Medical Jurisprudence Term Paper
Medical Jurisprudence Term Paper
Medical Jurisprudence Term Paper
Department of Law
Program: LL.B. (Hons)
Submitted To:
Mansura Akter
Assistant Professor
Adjunct Faculty, Department of Law
Faculty of Security and Strategic Studies (FSSS)
Bangladesh University of Professionals (BUP)
Submitted By:
Masudur Rahman Rana
ID: 16421065
E-mail: [email protected]
Date of Submission: 05.11.2019
1|Page
Table of Contents:
Table of Contents 2
Abstract 3
1. Introduction 3-4
9. Conclusion 16
References 17-18
Abstract:
2|Page
Doctors play a great role in criminal justice system, because a medical report is very important
document in most of the criminal cases, but sometimes it becomes a major obstacle in acquiring
justice. Doctor’s reluctance to appear in the court, false report given by doctors or corruption
may hinder access to justice. Doctors also face different challenges in case of medical checkup
and forensic examination which affect victims’ rights under the criminal justice framework. This
article attempts to disclose the role of doctors under criminal proceedings and different obstacles
as they face in Bangladesh, which may affect in criminal proceedings.
1. Introduction:
The purpose of this study is to disclose the role of doctors in ensuring justice to the victims and
different obstacles as they face in Bangladesh on legal courses along with weaknesses of
criminal proceedings in relation to women victims of violence.
1
Hannan, M Abdul. 2009. Human Rights of the Accused in the Criminal Process’
2
Ali, Mohammad Yusuf. 2006. ‘Easy access to justice: Overcoming the Problems’
3
Blessy, Jain. 1990. Constitutional Law’, London
3|Page
2. Doctor’s Report and Its Importance:
4|Page
proceeding under this Code.11 Doctor plays an important role in criminal proceedings as his
determinations and court testimony may affect criminal liability, ranging from different degrees
of homicide, to responsibility for accidental deaths, inheritance rights or life insurance benefits. 12
The doctor serves both the administration of justice and the public health interests of the
community. Doctors are appointed by a governmental body and operate under statutes that give
them investigational jurisdiction in criminal cases. Doctors in their pathological reports must
make a determination of the manner of death, i.e., whether the death was a homicide, an
accident, or a suicide and must make determination of the manner of assault. All the findings are
thoroughly documented in a medical report and in auxiliary documentation. The medical report
lists all the medical diagnoses evident in the case and the actual cause of death is then
determined.13 Sometimes, in criminal cases, a defendant may allege certain circumstances of
death of the deceased victim or assault of the victim and the doctors need to determine whether
this explanation fits or does not fit the nature, pattern, and extent of injuries and the findings at
the place of occurrence. In modern times, forensic science has become an integral part of the
process of crime detection and new aspects of forensics are being developed along with
technology to support them.14 In the forensic examination, doctors also see incidental cases of
very challenging deaths, such as battered or shaken children alleged to have sustained accidental
fall injuries, dismembered or decomposed homicide victims, masked suicides, unusual causes of
death such as water intoxication or exotic drugs, rare genetic diseases, and apparently
unexplained deaths in medical facilities. Every doctor in pathological service has an implicit duty
of presenting the forensic findings in a clear and bias-free manner. In our adversarial system of
trial procedure, the medical examiner must be the standard bearer of unvarnished truth.
Litigants on their perceptions and experiences of going to police stations, going to doctors, going
to court, being in court during trial. Victims represented a variety of backgrounds, rural, poor,
11
The Code of Criminal Procedure, 1898, section 510
12
Zahirul Huq: Law and Practice of Criminal Procedure
13
Joshua, A. Perper. ‘The Medical Examiner and the Criminal Justice System
14
Hossain, Anika. ‘The Science Behind Crime Detection’
5|Page
middle class and upper-middle class as well as a cross section of experience with violence. It is
apparent that they were very frustrated with the long cumbersome legal process. Many were
reluctant to pursue their cases as they were intimated and threatened by their opponents. Some
female were extremely apprehensive of the court, law and police. They were fearful of the legal
process and felt that they had no access to the legal system. They also expressed that they faced
various difficulties to come out from their home and to make a complaint against male family
members or others due to lack of knowledge and confidence, financial dependence on others,
communication and transport problems, discouraging social norms etc. Many poor victims said,
‘The court is not for the powerless people like me, police, lawyers, doctors, everyone wants
money only, they don’t try to understand our sufferings.’
Victims took medical treatment from several hospitals. For large number of patients, shortage of
beds, insufficiency of medicine and instruments the patients are deprived from medical care. The
negligence of hospital administrators, nurses, behavior of Aya (Nurse assistant) affects patients’
rights. Doctors like the police also consider victims as ‘bad’. Most of the doctors think that the
majority victims are habituated to rape. In the court proceedings, the certificate given by the
doctor is strong evidence of the incidence. 15 Sometimes doctors give false certificate in favour of
the accused.16 Police and criminals have a tendency to influence medical reports to fabricate
those in their favour to cover up their misdeeds. 17 According to a rape victim, medical report of a
doctor in case of criminal case means monetary corruption of a doctor. She also added that her
incident was true, but doctor gave certificate that there was no alamat (symbol) for rape. Delay
and corruption in medical tests cause many legal problems. There are many incidents in
Bangladesh where the perpetrators guilt could not be proved due to false or defective medical
report. Most of the medical reports given by the doctors are defective. Sometimes doctors are not
available, whilst the victim is taken to the hospital for medical examination. Therefore women
are being deprived of getting justice. Sometimes doctors are rude to their victims.
15
The Acid Crime Prevention Act, 2002
16
Camelia Murder Case, at Munir, Shaheen Akhter. 2006
17
Jahan, Asma Akhter. 2005. Women Violence in Bangladesh and Legal Framework
6|Page
After death of a victim, the dead body is sent to the forensic department for a post mortem report.
As the day light is necessary to perform the autopsy, it is usually conducted during the office
hours by the forensic doctor who is in roster duty at the autopsy room, assisted by a hospital
sweeper. During autopsy, the first task is to externally examine the body and locate signs of
distress. The aim of this external examination is to determine if the case is one of suicide,
murder, accident or disease. In fact the sweeper is the one who mainly handle the body. In many
cases due to religious feelings, love and affection the process of post mortem face barriers. The
accurate completion of postmortems and the preparation of proper, unbiased and non-conflicting
reports are very important for identifying the genuine causes of death. In most of the cases, the
post-mortem reports are not accurately written and conflict with the statements of witnesses.
In absence of female doctors, most of the women victims received treatment from male doctors.
The experience that the victim faces when undertaking medical check-up is most unpleasant. The
Forensic Department is in charge of the full physical examination. Male physicians in the Sexual
Assault Examination Unit examine the victim under the presence of a nursing assistant. Many
rape victims on which it conducted a survey refused to be tested by male. 18 The presence of the
male doctor as an examiner is itself a trauma for the victim, especially in a country where social
values and religion play an important role in their lives. Most of the victims do not allow male
doctors to do the test. Absence of female doctors in the forensic department put the woman
victim in a vulnerable position.
Since the rape victims in Bangladesh are all women they feel shy and some believes it goes
against religious practices to undress before male doctors. Female doctors feel discouraged to do
the forensic job to avoid the hassle of standing as witness in rape cases. In Bangladesh, such
cases drag for years and the witnesses are to appear in court on their own expenses. Trial dates
change a lot causing more problems to the witnesses. In addition, there are risks of attacks and
reprisals by the accused. The trial hassle is a key factor that deters female doctors from joining
18
Baseline Report on Violence Against Women in Bangladesh Prepared by Naripokkho
7|Page
the forensic job. In our country concerned doctors are to appear in court as witnesses. In many
other countries, the doctors need not to go to court. They only send the reports to court. Most of
the women victims completed their check up by male doctors. Due to shortage of female doctors,
some victims of such crimes are bound to be tested by male doctors for filing the case, but most
of the victims avoid them for which they are once again victimized under the criminal justice
system.
4. Duties of a Doctor:
Patients must be able to trust doctors with their lives and health. To justify that trust you must
show respect for human life and make sure your practice meets the standards expected of you in
these domains.19
Take prompt action if you think that patient safety, dignity or comfort is being
compromised.
19
Anwar Hasnat, ‘The duties of a doctor registered with the General Medical Council’ [2011]
8|Page
Treat patients politely and considerately.
Give patients the information they want or need in a way they can understand.
Respect patients' right to reach decisions with you about their treatment and care.
Support patients in caring for themselves to improve and maintain their health.
Work with colleagues in the ways that best serve patients' interests.
Maintaining Trust:
Never abuse your patients' trust in you or the public's trust in the profession.
Under criminal proceedings, it is the duty of a doctor to give appropriate medical certificate.
Most of the doctors said that they felt various pressures for not giving medical report to the
victims. Many doctors faced political pressure, pressures of influential people, threat of opposite
party, victim’s offer of bribe for giving false or strong certificate, load of work etc. Sometimes
police pressured them for giving weak report or not giving appropriate medical report to victims.
There are many incidents where the perpetrators could not be proven guilty due to false medical
report.
9|Page
5.2 Reluctance of Doctors:
Doctor’s reluctance to appear in the court is the major obstacle in acquiring justice. The major
causes of such unwillingness, as have been identified by doctors are:
Most of the doctors were not interested to do forensic test or to give test certificate for some
obstacles. The doctors identified the reasons of unwillingness for the forensic test during the time
of interview. These are: there is no allowance for forensic test; doctors get small amount of
money for going to the court as a witness; doctors face unnecessary question of opposite
advocate into the courtroom; doctors feel insecure for being a witness; many women do not
allow male doctor for forensic test; and influential people or politicians sometimes pressure them
to make false or weak report. In the forensic test doctors do not agree to touch the patient without
the permission of the Magistrate.
Some formalities have to be followed before the forensic test. These are:
(i) A passport size picture of the victim must be attached by the Commanding Officer (OC) of
Thana. Sometimes it creates problem and test gets late, as such evidence can be destroyed; and
(ii) Forensic test report needs a stamp. It may not be served timely by the hospital authority.
Radiology and Pathology test sometimes take time.
A doctor has to make not only the list of forensic test but also has to perform various duties.
Sometimes he has to stay long day for hearing into the court. There is no waiting room in the
court; it is an embarrassing situation for the doctor. There are very few doctors in a hospital who
are specialist in the forensic test. Sometimes they feel unsecured for the pressure of powerful
persons of the society. For these reasons, doctors do not want to do forensic work.
20
Suzanne Ost, ‘When should a doctor’s behaviour be criminal?’ [2018] PL 220
10 | P a g e
Controversial cases involving doctors and the criminal law have caught my attention because
they could challenge our perceptions about when it is appropriate to criminalise doctors’
behaviour. We use the criminal law to hold people to account when they commit the most
serious wrongs. The State acts in the name of the public and the victim to achieve justice, and to
punish through penal sanction. When a doctor deliberately sets out to harm a patient, this can
intuitively appear to be a sound reason for turning to the criminal law to deal with the matter. But
cases where there is no such intent can be more morally challenging.
In the case of Dr Simon Bramhall, who branded his initials on the donor kidneys of two patients
during transplant surgery without their knowledge or consent. He did not foresee anything more
than the most superficial of harm to the surface of the livers, yet he was prosecuted for assault
occasioning actual bodily harm and pled guilty to the offence of assault by beating. In passing
sentence, the judge commented that Bramhall’s conduct was ‘borne of professional arrogance of
such magnitude that it strayed into criminal behaviour…’.
In a very different case involving the criminal law, Dr Hadiza Bawa-Garba also had no intention
of causing harm, but her conduct contributed to the most serious harm: the death of a young boy
who was under her care. She was prosecuted for gross negligence manslaughter and the jury
found her guilty. The jury was convinced by the prosecution’s case that Bawa-Garba’s
misdiagnosis of the patient’s condition and failure to properly reassess him following an obvious
continuing deterioration in his condition amounted to gross negligence.
Malpractice is the vital factor for violation of victims rights under a criminal proceeding. A
medical officer at a hospital can issue a medico-legal certificate which is invaluable for the
victim if the case goes to court. It states the nature of the injury in detail and by whom the injury
was caused here, all cases of accidents, poisoning and burns.21 But giving of certificate on
payment to a victim for determination of age or nature of offence has become a regular matter of
the doctor of government hospital. In most cases, admission of patient to the hospital gives
21
Shedde, Meenakshi. 2002. One-stop crisis centre for women’
11 | P a g e
opportunity to the authority to earn money in unethical way. Doctors are often lured by the greed
of making good earnings through providing false and fabricated medical certificates confirming
allegations of causing simple or grievous hurt.
Malpractice or corruption starts from appointment of a peon up to the highest post. 22 Since they
get appointment with high money, so, their first priority is to be reimbursed. At the result health
service seeker become victim of unexpected harassment. They have to pay extra money which
may not be possible to get service in public hospitals. There is a circle of broker for collecting
corrupted money. Victims do not take legal action for possibility not to get proper remedy.
Corruption in delivery of medicine, service by doctors and nurses, bribery to get bad in hospital
are common form of corruption. Victims have to extra pay for government medicine, seat in
hospital and other equipments. Doctors have collaboration with private Diagnostic centre and
private clinic. It is also known that doctors often suggest that the patient go to a diagnostic center
for x-ray, pathological test and the doctors receive some commissions. The problem is that only
the doctor can decide what needs to be done. If this goes well, the patient does not complain and
if it does not only then the allegation of corruption surfaces.
Sometimes doctors of Governmental Hospital refer victims to private clinic or refer to the
consultant. Common complaints against public hospitals include the apathy of doctors and nurses
regarding their job and negligent attitude towards the patients. There are allegations of
negligence, absence in the workplaces, misbehaving with patients, tendency to ask for
'commission' and general corruption. As a result people prefer private hospitals although only a
few can afford them. Corruption does not only occur in the withdrawal of cases, but also in the
conduct of autopsies. After death, correctly prepared autopsy reports are essential to understand
and confirm the causes of death and thus ensure the correct punishment. However, this has not
always been the case.
Sometimes doctors do not give the certificates in right time and sometimes they do not
give correct certificates and for this the investigation is hampered.
22
Alam, Md. Ashraful. 2012. ‘A cross examination of gross corruption in public health service’
12 | P a g e
Doctors are often lured by the greed of making good earnings through providing false and
fabricated medical reports.
They are not even interested to abide by the law to give the certificates to the
complainants or the victims.
A serious problem that unfolds during conduction of criminal cases, particularly women
repression cases is that in most cases male doctors medically examine violated women.
The reality is that most women feel shy and reluctant to be examined by male doctors.
They can't be free to speak out the exact condition of their incident to a male doctor, even
after being violated or repressed. Consequently, the merit of litigation is destroyed during
the medical tests. Worse, many women don't go for medical examination only due to
absence of a female doctor in the clinic or the government hospitals.
Sometimes the doctors show their reluctance to give medical certificates, as they have to
face much harassment to provide witness of any case at the court.
It is clear from the above discussion that corruption of doctors is the prime obstacle in ensuring
victim rights in criminal justice in Bangladesh. Therefore, it should be the first attempt of the
concerned stakeholder to take initiative to eradicate corruption in health service to ensure a
minimum standard of public health service. The regulatory framework for monitoring health
services delivery is weak.
There are many laws related to various aspects of heath like Epidemic Disease Act 1897,
Prevention of Malaria Ordinance 1978, laws related to quality of food, quality of drugs etc. It is
the duty of the Ministry of Heath to supervise and monitor the health activities of their respective
areas, they seldom do this. The Bangladesh Medical and Dental Council (BMDC), established
under the Medical and Dental Council Act of 1980 is empowered to look after public interest by
maintaining proper standards of services and education. It has the authority to take disciplinary
actions, including temporary suspension or permanent removal of the practitioner from the
register for misconducts like issuing false certificates, disregard of personal responsibility to
patients etc. But due to the absence of a monitoring system on the activities of practitioners, it is
very difficult to implement.
As remuneration of public hospitals is low and many of those doctors and nurses try to find job
in private clinics, no wonder that public hospitals experience shortage of medical personnel.
13 | P a g e
Therefore, when a patient comes for the medical help to the public facilities, very often it is the
case that hospital has no specialists with appropriate skills or knowledge, or there is a lack of
staff which can give very basic help. For these above grounds, the rights of victims are violated
by doctors under the criminal justice process in Bangladesh.
14 | P a g e
The forensic labs should be modernized and Forensic Institute should be established to
provide proper knowledge and adequate training on forensic science.
A one-stop crisis centre should provide with encounter of the victim’s crisis to all the
medical coverage, legal actions and in providing medical reports etc.
The systemic corruption should be contained by making the system transparent and
encouraging work in outlying areas through reward.
The post mortem should be conducted by combined specialists and necessary action
should be taken in order to promptly gather the medical examiner, police and legal
representative. A Medico Legal Advisory Committee should be formed in order to
examine the post mortem report and other medico legal tests.
The medical personnel should be trained with regards to medico-legal materials.
9. Conclusion:
According to Bangladesh Constitution, everyone has the right to life, liberty and security of
person, no one shall be subjected to torture or to cruel, inhuman or degrading treatment or
15 | P a g e
punishment and all are equal before the law and are entitled without any discrimination to equal
protection of law. The duty of the court in a criminal proceeding is not only to adjudicate upon
the allegations made against the accused, but also to see that the safety of the informants or
complainants is not jeopardized because of their involvement in the proceeding.
Evidence given by doctors or health care workers may play a crucial role in assisting the court in
deciding whether accused persons should be found guilty or not guilty in criminal cases. There
are five different stakeholders that are involved in criminal process, such as, (i) victims, (ii)
police, (iii) lawyers, (iv) judicial officers and (v) doctors. If all stakeholders perform their duties
honestly and sincerely, justice is sure to be served to the victims and accused.
The first task of every case is to confront the primary crisis and report to the law-enforcing
agency. They will then visit the spot, collect evidences and perform a medical test, if necessary
on the victim by a doctor. Delay and corruption in medical tests cause legal problems.
Corruption has been identified in every entity of the criminal justice system and as it makes the
law ineffective, it has a very demoralizing effect on victim. Sometimes the doctors show their
reluctance to give medical certificates, as they have to face much harassment to provide witness
of any case at the court.
It is deplorable to say that the criminal justice system of Bangladesh is not friendly in its
treatment towards victims. Lack of medical facilities, low remuneration of governmental doctor,
less number of female doctors, unwillingness of female doctors to work in forensic department,
insensitive attitudes of doctors affect women victims in criminal proceedings.
References:
o Primary Sources:
16 | P a g e
Cases:
Mofazzal Alias Md. Mofazzal Hossain and another v. The State, 7 BLD, HCD, 1987, 406
Statutes:
The Nari O Shishu Nirjaton Damon Ain, 2000, sections 23, 32(i)
The Acid Crime Prevention Act, 2002, sections 20, 29
The Code of Criminal Procedure, 1898, sections 509 (i), 509 A, 510
o Secondary Sources:
Books:
Zahirul Huq: Law and Practice of Criminal Procedure (14 th Edition, Bangladesh Law
Book Company, 2014) pp 956-957, 962
Journal Articles:
Hannan, M Abdul. 2009. Human Rights of the Accused in the Criminal Process’,
Gurgaon, India, MADHAV BOOKS, p.1; UdDin, M Faiz and Hannan, M Abdul. 2000.
Protection of Human Rights in Criminal Justice: Bangladesh Perspective, Research
Project 1998, Rajshahi University, Bangladesh, p.1; Munir, Shaheen Akhter. 2006. An
Annual Research Report on Violence Against Women in Bangladesh 2005, Dhaka,
BNWLA, p. 77
Naomi, Sharin Shajahan. 2009. The Legal Challenges on the way to Judicial Remedy in
Rape Cases: The Role of Human Rights and Legal Services Programme of BRAC,
BRAC Research Report, Dhaka, April 2009
Camelia Murder Case, at Munir, Shaheen Akhter. 2006. An Annual Research Report on
Violence Against Women in Bangladesh 2005, Dhaka, BNWLA, p.33
Jahan, Asma Akhter. 2005. Women Violence in Bangladesh and Legal Framework: Role
of Law Implementing Institutions, Dhaka, FOUSIA, p. 66
Baseline Report on Violence Against Women in Bangladesh Prepared by Naripokkho
and Bangladesh Mahila Parishad and coordinated by IWRAW Asia Pacific, Dhaka, p.56
17 | P a g e
Suzanne Ost, ‘When should a doctor’s behaviour be criminal?’ [2018] PL 220
Anwar Hasnat, ‘The duties of a doctor registered with the General Medical Council’
[2011]
Joshua, A. Perper. ‘The Medical Examiner and the Criminal Justice System: A Portrait
of the Medical Examiner’, http://articles.sun-sentinel.com/2011-02-04/news/fl-jpcol-
medical-examiner-perper-020620110204_1_medical-examinersaccidental-death-autopsy-
report/2, last accessed on 19 October 2019
Newspaper Articles:
Alam, Md. Ashraful. 2012. ‘A cross examination of gross corruption in public health
service’, The Daily Star, 4 August 2012
18 | P a g e