGURE 20.2  Classification of hazardous infectious agents.

II-203 • Biological hazards/biohazards. Potential threats posed by biological substances on the human and organic health. • Bioagents: HBV/HIV, SARS influenza, snake, scorpion, spider. • Bioderivatives: woolen derived from lambs may cause anthrax; faeces causes psittacosis; milk causes brucellosis. • Zoonoses: leptospirosis, West Nile fever in wildlife photographers. • Bioproducts: bacterial culture media can pose risk of SARS, anthrax infection to lab microbiologist; body fluids can cause risk factor to lab technician or healthcare worker. • Biological hazards in mortuary: infectious agents acquired at autopsy are categorised into four hazard groups based on their virulence, transmissibility, ability to cause epidemic control, and preventability. • The common infections encountered in autopsy rooms include M. tuberculosis (90–95%), hepatitis B (42%), HIV (4–7%), hepatitis C (0.5–2%), and others like H1N1, Zika, rabies, chickenpox, plague, etc. • Common sources include contagious objects, body fluids, aerosols. • Mechanism: – A wound caused by contaminated bathed sharps. – Splash of blood/body fluid onto an open wound/ area of dermatitis. – Contact of skin/mucous membranes with contaminated objects. – Inhalation and ingestion of aerosolised particles (e.g. 1–5 µm). • Safety measure includes hazard categorisation, personal protection, safe transport and packing, safe environment. – Standard precaution includes a scrub suit worn under an impervious gown or apron, eye protection (e.g. goggles, face shield), double surgical gloves, surgical mask. – Specific PPE respiratory protection for aerosols— includes N-95 or N-100 disposable particulate respirators or powered air-purifying respirator (PAPR)

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II-204 or helmeted or hooded PAPR, shoe covers, gloves with an interposed layer of cut-proof synthetic mesh gloves. – Proper handling of protective equipment and contaminated devices (Figure 20.2). Psychosocial Hazard • Though physicians undergo greater level of stress, hospital personnel at all levels are subject to the stresses inherent in healthcare and must develop their own coping strategies. • The process of decision-making is an important organisational stress for all hospital employees. Rapid, complex, and critical decisions must be made on the basis of inadequate data. Furthermore, the affective component of the decision (life or death, disappointment, or hope) adds to the pressure perceived by those involved. • A second major source of structural stress in the hospital is shift work and prolonged work schedules, sleep deprivation. Occupational Safety and Health Administration (OSHA) • According to WHO, occupational health deals with all aspects of health and safety in the workplace and has a strong focus on primary prevention of hazards. • Occupational health is a multidisciplinary field and is provided a common definition by the International Labour Organisation (ILO) and WHO. The main focus in occupational health is on three different objectives: • The maintenance and promotion of workers’ health and working capacity. • The improvement of working environment and work to become conducive to safety and health. • The development of work organisations and working cultures in a direction which supports health and safety at work and, in doing so, also promotes a positive social climate and smooth operation and may enhance productive of the undertakings. Occupational Health and Safety (OHS) Laws in India

1. The Maternity Benefit Act 1961, which is now amended as the Maternity Benefit (Amendment) Act 2017 2. Equal Remuneration Act 1976 3. Equal Remuneration Rules 1976 4. Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act 2013 5. The Employees Compensation Act 1923, amended in the year 2017 6. Employees Liability Act 1938 (pre-independence act) (Table 20.3)

Waste Disposal Management5 Every day, a relatively large amount of potentially infectious and hazardous waste is generated in healthcare hospitals and facilities. When there is no proper management for such waste, there can be direct health impact on healthcare workers, the community, and the environment. These problems pose a threat to the living nature and human world.

TABLE 20.3  Different Categories and Their Protection Requirements Category Category I Category II

Category III

Diseases

Colour of Tag

Anything other than Blue tag category II or III For dead bodies with Yellow tag known HIV, hepatitis C, CJD without necropsy, severe acute respiratory syndrome (SARS), avian influenza, other infectious diseases as advised by the physician, infection control officer, or microbiologist Anthrax plague rabies Red tag viral haemorrhagic fevers, Creutzfeldt– Jacob disease (CJD) with necropsy, and other infectious diseases as advised by the physician i/c, the infection control officer, or microbiologist.

Precaution Standard PPE Standard PPE + bagging

Stringent infection precautions recommended

Biomedical Waste

Biomedical waste is generated during the diagnosis, treatment research, or immunisation of human beings or animals in hospital facilities.

Solid Waste

It includes tissues; items contaminated with blood, such as needles, cotton; and other items used in hospitals, such as bedcovers, napkins, and blankets. Some of the materials can be reused but should be washed or treated with disinfectant. But there are other materials which need to be disposed and not reused.

Liquid Waste

Liquid waste includes the waste generated from washing, cleaning, housekeeping, and disinfecting activities. Biological liquid wastes are generally dispensed straightaway into the hospital’s drainage system, as they do not require any treatment before discarding. A different procedure is followed for waste such as the fluid waste of patients with contagious infections and liquid cultures from microbiology laboratories. They are collected into prescribed containers and then disposed accordingly.

Radioactive Waste

This waste generated during the application of radioisotopes, like in bone mineral density scanners, teletherapy research, calibration and reference standards, etc.

Chemical Waste

Chemical waste includes the chemical and medication waste produced from materials used in the diagnosis, cure, and treatment of humans or other animals. It also includes pharmaceutical waste, such as unused or expired medication, unused or expired drugs, prescriptions and over-the-counter human drugs, veterinary drugs, and nutritional supplements.

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Steps in Biomedical Waste Management

India has a big network of healthcare institutions. It is very essential for each of the institution to have a well-formed and standardised plan for the management of biomedical waste to prevent hospital-acquired infections (HAI). There are four steps involved in proper biomedical waste management.

Segregation

It is a key factor in identifying and categorising waste according to government standards and then sorting them. The generator of waste is responsible for segregating the waste correctly at the original source, such as the bedside or the operation theatre.

Collection

The type of basin or bag used for isolation depends upon the level of risk or hazard that the waste may cause. This is known as storing the waste. The container is then certified per the legal rules, where all the waste-related details are marked. This helps in tracking any information related to the waste stored inside. These containers are then kept at an intermediate storage area until they are transported to the respective treatment or disposal site.

Transportation

The vehicle used for transportation within the hospital, within the premises of the healthcare institution, or outside the premises of the institution should be following the government standards and adequately labelled and well maintained to prevent any infection from spreading or hazard to be done. It is the responsibility of the institution to collect and transport the waste for proper treatment or disposal regularly (Figure 20.3).

Disposal

In each category, there is an appropriate disposable facility defined in schedule I. The following is the discussion of the three different methods used for the disposal. • Incineration involves burning the organic matter in waste materials and reducing it to inorganic incombustible matter. The waste material that can be disposed through this method should have the following characteristics: • Should contain more than 60% of combustible matter. • Should contain less than 50% of noncombustible matter. • Should contain less than 20% of noncombustible matter • Should contain less than 30% of moisture. • Safe pits. To dispose waste sharps such as needle, syringes that are used in day-to-day practices in the healthcare industry. It is the most effective and economical method to avoid the recycling of such materials. • Landfill. This is the oldest form of waste disposable method used. There are various rules set for the construction of landfills, considering the amount of environmental pollution that it may lead to.

Biomedical Waste Management (Amendment) Rules 2018 The salient excerpts of these amendments (vide Notification G.S.R. 234(E), dated 16 March 2018).

FIGURE 20.3  Types of biomedical waste.

• Biomedical waste generators, including hospitals, nursing homes, clinics, dispensaries, veterinary institutions, animal houses, pathological laboratories, blood banks, healthcare facilities, and clinical establishments, will have to phase out chlorinated plastic bags (excluding blood bags) and gloves by 27 March 2019. • All healthcare facilities shall make available the annual report on its website within a period of two years from the date of publication of the Bio-Medical Waste Management (Amendment) Rules 2018. • Operators of common biomedical waste treatment and disposal facilities shall establish bar-coding and global positioning system for handling of biomedical waste in accordance with the guidelines issued by the Central Pollution Control Board by 27 March 2019. • The State Pollution Control Boards/Pollution Control Committees have to compile, review, and analyse the information received and send this information to the Central Pollution Control Board in a new form (form IV-A), which seeks detailed information regarding district-wise biomedical waste generation, information on healthcare facilities having captive treatment facilities, information on common biomedical waste treatment and disposal facilities. • Every occupier, i.e., a person having administrative control over the institution and the premises generating biomedical waste, shall pretreat the laboratory waste, microbiological waste, blood samples, and blood bags through disinfection or sterilisation onsite in the manner as prescribed by the World Health Organization (WHO) or guidelines on safe management of wastes from healthcare activities and WHO Blue Book 2014 and then sent to the common biomedical waste treatment facility for final disposal (Figure 20.4).

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FIGURE 20.4  Biomedical waste management process. Biomedical Waste Management Rules 2016 • The ambit of the rules has been expanded to include vaccination camps, blood donation camps, surgical camps, or any other healthcare activity. • Phase out the use of chlorinated plastic bags, gloves, and blood bags within two years. • Pretreatment of the laboratory waste, microbiological waste, blood samples, and blood bags through disinfection or sterilisation on-site in the manner as prescribed by WHO or NACO. • Provide training to all its healthcare workers and immunise all health workers regularly. • Establish a barcode system for bags or containers containing biomedical waste for disposal. • Report major accidents, existing incinerators, to achieve the standards for retention time in secondary chamber and dioxin and furans within two years. • Biomedical waste has been classified into four categories instead of ten to improve the segregation of waste at source.

• Procedure to get authorisation simplified. Automatic authorisation for bedded hospitals. The validity of authorisation synchronised with the validity of consent orders for bedded HCFs. One-time authorisation for non-bedded HCFs. • The new rules prescribe more stringent standards for incinerator to reduce the emission of pollutants in the environment. • Inclusion of emissions limits for dioxin and furans. • State government to provide land for setting up common biomedical waste treatment and disposal facility. • No occupier shall establish on-site treatment and disposal facility if a service of common biomedical waste treatment facility is available at a distance of 75 km. • Operator of a common biomedical waste treatment and disposal facility to ensure the timely collection of biomedical waste from the HCFs and assist the HCFs in the conduct of training (Table 20.4).

Table 20.4 Categories of Biomedical Waste Disposal Category

Category 1 Category 2 Category 3 Category 4 Category 5 Category 6 Category 7 Category 8 Category 9 Category 10

Waste Type

Human anatomical wastes (human tissues, organs, body parts) Animal waste (animal tissue, body parts, blood, experimental animals used in research, waste from veterinary hospitals, colleges, discharge homes) Microbiology and biotechnology waste (waste from laboratories and researches) Waste sharps (needles, scalpel blades, syringes, glass) Discarded medicines and cytotoxic drugs (outdated, contaminated, or discarded medicine) Contaminated solid waste (waste contaminated with blood and body fluid, such as cotton, dressings, soiled plaster casts) Solid waste (waste from disposable items other than sharps, such as tubing, catheters, intravenous sets) Liquid waste (waste generated from laboratory washing, cleaning, housekeeping, and disinfecting activities) Incineration ash (ash from incineration of any biomedical waste) Chemical waste (waste from the production of other chemicals, disinfection activities, insecticides)

Treatment and Disposal Method

Incineration/deep burial Incineration/deep burial

Autoclave/microwave/incineration Disinfection (chemical treatment)/autoclaving/microwaving and mutilation shredding Incineration/destruction and drugs disposal in secured landfills Incineration/autoclaving/microwaving Disinfection by chemical treatment/microwaving/autoclaving and mutilation shredding Disinfection by chemical treatment and discharge into the drains Disposal in municipal landfill Chemical treatment and discharge into drain for liquids and secured landfills for solids

Table 20.5 Colour Codes and Types of Containers Colour coding Yellow Red Blue/white translucent

Type of Container

Waste Category

Plastic bag Category 1, 2, 3, 6 Disinfected container/plastic bag Category 3, 6, 7 Plastic bag/puncture proof Category 4, 7

Treatment Option

Incineration/deep burial Autoclave/microwave/chemical treatment Autoclave/microwave/chemical treatment and destruction shredding Black Plastic bag Category 5, 9, 10 Disposal in secure landfill The colour coding of waste categories that have multiple treatment options as given in schedule I should be selected considering the treatment option chosen, from the ones suggested in schedule I. The collection bags used for waste types which need to be incinerated should not be made of chlorinated plastics.

Basics of Healthcare Facilities Management

Colour Codes and Types of Containers The schedule II of BMW rules states that the different colour codes and the types of containers that should be used to store the different types of waste are based on their categorisation in schedule I (Table 20.5).

References

1. Docslib, Hospital All-Hazards Self-Assessment (HAH), September 28, 2022. https:// docslib.org/doc/13371940/hospital-all-hazards-self-assessment-hah.

II-207 2. Case Studies of Medical Device Adverse Events . . . Case Studies of Medical Device Adverse Events For Saudi Food and Drug Authority Educational Sessions on Medical Device Accident Investigation—[PDF Document], September  28, 2022. https:// vdocuments.site/case-studies-of-medical-device-adverse-events-case-studies-ofmedical-device.html. 3. Bio Medical Waste Management Rules—2016, Department of Health Research MoHFW Government of India, September  28, 2022. https://dhr.gov.in/document/ guidelines/bio-medical-waste-management-rules-2016. 4. Waste Anesthetic Gases—Overview Occupational Safety and Health Administration, September 28, 2022. www.osha.gov/waste-anesthetic-gases. 5. “Bio-medical waste management rules 2016.” Vikaspedia, February 13, 2020. vikaspedia.in/energy/environment/waste-management/bio-medical-waste-management/ bio-medical-waste-management-rules.

CHAPTER 21 MEDICOLEGAL MANAGEMENT OF POISONING TOXICITY AND DRUG OVERDOSE Ambika Prasad Patra, Chaitanya Mittal and T. Neithiya

Chapter Highlight • Legal and ethical issues related to advertisement of drugs, e-Pharmacy, and the sale of drugs by doctors. • Household poisoning. • Crimes related to poisons/toxins—doping, ergogenic drugs, scheduled drugs, and acid attacks. • Dealing with cases of unknown poisoning, drug overdose, snake and insect envenomation. • Role of a doctor in medicolegal (ML) management of poisoning cases—autopsy procedure, report-writing, and court appearances. • Poisons information centre (PIC).

General Considerations This chapter is not meant to discuss the entire toxicology; rather, it emphasises on the general aspects of some medicolegally important poisons and their management. It will discuss all the necessary medicolegal (ML) prerequisites that a doctor should keep in mind before attending a poisoning case. There are ML aspects in all acute, subacute, or chronic poisoning cases. There can be three types of medicolegally relevant poisoning cases—accidental, homicidal, and suicidal. Most of the patients either have accidental or suicidal poisoning. Homicidal poisoning is very rare. Any institution or hospital, either government or private set-up, is legally bound to treat the poisoning cases irrespective of their nature, either suicidal or accidental or homicidal. Suppose necessary or adequate facilities are not available in the hospital, the patient can be referred to the higher centre, but after administering the first aid and any medical or surgical treatment essential during that situation, before referring to the nearest hospital where facilities are available.

Classification and Terminologies1–3 a. Poison. A  substance that, when introduced into the human body or comes into contact with any part of the living body, will cause ill effects or death by its local or systemic action or both. Examples: toxic gases, drugs, toxins, venom, chemicals, glass particles, etc. b. Toxin. A poison derived from living organisms, like animals, plants, or microbial origin. For example, botulinum toxin, strychnine, viper venom, cantharides, etc. Toxinology is the study of toxins. c. Venom. Toxin of animal origin injected by sting, bite, or through body appendages, for example, venomous snakes, fishes, bees, wasps, scorpions, etc. Venoms may not cause toxicity if ingested if the gut mucosa has no bleeding points. Note: Poison encompasses toxins and venoms, but the contrary is not valid, viz. all toxins are poisons, and all venoms are toxins, but neither all poisons are toxins, nor are all toxins venoms. II-208

d. Fulminant poisoning. A  type of poisoning in which a massive dose of drug or poison or xenobiotic consumed causes rapid death with collapse. e. Acute poisoning. It is a type of poisoning in which a single large dose is taken but not a massive dose relatively or several small doses taken in a short period with abrupt onset of symptoms. Subacute poisoning is a type of poisoning with both acute and chronic poisoning features. f. Chronic poisoning. A  type of poisoning where small doses have been taken over a long time with insidious onset of manifestations. g. Toxicology. The branch of science that deals with the knowledge of characteristics, properties, and sources of various poisons, their clinical presentation in the body on exposure, and the treatment. h. Medical toxicology. The branch of science that deals with the action, estimation, lethal dose, properties, toxicity, and treatment of various poisons. i. Toxidromes. A constellation of clinical signs and symptoms associated with certain classes of poisons, for example, cholinergic type, opioid type, anticholinergic, sympathomimetic, narcotic type, etc., is called a toxic syndrome or toxidrome in short. Forensic toxicology. Forensic toxicology is the branch of science that deals with the application of knowledge of toxicology for the administration of justice, i.e., for ML purposes. Objectives while dealing with poisoning cases are identification, investigation, and collection of evidence; preservation, documentation, and reporting; and justice delivery. The doctor needs answer to the following queries:

1. Is it caused by a poison? 2. What are the effects? 3. What is the amount? 4. When was it taken/exposed? 5. Is it responsible for the death or illness or behaviour changes?

The answers are sought from: • Property: physical, chemical, physiological, solid, gas, liquid, etc. • Active principle that caused poisoning. • Nature of poison: neurotoxic, haemotoxic, myotoxic, allergens, etc. • Dosage of poison: dose–response relationship. • Investigation: clinical findings, laboratory and ML reports • Treatment received: diagnosis, management, antidotes given, etc (Figure 21.1; Table 21.1).

Medicinal Poisoning Medicinal poisoning refers to the toxicity caused by medicinal preparations or substances used for personal well-being. The DOI: 10.1201/9781003139126-23

Medicolegal Management of Poisoning Toxicity II-209

FIGURE 21.1  Classification of poisons. 

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TABLE 21.1  Severity of Poisoning as per the Toxicity Rating Scale (Gosselin, Smith, and Hodge Scale)4

TABLE 21.3 Common Household Medicinal Poisoning and Drug Dosage

Toxicity Rating 6 5 4 3 2 1

Toxicity Class Super toxic Extremely toxic Very toxic Moderately toxic Mild toxic Nontoxic

Lethal Dose Range in an Averagely Built Adult (70 kg) 15 g/kg

TABLE 21.2 Characteristics of Ideal Suicidal and Homicidal Poison Ideal Suicidal poison Should be cheap and easily available Capable of being administered with food material, tasteless or of pleasant taste Should be highly toxic ensuring death Should be capable of producing painless death, for example, opium and barbiturates Paradox: commonly used are organophosphorus compounds, rodenticides, and endrin

Ideal Homicidal poison Should be colourless, odourless, and tasteless Capable of being administered with food materials without being detected Should be highly toxic, ensuring death Signs & symptoms should resemble a natural disease Poisons having minimal post-mortem changes and mimic natural deaths and/or evade detection by the common chemical tests, viz. stupefying agents (Rohypnol, GBH, ketamine), fluorine, and thallium (historical—in past commonly used are arsenic and aconite)

commonest manner of such poisoning is accidental, followed by suicidal. Homicide using household medicines is rare. There may be two broader classes, as follows:

a. Household poisons b. Unknown poisons

Household Poisons6 • The most common contributory factors for poisoning are household poisons. • The cliche ‘the medicine cabinet, the lethal cabinet’ basically refers to how a household is full of hazardous things (Tables 21.2 and 21.3), most frequently common medications and chemicals like toilet cleaners, and susceptible to poisoning, especially involving the elderly and children. • Both intentional self-harm and accidents due to household agents are common. • Young adults in 18-to-30-year-old age group shows a high-risk tendency of committing suicide using household agents, for example, rodenticides, pesticides, hair dyes, etc. • Depression or mental illness may lead to drug overdose casualties, especially with the elderly patients. • Children in the 6-to-8-year-old age group are more vulnerable to accidental exposure to household agents. Medications, cleaning agents, and cosmetics are usual culprits for paediatric poisoning in a household (Tables 21.2–21.5).

• Antipyretics: paracetamol • Sleeping pills: alprazolam, midazolam, diazepam, barbiturates, tranquillisers, etc. • Cold and cough suppressants: codeine, pholcodine, chlorpheniramine maleate, cetirizine, etc. are commonly misused by drug addicts due to easy availability. Children are vulnerable due to their colour and taste factors. • Antibiotics: tetracycline/doxycycline, aminoglycosides, cephalosporines, etc., leading to acute hepatotoxicity and renal toxicity. • Pain killers: aspirin, ibuprofen, nimesulide, etc. • Antihypertensives: β-blockers, calcium channel blockers, clonidine, etc. • Antidiabatic drugs: insulin, metformin, and other oral hypoglycaemics • Cardiac remedies: digitalis, β-blockers, α-blockers, etc. • Antidepressants and antipsychotics: sertraline, clozapine, other SSRI and MAO inhibitors, neuroleptic agents, etc. • Antiseptics: benzoin, iodine, mupirocin, Neosporin, etc. • Vitamin tablets: Vit.A, iron tonics/tablets • Crude steroidal preparations are spurious medications sold over the counter or in online stores that are misused for weight gain or body-building purposes, mostly causing chronic hepatic and renal toxicity. • Homeopathic remedies: tonics and tinctures containing strychnine, aconite, belladonna, etc.

TABLE 21.4 Common Poisonous Household Substances • Pesticide, rodenticides, roach powder, and hair dyes are the commonest household poisons. • Transparent and colourless toilet cleaners, vinegar, etc. kept in discarded soft drink bottles (a common practice in Asia) causes accidental poising. • Camphor, naphthalene/mothball, deodorant cakes, etc. cause accidental poisoning among children due to their colourful appearance and odour. • Nail polish removers: acetone. • Suntan lotions: methyl salicylate. • Baking powder: tartaric acid, baking soda/NaHCO3. • Detergents: sodium dodecyl sulphate. • Utensil wash: sodium polyphosphates. • Matches: antimony, phosphorus. • Antifreeze agent used in vehicles: ethylene glycol. • Drain cleaners, disinfectants: phenol. • Crayons wax, chalk, candles: sign of pica in children. • Furniture polish: petroleum hydrocarbons. • Toy paints: lead. • Shoe polish: aniline, nitrobenzene. • Paint remover or paint thinner: misused as an alternative to alcohol. • Sniffing glue and marker pens: nearly 20% of schoolchildren are addicted to sniffing household glues, for example, glue cans, glue sticks, marker pen tips, etc., causing chronic respiratory toxicity.

Unknown Poisoning

Unknown poisoning cases pose challenges for clinicians and forensic pathologists. The incidences have been on the rise over the last decade. Most of such cases are due to household poisoning and often intentional self-harm.7, 8 Causes 1. Accidental poisoning. An apparently healthy individual who had developed sudden deterioration of health without any significant past medical history is indicative of

Medicolegal Management of Poisoning Toxicity





poisoning or toxicity or drug overdosage. Hence, as a protocol, first exclude: • Snakebite. If a healthy child or adult who was sleeping on the veranda the next morning becomes unresponsive and stuporous. This is typically seen in krait venom–induced locked-in syndrome. Intravenous polyvalent anti-snake venom (ASV) would give a good prognosis. • Venomous stings or bites. Local inflammatory and allergic manifestations due to spider bites, house lizard (lizard, per se, is nontoxic, but its droppings and carcass contain dangerous salmonella), centipede (with front forcipules, stinger-like appendages inject venom into the skin and cause a local wound), etc. • Drug overdosage. Toxicity in elderly and children may happen due to wrong dosage due to improper or incorrect instructions. • Environmental toxicity. Plant products, dust, and food toxicities may present with sudden onset of allergic symptoms and signs. • Food poisoning and adulteration. Sudden onset of GI symptoms (food poisoning), paralysis (botulinum toxin, Indian pea, or Lathyrus sativus toxicity), or ichthyotoxic (fish poisoning). • Industrial toxicities. • Recreational toxicity. It may be seen in drug addicts at rave parties due to the foolish way of using conventional cough suppressants, alprazolam, pentazocine (Fortwin), promethazine (Phenergan), flunitrazepam (Rohypnol), etc. mixed with alcohol, mephedrone, LSD, etc., making a dangerous synergistic cocktail that can kill one from cardiac arrhythmia. Such cases usually present as an unknown poisoning case admitted in a brought-in-dead condition. • Diagnosis. In unknown poisoning, a syndromic approach would be helpful in predicting the possible poison. The role of the doctor becomes crucial in unknown or suspected poisoning cases. Because the selection of ideal samples and clues becomes the primary lead for the laboratory personnel to pick a specific battery of tests for the drug screening, hence, a doctor must not miss any findings and samples to avoid a futile laboratory result. – Identifying the toxidrome usually assists in making a diagnosis and is also helpful in anticipating other symptoms that may occur. However, toxidromes are useful only when the patient has been exposed to a single drug or toxin. – There could likely be multiple drug toxicity when there are conflicting clinical signs present in a suspected poisoning case. – The opposite actions of constituent drugs may negate the effects of each other, clouding the clinical picture. Nevertheless, there might be delayed clinical onset when multiple poisons have been ingested concomitantly. • Toxidromes. The term was coined by Mofenson and Greensher (1970), defined as a medical emergency presenting with a group of signs and symptoms constituting the basis for a diagnosis of a specific category of poisoning.

II-211 • Clinical types: – Opiate type: classic triad of coma, pinpoint pupils, and respiratory depression (e.g. opium). – Sympathomimetic (serotonin) type: anxiety, delusions, diaphoresis, hyperreflexia, mydriasis, paranoia, piloerection, and seizures. Complications include hypertension, and tachycardia (e.g. ergotoxine). – Hallucinogenic type: disorientation, hallucinations, hyperactive bowel sounds, panicking, and seizures, for example, amphetamines, cocaine, and phencyclidine, etc. – Sedative/hypnotic: apnoea, diplopia, dysesthesias, hallucinations, nystagmus, and coma are a potential complication. – Anticholinergic type: colloquially described as ‘blind as a bat, mad as a hatter, red as a beet, hot as hare, dry as a bone; the bowel and bladder lose their tone, and the heart runs alone’. Commonly presented clinically by agitated delirium and peripheral muscarinic blockade. Caused by competitive, reversible central and peripheral cholinergic blockade. For example, atropine (Datura), hyoscine, scopolamine, antihistamines, antipsychotics, antidepressants, and antiparkinsonian drugs. – Cholinergic type: salivation, lacrimation, urination, diarrhoea, gastrointestinal distress, and emesis (sludge) (e.g. organophosphate). 2. Mass poisoning. A  single toxic exposure by a group of people showing similar toxic manifestations in a certain period. Acute-onset mass poisoning and delayed-onset mass poisoning are the classifications. Classifications based on manner include accidental type, like in the Bhopal gas tragedy, Mozambique funeral beer tragedy, contaminated methyl alcohol tragedy. Mass poisoning with homicidal intent include the Syria sarin gas attack, chemical terrorism, and cyanides (Table 21.6).

Poisoning in Children • While dealing with poisoning in children, always base your assessment on worst-case scenario, like assume the time of ingestion is to be the latest possible and assume all missing or unaccounted for agent(s) have been ingested. Do not attempt to account for spillage, which is difficult to estimate. • A multisectoral approach by the different stakeholders is required to educate parents. In cases of emergency, the local poison control centre (PCC) helplines should be dialled for immediate support. Often, the poisoning, especially in children in a household, goes unwitnessed or unnoticed and will be dealt as unknown poisoning. Even the parents cannot suspect poisoning when the child suddenly becomes symptomatic. Hence, the knowledge of the parents about the typical signs and symptoms of common household poisons would be helpful for a timely hospitalisation. • The sudden or insidious development of any of the following symptoms in an otherwise-healthy adult or child may raise concerns about possible household or unknown poisoning.

II-212 TABLE 21.5  General Safeguards against Household Poisons • Put medications and medicine cabinets out of sight of children— at a remote, inaccessible, secure location. • Keep a close eye on infants and toddlers in the homes of relatives and friends to avoid swallowing hazards. • Common drug toxicities among the elderly in a household occur due to inadvertent mixing or exchange of medications. Example: the antihypertensive tablet strip of Grandma may be exchanged with that of an oral hypoglycaemic strip of Grandpa due to similar colour, shape, or size and when kept together. The admixing may be done unknowingly by a kid or a housekeep while cleaning or even by the elderly themselves. Hence, in cases of multiple medications in a household, always keep medications in separate, colour-coded cabinets bearing the name/labels of the users inscribed in bold large letters. • Empty out the garbage bin immediately after throwing away medicine or hazardous substances, viz. vitamins, supplements, eye drop cans, cleaning wipes, etc. • Dispose of all medications and products as per the manufacturer’s instructions on the label. • Use any dosing devices that come with medication to avoid accidental overdoses, and never combine any medications without discussing them with your physician first. • When using aerosols, always do so in spaces with lots of ventilation, and wear mouth/eye covers when appropriate. • Store cleaning products in their original containers and never combine them. Never mix cleaning products while using them. For example, bleach- and ammonia-based products are both common but, combined, can create a toxic vapour. • Write clear instructions for caregivers about medication for children or the elderly living at home. • Be careful if a teenager is managing his or her own medicine. It is seen that teens self-administering medicines is a common reason for emergency room visits.

Medical Jurisprudence & Clinical Forensic Medicine TABLE 21.6  Findings in Acute- and Delayed-Onset Mass Poisoning Acute Onset Reported within 24–48 hours of time Victims gathered in a single geographical location Victims shared same food, drink, air, and location

Delayed Onset Reported over a period >48 hours

Victims dispersed in a particular geographical area Victims shared same water supply, air, soil, or other environmental facilities Example: feast food poisoning, Example: fluorosis, arsenic factory gas leakage, etc. contamination of soil, etc.

• Deliberate poisoning. Household poisoning most commonly occurs accidentally, while intentional poisoning usually presents as unknown poisoning. The manner of deliberate poisoning may be intentional self-harm (suicidal poisoning) or deliberate harm (homicidal poisoning), for example, suicidal overdose, toxic warfare, or terrorist attacks with toxins. One of the serious manners of unknown poisoning involves child abuse and induced illness (Munchhausen syndrome).

Poisoning in the Elderly

It is challenging due to pre-existing comorbidities, decreased physiological reserve, and multiple prescribed medications, and hence, complication rates are higher. In addition, there are various pharmacokinetic challenges, like decreased protein binding, hence more free drug levels, reduced hepatic metabolism, decreased GFR, and impaired elimination.

Poisoning in Pregnancy and Lactation – Sudden onset of signs/symptoms that include vomiting, nausea, and diarrhoea in an otherwise-healthy adult or child without any antecedent history. – Symptoms appearing within a short period after feeding or drinks. – If multiple family members present with similar symptoms around a particular period. It is not necessary that all family members who consumed a toxic substance develop the same symptom at precisely the same time, due to their physical constitutional differences. – Sudden onset of unexplained abdominal pain, breathlessness, palpitations, or chest discomfort. – Sudden, unexplained onset of drowsiness with or without fixed pupil size changes (dilated or pinpoint, not reactive to light). – Unexplained, sudden onset of convulsions, seizures, paraplegia, quadriparesis, paraplegia, etc. – Sudden, unexplained change in mental state, stupor, restlessness, or agitation, dizziness, onset of disorientation, any other sudden sickness without fever, or other foreseeable reasons. – Acid–base disturbances. – When all clinical/pathological diagnoses fail, think of poisoning. – Not all unknown poisoning cases have an acute presentation; it may be insidious in cases of subacute or chronic (slow) poisons and present with symptoms like hair loss, nail changes, changes in teeth colour or structure.

Things to keep in mind while handling a pregnant or nursing woman who has been poisoned. If breastfeeding is to continue while the mother recovers, it is necessary to assess the danger to the pregnancy or the nursing child and to avoid agents that increase the risk to the foetus. The rest of the management is similar to those of nonpregnant counterparts (Figure 21.2).

Management of Poisoning

The decontamination method varies depending on the mode of administration of the poison: • Inhaled poisons: fresh air • Injected poisons: ligature application • Contact poisons: immediate removal of clothing and washing thoroughly • Ingested poisons: gastric lavage • Catharsis. Enhance the passage of materials through the GIT, thus decrease the time of contact between the poison and the absorptive surface of the stomach and intestine. Contraindicated in lipid-soluble poisons, for example, OPCs or CCl4. Example: magnesium sulphate at a dose of 15–30 g in a glass of water. • Whole bowel irrigation. Using a gastric tube, give a surgical bowel-cleansing solution containing a nonabsorbable polyethylene glycol in a balanced electrolyte solution (formulated to pass through the intestinal tract without being absorbed). Dose is 2 L/h (children: 500 ml/h), until rectal effluent is clear. • Activated charcoal 25–50 g/2–3  hours may be administered while whole bowel irrigation is proceeding if the ingested drug is adsorbed by charcoal. Stop

Medicolegal Management of Poisoning Toxicity

FIGURE 21.2  Factors modifying poison action.5

FIGURE 21.3  General approach to management of poisoning.

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II-214 administering after 8–10 L (children: 150–200 ml/kg) if no rectal effluent has appeared. Indications are: • Ingestion of large dose of iron or lithium or other drugs poorly adsorbed to activated charcoal. • Large ingestion of sustained-release or entericcoated tablets. • Ingestion of foreign bodies or drug-filled packets or condoms. • Contraindications are ileus or intestinal obstruction, comatose, or convulsing patient, unless the airway is protected. • Adverse effects are nausea and bloating, regurgitation, and pulmonary aspiration; activated charcoal may not be as effective when given with whole bowel irrigation. • Gut dialysis. For poisons excreted through bile which undergo enterohepatic recirculation and those diffusing passively from the blood to the lower GIT lumen, give multiple doses of activated charcoal. • Enhanced elimination methods, namely, multiple-dose activated charcoal, urinary alkalinisation, haemodialysis, haemofiltration, and charcoal haemoperfusion, are especially used for delayed presentation or nonresponding to initial treatment methods (Figures 21.3–21.5).

Medical Jurisprudence & Clinical Forensic Medicine

Snake and Insect Envenomation Management of Snakebite Hospitalisation Criteria • Observation for at least 24  hours in case of alleged snakebite. • Monitor the vitals—heart rate, BP, respiratory rate, SpO2. • Check urine output WBC count hourly. • Investigate with renal function tests, ABG, ECG. • Check for any abnormal bleeds, the extent of local inflammation, and necrosis. • Administer antisnake venom therapy. • Ancillary measures—treatment of bitten part, coagulation abnormality, and other associated comorbidities. • Anti-snake Venom Indications: ASV is only indicated if patients with snakebite develop one or more of the following signs: i Signs of systemic envenomation: a. Haemostatic abnormalities: spontaneous systemic bleeding, coagulopathy (+ve nonclotting 20WBCT, INR >1.2, or prothrombin

FIGURE 21.4  Poison absorption prevention methods in early poisoning cases.

FIGURE 21.5  Methods of enhanced elimination/excretion of poison in delayed poisoning cases.

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time >4.5 seconds longer than control), or thrombocytopenia; b. Haemoglobinuria/myoglobinuria: (dark brown/black urine, +ve urine dipsticks, other evidence of intravascular haemolysis/generalised rhabdomyolysis);



ii Signs of local envenomation: a. local swelling involving more than half bitten limb (in absence of tourniquet) within 48 hrs of the bite; b. swelling after bites on digits; c. rapid extension of swelling beyond wrist/ ankle within few hours of bites on hand/foot); d. enlarged tender lymph node draining bitten limb. Antivenom should be given only when benefits exceed risks. e. ASV is unlikely to prevent/limit local tissue damage unless given within a few hours of the bite. f. Antivenom hypercreativity reactions: develop early (within a few hours) to late (after 5 days). g. Depending on type of antivenom and dose, the incidence may be as high as 81% (43% severe) of early anaphylactic or pyrogenic reactions or as low as 3.5%. h. IgE-mediated Type I  hypersensitivity after pre‑ vious exposure to equine serum is uncommon (Table 21.7).

Role of a Doctor in Poisoning 1. Medical duty. Treat the patient (discussed earlier), and legal obligation is to prevent further episodes of poisoning and to spread awareness to society. 2. Medicolegal duties of treating physician or even hospital in a case of suspected or known poisoning: • The doctor or the hospital, including government and private, cannot deny emergency treatment to the patient under Article 21 of the Indian Constitution,

as consent in an emergency is not necessary, since the first duty of a doctor is to save the life of the patient. • It is advisable to report every case of suspected poisoning to the police. Let police IO investigate for the exact manner of (suicide/accident/homicide) poisoning. It must not be ignored in government or public sector set-ups according to Section 39 CrPC. It mandates all public to information the police of certain offences (crimes). Hence, doctors are legally bound to inform police in:

• Everything i.e. an offence. • Everything i.e. prohibited by law. • Everything that furnishes grounds for civil action. • The doctors working in a private set-up often take the liberty of not giving police intimation in accidental or some suicidal cases. This is a potentially dangerous practice. The hospital/nursing home/clinic may lose its license along with criminal proceeding against the treating staff under Section 39 CrPC. This usually happens when the patient dies; the deceased’s family hires a lawyer for insurance claims or turns hostile and informs the police/media for extortion, etc. • Private clinics must make the relevant entries in their clinics’ ML registry but may not call the police in situations of evident accidental poisoning. Record all patient information relevant to the case in the MLC record, together with the family’s contact information, Aadhar copy, and address, for use by the police in the future. No matter how the patient was poisoned, even if it occurred in a private setting, the doctor is required to report the patient’s death to the authorities and cannot issue a death certificate. • If a patient dies during treatment or the exact cause of death is not known or brought dead to the hospital with an alleged history of poisoning, the doctor must inform the police and shift the body to the mortuary for autopsy, and don’t issue the death certificate and don’t hand over the body to the relatives.

TABLE 21.7  First Aid Management in Case of a Suspected Snakebite  Dos and Don’ts Dos

Don’ts

Reassure the patient. •

• •

• • •

Majority of snake bites are not fatal. Hence, avoid unwarranted panicking the patient. Confirm the snake from the type of bite mark. Identifying fang marks • Don’t use ASV unless indicated. is essential. If possible, provide the appearance or other details for identification of the snake, for example, a photo or video shot from a mobile phone. This can help the doctor to administer correct antisnake venom injection. The bite wound may bleed for some time until it dries itself. If • Avoid washing or cleaning a frankly bleeding wound. Don’t use bleeding continues apply gauze pressure. Wash the site of the bite harmful substances like permanganate solution (KMno4) or with clean (or boiled) water and soap, and cover with sterile dressing. snake stones over the bite site Tourniquets: Apply firm pressure over bite site to delay the absorption • Tourniquets are avoided in viper bites for the risk of gangrene of venom—a broad firm bandage (wide towel, a wide wrap). It should and limb amputation. be tight enough to occlude venous and lymphatic flow but not the • Don’t apply ice, cautery, or electric shock, etc., over the bite site. deep arterial flow. Apply firm pressure on bite site using folded gauze. Apply bandage to the whole limb with moderate pressure. Immobilise the bitten limb with splints. One can use a thick roll of • Avoid unnecessary limb movements or limb elevations to newspapers for splinting if nothing is available. prevent the acceleration of the systemic spreading of venom. Hospitalisation within golden period and administration of antisnake • Bite site incisions, suction by mouth, vacuum suction, or venom after hypersensitivity test are essential pre-requisite. syringing over bite site, etc., are avoided.

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FIGURE 21.6  Medicolegal responsibility of doctor in poisoning cases.

• If the treating doctor comes across food poisoning from any public eating place, he must inform the public health authority concerned. • Detailed medical records should be made related to every case of poisoning coming to the hospital and kept in the proper place for preservation. • According to Section  175 CrPC, there is no professional confidentiality in certain situations. Hence, the police can call and ask about the cases involved, and the treating physician is also obliged to provide all information. If information is wrong or not provided in timely manner or is incomplete, the doctor may be prosecuted under 193 and 202 IPC, respectively. Noncompliance with court is punishable under Section 209 IPC. • The treating doctor must collect and preserve evidences and hand over the same to the police for forwarding to a forensic science laboratory for chemical analysis. Deliberate omission to do so is ground for punishment under 201 IPC. • If the patient with an alleged history of poisoning is conscious and oriented but can die at any time, then the treating doctor must record a dying declaration related to the incident (see Chapter 4 for details) (Figure 21.6).

Diagnosis of Poisoning in the Living and the Dead Diagnosis: In the Living • Obtain detailed clinical history and collect all possible evidence of poisoning. If anything unexplained happens, then poisoning should be one of the differentials.

• Steps needed to be taken: • Detailed history: quality and quantity of poison taken. • Characteristics of symptoms. • Time passed after consuming the poison or poisoned food or fluids. • Duration of illness after the appearance of first symptoms. • Treatment to be given. • Ancillary investigations to be done for confirmation: collect 10 ml blood, urine in 100 mg sodium fluoride as a preservative, gastric wash if done, vomitus or any saliva to be collected, and ask relatives to bring the empty container from which poison was consumed to the doctor. • Group of symptoms suggestive of a particular poisoning are: • Sudden onset of abdominal pain, nausea, vomiting, diarrhoea, and collapse (arsenic) • Sudden onset of coma with constriction of pupils (organophosphates) • Unexplained, sudden onset of convulsions • Sudden onset of delirium with dilated pupils (datura) • Unexplained paralysis of LMN type (strychnine) • Jaundice and hepatocellular failure (CCl4) • Unexplained oliguria with proteinuria and haematuria • Forensic toxicologists are trained to develop a ‘framework for intuition’ by increasing the index of suspicion to look further, beyond the obvious.

Medicolegal Management of Poisoning Toxicity Diagnosis: In the Dead • Collect all relevant information: inquest report/relatives and PM findings. • External findings: • Stains on clothes, marks of vomit or poison. • Colour changes on affected skin and mucous membrane (black colour in H2SO4 and HCl, brown in nitric acid). • Post-mortem staining may be dark brown/yellow in phosphorus, cherry red in CO, chocolate colour in nitrates, nitrobenzene etc. • Early/late appearance/disappearance of rigor mortis, for example, rigor appears and disappears rapidly in strychnine. • Internal findings: • Stomach/git findings: hyperaemia, colour changes, softening, ulcers, perforation, etc. • Odour of stomach contents and viscera: peculiar smell seen in cyanide, alcohol, phenol, chloroform, and camphor poisoning. Garlic-like (phosphorus, arsine gas, arsenic), sweetish (ethanol, chloroform), acrid (paraldehyde, chloral hydrate), rotten egg (h2s, mercaptans). • Oesophagus: marked softening seen in corrosive alkalis. • Duodenum/intestine: ulceration beyond pylorus points to natural disease. • Liver: phosphorus, chloroform, TNT, CCl4, etc. lead to necrosis of liver. Fatty liver is seen in case of As, CCl4, mushroom poisoning, P4, etc. • Upper respiratory system: corrosive poisons lead to glottic oedema and congestion; volatile poisons— aspiration pneumonitis. • Heart: subendocardial haemorrhages in left ventricle are seen in acute arsenic poisoning. • Kidneys: metallic poisons, cantharidin poisons lead to ATN. PCT necrosis is seen with HgCl2, phenols, Lysol, CCl4 poisoning. Rhabdomyolysis and Mg cast in hair dye poisoning. • Bladder/vagina/uterus: should be especially examined in cases of criminal abortion. • Injection marks may be detected, which may suggest route of administration. • Skin may show hyperkeratosis (chronic arsenic poisoning), jaundice (P, KClO4). • Violence marks, such as bruise or other injuries, if seen, suggest mode of death from cause other than poisoning. Sample Collection and Processing • Sample collection. In every case of suspected poisoning, ideal samples must be collected and preserved as evidence. Example: vomited matter or stomach wash and samples of urine and faeces; suspected articles of food, drink, or medicine. Stomach wash is not mandatory and must be done only if it will benefit the patient. Miscellaneous evidences for suspected poisoning, like a bottle, cup, or tumbler in which the poison is suspected to have been mixed, soiled clothes/bed sheet, paper used for dispensing and wrapping the poison, can be preserved from the crime scene.

II-217 • Specimen of choice for poison detection is blood > urine > bile, vitreous > body tissues, for example, bone, muscles, hair, nail, etc. • Urine is the ideal choice for direct spot test in death due to delayed poisoning. It is also the only specimen to show poisonous substance in chronic poisoning death. • Specimens of blood, urine, bile, etc. should be kept in separate glass containers. • In advanced decomposition, thigh muscle (quadriceps) helpful. • Contamination prevention has a critical role in detection. • In volatile poisons, never use polythene bags/plastic containers. • Container of choice: glass > plastic bottles > plastic bags. • Organs removed should be kept in clean, separate containers. • Lungs—mostly apex; in case of volatile poison or solvent abuse, whole lung tied at hilum, and nylon bag as container. • Brain—in case of alcohol, drugs; whole brain is preferable than a hemisphere, preserved in rectified spirit. • Spinal cord—strychnine, gelsemine, in rectified spirit. • Skin patch—injection site, snakebite, corrosives, in saturated solution NaCl. • Sample preservation. Ideal preservatives are saturated solution of common salt or rectified spirit (90% ethanol). Storage without preservative in refrigerated storage (4ºC) for 12–24 hours, or for long-term storage, ideal temperature is 20—70ºC. • Dispatch to FSL, maintaining chain of custody. Properly sealed and labelled with PM no., sample description, preservative used, control sample, collection site (optional), date and time, with signature and seal. • CA-V requisition content. All routine viscera (whole stomach with its contents, 30 cm of intestine, about 500 g of liver, piece of each kidney) are preserved in a saturated solution of common salt in separate packs. Number glass containers with proper seal and label and hand it over to the accompanying police for onward transmission to FSL for chemical analysis, to rule out the presence of any poisons/toxins/drugs. Critical Steps in Sample Processing for Successful Detection of Poison in Samples • Separation of poison from biological tissues. • Purification of poisonous substance. • Analytical detection (screening/qualitative). • Qualitative assays: bedside tests, thin-layer chromatography • Quantitative assays: ultraviolet spectrophotometry, high-performance liquid chromatography (HPLC), gas chromatography (GC), mass spectrophotometry (MS), radioimmunoassay (RIA), enzyme-mediated immunoassay technique (EMIT), atomic absorption spectrophotometry (AAS), neutron activation analysis (NAA). • Reasons for failure of detection of poison: • Contaminants (vegetable alkaloids, biological toxins, etc., giving false positive or false negative results),

Medical Jurisprudence & Clinical Forensic Medicine

II-218 insufficient amount, volatility, detoxification (use of medicines/antidotes prior to death).

Medicolegal Report-Writing The patient with an alleged history of suspected, known, or unknown poisoning came to the casualty. The first step is to provide first aid and stabilise the patient and then register a ML case after giving police intimation. The ML examination may be done by the treating physician; however, a clinical forensic medicine specialist or forensic toxicologists should be referred in tertiary care centres or referral hospitals. The ML report writing is similar to that adopted for wound certification (in living cases) or preparing the autopsy report in a dead. In either cases, the following points should be considered: • Demographic profile of the patient. • Informed consent if conscious and oriented. • Identification marks. • Any external injuries. • Any treatment modality—IV cannula, Ryle’s tube. • Sample preservation, like vomitus, gastric wash, blood, urine, or any sample brought by the patient to be sealed and sent for chemical analysis. • After examining the treatment records and other ancillary investigations reports, give the final opinion. • In court, the medical officer/expert should be well prepared with all the records and evidence, neat and clean, and well-mannered in court and maintain dignity. • Listen carefully, avoid discussion or arguments, speak slowly and politely with confidence, and express your views or opinions with your complete knowledge and experience. • Need to maintain the chain of custody after collecting and preserving samples or evidence. Proper packaging and labelling are to be done and forwarded for the detection of poison or drugs, through the police. Any break or disturbance in the chain of custody the concerned authority will be held liable. Any tampering with seals or samples breaks the chain of custody. Hence, extra precautions must be taken while maintaining the chain of custody of evidence. Court Appearances. (See Chapter 4, ‘Legal Procedure’.)

Laws Related to Poisons and Drugs9–15 In cases of criminal poisoning, the law in India does not insist on the precise definition of poison, since the sections of the Indian Penal Code dealing with offences relating to the administration of a poison make use of such self-explanatory terms as: • Any poison or any stupefying, intoxicating, or wholesome drug, or other things, or any corrosive substance or any substance i.e. deleterious to the human body to inhale, to swallow, or to receive into the blood. • Section  284 IPC deals with negligent conduct with respect to poisonous substance that may endanger human life or will cause hurt or injury to any person. • The Poisons Act, passed in 1919, amended in 1958, and repealed in 1960, deals with importing poisonous substances into India, license issuance, and restriction on the sale of these substances.

• Drugs and Cosmetics Act 1940 regulates the import, manufacture, distribution, and sale of all kinds of drugs or medicines. • Drugs and Cosmetics Rules 1945 is also concerned with quality and the standards of drugs and cosmetics (Table 21.6). • Drug schedules. Manufacturing and sale of all drugs are covered under the Drugs and Cosmetics Act and Rules. The Drugs Technical Advisory Board, part of the Central Drugs Standard Control Organization in the Ministry of Health and Family Welfare, advises from time to time on amendments to the rules and the act. • Drugs and Cosmetics Rules 2005 covers almost all medicines and drugs except for homeopathic medicines. This act classified the drugs into various schedules and parts to deal with the illegal sale and abuse of some drugs. • Schedule H Drugs • These drugs require a mandatory prescription from an RMP, i.e., one cannot purchase them over the counter without the prescription of a qualified doctor. • Drug and Cosmetics Act (Amendment) Rules list schedule H drugs in India. Published in 2020. • Schedule X Drugs • A class of prescription drugs in India appears as an appendix to the Drugs and Cosmetics Rules introduced in 1945. • These are drugs which cannot be purchased over the counter without the prescription of a qualified doctor. • The pharmacy retailer has to preserve a copy of the prescription (from the patient) for a minimum of two years. • However, enforcement of schedule X needs a mandatory documentation trail to be maintained by the seller (Figures 21.8 and 21.9; Table 21.8). • Pharmacy Act 1948 regulated pharmacy study and allowed only registered pharmacists to dispense medicines through India. • Drugs Control Act 1950 deals with the supply and distribution of drugs and fixes the price of each drug. • Medicinal and Toilet Preparation Act and Rules 1955. It deals with regulatory issues related to the use of alcohol and curbs interstate smuggling. It makes uniform rates of excise duty throughout the country. 1. e-Pharmacy • e-Pharmacies or ‘online pharmacies’ are meant for dispensing medicines through virtual platforms. These are recent entrants in the Indian e-Commerce industry. In April  2018, the Health Ministry of the government of India came out with a draft proposal to amend the Drugs and Cosmetics Rules of 1945 for regulating the ‘sale of drugs by e-Pharmacy’ under the Drugs and Cosmetics (Tenth Amendment) Rules 2018 w.e.f., 12 October 2018. • The primary aim of e-Pharmacies is to regulate the monopoly of offline pharmacies, prevent black marketing and illegal hoarding of essential drugs, and convenience the patients with easy access to pharmacies at home. • Rules:

Medicolegal Management of Poisoning Toxicity TABLE 21.8  Scheduled Drugs Categories under Drugs and Cosmetics Rules 1945 Schedule C Schedule E and Schedule E(1) Schedule F Schedule G Schedule H Schedule X Schedule Y











Biological Products Poisonous substances under AYUSH system.   a. Part I: Vaccines   b. Part II: Antisera   c. Part III: Diagnostic Antigens Hormonal preparations. Drug labels must show ‘CAUTION’. Prescription drugs. Warning label: to be sold only on registered medical practitioner (RMP) prescription. Prescription drugs not listed under schedule H. Drugs under clinical trials.

• It has legalised e-Pharmacies in the country. • It allows the business of distribution or sale, stock, exhibit, or offer for sale of drugs through web portals or any other electronic media on the prescriptions from an RMPs to a pharmacist. • A prescription from an RMP is mandatory for procuring drugs online. • The prescription may be handwritten or in electronic mode duly signed to dispense the medicines. • There should be a limit on the quantity of drugs that can be sold to a patient per prescription. • The prescriptions must (both manual and electronic/digital) technically bear all relevant aspects of the legally valid prescription. • Ethical and legal challenges: • It is challenging to examine the genuineness of the prescriptions in routine practice, and this may potentially foster the illegal sale of scheduled and contraband drugs, like ketamine, promethazine, morphine, codeine, etc., which may be abused. • There is no clarity in the rule; each time a new prescription is required for procuring drugs, an old prescription would do the work perennially. This way, illegal stashing of essential drugs may be made using an old prescription multiple times. • This can foster self-medication, which may have serious outcomes, like unregulated social health issues.

2. Sale of Drugs by the Doctors • As per the Pharmacy Act of 1948, no person other than a registered pharmacist shall compound, prepare, mix, or dispense any medicine upon the prescription of a medical practitioner. • But this prohibition shall not apply to dispensing medicines by a medical practitioner for his own patients or, with the sanction of the state government, for the patients of another medical practitioner. • Punishment: imprisonment for six months or with a fine not exceeding one thousand rupees or with both.

II-219 • It may be noted that only the state of Uttar Pradesh has brought this provision into force. 3. Advertisement of Drugs and Self-Medication • Advertisement is any notice, circular, label, wrapper, or other document and any announcement made orally or by any means of producing or transmitting light, sound, or smoke according to the Drugs and Magic Remedies (Objectionable Advertisements) Act 1954. • The statute not only limits the advertising of particular pharmaceuticals that offend morals or decency but also forbids the advertising of remedies that are said to have magical properties. • The act prevents self-medication and treatment in cases that would cause harmful effects. • There is a prohibition against the advertisement of drugs for treatment inter alia of the following diseases and disorders: • The procurement of miscarriage in women or the prevention of conception in women. • The maintenance or improvement of the capacity of human beings for sexual pleasure. • The correction of menstrual disorders in women. • The diagnosis, cure, mitigation, and treatment or prevention of venereal diseases. • By virtue of this provision, the government of India had indicated certain diseases or conditions concerning which advertisements were prohibited by rules framed by it. • Initially, the act empowered the government to prohibit advertisements regarding ‘any other disease or condition which may be specified in rules made under this act’. But this provision conferring power upon the government to prohibit advertisements was declared unconstitutional by the Supreme Court of India (Hamdard Dawakhana v. Union of India). Therefore, the rules framed in the exercise of this power have no effect in law after the Supreme Court verdict. • Due to the broader nature of the implications (misuse by government officials, police, etc. to harass the vendors) of prohibiting advertisements of drugs, it was held that the power not to confer a government executive was constitutional. • Therefore, certain conditions and diseases concerning which the government had prohibited advertisements have not been mentioned here. • Exceptions to the prohibition of drug advertisements: • Contraceptives approved by the government can be advertised. • Advertisement of drugs printed or published by the government or with the previous sanction of the government. • A registered medical practitioner (RMP) can, on his premises, put up a signboard or notice indicating that treatment is undertaken on his premises for any disease or disorder. • There is no prohibition against any advertisement relating to any drug sent confidentially to an RMP or a wholesaler or retailer chemist for distribution among RMPs or to a hospital or laboratory. • An advertisement will be confidential if it is sent by post and the document bears at the top, conspicuously

Medical Jurisprudence & Clinical Forensic Medicine

II-220 printed in indelible ink, the words, ‘For RMPs use only’, or a hospital or a laboratory. • There is no restriction or prohibition against advertisements permitted under the Drugs Act 1940 or any rules made under that act. • It is permissible to publish a scientific paper, a column in a newspaper/magazine, or to write books about his patient’s diseases or disorders and their management, provided that it has been written from a bona fide scientific or social standpoint, keeping the patient’s privacy and identity secret. • Penalties: six months for the first time; for repeat offender, punishment can extend up to one year. 4. Narcotic Drugs and Psychotropic Substances Act (NDPS Act) 1985 • Narcotic Drugs and Psychotropic Substances Act 1988 prevents illicit drug trafficking in India. • This act amends the existing laws related to narcotic drugs, strengthens control over drug abuse, and enhances the penalties for illegal trading. • It imposes a complete prohibition on the cultivation of cannabis, coca, and poppy plants and the manufacture, sale, purchase, use, or transport of any narcotics or psychotropic substance except for medical purposes. • According to the amended NDPS Act, a narcotic drug refers to the cocoa leaf, cannabis (hemp), opium, and poppy straw and includes all manufactured drugs. • Identified ‘dangerous drugs’ include coca leaf, hemp, opium, and all manufactured drugs. • Identified ‘manufactured drugs’ means all cocoa derivatives, medicinal cannabis, opium derivatives, poppy straw concoction, and any other narcotic substance or preparation that the government of India has declared (as per Article 10 of the Geneva Convention) as a manufactured drug by an official gazette notification. • It lists banned drugs and their punishment in small and commercial quantities and sets the punishment for single or repeat offenders. • The act also includes the definition of a psychotropic substance, which it defines as any substance, natural or synthetic, included in the list of psychotropic substances specified in a schedule to the act. This schedule lists 77 psychotropic substances.



• This act repeals the Opium Act 1957, the Opium Act 1878, and the Dangerous Drugs Act 1930, which were the laws applicable to the subject matter of narcotic drugs. • It laid down provisions for exercising effective control over psychotropic substances and implementing international conventions relating to narcotic and psychotropic substances, to which India is a party. • Provisions of NDPS Act • Sections  12–25 of the NDPS Act provide various offence categories. The penalties prescribed by these sections are identical for all narcotics except cannabis. The act, however, views the addict with sympathy. • If the narcotic drug or psychotropic substance possessed or consumed is cocaine, morphine, heroin, or any other narcotic drug or psychotropic substance specified by the central government in the official gazette, he shall be punished with six months’ imprisonment or with a fine or with both for what can be termed as ‘soft drugs’. • However, this law specifically protects the 1940 Drugs and Cosmetics Act, which outlines penalties for offences involving drug adulteration. • In Section  27, ‘small quantity’ is defined as meaning such quantity as may be specified by the central government, by notification in the official gazette (Table 21.9). • In Section 27, NDPS Act, if any person possesses any narcotic drugs or psychotropic substance in small quantity, which is proved to have been intended for his personal consumption and not for sale or distribution, or consumes any narcotic drug or psychotropic substance, he shall be punished with imprisonment for a term, which may extend to one year, or with fine or with both. • A small quantity of contraband recovered from a person falls under the category of ‘small quantity’ is a bailable offense but should not influence the prosecution case during the trial. • Any person who breaches the provisions of the NDPS Act attracts various punishments based on the quantity of banned substance or drugs in his possession, i.e., small or commercial quantities (Table 21.9).

TABLE 21.9  Legally Defined Quantities of Banned (Narcotic and Psychotropic Substances) Drugs and Their Punishment under NDPS Act14 Banned

Commercial

Substance Ganja Charas Opium Heroin Morphine Cocaine

Quantity 20 kg 1 kg 2.5 kg 0.250 kg 0.250 kg 100 gm

Amphetamine LSD

50 gm 100 gm

Punishment

Small

Quantity • Possesses more than small 1,000 g quantity but lesser than 100 g commercial quantity—10 years 25 g rigorous imprisonment and a fine 5g up to 1,500 USD. 5g • Possessing more than commercial2g quantity drugs—10 to 20 years rigorous imprisonment and a fine 2 g up to 3,000 USD. 2 mg

Punishment • One-year rigorous imprisonment or fine of 150 USD or both. • Such offence is bailable but must not influence the prosecution case during the trial

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5. Doping and Ergogenic Drugs Dope indicates drugs given illegally to enhance performance, for example, in racehorses or athletes. Hence, they are also known as performance-enhancing drugs. Sports regulatory organisations widely use the term doping. In competitive sports, doping is misused to enhance athletic performance. The use of drugs to enhance performance is considered illegal and unethical. Therefore, doping drugs is prohibited by the International Olympic Committee and other international sports organisations. Furthermore, athletes taking explicit measures to evade detection exacerbate the ethical violation with overt deception and cheating. Ergogenic supplements are any substances or methods used to enhance athletic performance, whether legal or illegal. Some anabolic steroids are used as ergogenic drugs due to their stimulant effects on growth and muscle strength. The popularity of ergogenic medications began as early as 1954 among Olympic weightlifters, which later spread to other sports (Figure 21.7; Table 21.10).

6. Sections of the IPC deal directly or indirectly with related poisons: 284 IPC, 299 IPC, 300 IPC, 304-A IPC, 324 IPC, 326 IPC, 326-A IPC, 328 IPC. • Section  326-A IPC: Voluntarily causing grievous hurt by use of acid, etc. Whoever causes permanent or partial damage, deformity, disfigurement, or disability of any part(s) of the body of a person or causes grievous hurt by throwing or by administering acid to that person, or by using any other means to cause or with the knowledge that he is likely to cause such injury or hurt, as per Criminal Law (Amendment) Act 2013. • Offence: voluntarily causing grievous hurt by use of acid, etc.

• Punishment: 10  years to life imprisonment + fine paid to the victim to meet medical expenses. • Cognizance: cognizable offence and not listed under compoundable offences# (Composition u/s 320 CrPC). • Bail: nonbailable offence; trial by Sessions Court (Table 21.11).

Poisons Information Centre (PIC) A poison control or information centre (PCC or PIC) is a therapeutic facility that provides information free of cost, immediate expert advice, and assistance over the phone in case of exposure or poisoning.15 • Evolution of PCC • Poison information services were initially established in the Netherlands in 1949 in response to the rising number of poisoning incidents occurring daily across the world. • The National Poisons Information Service was established in September 1963 at Guy’s Hospital, London, UK. In the same year, the American Academy of Pediatrics’ Illinois Chapter opened the information centre in Chicago, United States. In 1964, the European Association of Poisons Centres and Clinical Toxicologists (EAPCCT) was established. • To date, there are more than 75 certified centres in the United States alone, providing any information very fast, within a few seconds, with the help of a computerised software or information resource system (POISONDEX) having data of more than 8 lakh or 0.8 million poisoning products (Figures 21.8 and 21.9). TABLE 21.11  Various Sections of the Indian Penal Code Related to Poisonous Substances Penal Codes

Sec. 272 Sec. 273 Sec. 274 Sec. 275 Sec. 276 Sec. 277

FIGURE 21.7  Ergogenic supplements.

Sec. 278 Sec. 284

TABLE 21.10  Recommended athlete performanceenhancing ergogenic supplements. Supplements Creatine Caffeine Sodium bicarbonate β-alanine Nitrates Beetroot juice

Recommended Limits

Sec. 85

0.3 g/kg body weight per day 3–6 mg/kg body weight—approximately 1 hour before matches 0.4 g/kg body weight—starting 90 to 120 minutes before matches 3.2 g/day, in the sustained-release tablets, divided four times a day 140 ml or approximately 800 mg nitrate/day 3 hours before matches

Sec. 86

Offence

Punishment

Adulteration of food or drink. 6 months of imprisonment or 1,000 Sale of noxious food or drink. Adulteration of foods, drink, or INR fine or both drugs. Sale of adulterated drugs. Sale of drugs as a different drug or preparation. Contaminating public water 3 months of bodies, springs, or reservoirs. imprisonment or 500 INR fine or both Making an atmosphere noxious Only fine of 500 INR to health. Negligent act and poisoning. 6 months of imprisonment or fine of Any careless act concerning a 1,000 INR or both poisonous substance endangering life and safety. A criminal act is done under involuntary intoxication. Act of a person incapable of judgement because of intoxication caused against his will. A criminal act is done under voluntary intoxication. Offence requires a particular intent or knowledge committed by one who is intoxicated.

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FIGURE 21.8  Warning label in over-the-counter drugs.

FIGURE 21.9  Warning label in schedule H drugs (in red)—must be dispensed under proper prescriptions. • In December  1994, India established the National Information Poison Centre at All India Institute of Medical Sciences, New Delhi. Later on, a second centre opened at the National Institute of Occupational Health, Ahmedabad, Gujarat. Some regional centres have also been developed in other parts of the country. • The World Health Organization has recognised most of these PCC in India. These PCC have been armed with many international toxicological databases, like POISINDEX from Micromedex, USA; TOXBASE from National Poison Information Centre, UK; and TOXINZ from National Poison Centre, New Zealand, which has details on more than 10 lakh poisons and drugs encountered worldwide. This centre also consults online resource sites on toxins, such as WHO’s IPCS INCHEM database. • Objectives • The knowledge of poison and its control has an essential role in the community. • The poison information centre (PIC) is a specialised unit that provides information on poisoning and

their selective interventions to health centres, hospitals, or community. • Therefore, it manages toxicological information and advice, management of poisoning cases, provision of laboratory analytical services, toxicovigilance activities, and research. • PIC has more role in education and training in preventing and treating poisons. Hence, PIC has the credential to provide information and advice concerning the diagnosis, prognosis, treatment, and prevention of poisoning; the toxicity of chemicals or other toxins; and the risks they impose. • Functions • It is a medical facility that provides immediate, free, and expert treatment advice and assistance over the telephone in case of exposure to poisonous or hazardous substances. • The centre provides toxicological information and advice on the management of poisoned patients adopted to the level of the enquirer. • It develops databases on poisoning, drug reactions, and also the continuous and systematic collection of data from the library.

Medicolegal Management of Poisoning Toxicity • The centre prepares manuals and leaflets on prevention and management cards on treatment of various poisonings. • The PIC has the training responsibility extending to medical and other health professionals and community. • Laboratory service is an essential component of a poisons control programme, providing analytical services on emergency basis to help in diagnosis and management. • Toxicovigilance and prevention of poisoning is another major function of PIC. • Research related to poisoning. • Scope • Using poisons databases (harmonised), a lot may be accomplished with little resources, owing to the dedication of those who work there. • PCC having websites (AIIMS, NIOH, Chennai, Cochin). • Support from WHO (guidelines, training, and meetings). • Small regional professional pool of toxicology experts. • 15 functioning poisons information centres in SEAR (not counting Thailand). • Hurdles • Little political will/attention, and hence insufficient funding • Little public awareness • Number and quality of manpower not adequate • Legal implications to reduce calls • Not working 24 hours • Clinical toxicology not recognised in curriculum • Data on poisoning cases too poor • Limited or no funds available for training or for participation at international meetings or conferences • Poor networking among existing poisons centres



• Establishing a Poison Information Centre • A typical regional poison centre of any university or attached with any medical college or hospital serves about 40 lakh population and takes care of approximately 35 thousand human exposure cases annually. • Staff of a PIC must have: a. One physician as chief or director b. One pharmacist as technical director c. An administrator d. Minimum of one medical toxicologist e. At least ten poison information specialists f. A secretary g. One staff member for only community and public education • The PCC specialists should consult daily with the parents, childcare providers, older adults, pharmacists, nurses, physicians, and responders to toxic material or hazardous substance exposure incidents in every area of practice and every department of hospitals. About 75% of poisoning reported to PCC is managed even on telephone consultations without additional expenses for healthcare hospitals.

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• Salient functions, features, or facilities offered by this PCC are: • Toxicological analysis of stomach contents as aspirate, vomitus, or gastric wash, blood, and urine for evidence of any toxic substance or drug. • Screening of urine for substance abuse. • Toxicological analysis of water samples for any pesticides or chemicals. • Toxicological analysis of medicines or other products for any impurities. • Toxicological screening for common chemicals and poisons in chronic ailments. • Advanced management facility at this centre for all kinds of poisoning. • Instant free access to complete, detailed information regarding poisons through telephone, email, online mode, via post, and personal contact. • Free guidance by experts on the diagnosis and management of all types of poisoning.

Clinician’s Corner

1. I am a private general practitioner in a big city. Many poisoning cases, mostly suicidal, come to my nursing home. The patient attendants often asked for autopsy reports for insurance claims in dead poisoning cases that I had treated. Is it mandatory to do MLC/autopsy, even if I am a private practitioner? What will happen if I  will not give any autopsy report to the deceased patients’ relatives?

Answer: In all unnatural (medicolegal) death cases like poisoning, snakebite, burns, brought-in-dead, etc., the insurer needs an autopsy report to conclude that the manner of death is not due to suicide before disposal of claim amounts to the family. • It is the legal right of the insurance company and the deceased’s family to have an autopsy report describing the cause and manner of death. • In cases of suicide (which is common in poisoning), the family is not eligible for a claim. Hence, it is a legal requirement for a doctor to register MLC and give police intimation in all cases of poisoning. • Whether an autopsy is required or not is the prerogative of the police inquest, not of a doctor. • It’s not necessary for a case to have died at your clinic; autopsy has to be done by you. The police will arrange an autopsy at an appropriate place.

2. I am working in an emergency medicine department. One local police SI threatened me to file a case with charges of concealing evidence in a dead OPC poising case that I have done recently. Note that this SI had asked for some undue personal favour from me four months back which I  politely declined. She alleges that I had not preserved the dead OPC patient’s gastric lavage fluid, which is equal to fiddling with the evidence. Is it not illogical? What should I  do now? Can he arrest me anytime?

Answer: Note that as per Section 201 IPC, it is punishable if the toxicology samples (vomitus, lavage fluid, viscera, blood,

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After returning to her state, she developed secondary complications and was admitted to our hospital. Should we register an MLC case again, because it is a suicidal poisoning case?

etc.) are not preserved for chemical analysis at FSL. Because these are the critical samples to confirm the poison.



• It may look illogical because most doctors omit to preserve vomitus or lavage fluid, and the police are not using the law like in your case. Doing such practice means you’re leaving your career in a policeman’s hands. Fortunately, most policemen are ignorant of it. But one should not go to their hands in the future. • Now, even if you say there was gastric lavage, this police may prosecute you under Section 139 IPC for giving false information. 3. Should I  register as an MLC for dog bite and bear mauling cases like that in snakebite cases? Which animal bite cases are to be registered as MLC?

Answer: The crux of Section 39 CrPC is that the public is legally bound to inform the police in (i) everything i.e. an offence, (ii) everything i.e. prohibited by law, and (iii) everything that furnishes grounds for civil action. Suicide/accident/homicide is the discretion of the police inquest. Now, if one doesn’t want to give police intimation in suspicious deaths, it warrants police action. Hence, reporting every suspected death case to the police is advisable. • But if an MLC is already registered in another state or district, there is no need to repeat MLC registration due to state/district limits. • Ask for the MLC registration number/date and hospital details and use the same MLC registration number on the patient case sheet.

Answer: The autopsy is mandatory in snakebite cases because of the compensation money the victim’s family would receive under the Payment of Compensation to Victims of Natural Calamities and Snake Bite Act 2014, which says:

a. Payment of minimum compensation of rupees two lakh in case of death caused due to natural calamity or snakebite. b. Payment of minimum compensation of rupees 50 thousand in case of bodily harm caused due to natural calamity or snakebite. c. An insurance scheme for persons residing near areas prone to natural calamities or generally inhabited or frequented by venomous snakes. • Now, there is no such list of animal deaths for which one should do an autopsy. Any unnatural death from animals (natural calamity) or snakes should be autopsied irrespective if it’s a stray dog bite, elephant trampling, bear mauling, etc. • In such cases, an autopsy is required to confirm the death is due to a particular animal or snake.



4. A suicidal pesticide poisoning case was treated in another state two weeks back and discharged there.

References





1. Nelson, L.S., Howland, M.A.,  & Lewin, N.A., (eds.), Goldfrank’s Toxicologic Emergencies, McGraw-Hill Education, 2019. 2. World Health Organization, Guidelines For Poison Control 1997, World Health Organization, 1997, p. 112. 3. Timbrell, J.A., Introduction to Toxicology, Taylor and Francis, 1989. 4. Gosselin, R.E., Smith, R.P., & Hodge, H.C., (eds.), Clinical Toxicology of Commercial Products (5th Ed), William and Wilkins, 1984. 5. Ellenhorn, M.J., Medical Toxicology: Diagnosis and Treatment of Human Poisoning (2nd Ed), William and Wilkins, 1984. 6. Patra, A.P., Household chemicals and pharmaceuticals—A lurking danger in home. Forensic Research & Criminology International Journal MedCrave, 2017. https://doi. org/10.15406/frcij.2017.05.00156. 7. Gordon, I., Shapiro, H.A.,  & Berson, S.D., “Poisoning and forensic medicine.” In Forensic Medicine: A  Guide to Principles (3rd Ed), Churchill Livingstone, 1988, pp. 204–220. 8. Flanagan, R.J., Braithwaite, R.A., Brown, S.S., Widdop, B.,  & de Wolff, F.A., Basic Analytical Toxicology, WHO Publication, 1995, p. 16. 9. Gazette of India. Part 2, section 3 (1), 26 Dec 1987; 3354. 10. Bhagwan Singh v. State of Punjab, (1999) 9 SCC 573: (1999) 5 scale 372. 11. Modi, J.P., & Kannan, K., (eds.), A Textbook of Medical Jurisprudence and Toxicology (26th Ed), LexisNexis, 2019. 12. Mahabir v. State of Bihar, AIR 1972 SC 1331:1972 Cr LJ 860. 13. Jose v. State of Kerala, AIR 1973 SC 944: 1973 Cr LJ 687. 14. Rhino v. State of Punjab, (1975) SCC (Cr) 376: AIR 1975 SC 1327: 1975 Cr LJ 1109. 15. Prabhakar Jasappa Kanguni v. State of Maharashtra, (1982) 1 SCC 426.

INDEX Note: page numbers in italics indicate a figure and page numbers in bold indicate a table on the corresponding page.

A abandonment, of the elderly, 120 abortion criminal, 161, 164 global status of, 165 laws, 165 – 166 role of doctor, 167 – 169 abrasions, 106, 109, 109, 111, 111, 114 – 115, 116, 117 – 118, 124, 149, 183 abuse child (see child abuse) elder, 120, 124 – 125 accidental poisoning, 208, 210 accidental wounds, 106, 114 acetabulum, age estimation from, 87 Acsadi–Nemeskeri complex method, 87 activated charcoal, 212 actus reus, 173, 174 adultery, 143 advance directive, 176 – 177 adversarial system, 38 AFIS (Automated Fingerprint Identification System), 98 age estimation, 82 – 83 from dental examination, 90 – 93, 90 – 93, 91 – 94 foetus, 128, 130 – 131 from ossification centres, 129 from skeletal remains, 86 – 88, 88, 88 age in sports, 93 – 94, 95 age of consent, for sexual intercourse, 142 age of majority, 27 aggravated penetrative sexual assault (APSA), 135 aggravated sexual assault (ASA), 135 American Law Institute (ALI) test, 175 amputated limbs, 90 anaesthesia records, 66 – 67 anal intercourse, 143 analytical ethics, 10 ancestry, determination of from DNA, 96 from skeletal examination, 88 – 89 anger, 188 ant bite marks, 111, 111 – 112 anthropology, forensic, 3 anthropometry, 83 – 84, 84 anticholinergic type toxidrome, 211 anti-snake venom, 14, 211, 214 – 215 anxiety, 188 applied ethics, 10 APSA (aggravated penetrative sexual assault), 135 Arthasartra, 7 ASA (aggravated sexual assault), 135 aseptic autolysis, 129 assisted reproductive techniques (ART), 153, 156 ethical and legal issues, 156 – 157 status in selected countries, 157 Assisted Reproductive Technology (Regulation) Act, 157 – 158 Atharva Veda, 4, 6, 7 Automated Fingerprint Identification System (AFIS), 98

automatism causes, 172 criminal responsibility, 173 insane, 173 sane, 173 variants, 173 autonomy, 14, 15, 28 autopsy Disaster Victim Identification (DVI), 98 DNA samples, 96 documents submitted before starting, 39 foetal, 128 – 132, 130, 131, 132 medical examiner system, 39 – 40 medicolegal, 113 – 116 night set-up, 199 poisoning diagnosis, 216 – 217 post-mortem artefacts, 110 – 111 pregnancy-related death, 166 – 168 report opinion vs. textbook opinion, 44 room considerations, 198 – 199 starvation deaths, 122 – 123, 123 torture and human rights violations, 180 – 184, 184 – 185, 184 usefulness of, 8 videography, 168, 181 wound examination, 111 – 112 autopsy table, calibrated, 86 avoidable consequences rule, 56 Ayurveda, 6, 22, 193

B Bachelor of Medicine and Bachelor of Surgery (MBBS) degree, 22 – 23, 197 ballistic wounds, 116 Barr bodies, 95 – 96, 97 battered baby syndrome (BBS), 133, 133, 133 battered elder syndrome (BES), 121 bed-head tickets (BHT), 66 beneficence, 14, 15, 28 Beneke’s technique, 132 Bengal Famine of 1943, 121 – 122, 122 Bertillonage anthropometry, 83 BES (battered elder syndrome), 121 bestiality, 144 beta-human chorionic gonadotropin (b-hCG), 161 BHT (bed-head tickets), 66 biological hazards, 203, 204, 204 biomedical waste, 204, 204 – 205, 205 Biomedical Waste Management (Amendment) Rules (2018), 205 biometrics, 97 biosafety, mortuary, 198 – 199 biosensors, forensic, 99 – 100 Biotechnology Regulatory Authority of India (BRAI), 16 birth lotus, 128 maturity indicators after, 127 signs of live, 126, 126 – 127 birthmarks, 83 blame game, 188 blood as forensic tool, 95 identification from, 95 – 96, 97

Bloom’s theory, 170 Bobbit syndrome, 144 bodily marks, 83 body posture type, 84 Bolam test, 54, 55 Bolitho test, 54, 55 bone injuries, 113 – 114 bones age estimation from ossification centres, 128 pathology, 90 signatures on, 90 borrowed servant doctrine, 57 brachial (radiohumeral) index, 89 BRAI (Biotechnology Regulatory Authority of India), 16 brain examination in foetal autopsy, 132 Brhat‑Trayi, 4 British colonisation period, 7 bruise, 105, 106, 106, 111, 111, 114 – 115, 133, 182, 183, 182, 217 buccal coitus, 144 bulbocavernosus reflex test, 155 burden of proof, 38, 54, 73 burnout, 186 burns, see also thermal injuries child abuse, 133 fabricated injuries, 106 fingerprints and, 41, 96 – 97 Jackson’s burns wound model, 116, 116 post-mortem, 111 to pregnant women, 161 superficial, 118 torture, 181

C calculated risk, doctrine of, 57 – 58 callipers, 85, 88, 89 capacity, testamentary, 75 – 77, 77 – 78 caput succedaneum, 127, 127 carbon dating for dental age estimation, 92, 93 catechol-O-methyl transferase (COMT), 171 catharsis, 212 cause of death, see death, cause of CEA (Clinical Establishment Act), 62, 195, 199 Centralized Public Grievance Redress and Monitoring System, 46 Central Pollution Control Board, 205 cephalic index (CI), 89 – 90 factors influencing, 89 mean of some Indian states, 89 skull category and head size, 89 uses of, 89 – 90 cephalohaematoma, 128, 128 cephalometric identification, 100 cerebrospinal fluid (CSF), 123 – 124, 133, 182 CERRA, see Clinical Establishment (Registration and Regulation) Act (CERRA) chain of custody, 40, 113, 145, 152, 217 – 218 Charaka, Acharya, 21, 60 Charaka Samhita, 5, 6, 72 Charaka’s oath, 5 – 6, 12, 18

I-225

Index

I-226 charge, framing of, 39 chemical hazard, 203 chemical waste, 204 child abuse, 133, 133 – 134 battered baby syndrome, 133, 133, 133 management protocol of survivors, 136 risk factors of, 133 role of doctor, 134 – 135 sexual, 133, 135 – 136, 136, 138 – 139 types, 133 – 134 child labour, 135 child marriage, 135, 142 children abuse (see child abuse) of assisted reproductive techniques, 156 battered baby syndrome, 133, 133, 133 cephalic index (CI), 89 crimes involving, 126 – 137 definitions and terminologies, 126 – 127 dental age in, 91 – 94, 91 – 94, 92 – 95 foetal autopsy, 128 – 129 litigations involving, 129 live birth, signs of, 126, 126 – 127 in medical research, 16 poisoning, 208 starvation, 120 statutory rape, 142 sudden infant death syndrome (SIDS), 132 unborn, 161 child sexual abuse (CSA), 133, 135 – 136, 136, 146 – 147 Child Welfare Committee (CWC), 148 CHIME (collaborative home infant monitoring evaluation), 132 chimerism, 96 cholinergic type toxidrome, 211 Churchill, Winston, 121 CI, see cephalic index (CI) circulation, changes after birth, 128 civil law, 34 – 35, 35 civil negligence, 53, 54 civil procedure codes (CPC), 34 Clinical Establishment Act (CEA), 62, 196, 199 – 200 clinical establishment registration, 194, 195 – 197, 197 application procedure, 196 inspection and cancellation, 196 options, 195 permanent, 196 procedure, 196 provisional, 195 Clinical Establishment (Registration and Regulation) Act (CERRA), 193 – 195 categories of establishments, 194 implementation, 193 objectives, 193 – 194 clinical establishment(s), 193 – 200 definitions, 193 display of rates, 195 medical education institutions (MEI), 197 minimum standards, 196 morgue, 197 – 198 mortuary, 197 – 199 registration, 195, 194 – 195, 195 types, 193 clinical forensic medicine elderly, crimes involving, 120 – 125 fecundity, disorders of, 153 – 159 forensic psychiatry, 170 – 178

healthcare facilities, establishment of, 193 – 200 healthcare facilities management, 201 – 207 human rights violations, 179 – 185 identification of the individual, 81 – 101 infants and children crimes involving, 126 – 137 mechanical wounds, 102 – 119 poisoning, toxicity, and drug overdose, 208 – 224 pregnancy, 160 – 169 scope of, 3 – 4 sexual crimes, 138 – 152 torture medicine, 179 – 192 violence against healthcare professionals, 186 – 192 clinical service provider, 195 clinics, 194 clothing, examination of codes of conduct, 15, 25 codes of ethics, 14 codicil, 75 coding system, medical, 69 cold storage in morgue, 197 collaborative clinical practice, 58 collaborative home infant monitoring evaluation (CHIME), 132 commission, act of, 50 common knowledge, doctrine of, 56 common laws, 34 common witness, 42, 43 competency, 170 complaints, patient, 49 composite negligence, 57 compos mentis, 41 computer-based records, 65 COMT (catechol-O-methyl transferase), 171 conduct money, 41 confidentiality, 14, 30, 31, 48 in assisted reproductive techniques, 156 limitations to, 178 conflict management, 187 – 188 confusion, 188 consanguinity, inadvertent, 158 consent, 27, 27 – 29, 32 in assisted reproductive techniques, 156 components, 27 court appearances, 178 direct, 28 – 30 expressed, 28, 28 fitness of insane, 176 implied, 28 – 29 indirect, 29 informed, 14, 28, 177, 189 legal interpretation of, 142 legally valid, 27 open, 29 presumed, 29 safe medical practice and, 189 types, 28, 28 – 30 consequentialism, 12 Constitution of India, 34, 35 bodily autonomy, 184 fundamental rights, 180 healthcare services, 193 patient rights, 48 provision or emergency treatment, 215 provisions for the elderly, 120 rights of unborn children, 126 consumer court, 58, 58

Consumer Protection Act (CPA), 6, 8, 58 – 59 advantages, 60 disadvantages, 60 dos and don’ts in, 59 medical service, 59 punishments, 59 timeline of, 60 contract, insanity and, 176 contributory negligence, 56 – 57, 62 contusions, 111, 111 conventions, 180 coroner’s inquest, 40 corporate negligence, 57 corpus delecti, 81 court appearances, guidelines for, 45 – 4 6 court attendance certificate, 42, 46 court procedure, 41 – 4 6 courts of law, 36 – 37, 37 court trial procedure, 44 – 45 CPA, see Consumer Protection Act (CPA) CPC (civil procedure codes), 34 cranial suture closure pattern, 87 crib death/cot death, see sudden infant death syndrome (SIDS) crime scene, 114 criminal courts, types of, 36 – 37, 37 criminal law civil law compared to, 35 types, 34 – 35, 35 Criminal Law (Amendment) Act, 138 – 140, 141, 221 criminal mind, 171 criminal negligence, 53 – 55, 54 charges of, 55 – 56 civil negligence compared, 54 Criminal Procedure Code (CrPC), 34, 120, 215, 216 criminal responsibility doctrine of diminished, 172, 172 doctrine of unsound mind, 171 establishing, 171, 172 tests for unsoundness of mind, 174 – 175 unsound mental conditions and, 173 – 174 criminology, forensic, 4 CRISPR, 16 cross-examination, 44 cross-specialty practice, 58 crown heel length, 129 crown rump length, 129 CrPC (Criminal Procedure Code), 35, 120, 215, 216 crural (tibiofemoral) index, 89 CSA (child sexual abuse), 133, 135 – 136, 136, 146 – 147 CSF (cerebrospinal fluid), 123 – 124, 133, 182 CT, post-mortem, 4 Curren’s rule, 175 custodial deaths, 181 customary laws, 34, 185 CWC (Child Welfare Committee), 148

D dactylography, 8, 96 – 97 damage malpractice and, 51 negligence and, 51 reasonably foreseeable, 52 date rape, 143 Daubert test, 42 deadborn child

Index definition, 126 foetal autopsy, 128 – 133 signs of, 126 death, cause of, 90, 90 in child death, 128, 133 in fatal pregnancy, 126 inquest procedure, 38 – 4 0 medicolegal autopsy and, 114 – 117, 116 – 117 starvation as, 124 in torture victim, 182 death, determining time since, 89 death sentence, professional, 26 – 27 Declaration of Geneva, 18 Declaration of Helsinki, 18 Declaration of Tokyo, 18, 179, 184 declarations, 18, 179 decontamination, 212 defence wounds, 104 – 105, 105, 114 – 115, 115, 118 defloration, 160 degree of care, 52 – 53 delirium, 172, 174 delirium tremens, 174 delivery, diagnosis of, 160 – 162 delusions, 76 – 77, 77, 172, 173 – 174 dementia, 76, 77 denial behavior, 186 dental charting, 92, 93 dental examination, 90 – 93, 90 – 93, 91 – 94 age estimation, 91 – 92, 91 – 93, 92 – 94 characteristics of temporary and permanent teeth, 91, 92 dental age in adults, 91 – 93, 92 dental age in children, 91 – 94, 91 – 93, 92 – 95 Disaster Victim Identification (DVI), 98– tooth eruption, 91 – 92, 92, 92, 93 dentistry, forensic, 4 deontology, 10 – 11, 12 Kantian ethics, 12 medical, 10 – 20 teleology compared, 13 deposition, preparation for, 117 dereliction of duty, 52 – 53 descriptive (comparative) ethics, 10 detention, illegal, 176 Deuel’s halo sign, 129 DFSA (drug-facilitated sexual assault), 143 Dharmashästra, 7, 34 diaphragm, position of, 126 digital craniofacial superimposition, 85, 85 dignity, 14 diminished responsibility, doctrine of, 173, 173 Disaster Victim Identification (DVI), 98, 101 discharge card, 66 disciplinary action, 26, 46 disposal, of waste, 204 – 205 district court, 35 district medical board, 61 – 62 District Medical Council Board (DMCB), 61 divorce, 155 DNA autosomal, 96 mitochondrial (mt-DNA), 96, 96 DNA analysis, 95 – 97, 96 DNA database, 96 DNA phenotyping, 101 DNA profile, 97 – 98, 99 doctor

I-227 responsibilities of, 49 rights of, 49 use of term, 44 doctor–patient relationship (DPR), 49 changes in, 21 duty of care, 52 ethical issues, 12 gifts to the physician, 72 documentary evidence, 40 – 41, 40 documentation, 32, see also medical records basic rules for, 64 negligence litigation prevention, 57 principles of, 64 safe medical practice and, 189 – 190 sexual crimes, 144 of wound examination, 116 domestic violence, 120 – 121, 128, 133, 142 dope, 221 doping, 221 DPR, see doctor–patient relationship Drug and Cosmetics Act (1940), 218 Drug and Cosmetics Rules (1945), 218, 218 Drug and Cosmetics Rules (2005), 218 drug-facilitated sexual assault (DFSA), 143 drug overdose, 210, 211 drugs advertisement of, 219 e-pharmacy, 218 – 219 ergogenic supplements, 221, 221, 221 laws related to, 218 – 221, 220 – 221, 221 sale by doctors, 219 warning labels, 222 Drugs and Cosmetics (Tenth Amendment) Rules (2018), 218 drug schedules, 218, 218 Drugs Control Act (1950), 218 drunkenness, 174 duplex doppler ultrasonography, 155 Durham rule/product test, 175 duty-based ethics, 11 – 12 duty of care, 52 DVI (Disaster Victim Identification), 98 – 99, 99 dying declaration, 40 dying deposition, 40

E eccentricity, 76, 77 EDS (excited delirium syndrome), 181 education, medical, 21 eggshell skull fractures, 134 egoism, ethical, 12 elder abuse role of doctor in identifying, 124 – 125 types, 120 elderly age estimation from skeletal changes, 87 – 88 common concerns of, 120 crimes involving, 120 – 125 legal provisions for, 120 poisoning, 211 – 212 electrocephalography, in forensic psychiatry, 177 electrocution, 162 electronic nose (e-nose), 99 electronic patient records (EPR), 65 embryo definition, 126, 160 implantation of, 157

embryonic period, 160 emergency medical care, 193, 199 emotional abuse of children, 133 of the elderly, 121 empathy, 32, 73, 186, 188, 190 Employee Compensation Act, 58 entomology, forensic, 7 envenomation, 214 – 215, 215 in pregnancy, 161, 162 environmental toxicity, 211 e-pharmacy, 17, 218 – 219 epiphysis closure, 86, 86 EPR (electronic patient records), 66 equality, 15 equity, 15 erectile dysfunction, 153 ergogenic supplements, 221, 222, 222 escalating behavior, 188, 189 ethical approaches, 11 – 12 deontology (duty-based ethics), 11 – 12, 13, 14 principalism, 12 teleology (consequentialism), 11, 12, 13 virtue ethics, 12 ethical egoism, 12 ethical issues assisted reproductive techniques and surrogacy, 156 – 157 in biomedical research, 16 – 18 hunger strike, 184 medical tourism, 32 receiving gifts, 72 – 73 telemedicine, 30 – 31 ethical negligence, 53 ethical responsibility, of doctors, 49 ethics, 5, 6, 10 – 20 branches of, 10 – 11, 11 Clinician’s Corner, 19 – 20 codes of, 14 conflicts in biomedical, 14, 14 dilemma in clinical practice, 14 – 16 etymology of term, 10 law vs., 10, 10, 14 list of unethical acts, 50 misconduct, professional, 26, 27, 30, 50 synonyms, 10 types (theories), 11 – 12 universal principles of ethics, 11, 13 – 14 ethics, branches of, 10 – 11, 11 applied ethics, 11 descriptive (comparative) ethics, 11 metaethics, 11 normative (prescriptive), 10 – 11, 13 etiquette, medical, 5, 15 eudaimonism, 11 evidence characteristics of, 84 corpus delecti, 81 documentary, 40 – 41, 40 hearsay, 40 indirect (circumstantial), 40 law of, 25 law of multiplicity of, 81 medical, 40 oral, 40 – 41, 40 trace, 95 treatment orientation, 68 types, 41 – 42, 42, 84 evidence law, 40 – 41 evidence processing, 113

Index

I-228 Ewing’s postulation, 116 examination-in-chief, 44 excited delirium syndrome (EDS), 181 executive courts, 36 executor, 75 exhibitionism, 144 eye colour chart, Martin and Schultz, 84 eyewitness, 43

F fabricated wounds, 106, 106 facial reconstruction, 85, 85 FACTS (Fingerprint Analysis and Criminal Tracking System), 98 FDI charting, 93, fear, 188 fecundity, disorders of, 153 – 159 female genital mutilation (FGM), 153 females Barr bodies in, 95 – 96, 97 examination of female patients, 186 impotence and sexual dysfunction, 153 – 154 infertility, 154 – 155 physiological changes in genital tract after sexual intercourse, 154 sexual harassment, 135, 143, 190 feticide, 126 fetishism, 144 fidelity, 14 filicide, 126 financial exploitation, of the elderly, 120 Fingerprint Analysis and Criminal Tracking System (FACTS), 98 fingerprints, 8, 96 – 97 Disaster Victim Identification (DVI), 98 – 99 exemplar, 97 forging, 098 latent, 97 matching, 98 patterns, 97 techniques for collecting, 97 FIR (first information report), 135, 147, 192 fire safety, 201 first information report (FIR), 135, 147, 192 Flinders Technology Associates (FTA) card, 132, 145, 167, 169 foetal autopsy, 128 – 132, 130, 131, 132 foetal period, 160 foetal haemoglobin (HbF), 128 foetus age estimation, 128, 131 – 132 definition, 126, 160 food poisoning and adulteration, 211 force-feeding, 184 – 186 forensic medicine, 3 – 4, see also clinical forensic medicine forensic psychiatry, 4, 170 – 178 applications of, 170 definitions and terminologies, 170 – 171 laws, statutes, guidelines for psychiatrists, 175 psychiatry compared, 170 report-writing and court appearances, 178 role of doctor in practice, 177, 177 tests for unsoundness of mind, 174 – 175 forensic science, 4 forensic science laboratories, 4 forgetfulness, benign senescent, 76, 77 forging fingerprints, 97

fractures, 113 in battered baby syndrome, 133, 133 eggshell skull, 133 frigidity, 153 frotteurism, 144 frustration, 188 Frye test, 42 FTA (Flinders Technology Associates) card, 132, 145, 167, 169 fundus height, in pregnancy, 160

G Galton, Francis, 8 gametes, posthumous retrieval of, 157 genealogy, forensic, 101 – 102, 102 gene editing, 16 – 17 genetically modified (GM), 16 – 17 Genetic Engineering Appraisal Committee (GEAC), 16 genomic medicine, 16 geriatric age, 120 gifts to the physician, 72 – 74 ethical issues of receiving gifts, 72 – 73 legal issues of receiving gifts, 73 from medical representatives, 73 testamentary and non-testamentary, 72 government rules/statutes, 22, see also law(s) Great Triad, The, 4 grievance redressal, 26 guidelines, 180 gut, changes with live birth, 127 gut dialysis, 214 – 215

H Haase’s rule, 129 haematoma cephalohaematoma, 128, 128 subdural, 76, 116, 133, 134 haemoglobin (Hb), 111, 128, 155, 162 hallucinations, 76 – 77, 77, 172, 175 hallucinogenic type toxidrome, 211 handedness, 90 – 91 harassment, 135, 143 – 144, 190 hazards hospital, 201 – 203, 202, 202 occupational, 203 – 205 psychosocial, 204 hazards, hospital, 201 – 203, 202, 202 – 203 engineering, 202 forensic investigation of, 202 – 203 medical-device-related, 201 – 202, 202 Hb (haemoglobin), 111, 128, 155, 162 HbF (foetal haemoglobin), 128 head identifying characteristics, 84 trauma in battered baby syndrome, 133, 133 healthcare facilities Clinician’s Corner, 199 – 200 definitions, 193 establishment of, 193 – 199 management, 200 – 207 medical education institutions (MEI), 197 minimum standards, 194 morgue, 197 – 198 mortuary, 197 – 199 registration, 193, 194 – 196, 196 types of establishments, 193 waste disposal management, 198, 204 – 206

healthcare facilities management, 201 – 207 fire safety, 201 hazards, 201 – 203, 202, 202 – 203 healthcare professionals, violence against, 186 – 192 hearsay evidence, 40 Herschel, William James, 8 high courts, 35 Hindu Adoptions and Maintenance Act, 120 Hindu law, 34, 35 Hippocratic oath, 4 – 5, 8, 18, 184 histopathology foetal autopsy, 132 – 133 starvation-related deaths, 123 torture-associated autopsy, 181 – 182 of wounds, 108 – 109, 109 history British colonisation period, 7 evolution of legal system in India, 34, 35 forensic toxicology, evolution of, 8 – 9 legal system during European invasion period in India, 7 legal system during Islamic invasion period in India, 7 – 8 medical jurisprudence evolution in India and Asia, 8 – 9 medical practice evolution in India and Asia, 4 – 6 medical records, 64 National Medical Commission (NMC), 23 post-independent India, 8 HIV (human immunodeficiency virus), 13, 30, 48, 66, 76, 123, 135, 156 – 159, 209 holograph will, 77 homeopathy, 22, 193 homicidal poisoning, 208, 209, 211 homicidal wounds, 104, 104, 114, 114 homicide, 114 culpable, 28, 55, 117, 128, 135 deliberate starvation, 124 false alarm of, 111 poisoning, 208 hospitals definition, 193 levels, 195 hostile (adverse) witness, 43, 43 hostility, 188 household poisons, 208, 208 – 209 human immunodeficiency virus (HIV), 13, 30, 48, 66, 76, 123, 135, 156 – 157, 203 humanitarian forensics, 4, 179 human rights violations, 179 – 185 autopsy procedure, 181 – 183 declarations, codes, and laws, 180 – 181 international instruments/agencies to prevent, 179 – 180 objectives of, 179 humerofemoral index, 89 hunger strike, 124, 184 – 187 in custody, 184 history in India, 184 pathophysiology of, 184 refeeding syndrome, 184 – 185 role of doctor, 184 hurt definition of, 102 grievous, 102, 104 hydrostatic test, 127 – 128 hymen examination, 145, 146 – 17, 155 – 159 hyperactivity, 171 hyperglycemia, 173 hypnotism, 174

Index hypoglycemia, 172, 174 hypophosphatemia, 184

I IAFM (Indian Academy of Forensic Medicine), 8 ICC (internal complaints committee), 143 ICCPR (International Covenant on Civil and Political Rights), 179 ICMR (Indian Council of Medical Research), 17 – 19 identification of the individual, 82 – 101 identity-by-descent (IBD), 96, 101 identity establishment, 81 – 101 approaches, 82 features in living individuals, 82 methods, 82 – 101 objectives, 81 – 82 team members for, 62 tenets of, 82 identity establishment methods, 81 – 101 age estimation, 82 – 8 4 anthropometry, 83 – 8 4, 84 blood and tissue analysis, 95 – 96, 97 cephalometric identification, 100 dental examination, 90 – 93, 90 – 93, 91 – 94 digital craniofacial superimposition, 85, 85 DNA analysis, 95 – 96, 95 facial reconstruction, 85, 85 fingerprints, 96 – 97 forensic biosensors, 98 – 99 forensic genealogy, 99 – 100, 100 forensic immunochemistry, 99 forensic phenotyping, 98 forensic taphonomy, 99 morphological and individual characteristics, 82 – 88, 84 neutron activation analysis, 99 physical characteristics, 83 physical methods, 83 – 89 skeletal examination, 86 – 9 0, 88 – 90, 88 – 89 somatometric methods, 84 – 85 somatoscopic methods, 84 – 87 stable isotope analysis, 99 stature estimation, 84 – 85 IEA (Indian Evidence Act), 35 ilium, age estimation from, 87 illusion, 172 IMA (Indian Medical Association), 6, 190 IMC, see Indian Medical Council (IMC) immunochemistry, forensic, 99 immunohistochemical changes within wounds, 108 – 109, 109 impotence female, 153 male, 153, 154, 155 medicolegal significance, 124 impulsivity, 171 incest, 143 incineration, 205 Indian Academy of Forensic Medicine (IAFM), 8 Indian Academy of Forensic Science, 8 Indian Council of Medical Research (ICMR), 17 – 19 Indian Evidence Act (IEA), 35 Indian Medical Association (IMA), 6, 191 Indian Medical Council (IMC), 24 – 25 contents of medical certificates, 67

I-229 gifting practices, 72 – 73 medical records, 67 – 71 negligence complaints, 60 Indian Penal Code (IPC) adoption of, 34 automatism, 172 consent, 27, 29 hurt, definition of, 102 injury, definition of, 101 – 102 poisoning cases, 215 – 216, 216, 218 sexual crimes, 138 – 139, 138 – 140 substantive criminal law, 35 unsoundness of mind, 173 – 175 Indian Succession Act, 75, 77 indirect (circumstantial) evidence, 40 infamous conduct, 26 infancy period, 160 infanticide, 126 infantile whiplash syndrome, 134 infants, 126 – 137, see also children battered baby syndrome, 133, 133, 133 crimes involving, 126 – 137 definitions and terminologies, 126 – 127 litigations involving, 129 live birth, signs of, 126, 126 – 127 starvation, 121 sudden infant death syndrome (SIDS), 132 infertility, 154 – 155 informed consent, 14, 28, 177, 189 informed permission, 29 informed refusal, 14, 28, 189 injury, see also wounds antemortem and post-mortem, 110 – 112, 111 – 112, 112 blunt instrument, 114 bone, 113 – 114 causes of death due to, 115 classes of, 102 crush, 114 definition, 102 – 203 fatal internal, 115 medicolegal aspects, 114 – 117 simple and dangerous, 104 inpatient records, 66 inquest procedure, 38 – 4 0 coroner’s, 39 magistrate, 39 police, 39, 40 inquisitorial system, 38 insane automatism, 172 insanity contracts and, 176 etymology of, 171 fitness to be witness or give consent, 176 plea, 175 insect envenomation, 214 – 215 insurance, medical indemnity, 58 – 59, 62 internal complaints committee (ICC), 143 – 144 International Committee against Torture, 180 International Covenant on Civil and Political Rights (ICCPR), 179 international human rights instruments/ treaties, 180 INTERPOL DNA database, 95 fingerprints, 96 Guide to Disaster Victim Identification, 98 intracavernosal injection, 155 intrauterine death (IUD), X-ray findings for, 129

intrauterine life (IUL), 91, 129, 155 intrauterine growth retardation, 126 IPC, see Indian Penal Code (IPC) iris colour, 84 irresistible impulse, 174 irresistible impulse test (New Hampshire Doctrine), 175 Istanbul Protocol, 180, 184 IUD (intrauterine death), X-ray findings for, 129 IUL (intrauterine life), 91, 128, 160

J Jackson’s burns wound model, 116, 116 judiciary, 35 – 36 justice, 15 juvenile courts (juvenile justice board), 36 Juvenile Justice (JJ) (Care and Protection of Children) Act, 135 – 136, 140 juvenile rapists, 140

K Kant, Immanuel, 13 Kautilya, 7 ketone bodies, 184 – 185 ketone odor, 129 Klinefelter syndrome, 95 Korsakoff’s psychosis, 172

L laceration, 106, 112, 114 – 115, 116, 118, 149, 161 – 162, 182 lactation, poisoning in, 212 landfill, 205 last clear chance doctrine, 56 law enforcement system, 38 law of evidence, 35 law of multiplicity of evidence, 81 law(s) abortion, 165 – 166 for assisted reproductive techniques and surrogacy, 157 – 159 child protection, 135, 135 – 137 civil, 34 – 35, 35 common, 34 criminal, 34, 34 – 35, 35 customary, 34, 180 drug-related, 218 – 221, 219 – 221 ethics vs., 10, 11, 15 evidence, 40 – 41 macroenvironment of medical practice, 22, 22 medical malpractice, 57 occupational health and safety, 204 – 205 poisoning-related, 218 – 221 procedural (adjective), 35 for psychiatrists, 175 sexual crimes, 138 – 142, 139 – 141 statutory (substantive), 34 tort, 34 – 35, 50 – 51, 51 torture and human rights violations, 179 – 181 violence against healthcare professionals, 190 wound, 116 LECPR technique, 187 legal classification of wounds, 102, 104 legal defenses, for doctors, 56 – 58 legal issues

Index

I-230 assisted reproductive techniques and surrogacy, 156 – 157 hunger strike, 184 medical records, 69 medical tourism, 31 receiving gifts, 73 separate existence, 128 starvation deaths, 124 telemedicine, 30 – 31 unborn child, 161 unsoundness of mind, 173 – 176 visits by medical representatives, 73 legal medicine, 3, 22 legal procedure in India, 34 – 47 charge, framing of, 39 Clinician’s Corner, 46 – 47 court appearances, guidelines for, 45 – 4 6 court procedure, 41 – 4 6 court trial procedure, 44 – 45 critical review, 46 for disposing criminal cases, 38 inquest procedure, 38 – 4 0 plea of guilty, 39 legal provisions for elderly, 120 legal responsibility, of doctors, 49 legal system civil law, 34 – 35, 35 common laws, 34 components of, 34 – 35, 35 criminal law, 35, 35 – 36, 36 during European invasion period in India, 8 evolution in India, 34, 35 during Islamic invasion period in India, 7 – 8 punishment types, 38 legatee, 75 legitimacy, 157 LGBTQ, 145 licensing, medical, 23 lie detection, 99 ligature mark, 106, 106, 118 linea nigra, 160 liquid waste, 204 liquor amnii, 129, 130, 162 listening, 187, 188 litigation, medical causes of, 51 – 52 involving children/infants, 129 process of, 52 types, 51 live birth, signs of, 126 – 127, 127 Locard’s exchange principle, 95 lochia, 161 loco parentis, 29 lotus birth, 128 lucid interval, 75 – 77, 176 lungs, changes with live birth, 127 lust murder, 144 Lyon’s hypothesis, 95 – 96

M maceration, 129 – 130, 134, 135 macroenvironment of medical practice, 22, 22 – 23 macroenvironments management, 190, 190 maggots, 116 magistrate inquest, 39 magistrates, 36 – 37 Mahila court, 36 Maintenance and Welfare of Parents and Senior Citizens Act, 120

males impotence, 153, 154 – 155 infertility, 154 malignancy, correlation between trauma and, 116 malpractice, medical, 50 – 51 malpractice laws, medical, 57 mandible, 87, 87 marital rape, 142 – 143 marriage, 155 child, 135, 142 – 143 marriage contract, insanity and, 176 masochism (passive algolagnia), 144 masturbation, 144 maternity home, 194 maturity indicators, 127 – 128 MBBS (Bachelor of Medicine and Bachelor of Surgery) degree, 23, 197 MCI (Medical Council of India), 6, 19 – 20, 23 – 24, 27 McNaughton rule, 175 mechanical wounds, 102 – 119, 104, see also wounds meconium, 126, 127, 132 media, 22 Medical and Toilet Preparation Act and Rules (1955), 218 medical boards, 61 – 62 medical certificates, 27, 41 contents, 67 list of doctor-issued, 67 – 68 medical certification, 67 – 68 medical reporting, 68 principles of, 67 standard statement, 68 medical college, 197 Medical Council of India (MCI), 6, 19 – 20, 23 – 24, 27 medical deontology, 10 – 20 concept, 12 – 13 in medical practice, 13 – 14 principles, 13 medical-device-related adverse events, 201 – 202, 203 medical education institutions (MEI), 197 medical emergency, 62 medical ethics, 5, 6, 10 – 20, 31 medical examiner system, 39 – 4 0 medical indemnity insurance, 59 – 60, 63 medical jurisprudence Chinese, 7 critical analysis of Indian, 8 definition, 3 deontology, medical, 10 – 20 documentation, certification, and record keeping, 64 – 71 evolution in India and Asia, 6 – 8 gifts to the physician, 73 – 75 legal procedure in India, 34 – 47 medical practice, 21 – 33 patient, physician, and the law, 48 – 6 4 wills, 75 – 78 medical negligence, see negligence medical officer, in-charge, 170 medical practice, 21 – 33 ABCD of safe, 32 Clinician’s Corner, 32 – 33 cog system of successful, 21 critical analysis of current, 30 – 31 deontology in, 13 – 14 environments, 21 – 22, 22 evolution in India and Asia, 4 – 6

medical councils and related laws, 23 – 27 medical education and licensing, 22 telemedicine, 30 – 31 medical practitioner, 170 medical records anaesthesia records, 66 – 68 Clinician’s Corner, 70 – 71 coding system, 69 computer-based, 65 content of, 68 discharge and transfer notes, 66 disposing, 70 documents covered under, 64 history, 65 impersonal, 66 inpatient, 66 legal aspects, 70 management, 68 medical information in, 67 objectives of maintaining, 64 – 66 outpatient, 66 paper-based patient records (PPR), 65 patient identification, 66 patient rights, 48 – 49 personal, 66 problem-oriented (POMR), 64 retention, 68 – 69, 69 surgical operation notes, 66 treatment orientation evidence, 66 types, 65 – 68 medical records department, 69 – 70 medical register, 26 medical representatives, legality of visits by, 73 medical termination of pregnancy (MTP), 6, 135, 166 – 169, 166 Medical Termination of Pregnancy Act, 22, 166, 166, 169 medical tourism, 32 medical toxicology, 208 medicinal poisoning, 208 – 214 medicolegal aspects of injuries, 114 – 116 aspects of mechanical wounds, 102 – 119 aspects of poisoning, 215 – 216, 216 aspects of pregnancy, 160 – 169 aspects of wills, 77 documentary evidence, 40 etymology of term, 3 management of poisoning, toxicity, and drug overdose, 208 – 224 tips (ABCDEF) for Safe Medical Practice, 189 medicolegal case (MLC) animal bites, 224 poisoning, 215, 223 – 224 pregnancy, 167, 169 sexual crimes, 150, 151 medicolegal report-writing, see report-writing MEI (medical education institutions), 197 mens rea, 173, 173, 174 Mental Health Act (1987), 39, 171 Mental Healthcare Act (2017), 176 mental health review board (MHRB), 177 mental illnesses/conditions capacity to make decisions, 176 classification of, 172, 172 – 173 diagnosis of, 176 legal validity of testamentary capacity, 77, 77 manifestations, 172 – 173

Index mentally ill person, 170, 171 admission of, 176 rights of, 176 mentally ill prisoner, 170 mental status examination, 178 mentors, 191 mesmerism, 174 metaethics, 11 microenvironment of medical practice, 22 microenvironments management, 189 – 190, 190 microsort, 164 mind basics of human, 171 – 172 chemistry of human, 171 criminal mind, 171 – 172, 172 psychological domains, 170, 171, 171 mineralisation, tooth, 91 Minnesota Protocol, 180, 181, 184 misadventure, medical, 56 miscarriage, 165 misconduct, professional, 26, 27, 31, 50 mitochondrial (mt-DNA) DNA, 96, 96 mixed (pluralistic) law, 34 MLC, see medicolegal case (MLC) monoamine oxidase, 171 moral paradoxes, 15 moral responsibility, of doctors, 49 morgue, 197 – 198 Morrison’s rule, 129 mortuary, 197 – 199 biological hazards in, 203 MRI, post-mortem, 4 MTP (medical termination of pregnancy), 6, 135, 166 – 169, 166 Munchausen syndrome by proxy (MSBP), 134 mutilation, 107 female genital, 153 – 154

N Nalanda University, 5 Narcotic Drugs and Psychotropic Substances (NDPS) Act, 220, 200 National Code Against Age Fraud (NCAAF), 93 National Council for Clinical Establishment (NCCE), 194 – 195 National Database on Sexual Offenders (NDSO), 140 National Medical Commission (NMC), 23 – 26 action against workplace stress, 191 composition of, 24 functions of, 24 – 26 history, 23 medical college, 197 negligence complaints, 59, 61 objectives, 23 regulation of, 24 unfair gifting practices, 73 – 75 National Safety Council (NSC), 201 NCAAF (National Code Against Age Fraud), 93 NDPS (Narcotic Drugs and Psychotropic Substances) Act, 220, 200 NDSO (National Database on Sexual Offenders), 140 necrophagia, 144 necrophilia, 144 neglect

I-231 of children, 133 of the elderly, 120 – 121 negligence civil, 53, 54 Clinician’s Corner, 61 – 63 compensation system, 58 – 59 composite, 57 constituents of, 52 Consumer Protection Act (CPA), 58 – 59 contributory, 56 – 57, 62 corporate, 57 criminal, 53 – 56, 54 defences for doctors, 55 – 57 degree of, 53 ethical, 53 investigation, guidelines for, 55 prevention of, 57 process of litigation, 52 protecting doctors from frivolous or unjust prosecution, 60 – 61 redressal mechanism, pyramid of, 58 tests for, 54, 55, 55 tort of, 50 – 51, 51 types of suits, 53 neonatal period, 160 neonate, definition, 126 neonaticide, 126 neuroimaging, in forensic psychiatry, 178 neurology, forensic, 4, 170 neuropathology, forensic, 4 neurosis, 172 neutron activation analysis, 99 – 100 NGO (non-governmental organization), 151 – 152 Nirbhaya gang rape case, 138, 140 nitrogen and amino acid content, 90 NMC, see National Medical Commission (NMC) nocturnal penile tumescence test, 155 nonclinical service provider, 195 non-governmental organization (NGO), 151 – 152 non-maleficence, 14, 28 normative (prescriptive) ethics, 10 – 11, 13 novus actus interveniens, 56 NSC (National Safety Council), 201 nullity of marriage, 155 Nuremberg Code, 18 nursing home, 170, 194 Nursing Home Act, 194

O oath, in court trial procedure, 44 obscenity, 139 obsessive-compulsive disorder (OCD), 171, 173 obstetrics, forensic, 4 OC (ossification centre), 129, 130 occupational hazards, 203 – 205 biological, 203, 203, 204 physical and chemical, 203 psychosocial, 204 safety laws, 204 Occupational Safety and Health Administration (OSHA), 186, 204 occupational stress marks, 90 odontology, forensic, 4, 90 – 93 omission, act of, 50 one-stop crisis center (OSCC), 134, 145, 146 – 148 one-stop crisis (OSC) management strategy, 145, 146 – 148, 150

oocyte donor, 156 – 157 opiate type toxidrome, 211 opinio juris, 34 oral coitus, 144 oral evidence, 40, 40 OSCC (one-stop crisis center), 134, 145, 146 – 148 OSC (one-stop crisis) management strategy, 145, 146 – 148, 150 OSHA (Occupational Safety and Health Administration), 186, 204 ossification centre (OC), 129, 130 osteology, forensic, 4 osteometric board, 88, 88 osteometry, 88 outpatient records, 66 ovular period, 160

P paedophile, 133 panchnama report, 112 Pan’s formulae, 99 paper-based patient records (PPR), 65 paternity, 161 pathology, forensic, 4 patient rights, 48 – 49 charter of, 48 complaints and appeals, 49 confidentiality and privacy, 49 medical records, 48 – 49 participation in treatment decisions, 49 patients responsibilities of, 49 – 50 rights of, 48 – 49 PCC/PIC, 211, 221 – 222 PC-PNDT (Preconception and Prenatal Diagnostic Techniques) Act, 163 – 164 penal erasure, 26 penile brachial index, 155 perjury, 44, 44 perpetrator, use of term, 138 personalised medicine, 16 pharmaceutical companies, gifts to doctors from, 72 – 74 Pharmacy Act (1948), 218 phenotyping, forensic, 99 philosophical ethics, 11 philosophy, health, 5 photo-lifting, molecular, 99 PHRA (Protection of Human Rights Act), 181 physical abuse, of children, 133 physical hazard, 203 physician definitions of, 48 gifts to, 72 – 74 wills and, 75 – 78 PIC/PCC, 211, 221 – 222 placenta, examination of, 132 placental attachment site, 161 Plaquette’s test, 127 plea of guilty, 39 POCSO (Protection of Children from Sexual Offenses) Act, 135, 135 poison, 208 poison control or information centre (PCC or PIC), 211, 221 – 222 poisoning, 208 – 224 accidental, 208, 210 acute, 208 in children, 211 – 212 chronic, 208

I

I-232 classification, 208, 209 Clinician’s Corner, 223 – 224 deliberate, 212 diagnosis, 211, 216 – 218 in the elderly, 212 envenomation, 214 – 215, 215 factors modifying poison action, 213 fulminant, 208 homicidal, 208, 210, 212 household poisons, 210, 210, 212 laws related to, 218 – 221, 229 – 221 management of, 212 – 214, 213 – 214 mass, 211, 212 medicinal, 208 – 214 poison control or information centre (PCC or PIC), 211, 221 – 222 in pregnancy, 162, 163, 212 report-writing, 218 – 221 role of doctor, 215 – 216, 216 safeguards against, 212 sample collection and processing, 217 severity, 210 suicidal, 208, 210, 212, 223 – 234 terminology, 208 unknown poisons, 210 – 211 warning labels, 222 police inquest, 39, 39 POMR (problem-oriented medical record), 64 post-mortem artefacts, 111, 111 post-mortem examination, see autopsy post-mortem incised wounds and mutilation, 107, 107 post-mortem injuries, 110 – 113, 111 – 112, 112 post-mortem staining, 112, 123, 182, 217 potency, medicolegal certification of, 155 PPR (paper-based patient records), 65 precipitin test, 86, 90 Preconception and Prenatal Diagnostic Techniques (PC-PNDT) Act, 163 – 164 pregnancy adverse events in, 161 – 153, 162 – 163 assessment, medicolegal, 197 Clinician’s Corner, 168 – 169 diagnosis, 160 – 161 Medical Termination of Pregnancy Act, 166, 166, 169 medicolegal aspects, 160 – 169 phases of gestational period, 160 poisoning in, 162, 162, 212 Preconception and Prenatal Diagnostic Techniques (PC-PNDT) Act, 163 – 164 role of doctor, 167 – 168 sudden maternal death, 163, 163 termination, 164 – 165 premature, definition, 126 prescription drugs, 218 prescriptions, 18 preservation, sample, 217 principalism, 12 privacy, 14, 30, 31, 49 privileged communication, 30 – 31 probate, 75 problem-oriented medical record (POMR), 64 procedural (adjective) law, 35 product liability, 57 professionalism, 16, 16, 22 professional standards, 16 Prohibition of Child Marriage Act, 142 prostate-specific antigen (PSA), 99, 145

Protection of Children from Sexual Offenses (POCSO) Act, 135, 135 Protection of Human Rights Act (PHRA), 181 Protection of Women from Domestic Violence Act, 142 protocols, 180 PSA (prostate-specific antigen), 99, 145 psychiatric hospital, 170 psychiatric nosology, 172 psychiatrist definition, 170 laws, statutes, guidelines for, 175 – 176 as witness, 176 psychiatry, see also forensic psychiatry definitions and terminologies, 170 forensic psychiatry compared, 170 mental disorders, manifestations, 172 – 173 psychology, forensic, 170 – 171 psychosis, 172 psychosocial hazard, 210 pubic symphysis, age estimation from, 86 pudendal nerve conduction, 155 punishment, authorised types, 38 pyromania, sexual, 144

Q qualifications, medical, 25

R race determination from skeletal examination, 89 – 91 RACE framework, 201 racemisation of amino acids, 92 radiation, 201 radioactive waste, 204 radiology battered baby syndrome, 133 dental age estimation, 92, 93 forensic, 4 intrauterine death, findings to diagnose, 129 rape date, 143 definitions, 138 – 139, 139 juvenile rapists, 140, 142 marital, 142 Nirbhaya gang rape case, 138, 140 punishment, 139, 140, 141 statutory, 142 rape crisis centres (RCC), 148 Raygat’s test, 127 reason, defect of, 175 reasonable forseeability, 56 reasonable person, 53 reception order, 170 recommendations, 180 record-keeping, 68 – 71, see also medical records records, see medical records recreational toxicity, 211 redisclosure of personal information, 29 re-examination, 45 refeeding syndrome, 184 referral, 57, 61 refusal, informed, 14, 29, 189 registered medical practitioner (RMP), 27 ethical, moral, and legal responsibilities, 27 privileges, 27 sexual crimes and, 144 – 145

telemedicine, 30 – 31 registration of clinical establishments, 193, 195–197, 196 medical, 25 regulations, 22, see also law(s) religious conflicts, 186 religious law, 34 report-writing, 68 forensic psychiatry, 178 poisoning cases, 218 sexual crimes, 146 reproductive tract, delivery-related changes in, 160 – 161 research, ethics in biomedical, 16 – 19 children in research, 16 gene editing, 16 – 17 genomic medicine, 16 stem cell research, 16 – 17 res indicata, 54, 56 res ipsa loquitur, 56 res judicata, 56 resuscitative efforts, injuries associated with, 115 rights of patients, see patient rights Right to Information (RTI) Act, 25 RMP, see registered medical practitioner (RMP) Robert’s sign, 129 Rohrer’s index, 94, 95 RTI (Right to Information) Act, 26

S SAAW (sexual assault against women), 138 sadism (algolagnia), 144 SAFE, see sexual assault forensic examination (SAFE) safe pits, 205 safety fire, 201 hospital hazards, 201, 201, 202 occupational health and safety law, 203 – 204 SAI (Sports Authority of India), 93 – 93, 94 sane automatism, 173 saponification, 129 SBS (shaken baby syndrome), 134 scalp reflection, 132 scars, 83 schizophrenia, 172, 175 scopophilia/scoptophilia, 144 secrecy, professional, 30 sedative/hypnotic toxidrome, 211 self-inflicted wounds, 106 – 107, 107 senior citizen, 120 separate existence, 128 serotonergic neurotransmission, 171 sessions court, 35 sex determination, from skeletal remains, 86 – 88, 86 – 87, sex selection, 157, 164 sex trafficking, 139 sexual abuse child, 133, 136, 136, 146 – 147 of the elderly, 120 – 121 sexual assault aggravated (ASA), 135 aggravated penetrative (APSA), 135 bite mark patterns, 90 of children, 135, 135 definitions, 135 false alarm of, 111, 111 – 112

Index management protocol of cases, 151 penetrative (PSA), 135, 135 sexual assault against women (SAAW), 138 sexual assault forensic examination (SAFE), 140, 145, 148, 150 sexual crimes, 138 – 152, see also rape; sexual abuse; sexual assault accused examination, 146, 149, 150 classification, 139 Clinician’s Corner, 149 – 152 evidence collection and processing, 145 examination of survivors, 144 – 145, 150 FAQs from clinicians, police, and medical students, 142 – 143 laws related to, 138 – 142, 139 – 141 management of sexual assault cases, 146, 147 one-stop crisis (OSC) management strategy, 145, 146 – 148, 150 report-writing and court appearances, 146, 148 role of registered medical practitioner, 144 – 145 unnatural sexual offense, 143 – 144 sexual dysfunction in females, 153 sexual harassment (SH), 135, 143, 190 sexual intercourse adultery, 143 age of consent for, 142 bestiality, 145 changes in female genital tract after, 155 criminal (see rape; sexual crimes) impotence, 154, 155 necrophilia, 144 painful, 154 sexual maturity rating (SMR), 83 sexual offence, see sexual crimes sexual touch, violence and, 186 sexual transmitted disease (STD), 135,144,154 SH (sexual harassment), 135, 143, 190 shaken baby syndrome (SBS), 134 Sharia law, 7, 34, 35 Siddha, 22 SIDS (sudden infant death syndrome), 132 – 133 single active X-hypothesis, 95 – 96 sin of Gomorrah, 144 skeletal examination, 86 – 9 0, 88 – 90, 88 – 90 age determination from, 86 – 88, 87, 89 degeneration changes as age indicators, 86 – 88 sex determination from, 86 – 88, 87, 88 signatures on human bones, 90 – 91 skeletal remains age and sex determination from, 86 – 88, 86, 88 stature estimation, 88, 88 wound examination, 113 skeletal trauma, 90 skin, changes after birth, 127 – 128 skin colour, 84 sliding callipers, 85, 88, 88 SMC, see State Medical Council (SMC) SMM (special metropolitan magistrate), 37 SMR (sexual maturity rating), 83 snakebites, 211, 214 – 215, 215 social media, 22, 27 sodomy, 143 – 144 solid waste, 211 somatometric methods of identification, 83 – 86

I-233 somatoscopic methods of identification, 84 somnambulism (sleepwalking), 173, 174 somnolence and semisomnolence, 174 somnolentia (sleep drunkenness), 173 sound practice of healthcare service, 189 – 190 Spalding sign, 129, 130 special metropolitan magistrate (SMM), 37 sperm donor, 156 sports, age in, 93 – 94, 95 Sports Authority of India (SAI), 93 – 94, 95 stable isotope analysis, 99 stab wounds, 105, 105, 106, 111, 114 stadiometer, 85 staining, post-mortem, 112, 123, 182, 217 standard of care, 50, 53, 54 starvation, 120 – 124 acute, signs of, 122 autopsy features, 123, 124 biochemistry, 123 chronic, signs of, 122 – 123 clinical manifestations, 122 diagnosis, 123 legal aspects of deaths, 124 pathophysiology of, 121 – 122 reporting related deaths, 124 state councils, 194 state medical board, 61 State Medical Council (SMC), 26 – 27, 62 constitution of, 25 functions of, 26 – 27 grievance redressal, 26 state medicine, 3 static (Fodere’s) test, 17 stature, diurnal variation in, 85 – 86 stature estimation, 85 – 86 from skeletal remains, 88, 88 statutory rape, 142 statutory (substantive) law, 34 – 35 stem cells properties, 17 research, 17 – 18 types, 17 sterility, 153 – 154 stillborn child definition, 126 foetal autopsy, 128 – 132 stomach bowel test, 127 stress burnout, 186 – 187 National Medical Commission (NMC) action against workplace stress, 190 – 191 stress management, 187 subdural haematoma, 76, 116, 134, 134 subordinate courts, 36 subpoena, 41 – 42, 42 sudden infant death syndrome (SIDS), 132 – 133 sudden maternal death, 163, 163 suicidal poisoning, 208, 210, 212, 223 – 234 suicidal wounds, 106, 106, 114, 115 suicide, 114 abetment of, 117, 143, 176 custodial deaths, 181 deliberate starvation, 124 false alarm of, 111 hunger strike, 184 inquest procedure, 38 wills and, 75 summons, 41 – 42, 42 summons cases, 41

Sung T’Zu, 7 Supreme Court of India, 35, 60, 166 – 167 surgical operation notes, 66 surrogacy, 156 ethical and legal issues, 156 – 157 status in selected countries, 158 Surrogacy Act 2021 of India, 157 surrogate mother, 156 survival mindset, 188 survivor examination of, 144 – 145, 150 management approach, 147 use of term, 138 Sushruta Samhita, 5, 5, 48 Susruta, 4, 48 sympathomimetic type toxidrome, 211

T TAD (thermal analyser for deception detection), 99 Tanner stages, 83 taphonomy, 100 tattoo marks, 83 teeth, see dental examination telemedicine, 30 – 31 teleology, 12, 13, 14 testament, 76, 77 testamentary capacity, 75 – 77, 77 – 78, 176 testamentary gifts, 72 testator, 73, 75 – 78, 176 therapeutic privilege, 30 thermal analyser for deception detection (TAD), 99 thermal injuries, 116, 116, see also burns classification, 104 to pregnant women, 161 thiamine deficiency psychosis, 172 tissues, identification from, 95 tooth eruption, 91 – 92, 92, 92, 94 chronology of permanent, 92 chronology of temporary, 92 tooth mineralisation, 91 tort laws, 34 – 35, 50 – 51, 51 torture, 179 – 185 autopsy procedure, 181 – 184, 182, 183 custodial deaths, 181 declarations, codes, and laws, 179 – 181 definition, 179 – 180 Indian laws concerning, 180 – 181 objectives of, 179 purpose of, 179 techniques, 182, 183 tourism, medical, 32 toxicity environmental, 211 recreational, 211 toxicity rating scale, 210 toxicology, see also poisoning definition, 208 forensic, 4, 8 – 9, 208 toxidromes, 208, 211 toxin, 208 trace evidence, 95 trafficking, 139 transfer notes, 66 transgender persons, 144 trauma, to pregnant women, 161 – 162 triage, 14 triple-risk model, 132 – 133 Trotter and Gleser’s formulae, 88 two-finger test, 145, 155

index

I-234 U UDHR (Universal Declaration of Human Rights), 179, 180 ultrasonography, in pregnancy, 160 – 161 umbilical cord, 126 UMID (Unidentified Bodies and Missing Person Identification Portal and DNA Database), 96 – 97 Unani, 22, 200 unborn child, 161 undinism, 144 United Nations Convention against Torture (UNCA), 179 United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), 177 Universal Declaration of Human Rights (UDHR), 179, 180 universal principles of ethics, 11, 14 – 15 autonomy, 14, 15 beneficence, 14, 16 dignity, 14 fidelity, 14 justice and equality, 15 non-maleficence, 14 privacy and confidentiality, 15 veracity, 14 University of Ancient Taxila, 5 unnatural sexual offense, 144 unsoundness of mind certification of, 170 definition, 170 laws, statutes, guidelines for psychiatrists, 175 – 176 legal aspects of, 173 – 175 tests for, 175 urolagnia, 144 uterine sonogram, 161 utilitarian ethics, 12

V vascular endothelial growth factor (VEGF), 133 Vedic era, 4, 7, 34 VEGF (vascular endothelial growth factor), 133 venom, 208 venomous stings and bites, 211, see also snakebites ventilation, autopsy room, 198 veracity, 14 verdict, court, 45 vernix caseosa, 127, 131 viability, 128 vicarious liability, 57 victim, use of term, 138 videography, autopsy, 168, 181 violence against healthcare professionals, 186 – 192 burden of, 186 Clinician’s Corner, 191 – 192 dealing with workplace harassments, 188 – 189, 188 escalating behavior, 188, 188 macroenvironments management, 190, 190

mentors, 191 microenvironments management, 190, 190 role of society, politicians, and stakeholders, 190 – 191 root cause analysis, 186 virginity, 155 virtopsy, 3 virtue ethics, 12 vital reaction, 110 volenti non‑fit injuria, 57 Von Luschan’s chromatic (VLC) scale, 84

W warning labels, 222 warning notice, 26 warrant cases, 41 waste disposal management, 204 – 205 biomedical waste, 204, 205 – 206, 206 chemical waste, 204 collection, 205 colour codes and container types, 206, 207 disposal, 205 liquid waste, 204 mortuary, 198 – 199 radioactive waste, 204 segregation, 205 solid waste, 204 transportation, 205 weapons classification of, 113 evidence processing, 113 – 114 examination of, 113, 113 wellness programmes, 187 Wernicke–Korsakoff encephalopathy, 172 WH (workplace harassment), 188 – 189, 188 WHO, see World Health Organization (WHO) whole bowel irrigation, 212 wills, 75 – 78 case report, 77 criteria for making legally valid, 75 features of legally valid testament, 76 general principles, 75 holograph, 77 invalid, 76 legal definitions, 75 medicolegal aspects of, 75 role of physician in process of making, 77, 77 – 78 special circumstances, 76, 77 testamentary capacity, 75 – 77, 77 – 78, 176 witness common, 42, 43 in court trial procedure, 44 – 46, 46 Daubert vs. Frye test, 42 examination of, 44 expert, 42 – 44, 43 eyewitness, 44 fitness of insane, 175 forensic psychiatrists, 177 hostile (adverse), 44, 44 medical, 44 types, 42 – 44

of wills, 77 – 78 workplace harassment (WH), 188 – 189, 188 workplace issues burnout, 186 – 187 conflict management, 187 – 188 harassment, dealing with, 188 – 189, medicolegal tips (ABCDEF) for Safe Medical Practice, 189 stress management, 187 workplace violence (WV), 186 World Health Organization (WHO), 30, 64, 126, 145, 155, 198, 204, 205, 223 wound age estimation, 108 – 110, 108, 109, 113 histochemical analysis, 109 – 110, 109 molecular methods, 110 by morphology, 108, 108 wound certification, 113, 117, 117 wound classification, 102 – 104, 103 acute, 103 aetiological, 103 legal, 102 – 104, 104 mechanical, 104 medicolegal, 102, 104 – 105 thermal, 103 wound examination, 111 – 113 in dead, 112 in living subjects, 112 in skeletal remains, 113 wound healing, 108 – 109, 109, 109 wound laws, 116 – 117 wounds accidental, 106, 115 age estimation, 108 – 110, 115, 112 antemortem and post-mortem injuries, 110 – 111, 110 – 107, 112 assisted, 106 ballistic, 116 burn, 116, 116 case atlas, 118 – 119 defence, 105, 105, 114, 115, 118 – 119 definition of, 102 determining manner of, 115 fabricated or self-inflicted, 106 – 107, 107 factors influencing, 108 histopathology, 109 – 110, 112 homicidal, 104 – 105, 105, 106, 115 medicolegal autopsy examination, 114 – 116 medicolegal masquerades, 110 – 111 pathoanatomy, 110, 110 pathology, 108 post-mortem incised, 107, 107 preparation for court deposition, 117 – 118 stab, 105, 105, 106, 111, 114 suicidal, 106, 106, 114, 115 therapeutic, 107, 107 vital reaction, 110 weapons and, 113, 113, 113 WV (workplace violence), 186

Z zero tolerance, 188, 190 zoonoses, 203 zygote, 96, 126