Dr. J. Letha, Vice Chancellor, Cochin University of Science and Technology
Dr Poulose Jacob, Pro Vice Chancellor,
Dr. P. Seema, Director, School of Legal Studies, CUSAT,
Dr. David Peter, Registrar
Dr Soman, Syndicate Member and Dean, Faculty of Law,
Dr. Chandramohana Kumar, Syndicate Member
Smt Jean Vinitha Peter, Asst. Professor, School of Legal Studies
Dear Teachers and my beloved Students,
A Very Good Evening to all of you
I am extremely happy to inaugurate this National Conference on Health-care Systems in India and Human Rights Concerns, organized by the Justice V.R. Krishna Iyer Chair on Human Rights, at the School of Legal Studies of Cochin University of Science and Technology.
Let me at the outset, congratulate the School of Legal Studies on selecting this topic, especially in the context of the newer forms of ethical challenges we are confronting in this age of technology. In the health care scenario, every technological leap forward widens the range of ethical questions, forcing a slow compromise of human rights. I am also happy that the Conference, by its very focus, pays a rich tribute to the Late Justice V.R. Krishna Iyer, who, as we all know was one of the strongest crusaders for human rights in Kerala – a mission he undertook through legislations in his capacity as a former Law Minister and through his judicial decisions and public discussions that sensitized our society in a very positive way.
As we all know, the Constitution of India has provisions regarding the individual's right to lead a healthy life, especially in relation to Article 21 A which provides for the Right to Life. Internationally, the Right to Health relates to the economic, social and cultural right to a universal minimum standard of health to which every individual is entitled. Many global agreements like the universal declaration of human rights, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of Persons with Disabilities have also been linked to an individual's right to a healthy living.
Health care system in India has grown steadily over the years purely owing to the goodwill and service of talented doctors. Nevertheless, still the most neglected and least attentive area in the public life is “health care and protection”. An average Indian hardly takes care of his health unless and until it becomes problematic. As per Human Development Report 2013 released by the United Nations Development Programme (UNDP), India ranked at a low 136 among 186 countries on its Human Development Index (HDI), a composite measure of life expectancy, access to education and income levels. According to India Demographics Profile, 2013 birth rate is 20.6/1000 population, whereas death rate is high as 7.43 /1,000 population even in this era of advanced medical science.
These disturbing trends point to the inconvenient truth that welfare of majority people of India is at stake despite the country’s high growth rate. Two root causes attributes to the prevailing scenario. Firstly the cost of medication is so high that it becomes unaffordable by the marginalized section of the society, and secondly, there is lack of health care awareness among the people.
The need of the hour is to mechanize an effective health care system, which involves everyone, beginning from creating healthcare awareness among patients to providing affordable medication to people. Only such holistic approach can essentially unravel the shackle of ill health in the society and redress the human rights concerns. It is heartening to see how many hospitals in Kerala over many decades have not only offered efficient medical service to the people but also have adopted various schemes to aid the marginalized section of people who could not afford the same.
HEALTH LITERACY
Our forefathers have associated good health to prosperity, while saying, “Health is wealth”. Acquiring health literacy is a precondition for maintaining once good health. However, health literacy is remarkably low in our country. Majority of the population are unable to adequately understand basic health information. This being the state of affair in urban India, the fate of rural India is even depressing.
Researchers have found that poor health literacy results in poor adherence to prescription instructions, infrequent use of preventive medical services, increased hospitalizations and visits to the emergency room and worse control of chronic diseases. The consequences are poorer health and greater medical costs. Therefore, less health literacy has been directly associated with worse quality of life where human rights are seriously violated.
The remedy to this problem lies mainly within the realms of medical education, clinical practice and health literacy. Every medical practitioner shoulders the responsibility to create awareness in this regard. Doctors duty does not end with providing efficient medical service rather it embraces of creating awareness in patient’s mind too. Thus doctors should use plain language not medical jargon when expressing their opinion to the patient and the doctors should also encourage the patients to ask questions regarding their health condition.
In succinct knowing law is empowerment of rights whereas knowing once health condition is empowerment of once self. Hence it becomes necessary for each one of us to possess minimum basic knowledge of our health condition. If I may say so, it is the doctors who have the magic wand to revolutionize the health care needs of the ever-growing population of India. Only government schemes for healthcare without the service of Medical Practitioners is futile and ineffective. So it should be the pious duty of every Medical Practitioner to create awareness among the people along side providing effective medical service.
HEALTHCARE - AN EXTREMELY INFORMATION INTENSIVE INDUSTRY
In India, there is no uniform statute specifically protecting medical privacy. However, the Medical Council of India (MCI) Code of Ethics Regulations, 2002 sets the professional standards for medical practice. The wide duties and responsibilities of the doctors can be clubbed under four heads.
1. Patient Confidentiality: Every Medical Practitioner is obligated to protect the confidentiality of patients including their personal and domestic lives unless the law mandates their disclosure.
2. Data Access and Retention: All Medical Practitioner must maintain the medical records of their patients for a period of three years. Failure to maintain medical records for three years and/or refusal to provide medical records within 72 hours of the request constitutes professional misconduct rendering the Medical Practitioner liable for disciplinary action.
3. Written Consent:Medical Practitioner must obtain written consent from the husband or wife, parent or guardian in the case of a minor, or the patient himself, before performing an operation. When performing an operation, which may result in sterility, informed and written consent is required from both the husband and wife.
4. Research:Publication of photographs or case studies without consent by patients is prohibited. If the identity of the patient cannot be discerned then consent is not needed.
It is important that the doctors follow the above said regulations in all their professional services.
Apart from above positive duties enumerated in the Code of Ethics Regulations, 2002, there are special legislations, which assigns specific duties on Medical Practitioners. For instance the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 prohibits the determination and disclosure of sex of the foetus and prescribes criminal punishment for contravention. Thus the Medical Practitioners owe a professional duty not to disclose the gender of the unborn baby to the parents and their relatives.
Likewise the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 provides for education, employment, creation of a barrier free environment, social security, etc to all disabled person. For the same the doctors are mandated to give disability certificate which requires the person with disabilities to provide sensitive and personal information, including address, proof of residence educational status, occupation, diagnosis and nature of their disability. The doctors must take extra caution in not to violate the right to privacy of their patients.
DATA PROTECTION IN HOSPITALS
The Information Technology Act, 2000 (hereinafter referred as ‘IT Act’) provides legal recognition to any transaction, which is done by electronic way or use of Internet. Hospitals being a corporate body which handles sensitive personal information or date in a computer resource are under an obligation to implement and maintain reasonable security practices and procedures, failure of which would make them liable to pay damages under the said act. Besides any breach of confidentiality and privacy is strictly penalized under section 72 of the IT Act.
The medical practitioners must be conscious of these legal provisions while discharging their duty.As mentioned earlier the doctor-patient relationship is a special relationship, which is based upon trust, and confidence reposed by the patient in the doctor. Thus all Medical Practitioners mutually have the onus to foster confidence in the minds of their patients that their personal information is not misused at any given point of time.
PROFESSIONAL OBLIGATION OF DOCTORS IN MEDICO-LEGAL CASES
I am sure all of you know that as per the code of medical ethics it is the duty of every medical practitioner to make immediate and timely medical care available to every injured person whether he is injured in accident or otherwise. However, it is disheartening to see that doctors who are looked upon as the only hope when a person is hanging between life and death avoid their duty when they come to know that it is a medico-legal case.
There are no provisions in the Indian Penal Code, Code of Criminal Procedure and Motor Vehicles Act, etc., which prevents doctors both in government and private hospitals from promptly attending seriously injured persons in accident cases before the arrival of the Police and their completion of legal formalities. The doctors should be free from fear that they would be unnecessarily harassed or prosecuted for doing their duty without first complying with the police formalities. The effort to save the person should be the top priority not only of the medical professional but also of the police or any other citizen who happens to notice such an incident or a situation.
In such cases, it is the legal duty of the treating doctor under section 39 CrPC to report to the nearest policestation immediately after completing primary lifesaving medical care. The idea is to initiate legal proceeding at the earliest so that maximum evidence can be collected by the police officer. Another myth customarily believed by the doctors is that only government doctors are obliged to treat the medico-legal cases. I would like to clarify in this occasion that there is not explicit restriction in this regard. The Hippocratic oath for the doctors is same both for government and private doctors.
MEDICAL NEGLIGENCE
When the doctor neglects the use of ordinary care and skill towards his patient to whom he owes a duty of observing such care and skill, and the wrongful conduct on his part results in an injury to the patient, there is a case for ‘actionable negligence’. However, a Medical Practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
VARIED PROFESSIONAL ROLE OF MEDICAL PRACTITIONERS
Medical Practitioners in their professional capacity assumes a number of different roles for dispensing their service in the given framework of law.
Expert Examiner/Witness
The registered medical practitioner is required to give impartial and objective opinion to the relevant cases for assisting the court or tribunal in its work. When a doctor is in the role of an examiner for cases of accident and injury or medical negligence, her/his role is akin to that of a medical expert witness and she/he has a primary duty to serve the interest of justice and indirectly those of society.
In carrying out the duties of a medical examiner, the professional ethical principles of respect for persons’ autonomy, confidentiality, informed consent, professional competence, avoidance of conflicts of interest and veracity are to be upheld. False or inappropriate declarations and any failure or neglect of professional responsibilities would lead to serious legal, ethical and professional repercussions.
Certificate issuing authority.
There are legislations like Employment Act, Workmen Compensation Act, etc, which confers the distinct power on registered Medical Practitioner to issue medical certificates for fitness and sickness. While issuing such certificates the doctor must take every effort to be objective and fair to all parties concerned. The doctor must not issue a false or unjustified certificate on the basis of a view that such a certificate would serve the patient’s interest. At the same time, a company doctor or occupational physician should not make a judgment detrimental to the employee, just to support the interest of his employer, who may be paying the doctor. Another significant duty bestowed by the state on the registered Medical Practitioner is to issue death certificate. The medical Practitioners must observe due diligence and care in all these assigned roles.
Final Remarks
The noblest profession of the society is Medical Profession and the bounden duty of a doctor is to save a precious life. However, it is now being overpowered by their economic thrust prompting them to ignore the ethical principles and rule of law. This is the very cause of litigation wherein the patient or his legal representative or legal heir is dragging the doctors to the Court of Law. I urge the doctor community not to loose site of the imbedded qualities of their noble profession.
I am happy that this Conference is discussing many of the ethical and legal issues that need urgent discussion in society. I hope that the discussions in the conference will help the State in refining the policy regarding protection of the human rights of patients and research participants. If our discussions lead to the declaration of a clear and transparent policy regarding voluntary disclosure of such rights to any patient by our hospitals I would say that we have made a real beginning.
I compliment the Cochin University's School of Legal Studies for organizing this Conference. I also greet all the participants who have come to take part in the deliberations.
Jai Hind
