Fundamentals of forensic medicine and to

R K SharmaMD, FIAFM, FRSH Professor and Head of Department of Forensic Medicine Kathmandu University Medical School, Nepal Formerly Professor and Head of Department of Forensic Medicin

Prof R K Sharma

MD, FIAFM, FRSH

Professor and Head of Department of Forensic Medicine

Kathmandu University Medical School, Nepal

Formerly

Professor and Head of Department of Forensic Medicine, MGM Medical College, Jamshedpur, India Principal, MGM Medical College, Jamshedpur, India

Dean, Faculty of Medicine, Ranchi University, Bihar, India

Visiting Professor, University of Wales, UK

Commonwealth Medical Fellow, UK

Chairman, Department of Forensic Medicine, Al-Fateh University, Tripoli, Libya

Director– Professor of Forensic Medicine, Subharti Medical College, Meerut, India

Director (Addl.), Medical Education, Health Services, Govt of Bihar, Patna, India

Consultant, Health Services, Delhi Govt., India

AUTHOR Prof R K Sharma

MD, FIAFM, FRSH

Professor and Head of Department of

Forensic Medicine Kathmandu University Medical School

Nepal

drrksharma@hotmail.com

EDITOR Rishav Shrestha

MBBS, 1st Batch Kathmandu University Medical School

Nepal

rishavmania@gmail.com

First Edition 2006

Medical knowledge is constantly changing As

information becomes available, changes in

treatment, procedures, equipment and the use

of drugs change The authors and publishers

have, as far as possible, taken care to ensure

that the information given in the text is accurate

and up to date and can not accept any legal

responsibility or liability for errors or omissions

that may have occurred However, readers are

strongly advised to confirm that the information,

especially with regard to drugs and toxins,

com-plies with current legislation and standards of

practice

Printed in Nepal

“A person may be a poor writer, a bad

painter, or a bad actor but a man cannot

and must not be a bad doctor.”

Prof M.P Konchalovsky

DEDICATION

This volume is dedicated to:

Dr N.B Rana, Dean, School of Medical Sciences, Kathmandu University, who inspired me

to write a book on Forensic Medicine specially designed to meet the requirements of lese Medicos covering the relevant legal aspects of Nepal

Nepa-My late parents, Mr D P Sharma, my father and Tara Sharma, my mother, who brought

me in this lovely world and nurtured me to become a doctor

And my sweet wife, Deval Sharma, who always insisted and looked after me for this edition

of the book During many odds, she rendered every possible help to see the project pleted

com-I owe gratitude to all of them

R.K Sharma

Author

ii

ACKNOWLEDGMENTS

Fundamentals of Forensic Medicine and Toxicology (Medical Jurisprudence) would not have been possible were it not for the following remarkable persons who have helped a lot

in creating the contents and design of this book

We are glad to be associated with the following persons:

• Dr Nastu Sharma, MD, MPH, PhD, CEO of Kathmandu University Medical School

(KUMS) has been instrumental in providing facilities of offices for preparation of draft and printing, and other matters whenever his help was sought

• Prof Dr CR Pant, MS (Ophthalmology), Program Director, KUMS, for his

unequivo-cal support toward the writing of this book

• Prof Dr RKM Shrestha, Associate Dean and Professor of Surgery, KUMS, for the

help in acquiring TExtract ®, the indexing software

• Dr Nandita Basu, retired associate professor of Pharmacology, AIIMS, for the advice

on the chapter on Vegetable Poisons

• Mr Dinesh Chapagain, formerly Dean of School of Engineering for his advice on

le-gal procedures in Nepal

• Mr Mukunda Upadhyay, MA, Chief of Management Division, Kathmandu

Universi-ty, for lending every possible assistance as and when required

• Mr Bang Vijay Sharma, Administrative officer, KUMS, for legal assistance while

writ-ing this book

• Ms Shilu Shrestha, MBBS, 1st Batch, KUMS for her remarkable advices and help

on the design and layout, presentation, and editing

• Mr Sudip Shrestha for typing of the draft and arranging for collection of required

documents and the preliminary formatting of the document

• Anica Mann, Akshaay Sharma, Aarushi Sharma, Reva Mann, and Avani Sharma,

Professor R.K Sharma’s grandchildren, for assisting in the first few chapters of paring his lecture notes

pre-• Mr Roshan Dahal, Network Administrator, KUMS, for providing the necessary

com-puter facilities for the design and layout and editing of the book

• Mr Harry Bego, www.texyz.com, the creator of TExtract ®, the amazing book

index-ing software , for his help on use of TExtract ® to create the index

RK Sharma

R Shrestha

ABOUT THE AUTHOR

P rofessor R K Sharma has had a distinguished career

in Forensic Medicine He is currently the professor and head of Department of Forensic Medicine in Kath-mandu University Medical School (KUMS), the on-campus medical college of Kathmandu University

He started his teaching career at AIIMS, New Delhi and subsequently he worked in reputed Medical colleges in India, serving as the professor and head of department of Forensic Medicine in MGM College, Jamshedpur at a re-markable age of 35 ; then as the Principal in the same institution; and as Dean, Faculty of Medicine in Ranchi University, Bihar

He was conferred the title of Visiting Professor at the versity of Wales in 1977 He was also a Commonwealth Medical Fellow, UK

Uni-His was also the Chairman of Department of Forensic Medicine at Al-Fateh University in Libya in 1978-82

He has also been a consultant to the Government of

Del-hi Administration, for upgrading the facilities of autopsy work in all the hospitals of Delhi

He was examiner of MBBS, MD, and PhD of various versities of India and was expert in selection of the teach-ers by Union Public Service Commission of India

uni-His qualifications were sought by the Medical Council of India to serve as Inspector for postgraduate courses in Forensic Medicine of various Medical College for granting recognition during 1992-94

He was awarded the coveted Chikitsa Ratna Award ing the IMA Meet at the Institute of Medical Sciences (IMS) of Banaras Hindu University (BHU) in 2003 for his outstanding services to the field of Medical Education by the director of IMS, BHU

dur-FOREWORD

This book, written by an authority in the subject of Forensic Medicine and cology is specially designed to meet the requirements of Nepalese medicos covering the relevant legal aspects of Nepal

Toxi-In Nepal, number of medical colleges grew phenomenally in the last decade and as a result, over a thousand students gets admitted every year All these students have to study forensic medicine as a part of their undergraduate cur-riculum

This is a timely publication since there has been a great need of such a book for the undergraduate medical students who are studying in the Medical Colleg-

FOREWORD

Prof R.K Sharma, the Head of the Department of Forensic Medicine at Kathmandu University Medical School at Dhulikhel, Nepal has written a textbook on Forensic Medicine for medical students in Nepal for the first time

This book will definitively give sufficient knowledge about the rules, regulations and

findings of our nation, law as such, especially in the field of Forensic Medicine It will

enable the medical students to practice on Forensic Medicine after their graduation

I am specially thankful to Prof Sharma not only because of his dedication towards his work and writing this book, which will be printed for the first time in Nepal in Nepal’s context, but also his deep wish to dedicate this book to our institution

My sincere congratulations to him

Prof Dr Ram K M Shrestha, MD

Associate Dean and Professor of Surgery

Kathmandu University Medical School, and

Dhulikhel Hospital, Kathmandu University

Teaching Hospital

PREFACE

The author aims to provide an easily read, concise, and up-to-date account of Forensic Medicine, which will meet the needs of medical students, service medical officers, lawyers, and all connected to Medicolegal practice

The author assembled his lecture notes meant for teaching the students of his lifetime teaching materials of forty years in this book with thorough revision to keep the subject ma-terial up-to-date

It was felt by Dr NB Rana, the Dean of Kathmandu University School of Medical Sciences that there should be a book of Forensic Medicine incorporating the Nepalese law for the Nepalese Medicos

Until recently, the medical students were referring to foreign books of Forensic Medicine which do not contain the Nepalese laws regarding abortion, wounding, sexual offenses etc and the functioning of Nepal Medical Council

The preface to this book would concentrate more on Nepalese Legal System, Nepal cal Council, Forensic Pathology and Toxicology besides other regular topics on Forensic Medicine

Medi-RK Sharma

June 2006

Dhulikhel

EDITOR’S NOTE

Late in January 2005, I went to discuss with Professor RK Sharma about compiling his ture notes because they contained only the relevant information of forensic medicine, when

lec-he told me about his project of writing a book of Forensic Medicine in tlec-he context of Nepal

Much of the text on Forensic Medicine available to the students contain voluminous mation, which are not relevant while dealing with the common Medicolegal problems of Ne-pal They, thus, study the book only with the background of foreign countries Also most of the books contained outdated poisons which are not required to be studied Hence, this book took birth to cater to the needs of the Nepalese Medicos and all other concerned in Medicolegal cases

infor-As I became interested in Forensic Medicine, Dr Sharma persuaded me to join this project, and before long, he also offered me to be the editor of this book The turning point was when he told me to make this book appeasing to the students as well as to service medical officers of this country

This book has therefore been such an immense learning experience I owe a lot of gratitude

to my colleagues Pawan, Rajesh, Nabin, Saurav, Bibhuti, Resha, Chheki, Belmaya and ers for typing many of the important chapters My friend Shilu Shrestha has been instru-mental in the layout and design of the chapters and the illustrations by providing suitable designs I thank them all very much for the support they have provided for the completion of this book

oth-I am privileged and fortunate for being part of a book that oth-I believe will be the foundation of Forensic Medicine for many medical students

I express my sincerest gratitude to Professor RK Sharma who is the author of this book, for the faith he had on me, the responsibility he gave me, and the opportunity he entrusted on

me It has indeed been an achievement for which I am grateful and thankful

R Shrestha

June 2006

Dhulikhel

CONTENTS

1 Introduction to Forensic Medicine, Medical Jurisprudence and Toxicology 1

2 Terms Used In Forensic Medicine 5

3 Legal Procedures In Nepal 9

4 The Ethics Of Medical Practice 18

5 Nepal Medical Council 29

6 Indian Legal Medicine 41

7 British Legal System 49

46 Belladonna Alkaloid Intoxication 331

47 Castor Seed (Ricinus Communis) 335

48 Croton Seeds (Croton Tiglium) 337

Chapter

1

INTRODUCTION TO FORENSIC MEDICINE,

MEDICAL JURISPRUDENCE AND TOXICOLOGY

Forensic Medicine 2

Medical Jurisprudence 2

Toxicology 3

In short, a doctor is required to know some aspects of law during medical practice

Fig 1.1 Forensic Medicine is connected

Pediatrics

Geriatrics

Pharmacology

And Toxicology

Physiology

Law

Laboratory Results

Pathology

Anatomy Obstetrics Surgery

Gynecolo-gy Medicine

Forensic Medicine

INTRODUCTION TO FORENSIC MEDICINE, MEDICAL JURISPRUDENCE, AND TOXICOLOGY 1

Dr P.C.H Brouardel, a famous late nineteenth-century French medico-legalist, has said something which holds true now as when he wrote it, if not more so: “If the law has made you a witness, remain a man of science You have no victim to avenge, no guilty or innocent person to convict or save- you must bear testimony within the limits of science.”

TOXICOLOGY

Toxicology is a science that deals with the signs, symptoms, diagnosis, and treatment as well as post-mortem appearances in the event of death from poisoning In death due to poisoning, a doctor has to preserve the viscera, blood, urine or some other parts of the body depending upon the feature while dissecting the body

Purpose of Forensic Medicine

Scientific investigations of a dead body demands a good knowledge of medicine and allied subjects The medical evidence is essential to prove the innocence or guilt of a person A careless autopsy or inadequate knowledge of medical science may lead to conviction of an innocent person or acquittal of a convict

A doctor who finds difficulty in any matter pertaining to autopsy, particularly in ascertaining the cause of death should consult a senior fellow colleague

A doctor should not overestimate himself while giving his opinion in a court of law as an expert, otherwise he may land in trouble

6

2 TERMS USED IN FORENSIC MEDICINE

HOMICIDE

It means the killing of a human being It is defined legally as the destruction of the human

life by the act, agency, and culpable omission of some other person or persons It can result

from an act or from failure to perform an act where the duty to act is imposed by law

Fig 2.1 Causation of a homicide

Homicides are a) criminal or b) non- criminal

Criminal homicides are legally classified as (a) murder or (b) manslaughter

Non criminal homicide is classified into (a) justifiable homicide and (b) excusable

homicide

Justifiable homicide

• Execution on legal orders

• Arising in the course of making legal arrest or preventing the commission of murder

• Self defense when there is imminent danger of death or serious injury and that only way to prevent is to kill his assailant The doer must not have provoked the

quarrel or been the aggressor in creating danger

Excusable homicide

A homicide is excusable when accident or mishap results in an unanticipated and

unintended death of some other person This must have occurred as a result of a lawful act

carried out in a lawful way with lawful means For example, in the event of cardiac arrest

occurring during anesthesia when everything is perfect there is no medical negligence

Homicide

Act e.g smothering

Agency

Failure to perform an act

E.g Omission to provide food to children – failure to prevent from exposure (Battered child syndrome)

An inebriated doctor killing a person when operating

TERMS USED IN FORENSIC MEDICINE 2

SUICIDE

Suicide means the killing of oneself

CORPUS DELICTI

Literally, it means the body of the offense or the body of the crime Actually, the corpus

Delicti of homicide is the fact that a person died from unlawful violence Proving a

charge of homicide involves proof of two propositions;

A First, an unlawful lethal act was performed and

B Second, it was done by the person or persons charged with the crime and none other

The old phrase “Dead men tell no tales” is untrue A dead body is fully informative if one listens to the tales it tells The anatomic findings and the evidence in and on the body may furnish the only key which unlocks the door to the correct solution

EVIDENCE

Evidence is information that gives a reason for believing something or proves something, and it includes any statement or document a court of law permits or requires in relation to

Evidences are

A Direct- Any fact that is seen, heard, perceived or attested by witnesses orally

B Indirect- Inferences drawn in relation to events and circumstances

C Hearsay- Evidence gathered from someone else

D Documentary- Evidence which have been documented i.e written

WITNESS

Witness is a person giving evidence or confirming evidence in a court of law

Witnesses can be

A Common– A person giving evidence observed by himself or known to him

B Expert– A person trained to/skilled in technical aspects and capable of deducing opinions and inference from facts observed

C Hostile- A person who gives false evidence or conceals part or whole of truth with some motive

EUTHANASIA (MERCY KILLING)

Euthanasia is bringing about a gentle and painless death for a person suffering from an incurable painful disease or a debilitating condition which leads to miserable existence Euthanasia can be:

A Active - It is a positive merciful act to end useless suffering or a meaningless

existence brought about by an act of commission like giving large doses of drugs to bring about death

B Passive - It is discontinuing life sustaining measures to prolong life, which involves

acts of omissions like failure to resuscitate a terminally ill patient

Euthanasia can also be:

A Voluntary, given according to will of person

B Involuntary, against the will of the person

C Non voluntary, referring to persons incapable of making their choices known like a

person with coma

See Chapter 4 Ethics for ethics regarding euthanasia

Chapter

Cases 10

Punishment 10

Invesgaon Of Government Criminal Case 10

Medicolegal Role Of Doctors 11

Level Of Courts 12

The District Court 12

The Appellate Court 12

The Supreme Court 12

The Provision For Invesgaon Regarding Post Mortem 13

Medical Evidences Provided By The Medical Praconer 13

Phase Of Nepalese Criminal Jusce System And Role Of Related Agencies 15

Process Of Appearing In A Court Of Law 16

10

3 LEGAL PROCEDURES IN NEPAL

CASES

Cases are matter that are being investigated into and may be decided in a court of law

Cases are classified according to Section 9 of the Muluki Ain into two groups: a) Civil and

b) Criminal

Cases such as offense against state, homicide, theft, robbery, burglary, extortion, defamation, arson (setting fire to), forgery, rape, illegal marriage etc are criminal cases Under criminal cases, there are provisions of fine and imprisonments that can be imposed

on defendants, if found guilty

Cases such as partitions, transactions, land related cases, contracts, donations, inheritance, adoptions, trust etc are civil cases Under civil cases,

individual rights are adjudged Court fee is to be paid at the time

of filing the civil cases as provisioned under Court Fee Act 2017

Civil and criminal cases are again classified into two groups:

1 Government case

2 Civil case

Provisions under various prevailing acts, homicide, theft, robbery,

rape, drug and human trafficking, extortion, swindling, carrying

unauthorized arms and ammunition etc are considered offense

against the society at large and taken as government criminal

cases State operates as plaintiff in such cases Public prosecutor files the case in the court

Cases such as unauthorized utilization of government land fall under civil case as specified

by annex 2 of Government Case Act 2049 Both types of cases are pleaded by plaintiff themselves either by the government or individual

INVESTIGATION OF GOVERNMENT CRIMINAL CASE

The responsibility of government criminal case is of the police Criminal cases such as rape, homicide, abortion, etc are filed in the District Court by the government as specified under Government Case Act 2049, annex-1 Anyone who gets the information about any

Cases Civil Criminal

Civil

Government

Fig 3.1 Cases

LEGAL PROCEDURES IN NEPAL 3

act of violence or the violence about to be carried out, or being carried should give notice to the police either verbal or in writing with evidences, if any

The first information is called First Information Report Police personnel should keep such report in record If the concerned police official denies recording the information, it should

be given to the Chief District Officer or the concerned one level higher police office The information so received should be sent by the Chief District Officer or the Police office to the concerned police office with proper instruction

District Police Office has the responsibility to investigate and detect the criminal and search for the evidences of criminal cases There are sub district level police offices under District Police Office These units also have the right to investigate government criminal cases Authority of investigation is delegated down to the Assistant Police Inspector, the lowest level rank of junior officer This officer enjoys authority to investigation and other related works needed to collect, seize and preserve the evidences

The legal provisions entrust police to search, capture and arrest and take the statement of the accused at the presence of the Public Prosecutor The Police Officer can prepare statement of eyewitnesses and hearsay and offended persons Investigation Officer can conduct, search, prepare spot documentation, and handle postmortem activities at the cost

to be born by the government, and he can handover the dead body after postmortem, to the relatives for funeral rites

Prevailing law provides authority to the police to analyze specimen of blood, semen, or any organ or part of the body of the accused or offended persons through a government medical practitioner or at government laboratory Investigation officer can obtain expert opinion on any matter, if he thinks so necessary

The police should make the accused present before the court within twenty four hours of arrest except the time limitation of the journey With the consent of the District Court, police can continue investigation taking the accused in judicial custody for 25 days The investigation officer should send investigation report along with his opinion to the Public Prosecutor Office Thus, the total responsibility of investigation of government criminal cases lies with the police officials

MEDICOLEGAL ROLE OF DOCTORS

Medical practitioners have to submit medicolegal report on both civil and criminal cases along with their opinion They should provide their expert opinion to the police, public prosecutor, and the court after conducting different types of investigations

They have to go to the court for deposition as expert witnesses if summoned In the court,

they will have to face examination, cross-examination, re-examination and court question

12

3 LEGAL PROCEDURES IN NEPAL

LEVEL OF COURTS

Article 85 of the constitution of Nepal, 1990 has provisioned

three levels of court as under:

• The District Court

• The Appellate Court

The District Court

This is a court of first instance There is one District Court in

each district of Nepal Currently, there are 75 district courts located in district headquarters except in Sankhuwasava district There is a provision for the appointment of the district and additional district judges as per requirement His Majesty the King upon recommendation of the judicial council appoints district judges The district judges and additional judges are of equal rank District courts have authority to administer justice on both civil and criminal cases within their area of jurisdiction except otherwise is

provisioned by the prevailing law Appeal on the decision of the

district court can be made in appellate court

The Appellate Court

Upon the advice of the council of minister His Majesty the king

shall establish appellate court in numbers he desires Currently,

there are 16 appellate courts in the country The chief justice

and other justices in required numbers are appointed by His

Majesty the king upon recommendation of the final order or the

decision made by the district court, semi-judicial authority and

issue writs of habeas corpus, mandamus and prohibition

Appellate courts conduct initial trial on matters as provisioned by

the Judicial Administration Act 2048

The Supreme Court

The Supreme Court is the apex court of the Nepalese judicial

system All courts are subordinate to the Supreme Court except

court-martial The Supreme Court can inspect, supervise and

instruct all other courts and judicial bodies It is a court of record

There shall be, in addition to the Chief Justice, 14 other

permanent judges in the Supreme Court If the number of cases

goes high, temporary judges can be appointed for a specified

time His Majesty the king appoints the Chief Justice and other

judges upon recommendation of the judicial council

Authority to carry out justice and

to interpret and apply laws

Certiorari

Quo warranto

A writ calling upon a person to show by what authority s/he claims an office/liberty/franchise

A writ from a supreme court ing up the record of the proceed- ing for review

call-Some Legal Definitions

Fig 3.2 Courts in Nepal

LEGAL PROCEDURES IN NEPAL 3

The Supreme Court can declare any law or Act in contravention to the constitution as null and void, and possess the authority of extra-ordinary jurisdiction to issue writ of Habeas corpus, Mandamus, Certiorari, Quo warranto and Prohibition and the like as are deemed proper for the execution of fundamental, legal or public interest rights

The Supreme Court has general jurisdiction under which it acts as court of first instance as specified by Acts, hears appeal, conduct review, ratification and revision The interpretation

of the law and the doctrine propounded by the Supreme Court in connection of the hearing should be observed by the His Majesty’s government, all other courts and public officials as precedents

THE PROVISION FOR INVESTIGATION REGARDING POST MORTEM EXAMINATION

Dated 2020 Bhadra 1: Post-mortem or Injury, Investigation, Legal Procedures

The provision for investigation regarding post mortem examination and/or injuries was legally established following the amendment in 2020 Bhadra 1 of the National Act (Muluki Ain) For such procedures, a medical officer/chief medical officer appointed in the nearby hospital or dispensary will perform the duty

Government Legal procedure 2018, Section 4(3) has the provision for investigation in case

of unnatural death, when reported to legal authorities

Certification of Post mortem Act 2031, applied from 2032.1.1 is as follows:

In case of no controversy regarding post mortem report, even without the presence of an expert in the court, the report is acceptable legally Otherwise, presence of an expert in court as a witness is necessary for the same

Section 23(1) states that the court can ask an expert for opinion regarding foreign legal act, forensic science, or verification of writing and finger prints, in his presence at the court as a witness

medico-Section 11(3) of the Act amended in 2049.9.8 authorize a sub inspector of police to send a dead body, when suspected of foul play, for postmortem examination

Medical Doctors, who perform post mortem examination or give any other medical opinion,

is not a witness for either the defense or accused They are only accessory for helping the court

MEDICAL EVIDENCES PROVIDED BY MEDICAL PRACTITIONER

14

3 LEGAL PROCEDURES IN NEPAL

1 Medical certificates- e.g Birth, death,

fitness etc

It must be written by a qualified medical

practitioner duly registered with Nepal Medical

Council It must be duly signed by the medical

person along with his/her qualifications It must

also be signed by concerned person in his/her

presence

2 Death Certificates

It must be signed by a medical person It must

state the cause of death, time, date and place

One must not issue a death certificates in case

of doubt due to suspicious conditions or

unnatural causes, and must report to police in

such circumstances

3 Birth Certificates

A medical person will issue birth certificates in case when the baby is born in a hospital, nursing home or health institution along with mother’s name, date and time of delivery of the baby

For cases other than above the medical person must issue a certificate on circumstantial evidence

4 Medico-legal Reports

A medico legal certificates regarding injury, post mortem certificates should only be issued

by a registered medical officers authorized by the government

5 Dying declaration

It is a written or oral statement of a person, who is dying as a result of some unlawful act, relating to the material facts of cause of his death or bearing on the circumstances Before recording the statement, the doctor should certify that the person is conscious and his

mental faculties are normal The doctor should take the declaration in the presence of two

witnesses The statement should be taken down in the man’s own word without any

alteration of terms or phrases Leading question should not be put The signature or thumb impression of the declarant should be taken and the doctor and the witness should sign If the dying person is unable to speak, but is able to make signs in answer to questions put to him, this can be recorded and it is regarded as a verbal statement The declaration is sent

to court in a related envelope A police officer may be available while recording dying declaration

Medical Evidences

Medical Certificates Death Certificates

Birth Certificates Medicolegal Reports

Dying Declaration

Fig 3.3 Medical Evidences

LEGAL PROCEDURES IN NEPAL 3

PHASE OF NEPALESE CRIMINAL JUSTICE SYSTEM AND ROLE OF RELATED AGENCIES

Police Investigation Information of Crime

Rehabilita-• Jail Administration

• Police

• Rehabilitation or tion center

16

3 LEGAL PROCEDURES IN NEPAL

PROCESS OF APPEARING IN A COURT OF LAW

SUMMONS OR SUBPOENA

It is a document compelling the attendance of a witness in a court of law under penalty It is issued by the court in writing, in duplicate, signed by the presiding officer of the court and bears the seal of the court It is served on the witness usually by a police officer It may also require him to bring with him any books, documents or other things under his control, that

he is bound by law to produce in evidence A summons must be obeyed and the witness should produce documents if asked for The witness will be excused from attending the court if he has a valid and urgent reason If he fails to attend a court he will be liable to pay fine or imprisonment

The witness stands on the dock and takes the oath before deposition

The witness is to take the oath by reading or quoting the following with the help of Bench clerk “The evidence which I shall give to the court, shall be the truth, the whole truth and nothing but the truth So help me god.”

If he is an atheist he may give evidence on solemn affirmation quoting “I solemnly affirm that the evidence which I shall give in the court, shall be the truth, the whole truth and nothing but the truth.”

After oath taking, recording of evidence will be done in the following order

Examination-in-CHIEF

This is the first examination of witness and the questions are put to him by the lawyer for the side, which has summoned him The object is to place before the court all the facts that bear on the case Here, leading questions are not allowed, except when the witness is hostile A leading question is one which suggests to the witness the answer desired

Cross Examination

In this, the witness is questioned by the lawyer of the opposite party i.e lawyer for the accused The defense counsel tries to elicit out of the witness any fact in favor of defense and to test accuracy of the statements made by the witness He may put questions to test

LEGAL PROCEDURES IN NEPAL 3

his knowledge and to expose the errors, or omissions to discredit the witness It may last for hours or days A doctor in witness box during cross-examination should not pose as super expert lest he will land in trouble In doubtful questions, he should better tell that he doesn’t know than give a wrong answer

Leading questions are permissible A witness should not lose temper or argue during examinations as this will go in favor of the defense

cross-Re-examination

This is conducted by the lawyer who has conducted examination-in-chief The object is to clarify any discrepancy or obscure points or to rectify any ambiguity that has crept in, during the cross-examination The witness should not bring in any new subject at this stage Leading questions are not allowed

Questions by Judge

The Judge may ask any question at any stage of the examination to clear up doubts

On conclusion of the evidence, the witness should read over his own deposition very carefully before he signs

The witness can leave the court after taking permission of the court

Chapter

Medical Ethics 20

Ethics Regarding Consent 20

Ethics Regarding Determinaon Of Death 21

Ethical Problems In Pediatrics 22

Ethics Regarding Euthanasia 22

Internaonal Code Of Medical Ethics 23

Rights And Privileges Enjoyed By A Registered Medical Praconer 24

Infamous Conduct (Professional Misconduct) 24

Clinical ethics is a practical discipline that provides a structured approach to assist physicians in resolving ethical issue in clinical medicine The practice of good clinical medicine requires some working knowledge about ethical issues such as informed consent, truth telling, confidentiality, and patient rights Every clinician will acknowledge that ethics is

an inherent aspect of good clinical medicine and that clinician will become as proficient at ethics as at clinical medicine

One of the oldest codes of medical ethics is the Hippocratic Oath

Although some 25 centuries old, its basic tenets remain as valid as

ever This has lead to its restatement in the Declaration of Geneva

Formerly, the Hippocratic Oath was pledged by newly admitted medical

practitioner and even today, the graduates still accept its spirit and

intentions International code of Medical Ethics is based upon

Declaration of Geneva

The oldest written code of medical Ethics written by Hammurabi, King

of Babylon at about 2200BC, dealt on practice of medicine, liability of

medical practitioner while dealing the delivery cases and the newly born

infants

Egyptian or Indian Medicine including Manu-Samhita and

Agnivesh-Charak Samhita, were possibly composed around 7th century B.C or even

earlier There were directions how to record evidence and disregard the evidence of drunk, children and weak individuals

Susruta Samhita was composed in between 200-300A.D Susruta, as father of Indian

surgery, dealt the surgical problems and how to treat them

Charak Samhita prescribed for training duties, responsibilities, privileges, social status for physicians Charak, the father of Indian medicine not only outlined how the student was to get his training under the direct control of preceptor, but also prescribed for professional norms and conduct rules for him, as for example he was not to attend a woman in absence

of her husband or guardian, not divulging any secrecy etc

ETHICS REGARDING CONSENT

Minors, that is, persons who are younger than the statutory age of consent viz below the age of 12 years, can not give valid consent to suffer any harm from an act done in good

Fig 4.1.Hippocrates

THE ETHICS OF MEDICAL PRACTICE 4

faith and for the benefit of the patient A person above 18 years can give valid consent to suffer any harm from an act, not intended or known to cause death, and done in good faith and for his benefit

A physician may treat a minor without parental consent if the minor is emancipated The emancipated minor is a young person who lives independently of parents or guardians, physically, financially or otherwise The legal concept of “mature minor” is increasingly

invoked A mature minor is one who is below statutory age and who is still dependent

upon parents but who appears to make reasoned judgment Physicians may apply their

common sense and may respond to their requests when the medical measures are taken for the patient’s own benefit and can be justified as necessary by medical opinion If the medical problem is an emergency a minor may be treated without the consent of the parents or guardians to save life

In life threatening emergencies, patients may be unable to express their preferences or give their consent because they are unconscious or in shock In such situations, it has become customary for physicians to presume that the patient would give consent if able to do so, since the alternative would be death or severe disability This is a reasonable presumption This is also somewhat an implied consent A psychiatrically disabled parent may constitute

a danger to the child In such cases pediatricians should insist legal steps taken to provide

a surrogate decision maker Sometimes there is failure on the part of the abuse on the body

of the minor Legal remedies may be sought depending on the seriousness and urgency of the situation

General anesthesia should not be given to child without consent of his legal guardian; if given, it should be given by a qualified anesthetist talking all possible precautions before hand In case of anesthetic deaths, the case must be reported to police by anesthetist or surgeon for necessary enquiry as to cause of death Doctor should not start any surgery or experiment unless informed consent is obtained in writing

ETHICS REGARDING DETERMINATION OF DEATH

Declaring death is one of the legal duties of physicians The common definition of death in medicine and in the law was irreversible cessation of circulation and respiration In the 1960s it became possible to maintain respiratory function by use of mechanical ventilator The concept of “brain criteria” for death would compliment or replace “cardio respiratory criteria” emerged in the 1960s

Nowadays, brain death describes certain clinical characteristics of a nonfunctioning brain viz unreceptive and unresponsive to external stimuli, no movements or breathing, no reflexes, fixed and dilated pupils, no reaction to aural irrigation and absent doll’s eyes response

Brain blood flow studies are confirmatory, particularly for children E.E.G which diagnoses

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special caution is advised to the pediatricians and should be familiar with special clinical issues E.E.G and cerebral blood flow studies are confirmatory

Pediatricians are advised not to apply the criteria to infants younger than 7 days For infants between 7 days and 2 months old, two examinations and EEGs should be done, 24 hours apart; for children over 1 year, the observation extend over 12 hours Organ transplantation depends on having donors that are HLA compatible Such donors are often siblings Thus, questions may occasionally arise about taking a kidneys or bone marrow from a healthy child for a seriously ill sibling Should there be parental disagreement, the plan should be abandoned

ETHICAL PROBLEMS IN PEDIATRICS

This proceeds in the same fashion as in adult medicine In general, the responsibilities of pediatricians are the same as those of other physicians viz to benefit the patient and to refrain from harm The goals are restoration of health, relief of symptoms, and restoration of impaired function, saving life and preventing untimely death In pediatric medicine, the exercise of those responsibilities has some special features:

• Infants have no preferences

• Children are immature to formulate preferences

• Parents or guardians have the moral and legal responsibilities to act in the child’s best interest

• The interest of the patient may be affected by the economic factors, religious beliefs and interest of the siblings

• As children mature, their preferences become important in reaching decisions about appropriate treatment

• These features may modify the basic responsibilities of a pediatrician Practitioners may be told to a more stringent duty to formulate as independent judgment of what course would be in the patient’s best interest

Cruelty to children is not recent In 1946 Caffey, a radiologist published his observations on

the occurrence of “Multiple fractures of the long bones of infants suffering from

chronic subdural hematoma” Battered children syndrome must be considered in any

child where the degree and type of injury does not match the history advanced, and where the injuries of different stages of healing are found and when there is purposeful delay in seeking medical attention

ETHICS REGARDING EUTHANASIA

The Netherlands is the only country to legalize euthanasia in 2002 Strict rules govern mercy killing There should be evident that patient will have a future of unbearable suffering and the patient must make a voluntary request to die Another physician should be consulted before ending patient’s life in a medically appropriate way

THE ETHICS OF MEDICAL PRACTICE 4

INTERNATIONAL CODE OF MEDICAL ETHICS

The duties laid down in the international code of Medical Ethics are as follows;

1 Doctor’s duty to the sick-

a A doctor must always keep in mind the importance of preserving human life the day of conception until death

b A doctor owes to his patient complete loyalty and all the resources of his science When some examinations and treatments are beyond his capacity,

he should summon another doctor who has the necessary ability

c A doctor owes to his patient absolute secrecy regarding that which has been confided to him or what he knows by virtue of the patient’s confidence on him

d A doctor must give necessary treatment in emergency circumstances unless

he is certain that it can and will be given by others

2 Doctor’s duty to another doctor-

a A doctor should behave towards his colleagues in a way which he will like to have from them

b A doctor must not entice patient from his colleagues

3 Duties of a doctor in general-

a A doctor must always maintain the highest standards of professional conduct

b A doctor must not allow himself to be influenced merely by motives of profit

c A doctor should consider the following practices unethical-

• Any self advertisement

• Participation in any health care system in which the doctor will not have professional independence

• Receiving money for the service to his patient other than acceptance of proper professional fee or payment of money in such circumstances, without the knowledge of the patient

d A doctor is not permitted to do anything which can weaken the physical or mental resistance of a human being, without strict therapeutic or prophylactic indication, in the interest of the patient

e A doctor should be very careful in publishing his observations or discoveries, particularly in respect of a method of treatment which is not recognized by the professional men

f In case of issuance of a certificate and when required to give evidence he

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RIGHTS AND PRIVILEGES ENJOYED BY A REGISTERED MEDICAL PRACTITIONER

1 Right to choose his patient - A registered medical practitioner is free to choose his

patient On this basis he may refuse a patient without showing any reason He however cannot refuse to treat a patient whom he has accepted to treat, if there is no valid ground for such refusal A registered medical practitioner should not refuse emergency treatment required by a patient.

2 Right to use title and description of the qualification which he actually possesses

3 Appointment in public and local Hospitals

4 Right to prescribe and/or dispense medicine to his patient

5 Right to realize fee and other expenses for attending his patient

6 Right to issue medical certificates and medico-legal reports

7 Right to give evidence in a court of law, as an expert witness

8 Removal of organs from a dead body for transplantation purpose A registered

medical practitioner, maintaining all legal and other relevant formalities in this regard can remove organs from a dead body, if he is working in/for a center approved for this purpose.

INFAMOUS CONDUCT (PROFESSIONAL MISCONDUCT)

Infamous conduct can be defined as “that act of a medical man done in the pursuit of

his profession, with regard to which it would be reasonably regarded as disgraceful

or dishonorable by his professional colleagues of good repute and competence”

List of professional misconducts:

1 Adultery or improper conduct or association with a patient

2 Conviction by court of law of offenses involving moral turpitude

3 Issuance of fake certificates, report and other documents

4 Contravention of drug acts and regulation

5 Selling a scheduled poison to the public under cover of his own qualification, except

to his own patients who needs the same

6 Performing or enabling an unqualified person to perform an abortion or any illegal operation for which there is no medical, surgical or psychological indication

7 Using touts or agents to procure patients

8 Advertising for his personal gains

9 Using unusually large signboards and writing on it anything other than his name, qualification and name of his specialty