Medical law and ethics in India

CONTENTS PAGE

CHAPTEH

v

FOREWORD

VB

PREFACE

xiii

TABLE OF CASES

I. II.

A

SURVEY OF THE LAW AND LAW COURTS

STATUTES RELATING TO THE MEDICAL AND ALLIED PROFESSIONS

1

45

Ill.

MEDICAL ETHICS,

IV.

RIGHTS AND DUTIES OF MEDICAL PRACTITIONERS

142

j\fEDICAL NEGLIGENCE AND CIVIl. LIABILITY

170

CLASSES AND INSTANCES OF ~ViEDICAL NEGLIGENCE

213

V. VI.

~Tr'TTT''T''"T·r.o AND DISCIPLINARY COUNCILS

66

VII. CONSE~\T IN RELATION TO IVrEDICAL EXAMINATION,

294

TREAT1vlENT AND OPERATIONS VIII. IX. X. XI.

xli.'

CRIMES AND THE PRACTITIONER

.'3l8

MEDICAL CERTIFICATES AND REPORTS

332

WILLS, LEGACIES AND GIFTS

36·1

A

376

PRACTITIONER IN THE \VITNESS Box

ARTIFICIAL INSEMINATION, STERILISATION AND

404

EUTHANASIA XIII.

MENTAL DEFECTS AND DISORDERS

419

XIV.

LAW RELATING TO PHARMACY AND DRUGS

439

XV.

IviATRHvIOKIAL IvfATTERS, SEXUAL OFFEKCES AND

478

INTERSEXUALITY APPENDIX

I-

APPENDIX

II -

INDEX

GLOSSARY OF

LEGAL TERMS

SELECT BIBLIOGRAPHY

501

,50:3

507

TABLE OF CASES A PAGE

Adr;ocate, H. M. v. Callander (1959) The Ivledical Annual, 286. Akerele v. The King (1943) A.C. AIR (1943) P.C. 72 Allison v. General Council oj Medical Education Ilild (1894) 1 Q.B. 750; 70 L.T. 471. .); (]9l3]\ :P.1ad. L.J. :2 Cr. L.J. 1:35 Amhi v. State of Kenda (CL) 356.

497 319 186 426, 428 430

ArneUa Flounders v. Dr. Clement Pereira, Bombay High Comt, O.O.C.l, Suit No, 808 of 194,'3 decided !\larch 5th 1947 bv Tendolk:tr T. (unreported). On appeal, High Court, 06c.J, Appeid No. 27, 1947, Judgment of the court dated September 29th, 1947 (unreportedL

An Austrian Case Lancet, 15th (19:36) A.L.J, fl:38. Antonio Dias v. Caldera AIR (1936) P,C. AntonI}, In 1'e AIH (1960) ;\IIadras :308: (1960) Cr. L.J. 927. .'32. Amnia Beu;a (187:3) 19 'V.R.

173 177 203 81 :399

491 321

B

Bai Diva Ka/uii v. Silver Cattail 3Iill., Ltd. AIH fHJ5fl) Bom, (l956) :t Lah. 740. Ball v. Hou:ard (l9:.?A) Lancet, Ballarsidas Bhagwalldas v. Bai Ghallilropati Bai Jl.ldgmcllt of 1945 of September 6th, in T. 0:. I.T. Suit High Court J.)' Cicil Surgeon, Ballarsidas Kal1kall v. Alaio)' Shymn (19:32) Bombay Medical Journal, 18'/. Banavarlal v. State :? Cr. L.J. Haj. Barnes v. Cral!tree (195.5) The Times, Novemher BaStca.Htr(l() B(1jirao ,'. , Aln il849) Nag. 06: I.LH. (i\H8) 711. v. Amircllll/ld A.C. 161; Aln P.c. 200. Baylill v. Blagg B.M.1. Mawh 20th, 748. Childrel/'s Hospital Lal/cet, ivbrch 20th, 619. Bavlill v. Baxter \" Baxter (1947) 2 All E.H. 886. ILL. Beattu v. Cullillgu;orth (1896) B.M.]. No\"cmhc[' 21st, 154G. v. State of Rajasthan, Am (1957) S.c. (1957) S.C.}.

..

:193

2:?O ,:368

2:38 319 J80

4:32, 43:3 :366 184, 250

lOJ 474, ,175

197 ;399

Bhalldari v. Advocates' Committee (1856) :3 All E.R. 74:?; 100 Sol. 8.30. milage v. SOlithee (1852) Hare's L\ 5:34; 21 Cll. 472; 16 Jm. 188. Blackie v. Clark (1852) xv Beavan's Heports, 505. Bluth v. Birmillg/wm. 'Vatertcorks 156 E.R. I J E:,. 781.

1:36 .;'1""":."1

'J i ',)

374 ]79

TABLE OF CASES

PAGE

Bolam v. Priem Hospital Management Comm:ittee (1957) :2 All E.R. 118; 101 SoL Jo. 357.

Bowaler .Y. Rowley Regis Corporation (1944) K.B. 476; (1944) 1 All E.R. 465. Bravery v. Bravery (1954) 3 All E.n. 59; 98 Sol. Jo. 573.... Brown v. Staffordshire County Council (1955) B.M.J. March 2nd Buck v. Bell 274 U.S. 200. Byrne v. Boadle (1863) 159 E.n. 299; (1863) 2 H. & C. 722.

L51, 157

173, 175

179, 185

196, 240

267

296

407

222

409

204

C C. v. C. (1960) The Times, July 12.

Cackett v. Cackett (1950) 1 All E.n. 677.

CAN;

Cahoon v. Edmunton Hospital Board (1957) 23 W.W.B.. 131 British and Empire Digest (1961) VoL 34, item 86 xxxvii.

Caldeira v. Grau (1936) 1 All E.R. 540; 80 Sol. Jo. 243.

Cassidy v. l'.Hnislql of Health (1951) 2 K.B. 34.3 (1951) 1 All E.R. 574.

477

475

219

251

178, 19:3

194, 199

200, 205

210, 282

283

Challand v. Bell 18 D.L.H. (2d) 150, British and Empire Digest 1961,

174

Vol. 44.

24:3 Chapman v. Racks (1960) The Times, December 22nd.

Christine Baulili v. Bertha Blagg alld Nottingham Hospital (1954)

B.M.]. 20th March, 749; (1954) Lancet, March 20th, 619.

184, 250

498

Chorlton v. Lings (1868) L.R. 4 c.P. 374

Chute Farms Ltd. v. Curtis (1961) The Times, October 10th, jI,[edicine,

Sciellce and the Law, April 1962.

179, 254

Clark v. Clark (1939) 2 All E.R. (1939) K.B. 228.

488

Clarke v. Adams (1950) 94 Sol. Jo. 599.

239

Clarke v. Clarke (1943) 2 All KR. 540.

477

Clarke v. Vv'orboys (1952) The Times, March 18th.

221

Col/illS v. Hertfordshire C.C. (19·i7) K.B. 598; (1947) 1 All E.n. 633;

176 L.T. 45{).

.200, 2:3:3

271

Connolly v. Ruhra (1936) B.M.f. December 5th, 1174.

290

Cooper v. NeGille (1961) The Times, l\'iarch lOth, (P.c.); (1957) B.l1;1.].

June 14th, 1425 (Court of Nairobi). 279

Corder v. Banks (1960) B.M.]. April .30th, V370. 217 259

Corral Indira v. Joseph AIR (1953) l\fad. 858; (1953) 1 Mad. L.J. 591. 398

Cowen v. Cowen (1945) 2 All E.H. 197. 475

Cox v. Carshalton Group Hospital Mallagement Committee (1955) The Times, March 29th. ." 180, 223

22{), 227

270

Crawford v. Clwring Cross Hospital (195.3) B.M.]. December 12th, (1953) The Times, March 24th. 268

Crioon v. Barret Group Hospital Committee (1958) The Times, Novem­ ber 19th. .. . . .. . .. 181

TABLE OF CASES A PAGE

Adeocate, H. M. v. Callander (19.59) The Medical Annual, 286. Akerele v. The King (1943) A.C. AIR (1943) P.e. 72 Allison v. Genem! COUllcil of Medical Education and Regulations'(l894) 1 Q.B. 750; 70 L.T. 47 L 2 Cr. L.J. 135 (Ked; (1961) Mad. L.J. Ambi v. State of Kerala (Cr.) 3,56.

497 319

] 36 426. 428

430

Amelia Flounders v. Dr. Clement Pereira, Bombay Court, O.O.e.}. Suit No. 808 of 1943 decided on March 5th by Tendolkar J. (unreported). On appeal, Bombay High Court, O.o.C.]. Appeal No. 27, 1947, Judgment of the appeal court dated Se!'temlJer 29th, 1947 (unreported).

173

177 203 An Austriall Co~~e (1951) Lancet, 15th April. Antonio Di(ls v. Caldera AIR (1936) P.e. 154; (19,36) A.L,J. 6;38. Antony, III 1'e AIR (1960) ~radras ;308; (1960) Cr. L.J. 927. Anmja Bewa (1873) 19 '.V.R. (CL) ;32.

81 399 491 324

B

Bal Diva Kaluji v. Silver Cotton Mills Ltd. AIR 130m. t Lab. L.T, 740, Ball v. Howmd Lancet, February 2nd, 253. Bmzarsidas Bhagwalldas v. Bai Chrmdrapati Bai Uureported dated September 6th, 1 in T. & I,J, Suit No. J Bombay High Court J.) BaTlaTsidas Kankan v, MaioI' Shyw/i Belwrilal, Civil Surgeon, ( Bombay ,Meclicill Journal, 187. B(]1!()varlal v, State 1) 2 Cr. L.J. Raj. Barnes v. Crabtree (lD55) The Times, November 1st/2nd. 13asu;a.lltroo Haiirao v. Emperor, AIH tl949) l\'ag. 66; LL.B, { Nag, 711. Battal' Singh v. Amil'clwlld (19,18) /l,e. 161; AIR (1948) P.C. 200. Bal/lill v. Blagg (19.54) H.M./. t--1arch 20th, 749. 1948.

A SURVEY OF THE LAW AND LAW COURTS ACTS OF THE STATE OF M,\HARASHTRA;

1. 2. .'3. 4. 5. 6.

City of Bombay Bombau Bombay Bombay Bombay

Bombay Municipal Act, 1888. District Municipal Act, 1901.

Municipal Boroughs Act 1925.

Coroners Act, 1871. Rent Act. Sales Tax Act, 1959.

Part III COMMON LAW AND LAW OF TORTS

Part IV COURTS AND THEIR PROCEDURE

Part V A LIST OF STATUTES OF DIFFERENT STATES NOTE: ThJ:oughout the book reference to the Acts of the State of Maharashtra includes all Acts passed upto the formation of the State of Maharashtra.

,

f

Part I PARTICULAR STATUTES E shall, to begin with, briefly state the scope and object of the variOl~s statutes concerning the medica~ pr~fession, dr~Igs and publIc health. Acts of general applIcation but whIch may, on occasion, be of use to medical men are also very briefly men­ tioned. For the sake of convenient reading, this part is divided into sections and at some places into sub-sections. The statutes dealt with are Acts of the Central Government and the State of lvlaharashtra. A list of Acts in force in other States in India is given at the end. The objects of Acts mentioned in Sections 1, 2, 3 and 4, inter alia, are (1) the benefit of the public by compulsorily requiring certain standards for the status of qualified medical men and (2) the protection of medical men by conferring certain rights upon them.

W

Section 1 -

MEDICAL PROFESSION GENERALLY CENTRAL ACTS:

1.

Indian Medical Degrees Act) 1916­

By this Act, for the first time, law was enacted to regulate the grant of titles implying qualification in "Western medical science. The Act attempts to check the assumption and use by unqualified persons of

A SGHVEY OF THE LA \V A:\fD LA \'17 CODETS

:)

ACTS OF THE STATE OF 'vlAHARASHTRA :

1.

Bmnbay

~1 edical

Act 1912­

This Act for the first time provided for the registration of medical practitioners in the State of i\laharashtra. Under this Act for the first time a Medical Council was constituted. It is known as the Bombay Medical Council. The Council is a disciplinary body. If a medical practitioner has been, after due enquiry, found guilty of any miseonduct, he may be warned or removed from the State Register. This Act prothat no certificate required by any Act from any medical practitioner or medical offieer shall be valid unless the person signing the same is a registered medical practitioner.

2.

Bombay H omoeopathic and Biochemic Practitioners' Act, 1959­

The main object of this Act is to consolidate and amend the law relating to the regulation of qualifieations and the registration of homoeo­ pathie and biochemic practitioners in the State of Maharashtra, with a view to encourage the study and spread of these systems of medicine. The Act provides for the setting up of a board to be called "the Board of Homoeopathic and Biochemic Systems of 11edicine, Bombay". The Board exercises disciplinary jurisdiction over homoeopathic and bio­ chemic practitioners in the State of Maharashtra. The Act also provides for the constitution of a Court of Examiners. The main function of the Court of Examiners is to hold examinations, to prescribe the courses of training, to grant degrees, diplomas and marks of honour, to prepare, publish and prescribe text books, and to provide for the maintenance of an adequate standard of efficiency in the practice of the homoeopathic and biochemic systems of medicine. The Act also contemplates the preparation of a Hegister of Homoeopathic and Biochemic Practitioners in the State of Maharashtra. This Act repeals the previous Bombay Homoeopathic Act, 1951 as also the Madhya Pradesh Honweopathic and Biochemic Practitioners Act in its application to the Vidarbha region of the State of Maharashtra, and the Hyderabad "8Jedical Act in its application to the Hyderabad area of the State of IvIaharashtra .

.3.

~1alwrashtra

Nledical Practitioners Act 1961­

The object of this Aet is to regulate the qualifications of and to provide for the registration of medical practitioners of the Ayurvedic and Unani systems of medicine, in order to encourage. the study and spread of thesc sciences and to make provisions relating to medical practitioners generally in the State of ~laklrashtra. \Vith that object

1

MEDICAL LA \V AND ETHICS IN INDIA

6

in vie\v, the Act provides for the constitution, and the functions and powers of a Board to be called the "Maharashtra Board of Ayurvedic and U nani Systems of Medicine". Act also contemplates the consti­ tution of the ~bharashtra Faculty of Ayurvedic and Unani Systems of .t\1edicine. Under this Act, a Register of Ayurvedic and Unani practi­ tioners in the State of Maharashtra is to be prepared and certain details mentioned in the Act regarding these practitioners must be stated in that Hegister. The main object of setting up a Faculty is to enable the Faculty to prescribe the examination to be held by it, the qualifications necessary for admission to such examination, the courses of studies for such exami­ nation, the standard of passing in such examination and various other connected matters. An institution which purports to train students in the Ayurvedic and Unani systems of medicine must obtain recognition under this Act in order that students on whom degrees arc conferred by such an institution may be entitled to practise as medical practitioners in the State of Maharashtra. Chapter VI of the Act lays down general provisions applicable to all medical practitioners. No person is entitled to practise as a medical practitioner in the State of Maharashtra unless his name is entered in the Register maintained under this Act or under the Bombay Homoeopathic and Biochemic Practitioners Act, 1.959 or under the Bombay Medical Act, 1912 or under the Indian 11edical Register prepared and maintained under the Indian Medical Council Act, 1956. A birth or a death certificate, or a medical or fitness certificate, or any other certificate required by any law to he or authenticated by a duly qualified medical practitioner, is valid only if it has been signed or authenticated by a practitioner registered under one of the Acts mentioned above. This Act repeals the Bombay Medical Practitioners Act, 1988, the Central Provillces and Berar Ayur­ vedic and UnGlli Medical Practitioners Act, 1947 and the Hyderabad Medical Act applicable to the Hyderabad area of the State of Maha­ rashtra. Notwithstanding the repeal of these Acts, the Hegisters kept under these repealed Acts shall he deemed to Registers under the Maharasl!tra Medical Practitioners Act, 1961. The Maharashtra Medical Practitioners Act, 19()] came into force on 1st January, 1962. '>')o:,l1",-,U

Section 2

DENTISTS, DENTAL HYGIENISTS .AND DENTAL ~IECIL\NICS

CENTRA,L ACT:

1.

Dentists Act 1948­

This Act makes provision the regulation of the profession of dentistly and for that purpose the Act makes provision for the consti­ tntion of a Dental COllncil. It extends to the whole of India and makes

A SURVEY OF THE LAW AND LAW COURTS

7

provision for the constitution of a General Council having supervlSlon all over India called the «Dental Council of India" and also makes provision for the setting up of a separate Dental Council in each State in India. The Dental Council of India is empowered to require infor­ mation from the State Councils as to the courses of studies and training and examination in dentistry in that State. The Dental Council of India exercises supervision over every Dental Council set· up in the States in India. The Act states what are recognised dental qualifications and these are set out in the Schedule to the Act. Part II of the Schedule sets out the foreign degrees that are recognised in India. No person other than a citizen of India holding recognised dental qualifications is entitled to registration under the Act. If, however, the State or the country to which a non-citizen dentist belongs, permits persons of Indian origin holding dental qualifications registrable in that State or country to practise dentistry in such State or country, then such a non-citizen dentist is entitled to be registered under this Act and to practise dentistry in India. The Dental Council of India has to maintain a Register of Dentists known as the Indian Dentists Register which consists of the entries in the Registers of Dentists maintained by the State. No certi­ ficate by or under any law required from a dentist is valid unless the person signing it is registered as a dentist under this Act. This Act recognises three categories of dental practitioners, namely, registered Dentists, registered Dental Hygienists and registered Dental Mechanics. A person who is a registered Dentist, a registered Dental Hygienist or a registered Dental Mechanic in a State may practise as such in any other State. The Act prohibits unregistered persons from practising dentishy after a certain date. Further the Act prohibits the profession of dentistry being carried on by a company or any corporate body, unless such body carries on no business other than the profeSSion of dentistIy and the majority of its Directors and all the operating staff are registered dentists, or unless the profession of dentistry is carried on by any hospital or dispensary or institution .for the training of dentists and dental hygienist'). Section S ~-

VETERINARY SGRGEONS AKD

VETERINARY

SURGERY

CENTRAL ACT:

There is no Central Act on this subject. ALI OF THE STATE OF MAHARASHTRA:

1.

B01nbay Veterinary Practitioners Act 1953­ This is an Act to provide for the registration of veterinary practi­

8

MEDICAL LAW AND ETHICS IN INDIA

tiollers in the State of Maharashtra. The Act establishes and constitutes a Council to be called the Bomhay Veterinary Council. The Council is a disciplinary body. The Act requires the preparation of a register of veterinary practitioners of the State. Every person ,vho holds any of the qualifications mentioned in the Schedule is entitled to be registered as a veterinary surgeon on payment of a prescribed fee and on furnishing evidence to the satisfaction of the Registration Officer or the Registrar of his possession of a qualification entitling him to registration. EVelY person registered with the Veterinary Council of any State in India is entitled to be registered undex this Act, if reciprocity of registration has been arranged with such Council, on making an application and on payment of a prescribed fee and on his informing the Registration Officer of the date of his registration under the State law and on furnishing to the Registration officer a correct description of his qualifications and the dates on which they were granted to him. Under Section 16 the Council has the power to remove from the register any veterinary practi­ tioner who has been convicted of a cognizable offence or who, after due inquiry, has been held guilty by the Council of infamous conduct in any professional respect. Section 18 of the Act provides that no certi­ ficate required by any law from any veterinmy practitioner or veterinary officer is valid unless the person signing the same has been registered under this Act. Section 19 of the Act prohibits unregistered veterinary practitioners from perfonning veterinary duties in any veterinary dis­ pensary, hospital or infinnmy which is not supported entirely by volun­ tary contributions, or which belongs to a local authority or is a public establishment, body or institution, unless special pennission of the State Government is obtained.

Section 4 - NURSES,

NURSI~C

ACEKCIES

CENTRAL

1.

AND

MmWIVEs

ACT:

Indian Nursing Council Act, 1947­

This Act constitutes an Indian Nursing Council in order to establish a unifoml standard of training for nurses, midwives and health visitors. Under this Act two kinds of qualifications are considered recognised qualifications and they are mentioned in the Schedule to the Act If a person has a recognised qualification within the meaning of this Act, he will be entitled to be enrolled on any State Hegister. No person, after the passing of this Act, is entitled to be enrolled on any State Register as nurse, midwife or health visitor or public health nurse unless he holds a qualification recognised under this Act. A person already enrolled in any State Register before the commencement of this Act may conti­

A SURVEY OF THE LAW AND LAW COURTS

9

nue to be so enrolled notwithstanding that he does not hold a recognised qualification. Certain qualifications are recognised as higher qualifica­ tions. A person holding a recognised higher qualification is entitled to have the qualification entered as a supplementary qualification on any State Register on which he is enrolled. ACT OF THE STATE OF MAHARASIfltlA:

1.

Bombay Nurses, 'A1idwives and Health Visitors Act, 1954­

This Act amends and consolidates the law relating to nurses, mid­ wives and health visitors in the State of Maharashtra. ThisActprovides for the constitution of three Nursing Councils one in Bombay, one in Mysore and another in Raja~than. Each Council has to maintain a register of (a) nurses, (b) midwives and (c) health visitors. A person who has undergone such courses of training and has passed such exami­ nations and has fulfilled such other conditions as may be prescribed by the aforesaid three respective Governments, is entitled to registration. Another register is required to be maintained with respect to persons whose names are not entered in the Register mentioned above. This list will include such nurses, midwives and health visitors who do not comply with the requirements mentioned in the previous Register, but who, within the period of two years from the commencement of the Act, prove to the satisfaction of the Council that they have been in regular practice as nurses, midwives or health visitors and fulfil such other conditions as may be determined by the Council. No person other than a person registered under this Act or a per~on whose name is entered in the abovementioned list, can practise or hold himself out as practising habitually or for personal gain as a nurse, midwife or health visitor. A nurse's establishment cannot be carried on by any person except undel' a valid licence. Institutions which are approved and recognised by the Nursing Council after investigation hy its representatives are competent to train nurses, midwives or health visitors and to send them for examination for the qualifying certificate of the Council. The Bombay Nurses, Midwives and Health Visitol"S Registmtion Act,1985 is repealed by this Act, but the nurses, mi&vVives and health visitors who were enrolled on the Register maintained under the Act of 1935 are deemed to be registered under the Act of 1954. Further those institutions which were approved and recognised by the Council to train nurses, midwives and health visitors under the Act of 1935, are deemed to be likewise approved and recognised institutions nnder the Act of 1954. The Act, therefore, governs (1) institutions which train nurses, midwi'vcs and health visitors; (2) nurses' establishments and (3) persons

10

MEDICAL LAW AND ETHICS IN INDIA

~vho practise or hold themselves out as nurses, midwives or health visitors either habitually and/or for personal gain.

Section .5 -

HOSPITALS AND NURSING HOMES CENTRAL ALL:

There is no Central Act on this subject. ACT OF THE STATE OF MAHARASHTRA:

1. Bombay Nursing Homes Registration Act, 1949­ This Act at present applies only to Greater Bombay, the cities of Poona, Ahmedabad and Nagpur and the Municipal Borough of Sholapur. The Act prohibits a person from carrying on a nursing home unless he or she has been duly registered in respect of such nursing home. Every year the registration is required to be renewed. Certain conditions are laid down for the purpose of registering nursing homes. Provision is made for the inspection of nursing homes by the authorities.

Section 6

THERAPEUTIC PURPOSES CENTRAL ACT:

There is no Central Act on this subject. ACTS OF THE STATE OF MAHARASHTRA:

1. Bombay Anatolny Act, 1949­ This Act provides for the supply of unclaimed bodies of deceased persons to hospitals and medical and teaching institutions for therapeutic purposes or for the purposes of anatomical examination and dissection. This Act provides that when a person dies in a hospital or in a prison and his body is unclaimed or a person having no permanent place of residence dies in any public place and his body is unclaimed, the body of such a person must be handed over to an approved institution for therapeutic purposes or for the purposes of conducting anatomical examination and dissection.

2. Bombay Corneal Grafting Act, 1957­ This Act came into force on 1st Jannary, 1962. It makes important provisions with regard to the use of the eyes of deceased persons for therapeutic purposes. The Act provides that if any person, either in writing at any time, or orally in the presence of two or more witnesses dUling his last illness, has expressed a request that his eyes be used for

A SURVEYOr THE LAW AND LAW COURTS

11

therapeutic purposes after his death, the person lawfully in possession of his body after his death may (but is not bound to) authorise the removal of the from the body for those purposes. Even if no authority is given by the deceased for the removal of his eyes, it would be competent to a person lawfully in possession of the body of a deceased person to authorise the removal of the eyes of the deceased from the body for therapeutic purposes, provided that the deceased had expressed no objection to his eyes being so dealt with after his death and provided that a near relative of the deceased does not object to the eyes being so dealt with.

Section 7 - PUBLIC HEALTH CENTRAL ACTS:

1.

Vaccination Act, 1880­

The Act gives power to prohibit inoculation! and to make the vacci­ nation of children compulsory in certain MuniCipalities and Cantonments. It applies only to such Municipalities and Cantonments as are situated in Uttar Pradesh, Punjab (as it existed immediately before 1st November, 19.56) the Central Provinces, Assam, Delhi, Ajmer and Coorg. The Act also makes provision for the extension of the Act to other Municipalities. Further the State Government may by a notification extend the Act to the whole or any part of a rvIilitary Cantonment. In any place to which the Act applies, inoculation is prohibited. There is also a provi­ sion for the vaccination of unprotected children. An unprotected child is a child who has not been protected from smallpox by having had that disease either naturally or by inoculation or by having been suc­ cessfully vaccinated and who has not been certified under this Act to be insusceptible to vaccination. Various other provi sions are made relating to vaccination, such as the procedures to be adopted when vaccination is unsuccessful or when vaecination is successful or when the child is unfit for vaccination. The Act also provides for the giving of certificates. It also prescribes the kind of lymph to be used for vaccination. In the Vaccillation Act, 1880, Bombay 'Vaccination 1877 and Bombay District Vaccination Act, 1892, the '"

__ ~o>-

-_'_''''-~_.~~t should have been obtained from the person concerned. ~-----.' ..-';,-.~----...~-.. ~ ",,1)ecUon@): 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 ~lj~y, or under a I!!!:~lrtiili} of f'let, and if the person doing the act knows, or has reason to believe, that the consent was given in conse­ quence of that to which he gives his consent; or 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 unless the contrary appears from the context, if the consent is givenl by a person who is under twelve years of age. ~

~

to a~~~~L~~;;;:!~~~~,~~e~;l:::r~~; ~~!18~~~:hn~l:e;~::~I'

cause, or be intended to cause, or be known to be likely to cause, to the person giving the consent, or on whose behalf the consent is given. Illustration: Causing miscarriage (unless caused in good faith for the purpose of saving the life of the woman) is an offence independently of any harm which it may cause or be intended to cause to the woman. Therefore, the consent of the woman or of her guardian to the causing of miscarriage does not justify the act. (NOl/: The subject of miscarriage and other like topics will be dealt \vith in detail in a separate Chapter hereafter.)

~

Section@: ~~s m:t. o£!en£Y by reason of any harm \vhiuh it may cause to a person for whose benefit it •.is -done in good faith, even .---. -,..-".... without that person's_9...011senLj£_tb.e ~I1l?!anc~~~re such that it is impossible for that person to signify conse;lt, ~~-if that'p~;:~~~l is incap­ able of giving consent, and has no guardian or other person in lawful

-

.

.

~.

~

A SURVEY OF THE LAW AND LAW COURTS

27

charge of him from whom it is possible to obtain consent in time for the thing to be done with benefit: Provided:­ First: That this exception ~~~all11ot extend to the inten~i9.n~a.~I.. ~._.__ i,QK.QLclf~~th, or the attempting to cause death; Secondly: That this exception shall not extend to the ~ which the person doing it knows to be likely to cause death, for any purpose other than the preventing .2!sl~i!tlL9I.gti~ous hurt, J¥ or the curing of any grievous disease or infinnity; Thirdly: That this exception ~:@JL~nQt. exten_d to the~y'qLl!~~~!I s.ausing of hurt, or to the attempting to cause hurt, for any purpose other than the preventing of death or hurt; Fourthly: That this exception not extend to the of any offence, to the committing of which offence it would not extend. Illustration: A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless 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 offence. This section sanctions prr1PT'CfP'nf' taken by a medical man on his own initiative, Section@ No communication in.g-o.()~;iaith is an offence by reason of any hann to person to whom it is made, if it is made for q the benefit of that person. Illustration: A, a surgeon, in good faith, communicates to a patient his opinion that he cannot live. The patient dies in consequence of the shock. A has committed no offence, though he knew it to be likely that the communication might cause the patient's death. There are other provisions of the Code which deal with causing miscarriage and injuries to unborn children. These are Sections 312, and 315 which are as under Section(3i2'j Whoever v.9l!.mtarily causes J!._YN.I!!
~_~ _

_~-"""'''''-''''''"'''_'''~hirth,~d does by such act prevent that child froI!!J?~elEKJ1QnL.'!;!!Y"S~~U~!!:~~~.jtJQ.9i~ after its birth, shall, if such act, be not caused iIl..g29§J.!~~hJ£~ ..!h~.J?grPQ~e of saving the life. of the m()ther, bep!-lnis.h~Q"Yitllj£Ilprisonment of either description for a term which may extend to t~JL years, or with fIne, or with both. There are certain Statutes relating to labour and social insurance which contain provisions for medical examination and certifIcates to be issued by a medical man. They are:­

4.

Workmen's Compensation Act, 1923­

This Act provides for the .I2~ym~~.~§!>esQLQ.f!1J?l.Qj'~.~ their workmen, oL compen~ for injurY £
6.

Employees' State Insurance Act, 1948­

This Act provides for certain benefits· to employees in cases of sickn~r!l~!:r.BttY.