Health Law Notes

UNIT I, II, III & V najarsaqibayoub@gmail.
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MEANING OF HEALTH
Different cultures have their own concept of health. The most ancient definition of health is
the ‘absence of disease’. In some cultures, health and harmony are considered equivalent, harmony
being defined as “being at peace with the self, the community, God and cosmos.” The World
Health Organization, 1948 has in its Constitution defined health as follows: “Health is a state of
complete physical, mental and social wellbeing and not merely an absence of disease or
infirmity.” This statement is amplified to include the ability to lead a “socially and economically
productive life.” The WHO definition of health is therefore considered by many as an idealistic
goal than a realistic proposition. It refers to a situation that may exist in some individuals but not
in everyone all the time; it is not usually observed in groups of human beings and in communities.
Some consider it irrelevant to everyday demands, as nobody qualifies as healthy, i.e. perfect
biological, psychological and social functioning. Hence the definition has been criticized in many
ways.
HEALTH LAW
For all aspects of health, there are binding rules that govern the rights and responsibilities of
governments, health workers, companies, civil society and a country’s population. Together these
rules make up the legal framework, or legal architecture for health. They take many forms
including: statutory laws, regulatory and administrative laws, contracts, case law, and customary
laws. Who is involved in making these rules, and the form they take, differs from country to
country. Thus we can say, that it is the branch of law dealing with various aspects of health care,
including the practices of caregivers and the rights of patients.
Health laws are used to formalize commitment to goals, such as the goal of universal health
coverage, creating a drive for action. To enable cooperation and achieve health goals, people use
law to create different organizations (such as hospitals) and relationships (such as contracts for
providing health services). In turn, organizations (whether health ministries, the private sector or
civil society) have mandates, policies and strategies based on legal rules that guide their work.
There are also many rules that structure what health organizations and individuals should do, and
what they may not do. This interaction between different health laws results in health system
functions being carried out and health products and services being delivered.
EVOLUTION AND DEVELOPMENT OF HELTH CARE SYSTEMS
There is a popular phrase in the Indian society: “Pahelu Sukh Te Jate Narya”. To enjoy the life,
a good health is a condition precedent. Human health care remain the first priority among others
in whole world. Various systems of medicine evolved over the centuries and have continued to be
practiced widely in India and elsewhere. Development and growth of medicine or science of life,
was adjuvant with the growth and evolution of Indian civilization and culture.
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UNIT I, II, III & V najarsaqibayoub@gmail.com
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AYURVEDA
Ayurveda is referred to as Mother of all healing. It is considered to be an oldest form of health care
in the world. . It is found in the Rig Veda and Atharva Veda describing various diseases and its
treatment by various plants and other materials. The most important and massive ancient
compilation of the School of Medicine is known as Charka Samhita. It contains several chapters
dealing at length with therapeutic or internal medicine. About 600 drugs of plant, animal and
mineral origin are described in it. Another equally exhaustive ancient compilation, Sushruta
Samhita exists relating to school of surgery. It deals primarily with various fundamental principles
and theory of surgery.
SIDDHA SYSTEM
Siddha system is another oldest system of medicine in India. The term Siddha means achievements
and the persons who practiced this type of medicine and achieved results were called Siddhars.
The principles and doctrines are similar to Ayurveda. This system of health care is prevalent in
Tamilnadu and some other parts of South India. It is an ancient traditional system of Indian
medicine developed by 18 Siddhars. According to the tradition, it was Shiva who unfolded the
knowledge of Siddha system of medicine to his concert Parvati who handed it down to Nandi Deva
and the Siddhars. This system believes that all objects in the universe including human body are
composed of five basic elements namely, earth, water, fire, air and sky. The food and the drugs are
all also made of these five elements. The Siddha system is capable of treating all types of diseases
other than emergency cases. It is effective in treating all types of skin problems particularly
Psoriasis, STD, urinary tract infections, diseases of liver and gastro intestinal tract, general
debility, postpartum anemia, diarrhea and general fevers in addition to arthritis and allergic
disorders.
UNANI TIBB – THE GREEK SYSTEM
Unani system of medicine is also the oldest one of medicine in the world. It is still popular &
practiced in India & other parts of the world. The scientists and experts of different countries have
contributed in development of Unani system. Unani medicine was originated in Greece and
Hippocrates (Buqrat 460-377 BC) was its founder, the great philosopher & Physician. He was the
first Unani Physician who opened the education of Medicine to all communities, so he is known
as the father of medicine. It was brought to India from West Asia around 10th Century A.D. by
the Muslim rulers and in 1351 AD by Arabs. The first known Hakim was Zia Mohd Masood
Rasheed zangi. Unani Medicine was accepted by the masses due to its efficacy and non-toxicity
of the drugs. After independence in 1964 Govt, of India constituted Unani pharmacopeia
Committee consisting of Unani experts and scientist with a view to maintain uniformity in the
standards of drugs and to prescribe standards for compound formulations. It also prescribed the
tests for identity, purity, efficacy and quality of the drugs. In order to develop high standards of
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education and research in Unani Medicine National Institute of Unani Medicine was established
at Bangalore in 1983. Now the Unani is an established Indian System of Medicine
YOGA
Yoga has its origins in the Vedas, the oldest record of Indian culture, thousand years ago. Its
founders were great Saints and Sages. The great Yogis gave rational interpretation at their
experiences about Yoga and brought a practically sound and scientifically prepared method within
every one’s reach. Yoga philosophy is an Art and Science of living in tune with Brahmand – the
Universe. It was systematized by the great Indian yogi Patanjali in the Yoga Sutra as a special
Darshana. Patanjali’s Yoga Sutra is certainly the most significant book which has touched almost
all the aspects of human life. Maharishi Patanjali is called the “Father of Yoga”.
HOMEOPATHY
The word ‘Homeopathy’ is derived from two Greek words, Homois meaning similar and pathos
meaning suffering. Homeopathy simply means treating diseases with remedies, prescribed in
minute doses, which are capable of producing symptoms similar to the disease when taken by
healthy people. It is based on the natural law of healing- “Similia Similibus Curantur“ which
means “likes are cured by likes”.
Homeopathy entered India in 1839 when Dr. John Martin Honigberger was called to treat Maharaja
Ranjit Singh, the ruler of Punjab, for paralysis of vocal cords and oedema. The Maharaja was
relieved of his complaints and in return he received valuable rewards and later on was made
officer-in-charge of a hospital. Dr. Honigberger later on went to Calcutta and started practice there.
This royal patronage helped the system to have its roots in India.
NATUROPATHY
The word “Naturopathy” has been coined by Dr. John Scheele in the year 1895 and was
propagated and popularized in the western world by Dr. Benedict Lust. Nature Cure movement
gained momentum in India as Mahatma Gandhi, “Father of the Nation” became much interested
in this system and included it in his programmes. He also established a Nature Cure Hospital in
Uruli Kanchan, Distt. Poona, Maharashtra which is still functioning. The credit of making Water
cure world famous goes to Vincent Priessnitz (1799-1851) who was a farmer and called
as “Father of Naturopathy”.
ACUPRESSURE
It is an ancient healing art, developed in Asia over 5000 years ago. It is done by using fingers to
press key points on the surface of the skin to stimulate the body’s natural self-curative abilities.
When these points are pressed, they release muscular tension and promote the circulation of the
blood and the body’s life force energy to aid healing.
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MAGNETIC- THERAPY
Magneto therapy is being increasingly used by practitioners and patients. This simple method is
an effective addition when a large part of the body is affected. It is one of the oldest natural methods
of therapeutic treatment and can be applied in many cases of acute and chronic pain as well as
many illnesses without any side effects. Many people are turning to natural therapy as an
alternative to traditional allopathic treatment with drugs and chemicals.
ALLOPATHY
Allopathy is also known as the Modern System of Medicine, developed in the West. A system,
which treats a disease with drugs having opposite effects to the existing symptoms. Each
successive discovery and development in Allopathy, is the result of extensive research. Each new
remedy has helped alleviate pain and suffering and increased the life span of people. Medical
research continues at a brisk pace, identifying unknown diseases and searching for their cures.
RIGHT TO HEALTH: AN INTERNATIONAL LEGAL PERSPECTIVE
The right to health is a fundamental human right recognized and protected under international law.
It is enshrined in various international instruments and treaties, reflecting the global consensus on
the importance of ensuring access to healthcare services and promoting the well-being of
individuals and communities. Some of the key international legal instruments providing right to
health either explicitly or implicitly are as follows:
1. Universal Declaration of Human Rights, 1948 (UDHR)

2. International Covenant on Economic, Social, and Cultural Rights, 1966 (ICESCR)
3. Convention on the Rights of the Child, 1989 (CRC)
4. ILO Convention No. 155 - Occupational Safety and Health Convention, 1981
5. Convention on the Elimination of All Forms of Discrimination against Women, 1979
(CEDAW)
6. International Convention on the Elimination of All Forms of Racial Discrimination, 1965
(CERD)
7. Convention on the Rights of Persons with Disabilities, 2006 (CRPD)
8. Declaration of Alma-Ata, 1978
9. Sustainable Development Goals, 2015 (SDGs)
Key Principles or Elements
The right to health is a fundamental human right recognized in international law. It has evolved
over time, with principles of universality, non-discrimination, accessibility, and quality at its core.
i. Universality and Equality: The right to health is universal, meaning it applies to all
individuals without discrimination. States are obliged to ensure that healthcare services are
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accessible, available, and of high quality for everyone within their jurisdiction, regardless
of race, gender, ethnicity, economic status, or any other characteristic.
ii. Non-Discrimination: States must take measures to eliminate discrimination in healthcare
access and provision. This includes addressing disparities in healthcare outcomes and
addressing the root causes of discrimination, such as social and economic inequalities.
iii. Accessibility: The right to health includes the right to access healthcare services without
discrimination, financial barriers, or other obstacles. States are expected to ensure that
healthcare facilities, goods, and services are physically and economically accessible to all.
iv. Availability: States must ensure the availability of essential healthcare services, including
healthcare facilities, trained healthcare professionals, medicines, and medical equipment.
They must also take steps to prevent healthcare shortages and maintain a functioning
healthcare infrastructure.
v. Quality: Healthcare services must be of a high quality, meaning they should be safe,
effective, and culturally appropriate. This includes regulating healthcare providers and
facilities to ensure standards are met.
vi. Participation and Accountability: States should involve individuals and communities in
healthcare decision-making and policy development. They must also establish mechanisms
for accountability, allowing individuals to seek redress if their right to health is violated.
International legal Framework
1. Universal Declaration of Human Rights, 1948 (UDHR): The right to health is rooted in
the Universal Declaration of Human Rights, adopted by the United Nations General
Assembly in 1948. Article 25 of the UDHR states that "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."
2. International Covenant on Economic, Social, and Cultural Rights, 1966 (ICESCR): The
ICESCR, adopted in 1966 and in force since 1976, is a key international treaty that recognizes
the right to health. Article 12 of the ICESCR explicitly recognizes "the right of everyone to
the enjoyment of the highest attainable standard of physical and mental health." It obliges
states to take steps to improve public health, prevent and control diseases, and provide
medical care.
3. Convention on the Rights of the Child, 1989 (CRC): The CRC, adopted in 1989,
emphasizes the right to health of children. Article 24 of the CRC recognizes the right of the
child to the enjoyment of the highest attainable standard of health and requires states to take
measures to reduce child mortality and ensure access to necessary health care.
4. ILO Convention No. 155 - Occupational Safety and Health Convention, 1981: This
convention sets out the general principles and framework for occupational safety and health
policies, programs, and practices. It emphasizes the responsibility of employers and
governments to ensure the safety and health of workers in the workplace. The convention
underscores the importance of protecting workers' physical and mental health.
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5. Convention on the Elimination of All Forms of Discrimination against Women, 1979

(CEDAW): CEDAW recognizes the right of women to access healthcare services, including
family planning, and calls on states to eliminate discrimination in the field of healthcare.
(Art.12)
6. International Convention on the Elimination of All Forms of Racial Discrimination,
1965 (CERD): CERD, in Article 5(e)(iv), requires states to ensure the right to public health,
medical care, social security, and social services for all without discrimination based on race,
color, or national or ethnic origin.
7. Convention on the Rights of Persons with Disabilities, 2006 (CRPD): Article 25 of the
CRPD recognizes the right of persons with disabilities to the highest attainable standard of
health without discrimination and calls for access to healthcare on an equal basis with others.
8. Declaration of Alma-Ata, 1978: The Declaration affirms the crucial role of primary health
care, which addresses the main health problems in the community, providing promotive,
preventive, curative and rehabilitative services accordingly (Art. VII). It stresses that access
to primary health care is the key to attaining a level of health that will permit all individuals
to lead a socially and economically productive life (Art. V) and to contributing to the
realization of the highest attainable standard of health.
9. Sustainable Development Goals, 2015 (SDGs): The United Nations' Sustainable
Development Goal 3 (SDG 3) explicitly aims to "ensure healthy lives and promote well-
being for all at all ages." Achieving this goal involves not only addressing health issues but
also addressing the social determinants of health, such as poverty, inequality, and access to
clean water and sanitation.
Right to Health vis-à-vis Indian Constitution
Right to health is not included directly in as a fundamental right in the Indian Constitution. The
Constitution maker imposed this duty on state to ensure social and economic justice. Part fourth
of Indian Constitution which is DPSP imposed duty on States. If we only see those provisions then
we find that some provisions of them has directly or indirectly related with public health. The
Constitution of India does not provides for the right to health as Fundamental Right. The
Constitution directs the state to take measures to improve the condition of health care of the people.
Thus the Preamble to the Constitution of India, inter alia, seeks to secure for all its citizens justice-
social and economic. It provides a framework for the achievement of the objectives laid down in
the Preamble. The Preamble has been amplified and elaborated in the Directive Principles of State
Policy.
Directive Principles of State Policy
Under Chapter IV of the Constitution, the Directive Principles of State Policy (DPSP) have the
ideals of the right to health under:
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 Article 38: It imposes liability on State that states will secure a social order for the
Promotion of welfare of the people but without public health we cannot achieve it. It
means without public health welfare of people is impossible;
 Article 39(e): Protecting the health and strength of people from abuse especially
workers;
 Article 39(f): Giving children facilities and opportunities to develop in a healthy

manner;
 Article 41: Imposes duty on State to provide public assistance in cases of sickness and
disability;
 Article 42: Ensuring just and humane conditions of work;
 Article 47: Raising the nutrition levels, improving the standard of living, and
considering the improvement of public health as the state’s primary duty; and
 Article 48A: Protecting and improving the environment.
Fundamental duty
Just as international conventions have put the supply of safe water and the prevention of pollution
as obligations of the States towards the right to health, the Constitution of India has also put a
similar fundamental duty on its citizens. As per Article 51A(g), protecting and improving the
environment is a fundamental duty. Safe water, a sanitary environment, and a non-polluted climate
are essential to the right to health. Protecting and improving the environment is an essential action
plan.
Panchayat, Municipality and Health
Not only the State but also Panchayat, Municipalities liable to improve and protect public health.
Article 233G states that “the legislature of a state may endow the panchayats with necessary power
and authority in relation to matters listed in the eleventh Schedule”. The entries in this Schedule
having direct relevance to health are as follows:
11. Drinking
23. Health and Sanitation including hospitals, Primary Health Centers and Dispensaries.
24. Family Welfare.
25. Women and Child Development
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26. Social welfare including welfare of the handicapped and mentally retarded.
Article 243-W/12 Schedule finds place in part IXA of the constitution titled “The Municipalities”:
5. Water Supply for Domestic industrial and commercial purpose.
6. Public health, sanitation conservancy and solid waste management.
9. Safeguarding the interest of weaker sections of society, including the handicapped and
mentally retarded.
16. Vital statistics including registration of births and deaths.
17. Regulation of slaughter houses and tanneries.
Right to Health as a Fundamental Right under Article 21
The DPSP are only the directives to the State. These are non-Justifiable. No person can claim for
non-fulfulling these directives. But the Supreme Court has brought the right to health under the
preview of Article 21. The role of Indian Supreme Court in protecting the health of the public at
large is noteworthy. The Supreme Court has repeatedly observed that the expression “life” in
Article 21 means a life with human dignity and not mere survival or animal existence (Francis
Coralie Mullin vs The Administrator, Union Territory of Delhi AIR 1981 746). Right to life has a
very broad scope which includes right to livelihood, better standard of life, hygienic conditions in
the workplace & right to leisure. Right to Health is, therefore, an inherent and inescapable part of
a dignified life. Article 21 should also be read in tandem with the directive principles of state
policy, cited above, to truly understand the nature of the obligations of the state in this respect.
In the case of Bandhua Mukti Morcha v. Union of India AIR 1984 SC 812, the Supreme Court
held that although the DPSP are not binding obligations but hold only persuasive value, yet they
should be duly implemented by the State. Further, the Court held that dignity and health fall within
the ambit of life and liberty under Article 21.
In the case of Paschim Banga Khet Mazoor Samity v. State of West Bengal (1996) 4 SCC 37, the
scope of Article 21 was further widened, as the court held that it is the responsibility of the
Government to provide adequate medical aid to every person and to strive for the welfare of the
public at large.
Further, the Supreme Court in the case of Parmanand Katara v Union of India AIR 1989 S.C. 2039,
held that every doctor at Government hospital or otherwise has the professional obligation to
extend his services with due expertise for protecting life of a patient.
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In the subsequent case of Consumer Education and Research Centre V. Union of India AIR 1995
SC 922, held that right to health and medical aid to protect the health and vigor of a worker, both
while in service and post-retirement, is a fundamental right under Article 21.
Further, According to Article 19 (1) (g) of the Indian Constitution, the fundamental right of all
citizens to practice any profession, or carry on any occupation, trade or business is subject to
restrictions imposed in the interest of the general public under Article 19(6). The Hon’ble Supreme
Court in the case of Burrabazar Fire Works Dealers Association and Others v. Commissioner of
Police, Calcutta AIR 1998 Cal. 121, held that Article 19 (1) (g) does not guarantee any freedom
which is at the cost of the community’s safety, health and peace.
Right to Health is a part and parcel of Right to Life and therefore right to health is a fundamental
right guaranteed to every citizen of India under Article 21 of the Constitution of India. We owe
the recognition of this right to the fact that the Supreme Court of India, through a series of judicial
precedents, logically extended its interpretation of the right to life to include right to health.
Therefore, it is the duty of the State to care for the health of the public at large and the Central
Government and various State governments have, rightfully and proactively, taken various
measures to contain the entry and spread of the COVID-19 pandemic.
Statutory Control on Health in India:
The Indian Penal Code and the Code of Criminal Procedure by its various provisions protects the
health of the people. The Indian Penal Code lays down certain principles to determine the criminal
liability of the accused for e.g., General Exceptions. Some of the provisions of the code are
directly protecting the health of the people and thus lays down punishments for those who are
responsible to affect the health of the people. Section 52 of the Code reads: “Nothing is said to
be done or believed in ‘Good Faith’, which is done or believed without due care and
attention.” Hence in the case of Sukaroo Kabiraj vs. The Empress, wherein Kabiraj who, having
no knowledge of surgery beyond that he had acquired in his practice, operated a man for internal
piles by cutting them out with an ordinary knife, in consequence of which he died from
hemorrhage. It was held as the operation was one so imminently dangerous that even educated
surgeons scarcely ever attempted it, the accused was guilty of an offence punishable under section
304-A of the Indian Penal Code.
THE INDIAN PENAL CODE
Section 84 of the code exempts a man who is mentally unhealthy at the time of commission of
crime. It lays down as “Nothing is an offence which is done by a person who, at the time of doing
it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is
doing what is either wrong or contrary to law”.
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Section 88 of the Code exempts medical practitioners who while treating a patient cause death. It
reads as “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, to be known by the order 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 take the risk of that harm.”
Section 89 of the Code exempts a person who causes any harm when the act is done in good faith
for the benefit of child less than 12 years of age, or of unsound mind, by or by consent of the
guardian or other person having lawful charge of that person. Illustration to this section shows that
A, in good-faith, for his child’s benefit, without his child’s consent, has his child cut for the stone
by a surgeon, knowing it to be likely that the operation will cause the child’s death, but not
intending to cause the child’s death. A is within the exception, in as much as his object was the
cure-of the child.
Chapter XIV of the Code specifically deals with offences affecting the public health, safety,
convenience, decency and morals. On the basis of offences related to public health this chapter can
be divided into three head: Infection, Adulteration and Pollution:
CHAPTER XIV
Infection Adulteration Pollution
269: Negligently Spreading 272: Food/drink 277: Fouling of water
270: Malignant Spreading 273: Selling such food/drink 278: Atmosphere Noxious
271: Disobeying Quarantine 274: Drug
275: Sale of Such Drug
276: Selling Different Drug or preparation
Section 269 punishes any person who unlawfully or negligently does any act which is, and which
he knows or has a reason to believe to be, likely to spread the infection of any disease dangerous
to life. The punishment provided is up to six months imprisonment with or without fine.
Section 270 deals with malignant act likely to spread infection of disease dangerous to life. It
punishes any person who malignantly does any act which is or for which he has a reason to believe
to likely to spread the infection of any disease dangerous to life. The punishment for such an act
is imprisonment of either description for a maximum term of two years with or without fine.
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Section 271 punishes a person who knowingly disobeys a rule of quarantine in existence made and
promulgated by the government. Quarantine relates to a vessel, which is segregated for prevention
of contagious disease.
Section 272 punishes a person who adulterates any article of food or drink making it noxious for
consumption and intending to sell such article as food or drink. The expression noxious means
unwholesome as food or injurious to health. Selling of inferior food is not an offence but selling
something, which is noxious, is an offence and the seller is punishable. It is very important under
this section that an article of food or drink has been adulterated and the intention was to sell such
article as food or drink.
Section 273 punishes a person who knowingly sells or offers or exposes to sell any article of food
or drink which is rendered or has become noxious or is in a state unfit for food or drink. The section
is attracted only if the article is sold as food or drink and it has to be unfit for human consumption.
Section 274 deals with adulteration of drugs and punishes any person who adulterates a drug or a
medical preparation knowingly that it will be sold or used for any medicinal purpose, as if it had
not gone any adulteration and such adulteration has lessened the efficacy or changed the operation
of the drug or medicine or made it noxious. The section punishes the intentional adulteration of
drugs and medical preparations.
Section 276 punishes any person who sells or offers to sell or exposes to sell or issues from a
dispensary for medicinal purposes any drug or medical preparation as a different drug or medical
preparation and knows of such difference at the time of sell.
Section 277 Whoever voluntarily corrupts or fouls the water of any public spring or reservoir, so
as to render it less fit for the purpose for which it is ordinarily used, shall be punished with
imprisonment of either description for a term which may extend to three months, or with fine
which may extend to five hundred rupees, or with both.
Section 278 punishes any person who voluntarily vitiates the atmosphere in any place so as to
make it noxious to health of persons in general dwelling or carrying business in the neighbourhood
or passing along a public way. The section applies to trades producing noxious and offensive
smells or manufacturing units by which the atmosphere is polluted.
Though the Code was made way back in 1860 and before independence but it still focuses on
various provisions affecting health and more importantly it punishes for affecting public health.
THE CODE OF CRIMINAL PROCEDURE, 1973
The Code of Criminal Procedure, 1973: The Code under Chapter X Section 133 empowers a
District Magistrate or a Sub-divisional Magistrate or any other Executive Magistrate specially
empowered in this behalf by the State Government to make a conditional order on receipt of a
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report from a police officer that a trade or occupation or keeping of any goods or merchandise is
injurious to the health or physical comfort to the community, he may order the person causing the
same to desist from carrying on, or to remove or regulate in such manner as may be directed, or to
remove such goods or merchandise or to regulate the same in such manner as he deems
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General Principles of Medical Ethics: National and International Perspective
Medical ethics is a field of study that deals with moral principles and values in the practice of
medicine. These principles guide healthcare professionals in making decisions that are ethical, just,
and respectful of the rights and well-being of patients. The general principles of medical ethics,
often referred to as the four pillars, provide a framework for ethical decision-making in healthcare.
These principles are autonomy, beneficence, non-maleficence, and justice.
1. Autonomy:
Autonomy is the principle that recognizes and respects an individual's right to make their own
decisions about their healthcare. It emphasizes the importance of informed consent, ensuring that
patients have the necessary information to make choices about their treatment and care. This
principle recognizes the right of individuals to accept or refuse medical interventions, even if those
decisions may not align with the healthcare provider's recommendations. Respecting autonomy
requires clear communication, providing adequate information, and involving patients in the
decision-making process.
2. Beneficence:
Beneficence is the principle that promotes actions that contribute to the well-being and best
interests of the patient. Healthcare professionals have an ethical obligation to seek the welfare of
their patients and to provide care that maximizes benefits. This involves assessing the risks and
benefits of interventions and choosing the course of action that will result in the greatest overall
good for the patient. Beneficence also extends to actions aimed at preventing harm and promoting
positive outcomes for patients. It underscores the healthcare provider's commitment to acting in
the patient's best interests.
3. Non-Maleficence:
Non-maleficence is the principle that requires healthcare professionals to do no harm. This

principle emphasizes the importance of minimizing the risks of harm to patients while pursuing
benefits. It involves a commitment to avoiding actions that may cause unnecessary suffering or
adverse effects. In the context of medical ethics, the principle of non-maleficence highlights the
need for careful consideration of potential harms associated with medical interventions and the
importance of selecting interventions with the least risk of harm. This principle reinforces the
responsibility of healthcare providers to prioritize the well-being and safety of their patients.
4. Justice:
Justice is the principle that addresses the fair and equitable distribution of healthcare resources and
access to medical care. It emphasizes the need to treat individuals fairly, without discrimination or
bias. This principle involves considerations of distributive justice, ensuring that healthcare
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resources are allocated in a manner that is just and accessible to all, regardless of factors such as
socioeconomic status, race, ethnicity, or gender. Justice also encompasses the concept of
procedural justice, which emphasizes fair decision-making processes in healthcare institutions and
the need for transparency and accountability.
These four principles often work together and may sometimes come into conflict. In such cases,
healthcare professionals must carefully balance and prioritize these principles based on the specific
context and the needs of the patient. Ethical decision-making in medicine involves thoughtful
consideration of the patient's values, cultural background, and preferences, as well as a
commitment to open communication and collaboration between healthcare providers, patients, and
their families.
In conclusion, the general principles of medical ethics—autonomy, beneficence, non-maleficence,

and justice—provide a comprehensive framework for guiding ethical decision-making in
healthcare. These principles underscore the importance of respecting patients' autonomy,
promoting their well-being, avoiding harm, and ensuring fair and equitable access to healthcare.
Adhering to these principles contributes to the delivery of ethical and compassionate healthcare
that prioritizes the interests and rights of patients.
PROFESSIONAL ACCOUNTABILITY
Liability of medical professionals falls mainly under three heads namely tortious, criminal and
contractual. The remedies can also availed under the Constitution of India or compensation can
be awarded under the Consumer Protection Act, 1986.
Tortious Liability
In tortious liability, negligence as a tort is the breach of a legal duty to take care which results in
damage, undesired by the defendant- Winfield
Therefore, the definition involves three constituents of the negligence:
 A legal duty to exercise due care on the part of the party complained of towards the party
complaining;
 Breach of said duty
 Consequential damage
A-man cannot be charged with negligence if he has no duty to exercise diligence.1 In Dr. Laxman
Balakrishna Joshi v. Dr. Trimbak Bapu Godbole2, the Supreme Court held that a person who
holds himself out ready to give medical advice and treatment impliedly undertakes that he is
1
Donoghue v. Stevenson 1932 AC 562
2
AIR 1969 SC 128
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possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes
him certain duties, that is, the duty of care in deciding whether to undertake the case, a duty of care
in deciding the treatment and a duty of care in administering the treatment. A breach of any of
these duties gives right of action for negligence.
The Indian law also recognizes the concept of vicarious liability in which the law holds one person
liable for the tortuous act of another, even if he has nothing to do with the commission of the tort.
In the case of State of Haryana v. Santra3, the Supreme Court held government hospitals
vicariously liable for the negligent acts of their employees.
Criminal Liability
For an act to amount to criminal negligence, the degree of negligence should be much higher, i.e.
Gross or of a very high degree. To prosecute a medical professional for negligence under criminal
law, it must be shown that he did something which in given facts and circumstances no medical
professional in his ordinary senses and prudence would have done or failed to do. The negligence
should be of such a nature that the injury which resulted was most likely imminent.
Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law especially in
cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot
be passed in service for determining per se the liability for negligence within the domain of
criminal negligence.
In a landmark judgement of Jacob Mathew w State of Punjab4, the Supreme Court held that a
doctor cannot be prosecuted for simple lack of care and error of judgement or accident during
treatment and placed medical profession in a different pedestal.
Contractual Liability
When a patient approaches a hospital for medical care, it establishes a relationship between the
hospital and patient which is contractual in nature. The subject matter of the contract can include
good medical services, technical services including para medical staff. The contractual obligation
is also for hygiene and health care including good condition of infrastructure of equipment,
reasonable pre-operative and post-operative health care services.
Provisions under Constitution of India
The Constitution incorporates provision guaranteeing everyone's right to the highest attainable
standard of physical and mental health. In the case of Paschim Banga Khet Mazdoor Samiti w.
State of WB5, the Supreme Court held that Article 21 imposes an obligation on the State to provide
3
AIR 2000 SC 1800
4
(2005) 6 SCC 1
5
(1996) 4 SCC 37
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medical assistance to every injured person. Preservation of human life is of paramount importance.
Failure on the part of a government hospital to provide timely medical treatment to a person in
need of such treatment results in violation of his rights to life guaranteed under Article 21 of the
Constitution. The Court directed the State to pay Rs. 25,000/- to the petitioner as compensation.
In the case of Irloskar Brothers Lid. v Employees' State Insurance Corporation6, the Supreme
Court held that "right to health" is a fundamental right. The Court further held that it is a right not
only available against the State and its, instrumentalities but even private industries to ensure to
the workmen to provide facilities and opportunities for health and vigour of the workman assured
in the provision of Part IV of the Constitution which are integral part of right to equality under
Article 14 and right to invigorated life under Article 21 which are fundamental rights to the
workmen.
Remedies under The Consumer Protection Act, 1986
The Consumer Protection Act, 1986 has been designed to protect the consumer by exerting legal,
moral and economic pressure on the defaulter against inadequate or deficient services. In Ms
Cosmopolitan Hospital and Anr. V. Smt. Vasantha P. Nair7, the National Consumer Redressal
Commission upheld the inclusion of doctors under term "service".
In the case of Indian Medical Association w. V.P Shantha8, the Supreme Court held that the
medical practitioners were not immune from claim of damages on the ground of medical
negligence. It also held that it is not the medical profession alone that comes under the preview of
consumer protection act, but all the professionals.
Equality in Access to Health Care
Equality in access to health care refers to the idea that all individuals, regardless of their
background, should have equal opportunities to receive necessary and appropriate medical
services. Achieving health care equality involves addressing and eliminating barriers that may
prevent certain groups from accessing healthcare services, including economic, social, cultural,
and geographic factors. Equality in access to health care is a fundamental principle that is
recognized and protected by various international and national legal frameworks. The right to
health is enshrined in several international agreements, and many countries have incorporated
these principles into their national laws.
International Legal Perspective
1. Universal Declaration of Human Rights, 1948 (UDHR): The right to health is rooted in
the Universal Declaration of Human Rights, adopted by the United Nations General
6
(1996) 2 SCC 682
7
1992 (1) CPR 820
8
(1995) 6 SCC 651
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Assembly in 1948. Article 25 of the UDHR states that "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."
2. International Covenant on Economic, Social, and Cultural Rights, 1966 (ICESCR):
Article 12 of the ICESCR recognizes the right of everyone to the enjoyment of the highest
attainable standard of physical and mental health. It includes the obligation of states to take
steps to achieve the full realization of this right, including the prevention, treatment, and
control of diseases.
3. International Convention on the Elimination of All Forms of Racial Discrimination,
1965 (CERD): CERD, in Article 5(e)(iv), requires states to ensure the right to public health,
medical care, social security, and social services for all without discrimination based on race,
color, or national or ethnic origin.
4. Sustainable Development Goals (SDGs): Goal 3 of the SDGs aims to ensure healthy lives
and promote well-being for all, including universal health coverage. The emphasis is on
achieving equitable access to health services.
5. World Health Organization (WHO): The WHO Constitution recognizes the right to health
as a fundamental human right and emphasizes the importance of access to medical care
without discrimination.
Indian Legal Perspective
Equality in access to healthcare is a paramount principle in the legal framework of India, reflecting
the nation's commitment to ensuring that all its citizens have the right to the highest attainable
standard of health without discrimination. The Indian legal perspective on healthcare equality is
shaped by constitutional provisions, specific health legislation, and policies aimed at addressing
disparities and promoting universal access to medical services.
Constitutional Protections:
The Constitution of India, adopted in 1950, includes provisions that lay the foundation for
healthcare equality. The Preamble emphasizes justice, equality, and the promotion of the welfare
of the people, setting the tone for subsequent constitutional provisions.
i. Directive Principles of State Policy: Article 47 of the Constitution directs the state to
regard the improvement of public health as one of its primary duties. It specifically
highlights the need to raise the level of nutrition and the standard of living, and to improve
public health.
ii. Right to Life and Personal Liberty: The Supreme Court of India, in several landmark
judgments, has interpreted the right to life under Article 21 of the Constitution as
encompassing the right to health. The judiciary has affirmed that the right to life includes
the right to lead a healthy life and access to medical facilities.
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Health Legislation:
India has enacted specific health-related legislation to ensure the availability and accessibility of
healthcare services. The National Health Policy and various other health-related laws emphasize
the need for equality in access to healthcare.
i. National Health Policy: The National Health Policy of India outlines the government's
commitment to achieving the highest possible level of health for all citizens. It recognizes
the need to reduce disparities in healthcare access and enhance the quality of healthcare
services.
ii. Clinical Establishments (Registration and Regulation) Act, 2010: This legislation
focuses on the registration and regulation of clinical establishments to ensure that
healthcare services are provided in a manner that does not discriminate against any section
of the society.
iii. Right to Information (RTI) Act: While not specific to healthcare, the RTI Act empowers
citizens to seek information about government healthcare initiatives, expenditures, and
policies. This transparency contributes to holding authorities accountable for the equitable
distribution of healthcare resources.
Social Welfare Schemes:
The government of India has implemented various social welfare schemes to address health
disparities and promote equal access to healthcare services.
i. Ayushman Bharat - Pradhan Mantri Jan Arogya Yojana (PMJAY): Launched in

2018, PMJAY is one of the world's largest health insurance schemes. It aims to provide
financial protection to over 100 million vulnerable families by offering coverage for
hospitalization and secondary and tertiary healthcare.
ii. National Rural Health Mission (NRHM) and National Urban Health Mission
(NUHM): These missions focus on addressing rural and urban health disparities,
respectively, by strengthening healthcare infrastructure, improving the availability of
healthcare personnel, and enhancing the quality of healthcare services.
Case laws:
The Supreme Court of India has played a significant role in shaping the legal framework for
providing equality in access to healthcare.
i. Consumer Education and Research Centre v. Union of India (1995): This case
recognized the right to health as a fundamental right. The court held that the government
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has a constitutional obligation to provide healthcare services and ensure that they are
accessible to all.
ii. Paschim Banga Khet Mazdoor Samity v. State of West Bengal (1996): In this case, the
court stressed the importance of providing medical facilities to laborers and workers,
especially in rural areas.
iii. Mohini Jain v. State of Karnataka (1992): This case dealt with the right to education but
also had implications for healthcare as education and healthcare are closely connected. The
court held that access to healthcare is a fundamental right.
Professional duties and Medical Ethics
The Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002, is a
set of guidelines that govern the professional behavior, conduct, and ethics of registered medical
practitioners in India. These regulations were established by the Medical Council of India (MCI),
the now-dissolved regulatory body for medical education and practice in the country. With the
introduction of the National Medical Commission (NMC) in 2019, the regulatory landscape has
changed, but the principles outlined in the 2002 regulations continue to influence medical ethics
and practice.
i. Introduction:
The Regulations, instituted under Section 20A read with Section 33(m) of the Indian Medical
Council Act, 1956, set forth the standards of professional conduct and etiquette expected of
medical practitioners. The overarching goal is to ensure the highest quality of medical care and to
maintain public trust in the medical profession.
ii. Preamble:
The preamble of the regulations emphasizes the noble nature of the medical profession and the
responsibilities it entails. It highlights the need for practitioners to uphold a high standard of
professional conduct, maintain confidentiality, and prioritize the well-being of patients.
iii. Principles of Professional Conduct:

a. Patient-Doctor Relationship: The regulations stress the importance of maintaining the
utmost respect and dignity in the patient-doctor relationship. Physicians are expected to
provide care without any discrimination and must not exploit the trust placed in them.
b. Confidentiality: The principle of patient confidentiality is a cornerstone. Doctors are
obligated to maintain the confidentiality of patient information and can only disclose it
in certain legally sanctioned circumstances or with the patient's explicit consent.
c. Informed Consent: The regulations mandate obtaining informed consent from patients
before undertaking any diagnostic procedure, treatment, or surgery. Patients must be
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provided with comprehensive information about the nature, purpose, risks, and benefits
of the intervention.
d. Professional Competence: Medical practitioners are required to maintain a high
standard of professional competence. Continuous medical education is encouraged to
stay updated with advancements in medical science and technology.
e. Integrity and Honesty: Honesty and integrity are emphasized, with a prohibition on
engaging in unprofessional or unethical conduct. Physicians are expected to be
transparent in their professional dealings and to act in the best interests of patients.
f. Community Health: The regulations underscore the doctor's responsibility toward
society. Physicians are encouraged to participate in community health programs,
preventive healthcare, and other initiatives that contribute to the well-being of the
community.
g. Collegiality and Collaboration: The regulations promote a spirit of collegiality among
medical professionals. Collaboration with peers and other healthcare professionals for
the betterment of patient care is encouraged.
h. Advertising and Solicitation: Advertising of medical services is strictly prohibited, and
doctors are not allowed to solicit patients directly or indirectly. This provision aims to
maintain the dignity of the medical profession and prevent undue commercialization.
i. Remuneration: Remuneration for professional services must be as per the guidelines
prescribed by the Medical Council of India. Fee splitting and other practices that
compromise professional independence are discouraged.
j. Maintaining Medical Records: The regulations outline the importance of maintaining
accurate and complete medical records for every patient. These records should be treated
with confidentiality and made available only to authorized persons.
iv. Reporting Unethical Conduct:
The regulations include a provision that encourages doctors to report any unethical conduct by
their colleagues to the appropriate authorities. This reflects the commitment to self-regulation
within the medical profession and the importance of maintaining ethical standards.
v. Amendments and Evolution:
Over the years, the regulations have been subject to amendments and updates to reflect changes in
medical practices, technological advancements, and evolving ethical considerations. This
demonstrates the adaptability of the regulatory framework to ensure its relevance in contemporary
healthcare settings.
vi. Transition to the National Medical Commission:
With the establishment of the National Medical Commission (NMC) in 2019, the regulatory
landscape for medical practitioners in India has undergone significant changes. The NMC Act and
subsequent regulations issued by the NMC have taken the place of the MCI. However, the
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fundamental principles of professional conduct and ethics outlined in the 2002 regulations
continue to guide medical practitioners in India.
In conclusion, the Indian Medical Council (Professional Conduct, Etiquette, and Ethics)
Regulations, 2002, serves as a comprehensive guide for the ethical practice of medicine in India.
Its principles are designed to ensure that medical practitioners uphold the highest standards of
professionalism, integrity, and patient-centered care, reflecting the noble nature of the medical
profession. While the regulatory landscape has evolved with the establishment of the National
Medical Commission, the core principles of medical ethics persist in shaping the conduct of
healthcare professionals in the country.
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GENERAL PRINCIPLES OF MEDICAL JURISPRUDENCE
Medical Jurisprudence is the application of medical knowledge in the legal field for providing
justice in both criminal as well as civil cases.The Latin term ‘Juris’ stands for ‘law’ and
‘Prudentia’ stands for ‘Knowledge’. Thereby, it is the domain which makes the use of the
medically relevant facts and then integrates them with the legal system, providing assistance to the
criminal justice system. In order to convict a probable offender, it is utmost important to know the
relevancy of the evidences. Thus, the need of using scientific principles was felt. As this field
grew, it gave immense power to the medical practitioner as they were now playing a very important
role by having an expert opinion in the cases. But with this power came huge responsibilities. The
doctor patient relation, medical negligence, ethical conducts, professional misconducts are a few
to name. The field of medical jurisprudence is a very ancient field but with the advent of
technology and the reforms being added in the legal system, this branch is always under
development.
It encompasses principles, practices, and ethical considerations that guide the application of
medical knowledge in legal proceedings. Understanding the general principles of medical
jurisprudence is essential for both medical professionals and legal practitioners, as it plays a pivotal
role in criminal investigations, civil cases, and matters related to public health. In this
comprehensive exploration, we delve into the fundamental principles from the Indian perspective.
1. Autopsy and Post-mortem Examination: One of the cornerstone principles of medical

jurisprudence is the conduct of autopsies and post-mortem examinations. In India, these
examinations are performed by forensic experts to ascertain the cause of death and gather evidence
in criminal cases. The meticulous examination of the deceased's body helps establish facts crucial
to legal proceedings and can be instrumental in determining whether a death was natural,
accidental, suicidal, or homicidal.
2. Expert Testimony and Medico-legal Reports: Medical professionals, particularly forensic

experts, frequently provide expert testimony in Indian courts. Their role is to present unbiased and
scientifically sound opinions on medical matters. Medico-legal reports generated by these experts
serve as crucial documents that aid judges and juries in understanding complex medical issues,
contributing to a fair and just legal process.
3. Mental Health Assessments: The assessment of mental health is integral to medical

jurisprudence in India. Mental health issues may impact an individual's legal responsibility and
competency to stand trial. The Mental Healthcare Act, 2017, provides a legal framework for
dealing with mental health-related matters, emphasizing the rights of individuals with mental
illnesses and their interaction with the legal system.
4. Medical Ethics and Legal Responsibilities: Medical professionals in India are bound by
ethical principles, and breaches may have legal consequences. Informed consent, patient
confidentiality, and the duty to report certain medical conditions are critical aspects of medical
ethics. Understanding and upholding these principles are imperative for healthcare practitioners to
navigate the complex interface between medicine and law.
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5. Medical Negligence and Malpractice: The principles of medical jurisprudence in India address
cases of medical negligence and malpractice. Patients have the right to seek compensation for harm
caused by medical errors, and the legal system relies on expert medical opinions to determine
whether the standard of care was breached and if it resulted in harm to the patient.
6. DNA Profiling and Forensic Advancements: Technological advancements, particularly in

DNA profiling and forensic science, have revolutionized medical jurisprudence in India. DNA
evidence is now widely accepted in courts, serving as a powerful tool for establishing identity,
paternity, and linking individuals to crime scenes. The utilization of cutting-edge forensic
technologies enhances the accuracy and reliability of medical evidence presented in legal
proceedings.
7. Identification of Individuals: Medical jurisprudence plays a critical role in the identification

of individuals, especially in cases of mass disasters, accidents, or criminal investigations.
Techniques such as fingerprint analysis, dental records, and facial recognition contribute to
establishing the identity of victims and perpetrators, aiding law enforcement agencies and courts
in reaching accurate conclusions.
8. Public Health and Legal Implications: Medical jurisprudence extends beyond individual
cases to encompass public health issues. The Indian legal system addresses matters such as disease
outbreaks, quarantine measures, and vaccination requirements, emphasizing the intersection of
medical recommendations and legal mandates to safeguard public health.
9. Forensic Toxicology and Substance Abuse: The examination of toxic substances and their
impact on the human body is a critical aspect of medical jurisprudence. Forensic toxicology plays
a vital role in cases involving substance abuse, poisoning, and drug-related crimes. Expert opinions
on the effects of substances contribute to legal decisions in drug-related offenses and poisoning
cases.
10. Legal Challenges and Reforms: Medical jurisprudence in India faces ongoing challenges,
including the need for continuous updates to keep pace with medical and technological
advancements. Legal reforms are essential to address emerging issues and ensure that the law
aligns with contemporary medical practices and ethical standards. The collaboration between
medical and legal professionals is crucial to navigating these challenges and fostering a robust
legal framework.
In conclusion, the general principles of medical jurisprudence in India are diverse and dynamic,
encompassing a wide range of issues from autopsy procedures to mental health assessments,
medical ethics, and advancements in forensic science. The effective application of these principles
ensures a harmonious interaction between the medical and legal realms, contributing to a fair and
just legal system that prioritizes scientific accuracy, ethical considerations, and the protection of
individual rights. The continuous evolution of medical jurisprudence reflects the ongoing
commitment to adapting to new challenges and advancements in both medicine and the legal
landscape.
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ROLE OF CONSENT IN MEDICAL PRACTICE
Consent is a foundational principle in medical jurisprudence that establishes the boundaries of

patient autonomy, medical practice, and legal liability. In the context of India, the legal framework
surrounding medical consent has evolved, with the Supreme Court rendering significant decisions
that shape the understanding and application of this crucial concept. This exploration delves into
the role of consent in medical jurisprudence from an Indian perspective, examining key legal
principles and landmark Supreme Court decisions.
Definition and Types of Consent
Consent, in medical jurisprudence, refers to the voluntary and informed agreement by a competent
individual to undergo a medical procedure or treatment. It can be explicit or implied, depending
on the nature of the medical intervention. Explicit consent is a clear and direct agreement, while
implied consent is inferred from a patient's conduct or circumstances.
Legal Foundation:
The right to consent is deeply rooted in the right to life and personal liberty guaranteed by Article
21 of the Indian Constitution. This right extends to the right to make decisions about one's own
body, including medical treatment. The Medical Council of India's (MCI) Code of Ethics also
emphasizes the importance of informed consent in medical practice.
Informed Consent:
Informed consent is a critical aspect of medical jurisprudence, requiring healthcare professionals

to provide patients with comprehensive information about the proposed treatment, its potential
risks and benefits, alternatives, and the expected outcomes. The Supreme Court has consistently
upheld the principle of informed consent as essential for respecting patient autonomy and dignity.
Supreme Court Decisions:
1. Samira Kohli v. Dr. Prabha Manchanda (2008):
In this landmark case, the Supreme Court underscored the significance of informed consent. The
court held that a doctor is bound to disclose all relevant information to the patient to enable them
to make an informed decision. Failure to obtain informed consent could lead to legal consequences,
including a claim for compensation.
2. Common Cause (A Regd. Society) v. Union of India (2018):
The Supreme Court, in this case, recognized the right to die with dignity as a fundamental right.
The court emphasized that the right to refuse medical treatment is an integral aspect of the right to
life and personal liberty. This decision reinforced the principle that informed consent extends to
the right to refuse treatment.
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3. Paramananda Katara v. Union of India (1989):
While not explicitly about consent, this case highlighted the obligation of medical professionals to
provide emergency medical treatment without waiting for formalities. The Court emphasized the
duty to preserve life, even without explicit consent, when the patient is unconscious or incapable
of providing consent.
4. Kusum Sharma & Ors v. Batra Hospital & Medical Research Centre & Ors (2010):
This case emphasized the duty of doctors to inform patients about the risks and complications
associated with a medical procedure. The court held that the failure to provide such information
could constitute negligence and result in legal liability.
Special Situations and Exceptions:
There are situations where the requirement for explicit consent may be relaxed, such as in
emergencies where immediate intervention is necessary to save a patient's life. However, even in
such cases, the principle of implied consent and subsequent communication with the patient's
relatives or legal representatives is recognized.
Challenges and Controversies:
The evolving landscape of medical technology and the increasing complexity of medical
procedures pose challenges to the traditional understanding of consent. Issues such as genetic
testing, organ transplantation, and assisted reproductive technologies raise ethical and legal
questions, necessitating a nuanced approach to the concept of consent in contemporary medical
jurisprudence.
Role of Healthcare Professionals:
Healthcare professionals are obligated to ensure that the patient fully understands the nature of the
proposed treatment, its potential risks, and available alternatives. Clear communication,
transparency, and documentation of the consent process are essential components of ethical
medical practice.
Public Awareness and Education:
Promoting public awareness about the importance of informed consent is crucial. Patients need to
be educated about their rights, and healthcare providers must facilitate an environment that
encourages open communication and respects patient autonomy.
Future Directions and Recommendations:
As medical science continues to advance, the legal framework around consent will likely face
further challenges. Continuous updates in medical jurisprudence are essential to address emerging
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issues, and legal professionals and healthcare practitioners should collaborate to ensure that the
law aligns with evolving medical practices and ethical standards.
In conclusion, the role of consent in medical jurisprudence is foundational to the ethical and legal
practice of medicine in India. The Supreme Court decisions discussed demonstrate a commitment
to upholding the rights of patients, emphasizing the necessity of informed consent in medical
procedures. The evolving nature of medical technology and ethical considerations requires a
dynamic legal framework, ensuring that the principles of consent adapt to new challenges while
preserving the fundamental rights and autonomy of individuals seeking medical care. The
harmonious integration of legal principles and medical ethics is imperative for a healthcare system
that respects patient dignity, autonomy, and the right to make informed decisions about their own
bodies.
MEDICAL NEGLIGENCE
Negligence by Medical Professionals
A person who holds himself out as ready to give medical advice or treatment impliedly undertakes
that he is possessed of skill and knowledge for the purpose. Such a person, whether he is medical
practitioner or not, who is consulted by a patient, owes him certain duties, namely a duty of care
in deciding whether he undertakes the case; a duty of care in deciding what treatment to give and
duty of care in his administration of that treatment. A breach of any theses duties will support an
action for negligence by patient.
In Jacob Mathew 9case, the Supreme Court of India has gone into details of what is the
meaning of negligence by medical professionals.
Negligence in the context of medical profession necessarily calls for a treatment with a difference.
To infer rashness or negligence on the part of a professional, in particular a doctor, additional
considerations apply.
A case of occupational negligence is different from one of professional negligence. A simple lack
of care, an error of judgment or an accident, is not proof of negligence on the part of a medical
professional. So long as a doctor follows a practice acceptable to the medical profession of that
day, he cannot be held liable for negligence merely because a better alternative course or method
of treatment was also available or simply because a more skilled doctor would not have chosen to
follow or resort to that practice or procedure which the accused followed.
When it comes to the failure of taking precautions what has to be seen is whether those precautions
were taken which the ordinary experience of men has found to be sufficient; a failure to use special
or extraordinary precautions which might have prevented the particular happening cannot be the
standard for judging the alleged negligence.
9 (2005) 6 SCC 1
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So also, the standard of care, while assessing the practice as adopted, is judged in the light of
knowledge available at the time of the incident, and not at the date of trial. Similarly, when the
charge of negligence arises out of failure to use some particular equipment, the charge would fail
if the equipment was not generally available at that particular time (that is, the time of the incident)
at which it is suggested it should have been used.
Degree of Negligence
The Delhi High Court laid down in 2005 that in civil law, there are three degrees of negligence10:
(i) lata culpa, gross neglect
(ii) levis culpa, ordinary neglect, and
(iii)levissima culpa, slight neglect.
Every act of negligence by the doctor shall not attract punishment. Slight neglect will surely not
be punishable and ordinary neglect, as the name suggests, is also not to be punished. If we club
these two, we get two categories: negligence for which the doctor shall be liable and that
negligence for which the doctor shall not be liable. In most of the cases, the dividing line shall be
quite clear, however, the problem is in those cases where the dividing line is thin.
As regards medical negligence, the legal position has been described in several leading judgments.
Some of these are given below:
Bolam v. Friern Hospital Management Committee11
John Hector Bolam suffered from depression and was treated at the Friern Hospital in 1954 by
E.C.T. (electro-convulsive therapy). He was not given any relaxant drug, however, nurses were
present on either side of the couch to prevent him from falling off. When he consented for the
treatment, the hospital did not warm him of the risks, particularly that he would be given the
treatment without relaxant drugs. He sustained fractures during the treatment and sued the hospital
and claimed damages for negligence. Experts opined that there were two practices accepted by
them: treatment with relaxant drugs and treatment without relaxant drugs. Regarding the warning
also, there were two practices prevalent: to give the warning to the patients and also to give the
warning only when the patients ask about the risks. The court concluded that the doctors and the
hospital were not negligent.
Jacob Mathew Vs. State of Punjab12
10 Smt. Madhubala vs. Government of NCT of Delhi; Delhi High Court, 8 April 2005, Citation: 2005 Indlaw DEL 209 = 2005
(118) DLT 515
11 (1957) 2 All ER,
12 (2005) 6 SCC 1
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In this case a patient was admitted to CMC Hospital, Ludhiana. He felt difficulty in breathing. No
doctor turned up for about 20-25 minutes. Later two doctors – Dr. Jacob Mathew and Dr. Allen
Joseph – came and an oxygen cylinder was brought and connected to the mouth of the patient.
Surprisingly, the breathing problem increased further. The patient tried to get up. The medical staff
asked him to remain in bed. Unfortunately, the oxygen cylinder was found to be empty. Another
cylinder was brought. However, by that time the patient had died. The matter against doctors,
hospital staff and hospital went up to the Supreme Court of India. The court discussed the matter
in great detail and analyzed the aspect of negligence from different perspectives – civil, criminal,
torts, by professionals, etc.
It was held that there was no case of criminal rashness or negligence.
The Supreme Court in Laxman v. Trimbak13, held:
"The duties which a doctor owes to his patient are clear. A person who holds himself out ready to
give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge
for the purpose. Such a person when consulted by a patient owes him certain duties viz., a duty of
care in deciding whether to undertake the case, a duty of care in deciding what treatment to give
or a duty of care in the administration of that treatment. A breach of any of those duties gives a
right of action for negligence to the patient. The practitioner must bring to his task a reasonable
degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very
highest nor very low degree of care and competence judged in the light of the particular
circumstances of each case is what the law requires.”
In Achutrao Haribhau Khodwa v. State of Maharashtra14 the Supreme Court said-- "The skill of
medical practitioners differs from doctor to doctor. The very nature of the profession is such that
there may be more than one course of treatment which may be advisable for treating a patient.
Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed
his duties to the best of his ability and with due care and caution. Medical opinion may differ with
regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts
in a manner which is acceptable to the medical profession and the Court finds that he has attended
on the patient with due care skill and diligence and if the patient still does not survive or suffers a
permanent ailment, it would be difficult to hold the doctor to be guilty of negligence."
In Spring Meadows Hospital & Anr. Vs. Harjol Ahluwalia & Anr.15 the Apex Court has
specifically laid down the following principles for holding doctors negligent:
“Gross medical mistake will always result in a finding of negligence. Use of wrong drug or wrong
gas during the course of anaesthetic will frequently lead to the imposition of liability and in some
13 AIR 1969 SC 128

14 AIR 1996 SC 2377
15 (1998) 4 SCC 39 at 47,
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situations even the principle of res ipsa loquitur can be applied. Even delegation of responsibility
to another may amount to negligence in certain circumstances. A consultant could be negligent
where he delegates the responsibility to his junior with the knowledge that the junior was incapable
of performing of his duties properly. We are indicating these principles since in the case in hand
certain arguments had been advanced in this regard, which will be dealt with while answering the
questions posed by us.”
In A.S.Mittal v. State of UP 16, an irreparable damage was done to the eyes of some of the patients
who were operated at an eye camp organized by the government of Uttar Pradesh. Some of the
patients who underwent surgery could never see the light of the day, i.e. whatever little vision they
had even that was lost. The apex court coming heavily on the erring doctors held that, “the law
recognizes the dangers which are inherent in surgical operations and that will occur on occasions
despite the exercise of reasonable skill and care but a mistake by a medical practitioner which no
reasonably competent and a careful practitioner would have committed is a negligent one.” The
compensation was awarded.
Further, in State of Haryana v. Santra17 the court upheld the decree awarding damages for medical
negligence on account of the lady having given birth to an unwanted child due to failure of
sterilization operation because it was found on facts that the doctor had operated only the right
fallopian tube and had left the left fallopian tube untouched. The patient was informed that the
operation was successful and was assured that she would not conceive a child in future. A case of
medical negligence was found and a decree for compensation in tort was held justified.
However, the apex court has explained in State of Punjab v. Shiv Ram18 , that “merely because a
woman having undergone a sterilization operation becoming pregnant and delivering a child
thereafter, the operating surgeon or his employer cannot be held liable on account of the
unwarranted pregnancy or unwanted child. Failure due to natural causes, no method of sterilization
being fool proof or guaranteeing 100% success, would not provide any ground for a claim of
compensation.” The court after referring to several books on Gynecology and empirical researches
concluded that „authoritative text books on gynecology and empirical researches recognize the
failure rate of 0.3% to 7% depending on the technique chosen out of several recognized and
accepted ones.”
Poonam Verma v. Ashwin Patel19, reflects yet another reckless act on part of the doctor. In this
case a doctor who was registered as a medical practitioner and was entitled to practice in
homoeopathy was found to be guilty of negligence for prescribing allopathic medicines resulting
in the death of the patient. The doctor was grossly negligent and in clear breach of duty as a doctor.
He defied all sense of logic and forgot his ethics. It is submitted that it would have been better had
16 AIR 1989 SC 1570

17 (2000) 5 SCC 182
18 (2005) 7 SC 1
19 AIR 1996 SC 2111
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the doctor been prosecuted under criminal negligence as he violated section 15(3) of the Medical
Council Act, 1956.
In one of the most recent decision in Kusum Sharma v. Batra Hospital20, the Hon‟ble Supreme
Court has settled the law relating medical negligence. Mr. Dalveer Bandari, J., scrutinizing the
cases of medical negligence both in India and abroad specially that of the United Kingdom has
laid down certain basic principles to be kept in view while deciding the cases of medical
negligence. According to the court, „while deciding whether the medical professional is guilty of
medical negligence „the following well-known principles must be kept in view:
1. Negligence is the breach of a duty exercised by omission to do something which a

reasonable man, guided by those considerations which ordinarily regulate the conduct of
human affairs, would do, or doing something which a prudent and reasonable man would
not do.
2. Negligence is an essential ingredient of the offence. The negligence to be established by

prosecution must be culpable or gross and not the negligence based upon the error of
judgment.
3. The medical professional is expected to bring a reasonable degree of skill and knowledge
and must exercise a reasonable degree of care. Neither very highest nor a very low degree
of care and competence judged in the light of the particular circumstances of each case is
what the law requires.
4. A medical practitioner would be liable only where his conduct fell below that of the
standards of a reasonably competent practitioner in his field.
5. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and
one professional doctor is clearly not negligent merely because his conclusion differs from
that of the other professional doctor.
6. The medical professional is often called upon to adopt a procedure which involves higher
element of risk, but which he honestly believes as providing greater chances of success for
the patient rather than a procedure involving lesser risk but higher chances of failure. Just
because a professional looking to the gravity of illness has taken higher element of risk to
redeem the patient out of his/her suffering which did not yield the desired result may not
amount to negligence.
7. Negligence cannot be attributed to a doctor so long as he performs his duties with

reasonable skill and competence. Merely because the doctor chooses one course of action
20 (2010) 3 SCC 480
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in preference to the other one available, he would not be liable if the course of action chosen
by him was acceptable to the medical profession.
8. It would not be conducive to the efficiency of the medical profession if no doctor could
administer medicine without a halter round his neck.
9. It is our bounden duty and obligation of the civil society to ensure that medical
professionals are not unnecessarily harassed or humiliated so that they can perform their
professional duties without fear and apprehension.
10. The medical practitioners at times have to be saved from such a class of complainants
which use criminal process as a tool for pressurizing the medical professionals/hospitals,
particularly private hospitals or clinics for extracting uncalled for compensation. Such
malicious proceedings deserve to be discarded against the medical practitioners.
11. The medical professionals are entitled to get protection so long as they perform their duties
with reasonable skill and competence and in the interest of the patients. The interest and
welfare of the patients have to be paramount for the medical professionals.
The court did not rest the case here, i.e. by laying down eleven principles for determining the
breach of duty by medical professionals/hospitals, but went a step ahead by observing that, “In
our considered view, the aforementioned principles must be kept in view while deciding the cases
of medical negligence.” The court further adds a word of caution by stating that,
“We should not be understood to have held that doctors can never be prosecuted for medical
negligence. As long as the doctors have performed their duties and exercised an ordinary degree
of professional skill and competence, they cannot be held guilty of medical negligence. It is
imperative that the doctors must be able to perform their professional duty with free mind.
The above listing of „basic principles‟ with a direction that „they must be kept in view while
deciding the cases of medical negligence‟ reflects the judicial attitude of the hon‟ble apex court.
It may be noted that any decision, judgment passed by the Supreme Court becomes law of the land
and is automatically binding on all other lower courts in the country by virtue of Article 141 of the
Constitution of India.21 Thus the above principles must be taken as „law of the land on medical
negligence‟.
MEDICAL NEGLIGENCE - A CIVIL WRONG OR CRIMINAL OFFENCE:
The term negligence is used for the purpose of fastening the defendant with liability under civil
law (the law of torts) and, at times, under the criminal law. But often it is alleged by the plaintiffs
that negligence is negligence and that no distinction can be drawn between the two so far as it
21 Article 141 reads: “Law declared by the Supreme Court shall be binding on all courts within the territory of India”.
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relates to breach of his duty and resultant damage. Explaining the difference between the two, Lord
Atkin in his speech in Andrews v. Director Public Prosecution, stated:
“… Simple lack of care such as will constitute civil liability is not enough for purposes of the
criminal law there are degrees of negligence; and a very high degree of negligence is required to
be proved before the felony is established.”22
Thus for negligence to be an offence, the element of mens rea (guilty mind) must be shown to exist
and the negligence should be gross or of very high degree.23
In Criminal law, negligence or recklessness must be of such a high degree as to be held „gross‟.
The apex court in Jacob Mathew v. State of Punjab, has explained that; “the expression „rash and
negligent act‟ occurring in section 304-A of the I.P.C should be qualified by the word „grossly‟.
To prosecute a medical professional for negligence under criminal law it must be shown that the
accused did something or failed to do something which in the given facts and circumstances no
medical professional in his ordinary senses and prudence would have done or failed to do. The
hazard taken by the accused doctor should be of such a nature that the injury which has resulted
was most likely imminent.”24 From the above it may be inferred that the distinction between civil
and criminal liability in medical negligence lies in the conduct of the doctor which should be of
gross or reckless or of a very high degree.
MEDICAL NEGLIGENCE AND HOSPITALS
Hospitals in India may be held liable for their services individually or vicariously. They can be
charged with negligence and sued either in criminal/ civil courts or Consumer Courts. As
litigations usually take a long time to reach their logical end in civil courts, medical services have
been brought under the purview of Consumer Protection Act,1986 wherein the complainant can
be granted compensation for deficiency in services within a stipulated time of 90 -150 days.
Cases, which do not come under the purview of Consumer Protection Act, 1986 (e.g., cases where
treatment is routinely provided free of cost at non-government or government hospitals, health
centers, dispensaries or nursing homes, etc.) can be taken up with criminal courts where the health
care provider can be charged under Section 304-A IPC for causing damages amounting to rash and
22 1937) 2 All ER 552 (HL)
23 See, Charlesworth & Percy on Negligence, 10th Edn, 2001, para 1.13; A clear distinction exists between “simple lack of care”
incurring civil liability and “very high degree of negligence” which is required in criminal cases. Also there is a marked
difference as to evidence, viz. the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of
probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal
proceedings the persuasion of guilt must amount to such a moral certainty as convinces the mind of the court, as a reasonable
man beyond all reasonable doubt. (Syed Akbar v. State of Karnataka, (1980) 1 SCC 30, para 28 refers)
24 (2005) 6 SCC 1; Also see, Dr. Suresh Gupta v. Govt. of N.C.T. of Delhi, AIR 2004 SC 4091, wherein the court explaining
distinction between civil and criminal liability held that „for fixing criminal liability on a doctor or surgeon the standard of
negligence required to be proved should be so high as can be described as gross negligence of recklessness. …mere inadvertence
or some degree of want of adequate care and caution might create a civil liability but would not suffice to hold him criminally
liable.”
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negligent act or in Civil Courts where compensation is sought in lieu of the damage suffered, as
the case may be.
LIABILITY OF HOSPITALS IN CASES OF NEGLIGENCE
Hospitals liability with respect to medical negligence can be direct liability or vicarious liability.
Direct liability refers to the deficiency of the hospital itself in providing safe and suitable
environment for treatment as promised. Vicarious liability means the liability of an employer for
the negligent act of its employees. An employer is responsible not only for his own acts of
commission and omission but also for the negligence of its employees, so long as the act occurs
within the course and scope of their employment. This liability is according to the principle of
„respondeat superior‟ meaning „let the master answer‟. Employers are also liable under the
common law principle represented in the Latin phrase, "qui facit per alium facit per se", i.e. the
one who acts through another, acts in his or her own interests. This is a parallel concept to vicarious
liability and strict liability in which one person is held liable in Criminal Law or Tort for the acts
or omissions of another. An exception to the above principle is „borrowed servant doctrine‟
according to which the employer is not responsible for negligent act of one of its employee when
that employee is working under direct supervision of another superior employee [e.g. Where a
surgeon employed in one hospital visits another hospital for the purpose of conducting a surgery,
the second hospital where the surgery was performed would be held liable for the acts of the
surgeon].
Direct liability
A hospital can be held directly liable for negligence on many grounds.
Failure to maintain equipments in proper working condition constitutes negligence. In case of

damage occurring to a patient due to absence/ non-working equipment e.g. oxygen cylinder,
suction machine, insulator, ventilator etc. the hospital can be held liable.
Failure to hand over copies of medical records, X-rays, etc., constitutes negligence or deficiency
in service6. In India, a provision in respect of medical records has been made in The Indian
Medical Council [Professional conduct, Etiquette and Ethics] Regulations 2002, Regulations 1.3.1
and 1.3.2 which state that every registered medical practitioner has to maintain medical records
pertaining to its indoor or outdoor patients for a period of at least three years from the date of
commencement of treatment in the prescribed form given by MCI and if any request is made for
medical records either by patient/ authorized attendant or legal authorities involved, the same may
be duly acknowledged and documents be issued within the period of 72 hours. Also it must not be
forgotten that it is the right of every patient to obtain in writing about his/her medical illness,
investigations and treatment given on a prescription/ discharge ticket. Non-providing of medical
records to the patients/ attendants may amount to deficiency in service under the Consumer
Protection Act, 1986.
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Improper maintenance of cleanliness and/or unhygienic condition of hospital premises amounts to

negligence. In Mr. M Ramesh Reddy v. State of Andhra Pradesh25 the hospital authorities were
held to be negligent, inter alia, for not keeping the bathroom clean [in this case the bathroom was
covered with fungus and was slippery], which resulted in the fall of an obstetrics patient in the
bathroom leading to her death. A compensation of Rs. 1 Lac was awarded against the hospital.
A curious issue is that of liability in cases of polyclinics. Polyclinic means a place where doctors
of different specialties practice with common staff and other facilities. Since every doctor is
practicing individually, he would be responsible for his own negligence and not for others. But a
particular doctor may also be vicariously liable for negligence of staff of the polyclinic, if the
negligence occurs during the care of his particular patient in addition to the polyclinic being held
liable for the negligence of its staff. The other doctors may get involved as partners of the
polyclinic depending upon the agreement between them.
Where the ambulance service provider, usually a hospital, professes that the ambulance is equipped
with life-saving equipment and such equipment is either absent or non-functioning, it is liable for
negligence in case of a mishap. In the United Kingdom, even delay in arrival of ambulance has
been held negligent on the part of hospital as even a common man knows the importance of
properly equipped ambulance arriving on time in saving a life [Kent vs Griffiths, (2002) 2 AII
ER 474].
Levying of excess/ wrong charges is considered as deficiency of service and can be claimed under
Consumer Protection Act and in Civil Court. Charging for a bed facility which was not provided,
taking surcharges, amount taken as medicolegal charges etc. are examples where hospitals can
face litigations. A patient can file a complaint in Consumer Court if the hospital charges fees in
excess of that mentioned in the list of charges displayed or disclosed or agreed upon.
With regards to HIV & HBsAg, most of the hospitals have made it mandatory to get all their indoor
patients investigated for HIV & HBsAg. These investigations are not a part of any treatment and
are done without prior consent of the patient. Carrying out such investigations without the consent
that too for reasons not related to the treatment of the patient can be considered as unethical
practice and either a complaint can be lodged with State Medical Council or charges/ damages can
be claimed through civil litigation or consumer forum. HIV testing is either mandatory or
voluntary. When testing is legally done without the consent of the person, it is known as mandatory
testing e.g., for screening donors of blood, semen, organs or tissues in order to prevent transmission
of HIV to the recipient of the biological products. In all other circumstances, it has to be voluntary,
i.e., with the knowledge and express written consent of the person as it is necessary to respect the
individual‟s need to maintain confidentiality.
25 [2003 (1) CLD 81 (AP SCDRC)],
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Hospitals can be charged with negligence for transmission of infection including HIV, HBsAg,
etc. if any patient develops such infection during the course of treatment in the hospital and it is
proved that the same has occurred on account of lapse on part of the hospital.
As applicable to any other organization, hospitals too cannot blanketly refuse to give employment
on the basis of an individual‟s HIV status. It depends on what job a particular person is to be
employed for. A sero-positive individual can be employed if there is no question of him/her coming
in contact with patients or procedures that can result in spread of infection. If any person on the
rolls of a hospital is found to be sero positive or develops AIDS, the hospital should review that
person‟s staff privileges and determine whether or not the medical condition interferes with the
persons‟ ability to perform on the job and whether the condition creates a health risk to the patients.
The Centre for Disease Control [CDC] although does not advise that HIV positive individuals be
routinely restricted from performing surgery, it does recommend that the restrictions be determined
on a case by case basis. The employee could be given other duties in the hospital that involves
lesser degree of direct patient care or could be required to use extra safety precautions while
dealing with patients. There is no generally accepted medical evidence that HIV can be transmitted
through normal day to day contact in typical private workplace setting. The CDC has issued
guidelines that recognize that, with the exception of health care workers and personal service
workers who use instruments that pierce skin, no testing or restriction is indicated for workers
known to be infected with HIV but otherwise is able to perform their jobs. If any hospital does not
follow the guidelines and there results an infection of the patient, it can be held directly responsible
for negligence.
Misleading signboards, prescription slips and advertisements of hospitals can be construed as

deficiency in service or unfair trade practice under the Consumer Protection Act, 1986 and
damages can be awarded for such practices. Wrong claims of availability of certain facilities like
some hospitals claiming in their sign boards/ prescription slips that 24 hr emergency services are
available in their setup but in fact they lack basic emergency facilities like services of a doctor
round the clock, necessary equipment in working order, intensive care facilities etc. construes
negligence. Wrong depiction of qualifications of doctor like MD [Gyn.] against a doctor‟s name
creating an impression and misleading the patients that the doctor possesses PG degree in
Gynecology whereas it was obtained from Germany and was equivalent to MBBS as per rules of
MCI may also be construed as negligence [1993 (1) CPR 422 (NCDRC)]. Claiming guaranteed
results for operative procedures that do not give desired outcome also amount to negligence.
Vicarious liability
A hospital can be held vicariously liable on numerous grounds on different occasions.
Several High Court Judgments have held hospitals vicariously liable for damages caused to the
patients by negligent act of their staff. In one judgment of the Kerala High Court in Joseph @
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Pappachan v. Dr. George Moonjerly26, in support of the following effect stated that „persons who
run hospital are in law under the same duty as the humblest doctor: whenever they accept a patient
for treatment, they must use reasonable care and skill to ease him of his ailment. The hospital
authorities cannot, of course, do it by themselves; they have no ears to listen to the stethoscope,
and no hands to hold the surgeon‟s scalpel. They must do it by the staff which they employ; and
if their staffs are negligent in giving treatment, they are just as liable for that negligence as anyone
else who employs other to do his duties for him.
In another judgment by the Madras High Court in Aparna Dutta v. Apollo Hospitals Enterprises
Ltd.27, it was held that it was the hospital that was offering the medical services. The terms under
which the hospital employs the doctors and surgeons are between them but because of this it cannot
be stated that the hospital cannot be held liable so far as third party patients are concerned. It is
expected from the hospital, to provide such a medical service and in case where there is deficiency
of service or in cases, where the operation has been done negligently without bestowing normal
care and caution, the hospital also must be held liable and it cannot be allowed to escape from the
liability by stating that there is no master-servant relationship between the hospital, and the surgeon
who performed the operation. The hospital is liable in case of established negligence and it is no
more a defense to say that the surgeon is not a servant employed by the hospital, etc.
In another judgment by the National Consumer Redressal Commission in case of Smt. Rekha
Gupta v. Bombay Hospital Trust & Anr.28, related to negligence of a consultant doctor, the
Commission observed that the hospital who employed all of them whatever the rules were, has to
own up for the conduct of its employees. It cannot escape liability by mere statement that it only
provided infrastructural facilities, services of nursing staff, supporting staff and technicians and
that it cannot suo moto perform or recommend any operation/ amputation.
Any bill including consultant doctor‟s consultation fees are raised by the hospital on the patient
and it deducts 20% commission while remitting fees to the consultant. Whatever be the outcome
of the case, hospital cannot disown their responsibility on these superficial grounds.
The hospital authorities are not only responsible for their nursing and other staff, doctors, etc. but
also for the anesthetists and surgeons, who practice independently but admit/ operate a case. It
does not matter whether they are permanent or temporary, resident or visiting consultants, whole
or part time. The hospital authorities are usually held liable for the negligence occurring at the
level of any of such personnel. Where an operation is being performed in a hospital by a consultant
surgeon who was not in employment of the hospital and negligence occurred, it has been held that
it was the hospital that was offering medical services. The terms under which the defendant
hospital employs the doctors and surgeons are between them but because of this it cannot be stated
26 [1994 (1) KLJ 782 (Ker. HC)]

27 [2002 ACJ 954 (Mad. HC)]
28 [2003 (2) CPJ 160 (NCDRC)]
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that the hospital cannot be held liable so far as third party patients are concerned. The patients go
and get themselves admitted in the hospital relying on the hospital to provide them the medical
service for which they pay the necessary fee. It is expected from the hospital, to provide such
medical service and in case where there is deficiency of service or in cases like this, where the
operation has been done negligently without bestowing normal care and caution, the hospital also
must be held liable and it cannot be allowed to escape from the liability due to reason of non-
existing masterservant relationship between the hospital and the surgeon.
There are many instances where a senior or super-specialist performs surgery in a centre where
such expertise is not locally available. After the surgery, the post-operative care is left to the local
competent doctor. Failure of the senior/ super specialist to personally supervise the postoperative
care may not constitute negligence provided the doctor to whom responsibility of the post
operative care lies is competent; same applying to a visiting physician. It has been held by National
Consumer Redressal Commission [1993 (3) CPR 414 (NCDRC)] that in case of the operation
being performed in an institution, it is the duty of the institution to render postoperative treatment
and care to the hospital‟s patients. Quite often foreign doctors undertake operations in India and it
cannot be maintained that the post operative care and treatment shall continue to be provided by
the foreign doctor who may no longer be in the country. But same may not be held in every case
if the visiting surgeon never inquires about the condition of the patient and leaves the patient for
postoperative care and follow up treatment to the competence of the other surgeon who was unable
to properly treat and look after the patient and the patient dies. Here the treating doctor can also be
made party to the negligence.
In many cases of negligence against government hospitals, it has been held that the State is
vicariously liable for negligence of its doctors or staff or even primarily liable where there is lack
of proper equipment or staff. In few cases, court has passed orders to the effect that the
compensation paid to the complainant may be recovered from the government doctors whose
negligence has been established. The Honorable Supreme Court in Achutrao & ors v. State of
Maharashtra & Ors 29 has observed that running a hospital is a welfare activity undertaken by the
Government but it is not an exclusive function or activity of the Government so as to be regarded
as being in exercise of its sovereign power. Hence, the State would be vicariously liable for the
damages which may become payable on account of negligence of its doctors or other employees.
In another case of Smt. Santra v. State of Haryana & Ors30, the contention that the State is not
vicariously liable for the negligence of its officers in performing the sterilization operation was
not accepted in view of the above judgment of the Supreme Court of India.
29 [JT 1996(2) SC 664]

30 [(2005) 5 SCC 182]
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In another case of Rajmal v State of Rajasthan31, where the patient died of neurogenic shock
following laparoscopic tubal ligation done at a primary health centre, an enquiry committee
constituted on the directions of the Rajasthan High Court found that the doctor was not negligent
in conducting the operation, nor his competence, integrity or efforts were doubted. It was lack of
adequate resuscitative facilities and trained staff that was held responsible for the death and the
State Government was held vicariously liable and was directed to pay compensation to the husband
of the deceased.
In another case of Dr. M. K. Gourikutty & etc. v. M. K. Madhavan and Ors32, where patient had
died following post partum sterilization, the Court found negligence on part of the defendants and
liability was fixed on State Government, anesthesiologists and other staff instead of holding only
the State vicariously liable.
The Honorable Punjab and Haryana High Court, in Punjab State v. Surinder Kaur33, has stated
that the doctor working in a government hospital was performing the duty while he/ she was under
the employment of the State and in these circumstances, the master is always responsible for the
vicarious liability of the acts committed by the employee in the course of such employment. It is
for the State to determine the liability of the erring doctors. It is their internal affair but so far as
patient is concerned she can recover the amount from the State Government. It is the duty of the
authorities under the State to see that its employees are available in time in the hospital. If for any
reason, a doctor or expert is not available, the Hospital authorities would have known before hand
and some other persons should be posted. The primary responsibility of the Hospital authorities is
to see that there is no negligence on its part or on the part of its officers. The non-providing of a
doctor or anesthetist or an assistant is essentially a lapse on the part of hospital authorities and are
thus liable for negligence.
In R. P. Sharma v. State of Rajasthan34, where a woman died because of mismatched blood

transfusion, the State was held vicariously responsible for the negligent act of its blood bank officer
and the doctor who transfused the blood. It was further held that the State of Rajasthan is free to
recover the amount from those doctors. In Rukmani v. State of Tamil Nadu [AIR 2003 Mad. HC
352], the Madras High Court observed that in India where the population is increasing each second
and family planning is a national programme, the doctor as well as the State must be held
responsible in damages on account of failure of a sterilization operation which is directly
responsible for an additional birth in the family, creating additional economic burden on the
family.
Compensation can be awarded to an injured person for not being provided treatment in a
Government hospital or for death or injury caused therein because of negligence.
31 [AIR 1996 Raj. HC 80]

32 [AIR 2001 Ker. HC (DB) 398]
33 [2001 ACJ 1266 (P&H-HC]
34 [AIR 2002 Raj. HC (Jpr. Bench) 104]
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In the case of Paschim Bangal Khet Mazdoor Samity & Ors v. State of West Bengal 35, the
Honorable Supreme Court held that providing adequate medical facilities for the people is an
essential part of the obligations undertaken by the Government in a welfare state. Failure on the
part of government hospital to provide timely medical treatment to a person in need of such
treatment is violation of his right to life guaranteed under Article 21 of Indian Constitution [death
of the patient occurring for not being admitted/ given proper treatment for want of bed in a
government hospital].
Appointing practitioners of Alternative Systems of Medicine [Ayurveda/ Unani/ Sidha] or

Homeopaths in hospitals giving services in allopathy too amounts to negligence. It is the duty of
the hospital to provide properly qualified, skilled and experienced doctors for treatment. The
Supreme Court of India has held that there is no scope for a person who is registered under the
Indian Medicine Central Council Act, 1970 [Council for registration of practitioners of Indian
Medicine – Ayurveda, Unani and Sidha] and enrolled on the State or Central Register of Indian
Medicine to practice modern scientific medicine [allopathy] in any of its branches. All that is
allowed to such practitioners is to make use of the various modern advances like radiology reports,
laboratory investigations etc. for the purposes of practicing in their own system. However, if any
State law recognizes the qualification of integrated courses or other qualifications as „sufficient
qualification‟ for registration in the State
Medical Register, within the meaning of the Indian Medical Council Act, 1956 on being registered
in the State Medical Register, he is eligible to practice allopathic medicine. This benefit would be
available only in those States where the privilege of such right to practice any system of medicine
is conferred by the State law which is for the time being in force, under which practitioners of
Indian Medicine are registered in their State Medical Register.
MEDICAL PROFESSION – WHETHER UNDER CONSUMER PROTECTION ACT
In one of the earliest significant ruling in Vasantha P. Nair v. Smt. V.P. Nair, the National
Commission upholding the decision of Kerala State Commission had held that „a patient is a
“consumer” and the medical assistance was a „service‟ and, therefore, in the event of any
deficiency in the performance of medical service the consumer courts can have the jurisdiction. It
was further observed that the medical officer‟s service was not a personal service so as to constitute
an exception to the application of the Consumer Protection Act.”36
In Indian Medical Association v. V.P. Shantha and Ors.37, the apex court has put an end to this
controversy and has held that patients aggrieved by any deficiency in treatment, from both private
35 [1996 (4) SC 260]

36 I (1991) C.P.J. 1685
37 AIR 1996 SC 550; the apex court has laid down 12 important principles stating the law with definite terms in this case
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clinics and Government hospitals, are entitled to seek damages under the Consumer Protection
Act, 1986. A few important principles laid down in this case include:
1. Service rendered to a patient by a medical practitioner (except where the doctor renders
service free of charge to every patient or under a contract of personal service) by way of
consultation, diagnosis and treatment, both medicinal and surgical, would fall within the
ambit of “service” as defined in section 2(1) (o) of the C.P. Act.
2. The fact that medical practitioners belong to medical profession and are subject to
disciplinary control of the Medical Council of India and, or the State Medical Councils
would not exclude the service rendered by them from the ambit of C.P. Act.
3. The service rendered by a doctor was under a contract for personal service rather than a
contract of personal service and was not covered by the exclusionary clause of the
definition of service contained in the C.P.Act.
4. A service rendered free of charge to everybody would not be service as defined in the Act.
5. The hospitals and doctors cannot claim it to be a free service if the expenses have been
borne by an insurance company under medical care or by one‟s employer under the service
conditions.
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LEGAL REQUIREMENTS FOR ESTABLISHMENT OF PRIVATE HOSPITALS
The start of a private hospital is always chaotic as hospitals require intense licensing and
authorizations from various regulatory and statutory bodies. Most private hospitals offer
multispecialty services which make it all the more tedious for them to obtain all their necessary
documents. The legal framework for private hospitals is covered under several Acts like
the Clinical Establishments Act, 2010, the Atomic Energy Act, 1962, Companies Act,
2013, Electricity Act, 2003, Indian Electricity Rules, 1956, National Building Code of India, 2005,
etc. Most of the capital that goes into starting up a private hospital is divided into:
1. Purchasing the land or building for such a business

2. Getting necessary beds, equipment, and machines for procedures, scans, tests, etc.
3. Medicine and inventory
4. Staff salary
5. Catering services for patients and canteens for visitors.
Post these expenses, hospitals also have to focus on ambulance services, marketing services, online
services, pharmaceutical services, etc. Hospitals or clinics providing super-specialty services like
cancer/oncology treatments, derma services, ENT specialists, dental services, cosmetology
services often don’t require lengthy procedures to be followed but they also have to equip
themselves with all the mandatory documents like licenses, approvals, etc.
This article discusses the kinds of statutory and regulatory licenses, approvals, or documents
required to start a private hospital in India.
Licenses and approvals
Land license
The safest bet to opt for land that’s best suitable for hospitals is to only go for “hospital approved
areas” which are usually marked on the Municipal plans. Other than such lands any non-
agricultural land is also a good fit for constructing hospitals. The land required for the construction
of the hospital must have all the required documents:
1. Title Deeds of the land.

2. NOCs from Municipal authorities, Pollution Control Board, Fire Department, Special Area
Development Authority (if any), and Environment Clearance.
3. Land registration documents.
4. Floor Area Ratio certificates (FARs) and Ground Coverage certificates (GC).
5. Parking requirement certificates.
6. Road licenses to maintain distance from the main road.
7. Land mutation, if any.
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8. Land conversion, if any.
Construction and installation-related approvals/licenses
Once the land and area for such a hospital have been approved, the next step is to get the building
plan approved by the authorities, which is called the Building Plan Sanction. The building plan
has to follow the guidelines given as per the National Building Code which talks about:
1. Structural safety.
2. Landscape planning.
3. Asset and facility planning.
4. Accessibility for the elderly and people with disabilities.
5. Gas pipelines.
6. Fire and light safety.
7. Solar energy.
8. Provisions on cement and steel masonry.
9. Industrial wastes.
10. Air conditioning and ventilation.
11. Escalators, moving walkway provisions.
12. Water supply, drainage, and sanitation provisions.
13. Solid waste management etc.
As Building is a state subject, state authorities have their laws to govern the construction of the
same. Therefore, most licenses and approvals have to be obtained from Municipal authorities. This
is for the simple reason that buildings constructed in the area can be better monitored by the
departments that possess the city’s plan and have easy access to it. Some of these licenses and
certificates are:
1. NOC from fire safety.

2. Electrical installation certificate.
3. Height restriction certificates.
4. Equipment licenses.
5. Lift usage certificate.
6. Radiation department licenses.
7. Biohazardous permits.
8. Drainage approvals.
Registration under Clinical Establishments Act, 2010
According to Section 11 of the Clinical Establishments Act, no person is allowed to run a clinical
establishment without being registered under this Act. The Act goes on to present conditions that
should be met for registering the establishments under Section 12, which are:
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1. Minimum standards of facilities and services as may be prescribed;

2. Minimum requirements of personnel as may be prescribed;
3. Maintenance of records and reporting provisions as may be prescribed;
4. Such other conditions as may be prescribed.
After such conditions have been met, the application for provisional registration has to be filed
under Section 14. This application requires the entity/individual to furnish basic details such as the
name of the owner and establishment, addresses, specifics of the hospital, etc., and file it either in
person/post/online. Such application is to be accompanied by the prescribed fees which depend
entirely on the State Rules.
After being provided with the Provisional Registration, the entity/individual may apply for
permanent registration under Section 24 of the Act. Similar to the application under Section 14,
Section 24 application also calls for hospital details. Every state and Union Territory has different
particulars in their forms. For the state of Telangana, the application requires basic hospital
facilities and various documents to be attached to the application. For Delhi, visiting the website
of delhimedicalcouncil.org helps in being redirected to the application page whereby furnishing
necessary details with prescribed fees of Rs 2000/- shall be completed. Post application, certain
inspections are done to check whether prescribed standards are being met or not. Upon satisfaction
of the state/UT medical councils, the permanent registration is granted which is valid for the next
5 years. Upon the end of validity, fresh applications must be filed.
Registration under Companies Act, 2013
If the private hospital is established under the ownership of a corporation, then the hospital needs
to be registered under the Companies Act, 2013. Such a registration identifies the hospital as a
Company thereby giving it rights of purchasing and selling property on its name, the nature of
perpetual succession, and creating duties such as having a Memorandum of Association, Articles
of Association, regular Board meetings, submissions, and audits. If the hospital has been registered
as a company, then the directors of the company also have to have to be registered and must have
a Director Index Number (DIN).
If the hospital is under the ownership of a society, then it has to be registered as a society under
the Society Registration Act, 1960.
Licenses/approvals/permits for the functioning of Hospitals
Once the hospital has been given an identity and registered under the suitable law, all operations
of the hospitals need to be approved. Multispecialty hospitals offer several facilities such as
consultancy, X Rays, scanning, medical tests, etc. and these facilities require licenses for the usage
of their equipment. Super-specialty hospitals don’t offer very many facilities but most specialty
hospitals also need permits and approvals for their equipment, doctors, consultants, etc. These
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hospitals also require to get NOCs from the fire department, water department, etc. Some of these
licenses, approvals, and permits are:
Atomic Energy Regulation Board Licenses
Hospitals need to obtain licenses from the AERB for all radiation generating equipment and all
radiation sources, such as:
1. any diagnostic radiology equipment;

2. nuclear machines being used;
3. Radio-Immuno Assay kits (RIA);
4. Any sealed or unsealed sources used for radiation facilities;
5. Radiotherapy;
6. Medical accelerator units;
7. TomoTherapy equipment etc.
The AERB has laid down certain procedures in the Atomic Energy (Radiation Protection) Rules,
2004 to apply for such licenses for every new equipment that is to be used. The procedure mimics
other licensing procedures and entails filing of hospital specifics, employee specifics, educational
and academic backgrounds, and attachment of necessary documents such as Identity proofs,
Registration proofs, and Employership proofs.
Electricity, fire and water licenses
Hospitals need to use massive quantities of water and huge loads of electricity all through the day.
Therefore, they need to approach their Municipal authorities for permits of such vast usage of
water and electricity and also obtain a NOC from the said departments for the same. Such licenses
see their requirement in the Electricity Act and such but are entirely dependent upon the States
Rules and Notifications and can be obtained from the Municipal authorities after similar
applications. NOCs from the fire department are also required for the hospital to maintain. The
Fire department needs to go through the entire Construction Plan, anticipated fire engines, hospital
equipment, Fire Exit planning, geographical issues, and only then can it issue a NOC to the
hospital.
Sanitation and biomedical waste permits
According to the studies conducted by the WHO, hospitals generate 0.5 kg of biomedical waste
per bed per day. All hospitals need to obtain permits and approvals from the Municipal authorities
to lay down proper plumbing and waste reduction pipes during the construction or development
of the hospital. The said department has to approve the Plumbing Scheme of the hospital based on
the anticipated wastes that may be generated by the hospital. Large–scale or big hospitals also need
to install incinerators for the treatment of the biomedical or hazardous wastes generated by the
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hospitals on a day-to-day basis. Any hospital that cannot install biomedical waste incinerators
needs to register with their municipal authorities for the treatment of the same. Such waste is then
taken over by the suitable divisions of the department.
Healthcare facility certificate
Such a certificate is mandatory and is issued by the Municipal Authorities after obtaining the
certificate of Permanent Registration of the hospital under the Clinical Establishments Act. This
certificate is only issued after the minimum number of beds and equipment has been installed and
inspected by the Authorities.
FSSAI license
This license is given by the Food Safety and Standards Authority of India. Any hospital which
intends on having an in-house kitchen for the patients and/or visitors must have the said license to
start the functioning of a kitchen. The application is submitted on the FosCos portal. Separate
licenses for state and centre can be applied with the necessary documents. The Authorities tend to
take about 7-10 days to review the application. The license is only granted after a thorough
inspection of the documents and the kitchen has been done.
Pharmacy registration for medical shop
Nowadays, hospitals tend to keep a pharmacy open 24 hours in their premises for easy
accessibility. Having such a medical shop in the hospital also requires registration under the
Central Drug Standard Control Organization and State Drug Standard Control Organization. Such
an application for registration is to be made by the manufacturer or retailer and as per the forms
after the payment of application fees as prescribed. Before granting such registration, the
Organization looks for certain conditions to be met such as the sizable area of the store, storage
facility, and the technical staff. Similar applications are to be made in the SDSCO if the hospital
is located solely in one state and similar conditions are to be met there as well.
License for purchasing, possessing and dispensing Essential Narcotic Drugs (END)
Any hospital will require a license to purchase, possess and dispense narcotic drugs under
the Narcotic Drugs and Psychotropic Substances Act, 1985. Hospitals that have been registered by
the CDSCO or the SDSCO are eligible to deal with narcotic drugs by the virtue of their above-said
registration. Such institutions that deal with narcotic drugs need to be Recognized as Medical
Institutions (RMIs). Once they are recognized then the institutions can deal with the purchase,
possession, and dispense of the narcotic or psychotropic substances.
The above licenses are required for the hospital to begin its technical functions so its daily
operations can start running. However, depending upon the type of hospital the above list may
change thereby adding more licenses.
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Staff registrations
While the hospital requires land, building, equipment licenses, approvals, and permits, it also
requires its staff to be qualified and registered under suitable Departments and Authorities for
proper and organized workflow. All medical stuff needs to be registered under the following:
1. Doctors need to be registered under the State Medical Council.

2. Nurses have to be registered under the State Nursing Council.
3. Dentists have to be registered under the Dental Council.
4. Pharmacists have to be registered under the Pharmacy Council.
After getting registered under the suitable Councils, doctors, nurses, dentists or pharmacists can
be hired for their services by the private hospitals. Such Registration must be proven at the time
of hiring. Additionally, if any nurse, doctor, pharmacist, or dentist has to use any equipment
simultaneously, they should also get a license for the same by the suitable department.
The above mentioned are all the basic necessary licenses, approvals, permits, and registrations
required to be obtained by any entity/individual deciding to start up a private hospital. In addition
to the above, other licenses, approvals, permits, and registrations are also required to be obtained
by the hospital depending upon the services it provides. A few additional licenses, permits,
registrations, and approvals required are:
1. Permit for storage of petrol/diesel under the Petroleum Act, 1934.

2. License for operating blood banks from the Drug Standard Control Organization.
3. Registration for organ transplantation under the Human Organs Act, 1934.
4. Registration for medical termination of pregnancies under the Medical Termination of
Pregnancy Act, 1971.
5. Registration to prohibit sex determination practices under the Pre-Natal Diagnostic Test
Act, 1994.
6. Registration of Ambulances and all hospital vehicles in the Motor Vehicles Act, 1988.
7. License for using boilers under the Boilers Act, 1923.
8. Licenses under the Drugs & Cosmetics Act, 1940.
9. Registration under Births and Deaths Act, 1969.
10. Licenses under Environment Protection Act, 1986.
NORMS AND CONDITIONS FOR MAINTAINING HEALTH & SAFETY STANDARDS
In a rapidly developing nation like India, the importance of maintaining health and safety standards
cannot be overstated. The well-being of the workforce is a critical aspect of sustainable economic
growth. In this context, Indian legal frameworks play a pivotal role in establishing norms and
conditions to ensure the health and safety of workers across various sectors.
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1. The Factories Act, 1948
The primary legislation governing occupational health and safety in India is the Factories Act,
1948. The Act lays down provisions for the establishment, operation, and maintenance of factories,
with a focus on ensuring the health, safety, and welfare of workers. Under this law, employers are
required to comply with specific norms and conditions to maintain health and safety standards.
One fundamental requirement is the obligation of factory owners to provide a workplace that is
free from health risks. This includes ensuring proper ventilation, adequate lighting, and
maintaining a comfortable temperature within the premises. Employers must also implement
measures to control and prevent the spread of infectious diseases among workers.
The Factories Act mandates the installation and regular maintenance of safety equipment such as
fire extinguishers, first aid kits, and safety exits. Employers are required to conduct regular drills
to train workers on emergency evacuation procedures. Additionally, industries dealing with
hazardous substances must adhere to stringent regulations concerning the handling, storage, and
disposal of such materials.
In the realm of machinery and equipment, the Factories Act imposes strict guidelines on their
operation and maintenance. Regular inspections, testing, and certification of machinery are
mandated to ensure their safe functioning. Employers must also provide protective gear to workers
operating in hazardous conditions and enforce the use of such equipment.
Another critical aspect of health and safety standards is the provision of welfare amenities for
workers. The Factories Act stipulates the availability of facilities such as clean drinking water,
sanitary conditions, and proper eating spaces within the workplace. Adequate rest intervals and
reasonable working hours are also specified to prevent employee fatigue and stress.
2. The Mines Act, 1952
For the mining industry, the Mines Act, 1952, lays down regulations to safeguard the health and
safety of workers. It addresses issues such as ventilation, sanitation, medical facilities, and
measures to prevent accidents. The law also stipulates the appointment of safety officers and the
establishment of safety committees to monitor and enhance safety standards in mines.
3. The Building and Other Construction Workers (Regulation of Employment and

Conditions of Service) Act, 1996:
This legislation specifically focuses on the construction industry. It mandates the formulation of
safety policies, the appointment of safety officers, and the provision of first aid and welfare
facilities at construction sites. Employers are required to comply with safety guidelines to prevent
accidents and ensure the overall well-being of construction workers.
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4. The Occupational Safety, Health and Working Conditions Code, 2020:
The Occupational Safety, Health and Working Conditions Code, introduced in 2020, consolidates
and amends various existing labor laws to streamline and modernize occupational safety
regulations. It emphasizes the need for a safe working environment, welfare measures for workers,
and the appointment of safety officers. The code introduces a risk-based classification of
establishments and mandates the development of occupational safety and health policies.
5. The Environment (Protection) Act, 1986:
Environmental factors also play a crucial role in determining health and safety standards. The
Environment (Protection) Act, 1986, empowers the central government to take necessary measures
to protect and improve environmental quality. This indirectly contributes to ensuring a safe and
healthy workplace by regulating industrial activities that may have adverse effects on the
environment and, consequently, on workers' health.
6. The National Building Code (NBC):
The National Building Code sets guidelines for the construction and maintenance of buildings,
incorporating safety measures to prevent accidents. It covers aspects such as fire safety, structural
stability, sanitation, and accessibility, thereby contributing to the overall health and safety
standards in various establishments.
In conclusion, the Indian legal framework provides a robust foundation for maintaining health and
safety standards in workplaces. From the Factories Act of 1948 to the recent Occupational Safety,
Health and Working Conditions Code of 2020, these regulations emphasize the importance of
creating a safe and healthy working environment. Employers must be vigilant in complying with
these norms to ensure the well-being of their workforce, enhance productivity, and contribute to
the overall development of a safe and sustainable industrial landscape in India.
ROLE OF MEDICAL PROFESSIONALS UNDER LAW OF EVIDENCE
In the realm of legal proceedings, the role of medical professionals in the law of evidence holds
paramount importance. The nexus between medicine and law is evident in various stages of
criminal and civil cases, where medical experts play a pivotal role in providing valuable evidence.
Here are key aspects of the role of medical professionals under the law of evidence:
1. Expert Opinion (Section 45 of the Indian Evidence Act):
Medical professionals are often called upon to provide expert opinions on medical matters.
Section 45 allows the court to rely on the opinion of persons who have specialized knowledge,
such as medical practitioners, to assist in understanding complex issues.
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2. Medical Reports and Records (Section 35 and 51 of the Indian Evidence Act):
Medical reports, records, and documents prepared by medical professionals are admissible as
evidence under Section 35 and 51 of the Indian Evidence Act. These records may include medical
certificates, treatment records, and autopsy reports.
3. Witness Testimony (Section 118 and 119 of the Indian Evidence Act):
Medical professionals may be called as witnesses to testify in court. Sections 118 and 119 allow
witnesses, including medical professionals, to testify to the facts they know and to give their
opinions on relevant matters.
4. Privileged Communication (Section 126 of the Indian Evidence Act):
The law recognizes certain communications between a patient and a medical professional as
privileged. Section 126 protects such communications from disclosure in court without the
patient's consent.
5. Dying Declaration (Section 32(1)(a) of the Indian Evidence Act):
Medical professionals may be involved in recording dying declarations, which are considered
admissible evidence under Section 32(1)(a) of the Indian Evidence Act. These declarations can be
crucial in cases where the person making the statement is deceased.
6. Cross-Examination and Expert Opinions (Section 138 and 146 of the Indian Evidence
Act):
Medical professionals may undergo cross-examination to test the credibility and reliability of their
testimony. Sections 138 and 146 provide the framework for cross-examination and testing the
veracity of expert opinions.
7. Forensic Evidence (Various Sections):
In cases involving crimes or accidents, forensic evidence provided by medical professionals, such
as DNA analysis, toxicology reports, and forensic pathology, may be presented in court.
It's important to note that the specific roles and responsibilities of medical professionals in legal
proceedings may vary depending on the nature of the case and the jurisdiction. Additionally, other
laws and regulations, such as medical ethics and privacy laws, may also impact the interaction
between the legal system and medical professionals.
Evidentiary value of medical evidence
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The opinion of a medical expert is not direct evidence, but it has corroborative value. It can only
support the grounds of an eyewitness and prove the direct evidence. Over the years the value of
medical evidence has appreciated considerably. The provision is however silent on the value or
the weight of expert opinions. Only the admissibility of expert testimony is stated in this section.
Expert testimony does not constitute substantive evidence, and it is typically used to either support
or discredit oral testimony. The testimony of an expert is solely useful as advisory assistance to
the court. Since the expert is not a witness of the facts, the court must evaluate his judgement
impartially. The expert is never given the authority to make decisions; rather, they are made by the
Court with assistance from the expert.
In case of a conflict between oral and expert evidence, oral evidence is given more value, earlier
the opinion of an expert was considered merely an opinion, which is irrelevant generally and
depends on the circumstances to be considered relevant and have only persuasive value. In the
case of State of Haryana v. Bhagirath, the court held. The testimony of a medical expert need
not be the final word on the matter. The court will examine this viewpoint. The court is not required
to follow an opinion if it lacks logic or objectivity. After all, an individual’s opinion is what they
construct regarding a factual scenario. It is up to the judge to adopt the view that is more objective
or likely when two doctors form conflicting opinions based on the same facts. Similarly, if a
doctor’s conclusion is not supported by probability, the court is not required to accept it just
because the doctor said it.
However, this position has begun to evolve. Evidence evaluation is both an art and a science. To
determine a contested question of fact, the Court must take into account all pertinent information.
It is necessary to weigh all factors, including any expert opinion offered. The crucible must be
filled with all necessary inputs. But the Court’s wisdom, common sense, and intellect must be the
source of such appreciation. The ability to understand persons and court proceedings is essential.
The court’s understanding of the course of events and typical and likely human behaviour will be
crucial. Accepting the guidelines of reasonably prudent thinking is necessary. The decision-
making process must consider all pertinent circumstances
No piece of evidence can be said to prevail over the others after it has been sorted, tested, analysed,
and evaluated unless it is conclusive, convincing, and beyond a reasonable doubt.
Hence the value of the medical evidence or expert opinions, in general, depends on the subject’s
nature. In actual practice, we observe that reliable and credible oral evidence is given precedence
over scientific evidence and its value depends on how much support it gives to the direct evidence
given by an eyewitness or contradicts it removing the possibilities of injury alleged by the party.
Hence medical evidence has great persuasive value but it can be disregarded on valid grounds
Important case laws on admissibility and relevance of medical evidence
We further seek to analyse the current position of medical evidence by following case laws –
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Magan Bihari Lal vs State of Punjab
The Supreme Court of India held that” It is now well settled that expert opinion must always be
received with great caution and perhaps none so with more caution than the opinion of a
handwriting expert. There is a profusion of presidential authority which holds that it is unsafe to
base a conviction solely on expert opinion without substantial corroboration. This rule has been
universally acted upon and it has almost become a rule of law.”
In Ram Narain Singh v. State of Punjab
This Court held that where the evidence of the witnesses for the prosecution is inconsistent with
the medical evidence or the evidence of the ballistics expert, it amounts to a fundamental defect in
the prosecution’s case and unless reasonably explained it is sufficient to discredit the entire case.
Solanki Chimanbhai Ukabhai V. State of Gujarat
The Court stated that “typically, the significance of medical evidence is only corroborative. It just
establishes that the injuries might have been brought on in the way claimed, nothing more. The
medical evidence can be utilised by the defence to show that the injuries could not have been
caused in the way that is being claimed, so casting doubt on the eyewitnesses. The testimony of
the eyewitnesses cannot be rejected based on an alleged discrepancy between it and the medical
evidence, however, unless the medical evidence goes so far as to fully rule out any possibility of
injuries occurring in the manner claimed by the eyewitnesses.
Hence, over time the value of medical evidence has increased, it indeed is corroborative and not
conclusive and where there is a glaring inconsistency between the direct evidence and the medical
evidence in respect of the entire prosecution case, it becomes a defect in the prosecution case. If
the evidence of the witness for the prosecution is inconsistent with the medical evidence, this is a
most fundamental defect in the prosecution case and unless reasonably explained, it is sufficient
to discredit the entire case.
REGULATIONS AND CONTROL OF PRIVATE NURSING HOMES, HOSPITALS AND

DIAGNOTIC CENTRES
The regulation and control of private nursing homes, hospitals, and diagnostic centers in India is a
multifaceted domain, governed by a complex interplay of statutory provisions, regulatory bodies,
and evolving legal frameworks. This intricate landscape seeks to ensure the delivery of quality
healthcare services while safeguarding the interests of patients and promoting ethical practices
within the healthcare industry.
At the core of the regulatory framework is the Clinical Establishments (Registration and
Regulation) Act, 2010. This legislation empowers the central and state governments to regulate
the functioning of clinical establishments, which includes nursing homes, hospitals, and diagnostic
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centers. The Act mandates the registration of such establishments, outlining the minimum
standards they must adhere to in terms of infrastructure, staffing, and services provided.
In addition to the central legislation, individual states often have their own regulatory mechanisms
to address the specific healthcare needs and challenges prevalent in their regions. This
decentralized approach allows for a nuanced response to the diverse healthcare landscape across
the country.
The National Medical Commission (NMC) plays a pivotal role in regulating medical education
and practice. It sets standards for medical professionals and is responsible for accrediting medical
institutions. This ensures that healthcare providers in private establishments meet the requisite
qualifications and adhere to ethical standards in patient care.
Furthermore, the National Accreditation Board for Hospitals and Healthcare Providers (NABH)
has emerged as a crucial player in ensuring quality healthcare services. NABH provides
accreditation to healthcare organizations based on defined standards, encouraging continuous
improvement in the quality and safety of patient care.
While regulatory bodies establish the overarching guidelines, the actual implementation and
monitoring of compliance often fall within the purview of state health departments. These
departments are tasked with conducting regular inspections, addressing complaints, and taking
enforcement actions when necessary.
The legal perspective also extends to the rights of patients. The Consumer Protection Act, 2019,
empowers patients to seek redressal for grievances related to deficient services or medical
negligence. This legislation reinforces the idea that healthcare services are not just a matter of
professional expertise but also a contractual obligation to provide a certain standard of care.
However, challenges persist in the effective enforcement of regulations. In many instances, the
regulatory bodies face resource constraints, leading to gaps in monitoring and enforcement.
Additionally, the complexity of the healthcare sector demands a balance between stringent
regulations and the flexibility needed for innovation and growth.
In recent years, there has been a growing recognition of the need to incorporate technology into
healthcare regulation. The use of electronic health records, telemedicine, and other technological
advancements necessitate a dynamic regulatory approach that keeps pace with the evolving
healthcare landscape.
In conclusion, the regulation and control of private nursing homes, hospitals, and diagnostic
centers in India involve a comprehensive legal framework that aims to balance quality healthcare
delivery, patient rights, and industry growth. The collaborative efforts of central and state
governments, regulatory bodies, and legal mechanisms are crucial in shaping a healthcare system
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that meets the diverse needs of the Indian population while upholding ethical standards and
ensuring accountability.
Exams await with challenges unknown,
In your brilliance, seeds are sown.
With courage strong and knowledge blessed,
All the best, may you shine the best.
~Saqib_Ayoub
******************************************************************************
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UNIT I, II, III & V najarsaqibayoub@gmail.

EVOLUTION AND DEVELOPMENT OF HELTH CARE SYSTEMS

UNANI TIBB – THE GREEK SYSTEM

RIGHT TO HEALTH: AN INTERNATIONAL LEGAL PERSPECTIVE

1. Universal Declaration of Human Rights, 1948 (UDHR)

Key Principles or Elements

International legal Framework

5. Convention on the Elimination of All Forms of Discrimination against Women, 1979

Right to Health vis-à-vis Indian Constitution

Directive Principles of State Policy

 Article 39(f): Giving children facilities and opportunities to develop in a healthy

 Article 42: Ensuring just and humane conditions of work;

 Article 48A: Protecting and improving the environment.

Panchayat, Municipality and Health

24. Family Welfare.

25. Women and Child Development

5. Water Supply for Domestic industrial and commercial purpose.

6. Public health, sanitation conservancy and solid waste management.

16. Vital statistics including registration of births and deaths.

17. Regulation of slaughter houses and tanneries.

Right to Health as a Fundamental Right under Article 21

Statutory Control on Health in India:

THE INDIAN PENAL CODE

Infection Adulteration Pollution

269: Negligently Spreading 272: Food/drink 277: Fouling of water

271: Disobeying Quarantine 274: Drug

275: Sale of Such Drug

276: Selling Different Drug or preparation

THE CODE OF CRIMINAL PROCEDURE, 1973

General Principles of Medical Ethics: National and International Perspective

Non-maleficence is the principle that requires healthcare professionals to do no harm. This

In conclusion, the general principles of medical ethics—autonomy, beneficence, non-maleficence,

Therefore, the definition involves three constituents of the negligence:

Provisions under Constitution of India

Remedies under The Consumer Protection Act, 1986

Equality in Access to Health Care

International Legal Perspective

Indian Legal Perspective

Social Welfare Schemes:

i. Ayushman Bharat - Pradhan Mantri Jan Arogya Yojana (PMJAY): Launched in

Professional duties and Medical Ethics

iii. Principles of Professional Conduct:

v. Amendments and Evolution:

vi. Transition to the National Medical Commission:

GENERAL PRINCIPLES OF MEDICAL JURISPRUDENCE

1. Autopsy and Post-mortem Examination: One of the cornerstone principles of medical

2. Expert Testimony and Medico-legal Reports: Medical professionals, particularly forensic

3. Mental Health Assessments: The assessment of mental health is integral to medical

6. DNA Profiling and Forensic Advancements: Technological advancements, particularly in

7. Identification of Individuals: Medical jurisprudence plays a critical role in the identification

ROLE OF CONSENT IN MEDICAL PRACTICE

Consent is a foundational principle in medical jurisprudence that establishes the boundaries of

Definition and Types of Consent

Informed consent is a critical aspect of medical jurisprudence, requiring healthcare professionals

Supreme Court Decisions:

1. Samira Kohli v. Dr. Prabha Manchanda (2008):

2. Common Cause (A Regd. Society) v. Union of India (2018):

3. Paramananda Katara v. Union of India (1989):

Special Situations and Exceptions:

Challenges and Controversies:

Role of Healthcare Professionals:

Public Awareness and Education:

Future Directions and Recommendations:

Negligence by Medical Professionals