The conflict of medical ethics and law
What is medical ethics and how does it conflict with law in India.
My own definition of medical ethics is a way of life and the way we conduct ourselves which we imbibe during our professional training by observing and working with our seniors. Ethics is related more to morality than to law. In India however Doctors face difficult decisions which challenge their ethics while trying to remain within boundaries defined by law. Today there is so much incursion of law into medicine that ethics is fast becoming a casualty. There is a difference between an unethical act and an illegal act and I would today prefer to do something unethical rather than fall foul of the law.
Is it ethical that a Senior Resident posted in emergency decides to give the only available ventilator to a patient whose death will result in higher compensation claim. With the legal dictum of “restitution in integrum” being the catch phrase while deciding the quantum of compensation in cases of medical negligence, it is natural that such decisions would favor the rich. A poor patient’s death will not result in massive compensation claims. This is a classical situation where law as it exists today is in direct confrontation with medical ethics.
Then there is the issue where even a High Court mentions in its judgment that had patient died it might have been better for the relatives compared to the existent vegetative state. The patient had had cardiac arrest and was resuscitated but had suffered brain damage. This is not a one off example. Compensations in general are calculated on the basis of what will be the future medical and other needs of a patient who is in a vegetative state or who develops a disability but whose life has been saved. It is well neigh impossible to predict beforehand which case of cardiac arrest will recover fully and which will suffer brain damage despite Cardio Pulmonary Resuscitation. To avoid huge compensations a thought will start to cross the minds of healthcare workers leading to doubts which will not be interest of the patients and society.
We know very well that medical science today can save a patient with renal failure by doing a kidney transplant. How does it remain ethical for doctors in India that we allow 1.18 lac of 1.25 lac cases of renal failure occurring every year in India to die a slow and expensive death but refuse to do transplant. A poor person wanting to sell his kidney so that he can marry his daughter offends our sensibilities. These sensibilities are not offended when we see abandoned elderly and poor in religious places, or when we see people sleeping on footpaths with their families trying desperately to eke out a living in our cities. The kidney sale racket flourishes despite the legal clampdown, and donors are exploited by tall promises which remain unfulfilled later because of the mafia which operates this trade. Why could it not be legal that a person wanting to sell his kidney gets a fair amount of money and assured healthcare supervised by the state agencies while simultaneously saving thousands of lives. We have allowed sale of semen, hair, human eggs for reproduction, blood and even the renting of a surrogate mother’s womb so far. There is a desperate need for donor kidneys, there are thousands of farmer suicides and incidents of parents selling or killing their children because of poverty and the technology and the expertise to tackle both the issues exists across the nation.
We are shackled today by Honorable Supreme Court Guidelines in Samira Kohli vs Dr Prabha Manchanda case where it has been ordered that if a patient is already under anesthesia and a doctor finds something which requires a further procedure he should let the patient to come out of anesthesia, and do the second surgery at a later date after separate consent even though it may be in interest of the patient to do the second procedure during the first surgery itself. As per the judgment Doctors should not to be concerned that the cost and risk of the second surgery and anesthesia could be avoided. This is again an incident where ethics of doctors clash with the law as it exists today.
Is it ethical that doctors today are forced to practice defensive medicine. Despite having much more experience, senior gynaecologists are refusing to deal with obstetrics. High risk cases are now routinely referred to tertiary care centers when treatment given early at the periphery itself could have saved the patient. I myself am guilty of this since I have stopped taking cases of GI Bleed, Foregn body ingestions, dilatations and CBD stones all of which I treated my entire life . Now I refer them to others despite having so much more experience than what I had 32 years ago. Doctors are afraid today to assist those in need of their expertise in an emergency for fear of legal problems and compensation claims. The way a patient walks into the consultation chamber, history , gentle probing fingers of the doctor and a stethoscope, generally is sufficient to make a diagnosis but fear of litigation forces doctors to do imaging studies and investigations which only confirm what they already know.
The permission given to do abortions upto 24 weeks has opened another vista of conflict where a doctor who knows that a 23 week fetus can survive with proper care is asked to do abortion and he cannot on religious grounds refuse to do the same. Denying a doctor permission to advertise and only rely on word of mouth to source his patients has resulted in cuts and commissions which have become so rampant. Even doctors who leave the country face an ethical dilemma where law denies them opportunities and rewards which they otherwise deserve.
Law has barred doctors from claiming to be specialists when they do not have a MCI/NMC recognized qualification in that branch. A number of MBBS & MD/MS doctors have received training and are experienced in particular specialties and superspecialties but they are not qualified. In areas of need there are opthlamologists who have been giving anesthesia in a mission hospital for more than 20 years. Today it is negligence per se and generous compensations awarded. Even in Government hospitals specialists and superspecialists are not available in each category and those with training and experience carry the load. So many Government / army surgeons have been operating by giving anesthesia themselves with good results primarily because anesthetists were not available. For doctors to refuse the work assigned specially for the patient in need knowing that he can help, it is very difficult. Law however today is forcing them to change. The days when a surgeon or even an MBBS doctor could work in area of need and perform general surgery, Gynae surgery , orthopedic surgery and even neurosurgery are surely over. He may be competent and experienced to save many more lives but it is now important that the first person he saves is he himself.
Similarly senior retired doctors or those with medical issues used to do a limited medical practice for a few hours every day in their residence. With Clinical Establishment Act notified there is now a need to fulfill all minimum standards of the appropriate category plus maintain infrastructure and staff to tackle any emergency patient even outside of their working hours. Rather than stabilize any emergency which comes to their clinical establishments, they prefer to stop practice altogether even though they have so much to give to the society in terms of their professional experience & knowledge even though it is in conflict with their own ethics.
The Artificial Reproductive techniques have opened another can of worms as regards ethics. Forcing a 60 year old woman to be a surrogate or conjuring a baby for Karan Johar through surrogacy is fraught with ethical pitfalls even though it may not have been illegal when it was done. The PCPNDT Act has forced many an ultrasonologists to stop doing obstetric ultrasound. Despite ultrasound being single handedly responsible for decreasing the maternal mortality its use is restricted because of legal problems. Ideally this useful equipment should be ubiquitous and should be available in all clinics like a stethoscope but unfortunately atleast in my case I had sold my ultrasound machine the day PCPNDT Act became operational in Chandigarh. In the last 20 years foeticide has been replaced by infanticide. A social ill has been tried to be treated with a bureaucratic pill and unfortunately it has obviously not achieved its objective and simultaneously has probably contributed to some avoidable maternal mortality.
Passive euthanasia though has been permitted by the honorable Supreme Court in Common Cause Society vs Union of India case decided in 2018. However the procedure prescribed is so convoluted that to my knowledge not a single incident of legally correct procedure being followed to honor an advanced directive is there so far. This despite the fact passive euthanasia occurs daily in or immediately outside all hospitals across the country. Switching off the ventilator even as prescribed under TOHOA is difficult. Cost of treatment is the most frequent reason for the request to remove the ventilator and doctors are routinely placed in the moral and ethical quagmire having to decide issues with an unsympathetic law and order machinery looking over the shoulder. Unfortunately the cost of treatment has been taken out of a doctor’s control.
Trying to accede to a special request of a patient is another area where doctors fall foul of law of the land. Not informing the police following tearful requests parents of a 16 year old suicide attempt patient, performing MTP on rape victim, not mentioning history of ethanol intake so that insurance claim of patient is not denied, trying to conduct delivery at the date and times asked for are all examples where doctors land up in a soup even when their intention is to help the patient.
Both the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 as well as the voluminous National Medical Commission Registered Medical Practitioner (Professional Conduct) Regulations, 2022 draft of which has been placed in public domain by the NMC do little to settle the issues raised here. It may be better for the NMC to ponder some more, try and solve the conflicts between medical ethics and law, before adopting the new regulations.
Dr Neeraj Nagpal
Managing Trustee Medicos Legal Action Group
9316517176 hopeclinics@yahoo.com www.mlag.in
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