Introduction :-

Medical ethics and human rights issues now command much more
attention in the medical profession and society.. Torture and human rights violations do not
begin and end merely with physical violence and blood. The perpetrators of human rights
violations have also the most unlikely collaborators in doctors, who are believed to have the
kindest countenance to human sufferings. The doctors are involved in administration of drugs
to induce a state of stupor in suspected criminals to splutter the hidden truth; they plant
devices on human bodies to study brain, heart and intestines; monitor human response to
questioning in police interrogation; they examine breath, blood, urine, semen, DNA to detect or
determine commission of crimes; they also administer that is close to deception and
exploitation for testing the efficacy of drugs. The frontiers of human rights violations where the
medical personnel dangerously tread. Many of the examples and cases of human rights
violations through medical personnel examined here have been taken from foreign countries,
not because they do not happen in India but our courts are less responsive to invasion of
privacy and the public adopt too paternalistic a view on doctor’s goodness to venture an
objective inquisitorial exercise concerning the medical personnel.

Human rights :-
Human rights are "rights and freedoms to which all humans are entitled". [1] Proponents of the
concept usually assert that everyone is endowed with certain entitlements merely by reason of
being human.[2] Human rights are thus conceived in a universalist and egalitarian fashion. Such
entitlements can exist as shared norms of actual human moralities, as justified moral norms or
natural rights supported by strong reasons, or as legal rights either at a national level or within
international law.[3] However, there is no consensus as to the precise nature of what in
particular should or should not be regarded as a human right in any of the preceding senses,
and the abstract concept of human rights has been a subject of intense philosophical debate
and criticism.

The modern conception of human rights developed in the aftermath of the Second World War,
in part as a response to the Holocaust, culminating in its adoption by the Universal Declaration
of Human Rights by the United Nations General Assembly in 1948. However, while the phrase
"human rights" is relatively modern the intellectual foundations of the modern concept can be
traced through the history of philosophy and the concepts of natural law rights and liberties as
far back as the city states of Classical Greece and the development of Roman Law. The true
forerunner of human rights discourse was the enlightenment concept of natural rights
developed by figures such as John Locke and Immanuel Kant and through the political realm in
the United States Bill of Rights and the Declaration of the Rights of Man and of the Citizen.

All human beings are born free and equal in dignity and rights. They are endowed with reason
and conscience and should act towards one another in a spirit of brotherhood.

—Article 1 of the United Nations Universal Declaration of Human Rights (UDHR)[4]

History & development of Human Rights :-

Although ideas of rights and liberty have existed for much of human
history, it is unclear to what degree such concepts can be described as "human rights" in the
modern sense. The concept of rights certainly existed in pre-modern cultures; ancient
philosophers such as Aristotle wrote extensively on the rights (to dikaion in ancient Greek,
roughly a 'just claim') of citizens to property and participation in public affairs. However, neither
the Greeks nor the Romans had any concept of universal human rights; slavery, for instance,
was justified both in ancient and modern times as a natural condition. [5] Medieval charters of
liberty such as the English Magna Carta were not charters of human rights, let alone general
charters of rights: they instead constituted a form of limited political and legal agreement to
address specific political circumstances, in the case of Magna Carta later being mythologised in
the course of early modern debates about rights.[6]

The basis of most modern legal interpretations of human rights can be

traced back to recent European history. The Twelve Articles (1525) are considered to be the
first record of human rights in Europe. They were part of the peasants' demands raised towards
the Swabian League in the German Peasants' War in Germany. In Britain in 1683, the English Bill
of Rights (or "An Act Declaring the Rights and Liberties of the Subject and Settling the
Succession of the Crown") and the Scottish Claim of Right each made illegal a range of
oppressive governmental actions. Two major revolutions occurred during the 18th century, in
the United States (1776) and in France (1789), leading to the adoption of the United States
Declaration of Independence and the French Declaration of the Rights of Man and of the Citizen
respectively, both of which established certain legal rights. Additionally, the Virginia Declaration
of Rights of 1776 encoded into law a number of fundamental civil rights and civil freedoms.
Declaration of the Rights of Man and of the Citizen approved by the National Assembly of
France, August 26, 1789.
“ We hold these truths to be self-evident, that all men are created equal, that they are
endowed by their Creator with certain unalienable Rights, that among these are Life,
Liberty and the pursuit of Happiness. ”
—United States Declaration of Independence, 1776

These were followed by developments in philosophy of human rights by philosophers such as

Thomas Paine, John Stuart Mill and G. W. F. Hegel during the 18th and 19th centuries. The term
human rights probably came into use sometime between Paine's The Rights of Man and
William Lloyd Garrison's 1831 writings in The Liberator saying he was trying to enlist his readers
in "the great cause of human rights"[7]

In the 19th century, human rights became a central concern over the
issue of slavery. A number of reformers such as William Wilberforce in Britain, worked towards
the abolition of slavery. This was achieved in the British Empire by the Slave Trade Act 1807 and
the Slavery Abolition Act 1833. In the United States, many northern states abolished their
institution of slavery by the mid 19th century, although southern states were still very much
economically dependent on slave labour. Conflict and debates over the expansion of slavery to
new territories culminated in the southern states' secession and the American Civil War. During
the reconstruction period immediately following the war, several amendments to the United
States Constitution were made. These included the 13th amendment, banning slavery, 14th
amendment, assuring full citizenship and civil rights to all people born in the United States, and
the 15th amendment, guaranteeing African Americans the right to vote.

Many groups and movements have managed to achieve profound social

changes over the course of the 20th century in the name of human rights. In Western Europe
and North America, labour unions brought about laws granting workers the right to strike,
establishing minimum work conditions and forbidding or regulating child labour. The women's
rights movement succeeded in gaining for many women the right to vote. National liberation
movements in many countries succeeded in driving out colonial powers. One of the most
influential was Mahatma Gandhi's movement to free his native India from British rule.
Movements by long-oppressed racial and religious minorities succeeded in many parts of the
world, among them the African American Civil Rights Movement, and more recent diverse
identity politics movements, on behalf of women and minorities in the United States.
 The establishment of the International Committee of the Red Cross, the
1864 Lieber Code and the first of the Geneva Conventions in 1864 laid the foundations of
International humanitarian law, to be further developed following the two World Wars.

The World Wars, and the huge losses of life and gross abuses of human
rights that took lace during them were a driving force behind the development of modern
human rights instruments. The League of Nations was established in 1919 at the negotiations
over the Treaty of Versailles following the end of World War I. The League's goals included
disarmament, preventing war through collective security, settling disputes between countries
through negotiation, diplomacy and improving global welfare. Enshrined in its charter was a
mandate to promote many of the rights that were later included in the Universal Declaration of
Human Rights.

At the 1945 [Yalta Conference]], the Allied Powers agreed to create a

new body to supplant the League's role; this body was to be the United Nations. The United
Nations has played an important role in international human-rights law since its creation.
Following the World Wars, the United Nations and its members developed much of the
discourse and the bodies of law that now make up international humanitarian law and
international human rights law.

Human Rights & Medical Profession :-

One of modern civilisation's achievements is the realisation and dissemination of the
knowledge that the rights to life, liberty and security of person are primary, inherent and
inalienable to every human being, irrespective of race, nationality, economic status or other
man-made discriminations, The universal declaration of human rights (article 3) of 1948 and
article 21 of the Indian Constitution recognise these rights as fundamental rights.

Modern human rights, born in the aftermath of the second world war and crystallised in the
universal declaration of human rights of 1948, reflect a broader societal approach to the
complex problem of human well-being. The implicit question behind the modern human rights
movement is : "what are the societal (and particularly governmental) roles and responsibilities
to help promote individual and collective well-being ?" This form of the question leads to a
specific list of actions that governments should not do (discriminate, torture, imprison under
inhumane conditions, interfere with the free flow of information, invade privacy, prevent
associative life in society) and basic minimum that governments should ensure for all
(elementary education, housing, food, medical, care).
War crimes and medical professionals

Fifty years ago in Nuremberg, Germany (25/10/46 – 20/8/47), 23 physicians and scientists stood
trial for war crimes committed before and during the second world war. They were accused of
inflicting a range of vile and lethal procedures on vulnerable populations and inmates of
concentration camps from 1933 to 1945.

Fifty years ago in Nuremberg, Germany (25/10/46 – 20/8/47), 23 physicians and scientists stood
trial for war crimes committed before and during the second world war. They were accused of
inflicting a range of vile and lethal procedures on vulnerable populations and inmates of
concentration camps from 1933 to 1945.

The medical experiments conducted by them, listed under the heading of 'crimes conducted in
the guise of scientific research', include exposing human beings to high altitudes, freezing them,
infecting them with malaria, epidemic jaundice, typhus, mustard gas, sulfanilamide, other drugs
and poisons, and 'observing' bone, muscle and nerve regeneration and bone transplantation,
sea water experiments, sterilisation experiments, incendiary bomb experiments, skeleton
collection of prisoners, crimes of mass extermination and 'euthanasia'.

Fifteen of the twenty accused were found guilty after the trials and of the fifteen, seven were
given the death penalty and the remaining were imprisoned.

These trials prompted the drafting of the Nuremberg Code and subsequently the Helsinki
Declaration on Human Experimentation was adopted by the World Medical Association (WMA)
in 1964.

In 1976, the WMA drafted the Tokyo Declaration which dealt with the role of physicians in
treating the prisoners and victims of custodial violence. Also, the UN General Assembly in
December 1989 endorsed the resolution 1989/65 adopted by the UN economic and social
council, on the prevention of extrajudicial executions and adequate investigation of such
executions. (This manual is also known as the model Minnesota protocol for legal investigation
of extra-legal, arbitrary and summary executions and model autopsy protocol.)

Human rights in India

Ancient India's political leadership was dominated by monarchs whose whims decided their
subjects' rights.
Ancient India's political leadership was dominated by monarchs whose whims decided their
subjects' rights.

Criminal investigations in the past involved forcing suspects to prove their innocence by
undergoing tests of innocence such as dipping their hands into boiling oil or embers.

In British India, the earliest evidence of custodial death was reported in Madras in 1678 when
Thomas Savage, a soldier, abused his superior officer and was tied to a cot, bound by the neck
and heels. He died.

The governor, Sr William Langhorne, ordered his body to be inspected. John Waldo, surgeon,
and Bezaliel Sherman, second surgeon viewed the body and wrote, 'we under written
immediately to assist thereabout said Thomas Savage found him dead and apparent marks of
his binding about his neck, which we judge to be the cause of his death.' (Fort St George
consultation, 1678-79 and Madras in the olden times by J Talboys Wheeler.) The superior
officers (a sergeant and a corporal) were sent to England to stand trial for the crime.

Further, when the British system of judiciary and policing was introduced in India, some tribes
and castes were notified as 'criminal' and this prejudice was inherited by independent India's
police force. When such historical verisimilitudes and historical exegesies blended into the
frailities of politicians and bureaucrats of democratic India, the constitutionally guaranteed
rights often remained only on paper.

Also, the nascent Indian democracy's viability and resiliency was often tested by traditional
practices.

Medical professional and human rights abuse

In India, military, clandestine security forces and civil police have all been put in the dock for
human rights violations on various occasions.

In India, military, clandestine security forces and civil police have all been put in the dock for
human rights violations on various occasions.

In many such instances, the autopsy appearances of fatal abuse are no different from those by
any other homicide and the confirmation of lethal torture must depend on circumstantial and
other corroborative evidence. Certain features may arouse suspicion or provide definite
evidence that the death had 'political' overtones. The word 'political' is used here in a wide
sense as many abuses of human rights are not directed or condoned by higher levels of
government though there is often an indifference on being informed of such activities.

The occurrences of death or sexual/physical abuse while a person is either in the custody of the
police, or the inmate of a prison, often creates sociopolitical problems. There is an immediate
complaint or rumour of ill-treatment by the relatives or the media. A meticulous autopsy /
medical examination is a necessary part of the investigation needed to dispel – or sometimes
confirm – allegations that an act of commission or omission on the part of the custodians of the
law has led to, or contributed to, a death.

Further, the medical professional may be coerced to take part in the unlawful interrogation of
politically inconvenient persons.

There are adequate instances in the recent political history of many countries, where medical
science was made into an instrument of political power: a formidable, essential tool in the
complete and effective manipulation of totalitarian control. Andrew Civy, one of the two
American physicians who testified at the Nuremberg trials, wrote in 1949: "What happened to
the medical profession in Germany is stern testimony to the fact that acceptance of, or even
silence before, anti-semitism and the rest of the trappings of racism, acquiescence in, or even
silence before, the violation of sacred professional ethics, the service by medical men of any
goal but truth for the service of humanity, can lead to dishonour and crime in which the entire
medical profession of a country must in the last analysis be considered an accomplice."

Health and human rights

When the World Health Organisations redefined heath as "a state of complete
physical, mental and social well-being (World Health Organisation Constitution, in: Basic
Documents, 36thEdition, Geneva, WHO, 1986)", it not only expanded health far beyond
medicine, it openly acknowledged the vast accumulated knowledge about the central role of
societal determinants of population health.

When the World Health Organisations redefined heath as "a state of complete physical, mental
and social well-being (World Health Organisation Constitution, in: Basic Documents, 36 thEdition,
Geneva, WHO, 1986)", it not only expanded health far beyond medicine, it openly
acknowledged the vast accumulated knowledge about the central role of societal determinants
of population health.

The discipline of public health has generally ignore the societal roots of health in favour of
medical interventions which operate further downstream. For example, public health efforts at
preventing and controlling sexually transmitted diseases have focused on diagnosis and
treatment, along with educational programmes, rather than confronting societal inequality or
other societal issues as 'essential conditions' underlying the spread of sexually transmitted
diseases.

Medical professional are realising that promoting and protecting human rights may be essential
for promoting and protecting health. This insight will be helpful in the evolving approach to
population and women's health, drug and alcohol abuse and in the work of HIV/AIDS, Medical
professionals increasingly recognise that they must deal directly with the underlying societal
issues that determine, to the largest extent, who lives and who dies, when and of what.

One offshoot of this line of thinking is the understanding that many erring policemen
may be suffering from psychiatric disorders and multiple drug abuse. In such situations, the
need of the hour is periodic psychiatric evaluation of custodians of law.

Medical Profession & Human Rights –A Discussion :-

The U. N. Universal Declaration of Human Rights clearly stipulates "No one shall be subjected
to torture or cruel, inhumane or degrading treatment or punishment. The World Medical
Association's (WMA) "Declaration of Tokyo" in 1975 states: "The physician shall not
countenance, condone or participate in the practice of torture or other cruel, inhuman or
degrading procedures, whatever the offence of which the victim of such procedure is
suspected,
accused or guilty, and whatever the victim's belief or motives, and in all situations, including
armed conflict and civil strife." The International Committee of the Red Cross (ICRC), Amnesty
International, Human Rights Watch, et al, indicate that medical personnel have on many
occasions failed to maintain medical records, conduct routine medical examinations, provide
proper care of disabled and injured detainees, accurately report illnesses and injuries, and
falsified medical records and death certificates. It is suspected the world over that medical
system has failed to protect detainee's human rights, violated the basic principles of medical
ethics and ignored the basic tenets of medical professionalism. Medical personnel and medical
information have also been used to design and implement psychologically and physically
coercive interrogations. Recently, it is complained by some sections of the press that the
socalled
concerted actions against terrorism, have resulted in torture of particular individuals and
groups by the police with the active assistance of the medical professional. Of them, persons in
detention accused of crimes and undergoing trial are the most vulnerable sections against
whom such violations take place with crude abandon.
Human Rights Violations Under Military Regime

An extreme case in recent history occurred in Nazi death camps, where doctors supervised
killings and selected which people went into the camps and which were killed. Physicians who
interviewed Nazi doctors said most were normal people who went home on weekends to be
fathers and husbands. They were not killers before serving in the death camps and did not
continue killing afterward. Those who interviewed U. S. soldiers about atrocities in Vietnam said
there's an internalization of the ethos of the organization that then prompts actions the person
would not ordinarily perform1. Since the September 11 attacks, terrorism has been linked
inextricably to the public mind (in the west) to people from middle-eastern and Muslim
backgrounds, generating the type of extreme prejudice that, in a poorly monitored detention
environment such as Abu Ghraib and Guantanamo 2, offers moral license for torturers3. The
result is that human rights are allowed to be overlooked and even violated in order to gain
information to win the war against terrorism4. In other words, the end - to- win the war on
terrorism - justifies any means, including techniques used to gain invaluable information. As a
result, military medical personnel are placed in a position of a "dual loyalty" conflict5. They
have
to balance the medical needs of their patients, who happen to be detainees, with their military
duty to their employer6.

Human Rights and hu man experimentation

Prior to World War II, there were no international efforts to regulate human experimentation.
National activities were few and far between. One exception was a Directive on Human
Experimentation issued in December 1900 by the then Prussian Minister of Religious,
Educational and Medical Affairs. This was followed by a Circular on innovative therapy and
scientific experimentation promulgated by the then Reich Minister of the Interior in February
1931. Just over five years later, in April 1936, the Bureau of the Medico-Scientific Council of the
People's Commissariat for Health of the Russian Socialist Federated Soviet Republic (RSFSR),
the main constituent Republic of the then Union of Soviet Socialist Republics, issued an
Advisory Resolution on the procedures for testing new medicinal substances and methods
which may present a hazard for the health and life of patients. In 1946 the American Medical
Association published its first principles of human experimentation, while in 1953 the US
Department of Defence issued its then "top-secret" Memorandum on the use of human
volunteers in experimental research. In the same year, the Clinical Center of the US National
Institutes of Health issued a policy document on clinical research, while the United Kingdom
Medical Research Council issued a Memorandum on clinical investigations. On 16 December
1966, the International Covenant on Civil and Political Rights was adopted by the United
Nations
General Assembly, which came into force ten years later, on 23 May 1976. Article 7 was
influenced by the events that led to the Nuremberg Code, as well as by other inhuman practices
during World War II. It lays down that "no one shall be subjected without his free consent to
medical or scientific experimentation." This Article is clearly binding on the many countries
which have ratified the Covenant. Reference should also be made to the Declaration on the
Human Rights of Individuals who are not nationals of the country in which they live, proclaimed
by the General Assembly on 13 December 1985. Article 6 lays down that "no alien shall be
subjected without his or her free consent to medical or scientific experimentation"7.
Conventions apart, human experimentation developed in the shadow of horrific examples of
abuse such as Nazi experimentation on human beings8 that resulted in the Nuremberg trials.

Doctor as collaborators with police in criminal investigations

It is commonplace knowledge that tools of investigation adopted by the police for crime
detection involve physical and mental torture. Securing vital leads to missing links in its process
make way for active collaboration of the police with medical personnel for administration of
certain types of drugs to induce the suspect to give information by questioning in a hypnotic
state. The resort to medical professionals for their opinions is invariably made while the cause
and the time of death are issues in a criminal trial for ‘homicide’ and ‘murder’10 or in cases of
injuries voluntarily caused on another with criminal intention. Extra Judicial confession and the
maintenance of medical records afford vital evidence in criminal cases, where doctors are
invited to tender testimony on facts to which they are privies. All these duties have important
bearing on human rights issues. Indian Medical Council (Professional Conduct, and Ethics)
Regulations with regard to professional conduct, etiquette and ethics, notified in 2002 sets out,
inter alia, that the physician shall not aid or abet torture nor shall he be a party to either
inflictionof mental or physical trauma or concealment of torture inflicted by some other person
or agencyin clear violation of human rights.

Narcoanalysis, brain mapping, lie detectors – tools for torture?

In respect of sensitive criminal cases where the investigating agency is not able to make
headway, it resorts to the practice of subjecting the principal suspects to certain medical tests
solemnly sworn to uphold and abide by, including the fundamental principle never to do harm-
primumnon nocere."' See The Nazi Doctors and the Nuremberg Code, (George J. Annas &
Michael A. Grodineds., 1992).
10 The Indian Penal Code makes a technical distinction between murder and homicide not
amounting to
murder. See sections 299 and 300 of the Code.
such as narco analysis11 and brain- mapping12 with the help of doctors as a part of
investigationstrategy to pick up vital leads from the statements made in a drug induced state
made bysuspects and witnesses. The objections to this have been on the basis that it
subjectstheindividual to testimonial compulsion and hence
constitutionallyimpermissible13.CourtsinIndia14,not surprisingly, lean in favour of investigating
agencies and hold that while the statementsmade by persons in a state of stupor or the data
collected by brain mapping could not beadmissible, facts discovered through such statements
that may help the State machinery followthe criminal trail and ultimately unravel mystery
cannot be objectionable. Courts’ willingness tosurrender to the medical process as a
scientifictool that is practiced in various countries is11 The Narco Analysis Test is conducted by
administrating 3 gms of Sodium Pentathol or Sodium Amytal
dissolved in 3000 ml of distrilled water depending upon the person's sex, age, health and
physicalcondition and this mixture is administered intravenously along with 10% of dextrose
over a period of 3hours with the help of an anaesthetist. The rate of administration is
controlled to drive the accused slowlyinto a hyponotic trance. The effect of the bio-molecules
on the bio-activity of an individual is evident as thedrug depresses the central nervous system,
lowers blood pressure and slows the heart rate, putting thesubject into a hypnotic trance
resulting in a lack of inhibition. The subject is then interrogated by the
Investigating Agency in the presence of the doctors. The revelations made during this stage are
recordedboth in video cassettes. The report prepared by the experts is what is used in the
process of collectingevidence. Under the influence of the drug the subject talks freely and is
purportedly deprived of his selfcontroland will power to manipulate his answers. The
underlying theory is that a person is able to lie byusing his imagination. In the Narco Analysis
Test, the subject's imagination is neutralized and reasoningfaculty affect by making him semi-
conscious. The subject is not in a position to speak up on his own butcan answer specific and
simple questions. In this state it becomes difficult for him to lie and his answerswould be
restricted to facts he is already aware of. His answers are spontaneous as a semi-conscious
person is unable to manipulate his answer. Injected in continuous small dosages it has a
hypnotizingeffect on a person when responds loquaciously when questioned. The ECG and
blood pressure aremonitored continuously throughout the testing procedure. The entire
conduct of the procedure is videographed. The questions are designed carefully and
arerepeated persistently in order to reduce theambiguities during drug interrogation. After the
Narco examination is over the suspect is made to relax for2 - 3 hours.
12 The Brain Mapping Test is also known as P-300 test. In this test of Brain Mapping the suspect
is firstinterviewed and interrogated to find out whether he is concealing any information. The
activation of brainfor the associated memory is carried out by presenting list of words to the
subjects. There are three typesof words in the list used for Brain Mapping test, Part-I consisted
of neutral words, which have no directrelationship with the case. Part-II consists of probe words
directly related to the case and suspects to elicitconcealed information, which all suspects have
had opportunity to come to know during the course of
events related to the case. Part-III consists of target, which are not part of the first two
parts.The words inthis part are based on confidential findings which suspect does not know.
The recording of this test isdone by acquiring the response through 32 channel EEG-ERP Neuro
Scan cording system. It is carriedout by asking the suspect to sit down and close his eyes. The
32 channel electrodes are placed over thescalp directly. While conducting this test twice by
presenting each word in three parts randomly. Thesuspect is instructed to relax and listen to
the words presented in the auditory mode. This test does notexpect any oral response from the
witness. The conclusion drawn by the experts after the conduct of thetest to indicate the
possession of the knowledge about the relevant subject which is helpful in theinvestigation and
collection of evidence. After the administration of the test, what comes out is that, theperson
undergoing the test has the knowledge of the crime about which he was questioned (brain
mapping). In the said test there is no way to find out what the lie is or what is the information
stored in thebrain of the person concerned. It can be called the information received of taken
out from the witness.
13 Article 20(3) of the Indian Constitution reads that ‘no person accused of any offence shall be
compelledto be a witness against himself’.
considered by human rights activists as too naïve and that it makes light a serious invasion into
the privacy of the individual. In dispelling arguments against torture, courts have adopted yet
again, what may be perceived as an objectionable reasoning of torture as not being involved in
the practice of injecting Pentothal or sticking discrete electrodes placed over the scalp of the
suspect to gather data. There is an objectionable assumption that there could be no torture
except when it is physical.

National Human Rights Commission’s Guidelines on Lie Detector Test

The National Human Rights Commission on 12 November 1999 adopted a set of guidelines
relating to administration of the Polygraph Test or the Lie Detector Test. The test is conducted
after a certain drug is administered to the accused. As the existing police practice in invoking Lie
Detector Test is not regulated by any 'Law' or subjected to any guidelines, the Commission felt
that it could tend to become an instrument to compel the accused to be a witness against
himself, violating the constitutional immunity from testimonial compulsion. The Commission
observed that, in India, as regards such tests, we must proceed on the assumption of
constitutional invasiveness (seen as a facet of Article 21) and evidentiary impermissiveness
(guaranteed under Article 20(3)) the right to reject it is a prerogative of the individual not an
empowerment of the police. In as much as this invasive test is not authorised by law, it must
perforce be regarded as illegal and unconstitutional unless it is voluntarily undertaken under
non-coercive circumstances. If the police action of conducting a Lie Detector Test is not
authorised by law and impermissible, the only basis on which it could be justified is, if it is
volunteered
The Commission also noted: “there is distinction between 'volunteering' and 'being asked to
volunteer.' This distinction is (of) some significance in the light of statutory and constitutional
protections available to any person. There is a vast difference between a person saying, 'I wish
to take a Lie Detector Test because I clear my name"; and the person told by the police, "If you
want to clear your name, take a Lie Detector Test". A still worse situation would be by the
policesay "Take a Lie Detector Test, and we will let you go". In the first situation the person
voluntarilywants to take the test. It will still have to be examined whether such volunteering
was undercoercive circumstances or not. In the second and third situations the police
implicitly/explicitlylink up the taking of the test to allowing the accused to go free.
The extent and nature of 'self-incrimination' is wide enough to cover the kinds of statements
thatwere sought to be induced. The test retains the requirement of personal volition and states
thatself-incrimination must mean conveying information based upon the personal knowledge
of theperson giving information. The information, sought to be elicited in a Lie Detector Test, is
alwaysinformation in the personal knowledge of the accused.”
The Commission, after bestowing its careful consideration of this matter of great
importancelaiddown, the following guidelines relating to the administration of Lie Detector

Test:

No Lie Detector Test should be administered without the consent of the accused. Option
should be given to the accused as to whether he wishes to avail the test.

If the accused volunteers for the tests, he should be given access to a lawyer. The police
and the lawyer should explain the physical, emotional and legal implication of such a test
to him.

The consent should be recorded before a Judicial Magistrate.

During the hearing before the Magistrate, the accused should be duly represented by a
lawyer.
At the hearing, the person should also be told in clear terms that the statement that is
made shall not be a 'confessional' statement to the Magistrate but will have the status of
a statement made to the police.

The Magistrate shall consider all factors relating to the detention including the length of
detention and the nature of interrogation.

The actual recording of the Lie Detector Test shall be done in an independent agency
(such as a hospital) and conducted in the presence of a lawyer.

A full medical and factual narration of the manner of information received must be taken
on record.
These guidelines of the Commission were circulated to the Chief Secretaries and DGPs
of States as well as Administrators and IGPs of UTs by a letter dated 11 January 2000.

Testimonial compulsions Compulsory blood/ D N A test for deter mining the

commission of offence, paternity, etc

A whole range of actions of medical professionals that impinge on patient’s/suspected

criminal’s consent before investigation could be begun, have immediate relevance to human
rights issues.Even apart from criminal cases, issues of paternity in matrimonial jurisdictions
involve the activeassistance of medical professionals. Compulsory blood/ DNA testing through
doctors areresorted, at the instance of a party with the aid of the court order, to carry out the
investigation.
aking of a genetic sample without consent was viewed by the Supreme Court held in S harda vD
har mpal15 as undesirable. In Gout m Kundu v. State of W e st B engal and A nr16, the Supreme
15 S harda v D har mpal (2003) 4 SCC 493.
16 AIR 1999 SC 2295
Court, while dealing with a question about the paternity of a child, took note of Section 112
oftheEvidence Act and held that the conclusive presumption of paternity of child during the
subsistence of marriage of man and wife arising under the provision could only be displaced by
a strong preponderance of evidence and not by a mere balance of probabilities. It held: (1) that
courts in India cannot order blood test as a matter of course; (2) wherever applications are
made for such prayers in order to having roving inquiry, the prayer for blood test cannot be
entertained; (3) There must be a strong prima facie case in that the husband must establish
non-access in order to dispel the presumption arising under Section 112 of the Evidence Act; (4)
The court must carefully examine as to what would be the consequence of ordering the blood
test, whether it will have the effect of branding a child as a bastard and the mother as an
unchaste woman; (5) No one could be compelled to give sample of blood for analysis". Thetruth
of the matter is, by the time a subject-patient is brought before the doctor, a decision
hasalreadybeen taken by the court that investigation shall be done on the person and the
doctor has notalways the need to question whether consent was obtained from the person on
whom the test isto be performed. The doctor becomes a passive collaborator for the invasion
of privacy of theindividual without his or her consent.

Compulsory vaccination policy

The health policies of government and sometimes the directives of International health
orgainisations, like WHO, may dictate the adoption of vaccination against polio, small pox etc.
The massive scale of operation may include administration of drugs at school, at Railway
Stations and many other public places with a degree of persuasion that the recipient may not
beable to repel. In some cases, the drug administration may not require that recipient of the
drugany consent that may seem to violate the fundamental precept of autonomy. In the
earliest casebefore the Supreme Court of USA in Jacobson v M assachusetts17, it was held that
compulsoryvaccination was "a proper exercise of the police power." Since the state's "police
power"enables it to enact "health laws" reflecting dominant medical beliefs and those of the
majority ofsociety, the opinion of the minority should not subvert the opinion of the majority.
The U.S.Supreme Court affirmed, explaining that they were "unwilling to hold it to be an
element in theliberty secured by the Constitution ... that one person, or a minority of persons ...
should haveState," or to "permit the interests of the many to be subordinated to the wishes or
convenienceof the few." Furthermore, the court asserted that "upon the principle of self-
defense, ofparamount necessity, a community has the right to protect itself against an
epidemic of disease
which threatens the safety of its members."The current large scale immunization programmes
measles, etc, or requirement of certain types of vaccination while securing visa for
visitingforeign countries may involve no issue of consent of the individual at all. At the time
ofadmission into schools one might encounter a mandate of a complete vaccine receipt as
acondition for entry and continuation in the classroom. In 1944 the U.S. Supreme Court
stressed17 Jacobson v. M assachusetts, 197 U.S. 11 (1905).

Sterilisation cases

When it is proposed to perform an operation of sterilisation on an adult woman unable to

consent because of her mental incapacity, where the purpose of the operation is to avoid the
risk of her becoming pregnant rather than the treatment of diseased organs, the fundamental
and irreversible nature of the operation is such that as a matter of good practice it is highly
desirable that such a declaration should be sought by those caring for the woman or intending
to carry out the operation20. The right to bodily inviolability and the right to procreate or, the
right tochoose whether to procreate or not is the fundamental premise on which the court will
exercisets jurisdiction. The position in India is more apposite to what exists in Australia, which
recognizes parental authority as sufficient to decide on sterilization of a person of unsound
mindor a minor but would deem it desirable that sanction from court is also obtained21

Doctor’s Role Shall Not Rendered as a Mere Passive Collaborator

The issue whether administration of drugs in narco-analysis, DNA/blood tests shall be

undertaken merely on the order of courts without a further affirmation before the doctor that
theperson has consented for undergoing the procedure shall require serious consideration. This
shall be so in all cases, except where substituted judgment is justified, on grounds of minority
ormental illness or mental retardation and the court’s intervention may be mandated. The
normshall be that there shall be no occasion for any doctor to be compelled to administer drugs
on aperson without assuring to himself that consent has been given. In matters of health
policies ofvaccination and sterilization, carrying out the required procedures shall be done only
in thepresence of doctors, where information and counseling shall be simultaneously available
foraddressing the genuine safety and justifying concerns of persons targeted for administration.
Medical trials for all types of drugs against war criminals and prisoners shall be
completelystopped and even consent could not be a justification. Consent shall be presumed
tobe vitiatedfor persons in detention. We have far too long trenched on the decision making
abilities of themedical professionals and make them succumb to authority to carry out practices
that arebefore invading on the bodies and privacies of persecuted, sick and the weak subjects.
22 (1986) 25 SCR 388;31 DLR 4d 1
23 2009(5) RAJ 306 (SC).

Human Rights & Medical Ethics :-

The Medical Profession and Human Rights has breadth, depth and range, and represents an
outstanding piece of scholarship, collation and organization. It should turn out to be a seminal
work of reference. .

Historically, Western medical ethics may be traced to guidelines on the

duty of physicians in antiquity, such as the Hippocratic Oath, and early rabbinic and Christian
teachings. In the medieval and early modern period, the field is indebted to Muslim physicians
such as Ishaq bin Ali Rahawi (who wrote the Conduct of a Physician, the first book dedicated to
medical ethics) and Muhammad ibn Zakariya ar-Razi (known as Rhazes in the West), Jewish
thinkers such as Maimonides, Roman Catholic scholastic thinkers such as Thomas Aquinas, and
the case-oriented analysis (casuistry) of Catholic moral theology. These intellectual traditions
continue in Catholic, Islamic and Jewish medical ethics.

By the 18th and 19th centuries, medical ethics emerged as a more self-conscious discourse. For
instance, authors such as Thomas Percival wrote about "medical jurisprudence" and reportedly
coined the phrase "medical ethics." Percival's guidelines related to physician consultations have
been criticized as being excessively protective of the home physician's reputation. Jeffrey
Berlant is one such critic who considers Percival's codes of physician consultations as being an
early example of the anti-competitive, "guild"-like nature of the physician community. [1][2] In
1847. the American Medical Association adopted its first code of ethics, with this being based in
large part upon Percival's work [3]. While the secularized field borrowed largely from Catholic
medical ethics, in the 20th century a distinctively liberal Protestant approach was articulated by
thinkers such as Joseph Fletcher. In the 1960s and 1970s, building upon liberal theory and
procedural justice, much of the discourse of medical ethics went through a dramatic shift and
largely reconfigured itself into bioethics.[3]

Since the 1970s, the growing influence of ethics in contemporary medicine can be seen in the
increasing use of Institutional Review Boards to evaluate experiments on human subjects, the
establishment of hospital ethics committees, the expansion of the role of clinician ethicists, and
the integration of ethics into many medical school curricula.[4]

Values in medical ethics

Six of the values that commonly apply to medical ethics discussions are:

 Autonomy - the patient has the right to refuse or choose their treatment. (Voluntas
aegroti suprema lex.)
 Beneficence - a practitioner should act in the best interest of the patient. (Salus aegroti
suprema lex.)
 Non-maleficence - "first, do no harm" (primum non nocere).
 Justice - concerns the distribution of scarce health resources, and the decision of who
gets what treatment (fairness and equality).
 Dignity - the patient (and the person treating the patient) have the right to dignity.
  Truthfulness and honesty - the concept of informed consent has increased in
importance since the historical events of the Doctors' Trial of the Nuremberg trials and
Tuskegee Syphilis Study.

Values such as these do not give answers as to how to handle a particular situation, but provide
a useful framework for understanding conflicts.

When moral values are in conflict, the result may be an ethical dilemma or crisis. Sometimes,
no good solution to a dilemma in medical ethics exists, and occasionally, the values of the
medical community (i.e., the hospital and its staff) conflict with the values of the individual
patient, family, or larger non-medical community. Conflicts can also arise between health care
providers, or among family members. Some argue for example, that the principles of autonomy
and beneficence clash when patients refuse blood transfusions, considering them life-saving;
and truth-telling was not emphasized to a large extent before the HIV era.

Violation of human rights began as a subject in the Tromsø curriculum in 1994. Teaching is
organized in three parts: the first part takes place in the second year of the medical curriculum
during the study of medical history; the second part takes place in the fourth year under the
title ‘torture and the medical profession’ and includes a seminar on immigrant children; and the
third part takes place in the sixth year, under the title ‘the violations of the human rights,
especially in children’.

      PATIENTS RIGHTS AND RESPONSIBILITIES :-

Health is a subject closer to everybody’s heart. Improvement of one’s health and health of
one’s family is a universal aspiration.  However health has been always given a low priority
status in the nation’s political and social agenda.  With the increasing privatization of the
health care services in the country, the state is slowly abdicating its responsibility to provide
health care to the people.  Medical profession contributes to the healthcare to the extent of
only 25-30%.  Approximately 70% input in the health care is by various sectors like the
pharmaceutical industry, hospitals, blood banks etc.  This 70% inputs are mostly managed on
a commercial basis and therefore patient as a consumer must have certain rights.  These
rights of a patient as a consumer are more important than the rights of a general consumer
because patient usually has very little choice in the treatment.

WHAT ARE PATIENTS RIGHTS?

Patients rights emanate from human rights, constitutional rights, civil rights, consumer rights,
codes of ethics of medical and nursing profession. The Indian Constitution bestows certain
rights on the citizens.  One of them is Right to life.  Right to a healthy life is an integral part of
the Right to life.  WHO’s definition of health includes physical, mental, social, environmental
and spiritual aspects of health.  Any threat to health care must be considered as denial of the
Right to Life.  Basic optimal health care is the right of every Indian citizen and it is the
responsibility of the state to provide it.  The Government in the country has legislated certain
laws to protect the citizens.  Some of these are, The Drugs and Cosmetics Act, The Medical
Council Act and The Consumer Protection Act.  The codes of ethics of medical and nursing
councils define the duties of the doctors and nurses towards the patients.  Thus these duties
form the basis of patient’s rights. 

These codes of ethics are based on various international codes like The Nuremberg Code, The
World Medical Association’s Declaration of Geneva, The World Medical Association’s
Declaration of Helsinki, The World Medical Association’s Code of Medical Ethics, Declaration
of Tokyo etc.  There are certain rights which are for certain special category of patients for
e.g.; handicapped /disabled persons.  Certain healthy persons also need the cover of patients
rights.  This category includes women taking various contraceptive pills, healthy persons who
undergo vaccination, healthy persons who volunteer for drug trials etc.  Thus rights of
patients cover a wide spectrum of ill as well as healthy persons.

WHAT PRECAUTIONS SHOULD PATIENTS TAKE TO PROTECT THEIR RIGHTS?

In India there is very little perception about the rights of the patients even amongst the
educated persons.  Therefore blatant violation of patient’s rights is a routine occurrence. 
However the situation can be changed if every citizen takes certain precautions while
undergoing treatment or while taking drugs/vaccines etc.

1)    In case of surgical treatment or invasive investigations and procedures, please make
sure that you have understood the nature of the operation.  You have the right to
know the details of the surgery as well as the details like the expected time of post-
operative recovery, expenses likely to be incurred for the surgery, the risks involved,
whether there is any non-surgical treatment for your ailment etc.

2)    Please make sure the details are understood by you before you sign the consent
form.  The consent form should be in your mother tongue or the language known to
you. 
3)    At the time of discharge, please make sure that you have been given copies of all the
relevant records.  As per the decision of the Bombay High Court (Raghunath Raheja
v/s Maharashtra Medical Council), every patient or his legal heirs have the right to get
the copies of all the case papers on payment of relevant charges.

4)    At the time of discharge from the hospital, please make sure that you have received
the bills for all the payments made by you.  You have the right to get details of the bill
like details of drugs administered to you, the details of investigations etc.

5)    In case of any treatment, you have the right to ask for a second opinion.  However,
the second opinion should be taken ONLY with the consent of your physician.

6)    If you have any doubts about the treatment you should request the doctor to clarify
them.  Doctor-Patient communication is of vital importance for the success of any
treatment.

7)    Please make sure that the doctor has given you all the instructions for the medicines
prescribed.  You have the right to get all the relevant information about the drugs
prescribed to you.

8)    In case of invasive/costly investigations, you have the right to know of the
alternatives as well as the necessity of the investigations.

9)    As a patient, you have the right to take second opinion and/or change the doctor. 
However, this right should be exercised very judiciously and cautiously.  ‘Doctor
Shopping is not in the interest of consumers and can cause serious harm due to
irregular treatment.

10) Please always preserve all the bills of the purchase of medicines.

11) If you have any complaints about the treatment/investigations/drugs etc., first
approach the concerned doctor/hospital.  Many times the complaints are due to
misunderstanding and failure in communication.  These can be resolved at the local
level.  Many hospitals have their own patient redressal cell.  You must first approach
such Patient Redressal Cell.

12) If you find that your complaint remains unresolved, then please write down
 Your grievance giving all the relevant details in a sequential format and take the
advice of a Consumer Organisation in your area before taking any legal action.  Please
remember that most of the times the complaints can be resolved at the hospital level.

13) In case of substandard drugs, preserve the drug packages with labels/cartons/boxes
etc.  The complaints about the drugs have to be lodged with the local Food and Drugs
Administration.

14) If you are participating in any trial for drugs/therapeutic devise/treatment protocol,
you have the right to refuse to participate in the trial.  Please make sure that you have
understood all the details like duration, risks involved, the expected complications
etc.  Also make sure that the doctor/hospital conducting the trial has agreed to treat
completely any complication arising out of the trial, free of cost.  Please make sure
that the consent form includes all the details.

15) As a patient you have to expect the medical record pertaining to your illness be
treated as confidential.  If the details are to be used in a medical conference, please
make sure that your consent has been obtained by the doctor/hospital.

16) In case of HIV positive patients, the details can only be disclosed with the patient’s
permission.  You have to be vigilant to see the HIV reports are not disclosed to the
employers/friends/other unauthorized persons.

AVENUES FOR REDRESSAL OF PATIENTS COMPLAINTS

MEDICAL COUNCILS:

Medical Councils are statutory bodies created by an Act of the Parliament/legislature to

monitor/govern the medical profession.  The council has only ethical jurisdiction.  The council
cannot give compensation to the complainant or punish the doctors. The only punishment
the councils are empowered to give is to cancel the registration either temporarily or
permanently.  The complainant has to file the complaint with the registrar of the Council and
file a specific declaration as per the prescribed format.  The council’s executive committee
holds the preliminary hearing to find out the prima facie veracity of the complaint.  At this
meeting only the complainant and the doctor against whom the complaint is filed are allowed
to present their sides.   Lawyers are not allowed to be present.   If the executive committee
finds prima facie truth in the complaint, then the full council hears the case.   The council
meets only twice in a year.  Therefore the complaints are not resolved speedily.  Also the
preliminary hearing is heavily weighed against the complaint who is usually a non medical
person. Therefore councils have been very ineffective in resolving the complaints of
consumers of healthcare.

CONSUMER COURTS:

The complaints against the medical profession can be filed in the consumer courts.  The
complaint should be written on a simple paper giving all the details and the compensation
demanded.  These courts can only give compensation.

Following are the monetary limits of compensation that can be granted by the consumer
courts

District Consumer Court

Up to Rs 20 lakh

State Commission

Rs 20 Lakhs to Rs 1 Crore

National Commission

Above Rs  1 crore

All the complaints against the doctor and the hospitals should have an expert
certificate/opinion from the doctors of concerned speciality, stating that the complaint is
prima facie true and needs further investigations.  In the absence off such certificate the
complaints against the doctors/hospital are usually not admitted.  Therefore the consumers
must have all relevant medical records.  The expert opinion can be obtained with the help of
Consumer Organisation in your area. ACASH along with the Forum for Medical Ethics (FME)
has formed an expert panel to help the consumers.  It must also be remembered that a fine of
Rs 10,000/- can be imposed on the complainant under the Consumer Protection Act if the
complaint is found to be vexatious/false.  Though the Consumer Protection Act has time limit
of 120 days for disposal of cases, in reality, the cases take anywhere between 2 to 3 years for
disposal.
CIVIL COURTS:

The redressal of the patient’s complaints through the civil courts is lengthy, time consuming
and many times counterproductive.  There is a tremendous backlog of cases and the cases
take anywhere between 10 to 15 years to complete.

CRIMINAL COURTS:

The redressal of the complaints under criminal law is not very common and recourse to this
method should be taken only in exceptional cases.

RIGHTS OF THE PATIENT

Right to considerate and respectful care.

Right to information on diagnosis, treatment and medicines.

Right to obtain all the relevant information about the professionals involved in the
patient care.

Right to expect that all the communications and records pertaining to his/her case be
treated as confidential

Right to every consideration of his/her privacy concerning his/her medical care

programme.

Right to expect prompt treatment in an emergency

Right to refuse to participate in human experimentation, research, project affecting

his/her care or treatment.

Right to get copies of medical records

Right to know what hospital rules and regulations apply to him/her as a patient and
the facilities obtainable to the patient.

Right to get details of the bill.

Right to seek second opinion about his/her disease, treatment,etc.

RESPONSIBILITIES OF PATIENTS:

To faithfully undergo the agreed therapy.

To follow the doctors instructions diligently.

To take necessary preventive measures in case of infectious diseases as per the

doctors instructions.

To be aware that doctors and nurses are also human beings and are amenable to
mistakes and lapses.

To make the payment for the treatment, wherever applicable, to the doctors/hospital
promptly.

To respect the autonomy of the doctors and nurses.

To treat doctors and nurses with respect.

To be punctual to attend the clinics/hospital/dispensary for the treatment at the given

time.

To preserve all the records of one’s illness

To keep the doctor informed if the patient wants to change the hospital/doctor.ss.

Conclusion & Suggestions :-

Every kind of trade in human organs by unrelated donors for therapeutic purposes should
be banned.

Every kind of trade in human organs by unrelated donors for therapeutic purposes should
be banned.

Every person should have access to medicare facilities by qualified medical professionals in
the medical systems of their choice.

There must be public discussion of allotment of funds on a priority basis to new medical
facilities to cure communicable diseases that will bring down people's morbidities.

A public discussion of state funding of health care facilities in high-tech areas:

transplantation surgery, fertilisation techniques in reproductive medicine, and so on, should
be commenced.

The rights of terminally ill patients and AIDS patients should be defined.

Human genetic engineering and cloning should be kept under vigilance and control.

Adequate checks should be initiated to monitor whether: biomedical insights grant

physicians sudden new explanatory and technological powers, economic trends intensify
pressures to rationalise healthcare costs and develop utilitarian strategies. State political
forces must directly enlist the medical profession in an agenda of social and economic
transformation.