INTRODUCTIONCHAPTER 1
There are two distinct aspects of law–medicine relationship: (1) Forensic medicine, and (2) Medical jurisprudence. They are essentially different subjects, but are closely related.
Forensic or legal medicine (forensic = forums of or used in Courts of law) deals with the application of medical and paramedical knowledge to aid in the administration of justice. It is used by the legal authorities for the solution of legal problems. Some examples are: Applying the medical knowledge in deciding cases of injuries, murder, suicide, accidents, sexual offences, poisoning, etc. In short, it deals with medical aspects of law.
Medical jurisprudence (juris = law; prudentia = knowledge) deals with legal responsibilities of the physician with particular reference to those arising from physician–patient relationship, such as medical negligence cases, consent, rights and duties of doctors, serious professional misconduct, medical ethics, etc. In short, it deals with legal aspects of practice of medicine.
Forensic pathology deals with the study and application of the effects of violence or unnatural disease in its various forms in or on the human body, in determining the cause and manner of death in case of violence, suspicious, unexplained, unexpected, sudden and medically unattended deaths.
Medical ethics deals with the moral principles which should guide members of the medical profession in their dealings with each other, their patients and the State.
Medical etiquette deals with the conventional laws of courtesy observed between members of the medical profession. A doctor should behave with his colleagues as he would have them behave with himself.
Ethical behaviour is a self-imposed duty upon each doctor. A doctor should not criticise or denigrate the professional ability of another doctor, while dealing with a patient.
Forensic medicine deals almost entirely with crimes against human beings, in which medical examination and evidence are required. Forensic medicine is mostly an exercise of common sense, combined with the application of knowledge and experience, already acquired in the study of other branches of medicine, surgery, obstetrics, etc. Its aim is to find out the truth. Its particular field of activity is judicial investigation, both civil and criminal. All medical work is of a responsible character, especially the medicolegal work, such as issuing certificates of lunacy, ill-health, etc. In all cases of crime involving the person, e.g. homicide, suicide, assault, sexual offences, traffic accidents, poisoning, etc., the help of the medical practitioner is sought by the police. In all such cases, the doctor will be required to appear as an expert witness in a Court of law. In some cases, the doctor is the chief source of evidence upon which legal decisions are made. In cases of sudden death, the authorities will depend mostly or completely on medical evidence in establishing the cause of death, and in case of accident to determine blame.
A doctor may be called to testify (1) as an ordinary witness who saw an incident, (2) as the medical practitioner who treated the patient, (3) as an expert to give his opinion on matter of science. In the first two conditions, it is his duty and obligation to testify. In the last condition, he may refuse the request: (1) if he feels reluctant to undergo what he fears will be a painful experience, (2) if he feels that he is not sufficiently qualified to testify with any conviction in that particular case, and (3) if he feels that he cannot spare the time to prepare properly or to make long appearances in Court. A properly prepared physician often finds his Court room experience educative and not as traumatic as he would have anticipated. His introduction to the legal process may be unpleasant, if he is irritated by an aggressive prosecuting or defence lawyer. The reluctance of medical practitioners to become witnesses is mainly due to the pressures of their private practice. Other factors include a fear of merciless cross-examination, harassment, and even the recall.
A doctor should not become partisan. Once a theory is embraced, it is only human nature to eagerly search for facts which support that theory, and reject those which indicate some other theory. Brouardel, the French medicolegal authority wrote, “if the law has made you (the physician) witness, remain a man of science; you have no victim to avenge, no guilty person to convict, and no innocent person to save. You must bear testimony within the limits of science”. All forensic science expert witnesses must strive to achieve respect, understanding and credibility in Court. They must give the appearance, the aura of being independent, non-partisan witnesses. The appearance and projected image of neutrality, impartiality and objectivity are as important as the authentic characteristics. Demeanour, appearance, professional manner and general behaviour of the expert witness are almost equal in importance to forensic ability during testimony. The attitude of a scientific witness should be the same whether he is called by the prosecution or by the defence. The doctor really testifies neither for nor against the prosecution or the defence. The doctor's expertise is in the application of science to a legal controversy and the proper interpretation of scientific findings. The doctor must be honest, for confidence is inspired by honesty and success depends upon confidence. His sole obligation is to present the truth as he sees it, adding nothing, withholding nothing and distorting nothing. He should not concern himself with the previous character of the accused or with other evidence in the case. He should not be influenced in any way by emotional consideration, such as sympathy or antipathy.
The medicolegal aspects of any case must always be secondary to life saving treatment of the patient. It is advisable that the doctor should learn to look from the medicolegal standpoint upon such of his cases as are likely to become the subject matter of judicial investigation. He should acquire the habit of making a careful note of all the facts observed by him. Alan Moritz stated “If evidence has been properly gathered and preserved, a mistake in interpretation may always be corrected. If the facts required for a correct interpretation are not preserved, the mistake is irreversible”. He should examine the facts which come to his knowledge in his special capacity, draw his conclusions logically and correctly after a detailed consideration of the pros and cons of the case, and indicate to the Court that interpretation, along with the grounds on which it is based. Vagueness and theory have no place in forensic medicine. Presumption is not proof, and conjecture is not evidence. The Court has no special medical knowledge. It relies on his witness for an opinion and expects him to assist it with his special knowledge and experience. The burden of presenting medical facts and medical opinions in the best possible way rests on the doctor. Forensic pathologist testifies on so-called “fact issues”, such as cause and manner of death, rather than “ultimate issue” of guilt or innocence, so that opinion based upon reasonable medical certainty is adequate to support the testimony of the forensic pathologist. Medical evidence is not a substantive evidence, but is a corroborative evidence. The medical evidence does not itself prove the case of prosecution. Other things being equal, the better the presentation of medical evidence, the better is the administration of justice. A good command of language, clear presentation, and ability in expressing a relatively firm opinion are necessary for the success of the medical witness. The presentation of findings involves both writing skills and an ability to express in the courtroom while being examined by trained lawyers. The doctor should avoid talking too much, talking too soon, and talking to the wrong persons. Prejudicial and sensational statements should not be made prior to trial. The pathologist should never overlook an opportunity to remain silent. The doctor must be guarded in what he says and how he says it.
The medicolegal expert is not a detective. He may use his knowledge and intelligence to help the police to solve a crime. His role should be to furnish the police with specific information on matters of 3which he has specialised knowledge. Because of his special knowledge, a non-medical clue may have a significance to him, which even an experienced police officer has not grasped. The medical expert should be very careful when he is examining living people. He should not encourage an accused person to talk about the crime with which he is charged, or about the events that led to his arrest. If, during a medical examination, an accused says anything that might incriminate himself, it should be neither recorded nor reported. However, occasions may arise when a doctor may use an admission to direct the police to certain lines of inquiry and action without actually disclosing what has been said.
Three things are needed for success : (1) the power of observation, (2) a wide range of exact knowledge, (3) the power of deduction. The power of constructive imagination is also essential when there are no more facts to be observed, and no further inferences to be drawn. There is no substitute for basic intelligence and clinical competence. Experience, common sense, and willingness to consider other possibilities are as essential in the practice of forensic medicine as a wide range of theoretical knowledge. The attributes of the physician are : (1) caution, (2) foresight, and (3) wisdom.
The doctor should develop a fair understanding, satisfactory appraisal and high index of awareness of the medical, philosophical and legal problems related to the determination of the manner of death. He should be thoroughly familiar with the problems of causality and manner of death. He should realise that total complications of extraneous injuries do not change the manner of death from unnatural to natural, e.g., the victim of a homicidal attack dying with peritonitis following abdominal injuries and surgery should be certified as homicide victim and not as surgical complications. The doctor must be alert to where evidence should be looked for, and how it should be interpreted. His failure may make the difference between life and death or between freedom and imprisonment of a suspected person. It may deprive a widow of compensation to which she is entitled, may cause an innocent person to be prosecuted or punished, may permit a murderer to escape punishment, or may cause some person or institution to be held financially liable to damages for which they were not responsible.
William Osler wrote : “Medicine is a science of uncertainty and an art of probability. Absolute diagnoses are unsafe and are made at expense of the conscience”. Medicine is a biological science with the variability inherent in biological matters. Forensic medicine is not an exact science. Unexpected results are produced due to biological variations. One thing that makes medicine so difficult is that there is no such thing as the average man. We can only say the reading is 'within the range of normal”. The most extraordinary events occur in medicolegal practice, and a careful evaluation must always be made to ensure that dogmatic statements by medical witnesses do not mislead the investigating officers. In every case, there is an element of uncertainty, and absolute proof is a rarity in any medical problem. There is always a possibility for a difference of opinion among the doctors. No possibility is wholly excluded in medical experience. Doctors should bear in mind the essential difference between probability and proof. The medical witness should not be dogmatic about his opinion, and also lawyers should not expect him to be so. They should be reasonable in their opinions and should not overstate the likelihood of a relationship between cause and effect. The doctor should be ready to defend every finding and conclusion on the report on clinical and scientific grounds. The doctor should put before the court all the materials which are the basis of his conclusions. He should be aware of professional and scientific viewpoints which might differ from his, and should be familiar with the latest scientific literature in relation to the subject involved. Forensic pathologists have an ethical obligation to contribute to further knowledge, research and education in their field. For the purpose of illustrating and clarifying his testimony, the medical expert may employ photographs, maps, diagrams, charts, X-rays, skeletons, models, slides, films, tapes, etc., when they are properly verified.
Medicolegal practice requires knowledge, skills and attitudes. The skills needed are: (1) Clinical : the ability to elicit a history, to examine for injuries and to perform the appropriate investigations. (2) Precision in recording the findings. (3) The ability to present the findings in a clear, concise, correct and meaningful manner. (4) Attitudes : (a) Proper respect to the patient. (b) Maintain objectivity in recording the findings.4
Forensic medicine can be mastered only by an extensive practical experience acquired by an application and study of medicolegal problems. Courts of law are open to the public. Medical students and newly qualified doctors should attend the Courts, where they can follow the proceedings, hear the evidence given by medical witness, and note the questions put and the replies given. This will familiarize the doctor with legal procedures and help to lessen the painful experience of giving evidence.
The general public is fast becoming law conscious and the doctors are being sued from time to time in a Court of law for their acts of omission or commission. Therefore, it is incumbent upon doctors to have good knowledge of the law governing their profession, in order not to transgress the law. Doctors should avoid special efforts to “cover up” medical negligence or intentional wrong doing.
HISTORY : Medicine and law have been related from the earliest times and the bonds which united them were religion, superstition and magic. The Charaka Samhita (about seventh century B.C.) lays down an elaborate code regarding training, duties, privileges and social status of physicians. It gives a detailed description of various poisons and their treatment. In fourth century, B.C., Manu (King and law-giver) in his treatise, Manusmriti, laid down various laws including punishment for various sexual and other offences, and recognised mental incapacity due to intoxication, illness and age. Between fourth and third century B.C. Arthashastra of Kautilya defined penal laws and regulated medical practice. Physicians were punished for negligence. Medical knowledge was utilised for the purpose of law. It mentions about the examination of dead bodies in unnatural deaths. Abortion, sexual offences, kidnapping, etc. were punishable offences. Law-medicine problems are found in the written records in Egypt, Sumer, Babylon, India and China dating back 4000 to 3000 B.C. A Chinese materia medica of about 3000 B.C. gives information on poisons. Imhotep (27th century B.C.), Grand Vizir, Chief Justice and chief physician of King Zoser of Egypt, enacted rules for medical practice, which was brought under law. The Code of Hammurabi, King of Babylon (about 2200 B.C.), is the oldest known medicolegal Code. Rig Veda and other Vedas (3000 to 1000 B.C.) mention about crimes like incest, adultery, abduction, killing an embryo, murder, drunkenness, etc. and their punishments. Physicians were identified as professional people. Atharva Veda gives details about remedies for various conditions. Hippocrates (460 to 377 B.C.), the “Father of Western Medicine” was born and practiced in the island of Kos in Greece, discussed the lethality of wounds. His contribution to medical ethics is by far his greatest in medical field. About 300 B.C., the Rabbis of the Rabinical Court, responsible for implementing the Jewish laws, sought the aid of medical expert in the administration of justice. Later, Greek and Roman jurists and medical men collaborated in the development of the principles of forensic medicine. Shushruta (father of Indian surgery), between 200 to 300 A.D. in his treatise Shushruta Samhita dealt with various medicolegal problems. Duties of physicians were defined. Wounds and fractures were classified. Poisons and snakes were classified and treatment prescribed. Modes of administration of poisons was described. In the sixth century A.D. the Justinian Code (Roman emperor) and Institutes regulated the practice of medicine and surgery, and established the function of the medical expert for legal procedure. The first medicolegal autopsy was done in Bologna (Italy) in 1302, by Bartolomeo De Varignana. In the thirteenth century, a manual was prepared to aid in the investigation of death in China. George, Bishop of Bamberg, proclaimed a penal code in 1507, where medical evidence was a necessity in certain cases. Caroline Code was proclaimed in 1553 in Germany by Emperor Charles V. With this expert medical testimony became a requirement rather than an option to give opinions in cases of murder, wounding, poisoning, hanging, drowning, infanticide and abortion, etc. It recognised that there were several types of homicide which were not punishable under certain conditions, one of which was an offender who was 'deprived of his understanding'. The first book on Forensic Medicine was published in 1602 by an Italian physician, Fortunato Fedele. The greatest of all works was the “Questiones Medicolegales” (medicolegal questions), written by Paulus Zacchias, who was principal physician to Pope Innocent X, and Alexander VII, and an expert before the Rota Romana, the Court of Appeal. This was published 5in seven volumes from 1621 to 1635 and two additional volumes in 1666, at Amsterdam. This work remained an authority in medicolegal matters until the beginning of the nineteenth century. Paulus Zacchias is considered to be the Father of Legal Medicine as well as Father of Forensic Psychiatry. In Questiones Medicolegales, he declared that physicians should have exclusive competence in the field of pathological mental states, amentias. He provided a classification of mental disorders keeping in mind the legal issues at that time. Around the end of the sixteenth century, autopsies in medicolegal cases began to be generally practised. In the eighteenth century, professorships in legal medicine were founded by the State in Germany. Orfila (1787 to 1853), professor of chemistry and legal medicine at Paris introduced precise chemical methods into toxicology. He is considered the founder of modern toxicology. In 1843, the law regarding the criminal responsibility of insane persons was established in England in Mc Naughten's case.