TEAM : E1A

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 Petitioner

1
 TABLE OF CONTENTS;

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

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

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

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

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

Issues Raised …………………………………………………………………………...…..9

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

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

I. The doctors have 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…………………………….11

A. Failed to fulfill ethical code of conducts……………………………………….11

B. Failed to ensure emergency medical services…………………………………..12

C. Medical negligence towards the patient………………………………………..13

D. Presence of mens rea. ……………………………………………………….…14

II. 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 the hospital has 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

2
 A. Non-Admission of Malfoy violated his Fundamental Rights………….…..…15

B. The Doctrine of Fundamental Rights ensures right to life to every

individual…………………………………………………………………………17

C. The actions of Christian Medical College Hospital and Nirula Hospital can be
held liable for the violation of following Treaties and conventions………………18

D. The hospital has responsibility to direct to require hospitals, clinics and doctors
to render immediate emergency medical services as a critically injured person has
brought to them…………………………………………………………………...21

Prayer………………………………………………..…………………………………….24

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

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 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

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.

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 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.

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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 .

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 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 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.

On 4th April 2019 Mr. malfoy lost his life due to the refusal of both the hospitals in
providing emergency treatment to the patient. Whereas 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) 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 the hospital has 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 denieal of treatment by Christian Medical College Hospital and Nirula Hospital
violates Sersai’s fundamental right conferred to every citizen of the country or state
through the Part III of Constitution of BAGIRIA. And the hospital has responsibility to
direct to require hospitals, clinics and doctors to render immediate emergency medical
services as a critically injured person has brought to them

11
 ARGUMENTS

1. The doctors have 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;
A. Doctors failed to fulfill ethical code of conducts;

The Bangladesh Medical and Dental Council Act,2010 deals with the matter of code of
conducts of the doctors which are a very important quality as a doctor.In exercise of the
powers of this Act conferred by the predecessor Act being the Medical and Dental Council
Act,1980, Bangladesh Medical Dental Council(BMDC) adopted the Code of Medical
Ethics(“Code”) 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”.1

The “International Code of Medical Ethics” was adopted by the General of the World
Medical Association and the main goal is to establish the ethical principles assembly the
physicians worldwide, based on his duties in general, to his patient and to his colleagues.
The WMA International Code of Medical Ethics states that, a physician shall be dedicated
to providing competent medical service in full professional and moral independence, with
compassion and respect for Human dignity.2

Here Mr. Hilson when took malfoy to the nearby Christian Medical College Hospital the
doctors are refused for his treatment. After that, Nirula Hospital doing the same thing. The
doctors of this hospital also refused to treat him and when Mr.Hilson request for an
ambulance they refused to provide this service which clearly shows the absence of the
ethical code of conducts. The doctors did not try to provide any treatment or any service
towards his patient and refused for treatment.3

1
Clause 5 of the Code of medical Ethics
2
WMA International Code of Medical Ethic
3
Compromise para 6

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B. Failed to ensure emergency medical services.
It's a duty of a doctor to provide emergency medical services. In the case of Syed
Saifuddin Kamal and BLAST v Bangladesh and others 2016 the honorable High Court
Division (comprising Justice Syed Refaa tAhmed and Justic Farid Ahmed) approved a
comprehensive set of guidelines which called “সড়ক দুর্ঘটনায় আহত ব্যাক্তির জরুক্তর সসব্া
ক্তনক্তিতকরণ ও সহায়তাকারীর সুরক্ষা প্রদান নীক্ততমালা,২০১৮" on facilitating emergency medical

services to the victims of road accidents and Good Samaritans. 4 With regard to the
provision no. 6.1 and 9.1 of the Guidelines, the Court made it mandatory for all public and
private hospitals to provide emergency medical services to the victims of road accidents,
even without the necessity of availing consent of the competent guardians or relatives.
Immediate treatment and safety of the injured person is more important than the consent of
the guardians or relatives.5emergency medical services.
So, the doctors are bound to give medical emergency services. But here Mr.Hilson was
continuously rejected from Christian Medical College Hospital and Nirula Hospital for
Malfoy treatment in a situation when he was critically injured in a road accident ,which
clearly shows the failure of the doctors to provide emergency medical services.6

Also, according to the ,Medical Practice and Private Clinics and Laboratories (Regulation)
Ordinance 1982,has to mandating the establishment of an emergency

Department in every private clinic and hospital can be found in section 9(d) and (e) which
provides that in order to get a license, the clinic must have “such Essential equipments as
are specified in schedule B” and “adequate supply of life-

Saving and essential medicines”. 7Also “সড়কদুর্ঘটনায় আহত ব্যাক্তির জরুক্তরসসব্া ক্তনক্তিতকরণ ও
সহায়তাকারীর সুরক্ষাপ্রদান নীক্ততমালা২০১৮" provision no 7.2 Stated that,If the concerned hospital

does not have full medical facilities or capacity the hospital authorities will record the
patient's physical condition and first aid information and transfer him / her to the hospital

4
SyedSaifuddin Kamal and BLAST v Bangladesh and others 2016
5
Provision 6.1 and 9.1সড়কদুর্ঘটনায়আহতব্যাক্তিরজরুক্তরসসব্াক্তনক্তিতকরণওসহায়তাকারীরসুরক্ষাপ্রদাননীক্ততমালা২০১৮
6
Compromise para 6
7
Section 9(d) and (e) the Medical Practice and Private Clinics and Laboratories (Regulation) Ordinance 1982

13
with appropriate medical facilities in order to provide better life saving treatment within
the golden hour.8

It’s astonishing that despite having everything in the Guideline and the Act,when
Mr.Hilson requested for an ambulance for the purpose of shifting Malfoy to the another
hospital despite Mr.Hilson being wiling to pay for this service The Christian Hospital
refuesed to provide and Ambulance for this purpose.9

C. Medical negligence towards the patient.

In our country doctor are said to be the second life to people by treating them or giving
medical aid to the ill people.but there are some cases where due to negligence in medical
treatment people died.

According to the Article 18 of the Constitution of Bangladesh provides improvement of

public health as among its primary duties,to ensure the health of Public.10

In the case of Dr. MohiuddinFarooque vs. Bangladesh & others,Writ Petition No. 1783 of
1999 the court treated it as ‘failure to perform their statutory and Constitutional duties to
ensure health services and medical care to the general public, arising out of the abstention
from duties by the striking doctors also emphasized that the willful absence of the doctors
of BCS (Health Cadre) as members of the Association from their statutory and public
duties caused threat to life and body of the public is of no legal effect.’ 11

In the following case Prof. Dr. MridulKanti Chakrabarty who was a teacher of University
of Dhaka died at the Labaid Cardiac Hospital, then a PIL filed by Advocate
MonzilMorshed, The High Court Division summoned the accused doctor and awarded
compensation of fifty Laces taka to the patient’s family then the Labaid hospital
immediately paid the compensation to the family of Professor.

Where the Constitution ensure to health and life despite of many people loss their life
because of medical negligence. Here Mr.Hilson when took malfoy to the Hospital,

8
Provision 7.2 সড়কদুর্ঘটনায়আহতব্যাক্তিরজরুক্তরসসব্াক্তনক্তিতকরণওসহায়তাকারীরসুরক্ষাপ্রদাননীক্ততমালা২০১৮
9
Compromise para 6
10
Article 18 of the Constitution of the People’s Republic of Bangladesh
11
Dr. MohiuddinFarooque vs. Bangladesh & others, Writ Petition No. 1783 of 1999

14
Malfoy's life would have been saved if the doctor had not refused to do their duty where
medical negligence was found.

Earlier on July4,2011 Professor Abu Naser M Saleh,a professor of Phychology Department

of Rajshahi University died a Rajshahi Medical College Hospital almost without any
treatment in the hospital .Saleh was wrongly diagnosed at the emergency department of the
hospital where he was taken with chest pain and referred him to respiratory unit instead of
cardiology department. 12 Malfoy,a bus helper,also died without any treatment in the
hospitals and doctors. The doctors of both hospitals are refused to treatment and instead of
any treatment or emergency Medical services advised Mr. Hilson to take the patient to
Dennos Medical College Hospital(DMC),which is the clear scenario of medical negligence
,resulting in Lost his life.13

Also, according to the Penal Code,1860 sction 304A ,Whoever causes the death of any
person by doing any rash or negligent act not amounting to culpable homicide shall be
punished with imprisonment of either description for a term which may extended to[five]
years,or with fine,or with both. 14 This includes the negligence of a doctor which is a
punishable offence under the Code.

D. Presence of mens rea.

Mens rea refers to criminal intent. The Supreme Court of United States instituted that
federal criminal statutes without a requisite mental state “should be read to include only
that mens rea which is necessary to separate “wrongful from innocent conduct”

In Staples v. United States ,511 US 600 (1994) a mens rea refers to the state of mind
statutorily required in order to convict a particular defendant of particular crime.15

The ingredient of mens rea exist where there is a charge of criminal negligence. In the case
of Mahadev Prasad Kaushik v. State of U.P.,(2008) , the patient came to Doctor with
complaint of body pain. The doctor administered him three injections within half-an-hour

12
Sheikh Mohammad Towhidul Karim,[Lecturer,Department of Law],International Islamic University
Chittagong,Daily Star,6th July 2011
13
Compromise para 6
14
The Penal Code,1860 sction 304A
15
Staples v. United States ,511 US 600 (1994)

15
the patient died. His illness was not capable of causing death. It was held no summons
would have been necessary under section 304 but for the offence under section 304A,issue
of summon was necessary.16 Since it is criminal negligence there is mens rea presence.

So,when Mr. Hilson took Malfoy to the Christian Medical College Hospital the Doctors
are refused for treatment and after that Nirula Hospital doing the similar Thing. Here we
can see the presence of mens rea because if the doctors had no Mens rea then they at least
would give primary medical service but they did Nothing. Even they refused to provide an
ambulance for the purpose of shifting Malfoy to another hospital for treatment.17 They are
totally refused to provide any service and treatment which is a sign of criminal negligence
which shows the presence of mens rea because of which Malfoy lost his precious life.

2. 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 the hospital has 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. Non-Admission of Malfoy violated his Fundamental Rights

● Violation of Right to Life According The Constitution of BAGIRIA:

In Article 32 of the Bagiria constitution ensures every person right to life and personal
liberty. Both the terms, life and personal liberty has been given a very expansive and wide
amplitude covering a variety of rights. Its deprivation is only possible through the
procedure established by law. The expression “life” has been broadly interpreted by the
Supreme Court, which has given it, an expansive scope.

On 4th April 2019 Mr. malfoy lost his life due to the refusal of both the hospitals instead
of giving proper treatment to the patient. The medical profession is considered a noble
profession because it helps in preserving life. We believe life is God given. Thus, a doctor
figures in the scheme of God as he stands to carry out His command. Failure of a doctor

16
Mahadev Prasad Kaushik v. State of U.P,(2008)
17
Compromise para 6

16
and hospital to discharge this obligation is essentially a tortious liability. A tort is a civil
wrong (right in rem) as against a contractual obligation (right in personam) – a breach that
attracts judicial intervention by way of awarding damages. Thus, a patient's right to receive
medical attention from doctors and hospitals is essentially a civil right.18

In the case of Dr. Laxman Balkrishna Joshi vs. Dr. Trimbark Babu Godbole and
19 and 20
Another A.S.Mittal v. State of U.P., it was laid down that when a doctor is
consulted by a patient, the doctor owes to his patient certain duties which are: (a) duty of
care in deciding whether to undertake the case, (b) duty of care in deciding what treatment
to give, and (c) duty of care in the administration of that treatment.

In the case of Munn v. Illinoisi21, 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.

● Right to receive timely medical aid is warranted by Right to Life

The hospital also refused to provide treatment and an ambulance when requested for this
purpose despite Mr. hilson being willing to pay for this service. The Medicals did not give
proper treatment which is warranted by right to life . 22

In the case of Paschim Banga Khet Mazdoor Samity &Ors v State of West Bengal (1996)
4 SSC37: The petitioner sustained serious injuries after falling off a train. He was refused
treatment at six successive State hospitals because the hospitals either had inadequate
medical facilities or did not have a vacant bed.

18
Compromise para 8
19
AIR 1969 SC 128
20
AIR 1989 SC 1570,
21
94 U.S. 113 (1876)
22
Compromise para 6

17
The supreme court of India affirmed the state liability of ensure aid to the hospital run by
the state and issued seven directives for improving health service in government hospitals
and medical centers.23

B. The Doctrine of Fundamental Rights ensures right to life to every individual

The doctrine of fundamental rights is feature of United States law under which certain
human rights that enshrined in the US constitution are given a high degree of judicial
deference in conflicts between individual liberty and governmental intrusion. The term
fundamental right is a technical one, for when certain human rights are written down in a
constitution and protected by constitutional guarantees they are called fundamental rights.
They are called fundamental rights in that sense that they are placed in the supreme or
fundamental law of the land which has a supreme society over all other law of the land.

In those cases, the Supreme Court has granted relief both in case of tortious liability arising
from exercise of sovereign power and in case of violation and infringement of the
fundamental right guaranteed in the Constitution of India. In the case of Rudul Sah v.
State of Bihar 24 , the Supreme Court has awarded damages for infringement of
fundamental right under Article 32 of the Constitution of India. Following the aforesaid
decisions subsequently the Supreme Court is of consistent view which is completely
departure from the principle laid down in the earlier Supreme Court decision in the case of
Kasturi Lal Ralia Ram Jain v. State of U.P.25, that where on account of tortuous act of the
sovereign State a person's fundamental right to life and liberty was violated the Court will
grant compensation for damages suffered by that person. The liability is based on the
provisions of the Constitution and is a new liability, which is not hedged in by any
limitation including the doctrine of 'sovereign immunity'.

It seems the learned trial Judge has been influenced and/or swayed by the large number of
Supreme Court's decisions while awarding damages not only against the respondent No. 1
but also against the respondent No. 2 personally. The Supreme Court in its various
decisions has awarded exemplary damages not only against the Government but the person

23
Page-194 of EkramulHaque
24
(1983 Cri LJ 1644)
25
Kasturilal Ralia Ram Jain v State of Uttar Pradesh 1965 AIR 1039

18
involved in action or omission in violation of fundamental right guaranteed under Part III
of the Constitution of India.

To our mind the learned trial Judge with great respect, fell in error, for His Lordship has
misapplied remedy in public law field, in pure case of private law field. In our view the
superior Court can grant exemplary relief against the wrongdoer only in clear case of
infringement of Fundamental Rights and not otherwise. We shall now analyse the cases on
which the learned trial Judge relied heavily while granting relief.

In case of Peoples' Union for Democratic Rights V. State of Bihar26 the Supreme Court
granted compensation for death of 21 people who assembled for holding a peaceful
meeting at a place in Bihar and without any justification the police opened fire and as a
result whereof they died. So this compensation was awarded because of death of those
people which amounted to infringement of fundamental right.

In another case of Peoples' Union for Democratic Rights V. Police Commissioner 27 ,

Delhi Police Headquarters the Supreme Court granted compensation against illegal and
unauthorized act of the police officials for forcing the laborers to do hard work without any
payment and further outraging of modesty of women laborers. No doubt, it was a case of
infringement of Fundamental Right as guaranteed under Article 21 of the Constitution of
India.

C. The actions of Christian Medical College Hospital and Nirula Hospital can be held
liable for the violation of following Treaties and conventions:

On 30th March 2019, mr. malfoy a resident of calbiri in Dennos, who was critically injured
when a bus ran over him on the Airport Road, Dennos. He was taken to a nearby hospital
by a common people named Mr. hilson, who was witness of the accident. He took malfoy
to nearby Christian Medical College Hospital but the doctors refused for his treatment. Mr.
hilson accompanied by the other man then drove on the other private hospital named
Nirula hospital; however, The doctor in this latter instance checked the patient but refused
to treat him, even when the Mr. hilson stated that he would bear the costs of treatment, and

26
Peoples' Union for Democratic Rights vs. State of Bihar, (1987) 1 SCC 265: AIR 1987 SC 355
27
1990 ACJ 192, (1989) 4 SCC 730

19
instead advised Mr. Hilson to take the man to the Dennos Medical College Hospital
(DMC). The Chritian hospital also refused to provide an ambulance when requested for
this purpose despite Mr. hilson being willing to pay for this service. Which shows their
negligence or breach of duty of care by Medica Hospital.28

●Violation of Human Rights Act 1998:

In Article -02 of human rights Act-1998 define right to life means that nobody, can try to
end your life.

In the case of Smt. Gain Kaur v. State of Punjab29,

The Supreme Court of India has not only reiterated that right to life includes right to
dignity but also it has held that this expression means the existence of such a right up the
end of natural life.
●Violation of ICCPR 1976:
In Article -06 of ICCPR – 1976 provided that “Every human being has the inherent right
to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”
●Breach of Duty of care by Medical:
Negligence may define as the breach of duty, caused by the omission to do something
which a reasonable man considers which ordinarily regulate the human affairs.
●Standard of degree of care:
By which one can determine whether a person has been guilty of negligence is the conduct
of a prudent man in the particular situation. The prudent man is the man who has acquired
the skill to do the act.

In the case of Rudul Sah v. State of Bihar, (1983 Cri LJ 1644) the Supreme Court has
awarded damages for infringement of fundamental right under Article 32 of the
Constitution of India.

28
Compromise para 6
29
(1996) SCC (2) 648

20
Following the aforesaid decisions subsequently the Supreme Court is of consistent view
which is completely departure from the principle laid down in the earlier Supreme Court
decision in the case of Kasturi Lal Ralia Ram Jain v. State of U.P., that where on account
of tortious act of the sovereign State a person's fundamental right to life and liberty was
violated the Court will grant compensation for damages suffered by that person. The
liability is based on the provisions of the Constitution and is a new liability, which is not
hedged in by any limitation including the doctrine of 'sovereign immunity'.

●Violation of Procedural law (The Penal Code 1860):

Section 304 A of The Penal Code,1860 provides penalty regarding “Causing death by
negligence”-
Whoever causes the death of any person by doing any rash or negligent act not amounting
to culpable homicide shall be punished with imprisonment of either description for a term
which may extend to 3[five] years, or with fine, or with both.

●Violation of UDHR:

According to the Article 25 of UDHR , everyone has the right to a standard of living
adequate for the health and well-being of himself and of his family, including food,
clothing, housing, and medical care and necessary social services, and the right to security
in the event of unemployment, sickness, disability, widowhood, old age or other lack of
livelihood in circumstances beyond his control.

●Violation of ICESCR:

ICESCR in its Article 11 & 12 recognize the right of everyone to an adequate standard of
living for himself and his family, including adequate food, clothing, and housing, and to
the continuous improvement of living conditions. And everyone has the right to enjoy the
highest attainable standard of physical and mental health.

D. The hospital has responsibility to direct to require hospitals, clinics and doctors to
render immediate emergency medical services as a critically injured person has
brought to them;
21
●Every doctor must attend

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, There was already shortage of doctors at the hospital. 30

A doctor is at risk of being professionally or criminally responsible if he or she fails to

render prompt and appropriate medical care to any person (whether the patient is a current
patient or not), in a medical emergency. A doctor who chooses not to attend must have
good reason and be able to defend this position at a later time.

A recent opinion from the Health and Disability Commissioner found the medical
practitioner did not breach the Code when he was unavailable to attend an emergency.
When the person called the medical practitioner the phone was answered by an
answerphone explaining the medical practitioner was off duty and that in an emergency the
caller should attend the closest hospital. The HDC accepted that the medical practitioner
had worked long hours that day. The medical practitioner was exhausted and therefore it
31
would have been unsafe to expect the medical practitioner to practise in this state.

●The legal position

The Code Health and Disability Services Consumers’ Rights (HDC Code) states under
Right 4(2) that every consumer has the right to have services provided in a manner that
32
comply with legal, professional, ethical and other relevant standards.

Under sections 151 and 160 of the Crimes Act 1961, everyone who has charge of any
other person by reason of sickness (which may include a doctor asked to look after a
person in a medical emergency), has a legal duty to provide the necessaries of life to that
personv. If that person’s life is endangered, or health is permanently impaired as a result
of a doctor’s failure to fulfil this duty, and there is no lawful excuse, a doctor may be
33
criminally liable and subject to imprisonment for a term not exceeding seven years.

30
Compromise para 10
31
Health and Disability Commissioner
32
The Code Health and Disability Services Consumers’ Rights
33
the Crimes Act 1961

22
Failure to fulfil this duty must involve a major departure from the standard of care
expected of a reasonable person. Instant decisions may have to be taken in an emergency,
and that is a factor when deciding whether there has been a failure to meet the appropriate
professional standard .

In the case of A v M B Bottrill ,Exemplary damages may be granted in the case where the
level of negligence is so high that it amounts to an outrageous and flagrant disregard for
the patient’s safety, meriting condemnation and punishment.34

●Informed consent and emergencies

Right 7(4) of HDC Code states that if the patient is not competent to make an informed
choice and give informed consent, and no person entitled to give consent on behalf of the
patient is available, a doctor may provide services without obtaining the informed consent
of the patient when: (a) it is in the best interests of the patient; and (b) reasonable steps
have been taken to ascertain the views of the patient; and either (c) the provider believes,
on reasonable grounds, that the provision of the service is consistent with the informed
choice that the patient would have made if he or she were competent; or (d) if the patient’s
views have not been ascertained, the provider takes into account the views of other suitable
people who are interested in the welfare of the patient and available to advise the provider.

Clause 3 of the HDC Code states that a provider is not in breach of the Code if the provider
has taken reasonable actions in the circumstances to give effect to the rights, and comply
with the duties of the Code. It also states ‘the circumstances’ means all the relevant
circumstances, including the consumer's clinical circumstances and the provider's resource
35
constraints.

Therefore, Nirula hospital said, There was already shortage of doctors at the hospital.But a
doctor may not need to obtain consent before providing emergency services. This would
be one example of a situation where Clause 3 of the HDC Code would apply. However,
only necessary treatments should be provided. Where time is of the essence and delay to
obtain consent would be considered unreasonable or further threaten the patient’s well-

34
A v M B Bottrill [2002] UKPC 44.
35
Health and Disability Commissioner

23
being, a doctor may take action without actively seeking the patient’s consent. As with
any other health service, a competent patient has the right to decline treatment, even in an
emergency.36

36
Health and Disability Commissioner

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 PRAYER

Mr. Hilson respectfully request to adjudge and declare that:-

I) 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) 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 the hospital has 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,

Mr. Hilson

25