CHAPTER 4

CURRENT STATE OF EMERGENCY MEDICAL CARE AND LAWS

IN INDIA

Medical emergency where victims require emergency medical care

are not define in the present law Emergencies may arise due to motor accidents,

fire, floods, cyclone, earthquakes etc. or even sudden collapse of victims or

emergent deliveries in pregnancy. Among these, road accidents, however,

contribute the largest number of deaths or injuries. These accidents are

increasing at an alarming rate of 3% annually. About 10.1% of all deaths in India

are due to accidents and injuries. A vehicular accident is reported every 3

minutes and a death, every 10 minutes on our records. During 1998, nearly,

80,000 lives were lost and 330,000 people were injured. Of these, 78% were

persons in the age group of 20-44 years. A trauma-related death occurs in India

every 1.9 minutes. The majority of road accident victims are pedestrians, two

wheeler riders and bicyclists, passengers by motor vehicles, as cited in the paper

(2006) submitted by 14Ms. Shradd Deshmukh, ILS, Law College, Pune on

‘Emergency Medical Aid to Victims’, to the Law Commission. The World Report

on Road Traffic Injury Prevention released by the WHO on World Health Day (7th

April, 2004) stated that around 12 lakh people die each year on account of

accidents globally. The National Human Rights Commission constituted an

Expert Group to study the existing system for emergency medical care in India

to suggest appropriate methods of emergency medical care, which should be

developed by different States/Union-Territories and their essential components.

The Group submitted a Report on The Indian Emergency Journal (Aug., 2005) in

its Editorial says: “The fact is that 80,000 people are killed in accidents every

year …. At least 30 to 45 minutes elapse between the time of a crash and arrival

at hospital. 12 percent of institutions in the trauma-care-sector have no access to

14 Ms. Shradd Deshmukh, ILS, Law College, Pune on ‘Emergency Medical Aid to Victims’, to the Law Commission. The World Report on Road Traffic Injury Prevention released by the WHO on World Health Day (7th April, 2004)

65

ambulance. Only 50 per cent of the available ambulance services possess the

acute-care facilities needed to keep an accident victim alive during

transportation… And only 4 per cent of personal staffing these services (have

certified formal training).

1.EMERGENCY MEDICAL SERVICES IN INDIA: CURRENT

SCENARIO

In India, a total 3.57 lakes (0.35 million) accidental deaths were reported dur-

ing the year 2009 with the Male-Female victim ratio of 77 : 23. The major unnat-

ural causes of accidental deaths were road accidents (37.9%), railway accidents,

and rail-road accidents (7.8%), poisoning (8.0%), drowning (7.7%), sudden

deaths (7.4%), and fire accidents (7.0%). Deaths in “Road Accidents” in India

have increased by 7.3% during 2009 compared with 2008. Most of the victims of

accidents were aged between 15 to 44 years. This group of people has accoun-

ted for nearly two-third (60.7%) of all persons killed in accidents in the country

during the year. This is the economically productive age-group and major bread-

earner of their respective families. Their untimely death due to accidents darkens

the future of their families. Many of them die for want of timely EMS. Thousands

of these accident victims could have been saved if timely medical intervention

were available to them Thus, the need of quality EMS in India is an unmet need

of the masses.

The health care delivery system in India starts from the sub-center level

which caters to the need of approximately 5 000 population. At the peripheral

level, there is a vast infrastructure of health services in India which comprises of

4 276 Community Health Centers (CHCs), 23 458 Primary Health Centers

(PHCs), and 1 46 036 Sub-Centers (S/C) functioning in the country (as on March,

2008). Irrespective of this, the country has not been able to provide the timely

and quality EMS to masses, particularly in rural areas. As per a report of National

Commission on Macroeconomics and Health, Ministry of Health and Family 66

Welfare (MOHFW), Government of India (GOI), a villager has to travel an

average distance of 2.2 km (kilometers) to reach the first health post for getting a

paracetamol tablet, over 6 km for a blood test, and nearly 20 km for hospital care.

It is the private health sector to whom people look forward. The middle class and

rich people prefer the medical services from the private sector. According to

National Family Health Survey – III, in India, the private medical sector remains

the primary source of health care for the majority of households in both urban

areas (70%) and rural areas (63%).Even the quality of private sector is also

questionable.

Whenever there is medical and surgical emergency including the

emergencies caused due to accidents, the patient is usually referred to the

nearest city hospital after providing first-aid treatment. In very complicated and

serious cases, the patient is further referred to big cities for treatment,

irrespective of his/her family's financial condition. Sometimes, in these big cities

too, the hospitals again refer these patients to specialty/super specialty hospitals

for management. But the problem arises when these super specialty hospitals,

which are the last hope for the poor and helpless families, are themselves ill and

mismanaged. Most of the time, these big hospitals turned out to be of no use for

the common man at the time of need. This happens because there is an

unofficial dual system of health care delivery in India. The kind of services the

people are entitled depends upon their economic status.

Emergency services are said to be the face of any hospital setup. The

reputation of a hospital often depends upon the quality and promptness of its

EMS. Most emergency departments in government hospitals and centrally run

universities in India do not match up to the “Emergency Department

Categorization Standards” proposed by the Society of Academic Emergency

Medicine. In India, the emergency care is offered in areas designated as

“casualties” that are often manned by junior specialty residents with little

67

overview and experience. Those who are most experienced in handling

emergencies are usually not posted in causalities. Sometimes, doctors from the

pre-and para-clinic subjects are posted to treat the emergency patients,

particularly in cases of strikes of clinical doctors, and very rarely they are well

equipped with the skills and experience to save a precious human life. By this

kind of arrangement, the hospitals try to put every thing in place on the paper but

compromise on the quality of EMS. So, the ultimate sufferers are the patients in

distress.

The pre-hospital care is a neglected issue in India. No formal pre-hospital

care was offered in 85% of the trauma patients as reported in a south Indian

study. Triage, something that is instrumental to good emergency care, is rarely

practiced. There are no guidelines or regulations on the issue of pre-hospital care

in most of the tertiary hospitals across the country. Most of the time, the emer-

gency/casualty department, particularly of district-level hospitals, merely acts as

“referral points” for specialized care in big cities. Problems are worse in rural

areas where even the most basic emergency obstetric care has been found to be

lacking.The CHCs have not been developed enough to cater injuries occurring

during small accidents. At most of the CHCs, the blood storage facilities are not

available, thus rendering EMS ineffective in cases of emergency delivery cases.

Along with it, there is no centralized emergency response body to coordinate the

EMS in India.

2.RELUCTANCE IN HANDLING MEDICAL EMERGENCIES

It is an accepted norm across the world that in injured and critically ill patients,

the priority of the doctor is to save life. However, often there is reluctance on the

part of doctors to attend to the emergency needs of patients who, in medical jar-

gon, are medico legal cases. This unwillingness is largely due to medical profes-

sionals being unaware of their ethical and legal duties concerning the treatment

of those brought to an emergency department. Also, there is an instinct among

68

doctors to evade the inconvenience associated with subsequent lengthy and tire-

some legal proceedings. This is despite of the fact that the Supreme Court of In-

dia has clearly stated that the first obligation of a doctor is to save life and docu-

mentation and paper work could be performed later on. The court ruled that “zon-

al regulations and classifications regarding the jurisdictions of specialized police

stations and government hospitals in a given area could not operate as fetters in

the process of discharge of this obligation (to treat an emergency/injured victim).”

In a concurring judgment, the court observed that “when a man in a miserable

state, hanging between life and death reaches the medical practitioner (either in

a hospital run or managed by the state, public authority, or a private person or a

medical professional doing only private practice), he is always called upon to

rush to help such an injured person and to do all that is within power to save life.

It is a duty coupled with human instinct which needs neither decision nor any

code of ethics nor any rule or law.”

Another factor for showing reluctance to serious emergency cases is to avoid the

mortality in one's own hospital, particularly in case of private hospitals. More

complicated cases are referred to higher center, particularly the government sec-

tor, because death of patient in their own hospital would bring bad name to the

reputation of the hospital. Also, in case of death of their patient, the relatives of-

ten restores to manhandling of doctor/paramedical staff and damaging the hos-

pital property. The action of police and local government administration like im-

mediate arrest of doctor under mob/public pressure is another important issue.

These kinds of incidences are increasing day by day and thus are responsible for

doctors not handling the emergency cases (particularly medico legal cases). This

practice further leads to frequent referral of emergency patients to government

hospitals, thus wasting the crucial time during which the serious patients could

have been saved. Also, at government hospitals, there are no clear-cut demarca-

tion of duties and responsibilities in emergency department. This leads to further

delay in timely emergency services.

69

India is a country of paradoxes. On one hand, it has new corporate hospitals for

attracting medical tourism and on the other hand, it has not been able to provide

the basic primary health and necessary emergency services to the masses.

There is a serious scarcity of working diagnostic machines, medicines, and infra-

structure in its hospitals. Following are some issues related to emergency ser-

vices which should be seriously discussed involving various stake holders

without any further delay.

3.CREATION OF CENTRALIZED MEDICAL EMERGENCY BODY

Trauma continues to be one of the major causes of death in India. To

avoid preventable deaths and disabilities, India needs a common effective sys-

tem that could provide quality emergency care with equity of access. As com-

pared with developed countries with proper emergency systems in place, there

was no single system which could play a major role in managing EMS in India.

There was a fragmented system in place to attend the emergencies in the coun-

try. In a bid to address this problem, the Centralized Accidents and Trauma Ser-

vices were set up by the Delhi Government in the early 1990s. This service was

later expanded throughout the country. Unfortunately, it did not succeed despite

having a toll free number -102 which is the emergency telephone number for am-

bulance in parts of India But, there are different emergency numbers in different

states and Union Territories. So, there is an urgent need of a centralized Medical

Emergency body which could provide guidelines for setting up emergency ser-

vices with a single telephone number across the country. The centralized body

should be involved in preparing protocols, imparting technical assistant, training,

capacity building, and accreditation of emergency services. Procedures, proto-

cols, and personal skills need to be standardized along with formation of legisla-

tion in parliament to provide legal protection for the providers of emergency ser-

vices The initiative taken by the Gujarat state government in setting up the Gujar-

at Emergency Medical Services Authority is a welcome step in right direction.

This was the first state to actually pass emergency services regulation in the

country. By bringing together government, non-government organizations 70

(NGOs), and other private agencies, a state-wide system of emergency care has

been set up in Gujarat If India could have Securities and Exchange Board of In-

dia, Telecoms Regulatory Authority of India, and Insurance Regulatory and De-

velopment Authority to regulate share market, telecoms, and insurance services,

respectively, then setting up a regulatory body for regulating the health services,

particularly emergencies, could also be considered seriously.

4.FIXING RESPONSIBILITY AND ACCOUNTABILITY.

There should be clear-cut demarcation of duties and responsibilities in the

emergency department. The duty roster including the contact number of con-

cerned doctors should be assessable to public eyes. In case of grievances, there

should be a responsible mechanism to address the complaint right there at emer-

gency. Public relation officers should be posted at the emergency to handle the

public grievances. The guidelines by the Supreme Court of India should be man-

datory displayed publicly at emergency so that the doctors could be reminded of

their duties and rights and the patients could claim treatment without failure. Most

of time, the junior doctors have to face the ire of unsatisfied relatives of patients

even when they are not responsible for procurement and maintenance of logist-

ics. If the logistics are not in place or not working, this information should be

brought to the notice of general public by publicly displaying the list of no avail-

able services and logistics (which are supposed to be available in that hospital)

and contact number of the senior officers/bureaucrats responsible for decision

making. If the government is not providing the required fund and support, then it

should come to the eyes of people through audit by authorized audit agencies.

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5. IMPLEMENTING HOSPITAL MANAGEMENT

TECHNIQUES

The whole system of procurement of manpower and materials (including

machinery and equipments/drugs), particularly in emergency department, should

be managed with hospital management techniques. The time frame for every

step of procurement and maintenance of emergency services should be clearly

predefined. There should be introduction of compulsory "Annual Maintenance

Contract" (AMC) clause for every purchase of medical equipment and its annual

renewal. The companies not honoring the AMC should be black-listed. Strict ac-

tion must be taken against those officials who sit on important files in greed of

personal gains and are responsible for the delay in procurement and mainten-

ance of life-saving drugs and equipments. If private/corporate health sector could

practice good management techniques and succeed in their business ventures,

why it cannot be replicated at government hospitals? To avoid mishandling with

hospital staff, provision of adequate security at emergencies is required to protect

the doctors from the wrath of patient's relatives and friends.

At present, the peripheral level health centers, i.e., S/C, PHC, and CHC, are

nothing more than the referring centers. Even the basic life-saving services, man-

power, and medicines are seldom available at these centers. As on March, 2008,

as compared with requirement for existing infrastructure, there was a shortfall of

70.9% of Surgeons, 70.4% of Obstetricians and Gynecologists, 70.6% of Physi-

cians, and 77.4% of Pediatricians at CHC level in India. Overall, there was a

shortfall of 72.1% specialists at the CHCs as compared with the requirement for

existing CHCsThus, the patients who were referred to CHCs were just referred

there for the sake of referral and to fulfill formalities. If these centers, particularly

the CHCs, were equipped with basic life-saving facilities, then the patient could

be stabilized there and then referred ahead. Thus, life of lot of emergency pa-

tients could be saved. Under the National Rural Health Mission, the Indian Public

Health Standard (IPHS) guidelines have been framed which consists of the ser-72

vices, infrastructure, manpower, equipments, and drugs (to be provided at S/C,

PHC, CHC, and District Hospitals). The IPHS guidelines considered these ser-

vices in two categories of Essential (minimum assured services) and Desirable

(the ideal level services which the states and union territories should try to

achieve. But still, these IPHS guidelines have not been made mandatory and not

implemented fully across the country. The implementation of IPHS will certainly

help in handling of emergency cases at CHC or at least ensure provision of life-

saving procedures before referral to higher centers. In this way, the burden on

higher health centers will also decrease in the long run.

6.MODIFICATION IN MEDICAL EDUCATION

CURRICULUM

The subject of EM has not been given the importance it deserves in Indian

medical education system. The task force on “Medical Education for the National

Rural Health Mission” constituted in 2005 under the aegis of MOHFW, GOI, has

noted that within the time allotted to nonclinical subjects, a considerable portion

is going into practicals. It observed that in some of the nonclinical disciplines—

Pharmacology, Biochemistry—little purpose is served in allotting a significant

portion of time. The task force suggested that the allocation of time to nonclinical

subjects may be reviewed and should be made pertinent to applied aspect. Simil-

arly, in case of internship, the common perception is that the students fritter away

the period of internship. This is a year when the theoretical training is over, and

the student is expected to learn hands-on knowledge during his/her attachment

to various departments Most of the time during internship, the emergency duty is

optional in many medical colleges across the country. The emergency duties

should be made compulsory during internship and their tenure should be at least

one month. After the completion of the internship, there should be a compulsory

practical test to assess whether the interns have gained enough competencies to

provide certain basic emergency care independently or not.

73

There is a dearth of Postgraduate (PG) EM professionals in India. Very few insti-

tutes/medical colleges in India offer PG in EM. Thus, most of the emergencies

are handled routinely by the concerned department after getting the call from ju-

nior resident/Emergency Medical officer. There is no separate department of

emergency in many medical colleges in India. The emergencies are run by differ-

ent units of all the clinical departments on rotation. In view of this, there is urgent

need to create separate departments of EM. The PG courses in EM should be

commenced as soon as possible in the medical college hospitals. This will create

a cadre of qualified doctors in EM in the long run and will change the face of

emergency handling in India. Similarly, a cadre of Paramedical staff likes nursing,

technicians, and attendants should be trained specifically in EM.

The doctors from pre- and para-clinical side are involved in teaching and re-

search most of the time. Because of this, they remained cut off from the direct

patient management. After few years of service, these doctors are short of know-

ledge regarding latest emergency management protocols and their clinical skills

got blurred by passing time. So, in case of mass causalities and natural dis-

asters, though these pre- and para-clinical doctors are counted as the available

skilled medical work force, in actual only few are competent enough to handle

emergency patients. This “pseudo-workforce” obliterates rather than facilitating

the emergency relief work. So, there is an urgent need for capacity building of the

pre- and para-clinical faculty. There should be an introduction of one-week “prac-

tical capsule course in emergency medicine” for every faculty member irrespect-

ive of his/her academic post. The faculty should be mandatorily made to attend

this course every year and the curriculum of this course should be revised peri-

odically.

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7 ESTABLISHING EMERGENCY SERVICES NETWORK

The emergency vehicle services provided by some of the agencies in

some states should be evaluated and implemented across the country. Principal

among these are the National Network of Emergency Services at Ahmedabad,

Delhi, Pune, Hyderabad, Chennai, Raipur, Ranchi, and Kolkata; Emergency

Management and Research Institute (EMRI) at Haryana, Chandigarh, Ut-

tarakhand, Rajasthan, Gujarat, Madhya Pradesh, Andhra Pradesh, Goa,

Karnataka, Tamil Nadu, Meghalaya, and Assam. The “108” telephone number for

EMRI in Uttarakhand has been successful in providing EMS in hilly areas. There

should be a common telephone number across the country for EMS. The staff on

these EMS vehicles should be adequately trained and special attention is needed

for their capacity building. The evaluation of their knowledge and practice should

be done regularly to attain minimum standard of pre-hospital EMS care.

It would be pertinent to note here that People also need to take initiative in

knowing about the services being provided under available EMS. Indeed, an

EMS that people are not aware of is as good as nonexistent. One of the reasons

for the success of EMRI is that 108 is widely recognized number and has a great

recall among citizens. The role of media could be instrumental in generating

awareness regarding EMS by publishing success stories of EMS vehicles in sav-

ing precious human life. There should be a stepwise inclusion of “first aid Train-

ing Program” in the curriculum of school children. It should be made compulsory

for teachers and students to attend these programs. The St. John Ambulance As-

sociation is a fine example of depicting that how imparting basic first aid training

could save the lives of hundreds and thousands of people across the world. The

school, colleges, universities, corporate houses, companies, organizations, and

communities should come forward for getting training in first aid. More NGOs

should be motivated to do work in this field.

75

The medical tourism industry in India is provided with tax concessions; the

government gives private hospitals (treating foreign patients) benefits such as

lower import duties and an increased rate of depreciation (from 25 to 40%) for

life-saving medical equipment. Prime land is provided at subsidized rates. The in-

dustry also gets a pool of medical professionals who got trained in public institu-

tions for very less fees and then move to work in private hospitals—an internal

brain drain, and an indirect subsidy for the private sector of an estimated Rs 500

corer per year. Thus, the price advantage of the medical tourism industry is paid

for by Indian tax payers who receive nothing in return. Thus, the imposition of

some sort of “Public Health Tax” on these hospitals could be considered seri-

ously. This extra revenue from medical tourism could be utilized to strengthen the

health care services in India, particularly the EMS The Republic of India is the

seventh largest country in the world and is home to nearly 1.2 billion people. With

28 states and 7 union territories spread over a vast geographic area with varying

economic resources and infrastructure, India is the world’s most populous demo-

cracy. The India of today is a young nation, finding its roots in socioeconomic de-

velopment, and is plagued by challenges in health care created by its over-

whelming population density of 943.9/mile², its limited ability to expand health

care, the persistent burden of communicable diseases, and the rising liability of

diseases of affluence

8 HEALTH CARE PROVISIONAL INFRASTRUCTURE.

Health care provision in India is multi-pronged, including a tiered national

health system, private hospitals, and a multitude of alternative medicine practi-

tioners.

The National Health Policy (NHP) was first formulated in 1983 This policy-

76

guided government effort aims to provide health for all by outlining a time-bound

phased setup of comprehensive primary health care services throughout the

country. Under its aegis, health care services in centralized hospitals were made

free for people below the poverty line, and numerous preventive programs were

initiated. The first review of the NHP in 2002 focused on the new objective of

achieving an acceptable standard of good health among the general population

of the country by advocating higher expenditure on health care with equitable

access to health care services

The tiered system of public health care It serves as the front line of

emergency medical care for the masses. The system has remained plagued by a

lack of accountability and staffing. According to the 2004 WHO statistics, the

number of PHCs in India is 23,109, which is far below the required number. The

lack of organized pre-hospital care coupled with the lack of resources and the

high volume of patients that throng the government-run tertiary care hospitals

further compound problems

This system is further complicated by the unregulated expansion of private

health care facilities in the country. The average person today considers

expenditure in these private hospitals to receive health care far more acceptable

than submitting to the un-professionalism rampant in many of the public health

care delivery areas. This has prompted an anarchy of sorts, with the private

hospitals dictating costs.

The lack of universal medical insurance only compounds this issue, as do

the limited economic resources. The federal expenditure on health care in India

was 8.8% of the GDP in 2003. The public expenditure was only 25%, whereas

the private expenditure was 75%, a practice very different from developed na-

tions like the USA The WHO also estimated that the share of social insurance in

India was only about 4.2% Although emergency physicians and emergency

77

medicine have remained a realized need in the country, the practice of emergent

care has remained centralized, with traditionally few private hospitals admitting

emergency cases as they prefer to avoid dealing with medico-legal formalities

during emergencies 15Supreme Court of India; Parmanand Katara vs. Union of

India AIR1989SC 2039) This problem was mitigated to some extent when the ju-

dicial system mandated the delivery of care by any and every hospital regardless

of a patient's paying and medico-legal status in times of emergency . Failure on

the part of any hospital to provide timely medical treatment to a person in need of

such treatment results in a violation of the patient's "Right to Life,” which is guar-

anteed under Article 21 of the Constitution of India This is the closest India has

come to enacting laws similar to The EMTALA (Emergency Medical Treatment

and Labor Act) and the COBRA (Consolidated Omnibus Budget Reconciliation

Act), which are well recognized in the USA.

Most emergency departments in centrally run university and government

hospitals do not match up to the “Emergency Department Categorization

Standards” proposed by the Society of Academic Emergency Medicine (SAEM)

Emergency care is offered in areas designated as ‘casualties’ that are often

manned by junior specialty residents with little overview and are mere ‘referral

points’ for specialized care. Triage, something that is instrumental to good

emergency care, is rarely practiced. Problems are worse in rural areas, where

even the most basic emergency obstetric care has been found to be lacking

It is also found that on a completely different level, however, is the defense

sector in India, in which command hospitals, paramedics, and nurses trained in

emergency medicine have long been functioning. The same training techniques

should be adopted for the citizens of India.

15 Parmanand Katara vs. Union of India AIR1989SC 2039) 78

The first privatized emergency department (ED), modeled on the American

Community Hospital Emergency system, was established at the Sundaram Med-

ical Foundation, Chennai, with help and support from emergency physicians from

the Long Island Jewish Medical Center, USA, in the late 1990s This marked a

landmark change in the psyche of the private hospitals in the country. Today,

well-equipped EDs have cropped up in private medical centers all over the coun-

try, and many of these centers are headed by physicians who have formally

trained in emergency medicine in other countries.

The EMS system in India is best described as ‘fragmented.’ The basic fun-

damental principal behind EMS systems worldwide is to have a common emer-

gency communication number connected to responsive agencies. Although India

has the emergency number 102 for calling ambulances, the responsiveness of

the system has always been doubted. In 2007, Ramanujam et al. reported that

nearly 50% of trauma victims admitted to a premier hospital in an urban Indian

city had received no pre-hospital care

The first of its kind, the CATS (Centralized Accident and Trauma Services)

ambulance system was conceptualized in 1984 The service was expanded

nationally, but lack of a driving force behind the initiative made it fall by the side.

Today, NGOs (non-governmental organizations) and private hospitals in cities

and states have constructed their own EMS setups. Principal among these are

the National Network of Emergency Services (NNES), Ahmedabad, Delhi, Pune,

Hyderabad, Chennai, Raipur, Ranchi, and Kolkata [; Emergency Management

and Research Institute (EMRI), Haryana, Chandigarh, Uttaranchal, Rajasthan,

Gujarat, Madhya Pradesh, Andhra Pradesh, Goa, Karnataka, Tamil Nadu,

Meghalaya, and Assam Life Support Ambulance Service (LSAS), Kerala,

Mumbai Operation Sanjeevani, Bengaluru; Ambulance Access for All (AAA),

Mumbai; Indian Institute of Emergency Medical Services (IIEMS), Kerela, etc.

79

Lack of a uniform EMS access number across the country and the lack of

awareness among commuters about the existing numbers makes access and

egress from emergencies difficult . The lack of trained professionals manning

ambulances makes quality of care heterogeneous. EMS services have remained

unaccountable, and this has led to failure to introduce corrective measures for

improving EMS in India.

However, steps are being taken in the right direction. The Gujarat state

government set up the Gujarat Emergency Medical Services Authority (GEMSA).

This was the first state to actually pass an Emergency Services Regulation in the

country. By bringing together government, NGOs and other private agencies, a

statewide system of emergency care has been set up, which could signal a tide

of vital change in EMS.

Collaborations with internationally acclaimed institutes like Stanford

University, CA (EMRI) and the American Association of Physicians of Indian

Origin (AAPI) have provided several breakthroughs in technical and educational

expertise.

There is palpable vigor among the bureaucratic brass and political leader-

ship regarding re-initiating the process for allotting a unique emergency response

number. How successful this push will be remains to be seen!

8.1 EMERGENCY MEDICINE EDUCATION

One of the shining beacons in Indian emergency medicine has been the evolu-

tion of academic training for physicians. Medical colleges have always emphas-

ized a minimum of 2 weeks spent in ‘casualties’ of hospitals during the mandat-

ory year of internship training prior to obtaining the baccalaureate in medicine

and surgery.

80

The lack of specialist training in the field was one of the principal issues

highlighted by the white paper on Indian emergency medicine published by the

INDUS collaboration David et al., in their landmark article, suggested that one of

the three important prongs essential for the development of emergency medicine

in India was the development of formal education in emergency medicine with its

recognition as a specialty by the Medical Council of India

Since then, several institutes have instituted formal training in emergency

medicine. Most of these have been developed in collaboration with international

agencies, including RCGP UK (Royal College of General Practitioners, UK),

CEM UK (College of Emergency Medicine, UK), GWU USA (George Washington

University, USA), etc. Others have formulated locally modulated curricula for

training in emergency medicine.

The recognition of Emergency Medicine as the 30th specialty in medical

training by the medical council of India in July 2009 brought about a welcome

change. There is now a move to increase the number of eligible seats for training

in emergency medicine throughout the country. The FACET program started by

the INDUS collaboration in 2009 is a future faculty development program that will

give rise to local champions for emergency medicine education

There has also been a surge in training programs for emergency medicine

nursing and paramedic training. Spearheading this effort are the WHO-

recognized Emergency Nursing course at CMC Vellore and the collaboration with

Stanford University at EMRI. Several other private institutes and hospitals have

also initiated diploma courses towards the same goal. The EMRI Emergency

Nurses Award (EENA), initiated in 2005 to recognize nurses’ excellence in

Emergency Medicine, is a step towards recognition of these important pieces of

the puzzle . However, the absence of a regulatory body puts the uniformity of

training into question.

81

There has also been a move towards making emergency medicine a train-

able specialty under the National Board of Examination (NBE) training programs

run at private and public sector hospitals within the country. The parallel introduc-

tion of simulation facilities and a variety of training programs in emergency ultra-

sound and resuscitation throughout the country will further interest in the field

among young physicians

Several interest groups have been instrumental in the development of

emergency medicine. SEMI, the Society of Emergency Medicine in India, was

started in 1999 and has served as an important forum not only for national emer-

gency physicians to brainstorm the steps for the development of emergency

medicine in the country, but they have also served as an important focal point of

contact with other international agencies like the ACEP (American College of

Emergency Physicians). AAEMI, the American Academy for Emergency Medi-

cine in India, was established in 2001 and has partnered with SEMI in order to

bring attention and recognition to Indian Emergency Medicine . The more recent

Indo-US Emergency and Trauma Collaborative (INDUS) has furthered the cause

of nationalized emergency medicine education in India NEPI, the Network of

Emergency Physicians in India, is a virtual network of emergency physicians and

aspirants in the field that provides a venue to engage in academic, administrat-

ive, and research-related discussions about emergency medicine in India

Accidents where victims require emergency medical care are not confined

to motor accidents. Emergencies may arise due to motor accidents, fire, floods,

cyclone, earthquakes etc. or even sudden collapse of victims or emergent deliv-

eries in pregnancy.

82

Among these, road accidents, however, contribute the largest number of

deaths or injuries. These accidents are increasing at an alarming rate of 3% an-

nually. About 10.1% of all deaths in India are due to accidents and injuries. A

vehicular accident is reported every 3 minutes and a death, every 10 minutes on

our records. During 1998, nearly, 80,000 lives were lost and 330,000 people

were injured. Of these, 78% were persons in the age group of 20-44 years. A

trauma-related death occurs in India every 1.9 minutes. The majority of road ac-

cident victims are pedestrians, two wheeler riders and bicyclists, passengers by

motor vehicles, as cited in the paper (2006) submitted by Ms. Shradd Deshmukh,

ILS, Law College, Pune on ‘Emergency Medical Aid to Victims’, to the Law Com-

mission.

The World Report on Road Traffic Injury Prevention released by the WHO

on World Health Day (7th April, 2004) stated that around 12 lakh people die each

year on account of accidents globally.

In the year 2004, the National Human Rights Commission constituted an Expert

Group to study the existing system for emergency medical care in India to

suggest appropriate methods of emergency medical care, which should be

developed by different States/Union-Territories and their essential components.

The Group submitted a Report on 7th April 2004. It reviewed the existing

scenario and the Centralised Accident and Trauma Services (ATS) and stated

that nearly 4 lakh persons loose their lives annually due to injuries, nearly 75 lakh

persons are hospitalized and three and half lakh persons who receive minor

injuries get emergency care at various places in India. However, present

Emergency Medical Support (EMS) in the country is functioning sub-optimally

and requires up gradation. The Report revealed the lacunae, which exist in the

present EMS and made a number of recommendations for implementation in the

short term and in the long-run. These recommendations were sent to the Health

Services and the States and UTs. (Medical Relief to Road Accident Victims

83

submitted by Devanshi Nijhara, ILS Law College Pune, to the Law Commission).

Text of full Report of NHRC titled “Emergency Medical Services in India –

Present Status and Recommendations for Improvement” is published in ‘Journal

of the National Human Rights Commission’ vol.3, 2004.

Government of India has accorded permission for the establishment of

100 Emergency Accident Relief Centres in all the National Highways/State

Highways at a distance of 50 km each to give timely first aid to accident victims

and to arrange for further medical treatment in hospitals. This is a unique

programme implemented by the Government jointly with private hospitals,

sponsors etc. Out of the 100 centres targeted, 77 are now functioning. Among

the centres now functioning, 41 are fully financed by private hospitals and

institutions while the remaining 36 are partly sponsored by the Government and

provide a monthly support of 16 Rs.40,000/- or the actual expenditure incurred by

these sponsors (not exceeding Rs. 40,000/- . During the year 2004, with timely

medical aid, these centres are said to have saved 19,595 lives, treated 6,400

serious injured cases and 13,195 persons with minor injuries. (ibid, Devanshi

Nijhara’s Paper).

The Indian Emergency Journal (Aug., 2005) in its Editorial says: “The fact

is that 80,000 people are killed in accidents every year …. At least 30 to 45

minutes elapse between the time of a crash and arrival at hospital. 12 percent of

institutions in the trauma-care-sector have no access to ambulance. Only 50 per

cent of the available ambulance services possess the acute-care facilities

needed to keep an accident victim alive during transportation… And only 4 per

cent of personal staffing these services (have certified formal training).

9. EMRGENCY SERVICE TRASPORTATION INFRSTRUCTURE.

“Ambulances with state of art equipment would, it is stated, be deployed

by the National Highways Authority of India (NHAI) for every 50 km on completed

84

stretches of highways entrusted to them. A national toll-free telephone number

108, will be earmarked (it has already been done in Andhra Pradesh) to which

information on accidents can be passed on, immediately by passengers or

passersby. This was decided at a meeting to draw a road map to develop an

integrated and

Comprehensive system of trauma care by the Ministry of Road Transport

and Highways and the Ministry of Health and Family Welfare. The Department of

Economic Affairs of the Union Finance Ministry and the Department of Road

Transport and Highways will jointly devise an insurance-funded payment for the

treatment of victims of hit and run accidents.

Under the scheme, the Health and Family Welfare Ministry will identify

distinct Government Hospitals near the National Highways, for a time-bound up

gradation of trauma care facilities. They would also standardize the configuration

of ambulances with the latest equipment and draw up qualification for the staff to

be deployed on them. This is to ensure that staff would be able to stabilize the

condition of victims prior to hospitalization.

The meeting was attended by senior officers of the Department of Road

Transport and Highways, National Highways Authority of India, Ministry of Health

and Family Welfare, Department of Economic Affairs, (Insurance Division) and

Ministry of Telecommunication. The other decisions include gradual extension of

deployment of ambulances to national highways under construction, provision of

ambulances to States, NGOs.”

Tamil Nadu State : Road Safety Council, Road Safety Fund &

Identification of hospitals on Highways In Tamil Nadu, Government has

established under section 215 of the Motor Vehicles Act, 1988 and appointed a

Road Safety Commissioner who has various duties including accident relief.

85

A Road Safety Fund has been created during the year 2000 to fund Road

Safety Activation. Allocations will be made to the fund from compounding fees

and spot fines collected by Transport and Police Departments. The fund will be

administered by a committee chaired by the Home Secretary.

The Highway Patrol force is proposed to be re-organized by integrating it

with traffic accident posts and linking with Emergency Accident Relief Centers

(EARC). 80 stretches have been identified for Highway Patrol with 160 teams by

the Police Department and a concurrent team to co-ordinate with the Highway

Patrol Team. The Tamil Nadu Government has identified Emergency Relief

Centers (ARCs) on mega highways in Tamil Nadu and has proposed such

centers for every 50 Km on the National Highways in the State. These Centers

can be contacted by dialing the toll free number 1033 from any land line phone

near accident spot. A fully equipped ambulance with a trained paramedic is

always on standby to respond to such calls. Victims are transported to the

nearest hospitals free of charge. A large number of hospitals, about 75 have

been identified (see http://www.tn.gov.in/sta/roads.htm) and 7 more are

proposed.

The Basic feature of the scheme is to establish 100 emergency ARCs on

National Highways/State highways throughout Tamil Nadu. These centers are

operated by leading hospitals in the area. It is an example of public-private

partnership model. The starting infrastructure like cubicle, ambulance, etc., is

provided by the sponsoring agency/hospital. The local Regional Transport offices

help in getting telephone and water/Electricity connections. Some Centers are

fully sponsored where the full maintenance cost including salary, fuel, medicine

etc. are borne by the sponsoring hospitals.

Some Centers are sponsored where the staff is provided by the hospitals

and maintenance expenditure is given by the State Government. To establish

86

any new Centre, preference is given to full sponsorship. In case there is no

sponsor ready to take the full expenditure, Government will provide the

maintenance expenditure. As on 27.1.2004, there are 75 Centres functioning and

25 more Centers are proposed. It is stated that as on 1.9.2004, 16,326 lives have

been saved. AndhraPradesh : Sat yam EMRI : Toll Free No.108 and

Ambulances: Sat yam group who are leaders in computer technology have set

up the Emergency Management Research Institute (EMRI), a non-profit society,

for round-the clock emergency response service.

The Andhra Pradesh Government in conjunction with Ministry of

Communication, Government of India, has allocated the free toll telephone

number 108 (on the model of 911 in USA). 108 will be uniform across the

country. The Hyderabad EMRI Institutes primary objective is to aid the needy in

emergencies like Medical, Fire, Accident, etc. by providing timely attention and

support. The Project was structured to be carried out in phases, to facilitate a

planned roll out of emergency services across the State of Andhra Pradesh. To

start with, the cities of Hyderabad, Secunderabad, Vishakhapatnam, Tirupathi,

Vijayawada and Warangal have these ambulances. This scheme is stated to be

the first of its kind in India.

In the second phase, the scheme will cover most of the towns in Andhra

Pradesh. Technical challenges include:

System Integration of disparate system of multiple vendors. Integrating EMRI

applications with NORTEL. It was decided to go ahead with closed Applications

Call system and Contra closed Dispatching System, to be implemented in the

first phase and co-ordinating it into a Distributor Call –Taking and Distributor

Dispatching System in latter phases, covering the entire State. The system

integrator, which is a company known as GTL, has studied the business

challenges and delivered the following solutions:

(1) All calls for emergency (Hyderabad and other … locations) will land in

87

Communication Server 1000 M at Hyderabad Call Centre through BSNL

Network.

(2) Communication Server 1000 M and Symposium Call Centre Server will route

the call to the respective available Agent/Call taker at Hyderabad.

(3) The Call Des patcher, located at Hyderabad shall dispatch the calls for

respective regions using PSTN/Wireless Network.

(4) The agent will be able to transfer or conference a live-call with a call

dispatcher.

The Emergency Response Vehicles are fitted with GPS system for

mapping and tracking. EMRI had signed a memorandum of understanding with

the Andhra Pradesh Government for a public-private partnership initiative.

A Journal called, India Emergency Journal, (a quarterly) was also released.

There is a proposal to set up an Indian Emergency Management Authority

(IEMA) at the national level to enable State Governments to operate emergency

response centers for promoting and enhancing public safety by providing legal,

financial and administrative policy framework. It is stated that the call center on

Medical Road (Byrraju Foundation) is receiving on an average 2,200 calls per

day from various parts of the twin cities. During the first 45 days, they received

more than 1,00,600 calls and they saved 375 lives. Two-thirds of calls were

accident related.

Presently, 40 responders work in three shifts at the call centres.

30 Ambulances and an equal number of responders (on two-wheelers) are

stationed at vantage points throughout the city.

The EMRI Ambulances are equipped with automated external defibrillator with

multi-para monitors, oxygen manifold system and ‘Bord Avion’ ventilators.

They are equipped with extricate tools, fire extinguishers and rescue blankets to

help the victim.

88

10. CURRENT LEGAL FRAMEWORK:

So far as current legal framework is concerned, in spite of the fact that

rash and negligent driving of a motor vehicle falls within the scope of sec. 304-A

of the Indian Penal Code, 1860 where imprisonment may go up to 2 years

accidents due to negligent driving of motor vehicles have not stopped. Of course

if it amounts to culpable homicide or murder under section 299 read with section

300, the punishment under sections 302 or 304 may extend to life imprisonment

or 10 years. Initially, in 1978, a Bill was introduced in the Rajya Sabha and was

passed on 23.2.1978 which referred to amendment of section 304-A. It not only

recommended increase in punishment from 2 years to 5 years, it proposed a new

section 304B for drivers who runaway without informing police within a

reasonable time, that the punishment must be 7 years imprisonment.This Bill was

not passed by the then Lok Sabha on account of its dissolution.

Later, the Bill was referred to the Law Commission and in the 156th Report the

above amendments were reiterated. So far as section 304B is concerned,

because another section with that number had already been inserted, the

Commission recommended a change in the number as section 304B.

The Motor Vehicle Act, 1988 contains a whole chapter on “Accident

Compensation” which includes a provision for no fault liability, currently fixed at

Rs.50,000/- if death is caused or Rs.25,000/- if it causes injury.

This is intended to help tide over immediate financial problems. There is, of

course, provision for compensation for negligently killing or injuring any person.

There is vast legal literature as to the manner of computing compensation. Under

an ‘Act-policy’ provision contained in the said Act,

Insurance Companies which issue policies have to cover certain mandatory risks.

Lok Adalats and Motor Accident Claim Tribunals, all over the country provide

remedies for payment of compensation for death or injury.

In the 178th Report of the Law Commission (2001), a lacuna in the law pointed

by the High Courts in several judgments was sought to be remedied. But

89

Parliament has not yet implemented the same recommendation. We propose to

reiterate that amendment. The problem is that if a person who is injured and has

claimed compensation dies as a consequence of the injury, while the claim is

pending before the Claims Tribunal, the proceedings abate and the decease's

estate represented by his legal representatives get nothing. The benefit of the

abatement goes to the tort-feaster. This is happening in a number of cases. The

Law Commission has, therefore, recommended an amendment which allows the

proceedings to be continued by the legal heirs of the injured person who has died

during the pendency of the litigation.

So far as ‘emergency medical aid’ is concerned, we have referred to the

judgment of the Supreme Court in Parmanend Katara and other cases decided

by the National Consumer Redressal Forum. Apart from these, there are some

special provisions introduced into the Motor Vehicle Act, 1988.

Section 134 of the Motor Vehicles Act, 1988 imposes a duty on the driver of the

vehicle and of the doctor and hospital who are approached. Section 187 creates

an offence if sec 134 is not complied with. Section 134 reads as follows:

“Section 134: Duty of Driver in case of accident and injury to a person:

When any person is injured or any property of a third party is damaged as a

result of an accident in which a motor vehicle is involved, the driver of the vehicle

or other person in charge of the vehicle –

(a) unless it is not practicable to do so on account of mob fury or any other

reason beyond his control, to take all reasonable steps to secure medical

attention for the injured person, by conveying him to the nearest medical

practitioner or hospital, and it shall be duty of every registered medical

practitioner or the doctor on duty in the hospital immediately to attend to the

injured person and render medical aid or treatment without waiting for any

procedural formalities, unless the injured person or his guardian, in case he is a

minor, desires otherwise;

(b) give on demand by a police officer, any information required by him or, if no

police officer is present, report the circumstances of the occurrence, including the

90

circumstances, if any, for not taking reasonable steps to secure medical attention

as required under clause (a) at the nearest police station as soon as possible,

and in any case within twenty-four hours of the occurrence ;

(c) give the following information in writing to the insurer, who has issued the

certificates of insurance, about the occurrence of the accident, namely:-

(i) Insurance policy number and period of its validity;

(ii) Date, time and place of accident;

(iii) Particulars of the persons injured or killed in the accident;

(iv) Name of the driver and the particulars of driving license.

Explanation: For the purposes of this section, the expression “driver” includes the

owner of the vehicle.”

Under section 187 of the said Act, whoever fails to comply with the provisions of

the various clauses of section 134, shall be punishable with imprisonment for a

term which may extend to three months, or with which may extent to Rs.500/- or

with both. If it is a second time such an of fence is committed by a person, the

punishment by imprisonment may extend to six months or with fine which may

extend up Rs. 1000/- or with both. But, in a large number of cases, which are

known as he ‘hit and run’ cases, the driver who runs away under cover of

darkness or when he speeds up and runs away or when there is nobody in the

vicinity to note down the number of the vehicle, or where the injured person not

being in a fit condition to note the number, the unfortunate position is that the

driver or the vehicle number is not traceable. In such situations, the above

provisions of sec 134 or 187 of the Motor Vehicles Act, 1988 are not helpful. The

serious apathy of the runaway tort teaser cannot be easily remedied. Further, the

above provisions of the Motor Vehicles Act do not cover accidents due to other

transport vehicles, like carts, cycle rickshaw, etc. Nor does it cover victims of fire,

flood, etc. In addition, passers by who witness the accident fear harassment by

police and are not willing to take the victim to a hospital or report to the police.

They do not want to be called to the police station or to the Court for their

statements or evidence to be recorded.

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Pre-hospital Care: Equipped Ambulances and transport The British Medical

Journal noted in one of its reviews on ‘trauma’ issues that society seems to

accept a lower standard of safety for road users than for other modes of

transport. In India, the problem is more acute due to shortage of trained surgeons

to handle accident trauma, poor diagnostic infrastructure in government hospitals

and because of grossly insufficient ambulance services in rural and semi-urban

areas. Trained personnel staffing professional ambulance services will make a

world of difference. The British Journal states that for accident victims, the golden

hour is a continuous process beginning with the care that is given in the

ambulance en route to hospital; this protection is vital for survival rates. Dr. P.V.

Jayashankaran and Dr. P.C. Raja Ravi Verma, in an article in the ‘Hindu’

magazine section (dated Oct. 16, 2005) have, after giving statistics about

accidents globally, and in India and Tamil Nadu state are as follows:

“…. the chances of survival are bleak as we truly lack an awareness of the most

important service, the pre-hospital care’.

‘….. any tragic accident can be construed to be a success or failure within the

first 10 minutes of medical attention as this is the time when the most important

decisions are to be taken. It is here that the concept of the Golden Hour comes

into play. The concept can be better understood if one were to learn the primary

(Trimodal) causes of death in major accidents. In fact, the London blasts

highlighted the case of an explosion in a double-decker bus that went off near a

conference hall hosting a meeting of medical practitioners. The prompt medical

care made available by the various specialists is a case in point.’

About the pre-hospital facilities available in UK, the authors say that in the United

Kingdom the support systems are quite effective. The National Health Services

has well-equipped ambulances with top class personnel (para-medicals) to

manage accident victims throughout the country under a single umbrella. These

ambulances rush to the spot and effectively avert any tragedy within the early

minutes by way of proper assessment of the injuries and they quickly transport

the victims to the nearest hospitals. By the time the victim reaches the hospital,

92

he or she is almost saved and in becomes easy for starting definitive treatment.

In India, according to the above authors, the situation is different. Whenever an

accident occurs, the focus on saving the life of the victims gets diluted due to the

fear of subsequent legal procedures and due to paucity of people with an

awareness of the importance of pre-hospital care What is required is a well

maintained, state-of-the-art ambulance with oxygen, intravenous infusions, life-

saving drugs, splints, defibrillators and ventilators. Well trained para-medical staff

must be available at all times in the ambulance. The government has formed a

number of Emergency Accident Relief Centers (ARCD) through which the

ambulances are sent to the scene of accident but there is dearth of qualified

para-medical personnel who can assess or assist a victim. 32 Centralized

Accident Trauma Services (CATS) ambulances, says a Delhi Report (Express

News line, Aug. 25, 2005) were imported from Japan in the year 2000 at a cost of

Rs.17.50 lakhs each and of them, only 18 are functional. Compared to the early

Omni-vans and Gypsies that were used as ambulances, the CATS Ambulances

are more spacious and have medical facilities fitted inside the ambulances. The

advanced equipment in big vans, says a paramedical, were previously not

available in the Omni Vans or Gypsies. In case there is a serious road accident, if

the ambulance is not well equipped and if paramedical personnel are not

available in the ambulance, the transport facility does not qualify for being

recognized as a pre-hospital care facility. His Excellency the President of India

Shri A.P.J. Abdul Kalam in his inaugurated address at the Annual General

Meeting of the Indian Red Cross Society and St. John Ambulance, New Delhi on

October 17, 2004 strongly pleaded for an integrated and institutionalized

approach for emergency response. He suggested a scheme, in which whenever

an accident occurs, a message could be sent to the nearest ambulance team

and immediate medical help is arranged for. He also recommended for

formulating a legal mechanism for providing such emergency support in critical

situations. He disapproved the tendency among people to avoid coming to the

successor of accident victims, fearing medico-legal issues. He said that hospitals

demanding the presence of the police and the completion of formalities before

93

they could start treating the patients are undesirable (see an article Challenges of

Emergency Management in India by Anil K. Sampada, published in Indian

Emergency Journal, vol.1).

As of now in India, there is no proper legal framework to (1) encourage citizens to

report and come out to give help to the accident victims without fear of

harassment, (ii) to mandate all doctors and hospitals to attend accident victims

and provide all medical facilities for stabilizing patients in emergency, (iii)

establish trained paramedics for pre hospital care during transport (iv) to aid and

implement trauma care system regardless of jurisdictional boundaries. In the light

of the number of accidents in the country, the indifference of those who witness

an accident in offering prompt assistance on account of the likelihood of facing to

comply with legal formalities, lack of ambulances with well equipped medical

facilities or para-medical staff, it is clear that the situation needs to be remedied

by corrective action. We are proposing draft legislation as a step in this direction.

It is first necessary to certain laws relating to emergency medical care in other

jurisdictions.

11.EMERGENCY CARE AND INDIAN LAW S

in this research we see the a pull between the medical system specially concern

with the emergency care and the law enforcement from the LAW system

related with the emergency care .Doctor and hospital are the basic part of the

medical infrastructure and also the important area of the medico legal case s in

india there a rule made by law to clear this area s duty s do and don’t do , this

thing ids important to decide the real meaning and duty of emergency care on si

de of medical system hear some of the provision mention and efection part of

medical system as under

11.1 MEDICAL PROFESSIONALS IN CRIMINAL LAW

The criminal law has invariably placed the medical professionals on a pedestal

different from ordinary mortals. The Indian Penal Code enacted as far back as in

94

the year 1860 sets out a few vocal examples. Section 88 in the Chapter on Gen-

eral Exceptions provides exemption for acts not intended to cause death, done

by consent in good faith for person’s benefit. Section 92 provides for exemption

for acts done in good faith for the benefit of a person without his consent though

the acts cause harm to a. person and that person has not consented to suffer

such harm. There are four exceptions listed in the Section, which is not neces-

sary in this context to deal with. Section 93 saves from criminality certain commu-

nications made in good faith.

The following statement of law on criminal negligence by reference to surgeons,

doctors etc. and unskillful treatment contained in Roscoe’s Law of Evidence

(Fifteenth ‘Edition) is classic: “Where a person, acting as a medical man, &c.,

whether licensed or unlicensed, is so negligent in his treatment of a patient that

death results, it is manslaughter if the negligence was so great as to ;, amount to

a crime, and whether or not there was such a degree of negligence is a question

in each case for the jury. “In explaining to juries the test which they should apply

to determine whether the negligence in the particular case amounted or did not

amount to a crime, judges have used many epithets, such as ‘culpable,’

‘criminal’, ‘gross’, ‘wicked’, ‘clear’, ‘complete.’ But whatever epithet be used and

whether an epithet be used or not, in order to establish criminal liability the facts

must be such that, in the opinion of the, jury, the negligence of the accused went

beyond a mere matter of compensation’1 between r subjects and showed such

disregard for the life and safety of others as to amount to a crime against the

State and conduct deserving punishment.” (p. 848-849)

“whether he be licensed or unlicensed, if he display gross ignorance, or gross in-

attention, or gross rashness, in his treatment, he is criminally responsible. Where

a person who, though not educated as an accouter, had been in the habit of act-

ing as a man-midwife, and had” unskillfully treated a woman who died in child-

birth, was indicted for the murder, L. Ellenborough said that there was no evid-

ence of murder, but the jury might convict of man-slaughter. “To substantiate that

95

charge the prisoner must have been guilty of criminal misconduct, arising either

from the grossest ignorance or the [most?] Criminal inattention. One or other of

these is necessary to make him guilty of that criminal negligence and misconduct

which is essential to make out a case of manslaughter.” (p.849) 196th report by

law commission of India

The Medical Council of India in exercise of the powers conferred under section

20A read with section 33(m) of the Indian Medical Council Act, 1956, with the

previous approval of the Central Government, has made Regulation relating to

the Professional conduct, Etiquette and Ethics for medical practitioners, namely,

“The Indian Medical Council (Professional

11.2CONDUCT, ETIQUETTE AND ETHICS

The Rules are for the betterment of the emergency care service, Regulation

1.1deals with character of the Physician. According to it, a physician should up-

hold the dignity and honor of his profession. The prime object of the medical pro-

fession is to render service to humanity. Regulation 1.2 deals with the need to

maintain good medical practice. It states that he principle of the medical profes-

sional is to render service to humanity with full respect for the dignity of profes-

sion and man. Physicians should merit the confidence of patients entrusted to

take their care, rendering to each a full measure of service and devotion. Chapter

6 deals with unethical acts. It says that “a physician shall not aid or abet or com-

mit any of the following acts which shall be construed as unethical”. As per Regu-

lation 7.1, a physician, if he or she commits any violation of these regulations,

shall be guilty of professional misconduct and liable for disciplinary action. Ethics

Committee of the Indian Society of Critical Care Medicines has made ‘Guidelines

for limiting life prolonging interventions and providing palliative care towards the

end of life in Indian Intensive care Units. These guidelines are eight in number

and read as follows:

96

i. The physician has a duty to disclose to the capable patient or family, the pa-

tient’s poor prognosis with honesty and clarity when further aggressive support

appears non-beneficial. The physician should initiate discussions on the treat-

ment options available including the option of no specific treatment.

ii. When the fully informed capable patient or family desires to consider palliative

care, the physician should offer the available modalities of limiting life-prolonging

interventions.

iii. The physician must discuss the implications of forgoing aggressive interven-

tions through formal conferences with the capable patient or family, and work to-

wards a shared decision-making process. Thus, he accepts 397 patient’s

autonomy in making an informed choice of therapy, while fulfilling his/her obliga-

tion to provide beneficent care.

iv. Pending consensus decisions or in the event of conflicts between the physi-

cian’s recommendations and he family’s wishes, all existing supportive interven-

tions should continue. The physician however, is not morally obliged to institute

new therapies against his/her better clinical judgment.

v. The discussions leading up to the decision to withhold life-sustaining therapies

should be clearly documented in the case records, to ensure transparency and to

avoid future misunderstandings. Such documentation should mention the per-

sons who participated in the decision making process and the treatments with-

held or withdrawn.

vi. The overall responsibility for the decision rests with the attending physician

sintencivist of the patient, who must ensure that all members of the caregiver

team including the medical and nursing staff agree with and follow the same ap-

proach to the care of the patient.

97

vii. if the capable patient or family consistently desires that life support be with-

drawn, in situations in which the physician considers aggressive treatment non-

beneficial, the treating team is ethically bound to consider withdrawal within the

limits of existing laws.398

viii. In the event of withdrawal or withholding of support, it is the physician’s oblig-

ation to provide compassionate and effective palliative care to the patient as well

as attend to the emotional needs of the family. We are also of the view that the

doctors must be protected if civil and criminal actions are instituted against them.

We, therefore, propose that if the medical practitioner acts in accordance with the

provisions of the Act while withholding or withdrawing medical treatment, his ac-

tion shall be deemed to be ‘lawful’. (sec. 11) Our proposal to treat the doctor’s

action, in the circumstances mentioned in the Act, as “lawful” requires, as a con-

dition to be satisfied, namely, that the doctor maintains a register as to why he

thinks a patient is competent or incompetent, or why a competent patient’s de-

cision is an informed one, what the opinion of the three experts is, and why with-

holding or withdrawing medical treatment is in the best interests according to ex-

perts and himself. Maintenance of such record is mandatory and if such record is

not maintained, the protection afforded under this Act is not applicable to him.

We are proposing this provision to provide transparency and to have necessary

evidence as to why the doctor has acted in a particular manner so that the Act is

not abused. (sec. 8)

7) In the United Kingdom and other common law countries, the patient, parents

or close relatives are entitled to seek declaratory relief in Courts for preventing

the doctors or hospitals from withholding or withdrawing medical treatment or

sometimes for directing such withholding or withdrawal. Such declaratory relief is

granted in UK and other common law countries when approached by doctors and

hospitals where they are of the 414 opinion that it is necessary to withhold or

withdraw medical treatment. They seek a declaration that such action be de-

clared ‘lawful’. However, in Airedale (1993), the House of Lords and in Burke

98

(2005), the Court of Appeal made it clear that it is not necessary in every case for

the doctors to seek a declaration that the proposed action is lawful. Till a body or

precedent is obtained, the medical profession may approach the Courts so that

Courts will lay down what is ‘good medical practice’ in medical parlance. It was

also so stated by Thomas J in the New Zealand case referred to by us (Auckland

Area Health Board v. AG) (1993). This has already been done in UK. These prin-

ciples are, therefore, proposed to be substantially incorporated in the proposed

Act. Therefore, we are of the view that only an ‘enabling’ provision is necessary

in this behalf but not a provision which requires a declaratory relief to be obtained

mandatorily in every case where the medical treatment is proposed to be with-

held or withdrawn. The High Court has to dispose of the original petition in the

light of the provisions of the proposed Bill. (sec. 12) We are also of the view that

time is essence in the case of terminally ill patients when decisions have to be

taken under this enabling provision for withholding or withdrawing treatment. To

avoid delays and appeals, the Court which deals with these cases must, there-

fore, be a Division Bench of the High Court and not the ordinary trial Courts. The

Division Bench must deal with the matters with the greatest speed but, at the

same time, after hearing all concerned and after due consideration. In England,

we 415 find decisions are given sometimes almost immediately, soon after no-

tices are served and the declaration is given in 2 or 3 days. Sometimes, reasons

are given later. Therefore, we propose that these petitions be filed before a Divi-

sion Bench of a High Court and should be disposed of within maximum period of

one month. We propose a provision for the High Court to call for further expert

evidence or to examine further witnesses. The High Court can also appoint an

amicus curiae. The High Court may even pass orders first and give reasons later.

The High Court will be the High Court within whose territorial jurisdiction the med-

ical treatment is proposed to be given or given or withheld or withdrawn. In the

course of judgment, Lord Donaldson MR referred to Gillick’s case (1985)(3) All

ER 402 and referred to, what is now known as “Gillick Competence”. He said:

Lord Donaldson then laid down six principles, which read as follows:

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(1) No doctor can be required to treat a child, whether by the Court in the exer-

cise of its wardship jurisdiction, by the parents, by the child or anyone else. The

decision whether to treat (a patient) is dependent upon an exercise of his own

profession judgment, subject only to the threshold requirement that, save in ex-

ceptional cases usually of emergency, he had the consent of someone who has

authority to give that consent. In forming that judgment, the views and wishes of

the child are a factor whose importance increases with the increase in child’s in-

telligence and undertaking.

(2) There can be concurrent powers to consent. If more than one body or person

has power to consent, only a failure to or refusal of consent by all having that

power will create a veto.100 (3) A ‘Gillick Competent’ child or one over the age of

16 will have power to consent but this will be concurrent with that of a parent or

guardian.

(4) ‘Gillick Competence’ is a development concept and will not be lost or acquired

on a day-to-day or week-to-week basis. In the case of mental disability, that dis-

ability must also be taken into account, particularly where it is fluctuating in its ef-

fect.

(5) The Court in the exercise of its wardship or statutory jurisdiction has power to

override the decisions of a ‘Gillick Competent’ child as much as those of parents

or guardians.

(6) Waite J, was right to hold that R was not ‘Gillick Competent’ and, even if R

had been (the Judge), was right to consent to her undergoing treatment which

might involve compulsory modification.”

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12.IMPORTANCE OF MEDICAL JURISPRUDENCE IN CRIMINAL

LAW PRACTICE

There are two distinct aspects of law-medicine relationship: (I) Forensic

Medicine, and (2) Medical Jurisprudence. They are essentially different subjects

but are closely related. r'orensic or legal medicine: Courts of law deal with the ap-

plications of medical knowledge to aid in the administration of justice. It is used

by the legal authorities for the solution of legal problems, for example, applying

the knowledge in deciding cases of injuries, hanging, sexual offenses, infant

death, poisoning, etc. It deals with medical aspects of law. While medical juris-

prudence deals with legal aspects of practice of medicine (Juris = Law; Prudentia

= Knowledge), Le. it deals with legal responsibilities of the physician which arise

out of physician-patient relationship, for example, medical negligence cases, con-

sents, rights and duties of doctors, infamous conduct, medical ethics, etc.

Forensic medicine deals almost entirely with crimes against the person' in which

medical examination and evidence are required. Forensic medicine is mostly an

exercise of common sense combines with the application of knowledge and ex-

perience already acquired in the study of other branches of medicine. Its aim is to

find out the truth. The field of activity is judicial investigation, both civil and crimin-

al. The medical evidence does not itself prove the case of prosecution. It only

corroborates the evidence of eyewitnesses. In all cases of crime involving the

person, e.g. homicide, suicide, assault, sexual offenses, the help of medical prac-

titioner is sought by the police. In all such cases the doctor will be required to ap-

pear as an expert witness in a Court of Law. Often the doctor is the Chief source

of evidence upon which legal decisions are made. His effective use in the admin-

istration of justice is an absolute necessity for a peaceful and orderly society. In

cases of sudden death, the authority will depend mostly or completely on medical

evidence in establishing the cause of death and in case of accident to determine

blame. A forensic science expert witnesses must give the appearance, the sure

of being independent, nonpartisan scientist. The appearance and rejected image

of neutrality, impartiality and objectivity are as important as the authentic charac-

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teristics. Vagueness and theory have no place in forensic medicine. He should

examine the facts which come to his knowledge in his special capacity, draw his

conclusions logically and correctly after a detailed consideration of the pros and

cons of the case, and indicate to the court that interpretation. BrouardeL the

French medico legal authority wrote, "If the law has made you a witness, remain

as man of science. You have no victim to avenge, no guilty person to convict and

no innocent person to save. You must bear testimony within the limits of sci-

ence." Medicine and law have been related from the earliest times and the

bounds which united them, were religion, superstition and magic. Law medicine

problems are found in the written records in Egypt, Sumee Babylon, India and

China, dating back 4000-3000 B.C. Legal medicine may be defined approxim-

ately as the application of medical knowledge to the administration of law and to

the furthering of justice and, in addition, the legal relations of the medical man.

Sometimes also included are the moral obligations which rest on him. Various

synonyms are in use - forensic medicine (the medicine of the forum or the law

courts), medical jurisprudence, juridical medicine. But these are sometimes used

in a more restricted sense. Forensic medicine is meaning the medical aspects of

law and medical jurisprudence, the legal aspects of medicine or vice versa, and

there is no general acceptance of these restrictions.

Medicine and law have been related from the earliest times and the bonds which

first united them were religion, superstition and magic which are not -inextricably

mixed by primitive peoples. The functions of the physician and the jurists were

united in priest. Me was the intermediary.

13.THE CONSENT OF THE PATIENT/GUARDIAN FOR

EXAMINATION/ OPERATION

The Indian Medical Council (Professional conduct, Etiquette and Ethics) Regula-

tions, 2002.

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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. 21 No act of in vitro 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.

14 CRIMINAL LAW RELEVANCE WITH MEDICAL FIELD

Hear I quoted the major provision related with criminal law and the medico leg-

al field cases for the purpose of see the interconnection with the eachother

field.

14.1 PROTECTION FOR ACT DONE UNDER/AND DONE BY CON-

SENT IN GOOD FAITH FOR PERSON’S BENEFIT: -

As per section 88 of Indian penal code provide that Nothing which is not in-

tended to cause death, is an offense by reason of any harm which it may cause,

or be intended by the doer to cause, or be known by the doer to be likely to

cause, to any person for whose benefit it is done in good faith, and who has giv-

en a consent, whether express or implied, to suffer that harm, or to take the

risk of that harm.

A, a surgeon, knowing that a particular operation is likely to cause the death of Z,

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who suffers under a painful complaint, but not intending to cause Z’s death, and

intending in good faith, Z’s benefit performs that operation on Z, with Z’s consent.

A has committed no offense.

14.2 ACT DONE IN GOOD FAITH FOR BENEFIT OF CHILD OR

INSANE PERSON, BY OR BY CONSENT OF GUARDIAN

as per section 89 of Indian penal code provide that , Nothing which is done

in good faith for the benefit of a person under twelve years of age, or of unsound

mind, by or by consent, either express or implied, of the guardian or other person

having lawful charge of that person, is an offense by reason of any harm which it

may cause, or be intended by the doer to cause or be known by the doer to be

likely to cause to that person :

Provisos—Provided—

First: - That this exception shall not extend to the intentional causing of death,

or to the attempting to cause death;

Secondly: - That this exception shall not extend to the doing of anything which

the person doing it knows to be likely to cause death, for any purpose other than

the preventing of death or grievous hurt, or the curing of any grievous disease or

infirmity;

Thirdly: - That this exception shall not extend to the voluntary causing of griev-

ous hurt, or to the attempting to cause grievous hurt, unless it be for the purpose

of preventing death of grievous hurt, or the curing of any grievous disease of in-

firmity ;

Fourthly:- That this exception shall not extend to the abetment of any of-

fense, to the committing of which offense it would not extend.

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Illustration

A, in good faith, for his child’s benefit without his child’s consent , has his child

cut for the stone by a surgeon. Knowing it to be likely that the operation will

cause the child’s death, but not intending to cause the child’s death. A is within

the exception, inasmuch as his object was the cure of the child.

14.1 PROTECTION FOR CASE OF ACT DONE - CONSENT KNOWN TO BE

GIVEN UNDER FEAR OR MISCONCEPTION

As per section 90 of Indian penal code provide that, -A consent is not such a

consent as it 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 con-

sequence of such fear or misconception ; or

Consent of insane person:- if the consent is given by a person who, from un-

soundness of mind, or intoxication, is unable to understand the nature and con-

sequence of that to which he gives his consent; or

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.

14.1 PROTECTION FOR CASE OF, ACT DONE IN GOOD FAITH FOR BENE-

FIT OF A PERSON WITHOUT CONSENT:-

As per section 92 of Indian penal code provide that. Nothing is an offence by

reason of any harm which it may cause to a person for whose benefit it is done in

good faith, even without that person’s consent, if the circumstances are such that

it is impossible for that person to signify consent, or if that person is incapable of

giving consent, and has no guardian or other person in lawful charge of him from

105

whom it is possible to obtain consent in time for the thing to be done with benefit:

Provisos - Provided—

First—That this exception shall not extend to the intentional causing of death, or

the attempting to cause death;

Secondly- That this exception shall not extend to the doing of anything which the

person doing it knows to be likely to cause death, for any purpose other than the

preventing of death or grievous hurt, or the curing of any grievous disease or in-

firmity;

Thirdly: -That this exception shall not extend to the voluntary causing of hurt, or

to the attempting to cause hurt, for any purpose other than the preventing of

death or hurt;

Fourthly:-That this exception shall not extend to the abetment of any offense, to

the committing of which offense it would not extend.

Illustrations

(a) Z is thrown from his horse, and is insensible. A, a surgeon, finds that Z re-

quires to be trepanned. A, not intending Z’s death, but in good faith, for Z’s bene-

fit, performs the trepan before Z recovers his power of judging for himself. A has

committed no offense

(b) Z is carried off by a tiger. A fires at the tiger knowing it to be likely that the

shot may kill Z, but not intending to kill Z, and in good faith intending Z’s benefit.

A’s ball gives Z a mortal wound. A has committed on offense

(c) A, a surgeon, sees a child suffer an accident which is likely to prove fatal un-

106

less an operation be immediately performed. There is not time to apply to the

child’s guardian. A performs the operation in spite of the entreaties of the child,

intending, in good faith, the child’s benefit. A has committed no offense

(d) A is in a house which is on fire, with Z, a child. People below hold out a

blanket. A drops the child from the housetop, knowing it to be likely that the fall

may kill the child, but not intending to kill the child, and intending, in good faith,

the child’s benefit. Here, even if the child is killed by the fall, A has committed no

offense

Explanation—Mere pecuniary benefit is not benefit within the meaning of Sec-

tions 88, 89 and 92.

15. RULES FOR MEDICAL PERSONS ETHIC RELATED WITH EMER-

GENCY CARE

As per the Indian medical council act, 1956 the institution is formed the basic

structure for regularized the medical field related provision as under 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.

The same is enacted by Parliament in the Seventh Year of the Republic of India.

Whereas the Medicine practice related provisions are enacted for the territory of

India. The same are applicable and bound to the people who want to practice the

medicine.

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