Public Health, Medical Ethics and the Case Law
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ISSN 2455-4782 PUBLIC HEALTH, MEDICAL ETHICS AND THE CASE LAW Authored by: Dr. J.P. Arya* * Associate Professor, Chanderprabhu Jain College of Higher Studies and School of Law ABSTRACT Public health, which is, "Art and Science of protecting and improving the health of a community through an organized and systematic effort that includes education, provision of health services and protection of the public from exposures that will cause harm”. Public Health, Medical Ethics and Law are mainly referred to in conjunction, and frequently discussed together in this paper. This research paper explains their meaning and relationship, and how the law sees medical ethics. It then considers whether medical ethics functions in the way that the law thinks that it does. After providing a historical perspective that identifies medical ethics discourse as disjointed and fragmented, the paper continues by examining certain relevant medico-legal case law and facts that have an inherent ethical content for clues as to how they define medical ethics and its role. It also considers how medical ethics sees the law, concluding that a misapprehension by each party as to what the other does creates a mutually harmful relationship between them. India is experiencing a rapid health transition. It is confronted both by an unfinished agenda of Health hygiene, infectious diseases, nutritional deficiencies and unsafe pregnancies as well as the challenge of escalating epidemics of non-communicable diseases. The paper also emphasizes the need for public health response and suggest that Education and training in public health needs to be inter-disciplinary in content so that the pathways of public health action are multi-sectoral. The paper makes it clear that there is no legal impediment for a medical professional when he is called upon or requested to attend to an injured person needing his medical assistance immediately. There is also no doubt that the effort to save the person should be the top priority not only of the medical professional but even of the police or any other citizen who happens to be connected with the matter or who happens to notice such an incident or a situation. Keywords: Public Health; Education and training; Medical Ethics. 74 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 9 ISSN 2455-4782 PUBLIC HEALTH AND HYGIENE IN ANCIENT INDIA The earliest social culture in India of which we have archaeological evidence centered on Mohenjo-Daro and Harappa, chief cities of the Indus valley civilization, which flourished from about 2500 B.C. to 1500 B.C. The main characteristic of this ancient Indian urban culture was its advanced system of public sanitation. There were numerous wells, bathrooms, public baths, sewers, waterfalls and dustbins for collecting trash. Streets were laid out in regular fashion, and houses were well constructed and ventilated.1 Vedic culture is one of the oldest living religions, having evolved over a period of four thousand years. Initially it was a synthesis of the ancient religion brought in by the Aryans and the religious traditions of the Indus valley civilization. The body of literature of the Aryans known as the Veda (Sanskrit for knowledge) is the oldest scripture of Hinduism. The foundations of traditional Indian healing, called Ayurvedic (knowledge of life) medicine, rested on the ancient teachings together with a number of commentaries and later writings by healers such as Charaka, Sushruta, and Vagbhata Ayurvedic medicine was thus based on a vast literature which included not only the Vedas and their later commentaries (the Brahmanas, Aranyakas, and Upanishads) but also a body of medical writings by many contributors, of whom two stand out as the most influential: Charaka and Sushruta. The physician included both surgery and medicine in his practice. Sushruta wrote, "Only the union of medicine and surgery constitutes the complete doctor. The doctor who lacks knowledge of one of these branches is like a bird with only one wing." As in primitive societies and other ancient civilizations women were midwives and the possessors of drug lore, knowledge of herbs and domestic remedies. Charaka and Sushruta rarely referred to women and then only in connection with the management of women's diseases and childbirth. A considerable amount of attention was given in the Vedic and medical writings to women, including their sexuality and illnesses. In all times a woman was supposed to be treated kindly. On the other hand, although the Laws of Manu forbade adultery for both men and women, extreme penalties for the transgression were prescribed only for the woman. Bearing and raising children and running 1 Albert S. Lyons, R. Joseph Petrucelli, Medicine: An Illustrated History, Gyldendal Norsk Forlag, Oslo, Norway,1987. 75 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 9 ISSN 2455-4782 the household were her functions. The Laws of Manu stated, "Wherever women are honored, the gods are satisfied, but when they are not honored, all pious acts become sterile." Public Health and hygienic measures were different in various periods of Indian history. For instance the public baths and highly developed water systems during the early Indus valley civilization. It is difficult to ascertain when hospitals were first begun. Among inscriptions dating from the third century B.C. by Asoka, the great ruler of the Mauryan dynasty, are statements that hospitals had been established, some for humans and others for animals.2 King Duttha Gamani, a century later than King Ashoka the Great, is said to have listed among his good deeds the founding of eighteen hospitals for the poor. Certainly the account of Megasthenes, ambassador from the eastern Greek Seleucid king (inheritor of a segment of Alexander the Great's empire) suggests that there were hospitals for the rich and royal in the great city of Patliputra.(Patna). Charaka –Samhita has described Ethics in details and summarized all the attributes of a good hospital, including location in a breezy spot free of smoke and protected from the sun, smells, and objectionable noises. Details of equipments needed were described even to the extent of proper brushes and brooms. He also discussed an appropriate food supply and the availability of drugs, privies, and cooking areas. The medical personnel should be clean, well-behaved, and able to wash and care for the patients. The well-being of the ailing was also considered, with provision for attendants who could distract the patient by recitation, conversation, and entertainment. The hospital that he pictured was easily a model for all to emulate in any time. 3 COLONIAL LEGACY OF PUBLIC HEALTH POLICY Probably the first document of ‘public health policy’ in British India was the 1863 report of the Royal Commission on the sanitary state of the British army in India.4 Concern about threats to the 2 Koshambi DD,The culture and civilisation of ancient India in historical outline, New Delhi Vikas Publication, 1970:160. 3 Chattopadhyay D, Science and society in ancient India. Research India Publication, 1979, p. 22. 4 Harrison, M. (1994). Public Health in British India: Anglo-Indian Preventive Medicine 1859-1914. Cambridge, UK: Cambridge University Press. 76 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 9 ISSN 2455-4782 health of the Indian Army, particularly after the rebellion of 1857, motivated a wide-ranging inquiry into health conditions in the country. The fierce famines of the 1870s and 1890s caused both mass mortality and huge migration; it was fear of unrest and social disruption that caused the colonial state, belatedly, to take some interest in famine relief and public health.5 Institutions of public health—hospitals, health centers, medical research laboratories, pharmaceutical production facilities—were amongst the new colonial institutions that appeared in South Asia, along with the railways, the telegraph and new forms of land tenure and law. If some historians have subsequently allowed the pendulum to swing far in the other direction, seeing medicine as only a tool of colonial power and domination over Indian lives and bodies, this tends to concur with the views of C.A. Bayly namely that what we need to understand is the ways in which Indians engaged with, appropriated, criticized and adopted colonial health institutions.6 The policy shifts in public that began in the later 19th century, around the time of the late-Victorian famines, had lasting and important consequences for the future of public health policy in India. Perhaps contradictory, legacies of this period stand out for their significance in shaping the conditions of possibility for public health policy in India: the first is institutional, the second, ideological. Colonial public health policy was inherently limited and self-limiting; it focused on keeping epidemics at bay, responding to crises and not much more. A crucial institutional innovation came in the 1880s7 when much of the responsibility for local health and sanitation was devolved to partly elect local government bodies, a responsibility shared by the 1920s with provincial governments. Indeed, one of the most notable features of the expansion and dissemination of ideas about public health in the 1930s, particularly in the context of present-day development policy, is the importance of international standards, information, and models. The Rockefeller Foundation, for instance, had extensive involvement in establishing small scale health projects in India, China and beyond. The discussions of the League of Nations Health committee were widely reported in India, and the League’s expert committees on minimal standards of nutrition, for instance, provided new 5 Drèze, J. (1988). Famine Prevention in India. London: LSE. and Hodges, S. (2004). ‘Governmentality, population and the reproductive family in modern India’. Economic and Political Weekly 39(11), 1157-1163.