Dr Nikhil DatarMD DNB FCPS FICOG LLB DGO DHA

Gyneaecologist, Medico-legal Expert & Health Rights Activist

•Chairman Medico-legal cell Association of Medical Consultants•National Coordinator Medico-legal cell FOGSI.•Head Medico-legal wing Kay Legal Advocates.

Related to establishment Income tax Act.. Bio medical waste Disposal..

DC rules Related to medical profession

Criminal law Civil / Consumer law Professional ethics Human rights

Specific laws: MTP, PCPNDT,Organ Donation

Future Laws: ART Bill, Euthanasia, MTP Act

Criminal law, police procedures Civil law and procedures

Law : Negligence Law : Consent

Laws in making :MTP Act ( Niketa Mehta)Euthanesia ( Aruna Shanbhag )

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Consultant Gynaecologist at Nanawati hospital Mumbai

Director : Datar wellness group ( which runs two nursing homes in western suburbs of Mumbai)

PG teacher at R N Cooper Municipal Hospital Recipient : Commonwealth Fellowship award :

Worked with WHO on patient safety & reducing medical errors

Recipient: IFHHRO fellowship American Austrian foundation

Fought famous case along with his patient Niketa Mehta challenging the MTP Act Govt of India

Medico-legal consultant: Kay Legal Advocates

Nikhil Datar

Police ( criminal law) Advocate ( civil law) Medical council ( Professional

misconduct) Media ( TRP law) Ransacking the hospital / assaulting the

staff

Dr Nikhil D. Datar

1. Can I give a DC? Is PM

mandatory?

2. Should I inform police?

3. What to do if I get a “friendly

call” from PM room?

4. Will the police arrest me?

Dr Nikhil D. Datar

5 What will happen to the reputation?

6 What will the consumer court decide?

7 What is my indemnity cover?

8 Will relatives ransack the hospital?

Prevention of violence Damage and loss of property

Offence cognizable and non-bailable Imprisonment up to 3 years and fine up

to 50000 Rs Compensation twice the amount of

damage caused

Actus Non Facit REUM,NIsi Mens Sit Rea

Lord Macaulay (1833)

Dr Nikhil D. Datar

Offences against public health (chp XIV) Offences against human body - affecting life (s 299-s 311) - affecting unborn child (s 312-318) - hurt (s319-338) - wrongful restraint (s 339-348) - sexual offences (s375-377) Forgery (s 463) Defamation (s499-500) Fraudulent use of weights (chp XIII)

Dr Nikhil D. Datar

Lawful homicide Unlawful homicide - Culpable homicide (s 299) - MurderCan a doctor be charged for culpable homicide ?Mahadev Prasad Kaushik Vs State of UP (SC)

- Rash & Negligent Act (S 304 A)

Dr Nikhil D. Datar

Dr Nikhil D. Datar

If he If he knowsknows the cause of death the cause of death AndAnd

not otherwisenot otherwise

Dr Nikhil D. Datar

When cause of death is not known

When cause of death is known but………….

Dr Nikhil D. Datar

Death linked with abortion

Death on operation table or

post op 24 hours

Death related to medical

procedure

Dr Nikhil D. Datar

Death related to accidents or violence All deaths related to tubal sterilizations

(PM mandatory) When there is allegation of medical mis-

management

(source:J.K.Mason .Edition III)

Dr Nikhil D. Datar

This is a wrong equation

Dr Nikhil D. Datar

Informing the police “Panchnama” Handing over the papers

Dr Nikhil D. Datar

PM report

Opinion of police surgeon

FIR

Arrest

Dr Nikhil D. Datar

It is a cognizable and bailable offence

Dr Nikhil D. Datar

Surgery without consent Surgery on wrong patient or wrong organ Leaving mop or instrument inside Transfusing wrong blood Performing criminal abortion

(source:Medical Negligence & Compensation Edition II)

Dr Nikhil D. Datar

Before surgery

1. Check the consent2. Confirm the identity of patient and

nature of surgery3. Use the Checklist as a matter of

“ritual”4. Check the expiry of drugs (S 273-276) 5. Insist that the anaesthetist talks and

examines the patient before starting 6. Use the “life saver board”

Dr Nikhil D. Datar

Dr Nikhil D. Datar

“Presumption of innocence”

Burden of proof Degree of evidence Prosecution has to prove the need of penal remedy.

•Police ( criminal law)•Notice of advocate ( civil law)•Notice from medical council ( medical council)•Media ( TRP law)

Complaint Written statement Rejoinder Sur rejoinder

Laws and rules Text books Expert Evidence Guidelines from professional bodies

Nikhil Datar

Nikhil Datar

Consent Negligence

Violation of

“Right in Rem”

Duty imposed by law

Duty independent of consent

Violation of “Right in Personum”

Duty imposed by terms of contract

Consent important

Dr Nikhil Datar

Damages unliquidated

Limitation : from the date when damage is suffered

Damages well defined

Limitation: from the date of breach of contract

Dr Nikhil Datar

Law of torts

Competent to consent Capacity to consent

Dr Nikhil Datar

False Imprisonment Assault & Battery Mayhem

1. Fraud

2. Misrepresentation

3. Undue influence

4. Non voluntary

5. Not an “ informed consent”

Dr Nikhil Datar

Samira Kohli Vs Dr Prabha Manchanda (SC)

Capacity & competency to consent Voluntary On the basis of adequate information

Nature & procedure, its purpose, benefits and effects

Alternatives available Outline of substantial risks ( 10%) No need to explain remote risks ( 1-2%) Consequences of refusing the

prescribed treatment

Boalm’s test shall prevail

Consent for diagnostic procedure can’t be considered valid for therapeutic procedure even if there is physical or financial benefit

The exception to the above rule is “ life saving conditions”

Comprehensive consent can be taken before hand

Breech of duty Doing or not doing some thing

which a reasonable and prudent man would not do or do.

Legal duty must exist

Duty can be independent of contract

Damage should be caused (causa

causans)

Act must be below the “Standard of

reasonable care”

Dr Nikhil Datar

Boalm Vs Frien Health authority

“A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinarily competent man exercising that particular art." (Charlesworth & Percy, ibid, Para 8.02)

Criminal negligence Civil negligence Mistake Error Misfortune/ “Act of God”

Jacob Mathew Vs State of Punjab

Degree of damage Vs degree of negligence

Mens rea ( reckless state of mind though not intention to cause harm) for criminal negligence

Conviction beyond doubt Vs Preponderance of probability

Section 304 A to be read should be read as qualified by the word “ gross”

Lord Diplock in R Vs Lawrence: “Rashness of such a degree that injury was most likely imminent”

Government to form rules and guidelines The IO.. obtain an independent and competent

medical opinion preferably from a doctor in government service qualified in that branch of medical practice after applying Bolam's test.

A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been leveled against him). Unless his arrest is necessary.

Are doctors capable of handling this?

Jacob Mathew vs State of Punjab Martin D souza vs Mohd Isfaq V krishnarao vs Nikhil super speciality

Hospital

MTP Act: Dr Nikhil Datar VS Govt of India

Euthanesia: Pinky Virani Vs Govt of India

• My patient Niketa Haresh Mehta • 24 weeks pregnant.. Found two major

heart anomalies of the fetus.. Opinions of 6 reputed doctors ( cardiologists and pediatricians)… “substandard quality of life and mortality”

• Patient wanted termination of pregnancy. • I refused “Illegal termination” and patient

refused to change the doctor thus I became the principal petitioner and invoked the writ jurisdiction

Section3 (2) (b) :-There is substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. -The continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health(This section allows the termination only till 20 weeks of pregnancy.)

Beyond 20 weeks, termination is allowed :if immediately necessary to save the life of

the pregnant woman.

The word “substantial risk” is very vague ... it is open to different interpretation by courts of law and may lead to endless trouble for doctor concerned. Efforts should have been made to better define the risks.

--- Dr H N Shivpuri (1967)

• Significant improvement in diagnostics as compared to therapeutics.

• The doctors can only give the statistical prognosis but not individualistic prognosis.

• Late termination has medically became very safe.

• Every case will be different and decisions intensely personal based on the values, beliefs of the person.

When does the life begin? How to choose between sanctity &

quality of life? How to determine the “best interest” of

the foetus who can’t speak or can’t be even examined?

How does one see this in the light of poor country & self funded health care?

The Nuffield Council on Bioethics is funded jointly by the Medical Research Council, the Nuffield Foundation and the Wellcome Trust.

Health economist, disability commissioner, anthropologist, Reputed doctors from fields of Obstetrics, neonatology, Lawyers, ethicist, Rights activists.

We regard the moment of birth, which is straightforward to identify, and usually represents a significant threshold in potential viability, as the significant moral and legal point of transition for judgements about preserving life.

--- Working party

When the baby’s life results in a level of irremediable suffering , there is no ethical obligation to act in order to preservethat life.- Working party

It is immoral that the pregnant woman acts wrongly in harming her future child by acting neglectfully or in a manner that is wilfully harmful, as happens occasionally,

It would be wrong to force a woman to behave rightly by submitting to medical or surgical interventions to

benefit a foetus against her will.

It is in the “ best interest “ of the fetus to survive or not, to avoid “ intolerable life” and best quality of life.

It is reasonable to consider parents interests socio economic issues as well.

• FIGO Committee for The Study of Ethical Aspects of Human Reproduction and Women’s Health

“The Committee agreed that a woman carrying a severely malformed fetus had the ethical right to have her pregnancy terminated.

The qualification ‘severe’ is used in this context to indicate

malformations that are either potentially lethal or whose nature is

such that even with medical treatment they are likely, in the view of

the parents and their medical advisors, to result in unacceptable

mental and/or physical disability.”

Hon’ble Bombay High court refused the permission.

I am in appeal at the SC. Union Health minister appointed a

committee.

Facts of the case Court recorded the reasons for going

into the issue though it was not amounting to violation of fundamental rights

No to active euthanesia Yes to passive euthanasia provided:

next keen approachesDoctors panel approvesTwo judge panel of the HC allows

legal validity of “ Do not resuscitate” Leaving will

As it is , humans are imperfect.Law and medicine, both deal with human beings & are imperfect sciences. The set of another human beings ( doctors & judges) administer these imperfect sciences.

Thus it is perfect that law related to medicine will be more imperfect and admixed with complex issues.

Nikhil Datar