Medicolegal issues

             Medicolegal issues


वक्रतुण्ड महाकाय सूर्यकोटि समप्रभ ।
निर्विघ्नं कुरु मे देव सर्वकार्येषु सर्वदा ॥

Yaa Devi Sarva-Bhutessu Buddhi-Ruupenna Samsthitaa |
Namas-Tasyai Namas-Tasyai Namas-Tasyai Namo Namah ||


Contents
Medicolegal issues 8
Allied and Healthcare Professions Bill, 2018 8
Anti-Counterfeiting Trade Agreement 10
Ayushman Bharat Yojana 10
Basic Principles of Medical Negligence: Need for Protection of Doctors 12
BAYH-DOLE ACT 13
BIG FINES TO PHARMA INDUSTRY 13
BIOMEDICAL WASTE MANAGEMENT 14
Biosimilar 15
Bolam law and Professional Negligence 15
Bolam test 15
Books of accounts 15
Budget for health sector-IMA reaction. 19
Can A Doctor Be Arrested by Police? 20
Can you practice medicine ethically in India? 24
Clinical Establishment Act- How will it affect the practicing dentist 25
CLINICAL ESTABLISHMENT ACT, IMA & MINIMAL STANDARDS 26
why the government wants it. 26
why the doctors don’t want it. 27
Clinical Establishment Act . . . The long story 27
Minimal standards of clinical establishment 33
CLINICAL ESTABLISHMENTS ACT RULES 36
Compulsory license 42
Consent 42
Consumer Law and Practice 42
Controlled drugs 45
UNRCPD 53
Digital signature 53
Drug laws 54
EMTALA LAW 70
English tort law 71
Epidemic act. 71
Error of judgement 72
Evergreening 77
Goldwater rule 77
GST AND NURSING HOME AND PATHOLOGY LABS 80
GST act and health care 80
GST AND PHARMA INDUSTRY 81
Guidelines for issuing a Medical Certificate 83
Hathi committee 85
Hippocrates could not have seen this coming. 86
HIPPOCRATIC OATH 89
IMA White Paper on Indian Medical Service 90
RELEVANT PROVISIONS FOR DOCTORS UNDER INDIAN PENAL CODE, 1860 93
Can a Doctor be Arrested? 105
India—a tale of one country, but stories of many states 109
India Needs Punishment Policy for Illegally Sold Medicines 110
Indian legal system and mental health 111
The constitution of India 112
Indian penal code for doctors 117
JUDGEMENT ON PNDT ACT 122
LAWS IN MEDICINE 123
Criminal Liability in Medical Profession 128
LAWS APPLICABLE TO HOSPITALS 128
Laws Governing to Medicolegal Aspects 135
Licenses/Certifications Required for Hospitals 136
MEDICAL COUNCIL OF INDIA 139
MCI peer group review 177
MCI concerned about assault on doctors 178
Medical ethics. 179
Medical negligence 182
Medical Negligence Vs Bad Practice, Which Is Going to Cost You More 182
Medico Legal General Medicine 187
Criminal Liabilities in Medical Profession 187
MENTAL HEALTH ACT 1987 193
Mental health bill interview 292
Modernizing Code of Medical Ethics 297
National digital health blueprint 299
NEW MENTAL HEALTH BILL BANS ELECTRIC SHOCKS, GIVES RIGHT TO TREATMENT 301
The bill decriminalizes suicide for mentally ill patients. 302
NMC act and controversies 303
PCPNDT – Medicolegal Secrets 304
THE NEW ‘QUIT INDIA’ MOVEMENT? 316
Prescription Drug Charges 318
Problems with mental health act 321
RECORD KEEPING: VARIOUS LAWS. 321
Revalidation 323
Shakoor v Situ 324
Should Code of Medical Ethics be modernized 325
SUNSHINE ACT 327
Tally for doctors 327
The Criminal Justice and Public Order Act of 1994 330
THE INDIAN MEDICAL COUNCIL ACT, 1956 337
The Jan Aushadi Pariyojana: A primer for Indian doctors 352
THE PERSONS WITH DISABILITIES (EQUAL OPPORTUNITIES, PROTECTION OF RIGHTS AND FULL PARTICIPATION) ACT, 1995 354
Three vital supreme court decisions 385
Clinical Establishment Act. 386
Are doctors doing some illegal work to be harassed like this 397
A bitter pill? 397
List of laws related to doctors in India 408
Rights of patients- 417
THE CONSUMER PROTECTION ACT, 2019 423
NMC ACT 492
SUROGACY BILL 493
The Food Safety and Standards (Contaminants, toxins and Residues) Regulations, 2011. 495
Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011 504
Food Safety and Standards Regulations, 2011- Laboratory And Sample Analysis 511
Air (Prevention and Control of Pollution) Act, 1981 No. 14 of 1981 512
The Transplantation of Human Organs Act, 1994 513
The Pharmacy Act, 1948 516
Bio-Medical Waste (Management and Handling) Rules, 1998 519
Drugs and Cosmetics Act, 1940 521
Prevention of Food Adulteration Act, 1954 526
Narcotic Drugs and Psychotropic Substances Act 1985 532
Maternity Benefit Act, 1961 540
Insecticides Act, 1968 542
Rehabilitation Council Act of India Act 1992 545
The Pre-Natal Diagnostic Techniques (PNDT) Act & Rules 547
Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Rules, 1996 548
Medical Termination of Pregnancy ACT, 1971 549

Medicolegal issues
Gone are the days when doctors on graduation could be said to get a license to kill! Rightly or wrongly, the doctors are increasingly coming in conflict with the law. Their actions are now summarily challenged in courts of law, be it for a simple error in giving a medicolegal certificate or an error of judgement under consumer protection act or more stringently a clerical mistake under draconian PNDT act.
The policies are changing resulting in acts as comprehensive as Ayushman Bharat or the recent covid pandemic forcing the medical council of India to formulate a detailed telemedicine guideline.
Also pertinent is for doctors to know the laws and judgments and issues relating to law and pharmaceuticals industry.
it is therefore, of utmost importance that the doctors know at least basics of these bills and acts.
MEDICOLEGAL ISSUES: GUIDELINES TO MEDICAL OFFICERS
Introduction

  1. Medicolegal cases (MLC) are an integral part of medical practice that is
    frequently encountered by Medical Officers (MO). The occurrence of MLCs is on the
    increase, both in the Civil as well as in the Armed Forces. Proper handling and
    accurate documentation of these cases is of prime importance to avoid legal
    complications and to ensure that the Next of Kin (NOK) receive the entitled benefits.
  2. All medical officers working in hospitals / field medical units / non-medical
    units encounter medicolegal issues which should be handled in accordance with the
    law of the land and directives issued by service headquarters.
  3. The purpose of this memorandum is to provide general guidelines for Medical
    Officers of the Armed Forces Medical Services (AFMS) while dealing with commonly
    encountered situations which fall within the medicolegal domain.
  4. Since law and order is a state subject, there are differences in the legal
    procedures being followed by different states. Medical Officers should acquaint
    themselves with medicolegal procedures that are in vogue in the state in which they
    are serving.
    2
    MLCs in Medical Practice
  5. MLC. A MLC is defined as “any case of injury or ailment where, the attending
    doctor after history taking and clinical examination, considers that investigations by
    law enforcement agencies (and also superior military authorities) are warranted to
    ascertain circumstances and fix responsibility regarding the said injury or ailment
    according to the law”.
  6. Labelling a case as MLC.
    (a) RMO / Casualty medical officer / MO in charge of MI Room / Duty
    Medical Officer (DMO) / MO In charge ward who is attending to the case, may
    label a case as a MLC.
    (b) The decision to label a case as MLC should be based on sound
    professional judgement, after a detailed history taking and thorough clinical
    examination.
  7. Examples of MLCs. The following are some of the examples of MLCs and
    medical officers should use their professional judgement to decide any other cases
    not enumerated in the list:
    (a) Assault and battery, including domestic violence and child abuse
    (b) Accidents like Road Traffic Accidents (RTA), industrial accidents etc.
    (c) Cases of trauma with suspicion of foul play
    (d) Electrical injuries
    (e) Poisoning, Alcohol Intoxication
    3
    (f) Undiagnosed coma
    (g) Chemical injuries
    (h) Burns and Scalds
    (j) Sexual Offences
    (k) Criminal abortions
    (l) Attempted suicide
    (m) Cases of asphyxia as a result of hanging, strangulation, drowning,
    suffocation etc.
    (n) Custodial deaths
    (o) Death in the operation theatre
    (p) Unnatural deaths
    (q) Death due to Snake Bite or Animal Bite
    (r) Fire Arm injuries
    (s) Drug overdose
    (t) Drug abuse
    (u) Dead brought to the Accident and Emergency Dept / MI Room (Found
    dead) and deaths occurring within 24 hours of hospitalization without
    establishment of a diagnosis
  8. General Guidelines for dealing with Medicolegal cases
    (a) In emergencies, resuscitation and stabilization of the patient will be
    carried out first and medicolegal formalities may be completed subsequently.
    The consent for treatment is implied in all emergencies.
    4
    (b) Emergency medical care will be administered to all cases brought to
    any AFMS Health Care Establishment irrespective of their entitlement. In
    non-entitled cases, after the initial stabilization, the patient may be transferred
    to the nearest Government hospital, and if necessary by service ambulance.
    (c) Cases of trauma will be labeled as MLCs, if there is a suspicion of foul
    play, even if the incident is not of recent origin. All cases of injury to service
    personnel should be reported on IAFY 2006 (Injury Report) with the
    appropriate classification viz., trivial, moderately severe or severe.
    (d) All MI Rooms and hospitals will maintain a MLC register and the MLC
    will be initiated and documented in the register. Personal particulars,
    identification marks, finger prints of the individual will be noted. Particulars of
    the person accompanying the patient will also be noted.
    (e) Medicolegal documents should be prepared in duplicate, with utmost
    care giving all necessary details, preferably written with a ball-point pen and
    avoiding overwriting. If any overwriting or correction is made, it should be
    authenticated with the full signature and stamp of the MO. Abbreviations
    should be avoided.
    (f) The Commanding Officer (CO) / Commandant and Senior Registrar
    and equivalent in other hospitals should be immediately informed as and
    when a MLC is registered or admitted. The particulars of the patient and a
    short summary of the case will be mentioned in the DMO report book.
    5
    (g) The patient will be placed on SIL / DIL, when required.
    (h) NOK will be informed if the address is available.
    (j) The police should be informed. Under Section 39 of Criminal
    Procedure.Code, the attending MO is legally bound to inform the police about
    the arrival of a MLC. Any failure to report the occurrence of a MLC may invite
    prosecution under Sections 176 and / or 202 of I.P.C. Simultaneously, the
    information should be given to ADH, Station Headquarters (HQ), Corps of
    Military Police (CMP) and to the unit concerned (by telephone). The verbal
    communication should invariably be followed by communication in writing
    subsequently.
    (k) In case of discharge / transfer / death of such a case in the hospital,
    the police should be informed.
    (l) Medicolegal documents should be considered as confidential records
    and should be stored under safe custody to avoid tampering. Medical records
    must be thorough, complete and should document each and every significant
    event in the course of care of the patient. All the documents including case
    sheets, X-rays and investigation reports will be preserved meticulously in the
    medical record section indefinitely and handed over to the concerned
    authorities (Police Investigating Officer / Court / Court of Inquiry) as and when
    required.
    6
    (m) Prompt attention, correct triage and safe transfer of a patient from one
    facility to another as required should be carried out in all cases and not
    delayed because of the medicolegal nature of the case.
    (n) Opinion on severity of injuries should be given after the X-ray reports
    are received in cases of injury to bones / joints.
    (o) Samples and specimens collected for medicolegal purposes will be
    properly sealed, labeled and handed over to the investigating officer detailed
    by the police. Commandant/CO of the hospital will ensure that the documents
    are kept in the custody of an appropriate officer till the case is finally decided
    or cleared by the police and judicial authorities.
    (p) Samples and specimens collected for medicolegal purposes will be
    properly sealed, labeled and handed over to the investigating officer detailed
    by the police. Commandant/CO of the hospital will ensure that the documents
    are kept in the custody of an appropriate officer till the case is finally decided
    or cleared by the police and judicial authorities. (q) Battle Casualties (BC) and Battle Accidents (BA) are not to be reported
    as MLCs. The medical cause of death in these cases may however be
    certified by the RMO. RMOs must obtain the certification of BC / BA from the
    unit, duly signed by the CO, before mentioning the same in the medical
    documents. AO 20/2001/ DV deals with details on declaration of BC / BA.
    7
    (r) Where civil police cover is not available, a military inquest will be held
    by the military administrative authority to decide cause and other facts
    pertaining to death. Normally, the service pathologist carries out clinical
    autopsy. Exceptionally, medico-legal autopsies may be carried out by the
    service pathologist (RMSAF para 58 refers). In such cases necessary
    clearance will be obtained from local civil police. The documentary
    prerequisites are:
    (i) Inquest report by the police / military court of inquest
    (ii) Requisition by the police / military court of inquest to the CO of
    the hospital for carrying out medico-legal autopsy in the military
    hospital addressed
    (iii) Express written orders of the CO of hospital to the service
    pathologist to carry out the autopsy.
    (s) If a death has been reported by the hospital authorities as medicolegal
    and is decided otherwise by the police after investigation, a certificate to that
    effect is required to be obtained from the investigating officer in the format
    attached as Enclosure 1, along with a copy of the Panchnama when the body
    is returned to the hospital.
  9. Precautions to be taken in MLCs
    (a) The complete available particulars of the patient should be noted down
    along with two identification marks. Particulars of the person accompanying
    the patient will also be noted down.
    8
    (b) One should not rely on memory while writing reports or during
    recording of evidence in a court of law.
    (c) Complicated cases should be discussed with seniors and colleagues.
    (d) No cause of death will be mentioned in the death certificate. The
    statement that “Exact cause is to be ascertained by post mortem examination”
    is to be endorsed.
    (e) In MLCs, the body will not be handed over to the NOK / relatives. The
    civil police will be informed and the body handed over to them. The police will,
    after the medicolegal formalities, handover the body to the NOK / relatives.
    (f) Death of a service person, in an accident involving a military aircraft will
    not be reported as a MLC to the civil police. The enquiry conducted by the
    competent military authorities will suffice. As per Govt of India, Ministry of
    Home Affairs Letter No. 8/179/71-GP A, dated 25 Nov 72, there is no need
    for an inquest under Section 174 or 176 of Cr PC in deaths due to an
    accident, in which the aircraft belongs to the Navy, Army, Air Force or Para
    military forces and the deceased person is an active member of any service
    at the time of accident. A certificate from the CO of the deceased person or a
    Senior Armed Forces Officer to this effect may be accepted for dispensing
    with the necessity of an inquest.
    (g) A MLC should be reported by the first health care establishment in
    which the individual is received. In cases where a patient has been
    9
    transferred before initiation of a report, the hospital to which he is transferred
    can initiate the report. It is important to ensure that the medical records are
    comprehensive before a patient is transferred. The fact as to whether or not
    medicolegal formalities have been initiated should invariably be mentioned in
    the transfer notes.
  10. Guidelines for Preservation of Medicolegal Evidence
    (a) Medicolegal evidence should be preserved and subsequently sent or
    handed over to the investigating authorities for forensic examination and
    production as evidence in a court of law. All evidences will be identified,
    sealed and labeled properly. They will be kept in safe custody and handed
    over to the investigating officer of the case. Once collected, loss / destruction
    of evidence is a punishable offence. Failure to collect, destruction or loss of
    such an exhibit is punishable under Sec 201 of I.P.C.
    (b) The evidence required to be preserved is related to the nature of a
    case. In injury cases, the following articles should be preserved in sealed
    envelopes:
    (i) Clothing worn by the patient showing evidence of injury such as
    tears, bullet holes, cuts, blood stains etc.
    (ii) In case of multiple tears, cuts or holes etc., each piece of
    evidence will be encircled and numbered with matching description in
    the MLC report and case sheet.
    10
    (iii) Bullets recovered from a body should be marked by etching an
    initial or a mark on the bottom before preservation.
    (iv) All evidence collected should be mentioned in medicolegal
    documents to establish the chain of custody in a court of law
    subsequently.
    (c) In cases of suspected poisoning the following articles will be preserved
    and ensured that they are forwarded for forensic examination:
    (i) Gastric lavage / gastric contents / vomitus and soiled clothing
    (ii) Blood, urine and any other relevant body fluid depending on the
    poison ingested.
    (d) In cases of Burns and Carbon Monoxide poisoning the following
    articles should be preserved in sealed envelopes:
    (i) Articles soiled with inflammable substances like burnt pieces of
    clothing, scalp hair etc.
    (ii) Blood (and not serum) for carbon-monoxide levels.
    (e) In Sexual offences, the following articles should be preserved in sealed
    envelopes:
    (i) Clothing worn by the patient and showing evidence of blood
    stains or seminal stains, stains of mud, tears/cuts etc.
    (ii) Vaginal swab preferably from posterior fornix / anal swab.
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  11. Guidelines for preservation of Medicolegal documents
    (a) Original copies of all medicolegal documents will be produced
    whenever asked for in a court of law.
    (b) All original copies of certificates and reports issued for medicolegal
    purposes are to be preserved till the finalization of case in the court of law.
    (c) Commandant/CO of the hospital will ensure that the documents are kept in
    the custody of an appropriate officer till the case is finally decided or cleared
    by the police and judicial authorities. In the case of units other than hospitals,
    the safe custody will be under unit arrangements.
    (d) Documents pertaining to admitted fatal MLCs are to be processed and
    preserved as laid down in concerned policy letters.
  12. Guidelines for handling of Death in Unit Lines
    (a) On receipt of information of suspected death in unit lines, the duty NCO
    should inform the Duty JCO and proceed to inspect the place of incidence.
    The Duty JCO should further inform the Duty Officer. The Duty Officer should
    intimate the following:
    (i) Authorized Medical Attendant (AMA)
    (ii) CO of the unit
    (iii) Civil Police
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    (iv) CMP
    (b) The AMA will proceed to the place of incident and examine the
    individual suspected to be dead, taking care not to disturb any evidence
    present. The AMA should assess the condition of the individual and attempt
    resuscitation measures if required. If the individual cannot be revived, then the
    AMA should declare the individual dead and prepare a death certificate
    (AFMSF -93 Part I), specimen attached as Enclosure 2 in which he should
    mention the cause as ‘Found Dead Cause Unknown (Exact cause to be
    determined by post mortem examination)’.
    (c) The AMA will also initiate a Case sheet (AFMSF- 7A) in which he gives
    the details of the deceased, details of the person who identified the body, two
    identification marks, examination findings and the diagnosis as ‘Found Dead’.
    The identification marks are corroborated with the identification marks as
    mentioned in Soldier’s Personal Book (IAB-64) and Identity card of the
    deceased.
    (d) The body will be handed over to the civil police. According to Section
    174 of Criminal Procedure Code (1973), in all cases of death due to
    suspected or un-natural causes, police may hold an inquest and send the
    body to the civil hospital, for post mortem examination for establishing the
    cause of death. The civil police will initiate an inquest report (Panchnama)
    and send the body for post mortem examination to a civil Hospital. After post
    mortem examination, the body may be kept in the mortuary of a service
    hospital for preservation and embalming. Post mortem examination can also
    13
    be conducted in a service hospital, subject to necessary police clearance vide
    Enclosure ‘1’.
    (e) The unit will initiate the Initial Report in signal form, specimen of which
    is attached as Enclosure ‘3’. The initial report will be followed by a detailed
    report within 48 hours, specimen of which is attached as Enclosure ‘4’.
    Instructions of respective service headquarters will be followed for Navy and
    Air Force.
    (f) The NOK should be informed about the incident telephonically and in
    writing (Telegraphic message).
    (g) The Station / Formation HQ can order a Staff Court of Inquiry to
    ascertain the circumstances of the death. The Staff Court of Inquiry will take
    into consideration the Inquest report of the civil police and post mortem
    findings as available.
    (h) If civil police is not available in the area, a military inquest will be held
    by the military administrative authorities to decide the cause and other facts
    pertaining to the death.
    (j) In AFMS, Medical Certificate of Cause of Death on AFMSF – 93 Part I
    (shown as Enclosure 2) will be initiated by the DMO / AMA in a case of natural
    death or if there is no foul play suspected. The formal death certificate will be
    issued by the Registrar of Births and Deaths / Cantonment board / Municipal
    authorities as applicable after submitting the medical certificate of cause of
    14
    death. In unnatural deaths, the cause of death will be established by a post
    mortem examination. A formal death certificate is required for all legal
    purposes.
    (k) Attributability / aggravation shall be decided in accordance with GOI,
    MOD letter No 1(2)/2002/D(Pensions) dated 01 Sep 05 as amended by
    DGAFMS letter No 16050/DGAFMS/ MA ( Pensions) dated 25 Jan 07 and
    administrative instructions issued by respective service headquarters.
    (l) After the post mortem examination, the body may be disposed off
    locally under unit arrangement or may be embalmed and hermetically sealed
    in a body bag within a coffin for transportation. Necessary certificate should
    be issued by the embalming authority. A ‘No Objection Certificate’ is needed
    to be obtained from the civil police for transportation of the body.
    (m) The unit should mention all relevant information as applicable in the
    initial report and the detailed report. If any information is not available at that
    time it should be mentioned specifically as it may lead to infructuous
    correspondence and delay in processing of the deceased’s family pension
    and other claims.
    (n) Precautions to be taken in case of death in unit lines. In case of an
    individual found dead in the unit lines, the AMA and the civil police should be
    called to the place where the incident has taken place. The body and its
    surroundings should not be disturbed before their arrival.
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  13. Guidelines to be followed in case of Death in hospital
    (a) During working hours, the MO in charge of the case will inform the CO/
    Registrar of any death. In case of death during off-duty hours, MO in charge
    of case / DMO will inform CO / Registrar of any death occurring in the
    hospital.
    (b) MO in charge Ward / DMO will arrange for removal of the body to the
    mortuary for preservation and safe custody after packing the body at the
    earliest.
    (c) The dead body will be marked with a skin marking pencil. The
    Number, rank and name of the deceased will be written on the left leg (inner
    aspect). At the time of handing over the body to the Mortuary, an
    identification disc will be tied to the right great toe of the deceased for easy
    identification, on which the name of the deceased will be written. This will be
    the responsibility of Nursing Officer / JCO in charge of ward. A copy of
    medical certificate of cause of death will be kept along with the dead body.
    (d) Ward Master / Duty NCO will hand over the dead body to NCO in
    charge of Mortuary. When a female dead body is transferred from the ward to
    the mortuary, the Medical Officer will ensure that a female attendant
    accompanies the body and when such transfer is done at night, a male staff is
    additionally detailed.
    16
    (e) The hospital authorities will contact NOK / CO unit / Station
    Headquarters as applicable, for getting willingness for clinical postmortem
    examination if required. If NOK is not available for giving consent, the CO of
    the unit may give the same.
    (f) Soldier’s Personal Book (IAB-64) and valuables of the deceased will be
    taken over by the MO / DMO. List of personal items should be prepared and
    handed over to the representative of the unit after obtaining receipt in case of
    local units. For out-station units these will be handed over to Registrar of the
    hospital for safe custody.
    (g) All efforts will be made to carry out clinical post mortem in case of
    death of serving soldier for easy settlement of claims. However, in case of
    known malignancy and HIV Positive cases, if a specialist officer gives in
    writing that the cause of death is solely due to known preexisting cause, the
    post mortem examination can be dispensed with. Post mortem examinations
    in cases of AIDS can be carried out after taking all recommended safety
    precautions. (Auth: AHQ Letter No. 5496 / DGAFMS / DG 3A dated 13 Nov
    92).
    (h) The Chief Ward Master will hand over the dead body to the NOK if they
    are unwilling for Post mortem examination. He will check the particulars of the
    deceased as given in the authority letter, with the death certificate,
    identification marks and identification disc. In MLCs, the body will be handed
    over to the civil police. A dead body handing-taking over certificate will
    invariably be obtained.
    17
    (j) The Chief Ward Master will also take ‘Willingness / Unwillingness
    Certificate’ from the NOK of the deceased for conducting clinical post mortem
    examination in service hospitals, in non-medicolegal cases. Hospital will
    obtain permission from the Station Commander for conducting post mortem
    examinations of the deceased if his NOK cannot be contacted and his unit is
    not located in the same station.
    (k) The fatal case documents should be processed at the earliest to avoid
    delay in release of pension and other benefits to the NOK of the deceased.
  14. Special precautions in cases of Death in the hospital
    (a) It should be ensured that proper packing is done before transferring the
    dead body to the mortuary.
    (b) The mortuary staff will note down two identification marks of the
    deceased and confirm the particulars of the deceased as noted on the metal
    identification disc on the right great toe of the deceased by checking with the
    accompanying documents.
    (c) Willingness / Unwillingness certificate for autopsy and body handing
    taking over certificate will be obtained.
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  15. General guidelines for Sudden Death / Found Dead Cases
    (a) Deaths, which require medicolegal investigation, may be divided into
    three main groups: –
    (i) Deaths either known or suspected to have been caused by
    unnatural causes.
    (ii) Sudden death cause unknown.
    (iii) Found dead – Unattended death.
    (b) As per ICD 10, “sudden death cause unknown” could be as follows:
    (i) R96.0 – Instantaneous death
    (ii) R96.1 – Death occurring less than 24 hours from onset of
    symptoms, not otherwise explained
    (iii) R98 – Death in circumstances where the body of the deceased
    was found and no cause could be discovered. Found dead.
    (iv) R99 – Death NOS (Not Otherwise Specified). Unknown cause of
    mortality.
    (c) Deaths due to natural causes fall within the medicolegal domain when
    they occur in custody, clashes, accidents and sometimes even during violent
    arguments. Therefore a Medical Officer should not certify the cause of death
    19
    in such cases without holding a post mortem examination, even if there is
    strong evidence of the underlying cause.
    (d) The deceased will be examined in detail by attending MO and
    resuscitation will be attempted, failing which death will be confirmed and
    AFMSF – 93 Part I will be initiated.
    (e) Two identification marks will be noted.
    (f) Circumstances leading to death will be ascertained from person
    bringing and identifying the body.
    (g) All particulars and address of the person(s) bringing the deceased will
    be noted in the case sheet and history given by them will be endorsed in the
    case sheet as alleged history.
    (h) MO i/c MI Room / DMO will inform the CO / Registrar and Stats Section
    / Duty Clerk immediately.
    (j) MO i/c MI Room / DMO will inform higher authorities and unit of the
    individual and NOK, besides CMP and civil police. Civil Police is to be
    informed in writing with copies to all concerned.
    (k) Body will be handed over to civil police for further disposal. Under no
    circumstances will the body be handed over to next of kin directly. Alternately
    20
    clearance in writing should be obtained from civil police for disposal of the
    body.
    (l) In case the body is being sent for medicolegal autopsy to civil hospital,
    brief summary of the case will be given to civil police.
    (m) A receipt for handing over the body to police will be taken and kept
    along with the case documents.
    (n) The following documents will be initiated:
    (i) Admission Flimsy (AFMSF – 8A)
    (ii) Case Sheet (AFMSF – 7A)
    (iii) Death certificate (AFMSF 93 Part – I)
    (iv) Record of summary in the medicolegal case register
    (v) Dead body handing taking over certificate.
  16. Special precautions for Sudden Death / Found Dead Cases
    (a) The particulars of the people accompanying the body, a brief history of
    the circumstances in which the death took place or they came across the
    deceased, should be recorded.
    (b) The medical cause of death should not be endorsed in AFMSF- 93
    Part-I whenever an unattended death case is received. The AFMSF – 93
    21
    Part-I should mention only ‘Found dead, cause unknown – to be ascertained
    by Post Mortem examination’.
    (c) Nothing will be handed over to the civil police or the NOK without taking
    a receipt (including the written report about the death, samples collected from
    the body of the deceased).
  17. Death of Individual While on Sick Transfer. A patient, who is proceeding
    on sick transfer may or may not be accompanied by a sick attendant. The patient
    accompanied by a sick attendant may be on a list (DIL/SIL). The patient may be
    transferred by various means of transport, like by road (Ambulance), rail or air. The
    patient proceeding on sick transfer may die either due to a complication of the
    disease for which he is being transferred or due to an unrelated cause. The patient
    may also be found dead during transfer either by his sick attendant or by his fellow
    passengers.
  18. Death of Patient not accompanied by Sick Attendant
    (a) Transfer by rail
    (i) In the event of a patient on sick transfer by rail being found
    dead, the fact is usually discovered by either coach attendant / TTE /
    fellow passengers, who in turn inform the Guard. The train guard
    usually contacts the Station Master of the next station having GRP for
    necessary formalities.
    22
    (ii) The inquest and post mortem is arranged by railway police who
    also inform the NOK, nearest military unit / Station headquarters and
    referring hospital, subject to identification of the deceased and through
    other available documents.
    (iii) Receipt of dead body, its transportation to NOK for last rites,
    ordering a C of I and other documentation is done under arrangements
    of nearest Station headquarters. The death certificate and autopsy
    report in such cases is obtained from the civil hospital where the body
    was taken for autopsy and necessary documentation completed
    accordingly. A representative from the unit is usually detailed to
    facilitate the same.
    (b) Transfers by Road. The patient may be traveling by an ambulance
    or by bus/ taxi. In case the patient is traveling by ambulance, the driver or codriver of the ambulance, will inform the nearest civil police, or / and nearest
    Station headquarters, the unit of the deceased, the referring hospital and the
    hospital to which he is being transferred / referred to for necessary action.
    (c) Transfer by Air
    (i) In case of death of patient while proceeding on sick transfer by
    service aircraft that meets with an accident, the death need not be
    reported to the civil police as a MLC and the same is exempted from
    the purview of Cr PC 174.
    23
    (ii) Where the patient is being transferred by civil aircraft, the civil
    police and the station headquarters will be informed and will carry out
    further tasks. The nearest Station headquarters will collect the body of
    the deceased, pack it hermetically and arrange for transportation of the
    patient to the NOK.
  19. Guidelines in case of Death of Patient accompanied by Sick Attendant
    (a) As per AHQ Policy Letter No. 11952 / DGMS – 5A (31305/Pol/DGMS5A) Dated 28 Jan/19 Feb 88, in case of death of patient during sick transfer
    the receiving hospital is to admit the case as “Found dead”. Where there is no
    possibility/ suspicion of foul play, the cause of death will be recorded as the
    disease from which the patient was suffering and a clinical post mortem is to
    be carried out. In case death occurs at a place which is far away from the
    destination, the sick attendant should immediately contact the nearest Station
    headquarters and the civil police (railway police in case of transfer by rail) for
    further action.
    (b) In case of death of patient while proceeding on sick transfer by air the
    sick attendant should contact the nearest Station headquarters who should
    further contact the civil police, arrange for transportation of the body to either
    a mortuary of a nearby hospital or transport the deceased’s body to the NOK
    or arrange for funeral / last rites in the station itself.
    (c) Precautions for sick transfer. It is incumbent upon all MOs / Specialist
    Officers ordering sick transfer to properly assess the condition of the patient
    24
    and fitness to undertake the journey by the selected mode of transfer. The
    sick attendant will be properly briefed and provided necessary wherewithal to
    manage the patient enroute. Patients traveling without a sick attendant should
    carry a card giving the identification, diagnosis, treatment and important
    contact telephone numbers in case of any emergency.
  20. Medico-legal aspects of sexual offences
    (a) Victims of alleged Sexual offences like rape may be brought to the MI
    Room or may come on their own. In the event the victim comes directly, the
    civil police will be informed and necessary action will be taken to register a
    case. The examination may be carried out at a centre authorized for
    medicolegal work with forensic experts. Where the examination is carried out
    by a service MO, it should preferably be done by a lady MO or Gynecologist
    or by MO i/c MI room in the presence of a female attendant. In cases of
    sodomy, the victim may be examined by the MO i/c MI Room.
    (b) Guidelines for attending alleged victim of sexual offence
    (i) The date and time of examination will be mentioned in the case
    sheet.
    (ii) Case sheet will be initiated, noting personal particulars of the
    victim, along with date and the time of reporting.
    25
    (iii) MLC will be initiated after filling the MLC Register available at MI
    Room.
    (iv) The alleged victim will be admitted if the medical condition is
    serious.
    (vi) The civil police will be informed telephonically followed by in
    writing after filling up the MLC Register.
    (vii) The Senior Registrar / CO of the hospital, CO of the unit, CMP
    and Station HQ will be informed.
    (viii) At least two identification marks of the victim will be mentioned
    in the case sheet as well as in MLC register.
    (ix) Report to the police will be given by name of the victim or as an
    unknown case (If name of the victim is not known). Care must be taken
    to preserve the confidentiality of the victim from others not related with
    the case.
    (x) Police will register a case under the relevant section of the IPC.
    (xi) The police may take the victim and the accused for medical
    examination at a hospital which is authorized to carry out medicolegal
    work.
    26
    (xii) The proformae for recording medical examination of alleged
    rape victim and the accused are enclosed as Enclosure ‘5’ & ‘6’
    respectively.
    (xiii) Consent of the victim must be obtained before starting the
    examination. The steps of examination and their purpose should be
    explained to the victim in a language she understands. The
    examination is to be carried out in the presence of a female attendant.
    (xiv) All injuries present on the body will be recorded. Line diagrams
    depicting the front and back of the body may be used for a better
    description of location of the injuries.
    (xv) If the clothes are the same as those worn during the occurrence
    of alleged sexual offence, they should be carefully examined for the
    presence of blood, seminal stains, mud etc.
    (xvi) If there are any marks of suspicious stains, the clothes should
    be preserved with a view to forwarding them to the Chemical Examiner
    of dependent Forensic Science Laboratory (FSL). The format to be
    used for is enclosed as Enclosure ‘7’.
    (xvii) If there are foreign hairs, fibers, debris under the nails etc, they
    must be carefully preserved and sent to experts of FSL for comparison
    with those found on the accused. Specimens should include vaginal
    swab, preferably from the posterior fornix.
    27
    (xviii) In case the victim reports herself directly to the hospital after the
    alleged crime, she should not be sent to the police station for legal
    formalities; instead the police will be called to the hospital for the
    necessary requirements.
    (c) Special precautions in case of sexual offence.
    (i) The date and time of arrival of the victim must be mentioned,
    both in the case sheet and the MLC Register. The duplicate copy of
    case sheet and Medicolegal Report shall be preserved for future
    reference.
    (ii) Care must be taken to preserve various samples of medicolegal
    importance for their submission to respective police authority.
    (iii) Where the accused in a case of sexual offence in police custody
    is brought for medical examination, consent is not required. Samples
    may be collected and handed over to the police for forensic
    examination.
    (iv) All injuries shall be recorded in cases of alleged victims of
    sodomy.
    (v) Care must be taken to preserve the vaginal / anal swab for
    forensic examination.
    28
    (vi) Neither the victim nor accused in cases of sexual offences
    should be permitted to wash or take a bath till the medical examination
    is completed.
  21. Medicolegal aspects of Poisoning
    (a) Poison may be defined as any substance which when absorbed into
    the body or by local action on the tissues injures health or destroys life.
    (b) Medicolegal aspects of Poisons. Sections 284, 299, 300, 304A, 324,
    326 and 328 of IPC deal with offences relating to handling and administration
    of Poisonous substances. As per Indian law, administration of any substance
    with the intention of causing hurt or death is punishable.
    (c) Guidelines in case of Poisoning
    (i) When poisoning is suspected, every attempt must be made to
    save the patient’s life. The patient shall be shifted immediately to the
    hospital / MI room nearby.
    (ii) Case sheet shall be initiated, noting personal particulars of the
    victim, along with date and time of reporting. The particulars of the
    person accompanying the patient will also be noted.
    29
    (iii) The victim will be protected from further exposure of poisoning
    but no clothing shall be thrown away, as they might be useful for
    chemical analysis.
    (iv) MLC will be initiated after filling the MLC Register available at MI
    Room.
    (v) The patient will be admitted if the medical condition is serious.
    (vi) Civil police must be informed.
    (vii) The CO / Registrar of the hospital, CMP, Station HQ and CO of
    the unit will also be informed.
    (viii) The treating doctor / authorized nursing staff will only be
    permitted to administer food and medicines to the patient.
    (ix) A careful history is to be elicited including relationship of food or
    medicine taken and the toxic manifestations. All signs and symptoms
    are to be noted carefully.
    (x) The vomitus, urine, faeces, stomach wash, sample of food or
    medicine taken should be preserved in a sterile bottle. Any suspicious
    bottle or utensil seen near the victim, the clothes and bed clothes used
    last by the victim are all to be preserved for chemical analysis. Suitable
    preservatives may be used for these purposes depending upon the
    30
    nature of the sample. The name and concentration of preservative
    used should invariably be mentioned in the label and / or
    accompanying documents. The proforma for sending samples other
    than viscera is enclosed as Enclosure 7.
    (xi) It is advisable to take the second opinion and advice of a senior
    professional colleague in all matters regarding diagnosis and
    treatment. Use of Poison information services may also be made.
    (xii) If there is any indication of danger to the general public, for
    example, food poisoning from a hotel, the public health authorities must
    be notified at once so that suitable remedial measures are taken.
    (xiii) In case of food poisoning from unit cookhouse, the AMA has to
    inform the incident to SHO/ SEMO/ DADH/ADH and administrative
    authorities.
    (xiv) Where required, a magistrate should be called to take down the
    dying declaration.
    (d) Precautions to be taken in cases of poisoning
    (i) Emergency medical treatment will be administered. Senior
    colleagues will be consulted and Poison Information Services will be
    made use of wherever available.
    31
    (ii) Medical certification and cause of death will be issued with
    mention that ‘Cause of death to be ascertained after chemical
    analysis’.
    (iii) Various samples of medicolegal importance will be preserved
    and handed over to the police for forensic examination.
    (iv) A receipt shall be obtained from the police for all samples that
    are handed over for forensic examination.
  22. Consent
    (a) This is an important responsibility of the doctor. Consent is defined as
    “Two or more persons are said to consent when they agree upon the same
    thing in the same sense” (Sec 13, The Indian Contract Act). For the purpose
    of clinical examination, diagnosis and treatment, any person who is
    conscious, mentally sound and is above 18 years of age can give consent.
    (b) Consent is not legally valid when given under fear, fraud or
    misrepresentation of facts or is given by a person who is under 12 years.
    (c) Types of consent
    (i) Implied consent
    (ii) Express consent, which may be verbal consent or written
    consent
    (iii) Informed consent
    32
    (d) Implied consent. This is most common type of consent in both
    general practice and hospital practice. The fact that a patient comes to a
    doctor for an ailment implies that he is agreeable to medical examination in
    general sense. In clinical practice, implied consent can be used for general
    examination and systemic examination including inspection, palpation,
    percussion and auscultation.
    (e) Expressed consent. In expressed consent, a patient specifically
    grants permission to a physician to undertake diagnosis and treatment of a
    specific problem. Expressed consent may be given either verbally or in
    writing. Expressed consent must conform to the doctrine of informed consent
    to be legally acceptable. Once a patient has forbidden any action, the
    question of implied consent does not arise. Expressed written consent should
    be obtained for the following:
    (i) All invasive and major diagnostic procedures
    (ii) General anesthesia
    (iii) Surgical operations
    (iv) Medicolegal examinations for determining age, potency, virginity
    etc, where the person being examined is not in police custody.
    (f) Doctrine of Informed consent: The doctrine of informed consent aims
    at giving sufficient information to a patient to enable him to make a
    knowledgeable and informed decision about the use of a drug, device or
    procedure in the course of treatment. The duty to warn a patient of any likely
    harm in the course of treatment has also been included in the doctrine.
    33
    (g) In order to conform to the doctrine of informed consent, the following
    conditions should be fulfilled:
    (i) Disclosure of information
    (ii) Free and voluntary decision-making by the patient
    (iii) Patient is legally competent to decide
    (h) The treating physician must ensure that the patient is explained the
    following in a language he / she understands:
    (i) Provisional Diagnosis
    (ii) Nature of procedure / treatment
    (iii) Risks involved
    (iv) Prospect of success
    (v) Likely outcome in case the procedure is not performed
    (vi) Alternative methods of treatment.
    (j) Situations where consent is not required. Consent is not required to be
    obtained in the following situations:
    (i) Medical emergencies: consent to emergency treatment is
    implied.
    (ii) Treatment of notifiable diseases: in the interest of public health.
    (iii) Medical examination under Sec 53, Cr PC.
    (iv) Psychiatric examination / treatment by court order.
    34
    (k) Under Section 53 (1) of Cr P.C., a person can be examined at request
    of the police by use of force. Section 53 (2) lays down that whenever a
    female is to be examined, it shall be done only by or under the supervision of
    a female doctor.
    (l) As far as possible, consent must be obtained from the patient, when he
    / she is competent to give it.
    (m) Consent to treatment or a procedure or an operation is limited to the
    parameters that were expressed before the commencement of medical
    intervention. However in certain circumstances, extension of the scope of
    consent would be legally permissible. This principle of extension applies in
    cases of consent to treat an emergency.
    (n) Consent should be obtained when procedure has finally been decided
    and planned and not while the investigation is still contemplated.
    (o) Consent should be obtained in the presence of a witness before the
    pre-operative medication is administered and the same documented in
    writing.
    (p) Only in situations where the patient is minor, unconscious or mentally
    unsound, consent should come from legal guardian/ NOK, who are present.
    35
    (q) In case of an unconscious patient, consent to emergency treatment is
    implied.
    (r) Legally it is essential to take consent for the following reasons:
    (i) It provides a practitioner legal protection in case of an action for
    negligence. The practitioner can cite proof of consent as evidence of
    disclosure, thereby protecting him from an action based on failure to
    disclose material facts.
    (ii) Secondly, protection has been provided to practitioners who
    have obtained informed consent in accordance with the provisions of
    Sec 88, I.P.C.
    (iii) Thirdly, it may be pertinent to note that exercise of reasonable
    skill and care is not sustainable in law as a defence against assault and
    battery.
  23. Guidelines in case of Medical Mishap
    (a) The patients and their relatives expect a kind and compassionate
    attitude from a doctor. A scientifically sound approach, good behaviour and
    care of a reasonable standard usually protect a Medical Officer from
    professional complaints.
    36
    (b) There are occasions when something untoward happens following a
    diagnostic or therapeutic procedure. In such a situation, the physician must
    take the following steps: –
    (i) Complete the patient’s record and recheck the written notes.
    (ii) Be honest and inform about the mishap. Show genuine concern
    about the unfortunate incident. Answer all the queries of patient /
    relatives. Doctors, who are open-minded and communicative, are
    much less likely to face complaints.
    (iii) The doctor may contact other doctors, Forensic Medicine
    experts and professional protection bodies to seek advice.
  24. Medical Negligence (Malpractice)
    (a) Medical negligence or malpractice is defined as “lack of reasonable
    care and skill or willful negligence on the part of a doctor in the treatment of a
    patient whereby the health or life of a patient is endangered”. The term
    “damage” means mental or functional injury to the patient, while “damages”
    are assessed in terms of money by the court on the basis of loss of
    concurrent and future earnings, treatment costs and reduction in qualities of
    life.
    (b) In order to establish charges for negligence, the following points are
    required to be established to the satisfaction of the court, by the consumer,
    that:
    (i) The doctor (defendant) owed him a duty to conform to a
    particular standard of professional conduct.
    37
    (ii) The doctor breached that duty
    (iii) The patient suffered actual damage
    (iv) The doctor’s conduct was the direct or proximate cause of
    the damage.
    (c) The burden of establishing all above elements is upon the patient /
    consumer. Failure to provide substantial evidence on any one element may
    result in “No compensation”.
    (d) In an emergency situation the medical officer has to attend the patient
    at the place where the patient is, if the medical condition so warrants. Inability
    to do so without a valid reason will constitute medical negligence.
    (e) Criminal Negligence. Here the negligence is so great as to go beyond
    a matter of mere compensation; not only the doctor has made the wrong
    diagnosis and treatment, but he has shown gross ignorance, gross
    carelessness or gross neglect for life and safety of the patient. For this, the
    doctor may be prosecuted in a criminal court for having caused injury or death
    of the patient by a rash and negligent act amounting to culpable homicide
    under Sec 304-A of Cr. P.C., under following conditions:
    (i) Injecting anesthetic in fatal dosage or in wrong tissues
    (ii) Amputation of wrong finger, operation on wrong limb, removal
    of wrong organ etc.
    (iii) Operation on wrong patient
    (iv) Leaving instruments or sponges inside the part of body operated
    upon
    (v) Leaving tourniquet too long resulting in gangrene
    (vi) Transfusing wrong blood
    (vii) Applying too tight plaster or splints, which may cause gangrene
    or paralysis
    (viii) Performing a criminal abortion.
    38
  25. Guidelines for action in case a patient is found missing from the hospital
    (a) Where a patient is reported missing from the Hospital, all efforts will
    first be made by the hospital to locate him / her. Information will be sent to the
    unit, Station HQ, CMP, Civil Police and NOK regarding his / her absence from
    the hospital. When all efforts to locate the patient do not succeed, he / she will
    be discharged in absentia.
    (b) After being discharged in absentia, should the patient report again to
    the hospital, he/ she will be re-admitted for further treatment, if required. The
    period of absence from the hospital will be reported to the unit of the individual
    in case of serving soldiers, for necessary investigation and action.
  26. Domestic violence and Abuse of Women. Domestic violence is a leading
    cause of injury to women. It is a pattern of physical assaults, threats, and coercive
    behaviors used to maintain control over a partner. Behaviors can include ongoing
    verbal, emotional, sexual, physical, psychological, and economic abuse, and
    typically get worse over time. Such behavior may result in death, serious injury,
    isolation and emotional damage for the victims. The medical officer should remain
    vigilant about such incidences.
  27. Child Abuse
    (a) Instances of child abuse are on the rise. Medical Officers need to be
    vigilant in clinical practice to detect these cases.
    39
    (b) “Child Abuse” may be defined as the “physical and psychological
    effects produced by deliberate repetitive physical injury or sexual abuse of a
    child”.
    (c) Role of Physician. Physicians have a duty to recognise and report
    suspected abuse to the police and other statutory investigative agencies.
    Physicians need to work together with statutory agencies in cases of child
    abuse. Role of a physician includes recognition, diagnosis and treatment of
    injuries, ongoing care and monitoring of children following suspected abuse. It
    also includes prevention of abuse by counseling and teaching, training,
    supervision, and education of the community to heighten awareness about the
    problem.
  28. Review of important legislations
    (a) Consumer Protection Act – 1986. In view of the Supreme Court
    affixing its seal of approval on the applicability of the Consumer Protection Act
    (COPRA/ CPA) to the services provided by the medical profession, it has
    become imperative for medical professionals to exercise a greater degree of
    caution while undertaking diagnosis and treatment of patients. A good doctor
    – patient relationship, open channels of communication, patient education and
    transparency can minimize litigations.
    (b) Bio-medical Waste (Management and Handling) Rules 1998 (as
    amended in 2003). It shall be the duty of every occupier of an institution
    generating bio-medical waste which includes a hospital, nursing home, clinic,
    40
    dispensary, veterinary institution, animal house, pathological laboratory, blood
    bank by whatever name called to take all steps to ensure that such waste is
    handled without any adverse effect to human health and the environment.
    These rules apply to all persons who generate, collect, receive, store,
    transport, treat, dispose or handle bio-medical waste in any form. Bio-medical
    waste shall be treated and disposed of in accordance with Schedule I, and in
    compliance with the standards prescribed in Schedule V. DGAFMS is the
    prescribed authority for implementation of this Act in establishments of Armed
    Forces.
    (c) Transplantation of Human Organs Act 1994 (as amended in 2003).
    Under this Act, registration of hospitals is must for the removal, storage and
    transplantation of human organs. No such activity is permitted unless
    registered under the Act. Application on prescribed form with fees is required.
    Certificate is given for specific period and the same has to be renewed when
    due. Further, Registration can be cancelled after giving notice to hospital.
    Appeal against cancellation of registration is to be made within 30 days of
    receipt of notice. Criminal action can be initiated with or without notice.
    (d) The Drugs & Cosmetics Act, 1940 with the Drugs, Cosmetics
    (Amendment) Act 1995 and the Drugs & Cosmetics Rules, 1945 (as
    amended in 2006). An Act to regulate the import, manufacture, distribution
    and sale of drugs and cosmetics. Amendment 2006 is related to importing of
    drugs, (to be tested in India before release for sale in India). Few salient
    features of the above mentioned Act:
    41
    (i) Provision to empower the Drug Inspector to stop and search any
    vehicle, vessel or other conveyance when he has reason to believe
    that those are being used for carrying any drug or cosmetic in respect
    of which an offence under the Act is being committed.
    (ii) Enhancement of the quantum of punishment for offences
    relating to the manufacture or sale of adulterated, spurious drugs.
    (iii) The main objective of the Act is to prevent sub-standards in
    drugs, presumably for maintaining high standards of medical treatment.
    (iv) Substances governed by the Act can nevertheless be applicable
    to narcotic or intoxicating liquor which are subject to Excise by State
    under Entry 51, List II of the Constitution.
    (v) Blood banks are required to regulate their services in
    accordance with the provisions of Ministry of Health and Family
    Welfare, Dept of Health, notification dated April 1999 and need license
    to operate. However, blood transfusion services of Field Medical Units
    are exempted from this provision.
    (e) The Pre-natal Diagnostic Techniques (Regulation and prevention
    of misuse) Act 1994 and amended Preconception and Prenatal
    Diagnostic Techniques (PNDT) Act, 2003. The Act covers pre-conceptual
    techniques and all prenatal diagnostic techniques. All diagnostic centers must
    be registered with the Appropriate Authority. They are required to maintain
    42
    detailed records of all pregnant women undergoing test there. These records
    must include the referring doctor, medical and other details of the woman,
    reason for doing the test, and signatures of the doctors. These records must
    be submitted to the authorities periodically. Doctors will be reported to the
    state medical council which can take the necessary action including
    suspension. In the AFMSF, the powers have been delegated to DGAFMS,
    who has nominated appropriate authority for each state for all AFMS units
    located there.
    (f) MTP Act 1971 and MTP (Amendment) Act 2002. Medical
    Termination of Pregnancy Act, 1971 provides for the termination of certain
    pregnancies by registered medical practitioners and for matters connected
    therewith or incidental thereto. It extends to the whole of India except the
    State of Jammu and Kashmir. In accordance with this Act, a MTP may be
    carried out either in a hospital established or maintained by Government, or at
    a place for the time being approved for the purpose of this Act by
    Government. Consent of the patient / legal guardian in case of minors or
    mentally handicapped persons must be obtained before performing MTP. A
    pregnancy may be terminated by a registered medical practitioner in the
    following conditions: –
    (i) Where the length of the pregnancy does not exceed twelve
    weeks if such medical practitioner is, or
    43
    (ii) Where the length of the pregnancy exceeds twelve weeks but
    does not exceed twenty weeks, if not less than two registered
    medical practitioner are,
    of opinion, formed in good faith, that –
    • 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
    (or)
    • If there is a substantial risk that if the child were born, it would
    suffer from such physical or mental abnormalities to be seriously
    handicapped.
    (g) Right to Information Act 2005. An Act to provide for setting out the
    practical regime of right to Information for citizens to secure access to
    information under the control of public authorities, in order to promote
    transparency and accountability in the working of every public authority, the
    constitution of a Central Information Commission and State Information
    Commissions and for matters connected therewith or incidental thereto. The
    AFMS is not kept out of the purview of the said Act. All members of AFMS are
    required to know the details of the content of the letter No. 17732 / 6 / Info Act
    / AG / DV-1(C), dated 18 Nov 2005 issued from Human Rights Cell, Addl Dte
    Gen, Discipline and Vigilance, AG’s Br, Army HQ, New Delhi and Office of
    DGAFMS letter No 43244/ RTI/ DGAFMS/ DG – 1C dated 16 Dec 2005.
    44
  29. Medical examinations of apprehended persons. During Counter
    Insurgency Operations, MOs may be called upon to medically examine and render a
    fitness certificate before / after interrogation or handing over of an apprehended
    person to civil police / release. MOs must exercise great caution and minutely note
    down all findings and maintain a record of the same. While courts may not rely upon
    the report rendered by service MOs, terming them as Departmental reports, any
    major discrepancy in findings of the service MO and that of a civil MO may invite
    adverse comments by the Court.
  30. Conclusion. The way in which medicolegal issues are handled has a
    profound impact on the public image of the AFMS. Therefore, MLCs must be
    handled tactfully by the MOs. The administrative authorities must also help in
    maintaining goodwill and avoiding legal complications. It is hoped that this collation
    of directives on handling of medicolegal issues will act as a safeguard against
    procedural lapses and maintain the elite image of the AFMS.
    (Yogendra Singh)
    Enclosure 1 (Refers to Para 8 s)
    Appendix `A’ to Army HQ Letter No.
    111952/Pol/DGMS-5A Dt. 13 Sep 90
    POLICE CLEARANCE (VIDE Cr PC SEC -174)
  31. The police authorities do not intend sending the dead body of
    ___ for postmortem and have decided not to hold an inquest. The
    police have no further interest in this case.
  32. There is no objection from the local police to carry on the enquiry/postmortem
    examination in the death case of No_____________________ Rank____________
    Name ________ and also further disposal of the dead body by the
    Military authorities, as may be considered necessary by them.
    Station : Signature _______________
    Date : (To be signed by the SHO police Station)
    Name _________________
    (In block letters)
    46
    Enclosure 2 (Refers to Para 12 b)
    AFMSF 93 Part I (Ver 2002)
    MEDICAL CERTIFICATE OF CAUSE OF DEATH
    Certified that (Name) ………………………………………………………………………………….…..
    Rank ……………………… No …………………………….Unit / Ship ………………………………..
    Died / was Killed / was Killed in Action on …………………………at ………………………………hrs.
    Disease or Condition directly leading to * Death ……………………………………………………………..
    ………………………………………………………………………………………………………………..
    Due to (or as a consequence of ) ……………………………………………………………………………..
    ……………………………………………………………………………………………………………….
    ** Antecedent Cause of Death of (Morbid condition or any, giving rise to the above, stating the underlined
    conditions last) due to (or as a consequence of)
    a) ………………………………………………………………………………………………
    b) ………………………………………………………………………………………………
    Other significant conditions if any contributing to the death but not related to the disease or conditions causing
    it
    Signature of M.O
    Place Rank & Name in full
    Date Designation
  • This does not mean the mode of dying for example Heart failure, asthenia etc. It means the disease, injury or
    complication which causes the death
    ** Parts (a) &(b) are not to be completed if the disease or condition directly leading to the death describes
    completely the train of events.
    Note:
    (A) this form is designed to elicit the information which will facilitate the selection of underlying cause of the
    death when two or more causes are jointly recorded
    (B) See Paragaraph 77 Chapter II of regulations for Medical Service of the Army in India
    47
    Enclosure 3 (Refers to Para 12 e)
    Format for the Initial Report
    In lieu of msg form
    Op Immediate
    From:
    To: Indarmy AG’s Branch MP 5(D)
    Indarmy (DGMS-5(B)) or equivalents in Navy/Air Force
    Indarmy (AGI Dte)
    Fmn HQ
    Fmn HQ
    FMN HQ (Med)
    Record Office concerned
    Initial report (.) refer AO 1/2003/MP (.) Firstly (.) alfa (.) No. (.) Bravo (.)
    Rank__________
    (.) Charlie (.) Name____________(.) Secondly (.) Physical
    cas/Battle cas/battle accident (.) Thirdly (.) died (.) Fourthly (.) date (.) Fifthly (.) loc of
    death (.) sixthly (.) diagnosis (.) seventhly (.) Name of NOK (.) Present and
    permanent address (.) village (.) post (.) Teh (.) Dist (.) Pin code (.) Eighthly (.) NOK
    informed or not telegraphically (.)
    Lt Col XYZ Adm Offr Tele:
    Case File No._ Lt Col___________
    Date ;___ TOR
    48
    Enclosure 4 (Refers to Para 12 e)
    FORMAT FOR DETAILED REPORT
    Tele : Mil Unit
    Pin No
    Case File No: Date
    Adjutant General Branch (MP-5 (D))
    Army Headquarter
    New Delhi
    Adjutant General Branch (CW Dte) Rajya Sainik Board
    Kashmir House _____
    Army Headquarter ______
    New Delhi
    Dte Gen Resettlement DSS& A Board
    MOD ___
    West Block –IV ___
    RK Puram, New Delhi
    DETAILED REPORT OF PHYSICAL CASUALTY
  1. Ref to this unit sig NO________________dt________________.
  2. Detailed report of physical casualty as per appx `E’ to AO 1/2003/MP is as
    under:-
    (a) Personal Details
    (i) Army NO
    (ii) Rank
    (iii) Name
    (iv) Unit
    (v) Regt/Corps
    (vi) Arms/Services
    (vii) Religion/caste
    (b) Casualty Details
    (i) Operations
    (ii) Battle casualty/Physical casualty/battle accident
    (iii) Nature of cas
    49
    Enclosure 4 (Refers to Para 12 e)
    Copy to:-
    AGIF
    AGI Bhavan, Rao Tula Ram Marg
    Post Bag No-14, Vasan Vihar,
    New Delhi
    Fmn HQ
    Fmn HQ (Med)
    Record Office
    50
    Enclosure 5 (Refers to Para 20 b xii)
    PROFORMA FOR EXAMINATION OF ALLEGED RAPE CASE
    (FEMALE)
    Requisition from______________________of Police Station _____
    vide his letter No.____________________Dated___________
    Name (In full) _______________________________
    Age as assessed____________Sex__________________M.L.C. No._ Occupation__________________________Address____________________
    Date of Examination____________ Time of Examination_____________________
    Alleged time of offence _AM/PM___________ Married/Unmarried
    Brought by____________________________________
    Consent for examination – Victim_____________________________________
    Guardian _________________________
    Identification Marks (1)____________________________
    (2) _________________________
    History/Detailed account of occurrences as given by woman, especially about the
    following :
    a) Date, Time & Place of Occurrence__________________________
    b) Exact position of parties_____________________________________
    c) Did she struggle or cry for help? _______
    d) Was she conscious all the time?________ _
    e) Did she urinate or defecate after the act ?_______
    Pain?_
    f) Date and time of lodging the complaint________________

    Explain delay_________________________
    51
    Enclosure 5 (Refers to Para 20 b xii)
    Menstrual History:_____________________________ _ M.C.____________________________–Regular/Irregular
    L.M.P.__________________
    Age at Menarche_______________________________
    Whether bath was taken Yes/No___________________________When_________
    Whether clothes are changed. Yes/No____________________________
    Any other relevant information :
    Physical Examination
    General behavior :
    Gait
    1) Height (cms) _______________Weight _______________Kgs 2) General build__________________________
    3) Condition of teeth (broken etc)_______________________
    4) Abrasions, bite marks etc over the body (Face, Back of Shoulders, Arms and
    Thighs) ________________________________________
    5) Breast, Developed/Not Developed________________________________
    6) Secondary Sexual characters Fully developed/Not developed.
    7) Examination of clothes: Presence of tears on clothes
    Presence of Mud/Blood/Seminal stains.
    8) Matting of public Hairs due to semen: Present/Absent
    (Public Hairs to be cut & preserved for examination)_______

    9) Presence of Blood or Seminal Stains on the genitals : Present/Absent
    (Stains to be preserved on saline swabs for examination)____
    10) Examination of Genitals:
    Development of Genital organs : Developed/Not Developed____________
    Vulva .______________Vagina________________
    Perineum______________________ Forchette____________________
    P/S Examination_______________________________________________
    P/V Examination___________________________
    52
    Enclosure 5 (Refers to Para 20 b xii)
    11) Swabs for examination:
    a) Vaginal swabs i. Vulval _ ii Low Vaginal___________
    iii. High Vaginal_______________________
    b) Urethral Smear for Gonococci_____________________
    12) Venereal diseases if any, ______________
    13) Blood Group examination if there is bleeding injury___________
    14) Nails__________________________
    Signature/Thumb impression of person examined.
    OPINION:
    Date : Signature of the Medical Officer
    Place: Name Degree
    Designation Reg No.
    To,
    The Police Sub Inspector,
    Police Station
    NOTE:
    a) When the age is disputed, as has to be determined as per proforma for age
    estimation.
    b) Specimen to be Preserved for examination:
    1) Public Hairs 2) Blood & Urine 3) Blood Stain
    4)Clothes for exam of stains 5) Vaginal smear/Swab 6) Nails
    7) Head hair (control) 8) Bite mark swabs.
    53
    Enclosure 6 (Refers to Para 20 b xii)
    PROFORMA FOR EXAMINATION OF RAPE ACCUSED
    (MALE)
    Requisition form_____________________of Police Station______________
    vide his letter No._ ______Dated_________________
    Name (in full) ___________________________
    Age by appearance______________Sex____________M.L.C. No.
    Occupation_________________Address_____________________________

    Date of Examination______________ Time of Examination________________
    Alleged time of offence_______AM/PM Married/Unmarried_________
    Brought by____________________________________
    Consent for examination_______________________________________________
    (Note : Explain to the individual that the physical examination findings will be used as
    evidence whether or not in his interest and he is free to refuse being examined if he
    chooses)
    Thumb Impression/Signature
    Identification Marks (1) _________________
    (2) _________________
    History
    Specifically enquire about
    a. Whether bath was taken? If yes, When ?
    b. Whether motion was passed? If yes, When?
    c. Clothing changed? If no, describe any damage/stains.
    54
    Enclosure 6 (Refers to Para 20 b xii)
    Physical Examination
  3. Height___________ cms 2. Weight_______________ Kgs.
  4. General Build and Appearance.
  5. Marks of general violence on the body as bite marks, scratches etc.
  6. General Behaviour (Mental condition & Signs of Drunkenness, if any):
  7. Pubic region and thighs. (look for matting of hair, stains)
  8. injuries on Genitals/Scars.
  9. Has Vasectomy been performed? If yes, look for the Scar.
  10. Is there any evidence of S T D?
  11. Genitals : Public Hair Length __ Matted or Not
    Penis Normal/Abnormal, describe the Abnormality:
    Prepace Circumcised Yes/No Any Injury:
    Smegma Present/Absent Any Evidence of Impotence
  12. Microscopic examination of discharge if present:
  13. Blood Group examination (if necessary)
    OPINION:
    Station : Signature of Medical Officer
    Date : Name: Degree
    Designation Reg No.
    To,
    SI __________________of_________________________Police Station Note : a. Examination for Age Estimation to be carried out, if necessary. b. If impotence is the plea, examination in detail for Impotence to be carried out. 55 Enclosure 7 (Refers to Para 20 b xvi) Form of Report to be used when Forwarding Substances other than Viscera to The Chemical Analyser No: From : To The Chemical Analyser, _____________ Dated:
    Forwarding the articles mentioned below for examination for

________________ in connection with the case of


DESCRIPTION OF ARTICLES
Mode of packing and weight of parcel Copy of label and impression of seal
If standard boxes and bottles are used
a) Box No b) Bottle
No
Mode of dispatch
Date :
Date and receipt in Chemical Analyzer’s
Office
Facts of Medico-legal importance in connection with case:
Station:
Date: Civil Surgeon or Medical Officer in-charge

M L ISSUES

  1. Medicolegal cases (MLC) are an integral part of medical practice that is frequently encountered by Medical Officers (MO). The occurrence of MLCs is on the increase, both in the Civil as well as in the Armed Forces. Proper handling and accurate documentation of these cases is of prime importance to avoid legal complications and to ensure that the Next of Kin (NOK) receive the entitled benefits.
  2. All medical officers working in hospitals / field medical units / non-medical units encounter medicolegal issues which should be handled in accordance with the law of the land and directives issued by service headquarters.
  3. The purpose of this memorandum is to provide general guidelines for Medical Officers of the Armed Forces Medical Services (AFMS) while dealing with commonly encountered situations which fall within the medicolegal domain.
  4. Since law and order is a state subject, there are differences in the legal procedures being followed by different states. Medical Officers should acquaint themselves with medicolegal procedures that are in vogue in the state in which they are serving. 2 MLCs in Medical Practice
  5. MLC. A MLC is defined as “any case of injury or ailment where, the attending doctor after history taking and clinical examination, considers that investigations by law enforcement agencies (and also superior military authorities) are warranted to ascertain circumstances and fix responsibility regarding the said injury or ailment according to the law”.
  6. Labelling a case as MLC. (a) RMO / Casualty medical officer / MO in charge of MI Room / Duty Medical Officer (DMO) / MO In charge ward who is attending to the case, may label a case as a MLC. (b) The decision to label a case as MLC should be based on sound professional judgement, after a detailed history taking and thorough clinical examination.
  7. Examples of MLCs. The following are some of the examples of MLCs and medical officers should use their professional judgement to decide any other cases not enumerated in the list: (a) Assault and battery, including domestic violence and child abuse (b) Accidents like Road Traffic Accidents (RTA), industrial accidents etc. (c) Cases of trauma with suspicion of foul play (d) Electrical injuries (e) Poisoning, Alcohol Intoxication 3 (f) Undiagnosed coma (g) Chemical injuries (h) Burns and Scalds (j) Sexual Offences (k) Criminal abortions (l) Attempted suicide (m) Cases of asphyxia as a result of hanging, strangulation, drowning, suffocation etc. (n) Custodial deaths (o) Death in the operation theatre (p) Unnatural deaths (q) Death due to Snake Bite or Animal Bite (r) Fire Arm injuries (s) Drug overdose (t) Drug abuse (u) Dead brought to the Accident and Emergency Dept / MI Room (Found dead) and deaths occurring within 24 hours of hospitalization without establishment of a diagnosis
  8. General Guidelines for dealing with Medicolegal cases (a) In emergencies, resuscitation and stabilization of the patient will be carried out first and medicolegal formalities may be completed subsequently. The consent for treatment is implied in all emergencies. 4 (b) Emergency medical care will be administered to all cases brought to any AFMS Health Care Establishment irrespective of their entitlement. In non-entitled cases, after the initial stabilization, the patient may be transferred to the nearest Government hospital, and if necessary, by service ambulance. (c) Cases of trauma will be labeled as MLCs, if there is a suspicion of foul play, even if the incident is not of recent origin. All cases of injury to service personnel should be reported on IAFY 2006 (Injury Report) with the appropriate classification viz., trivial, moderately severe or severe. (d) All MI Rooms and hospitals will maintain a MLC register and the MLC will be initiated and documented in the register. Personal particulars, identification marks, finger prints of the individual will be noted. Particulars of the person accompanying the patient will also be noted. (e) Medicolegal documents should be prepared in duplicate, with utmost care giving all necessary details, preferably written with a ball-point pen and avoiding overwriting. If any overwriting or correction is made, it should be authenticated with the full signature and stamp of the MO. Abbreviations should be avoided. (f) The Commanding Officer (CO) / Commandant and Senior Registrar and equivalent in other hospitals should be immediately informed as and when a MLC is registered or admitted. The particulars of the patient and a short summary of the case will be mentioned in the DMO report book. 5 (g) The patient will be placed on SIL / DIL, when required. (h) NOK will be informed if the address is available. (j) The police should be informed. Under Section 39 of Criminal Procedure.Code, the attending MO is legally bound to inform the police about the arrival of a MLC. Any failure to report the occurrence of a MLC may invite prosecution under Sections 176 and / or 202 of I.P.C. Simultaneously, the information should be given to ADH, Station Headquarters (HQ), Corps of Military Police (CMP) and to the unit concerned (by telephone). The verbal communication should invariably be followed by communication in writing subsequently. (k) In case of discharge / transfer / death of such a case in the hospital, the police should be informed. (l) Medicolegal documents should be considered as confidential records and should be stored under safe custody to avoid tampering. Medical records must be thorough, complete and should document each and every significant event in the course of care of the patient. All the documents including case sheets, X-rays and investigation reports will be preserved meticulously in the medical record section indefinitely and handed over to the concerned authorities (Police Investigating Officer / Court / Court of Inquiry) as and when required. 6 (m) Prompt attention, correct triage and safe transfer of a patient from one facility to another as required should be carried out in all cases and not delayed because of the medicolegal nature of the case. (n) Opinion on severity of injuries should be given after the X-ray reports are received in cases of injury to bones / joints. (o) Samples and specimens collected for medicolegal purposes will be properly sealed, labeled and handed over to the investigating officer detailed by the police. Commandant/CO of the hospital will ensure that the documents are kept in the custody of an appropriate officer till the case is finally decided or cleared by the police and judicial authorities. (p) Dying Declaration. In cases where the patient wishes to make a dying declaration, the magistrate will be intimated. If the Magistrate is unable to come and record a statement or where the MO feels that he might not be able to reach the patient in time, the MO may record the dying declaration himself in presence of two independent witnesses whose signatures are also affixed in the document. The MO will certify the soundness of mind of the person making the dying declaration. (q) Battle Casualties (BC) and Battle Accidents (BA) are not to be reported as MLCs. The medical cause of death in these cases may however be certified by the RMO. RMOs must obtain the certification of BC / BA from the unit, duly signed by the CO, before mentioning the same in the medical documents. AO 20/2001/ DV deals with details on declaration of BC / BA. 7 (r) Where civil police cover is not available, a military inquest will be held by the military administrative authority to decide cause and other facts pertaining to death. Normally, the service pathologist carries out clinical autopsy. Exceptionally, medico-legal autopsies may be carried out by the service pathologist (RMSAF para 58 refers). In such cases necessary clearance will be obtained from local civil police. The documentary prerequisites are: (i) Inquest report by the police / military court of inquest (ii) Requisition by the police / military court of inquest to the CO of the hospital for carrying out medico-legal autopsy in the military hospital addressed (iii) Express written orders of the CO of hospital to the service pathologist to carry out the autopsy. (s) If a death has been reported by the hospital authorities as medicolegal and is decided otherwise by the police after investigation, a certificate to that effect is required to be obtained from the investigating officer in the format attached as Enclosure 1, along with a copy of the Panchnama when the body is returned to the hospital.

A Doctor’s Duty of Care
A doctor’s legal obligations are the starting point for proving any medical malpractice case.

How long ago did the incident occur?

The first things that must be established in a medical malpractice case are that the doctor owed a legal duty to the patient, and what the appropriate level of care was under the circumstances that led to the doctor’s alleged medical negligence. In this article, we’ll take a look at different legal duties in the doctor-patient relationship, and we’ll discuss the medical standard of care in the context of a medical malpractice case.

Proving the Existence of a Doctor-Patient Relationship
In order to prove that a doctor owed a legal duty of care to a patient, the patient must first be able to demonstrate that a doctor-patient relationship existed at the time the alleged medical malpractice occurred.

The relationship between a doctor and a patient is one that is voluntary and usually entered into by agreement. Some things that can be used to support a finding that a doctor-patient relationship existed at the time of the alleged malpractice are evidence (i.e. documents and testimony) showing that:

the patient chose to be treated by this particular doctor
the patient submitted to examinations for the purpose of treatment of a certain health problem or condition, and
treatment by the doctor was ongoing.
It is a good idea for a patient to obtain a copy of medical records showing the complete course of treatment. This will go a long way toward proving the existence of the doctor-patient relationship.

A patient may not be able to support a claim that the doctor owed a duty to the patient if the doctor is able to show that the doctor-patient relationship was terminated prior to the date on which the alleged medical malpractice is said to have occurred.

The ‘Medical Standard of Care’ Generally
In treating a patient, a doctor or other care provider must use the degree of care and skill of the average health care provider who practices the provider’s specialty, taking into account the medical knowledge that is available to the physician.

Another way to describe the standard of care is to say that it is based on the customary practices of the average physician, i.e., what the average physician would customarily or typically do in similar circumstances.

A doctor whose conduct falls below this standard of care can be said to have committed medical negligence (although additional elements must also be established before a malpractice claim can be made).

The First Element of a Medical Malpractice Claim
The medical standard of care is also said to act as the first element of a medical malpractice claim. Once the appropriate standard of care is established, the defendant’s failure to provide care that meets that standard — and the resulting harm or injury to the plaintiff –are the next elements that must be established in a successful medical malpractice claim.

A Doctor’s Duty to Warn and Advise
Doctors have the duty to communicate adequate information to patients, that is, to disclose a diagnosis or provide warnings to the patient in a timely manner. A doctor has a duty to inform a patient of the dangers associated with drugs prescribed to the patient, and of the reasonable risks of any procedure or course of treatment. (To learn more, see What Is Informed Consent?)

Further, a doctor has a duty to disclose information regarding possible consequences of treatment that might have an impact on third parties. For example, if a medication is prescribed that causes drowsiness, a doctor has a duty to disclose that fact because it is foreseeable that others could be injured if the patient were to operate heavy machinery or a vehicle under the influence of the medication.

A Doctor’s Duty to Supervise
A doctor is typically permitted to delegate tasks to certain trained healthcare personnel, provided that other doctors would find it reasonable to do so under the circumstances (this traces back to the doctor’s general standard of care, discussed above). The doctor still has a legal obligation to adequately supervise any medical treatment that is delegated.

EXISTING MEDICAL ETHICS
CODES AND LAWS
The Medical Council of India has established a Code of Ethics called the Indian Medical Council
(Professional Conduct, Etiquette and Ethics) Regulations, 2002 for all medical practitioners, which
they are bound to follow.
The Gazette of India, New Delhi, Saturday, April 6, 2002.
Medical Council in India
Notification
New Delhi, Dated the 11th March, 2002
No. MCI-211(2)(2001) – Regn. In exercise of the powers conferred under section 20A read
with section 3(m) of the Indian medical Council Act,1956 (102 of 1956), The Medical Council
of India, with previous approval of the Central Government, hereby makes the following
regulations relating of the Professional Conduct, Etiquette and Ethics for registered medical
practitioners, namely:
Short Title and Commencement
(1) These Regulations may be called the Indian Medical Council (Professional Conduct, Etiquette
and Ethics) Regulations, 2002.
(2) They shall come into force on the date of their publication in the Official Gazette.

  1. Code of Medical Ethics
    A. Declaration
    Each applicant, at the time of making an application for registration under the provisions of the
    Act, shall be provided a copy of the declaration as provided in Appendix 1. The applicant shall
    also certify that he/she had read and agreed to abide the same.
    B. Duties and Responsibilities of the Physician in general
    1.1 Character of Physician – (Doctors with qualification of MBBS or MBBS with post-graduate
    degree/diploma or with equivalent qualification in any medical discipline).
    1.1.1 A physician shall uphold the dignity and honour of his profession.
    1.1.2 The prime object of the medical profession is to render service to humanity; reward or
    financial gain is a subordinate consideration. Who-so-ever chooses his profession, assumes
    the obligation to conduct himself in accordance with its ideals. A physician should be an
    upright man, instructed in the art of healings. He shall keep himself pure in character and
    be diligent in caring for the sick; he should be modest, sober, patient, prompt in discharging
    his duty without anxiety; conducting himself with propriety in his profession and in all the
    actions of his life.
    1.1.3 No person other than a doctor having qualification recognized by Medical Council of
    India and registered with Medical Council of India/State Medical Council(s) is allowed to
    practice Modern system of Medicine or Surgery. A person obtaining qualification in any
    78
    other system of Medicine is not allowed to practice Modern system of Medicine in any
    form.
    1.2 Maintaining good medical practice
    1.2.1 The principal objective of the medical profession is to render service to humanity with full
    respect for the dignity of profession and man. Physicians should merit the confidence of
    patients entrusted to their care, rendering to each a full measure of service and devotion.
    Physicians should try continuously to improve medical knowledge and skills and should
    make available to their patients and colleagues the benefits of their professional attainments.
    The physician should practice methods of healing founded on scientific basis and should
    not associate professionally with anyone who violates this principle. The honoured ideals
    of the medical profession imply that the responsibilities of the physician extend not only to
    individuals but also to society.
    1.2.2 Membership in Society: For the advancement of his profession, a physician should affiliate
    with associations and societies of allopathic medical professions and involve actively in
    the functioning of such bodies.
    1.2.3 A physician should participate in professional meeting as part of Continuing Medical
    Education programmes, for at least 30 hours every five years, organized by reputed
    professional academic bodies or any other authorized organizations. The compliance of
    this requirement shall be informed regularly to Medical Council of India or the State
    Medical Councils as the case may be.
    1.3 Maintenance of medical records
    1.3.1 Every physician shall maintain medical records pertaining to his/her indoor patients for a
    period of 3 years from the date of commencement of the treatment in a standard proforma
    laid down by the Medical Council of India and attached as Appendix 3.
    1.3.2 If any request is made for medical records either by the patients/authorized attendant or
    legal authorities involved, the same may be duly acknowledged and documents shall be
    issued within the period of 72 hours.
    1.3.3 A registered medical practitioner shall maintain a Register of Medical Certificates giving
    full details of certificates issued. When issuing a medical certificate he/she shall always
    enter the identification marks of the patient and keep a copy of the certificate. He/She
    shall not omit to record the signature and/or thumb mark, address and at least one
    identification mark of the patient on the medical certificates or report. The medical certificate
    shall be prepared as in Appendix 2.
    1.3.4 Efforts shall be made to computerize medical records for quick retrieval.
    1.4 Display of registration number
    1.4.1 Every physician shall display the registration number accorded to him by the State Medical
    Council/Medical Council of India in his clinic and in all his prescriptions, certificates,
    money receipts given to his patients.
    1.4.2 Physicians shall display as suffix to their names only recognized medical degrees or such
    certificates/diplomas and memberships/ honours which confer professional knowledge
    or recognizes any exemplary qualification/achievements.
    79
    1.5 Use of Generic names of drugs
    Every physician should, as far as possible, prescribe drugs with generic names and he/she shall
    ensure that there is a rational prescription and use of drugs.
    1.6 Highest Quality Assurance in patient care
    Every physician should aid in safeguarding the profession against admission to it of those who are
    deficient in moral character or education. Physician shall not employ in connection with his
    professional practice any attendant who is neither registered nor enlisted under the Medical Acts
    in force and shall not permit such persons to attend, treat or perform operations upon patients
    wherever professional discretion or skill is required.
    1.7. Exposure of Unethical Conduct
    A physician should expose, without fear or favour, incompetent or corrupt, dishonest or unethical
    conduct on the part of members of the profession.
    1.8 Payment of Professional Services
    The physician, engaged in the practice of medicine shall give priority to the interests of patients.
    The personal financial interests of a physician should not conflict with the medical interests of
    patients. A physician should announce his fees before rendering service and not after the operation
    or treatment is under way. Remuneration received for such services should be in the form and
    amount specifically announced to the patient at the time the service is rendered. It is unethical to
    enter into a contract of “no cure no payment”. Physician rendering service on behalf of the state
    shall refrain from anticipating or accepting any consideration.
    1.9 Evasion of Legal Restrictions
    The physician shall observe the laws of the country in regulating the practice of medicine and shall
    also not assist others to evade such laws. He should be cooperative in observance and enforcement
    of sanitary laws and regulations in the interest of public health. A physician should observe the
    provisions of the State Acts like Drugs and Cosmetics Act, 1940; Pharmacy Act,1948; Narcotic
    Drugs and Psychotropic Substances Act, 1985; Medical Termination of Pregnancy Act, 1971;
    Transplantation of Human Organs Act,1994; Mental Health Act,1987; Environmental Protection
    Act, 1986; Pre-Natal Sex Determination Test Act,1994; Drugs and Magic Remedies (Objectionable
    Advertisement) Act,1954; Persons with Disabilities (Equal Opportunities and Full Participation)
    Act,1995 and Bio-Medical Waste (Management and Handling ) Rule, 1998 and such other Acts,
    Rules, Regulations made by the Central/State Governments or local Administrative Bodies or any
    other relevant Act relating to the protection and promotion of public health.
  2. Duties of Physicians to Their Patients
    2.1 Obligations to the Sick
    2.1.1 Though a physician is not bound to treat each and every person asking his services, he
    should not only be ever ready to respond to the calls of the sick and the injured, but
    should be mindful of the high character of his mission and the responsibility he discharges
    in the course of his professional duties. In his treatment, he should never forget that the
    health and the lives of those entrusted to his care depend on his skill and attention. A
    physician should endeavour to add to the comfort of the sick by making his visits at the
    80
    hour indicated to the patients. A physician advising a patient to seek service of
    another physician is acceptable, however, in case of emergency a physician must
    treat the patient. No physician shall arbitrarily refuse treatment to a patient. However
    for good reason, when a patient is suffering from an ailment, which is not within the
    range of experience of the treating physician, the physician may refuse treatment and
    refer the patient to another physician.
    2.1.2 Medical practitioner having any incapacity detrimental to the patient or which can affect
    his performance vis-a-vis the patient is not permitted to practice his profession.
    2.2 Patience, Delicacy and Secrecy
    Patience and delicacy should characterize the physician. Confidences concerning individual or
    domestic life-entrusted by patients to a physician and defects in the disposition or character of
    patients observed during medical attendance should never be revealed unless their revelation is
    required by the laws of the State. Sometimes, however, a physician must determine whether his
    duty to society requires him to employ knowledge, obtained through confidence as a physician,
    to protect a healthy person against a communicable disease to which he is about to be exposed.
    In such instance, the physician should act, as he would wish another to act toward one of his own
    family in like circumstances patient, nor should he withdraw from the case without giving adequate
    notice to the patient and his family. Provisionally or fully registered medical practitioner shall not
    willfully commit an act of negligence that may deprive his patient or his patients from necessary
    medical care.
    2.3 Engagement for an Obstetric case
    When a physician who has been engaged to attend an obstetric case is absent and another is sent
    for and delivery accomplished, the acting physician is entitled to his professional fees, but should
    secure the patient’s consent to resign on the arrival of the physician engaged.
  3. Duties of Physician in Consultation
    3.1 Unnecessary consultations should be avoided
    3.1.1 However, in case of serious illness and in doubtful or difficult conditions, the physician
    should request consultation, but under any circumstances such consultation should be
    justifiable and in the interest of the patient only and not for any other consideration.
    3.1.2 Consulting pathologists/radiologists or asking for any other diagnostic Lab investigation
    should be done judiciously and not in a routine manner.
    3.2 Consultation for Patient’s Benefit
    In every consultation, the benefit to the patient is the foremost importance. All physicians engaged
    in the case should be frank with the patient and his attendants.
    3.3 Punctuality in Consultation
    Utmost punctuality should be observed by a physician in making themselves available for
    consultations.
    81
    3.4 Statement to Patient after Consultation
    3.4.1 All statements to the patient or his representatives should take place in the presence of the
    consulting physicians, except as otherwise agreed. The disclosure of opinion to the patient
    or his relatives or friends shall rest with the medical attendant.
    3.4.2 Differences of opinion should not be divulged unnecessarily but when there is irreconciliable
    difference of opinion the circumstances should be frankly and impartially explained to the
    patient or his relatives or friends. It would be opened to them to seek further advice as
    they so desire.
    3.5. Treatment after Consultation
    No decision should restrain the attending physician from making such subsequent variations in the
    treatment if any, unexpected change occurs, but at the next consultation, reasons for the variations
    should be discussed/explained. The same privilege, with its obligations, belongs to the consultant
    when sent for in an emergency during the absence of attending physician. The attending physician
    may prescribe medicine at any time for the patient, whereas the consultant may prescribe only in
    case of emergency or as an expert when called.
    3.6 Patients referred to specialist
    When a patient is referred to a specialist by the attending physician, a case summary of the patient
    should be given to the specialist, who should communicate his opinion in writing to the attending
    physician.
    3.7 Fees and other charges
    3.7.1 A physician shall clearly display his fees and other charges on the board of his chamber
    and /or the hospital he is visiting. Prescription should also make clear if the physician
    himself has dispensed any medicine.
    3.7.2 A physician shall write his name and designation in full along with registration particulars in
    his prescription letter head.
    Note: In government hospital where the patient load is heavy, the name of the prescribing
    doctor must be written below his/her signature.
  4. Responsibilities of Physicians to Each Other
    4.1 Dependence of physicians on each other
    A physician should consider it as a pleasure and privilege to render gratuitous service to all physicians
    and their immediate family dependents
    4.2 Conduct in consultation
    In consultations, no insincerity, rivalry or envy should be indulged in. All due respect should be
    observed towards the physician in charge of the case and no statement or remark be made, which
    would impair the confidence reposed in him. For this purpose no discussion should be carried on
    in the presence of the patient or his representatives.
    4.3 Consultant not to take charge of the case
    When a physician has been called for consultation, the consultant should normally not take charge
    of the case, especially on the solicitation of the patient or friends. The consultant shall not criticize
    the referring physician. He/ she shall discuss the diagnosis, treatment plan with the referring physician.
    82
    4.4 Appointment of substitutes
    Whenever a physician requests another physician to attend his patients during his temporary
    absence from his practice, professional courtesy requires the acceptance of such appointment
    only when he has the capacity to discharge the additional responsibility long with his/her duties.
    The physician acting under such an appointment should give the utmost consideration to the interests
    and reputation of the absent physician and all such patients should be restored to the care of the
    latter upon his /her return.
    4.5 Visiting another physician’s case
    When it becomes the duty of a physician occupying official position to see and report upon an
    illness or injury, he should communicate to the physician in attendance so as to give him an option
    of being present. The medical officer/ physician occupying an official position should avoid remarks
    upon the diagnosis or the treatment that has been adopted.
  5. Duties of Physician to the Public and to the Paramedical Profession
    5.1 Physicians as citizens
    Physicians, good citizens, possessed of special training should disseminate advice on public health
    issues. They should play their part in enforcing the laws of the community and in sustaining the
    institutions that advance the interest of humanity. They should particularly co-operate with the
    authorities in the administration of sanitary/public health laws and regulations.
    5.2 Public and Community Health
    Physicians, especially those engaged in public health work, should enlighten the public concerning
    quarantine regulations and measures for the prevention of epidemic and communicable diseases.
    At all times the physician should notify the constituted public health authorities of every case of
    communicable disease under the care, in accordance with the laws, rules and regulations of the
    health authorities. When an epidemic occurs a physician should not abandon his duty for fear of
    contracting the disease himself.
    5.3 Pharmacists / Nurses
    Physicians should recognize and promote the practice of different paramedical services such as,
    pharmacy and nursing as professions and should seek their cooperation wherever required.
  6. Unethical Acts
    A physician shall not aid or abet or commit any of the following acts, which shall be construed as
    unethical.
    6.1 Advertising
    6.1.1 Soliciting of patients directly or indirectly, by a physician, by a group of physicians or by
    institutions or organizations is unethical. A physician shall not make use of him/her (or his/
    her name) as subject of any form or manner of advertising or publicity through any mode
    either alone or in conjunction with others which is of such a character as to invite attention
    83
    to him or to his professional position, skill, qualification, achievements, attainments,
    specialities, appointments, associations, affiliations or honours and/or of such character as
    would ordinarily result in his self aggrandizement. A physician shall not give to any person,
    whether for compensation or otherwise, any approval, recommendation, endorsement,
    certificate, report or statement with respect of any drug, medicine, nostrum remedy, surgical,
    or therapeutic article, apparatus or appliance or any commercial product or article with
    respect of any property, quality or use thereof or any test, demonstration or trial thereof, for
    use in connection with his name, signature, or photograph in any form or manner of
    advertising through any mode nor shall be boast of cases, operations, cures or remedies or
    permit the publication of report thereof through any mode. A medical practitioner is however
    permitted to make a formal announcement in press regarding the following:
    (1) On starting practice
    (2) On change of type of practice
    (3) On changing address
    (4) On temporary absence from duty
    (5) On resumption of another practice
    (6) On succeeding to another practice
    (7) Public declaration of charges
    6.1.2 Printing of self photograph, or any such material of publicity in the letter head or on sign
    board of the consulting room or nay such clinical establishment shall be regarded as acts of
    self advertisement and unethical conduct on the part of the physician. However, printing of
    sketches, diagrams, picture of human system shall not be treated as unethical
    6.2 Patent and Copyrights
    A physician may patent surgical instruments, appliances and medicine or Copyright applications,
    methods and procedures. However, it shall be unethical if the benefits of such patents or copy
    rights are not made available I situations where the interest of large population is involved.
    6.3 Running an open shop (Dispensing of Drugs and Appliances by Physicians)
    A Physician should not run an open shop for sale of medicine for dispensing prescriptions prescribed
    by doctors other than himself or for sale of medical or surgical appliances. It is not unethical for a
    physician to prescribe or supply drugs, remedies or appliances as long as there is no exploitation of
    the patient. Drugs prescribed by a physician or brought from the market for a patient should explicitly
    state the proprietory formulae as well as generic name of the drug.
    6.4 Rebates and Commission
    6.4.1 A physician shall not give, solicit, or receive nor shall he offer to give, solicit or receive, any
    gift, gratuity, commission or bonus in consideration of or return for the referring, recommending
    or procuring of any patient for medical, surgical or other treatment. A physician shall not
    directly or indirectly, participate in or be a party to act of division, transference, assignment,
    subordination, rebating, splitting or refunding of any fee for medical, surgical or other
    treatment.
    84
    6.4.2 Provisions of para 6.3.1 shall apply with equal force to the referring, recommending or
    procuring by a physician or any person, specimen or material for diagnostic purposes or
    other study/work. Nothing in this section, however, shall prohibit payment of salaries by a
    qualified physician to other duly qualified person rendering medical care under his supervision.
    6.5. Secret Remedies
    The prescribing or dispensing by a physician of secret remedial agents of which he does not
    know the composition, or the manufacture or promotion of their use is unethical and as such
    prohibited. All the drugs prescribed by a physician should always carry a proprietory formula
    and clear name.
    6.6 Human Rights:
    The physician shall not aid or abet torture nor shall he be a party to either infliction of mental or
    physical trauma or concealment of torture inflicted by some other person or agency in clear
    violation of human rights.
    6.7 Euthanasia:
    Practicing euthanasia shall constitute unethical conduct. However on specific occasion, the question
    of withdrawing supporting devices to sustain cardiopulmonary function even after brain death,
    shall be decided only by a team of doctors and not merely by the treating physician alone. A
    team of doctors shall declare withdrawal of support system. Such team shall consist of the
    doctor in charge of the patient, Chief Medical Officer/Medical Officer in charge of the hospital
    and doctor nominated by the in-charge of the hospital from the hospital staff or in accordance
    with the provisions of the Transplantation of Human Organs Act, 1994.
  7. Misconduct
    The following acts of commission or omission on the part of a physician shall constitute professional
    misconduct rendering him/her liable for disciplinary action –
    7.1 Violation of the Regulations
    If he / she commits any violation of these Regulations.
    7.2 If he / she does not maintain the medical records of his/her indoor patients for a period of
    three years as per regulation 1.3 and refuses to provide the same within 72 hours when
    the patient or his/her authorized representative makes a request for it as per the
    regulation 1.3.2.
    7.3 If he/she does not display the registration number accorded to him/her by the State Medical
    Council or the Medical Council of India in his clinic, prescriptions and certificates etc., issued by
    him or violates the provisions of regulation 1.4.2.
    7.4 Adultery or Improper Conduct
    Abuse of professional position by committing adultery or improper conduct with the patient
    or by maintaining an improper association with a patient will render a physician liable for
    disciplinary action as provided under the Indian Medical Council Act, 1956 or the concerned
    State Medical Council Act.
    7.5 Conviction by Court of Law
    Conviction by a Court of Law for offences involving moral turpitude/Criminal acts.
    7.6 Sex Determination Tests
    On no account sex determination test shall be undertaken with the intent to terminate the life of
    a female foetus developing in her mother’s womb, unless there are other absolute indications for
    termination of pregnancy as specified in the Medical Termination of Pregnancy Act, 1971. Any
    act of termination of pregnancy of normal female foetus amounting to female foeticide shall be
    regarded as professional misconduct on the part of the physician leading to penal erasure besides
    rendering him liable to criminal proceedings as per the provisions of this Act.
    7.7 Signing Professional Certificates, Reports and other Documents
    Registered medical practitioners are in certain cases bound by law to give, or may from
    time to time be called upon or requested to give certificates, notification, reports
    and other documents of similar character signed by them in their professional capacity for
    subsequent use in the courts or for administrative purposes etc. Such documents, among
    others, include the ones given at Appendix 4. Any registered practitioner who is shown to
    have signed or given under his name and authority any such certificate, notification, report
    or document of a similar character which is untrue, misleading or improper, is liable to have
    his name deleted from the Register.
    7.8 A registered medical practitioner shall not contravene the provisions of the Drugs and
    Cosmetics Act and regulations made there under. Accordingly,
    (a) Prescribing steroids/psychotropic drugs when there is no absolute medical indication;
    (b) Selling schedule “H” & “L” drugs and poisons to the public except to his patient; in
    contravention of the above provisions shall constitute gross professional misconduct
    on the part of the physician.
    7.9 Performing or enabling unqualified person to perform an abortion or any illegal operation for
    which there is no medical, surgical or psychological indication.
    7.10 A registered medical practitioner shall not issue certificates of efficiency in modern
    medicine to unqualified or non-medical person.
    (Note: The foregoing does not restrict the proper training and instruction of bonafide students,
    midwives, dispensers, surgical attendants, or skilled mechanical and technical assistants and
    therapy assistants under the personal supervision of physicians.
    7.11 A physician should not contribute to the lay press through articles or give interviews
    regarding diseases and treatments which may have the effect of advertising himself or
    soliciting practice; but, he is free to write to the lay press under his own name on matters
    of public health, hygienic living or to deliver to public lectures, give talks on the radio /
    TV / internet chat for the same purpose and seed announcement of the same to the
    lay press.
    7.12 An institution run by a physician for a particular purpose such as a maternity home, nursing
    home, private hospital, rehabilitation centre or any type of training institution etc. may be
    advertised in the lay press, but such advertisements should not contain anything more
    than the name of the institution, type of patients admitted, type of training and other
    facilities offered and the fees.
    86
    7.13 It is improper for a physician to use an unusually large sign board and write on it anything
    other than his name, qualifications obtained from a University or a statutory body, titles
    and name of his specially, registration number including the name of the State Medical
    Council under which it was registered. The same should be the contents of his prescription
    papers. It is improper to affix a signboard on a chemist’s shop or in places where he does
    not reside or work.
    7.14 The Registered Medical Practitioner shall not disclose the secrets of a patient that have been
    learnt in the exercise of his / her profession except
    i) in a court of law under order of the presiding judge,
    ii) in circumstances where there is a serious and identified risk to a specific person and
    / or community and
    iii) notifiable diseases.
    In case of communicable / notifiable diseases, concerned public health authorities should be
    informed immediately.
    7.15 The Registered Medical Practitioner shall not refuse on religious grounds alone, to give
    assistance in or conduct sterility, birth control, circumcision and termination of pregnancy
    procedures when there is medical indication, unless the medical practitioner feels himself /
    herself incompetent to do so.
    7.16 Before performing an operation the physician should obtain in writing the consent from the
    husband or wife, parent or guardian in case of minor, or the patient himself as the case may
    be. In an operation which may result in sterility, the consent of both husband and wife is
    needed.
    7.17 A Registered Medical Practitioner shall not publish photographs or case reports of his / her
    patients without their permission, in any medical or other journal in a manner by which their
    identity could be disclosed if the identity is not to be disclosed, the consent is not needed.
    7.18 In case a physician is running a nursing home and employing assistants to help him / her, the
    ultimate responsibility rests on the physician.
    7.19 A physician shall not use touts or agents for procuring patients.
    7.20 A physician shall not claim to be a specialist unless he has a special qualification in that
    branch.
    7.21 No act of invitro fertilization or artificial insemination shall be undertaken without the informed
    consent of the female patient and her spouse as well as the donor. Such consent shall be
    obtained in writting only after the patient is provided, at her own level of comprehension, with
    sufficient information about the purpose, methods, risks, inconveniences, disappointments of
    the procedure and possible risks and hazards.
    7.22 Research: Clinical drug trials or other research involving patients or volunteers as per the
    guidelines of ICMR can be undertaken, provided ethical considerations are borne in mind.
    Violation of existing ICMR guidelines in this regard shall constitute misconduct. Consent
    taken from the patient for trial of drug or therapy which is not as per the guidelines shall also
    be construed as misconduct.
    87
    7.23 If a physician posted in rural area is found absent on more than two occasions during
    inspection by the Head of the District Health Authority or the Chairman, Zila Parishad, the
    same shall be construed as a misconduct if it is recommended to the Medical Council of
    India/State Medical Council by the State Government for action under these Regulation.
    7.24 If a physician posted in a medical college/institution both as teaching faculty or otherwise shall
    remain in hospital/college during the assigned duty hours. If they are found absent on more
    that two occasions during this period, the same shall be construed as a misconduct if it is
    certified by the Principal/Medical Superintendent and forwarded through the State Government
    of Medical Council of India/State Medical Council for action under these Regulations.
  8. Punishment and Disciplinary Action
    8.1 It must be clearly understood that the instances of offences and of Professional misconduct
    which are given above do not constitute and are not intended to constitute a complete list of
    the infamous acts which calls for disciplinary action, and that by issuing this notice the Medical
    Council of India and or State Medical Councils are in no way precluded from considering
    and dealing with any other form of professional misconduct on the part of a registered
    practitioner. Circumstances may and do arise from time to time in relation to which there may
    occur questions of professional misconduct which do not come within any of these categories.
    Every care should be taken that the code is not violated in letter or spirit. In such instances
    as in all others, the medical Council of India and/or State Medical Councils have to consider
    and decide upon the facts brought before the Medical Council of India and/or State Medical
    Councils
    8.2 It is made clear that any complaint with regard to professional misconduct can be brought
    before the appropriate Medical Council for Disciplinary action. Upon receipt of any complaint
    of professional misconduct, the appropriate Medical Council would hold an enquiry and give
    opportunity to the registered medical practitioner to be heard in person or by a pleader. If
    the medical practitioner is found to be guilty of committing professional misconduct, the
    appropriate Medical Council may award such punishment as deemed necessary or may direct
    the removal altogether or for a specified period, from the register of the name of the delinquent
    registered practitioner. Deletion from the Register shall be widely publicized in local press as
    well as in the publications of different Medical Associations/Societies/Bodies.
    8.3 In case the punishment of removal from the register is for a limited period, the appropriate
    Council may also direct that the name so removed shall be restored in the register after the
    expiry of the period for which the name was ordered to be removed.
    8.4 Decision on complaint against delinquent physician shall be taken within a time limit of 6
    months.
    8.5 During the pendency of the complaint the appropriate Council may restrain the physician form
    performing the procedure or practice which is under scrutiny.
    8.6 Professional incompetence shall be judged by peer group as per guidelines prescribed by
    Medical Council of India.
    LEGAL OBLIGATION OF DOCTORS Dr. R. D. Lele Introduction Legal obligations of doctors flow from the ethical and moral obligations toward; the patients which are best expressed in Charak Samhita, the ancient Indian Ayurvedic classic. “The physician should regard all his patients as if they were his own children and Vigilantly guard them from all harm, considering this to be his highest religion.” “The patient, who may mistrust his own parents, children and relations should response and implicit faith in his own physician and put his own life into his hands without the least apprehension of danger.” The doctor patient relationship is fiducially-based on trust; hence the doctor should do everything in his power to deserve that trust. Aesthetical, moral & legal obligations flow from this single premise. It is important that every doctor understands the legal obligations and fulfils them to the best of his abilities. Most doctors are not aware of the law of torts which pertains to a wrong-doing which is independent of contract. This liability is applicable to all categories of doctors whether they provide their service for a fee or as a charity without any fee. From the legal point of view, lapses (averter or inadvertent) committed by doctors while performing their duties gives rise to legal liabilities which are of 2 kinds: Criminal & Civil. Criminal Liabilities Arise when it is proved that a doctor has committed an act or made an omission which is grossly or extremely rash or grossly negligent, and that grossly rash or negligent act is proved to be the proximate, direct or substantive cause of the patients’ death. Then, under section 304 A of the Indian Penal code ( IPC ) the doctor is punishable with imprisonment for a term which may extend up to 2 yrs, or with a fine or both. Here is worth noting that under section 304 A of the IPC this is a bail able offence, and the police cannot hold the accused doctor in custody one the bail is provided. A police officer cannot act unreasonable, and under the pretext of non-furnishing of bail, he cannot put a doctor in detention. Any such act by the police officer will make him liable for the offence of wrongful confinement punishable under section 342 of IPC. Civil liabilities Arises in case of medical service rendered on payment of a fee, under section 73 & 74 of the Indian Contract Act. For liability to be established, the onus of the burden is on the patient to prove that. 1. There is a normal practice. 2. The defendant doctor has not adopted it. 3. The course adopted by the doctor is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care. It should be appreciated that the law is very considerate to doctors. Error of judgment is not a crime either in criminal or civil law. The law appreciates that the doctor is not obligated to achieve success in every case that he treats. His only duty according to law is to exercise reasonable skill and care. The standards of care and skill are to be judged by reference to the ordinary average doctor who is expected to have a reasonable degree of knowledge, skill and competence. Obviously, the standard of knowledge and skill expected from a specialist is higher than that expected of the general practitioner. 89 Simply because something happens to go wrong. If for instance one of the risks inherent in an operation has actually taken place, or some complication ensues which lessens or takes away the benefits that were hoped for, or if in a matter of opinion he makes an error of judgment, you should find him guilty only when he falls short of the standards of a reasonably skilful medical man.” In a recent Supreme Court judgment (A. S. Mittal and other vs State of UP and others) following observation were made: “But the law recognizes the dangers which are inherent in surgical operations. Mistakes will occur on occasion despite exercise of reasonable skill and care.” Negligence & rashness Not doing what is required to be done (act of omission) and doing what should not have been done (act of commission) amount to negligence. Undertaking an assignment beyond one’s competence is a gross case of rashness. Doing something which no sane or sober doctor in similar circumstances would ever do, is rashness. Rashness arises because the doctor neglects his duty to be careful about the patients’ safety and hence can be branded as negligence. Thus the term “negligence” can be used generally to cover both rashness and negligence. I have listed the common and important acts of omission and commission that constitute negligence in a tabular (Table I). I expect all doctors to constantly keep this list in mind and take reasonable precautions to safeguard against them. After all forewarned is forearmed. Damages Damages are the monetary compensation given by the process of law and may be of two kinds: a. Pecuniary damages – amounts awarded for financial loss, past or future, whether precisely calculated or not. All medical expenses, costs of nursing, loss of earning capacity, cost of services of attendants during mishap, are also included in pecuniary damage. b. Non-pecuniary damages, for pain and suffering, past or future, loss of enjoyment of life in respect of sports, married life etc. The bases or foundation of all monetary claims against doctors is negligence, either by themselves or by their agents i.e. assistants, servants or staff, provided the said negligence is the direct or proximate cause of some injury caused to the patient. A doctor would not be held liable for the consequences of his negligence if these consequences are too remote in time and space from his conduct, and in particular if some other event or event or events intervene or might have intervened between the doctor’s alleged conduct and the occurrence of injury or damage. Vicarious liability “Vicarious” means arising out of a vicar or a deputy or an agent. Vicarious liability arises out of the wrongful action or omissions of the staff assisting the doctors (house men, nurses, technicians, paramedical staff, ward boys, pharmacist, physiotherapists etc.) The hospital that engages the doctors and supportive services have vicarious liability. For legal purpose the principal or the master is answerable for the wrong doings of the staff engaged by him – provided that is done in the course of the employment or engagement. Common 90 examples of vicarious liability are a patient falling from the cot because of the absence of protective railings, patient falling from a trolley while being carried by a ward boy; a visitor falling on a slippery floor etc. Medical institutions and nursing homes should get adequate insurance cover to meet liabilities arisings out of the negligence of medical as well as paramedical staff. Table Negligence: Acts of Omission and Commission Physician Acts of Omission Acts of Commission 1. Failure to attend to one’s patient when 1. Examination without the consent required ( for example, when He/she of the patient. complains of chest pain, Abdominal pain) 2. Failure to study symptoms and 2. Perfunctory and superficial Examination. complaints carefully. 3. Failure to examine the patient. 3. Injury during examination. 4. Failure to attempt a proper diagnosis 4. Rushing to a diagnosis without reasonable including failure to consult. basis. 5. Failure to use appropriate laboratory tests 5. Jumping to a plan of treatment, without when available. consideration of safety. 6. Failure to obtain informed consent for 6. Undertaking of procedures beyond one’s procedures with inherent risks to life. skill and experience. 7. Failure to administer standard treatment. 7. Unnecessary treatment, especially with harmful drugs. 8. Failure to take proper precaution before 8. Causing injury to the patient due to faulty giving injections, such as Penicillin, techniques, for example, necrosis due to cytotoxic drugs. infiltration of vesicant drugs; infections. 9. Failure to leave proper and clear 9. Error in prescribing; overdose; wrong drugs; instructions for the treatment of the patient as adverse drug interactions. well as protection of attendants and contacts (in case of infectious diseases). 10. Failure to advise hospitalization when 10. Aggravating in existing condition or adding indicated by the patient’s condition. new doctor-induced problems. 11. Failure to issue complete discharge card 11. Anaphylaxis resulting in death for want of with follow-up instructions, on discharge of anticipatory preparedness with life saving hospitalized patient. measures – ( ABC / CPR). 12. Abandoning treatment without arranging for alternatives. 91 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. Acts of Commission Operation without consent. Operation more extensive than that Consented to. Operation on the wrong patient or on the Unnecessary operation. Unsuccessful operation ( with recurrence of the same trouble). Bad results of operation : sepsis; injury to nerves, tendons; unnecessary scarring; loss of function; deformity. Leaving swabs or instruments in body cavities. Use of unsterile instruments, faulty techniques. Plaster casts too tight; removed too soon; or kept too long. Experimentation without proper consent and authorization. Acts of Omission Failure to diagnose surgical condition requiring operation. Failure to use X-rays and other aids for proper diagnosis when available. Failure to operate when indicated. Delay in operation. Failure to follow up after operation. Failure to do a thorough job (e.g. remove all kidney / bladder stones, complete removal of tonsils). Failure to inform the patientl if complications due to inadvertence occurred during surgery. Failure to use traction when indicated. Failure to institute passive and active movements as indicated. Failure to immobilize sufficiently if condition demanded it.
    LEGAL OBLIGATION OF DOCTORS Dr. R. D. Lele Introduction Legal obligations of doctors flow from the ethical and moral obligations toward; the patients which are best expressed in Charak Samhita, the ancient Indian Ayurvedic classic. “The physician should regard all his patients as if they were his own children and Vigilantly guard them from all harm, considering this to be his highest religion.” “The patient, who may mistrust his own parents, children and relations should response and implicit faith in his own physician and put his own life into his hands without the least apprehension of danger.” The doctor patient relationship is fiducially-based on trust; hence the doctor should do everything in his power to deserve that trust. Aesthetical, moral & legal obligations flow from this single premise. It is important that every doctor understands the legal obligations and fulfils them to the best of his abilities. Most doctors are not aware of the law of torts which pertains to a wrong-doing which is independent of contract. This liability is applicable to all categories of doctors whether they provide their service for a fee or as a charity without any fee. From the legal point of view, lapses (averter or inadvertent) committed by doctors while performing their duties gives rise to legal liabilities which are of 2 kinds: Criminal & Civil. Criminal Liabilities Arise when it is proved that a doctor has committed an act or made an omission which is grossly or extremely rash or grossly negligent, and that grossly rash or negligent act is proved to be the proximate, direct or substantive cause of the patients’ death. Then, under section 304 A of the Indian Penal code ( IPC ) the doctor is punishable with imprisonment for a term which may extend up to 2 yrs, or with a fine or both. Here is worth noting that under section 304 A of the IPC this is a bail able offence, and the police cannot hold the accused doctor in custody one the bail is provided. A police officer cannot act unreasonable, and under the pretext of non-furnishing of bail, he cannot put a doctor in detention. Any such act by the police officer will make him liable for the offence of wrongful confinement punishable under section 342 of IPC. Civil liabilities Arises in case of medical service rendered on payment of a fee, under section 73 & 74 of the Indian Contract Act. For liability to be established, the onus of the burden is on the patient to prove that. 1. There is a normal practice. 2. The defendant doctor has not adopted it. 3. The course adopted by the doctor is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care. It should be appreciated that the law is very considerate to doctors. Error of judgment is not a crime either in criminal or civil law. The law appreciates that the doctor is not obligated to achieve success in every case that he treats. His only duty according to law is to exercise reasonable skill and care. The standards of care and skill are to be judged by reference to the ordinary average doctor who is expected to have a reasonable degree of knowledge, skill and competence. Obviously, the standard of knowledge and skill expected from a specialist is higher than that expected of the general practitioner. 89 Simply because something happens to go wrong. If for instance one of the risks inherent in an operation has actually taken place, or some complication ensues which lessens or takes away the benefits that were hoped for, or if in a matter of opinion he makes an error of judgment, you should find him guilty only when he falls short of the standards of a reasonably skilful medical man.” In a recent Supreme Court judgment (A. S. Mittal and other vs State of UP and others) following observation were made: “But the law recognizes the dangers which are inherent in surgical operations. Mistakes will occur on occasion despite exercise of reasonable skill and care.” Negligence & rashness Not doing what is required to be done (act of omission) and doing what should not have been done (act of commission) amount to negligence. Undertaking an assignment beyond one’s competence is a gross case of rashness. Doing something which no sane or sober doctor in similar circumstances would ever do, is rashness. Rashness arises because the doctor neglects his duty to be careful about the patients’ safety and hence can be branded as negligence. Thus the term “negligence” can be used generally to cover both rashness and negligence. I have listed the common and important acts of omission and commission that constitute negligence in a tabular (Table I). I expect all doctors to constantly keep this list in mind and take reasonable precautions to safeguard against them. After all forewarned is forearmed. Damages Damages are the monetary compensation given by the process of law and may be of two kinds: a. Pecuniary damages – amounts awarded for financial loss, past or future, whether precisely calculated or not. All medical expenses, costs of nursing, loss of earning capacity, cost of services of attendants during mishap, are also included in pecuniary damage. b. Non-pecuniary damages, for pain and suffering, past or future, loss of enjoyment of life in respect of sports, married life etc. The bases or foundation of all monetary claims against doctors is negligence, either by themselves or by their agents i.e. assistants, servants or staff, provided the said negligence is the direct or proximate cause of some injury caused to the patient. A doctor would not be held liable for the consequences of his negligence if these consequences are too remote in time and space from his conduct, and in particular if some other event or event or events intervene or might have intervened between the doctor’s alleged conduct and the occurrence of injury or damage. Vicarious liability “Vicarious” means arising out of a vicar or a deputy or an agent. Vicarious liability arises out of the wrongful action or omissions of the staff assisting the doctors (house men, nurses, technicians, paramedical staff, ward boys, pharmacist, physiotherapists etc.) The hospital that engages the doctors and supportive services have vicarious liability. For legal purpose the principal or the master is answerable for the wrong doings of the staff engaged by him – provided that is done in the course of the employment or engagement. Common 90 examples of vicarious liability are a patient falling from the cot because of the absence of protective railings, patient falling from a trolley while being carried by a ward boy; a visitor falling on a slippery floor etc. Medical institutions and nursing homes should get adequate insurance cover to meet liabilities arisings out of the negligence of medical as well as paramedical staff. Table Negligence: Acts of Omission and Commission Physician Acts of Omission Acts of Commission 1. Failure to attend to one’s patient when 1. Examination without the consent required ( for example, when He/she of the patient. complains of chest pain, Abdominal pain) 2. Failure to study symptoms and 2. Perfunctory and superficial Examination. complaints carefully. 3. Failure to examine the patient. 3. Injury during examination. 4. Failure to attempt a proper diagnosis 4. Rushing to a diagnosis without reasonable including failure to consult. basis. 5. Failure to use appropriate laboratory tests 5. Jumping to a plan of treatment, without when available. consideration of safety. 6. Failure to obtain informed consent for 6. Undertaking of procedures beyond one’s procedures with inherent risks to life. skill and experience. 7. Failure to administer standard treatment. 7. Unnecessary treatment, especially with harmful drugs. 8. Failure to take proper precaution before 8. Causing injury to the patient due to faulty giving injections, such as Penicillin, techniques, for example, necrosis due to cytotoxic drugs. infiltration of vesicant drugs; infections. 9. Failure to leave proper and clear 9. Error in prescribing; overdose; wrong drugs; instructions for the treatment of the patient as adverse drug interactions. well as protection of attendants and contacts (in case of infectious diseases). 10. Failure to advise hospitalization when 10. Aggravating in existing condition or adding indicated by the patient’s condition. new doctor-induced problems. 11. Failure to issue complete discharge card 11. Anaphylaxis resulting in death for want of with follow-up instructions, on discharge of anticipatory preparedness with life saving hospitalized patient. measures – ( ABC / CPR). 12. Abandoning treatment without arranging for alternatives. 91 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. Acts of Commission Operation without consent. Operation more extensive than that Consented to. Operation on the wrong patient or on the Unnecessary operation. Unsuccessful operation ( with recurrence of the same trouble). Bad results of operation : sepsis; injury to nerves, tendons; unnecessary scarring; loss of function; deformity. Leaving swabs or instruments in body cavities. Use of unsterile instruments, faulty techniques. Plaster casts too tight; removed too soon; or kept too long. Experimentation without proper consent and authorization. Acts of Omission Failure to diagnose surgical condition requiring operation. Failure to use X-rays and other aids for proper diagnosis when available. Failure to operate when indicated. Delay in operation. Failure to follow up after operation. Failure to do a thorough job (e.g. remove all kidney / bladder stones, complete removal of tonsils). Failure to inform the patientl if complications due to inadvertence occurred during surgery. Failure to use traction when indicated. Failure to institute passive and active movements as indicated. Failure to immobilize sufficiently if condition demanded it.
    LEGAL OBLIGATION OF DOCTORS
    Dr. R. D. Lele
    Introduction
    Legal obligations of doctors flow from the ethical and moral obligations toward; the patients which are
    best expressed in Charak Samhita, the ancient Indian Ayurvedic classic. “The physician should regard
    all his patients as if they were his own children and Vigilantly guard them from all harm, considering this
    to be his highest religion.” “The patient, who may mistrust his own parents, children and relations
    should response and implicit faith in his own physician and put his own life into his hands without the
    least apprehension of danger.” The doctor patient relationship is fiducially-based on trust; hence the
    doctor should do everything in his power to deserve that trust. Aesthetical, moral & legal obligations
    flow from this single premise. It is important that every doctor understands the legal obligations and
    fulfils them to the best of his abilities. Most doctors are not aware of the law of torts which pertains to
    a wrong-doing which is independent of contract. This liability is applicable to all categories of doctors
    whether they provide their service for a fee or as a charity without any fee. From the legal point of view,
    lapses (averter or inadvertent) committed by doctors while performing their duties gives rise to legal
    liabilities which are of 2 kinds: Criminal & Civil.
    Criminal Liabilities
    Arise when it is proved that a doctor has committed an act or made an omission which is grossly or
    extremely rash or grossly negligent, and that grossly rash or negligent act is proved to be the proximate,
    direct or substantive cause of the patients’ death. Then, under section 304 A of the Indian Penal code
    ( IPC ) the doctor is punishable with imprisonment for a term which may extend up to 2 yrs, or with a
    fine or both. Here is worth noting that under section 304 A of the IPC this is a bail able offence, and the
    police cannot hold the accused doctor in custody one the bail is provided. A police officer cannot act
    unreasonable, and under the pretext of non-furnishing of bail, he cannot put a doctor in detention. Any
    such act by the police officer will make him liable for the offence of wrongful confinement punishable
    under section 342 of IPC.
    Civil liabilities
    Arises in case of medical service rendered on payment of a fee, under section 73 & 74 of the Indian
    Contract Act. For liability to be established, the onus of the burden is on the patient to prove that.
  9. There is a normal practice.
  10. The defendant doctor has not adopted it.
  11. The course adopted by the doctor is one which no professional man of ordinary skill would have
    taken if he had been acting with ordinary care.
    It should be appreciated that the law is very considerate to doctors. Error of judgment is not a
    crime either in criminal or civil law. The law appreciates that the doctor is not obligated to
    achieve success in every case that he treats. His only duty according to law is to exercise
    reasonable skill and care. The standards of care and skill are to be judged by reference to the
    ordinary average doctor who is expected to have a reasonable degree of knowledge, skill and
    competence. Obviously, the standard of knowledge and skill expected from a specialist is higher
    than that expected of the general practitioner.
    89
    Simply because something happens to go wrong. If for instance one of the risks inherent in an
    operation has actually taken place, or some complication ensues which lessens or takes away the
    benefits that were hoped for, or if in a matter of opinion, he makes an error of judgment, you should
    find him guilty only when he falls short of the standards of a reasonably skilful medical man.”
    In a recent Supreme Court judgment (A. S. Mittal and other vs State of UP and others)
    following observation were made:
    “But the law recognizes the dangers which are inherent in surgical operations. Mistakes will occur
    on occasion despite exercise of reasonable skill and care.”
    Negligence & rashness
    Not doing what is required to be done (act of omission) and doing what should not have been done
    (act of commission) amount to negligence.
    Undertaking an assignment beyond one’s competence is a gross case of rashness. Doing something
    which no sane or sober doctor in similar circumstances would ever do, is rashness. Rashness arises
    because the doctor neglects his duty to be careful about the patients’ safety and hence can be
    branded as negligence. Thus the term “negligence” can be used generally to cover both rashness
    and negligence.
    I have listed the common and important acts of omission and commission that constitute negligence
    in a tabular (Table I). I expect all doctors to constantly keep this list in mind and take reasonable
    precautions to safeguard against them. After all forewarned is forearmed.
    Damages
    Damages are the monetary compensation given by the process of law and may be of two kinds:
    a. Pecuniary damages – amounts awarded for financial loss, past or future, whether precisely
    calculated or not. All medical expenses, costs of nursing, loss of earning capacity, cost
    of services of attendants during mishap, are also included in pecuniary damage.
    b. Non-pecuniary damages, for pain and suffering, past or future, loss of enjoyment of life
    in respect of sports, married life etc.
    The bases or foundation of all monetary claims against doctors is negligence, either by themselves
    or by their agents i.e. assistants, servants or staff, provided the said negligence is the direct or
    proximate cause of some injury caused to the patient.
    A doctor would not be held liable for the consequences of his negligence if these consequences are
    too remote in time and space from his conduct, and in particular if some other event or event or
    events intervene or might have intervened between the doctor’s alleged conduct and the occurrence
    of injury or damage.
    Vicarious liability
    “Vicarious” means arising out of a vicar or a deputy or an agent. Vicarious liability arises out of the
    wrongful action or omissions of the staff assisting the doctors (house men, nurses, technicians,
    paramedical staff, ward boys, pharmacist, physiotherapists etc.)
    The hospital that engages the doctors and supportive services have vicarious liability. For
    legal purpose the principal or the master is answerable for the wrong doings of the staff engaged
    by him – provided that is done in the course of the employment or engagement. Common
    90
    examples of vicarious liability are a patient falling from the cot because of the absence of protective
    railings, patient falling from a trolley while being carried by a ward boy; a visitor falling on a slippery
    floor etc.
    Medical institutions and nursing homes should get adequate insurance cover to meet liabilities arisings
    out of the negligence of medical as well as paramedical staff.
    Table
    Negligence: Acts of Omission and Commission
    Physician
    Acts of Omission Acts of Commission
  12. Failure to attend to one’s patient when 1. Examination without the consent
    required ( for example, when He/she of the patient.
    complains of chest pain, Abdominal pain)
  13. Failure to study symptoms and 2. Perfunctory and superficial Examination.
    complaints carefully.
  14. Failure to examine the patient. 3. Injury during examination.
  15. Failure to attempt a proper diagnosis 4. Rushing to a diagnosis without reasonable
    including failure to consult. basis.
  16. Failure to use appropriate laboratory tests 5. Jumping to a plan of treatment, without
    when available. consideration of safety.
  17. Failure to obtain informed consent for 6. Undertaking of procedures beyond one’s
    procedures with inherent risks to life. skill and experience.
  18. Failure to administer standard treatment. 7. Unnecessary treatment, especially with
    harmful drugs.
  19. Failure to take proper precaution before 8. Causing injury to the patient due to faulty
    giving injections, such as Penicillin, techniques, for example, necrosis due to
    cytotoxic drugs. infiltration of vesicant drugs; infections.
  20. Failure to leave proper and clear 9. Error in prescribing; overdose; wrong drugs;
    instructions for the treatment of the patient as adverse drug interactions.
    well as protection of attendants and contacts
    (in case of infectious diseases).
  21. Failure to advise hospitalization when 10. Aggravating in existing condition or adding
    indicated by the patient’s condition. new doctor-induced problems.
  22. Failure to issue complete discharge card 11. Anaphylaxis resulting in death for want of
    with follow-up instructions, on discharge of anticipatory preparedness with life saving
    hospitalized patient. measures – ( ABC / CPR).
  23. Abandoning treatment without arranging
    for alternatives.
    91
    1.
    2.
    3.
    4.
    5.
    6.
    7.
    8.
    9.
    10.
    Acts of Commission
    Operation without consent.
    Operation more extensive than that Consented
    to.
    Operation on the wrong patient or on the
    Unnecessary operation.
    Unsuccessful operation ( with recurrence of
    the same trouble).
    Bad results of operation : sepsis; injury to
    nerves, tendons; unnecessary scarring; loss of
    function; deformity.
    Leaving swabs or instruments in body cavities.
    Use of unsterile instruments, faulty techniques.
    Plaster casts too tight; removed too soon; or
    kept too long.
    Experimentation without proper consent and
    authorization.
    Acts of Omission
    Failure to diagnose surgical condition
    requiring operation.
    Failure to use X-rays and other aids for
    proper diagnosis when available.
    Failure to operate when indicated.
    Delay in operation.
    Failure to follow up after operation.
    Failure to do a thorough job (e.g. remove all
    kidney / bladder stones, complete removal
    of tonsils).
    Failure to inform the patientl if complications
    due to inadvertence occurred during surgery.
    Failure to use traction when indicated.
    Failure to institute passive and active
    movements as indicated.
    Failure to immobilize sufficiently if condition
    demanded it.
    Anaesthesiologists
    Failure to examine the patient before
    surgery, for evaluation of fitness for surgery
    under anaesthesia.
    Failure to communicate to the surgeon,
    patient and relatives the magnitude of the
    risk involved, before obtaining the informed
    consent.
    Failure to supervise the recovery from
    anaesthesia.
    Radiologist
    Failure to take adequate recautions before
    giving iodine contrast media.
    Too much anaesthetic.
    Death from anaesthesia.
    Injury to the patient during anaesthesia, to his
    eyes, skin, limbs, etc; brachial palsy, aspiration
    pneumonia.
    Sequelae of anaesthesia, for example, spinal
    anesthesia leading to epidural abscess, back
    pain.
    Mis-reporting of films.
    Anaphylactic reaction to contrast media.
    Renal shutdown due to contrast media.
    Complications following arteriography and
    interventional radiology.
    93
    Acts of Omission
  24. Failure to provide prenatal care.
  25. Failure to attend at time of delivery.
  26. Failure to protect perineum and rectum
    during delivery.
  27. Failure to remove placenta completely.
  28. Failure to repair birth canal injury.
  29. Failure to treat eclampsia properly.
    Gynaecologists
  30. Failure to obtain consent before performing
    abortion or sterilization, or artificial
    insemination with donor’s sperm.
  31. Failure to use aseptic techniques.
  32. Failure to inform patient about mishaps
    through inadvertence.
  33. Failure to use appropriate family planning
    method when required.
    Ultrasonographers
  34. Failure to use optimum techniques, leading
    to misdiagnosis.
    Acts of Commission
  35. Unnecessary caesarean operation
  36. Instrumental injury to mother and child.
  37. Haemorrhage from the cord.
  38. Diagnosis of pregnancy as “uterine tumor”.
  39. Diagnosis of uterine tumour as “pregnancy”.
  40. Wrong baby given to patients.
  41. Operation resulting insterility.
  42. Perforation of uterus during curettage.
  43. Stricture of cervix by too extensive
    cauterization.
  44. Fistula formation with bladder and rectum.
  45. Failed tubectomy – patient becoming
    pregnant.
  46. Wrong reporting of the sex of the foetus.
  47. Wrong diagnosis false positive and false negative.
    Obstetricians
    Failure to use acceptable scientific
    techniques for diagnostic tests.
    Failure to monitor quality control of tests.
    Erroneous results of laboratory tests (especially
    venereal disease and HIV infection) – biopsy
    reports.
    Contamination of materials in the laboratory leading
    to erroneous results.
    Adequate pretest requisites.

Allied and Healthcare Professions Bill, 2018

Cabinet approves the Allied and Healthcare Professions Bill, 2018 for regulation and standardization of education and services by allied and healthcare professionals

The Union Cabinet chaired by Prime Minister Shri Narendra Modi has approved the Allied and Healthcare Professions Bill, 2018 for regulation and standardization of education and services by allied and healthcare professionals. The Bill provides for setting up of an Allied and Healthcare Council of India and corresponding State Allied and Healthcare Councils which will play the role of a standard-setter and facilitator for professions of Allied and Healthcare.
Details:
1 Establishment of a Central and corresponding State Allied and Healthcare Councils; 15 major professional categories including 53 professions in Allied and Healthcare streams.
2 The Bill provides for Structure, Constitution, Composition and Functions of the Central Council and State Councils, e.g. Framing
Contents
Pertains to policies and standards, Regulation of professional conduct, Creation and maintenance of live Registers, provisions for common entry and exit examinations, etc.
The Central Council will comprise 47 members, of which 14 members shall be ex-officio representing diverse and related roles and functions and remaining 33 shall be non-ex-officio members who mainly represent the 15professional categories.
The State Councils are also envisioned to mirror the Central Council, comprising 7 ex-officio and 21 non-ex officio members and Chairperson to be elected from amongst the non-ex officio members.
Professional Advisory Bodies under Central and State Councils will examine issues independently and provide recommendations relating to specific recognized categories.
The Bill will also have an overriding effect on any other existing law for any of the covered professions.
The State Council will undertake recognition of allied and healthcare institutions.
Offences and Penalties clause have been included in the Bill to check mal­practices.
The Bill also empowers the Central and State Governments to make rules.
Central Govt. also has the power to issue directions to the Council, to make regulations and to add or amend the schedule.
Targets:
◦ An Interim Council will be constituted within 6 months of passing of the Act holding charge for a period of two years until the establishment of the Central Council.
◦ The Council at the Centre and the States are to be established as body corporate with a provision to receive funds from various sources.
◦ Councils will also be supported by Central and State Governments respectively through Grant-in-aid as needed. However, if the State Government expresses inability, the Central Government may release some grant for initial years to the State Council.
Major Impact, including employment generation potential:
I Bring all existing allied and healthcare professionals on board during the first few of years from the date of establishment of the Council.
ii Opportunity to create qualified, highly skilled and competent jobs in healthcare by enabling professionalism of the allied and healthcare workforce.
iii High quality, multi-disciplinary care in line with the vision of Ayushman Bharat, moving away from a ‘doctor led’ model to a ‘care accessible and team based’ model.
iv Opportunity to cater to the global demand (shortage) of health care work force which is projected to be about 15 million by the year 2030, asper the WHO Global Workforce, 2030 report.
Expenditure involved:
Total cost implication is expected to be Rupees 95 crores for the first four years. About four-fifth of the total budget (i.e. Rupees 75 crores) is being earmarked for the States while the remaining fund will support the Central Council operations for 4 years and also establish the Central and State Registers.
Number of beneficiaries:
It is estimated that the Allied and Healthcare Professions Bill, 2018 will directly benefit around 8-9 Lakh existing Allied and Healthcare related professionals in the country and several other graduating professionals joining workforce annually and contributing to the health system. However, since this Bill is directed to strengthen the healthcare delivery system at large, it may be said that the entire population of the country and the health sector as a whole will be benefited by this Bill.
Background:
in the current state of healthcare system, there exist many allied and healthcare professionals, who remain unidentified, unregulated and underutilized. Our system is highly focused on efforts towards strengthening limited categories of professionals such as doctors, nurses and frontline workers (like Accredited Social Health Activist or ASHAs, Auxiliary Nurse Midwife or ANMs). However, numerous others have been identified over the years, whose potential can be utilized to improve and increase the access to quality driven services in the rural and hard to reach areas.
Allied and Healthcare Professionals (A&HPs) constitute an important element of the health human resource network, and the skilled and efficient Allied and Healthcare Professionals (A&HPs) can reduce the cost of care and dramatically improve the accessibility to quality driven healthcare services.
Globally, Allied and Healthcare Professionals typically attend undergraduate degree programmed of a minimum of three to four years to begin with and may attain up to PhD level qualification in their respective streams. However, most of Indian institutions offering such courses lack standardization.
Majority of the countries worldwide, have a statutory licensing or regulatory body that is authorized to license and certify the qualifications and competence of such professionals, particularly those involved in direct patient care (such as physiotherapist, nutritionist etc.) or those whose occupation impact patient care directly (such as lab technologists, dosimetrists etc.).
Though such professionals have existed in the Indian healthcare system for many decades, a considerable gap in the allied and healthcare space is because of a lack of a comprehensive regulatory framework and absence of standards for education and training of A&HPs.
The Bill thus seeks to establish a robust regulatory framework which will play the role of a standard-setter and regulator for Allied and Healthcare professions.
Anti-Counterfeiting Trade Agreement
The Anti-Counterfeiting Trade Agreement (ACTA) is a multinational treaty for the purpose of establishing international standards for intellectual property rights enforcement. The agreement aims to establish an international legal framework for targeting counterfeit goods, generic medicines and copyright infringement on the Internet, and would create a new governing body outside existing forums, such as the World Trade Organization, the World Intellectual Property Organization, and the United Nations.
Ayushman Bharat Yojana

Ayushman Bharat Pradhan Mantri Jan Arogya Yojana (AB PM-JAY) is a flagship scheme of the Indian government’s National Health Policy which aims to provide free health coverage at the secondary and tertiary level to its bottom 40% poor and vulnerable population. PM-JAY is the world’s largest and fully state sponsored health assurance scheme which covers a population of the combined size of USA, Mexico and Canada. It was launched in September 2018, under the aegis of Ministry of Health and Family Welfare in India.
The National Health Protection Scheme (NHPS) scheme is formed by subsuming multiple schemes including Rashtriya Swasthya Bima Yojana, Senior citizen health Insurance Scheme (SCHIS), Central Government Health Scheme (CGHS), Employees’ State Insurance Scheme (ESIS), etc. The National Health Policy, 2017 has envisioned Health and Wellness Centres as the foundation of India’s health system which the scheme aims to establish.
The Central Government Health Scheme (CGHS) was started under the Indian Ministry of Health and Family Welfare in 1954 with the objective of providing comprehensive medical care facilities to Central Government employees, pensioners and their dependents residing in CGHS covered cities. This health scheme is now in operation with cities such as Bhubaneswar, Bhopal, Chandigarh, and Bangalore. The dispensary is the backbone of the Scheme. Instructions on these various matters have been issued from, time to time for the guidance of specialists and medical Officers. The Central Government Health Scheme offers health services through Allopathic and Homeopathic systems as well as through traditional Indian forms of medicine such as Ayurveda, Unani, Naturopathy, Yoga and Siddha.
Every year more than 6 crore Indians are pushed into poverty because of catastrophic out of pocket medical expenses. AB PM-JAY was launched on 23 September, 2018 at Ranchi, Jharkhand. The scheme envisions to alleviate the condition of 50 crore poor and vulnerable Indians.
PM-JAY is a health assurance scheme that covers 10.74 crores households across India or approx. 50 crores Indians.
It provides a cover of 5 lakh per family per year for medical treatment in empaneled hospitals, both public and private.
It provides cashless and paperless service to its beneficiaries at the point of service, i.e. the hospital.
E-cards are provided to the eligible beneficiaries based on the deprivation and occupational criteria of Socio-Economic Caste Census 2011 (SECC 2011).
There is no restriction on family size, age or gender.
All previous medical conditions are covered under the scheme.
It covers 3 days of hospitalization and 15 days of post hospitalization, including diagnostic care and expenses on medicines.
The scheme is portable and a beneficiary can avail medical treatment at any PM-JAY empaneled hospital outside their state and anywhere in the country.
So far, 25 States and Union Territories have adopted the PM-JAY scheme, except three states: Odisha, West Bengal and Telangana, and Union territory Delhi By February 2020, more than 12 crore e-cards have been generated and over 86 lakh people have taken benefit under this scheme. The number of public and private hospitals empaneled nationwide stands at 22,000.
The scheme has faced some challenges in its year and a half journey, mainly that of fraudulent medical bills.
There have been media reports of misuse of the Ayushman Bharat scheme by unscrupulous private hospitals through submission of fake medical bills. Under the Scheme, surgeries have been claimed to be performed on persons who had been discharged long ago and dialysis has been shown as performed at hospitals not having kidney transplant facility. There are at least 697 fake cases in Uttarakhand State alone, where fine of Rs one crore has been imposed on hospitals for frauds under the Scheme. However, unlike the earlier RSBY (Rastriya Swasthya Bema Yojana) era, plagued by lax monitoring of insurance fraud, AB-PMJAY involves a robust information technology infrastructure overseeing transactions and locating suspicious surges across the country. Many hospitals have been blacklisted and the constantly evolving fraud-control system will play a major role in streamlining the scheme as it matures. Initial analysis of high-value claims under PMJAY has revealed that a relatively small number of districts and hospitals account for a high number of these, and some hint of an anti-women bias, with male patients getting more coverage. Despite all efforts to curb foul-play, the risk of unscrupulous private entities profiteering from gaming the system is clearly present in AB-PMJAY.
Basic Principles of Medical Negligence: Need for Protection of Doctors

Hon’ble SC in a case of medical negligence decide on 10th February 2010, observed that on scrutiny of the leading cases of medical negligence both in our country and other countries especially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. [Para 94]
While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:
Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of another professional doctor.
The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.
SC observed that in our considered view, the aforementioned principles must be kept in view while deciding the cases of medical negligence. We should not be understood to have held that doctors can never be prosecuted for medical negligence. As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind. [Para 95]
When we apply well settled principles enumerated in the preceding paragraphs in dealing with cases of medical negligence, the conclusion becomes irresistible that the appellants have failed to make out any case of medical negligence against the respondents.
When the doctors lose the litigation against them, it is usually not because they were actually negligent. Mostly it is because of other reasons, some of them are as under: 1. Poor medical records 2. Poor communication skills 3. Poor grievance redressal mechanism at their hospital 4. Poor image in the society 5. No self-regulation at individual level or at the level of professional bodies 6. Lack of proper guidance when a legal notice or court notice is received 7. Proper reply is not prepared or proper supporting literature is not submitted 8. Credible expert opinions are not submitted 9. Sometimes extraneous reasons difficult to explain and difficult to prove It is very important for the professional bodies to form a credible team to educate, enlighten & prepare medical practitioners for preventing / facing medical litigation prudently. I find that in spite of so much harassment etc. due to the problem of medical litigations (civil & criminal) over these years, most medical practitioners and most professional bodies are still complacent about this issue.
BAYH-DOLE ACT

The Bayh–Dole Act or Patent and Trademark Law Amendments Act (Pub. L. 96-517, December 12, 1980) is United States legislation dealing with intellectual property arising from federal government-funded research. Sponsored by two senators, Birch Bayh of Indiana and Bob Dole of Kansas, the Act was adopted in 1980, is codified at 94 Stat. 3015, and in 35 U.S.C. § 200-212,[1] and is implemented by 37 C.F.R. 401
BIG FINES TO PHARMA INDUSTRY
On Monday, the Department of Justice announced that drug company GlaxoSmithKline agreed to pay a $3 billion fine, the largest health care fraud fine in the history of the United States. This fine is just the latest in a string of drug company penalties for improper promotion of drugs for “off-label,” or unapproved, uses. Here we take a look at six recent multi-million dollar fines that drug companies have agreed to pay for inappropriately, and in some cases illegally, promoting prescription drugs.

BIOMEDICAL WASTE MANAGEMENT
Q. How to recall color of BMW disposal bins inside Hospital?
Colored Biomedical Waste (BMW) bag disposal as per Indian Bio-Medical Waste Management Rules, 2016.
• R-Red Bin- Recyclable waste(R-R)- Red blood soaked (used) Rubber gloves, Rubber & Plastic tubes & IV sets.
• Y-Yellow Bin- pus(Yellow) soaked Cotton Gauze pieces & dressing, Microbiology Waste (infected pus(Yellow) producing Bacteria), Human anatomical waste (tissues, organs, fetal parts)- infected (pus filled -Yellow), Animal waste, Empty Blood bags, soiled (Yellow) linen & Contaminated Bedsheets, discarded cytotoxic drugs for Burning infective waste in Yellow fire during incarnation.
• W- White Puncture-proof bin – Whole (unbroken) metallic (White) needles, blades & sharp waste.
• Brown Cardboard Box with Blue Marking- Unbroken Broken glass (Nukila Glass in Neela (Blue lining Brown Box)) & Body implants(metallic).
• Black- Black & white paper(non-infectious) waste.
Q. Why BMW disposal is Important?
80% non-infectious, (kitchen waste, paper)
15% is infectious (dressings, anatomical wastes, blood bags)
5% is non-infectious but hazardous, (chemicals, drugs and mercury)
When this 20% of the hospital infectious material is mixed with 80%
Then all the 100% waste becomes hazardous and infectious, hence segregation should be at source.
Q. What is definition of BMW?
Bio-medical Waste (BMW) means any waste, which is generated during the diagnosis, treatment or immunization of human beings or animals or in research activities or in production or testing of biological or in health camps.
Q. Which institutions need to follow BMW rules?
Hospitals, Medical or surgical camps, Nursing homes, Vaccination camps, Clinics, dispensaries, Blood donation camps, Veterinary institutions, First aid rooms of schools, Animal houses, Forensic laboratories, Pathological laboratories, Research labs, Blood banks, Ayush hospitals, Clinical establishments, Research or educational institutions, Health camps.
Bio-medical Waste (Management) Rules, 2016 notified on March 28, 2016 by MoEFCC, Govt. of India under Environmental Protection Act, 1986.

Biosimilar
A biosimilar (also known as follow-on biologic or subsequent entry biologic) is a biologic medical product which is almost an identical copy of an original product that is manufactured by a different company. Biosimilars are officially approved versions of original “innovator” products, and can be manufactured when the original product’s patent expires. Reference to the innovator product is an integral component of the approval.
Bolam law and Professional Negligence
In conducting this inquiry on professional negligence, the Panel must:
develop and evaluate options for a requirement that the standard of care in professional negligence matters (including medical negligence) accords with the generally accepted practice of the relevant profession at the time of the negligent act or omission.
Bolam test
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 is an English tort law case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals (e.g. doctors): the Bolam test. Where the defendant has represented him or herself as having more than average skills and abilities, this test expects standards which must be in accordance with a responsible body of opinion, even if others differ in opinion. In other words, the Bolam test states that “If a doctor reaches the standard of a responsible body of medical opinion, he is not negligent”.

Books of accounts
Your income tax return must include income earned from all sources. This includes income earned from your practice, any rental income, income from fixed deposits and savings accounts and income earned from sale of any shares or property, called capital gains. There are 2 ways to calculate income from your practice. Either consider it like a business activity and deduct actual expenses from actual receipts to calculate its profit and loss and pay tax on it. Or opt for presumptive taxation.
Once your income is calculated from all sources, you can claim reduce your taxable income by claiming deductions under section 80 and pay tax on the remaining income. Start your income tax return here
What is presumptive taxation?
When you opt for presumptive taxation. Your income is ‘presumed’. Actual profit is not calculated. You can assume your profits to be 50% of your receipts. However, only those who have annual receipts of Rs 50lakhs or less can opt for this scheme. If your annual receipts exceed Rs 50lakhs, you must report them and deduct actual business expenses to compute profit (or loss). This profit may be less or more than 50% of receipts. Those who opt for presumptive taxes do not have to compute or report actual profits. Presumptive taxation for doctors has been introduced effective FY 2016-17. This scheme is available to individuals and HUF, if you are incorporated as a company, your profits cannot be presumptive. Also, you must be Resident in India as per the income tax act.
What are the benefits of presumptive taxation?
If you opt for this scheme, you do not have to keep books of accounts and no audit is required. This will help you save Rs. 20,000 easily that you would have to pay as fees to an accountant and auditor. The intent of law is to encourage small taxpayers to file tax returns and make compliance easy for them. But it may be wise to continue to keep at least some record of the transactions of your business.
You are also not required to pay advance tax in instalments; paying your entire tax dues by 15th March of the financial year will suffice. Don’t worry if you fail to do so, pay as soon as you can. Penal interest is applicable on delayed tax payment @ 1% calculated monthly until you file your return.
Do I need to keep accounting records of my practice?
Just like a patient must diligently maintain medical records, accounting records of your practice are also useful and, in some cases, mandatory. The threshold for keeping accounting records is low for doctors. If your annual receipts are more than Rs 1.5lakhs in each of the past 3 years, you should keep some form of financial books. Some records have been prescribed such as –
Cash book – A record of day to day cash receipts and payments. A record that shows cash balance at the end of the day or at best at the end of each month.
Journal – A journal is a log of all day to day transactions accounting transactions.
Ledger – A ledger where all entries flow from the journal, it can be used to prepare the financial statements.
Copies of bills – Photocopies of bills or receipts issued by you which are more than Rs 25
Original bills of expenditure incurred by you which are more than Rs 50
Following are the additional requirements for doctors –
• Daily cash register with details of patients, services rendered, fees received and date of receipt
• Details of stock of drugs, medicines, and other consumables used.
Those who opt for presumptive scheme are exempt from record keeping, but some basic bill book, receipt book, bank statements must be kept for cross-validation.
How to calculate annual receipts?
The term gross receipts are not specifically defined in the income tax laws. However, all your receipts directly because of your profession, must be considered. You may have other receipts such as from authorships, taking lectures, contributing articles, which may not be included in computing your gross receipts. If you have a significantly large number of other receipts – you should seek an expert’s help to sort this. At Clear Tax, our experts can guide you and file your tax returns. Check out our expert assisted plan here
When should I get my accounts audited?
Audit is mandatory in two situations. When your receipts exceed Rs 50lakhs in a financial year. Or when your receipts are under Rs 50 lakhs but your profit is lower than 50% and your total income is more than Rs 2.5Lakhs (i.e. total income is taxable). Basically, when your total income is taxable and profits are less than 50% of gross receipts.
Do I pay lower taxes on digital receipts?
The answer is no. The lower rate of estimated profit of 6% (instead of 8%) for digital receipts is only available to presumptive businesses. So, your assumed profit will be 50% of your total receipts, irrespective of whether they are in cash or digital mode.
Can I submit profits higher than 50% of receipts?
Yes, that is completely possible. You can opt for the presumptive scheme and still declare profits higher than 50% of receipts. But if your receipts are under Rs 50 lakhs and your expenses are lower than 50% of receipts, you’ll end up saving significant tax by opting for this scheme.
My profits are less than 50% of receipts?
If you claim your profits are lower than 50% of receipts, but your total income is taxable, (it exceeds Rs 2.5L) in such a situation, you will have to maintain books of accounts and get them audited as well.
I earn income from a business, besides income from my practice, how do I report?
As a doctor, you may be running another commercial venture, say you are running a medicines shop, or you run a nursing home, where fee is charged for a room etc. In such a case, you may have to report income from these business activities as a business and presumptive rate of tax will not apply. Presumptive tax will only be available to your income earned directly due to your profession. You can report a part of your income (professional income) as presumptive and balance income from a business can be calculated by claiming actual expenses, like running of any other business. In such a case, book keeping and audit rules may apply to the business activity, whereas presumptive activity may be exempt from these.
For how many years do I need to opt for this scheme?
Unlike presumptive businesses, there is no restriction for presumptive taxation for professionals. They can claim it one year and then opt out and then in the following year opt in again.
Which tax return do I need to file?
For presumptive income ITR-4 is applicable. In this form income from one house property, salary income can also be reported. However, if you have any capital gains income or you own more than one house property, you cannot file this form. You will have to file ITR-3.
Start your income tax return here
How is my income tax computed under presumptive scheme?
Rajesh is a doctor and has his own practice in Mumbai. He also works as a consultant in many reputed hospitals. He earned an income of ₹40 lakh in FY2016-17, that is between 1 April 2016 and 31 March 2017. In the normal course of things, without the benefit of presumptive tax, Rajesh’s taxable income (the amount she would need to pay tax on) would be something like this.
Taxable income without using presumptive taxation scheme
Total gross income for the year from consultancy and own practice
₹45 lakh
Work-related expenses that he plans to claim as tax deductions
• Travel & Transport Expense
• Meeting & Conferences Expense
• Communication Expense
• Assistant Salary Expense
₹15 lakh
Total taxable income (gross income – expenses)
₹30 lakh

If there was no presumptive taxation scheme, Rajesh would pay income tax on ₹30 lakh. But by availing the benefit of presumptive taxation, she can show her taxable income to be half of her gross income–that is ₹22.5 lakh.
Taxable income after availing presumptive taxation scheme
Total gross income for the year from consultancy and own practice
₹45 lakh
Presumed taxable income after availing presumptive taxation scheme
₹22.5 lakh

The presumptive taxation scheme allows her to save tax on ₹7.5 lakh. Let’s calculate how much tax she would actually save.
Without presumptive taxation
With presumptive taxation
Taxable income – ₹30 lakh
Taxable income – ₹22.5 lakh
Tax calculation as per slabs for FY16-17
Tax calculation as per slabs for FY16-17
Income
Tax
Income
Tax
Up to ₹2.5 lakh
₹0
Up to ₹2.5 lakh
₹0
From ₹2.5 lakh to ₹5 lakh
₹25,000
From ₹2.5 lakh to ₹5 lakh
₹25,000
From ₹5 lakh to ₹10 lakh
₹1,00,000
From ₹5 lakh to ₹10 lakh
₹1,00,000
From ₹10 lakh to ₹30 lakh
₹6,00,000
From ₹10 lakh to ₹22.5 lakh
₹3,75,000
Total
₹7,25,000
Total
₹5,00,000

As is apparent, by using the presumptive taxation scheme, Rajesh will be able to save ₹2.25 lakh in taxes. That is, he will have to pay ₹2.25 lakh less as income tax. Do note that 3% cess would be added to the taxable income in both cases.
Budget for health sector-IMA reaction.

IMA welcomes certain provisions for health sector in the budget presented today but still lacks the necessary allocations to mitigate the problems faced by the community in regards to have an accessible, affordable, accountable and scientific health care.
Primary figures of allocation to health sector are not at all satisfactory- IMA had demanded minimum 3% of GDP for health.
Also, an integrated & consolidated approach involving sanitation, drugs, nutrition dept under health is not considered.
1-IMA congratulates GOI for accepting IMA demand of setting more govt medical colleges by upgrading district hospitals, especially in unserved areas.
This is a welcome change in policy direction against the policy envisaged in NMC bill of unbridled privatization of medical education.
Now IMA demands that 50% of seats in this govt medical colleges should be reserved for the students of that district with a rider to serve in the same district. This will help in availability of MBBS doctors in rural areas.
IMA will fully cooperate for smooth functioning of this govt medical colleges especially by providing faculty.
2- TB Program-
Budgetary support for TB patients is a welcome move. IMA has been partnering the govt & will continue to do so in END TB program.
3- Ayushman Bharat scheme-
Even though the move to open 1.5 lacks health and wellness centers is a good move, the meagre allocation of 1200 crores translates to only Rs 80000 per center!
Still IMA promises to support this move in a PPP model.
4- NATIONAL HEALTH PROTECTION SCHEME, covering up to 5 lakh per annum per family for secondary and tertiary hospitalization for 10 crore families. But fund allocation for the cause not mentioned.
Taking base of Maharashtra govt similar scheme, GOI will need more than Rs 10000 crores will be needed for payment of premium to provide insurance cover.
More ever this scheme should include all small & medium hospitals so that all beneficiaries are really benefited. The past experience is that such schemes only benefit private insurance companies.
Patient should have the choice of selecting the doctor and hospital for his treatment. 5- Tax reliefs on premiums of health insurance is a welcome move.
Can A Doctor Be Arrested by Police?
Whenever a doctor anticipates that a negligence case can be framed against him from the patient’s side, he gets panicked and indecisive. What should be the immediate steps to avoid police arrest? Can doctors be arrested in all medical negligence cases? What should a doctor know about his rights, if arrested by the police? This article will provide an insight to these questions.
As discussed in our previous article titled “A Quick Revision of Criminal Laws Relevant to Doctors”, doctors must know the provisions in IPC to save doctors from false allegation and legal suits filed by the patient and his family. This article deals with the probable police arrest and its consequences if at all a situation like that arises in any case.
When should the police be informed?
There can be two specific set of situations where a doctor MUST inform the police and where the informing police are ADVISABLE to avoid future complications. A doctor has to inform the police without fail in following circumstances, failing to which might lead to penal consequences for the physician.
Cases of suspected homicide
Cases of suicidal deaths
Unknown, unconscious patient
Death on operation table
Suspected unnatural death
Sudden, unexpected, violent and unexplained death
Instant death after treatment or reaction of medicine
Married lady dying within seven years of marriage due to any reason.
There are few situations where it is advisable to inform the police. Such as
Undiagnosed death within 24 hrs. of admission or especially if there is any suspicion
Any cases of poisoning
Accidental deaths
In cases of hospital deaths if (a) accidents that are not related to medical management like fall from staircase etc. (b) unexpected or rare complications may occur sometimes like a child may vomit, aspirate the content and may die.
In cases of death due to negligence in treatment, there are no specific provisions or legal obligation to inform the police but in order to avoid untoward incidences or allegation of patient’s family, it is better to inform the police.
Brought dead cases: In such cases, if the cause of death is clear and not related to some medico-legal complications then it is not necessary to inform the police. If the cause of death cannot be ascertained, it is desirable to send the body for autopsy examination preferably with the help of the police.
It is advisable to suggest post-mortem in the following circumstances:
Whenever death is sudden, unexpected or unexplained,
Accidental deaths which may be roadside, domestic or industrial,
When the precise cause of death is needed for insurance claim purposes etc.
As a help to arrive at a final diagnosis.
Information to police shall preferably be in writing and the written acknowledgement should be obtained. If the information is telephonic one must note down the name, buckle number and designation of the police.
Can a doctor be arrested?
Doctors have no immunity against arrest (as any other citizen of India) for the various criminal acts as per the provisions of IPC or CPC of India. But whether a doctor can be arrested for the following reason is still debated.
Alleged medical negligence during day to day care of a patient,
Unexplained hospital deaths like Sudden Infant Death Syndrome etc.,
Postoperative complication or failure of operation;
Not attending or refusing a patient (who was not already under his care) who becomes serious or dies and
Not attending a case of a roadside accident.
The Supreme Court directives (Criminal Writ Petition no. 270 of 1988) in a roadside accident include:
The medical aid should be instantaneous. It is the duty of the registered medical practitioner to attend the injured and render medical aid, treatment without waiting for procedural formalities unless the injured person or guardian (in a case of minor) desires otherwise.
The effort to save the person and preserve the life should be the top priority, not only for the doctor but also of the police officer or any other citizen who happens to notice such an accident.
The professional obligation of protecting life extends to every doctor, whether at Government hospital or otherwise.
The obligation being total, absolute and paramount, no statutory or procedural formalities can interfere in discharging this duty.
Whenever better or specific assistance is required, it is the duty of treating doctor to see that the patient reaches the proper expert as early as possible.
Non-compliance of these directives may invite prosecution under provisions of Motor Vehicle Act or IPC (7).
If a FIR is lodged from the side of the patient’s family, a doctor can readily be arrested for not complying with the above guidelines. Therefore, it is wise for the doctor to lodge a FIR from his side beforehand stating the incidence happened whenever he anticipates that a nuisance can be made by the patient’s side. Further, a crisis management committee may be formed that includes doctors, social workers, legal personalities, politicians, press reporters etc. in the district or taluka level. The committee members may meet the police officers and request them for a complete investigation of the incidence and to avoid prosecution till the guilt is proved. The committee can also request the press reporters not to give unnecessary publicity to such cases. Some state government has formed such bodies where the medical negligence case is heard and decided by a group of related experts from the field and administrators.
Legal Rights of an Arrested Person
If in any case a doctor is arrested, the following rights of an arrested person should be kept in mind:
The arrested person shall be communicated to the particulars of offence and the ground for arrest. If the offense is bailable, then the person should be informed and the arrangement for the bail may be made.
The person shall not be subjected to more restraint than necessary to prevent his escape. If there are any offensive weapons belonging to the arrested person, these weapons may be seized.
The arrested person must be produced before a magistrate having jurisdiction in that case. No police officer shall detain in custody an arrested person for more than 24 hours unless a special order from a magistrate is obtained.
Anticipatory Bail: In order to avoid frivolous accusations, there is a provision for anticipatory bail. This may be granted as a protection in offences which are non-bailable. It is a direction to release applicant on bail if there is an arrest. Once granted it remains in force. Pre-requisites for anticipatory bail are: (i) there must be a reasonable apprehension of arrest, (ii) the alleged offence must be non-bailable, and (iii) the registration of FIR is not necessary.
Procedure for Bail: The accused is required to execute his personal bond at the police station with or without surety. The surety may be a close relative, a friend or a neighbor, who is required to undertake to pay the said amount in case of absconding of the accused.
As a precaution doctors can keep the following points in mind to avert a possible police arrest:
Inform police whenever necessary and extend all possible co-operation to the police.
DO NOT PANIC.
Furnish copies of medical records to police, court or relatives whenever demanded. Consent of patient may be taken while providing information to police.
Do not do unlawful and unethical manipulation and tampering of the documents
Follow the legal procedures or provisions. Consult your lawyer before giving any reply.
Have a valid informed consent for the treatment and preserve the documents, records especially in medico-legal, controversial or complicated cases.
Insist for post-mortem examination if the cause of death cannot be ascertained.
Involve medical associations, medico-legal cells, and voluntary organizations whenever a legal problem arises.
Do not neglect the treatment while completing legal formalities especially in serious or emergency situation.
There is a significant disjunction between legal standards and doctors’ awareness of those standards, thereby creating a significant source of liability for doctors, especially in countries like India. Therefore, it is an urgent need to develop legal awareness programs for clinical practitioners based on doctors’ identified needs and preferences.
References:
Tiwari SK, Baldwa M. Medical Negligence. Indian Pediatr 2001; 38: 488-495.
Joshi MK. Doctor and Medical Law. 2nd edition, Ahmedabad, 1995, pp 4-6.
Lele RD. The medical profession and the law: An overview. In: The Medical Profession and the Law, 1st edition, Mumbai, Sajjan Sons, 1992; p 9.
All India Reporter. Supreme Court Section, Nagpur 1989, 76: 2039.
Jhabwala NH. Indian Penal Code, 13th edition, Mumbai, C. Jamnadas & Company 1997; pp 17-18.
Do you think, in most cases, patients and his family exploit the lack of medico-legal knowledge of a doctor to frame false medical negligence case against a doctor?

Can you practice medicine ethically in India?
Can you practice medicine ethically in India? This is a million-dollar question facing every Indian doctor. This is also relevant to thousands of medical students who will become doctors of tomorrow and hundreds of thousands of Indian doctors working abroad, who want to return home but are put off by the character of Indian medical practice.

The problem in Indian medical profession is unique. The vast majority of Indian doctors are working in the private sector or as freelancers. In such a set-up, you are constantly fighting with your colleagues for work in a “market”. Markets are good, but only if properly controlled, and with some oversight from the regulators. The problem of this market is that there are little controls and the regulators (Medical Council of India and State Medical Councils) have largely proved to be ineffective.
In a well-functioning market, patients (the consumers) will know clearly their doctors’ professional skills, qualifications, results, feedback from others, fees etc. They will be able to compare doctors and choose wisely. Regulators will be working effectively and keeping a close eye on the profession for various medical malpractices.
However, the market is not working well. Patients do not have any other information about their doctors. The only thing they pretty much know is how much their doctor is charging. Results are immaterial as patients have no means to verify them anyway and lies and exaggerations are commonplace. In a very fee/charge sensitive environment, General Practitioners (GPs) are hence constantly driving each other down on pricing to attract patients. It then reaches a level where, in a civilized society, it is impossible to live on an earned wage that forces them to look for income elsewhere. The easiest source of that income is commission from laboratories and specialists for referrals. Patients are not aware that this is happening as they seemingly have a choice in deciding which labs or specialists they go to. Whatever little do they know is, that every single lab/specialist (the vast majority) will send their doctor the commission. In that sense, it is immaterial where they go.
From the point of view of specialists or laboratories, no matter how good you are, you need your general practitioner colleagues in medical profession to confirm that to the patients, as patients have no validated tools to be able to verify authenticity of any facts. In this situation, you become the biggest surgeon in town if you give out the biggest cuts to the general practitioners. If you are not so good or a new surgeon in the area, you have to work even harder!
Like the rest of India, there is a lot of black money circulating in the system, as most of the payments to doctors and labs by patients are cash with very few authentic receipts.
So, how can we even begin to solve this? I have following suggestions to make. Needless to say, it needs help from all stakeholders, if we are to even to begin to see a change.

  1. Medical Council of India and State Medical Councils should raise awareness about the cut practice and commissions and clearly explain to their members that it is both unethical and illegal to give and take commissions. Money should not play any consideration in whom they refer their patients to or who they advise their patients to go to? When money is involved, patients cannot be sure that their (doctors’) advice is not biased. They (Medical Councils) should even make examples of some doctors by cancelling their privileges to practice. It shouldn’t be too difficult to organize some sting operations!
  2. Doctors should start charging their patients more if they can’t survive on their income rather than supplementing it through unfair means. Government and medical councils should educate the public that it costs to study medicine and become a doctor and that it costs to live. This service can’t be provided for free. For free or subsidized healthcare, we should reinforce our state medical sector. Needless to say, we need to work on increasing the reach of insurance sector as well.
  3. Results of doctors and feedback from other patients etc. should be validated and made available to patients. In this context, we need mechanisms to ensure doctors engage in continuing medical education (CME) and have systems of auditing their practice.
  4. Tax authorities should ask doctors/labs/hospitals to provide their patients with proper receipts. They should close in on the black money being generated by hospitals and labs, which is then dished out to general practitioners through “marketing” channels.
  5. Media should keep a spotlight on these issues and monitor the situation periodically.
  6. Medical colleges and academicians in these institutions should make these issues a top priority item in medical curriculum.
    No doctor wants to work unethically. This is not why we join this noble profession. But doctors also have a life and a family. They also expect to work and live with dignity. It is up to the wider society to provide us with a mechanism, which is sustainable. Currently, we are stuck in a massive waterfall of declining standards, which is constantly dragging us down. Each individual is helpless in fighting this force. Together, we can change it. Are we all ready for it?
    Clinical Establishment Act- How will it affect the practicing dentist
    The Clinical Establishment Act 2010 became effective in Feb 2012 through an extraordinary gazette notification and is today applicable in 4 states with at least three more poised to adopt the same. There is no doubt that this is a landmark legislation which very few people in the dental profession noticed. One of the reasons is that, dentistry as an important clinical branch of health care has been grossly under represented. The DCI has represented the meeting of the national Council in two of its four meetings through its secretary. The minutes of the meetings are available on the website of the body (1). Scanning through the minutes it is surprising to see that while all the branches have strongly voiced their opinions, dentistry has not spoken out a single sentence (as per the recorded minutes). It must be said that the National Council has made an exhaustive list of the regulations required for starting and running of clinics. In fact, the requirement for a dental clinic is rather well formatted. It is divided into Dental Centre for a single dentist practice and a Dental Hospital for those with inpatient facility. The Dental Hospital requirements are a little difficult to fulfil- at least for the new practitioner starting in a metro city! Dr Anmol Kalha is the member from the Dental Profession and we hope that dentistry is well spoken for. The State Council will be the implementing authority through its district officers. The District registering committee will be nominated by the Collector and will have three members including a senior police officer and a representative from the profession. It is at this level that one can expect problems if any for the practicing dentist. The inspectors are nominated by the District authority.
    Since most of the States have yet to adopt the Act, it may be some time before all dentists face the nuts and bolts of regulation. We sincerely hope that it will not be a source of harassment for an already struggling profession. On the other hand, regulating practice may eliminate quackery to a large extent. More importantly it will ensure safety for the public.
    I thought I will touch upon a few of the requirements and comment on them so that eminent persons who will eventually represent us will be able to get an idea about how laws are likely to affect the common dental practitioner. I was recently told by someone that impossible guidelines like an OPG in every clinic etc. were suggested. On reading the clinical requirements, it is clear that these were exaggerations. It is titled as Standard No CEA/ Dental Hospital-38 and 39 for Dental Hospitals and Dental Centers respectively. This is unusual because the Code of Ethics Regulation prevents Dental Clinics from being called Hospitals. That may change because the new code of Ethics is almost ready as per information from the DCI.
    In any case the new requirements will cover all dental clinics including single person run establishments and exceptions are only for the armed forces. The format available on the website (2) is comprehensive and covers all specialties. The norms for infection control, cleanliness and safety (including bio and radiation safety) are quite rational and practical. However there appears to be some need for pragmatism in the space requirements. It says that for Dental Hospitals 30% of carpet area should be reception and circulation. 30% of carpet area for one Chair is expected to be 6 sq. meters of carpet space (i.e. 18×18= 324 Sq. Ft). In addition, 30% carpet area should be for ancillary purposes including sterilization, toilet etc. This means that a clinic should have a minimum of 1000 Sq. Ft for one chair. For every extra chair there must be an additional 60% or 600 Sq. Ft. I will leave it to the reader to decide if this is practical in a city like Mumbai. It does not say where the patients will be admitted. On the other hand, Dental Centers need only 60 Sq. Ft for a chair and 35 Sq. feet for reception etc. The 60Sq ft will be a little tight if a patient needs to be shifted after a syncope. I do not understand why one needs 5 times more space around a chair in the hospital category! There are several other small glitches including a number of inspections for bio safety, lift safety, drug expiry etc. While I think it is necessary, I am not sure how many dentists will be comfortable with buying Oxygen and other gases and all monitoring systems and equipment. Another difficult task will be the employment of ‘qualified’ assistance (diploma recognized by state dental council) and providing minimum wages according to the labor laws. Some requirements like waste disposal etc. are definitely important. Some others may need tinkering. Some other requirements may worry dentists and doctors. One is expected to put a price list for procedures for patients to see and the rates are decided by the competent authority, not the dentist. I am not sure if this will work for health care.
    My biggest issue with the construct of the legislation is the absence of the IDA inputs, whereas the IMA, Ayurveda, Unnani, Yoga and Homeopathy associations (not just councils) are very well represented. How in the world are they going to implement ground level regulation without technical inputs from the dental profession- particularly practicing dentists!
    CLINICAL ESTABLISHMENT ACT, IMA & MINIMAL STANDARDS
    clinical establishment act- basics
    why the government wants it.
    The government wants insurance in health sector. The insurance sector is hesitant to enter in an unregulated heath sector. Hence the act
    Why the government is making a mistake.
    Insurance was introduced in American health care because American health care is inaccessible and very expensive. Indian health care is accessible and cheap. Insurance will make it more expensive, with more paper work for overburdened doctors.
    Danielle Ofri on what plagues American medical system, one of the costliest in the world writes that insurance and consumer affair concerns makes American doctors do too much of paper work which is more than the time spent in treating patients. This is what we are trying to imitate. IMA proposes that section of the act which entails reporting data of the patient be withdrawn completely. Other than notifiable communicable diseases, no data will be provided to the government as it will hamper direct patient care, considering our large population.
    why the doctors don’t want it.
    The government does not provide any support monitory or otherwise to private sector which is catering to 70 % of the population. The conduct of private sector which works on the demands of the market forces which has proved to be the best regulator, has been exemplary. Just ask a passerby whether he will go to paid private service or free government services. He will definitely like to go to private sector.
    The market has seen the ill effects of inspector raj. Why the government wants to impose inspector raj when it is talking of deregulation and delicensing in other fields. It will only hamper an efficiently working sector.
    Private doctors have their constitutional rights about when and how they want to work and to choose type of work they are comfortable with. To ask any clinician for example a yoga teacher (who seems to be covered in the act as a clinical establishment) to stabilize a heart attack under threat of persecution is asking for trouble. Going by the same analogy will the government ask all the restaurant owners to feed a hungry incomer without any compensation. The whole idea is absurd. Ethically every doctor does his best to help the patient in distress. Wasting time in stabilization can result in accusations from angry and impatient relatives with threats of violence; and in this era of consumer courts, asking for disaster.
    There is huge shortage in trained manpower particularly nurses. To ask all hospitals to have trained nurses in small clinics and nursing homes may not be possible.
    Minimal standards list is like a list for essay for a competitive exam not taking into consideration that will ultimately will increase in the costs to the patient per se. With a poor Indian population American standard are being enforced. Brings to mind the COBRA, EMTALA AND 250 Yards rule of American health care. All very laudable but is American health care so good. It is prohibitively expensive and inaccessible; appointment can take months to materialize. So dear government, make your own laws, don’t ape America.
    The act lays down monitory penalties for noncompliance which are more than the penalties for INDIAN PENAL CODE. Are doctors doing any illegal activities to be harassed like that.
    Clinical Establishment Act . . . The long story
    The Vedas have long ago stated the fact that in kaliyug the do gooders would be hounded out and the corrupt would flourish. The clinical establishment act seems to fulfils this prophesy not in parts but in full measures
    Starting with COBRA and EMTALA in American health care legislation, the Indian government has also initiated its own version of COBRA AND EMTALA. The CLINICAL ESTABLISHMENT ACT. The point is -India is not America.
    What would be the disadvantage of the act?
    There are stringent and huge monitory penalties for non-registration by any medical professional which are more than many criminal penalties of IPC.
    What would the CEA lead to in most of the regions of the country –
  7. Healthcare which is already expensive would become more expensive.
  8. Healthcare would become inaccessible to most of the Indian poor unless they live in a state which has good public healthcare.
  9. Specialists would become more in demand. Their salaries would rocket sky-high
  10. Most of the small nursing homes and hospitals especially mission hospitals would have to be closed down.
  11. Healthcare would become an industry rather than a service
    This Act is a step towards corporatization of healthcare. All small units of healthcare like clinics will not be able to survive if this Act is introduced. It has been made keeping the foreign countries in mind and this is the biggest flaw in it. According to the Act, each clinic should have one nurse and pharmacist each despite the fact that the WHO, in a 2010 report, has revealed that India is grappling with shortage of medical staff.”
    “At least 70% of the total health services in the country are provided by clinics and they should not be restricted through the guidelines of this Act. Also, medical facilities in rural areas are already in a bad shape and with the requirements being asked at a medical establishment, it is next to impossible to run a clinic in rural areas. Not only will this be a problem for doctors as it needs high investment but also for the patients who will have to bear high cost.”
    It’s worthwhile looking at a statement made by the IMA back in 2010 in this regard:
    “The sincerity of the govt. may be appreciated, if it initiate[s] and strives to eradicate the quacks and quackery from our country which has been crippling our society’s health in the guise of providing first-aid care….[putting] corporate hospitals and rural area hospital in same line to accredit-ate is unjustifiable as it favors corporatization of health care and jeopardizing the health services within reach of common man”
    Unresolved issues in the Act
    While in many ways a regulatory framework is essential, there are still unresolved problems with the Act. Some of them are listed here.
    Section 12(2)
    It states thus: “The clinical establishment shall undertake to provide; such medical examination and treatment as may be required to stabilize the emergency medical condition of any individual who comes or is brought to such clinical establishment.”
    What this boils down to is that all clinical establishments are expected to stabilize a patient in an emergency medical condition before transferred to another hospital.” But one doesn’t have to stretch the imagination to see that its interpretations can vary.
    The original Supreme Court directive on this regard was meant for providing life-saving first aid for victims of accidents. It’s quite unrealistic-and potentially unfair to the doctors to extend this to any and all emergency situations.
    Lack of provision for extra machinery for additional workload of regulating private clinics
    In this backdrop, it’s hard to see how a fair implementation of the Act is possible-affecting not just the doctors but also the patients. For instance, the Act has called for the establishment of the National Council-which is supposed to have a special secretary: the director-general (DG) of health services, Ministry of Health and Family Welfare as an ex-officio member and chairperson.
    This implies that important decisions could be delayed if the DG cannot squeeze out more time for this additional task. There are to be no additional appointments at the state level to manage this work. And at the district level, the situation could be potentially worse. For in the districts the chairperson and the secretary of the registering authority are to be the district collector and the district health officer respectively. Needless to say, this increases their workload by a long stretch, causing further delays in getting things done.
    Those who wish to appeal against the order of the district health authority must approach the state council
    Even if a marginal number of establishments from a state wish to go for an appeal, this would amount to a substantial volume of appeals from within distinct district registering authorities. But the doctors must approach the state capital for matters related to the disputes. That’s on ordeal that could be avoided with a simplified provision.
    These are but a few of the issues that one finds in the Act, giving the doctors substantial basis for opposing it.
    Such issues point to the necessity for a more involved discussion between the government and the medical fraternity. The key issue here is the provision of adequate healthcare to a huge number of people. And it’s the state’s job to ensure that care-givers, regardless of the size of their institutions are able to provide that in the best possible manner, facing minimal hassles.
    I personally have much misgiving to the regulations of the Act in the present form.
  12. In a country like India which is very vast and the majority of the population (about 70%) lives in villages, it is going to be very difficult for anybody to set up hospitals in semi-urban and rural areas. The stipulations are going to be very hard to meet that setting up a hospital would hardly be a profitable venture. The other side is that even if hospitals are set up, the cost of care would be quite expensive. Almost all of us have mostly depended on small clinics or nursing homes which are run by a single doctor with the help of a nurse or by a doctor family. In fact, quite a lot of us may have knowingly or unknowingly gone to an unqualified practitioner or quack for our small medical problems. At present I live in a place where almost 95% of the population go to a quack first for treatment. They have bungled up cases where the patient ultimately died. However, nobody has been able to do anything. The only reason being that these guys are the only people who have some knowledge about medicine in remote settings. And they come very cheap. The regulations appear to be giving more importance for corporate multi-specialty hospitals. This is quite protectionist in nature towards encouraging a corporate model which will ensure that healthcare is only available at a premium in the absence of an efficient public health care system.
  13. There is enough scientific evidence that family practice and nurse practitioner based primary care is as efficient, and rather more people friendly than specialist doctors in full-fledged hospital set ups.
  14. If you consider any of the complex clinical conditions one can think of, the primary level of care is much more important than high tech healthcare. We have examples of countries like Brazil and South Africa, where Family Medicine graduates have major role in healthcare. The present regulations would only increase costs. If you look at the regulations, the first level of treatment is going to be a Level 1 Hospital which needs to have a staffing of at least 6 for a place which do not have inpatient care.
  15. Most of our tertiary care centers are burdened with primary care. It is not uncommon for any faculty in our medical colleges who end up complaining that most of the patients that they see could have been easily managed at a Primary Health Centre or even by a Nurse practitioner. The ultimate result is that quite a many of our specialists are over-worked to the extent that they are not able to do justice to the specialized skills they’ve obtained.
    If we can think of changes that can be proposed, I would propose the following –
  16. Legalizing Nurse-Practioners Care: Nurses should be trained to treat simple illnesses allowed to prescribe medicines. A major need would be to allow a category of health centers which are entirely run by nurses who may or may not supervised by doctors. At least for populations who have poor access to healthcare, they would be a major boon. In fact, such nurse-led primary care centers have already been in existence in the country, mainly facilitated by various congregations of the Catholic Church.
  17. Provision for single doctor healthcare centers: We are all very familiar with such single doctor establishments. A 100 square feet room with a familiar friendly face to whom you ran when you had a toothache or a cold. You pay about 50 rupees and then you pay some more for the medicines and some basic investigations. The whole process took not more than half an hour. If the regulations in its present form are accepted and finalized, the family doctor would be history.
    Section 55 of the act enlists the ‘Rights of patients’ as follows:
    (1) The patients and / or Person authorized by patient shall receive the relevant information about the nature, cause of illness, proposed care, and the expected results of treatment, possible complications and the expected costs.
    (2) Confidentiality of treatment and privacy during examination. Examination of female patient should be carried out in presence of female attendant.
    (3) Person suffering from HIV/AIDS shall not be denied care.
    (4) Complaint register should be made available in Clinical establishment.
    (5) List of Specialists along with Qualifications Should be displayed at prominent place in Clinical establishment.
    (6) Patient has the right to seek second opinion. All medical and diagnostic reports shall be made available to the patient or authorized person to facilitate second opinion.
    (7) Patient and / or Person authorized by patient or guardian if patient is minor has a right to have an access to his / her clinical records during admission to Clinical establishment and Photocopy of indoor papers should be made available on demand after discharge.
    (8) Discharge card should be issued to patient mentioning: Diagnosis, clinical findings, results of investigations, treatment given, the patient’s condition at the time of discharge and advice to patient.
    (9) Patient has right to choose registered pharmacy or recognized diagnostic center at his / her own responsibility.
    (10) Protection ensured by statutory guidelines and legally enabled provisions applicable to Clinical Establishments which are conducting clinical research.
    (11) Informed consent prior to potentially hazardous tests / treatment.
    Thus, if the intents of the Act are preserved, it is likely to benefit both-the patients and the health care service providers alike.
    Cl. 5 empowers the government to develop ‘proper’ as well as minimum standards for healthcare. The latter alone is to be applied in reviewing the state of any facility. In a country with limited information about the nature and quality of healthcare, no national program for development of practice guidelines or medical review criteria (World Bank Report, 2003) in addition to vast regional and social disparities, creating such standards will be quite a difficult task. The RWG acknowledges this (para 37) and being a long-drawn process, recommends delinking it from registration (para 40(x)), a view incorporated in the draft bill.
    Cl. 10 designates the District Health Officer (DHO) or Chief Medical Officer (CMO) as the district registering authority for registration of clinical establishments in each district. The DHO/CMO also shoulders responsibilities for the management of government facilities in that district. This leads to a conflict of interest.
    .
    . How will better regulatory standards impact this? Cl. 42-44 allow the government to levy fines for failing to conform and a proviso to cl. 32(3(b)) allows for the institution to be restrained from ‘carrying on’ if there is imminent danger to the health and safety of patients. As mentioned before (vide supra), with the DHO/CMO holding overall responsibility for government facilities in the district, the ensuing conflict of interest makes it quite unlikely that he/she would be willing to take strong action against erring individuals or facilities. Apart from this, the coercive impact is blunted as any fine levied is merely one arm of the government paying another. There may be more severe consequences if a facility is actually forced to shut down for non-compliance. That is however likely to be a rare event; if it is serious enough to scandalize the government or even otherwise jolt it into action, the finger will once again point to the very DHO/CMO who ordered it. Thus, even if better accountability standards are developed and adopted, these constraints are likely to hamper their effective implementation.
    The Indian Medical Association (IMA) which has consistently resisted state regulation, not surprisingly, came out against this particular effort also. As it alleges, this is, in a sense, a return to the license-permit raj with registration and inspection becoming potential focal points of corruption.
    The Act applies to all “clinical establishments” defined under Section 2 (c). The definition is an unnaturally wide one, and includes hospitals, maternity homes, nursing homes, dispensaries, clinics, sanatoriums and institutions that offers services or facilities requiring diagnosis, treatment or care for illness, injury, deformity, abnormality or pregnancy, in any recognized system of medicine. “Recognized system of medicine” under the Act covers Allopathy, Yoga, Naturopathy, Ayurveda, Homeopathy, Siddha, and Unani systems of medicine, as well as any other system of medicine that may be recognized by the Central government. Every conceivable range of treatment is sought to be included within the parameters of the Act. Under Section 11 of the Act, no person can run a clinical establishment unless it has been duly registered in accordance with the provisions of the Act. A severe monetary penalty is provided under the Act for carrying on an establishment without registration.
    This in itself would not be overly onerous, if it was not for the extremely unreasonable standards that the Act mandates every clinical establishment, in every recognized system of medicine, to have. Section 2 (d) of the Act incorporates a very vast definition of ‘emergency medical condition’ (which includes symptoms of sufficient severity, including severe pain, that may cause serious bodily impairment or dysfunction), and imposes on every clinical establishment, the duty to provide facilities ‘to stabilize’ an ‘emergency medical condition’ and to provide such medical treatment necessary to assure within reasonable medical probability, that no material deterioration results during the transfer of the individual from a clinical establishment. What this effectively means is that if a person has a heart attack and is taken to a Yoga center, the Yoga center must provide for the minimum medical treatment necessary to ‘stabilize’ him, in terms of the definition above. Quite clearly, this seems like an unworkable and even an unconstitutional onus to impose.
    The above features of the Act curtail the right of medical practitioners to carry on their occupation, under Article 19 (1)(g) of the Constitution of India, 1950. The Act forces clinical establishments to provide services that they may not wish to provide at all. Implicit in the right to carry on an occupation under Article 19 (1)(g) is the right not to carry on a particular occupation. While this obligation is imposed, the Act is completely silent on how these clinical establishments will be remunerated for the services to be provided under the Act. This obligation of the State to improve public health is being transferred to the private establishments, in the guise of regulation.
    The Act also seems to suffer from the vice of excessive delegation of non-delegable functions. Section 3 of the Act establishes a ‘National Council’ with the powers of classifying all clinical establishments and developing minimum applicable standards. Under Section 12 of the Act, every clinical establishment must have these prescribed conditions of minimum standards and requirements necessary for registration and continuation. Therefore, the Act purports “to prescribe minimum standards of facilities and services” and to “determine the standards for clinical establishments”. No such prescription of any standards for facilities and services, are however discernible from the text of the Act. Instead, the Act delegates this essential legislative function to the Central Government and the National Council, empowering them to prescribe the necessary standards. To impose a stringent regulatory regime, without prescribing the parameters of the regime and any guideline based on which the delegate can formulate minimum standards, seems to me an abdication of the constitutional duty to lay down the law and an unconstitutional delegation of non-delegable powers to the Executive.
    Not unsurprisingly, a lot of medical associations and doctors who have become aware of this legislation, are strongly opposing it. The Act, applicable to the Union Territory of Chandigarh, was recently challenged in the Punjab and Haryana High Court, but the challenge was withdrawn as premature because the Act was yet to come into force through a notification. Nevertheless, what is being argued is that, the conditions that are sought to be imposed under the Act, can only be provided by large scale, multi-specialty hospitals, and therefore in the guise of providing a regulatory framework, the Act will virtually eliminate small and medium-scale clinical establishments, creating a monopoly in favor of large hospitals.
    The Act therefore may have the completely opposite effect of the object it seeks to achieve. Instead of improving the standards of public health, it may lead to depriving several millions of people of adequate healthcare facilities, which are provided by individual doctors or small clinical establishments. While the regulation of clinical establishments is important, the Act as it stands today, is discriminatory and vague, and in my opinion, will not meet the strong constitutional objections that will be raised against it in the future.

The bill unleashes license raj with powers of penalties up to 5 lacs. The registering authority can impose fines for noncompliance and if a CE fails to pay the same, it would be recovered as an arrears of land revenue.
The penalties are stringent and for first offence the penalties are more than that in IPC. For first offence it is 1000 INR, then for second offence it is 50000 and for third offence it is 5 lacs. Disobeying any direction or obstruction to inspection entails Rs 5 lac penalty.
The bill unleashes license Raj with draconian powers to the inspectors with little provision for appeal.
Are doctors doing some illegal work to be harassed like this
IMA proposes that the act should not be implemented at all. If at all government is adamant and hell bent it should be such the single doctors’ clinics to be considered for minimal registration only without applying strict rules. The provision should be prospective in implementation and old clinics and hospitals should be excluded.
IMA wants that only those establishment with indoor facilities should be included in the act. Also, till date existing establishments should be exempted from the provisions of the act.
IMA Proposes that the requirements of pharmacist and clinical psychologists in various places should be done away. Pharmacists are not needed as most drugs are formulated and psychologists are mostly non-medical persons masquerading as doctors.
IMA proposes that the ethics and rules are different and should not be intermixed. Stabilizing a patient is ethical and making a rule is like asking an inappropriate person to treat the disease and waste time in referral.
Danielle Ofri on what plagues American medical system, one of the costliest in the world writes that insurance and consumer affair concerns makes American doctors do too much of paper work which is more than the time spent in treating patients. This is what we are trying to imitate. MA proposes that section of the act which entails reporting data of the patient be withdrawn completely. Other than notifiable communicable diseases, no data will be provided to the government as it will hamper direct patient care, considering our large population.
Minimal standards of clinical establishment
IMA proposals are …

The bill unleashes license raj with powers of penalties up to 5 lacs. The registering authority can impose fines for noncompliance and if a CE fails to pay the same, it would be recovered as an arrears of land revenue.
The penalties are stringent and for first offence the penalties are more than that in IPC. For first offence it is 1000 INR, then for second offence it is 50000 and for third offence it is 5 lacs. Disobeying any direction or obstruction to inspection entails Rs 5 lac penalty.
The bill unleashes license Raj with draconian powers to the inspectors with little provision for appeal.
Are doctors doing some illegal work to be harassed like this
IMA proposes that the act should not be implemented at all. If at all government is adamant and hell bent it should be such the single doctors’ clinics to be considered for minimal registration only without applying strict rules. The provision should be prospective in implementation and old clinics and hospitals should be excluded.
IMA wants that only those establishment with indoor facilities should be included in the act. Also, till date existing establishments should be exempted from the provisions of the act.
IMA Proposes that the requirements of pharmacist and clinical psychologists in various places should be done away. Pharmacists are not needed as most drugs are formulated and psychologists are mostly non-medical persons masquerading as doctors.
IMA proposes that the ethics and rules are different and should not be intermixed. Stabilizing a patient is ethical and making a rule is like asking an inappropriate person to treat the disease and waste time in referral. If he dies in time wasted in stabilization in wrong hands who is responsible
Danielle Ofri on what plagues American medical system, one of the costliest in the world writes that insurance and consumer affair concerns makes American doctors do too much of paper work which is more than the time spent in treating patients. This is what we are trying to imitate. MA proposes that section of the act which entails reporting data of the patient be withdrawn completely. Other than notifiable communicable diseases, no data will be provided to the government as it will hamper direct patient care, considering our large population.
Minimal standard of psychiatry clinic.
There are psychiatrists who are using ECT, there are that don’t. A mandatory requirement of ECT Machine with EEG monitoring with boles apparatus is suggested.
An annual maintenance record to equipment is mandatory.
Blood storage unit is mentioned
IMA proposes these be scrapped.
Minimal standards for deaddiction center.
Requirement of MBBS DOCTOR
one nurse head, general nurses and two nurses for ICU/OT/HDU
ONE LAB technician
ECG technician
dietician
physiotherapist
psychologists
medico social worker
driver
ambulance
data entry operators
policy manpower
annual maintenance contracts
laboratory
imaging
pharmacy
sterilization
laundry
kitchen
medical gas
blood bank
ambulance service
IMA PROPOSES THAT All THE ABOVE Be SCRAPPED
PSYCHIATRY SERVICES IN HOSPITAL
MBBS DOCTORS FOR DAY AND ANOTHER FOR NIGHT
NURSING HEAD, NURSES AND TRAINED NURSES FOR ICU, OT AND HDU
PHARMACIST
LAB TECHNICIANS
X RAY TECHNICIAN
ECG TECHNICIAN
DIETICIAN
PHYSIOTHERAPIST
PSYCHOLOGISTS
MEDICO SOCIAL WORKER
MRD OFFICE STAFF
AMBULANCE
DRIVER
DATA ENTRY OPERATOR
HOUSE KEEPING
RAPID RESPONSE TEAM
BLOOD STORAGE UNIT
BOYLES APPARATUS
LABORATORY
IMAGING
KITCHEN
LAUNDRY
MEDICAL GAS
IMA FEELS ALL THESE ARE UNNECESSARY AND BE SCRAPPED. FOR EXAMPLE, ALL PSYCHIATRIC WORKERS USES already sterilized STERIWARE SYRINGES.WHAT IS THE NEED FOR STERILISATION equipment
CLINICAL ESTABLISHMENTS ACT RULES

The Clinical Establishments (Registration and Regulation) Rules, 2010 Draft Rules for the Central Government These rules may be called The Clinical Establishments (Registration and Regulation) Rules (Central Government), 2010 These rules extend to the whole of the States of Arunachal Pradesh, Himachal Pradesh, Mizoram, Sikkim and in any other State which adopts this Act under clause (1) of Article 252 of the Constitution and the Union Territories of Chandigarh, NCT of Delhi, Dadra & Nagar Haveli, Puducherry, Andaman and Nicobar Islands, Daman and Diu and Lakshadweep It shall come into force from the date of notification of these Rules in the Official Gazette. The Rules shall be applicable to various categories of clinical establishments in a phased manner, as may be notified from time to time. Definitions In these rules, unless the context otherwise requires: a) ‘Act means the Clinical Establishments (Registration and Regulation) Act 2010 b) ‘Rules’ means the Clinical Establishments (Registration and Regulation) Rules, 2010 c) ‘Authority1 means the district registering authority set up under Section 10 of the Act. d) ‘Certificate’ means certificate of registration issued under section 30; e) ‘Clinical Establishment’ means (i) a hospital, maternity home, nursing home, dispensary, clinic, sanatorium or an institution by whatever name called that offers services, facilities requiring diagnosis, treatment or care for illness, injury, deformity, abnormality or pregnancy in any recognized system of medicine established and administered or maintained by any person or body of persons, whether incorporated or not; or (ii) a place established as an independent entity or part of an establishment referred to in sub-clause (i), in connection with the diagnosis or treatment of diseases where pathological, bacteriological, genetic, radiological, chemical, biological investigations or other diagnostic or investigative services with the aid of laboratory or other medical equipment, are usually carried on, established and administered or maintained by any person or body of persons, whether incorporated or not, and shall include a clinical establishment owned, controlled or managed by (a) the Government or a department of the Government; (b) a trust, whether public or private; (c) a corporation (including a society) registered under a Central, Provincial or State Act, whether or not owned by the Government; (d) a local authority; and (e) a single doctor, but does not include the clinical establishments owned, controlled or managed by the Armed Forces constituted under the Army Act 1950, the Air Force Act 1950 and the Navy Act 1957. f) ‘Emergency Medical Condition’ means a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) of such a nature that the absence of immediate medical attention could reasonably be expected to result in: (i) placing the health of the individual or with respect to a pregnant women, the health of the woman or her unborn child, in serious jeopardy; (ii) serious impairment to bodily functions; or (iii) serious dysfunction of any organ or part of a body
g) ‘National Council’ means the National Council for clinical establishments established under section 3 of the Act h) ‘Prescribed’ means prescribed by rules made under this Act by the Central Government or, as the case may be, the State Government; i) ‘Recognized System of Medicine’ means Allopathy, Yoga, Naturopathy, Ayurveda, Homoeopathy, Siddha and Unani System of medicines or any other system of medicine as may be recognized by the Central Government; j) ‘Register” means the register maintained by the authority, State Government and the Central Government under sections 37, 38 and 39 respectively of this Act containing the number of clinical establishments registered; k) ‘Registration’ means to register under section 11 and the expression registration or registered shall be construed accordingly; I) ‘Schedule’ means the Schedule appended to this Act; m) ‘Standards’ means the conditions that the Central Government may prescribe under section 12, for the registration of clinical establishments from time to time; n) ‘State Government, in relation to a Union Territory’, means the Administrator thereof appointed under article 239 of the Constitution; and o) To stabilize’ (with its grammatical variations and cognate expressions) means, with respect to an emergency medical condition specified in clause (f), to provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a clinical establishment. The words and expressions used herein and not defined but defined in the Act shall have the same meanings respectively assigned to them in the Act. The National Council for Clinical Establishments Establishment of the National Council for Clinical Establishments the Central Government by way of a Notification shall constitute a National Council for Clinical Establishments. The establishment of the National Council shall be as defined in Section 3 of the Act Appointment of Secretary of the National Council by the Central Government The Central Government shall appoint an officer of the rank of Joint Secretary dealing with the subject of Clinical Establishments in the Ministry of Health & Family Welfare as the Secretary, National Council under Section 3 (10) of the Act. The term of office of Secretary of the National Council shall be for a period of 3 years. The Secretary of the council will be responsible for the control & management of the secretariat of the council and supervision of the other employees of the Council and perform such other duties as may be required of him/her by the Council for the purposes of the Act. He shall attend the meetings of the Council. The Central Government will provide the National Council with such other secretarial and other staff as deemed necessary by it under Section 3 (10) of the Act. The powers and duties of the other employees shall be such as may be laid down from time to time in the standing orders as may be framed for the purposes by the National Council. Functions of the National Council for Clinical Establishments the National Council shall: x
(a) Compile and publish a National Register of clinical establishments within two years from the date of the commencement of this Act; (b) Classify the clinical establishments into different categories; (c) Develop the minimum standards and their periodic review; (d) Determine within a period of two years from its establishment, the first set of standards for ensuring proper healthcare by the clinical establishments; (e) Collect the statistics in respect of clinical establishments (f) Perform any other function determined by the Central Government from time to time. Sub – Committees of the National Council The National Council shall at any time constitute sub-committees for such periods, not exceeding two years, for the consideration of particular matters related to : O Categorization of clinical establishments; O Development of minimum standards and personnel for various categories of clinical establishments and their periodic review; O Compilation and publication of a National Register of clinical establishments; O Collection of statistics from clinical establishments and O Any other function determined by the Central Government from time to time. A motion for the appointment of each sub-committee shall define the functions of each subcommittee, number and nature of members to be appointed thereon and timeline for completion of tasks. At the time of formation of each sub-committee, it should be ensured that there is adequate representation from across the country in each committee from experts in the relevant fields across the private sector, public sector and/its organizations, non-governmental sector, professional bodies, academia and research institutions amongst others. The Chairperson of every such sub-committee shall be appointed by the National Council at the time of the appointment of the sub-committee. The proceedings of the meetings of the sub-committees shall be preserved in the form of minutes which shall be authenticated after confirmation by the chairperson of the subcommittees. Any decisions taken by the sub-committee/s shall be placed before the National Council at its next meeting for its consideration and approval. The National Council of Clinical Establishments shall request the State / Union Territory Councils to provide inputs for the consideration of particular matters. If required, the State / Union Territory Council shall at the request of the National Council and / or as determined by the Central Government constitute sub-committee/s consisting of members of the state and UT council and field experts for such period not exceeding one year, for the particular matter. Determination of standards of personnel, facilities and services (including standards for permanent registration); classification of clinical establishments by the National Council The minimum standards of facilities and services and personnel for different categories of Clinical Establishments for permanent registration shall be submitted by the National Council to the Central Government to be notified from time to time under Section 5 (c) (d) read with Section 7, Section 12 (1) (i) (ii) and Section 13 (1) (2), Section 28 of the Act. The Clinical Establishments of different systems of medicines under Section 13 (1) have been classified into the categories as prescribed in CG1 Annexe and the Central Government will have the power to add, delete or modify such categories, as it deems appropriate from time to time, based on the recommendations of the National Council established under this Act. The National Council shall constitute sub-committees having adequate representation from across the country including experts in the relevant fields across the private sector, public sector and/its organizations, non-governmental sector, professional bodies, academia and research institutions amongst others for such period, not exceeding two years, for determination of minimum standards and personnel for different categories of Clinical Establishments under Section 5 (c) (d) read with Section 7, Section 12 (1) (i) (ii) and Section 13 (2) of the Act, in particular, the National Council shall have regard to local conditions while prescribing the standards of personnel, facilities and services for different categories of clinical establishments.
Once the standards are developed, the National Council shall prepare the application form for permanent registration, including format for submission of evidence that different categories of clinical establishments have met the requirements of minimum standards and personnel. The form and format developed shall come into effect after notification by the Central Government. Conduct of business of meetings of the National Council Every meeting of the National Council shall be presided over by the Chairperson Time and Place of and Preparation of Business for Meetings of the National Council The meetings of the National council shall ordinarily be held at Delhi or at such other place in India and on such dates as may be fixed by the Council, The National Council shall meet every month till such time as standards are developed. Thereafter, the Council shall at the minimum meet every three months. Notice of Meeting Notice of every meeting other than a special meeting called shall be issued to each member of the Council not less than 15 days before the date of the meeting. Quorum, Call for Meeting, Minutes One – third of the total number of members of the National Council shall form a quorum and all actions of the Council shall be decided by a majority of the members present and voting. The notice and agenda of every such meeting of the National Council shall ordinarily be given 15 days before the meeting by the Secretary of the National Council. A copy the minutes of each meeting of the National Council shall be submitted to the Chairperson within 7 days of the meeting and after having been approved by him/her shall be sent to each member of the Council within 15 days of the meeting. If no objection to their correctness is received within 10 days of their dispatch, any decisions therein shall be given effect to, provided that the Chairperson may, where in his opinion it is necessary or expedient so to do, direct that action be taken on the decision taken in the meeting. The proceedings of the meetings of the Council shall be preserved in the form of minutes which shall be authenticated after confirmation by the signature of the Chairperson. Allowances for members of the National Council The central government officials who are members of the National Council for Clinical Establishments under sub-section 3 (5) of the Act shall not be paid any allowances. The travel and daily allowance for state government officials shall be paid by the respective States / UTs. The non-official members of the Council shall be paid travel and daily allowance in accordance with the rules of the Central Government for Class I officials as applicable from time to time. Resignation and filling of casual vacancies A member desiring to resign his seat on the National Council shall send his resignation in writing to the Chairperson and every such resignation shall take effect from the date mentioned by him in this behalf or in case no such date is mentioned, from the date of the receipt of his letter by the Chairperson after confirmation from the member concerned about his resignation. When a casual vacancy occurs by reason of death, resignation or otherwise of a member, a report shall be made forthwith by the Chairperson to the Central Government which shall take steps to have the vacancy filled by nomination or election, as the case may be. Disqualification for Appointment of Member A person shall be disqualified for being appointed as a member of the National Council if she/he a) has been convicted and sentenced to imprisonment for an offence which, in the opinion of the Central Government, involves moral turpitude: or b) is an undischarged insolvent; or c) is of unsound mind and stands so declared by a competent court; or
d) has been removed or dismissed from the service of the Government or a Corporation owned or controlled by the Government; or e) has, in the opinion of the Central Government, such financial or other interest in the Council as is likely to affect prejudicially the discharge by him of his functions as a member. Register of Clinical Establishments Every State Government shall maintain a State Register of Clinical Establishments in digital format containing the particulars as prescribed in CG3 Annexe under Section 38 of the Act District Registering Authority Qualification and the terms and conditions for the members of the authority The Central Government prescribes that 3 members of the District Registering Authority under Section 10 sub-section (1) clause (c) shall be nominated by the District Collector /District Magistrate and they shall include one representative from the City Police Commissioner (or his/her nominee) or SP or SSP, (as the case may be); one representative from a reputed Non-Governmental Organization working in the district / State in the area o health and related issues for a minimum period of 3 years and one representative from i professional medical association or body, having jurisdiction in the district or at the state level (as the case may be) The term of office for the representative from the NGO and the professional medica association or body shall be for a period of 3 years. If a casual-vacancy occurs in the office of any other members, whether by reason of death, resignation or inability to discharge, functions owing to illness or any other incapacity, such vacancy shall be filled by the District Collector/District Magistrate by making a fresh appointment and the member so appointed shall hold office for the remaining term of office of the person in whose place s/ he is so appointed. The State Government shall include the members in the District Registration Authority for each District as prescribed by the Central government in clause 52 (d) under section 10 (1) (c) of the Act Procedures under which the powers of the authority may be exercised by the District Health Officer or Chief Medical Officer for the purpose of provisional registration of clinical establishment The district registering authority shall have the power to grant, renew, enforce or cancel registration of any clinical establishment in accordance with the provisions and rules of the Clinical Establishments (Registration and Regulation) Act 2010 as per procedure prescribed under Section 14 (1) (2) (3) (4) (5); Section 15; Section 16 (1) (2); Section 17; Section 19; Section 22; Section 23 (1) (2) (3); Section 24; Section 25; Section 26; Section 29; Section 30 (1) (2) (3) (4); Section 32 (1) (2) (3); Section 33 (1) (2) (3) (4); Section 34 and Section 36. The District Registering Authority shall be responsible for O Grant, renewal, suspension or cancellation of registration for any clinical establishment O Enforcing compliance with the provisions and rules of the Clinical Establishments (Registration and Regulation) Act 2010 O Investigation of complaints of breach to the provisions of this Act or the rules made thereunder and take immediate action; O Preparation and submission of report to the State / Union Territory Council, on a quarterly basis containing details related to number and nature of provisional and permanent registration certificates issued; included those cancelled, suspended or rejected O Reporting to the State / Union Territory Council on a quarterly basis on action taken against non-registered clinical establishments operation in violation of the Act The District Health Officer or the Chief Medical Officer (by whatever name called) shall exercise the powers of the district health authority as per procedure outlined in the Act The Convener of the District Registering Authority may also perform such functions as maybe assigned to him / her by the Chairperson from time to time and the Rules framed by the State government.
Maintenance of records and reporting by clinical establishments Every Clinical Establishment shall maintain medical records of patients treated by it and health information and statistics in respect of national programs and furnish the same to the district authorities in form of quarterly reports. The minimum medical records to be maintained and nature of information to be provided by the Clinical Establishments are prescribed in CG 2 Annexe as per Section 12 (1) (iii) of the Act Copies of all records and statistics shall be kept with the clinical establishment concerned for at least 3 or 5 years or in accordance with any other relevant Act in force at the time under Section 12(1) (iii)). All clinical establishments shall be responsible for submission of information and statistics in time of emergency or disaster or epidemic situation. The Central Government may notify from time to time, the nature of information that needs to be furnished by the Clinical Establishments along with the prescribed interval. Other conditions for registration and continuation of clinical establishment Each category of clinical establishments shall comply with the Standard Treatment Guidelines and maintain electronic medical records of every patient as may be notified by the Central Government from time to time Each category of clinical establishments shall charge the rates for each type of procedure and service within the range of rates to be notified by the central government from time to time, for such procedures and services. Every Clinical Establishment shall display the rates charged for each type of service provided and facilities available, for the benefit of the patients at a prominent place in the local dialect and as well as in English language. The minimum list of services for which rates are to be displayed are given in CG 4 Annexe. In addition to the specific provisions of the Clinical Establishments (Registration & Regulation) Act 2010, all establishments shall comply and maintain information and statistics in keeping with other applicable Acts and Rules which are in force in the country. Every category of clinical establishments, as may be notified by the Central Government from time to time, shall establish mechanisms for review and audit for the purpose of provision of rational practice and service and maintenance of high standards of quality. Each category of clinical establishments, as may be notified by the Central Government shall carry out every prescription audits every 3 months. Each category of clinical establishments, as may be notified by the Central Government from time to time, shall carry out audit to assess the cause of death including treatments given to explore better preventive and management strategies.
CG1 Annexe Classification of Clinical Establishments Classification of Clinical Establishments would be as follows: 1) Rural/Urban 2) Government or Private 3) System of Medicine 4) Type of Establishment Systems of Medicine • Allopathy • Ayurveda • Unani • Siddha • Homeopathy • Yoga & Naturopathy Type of Establishment Providing Out Patient Care • Single practitioner • Polyclinic • Sub-Centre • Physiotherapy Clinic • Occupational Therapy • Infertility • Day Care Centre • Dental clinic • Dispensary • Dialysis Centre • Integrated Counselling and Testing Centre (ICTC) • Wellness/fitness center • Any other Providing In Patient Care • Hospital • Nursing Home • Maternity Home • Primary Health Centre • Community Health Centre • Sanatorium • Any other Providing Testing & Diagnostic Services: Laboratory • Pathology • Hematology • Biochemistry • Microbiology • Genetics • Collection Centre • Any other
Diagnostic and Imaging Centre • X Ray center • Mammography center • Bone Densitometry center • Sonography center • Color Doppler center • CT Scan center • Magnetic Resonance Imaging (MRI) center • Positron Emission Tomography (PET) Scan center • Electro Myo Graph (EMG) centre • Any other
CG2 Annexe RECORDS TO BE MAINTAINED BY CLINCIAL ESTABLISHMENTS The various medical records to be maintained by clinical establishment Outpatient Register • Inpatient Register • Operation Theatre register
• Labor room register • MTP register (if registered under the MTP Act) • Case sheets • Medico legal register • Laboratory Register • Radiology and imaging register • Discharge summary • Medical certificate in duplicate • Complaint register • Birth register (Notified to such medical officer as authorized • Death register by Government in such format as prescribed by Government/ State level authority) • Information in terms of government programmes / areas of work (e.g. maternal health, child health, immunization, family planning, Vector borne disease, NLEP, RNTCP, IDSP. NRHM initiatives-ASHA, JSY) • Number of beds system-wise and specialty-wise in Clinical Establishments providing in patient care (e.g. Genera! Med/Surg Beds; Special Care Beds) • Total Discharges:
CG3 Annexe State / District Register for Clinical Establishment Details of Information Required (A) At State/District level: Total number of establishments by – Category – System of medicine practiced – Type of service provided – Rural / urban / metro – No of beds Number of Clinical Establishments increased or decreased Number of Inspections carried out. Number of Pending applications with reasons Action Taken against non-registered Establishments operating in violation of the Act Complaints received by the State Council under the Act and Action taken pursuant thereto (B) Detailed information Details of each Clinical Establishment by Name Location containing details Rural / Urban / Metropolitan Village / Town Taluka District State Pin code Phone Number Email ID: Ownership Details Name of Owner Educational Qualification Person in Charge of Clinical Establishment Educational Qualification Urban / Rural Designation: Longitude / Latitude: Systems of Medicine offered Type of Establishments by category specified under Section _ of the _ rules Nature of Services provided by category specified under Section of the __ rules Number of beds system-wise and specialty-wise in Clinical Establishments providing in patient care
Total Employees: Total Discharges: Average length of stay (OP / IP) Utilization Statistics Details of Staff with Name, Qualification, Registration number, Number temporary or permanent
CG 4 Annexe Minimum list of services for which rates are to be displayed
Name of the service Type of Service Charges (in Rs.) Room Charges: (includes Room/ Bed charges, Nursing charges, Medical utilities charges) General Services Private rooms: Semi Deluxe – Shared Deluxe with AC Intensive care units: (Charges include the ICU Bed Charges, Medical Utilities, Monitoring and Nursing charges) MICU &ICU NEURO POW Neonatal ICU V Pediatrics ICU OT Charges General Anesthesia Vz Hour General ward Twin/ Triple sharing General Anesthesia 1 Hour General Ward Twin/ Triple sharing Local Anesthesia 1/2 Hour 1 Hour Surgical procedures Charges (Package) (includes Surgeon charges+ Anesthetist charges* Nursing Home Charges and Inpatient Medicine Charges) General Surgical Procedures Ob & Gyn procedures Orthopedic Surgical procedures Cardiac Surgical procedures Doctor Consultation charges: OP Specialist Super Specialist IP Per Visits Emergency Visits Per Visits Emergency care team charges 3 shift per day Diagnostic Charges Common diagnostic Tests X- ray per film Ultra Sound, General and Obstetric care Abdomen Female Pelvic KUB CT Scan: Multi slice/Spiral/CT scan Brain Plain Chest/ Abdomen/ Neck/ Spine MRI 0.5/1/1 .5 (Magnetic Resonance Imaging) Brain Chest Contrast ECG/TMT/ECHO/EMG/EEG Upper Gl Endoscopy/ Lower Gl Endoscopy Lab Investigation: Random Blood sugar Serum Creatinine CBP/ESR/CUE Blood Group Blood for MP LFT
Lipid profile HBSAG/VDRL/HIV Electrolytes T3, T4, TSH Any other items (not included above] Note: Other service charges for Inpatients such as drugs & disposables, investigations and concession, if any, shall be displayed at appropriate places for the benefit of the patient
Compulsory license

A compulsory license provides that the owner of a patent or copyright licenses the use of their rights against payment either set by law or determined through some form of adjudication or arbitration. In essence, under a compulsory license, an individual or company seeking to use another’s intellectual property can do so without seeking the rights holder’s consent, and pays the rights holder a set fee for the license. This is an exception to the general rule under intellectual property laws that the intellectual property owner enjoys exclusive rights that it may license – or decline to license – to others.
Consent

In UK law, only a person with capacity can give consent. There is no proxy consent. When a person loses capacity due to mental disorder (for ex delirium), the doctor can take a decision in the best interest of patient. He takes the wishes of family members as a good practice. If time permits and patient does not agree for a treatment (for ex surgery), he should approach court. Usually trusts legal time does all the work plus advice. You cannot treat physical illnesses of mentally ill under MHA. Of course, Psychiatric treatment is given under Mental health act and no need for court to intervene
Consumer Law and Practice

We are an Association of over 11000 Specialist Consultant doctors and around 1500 small and medium sized hospitals/nursing homes across Mumbai and have chapters in Mangalore, Bangalore, Pune, Nashik, Ratnagiri, and Goa. We are a front-line medical organization and represent the medical profession on several Government Expert Committees. We have a vibrant and dedicated medico-legal cell which assists our members in cases of medical litigation and often reaches out to patients as well by means of Alternate Dispute Redressal. Our mission is to network with the various stake-holders and to make a meaningful difference to our health-care delivery system in our country.
At the outset, we would like to state that we appreciate the sentiments expressed in the above letter and share your concern for the protection of patients from the malpractices and acts of gross medical negligence at the hands of hospitals and doctors. There cannot be two views on aggrieved patients being provided avenues of redressal of their grievances against medical negligence.
Notwithstanding this, it will be prudent to consider whether the inclusion of medical services under the purview of the CPA has served its purpose and is it the best way to address the problem.
To begin with, we need to examine the question: Does it stand to reason that a life and death profession whose main objective is to mend dysfunctional human bodies and heal troubled minds, be equated to business and commercial enterprises engaged in buying and selling transactions. Is it justified to compare doctors with traders? Is it not demeaning for both patients and doctors to be brought down to the level of customers (grahaks) and “sellers “? Is it right to treat at par a complaint against a defective TV set manufacturer with a complaint by a patient against adverse or suboptimal outcome of a treatment? Even as we concede that patients need to have recourse to redressal mechanisms against negligent treatment, do you honestly think that dragging doctors to consumer courts is the right way to do so? Let us examine what the CPA has achieved for aggrieved patients in the 3 decades of its existence.
Yes, some plaintiffs have been awarded compensations, some of them large enough to create a fear psychosis amongst doctors and hospitals. This may be a source of satisfaction for the proponents of the CPA vis-à-vis medical grievances, but this should not be looked at in isolation. At the end of the day, we need to look at the overall scenario and consider the fall-out of this on patient care.
You have stated in your letter that CPA ensures speedy redressal of patient grievances. Let us see how speedy it is. The time frame for the conclusion of cases in the consumer forums was supposed to be 90 days. But the fact of the matter is that the vast majority of cases do not get concluded even in 90 months!! In our experience, a case in a District forum or State Forum takes an average of 5 to 6 years at the least, before it concludes. Cases in the National Forum take far longer and it is not uncommon to get final judgments after 15 to 20 years! We have conclusive data of this. That much for the speedy justice!
What about the cost of obtaining this justice? As per the CPA, a complainant need not hire an advocate to argue his or her case before the Consumer forum. But factually, barring a miniscule minority, all complainants feel the need to appoint an advocate to argue their cases. The average advocates ‘fees are in the range of 1 lakh rupees or more, for the duration of the case, which is a minimum of 5 to 6 years in the lower forums, as mentioned earlier. That much for cheap justice!
Having seen how the CPA has served the patient community, let us see what effect it has had on the healthcare providers and the health care system. As a direct consequence of the CPA the following has happened: (achievements of CPA!)

  1. Apprehensive of being dragged to a Consumer court , doctors are now per force , prescribing a whole list of medical investigations, not because they are all necessary to arrive at a diagnosis , but to protect themselves and to cover all remote possibilities and to minimize the possibility of getting implicated by allegations of negligence subsequently.
  2. For similar reasons, doctors are now referring patients to a greater number of Specialists in order to document diligence in treatment and to share responsibility, should the outcome of treatment not be as expected.
  3. Doctors are reluctant to accept patients who are critically ill and whose prognosis may be equivocal. They are promptly referred to high-end or tertiary care hospitals, though they could well have been treated in a low- cost facility. Apart from implications on cost, this also has implications of delay in commencement of treatment. The homily, that it is better for the doctor to be safe than sorry has never been more faithfully followed. This again is on account of the scare of CPA.
  4. The patient-doctor relationship has taken a hit, being severely eroded. A doctor now tends to look upon every patient as a potential plaintiff. He is more concerned with documentation and doing the medicolegally correct thing than the actual medical issues. Mutual trust between patients and doctors has been replaced with mutual suspicion.
  5. As a result of all of the above, practicing defensive medicine by doctors is now inevitable. This has a domino effect and has escalated the cost of health care by crores of rupees, a cost which a resource challenged country like ours can ill-afford. Sadly, patients are the worst-affected.
  6. More doctors are retiring from practice early or switching over to alternate occupations in order to pre-empt a traumatic litigation experience under the CPA. There is presently a hopelessly skewed doctor-patient ratio in this country. Experienced doctors closing their practices prematurely is a severe loss to society and can only make a bad situation worse.
  7. Small and medium hospitals/nursing homes, fearful of the post-CPA scenario are shutting shop, further worsening the hospital beds / population ratio.
  8. Bright students now do not find pursuing a medical career attractive, since the profession has become a high risk, low return profession. As a result, the quality of doctors has already started plunging.
  9. Owing to the fact that CPA has led to souring of patient-doctor relationship , apart from the risks of litigation , the bigger risk of being subjected to physical abuse is now a reality and is proving to be an effective deterrent for good students from taking up the medical profession, further compounding the situation.
    Clearly, including medical services under the CPA has proved to be counter- productive and has neither served the cause of patients nor of the healthcare system and hence ought to be reviewed and reversed.
    It is incredible that the set of persons who comprise the Consumer Forum and are supposed to adjudicate on complaints pertaining to medical treatment have zero knowledge on medical matters, being non-technical as far as Medicine is concerned. Yet they are expected to give opinions and judgments on what are often highly specialized, technical medical matters of which they have no knowledge whatsoever. Huge compensations are being awarded often on the basis of perceptions of laypersons or flimsy technical deficiencies or on sympathy factor.
    Medicine is a highly complicated science – being related to a complex machine. It has also been described as an inexact science and to give retrospective judgments which have the benefit of hindsight is grossly unfair.
    Complaints of medical negligence against doctors and hospitals are essentially complaints of professional incompetence or professional dereliction of duty. Of course, they should be actionable. But this should be determined by professional, technical persons who have knowledge and experience of the subject at hand. In fact, those professionals investigating the complaint should necessarily belong to the same specialization as that of the accused doctors. For example, how can an Orthopedic surgeon opine on deficiencies or otherwise of, say, a coronary artery stenting done by a cardiologist when he may not be even in a position to comment on an ECG with conviction. Only a panel of cardiologists ought to be giving their considered and expert opinion in the matter. The same is true vice versa. Enquiry into a plane crash to establish the cause of the crash is always done by a technical team of aviation experts, even if under judicial supervision. Similarly, how can the reason for complications of a Laparoscopic surgery be judged by non-experts.
    This reasoning becomes more important because of the fact that an erroneous judgment has extremely grave consequences for the accused doctors. The fact that a judgment given by a lower Forum is often reversed by a higher forum giving diametrically opposite reasons for acquittal or conviction confirms the arbitrariness of the proceedings.
    It is our considered submission that medical complaints should be outside the purview of consumer courts. Instead, they should be directed to Professional Tribunals with Specialty specific experts on it. (Experts could be selected from a pool of senior, retired Specialists of integrity) A judicial officer such as a retired judge could be the guiding light of the Tribunal. This Tribunal should exclusively hear medical cases. It should not be in the nature of legal proceedings but a technical enquiry into the medical facts of the case. It should be an enquiry about professional conduct, by professional experts. Hence lawyers could be dispensed with resulting in reduced cost implications and speedier decisions in a time bound fashion facilitated by the fact that there are no lawyers and hence no adjournments and the like. Tribunals could be appropriately empowered and have the force of Law.
    Speedy, seamless enquiry would be appreciated by patients as well as doctors who, in a medical mishap, are described as the second victims.
    Medical Councils should restrict themselves to complaints of violation of the Code of Medical Ethics and professional misconduct especially those involving moral turpitude. Medical negligence cases should be placed within the domain of the Tribunal of Experts. Bringing medical services under the purview of CPA has inflicted severe damage to the healthcare system and to patient –doctor relationship as can be seen by the current healthcare scenario.
    We have to request you to ponder on our above submissions .We are sure that in view of your profound knowledge and erudition on this subject you will apply the same wisdom and logic which prevents you from writing a similar letter to the Prime Minister to include the legal profession under the purview of the CPA both being liberal professions and not a business or trade. Our Association will be pleased to have further interactions and networking with you and your team at the prestigious and nationally acclaimed National Law School of India University.
    Controlled drugs
    The Misuse of Drugs Regulations 2001 divide Controlled Drugs (CDs) into five schedules corresponding to their therapeutic usefulness and misuse potential. A number of changes affecting the prescribing, record keeping and destruction of CDs have been introduced as a result of amendments to the Misuse of Drugs Regulations 2001. The Controlled Drugs (Supervision of Management and Use) Regulations 2006 came into effect on 1st January 2007.[1]
    Schedule 1 (Controlled Drug license)
    Have no recognized medicinal use and include cannabis, coca leaf, lysergic acid diethylamide (LSD) and mescaline.
    Production, possession and supply of these drugs are limited to research or other special purposes.
    Practitioners and pharmacists may not lawfully possess Schedule 1 drugs except under license.
    Includes diamorphine (heroin), morphine, remifentanil, pethidine, secobarbital, glutethimide, amphetamine, and cocaine.
    Are subject to safe custody requirements and so must be stored in a locked receptacle, usually in an appropriate CD cabinet or approved safe, which can only be opened by the person in lawful possession of the CD or a person authorized by that person.
    A license is required to import or export drugs in Schedule 2.
    The drug may be administered to a patient by a doctor or dentist, or by any person acting in accordance with the directions of a doctor or dentist.
    A register must be kept for Schedule 2 CDs and this register must comply with the relevant regulations.
    The destruction of CDs in Schedule 2 must be appropriately authorized and the person witnessing the destruction must be authorized to do so.
    Schedule 3 (Controlled Drugs – no register)
    Includes a small number of minor stimulant drugs and other drugs which are less likely to be misused than the drugs in Schedule 2.
    Examples are the barbiturates (except secobarbital, now Schedule 2), buprenorphine, diethylpropion, mazindol, meprobamate, midazolam, pentazocine, phentermine, and temazepam.
    The government has now placed tramadol in Schedule 3 to the Misuse of Drugs Regulations 2001 but with exemption from the safe custody requirements.[2]
    Are exempt from safe custody requirements and can be stored on the open dispensary shelf except for temazepam, buprenorphine and diethylpropion, which must be stored in a locked CD receptacle.
    Are subject to the same special handwriting requirements as Schedule 2 CDs.
    There is no legal requirement to record transactions in a CD register.
    The requirements relating to destruction do not apply unless the CDs are manufactured by the individual.
    Invoices must be retained for a minimum of two years.
    Schedule 4
    Are exempt from safe custody requirements, with destruction requirements only applying to importers, exporters and manufacturers.
    Specific CD prescription-writing requirements do not apply.
    CD registers do not need to be kept, although records should be kept if such CDs are produced, or if a licensed person imports or exports such drugs:
    Part 1: benzodiazepines (except temazepam and midazolam, which are in Schedule 3) and zolpidem, which are subject to minimal control:
    Includes most of the benzodiazepines, plus eight other substances including fencamfamin and mesocarb.
    Possession is an offence without an appropriate prescription. Possession by practitioners and pharmacists acting in their professional capacities is authorized.
    Are subject to full import and export control.
    Part 2 includes androgenic and anabolic steroids, clenbuterol, human chorionic gonadotrophin (hCG), non-human chorionic gonadotrophin, somatotropin, somatrem, and somatropin:
    Includes most of the anabolic and androgenic steroids such as testosterone, together with clenbuterol (adrenoreceptor stimulant) and growth hormones.
    There is no restriction on the possession when it is part of a medicinal product.
    A Home Office license is required for the importation and exportation of substances unless the substance is in the form of a medicinal product and is for self-administration by a person.
    Schedule 5 (Controlled Drug – invoice)
    Includes preparations of certain controlled drugs (e.g., codeine, pholcodine, morphine) which are exempt from full control when present in medicinal products of low strengths, as their risk of misuse is reduced.
    No restriction on the import, export, possession, administration or destruction of these preparations and safe custody regulations do not apply.
    A practitioner, pharmacist or a person holding an appropriate license may manufacture or compound any CD in Schedule 5.
    Therefore, exempt from virtually all CD requirements other than that invoices must be kept for a minimum of two years.
    Procedures
    Regulations made under the Health Act 2006 require each healthcare organization to appoint an Accountable Officer, responsible for the safe and effective use of CDs in their organization. The Regulations also introduce standard operating procedures (SOPs) for the use and management of CDs. GP practices will need to have an appropriate process in place to agree and adopt SOPs for their use.
    An SOP is a document that describes the responsibilities and the procedures, including audit, necessary to manage CDs safely and accountably. The SOPs must include:
    Ordering and receipt of CDs.
    Assigning responsibilities.
    Where the CDs are stored.
    Who has access to the CDs?
    Security in the storage and transportation of CDs as required by misuse of drugs legislation.
    Disposal and destruction of CDs.
    The person who is to be alerted if complications arise.
    Record keeping, including:
    Maintaining relevant CD registers under misuse of drugs legislation
    Maintaining a record of the CDs specified in Schedule 2 to the Misuse of Drugs Regulations 2001 that have been returned by patients
    The practice SOP should also include:
    Responsibilities within the practice team.
    Validation by clinical commissioning group (CCG) and date.
    Review period – e.g., one, two or three years.
    Lead author and named people contributing to the SOP.
    Prescriptions for Controlled Drugs
    The amendments to the Misuse of Drugs Regulations 2001 that came into force in November 2005 removed the requirement that CD prescriptions should be written in the prescriber’s own handwriting. This means that CD prescriptions can be typewritten, handwritten or computer printed. Only the signature of the prescriber has to be handwritten.
    Further changes following amendments to the Misuse of Drugs Regulations came into force in July 2006. These include:
    A new requirement that patients or other people collecting medicines on their behalf must sign for them.
    Validity of any prescription for Schedule 2, 3 and 4 CDs to be restricted to 28 days.
    Strong recommendation that the maximum quantity be limited to 30 days for prescriptions of Schedule 2, 3 and 4 CDs.
    Re-emphasis of professional guidance that doctors should prescribe CDs for themselves or family members only in exceptional circumstances.
    Doctors are only able to prescribe diamorphine, dipipanone and cocaine to substance misusers for the treatment of addiction if they hold a license issued by the Home Office. All doctors may prescribe such drugs for patients, including substance misusers, for the relief of pain due to organic disease or injury, without a specific license.
    Prescriptions for Schedule 4 and 5 CDs are exempt from the specific prescription requirements of the Misuse of Drugs Regulations 2001. However, they must still comply with the general prescription requirements as specified under the Medicines Act.
    Emergency supplies of Schedule 2 and 3 CDs, for a specific patient, are not permitted either at the request of the patient or a practitioner. The only exception to this rule is phenobarbital for the treatment of epilepsy.
    NHS prescription form
    FP10 prescription forms now include a box on the back of the prescription where the signature of the patient or other person collecting a Schedule 2 or 3 CD must be recorded.
    The prescriber should include the patient’s NHS number on the prescription form.
    The prescriber should sign any script changes. The prescription must contain the following details:
    The patient’s full name, address and, where appropriate, age.
    The name and form of the drug, even if only one form exists.
    The strength of the preparation, where appropriate.
    The dose to be taken.
    The total quantity of the preparation, or the number of dose units, to be supplied in both words and figures.
    Form FP10MDA-S is used for prescribing CDs (mainly methadone) to addicts. It is twice the size of the standard FP10 because it contains space for the pharmacist to record each time an instalment is supplied.
    FP10SS forms are designed for use with the prescriber’s computer system. FP10NC are for handwritten prescriptions.
    Private prescription form
    A special form (FP10PCD) has been introduced for any private prescription of schedule 2 and 3 CDs which will be dispensed in the community.
    The prescriber should obtain the patient’s NHS number if possible and enter this number on the prescription form.
    The private prescription form includes space for the person collecting the CD to sign the back of the form. Any person collecting Schedule 2 and 3 CDs will be asked to sign the back of the prescription form.
    There are two kinds of forms available, personalized (FP10PCDNC) and non-personalized (FP10PCDSS). Personalized forms contain the prescriber’s details already printed.
    Prescribing in instalments
    Some CDs can be dispensed to substance misusers in instalments, providing they are prescribed using specific NHS prescription forms.
    In England, GPs must use the form FP10MDA-S to prescribe in instalments Schedule 2 CDs, buprenorphine (Schedule 3) or diazepam (Schedule 4) for drug addiction. This form must not be used for any other purpose.
    The prescription must be dispensed on the date on which it is due. If the client does not collect an instalment when it is due, that supply is no longer valid. The client cannot collect that supply the following day.
    If a CD prescription is to be dispensed in instalments (e.g., daily) then the FP10MDA-S must specify:
    The number of instalments.
    The intervals to be observed between instalments (if necessary, instructions for supplies at weekends or bank holidays should be included).
    The total quantity of CD that will provide treatment for a period not exceeding 14 days.
    The quantity to be supplied in each instalment.
    Current legislation does not allow Schedule 2 and 3 CDs to be prescribed as repeat prescriptions (i.e. to be part of the repeat prescribing or dispensing system)
    Ordering, possessing and supplying Controlled Drugs
    Doctors, dentists and pharmacists are authorized under the Misuse of Drugs Regulations 2001 to possess, supply and compound CDs in Schedules 2, 3, 4 and 5. They may only supply CDs to those who may lawfully possess them, including patients for whom a drug is prescribed.
    Paramedics have more recently been authorized to possess and administer controlled drugs.[4]
    Practitioners must not use patient-specific CD prescriptions to replace or top up their bags or practice stock, even if the stock was used for that patient initially.
    Practitioners may obtain Schedule 2 and 3 CDs from pharmacies or wholesalers for practice use or stock upon the production of a written requisition. The requisitions must be:
    Signed by the prescriber.
    State the prescriber’s name and address, and their profession or occupation.
    Specify the total quantity of the drug (this does not have to be in words and figures).
    Specify the purpose for which it is required – e.g., for practice use.
    Suppliers must keep all requisitions for a minimum of two years. A requisition is not required before supplying or obtaining Schedule 4 or 5 CDs.
    A practitioner who requires a Schedule 2 or 3 CD urgently and who is unable to supply a signed order can request the drugs to be supplied in an emergency. The practitioner may be supplied with the CD provided he or she gives an undertaking to supply a written, signed requisition within 24 hours. Failure to do this is a criminal offence on the part of the practitioner.
    It is the responsibility of the pharmacist or doctor, when receiving a supply of CDs from the wholesaler, to ensure that the correct item is delivered and that all appropriate entries are made in the CD register on the day of supply, or the day following the day of supply.
    There is now a requirement for persons asked to supply Schedule 2 CDs on prescription to seek to establish whether the person collecting the drug is the patient, the patient’s representative or a healthcare professional acting in his/her professional capacity on behalf of the patient.
    Where the person is the patient or the patient’s representative (e.g., a friend, or a neighbor) the dispenser:
    May request evidence of that person’s identity; and
    May refuse to supply the drug if he/she is not satisfied as to the identity of that person.
    Where the person collecting the prescription is a healthcare professional acting in his/her professional capacity on behalf of the patient, the dispenser:
    Must obtain that person’s name and address.
    Must, unless he/she is acquainted with that person, request evidence of that person’s identity; but
    May supply the drug even if he/she is not satisfied as to the identity of that person.
    The new regulations do allow discretion not to ask patients or patient representatives for proof of identity if, for example, they have concerns that to do so may compromise patient confidentiality or deter patients from having their medicine dispensed.
    Keeping and storage of Schedule 2 Controlled Drugs and buprenorphine
    These CDs must be kept in a locked receptacle. This can be a doctor’s bag with a lock and, if the bag is transported in the doctor’s car, it must be locked and placed in a locked boot. A locked car is not adequate security; the bag must also be locked.
    In the surgery, a locked cabinet should ideally be secured to the wall of a room and only opened by the GP or someone authorized by the GP.
    Records for Schedule 2 but not Schedules 3, 4 or 5 CDs must be kept in a CD register. All healthcare professionals must keep their own CD register. GPs, pharmacists or other healthcare professionals are personally responsible for keeping the relevant CD registers up-to-date.
    Requirements for records
    Records for Schedule 2 CDs must be kept in a CD register. This is not a legal requirement for Schedule 3, 4 or 5 CDs.
    All healthcare professionals who hold personal CD stock must keep their own CD register, and they are personally responsible for keeping this accurate and up-to-date.
    The register must:
    Be bound (not loose-leaved) or a computerized system which is in accordance with best practice guidance.
    Contain class sections for each individual drug.
    Have the name of the drug specified at the top of each page.
    Have the entries in chronological order and made on the day of the transaction or the next day.
    Have the entries made in ink or otherwise so as to be indelible or in a computerized form in which every such entry is attributable and capable of being audited.
    Not have cancellations, obliterations or alterations; corrections must be made by a signed and dated entry in the margin or at the bottom of the page.
    Be kept at the premises to which it relates and be available for inspection at any time. A separate register must be kept for each set of premises (e.g., at each branch surgery).
    Be kept for a minimum of two years after the date of the last entry, once completed.
    Not be used for any other purpose.
    For CDs received into stock, the following details must be recorded in the CD register:
    The date on which the CD was received.
    The name and address of the supplier – e.g., wholesaler, pharmacy.
    The quantity received.
    The name, form and strength of the CD.
    For CDs supplied to patients (via prescriptions), or to practitioners (via requisitions), the following details must be recorded in the CD register:
    The date on which the supply was made.
    The name and address of the patient or practitioner receiving the CD.
    Particulars of the authority of the person who prescribed or ordered the CD.
    The quantity supplied.
    The name, form and strength in which the CD was supplied.
    The Secretary of State for Health can authorize the medical adviser of the CCG or other appointed doctor to ask GPs to produce records and to view stocks. Failure to comply is an offence.
    Doctor’s bag
    Where a practitioner carries a bag for home visits, etc., containing CDs, a separate CD register should be kept for the CD stock held within that bag. Each doctor is responsible for the receipt and supply of CDs from their own bag.
    Restocking of a bag for home visits, etc., from practice stock should be witnessed by another member of the practice staff, as should the appropriate entries into the practice’s CD register.
    Where a prescription is written by a doctor following the administration of a CD to a patient, the doctor should endorse the prescription form with the word ‘administered’ and then date it.
    Information should also be entered into the patient’s record as soon as practicable.
    Destroying Controlled Drugs
    NB: professional guidance strongly recommends that any medication returned from patient stocks should not be re-issued or used to treat other patients.
    There is no current legal requirement that ‘patient-returned’ Schedule 2 and 3 CDs should be destroyed in the presence of an authorized witness, but it is strongly recommended that doctors and pharmacists have the destruction of these returns witnessed by another member of staff (preferably by a registered healthcare professional) and make a record of the destruction in a separate book set aside for this purpose.
    Those healthcare professionals and service providers required by law to maintain a CD register are not allowed to destroy expired Schedule 2 (or 1) CDs from their stock without destruction being witnessed by an authorized person.
    When a CD is destroyed, details of the drug must be entered into the CD register. This should include: the name of the drug, form, strength and quantity, the date it was destroyed, and the signature of the authorized person who witnessed the destruction and that of the professional destroying it (i.e. two signatures).
    The list of those authorized to witness the destruction of CDs includes:
    A CCG chief pharmacist or pharmaceutical prescribing adviser who reports directly to the chief executive or to a director of the CCG.
    A registered medical practitioner who has been appointed to the CCG Professional Executive Committee or equivalent.
    The CCG board executive member with responsibility for clinical governance or risk management.
    Medical director of a CCG.
    UNRCPD
    Convention on the Rights of Persons with Disabilities
    The Convention on the Rights of Persons with Disabilities is an international human rights treaty of the United Nations intended to protect the rights and dignity of persons with disabilities. Parties to the Convention are required to promote, protect, and ensure the full enjoyment of human rights by persons with disabilities and ensure that they enjoy full equality under the law. The Convention has served as the major catalyst in the global movement from viewing persons with disabilities as objects of charity, medical treatment and social protection towards viewing them as full and equal members of society, with human rights. It is also the only UN human rights instrument with an explicit sustainable development dimension. The Convention was the first human rights treaty of the third millennium.
    Digital signature

It is a common tendency among Doctors tend to allow their names and signatures to be used by labs, ultrasound centers and imaging centers for a fee, where these labs or radiological centers put a stamp of a doctor or digital sign for any investigations carried out. Doctors also give these digital sign or stamp very often to their corporate hospital desk or in Government set up hospitals or medical colleges without charging anything where doctor’s stamp is used by resident doctors or nursing staff for ordering some investigations or giving fitness or sickness certificate or on discharge certificate or during referral of patient to other place or for ordering something or even for Death certificates. They pre-sign lab reports, fitness certificates, sickness certificates without actually having seen the patient or the specimen to be tested, leaving the data to be filled in by another person. This “selling” of signatures is not only a professional misconduct liable to disciplinary proceedings before the medical council, but is also breaking the law punishable under the Indian Penal Code under Section 191 “Giving false evidence”, Section 192 “Fabricating false evidence”. And if this document is presented in the Court during any stage of the judicial proceeding, the punishment is imprisonment for up to seven years along with fine, as per Section 193 “Punishment for false evidence”. The Supreme Court in the case of Martin F D’ Souza vs Mohd Ishfaq in 2009 also had said, “No prescription should ordinarily be given without actual examination.” In the same judgement, the Apex Court also advised against telephonic consultations stating “The tendency to give prescription over the telephone, except in an acute emergency, should be avoided.” Actions have been taken by the State Medical Councils, the Maharashtra Medical Council and Delhi Medical Council, in such instances. For doctors, the interests of the patient are above all. Ethical earning is a part of ethical medicine. The MCI Code of Ethics Regulations has clearly banned fee splitting including any other rebates and commissions (Regulation 6.4.1). “A physician shall not directly or indirectly, participate in or be a party to act of division, transference, assignment, subordination, rebating, splitting or refunding of any fee for medical, surgical or other treatment. “These are unethical practices. And the money earned by way of these practices is unethical earning. Recently, the Medical Council of India has issued a directive stating that “All lab reports are to be signed/countersigned by persons registered with MCI/State Medical Council”. Doctors, even MBBS doctors, should be very careful about giving their signatures, either on paper or even electronic or digital signatures, allowing them to be used in any such establishment. It is vulnerable to misuse, as is also your name. Doctors are required to inform the police if their stamp is lost. Please keep the record of the complaint with the own file. We should keep our signature safe and should not allow it to be used by others, digital or stamp signature means we ourselves have seen the patient personally present there, so it should not be given others to use it in our absence as it applies our own presence there.
Drug laws

Although we think of some drugs being legal, and others being illegal, many drugs are somewhere in between. Some substances are legal, but there are laws restricting their use or sale. Others are illegal to use, possess or produce.
New psychoactive substances (synthetics) – including synthetic cannabis
A range of terms have been used to describe new psychoactive substances (NPS), including new and emerging drugs (NEDs), synthetics, legal highs, herbal highs, party pills, herbal ecstasy, bath salts, drug analogues and synthetic cannabis.
The laws surrounding NPS are complex, constantly changing and differ between states/territories, but in general they are increasingly becoming stronger.
In Queensland, New South Wales, and South Australia there is now a ‘blanket ban’ on possessing or selling any substance that has a psychoactive effect other than alcohol, tobacco and food.
In other states and territories in Australia specific NPS substances are banned and new ones are regularly added to the list. This means that a drug that was legal to sell or possess today, may be illegal tomorrow. The substances banned differ between these states/territories (G. Barnes, personal communication, April 23, 2014).

See below for an outline of laws relating to individual drugs in Australia. For more detailed information contact a legal aid service in your state or territory.
Legal and restricted drugs
Alcohol
There are laws that govern how alcohol may be used. These laws may differ depending on the state, territory or local area. For example, in some areas local by-laws make it illegal to drink alcohol in public places such as beaches, parks and streets.
It is an offence for a person who is under 18 years of age to buy, receive or drink alcohol on licensed premises, unless they are with a parent or guardian.
In some states in Australia, it is also an offence to supply a person under 18 years of age with alcohol in a private home, unless the young person’s parent or guardian has given permission and the alcohol is supplied in a responsible manner. This is known as secondary supply.
It is illegal to drive under the influence of alcohol.
Penalties for breaking these laws can include fines, imprisonment and disqualification from driving.
Employers have legal obligations in relation to health and safety of their workers and people who visit their workplace. Find out more about the responsibilities of employers and employees.
Amphetamines
Use of amphetamines is restricted. They can only be prescribed by a medical practitioner for medical reasons.
Federal and state laws provide penalties for possessing, using, making, selling or driving under the influence of amphetamines without a prescription from an authorized person. There are also laws against forging or alerting a prescription or making false representation to obtain amphetamines or a prescription for them. Laws have been introduced that prevent the sale and possession of ice pipes in some states and territories.
Benzodiazepines
Using benzodiazepines without a prescription from a doctor, or selling or giving them to someone else, is illegal. There are also laws against forging or altering a prescription or making false representation to obtain benzodiazepines or a prescription for them.2
In 2014, in response to concerns about the use and harms associated with the benzodiazepine, alprazolam (Xanax®), it was rescheduled under the Pharmaceutical Benefits Scheme (PBS) as a Schedule 8 drug. Doctors must now follow additional state and territory laws when prescribing alprazolam and must notify, or receive approval from, the appropriate health authority.1
Betel nut
The active ingredient in betel nut is arecoline, which is a Schedule 4 poison (prescription only medicine) and therefore is illegal to possess or sell without proper authority.
Buprenorphine
Using buprenorphine without a prescription from a doctor, or selling or giving it to someone else, is illegal. There are also laws against forging or altering a prescription or making false representation to obtain buprenorphine or a prescription for it.2
Cognitive enhancers (smart drugs)
Modafinil is a Schedule 4 substance that can only be prescribed by a doctor or dentist in the ordinary course of their professions.
Methylphenidate is a Schedule 8 drug which means doctors must follow state and territory laws when prescribing it and must notify, or receive approval from, the appropriate health authority.
Using modafinil or methylphenidate without a prescription from a doctor, or selling or giving them to someone else, is illegal. There are also laws against forging or altering a prescription or making false representation to obtain pharmaceuticals or a prescription for them.2
Inhalants
Inhalant use is not a criminal offence in any Australian state or territory.
In recent years, some Australian states and territories have revised police powers to intervene in inhalant use in two main ways. Police are authorized to:
Take away inhalants and related equipment
Pick up young people who are misusing inhalants, and release them into the care of a responsible person, or a place of safety.
It is also illegal in some states and territories for shopkeepers to sell products to someone if they believe they are to be used for inhaling.
Ketamine
Legally produced ketamine is a restricted substance and only a doctor or vet may prescribe or administer it. All other ketamine is illegal in Australia.
Federal and state laws provide penalties for the illegal use, possession, production, selling or driving under the influence of ketamine. Penalties can include fines, imprisonment and disqualification from driving.
Kava
The import, advertising and sale of kava in Australia are strictly controlled. Kava is listed as a controlled substance under the Customs (Prohibited Imports) Regulations Act.
As of 26 June 2007, commercial importations of kava are no longer allowed, except for medical or scientific purposes.
Passengers coming into Australia, who are over the age of 18 years, are allowed to bring 2 kg of kava without a license or permit, provided it is in their accompanied baggage.
Khat
It is illegal to import khat into Australia for personal use. Khat can only be imported for medical and/or scientific use. Importing khat without a permit is subject to fines or prosecution. For more information visit the Australian Government’s Department of Health website.
Oxycodone
Under the Pharmaceutical Benefits Scheme (PBS), oxycodone is a Schedule 8 drug. Doctors must follow state and territory laws when prescribing oxycodone and must notify, or receive approval from, the appropriate health authority.
Using oxycodone without a prescription from a doctor, or selling or giving them to someone else, is illegal. There are also laws against forging or altering a prescription or making false representation to obtain oxycodone or a prescription for them from a health professional.
Methadone
Using methadone without a prescription from a doctor, or selling or giving it to someone else, is illegal. There are also laws against forging or altering a prescription or making false representation to obtain methadone or a prescription for the drug. It is also illegal to inject methadone.4
Tobacco
Federal and state laws make it an offence to sell or supply tobacco products to people under 18 years of age. It is also illegal for anyone under 18 years to purchase tobacco products.
There are laws that regulate and restrict how tobacco products are advertised, promoted and packaged.
There are also laws and regulations that restrict smoking in public areas such as shopping centers, cafes and workplaces. Most states and territories have laws that ban smoking in cars with children.
Illegal drugs
The following drugs are some of the drugs that are illegal in Australia. Federal and state laws provide penalties for possessing, using, making or selling them, or driving under their influence.
Cannabis, including some synthetic cannabinoids
Cocaine
Ecstasy (MDMA)
GHB (gamma hydroxybutyrate)
Heroin
Ice (crystal methamphetamine)
LSD (lysergic acid diethylamide)
PCP (phencyclidine)
PMA (paramethoxyamphetamine) and PMMA (paramethoxymethamphetamine).

There are also laws that prevent the sale and possession of bongs and other smoking equipment in some states and territories. (For example, Victoria has passed legislation that will ban the sale of cannabis water pipes (bongs) from January 2012.)
Ice (crystal methamphetamine)
Use of methamphetamine (ice) is against the law. Federal and state laws provide penalties for possessing, using, making, selling, importing or exporting, or driving under the influence of methamphetamine. The importation or exportation and the procuring of precursor drugs (such as pseudoephedrine) with the intention of manufacturing a controlled drug, is also against the law. Laws have been introduced that prevent the sale and possession of ice pipes in some states and territories.
Drug laws in Australia distinguish between those who use drugs and those who supply or traffic drugs.
The Federal Customs Act covers the importing of drugs, and each state has its own laws governing the manufacture, possession, distribution and use of drugs, both legal and illegal.
The Drugs, Poisons and Controlled Substances Act (DPCSA) includes these major drug offences:
Use includes smoking, inhaling of fumes, or otherwise introducing a drug of dependence, into a person’s body (including another person’s body).
Possession is the most common offence. Possession means having control or custody of a drug. Knowledge of such possession must be proven in court. Possession applies both to drugs found on the person or their property, unless it is proven the drugs do not belong to that person.
Cultivation is the act of sowing, planting, growing, tending, nurturing or harvesting a narcotic plant.
Trafficking is a very serious offence. It includes the preparing of a drug of dependence for trafficking; manufacturing a drug of dependence; or selling, exchanging, agreeing to sell, offering for sale or having in possession for sale, a drug of dependence. If this is done in commercial quantities, the penalties are extremely severe.
It is illegal to drive under the influence of drugs. Breaking this law carries penalties including disqualification from driving, heavy fines and/or imprisonment.
Some states have introduced random roadside testing for cannabis and amphetamines.

Penalties for breaking laws in relation to alcohol and other drugs may include fines, imprisonment and disqualification from driving
Drugs and the Criminal Law
The number of people dealt with for drug offences in 1998 was 153,200 and of these, 127,840 were found guilty, cautioned, given a fiscal fine or dealt with by compounding for drug offences in 1998.
Offences mainly involved cannabis (76%), followed by amphetamine (12%), heroin (9%) and cocaine (4%), with little change in the type of drug from 1997. More info: UK Drug Report 2000 – The Drug Situation in the UK)
Drugs law in the UK is inconsistent, with some quite harmful substances freely available, and others prohibited. The focus of this publication is on illegally produced drugs, rather than prescribed medicines.
History of drugs law
The main piece of legislation dealing with drugs is the Misuse of Drugs Act 1971, which consolidated most previous drugs legislation.
In 1908 the sale of opium was restricted to people known to a pharmacist. Cocaine, heroin and morphine were first subject to legal control in 1917, cannabis in 1925, amphetamines in 1964, and LSD in 1966.
Since 1971 major subsequent drugs legislation has included the Intoxicating Substances Act 1985 controlling the sale of solvents to people under 18, and the Drugs Trafficking Offences Act 1986, allowing for the confiscation of profits from drug dealing, and creating new offences concerned with the laundering of drug money.

Drugs law in context
Drugs law operates within the wider context of criminal law. Rules governing detention and questioning in police stations, court procedure and other basic legal principles all apply to drugs cases.
The most important legislation governing arrest, detention, questioning and prosecution of offences is the Police and Criminal Evidence Act 1984 (PACE).
A general rule concerning all criminal cases is that a person has to have a “guilty mind” if they are to be convicted.
If someone is carrying controlled drugs without knowing it, they should, if believed, be found not guilty of possession.
Knowing that criminal offences are being committed by another person will not normally amount to being guilty unless assistance is given to the law breaker in some way.

The Misuse of Drugs Act 1971
Classification of drugs
The Misuse of Drugs Act (MDA) is the major Act controlling drugs. It divides drugs into categories (A, B and C) depending on how dangerous the drugs were thought to be at the time of legislation.
The home secretary can usually add new drugs on to those controlled under the original 1971 Act without referring to Parliament.
Class A drugs include: Cocaine, coca leaf, dicanol, heroin, LSD, mescalin, methadone, morphine, opium, PCP, pethadine, poppy straw, psilocybin, STP, ecstasy and cannabinol except where it is contained in cannabis or cannabis resin. Class B drugs become class A drugs if they are prepared for injection.
Class B drugs include: Amphetamine, codeine in concentrations above 2.5%, DF118, ritalin and barbiturates.
Class C drugs include: Methaqualone, cannabis, benzodiazepines (valium etc).
See: Cannabis reclassified (Jan 2004)

Drug classification and sentence
Under the MDA, offences involving different classes of drugs attract different penalties. Class A drugs offences involving heroin, for example, are taken more seriously than offences involving class B or C drugs.
The table set out below show maximum penalties for different types of offences. Note: Maximum sentences are seldom imposed and average sentences for offences are much lower, depending on the individual circumstances of the case.
Some class C drugs are legal to possess. The Misuse of Drugs schedules determine whether a drug may be prescribed or not, and impose duties relating to record keeping, manufacturing, storage, and distribution of drugs. Temazepam, for example, is a Class C drug, listed under schedule 4. It may be possessed, provided it is in a medicinal form.

Chart 2 – Schedules
There are 5 Schedules.
Schedule 1
Schedule 1 drugs are considered to have no legitimate therapeutic use, and cannot be prescribed by doctors, or dispensed by chemists. Possession is only legitimate with a Home Office license.
These are issued only to doctors and scientists engaged in research. Schedule 1 drugs include cannabis and LSD.
Schedules 2 & 3
These schedules cover many controlled drugs considered to have medical therapeutic uses. Drugs in the Schedules may be possessed by doctors, pharmacists, scientific research institutes, sisters and acting sisters employed in hospitals and nursing homes, and various scientific analysts.
A patient who has been prescribed scheduled drugs by a doctor my legitimately be in possession, provided that the drugs are administered in accordance with doctor’s directions.
Someone who “abused” prescribed drugs could be in unlawful possession, provided that the intention to abuse could be proved.
Schedule 2 includes heroin, morphine, pethadine, amphetamine and cocaine.
Schedule 3 includes diethylpropion and other mild slimming aids.

Schedule 4
This Schedule includes many benzodiazepines such as Diazepam, Lorazepam and Temazepam. Any person listed under Schedules 2 and 3 may possess these drugs.
In addition, any person may possess any Schedule 4 drug, provided it is a medicinal product. However, supply by an unauthorized person is illegal.
Schedule 5
This schedule covers compound preparations like cough mixtures and anti- diarrhea medicines that contain tiny amounts of controlled drugs like morphine or cocaine.
Some schedule 5 drugs are sold over the counter, and they may be possessed legally without a prescription. Regulations may stipulate the proportion of, for example, morphine, that may be contained in a preparation, which mush not easily be recoverable.

Possession of Illegal Drugs
Possession means having drugs in your physical possession or having control of drugs. If you leave drugs in a suitcase in a left luggage office, you do not possess drugs physically, but legally, you still have control of the drugs.
Legal possession of drugs involves knowledge.
A left luggage attendant holding a suitcase belonging to someone else may not know that the suitcase contains drugs, and will therefore not legally be in possession.
Intention is very important. Not everyone in possession of drugs will be guilty of an offence. Conveying a drug to someone who is entitled to have the drugs in their possession is not an offence. Nor is taking possession in order to destroy them.
A teacher, for example, confiscating cannabis could flush it down the loo. If, however, the teacher held onto the drugs, and did not destroy them, and offence of possession would be committed.

Common types of possession
Simple possession
In order to prove possession, the prosecution have to identify the drug precisely – cannabis resin or amphetamine sulphate, for example. Normally, this is done by sending drugs away for scientific analysis.
If you identify a drug to the police – for example, “this is lorazepam” – they may be able to use your identification as evidence, on the basis that you have behaved as it is Lorazepam.
If you have already tried the drugs, it could be said that you have formed an opinion about the nature of the drug, even though you are not a scientific expert (Bird v Adams 1972, Wells 1976). Each case must be judged on the facts.
If you are in possession of, for example, a quantity of white powder which you think is cocaine, you may be charged with possession of cocaine, even if, on analysis, it turns out to be amphetamine sulphate.
The prosecution must prove that you had physical custody of the drugs, or controlled them in some way, and that you knew or suspected that drugs were present, and that they were illegal. Seeing someone else use a drug, or being close to drugs does not amount to possession (Searle 1971, Bland 1988).

Joint possession
If you own a pool of drugs with other people – cannabis for example, then handing a joint round the group does not amount to supply. Each person draws from a common pool, and therefore each person has control (Searle 1971).
Someone offering a cannabis smoke to another person not already in possession of the drug could be said to be supplying even if the joint is not handed over permanently. However, it would be difficult for anyone to act independently in controlling the drug (Moore 1979).

Traces
At one time you could argue in court that minute quantities of drugs were not “usable”. The courts have decided that “usability” is not relevant to drugs possession cases (Boyesen 1980).
There are some problems in prosecutions involving traces. Accurate analysis and identification of minute quantities of drugs may be difficult. Knowledge may also be a problem. Someone in possession of, for example, cannabis in a jacket pocket may not know that the drug is present.
Used syringes and needles may contain traces of illegal drugs. People using needle exchanges should check with local drugs agencies about the attitude of local police, who may agree not to prosecute in certain circumstances. The public interest may be taken into account by the police, who are able to exercise considerable discretion in enforcing the law (R v Metropolitan Police Commissioner 1968).
Traces of drugs found in urine or blood cannot be used as evidence to support a charge of possession of drugs.
(Hambleton v Callinan 1968.) But many people found in possession of traces may be tempted to admit past possession of drugs to the police.

Past possession
Traces of drugs can be used as evidence of past possession.
Such prosecutions can be regarded as oppressive (Pragiola 1977). More often, prosecutions for past possession use statements and admissions from suspects who have admitted taking illegal drugs in the past. The courts can rely on admissions of guilt by defendants in drugs cases with little corroborative evidence.
An occupier who saw people injecting heroin or freebasing cocaine on their premises would be under no legal obligation to stop them, provided they did not actively assist them. But the same occupier would have to stop the consumption of cannabis.
Occupiers of premises
The MDA places special obligations on occupiers of premises, who may not knowingly allow drugs production or supply. The law in this area is under review, and may change to make it an offence if an occupier does not stop the use of any illicit drug.

Premises
Premises can mean anything from a house to a boat or caravan which is not moving. An open field does not count as “premises”.
Responsibility for premises lies with occupiers, not owners. A person who is in a position to invite or exclude visitors, holds the key, or takes responsibility for premises will count as an occupier (Tao 1976).
People sharing houses or flats are in a difficult position. If one person uses cannabis with the knowledge of others, then the co- tenants could be prosecuted for allowing the premises to be used for smoking cannabis.
Knowledge
“Knowing” that drugs are being used, supplied or produced on premises mean deliberately or recklessly disregarding the obvious.

Supply of Drugs
Supply of drugs, or “trafficking” is a serious offence. It does not necessarily mean large scale dealing for profit. Simply handing certain controlled drugs to another person can count as supply, and may attract heavy penalties.
Possession with intent to supply
This is one of the most common “trafficking” offences. Possession with intent to supply includes all the elements of simple possession, and additional evidence about intent.
The prosecution may try to establish intent to supply in various ways. In some cases, the quantity of drugs involved is obviously too large for personal use.
In other cases, intent to supply can be established through statements and admissions made by suspects.
Evidence of drug paraphernalia such as scales, packaging and cutting equipment may be used as part of the prosecution. Police evidence on patters of drug use may be called. This evidence may be contested by calling more sympathetic experts for the defense.
Where a person has left drugs with a friend for safekeeping, anticipating that they be handed back on demand, the friend looking after the drugs is guilty of supply if the drugs are handed back, or they intend to hand them back. (Maginnis 1987)
Supply
“Supply” means different things in different cases. Sometimes, the courts concentrate on the physical transfer of drugs from one person to another (Delgado 1984).
At other times, the courts look at whether the person receiving the drugs has benefitted (Dempsey 1986).
Some drugs supply cases involve evidence from police observation, in which drugs are not fully identified.
Suspected suppliers may make admissions to the police, along with the people buying the drugs. Sometimes, purchases of drugs are persuaded to give evidence against contacts who supplied them.
When several friends pool money to buy drugs, then the person making the actual purchase and delivering the drugs will be supplying, even if all considered themselves to be jointly involved in the purchase (Buckley and Lane 1979).
Injecting someone with their own heroin is not a supplying offence, assuming that the drugs never leave the control of the person taking them, and the person injecting them is simply assisting (Harris 1969).
Sometimes, people who are not supplying drugs are charged with “being concerned” in supply. This means some kind of identifiable assistance such as telephoning a contact or similar helpful act.
Supplying intoxicating substances
The intoxicating Substances Act covers the supply of substances other than controlled drugs, such as solvents and lighter fuel.
Supply is illegal is the substance or its fumes are to be used to intoxicate a young person under 18.
A supplier must know or suspect that the young person concerned is under 18. People under 18 who supply to one another should not be prosecuted unless they are selling substances as part of a business.
Production of Controlled Drugs
Production of controlled drugs can mean illegal manufacture of drugs such as amphetamine sulphate and LSD for large sale distribution. It can also mean the cultivation of cannabis.
Although there is a special offence of “cultivating” cannabis, most people are now charged with production of the drug.
“Production” can be seen as a trafficking offence, or as a smaller scale offence, depending on the circumstances.
Knowledge is important. Someone who could establish that they did not know that the plant they were tending was cannabis would be not guilty of the offence (Champ 1979).
Admissions are also important. A person simply possessing psilocybin mushrooms is not committing an offence, as psilocybin mushrooms grow naturally within the UK. If a mushroom grower admits growing mushrooms for the purposes of using psilocybin (the active ingredient of the mushrooms), they are likely to be prosecuted.
Import / Export
The law on the importation and export of drugs is complex. The most important piece of legislation is the Customs and Excise Management Act 1979 (CEMA). Much of the legislation is directed at commercial traffickers, and is technical in nature. Importing and exporting controlled drugs are normally considered trafficking offences.
Import
The simplest offence is going through Customs carrying undeclared controlled drugs. But people quite remote from the physical act of passing through customs may be considered to be “concerned” with fraudulent evasion or attempted evasion of a prohibition or restriction.
Someone sent an unsolicited package of drugs by a friend abroad could be prosecuted if they decided to hold on to the drugs, even though they had not known of the existence of the package when it passed through customs.
Assistance given to an importer of drugs after entry to the UK could also lead to a charge.
Export
Similar conditions apply to the export of controlled drugs. Export of drugs can also be seen as a trafficking offence.
People travelling abroad can take certain drugs out of the country without making special arrangements.
Controlled drugs such as tranquilizes (Schedule 4) can be exported, provided they are in medicinal form, along with medicines containing very small proportions of controlled drugs such as codeine and morphine (Schedule 5).
People prescribed other controlled drugs such as methadone who need to travel with the drug should check to see if they need a license to export. In practice, different groups of people are treated differently by the criminal justice system.
A pensioner without a license needing to travel with controlled drugs would probably not be challenged while someone of suspect appearance getting treatment for an addiction might well be challenged, it is important to check with the country being visited that it is not against their law to import the drug.
Paraphernalia
Possession of drug taking apparatus is not illegal, provided that it is clean. Many objects used for drug taking may contain traces of illegal drugs, and of course, possession of drug taking apparatus could be used to support a charge of some kind, although other evidence would have to be available.
Supply and distribution of drug-taking kits such as pipes and so on is illegal under the Drug Trafficking offences Act 1986 (DTOA).
However, many items used by drug takers can be used for other purposes. A shop selling such goods as decorative novelty items would probably avoid prosecution.
Hypodermic needles and syringes are specifically exempt from the legislation, even if suppliers believe that they are likely to be used in the administration of illegal drugs (DTOA).
Forfeiture
Drugs found by the police are normally destroyed, by order of the court.
In suspected drugs trafficking cases, the courts and investigating officers enjoy wide powers to seek out financial information, and to assess the profits made form suspected drug trafficking under the DTOA.
The DTOA is a complex piece of legislation designed to make life difficult for large scale dealers. It imposes a duty on bank officials and other people whom they suspect of laundering and depositing drug money. Relatives and friends of suspected drugs traffickers are often caught up in the investigative proceedings.
Where someone has been convicted of a drugs trafficking offence in Crown Court (supply, intent to supply, importation etc.), the court must make enquiries to assess and recover proceeds of drug dealing.
In practice, often occur very soon after arrest. The court can make a restraint order preventing any person dealing in realizable property except as directed by the court.
Drug Trafficking
In making an assessment of drug proceeds, the courts rely on a retrospective assessment of police and customs officers, who look into financial dealings up to six years before the institution of criminal proceedings.
The burden of proof is on the defense (i.e., the convicted trafficker) to show that property and good during that period were acquired legitimately.
Evidence can be produced by the prosecution about the standard of living, lifestyle and so on.
Proceeding under the DTOA are very complicated. Husbands and wives of drug trafficking suspects may have their property frozen while matters are investigating. It is possible to apply to the court for a restraint order to be varied. Full legal advice and representation is essential.

Drugs Act 2005, Tough Choices and the Drug Interventions Program me (DIP)
Test on Arrest – The Drugs Act 2005 introduced new powers compelling police in certain, high-drug crime areas to test people arrested for certain “trigger” offences for the presence of Class A drugs. Failing to complete the drug test is a criminal offence in itself and can result in a fine, up to 3 months in prison or both.
Required Assessment – If an individual test positive for recent drug use of heroin, cocaine or crack, they will be compelled to attend one or two appointments with a drug worker, whether or not they are charged with the crime they were originally arrested for. Non-attendance is a criminal offence and can result in a fine, up to 3 months in prison, or both.
Restrictions on Bail – If charged with the offence for which you have tested positive (or any offence put to you during that period of detention), a court considering bail will be obliged to take your positive test into consideration. The test could be used as a reason to remand you in custody (for fear of further offending), or alternatively will mean the court must put a condition on your bail compelling you to attend the Drug Interventions Programme. Non-attendance at these appointments could result in your bail being revoked.
You have the right to appeal against any drug test. The on-site police tests are about 95% accurate. Many legally prescribed or over-the-counter opiates will produce a false positive. NB, methadone and buprenorphine (subutex) are not known to produce false positives.
If you do test positive, you have the right to say nothing in the Required Assessment. However, if you are charged with the offence, non-compliance with the Required Assessment could be considered during a bail hearing.
Home Office: Guidance for the Implementation of the DIP provisions of the Drugs Act 2005
Police and Criminal Evidence Act
The Police and Criminal Evidence Act 1984 (PACE) sets out police powers to stop, search and arrest, conditions of detention in police stations, and codes of practice governing treatment of prisoners.
Is a most important piece of legislation dealing with police powers to stop, search, arrest and detain ordinary citizens, and affects almost every aspect of detention procedure.
The police now have to keep detailed records about people detained. Custody officers have been introduced to deal with detainees.
Continued detention must be reviewed periodically, and there is a strict limit to the maximum period of detention before charge.
Police arrest people in order to hold them while they investigate offences and gain evidence for the prosecution. The length of time people can be held depends on the kind of offence police suspect they have committed. Under PACE, drugs offences are divided into:
arrestable offences, such as possession of illegal drugs
serious arrestable offences, such as supply of illegal drugs, importation and production.
Police Powers to Search
Important new addition (added 9/4/96): New anti-terrorist provisions were rushed through Parliament on Wednesday 3rd April, which will give the police power to search people without having to give reasonable cause for suspicion, and also allows them to search shoes and socks without taking the suspect to a police station.
Although designed as anti-terrorist provisions, they are likely to be used as power to conduct random drug searches.
It is not yet known when this extra provision will be implemented, although it is likely to be in the near future. Police can stop and question people whenever they wish. They are supposed to ask questions in order to decide whether or not grounds exist for a search.
A satisfactory explanation for “suspicious” behavior, should, according to police codes of practice, make a search unnecessary.
Police often try to get consent for search by describing a search as “just routine”. In fact, routine searches are illegal unless they are done with consent.
Searches with consent may be more thorough than those without, as there are rules governing conduct of searches without consent.
Searches without consent may only be done on “reasonable suspicion”. Grounds for “reasonable suspicion” may be based on furtive or other unusual behavior, time or place of activity, and tip offs. Belonging to a particular ethnic group, unusual dress, or police knowledge of previous convictions are not reasonable grounds.
Before searching someone against their will, police must:
identify themselves, giving their name and police station
explain grounds for suspicion
explain exactly what they are looking for
inform the person searched that a copy of the record of the search will be available if requested within a year
A public search should only be a superficial inspection of outer clothing. A more detailed search should be done by a police officer of the same sex. Searches for drugs may involve a detailed search at a police station.
Special legal provisions for drugs searches allow the police to take suspects to a police station without a formal arrest (Misuse of Drugs Act s23).
Intimate searches
Intimate searches of body orifices can be authorized in writing by a police superintendent who suspects that a Class A drug (such as cocaine or heroin) has been concealed with criminal intent.
The search must be conducted by a doctor or nurse in a hospital or clinic (Police and Criminal Evidence Act s55). An intimate search in relation to cannabis (a Class B drug) would be illegal.
Search of premises
Police have extensive powers to enter and search premises. Police can search at any time with consent. But with consent, they can only enter and search:
following an arrest for an arrestable offence
to execute a warrant (an authority from a court)
to arrest someone for a serious offence or an offence that is visibly taking place (e.g. visible drug taking) or are in hot pursuit
to prevent a breach of the peace (could be violence threatened from a house)
to protect life and limb
to recapture someone at large (such as an escaped prisoner)
or if the premises are in the immediate vicinity of a “serious arrestable offence” (such as robbery, supply of drugs, serious wounding).

Police can enter by force if they feel that delay in entering will lead to disposal of evidence (drugs, for example).
Evidence acquired during an unlawful search is admissible in court. Inviting police onto premises may imply consent to unforeseen actions.
An invitation onto premises to discuss, say, the loss of a bicycle, could become a drugs search if police become suspicious.
When police search premises, they often search individuals, even visitors, on the premises.
Usually they have the legal power to do so. They often ask questions which may amount to an interrogation. Police should supply occupiers of search premises with a paper that outlines their rights.
Special rules apply to search of people with confidential personal counselling and welfare responsibilities. Under PACE, some categories of confidential material are not available to police. But staff taking work home with them may find that files that would have been legally protected at work are unprotected at home.
Drug Offences and Rights in Custody
People suspected of “arrestable offences” are entitled to
have a friend or relative informed of their arrest
consult a duty solicitor or other solicitor for advice
consult police codes of practice
Many people detained sign a form saying they do not want to see a solicitor, which is usually a mistake. However, solicitors are often reluctant to deal with minor drugs offences. After 24 hours, people suspected of minor offences must either be charged or released.
Serious arrestable offences
People suspected of serious arrestable offences may be
held up to 36 hours without having anyone informed
held up to 36 hours without access to legal advice (on authority of a superintendent)
After 36 hours, access to a solicitor is guaranteed. Continued detention can be authorized by a magistrate in a series of stages up to a maximum of 96 hours
After 96 hours, people suspected of minor offences must either be charged or released

The police are trained in interrogation and are aware that some drug users are disoriented. They may play on this. Most people are prepared to do almost anything to get out of the police station – even to sign false statements admitting guilt.
The best approach to questioning in custody, is to insist that a solicitor is called. (See our ‘Rights on arrest’ page for more info.)
Although silence will probably lead to longer detention and perhaps some harassment, there are strict limits on detention, and eventually the police will have to release or make a charge.
Young people under 17 should not be questioned without an appropriate adult being present – a parent, or social worker.
Interviews taken without an appropriate adult present are never admissible in court. In dealing with the police it is useful to have a degree of self-awareness. Insisting on theoretical rights can be difficult without support, information and insight into how the police are likely to react.
Right to silence
Many drug users are convicted of offences because of verbal and written admissions made to the police.
Sometimes such admissions form part of the “facts” of a case, and may determine whether a person is charged with, say possession, or possession with intent to supply. Past possession charges are usually brought on the basis of admissions made to the police.
If you are in doubt about your rights, or what you should say, then insist on seeing a solicitor, and say nothing until you have spoken with them.
What is said during questioning will be of critical importance even without a formal caution. Everyone held in custody has the right to see the Duty Solicitor, for free legal advice.
Rules on detention
Many people held in police stations are not under arrest at all. They are said to be “helping police with their enquiries”. If they try to leave, however, they often find themselves under arrest.
Some people are not sure whether or not they are under arrest. If they cannot leave the station on request, they should insist that they are arrested and booked in by the custody officer.
Arrest means being under forcible detention and this would start the PACE “clock”. Under PACE, most important rules governing detention apply only if the person is under arrest.
Generally speaking, it is an advantage to have been arrested. Strict time limits to detention apply and it is possible to sue in cases of wrongful arrest.
A custody officer is responsible for the welfare of prisoners. The officer is independent of the investigation. Anyone booked into a police station should make sure that the arrival time is logged correctly. The custody officer has a special duty to call a doctor if it is known or suspected that a detainee has been using drugs (Police and Criminal Evidence Act Codes of Practice s66).
Helping someone under arrest
The best way to help someone who has been arrested is to get a solicitor involved immediately. All help at a police station is covered under non means tested legal aid.
If in doubt, it is always advisable to speak to a solicitor. You can receive advice from a solicitor free of charge at the police station.
EMTALA LAW
In 1986, the U.S. federal government passed the Emergency Medical Treatment and Labor Act (EMTALA). This act requires any hospital that accepts payments from Medicare to provide care to any patient who arrives in its emergency department for treatment, regardless of the patient’s citizenship, legal status in the United States or ability to pay for the services. EMTALA applies to ambulance and hospital care.
EMTALA was developed to combat “patient dumping,” the practice of refusing to treat people who did not have the ability to pay for healthcare services. It guarantees those with insufficient means will not be turned away from emergency medical care. Most US hospitals participate in Medicare so that in effect the law covers virtually all hospitals.
EMTALA is contained within the Consolidated Omnibus Budget Reconciliation Act (COBRA) and falls under the auspices of CMS, the Center for Medicare Services.
Legal Duties of Hospitals Under the EMTALA Law

  1. Medical Screening Exams: Anyone arriving at a hospital emergency department must receive medical screening examinations to determine whether they are in a medical emergency. The law also says these must be done regardless of the financial or insurance status of the patient, in order of priority based only on medical need. EMTALA has legal definitions of “emergency medical condition” and of the term “stabilized.” Further, the CMS says this requirement applies to any facility that provides emergency services, not just to designated emergency rooms. If the medical screening exam finds that there is no emergency medical condition, they are not required to provide further treatment.
  2. Stabilize or Transfer: If an emergency medical condition exists, the patient’s condition must be treated to stabilize it or to make a transfer to an appropriate facility. The emergency room cannot simply send a patient home with a condition that is expected to deteriorate further. The patient has to be informed of any transfers and give consent. A patient sent home in an unstable condition or sent to a hospital that doesn’t have the facilities to treat their condition could have legal recourse under EMTALA.
  3. Hospitals are Required to Take Transfers for Specialized Services: This addresses the practice of reverse-dumping, where hospitals with specialized units, such as a burn unit, only accept patients with the ability to pay. Under EMTALA, they must take any appropriate transfer. However, the law gives them an escape clause. They must accept the transfer if they have the capacity. If they don’t have any open beds or they are already on ambulance diversion, they don’t have to take a transfer. However, if they tell a hospital requesting a transfer that they are full but the patient gets sent to them anyway (dumping) they must treat the patient when he arrives. They can report the sending hospital for an EMTALA violation later.
    EMTALA Does Not Provide Free Care
    While hospitals are required to examine and treat patients under EMTALA, their services are not free. They may bill the patient and sue them for unpaid bills. They do not need to provide outpatient care after discharge, but they must refer them to clinics and programs that may provide them at a reduced cost or for free. Hospitals can’t refuse to treat patients presenting under EMTALA who already owe them money.
    English tort law
    English tort law is the law governing implicit civil responsibilities that people have to one another, as opposed to those responsibilities laid out in contracts. It provides legal remedies, often the payment of money, to those who have been damaged by someone else’s failure to meet these implicit responsibilities. Other countries’ tort laws can work quite differently.
    It is to be distinguished from criminal law, which is often thought of as dealing with an individual’s responsibility to the state, where a court has the power to restrict people’s freedoms. Often an act can result in both a criminal and a civil case, for example if someone injures a pedestrian while driving dangerously the state may prosecute them for dangerous driving, whilst the pedestrian might bring a tort case against them failing in their responsibility to not knowingly put other people at risk. The law of tort covers several areas such as negligence, each individual tort has a certain number of requirements needed to be met.
    Epidemic act.
  4. This Act has been amended in its application to–
    (1) The Punjab by the Epidemic Diseases (Punjab Amendment) Act, 1944 (Punjab Act 3 of 1944); in East Punjab by East Punjab by East Punjab Act 1 of 1947;
    (2) The C.P. and Berar by the C.P.and Berar Epidemic Diseases (Amendment) Act, 1945 (C.P.and Berar Act 4 of 1945.).
    An Act to provide for the better prevention of the spread of Dangerous Epidemic Diseases.
    WHEAREAS it is expedient to provide for the better prevention of the spread of dangerous epidemic disease;
    It is hereby enacted as follows: –
  5. To take special measures and prescribe regulations as to dangerous epidemic diseases.
    (1) When at any time the 1[State Government] is satisfied that 2[ the State ] or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease, the 1[State Government, if 3[ it] thinks that the ordinary provisions of the law for the time being in force are in sufficient for the purpose, may take, or require or empower any person to take, such measures and, by public notice, prescribe such temporary regulations to be observed by the public or by any person or class of persons as 3[it] shall deem necessary to prevent the outbreak of such disease or the spread thereof, and may determine in what manner and by whom any expenses incurred (including compensation if any) shall be defrayed.
    (2) In particular and without prejudice to the generality of the foregoing provisions, the {Subs.by the A.O.1937, for” G.G.in C.”} [State Government] may take measures and prescribe regulations for–
    (b) The inspection of persons travelling by railway or otherwise, and the segregation, in hospital, temporary accommodation or otherwise, of persons suspected by the inspecting officer of being infected with any such disease.
  6. Subs. For the words “Provincial Government” by A.L.O., 1950
  7. Subs., for the words “the Province”, by A.L.O., 1950. 3. Subs., for the words “he”, by A.L.O., 1950. 4. Paragraph (a) omitted, by A.L.O., 1950.
  8. Sub-section (3) repealed by the Devolution Act, 1920 (33 of 1920). S. 2 and Sch. 1.
    2A. Power of Central Government.
    1[2A. Power of Central Government.
    When the Central Government is satisfied that Indian or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease and that the ordinary provisions of the law for the time being in force are insufficient to prevent the outbreak of such disease or the spread thereof, the Central Government may take measures and prescribe regulations for the inspection of any ship or vessel leaving or arriving at any port in 2[the territories to which this Act extends] and for such detention thereof, or of any person intending to sail therein, or arriving thereby, as may be necessary.]
  9. Subs. by the A.O.1937, for s.2A ins. by Act 38 of 1920, s.2 and Sch.I.
  10. Subs. by the Adaptation of Laws (No.2) Order, 1956 for” a Part A State or a Part C State”.
  11. Penalty.
    Any person disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable under section 188 of the Indian Penal Code. (45 of 1860).
  12. Protection to persons acting under Act.
    No suit or other legal proceeding shall lie against any person for anything done or in good faith intended to be done under this Act.
    Error of judgement
    Supreme Court held that an error of judgement is not amount to Criminal Negligence. Huge relief for doctors as Supreme Court quashed criminal case registered against doctor on the allegations of negligence.
    In a very recent judgement pronounced by Hon’ble Supreme Court of India on 6 April 2014 in Criminal Appeal No. 636 of 2017 titled “Dr. Sou Jayshree Ujwal Ingole vs State of Maharashtra & Anr.” Hon’ble court quashed the criminal proceedings against the appellant doctor thereby holding that an error of judgement is not amount to criminal negligence.
    The appellant doctor filed appeal before Hon’ble Supreme Court of India against order dated 18 June 2014 passed by Hon’ble High Court of Mumbai, Nagpur bench whereby the petition filed by the appellant doctor under section 482 of the Code of Criminal Procedure for quashing of the criminal proceedings/FIR, was dismissed by Hon’ble High Court.
    The Hon’ble Supreme Court referred to its earlier decision titled “Jacob Mathew versus State of Punjab and Anr.” reported at (2005) 6 SCC 1 and reiterated the principles laid down in the said judgement and held that an error of judgement does not amount to criminal negligence and set aside the order and judgement passed by Hon’ble High Court and quashed the entire criminal proceedings against the appellant doctor.

Shekhar Gupta (Advocate) and Dr K K Aggarwal (National President IMA)

Judgment:
Dr. Jayshree Ujwal Ingole vs State Of Maharashtra & Anr on 6 April, 2017
Bench: Madan B. Lokur, Deepak Gupta
IN THE SUPREME COURT OF INDIA, CRIMINAL APPELLATE JURISDICTION, CRIMINAL APPEAL NO. 636 OF 2017, Arising out of SLP (Crl.) No. 7186 of 2014]

Dr. Sou Jayshree Ujwal Ingole Appellant(s) vs State of Maharashtra & Anr. . . . Respondent(s)

                           J U D G M E N T

Deepak Gupta, J.

  1. The appellant herein is a doctor and has challenged the Order dated 18.06.2014 passed by the High Court of Judicature of Bombay, Nagpur Bench in Criminal Application (APL) No. 354 of 2012, whereby the petition filed by the appellant under Section 482 CrPC for quashing the criminal proceedings initiated against her under Section 304-A IPC was dismissed.
  2. Briefly stated the facts of the case are that one Shrikrishna Gawai (hereinafter referred to as the ‘deceased’) was admitted on account of injuries suffered in a road accident, in the Irvin Hospital, Amravati on 29.08.1997 for medical treatment. It is the admitted case of the parties that the deceased was suffering from Hemophilia, a disease in which there is impairment of blood clotting. Therefore, special attention was required to be paid during the treatment of the patient. It is not disputed that one Dr. Manohar Mohod was on duty as an Emergency Medical Officer. On 29.08.1997 the patient was treated both by the appellant and Dr. Mohod. On 30 & 31.08.1997, the deceased was attended upon by Dr. Dhirendra Wagh. Thereafter also, the deceased remained in the Hospital under the treatment of the appellant and Dr. Mohod.
  3. Dr. Mohod, the Emergency Medical Officer attended upon the deceased on 05.09.1997 at 9.00 p.m. and found that he was suffering from abdominal pain and, thereafter, a call was sent to the appellant, who was Surgeon on Call. It is not disputed that the appellant went to the Hospital on being called. She attended upon the deceased and made a note that a Physician be called. Thereafter, she left the Hospital. In the morning on 06.09.1997, the condition of the deceased worsened and he died.
  4. The main allegation against the appellant is that after having called for a Physician, she did not wait in the hospital and did not attend upon the patient, especially when the patient was suffering from Hemophilia. The Physician, Dr. Avinash Choudhary, who is accused No. 1, did not turn up in the hospital. Even next morning on 06.09.1997, when Dr. Mohod again attended upon the deceased, the Physician Dr. Choudhary was not present and, unfortunately, the patient died. Thereafter, a complaint was lodged in the police station, wherein it was alleged by the brother of the deceased that the deceased died as a result of negligence of the three doctors. The complaint was investigated as Crime No. 317 of 1997 which was initially filed against Dr. Avinash Choudhary only but, later on, the names of the appellant Dr. Jayshree Ujwal Ingole and Dr. Manohar Mohod were also included.
  5. A separate Departmental Enquiry was also carried out and, in that enquiry, all the three doctors were held negligent in performing their duties. Dr. Mohod was debarred from an annual increment as penalty; the appellant Dr. Jayshree Ingole was permanently prohibited from entering Irvin Hospital, Amravati, and Dr. Avinash Choudhary was transferred. It would be pertinent to mention that Dr. Mohod was discharged in the criminal case on the ground that no case of negligence was made out against him.
  6. The appellant herein filed a petition for quashing the charge against her, but this petition was rejected by the learned Single Judge of the High Court of Bombay at Nagpur mainly on the ground that the question whether inaction of the appellant in leaving the deceased at about 11.00 p.m. and not waiting for the Physician to turn up, amounted to a rash and negligent act on her behalf, would be decided during trial.
  7. We have heard learned counsel for the parties. Learned counsel for the appellant has placed reliance on the judgment of this Court in Jacob Mathew v. State of Punjab & Anr.[1], wherein this Court held that the court should be circumspect before instituting criminal proceedings against a medical professional.
    This Court has held that negligence comprises of (i) a legal duty to exercise due care on the part of the party complained of; (ii) breach of the said duty; and (iii) consequential damage.
    It was held that in cases where negligence is alleged against professionals like doctors the court should be careful before instituting criminal proceedings. It is not possible for any doctor to assure or guarantee that the result of treatment would invariably be positive. The only assurance which a professional can give is that he is professionally competent, has requisite skill and has undertaken the task entrusted to him with reasonable care. It would be pertinent to quote the following relevant observations made in Jacob Mathew’s case (supra):
  8. No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Else it would be counter-productive. Simply because a patient has not favorably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur.
  9. A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient.
  10. If the hands be trembling with the dangling fear of facing a criminal prosecution in the event of failure for whatever reason — whether attributable to himself or not, neither can a surgeon successfully wield his life-saving scalpel to perform an essential surgery, nor can a physician successfully administer the life-saving dose of medicine. Discretion being the better part of velour, a medical professional would feel better advised to leave a terminal patient to his own fate in the case of emergency where the chance of success may be 10% (or so), rather than taking the risk of making a last ditch effort towards saving the subject and facing a criminal prosecution if his effort fails. Such timidity forced upon a doctor would be a disservice to society.
  11. The purpose of holding a professional liable for his act or omission, if negligent, is to make life safer and to eliminate the possibility of recurrence of negligence in future. The human body and medical science, both are too complex to be easily understood. To hold in favor of existence of negligence, associated with the action or inaction of a medical professional, requires an in-depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability.
    After discussing the entire law on the subject, this Court concluded as follows:
    “48. We sum up our conclusions as under:
    (1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: “duty”, “breach” and “resulting damage”.
    (2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, 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 which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.

(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
(4) The test for determining medical negligence as laid down in Bolam vs. Friern Hospital Management Committee (1957) 1 WLR 582 at p. 586 holds good in its applicability in India.
(5) 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 offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. 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.
(6) The word “gross” has not been used in Section 304-A 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 304-A IPC has to be read as qualified by the word “grossly”.
(7) 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.
(8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, especially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.”

  1. Applying the law laid down in Jacob Mathew’s case (supra), we are of the view that this is not a case where the appellant should face trial especially when 20 years have already elapsed. The only allegation against the appellant is that she left the patient. We must remember that the appellant was a Surgeon on Call. She came to the hospital when she was called and examined the patient. As per her judgment, she could find no evidence of bleeding or injury and, therefore, she had noted that a Physician be called. Thereafter, she left the hospital at about 11.00 p.m. True it is that she did not wait for the Physician to come, but it can be assumed that she would have expected that the Physician would come soon. This may be an error in judgment but is definitely not a rash and negligent act contemplated under Section 304-A IPC.
    It is nobody’s case that she was called again by the Nursing staff on duty. If the condition of the patient had worsened between 11.00 p.m. and 5.00 a.m., the next morning, the Nursing staff could have again called for the appellant, but they did not do so. Next morning, the doctor on Emergency Duty, Dr. Mohod attended upon the patient but, unfortunately, he died.
  2. In the facts and circumstance of this case, it cannot be said that the appellant is guilty of criminal negligence. At best it is an error of judgment.
  3. In view of the above discussion, we are of the view that no case of committing a rash and negligent act contemplated under Section 304-A IPC is made out against the appellant. Her case is similar to that of Dr. Mohod who has been discharged. We, accordingly, allow the appeal, set aside the judgment dated 18.06.2014, passed by the learned Single Judge of the High Court of Bombay, Nagpur Bench in Criminal Application (APL) No.354 of 2012 and quash the criminal proceedings initiated against the appellant vide order dated 28.02.2001, passed by the Judicial Magistrate, First Class, Court No.6, Amravati in Regular Criminal Case No. 310 of 1999 in FIR Crime No.317 of 1997. Pending application(s), if any, stand(s) disposed of.
    Evergreening

Evergreening is any of various legal, business and technological strategies by which producers extend their patents over products that are about to expire, in order to retain royalties from them, by either taking out new patents (for example over associated delivery systems, or new pharmaceutical mixtures), or by buying out, or frustrating competitors, for longer periods of time than would normally be permissible under the law.
Evergreening is not a formal concept of patent law; it is best understood as a social idea used to refer to the myriad ways in which pharmaceutical patent owners use the law and related regulatory processes to extend their high rent-earning intellectual property rights particularly over highly profitable (either in total sales volume or price per unit) “blockbuster” drugs.
Thus, while the courts are an instrument frequently used by pharmaceutical brand name manufacturers to prolong their patent royalties, evergreening is rarely mentioned explicitly by judges in patent protection cases. The term usually refers to threats made to competitors about a brand-name manufacturer’s tactical use of pharmaceutical patents (including over uses, delivery systems and even packaging), not to extension of any particular patent over an active product ingredient.
The evergreening process has caused some controversy in the pharmaceutical industry. In this context, evergreening may be used by manufacturers of a particular drug to restrict or prevent competition from manufacturers of generic equivalents to that drug.
Goldwater rule

Dr Brendel is a consultant to the American Psychiatric Association (APA) Ethics Committee as well as Director of the Master of Bioethics degree program at the Harvard Medical School Centre for Bioethics, a practicing clinical and forensic psychiatrist at Massachusetts General Hospital, and an Assistant Professor of Psychiatry at Harvard Medical School.
On November 8, 2016, voters elected Donald J. Trump the 45th President of the United States. Trump’s supporters saw strength in his anti-establishment rhetoric, unorthodox public persona, and channeling of resentment of the political status quo. His detractors felt otherwise. Post-inauguration, President Trump continued to behave the way he had as Candidate Trump. Those who supported the President rallied behind him. Those who never did or could no longer support the new President continued the critique.
Some mental health professionals (including Dr Glass), troubled by the new normal, went to the New York Times, without examining the President, without his consent, and based only on the limited knowledge from publicly available data about the President, to publicly air their opinion that the “grave emotional instability indicated by Mr. Trump’s speech and actions makes him incapable of serving safely as president.”
A small number of psychiatrists have been critical of our profession’s restraint regarding public comments by psychiatrists about the mental health of the 45th President. I am the unnamed colleague mentioned in Dr Glass’s article and therefore appreciate the request from Psychiatric Times to offer this critical engagement of the Dr Glass’s critique of the Goldwater Rule, the ethics position of the American Psychiatric Association that prohibits psychiatrists from volunteering public professional opinions about individuals in the public eye.
Precisely in response to questions about the role of psychiatrists in the situation that a psychiatrist, in good faith, believes a public individual poses a threat to the country or national security, the APA Ethics Committee, to which I serve as a consultant, in March of this year clarified the APA’s longstanding Goldwater Rule. One misconception about the APA’s position was that it only applied to rendering a psychiatric diagnosis of a public figure.
However, the Goldwater rule has, since its inception, referred broadly to “professional opinions,” not just to diagnosis. The March 2017 Ethics Committee Opinion sought to clarify the meaning of “professional opinion” and reaffirm the rationale for the APA position. It was not an expansion of the decades-old APA position, and it is not a gag rule. It does, however keep medical diagnosis in a medical setting and out of the media.
At the core of Goldwater doctrine are the fundamental considerations that psychiatrists do their work and formulate psychiatric opinions with respect for persons (including permission and privacy) and through established methods, including examination, history-taking, and collateral inquiry. Dr Glass attempts to obfuscate this ethical underpinning of the Goldwater position, in part, by drawing an artificial distinction between the professional role of the psychiatrist in clinical and non-clinical settings. However, the sound principles of ethics and professionalism apply regardless of whether an encounter is what he would define as clinical or non-clinical.
A first consideration behind Goldwater is the fundamental ethical principle of respect for persons. In order to respect persons, psychiatric evaluation of an individual occurs with consent or other authorization and with clear parameters of expectations regarding privacy of the encounter and assessment. Respect for persons in the setting of rendering professional judgments does not require that an individual establish a clinical relationship. Even absent an examination, making professional judgments about an individual’s mental health is intrusive and can have negative consequences. We need not look further than Barry Goldwater to see that these conclusions, even when “non-clinical,” can be harmful.
A second justification for the Goldwater Rule involves the methods of the profession: psychiatric evaluation and diagnosis is a medical endeavor that occurs in the context of an evaluation, based on thorough history taking, examination, and collateral information. Psychiatric opinions based on insufficient data and/ or method, whether they include diagnoses, compromise both the integrity of the individual psychiatrist and the profession. This behavior also has the potential to lead patients to question the rigor and confidentiality of their own care, or discourage those suffering from mental illness from seeking help for the same reasons.
It is simply not the case that there are separate standards for “clinical” and “non-clinical” contexts. Rendering an opinion, as a psychiatrist, is a medical opinion in any context. The difference is that when it occurs in the media based on observation from afar, or what the author considers a “non-clinical” context, the opinion is given without the rigor and methodology that justifies its conclusions. It is conjecture, albeit based on general psychiatric knowledge and accumulated experience, masquerading as medical truth about a particular individual. The statement, in other words, seeks validation by proxy of the professional qualifications and general psychiatric knowledge of the speaker as a substitute for the actual work and expertise of the profession required to justify the conclusion. And the public nature of the statement draws attention to the speaker rather than focusing on the medical interest of the subject of the statement.
The ethical psychiatrist’s conduct in the media is no different from the ethical conduct of any other physician. In the example of an orthopedist offered by the author, the orthopedist may consult to the media with clear articulation of the parameters that he or she has not examined the particular individual, does not have permission to speak about the particular individual, but will offer general information about types of injuries or other conditions and their care. Alternatively, if a diagnosis is publicly known, the orthopedist may discuss, in general, the features of the condition, its treatment, and expected course. The Goldwater position permits, even encourages, the same from psychiatrists in order to educate the public about psychiatric illnesses and their treatment.
The Goldwater position also aims to prevent stigma by delineating the bounds of professional norms and creating separation between the discourse of capacity to govern and the diagnosis of a mental illness. Linking capacity to govern, a political and legal determination, with mental illness per se stigmatizes mental illness by erroneously characterizing the mere presence of psychiatric symptoms as incompatible with performance of one’s responsibilities for governance. Especially for those in the public eye, this linkage may perpetuate a chilling effect on seeking treatment for mental health concerns. Instead, public education that psychiatric symptoms are treatable, common, and even expected in some situations has the potential to destigmatize treatment-seeking.
Uncoupling the public discourse of capacity to govern from the rubric of mental illness further allows the determination of fitness to govern to remain squarely where it constitutionally belongs, in the government itself. In the case of the president, the 25th Amendment provides a framework for addressing concerns of presidential fitness. Within this framework, if a psychiatrist has actual knowledge or serious concern about the mental health and fitness of a president, the appropriate audience with whom to share this concern is not the New York Times or other media outlet, but privately with the medical or other government personnel whose role it is to evaluate the health and fitness of the President to continue in that role.
The difference in the audience and public nature of the professional opinion separates politics from medicine, and gives the psychiatrist who feels strongly about the ability of the president to govern an appropriate forum to voice his medical concerns. As Dr Glass states, there are indeed two interests at stake in this discussion: the issue of the profession’s public image and members’ rights to follow their conscience. Taking the discussion out of the media and into the medical realm addresses both of these considerations.
The key to Goldwater is that psychiatrists should not be rendering professional opinions on their own account in the press or on TV without license and inconsistent with the methods of the profession. Goldwater has always intended to protect the integrity of psychiatric practice by highlighting the perils of proceeding publicly, without license, and with insufficient data in making assessments about the mental health of public figures. It is not meant to and does not exclude psychiatrists from important work in the public interest.
GST AND NURSING HOME AND PATHOLOGY LABS

Dhirajlal Rambhia KVO Merau Kutchh Health Care Services by a clinical establishment, an authorised medical practitioner or para-medic is exempted under GST. Under this exemption, all treatment or diagnosis or care for any illness, injury, deformity, abnormality or pregnancy by a clinical establishment is covered. Authorized medical practitioners in any recognized branch of medicine like private medical practitioners (doctors), physiotherapists are also exempted from service tax. The term para-medico is not defined in the Act.
However, it has been clarified in the Education Guide that Paramedics are trained health care professionals, for example nursing staff, physiotherapists, technicians, lab assistants, etc. Services by them in a clinical establishment would be in the capacity of employee and not provided in independent capacity and will thus be considered as services by such clinical establishment.
Similar services in independent capacity are also exempted. Such treatment or care of patient could be in any recognized system of medicines in India like Allopathy, Naturopathy, Ayurveda, Homoeopathy, or Unani. These systems of medicines are recognized in terms of cl. 2(h) of the Clinical Establishments Act, 2010. Any other system of medicine that may be recognized by the Central Government is also been entitled for this exemption. However, it does not include hair transplant or cosmetic or plastic surgery, except that such surgery is undertaken to restore or reconstruct anatomy or functions of body affected due to congenital defects, developmental abnormalities, injury or trauma; The clinical establishment would mean any hospital, nursing home, clinic, sanatorium or any other institution by whatever name called. It could be a place established as a part of an establishment or any private diagnostic center like x- ray clinic, pathological laboratory or any diagnostic or investigative center.
GST act and health care
Question on GST act: I am a practicing Clinical Doctor. I purchase medicines from suppliers and in the process pay them GST (previously called as VAT) on the bills received from them. I then dispense medicines to my patients and issue them receipts including consultation dispensing fees. It goes without saying that the cost of medicines so dispensed to medicines includes the GST component too. Am I covered under the GST Act? To what extent are healthcare services covered under the GST Act? Are healthcare products covered under the GST Act? How are products different from services as per the GST Act? Do I have to register for a GST number under the GST Act, 2016? Can I recover ‘input tax credit’ (as paid to supplier’s vis-a-vis when collected from patients while dispensing medicines to them) under the GST Act?
Answer: 1. Healthcare services are exempt from GST under the GST Act, 2016. Healthcare products are not exempted, however. Healthcare products are chargeable. 2. Healthcare services include services rendered for treatment at a healthcare facility. Healthcare products include medicines, instruments, machines, equipment’s, infrastructure, etc. 3. When a Doctor dispenses medicines, they form part of healthcare services (as per the GST Act) and for a reasonable period of time (as per IMC Rules, 2002), they are nevertheless ‘healthcare services’ as a whole and are therefore not chargeable to GST. Please note that ‘services’ are defined under the GST Act, but ‘reasonable period’ is not defined by either the GST Act, 2016 or the Indian Medical Council Rules, 2002. 4. Dispensing is not same as selling. Selling is not same as dispensing. When a Doctor charges a fee for services rendered that includes fees medicines as a whole, it is a service (as per GST Act) and called dispensing (as per IMC Rules). It is not called as selling medicines. This is exempted under the GST Act. 5.. However, if a Doctor charges for medicines/other healthcare products solely, these are chargeable for GST. 5. There is no need for Doctors to register under the GST if they are providing only healthcare services. 6. If they are selling, then only one needs to register. Anyways, a Doctor cannot sell medicines unless he is involved in a trade of medicines/healthcare products. 7. In short, GST does not change anything for practicing Doctors. GST is Goods & Services Tax, and replaces many taxes like VAT, etc. as they were in use previously. 8. Input tax credit can be availed by Doctors if they are involved in a trade of medicines/healthcare products, not while dispensing medicines to their patients. –
GST AND PHARMA INDUSTRY

The long-awaited Goods and Services tax (GST) Bill has been passed by both houses of India. There will be significant improvement in Indian Pharmaceutical industry’s supply chain efficiency as well as a decline in manufacturing cost of Pharmaceutical products.
The long-awaited Goods and Services tax (GST) Bill has been passed by both houses of India. There will be significant improvement in Indian Pharmaceutical industry’s supply chain efficiency as well as a decline in manufacturing cost of Pharmaceutical products.
Post GST, Pharmaceutical industry’s traditional cost and distribution model will get replaced by supply chain efficiencies. The central tax subsumed under GST and interstate transactions between two dealers will become tax neutral. This will lead to decrease in cost which can be added to margins.
GST will also have positive effect on warehousing strategy. There are many of the pharmaceutical companies maintaining their warehouses in different states in order to avoid Central Sales Tax (CST) of different states. Post GST, manufacturers can set their warehouses at their strategic locations and consolidation of warehouses will take place across the sector.
There are various negative impacts on industry post GST. The medicines which are taxed at 5 per cent in some of the states will witness increment of another 13 per cent. In addition, it will impact free-drug samples, bonus schemes and the expired material return system followed by companies from the sector. Overall, on the Pharmaceutical sector impact will be neutralized.
The Goods and Services tax (GST) is one of the India’s biggest indirect tax renovations. It is expected to be beneficial for Indian drug makers in long run as its objective is to simplify tax structure and bring operational efficiency. However, the details such as the application of the rates to Pharma is not known and we think that the government will stress on the fact that essential medicines should have minimum taxes. However, GST is welcomed as it creates a level playing field for pharmaceutical companies and will eventually benefit the consumers. Considering the health care and Pharma industry, it is expected that the new GST regulation would benefit the consumers by making affordable health care. The whole industry is waiting for the details of tax rates, exemptions and legislative framework for implementation that is to be finalized by the GST Council.
It is believed that information technology will play a crucial role in its effective execution and hence it is necessary to have durable infrastructure to ensure seamless compliance and tax administration but analysts warned that there will be very less effect on inflationary impact of GST on prices of medicines in the short run of one or two years. Also, the impact on pricing of drugs will be neutral up to 12% tax rate and beyond that there will be inflationary effect to some extent. The main concern is the rate of GST must be kept at a competitive level in order to have no increase in prices of drugs and medicines.
GST may also have impact on companies to clean up their supply chain in order to save taxes. GST will be a win-win situation for both pharmaceutical companies and consumers. The simplification of supply chain and improved operating environment will alone add 2% to the size of the Pharma market and even a 2% reduction in production or distribution cost of medicines will add the profits up to 20%. It is the single biggest benefit in the arm for the pharmaceutical industry and it creates competitive advantage for those who move early. The Indian pharmaceutical industry has the domestic turnover of over $15 billion and has been witnessing high growth in the past decade but it is still facing problems like cumbersome taxation, heavy competition and increasing price controls and the new GST regulation will overcome such problems. The main drawback of the GST is that it is still not clear that whether the healthcare sector as well as life-saving drugs and medical devices will be continues to be exempted from the taxes after the implementation of the Act.
GST to benefit pharma industry, but pricing remains a concern
GST is expected to be a win-win situation for drug makers as it will not only simplify tax structure but also create a level-playing field for pharmaceutical companies
The goods and services tax (GST), India’s biggest indirect tax reform, is expected to be beneficial for Indian drug makers in the medium to long run as it aims to simplify tax structure and bring operational efficiency. However, concerns about drug prices, exemptions and compliance remain.
“The details such as what rate is applicable to pharma is not known, but we think the government will be conscious of the fact that essential medicines should have minimum taxes,” said D.G. Shah, secretary general of Indian Pharmaceutical Alliance, the industry lobby group that represents large domestic Indian drug makers.
Shah welcomed GST saying that it creates a level playing field for pharmaceutical companies and will eventually benefit consumers.
“As far as the health care and pharma industry is concerned, it is expected that the new GST legislation would benefit the consumers by making affordable health care a reality,” said Ramesh Swaminathan, chief financial officer and executive director of Lupin Ltd, India’s third largest drug maker.
Swaminathan said his company is waiting for details such as tax rates, exemptions and legislative framework for implementation that needs to be finalized by the GST Council.
“We believe that IT will play a crucial role in its effective execution, therefore it is necessary to have robust infrastructure to ensure seamless compliance and tax administration,” Swaminathan said.
Analysts warned that there could be mild inflationary impact of GST on prices of medicines in the short term of one-two years. “Up to 12% tax rate, the impact on pricing of drugs will be neutral. Beyond that, there will be some inflationary effect,” said an analyst tracking the sector who didn’t want to be named citing his company’s policy.
“The concern is that the rate of GST should be kept at a competitive level so that there is no increase in prices of drugs and medicines,” said Utkarsh Palnitkar, partner and head-pharmaceuticals and life sciences at KPMG in India
GST may also require companies to clean up their supply chain, to save taxes.
“Most likely, there will be a need to move to a hub-and-spoke model with primary and secondary hubs across states which could also necessitate an overhaul in the way companies choose their warehousing network with cities like Chandigarh, Lucknow, Guwahati and Nagpur emerging as primary hubs in addition to the metros,” said Palnitkar of KPMG.
Most analysts have pointed out that despite initial issues of tax rate and compliance, in the long run GST will be a win-win situation for both pharmaceutical companies and consumers.
“The simplification of supply chain and improved operating environment will alone add 2% to the size of the pharma market,” Sujay Shetty, leader of the pharma and life sciences at PWC India.
Even a 2% reduction in production or distribution cost will add to the profits by over 20%. It could be the single biggest shot in the arm for the pharmaceutical industry and create competitive advantage for those who move early,” said Manish Panchal, practice head-chemicals, life science and supply chain, and Siddharth Paradkar, principal-logistics and supply chain, at Tata Strategic Management Group in their latest report.
The Indian pharmaceutical industry, with a domestic turnover of over $15 billion, has been witnessing high growth over the past decade. But it is facing problems like cumbersome taxation, heavy competition and increasing price controls.
Guidelines for issuing a Medical Certificate

(a) Medical certificates are legal documents. Medical practitioners who deliberately issue a false, misleading or inaccurate certificate could face disciplinary action under the Indian Medical Council (Professional Conduct, Etiquette and Ethics), Regulations, 2002.
b) The certificate should be legible, written on the doctor’s letterhead and should not contain abbreviations or medical jargon.
The certificate should be based on facts known to the doctor. The certificate may include information provided by the patients but any medical statements must be based upon the doctor’s own observations or must indicate the factual basis of those statements.
C) The certificate should: –

  1. Indicate the date on which the examination took place
  2. Indicate the degree of incapacity of the patient as appropriate
  3. Indicate the date on which the doctor considers the patient is likely to be able to return to work
  4. Be addressed to the party requiring the certificates evidence of illness e.g. employer, insurer, magistrate Indicate the date the Certificate was written and signed.
  5. Name, signature, qualifications and registered number of the consulting Registered Medical practitioners
  6. The nature and probable duration of the illness should also be specified.
  7. This certificate must be accompanied by a brief resume of the case giving the nature of the illness, its symptoms, causes and duration.
  8. The medical certificate under normal circumstances, as a rule, should be prospective in nature i.e. it may specify the anticipated period of absence from duty necessitated because of the ailment of the patient. However, there may be medical conditions which enable the medical practitioner to certify that a period of illness occurred prior to the date of examination.
  9. Medical practitioners need to give careful consideration to the circumstances before issuing a certificate certifying an illness prior to the date of examination, particularly in relation to patients with a minor short illness which is not demonstrable on the day of examination and should add supplementary remarks, where appropriate, to explain the circumstances which warranted the issuances of certificate retrospective in nature.
  10. It is further observed that under no circumstances, a medical certificate should certify period of absence from duty, for a duration of more than 15 days. In case the medical condition of the patient is of such a nature that it may require further absence from duty, then in such case a fresh medical certificate may be issued.
  11. Record of issuing medical certificate-Documentation should include: Patient to put signature/ thumb impression on the medical certificate. Identification marks to be mentioned on medical certificate That a medical certificate has been issued
  12. An official serially numbered certificate should be utilized. The original medical certificate is given to the patient to provide the documentary evidence for the employer. The duplicate copy will remain in the Medical certificate book
    We can deny it …. only patient can apply for the certificate. Patient’s consent is essential to issue a certificate.
    You can also say that…… you would like to examine again before you issue a certificate again because …… there is a possibility of change in diagnosis…… hence request the family to bring the patient
    Finally, if you have to issue
    Request the medical board of your hospital to help you. A board can issue
    Certificate can also be issued about the past and mentioning…… that I have not examined him or seen in the past two years hence the treating psychiatrist needs to examine the patient before a final certificate is issued
    very important note for all psychiatrist
    Never issue a mentally normalcy certificate ……. first time when you assess a person for some vague reason.
    Please use negative language…. when issuing a negative or normalcy certificate …… for example, on detailed examination dated …. I couldn’t find a signs and symptoms of severe mental disorder for confirmation patient needs to be admitted inpatient and evaluated for a period of 2 to 3 weeks
    Signatures or thumb impression of patient are essential on body of certificate which should never be affixed involuntarily and hence certificate cannot be issued against consent of the patient.
    Hathi committee
    1.1 Health is a fundamental human right. The Constitution of India directs the State to regard the improvement of public health as among its primary duties. The Five-Year Plants have been providing the framework within which the Centre and States have developed their health services infrastructure and programmes. Since the attainment of Independence considerable progress has been achieved in the promotion of health status of the people – as reflected in the eradication/control of diseases like small-pox, malaria etc., reduction in mortality rate, rise in life expectancy, creation of a fairly extensive network of health care institutions and the availability of a large stocks of medical and health personnel.
    1.2 The National Health Policy of 1983 marks a significant step in the national endeavor to improve public health. It reiterates India’s commitment to the goal of “Health for all by the year 2000 A.D.” through the universal provision of comprehensive primary health care service. The attainment of this goal requires an accelerated development of all inputs to the health care system, including essential and lifesaving drugs and vaccines of proven quality. Drugs alone are not sufficient to provide health care. However, if rationally used, they do play an important role in protecting, maintaining and restoring the health of the people and in controlling population. The Indian Pharmaceutical Industry has, therefore, a vital role in serving the basic health needs of the people.
    1.3 The Report of the Hathi Committee (1975) is an important landmark in the development of the Indian Pharmaceutical Industry. The Hathi Committee emphasized the achievement of self-sufficiency in medicines and of abundant availability at reasonable prices of essential medicines. Since 1975, the Indian Pharmaceutical Industry has grown to be the most diversified and vertically integrated pharmaceutical industry in the entire Third World. The country has achieved self-sufficiency in formulations and also in a large number of bulk drugs. In 1984-85, imports of formulations were only Rs.10.17 crores or about 0.5% of the total formulation production in the country and imports of 49 bulk drugs were negligible. Technologies for the production of several bulk drugs, including antibiotics like Ampicillin, Amoxycillin, Erythromycin, Anti-infectives like Sulphamethaxazole and Trimethoprim., anti-TB drugs like Ethambuto Cardio Vascular drugs like Methyl Dopa; Analgesics like Ibuprofen and Isopropyl antipyrine; anti – amoebics like Metronidazole and Tinidazole, anti-cancer drugs like Vinblastine, Vincristire and Cisplatin were indigenously developed. The trade balance in pharmaceuticals is also improving as a result of increasing exports. In 1984-85, exports of drugs and formulations were Rs.217.49 crores while imports were Rs.215.62 crores. A wide range of bulk drugs and formulations are being exported to several countries, including the U.S. and the West European countries. Some Indian firms have also set up production facilities in other countries and are also engaged in the sale of turnkey plants and technical services. The diverse production and technological capabilities developed by the Indian Pharmaceutical Industry are valuable assets in achieving the goals of the National Health Policy and in fully harnessing the export potential.
    1.4 While these achievements are impressive by themselves, there are many areas where the industry has to reorient itself if it has to effectively serve the health needs of the people. The present production pattern does not adequately reflect the genuine requirements of the health care needs of the country. The proliferation of formulations and packs without adequate therapeutic rationale is a matter of concern. While many firms in the organized as well as small scale sector have excellent internal testing facilities and a good record of quality control and adoption of good manufacturing practices, the same cannot be said of a large number of firms manufacturing formulations. The present institutional and statutory arrangements for enforcing quality control for registration of new formulations, for monitoring adverse reactions and for dissemination of unbiased information about the safety and efficacy of products marketed in the country are far from being adequate.
    1.5 Abundant availability on a continuous basis, at reasonable prices, of essential, lifesaving and prophylactic medicines of good quality, is the corner stone of the new measures. It shall be the endeavor of the Government to ensure that the above objective, which is in consonance with the Government’s Policy of reaching Healthcare facilities to the common masses and with that of ensuring Health for all by the year 2000 A.D., is achieved. In order to sub serve this objective, changes have been brought about in the system of price control of drugs as well as in the licensing and approval procedures. Experience gained in the implementation of the Drugs (Prices Control) Order, 1979 has clearly shown that the pricing system needs to be simplified and rationalized, if the benefits of the price control are to be effectively realized by the consumer, particularly the weaker sections of the society for safeguarding whose interests the Government is committed. The span of price control at present is impracticably large covering 347 bulk drugs and over 4,000 formulations marketed in about 20,000 packs. It is proposed to reduce to a considerable extent this span of control and to make the price control system less cumbersome but more effective.
    1.6 As prices of drugs are also determined by the cost effectiveness of domestic production, it is imperative to impart a technological and productivity thrust to the Indian Pharmaceutical Industry which would also enable it to harness export opportunities. The objective of ensuring abundant availability of medicines at reasonable prices, will be best served by promoting competition and economic scales of production and also by removing unnecessary barriers to growth. To this end, licensing and approval procedures have been simplified and greater flexibility given in order to those of essential and lifesaving drugs. The validity of this premise has already been established by the experience, in recent years, with the market prices of bulk is produced by a good number of manufacturers. At the same time, FERA companies will continue to be regulated by Government to ensure that their operations are in consonance with the national objectives and priorities.
    1.7 It is against this backdrop that the Government has reviewed the functioning of the Drug Policy and now restructured the Policy in the light of the experience gained and keeping in mind the objective of achieving “Health for All by the Year 2000 A.D.”
    Hippocrates could not have seen this coming.

A man was brought to Apollo Gleneagles Hospital in Kolkata from a road traffic accident with severe injuries. Unable to afford the cost of care there, he was moved to the Government tertiary care hospital IPGMER where he died within 4 hours of being moved. This piece of news resulted in the government and much of media alleging Apollo had tried to extort money from the patient’s family before letting him be discharged. In February this year, the CMRI Hospital, in another part of the city, was vandalized by local goons and doctors and other staff attacked. Shortly after the Apollo incident, in Medica, another private hospital in the city, a patient had a myocardial infarct, and despite efforts to treat him, died. The dominant media made no effort to explain any other viewpoint, or even the real reason for the death save the most titillating and damning (of the doctors and the hospitals). Any viewpoint of the hospitals or the attending doctors were silenced or not heard at all in the media brouhaha about standards and costs of care in private hospitals. There is much ongoing talk about the allegedly immoral methods employed by these hospitals to extract money from patients.
Doctors are killing people and understand only money.
Private hospitals are fleecing patients
Suddenly doctor-bashing is in fashion and doctors and private hospitals are under attack. Long beleaguered out of their ‘god’ status in this country, a doctor now is the new enemy. As with almost everything, there is a kernel of truth in the perception, but what is missing is a proper understanding of where the blame should lie.
In an unprecedented move to address grievances against private hospitals, the state government is set to rid patients of the liability to pay for treatment, through the amended Clinical Establishments Act. It has also sought to relax penalty provisions against patient parties charged with ransacking of hospital premises. It is a measure of the trust deficit in the doctor-patient relationship that the average man is ready and eager to believe the political rhetoric and lap up the populist mantra.
Access to healthcare facilities and decent schools are essential parts of civilized society and for many years now, political parties and governments in India, and particularly in West Bengal, have abrogated their responsibility to provide adequate healthcare to the people. Instead of improving cover and standards of public healthcare, the government and politicians – across all parties – have consistently tried to deflect public opinion by trying to portray private hospitals as the culprits, out to fleece people. There is little merit in comparing West Bengal or Calcutta with Chennai/Mumbai/Delhi. In the latter, there are government hospitals, which, if not comparable to private hospitals in plushness, offer quality medical care. It has long not been the case in West Bengal. Private hospitals have thus come up to fill that lacunae. But in West Bengal, people have started to feel private healthcare is an essential service, which, however unpopular the view, they are not. That onus should rest on public healthcare. The sense of entitlement they feel is targeted towards private hospitals when it should be against the government. And because people have started to feel private healthcare is a right, they are agitated when it becomes too expensive to afford. Politicians, however, over the years have fanned those feelings to hide their own inadequacies or indeed near-criminal lack of accountability that has almost become the hallmark of politics in the state.
We must understand that no healthcare is free – government hospitals are funded by the tax-payer’s money and are actually more expensive – if you factor in the enormous numbers of redundant staff employed and the consequent disguised unemployment – than a section of private healthcare. Understand also that the public healthcare system is not being brought under the purview of the law, for reasons quite unfathomable to the sane mind, displaying a blatant disregard for even common fair-play, as well as, if you think about it, an utter devaluation of human lives who are dependent on public healthcare. The people desperate enough to avail public healthcare seem not to deserve any of the compensation and quality guaranties.
There already were in place several ways in which patient grievances could be settled, the most logical one being to complain to the medical council who deliberate on the allegations, consult specialists in the field for a proper decision. The patient could go to the consumer court or complain to the government. The police had no role to play in any of these deliberations, and came only if there was criminal negligence. A private complaint could not be entertained unless the complainant could produce prima facie evidence before the court in the form of a credible opinion given by another ‘competent’ doctor and as the complaint got escalated, it would always involve medical experts to provide unbiased and proficient opinion. It can never be possible to cap medical costs despite complications and suggesting that it can be, speaks of a total lack of perspective about what proper medical care entails. Real issues which should be taken up with the corporate hospitals are not being taken up as they are not going to find popularity.
There is heavy irony and it should not be lost, that the current bill, with its layperson’s commission adjudicating on medical matters and deciding criminal negligence ‘shall not be bound by code of civil procedures but have the same power as vested in a civil court under the civil court procedure’. The Bengal government and the commission ‘shall be protected from prosecution, suit or any other legal proceeding’, and ‘no civil court shall have jurisdiction’ over the commission. So, in essence the government is bypassing the judiciary with a commission who are neither independent, nor from the judicial system (who by definition would be independent) and are certainly not competent to judge medical criminal negligence cases.
Despite the Supreme Court ruling that all complaints need to first be referred to a competent doctor or committee of doctors specialized in the field related to which the negligence is attributed, the amended Bill deliberately, in a blasé fashion subverts due process of law and provides blanket power to a commission not professionally competent to make any assessment of the medical situation to pronounce judgment. This is a clear pathway for corruption to make immediate inroads. It will also mean that smaller hospitals, which cannot afford to pay the hefty compensations necessitated by this law, will close down, making the patients – who cannot afford corporate hospital care but don’t want to go to government hospitals either – the ultimate loser.
“A consequence of encouraging litigation for loss is to persuade the public that all loss encountered in a medical context is the result of the failure of somebody in the system to provide the level of care to which the patient feels entitled” (actual statement by the Supreme Court). The effect on the doctor-patient relationship is already plumbing depths in this miasma of complete breakdown of trust and will not be to the benefit of the patient in the long run. Doctors, who surprisingly, are humans too, and have families for whom they need to protect themselves, will tend to practice defensive medicine, ordering more tests, which will hike up expenses even more. They will stop taking in emergency patients because of the fear of reprisals if anything goes wrong, and by its very nature, there are huge risks involved in any emergency medical care. Patients sometimes die, despite best efforts. If that is always going to be viewed as the hospital’s (note: private hospitals) unscrupulousness and the doctor’s criminal negligence, it is not level playing field, I am afraid. Many who have been trained abroad and wanted to come back with a genuine wish to work here are already planning to leave the state, and sometimes, even the country.
Also, and I am never sure why nobody thinks along those lines, but if lawyers, architects, interior designers and heck, even beauticians charge hefty fees, it is supposed to be a sign of their professional standing. I know women who would not think twice before spending Rs 3000 to colour their hair, complain about doctors’ fees. I know people who go to lawyers who charge by the tens of thousands for a fifteen-minute hearing in court, and then they sometimes even lose – but the lawyer is not held by his collar or thrashed because he has lost the case. I know interior designers who charge the earth, and that is a feather in my very expensive cap if I can employ him or her. I am never sure why medicine makes patients feel so democratic.
Meanwhile, our politicians and media will dance around issues when it suits them, but go out of country or state or to these very same private hospitals for their own treatments.
HIPPOCRATIC OATH

I swear by Apollo, the healer, Asclepius, Hygeia, and Panacea, and I take to witness all the gods, all the goddesses, to keep according to my ability and my judgment, the following Oath and agreement:
To consider dear to me, as my parents, him who taught me this art; to live in common with him and, if necessary, to share my goods with him; To look upon his children as my own brothers, to teach them this art; and that by my teaching, I will impart a knowledge of this art to my own sons, and to my teacher’s sons, and to disciples bound by an indenture and oath according to the medical laws, and no others.
I will prescribe regimens for the good of my patients according to my ability and my judgment and never do harm to anyone.
I will give no deadly medicine to any one if asked, nor suggest any such counsel; and similarly, I will not give a woman a pessary to cause an abortion.
But I will preserve the purity of my life and my arts.
I will not cut for stone, even for patients in whom the disease is manifest; I will leave this operation to be performed by practitioners, specialists in this art.
In every house where I come, I will enter only for the good of my patients, keeping myself far from all intentional ill-doing and all seduction and especially from the pleasures of love with women or men, be they free or slaves.
All that may come to my knowledge in the exercise of my profession or in daily commerce with men, which ought not to be spread abroad, I will keep secret and will never reveal.
If I keep this oath faithfully, may I enjoy my life and practice my art, respected by all humanity and in all times; but if I swerve from it or violate it, may the reverse be my life.
Hippocrates wrote an oath for Physicians circa 350-370 BC. Medicine in those times was considered a holy service meant to heal the sick and not a profession. With time medicine became a profession and monetary benefit for the work done became an accepted norm. Doctors came under normal laws of the land. The application of the Consumer Protection Acts to Medicare redefined the status of doctors to ordinary vendors/service providers and their demi-god status was taken away. Patients were no longer patients but consumers.
Of late, doctors are being labelled as criminals, cheats, swindlers and what not. Doctors are on media trial almost daily for botched up surgeries, financial frauds, seeking commissions/incentives from drug companies/labs and misconduct, amongst other things. The reputation pendulum of doctors has swung from being good-doers to evil devils.
It is time we introspect our current status in society. Are we in social service or are we business professionals? In case our role is service of the humanity, why are governments shifting healthcare services to the private sector? Why are doctors not trained and looked after by the government? Why is medical education so expensive?
In case we are business professional, why does the society expect us to perform social service? Why are doctors penalized in case a complication occurs while treating a patient, but no other professional is? All professions have some bad sheep but that does not mean all are the same. Most doctors follow the ethical standards they are expected to follow. Some don’t! One should reason why they don’t! Is there some pressure on them from their employers to over reach and cheat? Do they have some business targets to meet? Or is it the general influence of the society, which is rife with corruption?
Most medical councils require qualified doctors to undertake the Hippocratic oath before being allowed to practice medicine. The oath burdens them with a social and ethical responsibility. Seeking monetary benefit is against the clause enshrined in the Hippocrates oath on maintaining conscience and dignity. The relevance of the Hippocratic oath is today’s world is questionable. The society needs to clear this confused status of doctors! Why this hypocrisy about the Hippocratic oath!
The society must decide whether the doctors must take the Hippocratic oath or just be professionals

IMA White Paper on Indian Medical Service

Historical perspective
The Indian Medical Service owes its origin to the East India Company formed by the British. It was on December 31, 1600 that Queen Elizabeth granted a charter to the Association of Merchant Adventures of London to trade with the East, which gave birth to the East India Company. As a matter of fact the establishment of the company was a result of a huge struggle amongst the nation for the control of lucrative spice trade, in which to begin with the Venetians, then the Portuguese, the Spaniards, the Dutch, the French and finally the British came to be drawn into the treasure hunt.
For the said trade, the First Fleet of the East India Company under the command of Captain James Lancaster, in December, 1600 sailed out. Each of the four ships in the fleet carried ‘Surgeons’ and a ‘barber’. They came to be designated as ‘Ship Surgeons’. This was also the voyage, which resulted in experiment on lemon juice as a cure for scurvy.
With the establishment of trading posts around India, more surgeons and physicians found employment not only with Europeans but also in the service of wealthy natives. These men of medicine included Nicholas Manucci, a Venetian, born in 1639, who served Dara Shikoh before studying medicine in Lahore where he served Shah Alam from 1678 to 1682. An Armenian named Sikandar Baigh served as Surgeon to Suleman Shikoh, son of Dara Shikoh and there are records of several Dutch and French physicians in courts across India.
Surgeons were also availed for diplomatic missions to various courts and they were found to be very effective. Operationally speaking, the Indian Medical Service (IMS) was a military medical service in British India, which also was attributed some civilian functions. It has served during the two world wars and remained in existence until the independence of India in 1947. Many of its officers who were both British and Indian served in civilian hospitals as well.
The East India Company in 1614 introduced a hierarchy in their establishment with the appointment of a Surgeon General. The first to be appointed to the said post was John Woodall. However, he was accused of financial embezzlement in respect of pay from apprentices as a result of which he was retrenched in 1642.
There are many anecdotes of which one of the important depictions is of Gabriel Boughton who is reported to have saved Shahjahan’s daughter Princes Jahanara from injuries due to burns. In reward he was given Duty Free Trading Rights and it is said that it was the very document, which was availed by the East India Company to procure Rights for itself from the ruler in Surat.
Historically speaking the First sign of organization came into being with the establishment of the Bengal Medical Service on 20th October, 1763, with fixed grades, rules for promotion and services. On the similar lines Madras Medical Services and Bombay Medical Services came to be established in 1764. It was due to increased military actions that compelled the separation of ‘Military Surgeons’ from the ‘Civil Surgeons’.
As a matter of rule each non-native military regiment had a surgeon and as a result of which the strength of the medical service grew. A census record of 1854 reveals that the Bengal Medical Service had a strength of 382, while Madras Medical Service had 217 people and Bombay Medical Service had a strength of 181. The medical services of these three Presidencies were united into a single Indian Medical Service after 1857, which was in vogue till 1947.
The personnel under the medical services contributed to the foundation of other departments as well under the organization of the Govt. Dr William O’Shaughnessy, while serving as Professor of Chemistry at Calcutta conducted the first experiment for the introduction of electric telegraph in India and was designated as Director General of Telegraphs in 1852. In 1861, Dr James Rankin was appointed as Director General of Post Offices in India. Dr John Royale represented the East India Company as a Reporter on their economic products as the great exhibition of 1851 and the first four appointments of Conservator of Forest were also filled by the Medical Officers under the medical services of the presidencies.
In 1858, when the Crown took over the Government of India, and in the context of several epoch-making developments that were occurring in the art of medicine the Indian medical service entered upon a new phase of the history. The General Hospitals were built in the presidency towns and several smaller hospitals and the dispensaries came to be established in the Districts. In 1835, a medical college was founded at Calcutta and another one at Madras. A decade later another medical college was instituted at Bombay. From 1853 onwards, several medical schools were laid out, which mandated the services of the medical officers working under the presidential medical services to be availed for teaching at the initiated medical schools till they had trained graduates to succeed them.
The Indian Medical Service always primarily remained a military service so as to provide medical officers for duty with the Indian Army in the time of War. During the 1914-1918 First World War, the service was represented in France, Palestine, Asia Minor, Persia, China, East and West Africa. Ninety-two Retired officers rejoined for duty and well over 1000 temporary commissions came to be granted. Likewise during the Second World War, more than 1000 filled medical units were mobilized over and above, the hospital accommodation for 11000 officers and 1.50 lakh other ranks arranged for in India. In the course of all these, members of the Indian Medical Service earned ‘Victoria Cross’ for five times. And one of the recipients of the same Dr John Alexander Sinton was later conferred the fellowship of Royal Society in his researches for the problems of Malaria.
It is a matter of record that in the legislative council in Delhi in 1918 a motion was brought forward by an Indian Member of the council to disband the Indian Medical Services primarily on the ground that India was a poor country and could not afford to maintain such a service.
The defense that was put forth by the then Surgeon General Dr Edwards gives a significant insight into the utility of the Indian Medical Service at that point of time. The text of the defense put across by him is as under:
“I need not dwell, on the fact that this resolution is tantamount to the abolition of the distinguished service to which I have the honor to belong, but before proceedings with my reply I wish to say few words concerning the work which has been done by this service in recent year and which is still being done, for I do not think that this council is fully aware of the extraordinary value of the Indian Medical Service not only to India but to the world at large. This service has worked out the life history of the malarial parasite, a discovery which has revolutionized our ideas concerning malaria and which, among other things, has enabled the Panama Canal to be successfully built. It has reduced the mortality of cholera by 2/3rd and Shorn amoebic dysentery of most of its terrors. It has worked out the method of transmission of bubonic plague, work which points the way to the ultimate eradication of that disease. Enlarge prostate, that terrible and fatal concomitant of old age, can now be overcome, thanks to the member of Indian Medical Service, while in the domain of eye surgery more specifically with regard to cataract and glaucoma the work of the service is recognized throughout the scientific world.”
The resolution so moved did not succeed and the Indian Medical Service continued for nearly three decades thereafter with significant work and contribution in research and the unending problems of public health resulting in several achievements as a result of which it stands the scrutiny at the bar of history. Great names attached with it are Ronald Ross, Leonard Rogers, Rickard Christophers, Robert McCarrison, Henry Shortt and many others.
In the year 1943, the Government of India, decided for a review of the whole medical position and also to seek suggestions for future improvements. In fact, it was aimed that evolving a model like that of National Health Service, however, the disease burden that was observed was too huge. It was stated in the report that in India that nearly 10 crores suffer every year from malaria. Five lakh deaths from tuberculosis every year and a further 25 lakh active cases required treatment, cholera, small pox and plague add to the said disease burden. The other diseases of topic namely leprosy, filaria, hookworm, guinea-worm saddle the country with innumerable chronic sufferers. To combat adequately, this magnitude of disease burden and many other problems involved and to provide a comprehensive health service for whole of the population would require a staff of 2.5 lakh doctors, 7.50 lakh nurses along with a great army of associate medical workers. The Indian Medical Service which served India, so well almost for last 300 years definitely had prepared a way for the same, but when power was transferred in 1947, the Indian Medical Services stood abolished.
The foundation of the service
The Bengal Medical Service was founded by orders passed dated 20th October, 1763, whereby the individual medical officers then serving in the Bengal Presidency were, with effect from 1st January, 1764 combined into a regular medical establishment with fixed grades and definite rules for promotion from grade to grade. The Madras and Bombay medical services appeared to have come into existence at about the same time as the Bengal Service.
A list of Bengal Medical Service in 1774, preserved in the Calcutta record office gives a strength of total 69 viz. 18 surgeons, including the Surgeon General and Surgeons Majors, 7 Subordinate Surgeons and 44 Assistant Surgeons.
A list compiled by Surgeon General Denial Campbell in 1777 comprises 64 names that include 22 Surgeons and 42 Assistant Surgeons. Another list compiled for the Governor General Warren Hastings in 1777 gives 27 Surgeons and 45 Assistant Surgeons totaling to 72. Of these, 11 surgeons and 13 Civil Assistant Surgeons are shown in the civil employment as against 15 surgeons and 32 Assistant Surgeons on Military Duty, while one man noted as dead is not shown under either head.
The First Maratha War occurred in 1780-81, the Second Mysore War in 1781, with Campaign against the Raja of Banaras was undertaken in the same year. Five battalions under Col PD Pearse marched from Bengal to Madras towards the end of 1780. Six battalions with artillery and cavalierly were detached to Bombay from 1778 to 1784. All these troops required extra medical officers, and vacancies caused in this campaign required to be filled up. To indent on the court of Directors at home for more medical officers was of little use, as new men from home even if recruited in sufficient numbers could not arrive for more than a year after the requisition for their services was sent home. The Indian govt. accordingly appointed a large number of men, recruited locally to the Bengal medical service. They were obtained chiefly from two sources. Firstly, the surgeons of the India men trading between England and India and secondly, subalterns or free adventurers who had some medical training in some cases had practiced medicine at Home, before coming to India.
Rules regarding medical personnel in military employment holding collateral civil charges and vice versa were laid down in Bengal Gazette of 12th March, 1836. Practically the same rules continued to be in force till 1947, when the services were disbanded. No officer civil or military was at liberty to decline such collateral charges.
In the early settlement of the East India Company in India, the question of rank was not of much importance. The President or Agent stood first next to the President, then came the members of his council. The governing body consisted of four members. The Agent, the Accountant, the Store Keeper, the Purser Marine; fifth rank was the Secretary. The surgeon was sixth after the Secretary, they came the Steward and after him the General Body of Merchants, Writers, and Apprentices. The writers as the name employees were the clerks. But from this small body of commercial servants has developed the finest Governing Body in the World, the Indian Civil Service.
As such, the chronology of events in a sequential manner brings out as to how the Indian Medical Service came to be created by the East India Company to begin with and then how it came to be structured in a definitive manner with stipulated rules and regulations in respect of ‘Rank, Pay, Leave, Duties and Responsibilities’ and other cogent official matters.
Taking into consideration the successes and the effectiveness that got accrued to the said service during a period spanning nearly three centuries, it can be safely deduced that it needs to be revived afresh by suitable incorporations therein in terms of the contemporary and long-term perceived requirements.
RELEVANT PROVISIONS FOR DOCTORS UNDER INDIAN PENAL CODE, 1860

According to the provisions of Indian Penal Code 1860 (IPC) any act of commission or omission is not a crime unless it is accompanied by a guilty mind (MENS REA).
The acts are not punishable only because it led to some mischievous results unless associated with intention or mental attitude of the person.
Most of the times doctor’s treatment is in good faith, with the consent of the patient and hence most of the provisions of IPC are not applicable to the doctors unless or until there is rashness or gross negligence.
The following Sections of IPC are related to medical professionals:
Sec. 29: Deals with documents

  1. “Document”. –The word “document” denotes any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, as evidence of that matter.
    Explanation 1: It is immaterial by what means or upon what substance the letters, figures or marks are formed, or whether the evidence is intended for, or may be used in, a Court of Justice, or not.
    Illustrations
    A writing expressing the terms of a contract, which may be used as evidence of the contract, is a document.
    A cheque upon a banker is a document.
    A power-of-attorney is a document.
    A map or plan which is intended to be used or which may be used as evidence, is a document.
    A writing containing directions or instructions is a document.
    Explanation 2.: Whatever is expressed by means of letters, figures or marks as explained by mercantile or other usage, shall be deemed to be expressed by such letters, figures or marks within the meaning of this section, although the same may not be actually expressed.
    Illustration
    A write his name on the back of a bill of exchange payable to his order. The meaning of the endorsement as explained by mercantile usage, is that the bill is to be paid to the holder. The endorsement is a document, and must be construed in the same manner as if the words “pay to the holder” or words to that effect had been written over the signature.
    Sec. 52: Describes “good faith”
    “Good faith”: Nothing is said to be done or believed in “good faith” which is done or believed without due care and attention.
    Sec. 90: Related to consent: Consent known to be given under fear or misconception:
    A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person.
    Consent of insane person- if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.
    Consent of child. – unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.
    Sec. 176: Failure to inform police whenever essential
  2. Omission to give notice or information to public servant by person legally bound to give it: Whoever, being legally bound to give any notice or to furnish information on any subject to any public servant, as such, intentionally omits to give such notice or to furnish such information in the manner and at the time required by law, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both; or, if the notice or information required to be given respects the commission of an offence, or is required for the purpose of preventing the commission of an offence, or in order to the apprehension of an offender, with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both; [or, if the notice or information required to be given is required by an order passed under sub-section (1) of section 565 of the Code of Criminal Procedure, 1898 (5 of 1898), with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.]
    Sec. 269-271: Related to spread of infectious disease and disobedience of a quarantine rule.
  3. Negligent act likely to spread infection of disease dangerous to life: Whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.
  4. Malignant act likely to spread infection of disease dangerous to life:
    Whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
  5. Disobedience to quarantine rule: Whoever knowingly disobeys any rule made and promulgated for putting any vessel into a state of quarantine, or for regulating the intercourse of vessels in a state of quarantine with the shore or with other vessels, for regulating the intercourse between places where an infectious disease prevails and other places, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.
    Sec. 272-273: Related to adulteration of food and drinks.
  6. Adulteration of food or drink intended for sale: Whoever adulterates any article of food or drink, so as to make such article noxious as food or drink, intending to sell such article as food or drink, or knowing it to be likely that the same will be sold as food or drink, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
  7. Sale of noxious food or drink: Whoever sells, or offers or exposes for sale, as food or drink, any article which has been rendered or has become noxious, or is in a state unfit for food or drink, knowing or having reason to believe that the same is noxious as food or drink, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
    Sec. 274-276: Related to adulteration of drugs.
  8. Adulteration of drugs: Whoever adulterates any drug or medical preparation in such a manner as to lessen the efficacy or change the operation of such drug or medical preparation, or to make it noxious, intending that it shall be sold or used for, or knowing it to be likely that it will be sold or used for, any medicinal purpose, as it had not undergone such adulteration, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
  9. Sale of adulterated drugs.–Whoever, knowing any drug or medical preparation to have been adulterated in such a manner as to lessen its efficacy, to change its operation, or to render it noxious, sells the same, or offers or exposes it for sale, or issues it from any dispensary for medicinal purposes as unadulterated, or causes it to be used for medicinal purposes by any person not knowing of the adulteration, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
  10. Sale of drug as a different drug or preparation: Whoever knowingly sells, or offers or exposes for sale, or issues from a dispensary for medicinal purposes, any drug or medical preparation, as a different drug or medical preparation, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
    Sec. 304-A: Deals with death caused by a negligent act.
    Causing death by negligence: Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.]
    Sec. 306-309: Related with abatement of suicide.
  11. Abetment of suicide: If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
  12. Attempt to murder: Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is herein before mentioned.
    Attempts by life-convicts.
    Attempts by life-convicts: [When any person offending under this section is under sentence of [imprisonment for life], he may, if hurt is caused, be punished with death.]
    (a) A shoot at Z with intention to kill him, under such circumstances that, if death ensued A would be guilty of murder. A is liable to punishment under this section
    (b) A, with the intention of causing the death of a child of tender years, exposes it in a desert place A has committed the offence defined by this section, though the death of the child does not ensue.
    (c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fire the gun at Z. He has committed the offence defined in this section, and, if by such firing he wounds Z, he is liable to the punishment provided by the latter part of 3*[the first paragraph of] this section.
    (d) A, intending to murder Z by poison, purchases poison and mixes the same with food which remains in A’s keeping; A has not yet committed the offence in this section. A place the food on Z’s table or delivers it to Z’s servants to place it on Z’s table. A has committed the offence defined in this section.
  13. Attempt to commit culpable homicide: Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
    Illustration
    A, on grave and sudden provocation, fires a pistol at Z, under such circumstances that if he there by caused death he would be guilty of culpable homicide not amounting to murder. A has committed the offence defined in this section.
  14. Attempt to commit suicide. –Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year 1*[or with fine, or with both.]
    Sec. 312-314: Related to causing mis-carriage, abortion and hiding such facts.
  15. Causing miscarriage.–Whoever voluntarily causes a woman with child to miscarry, shall if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
    Explanation. -A woman who causes herself to miscarry, is within
    the meaning of this section.
  16. Causing miscarriage without woman’s consent.—Whoever commits the offence defined in the last preceding section without the consent of the woman, whether the woman is quick with child or not, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
  17. Death caused by act done with intent to cause miscarriage:
    Whoever, with intent to cause the miscarriage of a woman with child, does any act which causes the death of such woman, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; if act done without woman’s consent, if act done without woman’s consent and if the act is done without the consent of the woman, shall be punished either with [imprisonment for life], or with the punishment above mentioned.
    Explanation. -It is not essential to this offence that the offender should know that the act is likely to cause death.
    Sec. 315-316: Deals with act to prevent child being born alive or to cause it to die after birth.
    Section 315: Act done with intent to prevent child being born alive or to cause it to die after birth: Whoever before the birth of any child does any act with the intention of thereby preventing that child from being born alive or causing it to die after its birth, and does by such act prevent that child from being born alive, or causes it to die after its birth, shall, if such act be not caused in good faith for the purpose of saving the life of the mother, be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both.
    Section 316: Causing death of quick unborn child by act amounting to culpable homicide: Whoever does any act under such circumstances, that if he thereby caused death he would be guilty of culpable homicide, and does by such act cause the death of a quick unborn child, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
    Illustration
    A, knowing that he is likely to cause the death of a pregnant woman, does an act which, if it caused the death of the woman, would amount to culpable homicide. The woman is injured, but does not die; but the death of an unborn quick child with which she is pregnant is thereby caused. A is guilty of the offence defined in this section.
    Sec. 319-322: Related to causing hurt, grievous hurt, loss of vision, loss of hearing or disfigurement.
  18. Hurt: Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
  19. Grievous hurt: The following kinds of hurt only are designated as “grievous”: –
    First, Emasculation.
    Secondly, Permanent privation of the sight of either eye.
    Thirdly, Permanent privation of the hearing of either ear.
    Fourthly, Privation of any member or joint.
    Fifthly, Destruction or permanent impairing of the powers of any member or joint.
    Sixthly, Permanent disfiguration of the head or face.
    Seventhly, Fracture or dislocation of a bone or tooth.
    Eighthly, any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
  20. Voluntarily causing hurt: Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said “voluntarily to cause hurt”.
  21. Voluntarily causing grievous hurt: Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said “voluntarily to cause grievous hurt”.
    Explanation – A person is not said voluntarily to cause grievous hurt except when he both causes grievous hurt and intends or knows himself to be likely to cause grievous hurt. But he is said voluntarily to cause grievous hurt, if intending or knowing himself to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of another kind.
    Illustration
    A, intending of knowing himself to be likely permanently to disfigure Z’s face, gives Z a blow which does not permanently disfigure Z’s face, but which causes Z to suffer severe bodily pain for the space of twenty days. A has voluntarily caused grievous hurt.
    Sec. 336-338: Deals with causing hurt by rash or negligent act.
  22. Act endangering life or personal safety of others: Whoever does any act so rashly or negligently as to endanger human life or the personal safety others, shall be punished with imprisonment of either description for a term which may extend to three months or with fine which may extend to two hundred and fifty rupees, or with both.
  23. Causing hurt by act endangering life or personal safety of Others: Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.
  24. Causing grievous hurt by act endangering life or personal safety of others.–Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.
    Of wrongful restraint and wrongful confinement.
    Sec. 340-342: Related to wrongful confinement.
    Section 340: Wrongful confinement: Whoever wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits, is said “wrongfully to confine” that person.
    Illustrations
    (a) A causes Z to go within a walled space, and locks Z. Z is thus prevented from proceeding in any direction beyond the circumscribing line of wall. A wrongfully confines z.
    (b) A places man with firearms at the outlets of a building, and tells Z that they will fire at Z if Z attempts leave the building. A wrongfully confines Z.
  25. Punishment for wrongful restraint: Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.
  26. Punishment for wrongful confinement: Whoever wrongfully confines any person shall be punished with simple imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
    Sec. 491: Related to breach of contract.
    Breach of contract to attend on and supply wants of helpless Person: Whoever, being bound by a lawful contract to attend on or to supply the wants of any person who, by reason of youth, or of unsoundness of mind, or of a disease or bodily weakness, is helpless or incapable of providing for his own safety or of supplying his own wants, voluntarily omits so to do, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to two hundred rupees, or with both.
    Sec. 499: Related to defamation.
    Defamation: Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.
    Explanation 1- It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the fillings of his family or other near relatives.
    Explanation 2 – It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
    Explanation 3- An imputation in the form of an alternative or expressed ironically, may amount to defamation.
    Explanation 4- No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.
    Illustrations
    (a) A says- “Z is an honest man; he never stole B’s watch”, intending to cause it to be believed that Z did steal B’s watch. This is defamation, unless it falls within one of the exceptions.
    (b) A is asked who stole B’s watch. A point to Z, intending to cause it to be believed that Z stole B’s watch. This is defamation, unless it falls within one of the exceptions.
    (c) A draws a picture of Z running away with B’s watch, intending it to be believed that Z stole B’s watch. This is defamation, unless it falls within one of the exceptions.
    First Exception- Imputation of truth which public good requires to be made or published- It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.
    Second Exception- Public conduct of public servants. -It is not defamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.
    Third Exception- Conduct of any person touching any public question. -It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.
    Illustration
    It is not defamation in A to express in good faith any opinion whatever resenting Z’s conduct in petitioning Government on a public question, in signing a requisition for a meeting on a public question, in presiding or attending at such meeting, in forming or joining any society which invites the public support, in voting or canvassing for a particular candidate for any situation in the efficient discharge of the duties of which the public is interested.
    Fourth Exception- Publication of reports of proceedings of courts- It is not defamation to publish a substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings.
    Explanation. -A Justice of the Peace or other officer holding an enquiry in open Court preliminary to a trial in a Court of Justice, is a Court within the meaning of the above section.
    Fifth Exception- Merits of case decided in Court or conduct of witnesses and others concerned. It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further.
    Illustrations
    (a) A says- “I think Z’s evidence on that trial is so contradictory that he must be stupid or dishonest.” A is within this exception if he says this in good faith, inasmuch as the opinion which he expresses respects Z’s character as it appears in Z’s conduct as a witness, and no farther.
    (b) But if A says-“I do not believe what Z asserted at that trial because I know him to be a man without veracity”; A is not within this exception, inasmuch as the opinion which expresses of Z’s character, is an opinion not founded on Z’s conduct as a witness.
    Sixth Exception- Merits of public performance.-It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no farther.
    Explanation- A performance may be submitted to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public.
    Illustrations
    (a) A person who publishes a book, submits that book to the judgment of the public.
    (b) A person who makes a speech in public, submits that speech to the judgment of the public.
    (c) An actor or singer who appears on a public stage, submits his acting or singing to the judgment of the public.
    (d) A says of a book published by Z- “Z’s book is foolish; Z must be a weak man. Z’s book is indecent; Z must be a man of impure mind.” A is within the exception, if he says this in good faith, inasmuch as the opinion which he expresses of Z respects Z’s character only so far as it appears in Z’s book, and no further.
    (e) But if A says- “I am not surprised that Z’s book is foolish and indecent, for he is a weak man and a libertine.” A is not within this exception, inasmuch as the opinion which he expresses of Z’s character is an opinion not founded on Z’s book.
    Seventh Exception- Censure passed in good faith by person having lawful authority over another.-It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.
    Illustration
    A Judge censuring in good faith the conduct of a witness, or of an officer of the Court; a head of a department censuring in good faith those who are under his orders; a parent censuring in good faith a child in the presence of other children; a schoolmaster, whose authority is derived from a parent, censuring in good faith a pupil in the presence of other pupils; a master censuring a servant in good faith for remissness in service; a banker censuring in good faith the cashier of his bank for the conduct of such cashier as such cashier are within this exception.
    Eighth Exception- Accusation preferred in good faith to authorized person – It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.
    Illustration
    If A in good faith accuses Z before a Magistrate; if A in good faith complains of the conduct of Z, a servant, to Z’s master; if A in good faith complains of the conduct of Z, a child, to Z’s father-A is within this exception.
    Ninth Exception- Imputation made in good faith by person for protection of his or other’s interests.-It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interest of the person making it, or of any other person, or for the public good.
    Illustrations
    (a) A, a shopkeeper, says to B, who manages his business- “Sell nothing to Z unless he pays you ready money, for I have no opinion of his honesty.” A is within the exception, if he has made this imputation on Z in good faith for the protection of his own interests.
    (b) A, a Magistrate, in making a report to his own superior officer, casts an imputation on the character of Z. Here, if the imputation is made in good faith, and for the public good, A is within the exception.
    Tenth Exception: Caution intended for good of person to whom conveyed or for public good- It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.
    Section 304 and 304-A
    There is lot of discrepancy while applying these sections in cases of professional negligence by doctors. Most of the times the police authorities register the cases of professional negligence deaths under Sec. 304 of IPC. According to this Section the offence is non-bailable. This causes lot of hardship, bad reputation and mental agony to the doctors. In fact, the police should register the cases of deaths due to medical negligence under Sec. 304-A of IPC, in which the offence is bailable and the doctor can be released on bail. The judgment has been passed by Bombay High Court in Criminal Revision application no. 282 of 1996 (Dr. Mrs. Mrudula S. Deshpandevs State of Maharashtra) dated 28th November 1998(3). The basic difference is that in Sec. 304 there is intentional act of negligence while in 304-A the act is never done with the intention to cause death.
    Grievous hurt
    Sec. 319-322 of IPC are related to causing grievous hurt for example loss of limbs, loss of vision, loss of hearing or disfigurement etc. Sec. 336-338 deal with causing grievous hurt by rash or negligent act.
    Examples: (1) While giving IV fluids suppose there is leakage of fluid in surrounding tissue resulting in spasm of vessels and subsequent necrosis of limbs. (2) A surgical procedure is done on eye, limbs, face etc. without adequate aseptic precautions resulting in local infection. This may lead to loss of eyes, limb or disfigurement of face, (3) An unqualified doctor performing surgical procedure which results in permanent damage to eyes, limbs, hearing etc.
    Wrongful confinement (Sec. 340-342 of IPC)
    A patient cannot be detained on the grounds of non-payment of hospital charges. This may constitute the offense of wrongful confinement under Sec. 340-342 of IPC. Doctors can take advance or fee from the patient before starting the treatment.
    If a police officer is keeping the doctor in detention, in cases of bailable offenses, he is liable for the offense of wrongful confinement under these Sections of IPC.
    Definitions
    Crime or offence means any act or omission which is contrary to any law or statute for the time being in force.
    Summons is the process of court asking the opposite party to appear and answer the allegation preferred by the party who has brought action.
    Warrant means an order issued by the court, magistrate or a competent judicial authority, directing a police officer to make arrest, seize or search or to do any other work incidental to administration of justice.
    A Warrant case is related to an offence punishable with death, life imprisonment or imprisonment for more than two years. Example: If a doctor helps a pregnant woman in getting rid of the child or to cause its death after its birth.
    Cases other than warrant cases are Summons cases. If a doctor acts negligently by using infected syringe or instrument resulting in an infection to an uninfected patient exemplifies a Summons case.
    Cognizable offences are those in which a police officer may arrest without warrant, according of Schedule I of Criminal Procedure Code (CPC).
    Non-cognizable offences are those in which a police officer can’t arrest without a warrant, e.g. a doctor knowingly disobeying a quarantine rule is liable to be punished with imprisonment up to 6 months or fine.
    Bailable Offences are those in which bail can be granted by any law for the time being in force. In such cases bail is matter of right. The court can’t refuse bail and the police has no right to keep the doctor in custody. If any police officer puts a doctor in detention in such cases, he is liable for the offense of wrongful confinement under Sec. 340-342 of IPC (4).
    Non-Bailable offences are offences other than the bailable or an offence in which bail can’t be granted. These are the serious offences in which a person may be convicted and imprisoned for term extending more than ten years. For example, offences under transplantation of Human Organ Act 1994.
    Presumption of innocence: Law presumes that a person is innocent till his guilt is proved. The onus of proof is on prosecution (5).
    Mistake of law: “Ignorentiajuris non excusat, means ignorance of law or mistake of law (existence or mistaken understanding) is not excusable. Erroneous or wrong conclusion of law is not a valid defense. For example, if a doctor carries out prenatal test intended to abort a female fetus, can’t avoid prosecution by saying that I was unaware of any law which punishes such act.
    Mistake of fact is a situation where a person not intending to do unlawful act, does so because of wrong conclusion or understanding of fact. The guilty mind was never there while doing the act. The person may not be held responsible in such cases.
    Res Judicata: This doctrine of law means “the things have been decided”. According to this principle, once the case is completed between two parties, it cannot be tried again between the same parties. Suppose a patient sues a hospital for any wrong, damages or malpractice and the things are decided, he cannot subsequently sue the doctor again separately for the same negligence.
    Res Ipsa Loquitur is a situation of gross negligence or rashness. The things are so obvious that they “speak for themselves”. Most of the time there is no need for any proof of negligence in such cases. Common examples include giving blood transfusion to wrong patient, or operating on wrong side of the body or wrong patient.
    Consent in Criminal Law (Sec. 90 IPC)
    A valid consent must be given voluntarily, by an adult who is not of unsound mind. The consent must be given after reasonable understanding and without any misrepresentation or hiding of the facts. Thus, the consent should be an informed consent, preferably in writing and in presence of witnesses. All components of valid consent are applicable even for the consent in criminal law. According to criminal law, it is an offence to cause injury to any person even with his consent. No person has right to give consent to suffer death or grievous hurt. This point has to be kept in mind specially during cases of organ transplantation. The donor may have given consent under family, social or financial pressures. In cases of dead donors if there is no expressed will, the body is the property of the heirs and their consent is required.
    Criminal Liability
    A person who commits a wrongful act, shall be liable for it. The crimes are public wrongs and aim of criminal proceeding is to punish the wrong doer. The law imposes liability on him who fails to perform duty. The wrongful act may be (a) Intentional or willful wrong this usually doesn’t apply in medical practice as no doctor has intention to cause harm to his patient, (b) negligent act – the doctor fails to take proper care, precaution and is just indifferent to the consequences of his act. Lack of skill proportional to risk undertaken also amounts to negligence; (c) wrongs of strict liability created by some special statutes like transplantation of human organ act (1994) (6).
    When to Inform Police
    A doctor has to inform the police in following circumstances (personal communication Dr. JayatNavrange). Failure to inform police in such cases may result in penal consequences. Police must be informed in (i) cases of suspected homicide, (ii) cases of suicidal deaths, (iii) unknown, unconscious patient, (iv) death on operation table, (v) suspected unnatural death, (vi) sudden, unexpected, violent and unexplained death, (vii) instant death after treatment or reaction of medicine, and a (viii) married lady dying within seven years of marriage due to any reason.
    It is advisable to inform police in following circumstances (i) undiagnosed death within 24 hrs. of admission or specially if there is any suspicion, (ii) any cases of poisoning, (iii) accidental deaths, and (iv) in cases of hospital deaths if (a) accidents not related to medical management like fall from staircase etc., though there is no legal obligation on doctor, it is advisable to inform the police, (b) unexpected or rare complications may occur sometimes, e.g. a child may vomit, aspirate the content and may die. This is very unpredictable and it is not obligatory on part of the doctor to inform such deaths. But it is better if we inform the police because sometimes patient’s relatives may allege negligence in such cases. In cases of death due to negligence in treatment there are no specific provisions to inform the police but in order to avoid untoward incidences it is better to inform the police.
    “Brought dead cases”: In such cases, if the cause of death is apparent and there are no reasonable grounds to suspect some medico-legal complications then it is not necessary to inform the police. If the cause of death can’t be ascertained in any case then it is desirable to send the body for post-mortem examination preferably with the help of the police. It is advisable to suggest post-mortem in the following circumstances: (i) whenever death is sudden, unexpected or unexplained, (ii) accidental deaths which may be roadside, domestic or industrial, (iii) when precise cause of death is needed for insurance claim purposes etc., and (iv) as a help to arrive at final diagnosis.
    Information to police shall preferably be in writing and the written acknowledgement should be obtained. If the information is telephonic one must note down name, buckle number and designation of the police.
    Can a Doctor be Arrested?
    Doctors have no immunity against arrest (as any other citizen of India) for the various criminal acts as per the provisions of IPC or CPC of India.
    Illegal organ trading, unlawful sex determination etc. are non-bailable offenses. But the question is whether a doctor be arrested for:
    (a) alleged medical negligence during day to day care of a patient,
    (b) unexplained hospital deaths like SIDS etc.,
    (c) postoperative complication or failure of operation;
    (d) not attending or refusing a patient (who was not already under his care) who becomes serious or dies and
    (f) not attending a case of roadside accident.
    Recently, the chairman of a hospital was arrested for not complying with the Supreme Court directives in a roadside accident. In this particular case the patient died while being shifted to other hospital. The Supreme Court directives (criminal writ petition no. 270 of 1988) in a roadside accident include:
    • The medical aid should be instantaneous. It is the duty of the registered medical practitioner to attend the injured and render medical aid, treatment without waiting for procedural formalities unless the injured person or guardian (in case of minor) desires otherwise.
    • The effort to save the person and preserve the life, should be top priority, not only of the doctor but also of the police officer or any other citizen who happens to notice such an accident.
    • The professional obligation of protecting life extends to every doctor, whether at Government hospital or otherwise.
    • The obligation being total, absolute and paramount, no statutory or procedural formalities can interfere in discharging this duty.
    • Whenever better or specific assistance is required, it is the duty of treating doctor to see that the patient reaches the proper expert as early as possible.
    • Non-compliance of these directives may invite prosecution under provisions of Motor Vehicle Act or IPC (7).
    If FIR is lodged by patient or relatives then the police may arrest the doctor. Hence better approach in cases where we feel that the patients or relatives may create nuisance will be as follows:
  27. The doctor should lodge a FIR that a particular incidence has happened in my hospital.
  28. A crisis management committee may be formed at each Taluka or District level. The committee shall include doctors, social workers, legal personalities, politicians, press reporters etc. The committee members may meet the police officers and request them for complete investigation of the incidence and to avoid prosecution till the guilt is proved. The committee can also request the press reporters not to give unnecessary publicity to such cases. The Government of Kerala (G.R. no. 3231/SS-B4/92/Home dated 20.09.1993) has issued the following instructions if there are any cases of criminal negligence against a private practitioner, doctor or private hospital. According to G.R. the investigating Deputy Superintendent of Police shall refer the case to a panel of Superintendent of Police, commissioner of Police, District Medical Officer or Principal of Medical College. Still if the views differ, the opinion of an apex body consisting of Director of Health Services and expert in that particular specialty may be taken. The affected doctor is also free to approach the apex body with appeals
    Legal Rights of an Arrested Person
    The arrested person shall be communicated with the particulars of offence and the ground for arrest. If the offense is bailable, then the person should be informed and the arrangement for the bail may be made. If the police officer refuses to release such person on bail, he will be liable for damages for wrongful confinement. Sometimes a police officer may register an offense under Sec. 304 of IPC instead of 304-A in order to detain the accused doctor. In such cases officer may have to face serious consequences. The person shall not be subjected to more restraint than necessary to prevent his escape. If there are any offensive weapons belonging to the arrested person, these weapons may be seized. The arrested person must be produced before a magistrate having jurisdiction in that case. No police officer shall detain in custody an arrested person for more than 24 hours unless a special order from a magistrate is obtained.
    Anticipatory Bail: In order to avoid frivolous accusations, there is provision of anticipatory bail. This may be granted as a protection in offences which are non-bailable. It is direction to release applicant on bail, if there is arrest. Once granted it remains in force. Pre-requisites for anticipatory bail are: (i) there must be reasonable apprehension of arrest, (ii) the alleged offence must be non-bailable, and (iii) the registration of FIR is not necessary.
    Procedure for Bail: The accused is required to execute his personal bond at the police station with or without surety. The surety may be a close relative, a friend or a neighbor, who is required to undertake to pay the said amount in case of absconding of the accused.
    Do’s and Don’ts
    Inform police whenever necessary.
    Extend all possible co-operation to the police.
    Furnish copies of medical records to police, court or relatives whenever demanded. Consent of patient may be taken while providing information to police.
    Follow the legal procedures or provisions.
    Have a valid informed consent for the treatment (10).
    Preserve the documents, records specially in medico-legal, controversial or complicated cases.
    Insist for post-mortem examination if the cause of death can’t be ascertained.
    Involve medical associations, medico-legal cells, voluntary organizations whenever legal problem arises.
    Consult your lawyer before giving any reply.
    Don’t become panicky.
    Don’t manipulate or tamper with the documents.
    Don’t do unlawful or unethical acts.
    Don’t issue false or bogus certificates. Certificate was issued on request is no defense.
    Don’t neglect the treatment while completing legal formalities specially in serious or emergency situation.
    The Supreme Court in the case of medical negligence held as under:
    “Jacob Mathew vs State of Punjab & OTHERS”:
    Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: ‘duty’, ‘breach’ and ‘resulting damage’.
    Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, 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 which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.
    A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
    The test for determining medical negligence as laid down in Bolam’s case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India.
    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 offence, the element of men’s rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. 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.
    The word ‘gross’ has not been used in Section 304A of 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’.
    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.
    Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.
    “Martin D’Souza vs Mohammed Isfaq”
    The bench of Justices Markandeya Katju & R M Lodha ruled that “courts must first refer complaints of medical negligence to a competent doctor or a panel of experts in the field before issuing notice to the allegedly negligent doctor. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameter laid down in Jacob Mathew’s case, otherwise the policemen will themselves have to face legal action”.
    Fake doctors:
    Those arrested have been booked under sections 419 and 420 of the Indian Penal Code and sections 33 and 36 of the Maharashtra Medical Practitioners Act.
    India—a tale of one country, but stories of many states

Colonialism leaves disfiguring scars among those who are colonized. Few countries inflicted such deep wounds as Britain did during its centuries-long colonial rule of India. Understanding the history of colonialism and its consequences is therefore essential if one is to understand the predicaments of nations today. This week, The Lancet publishes the most comprehensive assessment yet of India’s present health predicaments. But India’s contemporary challenges in alleviating its burden of disease must first be examined in the context of Britain’s colonial legacy.
That legacy, in the words of former UN diplomat and now Indian politician Shashi Tharoor, is a “monstrous crime” (Inglorious Empire, Hurst, 2016). The East India Company, Britain’s initial instrument of domination, was established in 1600 during the reign of Elizabeth I. British rule was decisively inaugurated in 1757 after the Battle of Plassey. Thereafter, as Tharoor painstakingly documents, “Britain’s rise for 200 years was financed by its depredations in India”. In 1700, India made up 27% of the world economy. But Britain’s tyranny, subjugation, oppression, racism, and extortion led to “the first great de-industrialization of the modern world”. Britain systematically extracted India’s wealth. Successive British Governments destroyed India’s industry, trade, and shipbuilding. Britain’s “colonial holocaust” led to the needless deaths of some 30–35 million Indians (which Tharoor compares to the cruelties of Mao and Stalin). The argument that Britain’s enlightened despotism bestowed political unity, parliamentary democracy, rule of law, a free press, and a world-class railway system is thoroughly disproven by Tharoor, and several generations of Indian scholars. Most importantly, as one confronts today’s burden of disease and disability in India, Britain showed little interest in building even the most rudimentary elements of a health or scientific research system during its period of colonial rule. The full extent of this history must be appreciated if one is to understand the health needs of the Indian people today.
In 1946, the Bhore Committee set out a proposal for a national programme of health services in India. Over the past 70 years these reforms were never implemented. For the first time, an Indian-led team of authors have now estimated disease burden and risk factor trends for all states in India covering the period 1990 to 2016. The study underscores the fact that India is undergoing a rapid epidemiological transition with a shift in burden to non-communicable diseases (NCDs) and injuries. However, huge variations in disease burden exist across states, with communicable, maternal, neonatal, and nutritional diseases still high in many states and NCDs and injuries increasing in every state, highlighting major health inequalities.
Earlier this year, a study published in The Lancet analyzed access to and quality of health care among and within countries using a new metric, the Healthcare Access and Quality (HAQ) index. Despite India’s HAQ index increasing from 31 in 1990 to 45 in 2015, India still ranked a woeful 154th among 195 countries. In another Lancet study, which analyzed progress towards universal health coverage (UHC) as one of the Sustainable Development Goal indicators, India again underperformed relative to other countries, many of which were far less developed.
The authors note two factors that will further challenge India’s health system in the coming decades: urbanization and ageing of the population. Both of these transitions will add to and exacerbate the major risk factors for disease burden highlighted in this study, which include child and maternal malnutrition, unsafe water and sanitation, air pollution, and metabolic and behavioral risk factors for cardiovascular disease and diabetes. Targeted actions alongside broader (intersectoral) and longer-term policy responses will be required across all states.
Encouragingly, a flourishing era of innovation in the way health care is being designed and delivered is being invested in and led by the states themselves. For example, Kerala, Tamil Nadu, and the Punjab are strengthening health systems in pilot projects for UHC. However, these state level actions should not diminish the responsibility of the federal government for increasing public investment in health care. We are disappointed by the lack of ambition of President Modi’s Government to invest only 2·5% of its GDP into health care by 2025, when the global average for countries is about 6%. The rise in India’s economic fortunes and its aspiration to progress to the same level as its neighbor, China, is something of an embarrassment, given how improvements to health trail so far behind. Until the federal government in India takes health as seriously as many other nations do, India will not fulfil either its national or global potential.
India Needs Punishment Policy for Illegally Sold Medicines

Selling or marketing spurious medicine is a black-market industry of thousand crores in our country. So many medicines are sold openly in the market over the counter without prescription of doctors. Not only this, such medicines should be given by licensed registered pharmacist in chemist shop but in our country, one can get it everywhere and now online at our home. Medicines are sold openly by advertisement in printed.
Medicines are sold openly by advertisement in printed media, electronic media and social media openly, anybody can get any medicine including habit forming sleeping pills and narcotics leading to drug addiction and every other bad effect. Every second person suggests some medicine to other as if a doctor.
Many homoeopathic, ayurvedic and allopathic medicines are advertised completely on fake studies and promises and almost all leading TV channels and all best newspapers and magazines of India. Many medicines are sold on the belief that these medicines do not cause any side effect as Ayurvedic, Homeopathy medicines are desi and never cause any abnormal reaction. A quick recovery for increasing height, sex desire and satisfaction, a color change from black to a fair, reducing weight, treating diabetes, asthma, arthritis cancer, epilepsy etc. are marketed badly by big advertisements or push through marketing persons or via MR through doctors. Vitamins, liver tonics, enzymes, anti-diarrheal, cough syrups, antacids, laxative painkillers etc. are sold openly in different combinations in all pathies which are not recommended pharmacologically. Many banned and discarded medicines are openly sold and marketed in Indian drug market.
MCI gag order to doctors to write generic medicines will further vitiate the black market as now Uneducated medicine sellers as most chemist shops does not have pharmacist will give highly profitable less reliable brand for generic compound to patient after doctor’s prescription. Many such medicines are manufactured by many fake and unregistered companies but as our drug regulating agencies, police, general and health administration or judiciary is easily bribed so this industry of corruption is running full swing.
But the situation is just reverse in USA, UK, Germany, France, Australia etc. all developed and many developing nations where every medicine is given to any patient on the prescription of a doctor and that too by a registered pharmacist only. Audit of every medicine is must as that of a currency an if anybody violate or disobey such rule strict punishment is awarded.
Recently an Indian who went to America and got its natural citizenship too was jailed for 5 yrs. rigorously with a withdrawal of citizenship as he was exporting Viagra like drugs from china and selling it in a different part of America as Sex enhancing pill. He exported this drug from china as a beauty product and then changed its wrapper and all details and sold it in the market under different parts of USA where nobody can sell any medicine if not cleared by FDI and medicines can be sold from a registered pharmacy only. They do not allow to import any medicine which is manufactured there only beauty products, tea etc. can be imported after a valid license so he adapted this way to earn money.
Same way about 2 yrs. back, well-known pharma company has to pay hundred million for importing few not up to standard medicine to the USA for settlement of the case out of Court with the USA Government. But in India, that company easily sold all those medicines due to bribe to politicians and drug controlling authorities.
This is a lesson for a country like us. Our Government and law enforcing agency should have zero tolerance for selling medicines as any careless handling of this serious chemical may damage our body badly or may cause death. Therefore to sell medicines without doctor prescription and selling these by unregistered so called pharmacist at chemist shops or online or shops without drug license or manufacturing and marketing of spurious medicines and running fake drug companies are heinous crime and should be punished as in the USA heavily, to save human life as no compromise with health should be allowed.
Indian legal system and mental health

Although there was a rich tradition of legal system in Ancient India, the present judicial system of the country derives largely from the British system and is based on English Common Law, a system of law based on recorded judicial precedents. Earlier legislations in respect of mental health were primarily concerned with custodial aspects of persons with mental illness and protection of the society. Indian laws are also concerned with determination of competency, diminished responsibility and/or welfare of the society. United Nations Convention for Rights of Persons with Disabilities (UNCRPD) was adopted in 2006, which marks a paradigm shift in respect of disabilities (including disability due to mental illness) from a social welfare concern to a human right issue. The new paradigm is based on presumption of legal capacity, equality and dignity. Following ratification of the convention by India in 2008, it became obligatory to revise all the disability laws to bring them in harmony with the UNCRPD. Therefore, the Mental Health Act – 1987 and Persons with Disability Act – 1995 are under process of revision and draft bills have been prepared. Human right activists’ groups are pressing for provisions for legal capacity for persons with mental illness in absolute terms, whereas the psychiatrists are in favor of retaining provisions for involuntary hospitalization in special circumstances.
Indian Legal Systems refers to the system of law operative in India. In the ancient days, there was a distinct tradition of law, which had a historically independent school of legal theory and practice. Law as a matter of religious prescriptions and philosophical discourse has an illustrious history in India.[1] The Arthashastra dating from 400 BC and the Manusmriti from 100 AD were influential treatises in India, texts that were considered authoritative legal guidance.[2] Manu’s central philosophy was tolerance and pluralism and was cited across Southeast Asia.[2] During the Islamic rule, Sharia law came to India, but that was applicable mainly to the Muslim population. When India became part of the British Empire, there was a break in the tradition, and Hindu and Islamic laws were supplanted by the common law. As a result, the present judicial system of the country derives largely from the British system and has little correlation to the institutions of the pre-British era.[2] Much of the contemporary Indian Laws are largely based on English Common Law, a system of law based on recorded judicial precedents and shows substantial European and American influence and many of the legislations introduced by the British are still operative. Therefore, the roots of most of the legislations in respect of persons with mental disorders (PMI) can be traced to the British periods.
There is a dynamic relationship between the concept of mental illness, the treatment of the mentally ill and the law.[3] As Rappeport has noted, for the psychiatrists the court is “another house … with its different motives, goals and rules of conduct.”[4] While the psychiatrist is concerned primarily with the diagnosis of mental disorders and the welfare of the patient, the court is often mainly concerned with determination of competency, dangerousness, diminished responsibility and/or the welfare of society.[5] Therefore, in India also, most of the earlier legislations in respect of PMI were concerned with these aspects. However, legislations drafted after eighties tend to give some stress on the rights of PMI also.
The constitution of India
The constitution of India provides under Article 21 that no person shall be deprived of his life or personal liberty except according to procedures established by law. It has been held that right to life and personal liberty under this article includes “facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and comingling with fellow human beings.” [6]
According to the Representation of People Act, 1950 (sec 16), a person is disqualified for registration in an electoral roll if he is of unsound mind and stand so declared by a competent court. Therefore, the person so disqualified cannot hold public offices under the Constitution like President, Vice-President, Ministers or Member of Parliament and State Legislatures.
Indian laws regulating treatment of persons with mental disorders
Relationship between psychiatry and law most often comes into play at the time of treatment of PMI. Treatment of PMI often involves curtailment of personal liberty of psychiatric patients. Most of the countries in the World have laws regulating treatment of psychiatric patients. Though there are elaborate descriptions of various forms of mental disorders in various treatises in Ayurveda,[7] the care of mentally ill in the asylums in India is a British innovation.[8] After the takeover of the administration of India by the British crown in 1858, a large number of laws were enacted in quick succession for controlling the care and treatment of mentally ill persons in British India.[9] These laws were
• The Lunacy (Supreme Courts) Act, 1858
• The Lunacy (District Courts) Act, 1858
• The Indian Lunatic Asylum Act, 1858 (with amendments passed in 1886 and 1889)
• The Military Lunatic Acts, 1877.
These Acts gave guidelines for establishment of mental asylums and procedure to admit mental patients. The British scene existing in the middle of the 19th century served as the background of lunacy legislations in that period in India. The various Acts of 1858 naturally reflected the legalistic frame for the management of the mentally ill.[10] During the first decade of the 20th century, public awareness about the pitiable conditions of mental hospitals accentuated as a part of the growing political awareness and nationalistic views spearheaded by the Indian intelligentsia.[9] As a result, the Indian Lunacy Act, 1912 was enacted. The 1912 Act guided the destiny of Psychiatry in India.[10] Lunatic asylums (named mental hospitals in 1922) were now regulated and supervised by a central authority. Procedure of admission and certification in this respect was clearly defined. The provision of voluntary admission was introduced. Still, the main stress was on preventing the society from dangerousness of mentally ills and taking care that no sane person is admitted in these asylums. Psychiatrists were appointed as full-time officers in these hospitals. Provisions of judicial inquisitions for mentally ill persons were also given in the Act. After the Second World War, Universal Declaration of Human Rights was adopted by the UN General Assembly. Indian Psychiatric Society submitted a draft Mental Health Bill in 1950 to replace the outmoded ILA-1912. Mental Health Act (MHA-87) was finally enacted in 1987 after a long and protracted course. Main features of the Act are as follows.
• Definition of mental illness in a progressive way and introducing modern concept of their treatment with stress on care and treatment rather than on custody.
• Establishment of Central/State Mental Health Authority to regulate and supervise the psychiatric hospitals/nursing homes and to advise Central/State Governments on Mental Health matters.
• Admission in special circumstances in psychiatric hospital/nursing homes. Provisions of voluntary admission and admission on the reception orders were retained.
• Role of Police and Magistrate to deal with cases of wandering PMI and PMI cruelly treated.
• Protection of human rights of PMI.
• Guardianship and Management of properties of PMI.
• Provisions of penalties in case of breach of provisions of the Act.
Though having many positive features, the MHA-1987 has been the target of criticism right since its inception. It is alleged to be concerned mainly with the legal procedure of licensing, regulating admissions and guardianship matters of PMI. Human right issues and mental health care delivery are not properly addressed in this Act.[11] Because of a large number of very complicated procedures, defects and absurdities in the Act and also in the Rules made under the Act, it can never be implemented properly.[12] Human right activists have questioned the constitutional validity of the MHA, 1987 because it involves curtailment of personal liberty without the provision of proper review by any judicial body.[13] MHA-87 is currently under process of amendment to make it United Nations Convention for Rights of Persons With Disabilities (UNCRPD) compliant.
Persons with disability (equal opportunities, protection of rights, full participation) Act, 1995 (PDA-95)
PDA-95 was enacted in 1995 to remove discriminations in the sharing of developmental benefits vis-à-vis non-disabled persons and to prevent abuse and exploitations of persons with disability (PWD). It provided for barrier-free environment and spelled out responsibilities for the government to plan strategies for comprehensive development programmes, to special provision for integration of PWD into the social mainstream. Under PDA-95, mental retardation and mental illness are categorized as conditions of disabilities. Thus, the PMI are entitled to benefits available to PWD as provided under the Act. There is a provision of 3% reservation in government jobs, but it is not available to the PMI. This Act is also currently under revision in light of the UNCRPD-2006.
National trust Act-1999
This Act was enacted in the year 1999 for the welfare of persons with autism, cerebral palsy, mental retardation and multiple disabilities to enable and empower them to live as independently and as close to the community to which they belong and to facilitate the realization of equal opportunities and protection of rights. The Act provides for many welfare measures. This Act is also under revision to make it UNCRPD-2006 compliant and make it more comprehensive. Management of properties of PMI is supposed to be covered under the amended Act.
United Nations convention for rights of persons with disabilities-2006 and Indian laws
UNCRPD was adopted in December, 2006. It was ratified by the Parliament of India in May, 2008. Countries that have signed and ratified the UNCRPD are required to bring their laws and policies in harmony with it. Therefore, all the disabilities laws in India are currently under process of revision. The convention marks a paradigm shift in respect of disabilities from a social welfare concern to a human right issue. The new paradigm is based on presumption of legal capacity, equality and dignity. According to article 2 of the convention, PWD will enjoy legal capacity on an equal basis for all aspects of life. Article 3 calls the state to take appropriate measures to provide access to support by PWD to exercise the legal capacity. Article 4 calls for safeguards to prevent abuses of the system of support required by PWD. There is no explicit prohibition of forced interventions in the UNCRPD, but neither does the Convention permit compulsory mental health care.
The process of amendment in MHA-87 was set in motion and a draft Mental Health Care Bill – 2011 (MHCB) has been prepared. MHCB provides for replacement of licensing of mental health establishments to registration and establishment of Mental Health Review Commission with its state panels. Admission processes have been drastically changed. The most salient feature of MHCB is that it enshrines duties on the government to establish and provide mental health services to all citizens and take appropriate measures in this respect. There are elaborate provisions in respect of human rights of the PMI and it has a separate chapter for the purpose.
PDA-95 is also under revision and a draft “The Rights of Persons with Disabilities Bill, 2011 (RPWD Bill) has been submitted to the Ministry of Social Justice and Empowerment (MSJE). Sec 18 of the proposed bill states that PWD will enjoy legal capacity on equal basis with others in all aspects of life and any law, rule, bye-law, custom or practice prescribing disqualification on ground of disability will become unenforceable. PWD have the right to access support necessary to exercise the legal capacity, but they are free to alter, modify or dismantle any support system. Concept of plenary guardianship has been abolished and replaced with limited guardianship. PMI has been provided 1% quota out of the proposed 7% reservation for PWD in government jobs.
Provisions of MHC Bill and RPWD Bill are in conflict of each other. The drafting team of the RPWD was dominated by human right activists. A section of human right activist is in favor of complete legal capacity to all PMI and want a complete ban on involuntary institutionalization and even dismantling of all psychiatric hospitals. They feel that in the MHCB, there is no assumption of universal capacity, and no plan to provide support to people in making informed choices regarding their own affairs.[15] They have even called for outright repeal of MHA-87 and matter to be covered by a revised and comprehensive RPWD Bill under the purview of MSJE.
Indian contract laws
According to Indian Contract Act, 1872, any person of sound mind can make a contract. Section 12 of the Act stipulates that a person is said to be of sound mind for the purpose of making a contract, if, at the time when he makes it, he is capable of understanding it and of forming a rational judgment as to its effect upon his interest. A person, who is usually of unsound mind, but occasionally of sound mind, may make a contract when he is of sound mind. A person, who is usually of sound mind, but occasionally of unsound mind, may not make a contract when he is of unsound mind. It means a PMI who is currently free of the psychotic symptoms can make a contract, whereas a person who is currently intoxicated or delirious cannot make a contract.
Marriage and divorce
Under Hindu Marriage Act, 1955, conditions in respect of mental disorders, which must be fulfilled before the marriage is solemnized under the Act, are as follows.
2 Neither party is incapable of giving a valid consent as a consequence of unsoundness of mind.
3 Even if capable of giving consent, must not suffer from mental disorders of such a kind or to such an extent as to be unfit for marriage and the procreation of children.
4 Must not suffer from recurrent attacks of insanity.
The expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia. The expression “psychopathic disorder” means a persistent disorder or disability of the mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment.
Marriages in contravention to the provision in respect of mental disorders come under voidable category. Voidable marriages (sec 12) are those which may be annulled by a decree of nullity on the given grounds but may continue to be legal till the time it is annulled by a competent court.
According to the section 13 of the Act, divorce or judicial separation can be obtained if the person has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
The expression “incurably” of unsound mind cannot be so widely interpreted as to cover feeble minded persons or persons of dull intellect who understand the nature and consequences of the act and are therefore able to control them and their affairs, and their reaction in the normal way (A.I.R. 1969 Guj-48 and 78 CLT 1994 561). When there was sufficient evidence for the court to conclude that the slight mental disorder of the wife was not of such a kind and to such an extent that the husband could not reasonably be expected to live with her, divorce could not be granted (A.I.R., 1982 CAL 138). Each case of schizophrenia has to be considered on its own merits.[16]
Under Special Marriage Act, 1954, the grounds for marriage, divorce and judicial separation are practically the same as those in the Hindu Marriage Act, 1955. The Special Marriage Act, 1954 is meant for any person in India and Indian nationals abroad, irrespective of the faith that the individual may profess. A marriage solemnized in any other form can be registered under this Act.
Under the prevalent Muslim Law, marriage is a type of contract. Therefore, a Muslim who is of sound mind and has attained puberty is qualified to marry. However, if the guardian of a person of unsound mind considers such a marriage to be in his interest and in the interest of society and is willing to take up all the monetary obligations of the marriage, then such a marriage can be performed. Talaq (divorce) under Muslim Law has to be for a reasonable cause and must be preceded by attempts for reconciliation by two arbiters. According to Muslim Marriage Act, 1939, a woman married under Muslim Law is entitled to obtain a decree of divorce if her husband has been insane for a period of 2 years.
Under Christian Law, marriage is voidable, if either party was a lunatic or idiot. Christians can obtain divorce under Indian Divorce Act. 1869 (as amended in 2001) on grounds of unsoundness of mind provided: (i) it must be incurable (ii) it must be present for at least 2 years immediately preceding the petition. Divorce is not admissible on ground of mental illness under the Parsi Marriage and Divorce Act, 1936. However, divorce can be obtained if the defendant at the time of marriage was of unsound mind, provided the plaintiff was ignorant of the fact and the defendant has been of unsound mind for a period of 2 years upwards and immediately preceding the application.
TESTAMENTARY CAPACITY
Testamentary capacity is the legal status of being capable of executing a Will, a legal declaration of the intention of a testator with respect to his property, which he desires to be carried into effect after his death. Indian Succession Act, 1925 (sec 59), stipulates among other things:
• Any person of sound mind can make a Will.
• Persons, who are ordinarily insane, may make a Will during an interval while they are of sound mind.
• No person can make a Will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, so that he does not know what he is doing.
Testamentary capacity requires a person’s full sense and mental sanity to have confirmed and signed the Will after understanding what his assets comprised and what he is doing by making a Will. He understands in full mental capacity to whom he is naming the assets to and how are they related to him and what repercussions it may have later.[17]
CRIMINAL LIABILITY
Indian Penal Code, 1860 states that “Nothing 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.” McNaghten Rules define the criminal responsibility of mentally ill in our courts and it has been incorporated in the sec 84.[18] It has been held by the Supreme Court that the law presumes every person of age of discretion to be sane and defense on ground of insanity needs to be proved. If defense is established on ground of insanity, such persons are committed to the Psychiatric Hospitals as per sec 471 (i) of the Cr.P.C., 1973. There have been instances of lesser sentence on account of mental illness. Where the feeling of life unbearable on account of domestic quarrels, a woman (accused) jumped into a well with her children, it was held that the only sentence that could be passed was the lesser sentence of imprisonment for life (AIR 1953 MB 61).
Sec 89, IPC provides protection for any action done in good faith for the benefit of a person of unsound mind by or by consent of the guardian or other person having lawful charge of that person. Sec 305, Indian Penal Code (IPC) provides for punishment of death or imprisonment of life for abetment of suicide by an insane person.
CONCLUSION
Important legal provisions in respect of the PMI in the Indian legal system have been discussed. As most of the laws were either framed during the colonial period or their origin can be traced to the period, British influence is clearly visible. Laws in respect of the PMI are presently on crossroad as most of them are under revision to bring them harmony with the UNCRPD-2006. Human right activists are pressing for legal capacity to PMI in absolute terms, whereas psychiatrists are in favor of retaining provision for involuntary hospitalization in special circumstances. It must be emphasized that the ultimate aim of any legal provision should be the welfare of the PMI and the society at large.
Indian mental health policy
The union health ministry launched the country’s first ever mental health policy to provide access to good quality treatment to mentally ill people with the focus on those living in poverty.
The policy, launched by Union Health Minister Harsh Vardhan, is backed up by the “Mental Health Action Plan 365” which spells out the specific roles to be played by the Centre, the state governments, local bodies and civil society organizations.
The government also came out with two booklets providing training modules for general physicians or the common man.
“Universal access to mental health care is a specific goal of the government. It would find substantial articulation in the evolving National Health Policy and National Health Assurance Mission (NHAM),” Harsh Vardhan told the media after the launch.
The minister also said that Oct 10, which is observed as the world mental health day, would now also be observed as the national mental health day.
Apart from this, “mental health institutes across the country would be remodeled on the lines of the National Institute of Mental Health and Neuro Sciences (NIMHANS), Bangalore”, Harsh Vardhan said.
The new mental health policy’s objective is to provide universal access to mental health care by enhancing understanding of mental health and strengthening leadership in the mental health sector at all levels.
Among the major stakeholders identified for actualizing the objectives of the policy are the union government, local bodies like municipalities, schools and colleges and the private corporate sector.
“It will have a pro-poor orientation because only the creamy layer of society presently has access to mental healthcare in India,” Harsh Vardhan said.
The minister added that the government would try and introduce the mental health bill in parliament in the next session. “This time a policy group worked dedicatedly to develop its recommendations. I thank them for recognizing that the vast majority of the mentally ill people in India live in villages and there is literally no care available for them,” he said.
“The World Health Organization has predicted that about 20 percent of India’s population would suffer from some form of mental illness by 2020. The country has only about 3,500 psychiatrists. Therefore, the government is confronted with the problem of lowering this gap significantly over the next decade,” he added.
Indian penal code for doctors
Ignorance of the law is never an excuse especially when it comes to the medical profession, the doctors are under tremendous pressure to perform at the best of their ability and follow the lawsuit in general as their performance reflects if the patient would be cured or saved. They have certain civil and criminal responsibilities.
But, the double-edged sword of treatment burden, death of a patient, and medical errors are always hanging above the head of doctors. The doctors have to outperform and exceed their expectations but the truth lies within that the death can never be controlled by anyone.
If found guilty, doctors are criminally liable under these circumstances:
A] Evidence and Record:
Section number
Actual Act
Explanation
174
Non-attendance in the obedience of an order from a doctor
A doctor is legally bound to appear in court or in front of the magistrate if he/she is in relation with that case. Failure to do so could be found guilty under this section.
175
Failure to produce the document by the legally bounded person
A doctor is bound to produce all documents (e.g. medical reports or treatment record) in case of the medico-legal case. Failure to do so can result in the offence of laws under this section.
176
Omission to provide notice or information to public servant by legally bounded person
A doctor is bound to inform police about the medico legal, murder case, or a rape case which is admitted in their dispensary or hospital. If he/she fails to do so they are then liable under this section
187
Not assisting the public servant when bound by the law to provide the required assistance
A doctor if he/she fails to treat a patient or public servant allotted to him, then the doctor is guilty under this section.
192
Fabricating false evidence
A doctor or a medical professional in any circumstance produces false evidence, makes a false entry in the book, false statement, then he is criminally liable under this act.
197
Issuing or signing a false certificate
A doctor in any way is not allowed to issue or sign a certificate which is intentionally constructed for a false manner.
470
Forged document or electronic record
A document which is made partly or completely by forgery is legally not allowed in the court of law and such acts will be liable under this section
471
Using a forged document as a genuine document
Doctors at any cost are not allowed to utilize forged documents like an original document for whatever reason, in such cases he/she is liable under this section
B] Laws on Public Health, Safety and Drugs:
Section number
Actual Act
Explanation
269
Negligence resulting in the spread of infectious diseases
The medical professionals are liable to follow strict standards which are set for treating patients under the guidelines and protocols especially for dangerous diseases like AIDS, Hepatitis etc.
270
Malignancy resulting into the spread of infectious diseases
The medical professionals are not allowed to act malignantly in any case, such acts would be strictly taken into action under this section
274
Drug Adulteration
The medical professionals aren’t allowed to adulterate any medical preparation which arbitrarily affects the efficiency and safety of the drug rendering it useless. If found guilty, such professionals are liable under this act.
276
Sale of drugs as a different drug or preparation
The medical practitioners aren’t allowed to retail drugs with their own formulation. All drugs which are liable to sale should be duly approved by the regulatory authorities. If found liable such individuals would have to face stern action under this section.
278
Making the work atmosphere unreliable to work
The medical practitioner caught violating the norms of the general practice that intoxicates the work environment on a large scale are liable under this act.
284
Negligence while handling a poisonous substance
If the medical practitioner, due to any unforeseen reason is involved in providing a poisonous or toxic substance to the patient which can endanger the life, such practitioners are liable under this section.
287
Negligence in handling medical devices
The medical practitioner needs to be very careful while handling medical devices, if any sort of negligence occurs in any circumstance it could lead to serious complications under this section.
C] Laws in relation to endangering life:
Section number
Actual Act
Explanation
336
Endangering the life or personal safety of others
Act performed with negligent intentions which proceeds to endanger their life or personal safety.
337
Hurting life or personal safety of others
A procedure performed which harms human life or personal safety.
338

Hurting grievously or personal safety of others
An act which is responsible for grievously hurting someone which proceeds to endanger their life or personal safety
D] Laws in relation to indoor patients:
Section number
Actual Act
Explanation
340
Wrongful confinement
A medical practitioner is not allowed to wrongfully restrain a person from his/her rights in a manner as to limit the medical proceedings further. It is totally unlawful to confine a person, withhold discharge for any given reason or withhold handing of the dead body due to payment disputes.
E] Laws governing death due to negligence:
Section number
Actual Act
Explanation
304-A

Causing death due to negligence
The medical practitioner who is found guilty of causing death due to medical negligence can be punished with imprisonment of either description for a term which may extend to two years, or with fine, or both. In this section, the Supreme Court of India is of the view that the situation should be very carefully analyzed while imposing criminal offences on doctors under this section.
Finally, it needs to be remembered that establishing a strong doctor-patient relationship could assist in many ways. In any case, more time you spend with your patient in your consulting room, it might reduce your time in the courtroom.
Is Consumer protection Bill 2018 going to disturb my practice?
_Objections and Consideration of CP Bill 2018.

  1. Raised pecuniary jurisdictions of District, State & National Commissions, but cleverly removed ‘amount of compensation claimed’ from all the jurisdictions.
    Compensation removed and Consideration inserted which means that the fine would be higher and easy for implementation even by a local district body. Making us more vulnerable.
  2. Appellant can file complaint in his district, where he/she is residing, jurisdiction changes causing more inconvenience to the doctor.
    Doctors would have to travel to maybe other district wherein the complainant can have influence, sympathy and use non judiciary means for extraction of fine amount.
  3. 50% of the fine amount to be deposited in court before going to higher court for appeal.
    If the fine is 1 crore, a doctor has to deposit 50 lakhs cheque for being eligible for filing and fighting against in higher state Court. I simply can’t imagine the situation if at all it arises.
  4. Imposing a penalty of 10000 on frivolous complaints removed.
    Increasing the possibility of *false accusations to extract, trouble harass doctor. *
  5. Mediation Cell has been introduced. The commission might transfer the dispute to mediation cell for negotiation.
    Once we appear for that, it will be assumed that we are guilty and ready for negotiation. Money and influence game begin. With the current attitude towards doctors, this mediation cell comprising of non-Medico’s would be a disaster.
    6.. Punitive restrictions on doctors for
    misleading endorsement of any product. -Whenever a doctor makes a research and make some innovation if he/she endorses the product and somebody, NGO file application against it, then not only fine, penalty but *even the registration could be challenged. *
    God bless the Indian citizens who want research and innovative ideas and solutions from us.
  6. All this would be in the hands of non-judicial person who will pass judgement, verdicts.
    Incapable of logical thinking and deficiency of judiciary prerogatives these lay persons will have an out leash in declaring consideration amounts which won’t be capped at 20 lakhs as before in CPA, but now *up to and not limited to 1 Crore. *
    JUDGEMENT ON PNDT ACT
    HIGHLIGHTS FROM THE JUDGEMENT19. At this stage, the counsel for the petitioner in W.P.(C) No.6968/2011(IRIA) contended that PNDT Act was concerned with the misuse of the techniques of ultrasound for sex determination but has ended up, permitting all MBBS Doctors to conduct ultrasound. However, on enquiry, whether prior thereto, there was any bar on MBBS Doctors doing ultrasound or reporting on ultra sound procedure, no reply was forthcoming.
    29………we fail to understand what difference it makes, whether the sonologist or imaging specialist i.e. a person who can use and operate an ultrasound machine, is a mere MBBS or has a Post Graduate qualification in medicine or has experience of one year or has undergone six months training. The PNDT Act does not owe its enactment to the poor or useless or inaccurate diagnostic reports of ultrasound tests and resultant need to prescribe the qualifications of persons who can operate, use, read and report the outcome of the said diagnostic procedure.
  7. We are therefore unable to comprehend the purport of the impugned provisions prescribing the qualification of persons who can use and operate the ultrasound machines and like. It is not as if prior to the coming into force of the PNDT Act the ultrasound machines were in the hands of persons other than „Doctors‟. Even in diagnostic centers where „technicians‟ were operating the ultrasound machines, they were under the control and supervision of „Doctors‟ and it was the „Doctors‟ who were preparing and signing the reports of ultrasound diagnosis/test. It was the „Doctors‟ only who were misusing the same for sex determination, as is evident from reports in the news media of the stray cases detected of violation of the Act.
    37.We are of the opinion that for the purposes of prevention of sex determination through ultrasound machines or other radiological techniques, it matters not whether the ultrasound machine is in the hands of an MBBS or an MBBS with six months training or an MBBS with one year experience who has cleared the competency test or in the hands of MD radiologist / obstetrics. The qualification of MBBS itself is a highly sought-after qualification, to secure which one has to first appear in a competitive examination for admission to a medical college and thereafter has to undergo the rigors of passing the MBBS examination. By no stretch of imagination can it be said that an MBBS qualified person lacks education or understanding to be not able to comprehend the fatal consequence of female feticide as a result of sex determination or the morality behind the same. In our opinion, to understand the said aspects, the one-year experience or passing the competency test or undergoing the six months training or acquiring the post-graduate qualification, add no further to the person
    42.We may at the outset notice the difference in the stand qua the interpretation of Section 2(p) between the petitioner in WP(C) No. 6968/2011(IRIA) and the petitioners in the other two petitions. While according to petitioner in WP(C) No. 6968/2011, which represents Doctors with postgraduate degrees in radio-diagnosis, it is only the Doctors with postgraduate degrees in radio-diagnosis who are competent to install, use, operate and report on diagnosis with ultrasound machines and have been doing so in the past and the PNDT Act has for the first time entitled even those without postgraduate degrees i.e. mere MBBS to do so, the petitioners in other two petitions who represent the general body of Doctors, not necessarily holding postgraduate degree in radio-diagnosis, controvert. However, since we have not been shown and have ourselves not been able to find any bar under the MCI Act or any other law/rule/regulation, to using/operating ultrasound machine save with a postgraduate degree in radio diagnosis, we proceed to interpret Section 2(p) literally.
  8. The contention of the petitioners in WP(C)No. 2721/2014 and WP(C) No. 3184/2014 also is that qualification of MBBS or any medical qualification recognized under the MCI Act is enough to operate/use an ultrasound machine. ………If MCI, which is the specialist body in the field of medicine, is of the opinion that persons having MBBS qualification are entitled to practice medicine with use of ultrasound machine, we need look no further…………………………………………….Suffice it is to state that literally, Section 2(p) enables a person who possesses any one of the medical qualification recognized by MCI to be a sonologist or imaging specialist
  9. We accordingly dispose of these petitions with the following declarations / directions:
    (I) that Section 2(p) of the PNDT Act defining a Sonologist or Imaging Specialist, is bad to the extent it includes persons possessing a postgraduate qualification in ultrasonography or imaging techniques – because there is no such qualification recognized by MCI (Final Interpretation: Every MBBS is a sonologist and six months training is not required)
    ………………………(vi) Rule 3(3)(1)(b) of the PNDT Rules (as it stands after the amendment with effect from 9th January, 2014) is ultra vires the PNDT Act to the extent it requires a person desirous of setting up a Genetic Clinic / Ultrasound Clinic / Imaging Centre to undergo six months training imparted in the manner prescribed in the Six Months Training Rules.(Final Interpretation: Every MBBS is a sonologist. Six months training is optional)
    ………………………. Dr. Sonal Randhawa (Secretary-SSOI)

LAWS IN MEDICINE

The modern version of Hippocratic Oath (called the declaration of Geneva), devised by the WHO
after the second world war and accepted by international medical fraternity as the international code of medical ethics, draws heavily upon the ancient oath, been guiding and regulating the conduct
of doctors for centuries.
During the Ashoka period (270 BC), the state showed
interest in the public works and provision of medical care
and as a law. He founded hospitals all over his empire with
medical attendance at state expense.4 Ethics is described in
the Charaka—Samhita, in details and Ayurvedic physicians
of ancient India has a well-defined medical ethics”.5
The colonial power brought with them their own
physicians and barber surgeons. In the mid-19th century, as
the medicine got recognized in England, it slowly started
having its impact in India too. After 1857, the main factors
that shaped colonial health policy in India were their concern
for troops and European civil population.6
The process of establishment of healthcare system
also necessitated creation of legislative framework for
practitioners of medicine. In the earlier period of rule, the
physicians and surgeons brought by the East India company
and after 1857 by the British Government, needed some
discipline and regulations. Lt Colonel DG. Crawfords ‘A
history of Indian medical services, 1600-1913’ narrates
several instances of in-discipline, insubordination,
malpractice, etc. by such doctors and the punishments
(including deportation) mated out to them. It also narrates
the regulation devised by the East India Company for the
hospitals established by them.
After the enactment of the law, establishing General
Medical Council in 1857 in England, the British doctors
employed in India were registered with the GMC and came
under its disciplinary regulation. As the number of doctors
qualified in Indian medical colleges increased, creation of
laws for them became necessary.
As a part of criminal procedures and for other purposes,
the colonial government had, in 1871, enacted Coroner’s
act applicable to Bombay and Calcutta. It defined the
role of medical professionals in the work of conducting
autopsy and inquests. However, the laws for the creation
of indigenous medical councils took many more years for
enactment. Mean-while, the laws were enacted for the
prevention of the spread of dangerous epidemic disease,
for the segregation and medical treatment of pauper, etc.
The epidemic disease act was first enacted in 1807 and is
still in force with amendments, while the Lepers Act 1898
was repealed and substituted by another law in early 1980s.
Grant Medical College Society in 1880 passed a Bombay
Medical Act and established the medical council. The draft
rule of this act included the appointment of a registrar,
maintenance of name in register and penalty for doing wrong
things. The Bombay Presidency enacted Bombay Medical
Act in 1912. Medical acts in some other provinces soon
followed. The Bengal Medical Act and Madras Medical
Registration Act were enacted in 1914.
These provincial acts were immediately followed by the
Indian Medical Degree Act, passed by the Indian Legislative
Council and approved by the Governor General in 1916.
The Medical Council of India, a national level statutory
body for the doctors of modern medicine, was constituted
after the enactment of Indian Medical Council Act 1933. The
first legal recognition and registration for the Indian systems
of medicine came when the Bombay Medical Practioners Act
was passed in 1938.
Post 1947 Developments
The independence in 1947 inaugurated a new phase of
development of organized health care services creating more
entitlement for the people. Along with that, the state also
embarked on enactment of new laws, modification of the
colonial laws and judiciary developed case laws to consolidate
people’s entitlement of health care and to extent the rights.
At the time of independence and the first few years of
planning, the task confronting the country was to create
physical and institutional infrastructure for the rapid
development or modernization of India.
With time, the parliament has passed a large number
of bills and acts to strengthen the healthcare delivery in
India.
Laws Applicable to Medical Practice and Hospitals in India
International Journal of Research Foundation of Hospital & Healthcare Administration, July-December 2013;1(1):19-24
21
JRFHHA
Prerequisites of Medical Practice
A duly qualified medical professional, i.e. a doctor has a
right to seek to practice medicine, surgery and dentistry
by registering himself with the medical council of the state
of which he is resident, by following the procedure as
prescribed under the medical act of the state.
The state medical council has the power to warn, refuse
to register/remove from the name of a doctor who has been
sentenced by any court for any nonbailable offence or found
to be guilty of infamous conduct in any professional respect.
The state medical council has also the power to re-enter the
name of the doctor in the register.
The provision regarding offences and professional
misconduct which may be brought before the appropriate
medical council (state/medical Council of India) have been
stated in the Indian Medical council (Professional conduct,
etiquette and ethics) Regulation 2002. No action against a
medical practitioner can be taken unless an opportunity has
been given to him to be heard in person or through an advocate.7
Emergency Healthcare and Laws
The supreme court has been emphatic in declaring that the
fundamental right to life covered within its scope the right to
emergency healthcare. The landmark judgment that marked
this momentous event is that of Parmanand Katara V, Union
of India (Supreme Court 1989). In this case, a scooter rider
severely injured in a road accident was refused for admission
when taken to nearest hospital on the excuse that hospital
was not competent to handle medicolegal cases. The supreme
court, in its judgment, pronounced that the obligation of
medical professionals to provide treatment in cases of
emergencies overrode the professional freedom to refuse
patients. According to the right to emergency treatment, the
status of a fundamental right under Article 21 (fundamental
right of life), the court categorically stated that ‘Article 21
of constitution casts the obligation on the state to preserve
life. Interestingly, the supreme court went on to say that not
only government hospitals but also ‘every doctor whether
at a government hospital or otherwise has the professional
obligation to extend his/her service with due expertise for
protecting life.
In another case (Paschim Banga Khet Majdoor Samity
vs State of West Bengal, Supreme Court, 1996), a person
suffering from head injuries from a train accident was
refused treatment at various hospital on excuse that they
lacked the adequate facilities and infrastructure to provide
treatment. In this case, supreme court further developed
the right to emergency treatment, and went on to state
that the failure on the part of government hospital to
provide timely medical treatment to a person in need of
such treatment results in violation of his/her right to life
guaranteed under Article 21.
Criminal Liability in Medical Profession
Criminal law tries to mold the individual behavior in a
socially accepted manner. It tries to enforce the rules of
social mortality to a great extent. Criminal law defines certain
types of human conduct as offences and prescribes the
punishment for them. Remission by doctors in their duties
and obligations and lapses left by them may give to criminal
liabilities, the liabilities of being prosecuted in a criminal
court and awarded punishment as per provision of law.
The criminal law operates on a doctor in somewhat a
different manner than an ordinary person. This is because it
allows a doctor to cause injury to the patient for preventing
a greater harm. The crucial area of criminal law for a doctor
are offences affecting life. These offences are mainly murder,
simply hurt, grievous hurt and miscarriage or abortion. A doctor
may be charged for any of these offences in general. However,
the criminal law arms a doctor with three formidable defenses
namely: (1) informed consent, (2) necessity and (3) good faith.
Various criminal liabilities in medical practice related
to different sections of Indian Penal Code, the code of
criminal procedure and different acts like MTP, PCPNDT,
Transplantation of Human Organ Act, etc.
LAWS APPLICABLE TO HOSPITALS
Laws Governing the Commissioning of Hospital
These are the laws to ensure that the hospital facilities are
created after due process of registration, the facilities created
are safe for the public using them, have at least the minimum
essential infrastructure for the type and volume of workload
anticipated, and are subject to periodic inspections to ensure
compliance. These are listed in Table 1 below:
Table 1: Laws governing the commissioning of hospital8

  1. Atomic Energy Act 1962
  2. Delhi Lift Rules 1942, Bombay Lift Act 1939
  3. Draft Delhi Lifts and Escalators Bill 2007
  4. Companies Act 1956
  5. Indian Electricity Rules 1956
  6. Delhi Electricity Regulatory Commission (Grant of consent
    for captive power plants) Regulations 2002
  7. Delhi Fire Prevention and Fire Safety Act 1986, and Fire
    Safety Rule 1987
  8. Delhi Nursing Home Registration Act 1953
  9. Electricity Act 1998
  10. Electricity Rules 1956
  11. Indian Telegraph Act 1885
  12. National Building Act 2005
  13. Radiation Protection Certificate from BARC
  14. Society Registration Act
  15. Urban Land Act 1976
  16. Indian Boilers Act 1923
  17. The Clinical Establishment (Registration and Regulation)
    Bill 2007
    Madhav Madhusudan Singh et al
    22
    Laws Governing to the Qualification/Practice and
    Conduct of Professionals
    These are the regulations to ensure that staff employed in
    the hospital for delivery of healthcare are qualified and
    authorized to perform certain specified technical jobs within
    specified limits of competence and in accordance with
    standard codes of conduct and ethics, their credential is
    verifiable from the registering councils and in case of any
    professional misconduct the councils can take appropriate
    action against them. These laws are listed in Table 2.
    Table 2: Laws governing to the qualification/practice and
    conduct of professionals
  18. The Indian Medical Council Act 1956
  19. Indian Medical Council (Professional Conduct, Etiquette,
    and Ethics Regulations 2002)
  20. Indian Medical degree Act 1916
  21. Indian Nursing Council Act 1947
  22. Delhi Nursing Council Act 1997
  23. The Dentist’s Act 1948
  24. AICTE Rules for Technicians 1987
  25. The Paramedical and Physiotherapy Central Councils
    Bill 2007
  26. The Pharmacy Act 1948
  27. The Apprenticeship Act 1961
    Laws Governing to Sale, Storage of Drugs and
    Safe Medication
    These are laws to control the usage of drugs, chemicals,
    blood, blood products, prevent misuse of dangerous
    drugs, regulate the sale of drugs through licenses, prevent
    adulteration of drugs and provide for punitive action against
    the offenders. These are listed in Table 3.
    Table 3: Laws governing to sale, storage of drugs and safe medication
  28. Blood Bank Regulation Under Drugs and Cosmetics
    (2nd Amendment) Rules 1999
  29. Drugs and Cosmetics Act 1940 and Amendment Act 1982
  30. Excise permit to store the spirit, Central Excise Act 1944
  31. IPC Section 274 (Adulteration of drugs), Sec 275 (Sale of
    Adulterated drug), Sec 276 (Sale of drug as different drug
    or preparation), Sec 284 (negligent conduct with regard to
    poisonous substances)
  32. Narcotics and Psychotropic Substances Act
  33. Pharmacy Act 1948
  34. Sales of Good Act 1930
  35. The Drug and Cosmetics Rule 1945
  36. The Drugs Control Act 1950
  37. VAT Act/Central Sales Tax Act 1956
    Laws Governing Management of Patients
    These are the laws for setting standards and norms for
    conduct of medical professional practice, regulating/
    prohibiting performance of certain procedure, prevention
    of unfair practices and control of public health problems/
    epidemic disease. They deal with the management of
    emergencies, medicolegal cases and all aspects related there
    to including dying declaration, and conduct of autopsy and
    the types of professional negligence. These laws are listed
    in Table 4.
    Table 4: Laws governing management of patients
  38. Birth and Deaths and Marriage Registration Act 1886
  39. Drugs and Magic Remedies (Objectionable) Advertisement
    Act
  40. Guardians and Wards Act 1890
  41. Indian Lunacy Act 1912
  42. Law of Contract Section 13 (for consent)
  43. Lepers’ Act
  44. PNDT Act 1994 and Preconception and Prenatal Diagnostic
    Tech (prohibition of sex selection) Rules 1996 (Amendment
    Act 2002)
  45. The Epidemic Disease Act 1897
  46. Transplantation of Human Organ Act 1994, Rules 1995
  47. The Medical Termination of Pregnancy Act 1971
  48. Medical Termination of Pregnancy Rules 2003
  49. The Mental Health Act 1987
    Laws Governing Environmental Safety
    These are the laws aimed at protection of environment
    through prevention of air, water, surface, noise pollution and
    punishment of offenders. These laws are listed in Table 5.
    Table 5: Laws governing environment safety
  50. Air (prevention and control of pollution) Act 1981
  51. Biomedical Waste Management Handling Rules 1998
    (Amended on 2000)
  52. Environment Protection Act and Rule1986, 1996
  53. NOC from Pollution Control Board
  54. Noise Pollution Control Rule 2000
  55. Public Health Bye Law 1959
  56. Water (prevention and control of pollution) Act 1974
  57. Delhi Municipal Corporation (malaria and another mosquito
    borne diseases) Bye Law 1975
  58. The Cigarettes and Other Tobacco Products (prohibition
    of advertisement and regulation of trade and commerce,
    production, supply and distribution) Bill 2003
  59. Prohibition of Smoking in Public Places Rules 2008
  60. IPC Section 278 (making atmosphere noxious to health),
    Sec 269 (negligent act likely to spread infection or disease
    dangerous to life, unlawfully or negligently)
    Laws Governing Employment and
    Management of Manpower
    This group deals with the laws regulating the employment
    of manpower, their salaries and benefits, service rules and
    system of redressal of grievances and disputes. These laws
    are listed in Table 6.
    Laws Applicable to Medical Practice and Hospitals in India
    International Journal of Research Foundation of Hospital & Healthcare Administration, July-December 2013;1(1):19-24
    23
    JRFHHA
    Table 8: Laws governing the safety of patients, public and staff
    within the hospital premises
  61. The Radiation Surveillance Procedures for the Medical
    Application of Radiation 1989, Radiation Protection Rules
    1971
  62. AERB Safety Code no. AERB/SC/Med-2(rev-1) 2001
  63. Arms Act 1950
  64. Boilers Act 1923
  65. Explosive Act 1884 (for diesel storage)
  66. Gas Cylinder Rules 2004
  67. Insecticide Act 1968
  68. IPC Section 336 (act endangering life or personal safety of
    others), Sec 337 (causing hurt by act endangering life or
    personal safety of others), Sec 338 (causing grievous hurt
    by act endangering the life and personal safety of others).
  69. NOC from chief fire officer
  70. Periodic fitness certificate for operation of lifts
  71. Petroleum Act and Storage Rules 2002
  72. Prevention of Food Adulteration Act 1954
  73. The Indian Fatal Accidents Act 1955
  74. The Tamil Nadu Medicare Service Persons and Medicare
    Service Institutions (prevention of violence and damage or
    loss to property) Act 2008
    Laws Governing Professional Training
    and Research
    There are the laws meant to regulate the standards of
    professional education and training of doctors, nurses,
    technician and controlling research activities. These laws
    are listed in Table 9.
    Table 9: Laws governing professional training and research
  75. MCI rules for MBBS, PG and internship training
  76. National board of examination rules for DNB training
  77. ICMR rules governing medical research
  78. NCI rules for nursing training
  79. Ethical Guidelines for Biomedical Research on Human
    Subjects, 2000
    Laws Governing the Business Aspects
    Some rules are applicable to hospital in relation to its
    business aspects. These are listed in Table 10.
    Table 10: Laws governing the business aspects
  80. Cable Television Network Act 1995
  81. Charitable and Religious Trusts Act 1920
  82. Contracts Act 1982
  83. Copyright Act 1982
  84. Custom Act 1962
  85. FEMA 1999
  86. Gift Tax Act 1958
  87. Income Tax Act 1961
  88. Insurance Act 1938
  89. Sales of Good Act 1930
    Table 6: Laws governing to employment and management
    of manpower
  90. Bombay Labor Welfare Fund Act 1953
  91. Citizenship Act 1955
  92. Delhi Shops and Establishment Act 1954
  93. Employee Provident Fund and Miscellaneous Provision
    Act 1952
  94. Employment Exchange (compulsory notification of vacancies)
    Act 1959
  95. Equal Remuneration Act 1976
  96. ESI Act 1948
  97. ESI Rules 1950
  98. Indian Trades Union Act 1926
  99. Industrial Dispute Act 1947
  100. Maternity Benefits Act 1961
  101. Minimum Wages Act 1948
  102. Negotiable Instrument Act 1881
  103. Payment of Bonus Act 1956
  104. Payment of Gratuity Act 1972
  105. Payment of Wedges Act 1936
  106. Persons with Disabilities Act 1995
  107. PPF Act 1968
  108. SC and ST ACT 1989
  109. Shops and Factories Act (for national holiday)
  110. TDS Act
  111. The Essential Service Maintenance Act 1981
  112. The Payment of Gratuity Act 1972
  113. Workmen’s Compensation Act 1923
    Laws Governing to Medicolegal Aspects
    These are the laws governing the doctor-patient relationship,
    legal consequences of breach of contract and medicolegal
    aspects of negligence of duty. These laws are listed in
    Table 7.
    Table 7: Laws governing to medicolegal aspects
  114. Consumer Protection Act 1986
  115. Indian Evidence Act
  116. Law of privileged communication
  117. Law of torts
  118. IPC Section 52 (good faith), Sec 80 (accident in doing
    lawful act), Sec 89 (for insane & children), Sec 90
    (consent under fear), Sec 92 (good faith/consent), Sec 93
    (communication in good faith).
    Laws Governing the Safety of Patients, Public
    and Staff within the Hospital Premises
    These laws deal with safety of facilities and services against
    any accidental hazards that may endanger the lives and the
    liability of management for any violation. These laws are
    listed in Table 8.
    Madhav Madhusudan Singh et al
    24
    Licenses/Certifications Required for Hospitals
    A hospital administrator should be aware about the licenses
    that are essentially required and to renew them as and when
    required. These are as listed in Table 11.
    Table 11: Licenses/certifications required for hospitals
    Sr. no. Licenses/certifications Frequency
  119. Registration under societies
    registration act
    Initially
  120. Inspection for electrical installation/
    substation
    Initially
  121. NOC from local municipal office for
    any bye laws
    Initially
  122. License for storage of petrol/diesel
    on form XV under the petroleum
    rules 2002
    2 yearly
  123. Income tax exemption certificate 3 yearly
  124. NOC from Delhi fire services Before
    implementation
  125. Registration for operation of X-ray
    installation with AERB
    Every 2 years
  126. Drug License for medical store,
    IPD pharmacy, OPD pharmacy
    Every 5 years
  127. License to operate blood bank under
    rule 122G of drug and cosmetic act
    Every 5 years
  128. Registration under PNDT Act 1994 Every 5 years
  129. Income tax registration/PAN Once only
  130. Registration for VAT/Sales tax Once only
  131. Registration for EPF Once only
  132. Registration for ESI coverage of
    employee
    Once only
  133. Registration under rule 34, sub rule
    (6) of MTP Act 1971
    One time
    registration
  134. Registration under Delhi nursing
    Home Act 1953
    Yearly
  135. Indemnity insurance policy Yearly
  136. Standard re and special perils
    policy
    Yearly
  137. Authorization for generation of
    BMW under BMW handling rule
    1996
    Yearly renewal
  138. License for operating lift under
    Sect 5 and 6 and Rules 4 and 5
    (inspector of lift, state govt)
    Yearly renewal
    Periodic Reports and Returns as
    Legal Commitment
    A hospital administrator should be aware about the reports
    and returns that are essentially required by different
    agencies with fixed periodicity. Some of these are listed
    in Table 12.
    Table 12: Periodic reports and return as legal commitment
    for hospitals
    Sr. no. Periodic reports and return for
    hospitals
    Frequency
  139. Biomedical waste generation Annual
  140. Income Tax Annual return
  141. Units processed in blood bank Monthly
  142. MTP reports Monthly
  143. PNDT report (prenatal USG
    done)
    Monthly
  144. Employees provident fund Monthly/annual
  145. ESI act Monthly/annual
  146. VAT Monthly/quarterly online
  147. Registration of births and deaths on every occurrence
  148. Post-polio paralysis case on every occurrence
  149. Communicable disease report on every occurrence
  150. Radiologist registration under
    PNDT
    On induction of a new
    radiologist
  151. USG machine registration
    under PNDT
    On induction of each
    machine
  152. Needle stick injuries on occurrence
  153. TLD Badges for monitoring the
    dosage received
    Quarterly
  154. TDS Quarterly
    CONCLUSION
    The health legislations are very few as compared to the size
    and problems in the health care sector. There is a need for
    having a comprehensive health care act, framed in order to
    gear the entire health care sector to the objectives laid down
    in the different policy in India. Most of the common medico
    legal situations arise out on noncompliance with these rules
    and regulations. If a hospital or doctor acquaints well with
    these rules and regulations and follow them sincerely, he/
    she would be on the right side of the law.
    MCI code of ethics
    (AMENDED UPTO DECEMBER 2010)
    (Published in Part III, Section 4 of the Gazette of India, dated 6th April,2002)
    MEDICAL COUNCIL OF INDIA
    NOTIFICATION
    New Delhi, dated 11th March, 2002
    Click here to view / read this Regulation
    No. MCI-211(2)/2001/Registration. In exercise of the powers conferred under section 20A read with
    section 33(m) of the Indian Medical Council Act, 1956 (102 of 1956), the Medical Council of India, with
    the previous approval of the Central Government, hereby makes the following regulations relating to
    the Professional Conduct, Etiquette and Ethics f or registered medical practitioners, namely: –
    Short Title and Commencement:
  155. These Regulations may be called the Indian Medical Council (Professional conduct, Etiquette
    and Ethics) Regulations, 2002.
  156. They shall come into force on the date of their publication in the Official Gazette.
    CHAPTER I
  157. CODE OF MEDICAL ETHICS
    A. Declaration:
    Each applicant, at the time of making an application for registration under the provisions of the Act,
    shall be provided a copy of the declaration and shall submit a duly signed Declaration as provided
    in Appendix 1. The applicant shall also certify that he/she had read and agreed to abide by the same.
    B. Duties and responsibilities of the Physician in general:
    1.1 Character of Physician (Doctors with qualification of MBBS or MBBS with post graduate degree/
    diploma or with equivalent qualification in any medical discipline):
    1.1.1 A physician shall uphold the dignity and honor of his profession.
    1.1.2 The prime object of the medical profession is to render service to humanity; reward or financial
    gain is a subordinate consideration. Who – so-ever chooses his profession, assumes the obligation to?
    conduct himself in accordance with its ideals. A physician should be an upright man, instructed in the
    art of healings. He shall keep himself pure in character and be diligent in caring for the sick; he should
    be modest, sober, patient, prompt in discharging his duty without anxiety; conducting himself with
    propriety in his profession and in all the actions of his life.
    1.1.3 No person other than a doctor having qualification recognized by Medical Council of India and
    registered with Medical Council of India/State Medical Council (s) is allowed to practice Modern system
    of Medicine or Surgery. A person obtaining qualification in any other system of Medicine is not allowed
    to practice Modern system of Medicine in any form.
    1.2 Maintaining good medical practice:
    1.2.1 The Principal objective of the medical profession is to render service to humanity with full
    respect for the dignity of profession and man. Physicians should merit the confidence of patients
    entrusted to their care, rendering to each a full measure of service and devotion. Physicians should try
    continuously to improve medical knowledge and skills and should make available to their patients and
    colleagues the benefits of their professional attainments. The physician should practice methods of
    healing founded on scientific basis and should not associate profession ally with anyone who violates
    this principle. The honored ideals of the medical profession imply that the responsibilities of the
    physician extend not only to individuals but also to society.
    1.2.2 Membership in Medical Society: For the advancement of his profession, a physician should
    affiliate with associations and societies of allopathic medical professions and involve actively in the
    functioning of such bodies.
    1.2.3 A Physician should participate in professional meetings as part of Continuing Medica l Education
    programmers, for at least 30 hours every five years, organized by reputed professional academic
    bodies or any other authorized organizations. The compliance of this requirement shall be informed
    regularly to Medical Council of India or the State Medical Councils as the case may be.
    1.3 Maintenance of medical records:
    1.3.1 Every physician shall maintain the medical records pertaining to his / her indoor patients for a
    period of 3 years from the date of commencement of the treatment in a standard proforma laid down
    by the Medical Council of India and attached as Appendix 3.
    1.3.2. If any request is made for medical records either by the patients / authorized attendant or legal
    authorities involved, the same may be duly acknowledged and documents shall be issued within the
    period of 72 hours.
    1.3.3 A Registered medical practitioner shall maintain a Register of Medical Certificates giving full
    details of certificates issued. When issuing a medical certificate, he / she shall always enter the
    identification marks of the patient and keep a copy of the certificate. He / She shall not omit to record
    the signature and/or thumb mark, address and at least one identification mark of the patient on the
    medical certificates or report. The medical certificate shall be prepared as in Appendix 2.
    1.3.4 Efforts shall be made to computerize medical records for quick retrieval.
    1.4 Display of registration numbers:
    1.4.1 Every physician shall display the registration number accord ed to him by the State Medical
    Council / Medical Council of India in his clinic and in all his prescriptions, certificates, money receipts
    given to his patients.
    1.4.2 Physicians shall display as suffix to their names only recognized medical degrees or such
    certificates/diplomas and memberships/honors which confer professional knowledge or recognizes
    any exemplary qualification/achievements.
    1.5 Use of Generic names of drugs: Every physician should, as far as possible, prescribe drugs with
    generic names and he / she shall ensure that there is a rational prescription and use of drugs.
    1.6 Highest Quality Assurance in patient care: Every physician should aid in safeguarding the
    profession against admission to it of those who are deficient in moral character or education. Physician
    shall not employ in connection with his professional practice any attendant who is neither registered
    nor enlisted under the Medical Acts in force and shall not permit such persons to attend, treat or
    perform operations upon patients wherever professional discretion or skill is required.
    1.7 Exposure of Unethical Conduct: A Physician should expose, without fear or favor, incompetent
    or corrupt, dishonest or unethical conduct on the part of members of the profession.
    1.8 Payment of Professional Services: The physician, engaged in the practice of medicine shall
    give priority to the interests of patients. The personal financial interests of a physician should not
    conflict with the medical interests of patients. A physician should announce his fees before rendering
    service and not after the operation or treatment is under way. Remuneration received for such
    services should be in the form and amount specifically announced to the patient at the time the
    service is rendered. It is unethical to enter into a contract of “no cure no payment”. Physician
    rendering service on behalf of the state shall refrain from anticipating or accepting any consideration.
    1.9 Evasion of Legal Restrictions: The physician shall observe the laws of the country in regulating
    the practice of medicine and shall also not assist others to evade such laws. He should be cooperative
    in observance and enforcement of sanitary laws and regulations in the interest of public health. A
    physician should observe the provisions of the State Acts like Drugs and Cosmetics Act, 1940;
    Pharmacy Act, 1948; Narcotic Drugs and Psychotropic substances Act, 1985; Medical Termination of
    Pregnancy Act, 1971; Transplantation of Human Organ Act, 1994; Mental Health Act, 1987;
    Environmental Protection Act, 1986; Pre –natal Sex Determination Test Act, 1994; Drugs and Magic
    Remedies (Objectionable Advertisement) Act, 1954; Persons with Disabilities (Equal Opportunities and
    Full Participation) Act, 1995 and Bio -Medical Waste (Management and Handlin g) Rules, 1998 and such
    other Acts, Rules, Regulations made by the Central/State Governments or local Administrative Bodies
    or any other relevant Act relating to the protection and promotion of public health.
    CHAPTER 2
  158. DUTIES OF PHYSICIANS TO THEIR PATIENTS
    2.1 Obligations to the Sick
    2.1.1 Though a physician is not bound to treat each and every person asking his services, he should
    not only be ever ready to respond to the calls of the sick and the injured, but should be mindful of the
    high character of his mission and the responsibility he discharges in the course of his professional
    duties. In his treatment, he should never forget that the health and the lives of those entrusted to his
    care depend on his skill and attention. A physician should endeavor to add to the comfort of the sick
    by making his visits at the hour indicated to the patients. A physician advising a patient to seek
    service of another physician is acceptable, however, in case of emergency a physician must treat the
    patient. No physician shall arbitrarily refuse treatment to a patient. However, for good reason, when a
    patient is suffering from an ailment which is not within the range of experience of the treating
    physician, the physician may refuse treatment and refer the patient to another physician.
    2.1.2 Medical practitioner having any incapacity detrimental to the patient or which can affect his
    performance vis-à-vis the patient is not permitted to practice his profession
    2.2 Patience, Delicacy and Secrecy: Patience and delicacy should characterize the physician.
    Confidences concerning individual or domestic life entrusted by patients to a physician and defects in
    the disposition or character of patients observed during medical attendance should never be revealed
    unless their revelation is required by the laws of the State. Sometimes, however, a physician must
    determine whether his duty to society requires him to employ knowledge, obtained through confidence
    as a physician, to protect a healthy person against a communicable disease to which he is about to be
    exposed. In such instance, the physician should act as he would wish another to act toward one of his
    own family in like circumstances.
    2.3 Prognosis: The physician should neither exaggerate nor minimize the gravity of a patient’s
    condition. He should ensure himself that the patient, his relatives or his responsible friends have such
    knowledge of the patient’s condition as will serve the best interests of the patient and the family.
    2.4 The Patient must not be neglected: A physician is free to choose whom he will serve. He
    should, however, respond to any request for his assistance in an emergency. Once having undertaken
    a case, the physician should not neglect the patient, nor should he withdraw from the case without
    giving adequate notice to the patient and his family. Provisionally or fully registered medical
    practitioner shall not willfully commit an act of negligence that may deprive his patient or patients
    from necessary medical care.
    2.5 Engagement for an Obstetric case: When a physician who has been engaged to attend an
    obstetric case is absent and another is sent for and delivery accomplished, the acting physician is
    entitled to his professional fees, but should secure the patient’s consent to resign on the arrival of the
    physician engaged.
    CHAPTER 3
    3.. DUTIES OF PHYSICIAN IN CONSULTATION
    3.1 Unnecessary consultations should be avoided:
    3.1.1 However in case of serious illness and in doubtful or difficult conditions, the physician should
    request consultation, but under any circumstances such consultation should be justifiable and in the
    interest of the patient only and not for any other consideration.
    3.1.2 Consulting pathologists /radiologists or asking for any other diagnostic Lab investigation should
    be done judiciously and not in a routine manner.
    3.2 Consultation for Patient’s Benefit: In every consultation, the benefit to the patient is of
    foremost importance. All physicians engaged in the case should be frank with the patient and his
    attendants.
    3.3 Punctuality in Consultation: Utmost punctuality should be observed by a physician in making
    themselves available for consultations.
    3.4 Statement to Patient after Consultation:
    3.4.1 All statements to the patient or his representatives should take place in the presence of the
    consulting physicians, except as otherwise agreed. The disclosure of the opinion to the patient or his
    relatives or friends shall rest with the medical attendant.
    3.4.2 Differences of opinion should not be divulged unnecessarily but t when there is irreconcilable
    difference of opinion the circumstances should be frankly and impartially explained to the patient or
    his relatives or friends. It would be opened to them to seek further advice as they so desire.
    3.5 Treatment after Consultation: No decision should restrain the attending physician from making
    such subsequent variations in the treatment if any unexpected change occurs, but at the next
    consultation, reasons for the variations should be discussed/explained. The same privilege, with its
    obligations, belongs to the consultant when sent for in an emergency during the absence of attending
    physician. The attending physician may prescribe medicine at any time for the patient, whereas the
    consultant may prescribe only in case of emergency or as an expert when called for.
    3.6 Patients Referred to Specialists: When a patient is referred to a specialist by the attending
    physician, a case summary of the patient should be given to the specialist, who should communicate
    his opinion in writing to the attending physician.
    3.7 Fees and other charges:
    3.7.1 A physician shall clearly display his fees and other charges on the board of his chamber and/or
    the hospitals he is visiting. Prescription should also make clear if the Physician himself dispensed any
    medicine.
    3.7.2 A physician shall write his name and designation in full along with registration particulars in his
    prescription letter head.
    Note: In Government hospital where the patient –load is heavy, the name of the prescribing doctor
    must be written below his/her signature.
    CHAPTER 4
  159. RESPONSIBILITIES OF PHYSICIANS TO EACH OTHER
    A physician should consider it as a pleasure and privilege to render gratuitous service to all physicians
    and their immediate family dependents.
    4.2 Conduct in consultation: In consultations, no insincerity, rivalry or envy should be indulged in.
    All due respect should be observed towards the physician in -charge of the case and no statement or
    remark be made, which would impair the confidence reposed in him. For this purpose, no discussion
    should be carried on in the presence of the patient or his representatives.
    4.3 Consultant not to take charge of the case: When a physician has been called for consultation,
    the Consultant should normally not take charge of the case, especially on the solicitation of the patient
    or friends. The Consultant shall not criticize the referring physician. He / she shall discuss the
    diagnosis treatment plan with the referring physician.
    4.4 Appointment of Substitute: Whenever a physician requests another physician to attend his
    patients during his temporary absence from his practice, professional courtesy requires the acceptance
    of such appointment only when he has the capacity to discharge the additional responsibility along
    with his / her other duties. The physician acting under such an appointment should give the utmost
    consideration to the interests and reputation of the absent physician and all such patients should be
    restored to the care of the latter upon his/her return.
    4.5 Visiting another Physician’s Case: When it becomes the duty of a physician occupying an
    official position to see and report upon an illness or injury, he should communicate to the physician in
    attendance so as to give him an option of being present. The medical officer / physician occupying an
    official position should avoid remarks upon the diagnosis or the treatment that has been adopted.
    CHAPTER 5
    5 DUTIES OF PHYSICIAN TO THE PUBLIC AND TO THE PARAMEDICAL PROFESSION
    5.1 Physicians as Citizens: Physicians, as good citizens, possessed of special training should
    disseminate advice on public health issues. They should play their part in enforcing the laws of the
    community and in sustaining the institutions that advance the interests of humanity. The y should
    particularly co-operate with the authorities in the administration of sanitary/public health laws and
    regulations.
    5.2 Public and Community Health: Physicians, especially those engaged in public health work,
    should enlighten the public concerning quarantine regulations and measures for the prevention of
    epidemic and communicable diseases. At all times the physician should notify the constituted public
    health authorities of every case of communicable disease under his care, in accordance with the laws,
    rules and regulations of the health authorities. When an epidemic occurs, a physician should not
    abandon his duty for fear of contracting the disease himself.
    5.3 Pharmacists / Nurses: Physicians should recognize and promote the practice of different
    paramedical services such as, pharmacy and nursing as professions and should seek their cooperation
    wherever required.
    CHAPTER 6
  160. UNETHICAL ACTS:
    A physician shall not aid or abet or commit any of the following acts which shall be construed as
    unethical –
    6.1 Advertising:
    6.1.1 Soliciting of patients directly or indirectly, by a physician, by a group of physicians or by
    institutions or organizations is unethical. A physician shall not make use of him / her (or his / her
    name) as subject of any for m or manner of advertising or publicity through any mode either alone or
    in conjunction with others which is of such a character as to invite attention to him or to his
    professional position, skill, qualification, achievements, attainments, specialties, an appointment,
    associations, affiliations or honors and/or of such character as would ordinarily result in his self
    aggrandizement. A physician shall not give to any person, whether for compensation or otherwise, any
    approval, recommendation, endorsement, certificate, report or statement with respect of any drug,
    medicine, nostrum remedy, surgical, or therapeutic article, apparatus or appliance or any commercial
    product or article with respect of any property, quality or use thereof or any test, demonstration or
    trial thereof, for use in connection with his name, signature, or photograph in any form or manner of
    advertising through any mode nor shall he boast of cases, operations, cures or remedies or permit the
    publication of report thereof through any mode. A medical practitioner is however permitted to make a
    formal announcement in press regarding the following:
  161. On starting practice.
  162. On change of type of practice.
  163. On changing address.
  164. On temporary absence from duty.
  165. On resumption of another practice.
  166. On succeeding to another practice.
  167. Public declaration of charges.
    6.1.2 Printing of self-photograph, or any such material of publicity in the letter head or on sign board
    of the consulting room or any such clinical establishment shall be regarded as acts of self-advertisement and unethical conduct on the part of the physician. However, printing of sketches,
    diagrams, picture of human system shall not be treated as unethical.
    6.2 Patent and Copy rights: A physician may patent surgical instruments, appliance s and medicine
    or Copyright applications, methods and procedures. However, it shall be unethical if the benefits of
    such patents or copyrights are not made available in situations where the interest of large population
    is involved.
    6.3 Running an open shop (Dispensing of Drugs and Appliances by Physicians): – A physician
    should not run an open shop for sale of medicine for dispensing prescriptions prescribed by doctors
    other than himself or for sale of medical or surgical appliances. It is not unethical for a physician to
    prescribe or supply drugs, remedies or appliances as long as there is no exploitation of the patient.
    Drugs prescribed by a physician or brought from the market for a patient should explicitly state the
    proprietary formulae as well as generic name of the drug.
    6.4 Rebates and Commission:
    6.4.1 A physician shall not give, solicit, or receive nor shall he offer to give solicit or receive, any gift,
    gratuity, commission or bonus in consideration of or return for the referring, recommending o r
    procuring of any patient for medical, surgical or other treatment. A physician shall not directly or
    indirectly, participate in or be a party to act of division, transference, assignment, subordination,
    rebating, splitting or refunding of any fee for medical, surgical or other treatment.
    6.4.2 Provisions of para 6.4.1 shall apply with equal force to the referring, recommending or
    procuring by a physician or any person, specimen or material for diagnostic purposes or other study /
    work. Nothing in this section, however, shall prohibit payment of salaries by a qualified physician to
    other duly qualified person rendering medical care under his supervision.
    6.5 Secret Remedies: The prescribing or dispensing by a physician of secret remedial agents of
    which he does not know the composition, or the manufacture or promotion of their use is unethical
    and as such prohibited. All the drugs prescribed by a physician should always carry a proprietary
    formula and clear name.
    6.6 Human Rights: The physician shall not aid or abet torture nor shall he be a party to either
    infliction of mental or physical trauma or concealment of torture inflicted by some other person or
    agency in clear violation of human rights.
    6.7 Euthanasia: Practicing euthanasia shall constitute unethical conduct. However, on specific
    occasion, the question of withdrawing supporting devices to sustain cardio -pulmonary function even
    after brain death, shall be decided only by a team of doctors and not merely by the treating physician
    alone. A team of doctors shall declare withdrawal of support system. Such team shall consist of the
    doctor in charge of the patient, Chief Medical Officer / Medical Officer in charge of the hospital and a
    doctor nominated by the in -charge of the hospital from the hospital staff or in accordance with the
    provisions of the Transplantation of Human Organ Act, 1994.
    CHAPTER 7
  168. MISCONDUCT:
    The following acts of commission or omission on the part of a physician shall constitute professional
    misconduct rendering him/her liable for disciplinary action
    7.1 Violation of the Regulations: If he/she commits any violation of these Regulations.
    7.2 If he/she does not maintain the medical records of his/her indoor patients for a period of three
    years as per regulation 1.3 and refuses to provide the same within 72 hours when the patient or
    his/her authorized representative makes a request for it as per the regulation 1.3.2.
    7.3 If he/she does not display the registration number accorded to him/her by the State Medical
    Council or the Medical Council of India in his clinic, prescriptions and certificates etc. issued by him or
    violates the provisions of regulation 1.4.2.
    7.4 Adultery or Improper Conduct: Abuse of professional position by committing adultery or
    improper conduct with a patient or by maintaining an improper association with a patient will render a
    Physician liable for disciplinary action as provided under the Indian Medical Council Act, 1956 or the
    concerned State Medical Council Act.
    7.5 Conviction by Court of Law: Conviction by a Court of Law for offences involving moral turpitude
    / Criminal acts.
    7.6 Sex Determination Tests: On no account sex determination test shall be undertaken with the
    intent to terminate the life of a female fetus developing in her mother’s womb, unless there are other
    absolute indications for termination of pregnancy as specified in the Medical Termination of Pregnancy
    Act, 1971. Any act of termination of pregnancy of normal female fetus amounting to female feticide
    shall be regarded as professional misconduct on the part of the physician leading to penal erasure
    besides rendering him liable to criminal proceedings as per the provisions of this Act.
    7.7 Signing Professional Certificates, Reports and other Documents: Registered medical
    practitioners are in certain cases bound by law to give, or may from time to time be called upon or
    requested to give certificates, notification, reports and other documents of similar character signed by
    them in their professional capacity for subsequent use in the courts or for administrative purposes etc.
    Such documents, among others, include the ones given at Appendix –4. Any registered practitioner
    who is shown to have signed or given under his name and authority any such certificate, notification,
    report or document of a similar character which is untrue, misleading or improper, is liable to have his
    name deleted from the Register.
    7.8 A registered medical practitioner shall not contravene the provisions of the Drugs and Cosmetics
    Act and regulations made there under. Accordingly,
  169. Prescribing steroids/ psychotropic drugs when there is no absolute medical indication;
  170. selling Schedule ‘H’ & ‘L’ drugs and poisons to the public except to his patient;
    in contravention of the above provisions shall constitute gross professional misconduct on the part of
    the physician.
    7.9 Performing or enabling unqualified person to perform an abortion or any illegal operation for which
    there is no medical, surgical or psychological indication.
    7.10 A registered medical practitioner shall not issue certificates of efficiency in modern medicine to
    unqualified or non-medical person.
    (Note: The foregoing does not restrict the proper training and instruction of Bonafede students,
    midwives, dispensers, surgical attendants, or skilled mechanical and technical assistants and therapy
    assistants under the personal supervision of physicians.)
    7.11 A physician should not contribute to the lay press articles and give interviews regarding diseases
    and treatments which may have the effect of advertising himself or soliciting practices; but is open to
    write to the lay press under his own name on matters of public health, hygienic living or to deliver
    public lectures, give talks on the radio/TV/internet chat for the same purpose and send announcement
    of the same to lay press.
    7.12 An institution run by a physician for a particular purpose such as a maternity home, nursing
    home, private hospital, rehabilitation center or any type of training institution etc. may be advertised
    in the lay press, but such advertisements should not contain anything more than the name of the
    institution, type of patients admitted, type of training and other facilities offered and the fees.
    7.13 It is improper for a physician to use an unusually large sign board and write on it anything other
    than his name, qualifications obtained from a University or a statutory body, titles and name of his
    specialty, registration number including the name of the State Medical Council under which
    registered. The same should be the contents of his prescription papers. It is improper to affix a sign –
    board on a chemist’s shop or in places where he does not reside or work.
    7.14 The registered medical practitioner shall not disclose the secrets of a patient that have been
    learnt in the exercise of his / her profession except –
  171. in a court of law under orders of the Presiding Judge;
  172. in circumstances where there is a serious and identified risk to a specific person and / or
    community; and
  173. notifiable diseases.
    In case of communicable / notifiable diseases, concerned public health authorities should be informed
    immediately.
    7.15 The registered medical practitioner shall not refuse on religious grounds alone to give assistance
    in or conduct of sterility, birth control, circumcision and medical termination of Pregnancy when there
    is medical indication, unless the medical practitioner feels himself/herself incompetent to do so.
    7.16 Before performing an operation the physician should obtain in writing the consent from the
    husband or wife, parent or guardian in the case of minor, or the patient himself as the case may be.
    In an operation which may result in sterility the consent of both husband and wife is needed.
    7.17 A registered medical practitioner shall not publish photographs or case reports of his / her
    patients without their permission, in any medical or other journal in a manner by which their identity
    could be made out. If the identity is not to be disclosed, the consent is not needed.
    7.18 In the case of running of a nursing home by a physician and employing assistants to help him /
    her, the ultimate responsibility rests on the physician.
    7.19 A Physician shall not use touts or agents for procuring patients.
    7.20 A Physician shall not claim to be specialist unless he has a special qualification in that branch.
    7.21 No act of invitro fertilization or artificial insemination shall be undertaken without the informed
    consent of the female patient and her spouse as well as the donor. Such consent shall be obtained in
    writing only after the patient is provided, at her own level of comprehension, with sufficient
    information about the purpose, methods, risks, inconveniences, disappointments of the procedure and
    possible risks and hazards.
    7.22 Research: Clinical drug trials or other research involving patients or volunteers as per the
    guidelines of ICMR can be undertaken, provided ethical considerations are borne in mind. Violation of
    existing ICMR guidelines in this regard shall constitute misconduct. Consent ta ken from the patient for
    trial of drug or therapy which is not as per the guidelines shall also be construed as misconduct.
    7.23 If a physician posted in rural area is found absent on more than two occasions during inspection
    by the Head of the District Health Authority or the Chairman, Zila Parishad, the same shall be
    construed as a misconduct if it is recommended to the Medical Council of India/State Medical Council
    by the State Government for action under these Regulations.
    7.24 If a physician posted in a medical college/institution both as teaching faculty or otherwise shall
    remain in hospital/college during the assigned duty hours. If they are found absent on more than two
    occasions during this period, the same shall be construed as a misconduct if it is certified by the
    Principal/Medical Superintendent and forwarded through the State Government to Medical Council of
    India/State Medical Council for action under these Regulations.
    CHAPTER 8
  174. PUNISHMENT AND DISCIPLINARY ACTION
    8.1 It must be clearly understood that the instances of offences and of Professional misconduct which
    are given above do not constitute and are not intended to constitute a complete list of the infamous
    acts which calls for disciplinary action, and that by issuing this notice the Medical Council of India and
    or State Medical Councils are in no way precluded from considering and dealing with any other form of
    professional misconduct on the part of a registered practitioner. Circumstances may and do arise from
    time to time in relation to which there may occur questions of professional misconduct which do not
    come within any of these categories. Every care should be taken that the code is not violated in letter
    or spirit. In such instances as in all others, the Medica l Council of India and/or State Medical Councils
    have to consider and decide upon the facts brought before the Medical Council of India and/or State
    Medical Councils.
    8.2 It is made clear that any complaint with regard to professional misconduct can be brought before
    the appropriate Medical Council for Disciplinary action. Upon receipt of any complaint of professional
    misconduct, the appropriate Medical Council would hold an enquiry and give opportunity to the
    registered medical practitioner to be heard in person or by pleader. If the medical practitioner is found
    to be guilty of committing professional misconduct, the appropriate Medical Council may award such
    punishment as deemed necessary or may direct the removal altogether or for a specified period, from
    the register of the name of the delinquent registered practitioner. Deletion from the Register shall be
    widely publicized in local press as well as in the publications of different Medical Associations/
    Societies/Bodies.
    8.3 In case the punishment of removal from the register is for a limited period, the appropriate
    Council may also direct that the name so removed shall be restored in the register after the expiry of
    the period for which the name was ordered to be removed.
    8.4 Decision on complaint against delinquent physician shall be taken within a time limit of 6 months.
    8.5 During the pendency of the complaint the appropriate Council may restrain the physician from
    performing the procedure or practice which is under scrutiny.
    8.6 Professional incompetence shall be judged by peer group as per guidelines prescribed by Medical
    Council of India.
    APPENDIX – 1
    DECLARATION
    At the time of registration, each applicant shall be given a copy of the following declaration by the
    Registrar concerned and the applicant shall read and agree to abide by the same:
    a. I solemnly pledge myself to consecrate my life to service of humanity.
    b. Even under threat, I will not use my medical knowledge contrary to the laws of
    Humanity.
    c. I will maintain the utmost respect for human life from the time of conception.
    d. I will not permit considerations of religion, nationality, race, party politics or social
    standing to intervene between my duty and my patient.
    e. I will practice my profession with conscience and dignity.
    f. The health of my patient will be my first consideration.
    g. I will respect the secrets which are confined in me.
    h. I will give to my teachers the respect and gratitude which is their due.
    i. I will maintain by all means in my power, the honor and noble traditions of medical
    profession.
    j. I will treat my colleagues with all respect and dignity.
    k. I shall abide by the code of medical ethics as enunciated in the Indian Medical Council
    (Professional Conduct, Etiquette and Ethics) Regulations 2002.
    I make these promises solemnly, freely and upon my honor.
    MCI Guidelines

(AMENDED UPTO DECEMBER 2010)
(Published in Part III, Section 4 of the Gazette of India, dated 6th April,2002)

MEDICAL COUNCIL OF INDIA

NOTIFICATION
New Delhi, dated 11th March, 2002
No. MCI-211(2)/2001/Registration. In exercise of the powers conferred under section 20A read with section 33(m) of the Indian Medical Council Act, 1956 (102 of 1956), the Medical Council of India, with the previous approval of the Central Government, hereby makes the following regulations relating to the Professional Conduct, Etiquette and Ethics for registered medical practitioners, namely:-

Short Title and Commencement:

  1. These Regulations may be called the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002.
  2. They shall come into force on the date of their publication in the Official Gazette.

CHAPTER I

  1. CODE OF MEDICAL ETHICS

A. Declaration:

Each applicant, at the time of making an application for registration under the provisions of the Act, shall be provided a copy of the declaration and shall submit a duly signed Declaration as provided in Appendix 1. The applicant shall also certify that he/she had read and agreed to abide by the same.

B. Duties and responsibilities of the Physician in general:

1.1 Character of Physician (Doctors with qualification of MBBS or MBBS with post graduate degree/ diploma or with equivalent qualification in any medical discipline):

1.1.1 A physician shall uphold the dignity and honor of his profession.

1.1.2 The prime object of the medical profession is to render service to humanity; reward or financial gain is a subordinate consideration. Who- so-ever chooses his profession, assumes the obligation to conduct himself in accordance with its ideals? A physician should be an upright man, instructed in the art of healings. He shall keep himself pure in character and be diligent in caring for the sick; he should be modest, sober, patient, prompt in discharging his duty without anxiety; conducting himself with propriety in his profession and in all the actions of his life.

1.1.3 No person other than a doctor having qualification recognized by Medical Council of India and registered with Medical Council of India/State Medical Council (s) is allowed to practice Modern system of Medicine or Surgery. A person obtaining qualification in any other system of Medicine is not allowed to practice Modern system of Medicine in any form.

1.2 Maintaining good medical practice:

1.2.1 The Principal objective of the medical profession is to render service to humanity with full respect for the dignity of profession and man. Physicians should merit the confidence of patients entrusted to their care, rendering to each a full measure of service and devotion. Physicians should try continuously to improve medical knowledge and skills and should make available to their patients and colleagues the benefits of their professional attainments. The physician should practice methods of healing founded on scientific basis and should not associate professionally with anyone who violates this principle. The honored ideals of the medical profession imply that the responsibilities of the physician extend not only to individuals but also to society.
1.2.2 Membership in Medical Society: For the advancement of his profession, a physician should affiliate with associations and societies of allopathic medical professions and involve actively in the functioning of such bodies.

1.2.3 A Physician should participate in professional meetings as part of Continuing Medical Education programmes, for at least 30 hours every five years, organized by reputed professional academic bodies or any other authorized organizations. The compliance of this requirement shall be informed regularly to Medical Council of India or the State Medical Councils as the case may be.

1.3 Maintenance of medical records:

1.3.1 Every physician shall maintain the medical records pertaining to his / her indoor patients for a period of 3 years from the date of commencement of the treatment in a standard proforma laid down by the Medical Council of India and attached as Appendix 3.

1.3.2. If any request is made for medical records either by the patients / authorized attendant or legal authorities involved, the same may be duly acknowledged and documents shall be issued within the period of 72 hours.

1.3.3 A Registered medical practitioner shall maintain a Register of Medical Certificates giving full details of certificates issued. When issuing a medical certificate, he / she shall always enter the identification marks of the patient and keep a copy of the certificate. He / She shall not omit to record the signature and/or thumb mark, address and at least one identification mark of the patient on the medical certificates or report. The medical certificate shall be prepared as in Appendix 2.

1.3.4 Efforts shall be made to computerize medical records for quick retrieval.

1.4 Display of registration numbers:

1.4.1 Every physician shall display the registration number accorded to him by the State Medical Council / Medical Council of India in his clinic and in all his prescriptions, certificates, money receipts given to his patients.

1.4.2 Physicians shall display as suffix to their names only recognized medical degrees or such certificates/diplomas and memberships/honors which confer professional knowledge or recognizes any exemplary qualification/achievements.

1.5 Use of Generic names of drugs: Every physician should, as far as possible, prescribe drugs with generic names and he / she shall ensure that there is a rational prescription and use of drugs.

1.6 Highest Quality Assurance in patient care: Every physician should aid in safeguarding the profession against admission to it of those who are deficient in moral character or education. Physician shall not employ in connection with his professional practice any attendant who is neither registered nor enlisted under the Medical Acts in force and shall not permit such persons to attend, treat or perform operations upon patients wherever professional discretion or skill is required.

1.7 Exposure of Unethical Conduct: A Physician should expose, without fear or favor, incompetent or corrupt, dishonest or unethical conduct on the part of members of the profession.

1.8 Payment of Professional Services: The physician, engaged in the practice of medicine shall give priority to the interests of patients. The personal financial interests of a physician should not conflict with the medical interests of patients. A physician should announce his fees before rendering service and not after the operation or treatment is under way. Remuneration received for such services should be in the form and amount specifically announced to the patient at the time the service is rendered. It is unethical to enter into a contract of “no cure no payment”. Physician rendering service on behalf of the state shall refrain from anticipating or accepting any consideration.

1.9 Evasion of Legal Restrictions: The physician shall observe the laws of the country in regulating the practice of medicine and shall also not assist others to evade such laws. He should be cooperative in observance and enforcement of sanitary laws and regulations in the interest of public health. A physician should observe the provisions of the State Acts like Drugs and Cosmetics Act, 1940; Pharmacy Act, 1948; Narcotic Drugs and Psychotropic substances Act, 1985; Medical Termination of Pregnancy Act, 1971; Transplantation of Human Organ Act, 1994; Mental Health Act, 1987; Environmental Protection Act, 1986; Pre–natal Sex Determination Test Act, 1994; Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954; Persons with Disabilities (Equal Opportunities and Full Participation) Act, 1995 and Bio-Medical Waste (Management and Handling) Rules, 1998 and such other Acts, Rules, Regulations made by the Central/State Governments or local Administrative Bodies or any other relevant Act relating to the protection and promotion of public health.

CHAPTER 2

  1. DUTIES OF PHYSICIANS TO THEIR PATIENTS

2.1 Obligations to the Sick

2.1.1 Though a physician is not bound to treat each and every person asking his services, he should not only be ever ready to respond to the calls of the sick and the injured, but should be mindful of the high character of his mission and the responsibility he discharges in the course of his professional duties. In his treatment, he should never forget that the health and the lives of those entrusted to his care depend on his skill and attention. A physician should endeavor to add to the comfort of the sick by making his visits at the hour indicated to the patients. A physician advising a patient to seek service of another physician is acceptable, however, in case of emergency a physician must treat the patient. No physician shall arbitrarily refuse treatment to a patient. However, for good reason, when a patient is suffering from an ailment which is not within the range of experience of the treating physician, the physician may refuse treatment and refer the patient to another physician.

2.1.2 Medical practitioner having any incapacity detrimental to the patient or which can affect his performance vis-à-vis the patient is not permitted to practice his profession

2.2 Patience, Delicacy and Secrecy: Patience and delicacy should characterize the physician. Confidences concerning individual or domestic life entrusted by patients to a physician and defects in the disposition or character of patients observed during medical attendance should never be revealed unless their revelation is required by the laws of the State. Sometimes, however, a physician must determine whether his duty to society requires him to employ knowledge, obtained through confidence as a physician, to protect a healthy person against a communicable disease to which he is about to be exposed. In such instance, the physician should act as he would wish another to act toward one of his own family in like circumstances.

2.3 Prognosis: The physician should neither exaggerate nor minimize the gravity of a patient’s condition. He should ensure himself that the patient, his relatives or his responsible friends have such knowledge of the patient’s condition as will serve the best interests of the patient and the family.

2.4 The Patient must not be neglected: A physician is free to choose whom he will serve. He should, however, respond to any request for his assistance in an emergency. Once having undertaken a case, the physician should not neglect the patient, nor should he withdraw from the case without giving adequate notice to the patient and his family. Provisionally or fully registered medical practitioner shall not willfully commit an act of negligence that may deprive his patient or patients from necessary medical care.

2.5 Engagement for an Obstetric case: When a physician who has been engaged to attend an obstetric case is absent and another is sent for and delivery accomplished, the acting physician is entitled to his professional fees, but should secure the patient’s consent to resign on the arrival of the physician engaged.

CHAPTER 3

3.. DUTIES OF PHYSICIAN IN CONSULTATION

3.1 Unnecessary consultations should be avoided:

3.1.1 However in case of serious illness and in doubtful or difficult conditions, the physician should request consultation, but under any circumstances such consultation should be justifiable and in the interest of the patient only and not for any other consideration.

3.1.2 Consulting pathologists /radiologists or asking for any other diagnostic Lab investigation should be done judiciously and not in a routine manner.

3.2 Consultation for Patient’s Benefit: In every consultation, the benefit to the patient is of foremost importance. All physicians engaged in the case should be frank with the patient and his attendants.

3.3 Punctuality in Consultation: Utmost punctuality should be observed by a physician in making themselves available for consultations.

3.4 Statement to Patient after Consultation:

3.4.1 All statements to the patient or his representatives should take place in the presence of the consulting physicians, except as otherwise agreed. The disclosure of the opinion to the patient or his relatives or friends shall rest with the medical attendant.

3.4.2 Differences of opinion should not be divulged unnecessarily but when there is irreconcilable difference of opinion the circumstances should be frankly and impartially explained to the patient or his relatives or friends. It would be opened to them to seek further advice as they so desire.

3.5 Treatment after Consultation: No decision should restrain the attending physician from making such subsequent variations in the treatment if any unexpected change occurs, but at the next consultation, reasons for the variations should be discussed/explained. The same privilege, with its obligations, belongs to the consultant when sent for in an emergency during the absence of attending physician. The attending physician may prescribe medicine at any time for the patient, whereas the consultant may prescribe only in case of emergency or as an expert when called for.

3.6 Patients Referred to Specialists: When a patient is referred to a specialist by the attending physician, a case summary of the patient should be given to the specialist, who should communicate his opinion in writing to the attending physician.

3.7 Fees and other charges:

3.7.1 A physician shall clearly display his fees and other charges on the board of his chamber and/or the hospitals he is visiting. Prescription should also make clear if the Physician himself dispensed any medicine.

3.7.2 A physician shall write his name and designation in full along with registration particulars in his prescription letter head.

Note: In Government hospital where the patient–load is heavy, the name of the prescribing doctor must be written below his/her signature.

CHAPTER 4

  1. RESPONSIBILITIES OF PHYSICIANS TO EACH OTHER
    A physician should consider it as a pleasure and privilege to render gratuitous service to all physicians and their immediate family dependents.

4.2 Conduct in consultation: In consultations, no insincerity, rivalry or envy should be indulged in. All due respect should be observed towards the physician in-charge of the case and no statement or remark be made, which would impair the confidence reposed in him. For this purpose, no discussion should be carried on in the presence of the patient or his representatives.

4.3 Consultant not to take charge of the case: When a physician has been called for consultation, the Consultant should normally not take charge of the case, especially on the solicitation of the patient or friends. The Consultant shall not criticize the referring physician. He / she shall discuss the diagnosis treatment plan with the referring physician.

4.4 Appointment of Substitute: Whenever a physician requests another physician to attend his patients during his temporary absence from his practice, professional courtesy requires the acceptance of such appointment only when he has the capacity to discharge the additional responsibility along with his / her other duties. The physician acting under such an appointment should give the utmost consideration to the interests and reputation of the absent physician and all such patients should be restored to the care of the latter upon his/her return.

4.5 Visiting another Physician’s Case: When it becomes the duty of a physician occupying an official position to see and report upon an illness or injury, he should communicate to the physician in attendance so as to give him an option of being present. The medical officer / physician occupying an official position should avoid remarks upon the diagnosis or the treatment that has been adopted.

CHAPTER 5

5 DUTIES OF PHYSICIAN TO THE PUBLIC AND TO THE PARAMEDICAL PROFESSION
5.1 Physicians as Citizens: Physicians, as good citizens, possessed of special training should disseminate advice on public health issues. They should play their part in enforcing the laws of the community and in sustaining the institutions that advance the interests of humanity. They should particularly co-operate with the authorities in the administration of sanitary/public health laws and regulations.

5.2 Public and Community Health: Physicians, especially those engaged in public health work, should enlighten the public concerning quarantine regulations and measures for the prevention of epidemic and communicable diseases. At all times the physician should notify the constituted public health authorities of every case of communicable disease under his care, in accordance with the laws, rules and regulations of the health authorities. When an epidemic occurs, a physician should not abandon his duty for fear of contracting the disease himself.

5.3 Pharmacists / Nurses: Physicians should recognize and promote the practice of different paramedical services such as, pharmacy and nursing as professions and should seek their cooperation wherever required.

CHAPTER 6

  1. UNETHICAL ACTS:

A physician shall not aid or abet or commit any of the following acts which shall be construed as unethical –

6.1 Advertising:

6.1.1 Soliciting of patients directly or indirectly, by a physician, by a group of physicians or by institutions or organizations is unethical. A physician shall not make use of him / her (or his / her name) as subject of any form or manner of advertising or publicity through any mode either alone or in conjunction with others which is of such a character as to invite attention to him or to his professional position, skill, qualification, achievements, attainments, specialties, appointments, associations, affiliations or honors and/or of such character as would ordinarily result in his self-aggrandizement. A physician shall not give to any person, whether for compensation or otherwise, any approval, recommendation, endorsement, certificate, report or statement with respect of any drug, medicine, nostrum remedy, surgical, or therapeutic article, apparatus or appliance or any commercial product or article with respect of any property, quality or use thereof or any test, demonstration or trial thereof, for use in connection with his name, signature, or photograph in any form or manner of advertising through any mode nor shall he boast of cases, operations, cures or remedies or permit the publication of report thereof through any mode. A medical practitioner is however permitted to make a formal announcement in press regarding the following:

  1. On starting practice.
  2. On change of type of practice.
  3. On changing address.
  4. On temporary absence from duty.
  5. On resumption of another practice.
  6. On succeeding to another practice.
  7. Public declaration of charges.
    6.1.2 Printing of self-photograph, or any such material of publicity in the letter head or on sign board of the consulting room or any such clinical establishment shall be regarded as acts of self-advertisement and unethical conduct on the part of the physician. However, printing of sketches, diagrams, picture of human system shall not be treated as unethical.

6.2 Patent and Copy rights: A physician may patent surgical instruments, appliances and medicine or Copyright applications, methods and procedures. However, it shall be unethical if the benefits of such patents or copyrights are not made available in situations where the interest of large population is involved.

6.3 Running an open shop (Dispensing of Drugs and Appliances by Physicians): – A physician should not run an open shop for sale of medicine for dispensing prescriptions prescribed by doctors other than himself or for sale of medical or surgical appliances. It is not unethical for a physician to prescribe or supply drugs, remedies or appliances as long as there is no exploitation of the patient. Drugs prescribed by a physician or brought from the market for a patient should explicitly state the proprietary formulae as well as generic name of the drug.

6.4 Rebates and Commission:

6.4.1 A physician shall not give, solicit, or receive nor shall he offer to give solicit or receive, any gift, gratuity, commission or bonus in consideration of or return for the referring, recommending or procuring of any patient for medical, surgical or other treatment. A physician shall not directly or indirectly, participate in or be a party to act of division, transference, assignment, subordination, rebating, splitting or refunding of any fee for medical, surgical or other treatment.

6.4.2 Provisions of para 6.4.1 shall apply with equal force to the referring, recommending or procuring by a physician or any person, specimen or material for diagnostic purposes or other study / work. Nothing in this section, however, shall prohibit payment of salaries by a qualified physician to other duly qualified person rendering medical care under his supervision.

6.5 Secret Remedies: The prescribing or dispensing by a physician of secret remedial agents of which he does not know the composition, or the manufacture or promotion of their use is unethical and as such prohibited. All the drugs prescribed by a physician should always carry a proprietary formula and clear name.

6.6 Human Rights: The physician shall not aid or abet torture nor shall he be a party to either infliction of mental or physical trauma or concealment of torture inflicted by some other person or agency in clear violation of human rights.

6.7 Euthanasia: Practicing euthanasia shall constitute unethical conduct. However, on specific occasion, the question of withdrawing supporting devices to sustain cardio-pulmonary function even after brain death, shall be decided only by a team of doctors and not merely by the treating physician alone. A team of doctors shall declare withdrawal of support system. Such team shall consist of the doctor in charge of the patient, Chief Medical Officer / Medical Officer in charge of the hospital and a doctor nominated by the in-charge of the hospital from the hospital staff or in accordance with the provisions of the Transplantation of Human Organ Act, 1994.

CHAPTER 7

  1. MISCONDUCT:
    The following acts of commission or omission on the part of a physician shall constitute professional misconduct rendering him/her liable for disciplinary action

7.1 Violation of the Regulations: If he/she commits any violation of these Regulations.

7.2 If he/she does not maintain the medical records of his/her indoor patients for a period of three years as per regulation 1.3 and refuses to provide the same within 72 hours when the patient or his/her authorized representative makes a request for it as per the regulation 1.3.2.

7.3 If he/she does not display the registration number accorded to him/her by the State Medical Council or the Medical Council of India in his clinic, prescriptions and certificates etc. issued by him or violates the provisions of regulation 1.4.2.

7.4 Adultery or Improper Conduct: Abuse of professional position by committing adultery or improper conduct with a patient or by maintaining an improper association with a patient will render a Physician liable for disciplinary action as provided under the Indian Medical Council Act, 1956 or the concerned State Medical Council Act.

7.5 Conviction by Court of Law: Conviction by a Court of Law for offences involving moral turpitude / Criminal acts.

7.6 Sex Determination Tests: On no account sex determination test shall be undertaken with the intent to terminate the life of a female fetus developing in her mother’s womb, unless there are other absolute indications for termination of pregnancy as specified in the Medical Termination of Pregnancy Act, 1971. Any act of termination of pregnancy of normal female fetus amounting to female feticide shall be regarded as professional misconduct on the part of the physician leading to penal erasure besides rendering him liable to criminal proceedings as per the provisions of this Act.

7.7 Signing Professional Certificates, Reports and other Documents: Registered medical practitioners are in certain cases bound by law to give, or may from time to time be called upon or requested to give certificates, notification, reports and other documents of similar character signed by them in their professional capacity for subsequent use in the courts or for administrative purposes etc. Such documents, among others, include the ones given at Appendix –4. Any registered practitioner who is shown to have signed or given under his name and authority any such certificate, notification, report or document of a similar character which is untrue, misleading or improper, is liable to have his name deleted from the Register.

7.8 A registered medical practitioner shall not contravene the provisions of the Drugs and Cosmetics Act and regulations made there under. Accordingly,

  1. Prescribing steroids/ psychotropic drugs when there is no absolute medical indication;
  2. selling Schedule ‘H’ & ‘L’ drugs and poisons to the public except to his patient;
    in contravention of the above provisions shall constitute gross professional misconduct on the part of the physician.
    7.9 Performing or enabling unqualified person to perform an abortion or any illegal operation for which there is no medical, surgical or psychological indication.

7.10 A registered medical practitioner shall not issue certificates of efficiency in modern medicine to unqualified or non-medical person.
(Note: The foregoing does not restrict the proper training and instruction of Bonafede students, midwives, dispensers, surgical attendants, or skilled mechanical and technical assistants and therapy assistants under the personal supervision of physicians.)
7.11 A physician should not contribute to the lay press articles and give interviews regarding diseases and treatments which may have the effect of advertising himself or soliciting practices; but is open to write to the lay press under his own name on matters of public health, hygienic living or to deliver public lectures, give talks on the radio/TV/internet chat for the same purpose and send announcement of the same to lay press.

7.12 An institution run by a physician for a particular purpose such as a maternity home, nursing home, private hospital, rehabilitation center or any type of training institution etc. may be advertised in the lay press, but such advertisements should not contain anything more than the name of the institution, type of patients admitted, type of training and other facilities offered and the fees.

7.13 It is improper for a physician to use an unusually large sign board and write on it anything other than his name, qualifications obtained from a University or a statutory body, titles and name of his specialty, registration number including the name of the State Medical Council under which registered. The same should be the contents of his prescription papers. It is improper to affix a sign-board on a chemist’s shop or in places where he does not reside or work.

7.14 The registered medical practitioner shall not disclose the secrets of a patient that have been learnt in the exercise of his / her profession except –

  1. in a court of law under orders of the Presiding Judge;
  2. in circumstances where there is a serious and identified risk to a specific person and / or community; and
  3. notifiable diseases.
    In case of communicable / notifiable diseases, concerned public health authorities should be informed immediately.

7.15 The registered medical practitioner shall not refuse on religious grounds alone to give assistance in or conduct of sterility, birth control, circumcision and medical termination of Pregnancy when there is medical indication, unless the medical practitioner feels himself/herself incompetent to do so.

7.16 Before performing an operation the physician should obtain in writing the consent from the husband or wife, parent or guardian in the case of minor, or the patient himself as the case may be. In an operation which may result in sterility the consent of both husband and wife is needed.

7.17 A registered medical practitioner shall not publish photographs or case reports of his / her patients without their permission, in any medical or other journal in a manner by which their identity could be made out. If the identity is not to be disclosed, the consent is not needed.

7.18 In the case of running of a nursing home by a physician and employing assistants to help him / her, the ultimate responsibility rests on the physician.

7.19 A Physician shall not use touts or agents for procuring patients.

7.20 A Physician shall not claim to be specialist unless he has a special qualification in that branch.

7.21 No act of invitro fertilization or artificial insemination shall be undertaken without the informed consent of the female patient and her spouse as well as the donor. Such consent shall be obtained in writing only after the patient is provided, at her own level of comprehension, with sufficient information about the purpose, methods, risks, inconveniences, disappointments of the procedure and possible risks and hazards.

7.22 Research: Clinical drug trials or other research involving patients or volunteers as per the guidelines of ICMR can be undertaken, provided ethical considerations are borne in mind. Violation of existing ICMR guidelines in this regard shall constitute misconduct. Consent taken from the patient for trial of drug or therapy which is not as per the guidelines shall also be construed as misconduct.

7.23 If a physician posted in rural area is found absent on more than two occasions during inspection by the Head of the District Health Authority or the Chairman, Zila Parishad, the same shall be construed as a misconduct if it is recommended to the Medical Council of India/State Medical Council by the State Government for action under these Regulations.

7.24 If a physician posted in a medical college/institution both as teaching faculty or otherwise shall remain in hospital/college during the assigned duty hours. If they are found absent on more than two occasions during this period, the same shall be construed as a misconduct if it is certified by the Principal/Medical Superintendent and forwarded through the State Government to Medical Council of India/State Medical Council for action under these Regulations.

CHAPTER 8

  1. PUNISHMENT AND DISCIPLINARY ACTION

8.1 It must be clearly understood that the instances of offences and of Professional misconduct which are given above do not constitute and are not intended to constitute a complete list of the infamous acts which calls for disciplinary action, and that by issuing this notice the Medical Council of India and or State Medical Councils are in no way precluded from considering and dealing with any other form of professional misconduct on the part of a registered practitioner. Circumstances may and do arise from time to time in relation to which there may occur questions of professional misconduct which do not come within any of these categories. Every care should be taken that the code is not violated in letter or spirit. In such instances as in all others, the Medical Council of India and/or State Medical Councils have to consider and decide upon the facts brought before the Medical Council of India and/or State Medical Councils.

8.2 It is made clear that any complaint with regard to professional misconduct can be brought before the appropriate Medical Council for Disciplinary action. Upon receipt of any complaint of professional misconduct, the appropriate Medical Council would hold an enquiry and give opportunity to the registered medical practitioner to be heard in person or by pleader. If the medical practitioner is found to be guilty of committing professional misconduct, the appropriate Medical Council may award such punishment as deemed necessary or may direct the removal altogether or for a specified period, from the register of the name of the delinquent registered practitioner. Deletion from the Register shall be widely publicized in local press as well as in the publications of different Medical Associations/ Societies/Bodies.

8.3 In case the punishment of removal from the register is for a limited period, the appropriate Council may also direct that the name so removed shall be restored in the register after the expiry of the period for which the name was ordered to be removed.

8.4 Decision on complaint against delinquent physician shall be taken within a time limit of 6 months.

8.5 During the pendency of the complaint the appropriate Council may restrain the physician from performing the procedure or practice which is under scrutiny.

8.6 Professional incompetence shall be judged by peer group as per guidelines prescribed by Medical Council of India.
APPENDIX – 1

DECLARATION

At the time of registration, each applicant shall be given a copy of the following declaration by the Registrar concerned and the applicant shall read and agree to abide by the same:

  1. I solemnly pledge myself to consecrate my life to service of humanity.
  2. Even under threat, I will not use my medical knowledge contrary to the laws of Humanity.
  3. I will maintain the utmost respect for human life from the time of conception.
  4. I will not permit considerations of religion, nationality, race, party politics or social standing to intervene between my duty and my patient.
  5. I will practice my profession with conscience and dignity.
  6. The health of my patient will be my first consideration.
  7. I will respect the secrets which are confined in me.
  8. I will give to my teachers the respect and gratitude which is their due.
  9. I will maintain by all means in my power, the honor and noble traditions of medical profession.
  10. I will treat my colleagues with all respect and dignity.
  11. I shall abide by the code of medical ethics as enunciated in the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002.
    I make these promises solemnly, freely and upon my honor.

Signature ………………………………………………

Name ………………………………………………………

Place ………………………………………………………

Address

………………………………………………

……………………… ………………………

……………………… ………………………

Date …………………
APPENDIX – 2

FORM OF CERTIFICATE RECOMMENDED
FOR LEAVE OR EXTENSION OR COMMUNICATION
OF LEAVE AND FOR FITNESS

Signature of patient
or thumb impression _______________________________

To be filled in by the applicant in the presence of the Government Medical Attendant, or Medical Practitioner.

Identification marks: –

  1. ______________
  2. ______________
    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.

I, Dr. ____________ after careful examination of the case certify hereby that __________ on restoration of health is now fit to join service.

Place _______ Signature of Medical attendant.
Date ____ Registration No. _______

(Medical Council of India / State Medical Council of ………….…. State)

Note: – The nature and probable duration of the illness should also be specified. This certificate must be accompanied by a brief resume of the case giving the nature of the illness, its symptoms, causes and duration.

APPENDIX-3

FORMAT FOR MEDICAL RECORD
(see regulation 3.1)
Name of the patient:

Age:

Sex:

Address:

Occupation:

Date of 1st visit:

Clinical note (summary) of the case:

Prov.: Diagnosis:

Investigations advised with reports:

Diagnosis after investigation:

Advice:

Follow up

Date:
Observations:

Signature in full ………………………….

Name of Treating Physician
APPENDIX –4

LIST OF CERTIFICATES, REPORTS, NOTIFICATIONS ETC. ISSUED BY DOCTORS FOR THE PURPOSES OF VARIOUS ACTS / ADMINISTRATIVE REQUIREMENTS

  1. Under the acts relating to birth, death or disposal of the dead.
  2. Under the Acts relating to Lunacy and Mental Deficiency and under the Mental illness Act and the rules made thereunder.
  3. Under the Vaccination Acts and the regulations made thereunder.
  4. Under the Factory Acts and the regulations made thereunder.
  5. Under the Education Acts.
  6. Under the Public Health Acts and the orders made thereunder.
  7. Under the Workmen’s Compensation Act and Persons with Disability Act.
  8. Under the Acts and orders relating to the notification of infectious diseases.
  9. Under the Employee’s State Insurance Act.
  10. In connection with sick benefit insurance and friendly societies.
  11. Under the Merchant Shipping Act.
  12. For procuring / issuing of passports.
  13. For excusing attendance in courts of Justice, in public services, in public offices or in ordinary employment.
  14. In connection with Civil and Military matters.
  15. In connection with matters under the control of Department of Pensions.
  16. In connection with quarantine rules.
  17. For procuring driving license.

(DR. M. SACHDEVA)
SECRETARY
MEDICAL COUNCIL OF INDIA

(Published in Part III, Section 4 of the Gazette of India, dated 22nd February, 2003)
MEDICAL COUNCIL OF INDIA
NOTIFICATION

No.MCI-211(2)2002-Regn.- In exercise of the powers conferred under section 20A read with section 33(m) of the Indian Medical Council Act, 1956 (102 of 1956), the Medical Council of India, with the previous approval of the Central Government, hereby makes the following amendments to the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, namely:-

Short Title and Commencement: (i) These Regulations may be called the Indian Medical Council (Professional conduct, Etiquette and Ethics) (Amendment) Regulations, 2003.

(ii) They shall come into force on the date of their publication in the Official Gazette.

(2) In the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002, the regulations, 7.23 and 7.24 appearing under Chapter 7, shall be omitted.

(Published in Part III, Section 4 of the Gazette of India, Extraordinary dated 27th May, 2004)
MEDICAL COUNCIL OF INDIA
NOTIFICATION
New Delhi, dated 11th March, 2002

No. MCI-211(2)/2004-(Ethical). – In exercise of the powers conferred under section 20A read with section 33(m) of the Indian Medical Council Act, 1956 (102 of 1956), the Medical Council of India, with the previous approval of the Central Government, hereby makes the following amendments to the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002, namely:-

(1) Short Title and Commencement: (i) These Regulations may be called the Indian Medical Council (Professional conduct, Etiquette and Ethics) (Amendment) Regulations, 2004.

(2) In the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002, after the regulation 8.6 appearing under Chapter 8, the following regulations, shall be added:

“8.7 Where either on a request or otherwise the Medical Council of India is informed that any complaint against a delinquent physician has not been decided by a State Medical Council within a period of six months from the date of receipt of complaint by it and further the MCI has reason to believe that there is no justified reason for not deciding the complaint within the said prescribed period, the Medical Council of India may-

(i) Impress upon the concerned State Medical council to conclude and decide the complaint within a time bound schedule;
(ii) May decide to withdraw the said complaint pending with the concerned State Medical Council straightaway or after the expiry of the period which had been stipulated by the MCI in accordance with para(i) above, to itself and refer the same to the Ethical Committee of the Council for its expeditious disposal in a period of not more than six months from the receipt of the complaint in the office of the Medical Council of India.”

“8.8 Any person aggrieved by the decision of the State Medical Council on any complaint against a delinquent physician, shall have the right to file an appeal to the MCI within a period of 60 days from the date of receipt of the order passed by the said Medical Council:

Provided that the MCI may, if it is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, allow it to be presented within a further period of 60 days.
MEDICAL COUNCIL OF INDIA
NOTIFICATION
New Delhi, the 10th December 2009
No. MCI-211(1)/2009 (Ethics)/55667.-In exercise of the powers conferred by Section 33 of the Indian Medical Council Act, 1956 (102 of 1956), the Medical Council of India with the previous sanction of the Central Government, hereby makes the following Regulations to amend the “Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002:-

  1. (i) These Regulations may be called the “Indian Medical council (Professional Conduct, Etiquette and Ethics) (Amendment) Regulations, 2009 Part I”.
    (ii) They shall come into force from the date of their publication in the Official Gazette.
  2. In the “Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002”, the following additions/medications/decisions/substitutions, shall be, as indicated therein: –
  3. The following clause shall be added after clause 6.7:-

“6.8 Code of conduct for doctor and professional association of doctors in their relationship with pharmaceutical and allied health sector industry.

6.8.1 In dealing with pharmaceutical and allied health sector industry, a medical practitioner shall follow and adhere to the stipulations given below: –

(a) Gifts: A medical practitioner shall not receive any gift from any pharmaceutical or allied healthcare industry and their sales people or representatives.

(b) Travel facilities: A medical practitioner shall not accept any travel facility inside the country or outside, including rail, air, ship, cruise tickets, paid vacations, etc., from any pharmaceutical or allied healthcare industry or their representatives for self and family members for vacation or for attending conference, seminars, workshops, CME programme etc. as a delegate.

(c) Hospitality: A medical practitioner shall not accept individually any hospitality like hotel accommodation for self and family members under any pretext.

(d) Cash or monetary grants: A medical practitioner hall not receive any cash or monetary grants from any pharmaceutical and allied healthcare industry for individual purpose in individual capacity under any pretext. Funding for medical research, study etc., can only be received through approved institutions by modalities laid down by law/rules/guidelines adopted by such approved institutions, in a transparent manner. It shall always be fully disclosed.

(e) Medical Research: A medical practitioner may carry out, participate in, work in research projects funded by pharmaceutical and allied healthcare industries. A medical practitioner is obliged to know that the fulfillment of the following items (1) to (vii) will be an imperative for undertaking any research assignment/project funded by industry-for being proper and ethical. Thus, in accepting such a position a medical practitioner shall: –
(i) Ensure that the particular research proposal(s) has the due permission from the competent concerned authorities;
(ii) Ensure that such a research project(s) has the clearance of national/state/institutional ethics committee/bodies;
(iii) Ensure that it fulfills all the legal requirements prescribed for medical research;
(iv) Ensure that the source and amount of funding is publicly disclosed at the beginning itself;
(v) Ensure that proper care and facilities are provided to human volunteers, if they are necessary for the research projects);
(vi) Ensure that undue animal experimentations are not done and when these are necessary, they are done in a scientific and a humane way;
(vii) Ensure that while accepting such an assignment a medical practitioner shall have the freedom to publish the results of the research in the greater interest of the society by inserting such a clause in the MoU or any other document/agreement for any such assignment.

(f) Maintaining Professional Autonomy: In dealing with pharmaceutical and allied healthcare industry a medical practitioner shall always ensure that there shall never be any compromise either with his/her own professional autonomy and/or with the autonomy and freedom of the medical institution.

(g) Affiliation: A medical practitioner may work for pharmaceutical and allied healthcare industries in advisory capacities, as consultants, as researchers, as treating doctors or in any other professional capacity. In doing so, a medical practitioner shall always:
(i) Ensure that his professional integrity and freedom are maintained:
(ii) Ensure that patient’s interest is not compromised in any way;
(iii) Ensure that such affiliation is within the law;
(iv) Ensure that such affiliations/employments are fully transparent and disclosed.

(h) Endorsement: A medical practitioner shall not endorse any drug or product of the industry publicly. Any study conducted on the efficacy or otherwise of such products shall be presented to and/or through appropriate scientific bodies or published in appropriate scientific journals in a proper way”.
(Lt. Col. (Retd.) Dr. A.R.N. Setalvad)
Secretary
Medical Council of India

Foot Note: The Principal Regulations namely, “Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002” were published in Part III, Section (4) of the Gazette of India on the 6th April, 2002, and amende vide MCI notification, dated 22-2-2003 and 26-5-2004.
MCI peer group review
As per Rule 8.6, professional incompetence of a professional duly registered with the State Medical Council upon fulfilling the precondition of the eligibility of having acquired recognized medical qualifications from a university and duly incorporated in the concerned schedule appended to the Indian Medical Council Act, 1956, shall be judged by peer group as per guidelines prescribed by MCI. However, these guidelines have never been made. Taking serious note of this, national president of Indian Medical Association (IMA) had written to MCI to frame the guidelines. A study group led by the chairman of the academic committee, MCI was set up by MCI president one and half month back to chart out draft guidelines under Rule 8.6 in response to IMA presidents’ letter. The draft guidelines, titled as ‘Guidelines governing the assessment of professional incompetence’ by a peer group under Rule 8.6 of Code of Medical Ethics Regulation 2002 as amended from time to time will come into the force from the date of its notification by MCI. The guidelines shall be applicable for any medical trial jurisdiction at the institutional (medical colleges approved by MCI) or at any council level. They shall not cover a criminal aspect of professional negligence. Professional incompetence, professional misconduct and professional incapacitation by and large are used interchangeably because all the three within their fold include failure on part of the professional to take reasonable steps to safeguard the life and health of the person under his care. In a move to bring more clarity to which action of a medico can be attributed to professional incompetence, the draft has clearly defined it. It says ‘professional incompetence’ is failure to exercise due care and diligence in professional responsibilities due to lack of knowledge, skill or judgment while professional incapacity means inability to carry out professional activities and responsibilities/obligations due to a physical or mental illness that may limit the capacity of a professional person to fulfil his/her professional responsibilities temporarily or permanently. It also defined professional negligence for which the guidelines will not be applicable. As per the draft, an act or omission (failure to act when there is a duty to act) which a reasonable man in the circumstances would do or an act of commission (wrong doing) by a medical professional, which a reasonable man in the circumstances would not do constitutes professional negligence. It further says a peer group at institutional (medical college) /clinical establishment/state medical council/MCI will be constituted to judge the professional incompetency of a registered medical practitioner in a time-bound manner. The peer group shall be a three-member committee with a chairman, one IMA nominee, and one professional subject expert. The peer group on receipt of any complaint shall examine the allegation in a time-bound manner, preferably within two weeks and forward its reasoned-out speaking order following the principle of natural justice and based on “Bolam’s Test” to the institutional head, clinical establishment head /chairman of the ethics committee of the state medical council/chairman of the ethics committee of MCI as the case may be. Bolam Test evolved out of the judgment in the case of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 is used to assess the standard of care when deciding medical negligence. The MCI will soon hold a meeting to deliberate and finalise the draft guidelines. The IMA which pushed for the guidelines has also convened a central working committee meeting on September 23 to discuss and pass it.
MCI concerned about assault on doctors
• Members supported the concern for assault on Resident doctors and the following Resolutions were proposed
27A Privileges of persons who are enrolled on Indian Medical Register/State Medical Register or under training in Medical Institutes recognized under this Act, whether at undergraduate, intern or postgraduate level.
Notwithstanding anything contained in this or any other Act, no court shall take cognizance of any offence, alleged to have been committed by any doctor registered in Indian Medical Register/State Medical Register, maintained by this Act or State Medical Act for time being in force, or against any medical student who is whether undergraduate, intern or postgraduate, who is under training in medical colleges and hospitals permitted by this Act during their professional duties, training or studies, except with the previous sanction of State or Central Government.
It was further proposed that it would be best if Maharashtra Doctors Protection Act is included in IPC-
We all, the members at MCI are intended to provide best of the medical services to all the citizens of our country, India. In current scenario of attack on medical fraternity, we feel that it is very difficult to provide best of the medical services to our citizens by medical fraternity with fearful mind. For this, we pass a resolution and recommend Central Govt. to:
“Include Maharashtra Ordinance No. V. of 2009, Gazette Notification dt. 30th March, 2009 in Indian Penal Code (IPC)”
• It was further made known to the House about Section 197 of the Code of Criminal Procedure, 1973 and stated that the House may recommend to the Central Government to amend Section 197 of the Cr.P.C. Medical practitioners all over the country should also be sensitized to the legal recourse available to them.
• It was recommended that state Authorities be approached to advertise legal protection available to doctors.
• It was recommended to Include in MSR that every ward/casualty etc. should have a certain number of security guards.
• MCI should take a very strong stand on violence against doctors. It was proposed that there should be a Grievance Cell in every college where doctors can raise their voice. Communication skills of doctors be enhanced. Relevant MCI Regulations be amended to include a clause for the purpose.
• A press release be issued regarding concern on violence against the doctors. MCI Should write to Govt. of India to pass a Central Act (Uniform) – Cognizable and non-bailable Act. The Ethics Committee in the Council should discuss about such provision/legal recourses etc. available at their State Council’s Meetings (sensitization programme).
• The House expressed their concern on the recent incidents of violence against doctors and was of the opinion that only amendments in MSR will not fetch dividends contemplated. It is necessary to issue advisory and a meeting of all the Health Secretaries of all the States on this issue be convened by the MCI.
• Violence against doctors is an international phenomenon. It was pointed out that this issue was even discussed in World Medical Association to find the ways and means to curb the problem. Proposed for draft resolution regarding Anti Violence Committee/Regulation in every college.
Medical ethics.
Medical ethics is a path illuminated by principles to guide members of the medical profession in their dealings with each other and with their patients. Here, I concern myself with the doctor-doctor relationship, which is under severe stress. I refer to negative professional criticism of one’s colleagues, a practice which damages the profession and its reputation in the larger community.
Like other members of society, doctors are caught in the pursuit of money and prestige. Like any other economic enterprise, medical practice too is vulnerable to groupism and power struggles. As a result, doctors can knowingly or unknowingly behave in a manner that detrimentally affects the position of their colleagues. They must respond to this problem by re-establishing ethical principles, because self-regulation is better than forced external controls through laws.
Various codes, both ancient and modern, have spoken on the doctor-doctor relationship, identifying the duty to one’s colleagues as well one’s duty to the community at large. Both ancient India and ancient Greece speak in general terms of honor and moderation. “Your speech must be soft, pleasant, virtuous, truthful, useful and moderate… must be mindful in whatever you do,” warns Sushruta Samhita. “Even when you are learned and proficient, do not show off.” Hippocrates’ oath declares: “Now if I keep this oath and break it not, may I enjoy honour, in my life and art, among all men for all time; but if I transgress… may the opposite befall me.” The World Medical Association’s Declaration of Geneva calls for all doctors to accept that “My colleagues will be my brothers… I will maintain by all means in my power, the honor and the noble traditions of medical profession.” The code of the Indian Medical Association is explicit: “The medical profession should safeguard the public and itself against physicians deficient in moral character or professional competence. Physicians should observe all laws, uphold the dignity and honor of the profession and accept its self-imposed discipline. They should expose without hesitation, the illegal or unethical conduct of fellow members of the profession.”
Positive criticism can be made in an environment which invites criticism, when doctors seek peer review, when professional associations appoint ombudsmen — all with the intention of analyzing current medical practice and using people’s suggestions for self-improvement.
It is perfectly appropriate to quote a misdeed if the purpose is to change the quality of professional practice. Sometimes, the context deserves a suitable example — such as referring to the Lentin Commission’s findings against doctors’ misdeeds. It is also necessary when one must object to unethical work, such as reckless and unauthorized experiments in xeno-transplantation. Criticism may be used to warn against possible misadventure, such as criticizing attempts at human cloning; or potentially dangerous human trials of drugs for investigators’ personal gains. It can be used to expose inhuman trials, and the doctors and organizations associated with such activities, such as the use of an anti-malarial drug to chemically cauterize the uterine endometrium. Criticism of irrational practice is also essential, whether of drug utilization, prescriptions, investigations or other interventions. It may also be necessary to publicly oppose irrational statements made by medical professionals.
All these are attempts to change medical practice for the better. They do not amount to negative criticism. In negative professional criticism, on the other hand, fault finding serves no other purpose than to express ill will, affect the interests of others, and tarnish the image of one’s professional colleagues. There are many situations in which doctors can get entrapped in professional criticism. The following are some commonly noticed situations where professional criticism is most likely to occur.
One can be called to express one’s views about a colleague or subordinate during the course of a medical audit, or in a professional enquiry in a medical board or because of a consumer complaint. During a peer review procedure — editing a manuscript, conducting post examinations — one can be tempted to make comments on one’s colleagues. The doctor must take due care to express the opinion confidentially, without a confrontationist attitude, and in a way that does not malign the colleague. The purpose of expressing one’s opinion is to correct the problem, not enter into an enmity.
Another situation can arise when a patient comes to you for a second opinion or specialist advice or for an alternative/complementary form of treatment. Such visits are often misused to vent one’s individual bias about the competence of other practitioners or schools of treatment. Reserve such comments for professional discussions in academic fora. The consumer has come to you to get the best advice. Do not give him the worst of our profession — the habit of criticizing others. This will only result in the patient losing faith in the profession.
If there is a difference of opinion over the diagnosis, or when the patient has been referred by a general practitioner to a specialist, do not criticize the other professional to establish your superiority. The patient has been referred to you because you are believed to be more competent in that subject. Desist from using him or her as a medium to spread criticism of fellow professionals.
When your patient sees another doctor during an emergency, or because you are otherwise not available, do not criticize the other professional’s decisions. Be thankful to the doctor for having taken care of your case in your absence.
An honest comment offered in good faith, to promote the patient’s best interests, may be justifiable. However, even this can become inappropriate criticism. Think before you speak out loud. Think again before writing such reports, ask a friend to review what you intend to report in writing to save yourself from inadvertent criticism. Remember, comments which are gratuitous, unsustainable and aim at undermining trust in a colleague’s knowledge or skill are unethical.
There is also a need to foster healthy criticism. Promote academic debates among your peers. Utilize forums such as CMEs and medical journals to air your professional opinions.
It is your professional obligation to inform the appropriate authority about a colleague whose professional conduct, fitness to practice and professional performance appears to be deficient. Unfortunately, the majority of professionals turn a Nelson’s eye to such behavior, even while they slander their colleagues informally.
If a patient comes to you with evidence of another doctor’s serious medical negligence, do not get caught in the web. Advise the patient to approach a medical activist, voluntary group, professional organization or medico-legal expert for better guidance. Do not jump to conclusions and pass judgements based on a one-sided version of the story. Understand that you are not an expert in these issues. Should you wish to become an advisor on such issues, become an activist, pursue your interests of cleansing the profession and getting justice to the needy. May God bless you.
If negligence in the profession is continuous and on-going and you feel strongly charged to correct the ills, nothing stops you from discharging your social, ethical, moral and professional responsibility of reporting such matters to the concerned for grievance redressal. You can become a party to action in consumer health fora, the courts, or local health authorities. You can bring the negligence to the knowledge of professional bodies and medical councils and be actively involved without the fear of indulging in professional criticism. It is always better that medical activists come from inside the profession, for they understand the problems of medicine better.
On May 11, 2000, the Committee on Economic, Social and Cultural Rights adopted a General Comment on the right to the highest attainable standard of health.
The General Comment deals with a state’s obligations to maintain the health of its population “to the highest attainable standard” by specifying the universal obligatory core components for every country’s health system. Every state will be obliged to meet, or aim for, not only defined standards of availability, accessibility, acceptability, and quality of healthcare but also the essential prerequisites for health – a healthy environment, clean water, and adequate food and housing. Another important innovation will be the introduction of a system of benchmarks and indicators with which to monitor progress in the development of states’ health services.
Article 12 of the Covenant says states recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. Parties agreed to take steps to reduce stillbirth and infant mortality rates, and to work towards the healthy development of the child, as well as improving all aspects of environmental and industrial hygiene, the prevention, treatment and control of epidemics, and the creation of conditions which would assure medical services and medical attention in the event of sickness.
States were obliged to guarantee that the right to health would be exercised without discrimination. They also had obligations to take deliberate, concrete and targeted steps toward the full realization of the right to health.
Addressing violations of the right to health, the general comment said it was important to distinguish the inability from the unwillingness of a State to comply with the obligations of Article 12. If resource constraints rendered it impossible for a State to comply fully with its Covenant obligations, it had the burden of justifying that every effort had nevertheless been made to use all available resources at its disposal, the document stated.
The general comment recognized that implementation at the national level would vary from one State to another. It pointed out, however, that the Covenant clearly imposed a duty on each State to take whatever steps were necessary to ensure that everyone had access to health facilities, goods and services so that they could enjoy, as soon as possible, the highest attainable standard of physical and mental health.
In pointing out the obligations of actors other than States parties, the document stated that the United Nations agencies and programmers, particularly the World Health Organization (WHO), were of particular importance. States parties, when formulating and implementing their right to health national strategies, should avail themselves of WHO’s technical assistance and cooperation.
The Covenant has been ratified by 130 countries and is the leading legal source for the international human right to health. Every state signatory is required to make ‘periodic reports’ to the Committee at five-year intervals.
Medical negligence
Gratuitously advices shall not be considered liable when the actions are within the established medical procedures
Any doctor who is qualified by medical council and renders emergency care or treatment to a person suffering or appearing to suffer from cardiac arrest, which may include the use of an automated external defibrillator, in good faith and without compensation, shall be immune from civil liability for any personal injury as a result of care or treatment or as a result of any act or failure to act in providing or arranging further medical treatment where the person acts as an ordinary prudent person would have acted under the same or similar circumstances, except damages that may result for the gross negligence of the person rendering emergency care. This immunity shall extend to the licensed physician.
If a doctor passes the scene of an accident in which some person has been injured and is in need of urgent medical attention he would not be held to have been negligent if he does not render assistance, as no doctor/patient relationship has been established and in consequences the doctor owes the patient no legal duty.
If, however, the doctor goes to the assistance of a person who is injured in an accident, a doctor /patient relationship is at once established. When any physician gratuitously advises medical personnel at the scene of an emergency episode by direct voice contact, to render medical assistance based upon information received by voice or biotelemetry equipment, the actions ordered taken by the physician to sustain life or reduce disability shall not be considered liable when the actions are within the established medical procedures.
A doctor has a duty to exercise reasonable skill and care regardless of whether or not his services are being given gratuitously. A national health policy is required to be formulated to render emergency treatment to a person.
If such a practitioner fails to attend an emergency call and a complaint is made against him it may well be that some disciplinary action will be taken against him by the health authority/medical council.
Medical Negligence Vs Bad Practice, Which Is Going to Cost You More

In our previous medico-legal articles we have used the term “medical negligence” and “malpractice” several times. In general, these two terms have been used interchangeably, whereas, in legal aspect they have a subtle difference in the definition of these two terms. A knowledge of this difference may often lessen the legal burden for an accused doctor. A medical negligence in not always intentional and always tried at civil court whereas malpractice cases can come under criminal negligence and can land you up in a criminal court. Definition of Negligence, Malpractice and standard of care Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. In tort law, negligence applies to harm caused by carelessness, not intentional harm. Malpractice is a type of negligence; it is often called “professional negligence”. It occurs when a licensed professional (like a doctor, lawyer or accountant) fails to provide services as per the standards set by the governing body (“standard of care”), subsequently causing harm to the plaintiff. Standard of care means an ordinary competent person exercising ordinary skill in that particular profession. There is no medical definition for standard of care, although the term is firmly established by law and is defined as “the caution that a reasonable person in similar circumstances would exercise in providing care to a patient.” The same “standard of care” is applicable to hospitals as to individual physicians with the difference that liability of the hospital is a corporate liability and the hospital is accountable and responsible for an act of negligence of its staff. The Difference between the Two These two terms are often used interchangeably but as per legal concepts, though they are related, have different meanings. Medical malpractice is a subcategory of negligence. The two terms are connected by a third: negligence is a category in between medical malpractice and medical negligence. The key word in all three of these categories is “intent”. That word alone defines the three categories in vastly different ways. Medical negligence is the lack of action by a medical professional, often “without intent”; negligence can be done either with or without intent, and medical malpractice is done “with intent to harm”. How negligence or malpractice are proved Cases of negligence or malpractice are generally difficult to prove, as it is taken that no medical practitioner has a “harmful” intent towards a patient. To win a favorable judgment, a clear causal relationship must be established between the negligent act and the injury caused. There are four elements to proving both negligence and malpractice: Duty: The defendant had a duty or an obligation to the plaintiff. General duties to be discharged by doctors are: A duty of care in deciding whether to undertake the case A duty of care in deciding what treatment to give A duty of care in the administration of that treatment Breach: The defendant breached this duty. When a medical practitioner commits a breach of duty, the immunity he enjoys, turns to be a cause for calling judicial interference, giving a right of action for negligence to the patient in the last resort. Causation: The harm suffered by the plaintiff was a direct result of this breach of duty. Damages: The damages being sought are directly related to the harm caused. Special damages: Directly correlated to the injury or harm and have a specific money amount that can be established (e.g., via medical bills) General damages: More difficult to put a monetary figure to emotional damages e.g., pain and emotional suffering. Punitive damages: Imposed by the court in rare cases when the negligence was gross (extreme). This is rare because negligence, by its nature, is unintentional. Although these elements are of similar nature in the both negligence and malpractice categories, they are distinguished on the basis of the keyword “intent”. Civil versus criminal It is claimed that negligence is negligence and jurisprudentially no clear distinction can be drawn between negligence under civil law and negligence under criminal law. In general, it is the amount of damage incurred which is determinative of the extent of liability in tort; but in criminal law, it is not the amount of damage but the amount of degree of negligence that is determinative of liability. There is no absolute immunity against criminal prosecution and therefore, if a need arises, following guidelines are to be followed. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam’s test (A test that arose from English tort law, which is used to assess medical negligence) to the facts collected in the investigations. A doctor accused of rashness or negligence, may not be arrested in a routine manner. A physician should preferably be booked under bailable IPC 304A (Unintentional medical negligence) rather than non-bailable IPC 304 (Intentional negligence), as physicians are supposed to treat their patient in “good faith”. Examples To exemplify the difference between negligence and medical malpractice, it is beneficial to exemplify the category of general professional negligence as well, as negligence is the central aspect of the spectrum between the two respective sides. An example of negligence would be in the case of a driver who texts while at the wheel. Because the driver is distracted with his cell phone, they do not see the car that is driving ahead of them, and they cause an accident. In this case, negligence of attention to the road caused the accident, thus, the driver became a danger to others. His negligence and lack of attention would be proven as the cause. While negligence may or may not be attached by intent, medical negligence is negligence in the medical field without intent. Common examples are A failure of diagnostic revision Failure to warn patients of the risk of treatment Failure to treat a patient Wrongful diagnosis If a medical practitioner takes reasonable care and follows the laid down standard of care, he cannot be held liable. Following are the reasons for which a doctor cannot be sued for medical negligence: Difference in opinion Error in judgment Patient not getting cured despite correct treatment Operation not being successful without any negligence on the part of surgeon On the other hand, with the mistakes of medical negligence in mind, medical malpractice includes the opposite of mistake: a bad (mal) or wrongful “intent”. In medical negligence the doctor simply fails to do something that should have been done, on the contrary, doctors who commit malpractice, perform their job in a way that is not the accepted standard of care leading to serious injury or death. Examples of medical malpractice are those in which the doctor does not perform their duties to the legal medical standards. Such acts include: Wrongful death Mistake during childbirth Error in anesthesia Surgical errors due to the negligence of not abiding by the “standard of care” laid down by recent guidelines. General factors that protect from medical negligence Factors likely to prevent an initiation of litigation against doctors are listed below: Creating an environment that engenders trust. An environment where patient feels like being cared, heard, and respected by the doctor and his staff is essential to building a trust on their recommendations. Doctors having a valid insight regarding their own abilities and limitation. Handling the patient as per his credibility and an appropriate referral as and when needed can save them from an untoward event. Clear and adequate communication between patient, staff, and doctors: Good maintenance of medical records Encouraging patients to maintain their own medical records Encouraging patients to bring written lists of their concerns, medications, and issues they wish to discuss Giving written instructions to patients regarding recommended treatment Sending letters to patients summarizing the results of the patient visit, with copies of letter to consultants (To be mostly done by hospital administration) “A stitch in time saves nine”, this adage is a good reminder that how a proper preventive preparation can save physicians from landing into litigation trouble in future. Doctors who truly care for their patients will not ever want to treat them inappropriately, and will not want to harm them by exceeding their capability or giving them the unrealistic outcome of the treatment. They will always ensure the bridge of communication is always clear between him and patient. At the end, the saying of Francis Peabody is so true, “The secret of the care of the patient is caring for the patient”. References Tiwari S., Tiwari M., Baldwa M., Kuthe A., Textbook on Medicolegal Issues, IAP, 2007. Strauss, Dirk C., and J. Meirion Thomas. “What does the medical profession mean by “standard of care?”.” Journal of Clinical Oncology 27.32 (2009): e192-e193. Medical Malpractice VS. Negligence: What’s the Difference? by Evan Bassett on Fri, Nov 29, 2013, Bassett Law Offices LocaliRussell, et al. “Relation between malpractice claims and adverse events due to negligence: results of the Harvard Medical Practice Study III.” New England Journal of Medicine 325.4 (1991): 245-251. Which specialty, according to you, suffers from the greatest number of medical negligence trial Medical negligence” and “malpractice”
“Medical negligence” and “malpractice” are used frequently. In general, these two terms have been used interchangeably, whereas, in legal aspect they have a subtle difference in the definition of these two terms. A knowledge of this difference may often lessen the legal burden for an accused doctor. A medical negligence in not always intentional and always tried at civil court whereas malpractice cases can come under criminal negligence and can land you up in a criminal court. Definition of Negligence, Malpractice and standard of care Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. In tort law, negligence applies to harm caused by carelessness, not intentional harm. Malpractice is a type of negligence; it is often called “professional negligence”. It occurs when a licensed professional (like a doctor, lawyer or accountant) fails to provide services as per the standards set by the governing body (“standard of care”), subsequently causing harm to the plaintiff. Standard of care means an ordinary competent person exercising ordinary skill in that particular profession. There is no medical definition for standard of care, although the term is firmly established by law and is defined as “the caution that a reasonable person in similar circumstances would exercise in providing care to a patient.” The same “standard of care” is applicable to hospitals as to individual physicians with the difference that liability of the hospital is a corporate liability and the hospital is accountable and responsible for an act of negligence of its staff. The Difference between the Two These two terms are often used interchangeably but as per legal concepts, though they are related, have different meanings. Medical malpractice is a subcategory of negligence. The two terms are connected by a third: negligence is a category in between medical malpractice and medical negligence. The key word in all three of these categories is “intent”. That word alone defines the three categories in vastly different ways. Medical negligence is the lack of action by a medical professional, often “without intent”; negligence can be done either with or without intent, and medical malpractice is done “with intent to harm”. How negligence or malpractice are proved Cases of negligence or malpractice are generally difficult to prove, as it is taken that no medical practitioner has a “harmful” intent towards a patient. To win a favorable judgment, a clear causal relationship must be established between the negligent act and the injury caused. There are four elements to proving both negligence and malpractice: Duty: The defendant had a duty or an obligation to the plaintiff. General duties to be discharged by doctors are: A duty of care in deciding whether to undertake the case A duty of care in deciding what treatment to give A duty of care in the administration of that treatment Breach: The defendant breached this duty. When a medical practitioner commits a breach of duty, the immunity he enjoys, turns to be a cause for calling judicial interference, giving a right of action for negligence to the patient in the last resort. Causation: The harm suffered by the plaintiff was a direct result of this breach of duty. Damages: The damages being sought are directly related to the harm caused. Special damages: Directly correlated to the injury or harm and have a specific money amount that can be established (e.g., via medical bills) General damages: More difficult to put a monetary figure to emotional damages e.g., pain and emotional suffering. Punitive damages: Imposed by the court in rare cases when the negligence was gross (extreme). This is rare because negligence, by its nature, is unintentional. Although these elements are of similar nature in the both negligence and malpractice categories, they are distinguished on the basis of the keyword “intent”. Civil versus criminal It is claimed that negligence is negligence and jurisprudentially no clear distinction can be drawn between negligence under civil law and negligence under criminal law. In general, it is the amount of damage incurred which is determinative of the extent of liability in tort; but in criminal law, it is not the amount of damage but the amount of degree of negligence that is determinative of liability. There is no absolute immunity against criminal prosecution and therefore, if a need arises, following guidelines are to be followed. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam’s test (A test that arose from English tort law, which is used to assess medical negligence) to the facts collected in the investigations. A doctor accused of rashness or negligence, may not be arrested in a routine manner. A physician should preferably be booked under bailable IPC 304A (Unintentional medical negligence) rather than non-bailable IPC 304 (Intentional negligence), as physicians are supposed to treat their patient in “good faith”. Examples To exemplify the difference between negligence and medical malpractice, it is beneficial to exemplify the category of general professional negligence as well, as negligence is the central aspect of the spectrum between the two respective sides. An example of negligence would be in the case of a driver who texts while at the wheel. Because the driver is distracted with his cell phone, they do not see the car that is driving ahead of them, and they cause an accident. In this case, negligence of attention to the road caused the accident, thus, the driver became a danger to others. His negligence and lack of attention would be proven as the cause. While negligence may or may not be attached by intent, medical negligence is negligence in the medical field without intent. Common examples are A failure of diagnostic revision Failure to warn patients of the risk of treatment Failure to treat a patient Wrongful diagnosis If a medical practitioner takes reasonable care and follows the laid down standard of care, he cannot be held liable. Following are the reasons for which a doctor cannot be sued for medical negligence: Difference in opinion Error in judgment Patient not getting cured despite correct treatment Operation not being successful without any negligence on the part of surgeon On the other hand, with the mistakes of medical negligence in mind, medical malpractice includes the opposite of mistake: a bad (mal) or wrongful “intent”. In medical negligence the doctor simply fails to do something that should have been done, on the contrary, doctors who commit malpractice, perform their job in a way that is not the accepted standard of care leading to serious injury or death. Examples of medical malpractice are those in which the doctor does not perform their duties to the legal medical standards. Such acts include: Wrongful death Mistake during childbirth Error in anesthesia Surgical errors due to the negligence of not abiding by the “standard of care” laid down by recent guidelines. General factors that protect from medical negligence Factors likely to prevent an initiation of litigation against doctors are listed below: Creating an environment that engenders trust. An environment where patient feels like being cared, heard, and respected by the doctor and his staff is essential to building a trust on their recommendations. Doctors having a valid insight regarding their own abilities and limitation. Handling the patient as per his credibility and an appropriate referral as and when needed can save them from an untoward event. Clear and adequate communication between patient, staff, and doctors: Good maintenance of medical records Encouraging patients to maintain their own medical records Encouraging patients to bring written lists of their concerns, medications, and issues they wish to discuss Giving written instructions to patients regarding recommended treatment Sending letters to patients summarizing the results of the patient visit, with copies of letter to consultants (To be mostly done by hospital administration) “A stitch in time saves nine”, this adage is a good reminder that how a proper preventive preparation can save physicians from landing into litigation trouble in future. Doctors who truly care for their patients will not ever want to treat them inappropriately, and will not want to harm them by exceeding their capability or giving them the unrealistic outcome of the treatment. They will always ensure the bridge of communication is always clear between him and patient. At the end, the saying of Francis Peabody is so true, “The secret of the care of the patient is caring for the patient”. References Tiwari S., Tiwari M., Baldwa M., Kuthe A., Textbook on Medicolegal Issues, IAP, 2007. Strauss, Dirk C., and J. Meirion Thomas. “What does the medical profession mean by “standard of care?”.” Journal of Clinical Oncology 27.32 (2009): e192-e193. Medical Malpractice VS. Negligence: What’s the Difference? by Evan Bassett on Fri, Nov 29, 2013, Bassett Law Offices Localio, A. Russell, et al. “Relation between malpractice claims and adverse events due to negligence: results of the Harvard Medical Practice Study III.” New England Journal of Medicine 325.4 (1991): 245-251. Which specialty, according to you, suffers from the greatest number of medical negligence trials? *Disclaimer: The legal information provided in this article in the form of case examples, solutions are, at best, of a general nature to provide an outline and cannot substitute for the advice of a licensed legal professional. Nothing in this article should be construed as an attempt to offer or render a legal opinion or otherwise engage in the practice of law. ls?
Medico Legal General Medicine
Criminal Liabilities in Medical Profession
Ignorance of the law is never an excuse especially when it comes to the medical profession, the doctors are under tremendous pressure to perform at the best of their ability and follow the lawsuit in general as their performance reflects if the patient would be cured or saved. They have certain civil and criminal responsibilities.
But, the double-edged sword of treatment burden, death of a patient, and medical errors are always hanging above the head of doctors. The doctors have to outperform and exceed their expectations but the truth lies within that the death can never be controlled by anyone.
If found guilty, doctors are criminally liable under these circumstances:
A] Evidence and Record:
Section number
Actual Act
Explanation
174
Non-attendance in the obedience of an order from a doctor
A doctor is legally bound to appear in court or in front of the magistrate if he/she is in relation with that case. Failure to do so could be found guilty under this section.
175
Failure to produce the document by the legally bounded person
A doctor is bound to produce all documents (e.g. medical reports or treatment record) in case of the medico-legal case. Failure to do so can result in the offence of laws under this section.
176
Omission to provide notice or information to public servant by legally bounded person
A doctor is bound to inform police about the medico legal, murder case, or a rape case which is admitted in their dispensary or hospital. If he/she fails to do so they are then liable under this section
187
Not assisting the public servant when bound by the law to provide the required assistance
A doctor if he/she fails to treat a patient or public servant allotted to him, then the doctor is guilty under this section.
192
Fabricating false evidence
A doctor or a medical professional in any circumstance produces false evidence, makes a false entry in the book, false statement, then he is criminally liable under this act.
197
Issuing or signing a false certificate
A doctor in any way is not allowed to issue or sign a certificate which is intentionally constructed for a false manner.
470
Forged document or electronic record
A document which is made partly or completely by forgery is legally not allowed in the court of law and such acts will be liable under this section
471
Using a forged document as a genuine document
Doctors at any cost are not allowed to utilize forged documents like an original document for whatever reason, in such cases he/she is liable under this section
B] Laws on Public Health, Safety and Drugs:
Section number
Actual Act
Explanation
269
Negligence resulting in the spread of infectious diseases
The medical professionals are liable to follow strict standards which are set for treating patients under the guidelines and protocols especially for dangerous diseases like AIDS, Hepatitis etc.
270
Malignancy resulting into the spread of infectious diseases
The medical professionals are not allowed to act malignantly in any case, such acts would be strictly taken into action under this section
274
Drug Adulteration
The medical professionals aren’t allowed to adulterate any medical preparation which arbitrarily affects the efficiency and safety of the drug rendering it useless. If found guilty, such professionals are liable under this act.
276
Sale of drugs as a different drug or preparation
The medical practitioners aren’t allowed to retail drugs with their own formulation. All drugs which are liable to sale should be duly approved by the regulatory authorities. If found liable such individuals would have to face stern action under this section.
278
Making the work atmosphere unreliable to work
The medical practitioner caught violating the norms of the general practice that intoxicates the work environment on a large scale are liable under this act.
284
Negligence while handling a poisonous substance
If the medical practitioner, due to any unforeseen reason is involved in providing a poisonous or toxic substance to the patient which can endanger the life, such practitioners are liable under this section.
287
Negligence in handling medical devices
The medical practitioner needs to be very careful while handling medical devices, if any sort of negligence occurs in any circumstance it could lead to serious complications under this section.
C] Laws in relation to endangering life:
Section number
Actual Act
Explanation
336
Endangering the life or personal safety of others
Act performed with negligent intentions which proceeds to endanger their life or personal safety.
337
Hurting life or personal safety of others
A procedure performed which harms human life or personal safety.
338

Hurting grievously or personal safety of others
An act which is responsible for grievously hurting someone which proceeds to endanger their life or personal safety
D] Laws in relation to indoor patients:
Section number
Actual Act
Explanation
340
Wrongful confinement
A medical practitioner is not allowed to wrongfully restrain a person from his/her rights in a manner as to limit the medical proceedings further. It is totally unlawful to confine a person, withhold discharge for any given reason or withhold handing of the dead body due to payment disputes.
E] Laws governing death due to negligence:
Section number
Actual Act
Explanation
304-A
Causing death due to negligence
The medical practitioner who is found guilty of causing death due to medical negligence can be punished with imprisonment of either description for a term which may extend to two years, or with fine, or both. In this section, the Supreme Court of India is of the view that the situation should be very carefully analyzed while imposing criminal offences on doctors under this section.
Finally, it needs to be remembered that establishing a strong doctor-patient relationship could assist in many ways. In any case, more time you spend with your patient in your consulting room, it might reduce your time in the courtroom.
Do you think, criminal liabilities be included in the medical curriculum for avoiding lawsuits?
Medico legal Judgement in favor of doctors
Finally, a Loud Voice in favor of Doctors. Most medicolegal
complaints are personality based rather than issue based.
‎While we do our technical and moral best to treat us
patients, we must develop the art of sympathetic and deft
handling of patients’ relatives so that they are constantly
informed and should see that we are doing our best. When there is
a doubt in their mind OR there is a lack of adequate
communication from the doctor then medicolegal complains arise in
the face of an adverse event.
NEW DELHI: The Supreme Court has held that doctors cannot be
“unnecessarily harassed” by patients or their claimants to
extract compensation for death or disability due to alleged
medical negligence.
A bench of Justices Dalveer Bhandari and H S Bedi said on
Wednesday that it was the bounden duty of society to ensure that
doctors perform their duties without apprehension of malicious
prosecution though the interests of the patients should be
paramount.
“The medical practitioners at times also have to be saved from
such a class of complainants who use criminal process as a tool
for pressurizing the medical professionals/hospitals,
particularly private hospitals or clinics, for extracting
uncalled for compensation. Such malicious proceedings deserve to
be discarded against the medical practitioners,” Justices
Bhandari writing the judgement said.
The apex court made the remarks while dismissing the Rs. 45-lakh
compensation claim of Kusum Latha, widow of R K Sharma, Senior
Operations Manager in Indian Oil Corporation’s Marketing Division
who, according to the claimants, died due to negligence committed?
by the doctors of Batra Hospital and Medical Research Centre.
Sharma died on October 11, 1990, of ‘pyogenic meningitis’ after
doctors at the hospital performed a surgery to remove an
encapsulated malignant tumor in the left adrenal on the
abdominal side which involved a complicated procedure. Kusum
Latha moved the National Consumer Disputes Redredssal Commission
(NCDRC) with a plea for Rs. 45 lakh compensation charging that the
death occurred due to medical negligence. The Commission, after
examining various records, dismissed the widow’s plea, after
which she moved the apex court. The apex court too, after perusal
of the records and hearing the parties, noted that in the present
case Kusum Latha could not establish the charge of negligence.
Citing a number of its earlier judgements, the apex court said
medical professionals are entitled to protection so long as they
perform their duties with reasonable skill and competence and in
the interest of patients. “The interest and welfare of the
patients have to be paramount for medical professionals. Doctors
in complicated cases have to take a chance even if the rate of
survival is low.”
The professionals should be held liable for his act or omission
but courts, at the same time, have to be extremely careful to
ensure that professionals are not unnecessarily harassed and they
are able to carry out their professional duties without fear, the
apex court said.
According to the apex court, the normal human tendency is to pick
fault whenever there is a death in the family for which the
doctor cannot be made a scapegoat. “It is a matter of common
knowledge that after some unfortunate event, there is a marked
tendency to look for a human factor to blame for an untoward
event, a tendency which is closely linked with the desire to
punish. Things have gone wrong and, therefore, somebody must be
found to answer for it.
“A professional deserves total protection. The Indian Penal Code
has taken care to ensure that people who act in good faith should
not be punished. Sections 88, 92 and 370 of the Indian Penal Code
give adequate protection to the professional and particularly
medical professionals,” the bench said.
The apex court said 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.
However, it clarified that “We should not be understood to have
held that doctors can never be prosecuted for medical negligence.
As long as the doctors have performed their duties and exercised
an ordinary degree of professional skill and competence, they
cannot be held guilty of medical negligence
MENTAL HEALTH ACT 1987
THE MENTAL HEALTH ACT, 1987
(No. 14 of 1987)1
[22nd May, 1987]
An Act to consolidate and amend the law relating to the treatment and care of mentally
ill persons, to make better provision with respect to their properly and affairs and for
matters connected therewith or incidental thereto.
STATEMENT OF OBJECTS AND REASONS OF ACT 14 of 19872

  1. The attitude of the society towards persons afflicted with mental illness has
    changed considerably and it is now realized that no stigma should be attached to
    such illness as it is curable, particularly, when diagnosed at an early stage. Thus the
    mentally ill persons are to be treated like any other sick persons and the
    environment around them should be made as normal as possible.
  2. The experience of the working of Indian Lunacy Act, 1912 (4 of 1912) has
    revealed that it has become out-moded. With the rapid advance of medical science
    and the understanding of the nature of malady, it has become necessary to have
    fresh legislation with provisions for treatment of mentally ill persons in accordance
    with the new approach.
  3. It is considered necessary –
    i. to regulate admission to psychiatric hospitals or psychiatric nursing homes
    of mentally ill-persons who do not have sufficient understanding to seek
    treatment on a voluntary basis, and to protect the rights of such persons
    while being detained;
    ii. To protect society from the presence of mentally ill persons who have
    become or might become a danger or nuisance to others;
    iii. To protect citizens from being detained in psychiatric hospitals or
    psychiatric nursing homes without sufficient cause;
    iv. To regulate responsibility for maintenance charges of mentally ill persons
    who are admitted to psychiatric hospitals or psychiatric nursing homes;
    v. To provide facilities for establishing guardianship or custody of mentally ill
    persons who are incapable of managing their own affairs;
    vi. To provide for the establishment of Central Authority and State Authorities
    for Mental Health Services;
    vii. To regulate the powers of the Government for establishing, licensing and
    controlling psychiatric hospitals and psychiatric nursing homes for mentally
    ill persons;
    viii. To provide for legal aid to mentally ill persons at State expense in certain
    cases.
  4. The main object of the Bill is to implement the aforesaid proposals.
    COMMENTS
    It is well settled that when the language of the statute is clear and admits of no ambiguity,
    recourse to the Statement of Objects and Reasons for the purpose of construing a
    statutory provision is not permissible. Court must strive to so interpret the statute as to
    protect and advance the object and purpose of the enactment. Any narrow or technical
    interpretation of the provisions would defeat the legislative policy. The Court must,
    therefore, keep the legislative policy in mind in applying the provisions of the Act to the
    facts of the case2.
    The law is well settled that though the Statement of objects and Reasons accompanying a
    legislative bill could not be used to determine the true meaning and effect of the
    substantive provisions of a statute, it was permissible to refer to the same for the purpose
    of understanding the background, the antecedent state of affairs, the surrounding
    circumstances in relation to the statute, and the evil which the statute sought to remedy3.
    PREAMBLE – It is established law that preamble discloses the primary intention of the
    statute but does override the express provisions of the statute4. Although a preamble of a
    statute is a key to interpretation of the provisions of the Act, but the intention of
    Legislature is not necessarily to be gathered from the preamble taken by itself, but to be
    gathered from the provisions of the Act. Where the language of the Act is clear, the
    preamble cannot be a guide, but where the object or meaning of the provisions of the Act
    is not clear then an aid from the preamble can be taken into consideration for purpose of
    explaining the provisions of the Act5.
    It is now well settled that the preamble of a statutory instrument cannot control the
    express clear language and sweep of the operating provisions of such an instrument. Nor
    can the express language of a statutory provision be curtailed or read down in the light of?
    the preamble in the absence of any ambiguity in the enacted provisions6.
    Be it enacted by Parliament in the Thirty-eighth Year of the Republic of India as follows:
    CHAPTER 1
    PRELIMINARY
  5. SHORT TITLE, EXTENT AND COMMENCEMENT –
  6. This Act may be called the Mental Health Act, 1987.
  7. It extends to the whole of India
  8. It shall come into force on such date1 as the Central Government may, by
    notification, appoint and different dates may be appointed for different
    States and for different provisions of this Act, and any reference in any
    provision to the commencement of this Act in a State shall be construed as
    a reference to the coming into force of that provision in that state.
    COMMENTS
    The Act repeals the Indian Lunacy Act, 1912 (4 of 1912), and the Lunacy Act, 1977
    (Jammu and Kashmir Act 25 of 1977). The provisions of the Indian Lunacy Act 1912 and
    the Amending Act which compendiously called Lunacy Act, 1912-1926 were not
    absolutely exhaustiv2.
    S.O. 43 (E), DATED 11TH JANUARY, 1993 – In exercise of the powers conferred by
    sub-section (3) of Sec. 1 of the Mental Health Act, 1987 (14 of 1987), the Central
    Government hereby appoints the Ist day of April, 1993 as the date on which the said Act
    shall come into force in all the States and Union Territories.
    RULE OF INTERPRETATION. – It is an accepted proposition of law that Acts must be
    construed as a whole. Guidance with regard to the meaning of a particular word or phrase
    may be found in other words and phrases in the same section or in other sections although
    the utility of an extensive consideration of other parts of the same statute will vary from
    case to case3.
    In interpreting the provisions, the exercise undertaken by the Court is to make explicit the
    intention of the Legislature which enacted the legislation. It is not for the Court to reframe
    the legislation for the very good reason that the powers to “legislate” have not been
    conferred on the Court4.
    In order to sustain the presumption of constitutionality of a legislative measure, the Court
    can take into consideration matters of common knowledge, matters of common report, the
    history of the times and also assume every state of fact which can be conceived existing at
    the time of the legislation5.
    The principle of the interpretation that no word used by the Legislature in a legislation is
    useless, cannot be fitted into the situation where the question relates to the interpretation
    of an agreement. An agreement is not to be culled out from ambiguity6.
    INTERPRETATION OF STATUTE-DUTY OF THE COURT – It is well settled that the
    Courts should read different provisions of an Act in a manner that no part thereof is held
    to be superfluous or surplus and that where language of statute leads to manifest
    contradictions the Court must construe them on the basis of which the said provisions can
    survive1.
    GENERALIA SPECIALIBUS NON DEROGANT- It is well-known proposition of law that
    when a matter falls under any specific provision, then it must be governed by that
    provision and not by the general provision (Generalia specialibus non derogant)2.
    CONSTRUCTION OF WORK- It is settled view that in determining the meaning or
    connotation of words and expressions describing an article one should be construed in the
    sense in which they are understood. The reason is that it is they who are concerned with it
    and, it is the sense in which they understand it which constitutes the definitive index of the
    legislative intention3.
  9. DEFINITIONS
    In this Act, unless the context otherwise requires –
    a. “cost of maintenance”. In relation to a mentally ill person admitted in a
    psychiatric hospital or psychiatric nursing home, shall mean the cost of
    such items as the State Government may, by general or special order,
    specify in this behalf;
    b. “District Court” means, in any area for which there is a city Civil Court,
    that Court, and in any other area the principal Civil Court of original
    jurisdiction, and includes any other Civil Court which the State
    Government may, by notification, specify as the Court competent to deal
    with all or any of the matters specified in this Act:
    c. “Inspecting Officer” means a person authorized by the State Government or
    by the licensing authority to inspect any psychiatric hospital or psychiatric
    nursing home;
    d. “license” means a license granted under Sec.8;
    e. “licensee” means the holder of a license;
    f. “licensed psychiatric hospital” or “licensed psychiatric nursing home”
    means a psychiatric hospital or psychiatric nursing home, as the case may
    be, licensed, or deemed to be licensed, under this Act;
    g. “licensing authority” means such officer or authority as may be specified by
    the State Government to be the licensing authority to the purposes of this
    Act;
    h. “Magistrate” means –
  10. in relation to a metropolitan area within the meaning of Cl (k) of
    Sec. 2 of the Code of Criminal Procedure, 1973 (2 of 1974), a
    Metropolitan Magistrate;
  11. in relation to any other area, the Chief Judicial Magistrate, Sub-
    Divisional Judicial Magistrate or such other Judicial Magistrate of
    the first class as the State Government may, by notification,
    empower to perform the functions of a Magistrate under this Act:
    i. “medical officer” means a gazette medical officer in the service of
    Government and includes a medical practitioner declared, by a general or
    special order of the State Government, to be a medical officer for the
    purposes of this Act;
    j. “medical officer in charge” in relation to any psychiatric hospital or
    psychiatric nursing home, means the medical officer who, for the time
    being, is in charge of that hospital or nursing home;
    k. “medical practitioner” means a person who possesses a recognized medical
    qualification as defined –
    i. in Cl (h) of Sec 2 of the Indian Medical Council Act, 1956 (102 of
    1956), and whose name has been entered in the State Medical
    Register, as defined in Cl. (k) of that section;
    ii. in Cl (h) of sub-section (1) of Sec. 2 of the Indian Medicine Central
    Council Act, 1970 (48 of 1970), and whose name has been entered
    in a State Register of Indian Medicine, as defined in cl (j) of subsection
    (1) of that section; and
    iii. in Cl. (g) of sub-section (1) of Sec. 2 of the Homoeopathy Central
    Council Act, 1973 (59 of 1973), and whose name has been entered
    in a State Register of Homoeopathy, as defined in Cl. (I) of subsection
    1) of that section;
    l. “Mentally ill person” means a person who is in need of treatment by person
    of any mental disorder other than mental retardation;
    m. “mentally ill prisoner” means a mentally ill person for whose detention in,
    or removal to, a psychiatric hospital, psychiatric nursing home, jail or other
    place of safe custody, an order referred to in Sec. 27 has been made;
    n. “minor” means a person who has not completed the age of eighteen years;
    o. “notification means a notification published in the Official Gazette;
    p. “prescribed” means prescribed by rules made under this Act;
    q. “psychiatric hospital” or “psychiatric nursing home” means a hospital, or as
    the case may be, a nursing home established or maintained by the
    Government or any other person for the treatment and care of mentally ill
    persons and includes a convalescent home established or maintained by the
    Government or any other person for such mentally ill persons; but does not
    include any general hospital or general nursing home established or
    maintained by the Government and which provides also for psychiatric
    services;
    r. “psychiatrist” means a medical practitioner possessing a post-graduate
    degree or diploma in psychiatry, recognized by the Medical Council of
    India, constituted under Indian Medical Council Act, 1856 (102 of 1956),
    and includes, in relation to any State, any medical officer who, having
    regard to his knowledge and experience in psychiatry, has been declared by
    the Government of that State to be a psychiatrist for the purposes of this
    Act;
    s.” reception order” means an order made under the provision of this Act for
    the admission and detention of a mentally ill person in a psychiatric
    Hospital or psychiatric nursing home;
    t.” relative” includes any person related to the mentally ill person by blood,
    marriage or adoption;
    u. “State Government” in relation to a Union territory, means the
    Administrator thereof.
    COMMENTS
    This section defines the various expressions occurring in the Act.
    INTERPRETATION OF SECOTION – The Court can merely interpret the section; it
    cannot re-write, recast or redesign the section1.
    RELATIVE – MEANING OF -certainly the word “relative” used in Sec. 3 of the Lunacy
    Act (since repealed by this Act) has to be understood in a legal sense and it has to be
    understood in the setting where that word is used in the provisions of the statute,
    particularly, the provision enabling a relative to entertain a petition under Sec. 63 of the
    Lunacy Act2.
    CHAPTER II
    MENTAL HEALTH AUTHORITIES
  12. CENTRAL AUTHORITY FOR MENTAL HEALTH SERVICES.
    . The Central Government shall establish an authority for mental health with
    such designation as it may deem fit.
    a. The Authority established under sub-section (1) shall be subject to the
    superintendence, direction and control of the Central Government.
    b. The authority established under sub-section (1) shall –
  13. be in charge of regulation, development, direction and coordination
    with respect to Mental Health Services under the Central
    Government and all other matters which, under this Act, are the
    concern of the Central Government or any officer or authority
    subordinate to the Central Government.
  14. Supervise the psychiatric hospitals and psychiatric nursing homes
    and other Mental Health Service Agencies (including places in
    which mentally ill persons may be kept or detained) under the?
    control of the Central Government.
  15. Advise the Central Government on all matters relating to mental
    health; and
  16. Discharge such other functions with respect to matters relating to
    mental health as the Central Government may require.
    EXPLANATION – For the purposes of this section and Sec.4 “Mental Health
    Services” include, in addition to psychiatric hospitals and psychiatric nursing
    homes, observation wards, day-care centers, in patient treatment in general
    hospitals, ambulatory treatment facilities and other facilities, convalescent homes
    and half-way-homes for mentally ill persons.
    COMMENT
    This section empowers the Central Government to establish Central Authority for
    Mental Health Services.
    EXPLANATION- It is now well settled that an explanation added to a statutory provision
    is not a substantive provision in any sense of the term but as the plain meaning of the word?
    itself shows it is merely meant to explain or clarify certain ambiguities which may have
    crept in the statutory provision1.
  17. STATE AUTHORITY FOR MENTAL HEALTH SERVICES –
    . The State Government shall establish an authority for mental with such
    designation as it may deem fit.
    a. The Authority established under sub – section (1) shall be subject to the
    superintendence, direction and control of the State Government.
    b. The Authority established under sub – section (1) shall –
  18. be in charge of regulation, development and co-ordination with
    respect to Mental Health Service under the State Government and
    all other matters which, under this Act, the concern of the state
    Government or any officer or authority subordination to the State
    Government:
  19. supervise the psychiatric hospitals and psychiatric nursing homes
    and other Mental health Services Agencies (including places in
    which mentally ill persons may be kept or detained) under the
    control of the State Government:
  20. advise the State Government on all matters relating to mental health
    ; and
  21. discharge such other functions with respect to matters relating to
    mental health as the State Government may require.
    COMMENT
    This section empowers the State Government to established State authority for
    Mental Health services.
    CHAPTER III
    PSYCHIATRIC HOSPITALS AND PSYCHIATRIC NURSING HOMES
  22. ESTABLISHED OR MAINTENANCE OF PSYCHIATRIC
    HOSPITALSAND PSYCHIATRIC NURSING HOMES –
    . The Central Government may, in any part of India, or the state government
    may, within the limits of its jurisdiction, established or maintain psychiatric
    hospitals or psychiatric nursing homes for the admission, and
    care of mentally ill persons at such places as it thinks fit; and separate
    psychiatric hospitals and psychiatric nursing homes may be established or
    maintained for, –
    a. those who are under the age of sixteen years;
    b. those who are addicted to alcohol or other drugs which lead
    to behavioral changes in a person’s;
    c. those who have been convicted of any offence; and
    d. those belonging to such other or category of persons as may
    be prescribed.
    a. Where a psychiatric hospital or psychiatric nursing home is established or
    maintained by the Central Government, any reference in this Act to the
    State Government shall, in relation to such hospital or nursing home, be
    construed as a reference to the Central Government.
    COMMENT
    This section empowers the Central Government or the State Government to
    established or maintain psychiatric nursing homes.
  23. ESTABLISHMENT OR MAINTENANCE OF PSYCHIATRIC
    HOSPITALS OR PSYCHIATRIC NURSING HOMES ONLY WITH
    LICENCE.
    . On and after the commencement of this Act, no person shall establish or
    maintain a psychiatric hospital or psychiatric nursing home unless he holds
    a valid license granted to him under this Act:
    Provided that a psychiatric hospital or psychiatric nursing home (whether
    called asylum or by any other name) licensed by the central government or
    any state Government and maintained as such immediately before the
    commencement of this Act may continue to be maintained, and shall be
    deemed to be a licensed psychiatric hospital or licensed psychiatric nursing
    home, as the case may be, under this Act, –
    a. for a period of three months from such commencement,
    b. if an application made in accordance with Sec. 7 for a
    license is pending on the expiry of the period specified in
    CI. (a) till the disposal of such application.
    a. Nothing contained in sub-section (1) shall apply to a psychiatric hospital or
    psychiatric nursing home established or maintained by a Central
    Government or a State Government.
    COMMENT
    This section prohibits establishment or maintenance of any psychiatric hospital or
    psychiatric nursing home by any person, unless he holds a valid license granted to
    him under the Act.
  24. APPLICATION FOR LICENCE. –
    . Every person, who holds, at the commencement of this Act, a valid license
    authorizing that person to establish or maintain any psychiatric hospital or
    psychiatric nursing home, shall, if the said person intends to establish or
    continue the maintenance of such hospital or nursing home after the expiry
    of the period referred to in Cl. (a) of the proviso to sub-section (1) of Sec.
    6, make at least one month before the expiry of such period, an application
    to the licensing authority for the grant of a fresh license for the
    establishment or maintenance of such hospital or nursing home, as the case
    may be.
    a. A person, who intends to establish or maintain, after the commencement of
    this Act, a psychiatric hospital or psychiatric nursing home, shall, unless the
    said person already holds a valid license, make an application to the license
    authority for the grant of a license.
    b. Every application under sub-section (1) or sub-section (2) shall be in such
    form and be accompanied by such fee as may be prescribed.
    COMMENT
    This section provides for application for license for establishment or maintenance
    of psychiatric hospital or psychiatric nursing homes.
  25. GRANT OR REFUSAL OF LICENCE –
    On receipt of an application under Sec.7, the licensing authority shall make such
    inquiries as it may deem fit and where it is satisfied that –
    . the establishment or maintenance of the psychiatric hospital or psychiatric
    nursing home or the continuance of the maintenance of any such hospital or
    nursing home established before the commencement of this Act is
    necessary;
    a. the applicant is in a position to provide the minimum facilities prescribed
    for the admission, treatment and care of mentally ill persons; and
    b. The psychiatric hospital or psychiatric nursing home, will be under the
    charge of medical officer who is a psychiatrist.
    it shall grant a license to the applicant in the prescribed form, and where it is not so
    satisfied, the licensing authority shall, by order, refuse to grant the license applied
    for:
    Provided that, before making any order refusing to grant a license, the licensing
    authority shall give to the applicant a reasonable opportunity of being heard and
    every order of refusal to grant a license shall set out there in the reasons for such
    refusal and such reasons shall be communicated to the applicant in such manner as
    may be prescribed.
    COMMENT
    This section empowers the licensing authority to grant or refuse license for
    establishment or maintenance of psychiatric hospital or psychiatric nursing homes.
  26. DURATION AND RENEWAL OF LICENCE –
    . A license shall not be transferable or heritable.
    a. Where a licensee is unable to function as such for any reason or where a
    licensee dies, the licensee or, as the case may be, the legal representative of
    such licensee shall forthwith report the matter in the prescribed manner to
    the licensing authority and notwithstanding anything contained in subsection
    (I), the psychiatric hospital or psychiatric nursing home concerned
    may continue to be maintained and shall be deemed to be a licensed
    psychiatric hospital or licensed psychiatric nursing home, as the case may
    be –
  27. for a period of three months from the date of such report or in the
    case of the death of the licensee from the date of his death, or
  28. if an application made in accordance with sub-section (3) for a
    license is pending on the expiry of the period specified in Cl. (a), till
    the disposal of such application.
    b. The legal representative of the licensee referred to in sub-section (2) shall,
    if he intends to continue the maintenance of the psychiatric hospital or
    psychiatric nursing home after the expiry of the period referee to in subsection
    (2), make, at least one month before the expiry of such period, an
    application to the licensing authority for the grant of a fresh license for the
    maintenance of such hospital or nursing home, as the case may be, and the
    provisions of Sec. 8 shall apply in relation to such application as they apply
    in relation to an application made under Sec.7
    c. Every license shall, unless revoked earlier under Sec. 11, be valid for a
    period of five years from the date on which it is granted.
    d. A license may be renewed from time to time, on an application made in
    that behalf to the licensing authority, in such form and accompanied by
    such fee, as may be prescribed, and every such application shall be made
    not less than one year before the date on which the period of validity of the
    license is due to expire:
    Provided that the renewal of a license shall not be refused unless the licensing
    authority is satisfied that –
    e. the licensee is not in a position to provide in a psychiatric hospital or
    psychiatric nursing home, the minimum facilities prescribed for the
    admission, treatment and care therein mentally ill persons; or
    f. the licensee is not in a position to provide a medical officer which is a
    psychiatrist to take charge of the psychiatric hospital or psychiatric nursing
    home, or
    g. the licensee has contravened any of the provisions of this Act or any rule
    made thereunder.
    COMMENT
    This section empowers the licensing authority to grant or refuse license for
    establishment or maintenance of the psychiatric hospital or psychiatric nursing
    home, under certain circumstances.
  29. PSYCHIATRIC HOSPITAL AND PSYCHIATRIC NURSING HOME TO
    BE MAIN TRAINED IN ACCORDANCE WITH PRESCRIBED
    CONDITIONS –
    Every psychiatric hospital or psychiatric nursing home shall be maintained in such
    manner and object to such condition as may be prescribed.
    COMMENT
    This section lays down that every psychiatric hospital/nursing home shall be
    maintained properly according to the prescribed conditions.
  30. REVOCATION OF LICENCE –
    . The licensing authority may, without prejudice to any other penalty that
    may be imposed on the licensee, by order in writing, revoke the license if it
    is satisfied that –
  31. the psychiatric hospital or psychiatric nursing home is not being
    maintained by the licensee in accordance with the provisions of this
    Act or the rules made thereunder; or
  32. the maintenance of the psychiatric hospital or psychiatric nursing
    home is being carried on in a manner detrimental to the moral,
    mental or physical well-being of other in-patients thereof:
    Provided that no such order shall be made except after giving the licensee a
    reasonable opportunity of being heard, and every such order shall set out
    therein the grounds for the revocation of the license and such grounds shall
    be communicated to the licensee in such manner as may be prescribed.
    a. Every order made under sub-section (1) shall contain a direction that the
    in-patients of the psychiatric hospital or psychiatric nursing home shall be
    transferred to such other psychiatric hospital or psychiatric nursing home as
    may be specified in that order and it shall also contain such provisions
    (including provisions by way of directions) as to the care and custody of
    such in-patients pending such transfer. Every order made under sub-section
    (1) shall take effect –
  33. where no appeal has been preferred against such order under Sec.
    12, immediately on the expiry of the period prescribed for such
    appeal; and
  34. where such appeal has been preferred and the same has been
    dismissed, from the date of the order of such dismissal.
    COMMENT
    This section empowers the licensing authority to revoke the license in case the
    psychiatric hospital or nursing home is not maintained properly or its maintenance
    is detrimental to the well-being of the in-patients thereof.
  35. Appeal –
    . Any person aggrieved by an order of the licensing authority refusing to
    grant or renew a license, or revoking a license, may, in such manner and
    within such period as may be prescribed, prefer an appeal to the State
    Government:
    Provided that the State Government may entertain an appeal preferred after
    the expiry of the prescribed period if it is satisfied that the appellant was
    prevented by sufficient cause from preferring the appeal in time.
    a. Every appeal under sub-section (1) shall be made in such form and
    accompanied by such fee as may be prescribed.
    COMMENT
    This section makes provision for preferring an appeal to the State Government by
    any aggrieved person against the order of the licensing authority refusing to grant
    or renew a license, or revoking a license for establishment or maintenance of the
    psychiatric hospital/nursing home.
  36. INSPECTION OF PSYCHIATRIC HOSPITALS AND PSYCHIATRIC
    NURSING HOME AND VISISTING OF PATIENTS-
    . An Inspecting Officer may, at any time, enter and inspect any psychiatric
    hospital or psychiatric nursing home and require the production of any
    records, which are required to be kept in accordance with the rules made in
    this behalf, for inspection: Provided that any personal records of a patient
    so, inspected shall be kept confidential except for the purposes of subsection
    (3).
    a. The Inspecting Officer may interview in private any patient receiving
    treatment and care therein –
  37. for the purpose of inquiring into any complaint made by or on
    behalf of such patient as to the treatment and care.
  38. in any case, where the Inspecting Officer has reason to believe that
    any in-patient is not receiving proper treatment and care.
    b. Where the Inspecting Officer is satisfied that any in-patient in a psychiatric
    hospital or psychiatric nursing home is not receiving proper treatment and
    care, he may report the matter to the licensing authority and thereupon the
    licensing authority may issue such direction as it may deem fit to the
    medical officer-in-charge of the licensee of the psychiatric hospital, or, as
    the case may be, the psychiatric nursing home and every such medical
    officer-in-charge or licensee shall be bound to comply with such directions.
    COMMENT
    This section empowers an Inspecting Officer to inspect psychiatric hospitals /
    nursing homes, records thereof and to visit and interview patients receiving
    treatment and care therein.
  39. TREATMENT OF OUT- PATIENT –
    Provision shall be made in every psychiatric hospital or psychiatric nursing homes
    for such facilities as may be prescribed for the treatment of every mentally ill –
    persons, patients or who, for the time being, is not undergoing treatment as in –
    patients.
    COMMENT
    This section makes, provision for the treatment of mentally ill persons in the
    psychiatric hospital / nursing home, as an out – patients, in case his condition dies
    not warrant his admission or an in – patient.
    CHAPTER IV
    ADMISSION AND DETENTION IN PSYCHIATRIC HOSPITAL OR
    PSYCHIATRIC
    NURSING HOME
    PART I
    ADMISION ON VOLUNTARY BASIS
  40. REQUEST BY MAJOR FOR ADMISION AS VOLUNTARY PATIENTS
    Any persons (not being a minor), who considers himself to be a mentally ill person
    and desires to be admitted to any psychiatric nursing home for treatment, may
    request the medical officer in charge for being admitted as a voluntary patient.
    COMMENT
    This section makes provision for admission to a psychiatric hospital / nursing home
    for Treatment as a voluntary patient on request by a major mentally ill person.
  41. REQUEST BY GUARDIAN FOR ADMISSION OF A WARD Where
    the guardian of a minor considers such minor to be a mentally ill person and
    desires to admit such minor in any psychiatric hospital or psychiatric nursing home
    for treatment, he may request the medical officer-in-charge for admitting such
    minor as a voluntary patient.
    COMMENT
    This section makes provision for admission of a minor mentally ill person to a
    psychiatric hospital/nursing home for treatment as a voluntary patient, on request
    by guardian of such minor.
  42. ADMISSION OF, AND REGULATION WITH RESPECT
    TO, VOLUNTARY PATIENTS-
    . On receipt of a request under Sec.15 or Sec.16, the medical officer-in charge
    shall make such inquiry as he may deem fit within a period not
    exceeding twenty- four hours and if satisfied that the applicant or, as the
    case may be, the minor requires treatment as an in – patients in the
    psychiatric hospital or psychiatric nursing home, he may admit therein such
    application or, as the case may be, minor as a voluntary patient.
    a. Every voluntary patient admitted to a psychiatric hospital or psychiatric
    nursing home shall be bound to abide by such regulations as may be made
    by the medical officer – in – charge or the licensee of the psychiatric
    hospital or psychiatric nursing home.
    This section deals with the matter relating to admission of, and regulation with
    respect to voluntary patients.
  43. DISCHARGE OF VOLUNTARY PATIENTS –
    . The medical officer-in-charge of a psychiatric hospital or psychiatric
    nursing home shall, on a request made in that behalf –
  44. by any voluntary patient; and
  45. by the guardian of the patient, if he is a minor voluntary patient,
    discharge, subject to the provisions of sub-section (3) and within
    twenty-four hours of the receipt of such request, the patient from
    the psychiatric hospital or psychiatric nursing home.
    a. Where a minor voluntary patient who is admitted as an in-patient in any
    psychiatric hospital or psychiatric nursing home attains majority, the
    medical officer-in-charge of such hospital or nursing home, shall, as soon
    as may be, intimate the patient that he has attained majority and that unless
    a request for his continuance as an in-patient is made by him within a
    period of one month of such intimation, he shall be discharged, and if,
    before the expiry of the said period, no request is made to the medical
    officer-in-charge for his continuance as an in-patient, he shall, subject to
    the provisions of sub-section (3), be discharged on the expiry of the said
    period.
    b. Notwithstanding anything contained in sub-section (1) or sub-section (2)
    where the medical officer-in charge of a psychiatric hospital or psychiatric
    nursing home is satisfied that the discharge of a voluntary patient under
    sub-section (1) or sub-section (2) will not be in the interest of such
    voluntary patient, he shall, within seventy-two hours of the receipt of a
    request under sub-section (1), or, if no request under sub-section (2) has
    been made by the voluntary patient before the expiry of the period
    mentioned in that sub-section within seventy-two hours of such expiry
    constitute a Board consisting of two medical officers and seek its opinion
    as to whether such voluntary patient needs further treatment and if the
    Board is of the opinion that such voluntary patient needs further treatment
    in the psychiatric hospital or psychiatric nursing home the medical officer
    shall not discharge the voluntary patient, but continue his treatment for a
    period not exceeding ninety days at a time.
    COMMENT
    This section lays down the procedure for discharge of voluntary patient from the
    psychiatric hospital or psychiatric nursing home.
    PART II
    ADMISSION UNDER SPECIAL CIRCUMSTANCES
  46. ADMISSION OF MENTALLY ILL PERSONS UNDER CERTAIN
    SPECIAL Circumstances
    mentally ill persons who does not, or is unable to, express his willingness for
    admission as a voluntary patient, may be admitted and kept as an in-patient in a
    psychiatric nursing hospital or psychiatric nursing home on an application made in
    that behalf by a relative or a friend of the mentally ill persons if the medical
    officers-in-charge is satisfied that in the interest of the mentally ill persons it is
    necessary so to do:
    COMMENT
    This section deals with the matters relating to admission of, and regulation with
    respect to voluntary patients.
  47. DISCHARGE OF VOLUNTARY PATIENTS-
    . The medical officers-in-charge of a psychiatric hospital or psychiatric
    nursing home shall, on a request made in that behalf
  48. by any voluntary patients; and
  49. by the guardian of the patient, if he is a minor voluntary patient,
    discharge, subject to the provisions of sub-section (3) and within
    twenty-four hours of the receipt of such request, patients from the
    psychiatric hospitals or psychiatric nursing home.
    a. where a minor voluntary patient who is admitted as an in-patient in any
    psychiatric hospital or psychiatric nursing home attains majority, the
    medical officer-in- charge of such hospital or nursing home shall, as soon
    as may be, intimate the patient that he has attained majority and that unless
    a request for his continuance as an in-patient is made by him within a
    period of one month of such intimation, he shall be discharged, and if,
    before the expiry of the said period, no request is made to the medical
    officer-in-charge for his continuance as an in-patient, he shall, subject to
    the provisions of sub-section (3), be discharged on the expiry of the said
    period.
    b. Notwithstanding anything contained in sub-section (1) or sub-section (2),
    where the medical officers-in-charge of a psychiatric hospital or psychiatric
    nursing home is satisfied that the discharge of a voluntary patients under
    sub-section (1) or sub-section (2) will not be in the interest of such
    voluntary patient, he shall, within seventy-two hours of the receipt of a
    request under sub-section (1) or, if no request under sub-section (2) has
    been made by the voluntary patient before the expiry of the period
    mentioned in that sub-section within seventy-two hours of such expiry
    constitute a Board consisting of two medical officers and seek its opinion
    as to whether such voluntary patient needs further treatment and if the
    Board is of the opinion that such voluntary patient needs further treatment
    in the psychiatric hospital or psychiatric nursing home the medical officer
    shall not discharge the voluntary patient, but continue his treatment for a
    period not exceeding ninety days at a time.
    COMMENT
    This section lays down the procedure for discharge of voluntary patient from the
    psychiatric hospital or psychiatric nursing home.
    PART II
    ADMISSION UNDER SPECIAL CIRCUMSTANCES
  50. ADMISSION OF MENTALLY ILL PERSONS UNDER CERTAIN
    SPECIAL CIRCUMSTANCES-
    . Any mentally ill person who does not, or is unable to, express his
    willingness for admission as a voluntary patient, may be admitted and kept
    as an in-patient in a psychiatric hospital or psychiatric nursing home on an
    application made in that behalf by a relative or a friend of the mentally ill
    person if the medical officer-in-charge is satisfied that in the interests of the
    mentally ill person it is necessary so to do;
    Provided that no person so admitted as an in-patient shall be kept in the
    psychiatric hospital or psychiatric nursing home as an in-patient for a
    period exceeding ninety days except in accordance with the other
    provisions of the Act.
    a. Every application under sub-section (1) shall be in the prescribed form and
    be accompanied by two medical certificates, from two medical practitioners
    of whom one shall be a medical practitioner in the service of Government,
    to the effect that the condition of such mentally ill person is such that he
    should be kept under observation and treatment as an in-patient in a
    psychiatric hospital or psychiatric nursing home;
    Provided that the medical officer, in charge of the psychiatric hospital or
    psychiatric nursing home concerned may, if satisfied that it is proper so to
    do, cause a mentally ill person to be examined by two medical practitioners
    working in the hospital or in the nursing home instead of requiring such
    certificates.
    b. Any mentally ill person admitted under sub-section (1) or his relative or
    friend may apply to the Magistrate for his discharge and the Magistrate
    may, after giving notice to the person at whose instance he was admitted to
    the psychiatric hospital or psychiatric nursing home and after making such
    inquiry as he may deem fit either allow or dismiss the application.
    c. The provisions of the foregoing sub-section shall be without prejudice to
    the powers exercisable by a Magistrate before whom the case of a mentally
    ill person is brought, whether under this section or under any other
    provision of this Act, to pass a reception order, if he is satisfied that it is
    necessary so to do in accordance with the relevant provision of this Act.
    COMMENT
    This section makes provision for admission of mentally ill persons to a psychiatric
    hospital/nursing home, under special circumstances. No person shall however be
    kept there as in-patient for a period exceeding ninety days, except in accordance
    with the other provisions of this Act.
    PART III
    RECEPTION ORDERS
  51. APPLICATION FOR RECEPTION ORDER
    . An application for a reception order may be made by –
  52. the medical officer-in-charge of a psychiatric hospital or psychiatric
    nursing home, or
  53. by the husband, wife or any other relative of the mentally ill person.
    a. Where a medical officer-in-charge of a psychiatric hospital or psychiatric
    nursing home in which a mentally ill- person is undergoing treatment under
    a temporary treatment order is satisfied that –
  54. the mentally ill person is suffering from mental disorder of such a
    nature and degree that his treatment in the psychiatric hospital or as
    the case may be, psychiatric nursing home is required to be
    continued for more than six months, or
  55. It is necessary in the interests of the health and personal safety of
    the mentally ill person or for the protection of others that such
    person shall be detained in a psychiatric hospital or psychiatric
    nursing home.
    He may make an application to the Magistrate within the local limits of
    whose jurisdiction the psychiatric hospital or, as the case may be,
    psychiatric nursing home is situated, for the detention of such mentally ill person
    under a reception order in such psychiatric hospital or psychiatric
    nursing home, as the case may be.
    b. Subject to the provisions of sub-section (5), the husband or wife of a
    person who is alleged to be mentally ill or, where there is no husband or
    wife, or where the husband or wife is prevented by reason of any illness or
    absence from India or otherwise from making the application, any other
    relative of such person may make an application to the Magistrate within
    the local limits of whose jurisdiction the said person ordinarily resides, for
    the detention of the alleged mentally ill-person under a reception order in a
    psychiatric hospital or psychiatric nursing home.
    c. Where the husband or wife of the alleged mentally ill person is not the
    applicant, the application shall contain the reasons for the application not
    being made by the husband or wife and shall indicate the relationship of the
    applicant with the alleged mentally ill person and the circumstances under
    which the application is being made.
    d. No person –
  56. who is a minor, or
  57. who, within fourteen days before the date of the application, has
    not seen the alleged mentally ill person, shall make an application
    under this section.
    e. Every application under sub-section (3) shall be made in the prescribed
    form and shall be signed and verified in the prescribed manner and shall
    state whether any previous application had been made for inquiry into the
    mental condition of the alleged mentally ill person and shall be
    accompanied by two medical certificates from two medical practitioners of
    whom one shall be a medical practitioner in the service of Government.
    COMMENT
    This section details the procedure for disposal of application for reception order.
  58. FORM AND CONTENTS OF MEDICAL CERTIFICATES –
    Every medical certificate referred to in sub-section (6) of Sec. 20 shall contain a
    statement –
    . that each of the medical practitioner referred to in that sub-section has
    independently examined the alleged mentally ill person and has formed his
    opinion on the basis of his own observations and from the particulars
    communicated to him;
    a. that in the opinion of each such medical practitioner the alleged mentally ill
    person is suffering from mental disorder of such a nature and degree as to
    warrant the detention of such person in a psychiatric hospital or psychiatric
    nursing home and that such detention is necessary in the interests of the
    health and personal safety of that person or for the protection of others.
    COMMENTS
    The section prescribes form and contents of medical certificates.
  59. PROCEDURE UPON APPLICATION FOR RECEPTION ORDER
    . on receipt of an application under sub-section (2) of Sec. 20, the
    Magistrate may make a reception order, if he is satisfied that –
  60. the mentally ill person is suffering from mental disorder of such a
    nature and degree that it is necessary to detain him in a psychiatric
    hospital or psychiatric nursing home for treatment; or
  61. it is necessary in the interests of the mental and personal safety of
    the mentally ill person or for the protection of others that he should
    be so detained, and a temporary treatment order would not be
    adequate in the circumstances of the case and it is necessary to
    make a reception order.
    a. On receipt of an application under sub-section
    b. of Section.20, the Magistrate shall consider the statements made in the
    application and the evidence of mental illness as disclosed by the medical
    certificates.
    c. If the Magistrate considers that there are sufficient grounds for proceeding
    further, he shall personally examine the alleged mentally ill person unless,
    for reasons to be recorded in writing, he thinks that it is not necessary or
    expedient to do so.
    d. If the Magistrate is satisfied that a reception order may properly be made
    forthwith, he may make such order, and if the Magistrate is not so satisfied,
    he shall fix a date for further consideration of the application and may make
    such inquiries concerning the alleged mentally ill-person as he thinks fit.
    e. The notice of the date fixed under sub-section (4) shall be given to the
    applicant and to any other person to whom, in the opinion of the
    Magistrate such notice shall be given.
    f. If the Magistrate fixes a date under sub-section (4) for further
    consideration of the application, he may make such order as he thinks fit,
    for the proper care and custody of the alleged mentally ill person pending
    disposal of the application.
    g. On the date fixed under sub-section (4), or on such further date as may be
    fixed by the Magistrate, he shall proceed to consider the application in
    camera, in the presence of –
  62. the applicant:
  63. the alleged mentally ill person (unless the Magistrate in his
    discretion otherwise directs);
  64. the person who may be appointed by the alleged mentally ill person
    to represent him; and
  65. Such other person as the Magistrate thinks fit.
    and if the magistrate is satisfied that the alleged mentally ill person,
    in relation to whom the application is made, is so mentally ill that in
    the interests of the health and personal safety of that person or for
    the protection of others it is necessary to detail him in a psychiatric
    hospital or psychiatric nursing home for treatment, he may pass a
    reception order for that purpose and if he is not so satisfied, he shall
    dismiss the application and any such order may provide for the
    payment of the costs of the inquiry by the applicant personally or
    from out of the estate of the mentally ill person, as the Magistrate
    may deem appropriate.
    h. If any application is dismissed under sub-section (7), the Magistrate shall
    record the reasons for such dismissal and a copy of the order shall be
    furnished to the applicant.
    COMMENT
    This section lays down the procedure for disposal of application for a reception
    order.
    B- Reception orders on production of mentally ill Persons before Magistrate
  66. POWERS AND DUTIES OF POLICE OFFICERS IN RESPECT OF
    CERTAIN MENTALLY ILL PERSONS –
    . Every officer in charge of a police station –
  67. may take or cause to be taken into protection any person found
    wandering at large within the limits of his station whom he has
    reason to believe to be so mentally ill as to be incapable of taking
    care of himself, and
  68. shall take or cause to be taken into protection any person within the
    limits of his station whom he has reason to believe to be dangerous
    by reason of mental illness.
    a. No person taken into protection under sub-section (1) shall be detained by
    the police without being informed, as soon as may be, of the grounds for
    taking him into such protection, or where, in the opinion of the officer
    taking the person into protection, such person is not capable of
    understanding those grounds, without his relatives or friends, if any, being
    informed of such grounds.
    b. Every person who is taken into protection and detained under this section
    shall be produced before the nearest Magistrate within a period of twenty-four
    hours of taking him into such protection excluding the time necessary
    for the journey from the place where he was taken into such protection of
    the Court of the Magistrate and shall not be detained beyond the said
    period without the authority of the Magistrate.
    COMMENT
    This section empowers the police officer in charge of a police station to take action
    in respect of certain mentally ill persons.
  69. PROCEDURE ON PRODUCTION OF MENTALLY ILL PERSON-
    . If a person is produced before the Magistrate under sub-section (3) of
    Sec.23, and if in his opinion, there are sufficient grounds for proceeding
    further, the Magistrate shall –
  70. examine the person to assess his capacity to understand.
  71. Cause him to be examined by a medical officer, and
  72. Make such inquiries in relation to such person as he may deem
    necessary.
    a. After the completion of the proceeding under sub-section (1), the
    Magistrate may pass a reception order authorizing the detention of the said
    person as an in-patient in a psychiatric hospital or psychiatric nursing home
  73. if the medical officer certifies such person to be a mentally ill
    person, and
  74. if the Magistrate is satisfied that the said person is a mentally ill
    person and that in the interest of the health and personal safety of
    that person or for the protection of others, it is necessary to pass
    such order.
    Provided that if any relative or friend of the mentally ill person desires that the
    mentally ill person be sent to any particular licensed psychiatric hospital or licensed
    psychiatric nursing home for treatment therein and undertakes in writing to the
    satisfaction of the Magistrate to pay the cost of maintenance of the mentally ill
    person in such hospital or nursing home, the Magistrate shall, if the medical officer
    in charge of such hospital or nursing home consents, make a reception order for
    the admission of the mentally ill person into that hospital or nursing home and
    detention therein;
    Provided further that if any relative or friend of the mentally ill person enters into a
    bond, with or without sureties for such amount as the Magistrate may determine,
    undertaking that such mentally ill person will be properly taken care of and shall be
    prevented from doing any injury to himself or to others, the Magistrate may,
    instead of making a reception order, hand him over to the care of such relative or
    friend.
    COMMENT
    This section lays down procedure on production of mentally ill person before a
    Magistrate.
  75. ORDER IN CASE OF MENTALLY ILL PERSON CRUELLY TREATED
    OR NOT UNDER PROPER CARE AND CONTROL –
    . Very officer in charge of a police station is mentally ill and is not under
    proper care and control, or is mentally ill person, shall forthwith report the
    fact to the Magistrate within the local limits of whose jurisdiction the
    mentally ill person resides.
    a. Any private person who has reason to believe that any person is mentally ill
    and is not under proper care and control, or is ill-treated or neglected by
    any relative or other person having charge of such mentally ill person, may
    report the fact to the Magistrate within the local limits of whose
    jurisdiction the mentally ill person resides.
    b. If it appears to the Magistrate, on the report of a police officer or on the
    report or information derived from any other person, or otherwise that any
    mentally ill person within the local limits of his jurisdiction is not under
    proper care and control, or is ill-treated or neglected by any relative or
    other person having the charge of such mentally ill person, the Magistrate
    may cause the mentally ill person to be produced before him, and summon
    such relative or other person who is, or who ought to be in charge of, such
    mentally ill person.
    c. If such relative or any other person is legally bound to maintain the
    mentally ill person, the Magistrate may, by order, require the relative or the
    other person to take proper care of such mentally ill person and where such
    relative or other person willfully neglects to comply with the said order, he
    shall be punishable with fine which may extend to two thousand rupees.
    d. If there is no person legally bound to maintain the mentally ill person, or if
    the person legally bound to maintain the mentally ill person refuses or
    neglects to maintain such person, or if, for any other reason, the Magistrate
    thinks fit so to do, he may cause the mentally ill person to be produced
    before him and, without prejudice to any action that may be taken under
    sub -section (4), proceed in the manner provided in Sec.24 as if such
    person had been produced before him under sub-section (3) of Sec. 23.
    COMMENT
    In case the Magistrate, within the local limits of whose jurisdiction the mentally ill
    person resides, comes to know that the said mentally ill person is being ill-treated,
    neglected or cruelly treated, he is empowered under this section, to pass orders
    requiring the relative or other person to take care of such mentally ill person. This
    section also makes provision for punishment in case of non-compliance of the
    aforesaid orders.
    C – Further provisions regarding admission and detention of certain mentally ill
    persons.
  76. ADMISSION AS IN-PATIENT AFTER INQUISITION –
    If any District Court holding an inquisition under Chapter VI regarding any person
    who is found to be mentally ill is of opinion that it is necessary so to do in the?
    interests of such person, it may, by order, direct that such person shall be admitted
    and kept as an in-patient in a psychiatric hospital or psychiatric nursing home and
    every such order may be varied from time to time or revoked by the District court.
    COMMENT
    This section provides for admission of mentally ill person as in-patient in a
    psychiatric hospital or psychiatric nursing home.
  77. ADMISSION AND DETENTION OF MENTALLY ILL PPRISONER –
    An order under Sec. 30 of the Prisoners Act, 1900 (3 of 1900) or under Sec. 144
    of the Air Force Act, 111950 (45 of 1950), or under Sec. 145 of the Army Act
    1950 (46 of 1950), or under Sec. 143 or Sec. 144 of the Navy Act, 1957 (62 of
    1957), or under Sec. 330 or Sec. 335 of the Code of Criminal Procedure 1973 (2
    of 1974), directing the reception of a mentally ill prisoner into any psychiatric
    hospital or psychiatric nursing home, shall be sufficient authority for the admission
    of such person in such hospital or, as the case may be, such nursing home or any
    other psychiatric hospital or psychiatric nursing home to which such person may be
    lawfully transferred for detention therein.
    COMMENT
    This section provides for admission of mentally ill prisoner into any psychiatric
    hospital or psychiatric nursing home.
  78. DETENTION OF ALLEGED MENTALLY ILL PERSON PENDING
    REPORT BY MEDICAL OFFICER –
    . When any person alleged to be a mentally ill person appears or is brought
    before a Magistrate under Sec. 23 or Sec. 25, the Magistrate may, by order
    in writing, authorize the detention of the alleged mentally ill person under
    proper medical custody in an observation ward of a general hospital or
    general nursing home or psychiatric hospital of psychiatric nursing home or
    in any other suitable place for such period not exceeding ten days as the
    Magistrate may consider necessary for enabling any medical officer to
    determine whether a medical certificate in respect of that alleged mentally
    ill person may properly be given under Cl. (a) of sub-section (2) of Sec.24.
    a. The Magistrate may, from time to time, for the purpose mentioned in subsection
    (1), by order in writing, authorize such further detention of the
    alleged mentally ill person for periods not exceeding 10 day at a time as he
    may deem necessary:
    Provided that no person shall be authorized to be detained under this sub-section
    for a continuous period exceeding thirty days in the aggregate.
    COMMENTS
    This section provides for detention of the alleged mentally ill person under proper
    medical custody pending receipt of medical report. The period of such detention
    should not exceed a period of ten days at a time and thirty days in the aggregate.
    SCOPE OF THE SECTION – The provision which the Magistrate could probably
    have thought of to justify his action is Sec. 16 of the Lunacy Act (since repealed by
    this Act). No other provision gives him the power of detention before adjudging a
    person as lunatic. Section 16(1) confers jurisdiction on a Magistrate to deal with a
    person who is alleged to be lunatic when he is brought before the Magistrate under
    the provisions of Sec. 13 of Sec.15. Such a person can be detained by an order of
    the Magistrate, “for such time not exceeding 10 days as may be, in his opinion
    necessary to enable the medical officer to determine whether such alleged lunatic is
    a person in respect of whom a medical certificate may be properly given”. The
    proviso to sub-section (2) imposes a ban on the Magistrate against extension of the
    period of detention beyond a total period of 30 days1.
  79. DETENTION OF MENTALLY ILL PERSON PENDING HIS REMOVAL
    TO PSYCHIATRIC HOSPITAL OR PSYCHIATRIC NURSING HOME –
    Whenever any reception order is made by a Magistrate under Sec. 22, Sec. 234 or
    Sec. 25, he may by reasons to be recorded in writing, direct that he mentally ill
    person in respect of whom the order is made may be detained for such period not
    exceeding thirty days in such place as he may deem appropriate. Pending the
    removal of such person to a psychiatric hospital or psychiatric nursing home.
    COMMENT
    This section empowers a Magistrate to issue directions for detention of mentally ill
    person for a period not exceeding thirty days in an appropriate place, pending this
    removal to psychiatric hospital or psychiatric nursing home;
    D – Miscellaneous provision in relation to orders under this chapter.
  80. TIME AND MANNER OF MEDICAL EXAMINATIO OF MENTALLY
    ILL PATIENT –
    Where any other order under this Chapter is required to be made on the basis of a
    medical certificate, such order shall not be made unless the person who has signed
    the medical certificate, or where such order is required to be made on the basis of
    two medical certificates, the signatory of the respective certificates, has certified
    that he has personally examined the alleged mentally ill person –
    . in the case of an order made on an application, not earlier than ten clears
    days immediately before the date on which such application is made; and
    a. in any other case, not earlier than ten clear days immediately before the
    date of such order;
    Provided that where a reception order is required to be made on the basis of two
    medical certificates such order shall not be made unless the certificates show that
    the signatory of each certificate examined the alleged mentally ill person
    independently of the signatory of the other certificate.
    COMMENT
    This section prescribes the time and manner of medical examination of mentally ill
    person.
  81. AUTHORITY FOR RECEPTION ORDER –
    – A reception order made under this Chapter shall be sufficient authority –
    . for the applicant or any person authorized by him, or
    a. in the case of a reception order made otherwise than on an application, for
    the person authorized so to do by the authority making this order.
    To take the mentally ill person to the place mentioned in such order or for his
    admission and treatment as an in-patient in the psychiatric hospital or psychiatric
    nursing home specified in the order or, as the case may be, for his admission and
    detention, therein or in any psychiatric hospital or psychiatric nursing home to
    which he may be removed in accordance with the provisions of this Act, and the
    medical officer-in-charge shall be bound to comply with such order:
    Provided that in any case where the medical officer-in-charge finds
    accommodation in the psychiatric hospital or psychiatric nursing home inadequate,
    he shall, after according admission, intimate that fact to the Magistrate or the
    District Court which passed the order and thereupon the Magistrate or the District
    Court, as the case may be, shall pass such order as he or it may deem fit:
    Provided further that every reception order shall cease to have effect –
    b. on the expiry of thirty days from the date on which it was made, unless
    within that period, the mentally ill person has been admitted to the place
    mentioned therein, and
    c. on the discharge, in accordance with the provisions of this Act, of the
    mentally ill person,
    COMMENT
    This section makes provision for sufficient authority for a reception order. It shall
    however, cease to have effect on the expiry of thirty days from the date of the order
    or on the discharge of the mentally ill person.
  82. COPY OF RECEPTION ORDER TO BE SENT TO MEDICAL OFFICERIN-
    CHARGE –
    Every Magistrate or District Court making a reception order shall forthwith send a
    certified copy thereof together with copies of the requisite medical certificates and
    the statement of particulars to the medical officer in charge of the psychiatric
    hospital or psychiatric nursing home to which the mentally ill person is to be
    admitted.
    COMMENT
    This section makes provision for supply of certified copy of reception order to
    medical officer in charge of psychiatric hospital or psychiatric nursing home.
  83. RESTRICTION AS TO PSYCHIATRIC HOSPITALS AND
    PSYCHIATRIC NURSING HOMES INTO WHICH RECEPTION ORDER
    MAY DIRECT ADMISSION
    No Magistrate or District Court shall pass a reception order for the admission as
    an in-patient to, or for the detention of any mentally ill person, as an in-patient to,
    or for the detention of any mentally ill person, in any psychiatric hospital or
    psychiatric nursing home outside the State in which the Magistrate or the District
    Court exercises jurisdiction:
    Provided that an order for admission or detention into or in a psychiatric hospital
    or psychiatric nursing home situated in any other State may be passed if the State
    Government has by general or special order and after obtaining the consent of the
    Government of such other State, authorized the Magistrate or the District Court in
    that behalf.
    COMMENT
    This section imposes restriction to the passage of reception order for admission or
    detention of any mentally ill person, as an in-patient in any psychiatric hospital or
    psychiatric nursing home outside the State, unless the State Government has by
    general or special order authorized for the same.
  84. AMMENDMENT OF ORDER OR DOCUMENT
    If, after the admission of any mentally ill person to any psychiatric hospital or
    psychiatric nursing home under a reception order, it appears that the order under
    which he was admitted or detained or any of the documents on the basis of which
    such order was made defective or incorrect, the same may, at any time thereafter
    be amended with the permission of the Magistrate or the District Court, by the
    person or persons who signed the same and upon such amendment being made, the
    order shall have effect and shall be deemed always to have had effect as if it had
    been originally made as so amended, or, as the case be, the documents upon which
    it was made had been originally furnished, also amended.
    COMMENT
    This section makes provision for amendment of order or document in case it is
    detected that any of the documents on the basis of which such order was made is
    defective or incorrect.
  85. POWER TO APPOINT SUBSTITUTE FOR PERSON UPON WHOSE
    APPLICATION RECEPTION ORDER HAS BEEN MADE –
    . Subject to the provisions of this section the Magistrate may, by order in
    writing (hereinafter referred to the orders of substitution), transfer the
    duties and responsibilities under this Act, of the person on whose
    application a reception order was made, to any other person who is willing
    to undertake the same and such other person shall thereupon be deemed for
    the purposes of this Act to be the person on whose application the
    reception order was made and all references in this Act to the latter person
    shall be construed accordingly:
    Provided that no such order of substitution shall absolve the person upon
    whose application the reception order was made or, if he is dead, his legal
    representatives, from any liability incurred before the date of the order of
    substitution.
    a. Before making any order of substitution, the Magistrate shall send a notice
    to the person on whose application the reception order was made if he is
    alive, and to any relative of the mentally ill person who, in the opinion of
    the Magistrate, shall have notice.
    b. The notice under sub-section (2) shall specify the name of the person in
    whose favor it is proposed to make the order of substitution and the date
    (which shall be not less than twenty days from the date of issue of the
    notice) on which objections, if any, to the making of such order shall be
    considered.
    c. On the date specified under sub-section (3), or on any subsequent date to
    which the proceedings may be adjourned, the Magistrate shall consider any
    objection made by any person to whom notice was sent or by any other
    relative of the mentally ill person, and shall receive all such evidence as may
    be produced by or on behalf of any such person or relative and after
    making such inquiry as the Magistrate may deem fit make or refrain from
    making the order of substitution:
    Provided that, if the person on whose application the reception order was
    made is dead and any other person is willing and is, in the opinion of the
    Magistrate, fit to undertake the duties and responsibilities under this Act of
    the former person, the Magistrate shall, subject to the provisions contained
    in the proviso to sub-section (1), make an order to that effect.
    d. In making any substitution order under this section, the Magistrate shall
    give preference to the person who is the nearest relative of the mentally ill
    person, unless, for reasons to be recorded in writing the Magistrate
    considers that giving such preference will not be in the interests of the
    mentally ill person.
    e. The Magistrate may make such order for the payment of the costs of an
    inquiry under this section by any person or from out of the estate of the
    mentally ill person as he thinks fit.
    f. Any notice under sub-section (2) may be sent by post to the last known
    address of the person for whom it is intended.
    COMMENTS
    This section empowers Magistrate to appoint substitute for a person upon whose
    application reception order has been made.
    Proviso – A proviso to a section is not independent of the section calling for independent
    of the section calling for independent consideration or construction detached from the
    construction to be placed on the main section as it is merely subsidiary to the main section
    and is to be construed in the light of the section itself1.
    It is settled that a proviso cannot expand or limit the clear meaning of the main provision2.
  86. OFFICERS COMPETENT TO EXERCISE POWERAS AND DISCHARGE
    FUNCTIONS OF MAGISTRATE UNDER CERTAIN SECTIONS –
    – In any area where a Commissioner of Police has been appointed, all the powers
    and functions of the Magistrate under Secs. 23,24,25 and 28 may be exercised or
    discharged by the Commissioner of Police and all the functions of an officer-in charge
    of a police station under this Act may be discharged by any police officer
    not below the rank of an Inspector.
    COMMENTS
    Under the provisions of this section all the powers and functions of the Magistrate
    under Secs. 23,24,25 and 28 may be exercised or discharged by the Commissioner
    of Police in the area where the said office is appointed.
    COMMISSIONER, IF INCLUDES “DEPUTY” OR “ASSISTANT” – It is clear
    that in the present case the Deputy Commissioner who acted in the matter had no
    power under Sec.17 of the Lunacy Act (since repealed by this Act). In any case, no
    such power could be conferred upon him even by the State Government. Because
    Lunacy Act, (since repealed by this Act) has not recognized conferment of such
    power upon any Deputy or Assistant to the Commissioner1.
    CHAPTER V
    IN SPECTION, DISCHARGE, LEAVE OF ABSENCE AND REMOVAL
    OF MENTALLY ILL PERSONS
    PART I
    INSPECTION
  87. APPOINTMENT OF VISITORS –
    . The State Government or the Central Government, as the case may be,
    shall appoint for every psychiatric hospital and every psychiatric nursing
    home, not less than five visitors, of whom at least one shall be a medical
    officer, preferably a psychiatrist and two social workers.
    a. The head of the Medical Services of the State or his nominee preferably a
    psychiatrist be an ex officio visitor of all the psychiatrist hospital and
    psychiatric nursing homes in the State.
    b. The qualifications of persons to be appointed as visitors under sub-section
    (1) and the terms and conditions of their appointment shall be such as may
    be prescribed.
    COMMENT
    This section makes provision for appointment of visitors for every psychiatric
    hospital/nursing home. The number of visitors should not be less than five, of
    whom at least one should be a psychiatrist or at least a medical officer and two
    social workers.
  88. MONTHLY INSPECTION BY VISITORS –
    Not less than three visitors shall at least once in every month, make a joint
    inspection of every part of the psychiatric hospital or psychiatric nursing home in
    respect of which they have been appointed and examine every minor admitted as a
    voluntary patient under Sec 17 and, as far as circumstances will permit, every other
    mentally ill person admitted therein and the order for the admission of and
    subsequent to the joint inspection immediately preceding, and shall enter in a book
    kept for that purpose such remarks as they deem appropriate in regard to the
    management and condition of such hospital or nursing home and of the in-patient
    thereof:
    Provided that the visitors shall not be entitled to inspect any personal records of an
    in-patient which in the opinion of the medical officer-in-charge are confidential in
    nature:
    Provided further that if any of the visitors does not participate in the joint
    inspection of the psychiatric hospital or psychiatric nursing home in respect of
    which he was appointed a visitor for three consecutive months, he shall cease to
    hold office as such visitor.
    COMMENT
    This section provides for monthly joint inspection by not less than three visitors of
    the psychiatric hospital/nursing home, for which they have been appointed, and for
    recording their remarks in respect of the management and condition of such
    hospital or nursing home and of the in-patients thereof visitors are not empowered
    to inspect personal records of in-patients.
  89. INSPECTION OF MENTALLY ILL PRISONERS –
    . Notwithstanding anything contained in Sec. 38, where any person is
    detained under the provisions of Sec. 144 of the Air Force Act, 1950 (45
    of 19150), or Sec. 145 of the Army Act, 1950 (46 of 1950), or Sec. 143 or
    Sec. 144 of the Navy Act 1957 (62 of 19957) or Sec. 330 or Sec. 335 of
    the Code of Criminal Procedure 1973 (2 of 1974) –
  90. the Inspector-General of Prisons, where such person is detained in a
    jail; and
  91. all or any three of the visitors including at least one social worker
    appointed under sub-section (1) of Sec. 37, where such person is
    detained, in a psychiatric hospital or psychiatric nursing home.
    Shall, once in every three months visit such person at the place where he is
    detained, in order to assess the state of mind of such person and make a
    report thereon to the authority under whose order such person is so
    detained.
    a. The State Government may empower any of its officers to discharge all or
    any of the functions of the Inspector-General of Prisons under Sub-section
    (1).
    b. The medical officer in charge of a psychiatric hospital or psychiatric
    nursing home wherein any person referred to in sub-section (1) is detained,
    shall once in every six months, make a special report regarding the mental
    and physical condition of such person to the authority under whose order
    such person is detained.
    c. Every person who is detained in jail under the provisions of various Acts
    referred to in sub-section (1) shall be visited at least once in every three
    months by a psychiatrist, or where a psychiatrist is not available, by a
    medical officer empowered by the state Government in this behalf and such
    psychiatrist or, as the case may be, such medical officer shall make a special
    report regarding the mental and physical condition of such person to the
    authority under whose order such person is detained.
    COMMENT
    This section makes provision for inspection of mentally ill prisoners.
    PART II
    DISCHARGE
  92. ORDER OF DISCHARGE BY MEDICAL OFFICER-IN-CHARGE –
    Notwithstanding anything contained in Chapter IV., the medical officer-in-charge
    of a psychiatric hospital or psychiatric nursing home may, on the recommendation
    of two medical practitioners one of whom shall preferably be a psychiatrist, by
    order in writing, direct the discharge of any person other than a voluntary patient
    detained or undergoing treatment therein as an in-patient, and such person shall
    thereupon be discharged from the psychiatric hospital or psychiatric nursing home:
    Provided that no order under this sub-section shall be made in respect of a
    mentally ill prisoner otherwise than as provided in Sec.30 of the Prisoner Act,
    1900 (3 of 1900), or in any other relevant law.
    (2) Where any order of discharge is made under sub-section (1) in respect of a
    person who had been detained or is undergoing treatment as in-patient in
    pursuance of an order off any authority, a copy of such hospital/nursing home.
  93. DISCHARGE OF MENTALLY ILL PERSONS ON APPLICATION –
    Any person detained in a psychiatric hospital or psychiatric nursing home under an
    order and in pursuance of an application made under this Act, shall be discharged
    on an application made in that behalf to the medical officer in charge by the person
    on whose application the order was made;
    Provided that no person shall be discharged under this section if the medical officer
    in charge certifies in writing that the person is dangerous and unfit to be at large.
    COMMENT
    This section lays down that mentally ill persons be discharged on application, from
    a psychiatric hospital/nursing home and that no person be discharged unless the
    medical officer certifies for the same.
  94. ORDER OF DISCHARGE ON THE UNDERTAKING OF RELATIVES OR
    FRIENDS ETC., FOR DUE CARE OF MENTALLY ILL PERSON
    . Where any relative of friend of a mentally ill person detained in a
    psychiatric hospital or psychiatric nursing home under Sec. 22, Sec. 24 or
    Sec. 25 desires that such person shall be delivered over to his care and
    custody, he may make an application to the medical officer-in-charge who
    shall forward it together with his remarks thereon to the authority under
    whose orders the mentally ill person is detained.
    a. where an application is received under sub-section (1), the authority shall,
    on such relative or friend furnishing a bond, with or without sureties, for
    such amounts as such authority may specify in this behalf, undertaking to
    take proper care of such mentally ill person, and ensuring that the mentally
    ill person shall be prevented from causing injury to himself or to others,
    make an order of discharge and thereupon the mentally ill person shall be
    discharged.
    COMMENT
    The section makes provision for discharge of mentally ill person from the
    psychiatric hospital or psychiatric nursing home on the undertaking of relatives or
    friends for due care of such mentally ill person.
  95. DISCHARGE OF PERSON ON HIS REQUEST –
    . Any person (not being a mentally ill prisoner) detained in pursuance of an
    order made under this Act who feels that he has recovered from his mental
    illness, may make an application to the Magistrate, where necessary under
    the provisions of this Act, for his discharge from the psychiatric hospital or
    psychiatric nursing home.
    a. An application made under sub-section (1) shall be supported by a
    certificate either from the medical officer in charge of the psychiatric
    hospital or psychiatric nursing home where the applicant is undergoing
    treatment or from a psychiatrist;
    b. The Magistrate may, after making such inquiry as he may deem fit, pass an
    order discharging the person or dismissing the application.
    COMMENT
    This section makes provision for the discharge of mentally ill person from
    psychiatric hospital or psychiatric nursing home, on his request. This section does
    not apply to a mentally ill prisoner.
  96. DISCHARGE OF PERSON SUBSEQUENTLY FOUND ON INQUISITION
    TO BE OF SOUND MIND –
    If any person detained in a psychiatric hospital or psychiatric nursing home in
    pursuance of a reception order made under this Act is subsequently found, on an
    inquisition held in accordance with the provisions of Chapter VI, to be of sound
    mind or capable of taking care of himself and managing his affairs, the medical
    officer-in-charge shall forthwith, on the production of a copy of such finding duly
    certified by the District Court, discharge such person from such hospital or nursing
    home.
    COMMENT
    This section deals with the matter relating to discharge of person, detained in a
    psychiatric hospital or psychiatric nursing home, subsequently found to be of
    sound mind.
    PART III
    LEAVE OF ABSENCE
  97. LEAVE OF ABSENCE
    . An application for leave of absence on behalf of any mentally ill person (not
    being a mentally ill prisoner) undergoing treatment as an in-patient in any
    psychiatric hospital or psychiatric nursing home may be made to the
    medical officer-in charge,
  98. in the case of a person who was admitted on the application of the
    husband or wife, by the husband or wife of such mentally ill person,
    or where by reason of mental or physical illness, absence from India
    or otherwise, the husband or wife is not in a position to make such
    application, by any other relative of the mentally ill person duly
    authorized by the husband or wife, or
  99. in the case of any other person, by the person on whose application
    the mentally ill person was admitted.
    Provided that no application under this sub-section shall be made by a
    person who has not attained the age of majority.
    a. Every application under sub-section (1) shall be accompanied by a bond,
    with or without sureties for such amount as the medical officer-in-charge
    may specify, undertaking –
  100. to take proper care of the mentally ill person,
  101. to prevent the mentally ill person from causing injury to himself or
    to others, and
  102. to bring back the mentally ill person to the psychiatric hospital, or,
    as the case may be, psychiatric nursing home, on the expiry of the
    period of leave.
    b. On receipt of an application under sub -section (1), the medical officers-in charge
    may grant leave of absence to the mentally ill persons for such
    period as the medical officers-in-charge may deem necessary and subject to
    such condition as may, in the interests of the protection of others, be
    specified in the order:
    Provided that the total number of days for which leave of absence may be
    granted to a patient under this sub-section shall not exceed sixty days.
    c. Where the mentally ill persons is not brought back to the psychiatric
    hospital or psychiatric nursing home on the expiry of the leave granted to
    him under this section the medical officer-in-charge shall forthwith report
    that fact to the Magistrate within the local limits of whose jurisdiction such
    hospital or nursing home is situated and the Magistrate may, after making
    such inquiry as he may deem fit, make an order directing him to be brought
    back to the psychiatric hospital or psychiatric nursing home, as the case
    may be,
  103. GRANT OF LEAVE OF ABSENCE BY MAGISTRATE –
    . Where the medical officer-in-charge refuses to grant leave of absence to a
    mentally ill person under Sec. 45, the applicant may apply to the Magistrate
    within the local limits of whose jurisdiction the psychiatric hospital or
    psychiatric nursing home wherein the mentally ill person is detained is
    situate, for the grant of leave of absence to the mentally ill person and the
    Magistrate may if he is satisfied that it is necessary so to do, and on the
    applicant entering into a bond in accordance with the provisions of subsection
    (2), by order grant leave of absence to the mentally ill person for
    such period and subject to such conditions as may be specified in the order.
    a. Every bond referred to in sub-section (1) shall be with or without sureties
    and for such amount as the Magistrate may decide and shall contain the
    undertaking referred to in sub-section (2) of sect.45.
    b. The Magistrate shall forward a copy of the order to the medical officer-in charge
    and on receipt of such order the medical officer-in-charge shall
    entrust the mentally ill person to the person on whose application the leave
    of absence was granted under this section.
    COMMENT
    Sections 45 and 46 deal with the matter relating to grant of leave of
    absence. Under Sec. 45 the medical officer is empowered to grant leave of
    absence. In case he refuses to grant leave of absence to a mentally ill
    person, Magistrate is empowered under Sec. 46 to grant leave of absence.
    PART IV
    REMOVAL
  104. REMOVAL OF MENTALLY ILL PERSON FROM ONE PSYCHIATRIC
    HOSPITAL OR PSYCHIATRIC NURSING HOME TO ANY OTHER
    PSYCHIATRIC HOSPITAL OR PSYCHIATRIC NURSING HOME.
    . Any mentally ill person other than a voluntary patient referred to in Sec. 15
    or Sec. 16 may, subject to any general or special order of the State
    Government, be removed from any psychiatric hospital or psychiatric
    nursing home to any other psychiatric hospital or psychiatric nursing home
    within the State, or to any other psychiatric hospital or psychiatric nursing
    home in any other State with the consent of the Government of that other
    State:
    Provided that no mentally ill person admitted to a psychiatric hospital or
    psychiatric nursing home under an order made in pursuance of an
    application made under the Act shall be so removed unless intimation
    thereof has been given to the applicant.
    a. The State Government may make such general or special order as it thinks
    fit directing the removal of any mentally ill prisoner from the place where
    he is for the time being detained, to any psychiatric hospital, psychiatric
    nursing home, jail or other place of safe custody in the State or to any
    psychiatric hospital, psychiatric nursing home, jail or another place of safe
    custody in any other State with the consent of the Government of that
    other State.
    COMMENT
    This section permits removal of any mentally ill person from one psychiatric
    hospital or psychiatric nursing home to another within the State or even to any
    other State with the consent of the Government of that other State.
    The provisions of this section however do not apply to a voluntary patient.
  105. ADMISSION, DETENTION AND RETAKING IN CERTAIN CASES –
    Every person brought into a psychiatric hospital or psychiatric nursing home under
    any order made under this Act, may be detained or, as the case may be, admitted
    as an in-patient therein until he is removed or is discharged under any law, and in
    case of his escape from such hospital or nursing home he may, by virtue of such
    order, be retaken by any police officer or by the medical officer-in-charge or any
    officer or servant of such hospital or nursing home, or by any other person
    authorized in that behalf by the medical officer-in-charge and conveyed to, and
    received and detained or, as the case may be, kept as an in-patient in such hospital
    or nursing home;
    Provided that in the case of a mentally ill person (not being a mentally ill prisoner)
    the power to retake as aforesaid under this section shall not be exercisable after the
    expiry of a period of one month from the date of his escape.
    COMMENT
    This section deals with the matter relating to admission, detention or retaking of
    certain mentally ill persons. This section does not apply to a mentally ill prisoner.
  106. APPEAL FROM ORDERS OF MAGISTRATE
    Any person aggrieved by any order of a Magistrate, passed under any of the
    foregoing provisions may, within sixty days from the date of the order, appeal
    against that order to the District Court within the local limits of whose jurisdiction
    the Magistrate exercised the powers, and decision of the District Court on such
    appeal shall be final.
    COMMENT
    This section empowers any person aggrieved by any order of a Magistrate to
    appeal against it to the District Court.
    JUDICIAL INQUISITION REGADING ALLEGED MENTALLY ILL
    PERSION POSSESSING PROPERTY, CUSTODY OF HIS PERSION AND
    MANAGEMENT OF HIS PROPERTY
  107. APPLICATION FOR JUDICIAL INQUISITION
    . Where an alleged mentally ill person is possessed of property, an
    application for holding an inquisition into the mental condition of such
    person may be made either –
  108. by any of his relatives, or
  109. by a public curator appointed under the Indian Succession Act,
    1925 (39 of 1925) or
  110. by the Advocate-General of the State in which the alleged mentally
    ill person resides, or
  111. where the property of the alleged mentally ill person comprises land
    or interest in land, or where the property or part thereof is of such a
    nature as can lawfully be entrusted for management to a Court of
    Wards established under any law for the time being in force in the
    State, by the Collector of the District in which such land is situate,
    to the District Court within the local limits of whose jurisdiction the
    alleged mentally ill person resides.
    a. On receipt of an application under sub-section (1), the District Court shall,
    by personal service or by such other mode of service as it may deem fit,
    serve a notice on the alleged mentally ill person to attend at such place and
    at such time as may be specified in the notice or shall, in like manner, serve
    a notice on the person having the custody of the alleged mentally person to
    produce such person at the said place and at the said time, for being
    examined by the District Court or by any other person from whom the
    District Court may call for a report concerning the mentally ill person:
    Provided that, if the alleged mentally ill person is a woman, who according
    to the custom prevailing in the area where she resides or according to the
    religion to which she belongs, ought not to be compelled to appear in
    public, the District Court may cause her to be examined by issuing a
    commission as provided in the Code of Civil Procedure, 1908 (5 of 1908).
    b. A copy of the notice under sub-section (2) shall also be served upon the
    applicant and upon any relative of the alleged mentally ill person or other
    person who, in the opinion of the District Court, shall have notice of
    judicial inquisition to be held by it.
    c. For the purpose of holding the inquisition applied for, the District Court
    may appoint two or more persons to act as assessors.
    COMMENTS
    JURISDICTION – The Lunacy (Supreme Courts) Act, 1958, gives power to those Courts
    to direct an inquiry as to “any person subject to the jurisdiction of the Court”. The
    preamble of the Lunacy (Districts Courts) Act of the same year states that it is expedient
    to make better provisions for the case of the states of lunatics “not subject to the
    jurisdiction of the Supreme Courts of adjudicature”. In 1981 the Allahabad high court
    decided that, under its own letters patent, it had no original jurisdiction in respect of the
    persons and estates of lunatics who were natives of India. In the course of that case, the
    Court ascertained from the Registrar of the original side of the Calcutta High Court that at
    that date its powers in the matters of lunacy as the successor and inheritor of the powers
    of the old Supreme Court were, as regards natives of India, only exercised within the
    limits of the town of Calcutta itself, and that in other respects the procedure directed by
    the Lunacy (District Court) Act, 1958, was followed in Lower Bengal. The Court
    expressed the view that this practice was correct. The Lunacy Act, 19121 repealed both
    the Acts of 1958, but made no alteration in the law with regard to the matter now under
    consideration. For a person to come under that chapter he must be not subject to the
    jurisdiction of a High Court, and must be resident within the jurisdiction of a District
    Court. The question of jurisdiction was considered in Anila Bala Chowdhurani V.
    Dhirendra Nath Saha2 where it was held that the jurisdiction of the Pabna District Court
    was ousted because the alleged lunatic (an Indian) resided both at Pabna and at Calcutta,
    but it is clear from that case that, but for his residence at Calcutta, the Pabna District
    Court would have had jurisdiction and the original side of the Calcutta High Court would
    not. In in re Taruchandra Ghosh,3 the Court held that, under Cl. 17 of the Charter, the
    Court had power to appoint a guardian of an Indian infant resident outside the original
    jurisdiction. The order was made ex parte on the father’s application, it being stated there
    was no opposition. The attention of the Court was not drawn to 13 Geo. 3, c. 63, nor to
    the cases referred to above. Moreover, the language of Cl.25 of the Charter of 1774 as
    regards infants, differs from its language as regards lunatics. The original side of the
    Calcutta High Court has no jurisdiction to direct an inquisition or appoint a guardian of
    person or property in the case of an Indian not resident in Calcutta4.
    WHAT HAS TO BE FOUND UNDER THE ACT – What has to be found under the Act
    is that the person is of unsound mind and that the unsoundness of mind is such as to make
    him incapable of managing his affairs. A person who is incapable of managing his affairs is
    not necessarily of unsound mind and a person of unsound mind may not be incapable of
    managing his affairs. The Court must hold that both unsoundness of mind and incapacity
    to manage his affairs are present and that the latter is due to the former5.
    DUTY OF THE COURT – It has, at the very outset to be realized that an order declaring
    a person to be of unsound mind and incapable on that account of managing his affairs is an
    order of a very serious character. It has the effect of disqualifying him from using his own
    property in the manner he desires and placing a drastic check on his rights and privileges
    which as a normal individual, he would be entitled to enjoy. In Teka Devi V. Gopal Das6,
    it was observed that:
    “It is, therefore, the duty of the Court before proceeding further, the determine judicially
    whether the person alleged to be incapable of managing himself or his affairs, is really a
    lunatic in this sense. Secondly, it must be remembered that this finding has got very far-reaching
    consequences and must be given after very great care and deliberation. It may
    have the immediate effect of putting a human being
    d. Act 4 of 1912 repealed by Act 14 of 1987.
    e. I.L.R. 48 of Cal.577
    f. I.L.R. 57 Cal 535.
    g. In the matter of Phanindra Chandra Set,35 C.W.N. 1045 at pp 1046-
    47: A.I.R. 1932 Cal.91.
    h. Sesha Ammal V.Venkatanarasimha Bhattachariar 67 M.L.J 797 at p.798;
    A.I.R. 1935 Mad.91
    i. A.I.R. 1930 Lah.209.
    Being under restraint. It might deprive him for a time, or forever of the possession
    and management of his property. It will be prima facie evidence of his lunacy, and
    may be read in proof of it in other proceedings. The Legislature has, therefore, laid
    down an elaborate procedure for conducting an enquiry into this matter, and this
    procedure must be strictly followed. The Court cannot and ought not to deal
    lightheartedly with this important question, and it should not consider itself
    relieved of its responsibility by the mere circumstance that some or all the relatives
    of the person concerned have declared that he is lunatic”.
    The above is undoubtedly an accurate statement of the policy underlying the
    precaution enjoined by the Legislature in the various provisions of the Act as a
    preliminary condition to the final exercise of jurisdiction by the Court in declaring a
    person as a lunatic1.
    The smallest attention to the words of the Indian Lunacy Act2 whether they be the
    words of Sec. 62 or the words of Sec. 38 shows this that the Legislature
    appreciates that to have an inquisition into the state of health, the state of mind, the
    state of property and general capacity of a person is a thing which affects that
    person so prejudicially that it ought not to be taken except it be first ordered upon
    a careful consideration of evidence3. It was said in a case reported in Muhammad
    Yaqub V. Nazir Ahmad4: “It is true that nothing is contained in the Act itself to
    direct or guide a Judge as to how he shall consider applications for an inquisition
    and probably no rules exist for dealing with the matter; but ordinary commonsense
    would appear to dictate to a tribunal before whom such an application comes that
    care should be exercised in a painful matter of this kind, namely, an enquiry into a
    man’s or woman’s state of mind; specially in the case of people in conformable
    circumstances who merely wish to lead a quiet life care should be exercised that
    they are not suddenly flung without sufficient reason into an elaborate inquisition
    which after all is nothing more or less than a trial involving sometimes the history
    of a person’s life back for many years, medical evidence, and all sorts of family
    witnesses”.
    INQUISITION – The Lunacy Act does not contain any procedure or permit any
    procedure by which a man today can be declared to be a lunatic ten years ago in
    the past5.
    JURISDICTION OF THE LUNACY COURT – The jurisdiction of the Lunacy Court
    depends on normal residence of the alleged lunatic and not on his temporary residence
    except in the cases of the High Courts of Calcutta, Madras and Bombay where different
    rules are applicable under the Charters and Letter Patent. The principles of residence are
    clearly laid down by a Bench of three learned Judges consisting of Sir Ashutosh
    Mookerjee, Acting Chief Justice, and Fletcher and Richardson, JJ. In Anila Bala
    Choudhurani V. Dhirendra Natha Saha1. That decision is an authority on the proposition
    that Sec. 38 of the Lunacy Act does not define the test to be applied to determine whether
    a person is or is not subject to the jurisdiction of the High Court for the purpose of judicial
    inquisition as to lunacy. But the proceedings are directed primarily against the person and
    only secondarily against his property. Such authority over the person may, unless
    otherwise directed by statute, be ordinarily exercised in the case of residents within the
    local limits of the jurisdiction of the Court. No doubt it may also be exercised over nonresidents,
    if there is statutory provision to that effect. The third proposition laid down by
    this decision is that before a District Court can institute inquisition of a person possessed
    of property and alleged to be a lunatic it must be established not merely that such person is
    residing within the jurisdiction of that Court but also that he is not subject to the
    jurisdiction of any of the High Courts mentioned in Sec. 37 of the Lunacy Act. Therefore,
    in a case where an alleged lunatic is subject to the jurisdiction of a High Court under Sec.
    37, the District Court has no jurisdiction under Sec. 62, even though the person may
    reside within the local limits of the jurisdiction of the District Court. In other words, the
    jurisdiction of the High Court and District Court are not concurrent, but the jurisdiction of
    the High Court excludes that of the District Court; although if the alleged lunatic resides in
    two districts, the jurisdiction of the two Courts are concurrent and not mutually
    exclusive2.
    PROOF OF INSANITY- The question of insanity requires a most careful examination and
    it is difficult to think that bare assertion by witnesses unsupported by any details of the
    cause, the course and the treatment of the malady ought to be accepted as satisfactory
    proof3.
    NOTICE – DIRECTING AN INQUISITION – The notice contemplated by Sec. 40 is a
    notice to be drawn up after there has been an order directing an inquisition. It is notice of
    such order and of the time and place at which the inquisition is to be held. It is notice of
    the petition. The notice prescribed is a notice that the Court has determined to hold an
    inquisition. So far as the alleged lunatic concerned, it is a most important notice. It is a
    notice which tells him that he is in such a serious position that Court has determined to
    enquire into his state of mind and that his liberty and his right to manage his own affairs is
    now in peril by virtue of a considered judgement of a District Judge. There is nothing in
    the Lunacy Act about general notices. There is a definite provision in the Lunacy Act for
    notice to the lunatics and to such relatives or other persons as the District Judge may think
    it desirable to give notice to. Under the Guardians and Wards Act the provision for notice
    to the minor is a provision about general notice, that is to say, the notice has to be affixed
    in the Court-house and a copy has to be affixed to the permanent place of residence of the
    minor4.
  112. ISSUES ON WHICH FINDING SHOULD BE GIVEN BY DISTRICT
    COURT AFTER INQUISITION –
    On completion of the inquisition, the District Court shall record its findings on –
    . whether the alleged mentally ill person is in fact mentally ill or not, and
    a. Where such person is mentally ill, whether he is incapable of taking care of
    himself and managing his property, or incapable of managing his property
    only.
    COMMENT
    This section empowers District Court to record its findings on certain issues.
  113. PROVISION FOR APPOINTING GUARDIAN OF MENTALLY ILL
    PERSON AND FOR MANAGER OF PROPERTY –
    . Where the District Court records a finding that the alleged mentally ill
    person is in fact mentally ill and is incapable of taking care of himself and of
    managing his property, it shall make an order for the appointment of a
    guarding under Sec. 53 to take care of his person and of a manager under
    Sec. 54 for the management of his property.
    a. Where the District Court records a finding that the alleged mentally ill
    person is in fact mentally ill and is incapable of managing his property but
    capable of taking care of himself, it shall make an order under Sec.54
    regarding the management of his property.
    b. Where the District Court records a finding that the alleged mentally ill
    person is not mentally ill; it shall dismiss the application.
    c. Where the District Court deems fit, it may appoint under sub-section (1)
    the same person to be the guardian and manager.
    COMMENT
    This section makes provision for appointment of guardian of mentally ill person
    and for manager or property.
  114. APPOINTMENT OF GUARDIAN OF MENTALLY ILL PERSON –
    . Where the mentally ill person is incapable of taking care of himself, the
    District Court or, where a direction has been issued under sub-section (2)
    of Sec.54, the Collector of the District, may appoint any suitable person to
    be his guardian.
    a. In the discharge of his functions under sub-section (1), the Collector shall
    be subject to the supervision and control of the State Government or of any
    authority appointed by it in that behalf
    COMMENT
    This section empowers the District Court or the Collector to appoint guardian of
    mentally ill person.
  115. APPOINTMENT OF MANAGER FOR MANAGEMENT OF PROPERTY
    OF MENTALLY ILL PERSON –
    . Where the property of the mentally ill person who is incapable of managing
    it is such as can be taken charge of by a Court of Wards under any law for
    the time being in force, the District Court shall authorize the Court of
    Wards to take charge of such property, and thereupon notwithstanding
    anything contained in such law, the Court of Wards shall assume the
    management of such property in accordance with that law.
    a. Where the property of the mentally ill person consists in whole or in part of
    land or of any interest in land which cannot be taken charge of by the Court
    of Wards, the District Court may, after obtaining the consent of the
    Collector of the District in which the land is situate, direct the Collector to
    take charge of the person and such part of the property or interest therein
    of the mentally ill person as cannot be taken charge of by the Court of
    Wards.
    b. Where the management of the property of the mentally ill person cannot be
    entrusted to the Court of Wards or to the Collector under sub-section (1)
    or sub-Section (2), as the case may be, the District Court shall appoint any
    suitable person to be the manager of such property.
    COMMENTS
    APPOINTMENT OF MANGER – There is no prohibition in the Gwalior law and the
    Indian Lunacy Act (since repealed by this Act), against appointment or re-appointment of
    persons already acting as managers of the estate of a person during his minority who later
    on became a lunatic/mentally ill person either before or after attainment of majority1.
    Since the vendor did not obtain any order from the competent Court under the Lunacy Act
    (since repealed by this Act), to have him appointed as Manager of the joint family to
    alienate the property, the sale is per se illegal. The sale, therefore, appears to be to defeat
    the statutory right of the appellant2.
  116. APPOINTMENT OF MANAGER BY COLLECTOR –
    Where the property of a mentally ill person has been entrusted to the Collector by
    the District Court under sub-section (2) of Sec. 54, he may, subject to the control
    of the State Government or of any authority appointed by it in that behalf, appoint
    any suitable person for the management of the property of the mentally ill person.
    COMMENT
    This section empowers the Collector to appoint manager of the property of a
    mentally ill person.
  117. MANAGER OF PROPERTY TO EXECUTE BOND –
    Every person who is appointed as the manager of the property of a mentally ill
    person by the District Court or by the Collector shall, if so, required by the
    appointing authority, enter into a bond for such sum, in such form and with such
    sureties as that authority may specify, to account for all receipts from the property
    of the mentally ill person.
    COMMENT
    This section requires the manager of property to execute bond.
  118. APPOINTMENT AND REMUNERATION OF GUARDIANS AND
    MANAGERS –
    . No person, who is the legal heir of a mentally ill person shall be appointed
    under Sec. 53, 54 or 55 to be the guardian of such mentally ill person or, as
    the case may be, the manager of his property unless the District Court or,
    as the case may be, the Collector, for reasons to be recorded in writing,
    considers that such appointment is for the benefit of the mentally ill person.
    a. The guardian of a mentally ill person or the manager of the property or
    both appointed under this Act shall be paid, from out of the property of the
    mentally ill person, such allowance as the appointing authority may
    determine.
    COMMENT
    This section deals with appointment and remuneration of guardians and managers.
  119. DUTIES OF GUARDIAN AND MANAGER –
    . Every person appointed as a guardian of a mentally ill person or manager
    of his property, or of both, under this Act shall have the care of the
    mentally ill person or his property or of both, and be responsible for the
    maintenance of the mentally ill person and of such members of his family as
    are dependent on him.
    a. Where the person appointed as guardian of a mentally ill person is different
    from the person appointed as the manager of his property, the manager of
    his property shall pay to the guardian of the mentally ill person such
    allowance as may be fixed by the authority appointing the guardian for the
    maintenance of the mentally ill person and of such members of his family as
    are dependent on him.
    COMMENT
    “FAMILY” – A married daughter living with her husband and separate from her
    father is not entitled to a separate maintenance being allowed to her against her
    father’s estate, when that estate is taken charge of by the Court under the
    provisions of Lunatic Act (since repealed by this Act).
    The word “family” includes persons living with the lunatic/mentally ill person as
    members of his family, that is to say, persons actually depending upon him for them
    maintenance1.
    In the instant case, under the relevant Medical Rules, the father was a member of
    the family of his son and was wholly dependent on him and the 2nd respondent
    was thus fully entitled to reimbursement for the expenses incurred on the treatment
    of his father and other travelling expenses2.
  120. POWERS OF MANAGER –
    . Every manager under this Act shall, subject to the provisions of this Act,
    exercise the same powers in regard to the management of the property of
    the mentally ill person in respect of which he is appointed as manager, as
    the mentally ill person would have exercised as owner of the property had
    he not been mentally ill and shall realize all claims due to the estate of the
    mentally ill person and pay all debts and discharge all liabilities legally due
    from that estate:
    Provided that the manager shall not mortgage, create any charge on, or,
    transfer by sale, gift, exchange or otherwise, any immoveable property of
    the mentally ill person or lease out any such property for a period
    exceeding five years, unless he obtains the permission of the District Court
    in that behalf.
    a. The District Court may, on an application made by the manager, grant him
    permission to mortgage, Create a charge on, or, transfer by sale, gift,
    exchange or otherwise, any immoveable property of the mentally ill person
    or to lease out any such property for a period exceeding five years, subject
    to such conditions or restrictions as that Court may think fit to impose.
    b. The District Court shall cause notice of every application for permission to
    be served on any relative or friend of the mentally ill person and after
    considering objections, if any, received from the relative or friend and after
    making such inquiries as it may deem necessary, grant or refuse permission
    having regard to the interests of the mentally ill person.
    COMMENT
    A manager is empowered to exercise the same powers in regard to the
    management of the property of the mentally ill person as the mentally ill person
    would have exercised as owner of the property had he not been ill.
    The manager shall, however, not mortgage, create any charge on, or, transfer by
    sale, gift etc. any immoveable property without the prior permission of the District
    Court.
    1. MANAGER TO FURNISH INVENTORY AND ANNUAL ACCOUNTS –
      . Every manager appointed under this Act shall, within a period of six
      months from the date of his appointment, deliver to the authority, which
      appointed him, an inventory of the immoveable property belonging to the
      mentally ill person and of all assets and other moveable property received
      on behalf of the mentally ill person, together with a statement of all claims
      due to and all debts and liabilities due by, such mentally ill person.
      a. Every such manager shall also furnish to the said appointing authority
      within a period of three months of the close of every financial year, an
      account of the property and assets in his charge, the sums received and
      disbursed on account of the mentally ill person and the balance remaining
      with him.
      COMMENT
      Under this section manager has to furnish inventory and annual accounts in respect
      of the property of the mentally ill person to the appointing authority.
  121. MANAGER’S POWER TO EXECUTE CONVEYANCES UNDER
    ORDERS OF DISTRICT COURT –
    Every manager appointed under this Act, may, in the name and on behalf of the
    mentally ill person –
    . execute all such conveyance and instruments of transfers by way of sale,
    mortgage or otherwise of property of the mentally ill person as may be
    permitted by the District Court; and
    a. Subject to the orders of the District Court, exercise all powers vested in
    that behalf in the mentally ill person, in his individual capacity or in his
    capacity as a trustee or as a guardian.
    COMMENT
    This section empowers the manager to execute conveyances in the name and on
    behalf of the mentally ill person, under the orders of the District Court.
  122. MANAGER TO PERFORM CONTRACTS DIRECTED BY DISTRICT
    COURT –
    Where the mentally ill person had, before his mental illness, contracted to sell or
    otherwise dispose of his property or any portion thereof, and if such contract is, in
    the opinion of the District Court, of such a nature as ought to be performed, the
    District Court may direct the manager appointed under this Act to perform such
    contract and to do such other acts in fulfilment of the contract as the Court
    considers necessary and thereupon the manager shall be bound to act accordingly.
    COMMENT
    This section empowers the manager to perform contracts on behalf of the mentally
    ill person as per directions of the District Court.
  123. DISPOSAL OF BUSINESS PREMISES –
    Where a mentally ill person had been engaged in business before he became
    mentally ill, the District Court may, if it appears to be for the benefit of the
    mentally ill person to dispose of his business premises, direct the manager
    appointed under this Act in relation to the property of such person to sell and
    dispose of such premises and to apply the sale proceeds thereof in such manner as
    the District Court may direct and thereupon the manager shall be bound to act
    accordingly.
    COMMENT
    The District Court is empowered to direct disposal of business premises of a
    mentally ill person, who was engaged in business prior to becoming mentally ill, for
    the benefit of the said ill person.
  124. MANAGER MAY DISPOSE OF LEASES –
    Where a mentally ill person is entitled to a lease or under lease, and it appears to
    the manager appointed under this Act in relation to the property of such person
    that it would be for the benefit of the mentally ill person to dispose of such leas or
    under lease, such manager may, after obtaining the orders of the District Court,
    surrender, assign or otherwise dispose of such lease or under lease to such person
    for such consideration and upon such terms and conditions as the Court may
    direct.
    COMMENT
    This section empowers manager of a mentally ill person to dispose of lease for the
    benefit of the mentally ill person, after obtaining the orders of the District Court.
  125. POWER TO MAKE ORDER CONCERNING ANY MATTER
    CONNECTED WITH MENTALLY ILL PERSON –
    The District Court may, on an application made to mentally ill person or his
    property, make such order, subject to the provisions of this Chapter, in relation to
    that matter as in the circumstances it thinks fit.
    COMMENT
    This section empowers the District Court to pass order concerning any matter
    connected with mentally ill person.
  126. PROCEEDING IF ACCURACY OF INVENTORY OR ACCOUNTS IS
    IMPUGNED –
    If any relative of the mentally ill person or the collector impugns, by a petition to
    the District Court, the accuracy of the inventory or statement referred to in subsection
    (1), or, as the case may be, any annual account referred to in sub-section
    (2) of Sec.60, the Court may summon the manager and summarily inquire into the
    matter and make such order thereon as it think fit.
    Provided that the District Court may, in its discretion, refer such petition to any
    Court subordinate to it, or to the Collector in any case where the manager was
    appointed by the Collector and the petition is not presented by the Collector.
    COMMENT
    This section lays down the procedure for disposal of petition challenging accuracy
    of inventory or account.
  127. PAYMENT INTO PUBLIC TREASURY AND INVESTMENT OF
    PROCEEDS OF ESTATE –
    All sums received by a manager on account of any estate in excess of what may be
    required for the current expenses of the mentally ill person or for the management
    of his property, shall be paid into the public treasury on account of the estate, and
    shall be invested from time to time in any of the securities specified in Sec.20 of
    the Indian Trusts Act, 1882 (2 of 1982), unless the authority which appointed him,
    for reasons to be recorded in writing, directs that, in the interests of the mentally ill
    person such sums be otherwise invested or applied.
    COMMENT
    A manager of mentally ill person is required under this section, to make payment
    into public treasury on account of estate.
  128. RELATIVE MAY SUE FOR ACCOUNT –
    Any relative of a mentally ill person may, with the leave of the District Court, sue
    for an account from any manager appointed under this Act, or from any such
    person after his removal from office or trust, or from his legal representative in the
    case of his death, in respect of any property then or formerly under his
    management or of any sum of money or other property received by him on account
    of such property.
    COMMENT
    This section empowers relative of a mentally ill person, with the leave to the
    District Court, to sue for account from any manager.
  129. REMOVAL OF MANAGERS AND GUARDIANS-
    . The manager of the property of a mentally ill person may, for sufficient
    cause and for reasons to be recorded in writing, be removed by the
    authority which appointed him and such authority may appoint a new
    manager in his place.
    a. Any manager removed under sub-section (1) shall be bound to deliver the
    charge of all property of the mentally ill person to the new manager and to
    account for all moneys received or disbursed by him.
    b. The District Court may, for sufficient cause, remove any guardian of a
    mentally ill person and appoint in his place a new guardian.
    COMMENT
    This section makes provision for removal of managers and guardians of a mentally
    ill person
  130. DISSOLUTION AND DISPOSAL OF PROPERTY OF PARTNERSHIP ON
    A MEMBER BECOMING MENTALLY ILL –
    . Where a person, being a member of a partnership firm, is found to be
    mentally ill, the District Court may, on the application of any other partner
    for the dissolution of partnership or on the application of any person who
    appears to that Court to be entitled to seek such dissolution, dissolve the
    partnership.
    a. Upon the dissolution under sub-section (1), or otherwise, in due course of
    law, of a partnership firm to which that sub-section applies, the manager
    appointed under this Act may, in the name and on behalf of the mentally ill
    person, join with the other partners in disposing of the partnership property
    upon such terms, and shall do all such acts for carrying into effect the
    dissolution of the partnership, as the District Court may direct.
    COMMENT
    This section makes provision for dissolution and disposal of property of
    partnership firm when a member becomes mentally ill.
  131. POWER TO APPLY PROPERTY FOR MAINTENANCE OF MENTALLY
    ILL PERSON WITHOUT APPOINTING MANAGER IN CERTAIN
    CASES
    . Notwithstanding anything contained in the foregoing provisions, the
    District Court may, instead of appointing a manager of the estate, order
    that in the case of cash, the cash and in the case of any other property the
    produce thereof, shall be realized and paid or delivered to such person as
    may be appointed by the District Court in this behalf, to be applied for the
    maintenance of the mentally ill person and of such members of his family as
    are dependent on him.
    a. A receipt given by the person appointed under sub-section (1) shall be valid
    discharge to any person who pays money or delivers any property of the
    mentally ill person to the person so appointed.
    COMMENT
    This section empowers the District Court to order for application/utilization of
    cash and the produce of other property for maintenance of mentally ill person
    without appointing a manager of the estate.
  132. POWER TO ORDER TRANSFER OF STOCK, SECURITIES OR SHARES
    BELONGING TO MENTALLY ILL PERSON IN CERTAIN CASES –
    Where any stock or Government securities or any share in a company (transferable
    within India or the dividends of which are payable therein) is or are standing in the
    name of, or vested in, a mentally ill person beneficially entitled thereto, or in the
    manager appointed under this Act or in a trustee for him, and the manager dies
    intestate, or himself becomes mentally ill, or is out of the jurisdiction of the District
    Court, or it is uncertain whether the manager is living or dead, or he neglects or
    refuses to transfer the stock, securities or shares, or to receive and pay over
    thereof the dividends to a new manager appointed in his place, within fourteen
    days after being required by the Court to do so, then the District Court may direct
    the company or Government concerned to make such transfer, or to transfer the
    same, and to receive and pay over the dividends in such manner as it may direct.
    COMMENT
    This section empowers the District Court to pass order for transfer of stock,
    securities or share belonging to mentally ill person, when the manager dies or
    himself becomes mentally ill or neglects or refuses to transfer stock, securities, etc.
  133. POWER TO ORDER TRANSFER OF STOCK, SECURITIES OR SHARES
    OF MENTALLY ILL PERSON RESIDING OUT OF INDIA Where
    any stock or Government securities or share in a company is or are standing
    in the name of, or vested in, any person residing out of India, the District Court
    upon being satisfied that such person has been declared to be mentally ill and that
    his personal estate has been vested in a person appointed for the management
    thereof, according to the law of the place where he is residing, may direct the
    company or Government concerned to make such transfer of the stock, securities
    or shares or of any part thereof, to or into the name of the person so appointed or
    otherwise, and also to receive and pay over the dividends and proceeds, as the
    District Court thinks fit.
    COMMENT
    This section empowers the District Court to issue directions for transfer of stock,
    securities or shares of mentally ill person residing out of India.
  134. POWER TO APPLY PROPERTY FOR MENTALLY ILL PERSON’S
    MAINTENANCE IN CASE OF TEMPORARY MENTAL ILLNESS –
    If it appears to the District Court that the mental illness of a mentally ill person is
    in its nature temporary, and that it is expedient to make provision for a temporary
    period, for his maintenance for the maintenance of such members of his family as
    are dependent on him, the District Court may, in like manner as under Sec. 71,
    direct his property or a sufficient part thereof to be applied for the purpose
    specified therein.
    COMMENT
    The District Court is empowered, under this section, to apply property of the
    mentally ill person for his maintenance in case of temporary mental illness.
  135. ACTION TAKEN IN RESPECT OF MENTALLY ILL PERSON TO BE
    SET ASIDE IF DISTRICT COURT FINDS THAT HIS MENTAL ILLNESS
    HAS CEASED –
    . Where District Court has reason to believe that any person who was found
    to be mentally ill after inquisition under this Chapter has ceased to be
    mentally ill, it may direct any Court subordinate to it to inquire whether
    such person has ceased to be mentally ill.
    a. An inquiry under sub-section (1) shall, so far as may be, conducted in the
    same manner as an inquisition conducted under this Chapter.
    b. If after an inquiry under this section, it is found that the mental illness of a
    person has ceased, the District Court shall order all actions taken in respect
    of the mentally ill person under this Act to be set aside on such terms and
    conditions as that Court thinks fit to impose.
    COMMENT
    This section makes provision for setting aside the action taken in respect of
    mentally ill person if the District Court finds that his mental illness has ceased.
  136. APPEALS –
    An appeal shall lie to the High Court from every order made by a District Court
    under this Chapter.
    COMMENT
    This section makes provision for appeal in High Court from every order of the
    District Court.
  137. POWER OF DISTRICT COURT TO MAKE REGULATIONS –
    The District Court may, from time to time, make regulations for the purpose of
    carrying out the provisions of this Chapter.
    COMMENT
    This section empowers the District Court to make regulations for carrying out the
    provisions of this Chapter.
    CHAPTER VII
    LIABILITY TO MEET COST OF MAINTENANCE OF MENTALLY ILL
    PERSONS DETAINED IN PSYCHIATRIC HOSPITAL OR
    PSYCHIATRIC NURSING HOME
  138. COST OF MAINTENANCE TO BE BORNE BY GOVERNMENT IN
    CERTAIN CASES –
    The cost of maintenance of a mentally ill person detained as an in-patient in any
    psychiatric hospital or psychiatric nursing home shall, unless otherwise provided
    for by any law for the time being in force, be borne by the Government of the State
    wherein the authority which passed the order in relation to the mentally ill person
    is subordinate, if –
    . that authority which made the order has not taken an undertaking from any
    person to bear the cost of maintenance of such mentally ill person, and
    a. no provision for bearing the cost of maintenance of such a District Court
    under this Chapter.
    COMMENT
    This section makes provisions for maintenance of mentally ill person at
    Government cost, in certain cases.
  139. APPLICATION TO DISTRICT COURT FOR PAYMENT OF COST OF
    MAINTENANCE OUT OF ESTATE OF MENTALLY ILL PERSON OR
    FROM A PERSON LEGALLY BOUND TO MAINTAIN HIM –
    . Where any mentally ill person detained in a psychiatric hospital or
    psychiatric nursing home has an estate or where any person legally bound
    to maintain such person has the means to maintain such person, the
    Government liable to pay the cost of maintenance of such person under
    Sec. 78 or any local authority liable to bear the cost of maintenance of such
    mentally ill person under any law for the time being in force, may make an
    application to the District Court within whose jurisdiction the estate of the
    mentally ill person is situated or the person legally bound to maintain the
    mentally ill person and having the means therefor resides, for an order
    authorizing it to apply the estate of the mentally ill person to the cost of
    maintenance or, as the case may be, directing the person legally bound to
    maintain the mentally ill person and having the means therefor to bear the
    cost of maintenance of such mentally ill person.
    a. An order made by the District Court under sub-section (1) shall be
    enforced in the same manner, shall have the same force and effect and be
    subject to appeal, as a decree made by such Court in a suit in respect of the
    property or person mentioned therein.
    COMMENT
    When a mentally ill person has an estate or any person legally bound to maintain
    such person has means to maintain such ill person, application may be preferred to
    the District Court for payment of cost of maintenance of mentally ill person.
  140. PERSONS LEGALLY BOUND TO MAINTAIN MENTALLY ILL
    PERSON NOT ABSOLBED FROM SUCH LIABILITY –
    Nothing contained in the foregoing provisions shall be deemed to absolve a person
    legally bound to maintain a mentally ill person from maintaining such mentally ill
    person.
    COMMENT
    The provisions of the Act do not absolve person legally bound to maintain mentally
    ill person from maintaining such ill person.
    CHAPTER VIII
    PROTECTION OF HUMAN RIGHTS OF MENTALLY ILL PERSONS
    83.
  141. No mentally ill person shall be subjected during treatment to any
    indignity (whether physical or mental) or cruelty.
  142. No mentally ill person under treatment shall be used for purposes of
    research, unless –
    a. such research is of direct benefit to him for purposes of diagnosis or
    treatment, or
    b. Such person, being a voluntary patient, has given his
    consent in writing or where such person (whether or not a
    voluntary patient) is incompetent, by reason of minority or
    otherwise, to give valid consent, the guardian or other
    person competent to give consent on his behalf, has given
    his consent in writing, for such research.
  143. Subject to any rules made in this behalf under Sec.94 for the
    purpose of preventing vexatious or defamatory communications or
    communications prejudicial to the treatment of mentally ill persons,
    no letters or other communications sent by or to a mentally ill
    persons under treatment shall be intercepted, detained or destroyed.
    COMMENT
    PENALTIES AND PROCEDURE
  144. PENALTY FOR ESTABLISHMENT OR MAINTENANCE OF
    PSYCHIATRIC HOSPITAL OR PSYCHIATRIC NURSING HOME IN
    CONTRAVENTION OF CHAPTER III –
    . Any person who establishes or maintains a psychiatric hospital or
    psychiatric nursing home in contravention of the provisions of Chapter III
    shall, on conviction, be punishable with imprisonment for a term which
    may extend to three months, or with fine which may extend to two hundred
    rupees, or with both, and in the case of a second or subsequent offence,
    with imprisonment for a term which may extend to six months, or with fine
    which may extend to one thousand rupees, or with both.
    a. Whoever, after conviction under sub-section (1) continues to maintain a
    psychiatric hospital or psychiatric nursing home in contravention of the
    provisions of Chapter III shall, on conviction, be punishable with fine
    which may extend to one hundred rupees, for every day after the first day
    during which the contravention is continued.
    COMMENT
    This section makes provision for penalty for establishment or maintenance of
    psychiatric hospital/nursing home in contravention of the provisions of Chapter III.
  145. PENALTY FOR IMPROPER RECEPTION OF MENTALLY ILL PERSON

    Any person who receives or detains or keeps a mentally ill person in a psychiatric
    hospital or psychiatric nursing home otherwise than in accordance with the
    provision of this Act, shall, on conviction, be punishable with imprisonment for a
    term which may extend to two years or with fine which may extend to one
    thousand rupees, or with both.
    COMMENT
    This section makes provision for penalty for improper reception of mentally ill
    person.
  146. PENALTY FOR CONTRAVENTION OF SOECS. 60 AND 69 –
    Any manager appointed under this Act to manage the property of a mentally ill
    person who contravenes the provisions of Sec. 60 or sub-section (2) of Sec. 69,
    shall, on conviction, be punishable with fine which may extend to two thousand
    rupees and may be detained in a civil prison till he complies with the said
    provisions.
    COMMENT
    This section makes provision for penalty for contravention of the provisions of
    Secs. 60 and 69.
  147. GENERAL PROVISION FOR PUNISHMENT OF OTHER OFFENCES –
    Any person who contravenes any of the provisions of this Act or of any rule or
    regulation made thereunder, for the contravention of which no penalty is expressly
    provided, in this Act, shall, on conviction, be punishable with imprisonment for a
    term which may extend to six months, or with fine which may extend to five
    hundred rupees, or with both.
    COMMENT
    This section makes general provision for punishment of other offences.
  148. OFFENCES BY COMPANIES –
    . Where an offence under this Act has been committed by a company, every
    person who, at the time of offence was committed, was in charge of, and
    was responsible to, the company for the conduct of the business of the
    company, as well as the company, shall be deemed to be guilty of the
    offence and shall be liable to be proceeded against and punished
    accordingly:
    a. Notwithstanding anything contained in sub-section (1), where an offence
    under this Act has been committed by a company and it is proved that the
    offence has been committed with the consent or connivance of, or is
    attributable to any neglect on the part of, any director, manager, secretary
    or other officer of the company, such director, manager, secretary or other
    officer shall also be deemed to be guilty of that offence and shall be liable
    to be proceeded against and punished accordingly.
    EXPLANATION – For the purposes of this section –
    b. “company” means a body corporate and includes a firm or other association
    of individuals; and
    c. “director”, in relation to a firm, means a partner in the firm. COMMENTS
    This section deals with the offences under this Act committed by
    companies.
    PENAL PROVISION – Penal provision is to be construed rigidly1.
  149. SANCTION FOR PROSECUTIONS

    Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of
    1974), no Court shall take cognizance of any offence punishable under Sec. 82,
    except with the previous sanction of the licensing authority.
    COMMENT
    Under this section previous sanction of the licensing authority has to be obtained
    for prosecutions.
  150. PROVISION AS TO BONDS –
    The provisions of Chapter XXXIII of the Code of Criminal Procedure, 1973 (2 of
    1974) shall, as far as may be apply to bonds taken under this Act.
    COMMENT
    This section makes provision as to bonds taken under this Act.
  151. SREPORT BY MEDICAL OFFICER –
    The medical officer in-charge of a psychiatric hospital or psychiatric nursing home
    shall, as soon as may be, after any mentally ill person detained therein has been
    discharged make a report in respect of his mental and physical condition to the
    authority under whose orders such person had been so detained.
    COMMENT
    This section requires the medical officer to make a report about the mental and
    physical condition of the discharged person to the authority under whose orders
    the mentally ill person was detained in the psychiatric hospital/nursing home.
  152. PENSION, ETC. OF MENTALLY ILL PERSON PAYABLE BY
    GOVERNMENT –
    . Where any sum is payable in respect of pay, pension, gratuity or any
    allowance to any person by any Government and the person to whom the
    sum is payable is certified by a Magistrate under this Act to be a mentally ill
    person, the officer under whose authority such sum would be payable, may
    pay to the person having charge of the mentally ill person so much of the
    said sum as he thinks fit, having regard to the cost of maintenance of such
    person and may pay to such member of the family of the mentally ill person
    as are dependent on him for maintenance, the surplus, if any, or such part
    thereof as he thinks fit, having regard to the cost of maintenance of such
    members.
    a. Where there is any further surplus amount available out of the funds
    specified in sub-section (1) after making payments as provided in that subsection,
    the Government shall hold the same to be dealt with as follows
    namely:
  153. where the mentally ill person is certified to have ceased to be
    mentally ill person by the District Court within the local limits of
    whose jurisdiction such person resides or is kept or detains, the
    whole of the surplus amount shall be paid back to that person;
  154. Where the mentally ill person dies before payment, the whole of
    the surplus amount shall be paid over to those of his heirs who are
    legally entitled to receive the same:
  155. Where the mentally ill person dies during his mental illness without
    leaving any person legally entitled to succeed to his estate, the
    whole of the surplus amount shall, with the prior permission of the
    District Court, be utilized for such charitable purpose as may be
    approved by the District Court.
    b. The Central Government or the State Government, as the case may be,
    shall be discharged of all liability in respect of any amount paid in
    accordance with this section.
    COMMENT
    This section makes provision for payment of pay, pension, gratuity, etc. of
    mentally ill person payable by Government.
  156. LEGAL AID TO MENTALLY ILL PERSON AT STATE EXPENSE IN
    CERTAIN CASES –
    . Where a mentally ill person is not represented by a legal practitioner in any
    proceeding under this Act before a District Court or a Magistrate and it
    appears to the District Court or Magistrate that such person has not
    sufficient means to engage a legal practitioner, the District Court or
    Magistrate shall assign a legal practitioner to represent him at the expense
    of the State.
    a. Where a mentally ill person having sufficient means to engage a legal
    practitioner is not represented by a legal practitioner in any proceeding
    under this Act before a District Court or a Magistrate and it appears to the
    District Court or Magistrate, having regard to all the circumstances of the
    case, that such person ought to be represented by a legal practitioner, the
    District Court, or Magistrate may assign a legal practitioner to represent
    him and direct the State to bear the expenses with respect thereto and
    recover the same from out of the property of such person.
    b. The High Court may, with the previous approval of the State Government,
    make rules providing for-
  157. the mode of selecting legal practitioners for the purpose of Subsection
    (1) and (2);
  158. the facilities to be allowed to such legal practitioners;
  159. the fees payable to such legal practitioners by the Government and
    generally, for carrying out the purpose of sub-sections (1) and (2).
    EXPLANATION – In this section “legal practitioner” shall have the meaning
    assigned to it in Cl. (I) of Sec. 2 of the Advocates Act, 1961 (25 of 1961).
    COMMENTS
    This section provides for legal and to mentally ill person at State expense in certain
    cases.
    EXPLANATION – It is now well settled that an explanation added to a statutory provision
    is not a substantive provision in any sense of the term but as the plain meaning of the word?
    itself shows it is merely meant to explain or clarify certain ambiguities which may have
    crept in the statutory provision1.
  160. PROTECTION OF ACTION TAKEN IN GOOD FAITH –
    . No suit, prosecution or other legal proceeding shall lie against any person
    for anything which is in good faith done or intended to be done in
    pursuance of this Act or any rules, regulations or orders made thereunder.
    a. No suit or other legal proceeding shall lie against the Government for any
    damage caused or likely to be caused for anything which is in good faith
    done or intended to be done in pursuance of this Act or any rules,
    regulations or orders made thereunder.
    COMMENT
    This section grants immunity from legal proceedings to persons for anything done
    or intended to be done under this Act in good faith.
  161. CONSTRUCTION OF REFERENCE TO CERTAIN LAWS, ETC.
    . Any reference in this Act to a law which is not in force in any area shall, in
    relation to that area, be construed as a reference to the corresponding law,
    if any, in force in that area.
    a. Any reference in this Act to any officer or authority shall, in relation to any
    area in which there is no offer or authority with the same designation, be
    construed as a reference to such officer or authority as may be specified by
    the Central Government by notification.
    COMMENTS
    This section provides for construction of reference to certain laws. – In construing
    social welfare legislation, the Courts should adopt a beneficent rule of construction
    and in any event, that construction should be preferred which fulfils the policy of
    the legislation. Construction to be adopted should be more beneficial to the
    purposes in favor of and in
    SOCIAL WELFARE LEGISLATION whose interest the Act has been passed1.
  162. POWER OF CENTRAL GOVERNMENT AND STATE GOVERNMENT
    TO MAKE RULES –
    . The Central Government may, by notification, make rules providing for the
    qualifications of persons who may be appointed as Mental Health Authority
    under Sec. 3 and the terms and conditions subject to which they may be
    appointed under that section and all other matters relating to such
    authority.
    a. Subject to the provisions of sub-section (1), the State Government, with
    the previous approval of the Central Government may, by notification,
    make rules for carrying out the provisions of this Act:
    Provided that the first rules shall be made by the Central Government by
    notification.
    b. In particular, and without prejudice to the generality of the foregoing
    power, rules made under sub-section (2) may provide for all or any of the
    following maters, namely:
  163. the qualifications of persons who may be appointed as Mental
    Health Authority and the terms and conditions subject to which
    they may be appointed under Sec. 4 and all other matters relating to
    such authority;
  164. The class or category of persons for whom separate psychiatric
    hospitals and psychiatric nursing homes may be established and
    maintained under Cl (d) of sub-section (1) of Sec. 5;
  165. The form in which, –
    . an application, may be made for grant or renewal of a
    license and the fee payable in respect thereof under Sec. 7
    or as the case may be, Sec. 9;
    a. a license may be granted for the establishment or
    maintenance of a psychiatric hospital or a psychiatric
    nursing home under Sec.8;
    b. an application may be made for a reception order under Sec.
    20
  166. the manner in which an order refusing to grant, or revoking, a
    license shall be communicated under Sec. 8 or, as the case may be
    Sec. 11;
  167. the manner in which a report may be made to the licensing authority
    under sub-section (2) of Sec.9;
  168. the minimum facilities referred to in the proviso to sub-section (5)
    of Sec. 9 including –
    . psychiatrist-patient ratio;
    a. other medical or para-medical staff;
    b. space requirement;
    c. treatment facilities; and
    d. equipment:
  169. the manner in which and the conditions subject to which a
    psychiatric hospital or psychiatric nursing home shall be maintained
    under sec. 10.
  170. The form and manner in which and the period within which an
    appeal against any order refusing to grant or renew a license or
    revoking a license shall be preferred and the fee payable in respect
    thereof under sec.12;
  171. The manner in which records shall be maintained under subsection
    (1) of sec.13.
  172. The facilities to be provided under Sec. 14 of the treatment of a
    mentally ill person as an out-patient;
  173. The manner in which application for a reception order shall be
    signed and verified under sub-section (6) of Sec. 20;
  174. The qualification of persons who may be appointed as visitors and
    the terms and conditions on which they may be appointed, under
    Sec.37 and their functions.
  175. Prevention of vexatious or defamatory communications and other
    matters referred to in sub-section (3) of Sec.81;
  176. Any other matter which is required to be, or may be, prescribed.
    COMMENTS
    This section empowers the Central Government and State Government to
    make rules for carrying out the purposes of the legislation.
    RULES OF CONSTRUCTION – It is well-settled canon of construction that the rules
    made under a statute must be treated exactly as if they were in the Act and are of the same
    effect as if contained in the Act. There is another principle equally fundamental to the rules
    of construction, namely, that the rules shall be consistent with the provision of the Act1.
  177. RULES MADE BY CENTRAL GOVERNMENT OR THE STATE
    GOVERNMENT TO BE LAID BEFORE THE LEGISLATURE –
    . Every rule made by the Central Government under this Act shall be laid, as
    soon as may be after it is made, before each House of Parliament, while it is
    in session, for a total period of thirty days which may be comprised in one
    session or in two or more successive sessions, and if, before the expiry of
    the session immediately following the session or the successive sessions
    aforesaid, both Houses agree in making any modification in the rule or both
    Houses agree that the rule should not be made, the rule shall thereafter
    have effect only if such modified form or be of no effect, as the case may
    be; so, however, that any such modification or annulment shall be without
    prejudice to the validity of anything previously done under that rule.
    a. Every rule made by the State Government under this Act shall be laid, as
    soon as may be after it is made, before the State Legislature.
    COMMENT
    This section provides that the rules framed by the Central Government or
    the State Government shall be laid before each Houses of Parliament or the
    State Legislature, as the case may be.
  178. EFFECT OF ACT ON OTHER LAWS –
    The provisions of this Act shall have effect notwithstanding anything inconsistent
    therewith contained in any other law for the time being in force and to the extent
    of such inconsistency that other law shall be deemed to have no effect.
    COMMENT
    This section lays down that the provisions of this Act shall have effect on other
    laws.
  179. POWER TO REMOVE DIFFICULTY –
    If any difficulty arises in giving effect to the provisions of this Act in any State, the
    State Government may, by order, do anything not inconsistent with such
    provisions which appears to it to be necessary or expedient for the purpose of
    removing the difficulty.
    Provided that no order shall be made under this section in relation to any State
    after the expiry of two years from the date on which this Act comes into force in
    that State.
    COMMENT
    This section empowers the State Government to remove difficulty.
  180. REPEAL AND SAVING –
    . The Indian Lunacy Act, 1912 (4 of 1912) and the Lunacy Act, 1977
    [Jammu and Kashmir Act 25 of 1977 (1920 AD)] are hereby repealed.
    a. Notwithstanding such repeal, anything done or any action taken under
    either of the said Acts shall, in so far as such thing or action is not
    inconsistent with the provisions of this Act, be deemed to have been done
    or taken under the corresponding provisions of this Act and shall continue
    in force until superseded by anything done or any action taken under this
    Act.
    COMMENT
    EFFECT OF IMPLIED REPEAL – If there is a repugnancy between the two pieces of
    legislation, to such an extent that both cannot stand together and operate simultaneously,
    the latter will have the effect of impliedly repealing theformer1.
    SAVING PROVISION – EFFECT OF – While giving effect to a saving provision, when it
    provides that something which is done or issued under the repealed provision must be
    treated as having been treated or issued under the newly enacted provision, an earlier
    order can be saved only if such a direction or an order could be effectively and validly
    made under the new provisions of law, which had repealed the earlier provisions2.
    THE STATE MENTAL HEALTH RULES 1990
    G.S.R. 1005 (E), DATED 29TH DECEMBER 19901 – In exercise of the powers
    conferred by the proviso to sub-section (2) of Sec. 94 of the Mental Health Act
    1987 (14 of 1987), read with Sec. 22 of the General Clauses Act, 1897 (10 of
    1897 (10 of 1897) the Central Government hereby makes the following rules
    namely:
    CHAPTER I
    PRELIMINARY
    b. SHORT TITLE AND COMMENCEMENT –
  181. These rules may be called the State Mental Health Rules, 1990.
  182. They shall come into force in a State on the date of commencement
    of the Act in the State.
    c. DEFINITIONS
    – In these rules unless the context otherwise requires –
  183. “Act” means the Mental Health Act, 1987 (14 of 1987);
  184. “applicant” means the person who makes an application to the
    licensing authority for grant of a license;
  185. “authority” means the State Mental Health Authority constituted
    under Sec. 4 of the Act;
  186. “Chairman” means the Chairman nominated under rule 5;
  187. “Form” means Form annexed to these rules;
  188. “license” means license granted under Sec. 8 of the Act;
  189. “member” means a member of the Authority appointed under rule
    3;
  190. “membership” means membership of the Authority established
    under Sec. 4 of the Act;
  191. “non-official member” means a member appointed under sub-rule
    (2) of rule 3;
  192. “official member” means a member appointed under sub-rule (1) of
    rule 3;
  193. “secretary” means Secretary to the Authority appointed under rule
    13;
  194. words and expressions used herein and not defined but defined in
    the Act shall respectively have the meanings assigned to them in the
    Act.
    COMMENT
    “MEANS – EXPRESSION OF. – The expression “means” in a definition clause renders
    the definition exhaustive of the matter defined. Where an interpretation clause defines a
    word to mean a particular thing, the definition is explanatory and prima face restrictive2.
    CHAPTER II
    STATE MENTAL HEALTH AUTHORITY
    d. CONSTITUTION OF THE AUTHORITY – The Authority shall consist
    of the following members, namely;
  195. Official Members:
    . Secretary, Department of Health;
    a. Joint Secretary, Department of Health dealing with Mental
    Health;
    b. Director of Health Services;
    c. Medical Superintendent, Government Mental Hospital or
    Head of the Department of Psychiatry, Government Medical
    College and Hospital.
  196. Non-official Members:
    Three members including one social worker, one Clinical Psychologist and
    one Medical Psychiatrist, who in the opinion of the State Government,
    have special interest in the field of Mental Health.
    COMMENT
    This rule provides for constitution of the Authority for purpose of the
    rules.
    e. DISQUALIFICATION – A person shall be disqualified for being
    appointed as a member or shall be removed from membership by the State
    Government, if he –
  197. has been convicted and sentenced to imprisonment for an offence
    which in the opinion of the State Government involves moral?
    turpitude; or
  198. is an undischarged insolvent; or
  199. is of unsound mind and stands so declared by a competent court; or
  200. has been removed or dismissed from the service of the Government
    or a body corporate owned or controlled by the Government.
    f. CHAIRMAN –
  201. The State Government may nominate any official member to act as
    the Chairman of the Authority.
  202. The Chairman shall cease to hold office when he ceases to be a
    member of the Authority.
    g. TERM OF OFFICE OF MEMBERS –
  203. Every official member shall hold office as such member so long as
    he holds the office by virtue of which he was so appointed.
  204. Every non-official member shall hold office for a period of three
    years from the date of his appointment and shall be eligible for reappointment.
  205. A non-official member may at any time resign from membership of
    the Authority by forwarding his letter of resignation to the
    Chairman and such resignation shall take effect only from the date
    on which it is accepted.
  206. Where a vacancy occurs by resignation of a non-official member
    under sub-section (3) or otherwise, the State Government shall fill
    the vacancy by appointing from amongst category of persons
    referred to in sub-rule (2) of rule 3 and the person so appointed,
    shall hold office for the remainder of the term of office of the
    member in whose place he was so appointed.
  207. Where the term of office of any non-official member is about to
    expire, the State Government may appoint a successor at any time
    within three months before the expiry of the term of such member
    but the successor shall not assume duty until the term of the
    member expires.
    CHAPTER III
    PROCEEDING OF THE AUTHORITY
    h. MEETINGS OF THE AUTHORITY –
  208. The Authority shall ordinarily meet once in every six months at
    such time and place as may be fixed by the Chairman: Provided that
    the Chairman –
    . may call a special meeting at any time to deal with any
    urgent matter requiring the attention of the Authority.
    a. shall call a special meeting if he receives a requisition in
    writing signed by not less than four members and stating the
    purposes for which they desire the meeting to be called.
  209. The first meeting of the Authority to be held in any calendar year
    shall be the annual meeting for that year.
    COMMENT
    PROVISO. – It is a cardinal rule of interpretation that a proviso to a particular provision of
    a statute only embraces the field, which is covered by the main provision. It carves out an
    exception to the main provision to which it has been enacted by the proviso and to no
    other. The proper function of a proviso is to except and deal with a case which would
    otherwise fall within the general language of the main enactment, and its effect is to
    confine to that case. Where the language of the main enactment is explicit and
    unambiguous, the proviso can have no repercussion on the interpretation of the main
    enactment, so as to exclude from it, by implication what clearly falls within its express
    terms. The scope of the proviso, therefore, is to carve out an exception to the main
    enactment and it excludes something which otherwise would have been within the rule. It
    has to operate in the same field and if the language of the main enactment is clear, the
    proviso cannot be torn apart from the main enactment nor can it be used to nullify by
    implication what the enactment clearly says nor set at naught the real object of the main
    enactment, unless the words of the proviso are such that it is its necessary effect1.
    i. SUBJECTS FOR SPECIAL MEETING – Where a meeting referred to in
    the proviso to sub-rule (1) of rule 7 has been convened, only the subjects
    for the considerations of which the meeting was convened, shall be
    discussed.
    j. SUBJECTS FOR THE ANNUAL MEETING – At the Annual Meeting of
    the Authority, the following subjects shall be considered and disposed of
    namely;
  210. Review of the progress of implementation of the various provisions
    of the Mental Health Act during the preceding one year;
  211. Other business brought forward with the consent of the Chairman
    or where he is absent with the consent of the Officer presiding at
    the meeting.
    k. PROCEDURE FOR HOLDING MEETINGS –
  212. Every notice calling for meeting of the Authority shall –
    . specify the place, date and hour of the meeting;
    a. be served upon every member of the Authority not less than
    twenty-one clear days in the case of annual meeting and
    fifteen clear days in the case of other meetings before the
    day appointed for the meeting.
  213. The Secretary shall prepare and circulate to the members along with
    the notice of the meeting, an agenda for the meeting showing the
    business to be transacted.
  214. A member who wishes to move a resolution on any matter included
    in the agenda, shall give notice thereof to the Secretary not less
    than seven days before the date fixed for the meeting.
  215. A member who wishes to move any motion not included in the
    agenda shall give notice thereof to the Secretary not less than
    fourteen days before the date fixed for the meeting.
    COMMENT
    This rule lays down the procedure for holding the meetings.
    l. PROCEEDINGS OF THE AUTHORITY –
  216. The Chairman or in his absence any member authorized by him,
    shall preside at the meetings of the Authority.
  217. The quorum for the meeting of the Authority shall be four
    members.
  218. If within half an hour from the time appointed for holding a meeting
    of the Authority, quorum is not present, the meeting shall be
    adjourned to the same day in the following week at the same time
    and place and the presiding officer of such meeting shall inform the
    members, present and send notice to other members.
  219. If at the adjourned meeting also, quorum is not present within half
    an hour from the time appointed for holding the meeting the
    members present shall constitute the quorum.
  220. In the adjourned meeting if the Chairman is not present and no
    member has been authorized to preside at such meeting, the
    members present shall elect a member to preside at the meeting.
  221. Each member including the Chairman shall have one vote. In the
    case of an equality of votes, the Chairman or any member presiding
    over such meeting, shall in addition, have a casting vote.
  222. All decisions of the meeting of the Authority shall be taken by a
    majority of the members present and voting.
    m. APPROVAL BY CIRCULATION – Any business which may be necessary
    for the Authority to transact except such as may be placed before the
    annual meeting, may be carried out by circulation among all members and
    any resolution so circulated and approved by a majority of members shall
    be valid and binding as if such resolution had been passed at the meeting of
    the Authority.
    n. SECRETARY TO THE AUTHORITY –
  223. The Chairman shall cause to be appointed a Secretary to the
    Authority from amongst persons possessing post-graduate degree
    in Psychiatric and having three years’ experience in the field of
    psychiatry.
  224. The Secretary shall be a full-time or part-time servant of the
    Authority and shall function as the Administrative Officer of the
    Authority.
  225. The Secretary shall be responsible for the control and management
    of office accounts and correspondence.
  226. The Secretary shall attend and take notes of the proceedings of the
    meeting of the Authority.
  227. The Secretary shall cause to be appointed such members of the
    ministerial and non-ministerial staff which are essential for efficient
    functioning of the Authority.
  228. The Secretary shall exercise such other powers and discharge such
    other functions as may be authorized in writing by the Chairman for
    the efficient functioning of the Authority.
    o. FORWARDING OF COPIES OF THE PROCEEDINGS OF THE
    AUTHORITY TO THE STATE GOVERNMENT –
    The Secretary shall forward copies of the proceedings of the Authority to
    the State Government periodically.
    CHAPTER IV
    LICENCE
    p. APPLICATION FOR LICENCE –
  229. Every application for a license under sub-section (1) or sub-section
    (2) of Sec. 7 of the Act shall be –
  230. made to the licensing authority in Form I or Form II as the case
    maybe;
  231. accompanied by a fee of rupees two hundred in the form of a bank
    draft drawn in favor of the licensing authority.
    q. GRANT OF LICENCE – If the licensing authority is satisfied that the
    applicant fulfils the conditions laid down in Cls. (a), (b) and (c) of Sec. 8 of
    the Act, it shall grant the license in Form III.
    r. REFUSAL OF LICENCE AND MANNER OF COMMUNICATING
    THE ORDER –
  232. If the licensing authority is satisfied that the applicant does not fulfil
    the conditions laid down in Sec. 8 of the Act, it may, after giving
    the applicant a reasonable opportunity of being heard against the
    proposed refusal of license, by order setting out the reasons therein,
    refuse to grant the license.
  233. Every order refusing to grant a license under Sec. 8 shall be
    communicated to the applicant by sending a copy of the order by
    registered post to the address given in the application.
  234. A copy of the order shall also be conspicuously displayed on the
    notice-board of the licensing authority.
    s. APPLICATION FOR RENEWAL – Every application for renewal of a
    license under sub-section (5) of Sec. 9 of the Act shall be –
  235. made to the licensing authority in Form IV.
  236. Accompanied by a fee of rupees one hundred in the form of a bank
    draft drawn in favor of the licensing authority.
    t. REFUSAL OF LICENCE –
  237. If the licensing authority is satisfied that the conditions mentioned
    in the proviso to sub-section (5) of Sec. 9 of the Act are not
    attracted, it shall renew the license.
  238. If the licensing authority is of the opinion that the license should
    not be renewed in view of the fact the conditions mentioned in the
    proviso to sub-section (4) of Sec. 9 are attracted, it may, after
    giving the applicant a reasonable opportunity of being heard against
    the proposed refusal of renewal of the license by order setting out
    the reasons therein, refuse to renew the license.
  239. Every order refusing to renew the license under the proviso to subsection
    (5) of Sec. 9 shall be communicated to the applicant by
    sending a copy of the order by registered post to the address given
    in the application for renewal.
    u. MANNER AND CONDITIONS OF MAINTAINING PSYCHIATRIC
    HOSPITALS OR PSYCHATRIC NURSING HOMES – Every
    Psychiatric hospital or nursing home shall be maintained subject to the
    condition that, –
  240. such hospital or nursing home is located only in an area approved
    by the local authority;
  241. such hospital or nursing home is located in a building constructed
    with the approval of the local authority;
  242. the building, where such hospital or nursing home is situated, has
    sufficient ventilation and is free from any pollution which may be
    detrimental to the patients admitted in such hospital or nursing
    home;
  243. such hospital or nursing home has enough beds to accommodate
    the patient;
  244. the nurses and other staff employed in such hospital or nursing
    home is duly qualified and competent to handle the work assigned
    to them;
  245. the supervising officer-in-charge of such hospital or nursing home is
    a person duly qualified having a post-graduate qualification in
    Psychiatry recognized by the Medical Council of India.
    v. TIME FOR APPEAL
  246. any person aggrieved by the order of the licensing authority
    refusing to grant or renew a license or revoking a license, may
    prefer an appeal to the State Government within sixty days of the
    communication of such order: Provided that the State
    Government may entertain an appeal preferred after the expiry of
    the period specified in sub-rule (1) if it is satisfied that the
    applicant was prevented by sufficient cause from preferring the
    appeal in time.
  247. The appeal shall be in “Form V” and shall be sent to the State
    Government by registered post or by appearing in person before
    and delivering the same to the Secretary to State Government,
    Department of Health or any other officer nominated by him in this
    behalf.
  248. Every appeal shall be accompanied with a fee of rupees five
    hundred.
    CHAPTER V
    PSYCHIATRIC HOSPITAL AND NURSING HOME
    w. MINIMUM FACILITIES FOR TREATMENT OF OUT-PATIENTS –
    The minimum facilities required for every psychiatric hospital or psychiatric
    nursing home for treatment of patients mentioned in Sec. 14 of the Act
    shall be as follows:
  249. Staff for 10 bedded hospital or nursing home –
    . One full time qualified Psychiatrist.
    a. One Mental Health Professional Assistant (Clinical)
    Psychologist or Psychiatrist Social Worker.
    b. Staff Nurses in the nurse: patient ratio 1:3
    c. Attenders in the attender: patient ratio 1:5
  250. Physical features – Adequate floor space depending on the number
    of beds shall be provided.
  251. Support/facilities – The minimum support/facilities shall be as
    under: –
    . Provision for emergency care for out-patient and for
    handling medical emergencies for out-patients and inpatients;
    a. A well-equipped Electro Convulsive Therapy facility;
    b. Psychodiagnostics facilities;
    c. Provision for recreational/rehabilitation activities; and
    d. Facilities for regular out-patient care.
    x. REVOCATION OF LICENCE –
  252. Where the licensing authority is satisfied that the license of any
    psychiatric hospital or nursing home is required to be revoked in
    pursuance of Cl. (a) or (b) of sub-section (1) of Sec. 11 of the Act,
    it may, after giving the licensee a reasonable opportunity of being
    heard against the proposed revocation by order setting out the
    grounds therein, revoke the license.
  253. Every order revoking the license under sub-rule (1) shall be
    communicated to the licensee by sending a copy of the order by
    registered post to the address given in the application.
  254. A copy of the order shall also be conspicuously displayed on the
    notice-board of the office of the licensing authority and in the
    psychiatric hospital or nursing home.
    y. MAINTENANCE OF RECORDS –
    Every Psychiatric hospital or a psychiatric nursing home shall maintain the
    records of the treatment of patient in Form VI.
    CHAPTER VI
    MISCELLANEOUS
    z. ADMISSION AND DETENTION IN PSYCHIATRIC HOSPITAL OR
    PSYCHIATRIC NURSING HOME –
  255. Application by Medical Officer-in-charge –
    . The application for reception order may be made by the
    Medical Officer-in-charge of a Psychiatric hospital or
    Psychiatric nursing home in “Form VII” or
    a. by the husband, wife or any other relative of the mentally ill
    person in “Form VIII”.
  256. Application from husband or wife:
    . Every application by the husband or wife, relative or friend
    of a person who is alleged to be mentally ill shall be
    accompanied by necessary medical certificates;
    a. Such application shall be signed either by the husband or
    wife or relative or friend as the case may be, and verified by
    two independent witnesses;
    b. The name, address, occupation and other details of all the
    applicants and the attesting witnesses shall be clearly given
    in such application.
    aa. THE QUALIFICATION AND FUNCTIONS OF THE VISITORS –
  257. The qualifications of persons to be appointed as visitors under Sec.
    37 of the Act shall be as follows:
    . A degree in Medicine with post-graduate degree in
    psychiatry awarded by any University in India recognized by
    the Medical Council of India and having at least ten years’
    standing in the profession, who has held/is holding the post
    of Medical Superintendent/Professor in Psychiatric hospital
    or psychiatric wing of a hospital; or
    a. Experience as a social worker/clinical
    psychologist/psychiatric nurse connected with any mental
    hospital for a period of not less than ten years.
  258. The visitors appointed by the Government under Sec. 37 of the Act
    shall be responsible for –
    . review of admission and discharge of patients;
    a. inspection of the wards, outdoor patient department and
    kitchen;
    b. facilities to be provided;
    c. suggestion for improvement; and
    d. functioning as liaison officer between the Government and
    hospital.
    bb. LEAVE OF ABSENCE –
    Every application by relative or any other person on behalf of the patient
    for leave of absence under Sec. 45 of the Act shall be made in “Form IX”.
    cc. INTERCEPTION OF THE LETTERS AND OTHER
    COMMUNICATIONS ADDRESSED TO THE MENTALLY ILL
    PERSONS –
    No letter of other communication addressed to a mentally ill person
    intended for delivery either through the postal department or otherwise
    shall be intercepted, detained or destroyed except under following
    circumstances, namely –
  259. any letter or other communication intended for delivery to a
    mentally ill person shall be opened only if the person having the
    supervisory control over the hospital or nursing home is of the
    opinion that such letter or communication contains any information
    or material which if communicated to such patient will be
    detrimental to his health; or
  260. that the interception, detention or destruction of any letter or
    communication intend to be delivered to the mentally ill person is
    necessary in the interests of the public or the State.
    FORM I
    (See rule 15)
    To
    The………………………Officer,
    Government……………………….
    …………………………….………
    Dear Sir/Madam,
    I/We intend to establish/maintain a Psychiatric Hospital/Psychiatric Nursing
    Home in respect of which I am/we are holding a valid license for the
    establishment/maintenance of such hospital/nursing home. The details of the
    hospital/nursing home are given below:
  261. Name of Applicant
  262. Details of license with reference to the name of the Authority issuing the
    license and date.
  263. Age……………….
  264. Professional experience in Psychiatry
  265. Permanent address of the applicant
  266. Location of the proposed Hospital/Nursing Home.
  267. Address of the proposed Nursing Home/Hospital
  268. Proposed accommodations:
    . Number of rooms
    a. Number of beds
    Facilities provided:
  269. Out-patient
  270. Emergency services
  271. In-patient facilities
  272. Occupational and recreational facilities
  273. ECT facilities
  274. X-ray facilities
  275. Psychological testing facilities
  276. Investigation and laboratory facilities
  277. Treatment facilities.
    Staff Pattern:
  278. Number of Doctors
  279. Number of Nurses
  280. Number of Attenders
  281. Others.
    I am sending herewith a bank draft for Rs………………. Drawn in favor of
    ………………… as license fee.
    I hereby undertake to abide by the rules and regulations of the Mental Health
    Authority.
    I request you to consider my application and grant the license for
    establishment/maintenance of Psychiatric Hospital/nursing home.
    Yours faithfully,
    Signature………………………………….
    Name ……………………………………
    Date …………………………………….
    FORM II
    (See Rule 16)
    APPLICATION FOR ESTABLISHMENT OF PSYCHIATRIC
    HOSPITAL/NURSING HOME UNDER SUB SECTION (2) OF SEC. 7
    To
    The………………….
    Government………………………….
    ………………………………………..
    Dear Sir/Madam,
    I/We intend to establish a Psychiatric Nursing Home/Psychiatric Hospital at
    …………….. (mention the place). I am herewith giving you the details.
  282. Name of the Applicant
  283. Qualification of Medical officer to be in charge of Nursing Home/Hospital
    (Certificate to be attached).
  284. Age ………………….
  285. Professional experience in Psychiatry
  286. Permanent Address of the applicant
  287. Location of the proposed Hospital/Nursing Home
  288. Address of the proposed Nursing Home/Hospital
  289. Proposed accommodation:
    a. Number rooms,
    b. Number of beds.
    Facilities provided:
    i. Out-patient
    j. Emergency services
    k. In-patient facilities
    l. Occupational and recreational facilities
    m. ECT facilities
    n. X-ray facilities
    o. Psychological testing facilities
    p. Investigation and laboratory facilities
    q. Treatment facilities
    Staff Pattern:
    r. Number of Doctors
    s. Number of Nurses
    t. Number of Attenders
    u. Others.
    I am herewith sending a bank draft for Rs…………………. drawn in favor of
    …………………….. as license fee.
    I hereby undertake to abide by the rules and regulations of the Mental Health Authority. I
    request you to consider my application and grant license.
    Yours faithfully,
    Signature…………………………………
    Date
    ………………………………………
    FORM III
    (See rule 16)
    GRANT OF LICENCE FOR ESTABLISHMENT OF PSYCHIATRIC
    HOSPITAL/NURSING HOME
    I…………. being the licensing authority under the Mental Health Act, 1987, after
    considering the application received under Sec. 7 and satisfying the requirements provided
    for in Sec. 8 and the other provisions of the Mental Health Act, 1987 (Central Act 14 of
    1987) and the rules made thereunder, hereby grant the license for
    establishment/maintenance of a psychiatric hospital or nursing home in favor of
    ……………………. (the applicant).
  290. The license shall be valid for the period commencing from……………… and ending
    with………………. The license shall be subject to the conditions laid down in the Mental
    Health Act, 1987 (14 of 1987) and the rules made thereunder.
    Licensing Authority
    Place……………
    Date ………………
    FORM IV
    (See rule 18)
    APPLICATION FOR RENEWAL OF LICENCE
    SEAL
    From
    Dr……………………
    ………………………
    ………………………
    To
    District Health Officer
    ……………………
    ……………………
    Sir,
    Subject: Renewal of License No…………………dated…………. I request you
    to kindly renew my license No………… dated the…………for the next 5 years. I
    am providing the facilities as prescribed by the Act and the rules framed
    thereunder. I have herewith attached a demand draft for Rs. 100 only.
    Thanking you.
    Yours faithfully
    Signature…………………………….
    Name ………………………….
    Place…………………
    Date………………….
    FORM V
    (See rule 21)
    APPLICATION FOR APPEAL
    To,
    The Appellate Authority
    Government ……………………
    …………………………………
    Sir,
    I, Dr……………………………. of……………………………. had
    applied for license for establishing a Psychiatric Nursing Home/Hospital
    at……………………. (copy of the earlier application to be attached). My
    application was rejected by the licensing authority as per his/her letter
    No.————– Dated ————————- with the following:
    1.
    2.
    3.
    (copy enclosed)
    The above reason(s) appear to be not valid. I request you to
    reconsider my application. My justifications are:
    4.
    5.
    6.
    I am willing to appear before you for a personal hearing, if necessary. I am
    herewith enclosing a draft for Rs. 500.
    Thanking you.
    Yours faithfully,
    Signature………………………….
    Name ……………………………
    Place…………………
    Date…………………
    FORM VI
    (See rule 24)
    PROFORMA OF CASE RECORD
    Name of the hospital/nursing home……………………. Patient’s
    name………………………. Age……………. Sex……………. Date of
    admission…………………………. date of discharge………. Mode of
    admission………………………………Voluntary.
    Reception order.
    Complaints (report from relative/other sources)
    Mental State Examination
    Physical Examination
    Laboratory investigations
    Provisional diagnosis.
    Initial treatment
    Treatment and Progress notes
    Clinical State and side effect Treatment
    Date
    Final diagnosis
    Condition at discharge
    Follow-up recommendations.
    FORM VII
    (See rule 25)
    APPLICATION FOR RECEPTION ORDER
    (By Medical Officer-in charge of a Psychiatric Hospital)
    From
    Dr……………….
    To
    *The Magistrate
    ………………………….
    ………………………….
    Sir,
    Subj: Reception order for………………………………. son/daughter of
    ……………………I, Dr……………………maintain psychiatric hospital/nursing
    home at…………………………………. Under license No…………….
    dated………………
    I request you to issue reception order in respect of Sh/Smt………
    son/daughter of…………… who is being treated at my hospital as a voluntary
    patient and is not willing to continue. He/she has the following symptoms and/or
    signs.
    1.
    2.
    3.
    4.
    5.
    He/She requires to be in the hospital for treatment/personal safety/others
    Protection.
    Thanking you.
    Yours sincerely
    Place………………………..
    Signature…………………………….
    Date:…………
    Name………………………………..
    o “Magistrate” means –
  291. in relation to a metropolitan area within the meaning of Cl.(k) of
    Sec. 2 of the Code of Criminal Procedure. 1973, a Metropolitan
    Magistrate.
  292. In relation to any other area, the Chief Judicial Magistrate, Sub-
    Divisional Judicial Magistrate or such other Judicial Magistrate of
    the first class as the State Government may, by notification,
    empower to perform the functions of a Magistrate under this Act.
    FORM VIII
    (See rule 25)
    APPLICATION FOR RECEPTION ORDER
    (By relative or other)
    To
    …………………………
    ………………………..
    ……………………….
    Sir,
    Subject: Admission of ………………..son/daughter of………..into psychiatry
    hospital/nursing home as in-patient.
    I……………….son/daughter of……………..residing
    at……………………………………request you kindly arrange for admission in
    respect of Sh/Smt………………………………………………………. Aged
    ……………. Years ………………..son/daugher of………………………. An inpatient
    To……………..(name of the hospital) or any other hospital/nursing home.
    He/She has the following suggestive of mental illness.
    1.
    2.
    3.
    4.
    5.
    I, who is ……………..(relationship) of Sh./Smt…………………………… have an
    income ……………..Rs………… and agree to pay the charges of treatment, if any of the
    institution. I state that, I have/ have not made any such regard to the mental condition of
    ………………….as required. I herewith enclose the two medical certificates needed for
    the purpose.
    Witnesses:
    Yours faithfully,
  293. Name………………….
    Signature…………………………
    address………………….
    Name in Capital…………….
    2.Occupation……………………….
    FORM IX
    (See rule 27)
    APPLICATION FOR LEAVE OF ABSENCE
    (By relative or others)
    To
    Dr. —————————-
    ………………………..
    Sir,
    Subject: Request for leave of absence of
    Sh/Smt……………..aged…………………..years Admitted on
    ………………………….to your Institute.
    I request that Sh/Smt……………..son/daughter of……………. Be delivered to
    my care and custody on leave of absence.
    I hereby bind myself that on the said Sh/Smt…………………………………
    being made over to my care and custody, I will have him here/properly taken
    care of and prevent from doing injury to himself or to others.
    Yours faithfully,
    Signature…………………………..
    Name …………………………..
    THE CENTRAL MENTAL HEALTH AUTHORITY RULES 1990
    G.S.R. 1004 (E) DATED 20TH DECEMBER 1990.1 – In exercise of the powers
    conferred by sub-section (1) of Sec. 94 of the Mental Health Act, 1987, (14 of 1987), read
    with Sec. 22 of the General Clauses Act, 1897 (10 of 1897), the Central Government
    hereby makes the following rules, namely:
    CHAPTER I
    PRELIMINARY
  294. SHORT TITLE AND COMMENCEMENT
  295. These rules may be called the Central Mental Health Authority Rules,
    1990.
  296. They shall come into force on the date of commencement of the Act.
  297. DEFINITIONS
    – In these rules unless the context otherwise requires –
    a. “Act” means the Mental Health Act, 1987 (14 of 1987);
    b. “Authority” means the Central Mental Health Authority established
    under Sec. 3 of the Act;
    c. “Chairman” means the Chairman nominated under rule 5;
    d. “Member” means member of the Authority appointed under rule 3.
    e. “Membership” means the membership of the Authority established
    under rule 3.
    f. “Non-Official Member” means a member appointed under sub-rule
    (2) of rule3;
    g. “Official Member” means a member appointed under sub-rule (1) of
    rule3;
    h. “Secretary” means the Secretary to the Authority appointed under
    rule 13;
    i. words and expressions used herein and not defined but defined in
    the Act shall respectively have the meaning assigned to them in the
    Act.
    CHAPTER II
    CEMTRAL MENTAL HEALTH AUTHORITY
  298. CONSTITUTION OF THE AUTHORITY
    – The Authority shall consist of the following members, namely;
  299. Official Member –
    a. Secretary or Additional Secretary, Ministry of Health and Family
    Welfare, Government of India.
    b. Joint Secretary, Ministry of Health and Family Welfare dealing with
    Mental Health.
    c. Additional Director-General of Health Services dealing with Mental
    Health.
    d. Director, Central Institute of Psychiatry ,Ranchi.
    e. Director, National Institute of Mental Health and Neuro Sciences,
    Bangalore.
    f. Medical Superintendent, Hospital for Mental diseases, Shahdara,
    Delhi.
  300. Non-Official Members- Three members including one social Worker, one
    clinical psychologist and one Medical psychiatric who, in the opinion of the
    central Government, have special interest in the field of Mental Health.
    COMMENT
    This rule provides that the Authority under this rule shall consist of certain official and
    non-official members mentioned therein.
  301. DISQUALIFICATION
    – A persons shall be disqualification for being appointed as a member or shall be
    removed from membership by the Central Government if he, –
    . has been convicted and sentenced to imprisonment for an offence which in
    the opinion of the Central Government involves moral turpitude; or
    a. is an undischarged insolvent; or
    b. is of unsound mind and stands so declared by a competent court, or
    c. has been removed or dismissed from the Government or a body corporate
    owned or controlled by the Government.
  302. CHAIRMAN –
  303. The Central Government may nominate any official member to act as the
    Chairman of the Authority.
  304. The Chairman shall cease to hold office when he ceases to be a member of
    the Authority.
  305. TERM OF OFFICE OF MEMBERS
  306. Every official member shall hold office as such member so long as he holds
    the office by virtue of which he was appointed.
  307. Every non-official member shall hold office for a period of three years from
    the date of his appointment and shall be eligible for re-appointment.
  308. A non-official member may at any time resign from membership of the
    Authority by forwarding his letter of resignation to the Chairman and such
    resignation shall take effect only from the date on which it is accepted.
  309. Where a vacancy occurs by resignation of a non-official member under sub rule
    (3) or otherwise, the Central Government shall fill the vacancy by
    appointing from amongst category of persons referred to in sub-clause (2)
    of rule 3 and the person so appointed, shall hold office for the remainder of
    the term of office of the member in whose place he was so appointed.
  310. Where the term of office of any non-official member is about to expire the
    Central Government may appointment a successor at any time within three
    months before the expiry of the term of such member but the successor
    shall not assume office until the term of the member expires.
    CHAPTER III
    PROCEEDINGS OF THE AUTHORITY
  311. MEETINGS OF THE AUTHORITY –
  312. The authority shall ordinarily meet once in every six months at such time
    and place as may be fixed by the Chairman. Provided that the Chairman –
    i. may call a special meeting at any time to deal with any urgent matter requiring the
    attention of the Authority.
    ii. Shall call a special meeting if he receives a requisition in writing
    signed by not less than four members and stating the purpose for
    which they desire the meeting to be called.
  313. The first meeting of the Authority to be held in any calendar year shall be
    the annual meeting for that year.
  314. SUBJECTS FOR SPECIAL MEETING Where
    a meeting referred to in the proviso to sub-rule (1) of rule 7 has been convened,
    only the subjects for the consideration of which the meeting was convened, shall be
    discussed.
  315. SUBJECTS FOR THE ANNUAL MEETING
    – At the Annual Meeting of the Authority, the following subjects shall be
    considered and disposed of namely; –
  316. review of the progress of implementation of the various provisions of
    Mental Health Act during the preceding one year.
  317. Other business on the agenda; and
  318. Any other business brought forward with the consent of the Chairman or
    where he is absent, with the consent of officer presiding at the meeting.
  319. PROCEDURE FOR HOLDING MEETINGS
  320. Every notice calling for a meeting of the authority shall –
    . specify the place, date and hour of the meeting:
    a. be served upon every member of the Authority not less than
    twenty-one clear days in the case of annual meeting and fifteen clears
    days in the case of other meetings before the day appointed for the
    meeting.
  321. The Secretary shall prepare and circulate to the members along with the
    notice of the meeting an agenda for such meeting showing the business to
    be transacted.
  322. A member who wishes to move a resolution on any matter included in the
    agenda shall give notice thereof to the Secretary not less than seven days
    before the date fixed for the meeting.
  323. A member who wishes to move any motion not included in the agenda shall
    give notice to the Secretary not less than fourteen days before the date
    fixed for the meeting.
    COMMENT
    This rule lays down the procedure for holding the meeting.
  324. PROCEEDINGS OF THE AUTHORITY
  325. The Chairman or in his absence any member authorized by him shall preside
    at the meetings of the Authority.
  326. The quorum for the meeting of the Authority shall be four members.
  327. If within half an hour from time appointed for holding a meeting of the
    Authority quorum is not present, the meeting shall be adjourned to the
    same day in the following week at the same time and place and the
    presiding officer of such meeting shall inform the members present and
    send notice to other members.
  328. If at the adjourned meeting also, quorum is not present within half an hour
    from the time appointed for holding the meeting, the members present shall
    constitute the quorum.
  329. In the adjourned meeting if the Chairman is not present and no member has
    been authorized to preside at such meeting, the members present shall elect
    a member to preside at the meeting.
  330. Each member including the Chairman shall have one vote. In the case of an
    equality of votes, the Chairman or any member presiding over such meeting
    shall in addition, have a casting vote.
  331. All decisions of the meeting of the Authority shall be taken by a majority of
    the members present and voting.
  332. APPROVAL BY CIRCULATION
    – Any business which may be necessary for the Authority to transact except as such may
    be placed before the annual meeting, may be circulated and approved by a majority of
    members, shall be valid and binding as if such resolution had been passed at the meeting of
    the Authority.
  333. SECRETARY TO THE AUTHORITY
  334. The Chairman shall cause to be appointed a Secretary to the Authority
    from amongst persons possessing post-graduate degree in psychiatry and
    having three years’ experience in the field of psychiatry.
  335. The Secretary shall be a full-time or part-time servant of the Authority and
    shall function as the Administrative Officer of the Authority.
  336. The Secretary shall be responsible for the control and management of office
    accounts and correspondence.
  337. The Secretary shall cause to be appointed such members of the ministerial
    and non-ministerial staff which are essential for the efficient functioning of
    the Authority.
  338. The Secretary shall exercise such other powers and discharge such other
    functions as may be authorized in writing by the Chairman for the efficient
    functioning of the Authority.
  339. FORWARDING OF COPIES OF THE PROCEEDINGS OF THE
    AUTHORITY TO THE CENTRAL GOVERNMENT
    – The Secretary shall forward copies of the proceedings of the Authority to the
    Central Government periodically.
    Mental health bill interview
    Sagarika Ghose: Hi there. We are focusing in this show on a subject that concerns us all, mental illness. Currently 130 million Indians are diagnosed with some form of mental illness, including depression, bipolarity and schizophrenia, 90 per cent of these cases remain untreated. The government has come up with new Mental Health Bill 2012. But activists say that the bill doesn’t protect the rights of the mentally ill. Mental illness is growing in India, will the new mental health care bill help us deal with this challenge. Joining us Harsh Mander, social activist, someone who has written extensively on this new mental health care bill and someone who approves of this particular bill. Dr Nimesh Desai, psychiatrist and director the Department of Psychiatry and the Medical Superintendent at the Institute of Human Behavior and Allied Sciences. Joining us Vandana Gopikumar founder of the Banyan, it is a group that extends mental healthcare to the poor. Akhileshwar Sahay founder of Whole Mind India foundation, you have been adviser to the Delhi metro rail and you are someone who has suffered from bipolar disorder. Javed Abidi convener of disabled group, someone who is a critic of the new mental health care bill. Let’s kick it off with you Dr Desai, the scale of India’s mental problem, 130 million Indians diagnosed with some mental disorder, 90 per cent of them remaining untreated. Does this new mental bill address India’s mental health problem?
    Dr Nimesh Desai: I would say briefly as you quoted quite correctly the number of people requiring treatment and those who do not get treatment. The bill attempts to do that and I think we will have to wait and see how well it does that. While the concerns of the Human rights activists and our lawyer friend about protecting the rights of the people with mental illness adequately and doing whatever we want to do correctly is.. The urgency is also about getting people into treatment, necessarily not hospitalization but getting people to treatment, and getting treatment to people who need it. Organizations like Banyan, and a number of organizations which are actively engaged with getting treatment to people. And that balance of getting treatment to people and protecting the rights while doing so is a very delicate one. And so, the need is possibly for a more continuing dialogue to ensure that we get the treatment and help to those who need it, especially the homeless mentally ill, on the streets, and the homebound mentally ill. We are talking about people with illness and how have various degrees of capacity to consent for treatment. We are not talking about depression, anxiety.
    Sagarika Ghose: That is a very important point, getting the healthcare even to those who necessarily give their consent. I’m sure it is a very controversial issue though, and I am sure Javed will point to that. But let me put it to Harsh Mander, you have written that the mental healthcare bill 2012 is an exceptional state led attempt to correct many of the historical wrongs with personal with mental health illness have long been subjected to. Why do you believe this bill is such a step forward?
    Harsh Mander: You know the way we have treated persons with mental illness in reality and through law is really shocking, I mean, right up to 1987 it was called the lunacy act. And I have seen even up to 1990s, in mental hospitals patients were chained, you know, given electric shock treatment, without consent, without anesthesia. People were abandoned for many years. I think what is important about this bill is that it protects, it treats with dignity people with mental illness, and I think that is very important. It tries to reverse this whole history of very savage abuse and prejudice and stigma. The most law has been against the person with mental illness; even up to the constitution it is debarring the right of the person with mental illness, so I think there is a reversal there. I will just make two quick points about my concerns…
    Sagarika Ghose: Harsh just a minute, let me get Javed to respond to the point that the bill addressed the right of the mentally ill, and actually provides them a kind of dignity which hasn’t been provided before. Now, I know, you have a lot of objections about that bill, why don’t you voice them. We will put them to Harsh and then we will let him come on the reservations as well.
    Javed Abidi: Well number of issues that we need to get straight. The first is that in 1995 the nation passed the disabilities act of 1995 where the nation said, for the first time said, that people with mental illness are as much as people with disabilities as anyone else. In spite of that the issue continues to remain under the Health Ministry, in spite of that the Ministry of Social Justice has not taken cognizance of the issue.
    Sagarika Ghose: Let’s address the substance of the issue on the bill and the mentally ill people. Because if we get into the bureaucrats then it can be long procedure. How do you feel that this bill doesn’t protect the right of the mentally ill?
    Javed Abidi: How it doesn’t protect the rights of the people with mentally illness is that it gives them rights with the left hand and takes them away with the right hand. The issue of legal capacity is still not very clear in this particular bill.
    Sagarika Ghose: The involuntary admission, that someone can be admitted to a mental institute without their consent.
    Javed Abidi: Without their consent and the bill supposedly talks about advanced directives, but then it also says that the advance directive can be taken away by a family member or a psychiatrist.
    Sagarika Ghose: This could be misused by a family member; it could be misused by a psychiatrist.
    Javed Abidi: Obviously, and then the point is that what is the point of having and advanced directive. I mean, have you ever headed such a thing that I will make a will and, in my wisdom, I don’t leave anything for my brother or sister…
    Sagarika Ghose: You make a declaration that in the event of a mental illness this is how I would like to be treated.
    Javed Abidi: This is how I would like to be treated or this is how I would not like to be treated. Now that is my legal capacity. If I don’t have the right to make that decision and if in spite of my advance directive, that advance directive can be taken away by a mental health professional by making an appeal to so called mental health authority.
    Sagarika Ghose: Right and just to bring you to the other point I know you have been raising is bias towards the private sector.
    Javed Abidi: Absolutely, and let me very quickly concise that in less than one minute. We are talking in post CRPD era. The entire world is talking about de-institutionalization, all the nations are struggling with that. And we are prompting institutionalization, in last 10 years more than 500 institutions have come up.
    Sagarika Ghose: So, are you saying we don’t need institutions?
    Javed Abidi: No, we certainly don’t need institutions.
    Sagarika Ghose: But we need mental healthcare facilities.
    Javed Abidi: We need mental healthcare facilities, more than that we need community based…
    Sagarika Ghose: Right, all your objections in fact have been made into a kind of chart. The activist has objected to the fact that involuntary admissions are provided under this bill. It provides for a prior declaration of part of an individual on how they would like to be treated if they become mentally ill. It is bias towards the private sector. It doesn’t completely ban electric shocks. It promotes medicines and not therapy, and it is bias towards psychiatrists, and against patients. And it also maintains status quo on mental asylums. These are the king of broad problems that activist have pointed out in this bill. Now you are someone, Akhileshwar Sahay, who has suffered from the bipolar disorder, do you believe that at the end of the day it is family and it is people around a mentally ill person, who are the most important.
    Akhileshwar Sahay: See, Sagarika, let me be very upfront. If I’m sitting here with you, it is because of my wife. For me doctor, family, therapist, exercise, everything is important. But two things for me as a patient are very important, if I have to be productive, ‘A’ my families support, ‘B’ my doctor. Because for bipolar, schizophrenia these are certain developing diseases where not taking medicines is an invitation to madness and death.
    Sagarika Ghose: So, you must take medicines otherwise you will become a lunatic or you will kill yourself.
    Akhileshwar Sahay: I have seen my friends, particularly younger friends who say they can manage without medicines. They try it they land in trouble; they land in the same institutes that we are talking about.
    Sagarika Ghose: Let me just get in Vandana, Vandana, you know, the point Akhileshwar is making is that the end of the day the mentally ill person, someone who is suffering bipolarity, someone suffering from schizophrenia the most important person is the family. Now, illustrate to us the limits of law, you can have so many enlightened legislations, at the end of the day if there is no awareness there is no family support there is very little that the law can do.
    Vandana Gopikumar: Well, Sagarika, over the past 20 years, I have catered to the needs of about 6000 people with mental health issues, both homeless and people with low socio-economic groups. Now the one thing I have heard from every single family is that, you know, the reason I haven’t sought treatment earlier because there was no one that offered medicines. So, in our country out of 640 districts we have only 123 covered by the district medical health programme. I think the most important thing that this legation aims to do, is to fix that. Especially in a mental health context, you know, with a single lens. Rights is a lot broader, if you look at access to care, access to healthcare. I think in our country where significant proportion of people live below poverty line this will be the single most bone that it offers Indian citizens.
    Sagarika Ghose: So, what you are saying is that it provides for more mental healthcare facilities across the board. And the question of rights should not come here…
    Vandana Gopikumar: It should be continuing care not just medical care, it should be social care, access to employment. It mandates living in the community. And it says in the exceptional circumstances where admission into an institution is inevitable in the best interest of the person, then well let’s try and facilitate it.
    Sagarika Ghose: Vandana let me just get Javed quickly to respond to this.
    Javed Abidi: No first of all nobody is saying that every single word or every single paragraph in this bill is all wrong. There are certain parts which are extremely good, which are progressive. So far whatever Akhileshwar has said and what ever Vandana has said I don’t seem to have a disagreement.
    Sagarika Ghose: Then what exactly is your disagreement then?
    Javed Abidi: The disagreement is… my question to Akhileshwar would be that when he talks of his wife, or when he talks of his family who logically would be his nominated representative…
    Sagarika Ghose: Does he want to give them that kind of power that they can commit him to a mental institution without his consent.
    Javed Abidi: No, Sagarika, you see, he will have to trust someone. And logically in his case that will be his wife that is not my question or objection. My question as his well-wisher is that tomorrow god forbid you don’t want a situation where some psychiatrist or a social worker can come and take away that right from his wife. So Akhileshwar in his wisdom makes her the nominated person and then tomorrow because of a disagreement with a psychiatrist or with someone, somebody takes away that right.
    Sagarika Ghose: And then the mentally ill person is at the mercy of whoever exercises that right. Dr Nimesh Desai you heard Javed Abidi saying that this bill is actually very dangerous because someone could use the rights of the primary care giver and then take away the rights of the mentally ill person and send that mentally ill person without consent to a place where he or she may not want to go.
    Dr Nimesh Desai: I agree with him about the potential danger for sure, I also agree with Javed Abidi about the finer details but important ones about the advance directives, specially the right of the establishment to withdraw advance directive or to change it. So there needs to be a little more emphasis, little more minute study on that. About the social justice being more relevant… what I want to say our friend Javed and to the audience is two or three positive things. One, I hope, Javed, will agree, in the last 10 or 12 years there have been a few or more than a few very good successful ethically monitored, legally approved outreach models, non-institutional, about getting access to care. That has happened and let’s build on that… the other thing I want to talk about is what Vandana said…
    Javed Abidi: Again, to that extent I would agree with Dr Desai, but is it not a fact that in the last one decade alone more than 400 such private establishments have come up across the urban landscape of India. And not all of them are good success stories.
    Sagarika Ghose: There is a dangerous aspect of profiteering by the private sector and the in fact abusing the rights of these mentally ill patients. So, you want to quickly come in.
    Akhileshwar Sahay: Yes, Sagarika, in 1946 India had only 10,000 psychiatric beds, with all the government, private sector taken together. So, all government, private, NGO sector taken together in last 60 years we have only doubled the beds, from 10,000 to 20,000.
    Sagarika Ghose: So, there is still not enough care.
    Javed Abidi: So why are you talking about beds, why are you not talking about community healthcare? Now this bill says you not be chained, but in the next instant it says you will be restrained.
    Sagarika Ghose: Let me get in a word from you, the fact is are we looking at mental health in a patient doctor framework. We need to look at it in family, community…
    Akhileshwar Sahay: Then if we’re telling that, that means we are not reading the act. This act says that institutionalization is the last resort. And two things which are there in this act, to me it is as revolutionary as the RTI act. One the same advance directive, I can choose my nominee. Number two, if it is taken away, I have mental health commission, and it is time bound. Within 21 days mental health commission has to give its verdict.
    Sagarika Ghose: Let me put to Harsh Mander, is there a danger that this bill leads to profiteering. Large number of these mental health institutions coming up; the mentally ill who can be always cared by perhaps by family, perhaps by community, for them being forcibly or their right being taken away, moved to these facilities simply to makeup these bottom lines…
    Harsh Mander: That is the one concern that I really share. You know this bill talks about the right of every person and mental health to affordable care from the public system. I think it has to be free care by the public system… but the whole thing about involuntary care, there are moments in mental illness when you need to be given treatment, you know this absolutist position that nobody should ever have the right to decide if you refuse treatment, in such moments when you need to be taken care of.
    Sagarika Ghose: Let me bring in Vandana, Vandana respond to the broader point the fact is that the mentally ill can’t be a reason for a rise of an industry.
    Vandana Gopikumar: If you read the legislation carefully, you will see very clearly what is mandated is care in the community, in fact there are regulations and bodies the ones Akhileshwar referred to, that makes sure that people have right to appeal in case there is a wrong doing.
    Javed Abidi: How much the establishment of these so-called mental health facilities is being promoted and how is it is being given to the private sector. It says you can apply on a piece of paper, without inspection you will be given registration, provisional registration. Within 10 days…
    Sagarika Ghose: The government is promoting mental health facilities, it is promoting medicines, it is promoting an industry.
    Javed Abidi: Without inspection. And if you are caught the only penalty is Rs 50,000. So, I mean, any person or nay organization can setup a so-called mental institution without any inspection, without any registration.
    Sagarika Ghose: I’m going to give you the last word, someone who has suffered from mental illness, your last word on this bill.
    Akhileshwar Sahay: The bigger issue for me is accessibility to Medicare, rehabilitation…
    Sagarika Ghose: The mental transformation that this bill makes in not stigmatizing, not discriminating against the mentally ill. The numbers of mentally ill are rising; the stress is causing mental illness to rise. This is very important that mentally we all have a transformation of how we view the mentally ill… but does this bill address their rights, some believe it is an industry and some believe they provide facility. Thank you very much indeed, Harsh Mander, Dr Nimesh Desai,
    Modernizing Code of Medical Ethics
    Last month the American Medical Association wrapped up its annual meeting in Chicago, where it has reached the final stages of modernizing its 167-year-old Code of Medical Ethics, last updated more than 50 years ago. The central role of ethics in medicine is reflected in the fact that, at the AMA’s first meeting in 1847, it treated the establishment of a code of ethics as one of its two principal orders of business. Much in medicine has changed since 1847, but this founding document, which most physicians and patients have never seen, still offers important insights that deserve to be reaffirmed.
    Spanning 15 pages, the 1847 Code of Ethics addressed just three fundamental concerns: the duties physicians and patients owe each other, physicians’ duties to each other and the profession at large, and the reciprocal duties of the profession and the public. This structure, focused on moral duties, evinces an important feature of the authors’ view of medicine. Namely, medicine is essentially a moral enterprise, grounded in mutual responsibilities, in which patients, physicians, and the public unite to serve the interests of the suffering.
    In fact, the preamble to the 1847 Code of Ethics states explicitly that medical ethics “must rest on the basis of religion and morality.” Ethics is not merely a matter of consensus, and the boundaries of professional ethics are not outlined by what a particular patient or physician might happen to agree to. The fact that an employment contract or informed consent form has been signed is insufficient. Professional ethics requires loyalty to ideals that transcend any particular person or group of people. Like taking an oath, it rests on the presumption that professionals serve something higher than themselves.
    The preamble to the 1847 Code also acknowledges that, in framing their code of ethics, the authors have “the inestimable advantage of deducing its rules from the conduct of many eminent physicians who have adorned the profession by their learning and piety.” It explicitly holds up the example of the “Father of Medicine,” Hippocrates, by whose conduct and writing the duties of a physician “have never been more beautifully exemplified.” The Code’s authors emphasize that these ideals are not only aspirational but achievable, having been exemplified by “many.”
    The first chapter stresses the physician’s duty to answer the call of the sick, which is all the deeper and more enduring “because there is no tribunal other than the physician’s own conscience to adjudge penalties for neglect.” In other words, the Code entrusts the ethics of medical practice not to lawmakers, the courts, or hospital executives, but to the conscience of each physician. We can detect and punish violators, the Code’s authors are saying, but it is impossible to legislate goodness, whose flame must ultimately burn nowhere else but in the hearts of professionals themselves.
    The first chapter also states explicitly that physicians should never abandon a patient because a case is deemed incurable. In an era obsessed with improving measurable outcomes such as length of stay and cost of care, many of today’s healthcare leaders need a reminder that a physician’s contribution cannot be fully assayed in terms of cures. Incurable does not mean hopeless, and it is always possible to care well even for those who are dying. The authors state that physicians should strive to be “ministers of hope and comfort to the sick.”
    In our day of shifting insurance contracts and medical super-specialization, physicians and patients are often strangers to one another. The second chapter of the Code stresses that, as much as possible, patients should entrust their family’s care to one physician, enabling a relationship to build over time. Simply knowing a patient’s vital signs, physical examination findings, and laboratory test results is not enough. The Code’s authors recognize that good medicine requires physicians to know their patients’ life circumstances, including the families and communities of which they are a part.
    In stressing that physicians should be devoted to ends beyond self, the Code also invokes gratitude on the part of patients. The services physicians render, it says, “are of such a character that no mere pecuniary acknowledgment can repay them.” What transpires between patients and physicians, in other words, is not primarily an economic exchange. Simply tending to the elements of a legal contract would not completely fulfill it. To the contrary, the intimacy and dedication at the core of a good patient-physician relationship should inspire enduring gratitude.
    Today we tend to see medicine as a scientific enterprise, placing our hopes in the advancement of knowledge and technology. But in the second chapter, the Code of Ethics argues that “no scientific attainments can compensate for want of moral principles.” Everyone holds out the hope of cures for cancer and Alzheimer’s disease, but good medicine is not merely good science. Science helps us understand how to relieve suffering, but it does not explain why should want to relieve suffering in the first place. For that, we must look to ethics and such extra-scientific virtues as compassion.
    Today we take for granted the mass marketing of healthcare. But the 1847 Code regards advertising as “derogatory to the dignity of the profession.” There is an important difference between advertising and educating, and the two are not always easy to distinguish from one another. One aims primarily at inducing a customer to spend money, while the other seeks mainly to serve the needs of a patient. To advertise is to make a plea for customer’s business, thereby placing the relationship on a primarily economic footing, while educating treats the dignity of the patient as primary.
    This helps to explain why the Code tends to avoid terms such as payment, preferring instead the seemingly awkward formulation of “pecuniary acknowledgment.” In our day, healthcare reform has come to be understood to be about paying for healthcare, focusing primarily on questions such as who pays and how much. To the authors of the AMA’s first Code of Ethics, however, medicine is not a commodity that can be delivered from the back of a truck like a refrigerator. At its best, it much more closely resembles a friendship, a relationship that can never be bought and sold.
    The third chapter of the Code declares that there is no profession that more freely dispenses charitable services than medicine. A profession is defined in part by the fact that its members aspire to something beyond money, suggesting that physicians should naturally put tending to patients ahead of the money that the provision of services might or might not generate. In fact, the opportunity to care for a patient pro bono, for good, constitutes one of the most self-defining and reinforcing activities in which professionals can engage.
    In our own day, federal and state programs have led many physicians to expect to be compensated for all the care they provide. But the Code calls upon physicians always to care for individuals in indigent circumstances “cheerfully and freely.” It regards the care of the indigent not as an unfortunate burden that physicians must grin and bear, but as a positive opportunity. It is not enough merely to provide such care. It must also be done from the professional’s own free will and even cheerfully, because it is in doing so that professionals give life to what they really believe in.
    Some might suppose that a medical code of ethics dating back 167 years could not possibly speak to contemporary physicians and patients. After all, such a code predates the discovery of x-rays, antibiotics, and the structure of DNA. Yet even as medical science evolves at an ever-quickening pace, the core of professional ethics remains essentially unchanged, in large part because goodness is grounded in human character. It is impossible to be a good doctor without first being a good person. As the AMA seeks to “modernize” its Code of Ethics, it would do well to return to the enduring insights of its founders.
    National digital health blueprint
    The national Health Policy 2017 outlines a robust framework for achieving Health for All through the adoption of the basic principles of accessibility, quality and affordability, and by leveraging the power of information and communication technologies to strengthen the healthcare delivery systems.
    The historic and landmark launch of Ayushman Bharat Scheme, which is operational through a robust lT Platform, ensures cashless and paperless services covering a population of 5OO million. Health schemes such as Maternal & Child Health, NIKSHAY and others are also benefitting the patien15 with the right service delivered at the right time Leveraging the technological interventions
    Digital health interventions strengthen outcorrie5 of every health service delivery programme in the country. With increased ease of use, acceptance by masses and adaptation by service providers, digital health interventions can be powerful game changers in accelerating the transformation of health agenda and in enhancing the health outcomes of the entire population of the nation.
    The integration of various efforts in the ecosystem of digital health is essential for a holistic pursuit of the goals of National Health Policy 2017 and the SDGS relating to health Accordingly, the Government of India has initiated efforts for establishing a comprehensive, ‘.nation wise integrated Digital Health ecosystem through an architectural framework namely, the National Digital Health Blueprint (NDH B).
    The blueprint is completely aligned with the vision of our Hon’ble Prime Minister, of India, shri Narendra Modi Ji, to provide health services to every Indian citizen. The successful implementation of NDHB would immensely benefit all Indians by lowering of out of pocket expenses and realization of Universal Health Coverage.
    I appreciate the contribution of Sh. Satyanarayana and the members of Committee for their exceptional work in developing this blueprint. I request all the stakeholders to implement the blueprint and pave the way for transforming India into a Digital healthcare economy.
    (Dr Harsh Vardhan)
    Preface
    The National Health Policy 2017 (NHP 2017) envisages the goal of attainment of the highest level of health and well‐being for all at all ages, through increasing access, improving quality and lowering the cost of healthcare delivery. The key principles of NHP 2017 include universality, citizen‐ centricity, quality of care and accountability for performance. The policy lays significant emphasis on leveraging digital technologies for enhancing the efficiency and effectiveness of delivery of all the healthcare services.
    While the efforts in deploying technology for healthcare have been continuous and widespread, the benefits have been localized and fragmented. The citizen cannot access his/her health records speedily nor store them conveniently. In the absence of an integrated system, the service providers tend to create isolated medical records enhancing the burden on the citizen significantly. Health service providers in the public and private sectors do not have an aggregated and complete view of the data for providing efficient health services to the citizens. Governments, central and state alike, do not have reliable and complete data for policy analysis and evidence‐based interventions.
    The need of the hour is to elevate the existing systems from providing disparate electronic services to integrated digital services. While setting specific goals for the health sector in alignment with SDG’s to be achieved over the next 5 years in vital areas such as life expectancy, IMR, MMR, TFR, immunization, malnutrition and disease control, the NHP 2017 has also prescribed such specific goals for adoption of digital technologies. These include establishing registries for all diseases of public importance and most significantly, ‘establishing Federated National Health Information Architecture, to roll‐out and link systems across public and private health providers at state and national levels and across different healthcare systems like modern medicine and AYUSH systems consistent with Metadata and Data Standards (MDDS) & Electronic Health Record (EHR)’. The policy also envisages leveraging ‘the potential of digital health for 2‐way systemic linkages between primary, secondary and tertiary care to ensure continuity of care’.
    Against the above background, the committee constituted by the Health Ministry to create an implementation framework for the National Health Stack (NHS) proposed by NITI Aayog, has come up with the National Digital Health Blueprint, after surveying the global best practices in adoption of digital technologies holistically. The blueprint is not merely an ‘architectural document’. It has specific details of the building blocks required to fulfil the vision of NHP 2017 as also the institutional mechanism and an action plan for realizing digital health in a comprehensive and holistic manner. The key features of the blueprint include a federated architecture, a set of architectural principles, a 5‐layered system of architectural building blocks, Unique Health Identifier (UHID), privacy and consent management, national portability, EHR, applicable standards and regulations, health analytics and above all, multiple access channels like call centers, India Digital Health portal and MyHealth App.
    The mandate of the National Digital Health Mission recommended in this report is a balanced combination of designing, developing and realizing certain pure‐play technology building blocks and the essential domain (Health) building blocks.
    With a view to leverage the vast amount of knowledge and experience available in the society in this area, the Ministry undertook 2 specific exercises after the committee submitted its draft report. The draft of the NDHB Report was placed in the public domain on 15th July 2019, inviting the members of public, professionals and organizations to give their comments and suggestions by 4th August 2019. In addition, the Ministry conducted a consultation with the stakeholders on 6th August 2019.
    The response to the invitation has been overwhelming. Over 300 comments and suggestions have been received from 70 organizations and individuals. The committee has analyzed all the comments and suggestions at its 11th meeting held on 5th September 2019 and decided to incorporate all the suggestions found useful in enriching the blueprint.
    The major comments and suggestions have been in relation to elaborating and / or bringing clarity in the areas of federated architecture, privacy, consent management, data protection, role of the state governments, involving NGOs, capacity building and change management, and the implementation timelines. There have been numerous suggestions in operational areas, which are relevant and useful during the implementation phase, and may be passed on to the proposed National Digital Health Mission on its constitution.
    The report has improved vastly due to the consultation processes, as several of the suggestions have made a qualitative difference to the usability, feasibility and acceptability of the report. The committee gratefully acknowledges the interest shown by the respondents in providing very valuable inputs. The NDHB is to be considered as a living document. There is scope for further improvement over the next few years.
    The National Digital Health Blueprint keeps the overall vision of NHP 2017 in perspective and recommends a pragmatic agenda to start with, adopting the principle of ‘Think Big, Start Small, Scale Fast’. It forms the foundation on which the edifice of an entire National Digital Health Eco‐system can be built in a phased manner.
    I wish to acknowledge the contribution made by all the members of the Committee and several other experts who have enriched the discussions.
    J Satyanarayana (Chairman of the Committee)
    NEW MENTAL HEALTH BILL BANS ELECTRIC SHOCKS, GIVES RIGHT TO TREATMENT

New Delhi: The right of mentally-ill patients to decide their mode of treatment, decriminalizing suicide for them and a ban on electric shock treatment without anesthesia are some of the progressive provisions of the new mental health bill proposed by the Indian government.
“The bill was passed by the union cabinet last week,” Health Secretary K Desiraju told IANS.
Once passed by the parliament, the bill will repeal the Mental Health Act, 1987.
If passed, it will make access to mental healthcare a right for all. Also, such services would be affordable, of good quality and available without discrimination.
An estimated 10-12 million or one to two per cent of the population suffers from severe mental disorders such as schizophrenia and bipolar disorder and nearly 50 million or five per cent from common mental disorders such as depression and anxiety, yielding an overall estimate of 6.5 per cent of the population.
Keeping in mind the rising number of people suffering from mental ailments, the new bill aims at introducing progressive and far-sighted steps for patients, a senior health official told IANS.
“If a person has given an advance directive to the state that he or she should not be admitted to a facility without consent, it will be heeded to,” the official said.
This was proposed keeping in mind that a person can be branded mentally ill by family members in property or marital disputes.
The official said the 1987 Act had vested extraordinary powers in treating psychiatrists. The bill now states that an individual can himself or herself take a call on the treatment.
Psychiatrists, however, feel that by giving powers to a mentally-ill patient to decide on the course of treatment would put him at risk.
“A patient in a psychotic phase or a mentally-ill person doesn’t have the judgmental capacity to decide what is good or bad for him or her. So, trusting that person to make the correct choice in such circumstances might be risky,” Dr Samir Malhotra, head of the department of psychiatry at the Max hospitals, told IANS.
He further said that the bill would significantly reduce the powers of the doctors in deciding the patients’ well-being.
The bill also provides the right to confidentiality and protection from cruel, inhuman and degrading treatment, in addition to the right to live in a community. Legal aid will also be extended to them.
It bans the electric-convulsive therapy or the electric shock treatment without anesthesia and restricts psychosurgery.
Under the provisions of the bill, the government has an obligation to provide halfway homes, community caring centers and other shelters for mentally-ill people. Halfway homes, common in the western world, are for those patients who have recovered but need 24-hour monitoring and rehabilitation.
It also envisages a mental health review commission, which will review all admissions in mental health institutions beyond 30 days.
The commission would be a quasi-judicial body to oversee the functioning of mental health facilities and protect the rights of persons with mental illness in these facilities.
The bill also proposes to provide free care to all homeless, destitute and poor people suffering from mental disorders.
Trying to address the needs of the families, caregivers and those of homeless mentally ill people, the new legislation provides for setting up central and state mental health authorities, which would act as administrative bodies.
The bill decriminalizes suicide for mentally ill patients.
Reacting to this provision, Dr Malhotra said: “In certain circumstances it can help, as police action is sometimes cumbersome, but it can also not be denied that criminalizing suicide had acted as a deterrent in some cases”.
Under the Indian Penal Code, suicide is a criminal act and a person can be jailed for at least one to three years.
The Indian government had launched the National Mental Health Programme (NMHP) in 1982, keeping in view the heavy burden of mental illness in the community, and the absolute inadequacy of mental healthcare infrastructure in the country to deal with it.
According to eminent psychologist Aruna Broota, many Indian mental facilities and institutions are in a pathetic state and need to show a sympathetic attitude towards these people.
“The situation is slightly better in south India than in north India, but generally the condition of these facilities is very bad,” she told IANS.
“One can have as many fancy bills and laws you want. But ultimately, it is us the society that has to accept that mental disorder is like any disease and we need to accept this,” she added.
NMC act and controversies
Lot of controversies have been heard of about scrapping of MCI and introduction of NMC. Introduction of NMC is just not about the change of name but the whole system. There are many wrong self-created misconceptions that has been deliberately circulated through social media to form public opinion based not upon facts but upon some misleading documents and ready to post letters. One of the wrong perceptions that NMC will be controlled by Non-Medicos. In reality out of the total 20 members, 13 are from medical fraternity including the 5 most important persons (Chairman and 4 Presidents of the Boards). What is wrong if there is representation from Allied fields like Health Research, Pharmaceutical, Civil Society, Finance & Law. Only there will be one or two bureaucrats from MOHFW. Another point raised is about the selection procedure of the members of NMC. It’s true that none of the members in NMC will be elected democratically but will be selected by a High-Powered Selection & Search committee. Everything that is democratic like the present MCI need not be taken as granted that it will function optimally without corruption. All the members of Parliament and that of the State Assemblies are also elected democratically, but does that mean that all of them are honest and efficient. In fact, when people are selected, there are more chances of getting efficient people rather than in election where only numbers matter. Profiteering by allowing private colleges to charge fees as per their whim was another allegation against NMC. The truth is that NMC will prescribe norms for determination of fees for a proportion of seats not exceeding 40% in private medical colleges. My further contention is that under the present MCI was there any norm for fee fixation for any proportion of seats in private medical institutes. Govt. control on medical associations is another baseless allegation against the proposed NMC Bill whereas in reality nothing has been mentioned about this aspect in the bill. Last but not the least is the objection regarding National Licentiate Examination. Let us first try to understand why it is needed to the same extent as NEET. If NEET is implemented in proper spirit, it will filter out the undeserved students from getting admitted in Private Medical Institutes in India, But the story does not end there. It is true that the exit exam in each Term is governed by the respective Universities but many universities least bother about how students write their theory exams. In many private medical colleges, the college authority themselves arrange full scale malpractice in theory exam. What can be expected from such students passing out from such medical colleges. When students will have to mandatorily sit in a centrally controlled uniform Medical Licentiate Exam, it will in the long run change their mindset that there is no use in clearing university exam by unfair means as those students are going to get exposed in the Medical Licentiate Exam. Moreover, merit list will be prepared based on the results of this exam for PG admissions and those not featuring in merit list but having the minimum qualifying marks w NMC
The Health Ministry has moved a Cabinet note on the Bill seeking to replace apex medical education regulator Medical Council of India (MCI) with a new and transparent body, the National Medical Commission (NMC). The note was moved this Wednesday after a Group of Ministers (GoM) headed by Finance Minister approved the draft Bill enabling forward movement in the area of medical education reform which began last year with the introduction of National Eligibility-cum-Entrance Test (NEET) for undergraduate and postgraduate admissions. The National Medical Commission (NMC) Bill, 2017, sent for inter-ministerial consultations now, seeks to subsume the MCI in the commission which will have four autonomous boards tasked with conducting undergraduate and postgraduate education, assessing and rating medical institutions, registering practitioners and enforcing medical ethics. A revolutionary aspect of this Bill is an exit examination which all MBBS graduates will have to clear to get practicing licenses. Called the National Licentiate Examination, it will be compulsory for medical graduates to clear for the purpose of grant of license to practice and enrolment in Medical Register(s). The idea is to test the quality of the medical graduate. This exam will also be used as NEET for postgraduate admissions, once the law takes force. As of today, CBSE conducts NEET UG and NEET PG for the purpose of medical admissions. The new Bill contains an important diversion (from the original draft a NITI Aayog expert panel prepared earlier this year) the GoM is learnt to have allowed in respect of the manner of selection of NMC members. The original NMC Bill which a NITI Aayog committee headed by its vice-chairman drafted, argued against elections to pick members of the commission. This argument was in sync with the 92nd report of the Parliamentary Standing Committee on Health, which, while recommending the scrapping of MCI, castigated the MCI for electing its members. The committee said: “MCI system where the regulated elect the regulators is flawed.” The new NMC Bill cleared by the GoM is learnt to have proposed an increase in the strength of commission members from 19 (originally suggested by NITI Aayog) to 29. The new Bill then says nine of the 29 NMC members can come through an election and the rest will be selected. This change, sources said, followed overwhelming opinion in favor of some elected component in the NMC. The Bill seeks to replace the Indian Medical Council Act, 1956, after the parliamentary committee on health concluded that the MCI had become a corrupt body and had failed to fulfil its mandate. It was originally drafted by a committee set up by PM and comprising, Additional Principal Secretary to the PM; NITI Aayog CEO; and, then Health Secretary. The PM had referred the Bill to a GoM for broader consultations in one of the Cabinet meetings earlier this year. The National Medical Commission (NMC) Bill, 2017, provides for an exit exam which MBBS graduates will have to clear to get practicing licenses Once the law takes force, this exam will also be used as NEET for postgraduate admissions. CBSE currently conducts NEET UG and NEET PG GoM allows elected component in NMC. Nine of the 29 proposed members will be elected, while the rest will be selected will be given the License to Practice Modern Medicine in India.
PCPNDT – Medicolegal Secrets
(written By Dr Vivekanshu )
Man & Machines
“Terror of Making Error” among Doctors under PNDT
“Doctors must play with Machines by the specific Country’s Rules”
Q. What is PCPNDT?
PCPNDT=Pre conception & Prenatal Diagnostic Techniques (Prohibition of sex selection) Act 1994.1
Q. What does PNDT Law regulate?
• PNDT Law regulates “Testing & Telling”
• Law regulates fetal testing, but does not prohibit testing, what is prohibited is disclosure of sex of fetus.
Q. What is difference between legal terms in PNDT act- “Permitted, Regulated, Authorized, Registered & Prohibited”?
• Permitted – Name, Place, Person, indication, method, duration
• Regulated – Permitted to kill in specific non-medical indications (population control)
• Prohibited- Punishment for doing act not permitted.
• Registered – Document what you do, when & why.
• Authorized- Take Documented Permit License authored by
o Legal Limiting body,
o for limited period,
o by limited doctors,
o using limited technology,
o for limited indications,
o in limited population,
o at limited place,
o in limited surroundings.
Q. How PNDT “Rules changed with Time” for Permitted, Registered, Regulated, Prohibited, Authorized?
• Before 1971- Abortion is illegal as per IPC
• 1971- Abortion is legal- to control population
• 1994- Sex selective Abortion (Amniocentesis) is illegal.1
• 2003- Sex selection (with USG), Genetic studies) for abortion is illegal.2
• 2016- IVF for sex selective reproduction is illegal
Q. Why Doctors need to be legally controlled, regulated & prohibited?
• Magical Medical technology – Playing with God
(Technology needs money, to make more money “Money attracts Money”)
Technology for prolonging Life & Looks
• Implants & Transplants – Major Revenue generators.
• Implants in joints, bones, teeth, breast, face, genitalia
• Transplant- kidney, liver, heart, lung, cornea, bone-marrow, genitalia
Technology for continuing Lineage- generation (Inheritance of money)
• Sex Selection in choosing male child
• Pre- implantation genetic diagnostics- Perfect child
• Infertility – Assisted reproduction – IVF
• Intrauterine insemination -Surrogacy in infertile couples
• Wanting Child in single parent family
Technology for getting rid of unwanted pregnancy
• Unwanted fetus – feticide
• Unwanted Female fetus – Female feticide
• Wanted “Designer” child
Q. How to easy recall Forms in PNDT?
Maintain “ABC” in Your USG center
• Form ‘A’- Application for registration of an USG center
• Form ‘B’- Batch displayed of registration certificate
• Form ‘C’- Cancelled- Rejection of application for renewal of registration
Maintenance of Records – Form D-G
• Form ‘D’- DNA Diagnosis in family – Genetic Counselling centers
• Form ‘E’- Examining DNA for abnormalities- Genetic Laboratories
• Form ‘F’- foetus USG- Detail address of foetus family
• Form ‘G’ – Gravida –Pregnant consent form
Q. What are “added” powers for AA (Appropriate Authority) in PCPNDT amendments in 2003?
Sonography- “11 S”- Sex selection PCPNDT amendments – 2003
AA can
• Suspect PCPNDT violation on complaint received
• Sting Operation with decoy clients for Sonography
• Suspend the Sonography registration
• Summon the Sonography owner
• Suo motto cognizance
• Show Cause Notice for temporary suspension of registration
• Search warrant of Sonography centre,
• Seizure of Sonography
• Seal the Sonography machine
• Sale & purchase monitoring of Sonography
• Scrutinizing Records- Form F – Sonography
• Statement Recording from accused and co accused
Q. What is misuse of “License Raj” related to PNDT?
PNDT officers victimize doctors – Many complaints made by doctors to Govt
• Allegation of Extortion of money from Gynecologists, for renewing license.
• Allegation to Blackmail Radiologists to seize the USG.
Doctors suffer
• IRREPAIRABLE LOSS,
• Financial HARDSHIPS
• Penal erasure
• DEFAMATION
• Outcaste from medical community
• Harassment of doctors by AA in PCPNDT- Undemocratic & violation of article 21 of constitution
Q. Who Acts in GOOD FAITH as AA under PNDT?
• Doctor
• CMO
• Police
• Magistrate
• IAS
• Judge
Q. What are Acts in GOOD FAITH?
Definition of “Good faith”- A thing shall be deemed to be done in good faith, where it is in fact done honestly whether it is done negligently or not.”
• Absence of “personal malice” may be relevant fact in dealing with the plea of good faith, but its significance or importance can’t be exaggerated.
Q. What are specific sections of Protection of Legal Action taken by AA in Good faith?
• PCPNDT- Section 9 & 31
• MTP – Section 8
• HOTA- Section 23
• Registration of Births and Deaths Act- Section 28
• Mental health act amendment -2017
• MCI Act- section 31
• No suit, prosecution, or other legal proceeding shall lie against any officer for anything which is in good faith done or intended to be done under this Act.
Q. Does it require to be Expert Specialist to become AA in PNDT?
• Good faith gives immunity – RMP can do surgery in good faith in emergency situation to save a life, as per law:
– No Qualification is asked
– No experience questioned
– No expertise expected
• Unlike acts done by doctors working AA in MTP, PNDT & HOTA, Doctor should have minimum qualifications as Expert Specialist, experience & expertise, before he does abortion, does USG, does amniocentesis, does transplant. So, doctor has to do MCh in transplant surgery of the specific organ, before he can be authorized by doing transplant. But any govt MBBS doctor can be appointed by Govt in AA- legal bodies to regulate illegal acts of abortion, transplantation.
Q. Why PNDT Crime is called a Racket or Scam in News?
• Daily USG for sex determination is a continuing offence
• Section 178 (c) CrPC deals with a situation where an offence is continuing one, and continues to be committed in more local areas than one.
• A continuing offence means that if an act or omission on the part of the accused constitutes an offence and if that act or omission continues from day to day, then a fresh offence is committed every day on which the act or omission continues.
Q. What is difference between legal Act, Bill & Rules?
An act is an official copy of a statute or regulation that is initially presented in the form of a bill and after being verified it is passed in the process of a legislature. An act is enforced in a legal manner. In context to an act, rules define the guidelines that must be followed for the successful implementation of the act.
A bill is the draft of a legislative proposal, which passes through various stages in order to become an act. It can be viewed as one of the sources of law. The acts are used for the creation of new laws or changing an existing law. The process of an act to become a law may vary from one country to the other.
Act is legal framework to define & regulate the illegal secret acts of criminals in specific field, by specific technology, done by specific person, on specific population, for making money illegally.
Rules are the procedures laid down for the authority taking action against the criminal doing the specific act. Rules can be enforced at any level. For example, a teacher might form a rule stating that every student in her class needs to show her homework every day. The rules of these types are not rigid and depends upon the enforcing entity that how strict it is and what steps it has taken to ensure the proper implementation of the rules.
Q. How do court analyses Criminal Act in Law?
• Culprit
• Victim
• Date, time & Place of crime
• Intention for crime
• Damage & loss to victim
• Eye witness & Documentary Evidence of crime
Q. How PNDT act is configured?
• Illegal Act- Selective Child killing
• Crime – Selective Child making, kills unwanted gender
• Tools of crime – USG, Echo, Amniocentesis, CT, MRI
• Alleged Criminal – Gynecologists, Radiologists, Cardiologist, Sonologists, Veterinary Doctors.
• Govt Hospital CMO/ District Magistrates – Appropriate Authority (AA)
• IAS officer team – Authorizing committee
• Legal Cell – Advisory Committee advises AA
Q. How to easy recall the facts about “Gender specific Medicolegal Crimes”?
• W- What’s the crime- Sexual assault, Induction of sex selective Abortion.
• W- Who did it
• W- Where- Place of crime
• W- When- time & Date
• W- Why did the crime- Intention
• W- Whom- To Whom- Women
• W- Who is killed- Would be a Woman (female foetus)
• W- Witness of crime- pregnant Woman- Hostile
Q. Why Hospital owner is arrested in illegal organ transplant rackets & illegal abortion & sex determination, although he has done no illegal abortion by himself?
• Owner of place of illegal work
• Allowed occurrence of repeated crimes
• Maximum money sharing in the deal
• Mastermind in procuring patients
Q. What are Dilemma’s related to PNDT act?
“Dilemma of AA – to report or not.”
“Dilemma of Police- to arrest or not (Cognizable)”
“Dilemma of Court – to bail out or not (non-bailable & Non-compoundable)”
• Role of AA, Police & court is to save life of female foetus.
• In human body related crimes- attempt to murder, physical torture, sexual assaults etc., police can immediately arrest the suspect without warrant, to prevent destruction of evidence or further attempts to harm victim & witnesses.
• Duty of Police is to maintain law & order in society, by stopping further crime by arresting the suspected criminal (Doctor/ nurse).
But to justify arrest, police need documentary evidence by an independent witness, so MLR by AA needed.
• Arrested Doctor/nurse can be bailed out in hours by court & can attempt to kill the female foetus again.
• So, to decide whether the accused can be bailed out or not, court needs expert opinion whether the criminal act was an attempt to diagnose gender for aborting female foetus.
Q. Why shouldn’t Police register FIR in PNDT?
As per PNDT rules. FIR should not be filed for any act of violation of PNDT. Instead, the Police should work with AA to file a court case against the alleged doctor, as per the complaint by victim.
Q. Is decoy “sting operation” by AA legally permitted?
• AA can conduct decoy operation to generate evidence, when intelligence has been gathered about a centre or a facility that is conducting or aiding illegal sex selection.
Ref: – SOP Guidelines for AA in PCPNDT by MOHFW – Aug 2016.
Q. What are doctor’s Dilemma in PNDT act?
• Presumption about doctors alleged to be guilty -Section 24 – PCPNDT
• Presumption by AA that every doctor doing USG is guilty of sex determination, until proven otherwise.
• Burden of proof is not on the prosecution.
• It’s the Doctor, who has to prove that he is not guilty just like in Rape & Dowry deaths.
• Offence under the PCPNDT act is cognizable, non bailable & non compoundable
PNDT Offence: cognizable, non-bailable & non-compoundable
Cognizable – offence in which police can arrest without warrant from magistrate.
How to recall list of Cognizable Offences allegedly done by doctors?
10 R’s mnemonic of Cognizable Offences for easy recall
• Rape
• Ragging students
• Ragging wife by in-laws for dowry – causing death- 304B
• Rioting
• Robbery
• Recognizing sex of foetus (PCPNDT violation)
• Removing life (murder) – 302 IPC
• Removing organs (HOTA violation)
• Removing foetus (female feticide)- MTP violation
• Rash act of killing – 304 A – Negligence
Q. What is the Problem with the PNDT act?
• PNDT Act is still Toothless piece of legislation for quacks in villages
Q. What are Bottle necks & Clutches for doctors in PCPNDT ACT?
• Pregnant needs Prenatal investigation for foetal well being
• Prohibition of Female feticide
• Prohibition of sale of sex identification device- Sonography
• Prohibition of Advertisement of sex selection
• Prevention of misuse of sex selection
• Punishment for sex selection by prosecuting only doctors
• Penalties to doctors – Penal Erasure of registration to practice
• Permission to detect foetal anomalies
• Pro-life & Pro-choice issues
• Public Display of Signboard- No foetal sex detection
• Public Obligation of reporting PCPNDT violation
• Patrilineal inheritance in society
• Prescription for doing prenatal procedures- USG
• Portable USG can’t be shifted out from registered premises
• Protection of doctors against violence by patients is lacking in act
• Presumption by AA that every doctor doing USG does sex determination, until proven otherwise
• Paperwork – documentation of Form F, consent
• Preservation of Records
Q. What the Doctor Wants in PNDT act?
• Protection from getting arrested
• Prevention of legal hassle
• Progression in clinical Practice & career
• Permission to independent decision making in critical situations in emergency
• Doctors want to become Whistle-blowers & inform AA, if any pregnant asks for foetal sex.
• But AA has no power to take any legal action against pregnant lady.
• Police do not take any action against pregnant, has no legal provisions for preventing abortion & MTP allows pregnant to seek abortion for controlling family size.
Q. How PNDT is misused against doctors- False allegations by pregnant mother’s family?
• Extortion of money from doctor
• Blackmail for Disclosure of gender of unborn foetus
• Alleged Negligence in prenatal care
Q. How PNDT is misused against doctors – False allegations by pregnant?
• Dowry – son preference
• Dowry Prohibition act, 1961
• Dowry Harassment- 498A
• Dowry Death- 304B
• Domestic violence act
• Discrimination by family members
• Disclosure of gender of unborn foetus
• Discard the Pregnant, forcing her to abort
Q. What are the usual allegations framed by Patient’s lawyer against Doctor doing illegal abortion causing PNDT violation?
• अस्पताल के डॉक्टरों ने मेरे ससुराल वालो से पैसे लेकर सोनोग्राफी से मेरे गर्भ में जुड़वाँ भ्रूण कि लिंग का पता किया, जब पता चला के एक भ्रूण लड़की है, तो मुझसे दहेज़ की मांग की, मेरे मायके वालो ने मना किया तो मुझे जबरदस्ती गैर-कानूनी कब्जे में अस्पताल रखा, जबरदस्ती खाली कागज़ पर मेरे हस्ताक्षर कराये, फर्जी दस्तावेज़ बनाकर मुझे एनेस्थेटिस्ट ने बेहोश कर के, गायेनेकोलोगिस्ट ने मेरा गर्भपात कर दिया.
Q. How above alleged complaint is dissected in legal format of IPC by court?
• 120 (B) IPC- अपराध को अंजाम देने के लिए साझा साजिश
• 34 IPC– दो या दो से अधिक व्यक्ति अपराध संयुक्त रूप
• (342) IPC= गैर-कानूनी कब्जे में रखना
• (468) IPC – धोखाधड़ी के उद्देश्य से जालसाजी
• (471) IPC-फर्जी दस्तावेज को असली की तरह इस्तेमाल करना
• 498A- IPC= Demanding Dowry & Domestic Violence
• Section 5 in MTP act- illegal abortion
• Section 23 in PNDT – illegal sex determination
Q. Why Doctors gets maximum allegations of misuse of PNDT?
“Documentary evidence of meeting the patient”
• Registration of patient
• Documentation of consultation
• Medical Investigation report like USG or amniocentesis mentions name of doctor reported & patient examined
• CCTV camera in public places
Q. What becomes the Evidence of Crime in PNDT?
• Documentary evidence (link between accused doctor & victim patient & unborn foetus)
– Hospital Registration form
– Prescription
– USG report & Forms
– Receipt of payment to Hospital
– Discharge summary
• All are missing in quacks doing female feticide, so AA fails to prove the crime in quacks & raids genuine doctors to complete monthly targets & finds faults in documents
Q. Why Doctors doing USG are presumed guilty simply on allegation by anyone?
Presumption about doctors alleged to be guilty -Section 24 – PCPNDT
• Presumption by AA that every doctor doing USG is guilty of sex determination, until proven otherwise.
• Burden of proof is not on the prosecution (victim’s lawyer- Public Prosecutor).
• It’s the Doctor, who has to prove that he is not guilty just like in Rape & Dowry deaths.
• Its contradictory to principles of Indian laws, as in other criminal cases like theft or murder, the burden of proof is on the prosecution.7
Q. Why Doctors doing USG face negligence charges under Consumer Protection Act, unlike doctors doing sterilization under Family planning scheme?
• PCPNDT act doesn’t protect the doctor from Consumer Protection Act
• Faulty USG procedure in diagnosing congenital abnormalities is negligence
• Unlike Govt family planning schemes- Sterilization in MTP act- Failed sterilization is not negligence.
Because in family planning, doctor is working for the government to control population, unlike doing USG for wellbeing of foetus & pregnant.
Q. Why doctors doing illegal sex selection & abortion – considered as “heinous crime”?
Both PCPNDT & MTP are regulating doctors taking care of pregnant, because identifying sex of foetus & doing abortion of unwanted sex is contradictory under medical obligations of doctor of saving lives.
Q. How AA should respond to a complaint regarding violation of the PCPNDT Act?
• AA should –
• – as far as possible, not involve police for investigating cases under the Act as the cases under the Act are tried as complaint cases under the Code of Criminal Procedure, 1973 (2 of 1974).
• – investigate all the complaints within 24 hours of receipt of the complaint and complete the investigation within 48 hours of receipt of such compliant.4
Q. Why pregnant mother is not arrested in illegal abortion of female foetus in PCPNDT & any illegal abortion under MTP?
• Court’s Sympathy for pregnant patient’s critical state- as Why would a mother will kill her own child?
• No financial gain
• No Motive to directly harm.
• Public Sympathy for Pregnant.
Q. What is Catch “22” situation for Radiologists in PNDT?
Prescription required by Registered Gynecologist for doing prenatal procedures in Pregnant- “Catch 22” situation
• A catch-22 is a paradoxical situation from which an individual cannot escape because of contradictory rules. … Catch-22s often result from rules, regulations, or procedures that an individual is subject to but has no control over because to fight the rule is to accept it.
• If radiologist refuses to attend midnight obstetric emergency without prescription, he is guilty of breaching medical ethics.
• Whereas if he performs USG without prescription, he becomes culprit in PCPNDT – by AA.
• Self-referral – can’t be done by Radiologists unlike Gynecologists, as they are not clinicians.
• Anger & aggression among pregnant & her relatives (lay persons) against radiologist for refusing USG.
Q. Describe horrible case of Radiologist murdered for refusing USG?
• Gruesome murder of Dr Manish Garg at a small place in Jind in 2014.
• Dr Garg was earlier beaten up and his hospital vandalized as he had insisted on asking for photo ID proof from a patient before conducting an obstetric ultrasound.6
• Requirement of photo ID proof is as per PCPNDT Act.
• Dr Garg had lodged a FIR and had provided CCTV footage of the incident but no action was taken against those responsible.
• this is not the first incidence of a doctor’s murder in Haryana, giving example of Dr Ranveer Choudhary who was killed around five years ago and Dr Raman, who was murdered in Bhiwani.
• Haryana government which on one side asks doctors to work in rural and backward areas and on the other side does not give them even a semblance of a sense of security through its law and order machinery.6
Q. What is Catch “22” situation for Doctors in PNDT?
• Catch “22”-Advertising Sex selection is illegal- Section “22” – PCPNDT5
• Balaji Films- Kyunki saas bhi kabhi bahu thi- had a scene of sex selection by doctor
• Advertising on website- Ayurvedic drug maker advertised
• Name suggests- “Putra Jeevak” by Patanjali
• Article written in Marathi Magazine- How to have baby boy by jyotish, Mantra, tantra
Q. What do the Doctor Wants in changes in PNDT?
• Protection from getting arrested
• Prevention of legal hassle
• Progression in clinical Practice & career
• Permission to independent decision making in critical situations in emergency
• Doctors want to become Whistle-blowers & inform AA, if any pregnant asks for foetal sex.
• But AA has no power to take any legal action against pregnant lady.
• Police do not take any action against pregnant, has no legal provisions for preventing abortion & MTP allows pregnant to seek abortion for controlling family size.
Q. What the Govt wants in PNDT act?
• Due recognition to foetal rights, but parents lose the right to choose child’s sex & lose the right to abort the unwanted gender of child.
• Control over medical technology & medical professional’s malintent ion for making quick money- Audit of USG- Form F
• Ethical use of new technology for further R & D
Q. How to easy recall Do’s & Don’ts for Doctors in PNDT?
All R’s mnemonic
• Register the Centre dealing with pregnancy
• Renewal of Registration before expiry date
• Registration certificate copy display in centre
• Rejection of Registration – do not continue USG
• Register the Doctor doing USG- Gynecologist, Sonologist
• Radiologist should update Resignation to AA
• Records maintenance up-to-date
• Report to AA monthly
• Retain all documents for at least 2yrs
• Receive Declaration from pregnant, that no sex detection
• Remain alert & careful for protecting your career
• Refrain from disclosing sex of fetus.3
References: –

  1. PCPNDT Act & Rules. 1994.
  2. PCPNDT amendments 2003.
  3. PCPNDT amendments 2014. http://cg.nic.in/health/pcpndt/Documents/GuidLine_02_21072016.pdf
  4. Standard Operating Guidelines for District Appropriate Authorities by MOHFW -2016
  5. Public notice in 2017 by PCPNDT committee in compliance to Hon’ble Supreme court directions via order dated 16-11-2016. http://haryanahealth.nic.in/userfiles/file/pdf/PNDT/2017/publicnotice_pndt_07032017.PDF
  6. Medicos body condemns killing of doctor in Haryana. TNN | Sep 12, 2014.
  7. Legal issues in Medical Practice. 1st Ed. 2016. Dr VP Singh. Jaypee publishers. Medicolegal outlook in PC- PNDT. Chapter 15, p 138.
  8. Difference-between-act-and-rule. http://www.differencebetween.info/difference-between-act-and-rule.
    prenatal sex determination hassles
    THE NEW ‘QUIT INDIA’ MOVEMENT?
    As a law-abiding doctor in medical profession for 22 years now, sometimes I really doubt that where exactly is this nation and its healthcare heading to.
  9. An honest highly qualified Radiologist who is willing to co-operate with the silly law like PCPNDT is liable to go to jail even for a small mistake in a 3-page form F …BUT AN UNREGISTERED UNQUALIFIED QUACK CAN PRACTISE SEX DETERMINATION WITH HELP OF A HAND HELD CHINESE MACHINE without fear.
  10. A patient can ask to a doctor openly that “is sex determination possible at your place? … BUT A DOCTOR HAS TO GIVE IT IN WRITING EVERY DAY…FOR EVERY SONOGRAPHY that he has neither detected nor disclosed the sex.
    Just imagine a minister taking oath from the president every time he enters his office…or a bureaucrat signing a paper on each file that he is not going to be corrupt…or the court proceeding requiring everyone in the court to vouch with The GEETA/QURAN/BIBLE about speaking truth each time he opens his mouth.
    This is how much the society has betrayed this noble profession… they are not happy YOU SIGNING THE AFFIDAVIT AT ONCE while registering in PCPNDT…THEY WANT YOU TO SAY IT EVERYTIME-EVERYDAY…. worst treatment than a criminal.
  11. In all the criminal cases the police-the prosecutor have to prove that the accused is guilty…BUT IN PCPNDT IT IS THE RESPONSIBILITY OF THE DOCTOR TO PROVE THAT HE IS NOT GUILTY…IN FACT HE IS LABELLED AS A CRIMINAL and GUILTY BEFORE THE TRIAL IS COMPLETE…because his machine is sealed on suspicion alone…his reputation-image is maligned by publishing his name in media the very next day…and his registration suspended till the court acquits him at its own leisurely infinite schedule of tarikh pe tarikh.
  12. A gunda /a politician can contest any election even if he is in jail…BUT A DOCTOR CAN NOT RENEW /REGISTER FOR A PCPNDT LICENCE just because he has a ‘criminal case’ for not filling some part of the FORM F
  13. On one hand the government wants strict regulation/governance on all the imaging modalities (including CT /MRI…even A scan for ophthalmic ultrasound is being included as ‘a scanner’ by an over enthusiastic authority) but ON THE OTHER HAND A SIMPLE BLOOD TEST IS EASILY AVAILABLE FOR ANYONE …WHICH CAN DETECT SEX AS EARLY AS 5 WEEKS OF PREGNANCY.
  14. The government doesn’t want a qualified well-trained Radiologist to visit more than 2 places and prevents him from utilizing his full potential BUT THEY WANT TO PROMOTE CREATING ‘SONOLOGISTS’ WITH MERELY 6 MONTHS TRAINING…. BECAUSE THERE IS SCARCITY OF QUALIFIED RADIOLOGISTS IN THE NATION.
  15. The judiciary is already crippled with a huge back log of millions of pending cases but THEY WANT TO CREATE THOUSANDS OF NEW ‘CRIMINAL CASES’ OUT OF minor clerical errors JUST TO HARASS the educated-white collar doctor. If ten thousand doctors are facing criminal cases in the ACT AGSINST SEX DETERMINATION, why are there not even 10 couples facing the same music?
  16. You are liable to face the charge of ‘not practicing within limitations of your specialty’ if you are a general physician and treat cardiac patients with your ‘limited’ knowledge (a recent high court verdict) BUT ALL THE AAYUSH DOCTORS (and now the pharmacists also) have THE PERMISSION TO TREAT ANY AILMENT WITH MODERN ALLOPATHIC MEDICINES…EVEN IF THEY ARE NOT TRAINED IN PHARMACOLOGY (because there is SCARCITY of doctors in Rural India…the court says…IS THE LIFE OF A RURAL INDIAN LESS PRECIOUS THAN THAT OF AN URBAN …to be treated carelessly by a half-baked inadequately qualified doctor ?! With the same logic, an auto driver should be allowed to fly an airplane because we don’t have adequate pilots.
  17. The super-rich cricketers are showered with gifts and exemption of import tax…but taxes on life saving medical drugs/equipment (including all the imaging machines like USG CT MR have hardly changed)
  18. A multiplex owner gets tax exemption for 5 years, IT industry gets enormous profits but have plenty of tax exemptions… BUT A DOCTOR OR A HOSPITAL who save lives of the citizens ARE LIABLE TO PAY ALL SORTS OF TAXES (property tax income tax profession tax octroi etc.)…and yes only a doctor is supposed to give handsome concessions… Do charity in his fees…
  19. Govt hospitals have gone to dogs because of non-availability of good doctors and funds but THE PRIVATE HEALTHCARE SECTOR (small clinics and doctor-run small medium hospitals) WHICH CATERS TO 85 % OF THE POPULATION OF THIS VAST COUNTRY is systematically being crushed with unjust regulations like clinical establishment act…ONLY TO FAVOUR THE cash rich CORPORATE SECTOR
  20. India has so many skilled IVF consultants and so many needy couples who are ready for donor eggs / surrogacy BUT THE NEW ART BILL is drafted with so much of vengeance against the doctors that ANY SANE /SENSIBLE SPECIALIST WILL KEEP HIM AWAY FROM DONORS/SURROGACY for all his life.
    And all those poor needy women/widows who can earn some 4 lack rupees legitimately out of surrogacy to support their families will not have this option of lending their ovum’s/wombs to others. If blood donation and organ donation is a service to humanity…why is ovum donation/surrogacy being looked upon so skeptically? then why make the rules so complicated?
  21. After spending millions on IIT, an engineer can fly to US without paying a paisa to the nation…BUT A DOCTOR HAS TO COMPULSORILY SERVE THE GOVT FOR 2 YEARS.
    This list can go on and on…but the real ‘icing on the cake’ is those ever-increasing incidences of VIOLENCE AGAINST DOCTORS…just because in this era of consumerism the consumers want a 100 % result…always- without trying understand limitations of medicine as a science!
    I just feel that there is a serious lack of common sense and complete absence of foresight amongst all the policy makers in HEALTHCARE… as a result- the inefficient but corrupt bureaucracy is going haywire, is not accountable for all the mess they all have created and resultantly the misery of the common population continues.
    I am ‘realistic’ rather than ‘optimistic’ and hence feel that if this is the way INDIA treats its doctors…the day is not far when GOOD Indian doctors will be left with no choice but to ‘QUIT INDIA’…the process has already begun (try talking to a few post graduate medical students…and you will realize)
    Prescription Drug Charges

Prescription drug abuse is a high priority for local and federal law enforcement. Because prescription drug overdose is the leading cause of accidental death in the United States, officials are taking prescription drug crimes more seriously now than ever.

This means if you are caught with a prescription drug charge, you could be facing serious consequences as police and the courts attempt to “send a message” to the rest of the population.

Charges
There are many ways that prescription drugs can get you into trouble with the law. The truth is: you can even face charges when the prescription is yours and it was written for a completely valid cause. While the laws vary widely from state to state, some common prescription drug crimes include:
Possession of a prescription drug without a lawful prescription
Obtaining prescription drugs by fraud
Forging a prescription
Selling prescription drugs, whether the original prescription is yours or not
Driving under the influence of prescription drugs
Doctor “shopping” (going to multiple doctors to obtain multiple prescriptions)
Identifying a prescription drug crime can be difficult for law enforcement in some situations. After all, who are they to determine whether or not you have a valid need for your pills? While being in possession of these drugs without a prescription is an obvious law violation, proving that you didn’t need your valid prescription to begin with presents much more of a challenge.
Prescription Drug Possession – Penalties

When it comes to prescription drug crimes and penalties, the charge and subsequent sentence you face depends on several factors, namely: what drug you are accused of possession, selling, etc., and how much of it you have. In some states, a single pill can warrant charges as serious as an entire bottle. In others, however, the quantity involved plays a bigger role.
Under the Controlled Substances Act, all drugs are classified by how dangerous they are into Schedules. Schedule I is the group of substances that are considered the most dangerous and addictive while Schedule V drugs carry the lowest risk of addiction. The chart below outlines the details of the federal drug schedules that most states have adopted.

Definition
Examples
Schedule I
Highest addiction risk
No accepted medical use
There are no prescription drugs classified as Schedule I substances.
Schedule II
High risk of abuse
High risk of physical and psychological addiction
oxycodone (OxyContin, Percocet), fentanyl, meperidine (Demerol), methadone (Dolophine), hydromorphone (Dilaudid)
Schedule III
Risk of abuse
Moderate or low risk of physical dependence, high risk of psychological dependence
Combination drugs containing less than 15% hydrocodone (Vicodin), not more than 90 mg. of codeine (Tylenol with Codeine), buprenorphine (Suboxone), ketamine, anabolic steroids
Schedule IV
Low potential for abuse
alprazolam (Xanax), carisoprodol (Soma), clonazepam (Klonopin), clorazepate (Tanxene), diazepam (Valium) lorazepam (Ativan), Rohypnol, sleep medications
Schedule V
Low risk of abuse
Cough medicines containing no more than 200 mg of codeine per 100 ml

The exact charge you face and the penalty heavily depend on the state in which you are charged. Many states follow the federally crafted Schedules precisely, while others have their own definitions in place.
In Arizona, for instance, you can be charged with a Class 5 Felony for “possession of narcotics” (oxycodone or morphine, for example) or a Class 1 Misdemeanor for “possession of dangerous drugs” which includes a variety of other non-narcotic prescriptions. In Texas, however, if you are caught in possession of a drug in what they call “penalty groups” 3 or 4 (which include most prescription drugs), you could face up to one year in jail and thousands of dollars in fines.
The best way to know for certain what you are up against is to discuss your case with a local criminal defines attorney, someone who knows how your state classifies and penalizes drug charges.
Sentencing Alternatives
Because accidental overdoses are becoming so widespread and illegal use of prescription drugs being called an “epidemic”, many jurisdictions are eager to help people accused of these crimes get drug treatment. If you are accused of a prescription drug offense, and especially if this is your first such offense, you may be able to avoid jail time by participating in drug treatment.
There are many alternative sentencing programs available. Drug courts are just one. These courts seek to help people bypass the traditional criminal courts in favor of courts that help them overcome addiction by following strict rules and attending drug treatment.
Even in jurisdictions where a drug court is not available, your attorney may be able to argue for leniency, or something called a deferred judgment, where you participate in probation (including treatment) in exchange for the charges being dropped.
Prescription drug offenses are serious crimes and should not be taken lightly. Let us put you in contact with a local criminal defense attorney today.
Problems with mental health act

Some of the problematic areas of the legislation are
a) definition of certain terms like mental health establishment
b) Capacity to consent for treatment (most problematic one)
c) Advance Directives
d) Nominated Representative
e) All issues /problems / litigation will be heard in mental health board which is a civil court (quasi-judicial body). Now most of the issues can be challenged in the Mental health board free of cost to the patient. Psychiatrist need to be there or hire a lawyer to defend.
No compensation for the time
Patient can also give complaints in medical council, consumer court, civil court, human rights commission, criminal court etc.
f) certain treatments are banned (ECT in children) need to take special permission
g) certain procedures are banned like seclusion
h) all research in mental health needs to get approval of Mental health authorities along with other existing once
i) Sec 107 and 108 prescribe severe punishment like two years imprisonment for not following the law
Brief problems of the present mental health care law ……… these are the few challenges one need to face
RECORD KEEPING: VARIOUS LAWS.
Medical record-keeping and the law in India
(Dr. Chandrashekhar Sohoni)
Deficient or inaccurate record-keeping is, by far, the commonest reason for legal sufferings of Indian doctors. Most of the penalization of doctors, whether under Consumer Protection Act or Pre-conception and Pre-natal Diagnostic Techniques Act, is based on defective record-keeping.
Following are the various legal provisions which mandate medical record-keeping by doctors and hospitals in India: –
1)–The Ethics Code Regulations, 2002 prescribed by Medical Council of India (MCI) under Indian Medical Council Act, 1956, regulation 1.3.1 states as follows: –
“1.3.1. Every Physician shall maintain the medical records pertaining to his / her indoor patients for a period of 3 years from the date of commencement of treatment in a standard proforma laid down by medical council of India and attached as Appendix 3.”
2)–The Clinical Establishment Act (CEA), 2010, section 12(1)(iii) provides for maintenance of medical records as a pre-requisite for initiation and continuation of registration of a clinical establishment under this Act. Since the CEA is a central Act that is optional for States, the rules framed under the Act by the adopting States will vary. However, there is a general guideline under CEA Rules, 2012 as follows:
“Copies of all records and statistics shall be kept with the clinical establishment concerned for at least 3 or 5 years or in accordance with any other relevant Act in force at the time under Section 12(1)(iii).”
3)–As per the provisions of the Limitation Act, 1963, civil suits for claiming damages can be instituted within 3 years of causation or discovery of damage, whichever is later. Thus, ordinarily, a patient aggrieved by an act of negligence of a doctor can file a civil case within a period of 3 years. However, under section 14 of the Limitations Act, the court can condone the delay in filing a case if the court is of the considered opinion that such delay is justified. Hence, a patient may be able to initiate legal action even after 3 years. This is especially important in cases of negligence related to pediatric patients. A patient who has suffered damage due to negligence of a doctor in childhood can initiate legal proceedings upon achieving adulthood. In such cases, courts may direct the doctor to present medical records which may be few decades old!
4)–As per section 24A (1) of the Consumer Protection Act (CPA), 1986, a consumer forum is allowed to admit a complaint only if the complaint is made within 2 years of the date of cause of action. Thus, under the CPA, a patient can ordinarily file a complaint against alleged negligence by a doctor within 2 years of the negligent act. However, under section 24A (2), the consumer forum can condone the delay in filing of a complaint if the forum is of the considered opinion that such delay is justified. Thus, a patient may be able to claim compensation via CPA even after 2 years. And in such a case, the consumer forum may direct the doctor to present medical records which may be few decades old!
5)–The Directorate General Health Services, Ministry of Health and Family Welfare (MOHFW) has specified period for which medical records should be preserved by hospitals (vide letter 10/3-68-MH, dated 31-08-1968) in Chapter XII of the Hospital Manual, 2002, as under: –
In-patient records — 10 years
Out-patient records — 5 years
Medico-legal records — 10 years
6)–Under the Pre-conception and Pre-natal Diagnostic Techniques (PCPNDT) Act, 1994, all prescribed records under the Act need to be preserved for a period of 2 years, and, in the event of a pending court case, till the final disposal of the case.
7)–Under the West Bengal Clinical Establishment Rules, 1951, (rule 18), all medical records need to be preserved for a minimum period of 5 years.
8)–As per Punjab Medical Manual (1934), medical records are to be preserved for 12 years.
9)–As per Income Tax Rules, 1962, Rule 6F (3), a medical professional need to keep and maintain for a period of 6 years from the end of relevant assessment year, the following: –
(i) A daily register of patients in Form 3C.
(ii) An inventory of the stock of drugs, medicines and other consumable accessories used for the purpose of his profession, as on the first and the last day of the previous year.
Thus, in this article, I have summarized the various laws in India which mandate time-bound record-keeping, both for in-patient as well as out-patient services. In my articles to come next, I shall discuss as to why accuracy of medical records in legally imperative, and how that can influence outcomes in medico-legal cases.
Revalidation

There has considerable talk of the eminent arrival of revalidation and annual appraisals for doctors in India. There is no clear direction or plans on how this process will be enforced or is planned. We know that this idea has been borrowed from the United Kingdom and I will try and explain how this system works here. The introduction of medical revalidation in the United Kingdom provides a key lever for healthcare improvement. Medical revalidation reinforces the duty of every doctor to meet their professional obligations as regards appraisal and revalidation. Revalidation of doctors is a key component of a range of measures designed to improve the quality of care for patients; it is the process by which the General Medical Council confirms the continuation of a doctor’s license to practice in the UK. The purpose of revalidation is to assure patients and the public, employers and other healthcare professionals that licensed doctors are up to date and fit to practice. Doctors in the UK have to undergo an annual appraisal and revalidation every 5 years. Responsible officers rely on robust appraisal outputs to help determine their periodic recommendations about doctors to the General Medical Council. As well as supporting the requirements of medical revalidation, appraisers help the doctors they appraise to reflect on their work and to identify their learning needs and career aspirations. They then work with the doctors to plan their future development in line with these needs, integrating with those of their employer(s) and the NHS. Well, conducted appraisals can improve job satisfaction and performance and may ultimately increase the quality and safety of patient care. Medical Appraisal is an annual professional review of your entire scope of practice providing you with an opportunity to reflect and learn from the year gone by. It is not a performance review or a judgement on your skills and knowledge. An appraisal is a platform to showcase your achievements for the year and structure a SMART personal development plan for the future. A good appraisal for the purposes of revalidation meets the standards of the Good Medical Practice (GMC) Framework for Appraisal and Revalidation and is underpinned by the following principles: It is annual. It takes account of a doctor’s whole practice and conduct. It takes into account and discusses the following six types of supporting information collected by the surgeon: Continuing professional development (CPD), Quality improvement activity, Significant events, Feedback from colleagues, Feedback from patients, Review of complaints and compliments. It includes both a formative element, revolving around the surgeon’s professional development, and a summative element, assessing the performance of the surgeon since the last appraisal. The focus throughout the appraisal process should be your reflection on both your activity and the outcomes as a result. It is essential to ensure that all medical practitioners have access to an experienced appraiser who is able to guide and assist them successfully through the key medical governance processes. The Medical Support Union and Medical appraisals the UK are fine examples of organizations that are committed to working with doctors and other healthcare professionals like nurses, midwives and other healthcare professionals by providing them with a comprehensive appraisal platform that meets their professional regulatory requirements as set out by the NHS procurement framework. We hope that revalidation in India takes shape and borrows the best concepts of the UK revalidation system.
Shakoor v Situ
Shakoor v. Situ (t/a Eternal Health Co) [2000] 4 All ER 181; [2001] 1 W.L.R. 410; (2001) 57 B.M.L.R. 178; Independent, May 25, 2000; is a first instance case in English tort law on the standard of care appropriate for an alternative medicine practitioner. Its controversial ruling elaborates on the “responsible body of medical men” test from Bolam v. Friern Hospital Management Committee.
Mr Abdul Shakoor went to a Nottingham based Chinese herbalist, which traded as the “Eternal Health Co.”[1] Mr Kang Situ, who ran the herbalist had trained for five years in China, gaining both a traditional “medicine” and “modern” medical qualifications. His grade was “excellent”. He had no British professional medical qualifications. In November 1994, Mr Situ prescribed a course of Chinese herbal remedies for Mr. Shakoor’s benign lipomata, a skin condition, which produces fatty tissue that lies just below the skin, but causes no risk to health. There is no treatment in the UK, except surgical removal. Mr. Shakoor was given a mix of twelve herbs in ten sachets which were to be taken on alternate days after a meal. After nine doses Mr. Shakoor got ill, nauseous, his eyes went yellow and he suffered heartburn. He vomited, and had abdominal pain. He went to hospital, and was diagnosed as having “probably hepatitis A”. His liver failed, he had hepatic necrosis. He had an operation, but he died in January 1995. In the post-mortem, his liver was found to contain Bai Xian Pi, or dictamens dasycarpus, which some evidence suggested could be hepatotoxic.
Bernard Livesey QC found that there was no way to establish that the herbs could be known to contain toxic substances. Yet on the balance of probabilities, the herbal concoction was the cause of death. It was held that Mr. Shakoor had an “idiosyncratic” reaction, a rare and unlucky allergic response to the herbal mix. He noted,
“unlike some alternative therapies, TCHM has a long and distinguished history; it has an oral tradition extending back some 4,000 years or more and a written tradition extending back some 2,000 years. It is practiced alongside modern medicine in China and accordingly, I am told, a larger proportion of the world’s population is treated by it than is treated by modern or western medicine. However, I learned little during the course of this trial as to the extent of current teaching, research, monitoring and verification of its practices in China or elsewhere.”[2]
He considered the argument that an herbalist should be held to the same standard as a normal NHS doctor, but disagreed.
“The Chinese herbalist, for example, does not hold himself out as a practitioner of orthodox medicine. More particularly, the patient has usually had the choice of going to an orthodox practitioner but has rejected him in favor of the alternative practitioner for reasons personal and best known to himself and almost certainly at some personal financial cost. Those reasons may include a passionate belief in the superiority of the alternative therapy or a fear of surgery or of reliance (perhaps dependence) on orthodox chemical medications which may have known undesirable side effects either short- or long-term or both.[3]
So long, said Livesey QC, as the herbalist complies with the UK’s laws, does not prescribe prohibited or regulated substances under the Pharmacy and Poisons Act 1933, the Medicines Act 1968 or the Abortion Act 1967, so long as the herbalist takes steps to keep abreast of pertinent information in the “orthodox” medical journals, it is appropriate to hold his standard of care to that of what a reasonable herbalist would do. In this case the prescription had not been inappropriate for a reasonable herbalist, and accordingly Mr. Situ of the Eternal Health Co. was not liable for the death of Mr. Shakoor.
Should Code of Medical Ethics be modernized
Last month the American Medical Association wrapped up its annual meeting in Chicago, where it has reached the final stages of modernizing its 167-year-old Code of Medical Ethics, last updated more than 50 years ago. The central role of ethics in medicine is reflected in the fact that, at the AMA’s first meeting in 1847, it treated the establishment of a code of ethics as one of its two principal orders of business. Much in medicine has changed since 1847, but this founding document, which most physicians and patients have never seen, still offers important insights that deserve to be reaffirmed.
Spanning 15 pages, the 1847 Code of Ethics addressed just three fundamental concerns: the duties physicians and patients owe each other, physicians’ duties to each other and the profession at large, and the reciprocal duties of the profession and the public. This structure, focused on moral duties, evinces an important feature of the authors’ view of medicine. Namely, medicine is essentially a moral enterprise, grounded in mutual responsibilities, in which patients, physicians, and the public unite to serve the interests of the suffering.
In fact, the preamble to the 1847 Code of Ethics states explicitly that medical ethics “must rest on the basis of religion and morality.” Ethics is not merely a matter of consensus, and the boundaries of professional ethics are not outlined by what a particular patient or physician might happen to agree to. The fact that an employment contract or informed consent form has been signed is insufficient. Professional ethics requires loyalty to ideals that transcend any particular person or group of people. Like taking an oath, it rests on the presumption that professionals serve something higher than themselves.
The preamble to the 1847 Code also acknowledges that, in framing their code of ethics, the authors have “the inestimable advantage of deducing its rules from the conduct of many eminent physicians who have adorned the profession by their learning and piety.” It explicitly holds up the example of the “Father of Medicine,” Hippocrates, by whose conduct and writing the duties of a physician “have never been more beautifully exemplified.” The Code’s authors emphasize that these ideals are not only aspirational but achievable, having been exemplified by “many.”
The first chapter stresses the physician’s duty to answer the call of the sick, which is all the deeper and more enduring “because there is no tribunal other than the physician’s own conscience to adjudge penalties for neglect.” In other words, the Code entrusts the ethics of medical practice not to lawmakers, the courts, or hospital executives, but to the conscience of each physician. We can detect and punish violators, the Code’s authors are saying, but it is impossible to legislate goodness, whose flame must ultimately burn nowhere else but in the hearts of professionals themselves.
The first chapter also states explicitly that physicians should never abandon a patient because a case is deemed incurable. In an era obsessed with improving measurable outcomes such as length of stay and cost of care, many of today’s healthcare leaders need a reminder that a physician’s contribution cannot be fully assayed in terms of cures. Incurable does not mean hopeless, and it is always possible to care well even for those who are dying. The authors state that physicians should strive to be “ministers of hope and comfort to the sick.”
In our day of shifting insurance contracts and medical super-specialization, physicians and patients are often strangers to one another. The second chapter of the Code stresses that, as much as possible, patients should entrust their family’s care to one physician, enabling a relationship to build over time. Simply knowing a patient’s vital signs, physical examination findings, and laboratory test results is not enough. The Code’s authors recognize that good medicine requires physicians to know their patients’ life circumstances, including the families and communities of which they are a part.
In stressing that physicians should be devoted to ends beyond self, the Code also invokes gratitude on the part of patients. The services physicians render, it says, “are of such a character that no mere pecuniary acknowledgment can repay them.” What transpires between patients and physicians, in other words, is not primarily an economic exchange. Simply tending to the elements of a legal contract would not completely fulfil it. To the contrary, the intimacy and dedication at the core of a good patient-physician relationship should inspire enduring gratitude.
Today we tend to see medicine as a scientific enterprise, placing our hopes in the advancement of knowledge and technology. But in the second chapter, the Code of Ethics argues that “no scientific attainments can compensate for want of moral principles.” Everyone holds out the hope of cures for cancer and Alzheimer’s disease, but good medicine is not merely good science. Science helps us understand how to relieve suffering, but it does not explain why should want to relieve suffering in the first place. For that, we must look to ethics and such extra-scientific virtues as compassion.
Today we take for granted the mass marketing of healthcare. But the 1847 Code regards advertising as “derogatory to the dignity of the profession.” There is an important difference between advertising and educating, and the two are not always easy to distinguish from one another. One aims primarily at inducing a customer to spend money, while the other seeks mainly to serve the needs of a patient. To advertise is to make a plea for customer’s business, thereby placing the relationship on a primarily economic footing, while educating treats the dignity of the patient as primary.
This helps to explain why the Code tends to avoid terms such as payment, preferring instead the seemingly awkward formulation of “pecuniary acknowledgment.” In our day, healthcare reform has come to be understood to be about paying for healthcare, focusing primarily on questions such as who pays and how much. To the authors of the AMA’s first Code of Ethics, however, medicine is not a commodity that can be delivered from the back of a truck like a refrigerator. At its best, it much more closely resembles a friendship, a relationship that can never be bought and sold.
The third chapter of the Code declares that there is no profession that more freely dispenses charitable services than medicine. A profession is defined in part by the fact that its members aspire to something beyond money, suggesting that physicians should naturally put tending to patients ahead of the money that the provision of services might or might not generate. In fact, the opportunity to care for a patient pro bono, for good, constitutes one of the most self-defining and reinforcing activities in which professionals can engage.
In our own day, federal and state programs have led many physicians to expect to be compensated for all the care they provide. But the Code calls upon physicians always to care for individuals in indigent circumstances “cheerfully and freely.” It regards the care of the indigent not as an unfortunate burden that physicians must grin and bear, but as a positive opportunity. It is not enough merely to provide such care. It must also be done from the professional’s own free will and even cheerfully, because it is in doing so that professionals give life to what they really believe in.
Some might suppose that a medical code of ethics dating back 167 years could not possibly speak to contemporary physicians and patients. After all, such a code predates the discovery of x-rays, antibiotics, and the structure of DNA. Yet even as medical science evolves at an ever-quickening pace, the core of professional ethics remains essentially unchanged, in large part because goodness is grounded in human character. It is impossible to be a good doctor without first being a good person. As the AMA seeks to “modernize” its Code of Ethics, it would do well to return to the enduring insights of its founders
SUNSHINE ACT
The Physician Payments Sunshine Act (Sunshine Act) requires manufacturers of drugs, medical devices and biologicals that participate in U.S. federal health care programs to report certain payments and items of value given to physicians and teaching hospitals.
Toolkit for Sunshine Act Manufacturers are required to collect and track payment, transfer and ownership information beginning Aug. 1, 2013. Manufacturers will submit the reports to the Centres for Medicare & Medicaid Services (CMS) on an annual basis. In addition, manufacturers and group purchasing organizations (GPOs) must report certain ownership interests held by physicians and their immediate family members.
The majority of the information contained in the reports will be available on a public, searchable website.
Physicians have the right to review their reports and challenge reports that are false, inaccurate or misleading.
The AMA offers the following toolkit so you can make sure you’re prepared when it’s time to review your 2013 financial data before it’s published online next year.
Tally for doctors

These days, I have received many queries from different doctors who want to know how they can keep their records in tally 9. So, today, I have made special tally tutorial for doctors and medical professionals who are interested to maintain their records in tally by themselves.
A doctor can easily maintain their records in tally 9. Tally 9, the accounting software provides all facility to doctors for recording all transaction of their medical profession which are given step by step.
Aim of this tutorial
• Guide the doctor for recording of transactions in tally 9
• Provide steps to the doctors for recording of transactions in tally 9
• After this doctor is enable to do all voucher entries by himself in tally 9
Ist step
Create company for medical profession: –
Tally → Company Info → Create → fill the form of creation of company → Accept the form
when you fill the form of company creation, you have to select maintain option as Account only because, a doctor does not purchase or sale of goods he is not businessman but he is service provider. So, no need to select Account with inventory.
2nd Step
Creation of ledger accounts of medical profession: –
This step is relating to creation of ledger of medical profession. In medical profession, doctor does not sell the goods so first of all change the master group of Sale Account into Professional fees Account
for this
Gateway of tally → Account Info → Group → Alter → select Sale Account → write professional fees on the place of sale account and accept this master group
“Now, If doctor starts new profession, then there is no need to show opening balance in ledger creation but if doctor is old and convert all his accounts from manual to tally 9 , he has to write opening balance of his different assets and liabilities in ledger creation of tally 9 . “
Change Feature – F11
Maintain cost centre = yes
Change Configuration – F12
Use Advance entries in master under heading of Account Master = yes
Create Cost Center of each patient separately
Every cost centre must be for every patient.
Account Info → Cost Center → Create
Now create ledger
I am giving some examples: –
Gateway of tally → Account Info→ ledger → Create → Write following account under different groups
1 Capital of doctor Account (under Capital Account)
2 Equipment Account (Under fixed Assets Account
3 Furniture Account (Under Fixed Assets Account)
4 Consultancy Fees of Doctor Account (Under Professional Fees Account)
5 Operation Fees Account (Under professional Fees Account)
6 Gifts from patients Account (under Indirect income)
7 Inspection fees Account (Under professional fees Account)
8 Income from nursing home (Under indirect income)
9 Other professional income (Under professional fees Account)
10 Expenses of medicine purchases (Under indirect expenses)
11 Office Expense (Rent, lighting, water, salary of employees, telephone expenses (Under indirect expenses)
12 Depreciation on operation and extra- equipment’s and furniture and on other fixed assets (Under indirect expenses)
13 Motor car expenses (under indirect expenses)
14 Stationery expenses (under indirect expenses)
15 Conveyance expenses (under indirect expenses)
16 Any other expense (Under indirect expenses)
A doctor does not require to calculate gross profit because he is neither salesman nor sell any product. So, all expense will go under indirect expenses, there is no need to send any expenses under direct expenses group.
3rd Step
Pass the Voucher Entries in Accounting Vouchers
When any transaction happens
Ist when fees received from patients
for entering data in receipt voucher, take the following steps
1 Select accounting voucher at gateway of tally 9
2 Press F6 for receipt voucher
3 Press F2 date and enter current date
4 Select consultancy fees at ledger account
5 Enter Amount
6 Select the patient name at cost centre allocation
7 Enter brief case history, findings in voucher narration after this feed other voucher entries.
F4 – Contra Voucher
If a doctor deposit amount into bank or withdraw from bank at this time enter data in contra voucher
F5 Payment Voucher
All data entries relating to payment of all expenses
F7 Journal Voucher
All other voucher entries except above.
4th Step
Get the financial result from tally 9
Tally 9 is system which provide the financial information to doctors automatically in following way
• Brief history of patients
Display → statement of account → cost centre → cost centre breaks up
• prepare of income and expenditure Account (Change profit and loss account into income and expenditure account by going to alter position of groups)
• Prepare balance sheet
• Getting print of each report
The Criminal Justice and Public Order Act of 1994
a guide to the complexities of the Criminal Justice and Public Order Act of 1994.
This is a brief guide (courtesy of Freedom Network) to the CJA. A copy of the entire Act can be viewed online
Sections 61 & 62: Trespassers on land
Two or more persons trespassing on land (not including public highway land, e.g. verges & lay-bys) with the intention of living there may be directed to leave the land by the police if:
(a) there are 6 or more vehicles there; or
(b) if any damage has been caused to the land, e.g. crop damage); or
(c) ‘threatening or abusive words or behavior’ have been used against the occupier or their agents.
Not leaving ‘as soon as reasonably practicable’ is an offence; as is returning to the land within 3 months; the maximum sentence is 3 months in prison and/or a £2,500 fine. The police are also given powers to seize vehicles.

Sections 63, 64 & 65: Raves
A ‘rave’ is defined as a gathering of 100+ people, at which amplified music (‘wholly or predominantly characterized by the emission of a succession of repetitive beats'[!) is played which is likely to cause serious distress to the local community, in the open air and at night.
These sections give the police the power to order people to leave the land if they’re believed to be preparing to hold a rave (2 or more people); waiting for a rave to start (10+); actually, attending a rave (10+). Ignoring this direction, or returning to the land within the next week, are both offences, liable to 3 months’ imprisonment and/or a £2,500 fine.
Section 65 lets any uniformed constable who believes a person is on their way to a rave within a 5-mile radius to stop them and direct them away from the area – failure to comply can lead to a maximum fine of £1000.
Sections 66 & 67: Seizure
The arrangements authorizing police officers to enter land where a rave is in progress or anticipated. and which allow for the seizure, retention and charges for the confiscation of vehicles and sound equipment.
Section 68 & 69: Disruptive Trespassers
These refer to the new offence of ‘aggravated trespass’. Section 68 is committed by anyone trespassing on land in the open air (not including highways and roads) with the intent of intimidating other people engaged in ‘lawful activity’ on that land or adjoining land, so as to deter them, or obstructing/ disrupting them (‘lawful activities’ of course include such delights as fox-hunting; earth-raping etc. etc.…)
Section 69 gives the police sort of preventative powers to direct people to leave land. This direction can be made by a senior officer as long as at least one person is committing or intends to commit aggravated trespass, or there are two or more people present with the ‘common purpose’ of aggravated trespass.
Failure to comply with this direction carries a maximum penalty of 3 months in prison and/or a 2,500 fine.

Sections 70 & 71: Trespassory Assemblies
As an amendment to the Public Order Act of 1986, this part allows the police to apply to the local authority (or, in London, the Home Secretary) to prohibit ‘trespassory assemblies’ of 20+ people for up to 4 days with a 5-mile exclusion zone, as long as there is a risk of ‘serious disruption to the local community’, or of ‘significant damage’ to the land or buildings/ monuments on it which may have historical/ archaeological/ scientific importance.
Anyone organizing or inciting another to attend one of these may be arrested and imprisoned for up to three months. Attendance, and refusal to be directed away, is punished by arrest and a maximum fine of £1000.
Sections 72, 73 & 74: Squatters – and Protected Intended Occupiers
These mean changes to section 6 of the Criminal Law Act of 1977, and apply only to residential property. DROs (‘displaced residential occupiers’, an extremely rare phenomenon!) and PIOs (‘protected intended occupiers’) – or others who can prove that they are acting on behalf of them – are made exempt from the protection previously given squatters and are permitted to use violence to secure entry.
It becomes an offence not to leave premises when requested to by a PIO or DRO, liable to 6 months’ imprisonment and/or a fine of 5000. Section 74 introduces a new offence of deliberately or recklessly making a false statement to claim PIO status. The definition of a PIO has been extended slightly.

Sections 75 & 76: Interim Possession Orders
These sections introduce a new ‘faster’ way of evicting squatters. Once an IPO (interim possession order) has been granted by a court and all the legal procedures have been correctly followed, the ‘squatters’ must leave within 24 hours of its service. It covers any person who is there when the Order is served and even those who arrive afterwards – failing to leave or returning within one year are both offences.
The maximum penalty is 6 months in prison and/or a 5000 fine. Similarly, to above, section 75 makes it an offence for the owner to make a false or misleading statement to obtain an IPO.
Sections 77, 78 & 79: Unauthorized Campers
‘Unauthorized campers’ are people residing in a vehicle or vehicles on any part of the highway or any other land in the open air without permission of the owner.
Section 77 gives the local council the authority to direct an unauthorized camper to leave the land and remove all vehicles. It becomes an offence to not leave the land and remove all vehicles/ property ‘as soon as reasonably practicable’ or to re-enter the land within 3 months, liable to a fine of up to 1000.
A magistrates’ court can make an order under section 78 which allows the local council to take ‘reasonable steps’ to ensure the removal of a vehicle and any person residing within it. Another new offence is the willful obstruction of anyone engaged in the removal – maximum fine of 1000.

Section 80: Caravan Sites Act
The Caravan Sites Act of 1968 included a duty of local authorities to provide gypsy sites in their areas. Most local authorities never got anywhere near full, decent levels of provision, but section 80 repeals that duty, so leaving travelers with nowhere legal to stop.
Section 154: Intentional Harassment, Alarm or Distress
This section inserts a new section 4(a) into the Public Order Act of 1986. Designed for incidents of racial harassment, its definition means it has much wider potential uses, whether against football fans or peaceful protestors, both of whom is has already been used against.
It becomes an offence to intentionally either (a) use ‘threatening, abusive or insulting behavior, or disorderly behavior’; or (b) display ‘any writing, sign or visible representation which is threatening, abusive or insulting’; to cause someone ‘harassment, alarm or distress’. The maximum penalty is 6 months in prison and/or a fine of 5000.
Section 82: Possession of Articles or Information Useful to Terrorists
This section is to be inserted into the 1989 Prevention of Terrorism Act as a new Part IVa of that Act. Besides the offence of possessing articles ‘giving rise to a reasonable suspicion’ that they are to be used for terroristic reasons; it also becomes an offence to collect, record or simply possess ‘any information which is of such a nature as is likely to be useful to terrorists in planning or carrying out any act of terrorism…’
The information is described as that ‘not in the public domain’ but journalists, peace campaigners and other researchers regularly use such information in the course of their work.
The burden of proof lies on the accused to show that they had ‘reasonable excuse’ or ‘lawful authority’ to hold the information. Conviction can mean a prison sentence of up to 10 years and/or a fine. See Terrorism Acts 2000-2001 andblagged.freeserve.co.uk/

Other police powers, in less detail
Right to Silence
Up till now, anyone arrested has had the right to remain silent in police custody – a precious safeguard of a legal system based on the premise that everyone is innocent until proven guilty. Now, a jury can ‘draw adverse inference’ from the accused’s relying on evidence not mentioned to the police at the time of arrest.
Increased Stop & Search Powers
Similar to the old ‘sus’ laws, these give the police increased powers to declare areas as ‘stop & search zones’ because they anticipate that ‘serious incidents of violence’ may take place.
A direction can be made to cover an area for up to 24 hours, with possible 6-hour extension.
The police are then able to stop and question people at random, as well as searching vehicles, pedestrians and any bags for weapons and dangerous articles, without even suspecting that those people have committed an offence or intend to.
This is bound to affect young people from ethnic minorities who are much more likely to be stopped and searched than a white person.
Intimate Samples
The CJA introduces the compulsory taking of ‘intimate and non-intimate’ samples ( such as hair, saliva, skin, pubic hair, hair, blood, urine, semen – ‘reasonable force’ may be used in cases of non-cooperation!) from anyone charged with a ‘recordable offence’ ( some of these are relatively minor offences and the samples are not for use in the case). These samples will instead be used for a national DNA database.

Prisons
Privately-run prisons, unaccountable to public scrutiny and run on a profit-making basis, and due to be introduced, along with prison ships and ‘secure training centres’ for children aged 12 to 14. These young inmates can be strip-searched forcibly by a single member of staff; all their mail can be read and censored; all family visits can be stopped on the order of the Centre’s Director…
Bail conditions
Changes to the Police & Magistrates’ Act mean that the police will often be able to set bail conditions themselves without resorting to a magistrate in a court. This makes ultra-restrictive bail conditions much more likely.
The Healthcare Service Personnel and Clinical Establishments (Prohibition of violence and damage to property) Bill, 2019″ —
No. Z.28013/22/2019-MS Government of India Ministry of Health & Family Welfare
Department of Health & Family Welfare
(Medical Services Division)
Nirman Bhawan, New Delhi Dated: 2nd September, 2019
NOTICE
Subject: Draft Legislation titled “The Healthcare Service Personnel and Clinical Establishments (Prohibition of violence and damage to property) Bill, 2019” — regarding
Ministry of Health and Family Welfare, Government of India proposes to formulate a legislation to address the issue of violence against the healthcare service professionals and damage to property of clinical establishments. A Legislation titled as “The Healthcare Service Personnel and Clinical Establishments (Prohibition of violence and damage to property) Bill, 2019” has been prepared.
It has been decided to solicit objections and suggestions from public with regard to said draft legislation before the finalization of the draft Bill. The objections/suggestions may be forwarded within 30 days from the date of issue of this notice by email at us-ms-mohfwnic.in or to Shri. Rajeev Attri, Under Secretary (Medical Services Division), Ministry of Health and Family Welfare, Room No. 514(B), A-Wing, NirmanBhawan, New Delhi-110011. Only the comments received on the above-mail/ address and/or within the period of 30 days shall be taken into consideration.
2.
End: Draft Bill.
44k1171.-0
(Rajeev Attri) Under Secretary to the Govt. of India Tel: 011-23061883
THE HEALTHCARE SERVICE PERSONNEL AND CLINICAL ESTABLISHMENTS (PROHIBITION OF VIOLENCE AND DAMAGE TO PROPERTY) BILL, 2019.
A BILL
to prohibit violence against healthcare service personnel and damage or loss to property of clinical establishments and for matters connected therewith and incidental thereto.
WHEREAS, acts of violence causing injury or danger to life of healthcare service personnel and damage or loss to the property of clinical establishments are on the increase in the country creating unrest among healthcare service personnel resulting in hindrance to healthcare services in the country;
AND WHEREAS, to protect healthcare service personnel and property of clinical establishments against violence, it has become necessary to prohibit such acts of violence, to provide for punishment by making such acts of violence as cognizable and non-bailable offence and to provide compensation for injury to healthcare service personnel or for causing damage or loss to the property of clinical establishments;
BE it enacted by Parliament in the Seventieth Year of the Republic of India, as follows:
CHAPTER I PRELIMINARY

  1. Short title, extent, application and commencement —
    (1) This Act may be called the Healthcare Service Personnel and Clinical Establishments (Prohibition of violence and damage to property) Act, 2019.

    by –
    It extends to the whole of the India.
    It applies to clinical establishments as defined in clause (a) of section 3 and registered under the Clinical Establishments (Registration and Regulation) Act, 2010 or under any State Act for the time being in force.
    It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.
    Application of other laws not barred- The provisions of this Act shall be in addition to, and not, save as otherwise expressly provided, in derogation of any other law for the time being in force.
    Definitions— In this Act, unless the context otherwise requires— (a) “clinical establishment” means-
    a hospital, maternity home, nursing home, dispensary, clinic, sanatorium or an institution by whatever name called that offers services, facilities requiring diagnosis, treatment or care for illness, injury, deformity, abnormality or pregnancy in any recognized system of medicine established and administered or maintained by any person or body of persons, whether incorporated or not; or
    a place established as an independent entity or part of an establishment referred to in sub-clause (i), in connection with the diagnosis or treatment of diseases where pathological, bacteriological, genetic, radiological, chemical, biological investigations or other diagnostic or investigative services with the aid of laboratory or other medical equipment, are usually carried on, established and administered or maintained by any person or body of persons, whether incorporated or not;
    and shall include a clinical establishment owned, controlled or managed

    the Government or a department of the Government; or a Public Sector Undertaking or Autonomous Body of the Government;
    a trust, whether public or private;
    a corporation (including a society) registered under a Central, or Provincial or State Act, whether or not owned by the Government;
    a local authority; and
    a single doctor,
    Explanation:
    For the purposes of this clause, an ambulance or a mobile medical unit shall be deemed to be a clinical establishment if such vehicle is fitted with medical equipment and is used for providing healthcare service.
    (b)” healthcare service personnel- in relation to a clinical establishment, shall include-
    A registered medical practitioner, possessing a recognized medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956, and enrolled in a State Medical Register as defined in clause (k) of that section;
    a medical practitioner registered for practicing in any other system of medicine which is recognized under any law for the time being in force;
    a registered dentist, registered dental hygienist and registered dental mechanic as defined in clause (I) of Section 2 of the Dentist’s Act, 1948;
    a registered nurse, midwife, auxiliary nurse-midwife and health visitor who is registered as such under section 15A of the Indian Nursing Council Act, 1947;
    a medical student who is undergoing education or training in any system of medicine recognized by any law for the time being in force;

    a nursing student who is undergoing education or training in nursing profession;
    a para-medical workers, para-medical student and diagnostic services provider; and
    ambulance driver and helper,
    “section” means a section of the Act;
    “violence” means an act which causes or may cause….
    harm, injury, hurt, grievous hurt, intimidation to, or danger to the life of, a healthcare service personnel in discharge of duty, either within the premises of a clinical establishment or otherwise; or
    obstruction or hindrance to a healthcare service personnel in discharge of duty, either within the premises of a clinical establishment or otherwise;
    loss of or damage to any property or documents in a clinical establishment;
    Words and expression used herein and not defined, but defined in Indian Penal Code or in the code of criminal procedure, 1973 shall have the meanings respectively assigned to them in those Codes.
    CHAPTER II OFFENCES AND PENALITIES
    Prohibition of violence- No person shall indulge in any act of violence against a healthcare service personnel or cause any damage or loss to any property in a clinical establishment.
    Offences and penalties: (1) Whoever commit violence or abets or incites commission of violence against any healthcare service personnel

    or abets or incites or causes damage or loss to any property of a clinical establishment, shall, upon conviction, be punished with imprisonment for a term which shall not be less than six months but which may extend to five years, and with fine, which shall not be less than fifty thousand rupees but which may extend to five lakh rupees;
    (2) Whoever, while committing violence as referred to in sub-section (1), causes grievous hurt as defined in section 320 of the Indian Penal Code to any healthcare service personnel, shall, upon conviction, be punished with imprisonment for a term which shall not be less than three years, but which may extend to ten years, and with fine, which shall not be less than two lakh rupees, but which may extend to ten lakh rupees.
    Information of offence- Notwithstanding anything contained in the Code of Criminal Procedure, 1973, upon a written request of the aggrieved healthcare service personnel, it shall be mandatory for the person in charge of a clinical establishment to inform the officer in charge of the concerned police station of the commission of an offence under this Act.
    Offence to be cognizable and non-bailable- Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence punishable under this Act shall be cognizable and non-bailable.
    Investigation of offence-Notwithstanding anything contained in the Code of Criminal Procedure, 1973, any case registered under this Act shall be investigated by a police officer not below the rank of Deputy Superintendent of Police.
    Compensation for acts of violence –
    (1) In addition to the punishment provided for the offence under section
    5, the convicted person shall be liable to pay, by way of compensation
    (i) an amount, twice the amount of fair market value of the damaged property or the loss caused, as may be determined by the court;
    (ii)one lakh rupees for causing hurt to healthcare service personnel and five lakh rupees for causing grievous hurt to healthcare service personnel.
    (2) If the convicted person does not pay the compensation granted under sub-section (1), the said sum shall be recovered as an arrear of land revenue under the Revenue Recovery Act, 1890.
    THE INDIAN MEDICAL COUNCIL ACT, 1956
    (102 of 1956)
    30th December, 1956
    (As amended by the Indian Medical Council (Amendment) Acts, 1964, 1993 & 2001)
    AN ACT TO PROVIDE FOR THE RECONSTITUTION OF THE MEDICAL COUNCIL OF INDIA AND THE MAINTENANCE OF A MEDICAL REGISTER FOR INDIA AND FOR MATTERS CONNECTED THEREWITH.
    Be it enacted by Parliament in the seventh year of the Republic of India as follows: –
  2. SHORT TITLE, EXTENT & COMMENCEMENT
  3. This Act may be called the Indian Medical Council Act, 1956.
  4. It extends to the whole of India.
  5. It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.
  6. DEFINITIONS
    In this Act, unless the context otherwise requires: –
    a. “approved institution” means a hospital, health centre or other such institution recognized by a university as an institution in which a person may undergo the training, if any, required by his course of study before the award of any medical qualification to him.
    b. “council” means the Medical Council of India constituted under this Act.
    c. [“deleted” by Indian Medical Council (Amendment) Act, 1964.]
    d. “Indian Medical Register” means the medical register maintained by the Council.
    e. “Medical Institution” means any institution, within or without India, which grants degrees, diplomas or licenses in medicine.
    f. “medicine” means modern scientific medicine in all its branches and includes surgery and obstetrics, but does not include veterinary medicine and surgery;
    g. “Prescribed” means prescribed by regulations.
    h. “recognized medical qualification” means any of the medical qualifications included in the Schedules.
    i. “regulation” means a regulation made under section 33;
    j. “State Medical Council” means a medical council constituted under any law for the time being in force in any State regulating the registration of practitioners of medicine.
    k. “State Medical Register” means a register maintained under any law for the time being in force in any State regulating the registration of practitioners of medicine.
    l. “University” means any University in India established by law and having a medical faculty.
  7. CONSTITUTION & COMPOSITION OF THE COUNCIL
  8. The Central Government shall cause to be constituted a council consisting of the following members, namely: –
  9. One member from each State other than a Union Territory to be nominated by the Central Government in consultation with the State Government concerned.
  10. One member from each University to be elected from amongst the members of the medical faculty of the University by members of the Senate of the University or in case the University has no Senate, by members of the Court.
  11. One member from each State in which a State Medical Register is maintained, to be elected from amongst themselves by persons enrolled on such register who possess the medical qualifications included in the First or the Second Schedule or in Part II of the Third Schedule.
  12. Seven members to be elected from amongst themselves by persons enrolled on any of the State Medical Registers who possess the medical qualifications included in Part I of the Third Schedule.
  13. Eight members to be nominated by the Central Govt.
  14. The President and Vice-President of the Council shall be elected by the members of the Council from amongst themselves.
  15. No act done by the Council shall be questioned on the ground merely of the existence of any vacancy in, or any defect in the constitution of the Council.
  16. MODE OF ELECTION
  17. (a) An election under clause (b), clause (c) or clause (d) of sub-section (1) of section 3 shall be conducted by the Central Government in accordance with such rules as may be made by it in this behalf, and any rules so made may provide that pending the preparation of the Indian Medical Register in accordance with provisions of this Act, the members referred to in clause (d) of sub-section (1) of section 3 may be nominated by the Central Government instead of being elected as provided therein.
  18. Where any dispute arises regarding any election to the Council, it shall be referred to the Central Government whose decision shall be final.
  19. RESTRICTIONS ON NOMINATION AND MEMBERSHIP
  20. No person shall be eligible for nomination under clause (a) of sub-section (1) of section 3 unless he possesses any of the medical qualifications included in the First and Second Schedules, resides in the State concerned, and where a State Medical Register is maintained in that State, is enrolled on that Register.
  21. No person may at the same time serve as a member in more than one capacity.
  22. INCORPORATION OF THE COUNCIL
    The Council so constituted shall be a body corporate by the name of the Medical Council of India,
    having perpetual succession and a common seal, with power to acquire and hold property, both movable and immovable, and to contract and shall by the said name sue and be sued.
  23. TERM OF OFFICE OF PRESIDENT, VICE-PRESIDENT AND MEMBERS
  24. The President or Vice-President of the Council shall hold office for a term not exceeding five years and not extending beyond the expiry of his term as member of the Council.
  25. Subject to the provisions of this section, a member shall hold office for a term of five years from the date of his nomination or election or until his successor shall have been duly nominated or elected, whichever is longer.
  26. An elected or nominated member shall be deemed to have vacated his seat if he is absent without excuse, sufficient in the opinion of the Council from three consecutive ordinary meetings of the Council, or in the case of a member elected under clause (b) of sub-section (1) of section 3, if he ceases to be a member of the medical faculty of the university concerned, or in the case of a member elected under clause (c) or clause (d) of that sub-section, if he ceases to be a person enrolled on the State Medical Register concerned.
  27. A casual vacancy in the Council shall be filled by nomination or election, as the case may be, and the person nominated or elected to fill the vacancy shall hold office only for the remainder of the term for which the member whose place he takes was nominated or elected.
  28. Members of the Council shall be eligible for re-nomination or re-election.
  29. Where the said term of five years is about to expire in respect of any member, a successor may be nominated or elected at any time within three months before the said term expires but he shall not assume office until the said term has expired.
  30. MEETINGS OF THE COUNCIL
  31. The Council shall meet at least once in each year at such time and place as may be appointed by the Council.
  32. Unless otherwise provided by regulations fifteen members of the Council shall form a quorum, and all the acts of the Council shall be decided by a majority of the members present and voting.
  33. OFFICERS, COMMITTEES AND SERVANTS OF THE COUNCIL
    The Council Shall:
  34. constitute from amongst its members an Executive Committee and such other committees for general or special purposes as the Council deems necessary to carry out the purposes of this Act.
  35. appoint a Registrar who shall act as Secretary and who may also, if deemed expedient, act as Treasurer.
  36. employ such other persons, as the Council deems necessary to carry out the purposes of this Act.
  37. require and take from the Registrar, or from any other employee, such security for the due performance of his duties as the Council deems necessary and
  38. With the previous sanction of the Central Government fix the remuneration and allowances to be paid to the President, Vice-President and members of the Council and determine the conditions of service of the employees of the Council.
  39. THE EXECUTIVE COMMITTEE
  40. The Executive Committee, hereinafter referred to as the Committee shall consist of the President and Vice-President, who shall be members ex-officio and not less than seven and not more than ten other members who shall be elected by the Council from amongst its members.
  41. The President and Vice-President shall be the President and Vice-President respectively of the Committee.
  42. In addition to the powers and duties conferred and imposed upon it by this Act, the Committee shall exercise and discharge such powers and duties as the Council may confer or impose upon it by any regulations which may be made in this behalf.
    10A. PERMISSION FOR ESTABLISHMENT OF NEW MEDICAL COLLEGE, NEW COURSE OF STUDY ETC.
  43. Notwithstanding anything contained in this Act or any other law for the time being in force: –
  44. no person shall establish a medical college
    (or)
  45. no medical college shall: –
  46. open a new or higher course of study or training (including a postgraduate course of study or training) which would enable a student of such course or training to qualify himself for the award of any recognized medical qualification; or
  47. increase its admission capacity in any course of study or training (including a postgraduate course of study or training), except with the previous permission of the Central Government obtained in accordance with the provisions of this section.
    Explanation 1 – For the purposes of this section, “person” includes any University or a trust but does not include the Central Government.
    Explanation 2 – For the purposes of this section “admission capacity” in relation to any course of study or training (including postgraduate course of study or training) in a medical college, means the maximum number of students that may be fixed by the Council from time to time for being admitted to such course or training.
    2.
  48. Every person or medical college shall, for the purpose of obtaining permission under sub-section (1), submit to the Central Government a scheme in accordance with the provisions of clause (b) and the central Government shall refer the scheme to the Council for its recommendations.
  49. The Scheme referred to in clause (a) shall be in such form and contain such particulars and be preferred in such manner and be accompanied with such fee as may be prescribed.
  50. On receipt of a scheme by the C