1. Law does not cure illness, but it only regulates Institutions and human behaviour. In the lightof this background discuss Karnataka Medical Establishment Act and PNDT Act
2 a) Role of Medical Practitioner vis-a-vis para medical persons and patients
2 b) Social determinants of health
3a) euthanasia and ruling of the supreme court with reference to positive euthanasia
3b) Premenstrual syndrome
3 c) Public health vivs-a-vis Private health
4. Medical education is as important as medical services -role of Medical Council of India. Discuss
5.Transplantation of Human organs- a good step to protect human life,but it shall not be done on contractual basis. Discuss with reference to transplantation of Human Organs Act
6. Provisions of Indian Penal Code with reference to health
7. a) Samir Kholi v Prabha Manchanda with reference to concept of prior consent
7 b) Prenatal diagnostic and Down syndrome concept.
Thursday, 16 June 2011
Paper IV June 2011
1.
a) F.I.R.
b) Examination-in-chief, Cross-examination, Re-examination
c) Vicarious liability
d) District Consumer redressal forum
e) Informed consent in clinical trials
f) Distinction between limitation period for filing the suit in Civil Court claiming compensation and Limitation period claiming compensation in the District Consumer Forum
2.Explain the constitution of the Judicial agencies, their hierarchy, and pecuniary and territorial jurisdiction, and their powers under the Consumer Protection Act.
3. Can a patient who has suffered physical pain, mental agony and financial loss due to negligence of a government doctor working in a government hospital claim compensation? if so, in which Court/Forum? Explain with reference todecided cases.
4.Is a doctor accountable to any one or any authority/authorities? If so, what is his accountability? Explain in detail.
5. Explain how a magistrate proceeds with a case when charge sheet for commission of offence punishable under Section 304A IPC alleging that the patient died due to negligence of doctor in treatment, is filed in the Court by the Police after investigation into the case, from stage to stage till the trial in the case is concluded and the Judgment is pronounced.
6. On what merits and preliminary objections, a doctor may file his version (opposte party's version) in reply to acomplaint filed by a patient claiming compensation of Rs 5 Lakhs before the District Consumer Redressal Forum alleging Doctor's Negligence in treatment of the patient?
a) F.I.R.
b) Examination-in-chief, Cross-examination, Re-examination
c) Vicarious liability
d) District Consumer redressal forum
e) Informed consent in clinical trials
f) Distinction between limitation period for filing the suit in Civil Court claiming compensation and Limitation period claiming compensation in the District Consumer Forum
2.Explain the constitution of the Judicial agencies, their hierarchy, and pecuniary and territorial jurisdiction, and their powers under the Consumer Protection Act.
3. Can a patient who has suffered physical pain, mental agony and financial loss due to negligence of a government doctor working in a government hospital claim compensation? if so, in which Court/Forum? Explain with reference todecided cases.
4.Is a doctor accountable to any one or any authority/authorities? If so, what is his accountability? Explain in detail.
5. Explain how a magistrate proceeds with a case when charge sheet for commission of offence punishable under Section 304A IPC alleging that the patient died due to negligence of doctor in treatment, is filed in the Court by the Police after investigation into the case, from stage to stage till the trial in the case is concluded and the Judgment is pronounced.
6. On what merits and preliminary objections, a doctor may file his version (opposte party's version) in reply to acomplaint filed by a patient claiming compensation of Rs 5 Lakhs before the District Consumer Redressal Forum alleging Doctor's Negligence in treatment of the patient?
Friday, 3 June 2011
Blood Bank
http://www.nacoonline.org/upload/Policies%20&%20Guidelines/29,%20voluntary%20blood%20donation.pdf
How much does a unit of blood cost?
The government of India has prescribed rates of blood and blood products. The price list is as follows:
| Item | Price |
|---|---|
| Whole Blood | Rs 500/unit |
| Fresh Frozen Plasma | Rs 400/unit |
| Packed Cell | Rs 300/unit |
| Platelet Concentrate | Rs 400/unit |
But most blood banks use these as rough guideline value and charges can vary, depending on the demand. Even where blood is collected free, banks have to spend for processing, storage and testing.
Right to Health
Article 25 of the Universal Declaration of Human Rights, 1948 (UDHR) encapsulated the ‘right to health’ in the following words:
“1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.”
While Article 12(1) of the ICESCR referred to the ‘right to health’ in aspirational terms, Article 12(2) mandated specific measures on part of the state parties to the covenant. Its language reads as follows:
“1. The State Parties to the present Covenant recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:
(a) The provision for the reduction of the still-birth rate and of infant mortality and for the healthy development of the child;
(b) The improvement of all aspects of environmental and industrial hygiene;
(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;
(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.”
Directive principles of State policy has several provisions that touch on the subject of health and one can refer to the text of Articles 39(e), 39(f), 42 and 47.
In India, the theory of the inter-relatedness between rights was famously articulated in the Maneka Gandhi decision. This became the basis for the subsequent expansion of the understanding of the ‘protection of life and liberty’ under Article 21 of the Constitution of India. The Supreme Court of India further went on to adopt an approach of harmonization between fundamental rights and directive principles in several cases. With regard to health, a prominent decision was delivered in Parmanand Katara v. Union of India.
In that case, the court was confronted with a situation where hospitals were refusing to admit accident victims and were directing them to specific hospitals designated to admit ‘medico-legal cases’. The court ruled that while the medical authorities were free to draw up administrative rules to tackle cases based on practical considerations, no medical authority could refuse immediate medical attention to a patient in need. The court relied on various medical
sources to conclude that such a refusal amounted to a violation of universally accepted notions of medical ethics. It observed that such measures violated the ‘protection of life and liberty’ guaranteed under Article 21 and hence created a right to emergency medical treatment.
Another significant decision which strengthened the recognition of the ‘right to health’ was that in Indian Medical Association v. V.P. Shantha.
In that case, it was ruled that the provision of a medical service (whether diagnosis or treatment) in return for monetary consideration amounted to a ‘service’ for the purpose of the
Consumer Protection Act, 1986. The consequence of the same was that medical practitioners could be held liable under the act for deficiency in service in addition to negligence. This ruling has gone a long way towards protecting the interests of patients. However, medical services offered free of cost were considered to be beyond the purview of the said Act.
With regard to the access and availability of medical facilities, the leading decision of the Supreme Court was given in Paschim Banga Khet Mazdoor Samiti v. State of West Bengal.
The facts that led to the case were that a train accident victim was turned away from a number of government-run hospitals in Calcutta, on the ground that they did not have adequate facilities to treat him. The said accident victim was ultimately treated in a private hospital but the delay in treatment had aggravated his injuries. The Court realized that such
situations routinely occurred all over the country on account of inadequate primary health facilities. The Court issued notices to all State governments and directed them to undertake measures to ensure the provision of minimal primary health facilities. When confronted with the argument that the same was not possible on account of financial constraints and limited personnel, the Court declared that lack of resources could not be cited as an excuse for non-performance of a constitutionally mandated obligation. The Court set up an expert committee to investigate the matter and endorsed the final report of the said committee. This report contained a sevenpoint agenda addressing several issues such as the upgrading of facilities all over the country and the establishment of a centralized communications system amongst hospitals to ensure the adequacy and prompt availability of ambulance equipment and personnel.
Some commentators have argued that by recognizing a governmental obligation to provide medical facilities, the Court has created a justiciable ‘right to health’.
Wednesday, 2 February 2011
Bail
Bail is some form of property deposited or pledged to a court to persuade it to release a suspect from jail, on the understanding that the suspect will return for trial or forfeit the bail (and possibly be brought up on charges of the crime of failure to appear).
http://en.wikipedia.org/wiki/Bail
The main reasons for refusing bail are that the defendant is accused of an imprisonable offence and there are substantial grounds for believing that the defendant would:
Abscond
Commit further offences whilst on bail
Interfere with witnesses
The court may also refuse bail:
For the defendant's own protection
Where the defendant is already serving a custodial sentence for another offence
Where the court is satisfied that it has not been practicable to obtain sufficient information
Where the defendant has already absconded in the present proceedings
Where the defendant has been convicted but the court is awaiting a pre-sentence report, other report or inquiry and it would be impracticable to complete the inquiries or make the report without keeping the defendant in custody
Where the defendant is charged with a non-imprisonable offence, has already been released on bail for the offence with which he is now accused, and has been arrested for absconding or breaching bail
The court should take into account the:
Nature and seriousness of the offence or default (and the probable method of dealing with the defendant for it)
Character, antecedents, associations and community ties of the defendant,
Defendant's bail record, and
Strength of the evidence
http://en.wikipedia.org/wiki/Bail
The main reasons for refusing bail are that the defendant is accused of an imprisonable offence and there are substantial grounds for believing that the defendant would:
Abscond
Commit further offences whilst on bail
Interfere with witnesses
The court may also refuse bail:
For the defendant's own protection
Where the defendant is already serving a custodial sentence for another offence
Where the court is satisfied that it has not been practicable to obtain sufficient information
Where the defendant has already absconded in the present proceedings
Where the defendant has been convicted but the court is awaiting a pre-sentence report, other report or inquiry and it would be impracticable to complete the inquiries or make the report without keeping the defendant in custody
Where the defendant is charged with a non-imprisonable offence, has already been released on bail for the offence with which he is now accused, and has been arrested for absconding or breaching bail
The court should take into account the:
Nature and seriousness of the offence or default (and the probable method of dealing with the defendant for it)
Character, antecedents, associations and community ties of the defendant,
Defendant's bail record, and
Strength of the evidence
Article 21
Maneka Gandhi vs Union of India
http://www.governindia.org/wiki/Maneka_Gandhi_vs_Union_of_India
Maneka Gandhi vs Union of India
Petitioner: Maneka Gandhi
Respondent: Union of India
Headnote
The petitioner was issued a passport on June 1, 1976 under the Passport Act, 1967. On the 4th of July 1977, the petitioner received a letter dated 2nd July, 1977, from the Regional Passport Officer Delhi intimating to her that it was decided by the Government of India to impound her passport under s. 10(3)(c) of the Act "in public interest". The petitioner was required to surrender her passport within 7 days from the receipt of that letter.
The petitioner immediately addressed a letter to the Regional Passport Officer requesting him to furnish a copy of the statement of reasons for making the order as provided in s.10(5). A reply was sent by the Government of India, Ministry of External Affairs on 6th July 1977 stating inter-alia that the Government decided "in the interest of the general public" not to furnish her copy of the statement of reasons for the making of the order. The petitioner thereupon filed the present Writ Petition challenging action of the Government in- impounding her passport and declining to give reasons for doing so. The Act was enacted on 24-4-67 in view of the decision of this Court in Satwant Singh Sawhney's case. The position which obtained prior to the coming into force of the Act was that there was no law regulating the issue of passports for leaving the shores of India and going abroad. The issue of passport was entirely within the unguided and unchannelled discretion of the Executive. In Satwant Singh's case, this Court bell by a majority that the expression 'personal liberty' in Article 21 takes in, the right of locomotion and travel abroad and under Art. 21 no person can be deprived of his right to go abroad except according to the procedure established by law. This decision was accepted by the Parliament and the infirmity pointed but by it was set right by the enactment of the Passports Act, 1967.
The preamble of the Act shows that it was enacted to provide for the issue of passport and travel documents to regulate the departure from India of citizens of India and other persons and for incidental and ancillary matters. Section 3 provides that no person shall denart from or attempt to depart from India unless he holds in this 'behalf a valid passport or travel document. Section 5(1) provides for making of an application for issue of a passport or travel document for visiting foreign country. Sub-section (2) of section 5 says that on receipt of such application the Passport Authority, after making such enquiry, if any, as it may consider necessary, shall, by order in writing, issue or refuse to issue the passport or travel document or make or refuse to make that passport or travel document endorsement in respect of one or more of the foreign countries specified in the application. Sub-section (3) requires the Passport Authority where it refuses to issue the passport or travel document or to make any endorsement to record in writing a brief statement of its reasons for making such order. Section 6(1) lays down the grounds on which the Passport Authority shall refuse to make an endorsement for visiting any foreign country and provides that on no other ground the endorsement shall be refused. Section 6(2) specifies the grounds on which alone and on no other grounds the Passport Authority shall refuse to issue the Passport or travel document for visiting any foreign country and amongst various grounds set out there the last is that in the opinion of the Central Government the issue of passport or travel document to the applicant will not be in the public interest. Sub-section (1) of section 10 empowers the Passport Authority to vary or cancel the endorsement on a passport or travel document or to vary or cancel it on the conditions subject to which a passport or travel document has been issued having regard to, inter alia, the provisions of s. 6(1) or any notification under s. 19. Sub-section (2) confers powers on the Passport Authority to vary or cancel the conditions of the passport or travel document on the application of the holder of the passport or travel document and with the previous approval of the Central Government. Sub-section (3) provides that the Passport Authority may impound or cause to be impounded or revoke a passport or travel document on the grounds set out in cl. (a) to (h). The order impounding the passport in the present, case, was made by the Central Government under cl. (c) which reads as follows :-
"(c) If the passport authority deems it necessary so to do in the interest of the sovereignty and integrity of India, the security of India, friendly relations of India with the foreign country, or in the interests of the general public."
Sub-section (5) requires the Passport Authority impounding or revoking a passport or travel document or varying or cancelling an endorsement made upon it to record in writing a brief statement of the reasons for making such order and furnish to the holder of the passport or travel document on demand a copy of the same, unless, in any case, the Passport Authority is of the opinion that it will not be in the interest of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interest of the general public to furnish such a copy. The Central Government declined to furnish a copy of this statement of reasons for impounding the passport of the petitioner on the ground that it was not in the interest of the general public to furnish such copy to the petitioner.
The petitioner contended.
1.The right to go abroad is part of "personal liberty" within the meaning of that expression as used in Art. 21 and no one can be deprived of this right except according to the procedure prescribed by law. There is no procedure prescribed by the Passport Act, for impounding or revoking a Passport. Even if some procedure can be traced in the said Act it is unreasonable and arbitrary in as much as it does not provide for giving an opportunity to the holder of the Passport to be heard against the making of the order.
2.Section 10(3) (c) is violative of fundamental rights guaranteed under Articles 14,19(1) (a) and (g) and 21.
3.The impugned order is made in contravention of the rules of natural justice and is, therefore, null and void. The impugned order has effect of placing an unreasonable restriction on the right of free speech and expression guaranteed to the petitioner under Article 19(1) (a) as also on the right to carry on the profession of a journalist conferred under Art. 19 (1) (g).
4. The impugned order could not consistently with Articles 19(1)(a) and (g)be passed on a mere information of the Central Government that the presence of the petitioner is likely to be required in connection with the proceedings before the Commission of Inquiry.
5.In order that a passport may be impounded under s. 10 (3) (c), public interest must actually exist in present and mere likelihood of public interest arising in future would be no ground for impounding the passport.
6. It was not correct to say that the petitioner was likely to be required for giving evidence before the Shah Commission.
The respondents denied the contentions raised by the petitioner.
http://www.governindia.org/wiki/Maneka_Gandhi_vs_Union_of_India
Maneka Gandhi vs Union of India
Petitioner: Maneka Gandhi
Respondent: Union of India
Headnote
The petitioner was issued a passport on June 1, 1976 under the Passport Act, 1967. On the 4th of July 1977, the petitioner received a letter dated 2nd July, 1977, from the Regional Passport Officer Delhi intimating to her that it was decided by the Government of India to impound her passport under s. 10(3)(c) of the Act "in public interest". The petitioner was required to surrender her passport within 7 days from the receipt of that letter.
The petitioner immediately addressed a letter to the Regional Passport Officer requesting him to furnish a copy of the statement of reasons for making the order as provided in s.10(5). A reply was sent by the Government of India, Ministry of External Affairs on 6th July 1977 stating inter-alia that the Government decided "in the interest of the general public" not to furnish her copy of the statement of reasons for the making of the order. The petitioner thereupon filed the present Writ Petition challenging action of the Government in- impounding her passport and declining to give reasons for doing so. The Act was enacted on 24-4-67 in view of the decision of this Court in Satwant Singh Sawhney's case. The position which obtained prior to the coming into force of the Act was that there was no law regulating the issue of passports for leaving the shores of India and going abroad. The issue of passport was entirely within the unguided and unchannelled discretion of the Executive. In Satwant Singh's case, this Court bell by a majority that the expression 'personal liberty' in Article 21 takes in, the right of locomotion and travel abroad and under Art. 21 no person can be deprived of his right to go abroad except according to the procedure established by law. This decision was accepted by the Parliament and the infirmity pointed but by it was set right by the enactment of the Passports Act, 1967.
The preamble of the Act shows that it was enacted to provide for the issue of passport and travel documents to regulate the departure from India of citizens of India and other persons and for incidental and ancillary matters. Section 3 provides that no person shall denart from or attempt to depart from India unless he holds in this 'behalf a valid passport or travel document. Section 5(1) provides for making of an application for issue of a passport or travel document for visiting foreign country. Sub-section (2) of section 5 says that on receipt of such application the Passport Authority, after making such enquiry, if any, as it may consider necessary, shall, by order in writing, issue or refuse to issue the passport or travel document or make or refuse to make that passport or travel document endorsement in respect of one or more of the foreign countries specified in the application. Sub-section (3) requires the Passport Authority where it refuses to issue the passport or travel document or to make any endorsement to record in writing a brief statement of its reasons for making such order. Section 6(1) lays down the grounds on which the Passport Authority shall refuse to make an endorsement for visiting any foreign country and provides that on no other ground the endorsement shall be refused. Section 6(2) specifies the grounds on which alone and on no other grounds the Passport Authority shall refuse to issue the Passport or travel document for visiting any foreign country and amongst various grounds set out there the last is that in the opinion of the Central Government the issue of passport or travel document to the applicant will not be in the public interest. Sub-section (1) of section 10 empowers the Passport Authority to vary or cancel the endorsement on a passport or travel document or to vary or cancel it on the conditions subject to which a passport or travel document has been issued having regard to, inter alia, the provisions of s. 6(1) or any notification under s. 19. Sub-section (2) confers powers on the Passport Authority to vary or cancel the conditions of the passport or travel document on the application of the holder of the passport or travel document and with the previous approval of the Central Government. Sub-section (3) provides that the Passport Authority may impound or cause to be impounded or revoke a passport or travel document on the grounds set out in cl. (a) to (h). The order impounding the passport in the present, case, was made by the Central Government under cl. (c) which reads as follows :-
"(c) If the passport authority deems it necessary so to do in the interest of the sovereignty and integrity of India, the security of India, friendly relations of India with the foreign country, or in the interests of the general public."
Sub-section (5) requires the Passport Authority impounding or revoking a passport or travel document or varying or cancelling an endorsement made upon it to record in writing a brief statement of the reasons for making such order and furnish to the holder of the passport or travel document on demand a copy of the same, unless, in any case, the Passport Authority is of the opinion that it will not be in the interest of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interest of the general public to furnish such a copy. The Central Government declined to furnish a copy of this statement of reasons for impounding the passport of the petitioner on the ground that it was not in the interest of the general public to furnish such copy to the petitioner.
The petitioner contended.
1.The right to go abroad is part of "personal liberty" within the meaning of that expression as used in Art. 21 and no one can be deprived of this right except according to the procedure prescribed by law. There is no procedure prescribed by the Passport Act, for impounding or revoking a Passport. Even if some procedure can be traced in the said Act it is unreasonable and arbitrary in as much as it does not provide for giving an opportunity to the holder of the Passport to be heard against the making of the order.
2.Section 10(3) (c) is violative of fundamental rights guaranteed under Articles 14,19(1) (a) and (g) and 21.
3.The impugned order is made in contravention of the rules of natural justice and is, therefore, null and void. The impugned order has effect of placing an unreasonable restriction on the right of free speech and expression guaranteed to the petitioner under Article 19(1) (a) as also on the right to carry on the profession of a journalist conferred under Art. 19 (1) (g).
4. The impugned order could not consistently with Articles 19(1)(a) and (g)be passed on a mere information of the Central Government that the presence of the petitioner is likely to be required in connection with the proceedings before the Commission of Inquiry.
5.In order that a passport may be impounded under s. 10 (3) (c), public interest must actually exist in present and mere likelihood of public interest arising in future would be no ground for impounding the passport.
6. It was not correct to say that the petitioner was likely to be required for giving evidence before the Shah Commission.
The respondents denied the contentions raised by the petitioner.
Jurisdiction of the district forum
11. Jurisdiction of the district forum.
http://www.vakilno1.com/bareacts/consumerprotectionact/s11.htm
(1) Subject to other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the Compensation if any, claimed 1[does not exceed rupees twenty lakhs].
(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction, -
(a) The opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or 2[carries on business or has a branch office, or] personally works for gain; or
(b) Any of the opposite parties where there are more then one, at the time of the institution of the complaint, actually and voluntarily resides, or 2[carries on business or has a branch office], or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or 2[carry on business or have a branch office], or personally works for gain, as the case may be, acquiesce in such institution; or
(c) The cause of action, wholly or in part arises.
1. Substituted by Act 50 of 1993, sec.9 for "is less than rupees one lakh"(w. e. f. 18-6-1993) and again subs. by Act 62 of 2002, sec. 7, for "does not exceed rupees five lakhs" (w. e. f. 15-3-2003)
2. Subs. by Act 50 of 1993, sec.9 for "carries on business or" (w. r. e. f. 18-6-1993).
http://www.vakilno1.com/bareacts/consumerprotectionact/s11.htm
(1) Subject to other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the Compensation if any, claimed 1[does not exceed rupees twenty lakhs].
(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction, -
(a) The opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or 2[carries on business or has a branch office, or] personally works for gain; or
(b) Any of the opposite parties where there are more then one, at the time of the institution of the complaint, actually and voluntarily resides, or 2[carries on business or has a branch office], or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or 2[carry on business or have a branch office], or personally works for gain, as the case may be, acquiesce in such institution; or
(c) The cause of action, wholly or in part arises.
1. Substituted by Act 50 of 1993, sec.9 for "is less than rupees one lakh"(w. e. f. 18-6-1993) and again subs. by Act 62 of 2002, sec. 7, for "does not exceed rupees five lakhs" (w. e. f. 15-3-2003)
2. Subs. by Act 50 of 1993, sec.9 for "carries on business or" (w. r. e. f. 18-6-1993).
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