TEAM : E1R

THE SUPREME COURT OF BAGIRIA

DENNOS, BAGIRIA.

VIRTUAL MOOT COURT COMPETITION BY BLLSA 2020-2021

Mr. HILSON

(PETITIONER)

VS.

STATE OF BAGIRIA

(RESPONDENT)

Memorandum for Respondent

1
 TABLE OF CONTENTS

Table of Contents…………………………………………………………………………...2

Table of Abbreviations……………………………………………………………………...4

List of Authorities……………………………………………………………………….…4

Statement of Jurisdiction……………................................................................................... 5

Summary of Facts…………………………………………………………………………...6

Issue Raised ………………………………………………….……………………………..9

Summary of Arguments………………………………………..……………….…………10

Arguments……………………….………………………………………………………...11

I. The doctors aren’t failed to fulfill the ethical code of conducts and did not fail to
ensure the provision by existing hospitals and clinics for government and private
hospitals of emergency medical services to critically injured person………….……..11

A. The Doctors are not violated code of conducts ………………………………11

B. B. The hospitals hasn’t any Mens rea……………………………………………..11

C. Act done in good faith………………………………………………………….12

D. Right to ensure life of doctors………………………………………………….13

E. Though sufficient medical service absent in the country but try to best to save
Malfoys life ……………………………………………………………………….14

F. Government Restrictions……………………………………………………………....14

2
II. The Non-admission of Malfoy had not violated his fundamental right(s) and both
Christian Medical College Hospital and Nirula Hospital cannot be held liable for the
violation of fundamental right and the hospital hasn’t responsibility to direct to require
hospitals, clinics and doctors to render immediate emergency medical services as a
critically injured person has brought to them.………………………………………….... 15

A. Christian Medical College Hospital and Nirula Hospital didn’t Violate their
Obligation under the Constitution………………………………………………...15

B. An act itself does not constitute guilt, if it is done without guilty intention…....16

C. The hospital has not any responsibility to direct to require hospitals, clinics and
doctors to render immediate emergency medical services as a critically injured
person has brought to them………………………………………………………..19

Prayer…………………………………………………………………………………….21

3
 TABLE OF ABBREVIATIONS;

● MOHFW- Ministry of Health and Family Welfare

● HRD- Human Resource Development
● HPNSDP- The Health,Population and Nutrition Sector Development Program
● HRH- Human Resources for Health
● WHO- World Health Organization
● DMC- Dennos Medical College Hospital
● BMDC- Bangladesh Medical Dental Council
● WMA- The World Medical Association
● BCS- The Bangladesh Civil Service
● ICCPR- International Covenant on Civil and Political Rights
● UDHR- Universal Declaration of Human Rights
● ICESCR- International Covenant on Economic, Social and Cultural Rights
● HDC- The Code of Health and Disability Services

4
 INDEX OF AUTHORITIES
Laws of Bagaria:
1.The Medical Practice and Private Clinics and Laboratories (Regulation)
Ordinance,1982
2. The Constitution of the People’s Republic of Bagaria
3. The Penal Code,1860
4. The Bagaria Medical and Dental Council Act,2010
5. The Crimes Act ,1961
6.the Infection Diseases (Prevention,Control and Eradication) Act,201

Books:-
● The Constitution of the Peoples Republic of Bangladesh by Kamal Hossain .
●.Constitution, Constitutional Law and Politics: Bangladesh Perspective by MD.
Abdul Halim
● Ratanlal and Dhirajlal’s the Penal Code by K.Kannan, A.Prakash

5
 Statement of Jurisdiction;

It is most respectfully submitted that The High Court Division is empowered with writ
jurisdiction by Article- 44 and Article-102 of the Bangladesh Constitution. Article-44(1) of
the Constitution, declares that right to move to the Supreme Court, in accordance with
clause (1) of Article-102, for the enforcement of fundamental rights conferred by part-
(iii)III is guaranteed.
According to Article-102(1) the High Court Division for the enforcement of fundamental
rights may give directions or orders to any person or authority, including any person
performing any function in connection with the affairs of the Republic for the enforcement
of fundamental rights. Article-102(2) of the Constitution defines various kinds of writ
jurisdictions but it does not mention the names of the writs. However, but by analyzing this
Article, all the writ jurisdictions can be found. According to Article-102(2) the High Court
Division may, if satisfied that no other equally efficacious remedy is available-
a. on the application of any aggrieved person, may make an order - (i) directing
any person performing any functions in connection of the Republic or of a local
authority to refrain from doing that which he is not permitted by Law to do -
this is clearly the Writ of Prohibition. or to do that which he is required by law
to do - this is the Writ of Mandamus.(ii) declaring that any act done or any
proceedings taken by a person performing functions in connection with the
affairs of the Republic or of a local authority has been done or taken without
lawful authority, and is of no legal effect - this is the Writ of Certiorari

There is also codification of writ which is PIL(public Interest Litigation ) which means
litigation filed in a court of law for the protection of public interest . In this writ Mr.
Hilson expressed his willingness to move to the High Court Division of the Supreme Court
of Bagiria with a Public Interest Litigation against the hospital authorities including the
Ministry of Health for violation of a citizen’s right to public health.

The Constitution of Bagiria, International obligation & Laws of Bagiria are similar with
that of the People’s Republic of Bangladesh.

6
 Summary of Facts ;

1) Bagiria is the eighth-most populous country in the world, with a population exceeding
162 million people in South Asia. In terms of landmass, Bagiria ranks 92nd, spanning
148,460 square kilometres.Dennos, the capital and largest city in Bagiria and it is the
nation's economic, political, and cultural huh. Chitanos, the largest seaport, is the second-
largest city.

2) Bagiria suffers from both a shortage of and geographic mal-distribution of HRH. There
are an estimated 3.05 physicians per 10,000 population and 1.07 nurscs per 10,000
population (estimates based on MOHFW HRD 2011). There is a severe gap between
sanctioned and filled health worker positions: 36% vacancy in sanctioned health worker
positions and only 32% of facilities have 75% or more of the sanctioned staff working in
the facilities (World Bank, 2009), 28% of treatment provided in government health
facilities is through alternative medicine (Ayurveda, Unani, and Homeopathy), yet as of
June 2011, there was a 50% vacancy rate for alternative medicine providers (MOHFW
AMC 2011).

3) Major challenges include: an overly- centralized health system, weak governance

strucrure and regularory framework, weak management and institutional capacity in the
Ministry of Health and Family Welfare (MOHFW), fragmented public service delivery,
inefficient allocation of public resources, lack of regulation of the private sector which
employs 58% of all physicians, shortage of HRH, high rurnover and absenteeism of health
workers, and poor maintenance of health facilities and medical equipment.

4) Despite these challenges and the fact that HRH was not considered a priority in the
current sector program, there have been recent successes including: increase in the number
of graduates and health worker training facilities, and an increased number of rural health
facilities. A comprehensive HRH strategy is currently being developed by the Human
Resource Development Unit of Ministry of Health & Family Welfare, Bagiria Secretariat
(MOHEW). The MOHFW prepared its new sector program the Health, Population and
Nutrition Sector Development Program (HPNSDP) and is revising its draft National Health
Policy, based on lessons learned from previous programs.

7
5) On 12th December 2018, a contagious respiratory and vascular disease caused by
severe acute respiratory syndrome canilavirus2 (SARS CoV-2) in Chilia was first reported
to the WHO Country Office. Chilia was a neighboring country of Bagiria. The outbreak of
canliavirus was declared a Public Health Emergency of International Concern on 20th
December 2018. WHO announced a name for the new canilavirus Canilal-19,Bagiria
announced the first confirmed canila virus case in the country after 15 people tested
positive for the infectious virus in the capital Dennos on 2nd March, 2019. The country
crossed around 19,378 confirmed cases till 5h April, 2019 with 322 death cases. The whole
country was facing a situation of medical emergency and more than 250) health care
service providers already infected with the virus.

6) On March 30, 2018, Mr. Malfov, a resident of Calabria, Denos, was seriously injured
when he was sprayed on Airport Road in Denos. Mr. Hilson, a witness to the accident,
was taken to a nearby Christian hospital. However, the doctors refused to treat him. Mr.
Hilson accompanied by the other man then drove on the other private hospital named
nirula hospitals ; However, this subsequent physician examined the patient but refused to
locate him, even when Mr. Hilson said he would bear the cost of treatment and instead
advised Mr. Hilson to take the man to Denos Medical College Hospital (DMC). Mr Hilson
agreed to pay for the service,Nirula hospital refused to provide an ambulance.

7) Mr. Hilson went to the nearcst Police Station, from where a Sub-Inspector accompanied
him to a government hospital, the Kirronia General Hospiral, where the critically injured
man was declared dead on arrival at around 9.45 pm.

8) On 4 April 2019 Mr. Hilson claimed that Mr. malfoy lost hid due to the refusal of both
the hospitals in providing emergency treatment to the patient. In the meantime, Mr. Hlilson
contacted a lawyer and expressed his willingness to move to the High Court Division of
the Supreme Court of Bagiria with a Public Interest Litigation against the hospital
authorities including the Mlinistry of Health for violation of a citizen's right to public
health.

9) Almost all the media and newspapers of the country published news about the incident.

8
10) The Christian hospital later stated that the assigning doctors for emergency patient
was not available at that moment as the country was a medical emergency at that moment .
Also , Nirula hospital said , they did not refused for his treatiment There was already
shortage of doctors at the hospital . The hospital also mentioned that they tried best to help
them but there was no available ambulance that time . The ambulance petitioner was
talking about was assigned for another emergency canila -19 patient .

11) The government declared a days lockdown from 54 April , 2019 to 254 April , 2019.
The Supreme Court authoritics on 7h April , 2019 issued a declaration of closure for all
courts in Bagiria till April 30 " due to the global canilavinis outbreak . Later , on 31 " April
, 2019 the Supreme Court announced that it would reopen from 3-4 May , 2019 in a limited
capacity to cnsure that people were able to approach the court with their most urgent
matters , keeping in mind social discancing policies .

9
 Issues Raised

I) Whether, the doctors are failed to fulfill the ethical code of conducts and failure to
ensure the provision by existing hospitals and clinics for governmental or private
hospitals of emergency medical services to critically injured persons?

II) Whether, non-admission of Malfoy violated his fundamental right(s) and both Christian
Medical College Hospital and Nirula Hospital can be held liable for the violation of
fundamental right and whether, the hospital has any responsibility to direct to require
hospitals, clinics and doctors to render immediate emergency medical services as a
critically injured person has brought to them?

10
 Summary of Arguments

I) The doctors aren’t failed to fulfill the ethical code of conducts and did not fail to
ensure the provision by existing hospitals and clinics for government and private
hospitals of emergency medical services to critically injured person.

The Christian hospital later stated that the assigning doctors for emergency patient was
not available at that moment as the country was a medical emergency at that moment.
Also, Nirula hospital said, they did not refused for his treatment. There was already
shortage of doctors at the hospital. The hospital also mentioned that they tried best to
help them but there was no available ambulance that time. The ambulance petitioner
was talking about was assigned for another emergency canila-19 patient
II) Non-admission of Malfoy had not violated his fundamental right(s) and both
Christian Medical College Hospital and Nirula Hospital cannot be held liable for
the violation of fundamental right and the hospital hasn’t responsibility to direct
to require hospitals, clinics and doctors to render immediate emergency medical
services as a critically injured person has brought to them;

Christian Medical College Hospital and Nirula Hospital is not violated the fundamental
right of Malfoy because Necessitas non habetlegem which means necessity knows no
law. A maxim meaning that the violation of a law may be excused by necessity and
actus non facitreum, nisi mens sit re “an act does not make a person guilty unless the
mind be also guilty. The hospital is doing necessary action to save Malfoys life .

11
 Arguments

1. The doctors aren’t failed to fulfill the ethical code of conducts and did not fail to
ensure the provision by existing hospitals and clinics for government and private
hospitals of emergency medical services to critically injured person.

A. The Doctors are not violated code of conducts :

The doctors mentioned that they did not refused for his treatment. There was already
shortage of doctors at the hospital. they tried best to help them but there was no available
ambulance that time. The ambulance petitioner was talking about was assigned for another
1
emergency canila-19 patient.

In exercise of the powers conferred by the predecessor Act being the Medical and Dental
Council Act, 1980, adopted the Code of Medical Ethics. 2 It stated that the Code of
Medical Ethics to be followed by all registered medical and dental practitioners. Clause 5
of the Code states that, "Gross negligence in respect of his professional duties to his patient
may be regarded as misconduct sufficient to justify the suspension or the removal of the
name of a Medical/Dental practitioner from the Register".3

Therefore, Christian Hospital did not have enough doctors and a doctor from Nirula
Hospital checked the patient but referred the patient to another hospital for the betterment
as the condition was out of them. Doctors have not violated any ethical code of conduct
here, because they have done what they need to do in their place.

B. The hospitals hasn’t any Mens rea:

The Christian hospital later stated that the assigning doctors for emergency patient was not
available at that moment as the country was a medical emergency at that moment. Also,
Nirula hospital said, they did not refused for his treatment. There was already shortage of
doctors at the hospital. The hospital also mentioned that they tried best to help them but

1
Compromise para 10
2
Medical and Dental Council Act,1980;
3
Clause-5 of the Code of Medical Ethics.

12
there was no available ambulance that time. The ambulance petitioner was talking about
was assigned for another emergency canila-19 patient.4

The Legal Position,

According to section-80 of the Penal Code, 1860; Nothing is an offence which is done by
accident or misfortune, and without any criminal intention or knowledge in the doing of a
lawful act in a lawful manner by lawful means and with proper care and caution.

According to the Penal Code,1860; The criminal complaints for medical negligence can be
fail against doctors alleging commission of offences under section-304A which states
causing death by negligence or Sections-336 or 338 of the Penal Code,1860 alleging
rashness or negligence or act endangering life or safety or causing grievous hurt by the
doctors which result loss of life or injury of varying decree to the patient or cause hurt.5

However, Section 80 and 88 of the Penal Code contain defenses for doctors as an accident
in doing in lawful act or act done with good faith for accused of criminal liability. 6

Therefore, The hospitals had not any bad intentions. Because, According to the fact ,There
was already shortage of doctors at the hospital. The hospital also mentioned that they tried
best to help them but there was no available ambulance that time. The ambulance
petitioner was talking about was assigned for another emergency canila-19 patient.

C. Act done in good faith:

According to the fact, it shows that Christian Hospital first refused the patient because
they were not in a position to treat him at that time and the patient could seek treatment
elsewhere. A doctor at Nirula Hospital examined the patient and treated him well. He
referred another hospital for treatment because it was not possible for them to give
adequate treatment to the patient.7

4
Compromise para 10
5
Section -80,88,304A,336,338 of the Penal Code, 1860;
6
Section-88 of the Penal Code,1860;

7
Compromise para 6 and 10.

13
According to section-88 of the Penal Code,1860; Nothing, which is not intended to cause
death, is an offence by reason of any harm which it may cause, or be intended by the doer
to cause, or be known by the doer to be likely to cause, to any person for whose benefit it
is done in good faith, and who has given a consent, whether express or implied, to suffer
that harm, or to take the risk of that harm.

In NIR 1935, Allahabad 282, the court said that when a patient comes to the doctor for
treatment, the patient allows the doctor to do any work for his benefit. And in this case,
any work of the doctor will not be considered a crime.8

D. Right to ensure life of doctors:

The country crossed around 19,378 confirmed cases till 5th April, 2019 with 322 death
cases. The whole country was facing a situation of medical emergency and more than 250
9
health care service providers already infected with the virus.

According to Article 32 of the people’s Republic of BAGIRIA, it speaks of the right to

life. Since doctors are also human beings, they also have the right to life. Since there was a
pandemic situation at the time and many people were dying from the virus infection, it was
always risky for the doctor's life to be served in all situations, because the virus could be in
anyone's body and the person would actually be infected. In fact, there are a lot of elderly
doctors in our country. The elderly are more at risk of this virus. Although the ethical code
of conduct of doctors is to serve the patients. But they also have life.10

In the case of Munn v. Illinois the Court referred to the observation of Justice Field,
wherein he stated that by the term ‘life’ as here used something more is meant than a mere
animal existence. Thus, it embraces within itself not only the physical existence but also
the quality of life. 11

8
NIR 1935, Allahabad 282
9
Compromise para 5
10
Article 32 of people’s Republic of BAGIRIA
11
94 U.S. 113 (1876)

14
E. Though sufficient medical service absent in the country but try to best to save
Malfoys life .

According to the fact , It shows that the country is the most populated country. Where
many more people live than usual. In that country, there are approximately 3.05 physicians
per 10,000 population and 1.07 nurses per 10,000 population (estimates based on MOHFW
HRD 2011). And 36 % vacancy in sanctioned health worker positions and only 32 % of
facilities have 75 % or more of the sanctioned staff working in the facilities ( World Bank ,
2009 ) . 28 % of treatment provided in government health facilities is through alrernative
taedicine ( Ayurveda , Unani , and Homeopathy ) , yet as of June 2011 , there was a 50 %
vacancy rate for alternative medicine providers ( MoHFW AMC 2011 )

The medical facilities in that country are very bad and there is a shortage of doctors and
staff in the country long ago. In this case, it would not be a crime to have a shortage of
doctors in the hospitals, because it is a problem of the country. 12

However , there are some limitations in BAGIRIA which we can not be denied . According
to WHO expenditure on health sector should be $34 for per person . Which in our country
it is only $5. In BAGIRIA by the research of Who the ratio of doctors to Nurse is 1:0:48
where the standard ratio should be 13 . Both of this evidence we can not solve by overnight
.13

So where the ratio is low among the low ratio 250 health care service providers already
infected with the virus as well . For this reason There was shortage of doctors at the
country .Despite the shortage of doctors The hospital try to ensure the provision by
existing hospitals and clinics of emergency medical services to critically injured person. 14

F. Government Restrictions:

Public Health Emergency of International Concern on 20th December 2018. WHO

announced a name for the new canilavirus – Canila19. Bagiria announced the first
confirmed canila virus case in the country after 15 people tested positive for the infectious

12
Compromise para 1 and 2
13
http://askbd.org/ Report Medical Negligence accessed in 17th april 2017 by World Health Organization .
14
Compromise para 5 and 10

15
virus in the capital Dennos on 2nd March, 2019. The country crossed around 19,378
confirmed cases till 5th April, 2019 with 322 death cases. The whole country was facing a
situation of medical emergency .For the emergency the government has placed restrictions
for spreading the virus.

Section 5 (k) of the Infectious Diseases (Prevention, Control and Eradication) Act, 2018
states that the government directs the use of separate hospitals for infected people during
infectious diseases.

Not sure if Mr.X was infected with the virus but it took time to be sure. So the two
hospitals did not admit him.15

2. Non-admission of Malfoy had not violated his fundamental right(s) and both
Christian Medical College Hospital and Nirula Hospital cannot be held liable for
the violation of fundamental right and the hospital hasn’t responsibility to direct to
require hospitals, clinics and doctors to render immediate emergency medical
services as a critically injured person has brought to them;

A.Christian Medical College Hospital and Nirula Hospital didn’t Violate their
Obligation under the Constitution;

● Fundamental right is not absolute and qualified;

Despite There was already shortage of doctors at the hospital in emergency situation for
the new canilavirus – Canila19. The hospital tried best to help them but there was no
available ambulance that time. The ambulance petitioner was talking about was assigned
16
for another emergency canila-19 patient.

The very conception of a fundamental right is that it being a right guaranteed by the
Constitution cannot be taken away by the law, and it is not only technically inartistic but
a fraud on the citizens for the makers of a Constitution to say that a right is fundamental

15
Prevention, Control and Eradication Act,2018
16
Compromise para 10

16
but that it may be taken away by the law.17 But fundamental rights, if granted without any
qualification or limitation, may be harmful as absolutely free exercise of such rights by
one may be destructive of similar rights of other18 and such fundamental rights would be
a hindrance to governmental measures for the welfare of the community.

It is based on a Latin principle - Necessitas non habetlegem which means necessity

knows no law. A maxim meaning that the violation of a law may be excused by
necessity. This is not a rule of general application in eye of law, but it may be applied in
some exceptional cases for reasons of equity. Alternatively, it may be invoked for no
better reason than as a cynical excuse for departing from one’s legal obligations.

The First Amendment rights of the American Constitution were granted without any
qualification or limitation. The American Supreme Court, however, imported the concept
of 'police power', that is, the governmental power exercisable for the welfare of the
community, as a limitation on the exercise of such rights. Carefully considering the
operation of fundamental rights in the American and other jurisdictions, the framers of
the Indian and Pakistani Constitutions specifically provided for restrictions which can be
constitutionally imposed on the exercise of fundamental rights guaranteed by the
constitution.

B. An act itself does not constitute guilt, if it is done without guilty intention.

The Christian hospital later stated that the assigning doctors for emergency patient was
not available at that moment as the country was a medical emergency at that moment.
Also, Nirula hospital said, they did not refused for his treatment. There was already
shortage of doctors at the hospital. The hospital also mentioned that they tried best to
help them but there was no available ambulance that time. The ambulance petitioner was
talking about was assigned for another emergency canila-19 patient. So its clear that the
hospital had not any guilty intension . 19

17
DLR (SC) 21, PLD 1965 SC 527, 580
18
Maneka Gandhi v. India, AIR 1978 SC 597, 620
19
Compromise para 10

17
The director general adopted a first come first serve policy for the purpose of making a
competition in case of development of the country in terms of the allocation of gas fields
through lease agreements for a term of fifteen years. And this policy has been made in
good faith. That’s why it can be explained by the term of “an act itself does not constitute
guilt, if it is done without guilty intention”.20

In Britain and other common law jurisdictions there is a saying that, actus non
facitreum, nisi mens sit re “an act does not make a person guilty unless the mind be also
guilty.” In other words, simply doing something will not, in general, make a person a
criminal unless their intent was to do, or cause, a criminal act. It is this intention which
often establishes mensrea (literally the ‘guilty mind’) and turns the act into a crime. 21 In
this case, both Christian Medical College Hospital and Nirula Hospital didn’t do anything
in bad faith rather the hospital performed its obligation to protect its citizen and Medical
also denied to admit the patient in order to protect other patients from a potential Canine -
19 patient.

●The hospital actions were not abuse ofrights

Abuse of rights means that a state exploits its power to regulate for a purpose other than
that for which the right exists.22 Therefore, the reason behind an act, the intention of a
doer is of crucial importance. This is especially important and different from
expropriation, which may occur even in the absence of any intention of a state to
expropriate.23 However, under the circumstances, nothing indicates that Respondent had
any other intention than just that to serve its citizens. As a matter of fact, Respondent
gave clear instructions for the sole purpose of preventing its citizens from denial of
medical treatment, thus to take care of health of the people of Bagiria. To argue to the
contrary would be counter-factual, unjustified and unreasonable. These measures were
lawful according to law and were in compliance of an obligation of any responsible and
socially sensible government: to act in the best interest of its citizens.

●The hospital actions were not arbitrary

20
R v Moloney [1985] 1 AC 905.
21
Fagan v MPC [1969] 1 QB 439.
22
A. Newcombe, Investment Protection and International Law.
23
Azurix v Argentina, Award, 14 July 2006, 14 ICSID Reports 374

18
Arbitrarilymayberegardedasa"willfuldisregardofdueprocessoflaw,anactwhich shocks
or at least surprises, a sense of judicial propriety.” 24
According to Hamrock, a
measure would be deemed arbitrary if- (i) the action is not authorized bylaw, (ii) the
action is taken for an improper purpose; (iii) the action is taken because of irrelevant
circumstances and (iv) the action is patently unreasonable.25

Therefore , it is evident that Despite There was already shortage of doctors at the hospital
in emergency situation for the new canilavirus – Canila19. The hospital tried best to help
them but there was no available ambulance that time. The ambulance petitioner was
talking about was assigned for another emergency canila-19 patient. Conclusively, the
hospital is not liable for any alleged offence because the actions undertaken by hospital
were not arbitrary or discriminatory and did not constitute abuse of rights.

C. The hospital has not any responsibility to direct to require hospitals, clinics and
doctors to render immediate emergency medical services as a critically injured
person has brought to them;

● The hospital has responsibility to direct to require hospitals but it is limited in

case of emergency:

Public Health Emergency of International Concern on 20th December 2018. WHO

announced a name for the new canilavirus – Canila19. Bagiria announced the first
confirmed canila virus case in the country after 15 people tested positive for the infectious
virus in the capital Dennos on 2nd March, 2019. The country crossed around 19,378
confirmed cases till 5th April, 2019 with 322 death cases. The whole country was facing a
situation of medical emergency .For the emergency the government has placed restrictions
for spreading the virus.

Section 5 (k) of the Infectious Diseases (Prevention, Control and Eradication) Act, 2018
states that the government directs the use of separate hospitals for infected people during
infectious diseases.

24
Asylum Judgment, I.C.J.Reports 1950, p. 284
25
K.J. Hamrock, "The Elsi case: Toward an international definition of "arbitrary conduct" 1992, Texa J. Int'1
L 837 at 846

19
Not sure if Mr.X was infected with the virus but it took time to be sure. So the two
hospitals did not admit him.26

Therefore , Christian Medical College Hospital and Nirula Hospital both are dedicated to
give treatment for r the new canilavirus – Canila19.. For this reason The doctor in this
latter instance checked the patient, even when the Mr. hilson stated that he would bear the
costs of treatment, and instead advised Mr. Hilson to take the man to the Dennos Medical
College Hospital (DMC). The Chritian hospital also refused to provide an ambulance
because The ambulance petitioner was talking about was assigned for another emergency
canila-19 patient as it is dedicated it.

● Prohibition of Non-Canila certificate to attend any patient:

The argument of the hospitals that they need non-Canila certificate to attend any patient,
even a seriously ill patient needing emergency care, cannot be brushed off as the fear of
contamination, in case the patient is Covid-positive, may endanger the lives of other
patients.

Where whole country was facing a situation of medical emergency around 19378 people
and more than 250 health care service provider already infected with the virus. So,
admission of a patient without non-Canila certificate is danger for general patient.27

Legal Provision ,It is clearly said in clause-1 of article-15 of the Bangladesh Constitution,
the necessity of every people about medical care. The State should ensure a proper medical
care for every citizen. For this reason the state has given the responsibility to the hospital
to require hospitals, clinics and doctors to render immediate emergency medical services as
a critically injured person has brought to them unless its emergency .28

According to সড়কদুর্টনায়আহতব্যক্ত
ঘ িরজরুরীসসব্াননক্তিতকরণওসহায়তাকারীরসুরক্ষাপ্রদান

নীনতমালা,২০১৮, . it states that a hospital must screen and stabilize such injured persons and
then provide emergency medical treatment. After screening, if the hospital has no facilities,

26
Prevention,Control and Eradication Act,2018
27
Compromise para 5
28
Prevention, Control and Eradication Act, 2018

20
it must transfer the person to another hospital having necessary facilities at their own
duty.29

So, the hospital has no responsibility to direct to require hospitals, clinics and doctors to
render immediate emergency medical service as a critically injured person has brought to
them. Because they tried their best and when they failed to emergency service, they instead
30
advice Mr.Hilson to take the injured person to another hospital.

29
সড়কদুর্ঘটনায়আহতব্যক্তিরজরুরীসসব্াক্তনক্তিতকরণওসহায়তাকারীরসুরক্ষাপ্রদাননীক্ততমালা,২০১৮,
30
Compromise para 6

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 PRAYER

The People’s Republic of Bagiria respectfully request to adjudge and declare that:

I) The doctors aren’t failed to fulfill the ethical code of conducts and did not fail to ensure
the provision by existing hospitals and clinics for governmental or private hospitals of
emergency medical services to critically injured persons
II) Non-admission of Malfoy had not violated his fundamental right(s) and both Christian
Medical College Hospital and Nirula Hospital can be held liable for the violation of
fundamental right and the hospital has not responsibility to direct to require hospitals,
clinics and doctors to render immediate emergency medical services as a critically
injured person has brought to them.

Respectfully Submitted by,

STATE OF BAGIRIA

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