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Friday, January 22, 2016

Court Fined Doctors Rs. 40 Lakhs for Conservative Management

If Doctor wants to try non surgical methods, but if patient develops complications, Consumer Courts Fine Doctors
All those who say that doctors are operating without waiting, please read this 
உடனடியாக அறுவை சிகிச்சை செய்யாமல், நோயாளிக்கு பிரச்சனை வந்தால் நுகர்வோர் நீதிமன்றங்கள் மருத்துவருக்கு 40 லட்சம் அபராதம் விதிக்கின்றன
மருத்துவர்கள் தேவையில்லாமல் அறுவை சிகிச்சை செய்கிறார்கள் என்று கூறுபவர்களின் பணிவான கவனத்திற்கு 
The Delay in diagnosis and treatment made the patient to lose her life, which in turn costed Doctors and Hospital hefty sum of Rs.25 lakhs towards compensation + Rs.15 lakhs towards mental pain & agony, totalling to Rs.40 lakhs with interest !!!
The commission gave an interesting example to explain the issue of 1 % risk of serious harm.
“suppose that, an aeroplane on a long-haul flight developed engine trouble while in mid-air, this gave rise to a one percent risk that the plane would crash and that risk would not increase for the next 12 hours but remain constant”.
“A reasonable pilot, knowing this, would not wait for 12 hours to expire but would land his plane as soon as reasonably practicable.”
(MRS.) MANIKA ROY & ANR V/s. DR. B.L. CHITLANGRA, Bombay Hospital & ors. CC no.42/2003, decided on 5th January, 2016, by the National Commission.
Facts in nutshell:
Ms. Kaberi Roy, 29, (since deceased, referred herein as a “patient”), daughter of complainants was initially diagnosed by their family physician as the patient of ‘acute appendicitis’ and advised her for immediate surgery and therefore the complainants admitted her in Bombay Hospital at 10.30 PM 0n 27.06.2002.The casualty Medical Officer examined her and diagnosed it as a case of acute appendicitis. The routine check-up also indicated severity of appendicitis and possibility of perforation (leucocytes count (17700 per cmm). The Neutrophils were 87%). It was alleged by the Complainants that the Opponent Doctors, senior surgeons failed in their duty to examine the patient immediately during emergency as Doctors came to examine the patient on next day i.e. 28.06.2002 at 11 AM. I.e. almost after more than twelve hours of her emergency admission. The Surgery turned to not fruitful and it was alleged that the no proper surgical procedure was selected, there was septicaemia, no post-iop proper treatment and as a result patient died within two days of hospitalization, and within 36 hours of her operation.
Court Fined Doctors Rs. 40 Lakhs for Delay in Patient Diagnosis and Treatment
The Commission heard the parties at length, studied the medical records and medical literature…
The commission found discrepancy in Medical Record and the statements of Doctors especially regarding removal of Gangrenous fluid. It further observed that the departures of the Opp. Doctors individually and together in the treatment and diagnosis of the patient led to a delay in the patient’s surgery, and were a proximate cause or substantial cause contributing to the septic emic shock and death. The patient was admitted in late night, thus emergency USG scan should have been sought on an urgent basis to rule out the causes of acute abdomen. The opponent Hospital is one of tertiary care hospital and the highest care is expected than from other hospitals & had the USG scan been obtained and interpreted promptly, these complications might have been avoided. If that had happened, patient could have been operated expeditiously as an emergency basis, further observed by the commission. It also held that an appropriate standard of care had not been met as surgery took place after 17 hours.
Court Fined Doctors Rs. 40 Lakhs for Delay in Patient Diagnosis and Treatment
IT relied by the Landmark judgment of Apex court of Dr. Laxman Balakrishna Joshi Vs. Dr. Trimbak Bapu Godbole AIR 1969 SC 128, which laid down that a doctor when consulted by a patient, owes him certain duties, namely,
(a) a duty of care in deciding whether to undertake the case;
(b) a duty of care in deciding what treatment to give; and
(c) a duty of care in the administration of that treatment. A breach of any of these duties gives a cause of action for negligence to the patient.
Court Fined Doctors Rs. 40 Lakhs for Delay in Patient Diagnosis and Treatment
This may be the first case of this year wherein the Doctors and Hospital were held negligent and ordered to pay such heavy compensation!! To learn from the mistakes of others, is the crux of this case!!

Sunday, January 10, 2016

Define Medical Negligence

From << "What I think is that the ambit and scope of term 'medical negligence' should be defined properly. Complications are inherent to the science of medicine also, as it's not a 100 per cent fool-proof science," Dr Mundada said adding that inability to make the patient well is not and should not be made equivalent to medical negligence. >>

Sunday, November 16, 2014

Medical officer gets jail over waste disposal

From In a landmark judgment, the sub-divisional judicial magistrate court Jagatsinghpur on Wednesday awarded six-month imprisonment to former additional district medical officer Nityananda Panda for failure in disposal of hospital waste and violation of Environment (Protection) Act, 1986. In his verdict on Tuesday, the SDJM Alekh Kumar Pradhan also imposed a penalty of `50,000 on Panda and further one-month in prison in case he fails to deposit the penalty. Besides, the court also slapped a penalty of `50,000 on the authorities of the district headquarters hospital. The directive of the court came at the end of hearing in a criminal case filed by the Orissa State Pollution Control Board against Dr Panda. It may be mentioned that the Orissa high court in 2009 had asked the OSPCB to register criminal cases against the medical authorities for improper waste disposal management in gross violation of Environment (Protection) Rules. Acting on the directive of the court, the board had given provisional authorisation for one year to the Jagatsinghpur hospital for disposal of waste. However, the board during its inspection of the hospital on April 4, 2010, found gross irregularities in waste management by the hospital authorities. Taking strong exception to the lackadaisical attitude of the hospital authorities, the board had issued a show cause notice to them on May 1, 2010.

Private college hospitals can do autopsies, says court Chennai: The Madras high court has suggested to the state government to explore the feasibility of permitting private medical college hospitals to perform autopsies on unidentified bodies, which will relieve the congestion in mortuaries in government hospitals. A division bench comprising Justices S. Rajeswaran and P. N. Prakash gave the suggestion while issuing a set of directions to authorities relating to man missing cases and unidentified bodies. Citing an order of the Karnataka government relating to conducting of post-mortem, the bench said, “Due to paucity of post-mortem doctors in government hospitals, post-mortem on unidentified bodies is not done immediately and preference is given only to murder cases, accident cases and in cases where the body is identified. In our opinion, a solution to this problem can be found, if private medical college hospitals in the state are given permission to conduct post-mortem as done in the state of Karnataka”. In Tamil Nadu, there were 19 government medical colleges and 26 private medical colleges, of which 11 were deemed universities. At present, students studying in these private medical colleges were sent to the government medical college hospitals for getting training in autopsy, the bench pointed out. To begin with, on a trial basis, if the government grants permission to these private medical colleges to perform autopsies on unidentified bodies, it will relieve the congestion in the mortuaries in the government hospitals. The orthodox may raise their eyebrows and ask anxiously “Will not these private doctors become amenable to influence and issue bogus post-mortem certificates?” But, the situation seems no better in the government hospitals either. “If videography of all post-mortems, whether done in government hospital or private hospital is made compulsory, such misadventures can be curtailed”, the bench added. The bench said an apprehension was voiced that the state will not be able to take any action against a doctor of a private medical college, if the post-mortem certificate given by him was found to be bogus. It cited various sections under the Indian Penal Code dealing with furnishing false information and causing disappearance of evidence, among others that are to prosecute the doctor. The legislature can also bring in an amendment to the definition of “public servant” found in section 21 of IPC and in section 2 © of the Prevention of Corruption Act, by including “The doctors who perform autopsy at the request of a police officer” so that the doctor can be prosecuted even under the Prevention of Corruption Act, the bench added.

Tuesday, September 23, 2014

Penalised for Not Giving Doc Rural Service Marks



Pulling up the State Health Secretary and the Secretary of the Medical Selection Committee for not awarding marks to a young doctor for her rural service, thereby denying her an opportunity to pursue postgraduate specialisation course, the Madras High Court bench here imposed a fine of `1 lakh on each of them.

The doctor J Mercy Rumya Florence, an assistant surgeon, was temporarily appointed at a primary health centre in Thulukarapatti in Tirunelveli where she worked for two years and four months. Later, she appeared for an entrance exam in 2012-13, for pursuing postgraduate degree course and scored 63.36 marks. As per the prospectus she was eligible to be awarded one mark for each completed year of Compulsory Rotatory Residential Internship (CRRI) in rural area. However, she was not given the marks on the grounds that it is awarded only for doctors who are in regular service. Justice S Nagamuthu said that due to the careless attitude of the respondents, the petitioner had lost her right to acquire a PG seat and she deserved to be compensated for it.

Friday, January 24, 2014

Govternmen Doctor to Pay Rs 5,000 for Illegal Aid to Police

Published: 24th January 2014 08:49 AM
Last Updated: 24th January 2014 08:49 AM
Dr S Rajendran, presently working As Chief Medical Officer, Government Hospital in Jayankondam in Ariyalur district, is directed by the TN State Human Rights Commission to pay a compensation of Rs5,000, for assisting the local police to build up a false case against a villager.
SHRC Acting chairperson Jayanthi, IAS (retired), who gave the direction on Thursday, also directed Kosalraman, presently working as SI, Intelligence section, Tiruchy, to pay Rs25,000 to Abhimannan of Chettithirukonam village in Ariyalur district, for violating his human rights. The State government should pay the entire amount of Rs30,000 to Abhimannan within four weeks and recover the same from the SI and the doctor, the commission said.
According to Abhimannan, one Malar of the village filed a civil suit against him over a property and the same was pending before the Civil Court in Ariyalur. While so, he was picked up by cops on September 28, 2004 and taken to Vikramangalam police station, where he was directed to pay Rs5,000 to settle the dues of the station personnel due to a nearby hotel to favourably settle the civil case. He was abused with filthy language and severely attacked, when he refused to oblige. A false case was registered against him, produced before the local magistrate belatedly and remanded in custody. Abhimannan moved the SHRC with the present complaint.
Passing orders on it, the SHRC observed that the evidence available in the case, coupled with the documents, would show that the complainant was picked up by Kosalraman on September 28, 2004 from his house and was taken to the Vikramangalam Police Station, where he was illegally detained and was shown as arrested only at 2 pm on that day and that he was brutally assaulted by the SI. The doctor has extended all his illegal assistance by filing a false medical certificate.

Tuesday, December 31, 2013

Detention of Mentally Ill People in Hospitals - Guidelines for Doctors and Magistrates

Nathalie Vandenbyvanghe vs The State Of Tamil Nadu on 19 September, 2008 Dated :19..09..2008 C O R A M The Honourable Mrs. Justice Prabha Sridevan and The Honourable Mr. Justice V. Periya Karuppiah Habeas Corpus Petition No.1041 of 2008 Nathalie Vandenbyvanghe .. Petitioner versus 1. The State of Tamil Nadu, Rep. by its Secretary to Government, Home Department, Fort St. George, Chennai-9. 2. The Commissioner of Police, Chennai City, Chennai. 3. Institute of Mental Health, Rep. by its Director, Kilpauk, Chennai-10. 4. The Inspector of Police, Kottur Police Station. 5. Inspector of Police, Nesamony Nagar Police Station, Kanyakumari District at Nagercoil. .. Respondents - - - - - PRAYER : Petition under Article 226 of the Constitution of India seeking to issue a writ of habeas corpus directing the 3rd respondent to set Mr. Roger Vandenbyvange, a French National, aged about 61 years, at liberty forthwith. - - - - - For Petitioner : Mr. T.R. Rajagopalan, Senior Counsel for Mrs. Pushpa Sathyanarayana. For Respondents : Mr. P. Kumaresan, Addl. Public Prosecutor. - - - - - O R D E R Prabha Sridevan, J. A foreign national came to our country as a tourist, he lost his passport, he could not speak English. He has no mental illness, yet, he was rounded up along with more than 100 persons, and was issued reception orders under the Mental Health Act, 1987. Disturbed that he did not return to his homeland, his daughter filed this habeas corpus petition. 2. The facts are these : The father of the petitioner herein, one Roger Vandenbyvanghe, aged about 61 years, was visiting India to seek the blessings of Matha Amritandamayi. He had a valid passport and visa. His visa was valid upto 8.6.2008. He lost his passport and other travel documents along with his personal belongings, including his clothes. He knew only French language and no other language. He was also unable to communicate with anybody. He was wandering on the roads in Kanyakumari District. He had no money and he had to live seeking alms and that is how he made his survival. When he did not return to his home country beyond the date of expiry of his visa, his daughter was alarmed. When she enquired with the French Embassy, she was informed that her father had been admitted into the Mental Health Institute, Chennai. It came as a rude shock to the petitioner since her father was not a mentally ill person. Therefore, she came to Chennai to take her father back. She made a request to the hospital authorities to discharge her father, but they refused to do so. Her complaint was that her father, was illegally kept in the custody of the hospital authorities. Therefore, she filed this habeas corpus petition. 3. On 21.7.2008, this Court passed an order in this petition and the relevant portions of the said order are extracted below, since we feel it is necessary : "This habeas corpus petition portrays a sad state of affair in handling a foreign national by name Roger Vandenbyvanghe, aged 61 years, who could not have dreamt when he came to India and landed during January, 2008 that his life is going to be miserable at the hands of the police. ... On 9.7.2008, the Inspector of Police, Kottar Police Station surrounded 50 male persons and the Inspector of Police, Nesamony Nagar Police Station surrounded 45 male persons as well as 20 female persons totalling 115 persons and resorted to invoke the provisions of Section 23 of the Mental Health Act, 1987 and a case in Cr.No.800 of 2008 was registered. They made all of them appear before a team of doctors consisting of Dr.Y.Arul Prakash, Assistant Surgeon, Government Medical College & Hospital, Nagercoil and Dr.P.Natarajan, Tutor in Psychiatry, Kanyakumari Government Medical College & Hospital, Nagercoil at Asaripallam on the same day. The French national in question was one among the 115 persons who was produced before the above team of doctors and was certified to be suffering from Bipolar disorder mania and a certificate to this effect was issued by the team of doctors. Likewise, similar certificates were also issued in respect of the remaining 114 persons as well. On the strength of the above certificates, the Inspectors of Police of Kottar & Nesamony Nagar Police Stations made applications before the learned Judicial Magistrate No.II in-charge, Nagercoil, Kanyakumari District to pass reception orders authorising the detention of the French national and other 114 persons as in-patients in the Institute of Mental Health, Kilpauk, Chennai. The said applications were ordered again on the very same day and the reception orders were also served in Form-5. Based on the said reception orders, all 115 persons were brought to Chennai and were admitted in the Institute of Mental Health, Kilpauk, Chennai for further treatment. ... They were brought to Chennai and were admitted in the Institute of Mental Health. The detenu was put on observation for a period of ten days. Ultimately, the Institute of Mental Health found that Mr.Roger Vandenbyvanghe does not exhibit any abnormality or psychopathology during the entire period of ten days observation and the observation report of the Institute of Mental Health, Chennai-10 dated 19.7.2008 reads as under:- "Name Mr.Roger Vawdew Vaughe Age 60 Sex Male IP No.2132/2008 DOA 10.7.2008 Mr.Roger Vawdew Vaughe 60 years old male was admitted in Institute of Mental Health, Chennai-10 along with the group of totally 115 persons through reception order issued by the Judicial Magistrate II, Nagercoil I/c, Kanyakumari District on 10.7.2008. On admission, Mr. Roger Vawdew Vaughe was unclean, untidy, and having an infected ulcer on the outer aspect of the left forearm. Mr. Roger Vandew Vaughe has been under observation for the past 10 days. Detailed Physically examination, mental status examination, blood investigation and psychological testing was carried out. During his stay in the last 10 days Mr. Roger Vawdew Vaughe is behaving well, and he has proper sleep and eats sufficiently. Based on the ward behaviour, physical and mental status examination and investigations, it is opined that Mr. Roger Vawdew Vaughe does not exhibit any abnormality or psychopathology during this period of observation." The manner in which this foreign national had been treated by the police is really disturbing. It is difficult to understand how a prima facie satisfaction could be arrived at by the officers in respect of 115 persons en masse at the same time : "This exposes the psycho-fever of the police to proceed against those who are wandering in the streets to be treated as mentally ill persons disregard of their actual physical and mental condition. We must express our total dissatisfaction over the way by which the entire matter had been handled not only by the police, but also at the level of the doctors and the learned Judicial Magistrate as well." (vide order dated 21.7.2008) The approach of the doctors who were called upon to certify whether these 115 persons deserve to be detained is equally inexplicable : "When 115 persons were surrounded by the police and were produced enmasse to a team of doctors, it is hard to believe whether the doctors have discharged their noble duty by examining all the 115 persons individually and arrived at the conclusion that they are mentally ill persons to be dealt under the provisions of the Mental Health Act. The examination of all the 115 persons and to certify them to be mentally ill persons at a stretch and by issuing a printed form of certificate is either humanly impossible or would be the result of callousness shown against those persons by the doctors." (vide order dated 21.7.2008) The reception orders were passed by the learned Judicial Magistrate en masse too : "On perusal of the records, it is seen that the Magistrate before whom all the 115 persons were produced, at a single stretch, has exercised the power under Section 24 and issued the reception orders. The satisfaction of the Magistrate, in our view, is only mechanical and she has not properly applied her judicial mind to the provisions of the Act." (vide order dated 21.7.2008) In view of the prima facie opinion arrived at with regard to these 115 persons, directions were issued to the Director, Institute of Mental Health, Kilpauk, Chennai to submit a detailed report regarding them. 4. The Additional Public Prosecutor produced the status report filed by the Deputy Superintendent of Police, Nagercoil. According to this, several representations had been received from various social organisations that more than 100 mentally ill persons were wandering in Nagercoil and that their condition was pitiable. Therefore, the District Administration took joint action to produce them before the Judicial Magistrate's Court as per law. It appears that cases were registered based on the representations of the social organisations in Crime No.800 of 2008 under Section 23(3) of the Mental Health Act, 1982 by the Kottar Police Station against 50 male mentally ill persons; in Crime No.405 of 2008 under the same section on the file of the Nesamony Nagar Police Station against 45 mentally ill persons; and in Crime No.18 of 2008 under the same section on the file of the All Women Police Station against 20 female mentally ill persons. The District Administration, therefore, apparently had made arrangements to trim their hair and give them bath and also to provide them new clothes. 125 persons were caught and produced for medical examination based on the order of the Judicial Magistrate. According to the status report, 12 doctors from Kanyakumari Medical College comprising a team evaluated these mentally ill persons and rejected 10 persons as beggars and certified the remaining 115 persons as suffering from mental illness. The status report records that the doctors had to work overtime since they had to examine a large number of persons. It is only after observing the due process of law that they had been transferred to the Institute of Mental Health, Kilpauk, Chennai. According to the status report, the petitioner's father was diagnosed as suffering from Bipolar Disorder Mania. He had escaped from the ward twice and thereafter, he was asserted for mental illness. According to the status report, the said person was inadequately dressed, shabby, talking irrelevantly and was in an abnormal, elevated state of mind with absence of insight. 5. It was repeatedly urged by the learned Additional Public Prosecutor that the reception orders were passed only after due examination of the persons. 6. We are not able to accept this submission. Strictly speaking, when the petitioner's father was restored to her, no further orders were necessary. But, we felt that the treatment of mentally ill persons by the police, doctors and court left much to be desired. That is why the medical report was called for from the Isstitute of Mental health at Chennai.As a sample, we will take the case of the petitioner's father itself. According to the police status report, he was admitted by one Manikandan, Director of a Non Governmental Organisation on 27.5.2008. He absconded, was again admitted by the same person and again he absconded, but subsequently the diagnosis was made that he was suffering from bipolar disorder mania as seen above on 27.6.2008. The medical record of the petitioner's father had been produced and the observation report made on admission by the Civil Assistant Surgeon at the Institute of Mental Health, Chennai would show that the petitioner's father was unclean, untidy and having an infected ulcer on his left forearm. The doctor certified that a detailed physical examination, mental status examination, blood investigation and psychological testing of the said person had been carried out and he was behaving well, "he has proper sleep and eats sufficiently". Based on the ward behaviour, physical and mental status examination and investigations, the doctor at the Institute of Mental Health, Chennai certified that the petitioner's father does not exhibit any abnormality or psychopathology during this period of observation. The psychological report shows that a psycho-diagnostic assessment was made and he talked relevantly and coherently. His attention could be aroused and sustained and there was no evidence of psychosis. Therefore, it is evident that the original assessment diagnosing the petitioner's father with Bipolar Disorder Mania is not supported by the subsequent assessment made. We are not giving any finding on the professional capacity of the doctors at Kanyakumari who diagnosed the petitioner's father as being mentally ill. But, we cannot ignore the manner in which it was done. 125 persons were examined virtually on a single day and therefore, the diagnosis was not the result of a proper psycho-assessment. The reception order passed on such an assessment cannot be a valid one. 7. The Director of the Institute of Mental Health was present in Court on one of the days of hearing and we requested him to furnish information with regard to the number of days taken by the team at the Institute for assessing the mental capacities of the 115 persons who were sent to them and the report filed by him reads as follows : "Submitted by Dr. R. Sathianathan, Director, The Institute of Mental Health, Chennai-10. With reference to the information sought by the Honourable High Court Bench A total number of 115 persons (95 males & 20 females) were admitted at the Institute of Mental Health on 10th July, 2008 though the Reception Order from The Honourable Judicial Magistrate No.II i/c., Nagercoil Kanyakumari District, under Section 23, 24 of Mental Health Act, 1987. At the Institute of Mental Health, a team was constituted comprising of 10 Psychiatrists, 2 Psychologists, 6 Social Workers, 6 Staff Nurses and other Para Medical Staff. The team identified the referred persons based on their identification marks as also examined and screened for physical illnesses such as hypertension, cellulites, ulcers, fractures, leprosy etc. On the subsequent day, a detailed laboratory investigation like blood test, X-ray, ECG, HIV Screening, were carried out. Persons with physical illnesses were referred to other hospitals for appropriate treatment. Simultaneously a detailed Mental Status Examination was carried out over a period of 10 days. These persons were given customized care, following which their personal details were solicited. With the information sought, few of the person's relatives were contacted by the social workers. Out of the 115 persons admitted, a French National was discharged as per the instructions of the Honourable High Court. Another 7 persons were (6 males & 1 female) found to have no gross psychopathology during the observation period. These seven persons were further observed for 10 more days for their ward behaviour and subsequently psychological assessments were done. After an intensive observation and investigation these 7 persons were certified that they did not have any abnormality. The efforts are being taken to reintegrate them back to community through the N.G.O's. The rest of the 107 persons are still under observation and treatment. All the 114 person were placed before the Vistors Committee on 30th July, 2008. Dr. R. Sathianathan, 16 August, 2008." Therefore, over a span of ten days, the persons were kept under observation and a mental status examination was done and out of these 115 persons, seven were certified as not having any abnormality and other 107 persons are still under observation. The Director IMH Chennai, told us that a minimum period of 10 days is required to make a mental status examination. 8. Now, we come to the question that disturbs us. It is seen from the records produced before us that the District Collector, Nagercoil had called for a meeting when it was brought to her notice that mentally affected persons are seen in railway stations and bus stands and that proper reception orders are to be obtained. At the meeting, a plan was drawn up : "In the meeting, it was unanimously resolved to send the Mentally affected persons who are seen in Nagercoil Town and Kanyakumari Township to the Institute of Mental Health, Ayanavaram, Chennai in a safety manner. At the first instance, necessary steps would be initiated to identify the Mentally affected persons so as to hand over to the Government Institute of Mental Health, Chennai, for which, the following arrangements to be made by the Officers concerned. It was further planned to commence this exercise by 9th itself and before this end of next week, all the identified patients should be sent to the Institute by getting proper Reception Order from the Judicial Magistrate, as required by the Institute." On 9.7.2008, learned Judicial Magistrate No.II had sent all the 115 persons for assessment of their mental condition as per Section 24 of the Mental Health Act. On 10.7.2008, reception orders had been issued. Though it was submitted by the learned Additional Public Prosecutor that there was no short-circuiting in the process of assessment of the mental condition and that a team of doctors worked, and that all the mentally ill persons were distributed amongst the team and evaluation was done properly, the facts indicate the contrary. We find that the evaluation report had been signed only by two doctors. For that, some explanation is given, which were are not willing to accept. It is clear that 115 persons were treated as mere chattels, rounded up, their hair trimmed, given a bath, sent to doctors, who "duly certified them as mentally ill" and reception orders had been issued. 9. We are also not happy about the manner in which reception orders had been issued by the learned Judicial Magistrate. Of course, we are not here to examine the correctness of the reception orders, that falls beyond the scope of this habeas corpus petition. But, it is apparent the learned Judicial Magistrate not have been really "satisfied" that reception orders ought to be issued in respect of these 115 persons? Mentally ill persons are entitled to the right of life with dignity and they have the Fundamental Rights same as others. Junior level officers of the judiciary are perhaps under the misapprehension that in their Courts, procedural law alone has to be followed. They should change their mindsets. They are equally charged with the obligation of protecting the fundamental rights of the litigants. The work they do day after day cannot run afoul of the Constitutional Obligations. 10. We are concerned with the manner in which the police, the doctors and the learned judicial magistrate have dealt with this group which, on the face of it, is a group without power; but nonetheless a group of persons entitled to protection of human rights. Their autonomy is violated and they have been treated as though they have no rights of their own. "By rights, I mean those fundamental expectations that govern the relationship between individuals and societies. In modern, western societies, rights of individuals are conceptualised as protections against arbitrary so that individuals retain personal choice and decision-making. ... The right of the individual to be free from arbitrary exercise of state power is perhaps the key difference between the democratic nations of the world and those that operate under other systems. Their cross-cultural value is recognized by documents such as the Universal Declaration of Human Rights, which hold that all adults, anywhere in the world, should be free to make basic life choices for themselves. Involuntary commitment, forced treatment, and psychiatric control over decision-making are really not complicated issues, despite the efforts to make them seem so. The fundamental question is this: why do we take one group of people, those labelled "mentally ill", and deny them basic rights? The ethical system (if I can call it that) that drives the involuntary treatment system is paternalism, the idea that one group (the one in power, not oddly) knows what is best for another group (which lacks power). The history of civilisation is in part, the struggle against paternalism and for self-determination. People in power are always saying that they know what is best for those they rule over, even if those poor unfortunate individuals think they know best what they want. The powerful seldom cast their own motives in anything but benevolent terms. Rulers and slave masters like to think (or pretend) that their subjects love them and are grateful to them often having to ignore much evidence to the contrary. The struggle for freedom has always been seen by the powerful as a denial of the obvious truth of the superiority of the rulers. It is clear that we cannot leave our fate in the hands of lawyers, judges, and psychiatrists, who seem quite willing to sacrifice our freedom in the name of benevolent paternalism. Not too many years ago, former patients were not invited to speak at conferences like these. Today, our participation is welcomed, our opinions are solicited, our voices being heard. But the continued existence of involuntary commitment, of prison-like mental institutions, of discrimination and seggregation, shows how far we still have to go to reach our goals: full citizenship, equality, and human dignity".1 11. In his Article2, Kevin Wadzuk of the American University, Washington DC writes : "The United States Constitution is the document upon which the country was founded. It outlines the powers and procedures of the government as well as its duties to protect personal liberties. There is no mention in the Constitution that the rights guaranteed to citizens are limited to those citizens who are of sound mind. ... After consideration of the abuses of the mentally ill, one might question the rationale of society, through its representatives, in these actions. Thomas Szasz (1963) suggests that social disturbance is the issue resolved by this process. If a person asserts ideas, beliefs, or sensations that threaten society, a social disturbance is created. Thus, the deprivation of liberty of a person for mental health reasons is based on the person s thoughts and behavior, not criminal actions. This is an important distinction to make because it leads to the violation of one the basic constitutional rights. Perhaps what is more disturbing is that these persons are not criminals; they are rejects from society. Society has deemed the behaviors of these people as unacceptable and developed a process to remove them from sight and consideration. However, these persons do not disappear; they spend years of there lives in mental institutions, such as St. Elizabeth s Hospital. It is extremely saddening and distinctly outrageous that a minority group could be so blatantly abused." 12. With these voices in the background, we go to the Act. Section 24 of the Mental Health Act reads as follows : "24. Procedure on production of mentally ill person. (1) If a person is produced before a Magistrate under sub-section (3) of section 23, and, if in his opinion, there are sufficient grounds for proceeding further, the Magistrate shall- (a) examine the person to assess his capacity to understand, (b) cause him to be examined by a medical officer, and (c) make such inquiries in relation to such person as he may deem necessary. (2) After the completion of the proceedings under sub-section (1), the Magistrate may pass a reception order authorising the detention of the said as an inpatient in a psychiatric hospital or psychiatric nursing home,- (a) if the medical officer certifies such person to be a mentally ill person, and (b) if the Magistrate is satisfied that the said person is a mentally ill person and that in the interest of the health and personal safety of that person or for the protection of others, it is necessary to pass such order: Provided that if any relative or friend of the mentally ill person desires that the mentally ill person be sent to any particular licensed psychiatric hospital or psychiatric nursing home for treatment therein and undertakes in writing to the satisfaction of the Magistrate to pay the cost of maintenance of the mentally ill person in such hospital or nursing home, the magistrate shall, if the medical officer in charge of such hospital or nursing home consents, make a reception order for the admission of the mentally ill person into that hospital or nursing home and detention therein: Provided further that if any relative or friend of the mentally ill person enters into a bond, with or without sureties for such amount as the Magistrate may determine, undertaking that such mentally ill person will be properly taken care of and shall be prevented from doing any injury to himself or to others, the Magistrate may, instead of making a reception order, hand him over to the care of such relative or friend." The Statement of Objects and Reasons of the Mental Health Act shows the transformation in the attitude of people when compared to the Act that was repealed, namely the Lunacy Act. Even the nomenclature given to the mental condition, to which the Act is addressed, has undergone a sea change. Where originally the word used was "lunacy", now the words used are "mental health". 13. It is evident that on the part of Judicial Magistrate No.II, Nagercoil, he has not applied his mind to examine the persons produced before him under Section 24 of the Mental Health Act, 1987, but had mechanically passed the reception orders. As we have already observed our unhappiness about the manner in which the 115 persons were produced by the police before the Judicial Magistrate No: II, Nagercoil at Kanyakumari District, and the disposal of those persons in granting the reception orders by the learned Judicial Magistrate, it has become necessary for us to give suitable directions to the executive authorities concerned as well as the Judicial Magistrates, who have to deal with the persons who are supposed to be mentally ill, so that they may act in accordance with The Mental Health Act, 1987 and to follow the guidelines issued by this Court as well as the Supreme Court in the various pronouncements. The Supreme Court had bestowed its hope on judicial Magistrates rather than the executive Magistrates to pass reception orders as per provisions of The Mental Health Act, 1987. 14. Mentally ill persons are not criminals, they have not committed any offence. Then, is it necessary that for their protection, action should commence with a First Information Report? The law makers should seriously consider an alternative procedure by which reception orders can be issued without a "police complaint". 15. Justice Claire L'Heureux Dube, Supreme Court of Canada (Retired) would say that one must walk in the person's shoes if one has to understand where a person who complains of violation of rights comes from. I quote : "It is important to walk a mile in another person's shoes. As it is possible to grow up in the same family, neighbourhood, school..... And yet, have totally different experiences depending on whether you are a man or a woman. The way to resolve differences therefore is not to suppress those who are different, but to notice them and not try to see our reflection in them." It would be better, in fact imperative, that the police, the doctors and the judicial officers put themselves in the shoes of these marginalized groups of persons who are treated as if they are non-persons before they deal with their rights. 16. Every person wandering on the street is not mentally ill. The police should not "round up" people as if they were stray cattle and deal with them as such. Each individual should be dealt with as a separate case, he/she shall be treated as a human being with all the Constitutional rights. This will be possible if the police/NGO or any other person bring up each case individually as and when it arises. 17. The police need not wait to reach such a huge number in order to produce such persons before the Judicial Magistrate concerned. They shall act promptly as and when they happen to see an abandoned or destitute or mentally affected or suspected ill persons wandering in the public places. When such mentally ill persons are handled by the police, they are to be treated with humanity and dignity and they should not be treated as chattel. The police officers who are actually executing the work of taking cognizance of the mentally ill persons who are roaming in the streets and other public places shall deal with them as per Section 23 of the Mental Health Act, 1987. 18. It is also apparent that the medical officers have not given the due care and caution before certifying a person as mentally ill. This has several serious legal consequences, depriving them of many rights. For example a mentally unsound person cannot contest an election. There are so many disqualifications that attend a person with mental unsoundness. In this case, the petitioner's father has been certified as suffering from bipolar disorder without justification. He is as healthy as the person who first examined him, as the certificate from the Institute of Mental Health, Chennai would show. The doctors cannot mindlessly certify a person as mentally ill. If they need time for examination, they shall insist on that time being given. Importantly, a person does not deserve any less attention than another merely because he/she is found on the street or is poor or is a beggar. The doctors shall also attend immediately to any physical injury that is found on the said person. 19. The trust and hope laid on the Judicial Magistrates in Sheela Barse vs. Union of India, (1993) 4 S.C.C. 204 should have been fulfilled by the Judicial Magistrates by observing and enforcing the provisions of the Mental Health Act, 1987, strictly when the suspected mentally ill persons are produced before them. The Judicial Magistrates concerned should have examined the persons to assess their capacity to understand and cause him to be examined by the Medical Officer and to make such enquiries in relation to such person whenever necessary. It is humanly impossible to "examine" 115 persons, as has been done in this case. Any deviation of Section 24 of the Act is not only harmful to the persons concerned but will also affect the society at large. Under these circumstances, the Judicial Magistrates of this State of Tamil Nadu as well as the State of Puducherry are to be instructed that they should follow the procedures mentioned in Section 24 of the Mental Health Act, 1897 in letter and spirit and to see that justice is done to the persons concerned. The mentally ill persons shall not be made to wait unduly long before reception orders are issued. The Magistrates shall remember the trust and faith reposed on them while they discharge their duty under this Act. What happened in this case must not ever recur. 20. By an order dated 21.07.2008, this Court had set at liberty the detenu Mr. Roger Vandenbyvanghe, already, and therefore, this habeas corpus petition is disposed of with the aforesaid directions. 21. The Registry is directed to circulate this order to all the Judicial Magistrates concerned in Tamil Nadu and Puducherry through the Principal District Judge of the respective Districts for strict observance. The Registry shall also communicate this order to the Director General of Police, Tamil Nadu, and Director General of Police, Puducherry, to circulate the instructions and observations to all the police stations. (P.S.D., J.) (V.P.K., J.) ab 19..09..2008 Index : Yes Website : Yes To 1. The State of Tamil Nadu, Rep. by its Secretary to Government, Home Department, Fort St. George, Chennai-9. 2. The Commissioner of Police, Chennai City, Chennai. 3. Institute of Mental Health, Rep. by its Director, Kilpauk, Chennai-10. 4. The Inspector of Police, Kottur Police Station. 5. Inspector of Police, Nesamony Nagar Police Station, Kanyakumari District at Nagercoil. ab Prabha Sridevan, J. and V. Periya Karuppiah, J. Pre-delivery Order in H.C.P. No.1041 of 2008 Delivered on