Medical Discretion Is Bound By Legal Limits

(By M.J. Kuruvilla, Advocate, Cochin)

Discretion is a difficult legal concept. This concept is rarely understood. But it is very often misunderstood. According to dictionaries discretion is the power and the authority to decide or choose from among many. Then what is medical discretion? It is the power and the authority of the doctor to decide or choose the modality of treatment. In theory the patient takes the decision, and has the final say in the management of his treatment. But in practice this is not so; nor is this is always possible. In many situations the patient is incompetent and in others ignorant as regards the implications of treatment. Some times the patient is handicapped in other ways that he can not contribute substantially to the decision making process. Thus it is often left to the treating doctor to make the therapeutic decision on behalf of the patient and in his best interest.

Art. I9(1)(g) of the Constitution declares that all citizens have the right to practice any profession. But S. (6) of the same article puts certain restrictions. It empowers the State to impose reasonable restrictions on the exercise of this right in the interest of the general public. In other words, the State cannot be prevented from making any law relating to the professional or technical qualifications required for practicing the profession. Thus our Constitution has struck a sensible balance between individual liberty and social control.

The Constitution ensures the proper practice of the learned professions like medicines and law by spelling out the required qualifications and by separate statutes envisages the effective role for the professional body concerned for ensuring maintenance of proper standards. It is the medical council that prescribes and ensures standards in the practice of medical profession. In deed the council is guided not only by the general laws but also the ethics involved in the profession over a long time. When a person is found to have acquired the necessary qualifications and the experience to practice medicine the council grants him the license to practice. This gives him tremendous powers and also the discretion in taking therapeutic decisions. The authority is not to decide mechanically or arbitrarily but fairly and bonafide.

An analogy between judicial discretion and medical discretion would be appropriate. If there is only one solution to a problem, the question of discretion does not arise. When there are two solutions, one perfectly legal and the other not so legal, the Judge has to adopt the legal solution. In therapy too, if one method is sure to yield a positive result and the other doubtful, the safer method has to be adopted. The need for discretion does not arise here either. But when there are two solutions with marginal difference the choice becomes a problem. Viewed this way there is no difference between judicial discretion and medical discretion. Go through each aspect of the problem and weigh each factor before coming to the conclusion. In fact there can be only one solution that is the best to any problem. There may be several others that are near the best but not the best. True, opinion can vary as to what is best, but still there is only one that is best. The degree of discretion does not depend on the number of options to choose from but depends on the degree of liberty to choose from those options.

The choice of the clinical procedure is left to the doctor. Lord Denning has expressed the inability of the judiciary to sit in judgment over the appropriateness or otherwise of the doctors decision. No doubt this judgment is not in tune with the current trends and the present level of information. Today, one cannot reconcile with and much less subscribe to this idea. Today' the doctors have several choices in the modalities of treatment and when a decision in favour of a particular solution is taken, the reasons for that choice are to be made known. If the doctor does not adopt the method which is apparently the best approach he has to give the reasons why the preference. There may be compelling circumstances and cogent reasons why he had deviated. But he has to put them up boldly and convincingly.

However, the cardinal difference between the medical discretion and judicial discretion must be clear. The doctor is always involved in the conflict as a party to the dispute if such arises. The Judge is independent. The exception may be the contempt of Court cases. Here also if we stretch our imagination the identity of the Judge and that of his office viz. the Court can be made separate and distinct. Thus the doctor's discretion is not to be treated on an equal footing with judicial discretion. However when we appreciate that discretion is the right to do the right, all the arguments so far build up just crumbles.

Unfortunately there are no definite guidelines on many questions that the doctors have to decide on the corridors of the hospitals. They are the occasions to use discretion. The question concerning life support, its institution or withholding, or after instituting its withdrawal crops up every now and then in a doctors professional life. The doctors are taught to preserve life by their profession. But this obligation is not a constitutional one in as much as there is no law for preservation of life except by implication and construction. No duty is cast directly on any one including the doctor to preserve life. Yet the doctor is confronted with life and death questions quite often. His decisions will have legal implications. The law itself has not been capable of maintaining certainty on several issues that the doctors are asked to settle or decide. This becomes clear when one examines law's tryst with the definition of death. Historically death was timed as that point when respiration stopped. The terms expire and the expression breathes one's last came to mean death. Artificial respiration and resuscitation shattered this concept. Similar is the case with cessation of heartbeat and disappearance of pulse. Cessation of cardiac and respiratory activity together also does not always mark the end point.

Brain death is the latest. Tests on which brain death is established have been questioned. In the case of the foetuses and the neonates these tests are not reliable. Suffice to say that the resilence of the foetal brain is such that it can survive sometimes even after it has answered the tests of brain death. The author does not want to elaborate. It will stir a hornet's nest. These aspects make the doctor's job difficult. In case of the critically ill the question of timing the death is vital. So too, the need for use of life support. The ethical responsibility and the social affordability to such care are crucial. The role of the doctor is that of the gatekeeper, who does not have clear instructions from the master. He allows entry to some. They will have access to life support. Others will be turned out. There are no statutory laws to be obeyed. Indecision kills and so does undue delay. Neither is there time for a court order or a judicial advice. When it reaches the court the matter will be infructuous. All these are ultimately left to the doctor's discretion, and his decision has to be instantaneous.

A more common challenge is when the doctor has to choose between palliative care and euthanasia. Palliative care is to reduce the pain and ameliorate the suffering. Some of the measures provided for palliation, result in early death. This has however to be differentiated from euthanasia. In the latter the doctor puts the patient to immediate death. In the former the doctor's aim is to make the patient free from pain though he is aware that the process of palliative care may augment the inevitable. One may argue that the cause of death in that case is the disease process itself and not the care that has been provided. The author is of the view that margin between palliative care and euthanasia is very thin, shaggy and blurred and often does not exist.

In complicated cases the opinion of the doctor and his advice will clinch the patient's decision. The concept of informed consent and informed decision making can not be adhered to in medical practice. In fact for the patient to be fully informed will need his being taught a good bit of medicine. It is clear that very often there is no informed consent and the patients are influenced by the doctor's advice. There is yet another problem. Could these facts amount to undue influence and annul the contract between the doctor and the patient?

Doctors are dragged into other sensitive issues. Every competent adult has the right to decide for himself or herself what treatment he or she should have and has an equal right to refuse such treatment. This is an area wherein the society's concern for preserving every individual's life has to be subordinated to the individual's will.

The right of the pregnant mother vis-a-vis that of the foetus is complex. While therapeutic abortion is accepted in India it is not so the world over. In old English law the child attains legal status only after the umbilical cord is severed. Times have changed. There has been a case where a Caesarian section was ordered on a terminally ill mother to save "enfont en Ventura Sa mere" the infant in the womb of the mother, against the interest of the mother. This is recognition of the foetus as a legal person and its legal right to exist. It casts many a doubt. The society and the judiciary seem to have leaned towards the ones with brighter and better chance in life against the interest of the meek and the weak. The old question 'should the baby survive or the grand father die'? Has the doctor or the Judge has any right to impose such an assault on one who has not committed any offence? This question requires contemplation.

The management of postpartum haemorrhage (that is the mother bleeding after the baby is born) in a primipara who has lost the baby is a common problem. If conservative measures fail to stop the bleeding hysterectomy (removal of the womb) was the standard practice. In 1984 when the author was surgeon in active practice and working in general hospital the Gynecologist there sought his help. Primy having lost the baby had uncontrolled bleeding. Bilateral ligation of the internal iliac arteries, (that is the vessel supplying blood to the uterus) saved the patient and her uterus. Today we have still better therapy. Embolise these vessels. Hysterectomy as a first-decree measure is not acceptable in these situations. One who can not ligature the internal iliac arteries in an emergency has no right to practice obstetrics these days. In competence in the practice of medicine amounts to medical negligence.

The award of compensation is not punishment. It is to make good the loss sustained by a party as a result of the activity of another. When compensation is ordered on wrong grounds, it amounts to unjust enrichment. This cannot be maintained in law and should not be permitted.

The doctor patient relationship is not just contractual. It is fiduciary. Hence the grave responsibility to safe guard the patient's interest is cast on the doctor. Though the consent is given at the time of surgery, during the course of surgery the doctor lands up in situations that neither the doctor nor the patient anticipates. The doctor is virtually alone, in his decision making and in the procedure he undertakes. Fixing responsibility for such an action, the question of guilty mind is essential. This is a major factor in crimes. But the doctor faces the courts neither for crimes nor as a criminal. He appears as a tort feasor. In tort the intention is not relevant. The question is whether damage has been caused, and whether it was within the range of foresee-ability and whether there existed a duty to care.

Thus an enormous degree of discretion is bestowed upon the medical profession. It is for the doctor to use it discretely with benevolence in the ultimate interest of the patient at hand and the society at large. However its misuse will not be excused. The doctor may have to account for and pay for it if he retracts from his noble role.

The Judge while he imposes legal limits on medical discretion he should act blindfolded. But that should be for the limited purpose of not seeing those involved in the litigation. When the Judge looks at the evidence he should remove his blind folding lest he may act like one of the blind men who went to see the elephant. The author would even suggest that the Judge should possess an eagle eye when he looks at the evidence.

Portriat of a Profession

(By T.P. Kelu Nambiar, Senior Advocate, Ernakulam)

For some time now, I have been thinking long and hard about the Kerala High Court Bar; and what flummoxed me is the realisation that the Bar is not unwilling to wear the logo of another. We thus see a fractured portrait of our profession. Many lawyers seem to have forgotten the standards of professional conduct, especially the great principle that an advocate shall, at all times, comport himself in a manner befitting his status as an officer of court and a gentleman. The cardinal rule of the Bar Council of India is:

"An advocate shall, during the presentation of his case and while otherwise acting before a court, conduct himself with dignity and self-respect. He shall not be servile and whenever there is proper ground for serious complaint against a judicial officer, it shall be his right and duty to submit his grievance to proper authorities."

If this rule is remembered and followed by every member of our Association, we could retrieve our status and dignity. I would exhort my learned friends, especially the cub lawyers, to resist any affront to their status and dignity.

If anybody chooses to badmouth a lawyer or his profession, he should resist it with all his might. I venture the following indelible advice. Resist any inquisitorial hectoring by anybody. Do not allow anybody to wag his finger at you. Rule your territory that is the legal profession. Do not allow anybody to use his illegitimate power against you. Be a respectable lawyer and little else besides. Do not expect any grace mark or moderation mark for advocacy. You should always make a bold assertion of professional status and rejoice at the accretion of muscle to the profession.

Let it be virtuous to be obstinate about the above.

Beware of Costs

(By T.P. Kelu Nambiar, Senior Advocate, Emakulam)

When the judicial conscience of a Division Bench, (comprising Mr. Justice Subramanian Poti and Mr. Justice V. Khalid, as their Lordships then were), felt rankled and festered by the absence of counsel on both sides in sixteen cases in a row in the cause list, considered to be 'old cases', the Bench dismissed all the cases for default. Petitions for resurrection were filed. Those petitions were allowed on condition of payment of Rs. 250/- each to the State. The condition imposed, namely payment of money to the non-party State, thereby propitiating the Civil Government with the cling of coins, appeared, to me, curious and novel. And it prompted me to promptly write an articulate article, entitled "Rankling Costs", (published in 1980 KLT Journal, at page 87). Therein, I ventured the view that the condition imposed was not justified, by analysing the aspect in the light of the definition and meaning of 'Costs' in certain statutes, Law Dictionaries, American Jurisprudence, Corpus Juris Secundum and decisions of the Kerala High Court. I pointed out that costs are expenses awarded by court to prevailing party and payable to a party and party basis, between ihe parties to the cause.

A more curious and novel situation has now emerged, where a Division Bench has recently imposed costs on both parties to the cause, the petitioner and the respondent, and ordered payment to the Legal Services Authority. (This is not a case of cross-costs against the contesting parties, but multiple costs in favour of a non-party.) The order did not slop there. It continued: "Liberty to the petitioner and the 4th respondent to proceed against the respective counsel for recovering the costs ordered by us either by way of civil suit or by moving the Consumer Disputes Redressal Forum". This is the last sentence (or nail?) in the judgment, rendered on the 23rd day of September, 2002, in O.P. No. 18338 of 2002, by the Division Bench, comprising Chief Justice Mr. B.N. Srikrishna and Mr. Justice R. Basant. (The judgment was by the learned Chief Justice.) Advocate Sri. C.C. Thomas, for the petitioner and Advocate Sri. T.M. Abdul Latheef, for the 4th respondent, would have cursed the day on which their clients had executed the vakalaths in their favour, and it needs to be checked whether it was on the 13th of a month, being Friday as well. I, for one, abhor Friday the 13th and the black cats.

Even further curious and novel is the penultimate paragraph in the order, dated 21st October, 2002, in Review Petition No. 724 of 2002, filed by the petitioner in the O.P., rendered by the Division Bench comprising Mr. Justice K.A. Abdul Gafoor and Mr. Justice R. Basant. (The judgment was by Mr. Justice Basant.) Dismissing the Review Petition, the Division Bench observed:

"Lastly it is submitted that the observation in the last line of the impugned judgment that the petitioner and the 4th respondent are at liberty to proceed against their respective counsel for recovering the costs ordered either by way of civil suit or by moving the Consumer Disputes Redressa) Forum deserves to be reviewed as the petitioner's counsel has no contumacious responsibility. The Division Bench had not made any final pronouncement on the liability of counsel. It was only observed that the parties shall have that liberty. Needless to say, if the said parties choose to stake claims against their counsel, such claims will have to be established in accordance with law. That observation also does not in these circumstances deserve to be reviewed".

27 born, I am pushing seventy-six successfully. I have been in this profession for about fifty years. I am unaware of any direction like the one issued in the O.P., or the clarification made in the R.P. I am constrained to confess, with the utmost respect though, that all the three learned Judges concerned with the disposal of the O.P. and the R.P. are surely not right; and the orders are verily illegal, and acutely embarrassing.

What is the reason for the observation that the clients are at liberty to recover costs ordered from their counsel. No reason is stated. Is it because the Division Bench thought that the counsel had ventured a wrong legal advice? How, and on what basis, did the court draw such a presumption, if any. The Court knows not the nature of the professional communication between the clients and the counsel. The court could not have enquired into the advice given by the counsel to their clients. The Court should have known the principles under S. 126 of the Indian Evidence Act and R. 17, Chapter II, of the Bar Council of India Rules, and other principles regarding the nature and content of professional communications. Did the court take into consideration a situation in which the client/clients would have insisted that, come what may, the petition/petitions should be filed. Did the Court cast attention to the principle that an advocate cannot refuse to take up an engagement from a client, except in certain circumstances. The exceptional circumstances are not present in this case.

The only circumstance in which a counsel could be mulcted with costs (payable to his client) is where he is found guilty of professional misconduct, where the conduct of the counsel is found irregular in form and improper in substance; and is grossly improper conduct in the discharge of his professional duty.

The present is not such a case; and there is no such finding even. Strange is the direction in the last sentence of the judgment in the O.P; and odd is the consolatory clarification in the penultimate paragraph of the order in the Review Petition. Exercise of patient wisdom is one of the principles of judicatio. It requires no smart legal erudition to recognise the flaw in the judgment and order relating to costs.

To enable the bar to perform its duties effectively, both the law of the land and the conventions of the court have surrounded it with immunities and privileges. The atmosphere of complete freedom from fear can be achieved only if the bar itself is fearless.

I do not for a moment pretend that my views are unexceptionable. Ishall never feel unhappy or uneasy if somebody finds flaw in my reasoning and comes forward with a contradiction.

All the same, 1 should alert the members of the legal profession to perceive the effect of the stinging rebuke in the judgment and the order, on the legal profession as a whole.

Tail peace: The Bar's affection is a precious judicial asset.

Towering Trg

(By T.P. Kelu Nambiar, Senior Advocate)

"I am tired. Enough is enough, I feel like retiring now. I would love to retire in style. A silent resignation is creeping in". This was the wailing of that born winner, a man of forceful manner, a sterling lawyer, a lawyer of awesome reputation, the unattainable 'Meru' among lawyers, Senior Advocate Sri. T.R. Govinda Wariyar, (popularly known by the initialism 'TRG' in the legal circle), when he spoke to me a few months ago. Could I believe it, coming as it was from TRG, the living legend, the most complete lawyer package, who still has the ammunition; whom nobody could dismantle. The venturesome lawyer is his own boss, who never used to sit back in peace; who is a doer and a thinker; whose mind's antennae were always up. The most instantly recognizable lawyer in Kerala, high up in the legal profession, TRG is the first choice lawyer of the litigants; as a straight - talking lawyer; a cut above the rest; who excelled in all the shades of glory; a lawyer who walked into the profession, not crawled into it. TRG is the Great Survivor among lawyers; he has been lawyer for about fifty years, doing the same job with the same unblinking dedication to professional duty, despite changing times and attitudes. You can take TRG out of the profession, but you cannot take the profession out of TRG. I remember his victories, passions and sorrows.

A lawyer with grit, guts and glory, an advocate of renown, TRG has the ability to keep friends across professional lines, with his cool, charming, modest, warm and sociable manners.

TRG firmly believes that a lawyer's fundamental right is to argue a case forcefully and that winning a case is the high point in advocacy. A lawyer with a tidy weight, TRG runs in the race for a win. He never runs out. He never is a frothing pretender in the profession. He always maintains the body-mind-intellect personality. His arguments generated much more light rather than plenty of heat. He is one of the most precious lawyers.

In court we are explosive rivals, but in private we had developed a mutual affection, though there are almost as many differences between us as there are similarities. We studied law together.

Frank, fearless and committed, TRG is, as a lawyer. There are many landmarks to his credit. He is a lawyer who wakes up in time; a lawyer powered by the profession; a lawyer who worshipped the profession. He argues every case in real earnest. Each case fitted him like a glove. His mode of argument is substance backed up with style. He is an impregnable adversary; a giant-killer lawyer. Any win against TRG would only be surviving a scare, after getting flummoxed. He never bats with half-the-bat. He does not put his leg before the cause. He is his client's dream and his adversary's nightmare. He would make his opponents ridiculous, with his measured aggression in arguments. He is a different senior lawyer. There may be other able senior lawyers. But 'no two tigers have the same stripe pattern'.

Humility is a strong part of TRG's character. At a personal level TRG is a very kind-hearted and considerate person.

TRG is a prudential lawyer, taking care of the litigants' investment in the litigation, as safe as a bank. He never studied cases and argued them for his health. For TRG, Court is where the heart is. He is an all-in-one lawyer. His office was chock-a-block with clients.

TRG is never a lawyer making endorsements to Judges. He believed that a lawyer is not a whipping boy of the judiciary. He is unwilling to wear the logo of a Judge or of another lawyer. You.may love him or hate him as a lawyer, but you cannot ignore him. Hear TRG for a forceful discussion, back and forth between the Bench and the Bar. He never makes empty noises in court. He argues with spirit and fire, even before a 'zero tolerance' Judge. He is articulate, passionate and irrepressible, when he starts to argue. He knew every nuance of the law just like the back of his hand. He never gives sops to anybody in his professional career. In a check-list of performance of all the lawyers, TE G's name figures at the very top. This is not a concession, but his entitlement.

TRG got noticed soon in the profession- And he has celebrated Victory No. 'N'. Leadership of the Bar is the by-product of his superior advocacy. He is a symbol of the past tradition of the profession. I consider him as the designated representative of Senior Advocates. TRG is the Kerala lawyer of the 21st century. His commitment to the profession is hard to match. He had no time to rest 'under the Greenwood Tree'.

TRG never adopted a lavish life-style, though he could afford one. He is plain sans frills, unlike lawyers with Hollywood looks.

In the profession, TRG seemed to be on pins and needles all the time. His arguments are so full of life, so full of law, so full of possibilities. In him, we see the triumph of advocacy. He possesses the ABCD of a true lawyer:

Accessibility;

Brilliance;

Communicative Skill;and

Devotion to Duty.

TRG created a new grammar of advocacy.

The profile of this great lawyer will never be written about in any history book; but it is on the hard work of such lawyers the legal profession progresses.

Shariat and Child Marriage

(By S.A. Karim, Advocate, Vanchiyoor, Thiruvananthapuram)

The Muslim Personal Law Board has opined that the Child Marriage Restraint Act, 1929, hereafter refers the Act, is against the shariat and therefore, it is not binding to Muslims. This gave a re-birth to a practically dead Act. As per the Act, the minimum marriageable age of a girl is the completion of 18th year and a boy 21 years. S. 2(a) of the Act reads -

Child means a person who, if a male, has not completed twenty one years of age and, if a female, has not completed eighteen years of age.

The statement of objects and reasons of the Act, among other things, says this minimum marriageable age has been fixed to check the population growth, to enable a responsible parenthood, to delay the fertility period and to protect the health of the mother as well as the child. In our country the tendency is delayed marriage.

Mulla's Principles of Mohammedan Law is one of the Authorities on Muslim Personal Law, the shariat. S. 251 speaks about the capacity of marriage. It reads -

1. Every Mohammedan of sound mind, who has attained puberty, may enter into contract of marriage.

2. Lunatics and minors who have not attained puberty may be validly contracted in marriage by their respective guardians (Ss. 270-275).

3. A marriage of a Mohammedan who is of sound mind and attained puberty, is void, if it is brought out without his consent.

Explanation - Puberty is presumed, in the absence of evidence, on completion of the age of fifteen years.

Dr. Tahir Mohammed is another authority on shariat. In his book Muslim Law of India, he agrees puberty and sound mind decide the capacity of marriage similar to that of Mulla. In the 1980 edition page 48 of the book, he narrates the following regarding puberty. It reads -

i. Puberty is a physical phenomenon to be ascertained by evidence.

ii. In the absence of evidence to the contrary, it is generally presumed that a person who has completed the fifteenth year of age has attained puberty.

iii. The possibility of attaining puberty by a boy as well as by a girl before the age of fifteen years, however, recognised by law.

iv. The earliest age of puberty for a boy is, generally, twelve years.

v. The earliest possible age of puberty for a girl is, generally, nine years.

The dictionary meaning of puberty is beginning of sexual maturing, a stage at which a person's sexual organs are maturing and he or she becomes capable of having children. It indicates puberty is between 9 and 15 years of age. If shariat is followed, the Act is violated.

Shariat is considered the revelations of Prophet Mohammed and his disciples. Like man is the product of circumstance, the Prophet was the product of circumstance existed in Arabia fourteen centuries back. His revelations were made with good intention and for the welfare of the society at large. What was good in Arabia need not be the same to the rest of the globe. Such revelations can only be a guide line to the future generations. In our country an Act has been passed by the elected representatives of the people after considering the various aspects on the timing of marriage. It is based on reality and necessity. The intention of the Act in discussion is to prevent population explosion and to protect the health of the mother and the child. If this is true, the Act must prevail over the guide lines.