Medical Law: Three Jewels In The Crown

The growth of medical law in India has been slow, but very steady and has brought immense relief to thousands

Dr Gopinath Shenoy

Medical law in India is still developing. Compared to the medical law in the UK and the US, it can be said that medical law in India is still in its infancy. But the encouraging part is that this baby, which in the past was sedentary, has now started crawling. The growth of medical law in India has been slow, but very steady and has brought immense relief to thousands.

Many people have contributed to this development. The judges, especially of the Supreme Court (SC), have already laid the foundation of this new science and in newer times to come, the law settled by the Indian courts is bound to be referred and quoted in many parts of the world.

Paschim Banga Khet Mazdoor Samity Vs State of West Bengal

The first jewel in the crown is a very little known judgment of the SC that has brought relief to millions of poor Indian citizens. The SC in Paschim Banga Khet Mazdoor Samity vs State of West Bengal writ petition (Civil) No 796 of 1992, on May 6, 1996 laid down the responsibility of the State in healthcare matters. The question that was considered by the Court was whether the non-availability of facilities for treatment in various Government hospitals resulted in denial of the citizen's fundamental right guaranteed under Article 21 of the Constitution. The Court held it in the affirmative.

The Apex Court held that our Constitution envisaged the establishment of a welfare State at the federal level as well as at the State level. In a welfare State, the primary duty of the Government was to secure the welfare of the people. Providing adequate medical facilities for the people was an essential part of the obligations undertaken by the Government. The Government discharged this obligation by running hospitals and health centers, which provide medical care to the person seeking to avail those facilities. Article 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life was thus of paramount importance.

The Court further held that the Government hospitals run by the State and the medical officers employed therein are duty bound to extend medical assistance for preserving human life. Failure on the part of a Government hospital to provide timely medical treatment to a person in need of such treatment resulted in violation of a citizen's right to life guaranteed under Article 21.

Since the State was vicariously liable for the acts of its officers and since the said denial of the right of injured or sick citizens guaranteed under Article 21 was by officers of the State in hospitals run by the State, it could not avoid its responsibility for such denial of the constitutional right of a citizen.

'X' Versus Hospital 'Z'

The second jewel in the crown is a ruling given by the Apex Court that confirmed the right of an individual to know the HIV status of his/her would-be spouse. In 'X' versus Hospital 'Z' Civil Appeal No 4641 of 1998, decided on September 21, 1998 the SC went a long way to safeguard the life of innocent brides.

The issue was whether a would-be wife of an HIV positive man had the right to know his HIV positive status. For the first time, the SC of India held that the HIV status of an individual can be disclosed to any person who is at risk of being infected by the said disease. The SC observed that Ms 'Y', with whom the marriage of the HIV positive person was settled, was saved in time by the disclosure of the vital information that the person was HIV positive. The disease which was communicable would have been positively communicated to Ms 'Y' immediately on the consummation of marriage. As a human being, Ms 'Y' was entitled to all the human rights available to any other human being. This is apart from, and, in addition to, the fundamental rights available to her under Article 21, which also guaranteed 'right to life' to every citizen of this country. This right would positively include the right to be told that a person, with whom she was proposed to be married, was the victim of a deadly disease, which was sexually communicable. Since 'right to life' included right to lead a healthy life so as to enjoy all faculties of the human body in their prime condition, the healthcare provider, by his disclosure that the person was HIV positive, cannot be said to have, in any way, either violated the rule of confidentiality or the right of privacy.

The Apex Court further held that where there was a clash of two fundamental rights, as in the said case, namely, the HIV positive person's right to privacy as part of right to life and Ms Y's right to lead a healthy life which is her fundamental right under Article 21 of the Constitution, the right which would advance the public morality or public interest, would alone be enforced through the process of Court, for the reason that moral considerations cannot be kept at bay in the court room, but have to be sensitive, in the sense that they must keep their fingers firmly upon the pulse of the accepted morality of the day.

Jacob Mathew versus The State of Punjab

Finally, the third jewel. No judge of any Indian court has thrown more light on medical law than the Chief Justice of India (CJI) Justice RC Lahoti. In Jacob Mathew versus The State of Punjab appeal (Crl) 144-145 of 2004, decided on November 5, 2005, by CJI RC Lahoti, GP Mathur and PK Balasubramanyan JJ, Justice Lahoti very lucidly explains practically every aspect of medical law. The CJI states that the jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offense, the element of mens rea (guilty mind) must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher that is gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law, but cannot form the basis for prosecution.

He further states that the word 'gross' has not been used in section 304A of Indian Penal Code (IPC), yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be 'gross'. The expression 'rash or negligent act' as occurring in section 304A of the IPC has to be read as qualified by the word 'grossly'. Therefore, to prosecute a medical professional for negligence under criminal law, it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.

This judgment as of date is the best citation on medical law in India.

The writer is a Medico Legal Consultant & a Former Member of Consumer Court Mumbai
E-mail: drgnshenoy@yahoo.com