When the pink ribbon is tied on the black advocate robe

Sagarika Chakraborty is a corporate lawyer and here at BlogAdda she is providing us with some useful insights on legal rights of patients. This post is a part of the Breast cancer awareness month in partnership with Indusladies. Let us say bye bye to breast cancer.

There are some traits that just come to be associated with your profession. I remember traveling with a film director on one flight. On seeing him stare intently at a fellow passenger, I had in good jest asked him if he was contemplating of signing the person up for his upcoming project where he needed a ‘fresh face’?

Being a lawyer, my profession supposedly demands me to have a legal view point towards everything and to find a reason to sue everyone alleging infringement of rights! Not bad a thought and a scare, but sometimes it goes overboard, trust me. So, when I was found reading the book ‘Thanks for the Mammaries‘ by Sarah Darmody, a friend had jokingly asked me if I was seeking to protect my breasts legally against torture.

Good zest, no pun intended – innocent laughter had then made me crack up. But the pink ribbon message behind the book is seriously not so funny. Breast cancer is not a humorous topic. Survivors may talk of it in good and light tone, but it takes years of courage to come to terms with what can turn to be one of the most devastating episodes of one’s life.

Being a patient is draining not only physically as your body is subjected to numerous drugs and trials, but also emotionally for you fail to understand why you were the chosen one and what you should do to get over the nightmare. Care and concern often seem pity then and advise is most often unwanted. The only thing that then matters to you is your well being. But then it is perhaps then that you need to be aware of your legal rights the most. For a battle is much easier when you know what you are entitled to, and what forces act in your favour. When the territory is known even the worst enemy seems easy to be tackled, Gita says that and I stand by it.

Right to receive medical treatment/ Right to Health:

The basic tenet of laws of our Constitution reads that as citizens of the nation we are entitled to the right to life, which includes right to appropriate living conditions and medical facilities amongst a plethora of others. Article 21 of the Indian Constitution recognises every individual’s right to life and liberty, which the Supreme Court has held includes the right to health. The Supreme Court has also held that the maintenance and improvement of public health have to rank high amongst the State’s obligations, as these are indispensable to the very existence of the community.

Additionally, courts have ruled that providing adequate medical facilities for people is an essential part of the government’s obligation. Article 47 of the Indian Constitution is a Directive Principle of State Policy, also directs the State to regard the improvement of public health as amongst its primary duties. India is also a signatory to various international instruments that strengthen its commitment to ensuring the highest attainable standard of health for its people.

Under Article 14 of the Constitution all persons have an equal right to receive treatment in a Public Hospital, i.e. a government or corporation hospital. Further, Articles 14, 15 and 16 of the Indian Constitution, talks about how discrimination is antithetical to equality, which is a right guaranteed to citizens in India. Equality implies an essential sameness or likeness, on the basis of which people possess the same privileges and are granted equal rights. Acts of discrimination are therefore a violation of one’s right to equality.

Thus, the above when read with Article 21 of the Indian Constitution encompasses all individuals including children and makes Right to Health a Fundamental Right for all.

Duties of a Doctor:

Under law, a doctor patient relationship is considered to be a fiduciary relationship, where one person (the doctor) has an upper hand while dealing with the other (person) and hence the duties of the doctor are considered to be more important and stringent than the patient.

The Medical Council of India in March 2002, published the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002 which clearly lays down the code of medical ethics applicable on all medical practitioners in India and outlines their duties and responsibilities to their patients and the community at large. The Code also lays down the punishment and disciplinary action that can be initiated against a medical practitioner if he commits professional misconduct and quotes de-listment of the registration number of the accused as the highest punishment.

A few of the essential duties that need to be highlighted while dealing with sensitive patients like breast cancer are:

• Confidentiality:
  It is a well known aspect that India has no laws strictly on confidentiality and the law of privacy/confidentiality is sought to be interpreted from the concepts envisaged under Article 21 of the Indian Constitution. This implies that every person has the right to a sphere of activity and personal information that is exclusive to them and that they have the right to disclose as they please. In legal terms, confidentiality exists within the parameters of a special relationship (doctor-patient, attorney-client, for instance) that is dependent on factors such as mutual trust, or to impart services.

  
  

  The Indian Medical Council Rules talks about the confidentiality to be maintained by doctors while dealing with their patient’s information. It is important to remember that disclosure of information on grounds of ‘public purpose’ is only for cases dealing with communicable diseases�and as breast cancer is not a form of communicable disease, no information can be leaked to any third party without the consent of the patient. However, on the other hand it is important to remember that if such information is mandated to be disclosed by the doctor/hospital under law, then despite not being a communicable disease, information about the patient can be disclosed and the same cannot be held against the doctor or the hospital.

• Informed Consent:
  Knowledge about your disease and the gravity of your physical harm is your prime right which can never be taken away from you. The first step towards treatment of any patient includes letting him/her know about the treatment and making sure that adequate consent are in place. Consent in the context of medical profession implies to permission by the patient to perform an act on his body either for diagnosis or therapeutic procedure. This basic right can be said to emerge out of our constitutional right of Right to Life, which also gives a person right to his or her own body.

  
  

  The Constitutional makers at the time of making this exhaustive document can be said to have envisage that the body in which a person resides exclusively belongs to him/her and anything done to the person has to be with his consent for the same to be held valid in the eyes of law.�It is an established position of law that any treatment administered without the informed consent of the patient would be unlawful, except in cases of emergency and incapacity. As laid down by the Supreme Court, there is a mandatory need of obtaining consent from the patient and the need of such consent to be documented and be signed by the patient unless minor, unconscious or insane. Even in emergency cases, unless patient is unconscious the consent offered by the parents of major is void and amounts to negligence as per the current Indian law.

• Right to Information:
  From the above concept of informed consent also flows the necessity of ‘right to information’ which might arise in two cases in usual life
  (a) When the patient loses his/her records
  (b) When the doctor/hospital refuses to divulge his/her records. It is important to note that while dealing with a patient’s loss of record cases, as per law every physician is mandated to maintain records pertaining to his/her indoor patients for a period of 3 years from the date of commencement of medical treatment and that the same is to be made available to the patient or his/her legal heirs within 72 hours of the request being made. The above access to medical information has also been made via the Right to Information Act, 2005 which mandates that all personal or medical information of a private nature and trade, when requested for is to be disclosed against valid applications and cannot be refused arbitrarily.
• Right Against Mis-leading treatments:
  Am no doctor when I give you the assurance that Yes, breast cancer is curable. My knowledge emerges out of reading various medical reports and based on my interactions with many doctors. However, the same source also tells me that not all breast cancer patients can be successful survivors for a lot depends on the ‘stage’ in which the cancer is detected and the extent of spread of the malignant tissues. Protection against false assurance is also given to you under Indian law, which seeks to do away with ‘quacks’ and mis-leading advertisements.

  
  

  The term ‘quack’ can include unqualified practitioners, persons who prescribe or dispense substances, powders or drugs that are unlicensed, licensed medical practitioners who cross-practice and tantriks or godmen who claim cures by way of magic remedies. Indian laws do not directly prohibit or deal with quackery, and provisions in the existing law that prohibit the practice by unregistered medical practitioners in specific areas of medicine are used to deal with quacks. Legal restrictions have also been imposed on advertisements that mislead or give false impressions of a drug or make a false claim for it. To state the Drugs and Cosmetics Act, 1940 prohibits any claim that a drug prevents orcures diseases when such is not scientifically backed by evidences while the schedule to the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 specifically prohibits advertisements that claim cures, treatment or prevention of diseases of the said type.

Apart from the duties of the doctor laid down by statutes protection has also been provided under the Code of Indian Medical Council and the Indian Government. Further, doctors ill-treating you can also be dragged to court.

But hasn’t the above already been enough for today. So to save information over load and tackles about more bitterbattles let’s just save the other pointers for next week?

Till then keep the pink ribbon close to your heart people! Do not forget to check the second part of this post which will be published soon. 🙂