LEGAL MEDICINE: SCOPE, STATUS AND STRENGTHENING
DR. M.C. GUPTA
Advocate & Medico-legal consultant
MBBS [AIIMS]
MD, Medicine, [AIIMS]
MPH [San Carlos Univ., Guatemala, Central America]
POST-DOCTORAL FELLOW [United Nations Univ.]
LL.B. [Delhi Univ.]
LL.M. [Kurukshetra University]
Member, Indian Law Institute
Member, Supreme Court Bar Association
Formerly: Professor & Dean, National Institute of Health & Family Welfare
Additional Professor, All India Institute of Medical Sciences
Oration: Annual Conference, National Foundation of Clinical Forensic Medicine (NFCFM)—Coorg, Karnataka, 13-14 November, 2010
Friends,
I am not a specialist in forensic medicine. I am basically an internist. I have worked for two decades in clinical and community nutrition; one decade in training methodology; and one decade in law. It is this last experience that brings me here.
I have chosen the title “Legal Medicine: Scope, Status and Strengthening” because I want to draw attention to certain observations that I have made during last ten years of my law practice. During these ten years, my legal practice has largely concerned medico-legal issues. I have practiced more on the civil side than the criminal side. However, I have had frequent interaction with forensic medicine colleagues at various forums. What I am going to speak may or may not meet everybody’s approval. Some ideas may be new or unconventional, but they probably deserve a serious thought.
CHANGING MEDICO-LEGAL SCENARIO
When I joined the AIIMS as a medical student in 1959, the only connection of medicine with law was through the speciality of forensic medicine. This was because there was no litigation against doctors or hospitals in those days. What the doctor said or did was the final word and nobody questioned it. The word medical negligence was almost unknown. Doctors other than forensic medicine specialists were rarely called to courts. The latter had to appear in the court mainly as expert witnesses in relation to autopsies.
The interface of medicine and law has changed dramatically during last 50 years. While there were no cases earlier against doctors, it has become commonplace now to file cases against doctors for negligence. These cases are mostly in the consumer courts but 20-25% complainants also approach the police and the medical council. This has added a new dimension to the medico-legal interface in India that was almost nonexistent five decades ago. This new development has placed new demands upon the medical as well as the legal profession. While ordinary lawyers are unable to understand the intricacies of medicine and medical treatment, ordinary doctors are unable to understand even ABC of law. The result is that the litigants, both the patient and the doctor, suffer in that they are not able to have proper legal defence. In this scenario, where there is a huge demand for medico-legal experts, there is a great dearth of practitioners of legal medicine. This gap needs to be filled on an urgent basis.
I know through personal experience that medico-legal cases in courts linger on for a long time. There is a case for alleged medical negligence in a trial court in Delhi pending since 1984 in which I am appearing for the doctors. It may still take a few years. The pleadings are complete and only the final arguments are to be held. It is postponed every time for one reason or the other. It is a fact that the courts find medico-legal cases time consuming and difficult to decide and often keep on postponing and giving long dates; the advocates, unable to understand the case properly, keep on seeking postponement on the plea that they need expert opinion; and the parties keep on feeling harassed and exploited (due to mounting legal expenses) in the process. Moreover, there is often miscarriage of justice because of weak, inappropriate or even wrong pleadings submitted in the court by persons not well conversant with medical matters and negligence law. . Another crucial aspect is that out of the three common types of litigations (Consumer complaint; police complaint; and medical council complaint), the chances of wrong judgments being given are fairly high in medical council inquiries. The reason are: FIRSTLY, medical councils don’t often allow advocates to represent their clients, though this is illegal; SECONDLY, even if they allow, ordinary advocates naturally shy away from facing questions from medical experts. I have appeared as an advocate in the MCI on behalf of my clients and have been able to argue at length only becauseof my medical background.
The delays and distorted judgments as regards medico-legal cases are bound to increase in near future because of the lack of availability of legal medicine practitioners. I intend to dwell more on this issue.
THE MEANING OF LEGAL MEDICINE
My experience, both as a doctor and later as a lawyer, has led me to believe that there is a real need to develop the speciality of legal medicine in India. This has become an urgent need after the acute awareness in the public towards their civic and consumer rights consequent upon the operationalisation of the Consumer Protection Act, 1986. But this brings us to the delicate question—“What is legal medicine?”
Two names that are remembered with great respect in this regard are Dr. JaisingP. Modi in India and Dr. William J. Curran in the USA. Dr. Modi needs no introduction to this audience. All of you have surely read his “Medical Jurisprudence and Toxicology”, as I did in 1962 and many times later. Dr. Curran was the Professor of Legal Medicine at Harvard University who retired in 1991 and died in 1996. He had done monumental work in shaping legal medicine in the USA. His contributions towards laws related to mental health; brain death; and AIDS are particularly notable. It would be best to recapitulate here what the two stalwarts have to say about legal medicine.
According to Curran, legal medicine means “The specialty areas of medicine concerned with relations with substantive laws and with legal institutions. Clinical medicine areas, such as the treatment of offenders and trauma medicine related to law, would be included therein”.
[Ref: Curran WJ. Titles in the medicolegal field: a proposal for reform. Am J Law Med. 1975 Mar;1(1):1-11].
According to Modi, (Twenty second edition, 2003):
“Even though medical jurisprudence, forensic medicine and legal medicine are terms commonly used to denote the branch of medicine which deals with the application of the principles and knowledge of medicine for the purpose of law, both civil and criminal, they bear different meanings. Medical jurisprudence proper embraces all questions which affect the civil or social rights of individuals, as well as cases of injuries to persons and brings the medical person in contact with law. Thus medical jurisprudence deals with the legal aspects of medical practice, while forensic medicine deals with the application of medical knowledge to the administration of law”.
Modi refrains from defining legal medicine even though he says that it is different from medical jurisprudence and forensic medicine. A scrutiny of Modi’s definition makes it clear that while both medical jurisprudence and forensic medicine refer to a branch of medicine, the former has much more to do with law (it comes in “contact with law”) than forensic medicine, (which deals with “administration of law”). In other words, medical jurisprudence deals with aspects of both civil and criminal law while forensic medicine deals with mainly police cases.
The higher component of legal aspects in medical jurisprudence in relation to legal medicine is given a further twist in the following definition from a web site devoted to medical terms:
“Legal medicine is the branch of medicine that deals with the application of medical knowledge to legal problems and legal proceedings. Legal medicine is also called forensic medicine. A physician may be engaged in legal (or forensic) medicine while a lawyer with identical interests is said to be in medical jurisprudence. It just depends upon the direction you are coming from”.
The above definition makes an interesting distinction between legal medicine and medical jurisprudence. The distinction emanates from the substantive and the qualifying part of each term. In legal medicine, a person basically practices medicine with special focus on law. In medical jurisprudence, as defined here, a person basically practices law (also referred to as jurisprudence) with special focus on medicine. The latter formulation finds distinct support from the American Heritage® Dictionary of the English Language, which defines the term “Medical jurisprudence” as follows:
“1. The philosophy or science of law.
2. A division or department of law: medical jurisprudence”.
LAW AND MD (FORENSIC MEDICINE)
It is obvious that much confusion surrounds the terms medical jurisprudence, legal medicine and forensic medicine. However, it is clear that the three terms, in the above order, have a progressively decreasing component of law. It is significant that in terms of the Indian Medical Council Act, 1956, the only term that is valid is forensic medicine. The term “Medical jurisprudence” does not figure anywhere in the Act. As a result, the curriculum of MD (Forensic medicine)is pretty weak in law. I have tried to analyse the curriculum as given at the following site:
It gives detailed information regarding the curriculum, books and examination papers related to the MD (Forensic medicine). This information, as well as that available otherwise, makes it clear that:
--There is very little component of law in the course syllabus.
--The faculty does not include a law teacher as regular or guest faculty.
--There is no provision that a law degree may be listed as a desirable qualification for appointment as forensic medicine faculty
--The only law-related reference books that are recommended for the students are: IPC; CrPC; Evidence Act.
--The question papers for MD examination have very little component of law.
The lack of legal component in MD (Forensic medicine) has been pointed out by Modi in the following words:
“Judges have often observed that members of the medical profession are not very careful in drawing up medico-legal reports and, consequently, cut a very poor figure as expert witnesses………...Another reason can be assigned to the want of practical knowledge of the legal procedure in criminal courts when any case of medico-legal interest is being tried. Again, in medical colleges, great stress is laid on the theoretical teaching of this subject but its practical side is very much neglected”.
I fully endorse the above statement. In my own experience, I have found that forensic medicine specialists tend to be unaware of basic legal principles and practices. This has to be viewed in the background that not only others but they themselves also tend to regard themselves as experts in law. I am not pointing a blaming finger. This is a statement of facts. The basis for this lies in the nomenclature itself (MD in Forensic medicine in contrast to medical jurisprudence) and the curriculum that has been drawn accordingly, as analysed above. It is not for me to suggest any changes regarding the nomenclature or course content of the MD (Forensic medicine) course. That is the responsibility of the forensic medicine professors. My intention is only to point out the following:
--That the medico-legal scenario has undergone a sea change over last 50 years;
--That there is a great need, and great dearth, of medico-legal experts to cope with the existing demand in view of a flood of medico-legal cases in the courts;
--That in the absence of other sources of medico-legal expertise, the forensic medicine specialists should be willing to shoulder this responsibility and their employers and the MCI, as also the deans, HODs and professors of forensic medicine need to play their necessary roles in this regard.
--That the strengthening of the legal component of forensic medicine is highly likely to benefit the forensic medicine specialists at individual level also. They may find it pretty lucrative to practice legal medicine if they weigh it as an option in comparison to sevice.
INCREASING THE AVAILABILITY OF MEDICO-LEGAL EXPERTS
I have referred to the urgent need for medico-legal experts. I have expressed the opinion that since such experts are very few at present, the responsibility, in the first instance, ought to be shouldered by the forensic medicine specialists. But the basic issue remains—How to develop sufficient medico-legal expertise in India. I would dwell upon this aspect now.
Without going into the semantics of who is a medico-legal expert or who is better than whom, I wish to take a practical approach. The basic paradigm of this approach is simple: there is a need and this need has to be filled by whatsoever means available. I would put these means into two groups.
In the first group are the means that are already potentially available but need to be refined / strengthened. In this perspective, let me first enumerate who are the medico-legal experts that may be available in India. I categorise them as follows:
1—Persons who are medical practitioners but also deal with legal issues in some manner: This would include the following:
a--Forensic medicine specialists: They deal with those aspects of criminal law that are related to injury to the human body. Some of them widen their interest to medical negligence law also.
b-- Medical professionals who have earned a law degree and, while continuing their medical practice, take up medico-legal cases in consumer courts.
2-- Persons who are legal practitioners but take a special interest in medico-legal cases of civil as well as criminal nature.
3—Persons who have changed profession from the medical to the legal by joining the bar. They were medical practitioners earlier but have converted to legal practitioners. They retain their interest and expertise in medico-legal cases. They are not eligible to practice medicine any more in terms of the Supreme Court judgment in (Dr.) Haniraj L. Chulani Versus Bar Council of Maharashtra and Goa, decided by a three judge bench on 8.4.1996.
Let us look at the training needs of the above three categories.
The first category--It consists of doctors who are already taking up medico-legal cases in the courts, but not in the capacity of a lawyer. This category includes forensic medicine professionals who appear in courts as expert witnesses in police cases, and non-forensic doctors who take up medical negligence cases in consumer courts and medical council inquiries mainly through necessary drafting but also sometimes through personal appearance. Both these sub-categories can better discharge their responsibilities as medico-legal experts if the following is done:
a—In the case of forensic medicine specialists: They should be encouraged to acquire a law degree. Appropriate incentives may be given. For example, preference may be given in appointment or promotion to those having a law degree in addition to a qualification in forensic medicine. Extra allowance / increment may be given to those having a law degree.
b-- In the case of doctors having a law degree, they may be allowed to appear in consumer courts on behalf of clients. This will need an amendment in Regulation 16(7) of the Consumer Protection Regulations,2005,which reads as follows:
“(7) While a Consumer Forum may permit an authorised agent to appear before it, but authorised agent shall not be one who has used this as a profession:
Provided that this sub-regulation shall not apply in case of advocates.”
The suggested amendment would change the proviso in the above regulation to:
“Provided that this sub-regulation shall not apply in case of advocates and MBBS doctors having an LL.B. degree”.
The second category--It consists of lawyers having a special interest in medico-legal cases. The actions needed to tap this source are as follows:
a—Special training courses should be organised to impart necessary knowledge and training about relevant medical concepts and practices to lawyers. Such courses would be best organised jointly by the Bar Council and the Medical Council. At present, some organisations, such as the Indian Law Institute, Symbiosis and the National Law School, Bangalore, are already having such courses which are open to both lawyers and doctors but are mainly fashioned out to impart orientation in law to doctors. There is a need to design courses specifically for lawyers.
b—As per the Advocates Act, “Medicine and law” is one of the elective course which LL.B. students can opt for. In practice, such courses are offered by a very small number of law colleges, maybe less than 10 colleges out of a total of about 900. The Bar Council of India should devise mechanisms and steps to vastly increase this number by appropriate policies.
The third category--It consists of doctors who have joined the bar. They do not need any further training. They are fully competent as medico-legal experts to deal with medico-legal cases of the clients.
In the second group are the means that need to be developed, though not de novo. They already exist in other places. They need to be adopted in the context of the Indian medico-legal scene.