ESSAYS

1. Duties and Rights of a Registered Medical Practitioner (RMP) + Privileged Communication

DUTIES OF A REGISTERED MEDICAL PRACTITIONER

A. Duties Towards Patients

1. A doctor should not discuss the illness of his patient with others without the patient's consent.
2. If the patient is a major, the doctor should not disclose any facts about the illness without consent, even to parents or relatives who may be paying his fees. In case of a minor or person of unsound mind, guardians/parents should be informed.
3. A doctor should not answer enquiries by third parties regarding the nature of illness or subsequent effects without the patient's consent.
4. He should not disclose information about illness without consent, even when requested by a public or statutory body, except in notifiable diseases.
5. Even between husband and wife, professional secrecy must be maintained.
6. He should not disclose information to an insurance company about a person who has consulted him, without the patient's consent.
7. Information about a dead person may be given only after obtaining consent from the nearest relative.
8. The sex of an unborn child detected during ultrasonography should not be disclosed.

B. Duties in Criminal Matters

1. In medicolegal cases, treatment gets priority. A doctor aware of crimes such as murder, dacoity, waging war against the Government, or helping prisoners escape is legally bound to report to the nearest Magistrate or police officer [Section 33, BNSS; Section 211, BNS].
2. A doctor who treats a person with gunshot or stab wounds due to criminal assault must inform the police.
3. If a doctor treats a person who has attempted suicide, he is not legally bound to report, but if the person dies, he must inform police.
4. Special duty in emergency: In emergency, he has a moral, ethical and humanitarian duty to do his best to help the patient and save his life. He must render aid and ensure the patient reaches proper expert/institution as early as possible.
5. A doctor who intentionally omits to inform police about an offence committed by a patient shall be punished with imprisonment up to 6 months [Section 239, BNS].

C. Professional Secrecy (Confidentiality)

RIGHTS AND PRIVILEGES OF AN RMP

1. Right to practice: A registered medical practitioner has the right to practice medicine lawfully.
2. Right to professional secrecy: The doctor cannot be compelled to disclose professional secrets unless ordered by a court.
3. Right to refuse treatment: A doctor is free to accept or refuse to treat a patient subject to professional obligations in emergencies. He may refuse if: (a) beyond his practicing hours, (b) not belonging to his specialty, (c) illness beyond his competence or available facilities, (d) doctor is unwell.
4. Right to fees: The patient should pay a reasonable fee to the doctor.
5. Right to claim privilege in court: The doctor should appeal to the Court before disclosing professional secrets. If the Court does not accept the plea, the doctor may request to give the answer in writing so the public does not know it.
6. Right to communicate with colleagues: A doctor can disclose and discuss medical facts with other doctors and paramedical staff (nurses, radiologists, physiotherapists) to provide better service to the patient.

PRIVILEGED COMMUNICATION

1. Infectious diseases: If a patient with an infectious disease is employed as a cook/waiter, food-handler with enteric infection, teacher with tuberculosis, or children's nurse, the doctor should persuade the patient to leave the job. If the patient refuses, the doctor can inform the employer.
2. Servants and employees: An engine driver, bus driver, or ship's officer suffering from epilepsy, high blood pressure, alcoholism, drug addiction, or color blindness poses danger to the public. If persuasion to change employment fails, the doctor should inform the employer that the patient is unfit for that employment.
3. Notifiable diseases: A medical practitioner has a statutory duty to notify births, deaths, infectious diseases, etc., to Public Health authorities.
4. Venereal diseases: If a syphilitic patient is about to marry, the doctor should advise the patient not to marry until cured. If refused, the doctor can disclose the condition to the woman concerned or her parents. Swimming pools should be prohibited to those having syphilis or gonorrhea; if refused, the authorities can be informed. The doctor can inform the warden of a hostel if any boarder is suffering from venereal disease.
5. Patient's own interest: The doctor may disclose the patient's condition to some other person so the patient may be properly treated, e.g., to warn parents/guardians of suicidal tendencies.
6. Self-interest: In civil and criminal suits by the patient against the doctor, evidence about the patient's condition may be given.
7. Negligence suits: When a physician is employed by the opposite party to examine a patient who has filed a negligence suit, information acquired is not privileged (no physician-patient relationship), and the doctor may testify.
8. Suspected crime: Every person aware of the commission of or intention to commit any offence shall immediately give information to the nearest Magistrate or police officer [Section 33, BNSS]. If a doctor learns of serious crimes (murder, assault, rape) by treating the victim or assailant, he is bound to inform the police.
9. Courts of law: In a Court of law, a doctor cannot claim privilege concerning facts about illness of his patient, if relevant to the inquiry. He should appeal to the Court if asked to reveal professional secrets. If the Court denies the plea, the doctor must answer to avoid contempt of Court penalties. The witness should not voluntarily disclose information either in Court or outside it.
10. Communication with colleagues: A doctor can disclose and discuss medical facts with other doctors and paramedical staff to provide better service to the patient.

SHORT NOTES

1. Subpoena (Summons)

• Etymology: Sub = under; Poena = penalty
• Definition: A subpoena is a document compelling the attendance of a witness in a court of law under penalty, on a particular day, time and place, for the purpose of giving evidence [Sections 63-71, BNSS; previously Sections 61-69, Cr.P.C.].
• It may also require the witness to bring books, documents or other things under his control - this is called subpoena duces tecum [Sections 94 & 195, BNSS; Section 165, BSA].
• It is issued by the court in writing, in duplicate, signed by the presiding officer, and bears the seal of the Court [Section 63, BNSS].
• Crime number and name of the accused are mentioned.
• Served by a police officer, court officer or public servant - one copy delivered to the witness, who signs a receipt on the back of the other copy [Section 64, BNSS].
• Can also be served by registered post or fixed on a conspicuous part of the house.
• If the person is in active government service, the summons is sent to the head of office who causes it to be served [Section 68, BNSS].
• A summons must be obeyed; the witness must produce documents if asked [Section 94, BNSS].
• A witness may be excused if he has a valid and urgent reason.

• In a civil case - liable to pay damages.
• In criminal cases - Court may issue notice under Section 389, BNSS; if found unjustified, may sentence to fine, imprisonment, or issue bailable/nonbailable warrants [Sections 206-208, BNS; Section 90, BNSS].
• Nonattendance intentionally: imprisonment up to one month, or fine, or both [Section 208, BNS].

• Criminal Courts have priority over Civil Courts.
• Higher Courts have priority over lower Courts.
• If summoned by two courts of same status, attend the one from which summons was received first.

2. Dying Declaration

• Latin: Leterm mortem = "Words said before death" [Section 26(1), BSA; previously Section 32, I.E.A.]
• Definition: It is a written or oral statement of a person who is dying as a result of some unlawful act, relating to the material facts of the cause of his death or bearing on the circumstances.

• If there is time, an executive magistrate should be called to record the declaration.
• Before recording, the doctor must certify that the person is conscious and mentally normal (compos mentis).
• If the condition is serious and there is no time to call a magistrate, the doctor takes the declaration in the presence of two witnesses.
• Can also be recorded by village headman, police, or any person, but evidential value will be less.
• Oath is not administered, because of the belief that the dying person tells the truth.

1. Leading questions should not be put. The declarant should give his statement without undue influence, outside prompting, or assistance.
2. If a point is unclear, a question may be asked to clarify, but both the question and answer should be recorded. It should be read over to the declarant, and signature/thumb impression obtained.
3. The statement must be of fact, not opinion.
4. If the declarant becomes unconscious during recording, the recorder must record as much information as obtained and sign it.
5. If the dying person is unable to speak but can make signs, this can be recorded and is considered a "verbal statement."
6. The doctor and witnesses should also sign the declaration. If written by the declarant himself, it should be signed by the declarant, the doctor, and witnesses.

• The declaration is admissible not only against the accused who killed the declarant, but against all other persons involved in the same incident.
• In India, if the declarant is in a sound state of mind at the time of making the declaration, it is admissible even if the declarant was not under expectation of death at that time.
• Sent to the Magistrate in a sealed cover.
• Produced at trial and accepted as evidence in case of death of the victim in all criminal and civil cases where cause of death is under enquiry.
• The person recording it must give evidence in court to prove it.
• If the declarant survives, the declaration is not admitted but has corroborative value, and the person is called to give oral evidence.
• Important to identify the offender or clear innocent persons.

3. Magistrate Inquest

1. Dowry death.
2. Death of a woman within 7 years of marriage if:
   • She commits suicide
   • Dies in circumstances raising reasonable suspicion that some other person committed an offence
   • Any relative of the woman makes a request
   • There is any doubt regarding cause of death
3. Exhumation.
4. Any person dies or disappears, or rape is alleged to have been committed on any woman, while such person/woman is in the custody of police or any other custody authorized by the Court [BNSS Act 46 of 2023 - Section 196].

4. Define Inquest; Types of Inquest

(1) Police Inquest [Section 194, BNSS]

• Conducted by the officer-in-charge (usually sub-inspector, but not below head constable rank) of a police station.
• The officer is known as Investigating Officer (I.O.).
• Conducted when there is information that a person has committed suicide, been killed by another person/animal/machinery/accident, or died under circumstances raising reasonable suspicion.
• Carried out in the presence of two or more respectable persons (panchas).
• The Investigating Officer prepares a report (Panchanama) describing wounds, fractures, bruises, and other marks of injury, and stating how/by what weapon injuries appear to have been inflicted.
• The Panchanama is signed by the I.O. and panchas.
• Body is sent for postmortem examination to the nearest authorized government doctor, without removing clothes, along with a requisition (dead body challan) and a copy of the inquest report.
• If no foul play is suspected, the dead body is handed over to relatives for disposal.

(2) Magistrate Inquest [Section 196, BNSS]

• Conducted by District Magistrate, Sub-divisional Magistrate, Tahsildar, or specially empowered Executive Magistrate.
• Done in cases of dowry death, death/suicide of a woman within 7 years of marriage, exhumation, death/disappearance in police custody, or alleged rape while in custody.

Other Types (Not practiced in India):

(3) Coroner's Inquest

• Practiced in UK, some US states and other countries.
• Coroner is a qualified person holding a degree related to law.
• Conducts inquest in all unnatural and suspicious deaths.
• Coroner's Court is a court of enquiry with sworn jurors.
• The doctor is summoned to give evidence at the inquest.
• The Coroner has some judicial powers.

(4) Medical Examiner's System

• Practiced in most US states, Japan, Canada, etc.
• A medical practitioner known as the Medical Examiner is appointed to perform the functions of the Coroner.
• He does not have judicial functions.
• He has no authority to order arrest.
• The doctor visits the scene of crime and conducts the inquest - considered superior to Coroner's and police inquest.

5. Cross Examination

1. Examination-in-Chief (Direct Examination) [Section 142, BSA]: The first examination of a witness by the lawyer of the side which has summoned him. The object is to elicit all relevant, convincing medical facts and the conclusions the doctor has drawn from the facts.
2. Cross-Examination: The examination of the witness by the lawyer of the opposite party. Its object is to weaken the evidence given during examination-in-chief, to bring out new or additional relevant evidence, or to shake the credibility of the witness. The opposing lawyer may ask leading questions during cross-examination. The expert who answers questions with goodwill and accuracy, and who does not make statements he cannot defend, will be successful under such attack. Clear presentation and ability in expressing a relatively firm opinion are helpful.
3. Re-Examination: After cross-examination, the party who called the witness may re-examine him to explain any matter referred to in cross-examination.

• Facts not otherwise relevant are relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant.
• In medicolegal cases, an expert should not give an opinion unless complete information about the case is available.
• The medical evidence does not establish guilt or innocence of the accused. It is only corroborative evidence.
• If there is a conflict of opinion between experts, Courts usually accept the opinion not in conflict with direct opinion.
• An expert witness may refer to books to refresh his memory, correct or confirm his opinion. Books are not evidence in themselves, but if an expert refers to specific passages as representing his views, they may be taken as his own evidence.

6. Medical Etiquette

1. Doctors should individually and collectively influence medical content of the media since media has an important influence on attitudes and actions of the audience.
2. Doctors can: (a) Volunteer services to media (print, radio, television) as experts, (b) Contribute medical-related articles to local dailies, (c) Organize events (health camps, blood donation drives) and invite media to cover them.
3. The relationship of doctor and patient requires utmost trust, confidence, fidelity, and honesty.
4. Professional secrecy is an implied term of contract between the doctor and his patient.
5. A doctor should maintain dignity, respect, and proper conduct in all professional interactions with colleagues and patients.
6. Before giving evidence in court, it is advisable that the doctor meets the public prosecutor and discusses the previously prepared report, certificates, and photographs.

7. Police Inquest

• Authority: Officer-in-charge (sub-inspector, not below head constable) [Section 194, BNSS]
• Prepares Panchanama in the presence of two or more panchas [Section 195, BNSS]
• Describes wounds, fractures, bruises, and marks of injury
• Report forwarded to the Magistrate
• Body sent to nearest authorized government doctor without removing clothes, with dead body challan and copy of inquest
• Private medical institutions can treat the living medicolegally but autopsies can be conducted only with permission of State government
• If no foul play is suspected, dead body is handed over to relatives

8. Session Courts

• Established by the state government [Section 8, BNSS; previously Section 9, Cr.P.C.], usually located at the district headquarters.
• Can only try cases which have been committed to it by a Magistrate [Section 213, BNSS].
• Can pass any sentence authorized by law.
• A sentence of death passed by Sessions Court must be confirmed by the High Court [Sections 22, 407, BNSS].
• District Court deals with civil cases.
• An Assistant Sessions Court can pass sentence of imprisonment up to ten years and unlimited fine [Section 22, BNSS].
• Sessions judges and magistrates are appointed by the High Court.

9. Types of Offences; Difference between Cognizable and Non-cognizable Offences

Cognizable Offence [Section 2(1), BNSS]

• A police officer can arrest a person without a warrant from the magistrate.
• Examples: Rape, murder, dowry death, sex offences, robbery, ragging, death due to rash or negligent act.
• The individual is sent by police to the doctor for medical examination [Sections 2(n) & 173, BNSS].

Non-cognizable Offence [Section 2(1), BNSS]

• The accused cannot be arrested without a warrant issued by the magistrate.
• The injured person may go directly to the doctor, or file an affidavit in the court of a Magistrate, who will send him to the doctor for examination and report [Section 35, BNSS].

10. Conduct Money

• It is the fee offered or paid to a witness in civil cases at the time of serving the summons, to meet the expenses for attending the court.
• If the fee is not paid, or if the doctor feels the amount is less, he can bring this fact to the notice of the Judge before giving evidence. The Judge will decide the amount.
• In criminal cases, no fee is paid to the witness at the time of serving the summons. He must attend court and give evidence because of the interest of the State in securing justice; otherwise, he/she will be charged with contempt of court.
• However, in criminal cases, conveyance charges and daily allowance can be claimed by the doctor according to government rules.
• Contempt means willful disregard or disobedience of court's order.

11. Medical Evidence

• For evidence to be accepted, it must be properly identified as to what it is and where it was found.
• The evidence of an eyewitness is positive. The evidence of a doctor or expert is only an opinion which is corroborative.

1. Documentary: Includes all documents produced for inspection of the court [Sections 56-92, BNS]. (a) Primary evidence: The document itself produced for inspection of the court [Section 208, BNS]. (b) Secondary evidence: Certified copies, copies made by mechanical processes, oral account of the contents [Section 58, BSA].
2. Oral:
   • (A) Direct: Evidence of a fact actually in issue (e.g., a prescription, consent form).
   • (B) Indirect/Circumstantial: Not direct testimony of an eyewitness, but has a bearing on other facts [Section 4, BSA].
   • (C) Hearsay: Any statement made by any person about what he did not personally witness, obtained from a third party.

12. Documentary Evidence

(1) Medical Certificates

• Refer to ill-health, insanity, age, death, etc.
• Accepted in court only when issued by a qualified registered medical practitioner.
• Certificate of ill-health should contain exact nature of illness.
• Examine and issue certificate for not more than 15 days; re-examine and reissue after 15 days.
• Do not give fitness on advanced date or back date.
• Certificate must address a particular person (employer, headmaster, principal, etc.).
• Certificate is a legal document - signature or left thumb impression of patient should be taken; two identification marks noted; doctor should retain duplicate for 2 years.
• A medical practitioner is legally bound to give a death certificate stating cause of death without charging fee, if a person he attended during last illness dies (Registration of Births and Deaths Act, 1970).
• Death certificate should not be issued without inspecting the body.
• If the doctor is not sure of the cause of death, or if there is suspicion of foul play, the matter should be reported to police.
• Issuing a false certificate is punishable under Section 234, BNS.

(2) Medico-legal Reports

• Written reports given by doctors regarding examination of injured persons or dead bodies, at the requisition of a Police Officer or Magistrate.
• Report consists of: (1) Facts observed on examination (objective descriptions, including important negative findings), (2) Opinion drawn from the facts.
• Great care should be taken in writing to avoid loose wording. Exaggerated terms and superlatives should not be used.
• Report should be clear, concise, complete, legible, and avoid technical terms as far as possible.
• Written in duplicate using carbon papers - first copy sent to investigating officer, another retained.
• Doctor should sign or initial at the bottom of each page; name and designation noted on last page.

(3) Other Documents

• Hospital records, public records, etc. [Sections 29, 74, 75, 77, BSA].
• Routine hospital entries (admission/discharge dates, pulse, temperature, treatment) are admissible without oral evidence.
• Causes of disease or diagnosis are not accepted without oral testimony.

13. Expert Witness

• Definition: A person who is trained, skilled, or has knowledge, experience, or education in a technical or scientific subject, capable of drawing opinions and conclusions from observed facts, e.g., doctor, firearms expert, fingerprints expert, handwriting expert [Section 39, BSA].

1. Upon facts admitted or proved by himself or other witnesses at the trial.
2. On matters of common knowledge.
3. On hypothetical questions (questions based on stated assumptions).

• The main obligation of an expert is to point out professional facts, but he may be asked to give professional estimates.
• A doctor's testimony can only be considered evidence when he states that the conclusion is based on "reasonable medical certainty" (more probable than not in a medical sense).
• The opinion on a key question must be given in a guarded manner using terms such as "consistent with."
• Expert witness may refer to books to refresh memory or confirm opinion. If he refers to specific passages as representing his views, they may be taken as his own evidence.
• A doctor can be both a common and expert witness. When describing wounds, he acts as a common witness. When giving opinion (antemortem/postmortem, cause of death), he acts as an expert witness.
• The medical evidence does not establish guilt or innocence - it is only corroborative.
• If there is conflict of opinion between experts, courts usually accept the opinion not in conflict with direct evidence.

14. Hostile Witness

• Definition: A hostile witness is one who is supposed to have some interest or motive for concealing part of the truth, or for giving completely false evidence [Section 227, BNS].
• The Court will declare a witness as hostile on the suggestion of the lawyer of the party who has summoned the witness or prosecution lawyer.
• On declaration of a witness as hostile (adverse), he can be cross-examined by the same side lawyer.
• Any of the two types of witnesses (common or expert) can be hostile.

15. First Information Report (FIR) and Documentary Evidence

• FIR is the first information given to a police officer relating to the commission of a cognizable offence.
• It is recorded in writing by the police officer-in-charge of the police station.
• The informant signs it; a copy must be given to the informant free of charge.
• FIR is a public document and is admissible in evidence.
• It sets the criminal law in motion.
• In cases of cognizable offences, the police can start investigation on the basis of FIR without any Magistrate's order.

16. Role of Physicians in the Healthcare System

1. Primary care and treatment: In medicolegal injury cases, a doctor is obliged to give necessary medical aid and to save the life of the patient and render all help to ensure the patient reaches proper expert/institution as early as possible.
2. Medico-legal duties: Examination of injured persons, preparation of medico-legal reports, giving evidence in court.
3. Reporting: A doctor aware of crimes is legally bound to report to the nearest Magistrate or police officer [Section 33, BNSS; Section 211, BNS].
4. Communication with public and media: Doctors should individually and collectively influence medical content of media. They can volunteer as experts, contribute articles, organize health camps and blood donation drives.
5. Research and ethics: Participation in ethically approved clinical trials and biomedical research under IEC (Institutional Ethics Committee) supervision.
6. Notifiable diseases: A medical practitioner has a statutory duty to notify births, deaths, and infectious diseases to Public Health authorities.
7. Death certification: Legally bound to give a death certificate without fee for patients attended during last illness.
8. Emergency: Has a moral, ethical, and humanitarian duty to help the patient in emergencies regardless of other circumstances.

17. Doctor-Patient Confidentiality in Clinical Practice

• The doctor must not discuss illness with others without consent.
• In case of a major patient, facts should not be disclosed to parents or relatives without consent.
• Cannot disclose to third parties, even near relatives, without patient's consent.
• Cannot disclose even to public or statutory bodies, except in case of notifiable diseases.
• In husband and wife scenarios, professional secrecy must be maintained.
• Information about a dead person may be given only after consent from the nearest relative.
• Sex of unborn child detected during ultrasonography should not be disclosed.

18. Privileged Communication

IMPORTANT ADD-ONS

1. Perjury

• Definition: Perjury means giving willful false/fabricated evidence.
• Whoever, being legally bound by an oath or by an express provision of law to state the truth, makes any statement which is false, and which he either knows or believes to be false, or does not believe to be true, is said to give false evidence [Section 383, BNSS; Sections 227 & 228, BNS].
• It occurs if the person's earlier statement on oath and subsequent statement on oath are opposed to each other and cannot be reconciled.
• The witness is liable to be prosecuted for perjury.
• Punishment: Imprisonment may extend to seven years [Section 229, BNS].
• The medical witness is allowed to sit in the Court if the lawyers of the accused do not object.

2. Cognizable Offence

3. Conduct Money

4. Expert Witness

5. Dying Deposition

• Definition: It is a statement of a person on oath, recorded by the magistrate in the presence of the accused or his lawyer, who is allowed to cross-examine the witness.
• This procedure is NOT followed in India.
• Distinguished from dying declaration: Dying declaration is NOT on oath and is NOT made in the presence of the accused. Dying deposition IS on oath and IS made in the presence of the accused/his lawyer.