Kalinga University

Department of Law
Notes Unit -1

Course-LLB
Subject- Medical Jurisprudence
Subject Code – LLB4.2 Sem- 4th Sem

A. Introduction

Medico-legal is the term, which incorporates the basics of two sister professions i.e.
Medicine and Law. Everybody talks about the law but few, aside from lawyers, judges
and law teachers, have more than the vaguest notion of what constitutes law. The average
layman often has about as much accurate information about the law as he has about
medicine-or life on Venus. And, unfortunately, two professional groups suffer from more
ignorance of law and medicine than any other professional of any other field.

Those lawyers, who do not constantly deal with medical issues in their legal practice,
know very little about the medical profession and its problems; physicians frequently
comprehend too little about the law and how it affects them in the practice of their
profession. Medico legal experts can provide a link between these two professions for
their smooth and effective functioning in a scientific manner. The physician meets the law
at every turn. He confronts it when, as the treating doctor, he is subpoenaed as a witness
in a personal injury lawsuit; he meets it when his aid is sought as an expert in connection
with a claim that another member of his profession has been negligent and when he is
faced in his office or clinic by a narcotic addict, a man with a gunshot wound, or a young
couple seeking a blood test. He is face-to-face with the law when he is required to render
an aggravating array of governmental reports or to preserve physical evidence for the
benefit of a law enforcement agency. The physician, in fact, finds a great deal of the law
intensely irritating, often because he is not absolutely clear as to its purpose.
B. PRINCIPLES OF BRITISH LEGAL SYSTEM RELEVANT TO PRACTICE OF
MEDICINE

1. SELF-DETERMINATION:
The guiding principle of self-determination is the most simplistic of all the principles. The aim of
this principle, to protect the autonomy of the patient, is achieved through a strict enforcement of
the requirement of consent and, conversely, through the respect that is given to any refusal of
consent. This principle only applies, in its entirety, in relation to a competent adult patient whose
choices will not have adverse physical consequences for other people. The consideration for the
way others will be affected explains why certain procedures, such as the treatment of contagious
diseases, can never be effectively refused and why, if more than one adult patient is directly
involved, such as in artificial reproduction, the consent off all those individuals will be required
before the treatment can be lawfully administered. If there is a reasonable possibility that an adult
who has temporarily lost the ability to satisfy the competency requirements will regain that
ability, before the condition to be treated causes unreasonable harm, then the law will try to limit
what can be done to that patient whilst the incompetence continues. If the procedure suggested is
not urgently required then the respect for the patient’s autonomy, albeit temporarily suspended,
demands that it be delayed until the patient can decide the matter for himself. Only procedures
which cannot be delayed, without unreasonable consequences, can be lawfully administered
whilst the patient is incompetent.

2. ALLOWING TREATMENT:
Firstly the principle can be used to provide authorisation for medical treatment. This role can be
seen in relation to the treatment of both children and incompetent adults. It has been argued herein
that the concept of adolescent autonomy is not designed to give absolute effect to the developing
autonomy of a child as he approaches adulthood. Rather it is a tool whereby the possible sources
for consent are increased by giving the competent child the ability to provide that consent. In
order to permit treatment it is necessary to define what will be classed as medical treatment. In
doing this, the principle also defines what will not be seen as medical treatment and will,
therefore, be prohibited.

3. BEST INTERESTS:
The principle of best interests also operates upon two levels. The first, and perhaps the most
obvious, operates to justify a medical procedure on the basis that the interests of the patient
demand its administration. A reference to best interests will usually represent an application of the
principle of allowing treatment. Whenever the permissive element of the principle of allowing
treatment operates it does so in conjunction with a negative application of the principle of best
interests. This aspect of the principle looks at the interests of the patient in order to decide
whether or not the presumption in favour of allowing treatment should be rebutted. This will only
be the case in extreme scenarios, simply saying that the patient’s interests neither support nor
oppose treatment will be insufficient, as will be a slight opposition to treatment.

4. DOCTOR PROTECTION:
The guiding principle of doctor protection also consists of two very different aspects. The first,
and most controversial, is the protection of clinical judgement. This would seek to abdicate all
decisions to the medical profession without regard for whether or not the patient desired the
suggested treatment, or for the possibility that there may be another medical opinion which
contradicted the value of the treatment in question.

The secondary aspect of doctor protection, conversely, can be found in relation to every area of
the law. This aspect of the principle seeks to protect doctors from litigation which might
otherwise limit their ability to provide treatment. This principle is only applied in order to allow
doctors to give effect to the application of the other guiding principles and therefore does little to
decide whether or not treatment should be provided. Rather it offers protection from legal action
once the court has applied the guiding principles in the appropriate manner. An example of this
can be found in the requirement that certain, controversial, matters are always brought before the
court. The effect of this is to make it clear to all parties involved that the courts are in favour of
the application of treatment, or the withholding of treatment, and to remove the threat of future
litigation.

C. THE LAW OF EVIDENCE, CIVIL AND CRIMINAL PROCEDURE

In a criminal trial, in order to zero down on the relevant facts, the judge has to rely on the
knowledge and opinion of certain experts as he may not be in a position to appreciate the
technical details involved in a particular case. Evidence is given by the expert of the relevant field
in the form of his opinion which is based on the information that he has gathered from the facts of
the case. This evidence supplements the assertions of the judge and, together, they complement
each other and combine to from the basis of the judgment. However, the evidentiary value of the
opinion given by the expert is not unshakeable because of the discretionary power available to the
Court, which may choose to accept or reject it. This discretionary power in the hands of the Court
arises from Section 45 of the Indian Evidence Act, 1872, which, theoretically, gives a lesser
degree of importance to expert evidence by terming it as merely corroborative in nature.
The inter-action between Medicine and the Law has played the main role in the recent years.
Medical science gives clue as to how the death of the person, how the injury, was caused, while
the law prosecutes a person for killing and injuring other. The postmortem report, examination of
wounds, chemical analysis, the expert reports are admissible in the Court as an evidence
according to our legal system. The three main statutes, the Criminal Procedure Code 1973, the
Indian Penal Code (Act 45 of 1860), and Indian Evidence Act 1872, regulate our legal system in
the area of criminal justice and Criminal Jurisprudence. The importance of Medical Evidence at
present is an increasing tendency. The medical evidence includes doctor’s report of examination,
chemical analysis report, serologist, DNA (Dioxy-ribo-Neuclic Acid test).

Practically, the Court have always accorded due importance to expert evidence and there are a
plethora of judgments to substantiate this point. In cases of grave offences committed against
women, such as rape, murder and dowry burning, the role of medical evidence becomes crucial.
Medical evidence may be able to ascertain the cause of death but it is not possible to pinpoint with
precision, the exact means by which the cause of death was set into motion. The above discussion
highlights the indispensability of medical evidence in criminal trials involving grave offences
committed against women. The role of a medical man, in law, is to help in the administration of
justice. It is natural that in the course of his professional duties, he frequently enters the arena of
law, in examination of cases for age, the examination of injuries on the body of a person rape,
sodomy etc. He has to examine cases of poisoning, as also to observe and certify persons
regarding their sanity or insanity.

The legislature could not anticipate tremendous development of modern science. DNA technology
can revolutionize the criminal justice system. The code of criminal procedure (Amendment) Act
2005 incorporated new sections. S.53 A & S. 164 A relating to collection of DNA samples. S. 53
A authorizes the investigating officer to collect DNA samples with the help of medical
practitioners from the person accused of a rape case. S. 164 – A authorizes the investigating
agency to collect DNA samples from the victim of rape with the consent of such woman.
However, these provisions are not enough to meet the challenges before the court. There is a need
to enact a special law relating to DNA technology.

There is a possibility of having a conflict between right to privacy and DNA testing, however it
can be minimized by legislating proper laws, taking into consideration the examples of other
developed countries. The Government of India is a signatory to Universal Declaration on the
Human Genome and Human Rights 1997 and the Indian Parliament is duty bound to make
appropriate legislation and necessary amendments for the purpose of controlling the accessibility,
standard, quality and confidentiality of the genetic DNA information in administration of justice
of our country. In the Law Commission 185th Report – It is mentioned that there is a need to
insert the words in S.45 of Indian Evidence Act as ‘identify of persons or animals’. DNA may be
more useful for purposes of investigation.

D. DUTIES OF AN EXPERT WITNESS

The primary duty of an expert witness is to the court; this overrides any obligation to the
instructing and paying party or parties. Expert evidence should be independent, objective
and unbiased. In particular, an expert witness must not be biased towards the party
responsible for paying his fee. In providing a written report and oral evidence the expert
should be truthful as to fact, thorough in technical reasoning, provide his honest opinion
and ensure that the report is complete in its coverage of relevant matters.

The duties an expert witness owes to the court may sometimes conflict with those he
owes to the client. The most obvious example is when the expert’s conclusions contradict
the client’s case. If the client seeks to put pressure on the expert to alter his report or
suppress the damaging opinion the expert witness must resist such pressure, and if
necessary should terminate his appointment.

Nor should an expert witness ignore information that may come to light which is
damaging to his client’s case. There is always the risk that the other side will also be
aware of it. In any event, the expert’s duty to the court requires that his evidence is
complete in its coverage of relevant matters.

The expert witness should bear in mind that as well as his overriding duty to the court, at
the same time, when accepting instructions, he also assumes a responsibility to his client
to carry out his investigations with due care and to provide opinion evidence that is
soundly based. The expert should therefore only undertake instructions that he is
competent/qualified to carry out and only provide opinions that are within his area of
expertise. If a matter is outside his expertise he should state this.

Finally, expert witnesses should ensure that they are familiar with the provisions of Part
35 of the Civil Procedure Rules and the related Practice Direction as this sets out the
requirements that the expert must comply with when preparing his report, including the
form of the report.