THE BANYAN TREE: VOLUME II - BRINGING CHANGE - LAWS AND LEGAL AID FOR SOCIAL ACTION

( By Editor : Carol Huss )

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Section IV

Laws Pertaining To Physical Health And Wellbeing

Health has always been a matter of universl concern, but at no other time in historyhasit assumed the legal and political ramifications that it has today, not only in India, but throughout the world. In recent years, public or social health has emerged as a major issue of concern, because it has effected large section of the population, though of course, the hardest hit are always the poor.

Of late, some issues which have come into the limelight, e.g.the Bhopal gas leak, the J.J.Hospital deaths, the import of butter containing radio-active elements caused by the Chernobyl disaster, the misuse of amniocentesis--the sex determination test, all these have caused thinking people in the legal and medical professions to sit up and ponder their implications for their own profession.

There is probably no other country which gives as little importance or priority to its wealth human resources as does India. This is reflected in its health care facilities, which are fraught with vested interests and geared in the interests of the rich and powerful. In this section, we shall briefly go over the laws pertaining to Medical Negligence and Environmental Protection.

Medical Negligence

A city lower court recently ordered the Tamil Nadu Government and a Dean of one of the College Hospitals to apy Rs.50,000 compensation to the parents of a two-year old who became crippled, following a hernia operation. The sub-judge in his judgement held responsible both the paediatric surgeon and anaesthetist for callousness and neligence.

This was just one rare case which came into the limelight; such cases abound in India, but nothing surfaces, because of the lack of awareness of the existence of a law, and secondly because even within the existing law, it is very difficult to prove negligence.

The Law on Medical Negligence deals with situations in which a physician/surgeon or any other member of the medial profession, may have to pay compensation if he has not exercised ‘reasonable care’ in carrying out his duties. Some examples of negligence:



  1. A doctor performing an operation without the precaution of anaesthesia, due to which the patient goes into shock and dies.
  2. A surgeon who uses instruments that are not sterilised.
  3. Injuring an organ, while performing an operation on another organ/part of the body.
  4. Negligence in post operative care, e.g. a man suffering from an injury to his hand underwent an operation. After the operation, his hand and forearm were bandaged. Later the man complained of pain, but the surgeon did not take any action, apart from giiving sedatives. After two weeks, when the bandages were removed, his hand had become paralysed, and practically useless.
  5. Misdiagnosis, due to improper investigation by the doctor; relying too much on what the patient says.
  6. Performing an operation without the patient’s consent. The doctor is also obliged to warn a patient of the inherent risks involved in a proposed medical procedure. This is called ‘informed consent’.

Private nursing homes and hospitals are liable for the negligence of their employees. In the case of a Government employee, hospitals, it varies from state to state, and a notice period of 2 months is necessary.

Procedure for Redress

In any suit claiming compensation for negligence, one must be able to prove three things :



  1. That the victim was being attended upon by the doctor in question. Mention the exact situation.
  2. The doctor was guilty of negligence. Mention how duty was broken.
  3. That the negligence caused harm. Mention how.

Damages may be general or special, General refers to injury, pain, suffering etc. Special concerns loss of earnings, legal expenses, loss of marriage prospects, or opportunities for gainful employment. It has become a practce for doctors now-a-days to insure themselves against negligence.

For a resume on the recent Lentin Commission Report, on the deaths at J.J. Hospital, Bombay, please see Volume I, Appendix 8 in Chapter 4 Drugs and Pharmaceutical Industry in India: A Modern Perspective.

Law to Ensure Environmental Protection

Recently, eminent agricultural scientist, Dr. M. S. Swaminathan warned that if the current trends in environmental damge were not arrested and reversed, mankindmay ‘experience the adverse climatc impact of a nulear war without any nuclear war atall!’

Ecological balance and environmental protection have become matters of increasing concern--as they should. Two major catastrophes in recent times--the Bhopal gas leak and the Shriram Fertilizer Plant leak were the main movitating forces behind the new Environmental Protection Act of 1986. Before this Act, we had the following Laws:

A few provision in the Indian Penal Code concerning public nuisance, e.g. loud music near a silent zone area, or dirty suroundings etc. Water Pollution Act, 1974 ; and Water Prevention and Control of Pollution Cess Act, 1977 and Air Pollution Act--mainly with regard to industries.

And now the latest law in respect of Environmental safety is called the Environmental (Protection) Act 1986. The new Act does not repeal the existing ones.

Object
The object of the Act is to provide a law that would cover not merely land or water or air, but all the aspects of the invironment. It has been described in the long title. " as an Act to provide for the protection and improvement of environment and for matters connected therewith."

Environment has been defined in this Act as including water, air, land and the interrelationship which exists among them and between water, air, land and human beings and other living creatures, plants, microorganisms and property. The Law seeks specifically to prohibit :



  1. Any person or industry to discharge any pollutant in excess of orescribed standards.
  2. No person to handle any hazardous substances except in accordance with prescribed safeguards. (Handle refers to manufacture, package, storage, transportation, saleetc.)

Punishment

Violation of any of the provisions of the above law is punishable with imprisonment upto five years, or fine upto Rs. 1 lakh, or both, with enhanced penalties for continued contravention.

In addition, in offences by companies, or government departments, the head becomes punishable.

Drawbacks of the Act



  1. It was passed by the Parliament in a hurry and without sufficient debate and discussion.


  2. There is no provision to assert the rights of citizens wishing to draw out information from industries or companies causing pollution.


  3. Despite the Act, several State owned industries continue to pollute the environment.

Due to the above, many invironmentalists feel that the Act merely legalises pollution. The continued pollution of River Ganges is an example.

Compensation to persons affected by environmental pollution

In 1986 the Supreme Court in a landmark Judgement, held that an industry or enterprise engaged in dangerous/hazardous activity will strictly be liable to give compensation of an accident.

Law and Occupational Health

Three Acts touch upon different aspects of Occupational Health: Factories Act, 1948; Employees State Insurance Act (ESIA), 1923. The Factories Act lays down provisions for the general health of workers by prescribing detailed instructions regarding cleanliness, disposal of wastes, ventilationand temperature, dust and fumes, artificial humidification, overcrowding, lighting, drinking water and latrines. Safety regulations are also dealt with, such as fencing of rotating parts, provision of alarmand proper escapes etc. There are 24 notified diseases, any incidence of these among the employees must be reported to the Chief Inspector of Factories by the attending medical practioners. The Factory Act requires that each State should have a Chief Inspector of Factrories, the primary enforcing authority. Working under the Chief Inspectors are certifying surgeons and inspectors, includidng medical inspectors. Certifying surgeons examine all occupational diseases. They are also responsible for determining the manufacturing processes. However, states suffer from inadequate staff, while recrods of illness, associated with occupational conditionsare rarely maintained by factories. In effect, non-detection for want of competent examination and careful monitoring is being interpreted as non-existence of occupational disease.

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