Reflections on medical law and ethics in India

Abstract

This is a well written book with comprehensive content discussed under ten chapters. The style of writing is clear and easy to understand. Some topics have been particularly well covered such as consent, MTP Act and consent related to it, health as a fundamental right/directive principle of State policy, assisted reproduction and surrogacy, Human Organs Transplantation Act, euthanasia, medical negligence, duty of care and Bolam's law, etc. While discussing Bolam's law, the author has done well to point out its limitations. Along with it the Bolitho test formulated in Bolitho v. City and Hackney Health Authority (1997) All ER 771 has also been aptly discussed. In this case the House of Lords held that expert medical opinion should only be accepted if the opinion regarding the suggested medical practice is found to be able to withstand logical analysis. In regards to the Human Organs Transplantation Act, the legal provisions have been discussed with reference to the situation in other countries as well as the WHO guidelines. Furthermore, of the ten chapters in the book, three are rightly devoted to medical negligence. Table II titled, “Ambit of health issues covered by judiciary-judicial decisions" in chapter one is comprehensive and useful. It covers 20 judgments (16 from the Supreme Court) regarding various health issues. However, even though medical negligence is a major health issue now-a-days, only one of these judgments (Dr. Kunal Saha case, 2014) is concerned with medical negligence. It would have been appropriate to include the following health and medicine related judgment in this table: "Dr. Mukhtiar Chand & Ors. Vs. State of Punjab & Ors., (1998 (7) SCC 579". This is a key judgment that holds that Vaids and Hakims cannot dispense allopathic medicines. The issue in this case concerned certain provisions of the Drugs and Cosmetics Act. This judgment has not found a place anywhere in the book. Legal aspects of certain basic problems regarding health care in India have not been covered well, for example, Quackery and the legal ways to counter it, health budget and forced labour from doctors. In case of health budget it is not discussed whether there can be a legal means to enhance the extremely poor health budget in India, which, in terms of health budget as a percentage of the GDP, is almost at the bottom when compared internationally. Regarding Forced labour from doctors, certain provisions of the Clinical Establishments Act, 2010, as well as certain Supreme Court judgments, cast an obligation upon doctors to treat the patients in emergencies, etc. without there being any provision for compensation for the services rendered. As a matter of fact, the Clinical Establishments Act, 2010, as well as the various State Clinical Establishments Acts, have not been covered at all. Pages 44-58 of the book are devoted to violence against hospitals. Surprisingly, there is no mention of the State laws in this regard which are operative in about 20 States, such as the “Delhi Medicare Service Personnel and Medicare Service Institutions (Prevention of Violence And Damage To Property) Act, 2008". The language and expressions used in the book are good. However, a few mistakes have creeped in, for example, i) it is written on page 53, “The said consent form may clearly state that the patients and their relatives would not yield to violence…….". It should be, “Would not resort to violence"; ii) on page 78, “parenteral fluid" is referred to as “parental fluid"; iii) it is written on page 175, “Section 87 of the Indian Penal code……..is an offence", while it ought to be, “is not an offence". On the whole, the book is exhaustive, well written, informative, up-to-date and lucid in its presentation and will be a welcome addition to law libraries. It would also provide useful reading to doctors.