Simpson s Forensic Medicine 12th Edition Richard

Shepherd pdf download

https://ebookgate.com/product/simpson-s-forensic-medicine-12th-edition-richard-shepherd/

★★★★★ 4.6/5.0 (36 reviews) ✓ 87 downloads ■ TOP RATED

"Amazing book, clear text and perfect formatting!" - John R.

DOWNLOAD EBOOK
 Simpson s Forensic Medicine 12th Edition Richard Shepherd
pdf download

TEXTBOOK EBOOK EBOOK GATE

Available Formats

■ PDF eBook Study Guide TextBook

EXCLUSIVE 2025 EDUCATIONAL COLLECTION - LIMITED TIME

INSTANT DOWNLOAD VIEW LIBRARY

Instant digital products (PDF, ePub, MOBI) available
Download now and explore formats that suit you...

Burket s Oral Medicine 12th Edition Michael Glick

https://ebookgate.com/product/burket-s-oral-medicine-12th-edition-
michael-glick/

ebookgate.com

Forensic Medicine Inside Forensic Science 1st Edition

Howard C.

https://ebookgate.com/product/forensic-medicine-inside-forensic-
science-1st-edition-howard-c/

ebookgate.com

Alan Simpson s Windows Vista Bible Desktop Edition Alan

Simpson

https://ebookgate.com/product/alan-simpson-s-windows-vista-bible-
desktop-edition-alan-simpson/

ebookgate.com

The Essentials of Forensic Medicine and Toxicology 33rd

Edition Narayan K. S. Reddy

https://ebookgate.com/product/the-essentials-of-forensic-medicine-and-
toxicology-33rd-edition-narayan-k-s-reddy/

ebookgate.com
Instructor s Solutions Manual for Modern Control Systems
12th Edition Richard C. Dorf

https://ebookgate.com/product/instructor-s-solutions-manual-for-
modern-control-systems-12th-edition-richard-c-dorf/

ebookgate.com

Casebook on torts 12th ed Edition Richard Kidner

https://ebookgate.com/product/casebook-on-torts-12th-ed-edition-
richard-kidner/

ebookgate.com

Nuendo Power 1st Edition Ashley (Ashley Shepherd) Shepherd

https://ebookgate.com/product/nuendo-power-1st-edition-ashley-ashley-
shepherd-shepherd/

ebookgate.com

Concise Forensic Medicine Toxicology 4th Edition Ks

Narayan Reddy

https://ebookgate.com/product/concise-forensic-medicine-
toxicology-4th-edition-ks-narayan-reddy/

ebookgate.com

Paediatric Forensic Medicine and Pathology 1st Edition

Jean Keeling

https://ebookgate.com/product/paediatric-forensic-medicine-and-
pathology-1st-edition-jean-keeling/

ebookgate.com
Simpson’s
Forensic Medicine
 Professor CEDRIC KEITH SIMPSON CBE (1907–85)
MD (Lond), FRCP, FRCPath, MD (Gent), MA (Oxon), LLD (Edin),
DMJ
Keith Simpson was the first Professor of Forensic Medicine in the
University of London and undoubtedly one of the most eminent
forensic pathologists of the twentieth century. He spent all his pro-
fessional life at Guy’s Hospital and his name became a ‘household
word’ through his involvement in innumerable notorious murder
trials in Britain and overseas. He was made a Commander of the
British Empire in 1975.
He was a superb teacher, through both the spoken and the printed
word. The first edition of this book appeared in 1947 and in 1958
won the Swiney Prize of the Royal Society of Arts for being the best
work on medical jurisprudence to appear in the preceding ten years.
Simpson’s
Forensic Medicine
Twelfth Edition

Richard Shepherd
Senior Lecturer in Forensic Medicine
Forensic Medicine Unit
St George’s Medical and Dental School
Tooting, London, UK

A member of the Hodder Headline Group

LONDON
First published in Great Britain in 1947
Twelfth edition published in 2003 by
Arnold, a member of the Hodder Headline Group,
338 Euston Road, London NW1 3BH

http://www.arnoldpublishers.com

Distributed in the United States of America by

Oxford University Press Inc.,
198 Madison Avenue, New York, NY10016
Oxford is a registered trademark of Oxford University Press

© 2003 Arnold

All rights reserved. No part of this publication may be

reproduced or transmitted in any form or by any means,
electronically or mechanically, including photocopying,
recording or any information storage or retrieval system,
without either prior permission in writing from the
publisher or a licence permitting restricted copying.
In the United Kingdom such licences are issued by the
Copyright Licensing Agency: 90 Tottenham Court Road,
London W1T 4LP.

Whilst the advice and information in this book are

believed to be true and accurate at the date of going to
press, neither the authors nor the publisher can accept any
legal responsibility or liability for any errors or omissions
that may be made. In particular (but without limiting the
generality of the preceding disclaimer) every effort has been
made to check drug dosages; however it is still possible that
errors have been missed. Furthermore, dosage schedules are
constantly being revised and new side-effects recognized.
For these reasons the reader is strongly urged to consult the
drug companies’ printed instructions before administering
any of the drugs recommended in this book.

British Library Cataloguing in Publication Data

A catalogue record for this book is available from the
British Library

Library of Congress Cataloging-in-Publication Data

A catalog record for this book is available from the
Library of Congress

ISBN 0 340 76422 8

ISBN 0 340 81059 9 (International Students’ Edition –
restricted territorial availability)

1 2 3 4 5 6 7 8 9 10

Commissioning Editor: Serena Bureau

Development Editor: Layla Vandenbergh
Project Editor: James Rabson
Production Controller: Deborah Smith
Cover Design: Stewart Larking

Typeset in 9.5/12 pt Minion by Charon Tec Pvt. Ltd,

Chennai, India
Printed and bound in India

What do you think about this book? Or any other Arnold title?
Please send your comments to [email protected]
 Contents

Preface ix Mental health legislation and the criminal

Author’s Note x justice system 23
Acknowledgements xi Criminal responsibility: age and
mental capacity 24
The effect of drink or drugs on responsibility 25
1 The Doctor and the Law 1
Testamentary capacity 25
The legal system 2
Doctors and the law 2 5 The Medical Aspects of Death 27
Doctor in court 3
Definition of death 27
The behaviour of a doctor in court 5
Resuscitation 28
Preparation of medical reports 5
Persistent vegetative state 29
Structure of a report 6
Tissue and organ transplantation 29
Death certification 30
2 The Ethics of Medical Practice 8 Medico-legal investigation of death 32
International Code of Medical Ethics 9 The autopsy 34
Medical ethics in practice 10 Exhumation 35
Medical confidentiality 11
Consent to medical treatment 13 6 Changes after Death 37
Early changes 37
3 Medical Malpractice 15 Rigor mortis 38
Medical negligence 15 Cadaveric rigidity 38
Systems of compensation 17 Post-mortem hypostasis 39
Compensation and damages 17 Cooling of the body after death 40
Types of medical negligence 17 Estimation of the time of death 41
Professional misconduct 19
The General Medical Council 20 7 Identification of the Living and the Dead 49
Morphological characteristics 49
4 The Medico-legal Aspects of Mental Disease 22 Fingerprints 50
Normal and abnormal behaviour 22 Identity from teeth 50
Types of abnormal mental condition 22 Identification of the origin of tissue or samples 51
 vi Contents

The individuality of cells 51 Aircraft fatalities 92

Identification by DNA profiling 52 Mass disasters and the doctor 92
Tattoos and body piercing 53
Identity of decomposed or skeletalized remains 54 13 Asphyxia 94
Facial reconstruction from skulls 55 Suffocation 95
Smothering 96
8 Blood Stains 57
Gagging 96
Blood-stain patterns 57 Choking 96
Tests for blood 58 Pressure on the neck 97
Species specificity 58 ‘Vagal inhibition’ or reflex cardiac arrest 97
Manual strangulation 98
9 The Examination of Wounds 59
Ligature strangulation 98
Law on wounding 59
Hanging 99
Reports 60
The sexual asphyxias 101
Terminology 60
Traumatic asphyxia 101
Wounds 60
Patterns of injury 66 14 Immersion and Drowning 103
Survival 68
Signs of immersion 103
Self-inflicted injuries 68
Drowning 104
Laboratory tests for drowning 105
10 Regional Injuries 70
Head injuries 70 15 Injury due to Heat, Cold and Electricity 107
Neck injuries 75
Injury due to heat 107
Spinal injuries 75
Cold injury (hypothermia) 110
Chest injuries 76
Electrical injury 111
Abdomen 77
Death from lightning 113
11 Firearm and Explosive Injuries 79
16 Effects of Injuries 115
Types of firearms 79
Haemorrhage 115
Gunshot wounds 81
Infection 116
Air weapons, unusual projectiles and other
weapons 84 Embolism 116
Accident, suicide or murder? 85 Disseminated intravascular coagulation 118
The doctor’s duty in firearm injuries and deaths 85 Adult respiratory distress syndrome 118
Explosives 86 Suprarenal haemorrhage 118
Subendocardial haemorrhages 119
12 Transportation Injuries 87
Road traffic injuries 87 17 Unexpected and Sudden Death from
Natural Causes 120
The medical examination of victims of road
traffic accidents 90 Causes of sudden and unexpected death 120
Railway injuries 91 Cardiovascular system 121
 Contents vii

Respiratory system 126 The measurement of alcohol 160

Gastrointestinal system 126 The effects of alcohol 160
Gynaecological conditions 126 Dangers of drunkenness 161
Deaths from asthma and epilepsy 126 Drinking and driving 162

18 Sexual Offences 128 24 Drugs of Dependence and Abuse 164

Types of sexual offence 128 Tolerance and synergy 164

The genuineness of allegations of sexual Dependence and withdrawal symptoms 165
assault 131 The dangers of drug dependence 165
Forensic examination of victims of sexual Shared syringes 165
offences 131 Solid drugs 165
Examination of an alleged assailant 132 Overdosage and hypersensitivity 166
Heroin, morphine and other opiates 166
19 Pregnancy and Abortion 134 Barbiturates and other hypnotics 167
Conception: artificial insemination, in-vitro Amphetamines 167
fertilization and embryo research 134 Cocaine 167
Pregnancy 134 Cannabis 168
Abortion 135 Lysergic acid diethylamide (LSD) 168
Solvent abuse 168
20 Deaths and Injury in Infancy 141
Stillbirths 141 25 Medicinal Poisons 170
Infanticide 142 Analgesics 171
The estimation of maturity of a newborn Antidepressant and sedative drugs 172
baby or fetus 143 Barbiturates 172
Sudden infant death syndrome 144 Chloral 173
Child abuse 145 Phenacetin 173
Lithium 173
21 Neglect, Starvation and Abuse of Human
Insulin 173
Rights 150
Physical abuse of human rights: torture 150 26 Corrosive and Metallic Poisons 175
Neglect and starvation 152
Corrosive poisons 175
Heavy-metal poisoning 176
22 General Aspects of Poisoning 154
The toxic and fatal dose 155 27 Agrochemical Poisons 179
Tolerance and idiosyncrasy 156
Pesticides and insecticides 179
The doctor’s duty in a case of suspected
Herbicides (weed killers) 179
poisoning 156
Samples required for toxicological analysis 157
28 Gaseous Poisons 181

23 Alcohol 159 Carbon monoxide 181

Carbon dioxide 182
Sources of alcohol 159
Ammonia 183
Absorption of alcohol 160
Cyanogen gas and cyanides 183
Elimination of alcohol 160
 viii Contents

29 Miscellaneous Poisons 184 Appendix 2 Preparation of the Reagent for the

Kastle–Meyer Test 189
Strychnine 184
Halogenated hydrocarbons 184
Gasoline and kerosene 185 Recommended Reading 190
The glycols 185 Autopsy procedures and anthropology 190
Nicotine 185 Forensic medicine and pathology 190
Medical ethics 190
Appendix 1 Guidelines for an Autopsy and Toxicology 191
Exhumation 186 Websites 191
Guidelines for a medico-legal autopsy 186
The autopsy 187 Index 193
 Preface

The increasing interest in Forensic Medicine throughout and they must be able to interpret accurately the
the world is no doubt a result of the global rise in both results provided by the toxicologist. In the field of
crime and litigation. The advancement of the academic human identification, DNA technology has all but
as well as the popular aspects of the subject have led to obliterated the study of serology that was so important
the continuing success of Simpson’s Forensic Medicine. to Keith Simpson and his contemporaries.
The causes and effects of homicides, suicides and As our own specialist knowledge develops and pro-
accidents and the abuse of drugs and poisons are broadly gresses we must also ensure that our basic skills con-
the same wherever a Forensic Practitioner works. While tinue to be reviewed and that advances in our speciality
no single textbook can be expected to record and report are debated, tested and validated by our forensic peers
all of the possible legal permutations, it is hoped that this before they are presented to the courts as reliable evi-
twelfth edition of Simpson’s Forensic Medicine, written dence. We must never allow ‘good enough’ to be accept-
from a broad perspective but with a firm attachment to able, since we are dealing not only with the lives of the
British and European law, will serve as a useful basis for injured or killed, and but also with the lives and the
Forensic Practitioners working within any legal system. freedom of the accused. A Forensic Practitioner who
To this end, the book has been completely re-written, and lacks knowledge, skill or impartiality has no role what-
new photographs and diagrams have been included to soever in today’s local, national or international prac-
elucidate and expand the text, and, particularly, to clarify tice of Forensic Medicine.
significant forensic points. Other professionals in the legal systems – the police,
Improved techniques for the examination of both the lawyers and the forensic scientists – need an under-
the living and the dead are continually being devel- standing of our skills and the limits of our knowledge so
oped, often in response to particular events, and they that together we can strive to improve the quality of our
are commonly associated with major advances in the advice and the standard of the evidence we give to the
Forensic Sciences. As a result, some aspects of Forensic courts. Simpson’s has been popular with students, doc-
Medicine originally described by Keith Simpson in the tors, scientists, police officers and lawyers for many
early editions of this textbook are now outdated. Two years and, it would seem, has furthered that under-
examples are toxicology and human identification, standing of the role of the Forensic Practitioner. It is
both of which have developed into specialities in their hoped that this edition will continue that long tradition.
own right. Whatever the future of Forensic Medicine and
Toxicology has become something of a ‘black box’ Science, the author’s aim is that Simpson’s Forensic
science to Forensic Practitioners: they do not need to Medicine will continue to provide a firm foundation
know the minutiae of the analytical processes. How- for all those requiring accurate and clear information,
ever, they do still need to know some of the funda- whether in the field, the laboratory or the courtroom.
mentals that underpin them, they must understand
the effects of natural or man-made drugs and poisons, Richard Shepherd
 Author’s Note

Throughout this book, the words ‘he’ and ‘she’ are applicable, except where the context makes it obvi-
used at random and where words denoting the ously inappropriate.
gender are encountered, the opposite sex is equally
 Acknowledgements

The first 35 years and eight editions of this great ‘little’ by the previous editor. I have prepared the latest edi-
textbook were written by Professor Keith Simpson tion of ‘Simpson’s’ to reflect the advantages of the last
alone. He was joined for the 9th edition, which was years of the old century, and to anticipate the expected
published in 1985, by Professor Bernard Knight. When advances of this new millennium. I owe a deep debt of
Professor Knight assumed sole editorship of Simpson’s gratitude to Professor Knight, whose excellent steward-
he amended and brought it up to date, and for nearly ship of this book has made my job far easier and far
20 years thereafter he ensured, through his scholarship, more stimulating.
experience and writing, that Simpson’s Forensic Medicine I would also like to thank my family and friends
remained at the forefront of forensic publishing. who may have noticed a degree of introspection and
It was somewhat daunted when asked to assume preoccupation during the inception, development and
responsibility for such an institution but, with the delivery of this book.
guiding hand of Professor Knight to assist, I have It was the third edition of this textbook, shown to
reviewed and updated this wonderful textbook, discov- me while still at school, that inspired my own interest
ering as I did so the many pearls of knowledge, com- and subsequent career in Forensic Medicine. I hope
mon sense and simple wisdom left within its covers that this edition will inspire others in turn.
This page intentionally left blank
 C h a p t e r o n e

The Doctor and the Law

The legal system Doctor in court Medical reports and statements

The criminal system Statement The behaviour of a doctor in court
Civil courts Request or order to attend court Preparation of medical reports
Doctors and the law Attendance at court Structure of a report
Professional witness Giving evidence
Expert witness Doctor for the defence

Most countries in the world have established rules and increasingly litigious nature of current medical practice,
codes that govern the behaviour of the population especially in the Western world, suggests that it is
within that country. By and large, the rules have been essential for doctors to be aware of the specific laws
established over many hundreds of years and are gen- relating to medicine.
erally accepted because they are for the mutual benefit The great diversity of the legal systems around the
of the population – they are the framework which world poses a number of problems to the author when
prevents anarchy. Whereas there are some funda- giving details of the law in a book such as this. Laws on
mental rules (for instance concerning the casual taking the same aspect commonly differ widely from country
of life) that are to be found in every country, there are to country, and some medical procedures (e.g. abortion)
also considerable variations from country to country that are considered standard practice in some countries
in many of the other codes or rules. The laws of a are considered to be a crime in others. Even within the
country are usually established by an elected political British Isles, there are three main legal systems with con-
institution, the population accepts them and they are siderable medico-legal variations: England and Wales,
enforced by the imposition of penalties on those who Scotland, and Northern Ireland. There are also smaller
are found guilty of breaking them. jurisdictions with their own individual variations in the
Members of the medical profession are bound by Isle of Man and the Channel Isles. Over all of these areas
the same general laws as the population as a whole, there is now European legislation and with it the possi-
but they are also bound by additional laws specific to bility of final appeals to the European Court. While
the practice of medicine. The training, qualification and accepting the variations between continents and coun-
registration of doctors, the use of drugs and medicines, tries, this book will try to present best current practice
the registration of births and deaths, and the organiza- as viewed from the UK, but with the other medico-legal
tion of the health service may all be regarded as parts of areas in mind.
more general medical legislation, and individual laws It is important also to establish the difference
may be passed to deal with specific issues such as abor- between legal and ethical responsibilities. Ethical
tion, transplantation, in-vitro fertilization etc. responsibilities are discussed in greater detail in
There was a time when the practice of medicine Chapter 2, but, put simply, ethics are a self-imposed
was more paternalistic and a relatively low level of code of the national or international medical com-
legal awareness was probably acceptable. However, the munity which are not fixed in legislation but which
 2 The doctor and the law

are assumed or adopted voluntarily by the medical that is not the concern of the state. The dispute may be
profession. based upon alleged negligence, contractual failure,
debt, libel/slander etc. The state accepts that human
interactions are fallible but that differences are not
necessarily criminal. The civil courts can be viewed as
THE LEGAL SYSTEM a mechanism set up by the state that allows for the fair
resolution of disputes in a structured way.
There are many national variations but the basic pattern
The penalty that can be imposed by these courts
is very similar. The exact structure is often rooted deep
is designed to restore the position of the successful
within the history or the religious beliefs of the country.
claimant to that which he had before the event, and
is generally financial compensation (damages). In the
The criminal system USA there may also be a punitive part to these damages.
In both civil and criminal trials, the person against
Criminal law deals with disputes between the state and whom the action is being taken is called the defendant;
the individual. Criminal trials involve offences that are the accuser in criminal trials is the state and in civil
‘against public interest’; these include offences against trials it is the plaintiff.
the person, property, public safety, security of the state There are situations in which both types of pro-
etc. The dispute is between the state and the individual ceeding may follow a single incident. An example is
and in these matters the state acts as the voice or the a road traffic accident following which the driver
agent of the people. may be charged through the criminal court with traffic
In continental Europe, a form of law derived from offences (such as dangerous driving) and sued through
the Napoleonic era applies. Napoleonic law is inquisi- the civil court for the injuries he has caused to another
torial and both the prosecution and the defence have person involved.
to make their cases to the court, which then chooses
which is the more credible. Evidence is often taken in
written form as depositions, sometimes referred to as
‘documentary evidence’. DOCTORS AND THE LAW
The Anglo-Saxon model applies in the UK and in
many, if not most, of the countries that it has influ- Doctors may become involved with the law in the
enced in the past. It is an adversarial system and so it same way as any other citizen: they may be charged
is for the prosecution to prove their case to the jury with a criminal offence or they may be sued through
or the magistrates ‘beyond reasonable doubt’. The the civil court. A doctor may also be witness to a crim-
defence does not have to prove innocence because any inal act and may be required to give evidence about it
individual is presumed innocent until found guilty. in court.
However, it is most unusual for the defence lawyers There are circumstances in which doctors become
simply to remain silent, and they will usually attack involved with the law simply because they have profes-
the weaknesses of the case presented by the prosecu- sional skills or experience. In these cases, the doctor
tion lawyers and also present their own evidence. may have one of two roles, which are sometimes
The penalties that can be imposed in the criminal overlapping.
system commonly include monetary charges (fines)
and loss of liberty (imprisonment). Some countries
allow for corporal punishment (beatings), mutilation Professional witness
(amputation of parts of the body) and capital punish-
ment (execution). This role is equivalent to a simple witness of an event,
but occurs when the doctor is providing factual
medical evidence. For instance, a casualty doctor may
Civil courts confirm that a leg was broken or that a laceration was
present and may report on the treatment given. A
These courts exist to resolve disputes between individ- general practitioner may confirm that an individual
uals caused by some private wrong or disadvantage has been diagnosed as having epilepsy or angina. No
 Doctor in court 3

comment or opinion is given and any report deals service etc.) that is requesting him to give evidence or
solely with medical facts. he can ask at the court itself.

Expert witness Statement

An expert witness is one who expresses an opinion A statement in a criminal case is a report that is pre-
about medical facts. An expert will form an opinion, pared in a particular form so that it can be used as evi-
for instance about the cause of the fractured leg or the dence. There is an initial declaration that ensures that
laceration. An expert will express an opinion about the the person preparing the statement is aware that he
cause of the epilepsy or the ability of an individual must not only tell the truth but must also ensure that
with angina to drive a passenger service vehicle. Before there is nothing within the report that he knows to be
forming an opinion, an expert witness will ensure that false. The effect of this declaration is to render the indi-
the relevant facts about a case are made available to vidual liable for criminal prosecution if he has lied.
them and they may also wish to examine the patient. In civil proceedings a different official style is
There are often situations of overlap between these adopted. In these cases a sworn statement (an affi-
two witness roles: the dermatologist may diagnose davit) is made before a lawyer who administers an
an allergic dermatitis (professional aspect) and then oath or other formal declaration at the time of sign-
comment on the role that exposure to particular ing. This makes the document acceptable to the court.
chemicals may have played in the development of that In many countries, a statement in official form or
dermatitis (expert aspect). Forensic pathologists will a sworn affidavit is commonly acceptable alone and
produce a report on their post-mortem examination personal appearances in court are unusual. However,
(professional aspect) and then form conclusions based in the system of law based on Anglo-Saxon principles,
upon their findings (expert aspect). personal appearances are common and it is the verbal
The role of the expert in the civil courts has evidence – tested by the defence – that is important.
recently changed in the UK and the court now expects If a case comes to trial, any statement made for the
experts to report on all relevant aspects of a case and prosecution will be made available to all interested par-
not just those aspects that are of importance to the ties at the court; at present the same does not apply to
party who has instructed them. The civil courts may all reports prepared for the defence in a criminal trial.
now request experts from opposing sides to meet and
produce a joint report. The aims of these new rules
are to enable the court to identify and deal more Request or order to attend court
speedily and fairly with the medical points at issue in
a case. If summoned to appear as a witness for the court, it is
the duty of every citizen to comply, and attendance at
court is generally presumed without the need to resort
to a written order. In general, a doctor is sent a ‘witness
DOCTOR IN COURT order’, which is a letter informing them of the name of
the accused and possibly the nature of the case,
There are many different courts in the UK: Coroner, together with the time, date and place they should
Magistrate, Crown and the Courts of Appeal etc. attend to give evidence.
Court structure in other jurisdictions will have similar In a few cases – usually when a witness has failed to
complexity and, although the exact process doctors attend after the usual witness order or if it is thought
may experience when attending court will depend to that a witness may be reluctant to attend the court – a
some extent upon which court in which jurisdiction formal subpoena may be issued. A subpoena is a court
they attend, there are a number of general rules that order signed by a judge or other court official that
can be made about giving evidence. If there is any must be obeyed or the individual will be in contempt
doubt in a doctor’s mind about what will happen when of court and a fine or imprisonment may result. It is
he attends a particular court, he should ask either the rare for a doctor to be subpoened, but occasionally
person or group (solicitor, police, state prosecution doctors may request such an order to demonstrate to a
 4 The doctor and the law

patient that they are unwilling to divulge the medical may be expanded into the opinions that have been
facts that the court is going to require them to give. expressed and other opinions may be sought.
When this questioning is finished, the other
lawyers will have the opportunity to question the wit-
Attendance at court ness; this is commonly called ‘cross-examination’. This
questioning will test the evidence that has been given
and will concentrate on those parts of the evidence
Before going to court, doctors should ensure that they
that are damaging to the lawyer’s case. It is likely that
have all of the relevant notes, x-rays, reports etc. The
both the facts and any opinions given will be tested.
notes should be organized so that the relevant parts
The final part of giving evidence is the
can be easily found.
‘re-examination’. Here, the original lawyer has the
It is imperative for a witness to attend at the time
opportunity to clarify anything that has been raised in
stated on the witness order or subpoena, because one
cross-examination but cannot introduce new topics.
can never be faulted for being on time, but it is likely
The judge may ask questions at any time if he feels
that witnesses will have to wait to give their evidence.
that by doing so he may clarify a point or clear a point
Courts are usually conscious of the pressures on pro-
of contention. However, most judges will refrain from
fessional witnesses such as doctors and try hard not to
asking questions until the end of each of the three sec-
keep them waiting any longer than necessary.
tions noted above.

Giving evidence
Doctor for the defence
When called into court, every witness will, almost
The defence commonly needs specialist expert med-
invariably, undergo some formality to ensure that they
ical advice too. Doctors may be asked to examine
tell the truth. This is colloquially known as ‘taking the
living victims of crime or the accused, to consider
oath’ or ‘swearing in’. The oath may be taken using
witness statements, photographs or medical notes etc.
some acceptable religious text (the Bible, Koran etc.)
They may also be asked to comment on ‘normal’ or
or by making a public declaration in a standard form
‘standard’ protocols. All of these areas have their own
without the need to touch a religious artefact. This
particular aspects and it is a foolhardy doctor who is
latter process is sometimes referred to as ‘affirming’.
tempted to stray outside his own area of expertise.
However it is done, the effect of the words is the same:
The initial form of advice to the solicitor acting for
once the oath has been taken, the witness is liable for
the defendant is a letter or a report. There may follow
the penalties of perjury.
a conference with the solicitor or with counsel, provi-
Whether a doctor is called as a witness of fact, a
sion of additional information and then the prepar-
professional witness of fact or an expert witness, the
ation of a final report. This is a privileged document,
process of giving evidence is the same. However, before
which does not have to be released to other parties in
describing this process it is important to remember
either a criminal or civil case. Whether or not his
that the doctor’s overriding duty is to give evidence to
report is released to the court, the doctor may be
assist the court.
requested to attend the court to listen to the evidence,
Whoever has ‘called’ the witness will be the first to
in particular the medical evidence given by others. The
examine him under oath; this is called the ‘examin-
doctor will be able to advise counsel about the ques-
ation in chief ’ and the witness will be asked to confirm
tions that can be asked of the medical and other wit-
the truth of the facts in his statement(s). This exam-
nesses and may also be called to give evidence.
ination may take the form of one catch-all question as
to whether the whole of the statement is true, or the
truth of individual facts may be dealt with one at a
time. If the witness is not an expert, there may be Medical reports and statements
questions to ascertain how the facts were obtained and
the results of any examinations or ancillary tests per- Apart from slight differences in emphasis, there will
formed. If the witness is an expert, the questioning be no essential difference between medical reports
 Preparation of medical reports 5

produced for legal purposes – whether for the police, extremely irritating for all those in the court who need
the lawyers acting for the defence, an insurance com- to hear what is said if a witness has to be constantly
pany or any other instructing authority. Before agree- reminded to speak up. A muttering witness also gives
ing to write a report, a doctor must be certain that he the impression that his evidence is not of value or that
has the necessary training, skill and experience and, he is not comfortable with what he is saying.
whether because of medical secrecy or confidentiality, When replying to questions, it is important to keep
that he is legally entitled to do so. the answers to the point of the question and as short as
possible: an over-talkative witness who loses the facts
in a welter of words is as bad as a monosyllabic wit-
ness. Questions should be answered fully and then the
THE BEHAVIOUR OF A DOCTOR IN COURT witness should stop and wait for the next question. On
no account should a witness try to fill the silence with
Any medico-legal report must be prepared and writ- an explanation or expansion of the answer. If the
ten with care because it will either constitute the med- lawyers want an explanation or expansion of any
ical evidence on that aspect of a case or it will be the answer, they will, no doubt, ask for it. Clear, concise
basis of any oral evidence that may be given in the and complete should be the watchwords when answer-
future. Any doctor who does not, or cannot, sustain ing questions.
the comments and conclusions made in the original A witness, particularly a professional one, should
report while giving evidence will have a difficult time never become hostile, angry, rude or sarcastic while
during cross-examination. However, any comments or giving evidence. It is important to remember that it is
conclusions within the report are based upon a set of the lawyers who are in control in the courtroom; they
facts that surround that particular case. If other facts will very quickly take advantage of any witness who
or hypotheses are suggested by the lawyers in court shows such emotions. No matter how you behave as a
during their examination, a doctor should reconsider witness, you will remain giving evidence until the court
the medical evidence in the light of these new facts or says that you are released; it is not possible to bluff,
hypotheses and, if necessary, should accept that, in boast or bombast a way out of this situation – and every
view of the different basis, his conclusions may be dif- witness must remember that they are under oath.
ferent. A doctor clinging to the flotsam of his report in A judge will normally intervene if he feels that the
the face of all evidence to the contrary is as absurd as questioning is unreasonable or unfair.
the doctor who, at the first hint of a squall, changes his A witness must be alert to attempts by lawyers
view to match the direction of the wind. unreasonably to circumscribe answers: ‘yes’ or ‘no’
Any doctor appearing before any court in either may be adequate for simple questions but they are
role should ensure that his or her dress and demeanour simply not sufficient for most questions and, if told to
are compatible with the role of an authoritative pro- answer a complex question ‘with a simple “yes” or “no”
fessional. It is imperative that doctors retain a profes- doctor’, they should decline to do so and, if necessary,
sional demeanour and give their evidence in a clear, explain to the judge that it is not possible to answer
balanced and dispassionate manner. such a complex question in that way.
The oath or affirmation should be taken in a clear The old forensic adage of ‘dress up, stand up, speak
voice. In some courts, witnesses will be invited to sit, up, and shut up’ is still applicable and it is a fool who
whereas in others they will be required to stand. Many ignores such simple advice.
expert witnesses prefer to stand as they feel that it adds
to their professionalism, but this decision must be
matter of personal preference. Whether standing or
sitting, the doctor should remain alert to the proceed- PREPARATION OF MEDICAL REPORTS
ings and should not lounge or slouch. The doctor
should look at the person asking the questions and, if The diversity of uses of a report is reflected in the indi-
there is one, at the jury when giving his answers, and viduals or groups that may request a report: the police,
should remain business-like and polite at all times. prosecutors, coroners, judges, medical administrators,
Evidence should also be given in a clear voice that government departments, city authorities and lawyers
is loud enough to reach across the court room. It is of all types. The most important question that doctors
 6 The doctor and the law

must ask themselves before agreeing to write a report

is whether they are entitled to write such a report –
STRUCTURE OF A REPORT
they may be limited by confidentiality, medical secrecy
The basis of most reports lies in the notes made at the
or, of course, by lack of knowledge or expertise. The
time of an examination and it is important to remem-
fact of a request, even from a court, does not mean
ber that these notes may be required in court. A report
that a doctor can necessarily ignore the rules of med-
should be headed with the details of the patient,
ical confidentiality; however, a direct order from a
including their name, date of birth and address. The
court is a different matter and should, if valid, be
doctor’s address and qualifications should follow. The
obeyed. If there are any doubts, contact your medical
date of the report is clearly essential and the date(s)
defence society or a lawyer.
and place(s) of any examination(s) should be listed,
Medical confidentiality is dealt with in greater
as should the details of any other person who was
detail in Chapter 2, but in general terms the consent of
present during the examination(s). The details of who
a living patient is required and, if at all possible, this
requested the report, the reasons for requesting it and
should be given in writing to the doctor. However, in
any special instructions should be documented. A brief
some countries the law rides roughshod over individ-
account of the circumstances as reported to the doctor
ual patients’ rights and a doctor may be forced to
should follow. The fact of consent of the patient must
write reports without any reference to the wishes of
be included, although the patient’s signature will remain
the patient. If no consent was provided, this should
in the doctor’s notes of the examination(s).
be stated in the report, as should the basis on which
What follows next are the details of the physical
the report was written. In other countries, for example
examination and then the details of any treatment given.
Belgium, the protection of medical secrecy is very
If information other than observation during a physical
strict and even the patient’s written consent may not
examination (medical records, x-rays etc.) forms part
be sufficient to allow for the disclosure of medical facts
of the basis of the report, it too must be recorded. This
by a doctor.
is the end of the factual, professional report where no
In most advanced, democratic countries with estab-
opinions are given. A more senior doctor or an expert in
lished civil and human rights, the police have no particu-
lar power to order a doctor to provide confidential
information against the wishes of the patient, although Case no. Name
where a serious crime has been committed the doctor
has a public duty to assist the law enforcement system.
It is usual for the victim of an assault to be entirely
happy to give permission for the release of medical facts
so that the perpetrator can be brought to justice. It is
important to remember that a doctor cannot simply
assume this consent, especially if the alleged perpetrator
is the husband, wife or other member of the family. It is
also important to remember that consent to disclose the
effects of an alleged assault does not imply consent to
disclose all the medical details of the victim, and a doc-
tor must limit his report to relevant details only.
If a victim refuses to give consent or for some reason
the doctor is of the opinion that he cannot make a
report, there are commonly laws available to the courts
to force the doctor to divulge medical information. The
laws may be very specific: for instance in Northern
Ireland, where terrorist shootings and explosions were
common for the last quarter of the twentieth century,
emergency powers make it compulsory for doctors to
report any injuries due to guns or explosives. More gen- Figure 1.1 Typical body chart for marking injuries etc. in the living
erally, there is a duty to report some infectious diseases. or the dead. A whole range of charts is available.
 Structure of a report 7

a particular field may well be asked to express opinions having to attend court at all, and if you do have to give
about aspects of the case and those opinions will follow evidence, it is so much easier to do so from a report
the factual part of the report. that is legible.
There is no great trick to writing medical reports Autopsy reports are a specialist type of report and
and, to make the process simpler, they can be con- may be commissioned by the coroner, the police or
structed along the same lines as the clinical notes in that any other legally competent person or body. The
they need to be structured, detailed and accurate. Do authority to perform the examination will replace the
not include every single aspect of a medical history consent given by a live patient, and is equally import-
unless it is relevant. A court does not need to know every ant. The history and background to the death will be
detail, but it does need to know every relevant detail, obtained by the police or the coroner’s officer, but the
and a good report will give the relevant facts clearly, doctor should seek any additional details that appear
concisely and completely and in a way that an intelligent to be relevant, including speaking to any clinicians
person without medical training can understand. involved in the care of the deceased and reviewing the
Medical abbreviations should be used with care hospital notes. A visit to the scene of death in non-
and highly technical terms, especially those relating to suspicious deaths, especially if there are any unusual
complex pieces of equipment or techniques, should be or unexplained aspects, is to be encouraged.
explained in simple, but not condescending, terms. On An autopsy report is confidential and should only be
the other hand, the courts are not medically illiterate disclosed to the legal authority who commissioned the
and abbreviations in common usage such as ECG can examination. Disclosure to others, who must be inter-
safely be used without explanation. ested parties, may only be made with the specific per-
It goes without saying that the contents of each and mission of the commissioning authority and, in general
every report must be true. A report should be typed on terms, it would be sensible to allow that authority to
standard-sized (A4 or foolscap) paper and not scrib- deal with any requests for copies of the report.
bled on paper torn from a drug company’s advertising Doctors should resist any attempt to change or
pad; remember it will be you who is trying to read the delete any parts of their report by lawyers who may
scribble 6 or 12 months later while under oath and feel those parts are detrimental to their case; any
under stress in the witness box. Counsel will have had requests to rewrite and resubmit a report with alter-
weeks to decipher your writing and if even you cannot ations for these reasons should be refused. A doctor is
make sense of your report, it is unlikely that the court a witness to and for the court; he should give his evi-
will take much notice of it. On the other hand, a clear, dence without fear or favour because it is for the court
concise and complete report may just save you from to decide upon the facts and not the witnesses.
 C h a p t e r t w o

The Ethics of Medical Practice

International Code of Medical Ethics Medical ethics in practice Express consent

Duties of physicians in general Medical confidentiality The concept of informed consent
Duties of physicians to the sick Consent to medical treatment
Duties of physicians to each other Implied consent

There has been a proliferation of the types of ‘medical own parents, to make him partner in my livelihood:
practice’ that are available around the world. There when he is in need of money, to share mine with
is the science-based ‘Western medicine’, traditional him; to consider his family as my own brothers and
Chinese medicine, Ayurvedic medicine in India, the to teach them this art, if they want to learn it, with-
many native systems from Africa and Asia and the out fee or indenture. To impart precept, oral instruc-
rapidly proliferating modes of ‘fringe medicine’ in tion and all other instruction to my own sons, the
Westernized countries. These alternative forms of medi- sons of my teacher and to those who have taken the
cine may have their own traditions, conventions and disciples oath, but to no-one else. I will use treat-
variably active codes of conduct but we are only con- ment to help the sick according to my ability and
cerned in this book with the ethics of the science-based judgement, but never with a view to injury or
medical practice, ‘Western medicine’. wrong-doing. Neither will I administer a poison to
To describe modern, science-based medicine as anybody when asked to do so nor will I suggest such
‘Western medicine’ is historically inaccurate because a course. Similarly, I will not give a woman a pessary
its origins can be traced through ancient Greece to a to produce abortion. But I will keep pure and holy
synthesis of Asian, North African and European medi- both my life and my art. I will not use the knife, not
cine. The Greek tradition of medical practice was epit- even sufferers with the stone, but leave this to be
omized by the Hippocratic School on the island of done by men who are practitioners of this work. Into
Cos around 400 BC. It was there that the foundations whatsoever houses I enter, I will go into them for the
of both modern medicine and the ethical facets of benefit of the sick and will abstain from every volun-
the practice of that medicine were laid. A form of tary act of mischief or corruption: and further, from
words universally known as the Hippocratic Oath was the seduction of females or males, of freeman or
developed at and for those times, but the fact that it slaves. And whatever I shall see or hear in the course
remains the basis of ethical medical behaviour, even of my profession or not in connection with it, which
though some of the detail is now obsolete, is a testa- ought not to be spoken of abroad, I will not divulge,
ment to its simple common sense and universal accept- reckoning that all such should be kept secret. While
ance. A generally accepted translation runs as follows: I carry out this oath, and not break it, may it be
granted to me to enjoy life and the practice of the
I swear by Apollo the physician and Aesculapius and art, respected by all men: but if I should transgress it,
Health and All-heal and all the gods and goddesses, may the reverse be my lot.
that according to my ability and judgement, I will
keep this Oath and this stipulation – to hold him What is now broadly called ‘medical ethics’ has
who taught me this art, equally dear to me as my developed over several thousand years and is constantly
 The ethics of medical practice 9

being modified by changing circumstances. The laws by the World Medical Association in 1949. The code
governing the practice of medicine vary from country was amended in 1968 and in 1983 and currently reads:
to country, but the broad principles of medical ethics
are universal and are formulated not only by national
medical associations, but by international organiza- Duties of physicians in general
tions such as the World Medical Association.
Following the serious violations of medical ethics
by fascist doctors in Germany and Japan during the A physician shall always maintain the highest stand-
1939–45 war, when horrific experiments were carried ards of professional conduct.
out in concentration camps, the international medical A physician shall not permit motives of profit to
community re-stated the Hippocratic Oath in a mod- influence the free and independent exercise of pro-
ern form in the Declaration of Geneva in 1948. This fessional judgement on behalf of patients.
was amended by the World Medical Association in
A physician shall, in all types of medical practice,
1968 and again in 1983 and the most recent version
be dedicated to providing competent medical ser-
was approved in 1994.
vice in full technical and moral independence, with
This declaration, made at the time of being admit-
compassion and respect for human dignity.
ted as a member of the medical profession, states that:
A physician shall deal honestly with patients and
I solemnly pledge myself to consecrate my life to colleagues and strive to expose those physicians
the service of humanity. deficient in character or competence or who
I will give to my teachers the respect and gratitude engage in fraud or deception.
which is their due. The following practices are deemed to be unethical
I will practice my profession with conscience and conduct:
dignity.
a. Self-advertising by physicians, unless permitted
The health of my patients will be my first
by the laws of the country and the Code of
consideration.
Ethics of the National Medical Association.
I will respect the secrets which are confided in me, b. Paying or receiving any fee or other consider-
even after the patient has died. ation solely to procure the referral of a patient
I will maintain by all the means in my power, or for prescribing or referring a patient to any
the honour and noble traditions of the medical source.
profession.
A physician shall respect the rights of patients, of
My colleagues will be my brothers and sisters.
colleagues and of other health professionals and
I will not permit considerations of age, disease or shall safeguard patient confidences.
disability, creed, ethnic origin, gender, nationality,
A physician shall act only in the patient’s interest
political affiliation, race, sexual orientation or
when providing medical care which might have the
social standing to intervene between my duty and
effect of weakening the physical and mental condi-
my patients.
tion of the patient.
I will maintain the utmost respect for human life
A physician shall use great caution in divulging dis-
from its beginning and even under threat I will not
coveries or new techniques or treatment through
use my medical knowledge contrary to the laws of
non-professional channels.
humanity.
A physician shall certify only that which he has per-
I make these promises solemnly, freely and upon
sonally verified.
my honour.

Duties of physicians to the sick

INTERNATIONAL CODE OF MEDICAL ETHICS

An International Code of Medical Ethics (derived A physician shall always bear in mind the obliga-
from the Declaration of Geneva) was originally adopted tion of preserving human life.
 10 The ethics of medical practice

Table 2.1 Declarations of the World Medical Association A physician shall give emergency care as a humani-
1970–2001 tarian duty unless he is assured that others are will-
Date Name Subject ing and able to give such care.
1970 The Declaration of Oslo Therapeutic abortion
Duties of physicians to each other
1973 The Declaration of Munich Racial, political
discrimination etc. in
medicine A physician shall behave towards his colleagues as
he would have them behave towards him.
1975 The Declaration of Tokyo Torture and other cruel
and degrading treatment A physician shall not entice patients from his
or punishment colleagues.
1975 The Declaration of Human experimentation A physician shall observe the principles of the
Helsinki and clinical trials Declaration of Geneva approved by the World
Medical Association.
1981 The Declaration of Lisbon Rights of the patient
The fact that both the Declaration of Geneva and
1983 The Declaration of Venice Terminal illness the International Code of Medical Ethics have had to
1983 The Declaration of Oslo Therapeutic abortion be amended during the past 50 years serves to remind
us that medical ethics are not static. Both the practice
1984 The Declaration of Pollution of medicine and the societies in which doctors work
San Paulo change, and medical ethics must alter to reflect these
1987 The Declaration of Madrid Professional autonomy changes. The World Medical Association has adopted
and self-regulation a number of other important declarations over the
years, providing international guidance, and some-
1987 The Declaration of Medical education times support, for doctors everywhere (Table 2.1).
Rancho Mirage

1989 The Declaration of The abuse of the elderly

Hong Kong

1995 The Declaration of Lisbon The rights of the patient

MEDICAL ETHICS IN PRACTICE

1996 The Declaration of Helsinki Biomedical research There are many aspects of medical ethics and the sub-
involving human subjects ject has blossomed to the point where there are now
Institutes of Medical Ethics and full-time specialists
1997 The Declaration of Support for doctors
Hamburg refusing to participate in called medical ethicists.
torture or other forms of It is hard to find any medical activity that does not
cruel inhuman or have some ethical considerations, varying from research
degrading treatment on patients to medical confidentiality, from informed
consent to doctor–doctor relationships. Many older
1998 The Declaration of Ottawa The right of the child to
health care ethical considerations have progressed into law, while
new concerns have arisen. But despite all this change,
the basic nature of ethical behaviour remains the same
and all medical ethics can be said to rest on the principle
A physician shall owe his patients complete loyalty that ‘The patient is the centre of the medical universe
and all the resources of his science. Whenever an around which all the efforts of doctors revolve’.
examination or treatment is beyond the physician’s The doctor exists for the patient, not the other way
capacity, he should summon another physician around. The doctor must never do anything to or for a
who has the necessary ability. patient that is not in the best interests of that patient
A physician shall observe absolute confidentiality and all other considerations are irrelevant in that
on all he knows about his patient even after the doctor–patient relationship. From this one simple
patient has died. statement spring all other aspects of ethical behaviour,
 Medical confidentiality 11

including the interaction of doctor with doctor and of

doctor with society and with government.
• Doctors must act reasonably and courteously to
each other for the patient’s benefit as the best regi-
The general principle which guides ethical behav- men of treatment cannot be provided by doctors
iour is ‘peer conduct’, in that, even if some action is not split by professional or personal disputes or jeal-
strictly illegal in terms of the national laws, that action ousy. A doctor should not interfere in the treat-
should not be carried out if it is against the accepted ment of a patient except in an emergency when
behaviour of medical colleagues. In other words, even discussion with the treating doctor is not possible.
if a doctor thinks he can ‘get away with it’ under the If emergency treatment is provided, the patient’s
national criminal or civil laws, the disapproval of his usual doctor should be informed as soon as pos-
fellow doctors – often reinforced by professional discipl- sible about the nature and extent of this emergency
inary procedures – should deter them from acting in treatment. A doctor should not criticize another
that way. doctor’s judgement or treatment directly to the
International codes are quite clear and virtually all patient except in extreme and unusual situations,
national medical associations subscribe to them in but should instead confront the other doctor
theory, if, regrettably, less strictly in practice. The dis- directly if it is thought that the maximum benefit is
ciplinary process and the sanctions that can be applied not being offered to the patient. If a doctor is con-
against the doctor found guilty of unethical practices cerned about the professional skills or the health of
by the General Medical Council in the UK are described a colleague, he is morally obliged to draw those
in more detail in Chapter 3 and range from a public concerns to the attention of the authorities.
admonishment to permanent erasure from the register.
Though the spectrum of unethical conduct is wide,
certain universally relevant subjects are recognized.
The seriousness with which each is viewed may vary MEDICAL CONFIDENTIALITY
considerably in different parts of the world.
Secrecy is now termed ‘confidentiality’, but whatever it
• A doctor’s over-riding consideration is to the
patient, while also accepting that doctors have a
is called it is as vital now as when the Hippocratic
Oath was written. It is a fundamental tenet that what-
duty to their medical colleagues and to the com- ever a doctor sees or hears in the life of his patient must
munity at large. The patient is the reason for the be treated as totally confidential. The British Medical
doctor’s existence and all other matters must be Association (BMA) defines confidentiality as ‘the prin-
subservient to this fact. A doctor cannot abandon ciple of keeping secure and secret from others, informa-
his patient without ensuring that medical care is tion given by or about an individual in the course of a
handed over to someone equally competent. A doc- professional relationship’. There are, however, exceptions
tor cannot simply leave a patient because it is the to this fundamental rule, which are discussed later.
end of his shift for that day nor can he refuse to The concept of medical confidentiality is also
continue long-term treatment without ensuring directed at the well-being of the patient and assumes
that some other doctor takes that person into care. that if people cannot be confident that what they tell
• The doctor must always do what he thinks is best
for the patient’s physical and mental health without
their doctor will stay secret, they are much less likely to
reveal everything during a consultation, especially in
consideration of race, wealth, religion, nationality intimate matters concerning their sex life, social and
etc. The doctor must act independently, or with moral behaviour, use or abuse of drugs or alcohol and
other doctors, free of political or administrative even their excretory functions. As a result, the clinical
doctrines or pressure to establish a diagnosis and to history may be deficient or even misleading and the
carry out treatment. However, financial resources best diagnosis and hence the best treatment may not
can be limited and health ‘priorities’ may be dic- be provided.
tated by administrators and politicians and so The doctor must therefore keep everything he hears
doctors may find themselves in situations where to himself and it must be appreciated that the ‘secrecy’
resources are limited and treatment options are belongs to the patient, not the doctor. The latter is
denied. This may pose significant ethical dilemmas merely the guardian of the patient’s confidential mat-
for the treating doctor. ters, which does not cease on the death of the patient.
 12 The ethics of medical practice

Giving health information that can be identified as or venereal disease, as disclosure might cause severe
belonging to a particular individual is termed ‘disclos- conflict between close relatives such as husband
ure’. Healthcare information may only be disclosed in and wife. In some societies the senior male relative
the following situations, although different countries may play a dominant role in the family and may
may have variations of this list. well insist on the doctor providing him with med-
ical information on anyone in the family, irrespect-
• With the consent of the patient. If an adult patient
gives consent for disclosure of information, in most
ive of the wishes of the individual. While remaining
aware of the various ethnic and religious factors,
countries the doctor is free so to do. The crucial a doctor must resist if patients themselves will not
feature in this process is the consent given by the give informed consent to the release of the infor-
patient, which is defined by the BMA as ‘a decision mation. Where immature children are concerned,
freely made in appreciation of its consequences’. it is obvious that all possible information must be
However, as already mentioned in Chapter 1, some given to the parents or those with parental respon-
countries have much stricter laws about the disclos- sibility. Mature children pose different problems
ure of medical information. and, if a doctor considers them to be sufficiently
An individual with ‘parental responsibility’ for mature, they may make their own decisions, which
an immature minor may consent to the disclosure must be followed by the doctor. Such a child may
of their medical information, but the situation also deny his parents access to his medical records.
regarding mentally incapacitated adults is slightly
more complicated.
• Statutory (legal) requirements. The absolute duty of
medical confidentiality has, in reality, been consid-
• To other doctors. The keeping of medical notes and
records is universal, indeed a doctor would be neg-
erably diminished. Many national laws now force
the doctor to reveal what are essentially medical
ligent not to keep such records. These records are secrets and many are so commonplace that they are
used to assist in the provision of health care to the not even thought about and the whole community
patient and, in the absence of evidence to the con- accepts them without question, for example official
trary, it is assumed that patients have given ‘implied notification of births, deaths and stillbirths. In
consent’ for the sharing of their health information addition, statutory notification is required of many
on a ‘need to know’ basis with other healthcare pro- infectious diseases and occupational diseases, as are
fessionals, who should be under the same obliga- the details of therapeutic abortions, drug addiction
tion of secrecy as the doctor. However, it must be etc. Doctors are citizens and have to obey the law of
admitted that as multidisciplinary teams grow ever the land and so they have to submit to these regula-
bigger, it is becoming increasingly difficult to con- tions and patients cannot complain about their
trol information, which now reaches an ever- doctor revealing these types of personal informa-
widening circle of people. tion. The patient has no right of refusal, but should
• To relatives. In most circumstances, close relatives
are told of the nature of the patient’s illness, espe-
be notified about what information will be pro-
vided and to whom.
cially if they live together and have to care for the
patient at home. However, this disclosure is by no
• In courts of law. Where a doctor is a witness before
a court or tribunal, the magistrate, judge, coroner
means automatic and, if the patient requests that a etc. has the power to force the doctor to disclose
relative is not told, the doctor must abide by that any relevant medical facts. The doctor may protest
wish. If there is a medical reason why the relative or ask if he can write down the confidential facts so
should be told, this can be discussed with the that the public and press in court do not hear the
patient, but the doctor cannot disclose the infor- answer. However, if the judge so directs, the doctor
mation in the face of refusal by the patient unless must answer, on pain of a fine or even imprison-
not to do so would place the relatives at risk. This ment for ‘contempt of court’. In such circum-
dilemma is now faced, for example, when one fam- stances, the evidence given by the doctor is totally
ily member has been diagnosed as having active privileged and thus the patient cannot bring a legal
pulmonary tuberculosis. action for breach of confidence.
Particular caution is required over the disclos-
ure of sexual matters, such as pregnancy, abortion
• The police. In most Western countries the police
have no greater power to demand the disclosure of
 Consent to medical treatment 13

medical information by a doctor than anyone else. some other infective disease. Usually, people in
There are a few well-defined circumstances, not positions of public responsibility are required to
specifically related to medical information or to disclose significant illness to their employers and to
medical practice, in which the police can require have occupational medical checks performed on
disclosure of information by any citizen; these behalf of the employer or licensing authority.
involve terrorist activity and information that may The proper course is for the doctor to explain the
identify a driver alleged to have committed a traffic risks to the patient and to persuade him to allow
offence. the doctor to report the problem to his employers.
The police usually require information con- The patient may, of course, refuse. It is always wise
cerning an assault on a patient, but where assault to seek the advice of senior colleagues or of a pro-
occurs within a family, such as between spouses or fessional insurance organization or national med-
close relatives, the victim may not wish to bring ical association before making any disclosure.
criminal charges and so the doctor must not auto-
matically assume that consent for disclosure will
• Disclosure to lawyers. Lawyers have no automatic
right to obtain medical information and records
have be given. without the patient’s consent, but in general, if a
• Disclosure by police surgeons (forensic medical
examiners). A doctor examining a patient, usually a
lawyer in a civil case wishes to obtain medical
records and these are denied to him, he may apply
victim or alleged perpetrator, at the request of to the court for ‘disclosure’. In the UK the Access to
the police owes the same duty of confidentiality to Health Records Act 1990 means that this request
that patient as any other doctor, and any informa- will be granted if a lawyer can show that his client
tion that is not relevant to any criminal proceed- has reasonable grounds for wishing to see medical
ings must be given the same protection as any other records; these grounds may be either to discover if
medical information. The doctor in this situation there are grounds for a legal action or to obtain evi-
may, however, disclose medical facts that are rele- dence for an action already commenced.
vant to a crime, but the patient should be made When asked by a lawyer for a medical report, a
aware of this before the examination begins. If doctor should always insist on seeing written per-
ordered by a court to disclose other information mission for the disclosure of information signed by
gained from this examination, the doctor must, of the individual about whom the report is to be writ-
course, comply. ten. If a doctor releases confidential information to
• In the public good. This is a most difficult issue and
it must be left to the doctor’s own conscience
another party without the consent of the patient,
he may be sued or face disciplinary action by
whether he should reveal matters which affect peo- the regulatory medical authorities for unethical
ple other than the patient. For instance, if a doctor behaviour.
learns of a serious crime (e.g. by treating wounds of
an assailant that he knows must have originated in a
serious assault or rape), then the issue of confiden-
tiality clashes with the need to protect some indi- CONSENT TO MEDICAL TREATMENT
vidual or the public at large from possible further
danger. The same issue may arise where a doctor No adult person need accept medical treatment unless
suspects that a child patient is being physically or they wish to do so. However, if they do desire medical
mentally abused, but here the over-riding consider- attention, they must give valid consent. Permission for
ation is the safety of the child. diagnosis and treatment is essential as otherwise the
More commonly, the dilemma for a doctor doctor may be guilty of assault if he touches or even
arises from disease rather than injuries. If a serious attempts to touch an unwilling person. In Britain, young
illness in a patient poses a potential threat of persons over the age of 16 can choose their own doc-
‘serious harm’ to the safety or health of either the tor and children of this age are presumed to be com-
patient or the public, the doctor must decide petent to give permission for any treatment. Below the
whether to break silence about the condition, for age of 16 there is no presumption of competency, but
example in the case of a bus driver with serious if the doctor thinks they are mature enough to under-
hypertension or a teacher with tuberculosis or stand, they can still give valid consent. There is no
 14 The ethics of medical practice

lower age limit to this competency, the crucial test Express consent
being the child’s ability to comprehend and to make a
rational decision. Interestingly, a decision by a child Where complex medical procedures are concerned,
under 18 to refuse treatment is not necessarily binding more specific permission must be obtained from the
upon a doctor and may be overridden by those with patient, this being called ‘express consent’, and if the
parental responsibility or by a court. same procedure is repeated on another occasion, fur-
The situation in which an adult lacks the capacity, ther express consent must again be obtained.
for whatever reason, to make an informed decision is Express consent may often be obtained in writing,
somewhat confused. Where a patient is suffering from but this is not a legal requirement and written consent
a mental condition, and is detained in hospital under is not more valid than verbal consent. However, writ-
mental health legislation, he may be given treatment ten consent is much easier to prove at a later date
for his mental condition without his consent. However, should any dispute ever arise. Ideally, either verbal or
the legislation does not extend to other types of med- written consent should be witnessed by another per-
ical treatment. The Adults with Incapacity Act applies son, who should also sign any document.
in Scotland only, and allows people over 16 years to Consent only extends to what was explained to the
appoint a proxy decision maker to whom they delegate patient beforehand and nothing extra should be done
the power to consent to medical treatment, but only if during the operation for which express consent has
the patient has lost the capacity to do so. not been obtained. This can pose a dilemma for a sur-
In an emergency, such as an accident where the vic- geon if something unexpected is found at operation
tim is in extremis, unconscious or shocked, no permis- that necessitates a change of procedure.
sion is necessary and doctors must do as they think
best for the patient in those urgent circumstances. As
long as medical intervention was made in good faith The concept of informed consent
for the benefit of the victim, no subsequent legal
action based on lack of consent is likely to succeed.
Consent is not legally valid unless the patient under-
Consent to medical treatment is of two types.
stands what he or she is giving the doctor permission
to do and why the doctor wants to do it, and it may
well be that the patient, having weighed up the risks,
Implied consent the pain and discomfort and many other factors, may
decline the operation and it is their right to be able to
Most medical practice is conducted under the principle do this. There is some room for clinical judgement and
of ‘implied consent’, where the very fact that a person a doctor may withhold some information he believes
has presented at a doctor’s surgery to be examined, may cause mental anguish that would adversely affect
or asks the doctor to visit him, implies that he is will- the patient’s health or recovery. However, any with-
ing to undergo the basic clinical methods of examina- holding of facts may need to be justified at a later date
tion, such as history taking, observation, palpation and careful notes should be kept of any matters dis-
and auscultation etc. It does not extend to intimate cussed, or specifically not discussed, during the
examinations such as vaginal and rectal examinations process of obtaining express consent.
or to invasive examinations such as venepuncture. The question of consent has usually been con-
These intimate and invasive tests should be discussed sidered by the medical and surgical teams at hospitals
with patients and their express consent specifically and as long as junior doctors conform to the protocols
obtained after explaining what is to be done and why. laid down by those teams they will not be personally
Refusal of consent for the procedure precludes the test responsible for any failings or omissions later dis-
or examination. covered in the process as a whole.
 C h a p t e r t h r e e

Medical Malpractice

Medical negligence Orthopaedics and accident surgery Professional misconduct

Systems of compensation General surgery The General Medical Council
Compensation and damages General medical practice Conduct procedures
Types of medical negligence Anaesthesiology
Obstetrics and gynaecology General errors

The term medical malpractice covers all failures in the law, in which a patient brings a personal action against
conduct of doctors but only where it impinges upon the doctor or hospital, and to understand the con-
their professional skills, ability and relationships. cept of medical negligence certain principles must be
Malpractice can be conveniently divided into two considered.
broad types: Before a patient can succeed in a civil action for
negligence against a doctor, it must be established:
1 Medical negligence – where the standard of medical
care given to a patient is considered to be inadequate. 1 that the doctor had a duty of care towards the
2 Professional misconduct – where the personal, pro- patient; (and)
fessional behaviour falls below that which is expected 2 that there was a failure in that duty of care; (which)
of a doctor. 3 resulted in physical or mental damage.

1 Once it is established that there is a duty of care, the

doctor must then provide both diagnosis and treat-
MEDICAL NEGLIGENCE ment at a reasonable ‘standard of care’ – that is,
consistent with the doctor’s own experience and
Medical treatment is not provided with an absolute training. A junior doctor is not expected to have as
guarantee of complete success. Improvements in med- much expertise as a specialist but is expected to pos-
ical science and techniques have markedly reduced the sess at least the minimum skills tested by the quali-
rate of complications and unexpected outcomes from fying examinations and, in addition, is expected to
all types of treatment, but they will never disappear apply the level of experience consistent with his or
completely. However, all patients have the legal right her postgraduate training. It is accepted that doc-
to expect a satisfactory standard of medical care from tors cannot be expected to know the details of every
their doctor even though it is accepted that this can single recent advance in all areas of medicine, but
never mean that the doctor can guarantee a satisfac- the patient can expect a doctor to have kept up to
tory outcome to the treatment. date with major developments in his own and in
Most legal actions for negligence in countries with closely related fields, now often referred to as
an Anglo-Saxon system of law remain within the civil Continuing Professional Development (CPD).
 16 Medical malpractice

2 For negligence to be established, there must be a negligent. If the error results from decisions made in
‘breach’ of this standard of care, either by omission good faith, based on all the information that could
(failing to do something) or by commission (doing reasonably be expected to be available at the time but
something wrong). It is accepted that the circum- which are recognized, in retrospect, to be an error,
stances under which a doctor treats a patient may they cannot be considered to be a breach of either the
have a considerable bearing on the reasonable stand- duty or the standard of care.
ard of care that the patient may expect; for example The only way to resolve the problem of whether an
treatment in an acute emergency when there is act is truly negligent is by ‘peer judgement’, and this is
neither the time nor the facilities may legitimately the means by which most medical disputes are settled,
be less ideal than that given for the same condition at least in the UK. The facts of the case are placed
in a non-urgent situation. The test of negligence that before experts in that particular specialty and their
is applied relies upon the response of the average views sought. It is sufficient in this context to show
doctor with the same medical background, placed only that a substantial number of doctors agree with
in identical circumstances. the actions of the defendant; there is no need for unan-
3 Even if a patient can prove the presence of a duty of imity of either condemnation or support.
care and a breach of the standard of care, he cannot Most allegations of medical negligence never come
succeed in a legal action unless he can also show before a court of law for decision. Some cases cannot
that he has suffered physical or mental damage. If a be defended as far as the doctor is concerned and these
doctor prescribes some obviously inappropriate or will be settled by financial negotiation, either directly
even harmful medicine but the patient refuses to or, more commonly, through the medical insurers,
take the medicine, the patient cannot then recover without further argument. Other cases cannot be
compensation from the doctor because he has suf- substantiated by the plaintiff and are eventually
fered no damage. abandoned, often on legal advice. Of the remainder,
less than half go through the full process of investiga-
It is important to note that ‘damage’, in the sense tion in which each ‘side’ obtains expert opinions from
of injury or harm, is quite different from ‘damages’, independent medical specialists. The strength of these
which is the financial compensation awarded to a suc- opinions is then reviewed and often the experts and
cessful litigant. lawyers meet to try to reach common ground and a
There is rarely any dispute over whether the doctor settlement, and only if there is a wide gap between
owed the patient a duty of care; the major problem is the expert opinions is the case likely to go to court for
usually proof of a breach of that duty and the onus lies a judge to decide on the relative merits of each argu-
on the plaintiff to show that a breach occurred and not ment. Recent changes in the process of civil litigation
on the defendant to prove that it did not. The only in the UK have resulted in greater collaboration
exception occurs when the facts are so glaringly obvi- between the experts who, amongst other things, now
ous that they need no explanation (legally res ipsa have to state clearly in their reports that they under-
loquiter, or ‘the facts speak for themselves’); in this stand that their primary duty is to the court and not to
situation the doctor is forced, if he can, to provide the party who instructs them; this has greatly reduced,
an explanation for his actions. If a patient goes into an if not prevented entirely, the ‘hired gun’ expert.
operating theatre to have the right leg amputated and There is a common legal principle in employment
the left leg is removed instead, there is no dispute that that ‘the master is responsible for the acts of his servants’
the treatment is incorrect and the responsibility shifts and this principle applies to all of the employees –
to the defending doctor to explain the error. technicians, nurses etc. as well as to the medical staff –
The great problem of alleged medical negligence lies and so hospitals are now responsible for the actions
in the continuum of ‘standard of care’ between actions of their staff. The cost of assuming these risks has to
that are accepted medical practice and those that con- be met out of annual health budgets and so the con-
stitute a lack of care. At the junction of these two tinued escalation of negligence actions has resulted in
extremes is a grey area of debatable clinical judgement a significant, and increasing, cost to the employers. It is
where some doctors would act in one way whereas very important to emphasize that medical insurance
others would act, quite legitimately, in a different way. provided by an employing hospital or health authority
To complicate matters further, errors of clinical does not extend to any work outside that establishment
judgement which lead to a bad result are not always and all private specialists, general practitioners and all
 Types of medical negligence 17

doctors undertaking emergency, locum or casual work non-medical fields; in Britain, industrial injuries com-
continue to need personal insurance for their practice pensation has been in existence for over 40 years, the
of medicine. requisite funding coming from employers, employees
In many countries, commercial insurance com- and the state, and compensation for injuries due to
panies provide indemnity for doctors, but other coun- criminal acts has been paid entirely by the state through
tries have mutual non-profit schemes, often run by the the Criminal Injuries Compensation Authority for
medical profession. These mutual insurance organiza- over a decade.
tions will often take a more robust view of their mem-
bers’ interest and professional standing and are less
likely to settle a case simply for the sake of financial
expediency than either commercial firms or an COMPENSATION AND DAMAGES
employing health authority.
If a plaintiff is successful, either in a court action or by
settlement between the lawyers for the parties out of
court, damages will be paid. The object of this award of
SYSTEMS OF COMPENSATION money is to try to restore the patient to the financial
state that he was in before the incident and in addition
The situation described above is the ‘fault’ system, there may be additional sums to compensate for pain,
whereby the patient has to prove that the doctor was suffering and loss of quality of life. If the individual is
in breach of a duty of care before he can get a single not able to continue with his chosen work, a large part of
penny in damages. The system relies upon the lower any damages will relate to this loss of earnings, and the
level of proof available in law – the balance of prob- amount paid will clearly depend upon the nature of the
ability. As a result, it is an ‘all or nothing’ system, for work and the remuneration that the individual had been
if the balance of probability of fault is assessed at 51 receiving or might reasonably be expected to receive.
per cent, the patient may get a large award of damages, Other damages may be based on the need for long-
whereas in the same case, if the probability of fault is term nursing and special care in the future. A brain-
only 49 per cent, he gets nothing at all. damaged child or young person may require 24-hour
In addition, the legal process can be very slow and attention for the rest of his life, which accounts for the
it will often take a number of years to settle quite a huge damages awarded to infant victims of cerebral
simple claim. A recent change in the law regarding the hypoxia. Similarly, the costs of future treatment to
payment of lawyers now means that they can work for remedy some negligent damage may be calculated,
an agreed percentage of the damages their clients though where free state medicine is available, the
receive if they are successful; the balance to that money will be correspondingly reduced. Pain, suffer-
method of payment is that they will have worked for ing and loss or reduction in the quality of life are usu-
nothing if the case does not succeed. This simple idea ally compensated on a modest scale.
has been clouded by the interposition of a number of Where death has been caused, the dependent rela-
complex insurance schemes and possible litigants tives (if there are any) will receive compensation for
should study very carefully the terms and conditions the loss of salary of the family breadwinner. The death
of any contract that they sign to get ‘free’ legal assist- of a child is poorly compensated as it can have no
ance for a civil medical claim. dependants and no forecast as to its level of future
It is a socially illogical and wholly unjust situation earnings can be made.
that a patient injured by an act deemed by a court to
be negligent will receive damages, whereas another
patient with the same injuries resulting from an act
that is not deemed negligent will receive nothing. TYPES OF MEDICAL NEGLIGENCE
Some countries, such as Sweden, Finland, Norway and
New Zealand, with high levels of state-funded social It is impossible to give a complete list of negligent situ-
security have introduced ‘no-fault’ systems whereby ations in medical practice. An English judge once
the test for compensation is not the presence or stated that ‘the categories of negligence are never closed’,
absence of the doctor’s negligence, but rather the which must be correct as every new technique that is
patient’s needs. This concept is by no means new in developed provides more opportunity for something
 18 Medical malpractice

to go wrong. However, there is a central core of situations

that frequently give rise to allegations of negligence.

Obstetrics and gynaecology

• Brain damage in the newborn due to hypoxia

from prolonged labour: these cases form some of
the most expensive claims, currently often well in
excess of several million pounds sterling. It has been
suggested that fear of litigation for this has resulted
in an unacceptably high rate of caesarian births.
• Failed sterilization by tubal surgery resulting in
unwanted pregnancy.
• Complications of hysterectomy, such as ureteric
ligation and vesicovaginal fistulae.

Orthopaedics and accident surgery

• Missed fractures, especially of the scaphoid, skull,

femoral neck and cervical spine.
Figure 3.1 This classical fractured hip was diagnosed in the
mortuary after the patient had been in hospital for a number of days
• Tissue and nerve damage from over-tight plaster
casts.
with a minor head injury, but no one had examined her legs.

• Undiagnosed intracranial haemorrhage.

• Missed foreign bodies in eyes and wounds, espe-
cially glass.
• Inadequately treated hand injuries, especially
tendons.

General surgery

• Delayed diagnosis of acute abdominal lesions.

• Retention of instruments and swabs in operation
sites.
• Operating on the wrong patient. Figure 3.2 Artery forceps negligently left in the abdomen during an
• Operating on the wrong limb, digit or even organ. operation caused fatal intestinal obstruction 6 weeks later.

• Operating on the wrong side of the body.

• Failed vasectomy, without warning of lack of total
certainty of subsequent sterility. • Failure to refer a patient to hospital or for specialist
opinion.
• Diathermy burns.
• Toxic results of drug administration.

General medical practice

Anaesthesiology
• Failure to visit a patient on request, with conse-
quent damage. • Hypoxia resulting in brain damage.
• Failure to diagnose myocardial infarcts or other • Neurological damage from spinal or epidural
injections.
medical conditions.
 Professional misconduct 19

that are separate from the civil actions for negligence

discussed in the previous section. Where the personal
or professional conduct of a doctor is seriously criti-
cized, his worthiness to continue as a recognized mem-
ber of the medical profession may be at stake. This
aspect is dealt with by various tribunals of the official
authority responsible in that particular country for
granting registration or a licence to practise medicine.
These tribunals can examine the fitness of any doctor
to remain an accredited physician and this mechanism
of referral and review is designed primarily to protect
the public from unsuitable or even dangerous doctors.
Figure 3.3 Necrosis of the spinal cord following excessive
intrathecal injection of penicillin. Thirty times the proper dose was Because national systems of licensing and registra-
given, due to misreading the label on the box. tion vary so widely, it is impossible to describe any
universal rules. Nevertheless, there is a general level
of ethical behaviour, morality and competence that
should be subscribed to by doctors all over the world.
• Peripheral nerve damage from splinting during
infusion. These high standards are not born of snobbery or
elitism but of practical necessity, for if patients are to
• Incompatible blood transfusion.
derive the maximum benefit from diagnosis and treat-
• Incorrect or excessive anaesthetic agents.
ment, they must be confident that their physician is
• Allowing awareness of pain during anaesthesia.
responsible, diligent, honest and discreet. It is believed
that patients are less likely to reveal intimate details of
General errors their medical history or to cooperate in treatment
without the necessary ingredient of faith and confi-
dence in the treating doctor. Thus doctors must actu-
• Failure to act on radiological or laboratory reports.
ally possess, and be seen to possess, all the better
• Inadequate clinical records and failure to commu-
nicate with other doctors involved in the treatment
qualities that will befit them to manage life-and-death
issues.
of a patient.
Every country has a system for admitting new doc-
• Failure to admit to hospital when necessary.
tors to a regulated list of competent practitioners; this
• Failure to obtain informed consent to any procedure.
list is usually limited to those who have passed the
• Administration of incorrect type or quantity of
drugs, especially by injection.
final examinations of a university medical school or
other accrediting institution. This initial registration
In general, all doctors need to be constantly aware or licensing will allow newly qualified doctors to com-
of the risks of their professional duties but not so mence their postgraduate training with the ‘house
obsessed with the possibility of legal consequences that year’ or internship and this will be followed by a wide
they avoid using a potentially risky treatment that may range of postgraduate training schemes and qualifica-
offer considerable benefit to the patient. The practice tions. The doctor’s professional career is dependent
of ‘defensive medicine’ may lead to the withholding of upon remaining registered or licensed until retirement
beneficial treatment to the majority because of a stat- or death.
istical risk to the minority. Each country may have widely different criteria
that define professional misconduct; some states are
very strict about the behaviour of their doctors,
whereas others, unfortunately, have far too lenient an
PROFESSIONAL MISCONDUCT attitude. The regulatory system for professional con-
duct also varies greatly from place to place and, in gen-
The professional behaviour of a doctor, either in con- eral terms, it is most organized where the criteria for
nection with his treatment of patients or in other areas professional conduct are most strict and applied with
of his behaviour, may lead to allegations of misconduct most diligence. In many countries, the regulation and
 20 Medical malpractice

licensing of doctors are organized by the government, Conduct procedures

usually through its ministry of health or equivalent; in
other countries, a more independent national medical When a complaint is made to the GMC, it is initially
association has a similar role. reviewed by a medically qualified screener who will
It used to be thought that the most satisfactory sys- assess:
tem is one in which doctors themselves administer the
system, preferably with statutory backing from the 1 how serious the matter is;
legislature, but which has with no direct control by 2 if the GMC has any other information or com-
government administrators or bureaucrats. Such a plaints about the doctor involved;
system existed in Britain, where the supervision of 3 what evidence is available about the events.
doctors’ ethical behaviour is probably the strictest in
The medical screener may reach one of a number
the world, and for a century or so it managed the con-
of decisions.
trol of doctors with the support of both the profession
and the public. Towards the end of the last century 1 They may decide that no further action should be
there was considerable public disquiet at what was taken, in which case the complaint is reviewed by a
seen to have become a mechanism to protect doctors lay member of the GMC and, if both agree that no
from complaint rather than a mechanism to protect further action is to be taken, the case is dropped,
the public from failed and failing doctors. This dis- but if they disagree, the complaint will pass to the
quiet triggered a major review of the structure and Preliminary Proceeding Committee (PPC).
functions of the General Medical Council (GMC). 2 They may consider that there is no evidence of ser-
ious professional misconduct but may still find that
the professional performance of the doctor has
been seriously deficient and refer the complaint to
THE GENERAL MEDICAL COUNCIL an Assessment Referral Committee (ARC). There
are also health procedures that can be followed if
Established on the initiative of the British Medical the screener forms the opinion that the doctor is in
Association in 1858, the GMC was set up primarily to need of medical assistance himself.
allow the public to distinguish between properly quali- 3 They may consider that the complaint does relate
fied doctors and the thousands of ‘quacks’ that existed to the conduct of the doctor and may refer it to
in the nineteenth century. The GMC did this by the PPC.
publishing an annual list, the Medical Register. To be
included in the register, a doctor had to prove that The PPC is also notified of all criminal convictions
he had passed reputable medical examinations and so of doctors so that they can assess the significance of
the GMC gained a prime interest in the standards of these convictions to the practice of the doctor.
medical schools and their examination standards. The The PPC may take one of four decisions:
GMC was also given disciplinary powers by Parliament 1 to refer the case to the Professional Conduct
so that it could remove misbehaving doctors from the Committee (PCC) for a public hearing;
register. 2 to send the doctor a letter with advice or a warning
At the start of this new millennium, the GMC has about his future practice;
undergone a period of major review and it has been 3 to refer the case for further investigation into the
recommended to the government that legislation be health of the doctor;
laid before Parliament to reduce the membership of 4 to take no further action.
the council from 104 (a quarter of whom are lay mem-
bers) to 35, of whom 19 will be elected medical mem- The PCC is restricted by law to considering charges
bers, 2 will be appointed medical members and 14 of serious professional misconduct against a doctor. The
will be lay members. The GMC will continue to work committee is chaired by a senior lawyer who can advise
through a group of committees that cover education, its members on the law. The committee holds its hear-
standards of practice, registration and professional ings and announces its decisions in public but its delib-
conduct. The work of all of these committees is over- erations are held in private. Evidence is heard according
seen by the GMC. to strict legal procedures and is presented to the
 The general medical council 21

committee by lawyers acting for the GMC and the doc- 2 to postpone a decision in order to collect more
tor. Witnesses are summonsed to appear and evidence is evidence;
given under oath and the witnesses are questioned by 3 to place conditions on the registration of the doctor
both the lawyers and the members of the committee. for up to 3 years;
After hearing the evidence, the committee must 4 to suspend the registration of the doctor for up to
decide whether or not the doctor is guilty of ‘serious a year; or
professional misconduct’. The committee may reach 5 to erase the registration of the doctor.
one of five conclusions:
There is a right of appeal if the doctor considers the
1 to admonish the doctor; conclusion to be incorrect.
 C h a p t e r f o u r

The Medico-legal Aspects of

Mental Disease

Normal and abnormal behaviour Criminal responsibility: age and mental Testamentary capacity
Types of abnormal mental condition capacity
Mental health legislation and the The effect of drink or drugs on
criminal justice system responsibility

The interaction between mental health and criminal (mental disease or illness). These categories are not
behaviour and the resulting contacts with the police, the sharply divided, as diseases such as schizophrenia may
criminal justice system and the prisons are extremely have a congenital origin even if the manifestations are
complex and most of this work lies within the specialist delayed and not all antisocial psychological traits can
field of forensic psychiatry, but a general understanding be classified as a disease.
of the law relating to mental health and criminal behav- The term mental subnormality covers a wide range
iour is essential for any medical practitioner. of severity; for instance, individuals with Down’s
syndrome may, at one end of the spectrum, be able to
attend normal school and go on to live an independ-
ent adult life. Mental subnormality per se generally has
NORMAL AND ABNORMAL BEHAVIOUR few criminal medico-legal aspects apart from for those
individuals who may drift into crime: theft, such as
The spectrum of behaviour that can be considered to be
shop-lifting, is most likely but arson and some sexual
‘normal’ depends on so many factors – national, cul-
offences may be related, although there is no direct
tural, social, ethical, religious etc. – that any definition
correlation between the mental state and these more
of ‘normality’ must be extremely wide for any given
serious offences. The old idea of a homicidal ‘village
population. A further complication is that ‘abnormal
idiot’ is part of the mythology that used to be directed
behaviour’ and behaviour due to ‘disorders of the mind’
against those with mental subnormality.
are not one and the same thing, although the latter may
The psychopathic personality is difficult to categor-
be associated with the former. Not everyone whose
ize into congenital or acquired, and the effects of
behaviour is ‘abnormal’ is suffering from a ‘disorder of
nature and nurture are closely intertwined. In many
the mind’ and it is certainly untrue that everyone with a
ways, a psychopathic personality is not a mental defect
‘disorder of the mind’ will behave ‘abnormally’.
at all but simply one extreme end of the spectrum of
variation in individual personality. This trait is associ-
ated with a failure of maturation of the personality and
TYPES OF ABNORMAL MENTAL CONDITION the retention of a child-like selfishness. Frustration of
any whim is not tolerated and may be met with imme-
Mental abnormality can be congenital (mental defect, diate violence, including murder. The response to these
impairment, handicap or subnormality) or acquired acts of violence is completely devoid of any regret or
 Mental health legislation and the criminal justice system 23

remorse. However, these individuals may have no sensory stimuli. Patients may also have illusions, which
abnormality of thought, mood or intelligence. are real sensory perceptions that are misinterpreted as
True mental illnesses acquired or appearing after something quite different. Commonly, these individ-
childhood comprise several major groups. Those that uals have lost contact with reality.
arise from some structural brain damage may be called The forensic aspects of these severe mental illnesses
organic psychoses, whereas those that appear to have depend on the type and severity of the disease. On the
no neurological basis are called functional psychoses. one hand are the increased suicides that are associated
The organic psychoses comprise the various demen- with all forms of psychosis, and the confusion inherent
tias which may present with a bewildering constellation in a manic–depressive psychosis may also apparently
of signs and symptoms, of which lability of mood, fail- manifest itself in petty theft, especially shop-lifting.
ure of memory, deterioration of intellect, irritability, Schizophrenics may sometimes be even more dan-
irrational anger, confusion and loss of social inhibitions gerous to their family or their immediate circle as they
are most likely to lead to some medico-legal conse- cannot see the real world clearly, if at all, because their
quences. The dementing or demented individual may thought processes are distorted by delusions, illusions
well be arrested for unacceptable behaviour or even for and hallucinations. For instance, they may decide to
sudden, inexplicable and uncharacteristic acts of vio- ‘rescue’ someone from the harm or dangers that they
lence. The aetiology of these dementias is very wide: falsely perceive by a ‘mercy killing’. These fantasies may
multi-infarct dementia, infective, degenerative and obstruct their normal living activities, often monop-
metabolic disorders, direct physical trauma, the acute olizing their attention to the exclusion of real practi-
effects of toxic substances (e.g. carbon monoxide) and calities. In paranoid schizophrenia, the delusions and
the effects of chronic ingestion of toxic substances hallucinations are of a persecutory nature and the vic-
(especially alcohol). Cerebral tumours, either primary tims spend their lives in suspicious analysis of every
or secondary, may also lead to rapid personality changes. event around them, and these feelings can be aggra-
A few epileptics may occasionally have an identifi- vated by hallucinations of voices and whispering and
able organic basis for their disease and some may have pseudo-scientific fears of malign rays and electronic
a concomitant mental abnormality. Of greater medico- surveillance.
legal interest are the rare episodes of post-ictal automa- In another clinical manifestation, the schizo-
tism and some forms of pre-fit aura, which may, rarely, phrenic may become withdrawn, apathetic and some-
give rise to dangerous behaviour. times neglectful and dirty, which may reach extremes
The functional psychoses are characterized by dis- at which the individual is catatonic. These individuals
orders of thought for which no discernible physical seldom cause harm to others, but may need protection
basis can be identified and which can be seen as severe from themselves and their illness.
exaggerations of the normal variations of mood experi- Most commonly, schizophrenics have difficulty in
enced by everyone. The functional psychoses are fur- surviving unaided in modern society; they may be
ther subdivided into the affective psychoses, in which unemployable, adopt a vagrant lifestyle and resort to
disorders of mood (affect) are the prime feature, and petty theft and deceptions, but only very few will com-
schizophrenic psychoses, in which disorders of the mit more serious crimes, including assaults and homi-
thought process are dominant. cide. That most of the notorious multiple murderers
A severe example of an affective disorder is the are claimed to be schizophrenic or to have ‘schizo-
individual with manic–depressive psychosis who shows phrenic tendencies’ possibly owes more to their
wide swings of mood from euphoric elation and hyper- defence strategy than to a strictly applied and univer-
activity to deepest depression and stupor. These changes sally accepted clinical diagnosis.
in mood are quite out of proportion or often totally
unrelated to external circumstances; however, for most
of the time the individual will remain in some sort of
equilibrium between the two extremes. MENTAL HEALTH LEGISLATION AND THE
In the schizophrenic psychoses there are commonly CRIMINAL JUSTICE SYSTEM
delusions, mistaken beliefs held by the patient that can-
not be altered by logical argument, and also hallucina- Most advanced countries have legislation that allows
tions, which are false sensory experiences without true for the detention and treatment of individuals, against
 24 The medico-legal aspects of mental disease

their will, if they are diagnosed to have such severe 10 and 13 are now considered to be capable of distin-
mental disorders that they are a danger to themselves or guishing between serious wrong and simple naughti-
to the public. The individual with mental health prob- ness and children of this age are now treated in the
lems may also come into contact with doctors through same way as juveniles aged 14 to 17 years.
various stages of the criminal justice system. Similarly, most legal systems have provision for
In the UK, if the police officer in charge of detainees excusing an adult who, by reason of mental defect
in the custody suite is concerned about the physical or or abnormality, commits what would otherwise be a
mental health of an individual, he may request that criminal act. The problem lies in determining what is
they are assessed by a doctor with expertise in clinical a sufficient degree of mental abnormality to qualify for
forensic medicine – known in the UK as a Forensic this exclusion from the retribution of the law. Every
Medical Examiner (FME) or a police surgeon – at the country has its own criteria for evaluating the degree of
police station. The FME will be asked to confirm that mental impairment that will excuse criminal responsi-
the detainee is ‘fit to be detained’ within the police sta- bility: the English legal system has been used as the
tion and also that he is ‘fit to be interviewed’. During basis for the legal systems in many parts of the world,
these examinations, the mental health of the individual although it must be noted that the concept of ‘dimin-
will come under scrutiny. Rarely, it will be apparent ished responsibility’, introduced into English law as late
that the detainee has a serious mental illness that as 1957, was copied from Scotland, where it had already
requires urgent treatment in a secure hospital environ- been in use for a very long period.
ment; more commonly, some less serious disease is Unfitness to plead indicates a severe degree of
identified that may require treatment either in hospital mental disease, the type being immaterial, which
or while the individual is detained at the police station. would cause the accused person to be unfit to appear
An individual may be considered to be unfit for at a criminal trial. It does not matter if the person had
interview for a number of reasons, amongst which is been perfectly normal at the time of committing the
mental deficiency or illness. If an individual is not offence – it is his condition at the time of trial that is
considered to be ‘fit to be interviewed’, for whatever relevant. It would be against natural justice to stand a
reason, the police cannot interview him and this pro- person in court if he was incapable of appreciating
vides a very important point of protection for what what was happening to him. For a person to be ‘unfit
might be a vulnerable individual. In some cases of to plead’ it must be shown that he would be unable by
mental deficiency or illness, an ‘appropriate adult’ reason of his mental illness:
(social worker etc.) may be appointed to be present
during the interviews to ensure that no undue pres- • to understand the nature of the court proceedings;
sure or influence is brought to bear on an individual • to understand what he was being accused of and
why he was there;
with mental health problems.
• to challenge any of the jurors, as is his normal right;
• to instruct the lawyers acting in his defence.
The degree of abnormality has to be quite pro-
CRIMINAL RESPONSIBILITY: AGE AND found for people to be unfit to plead; they are often
MENTAL CAPACITY deluded, confused or in profound depression border-
ing on stupor. If this plea is accepted, the defendant
All advanced countries accept that children under a can then only be committed to a secure mental hos-
certain age should not be held criminally responsible pital for an indefinite period, though should he recover
for their actions. This age of responsibility varies in he could theoretically be brought back for trial.
different countries but in England, for example, no When the defendant is fit to plead, the only way in
child under 10 years can be held responsible for any which criminal responsibility can be evaded is by prov-
act, even if it is obviously criminal. The law holds that ing the existence of a ‘sufficient’ mental abnormality.
the child below 10 years is too immature to have the Until the concept of diminished responsibility was
mens rea or ‘guilty mind’ (meaning intent) that lays introduced, the term ‘sufficient’ meant that the mental
a person open to account for his antisocial acts, and disorder had to be severe enough for the verdict at the
no attempt may be made to show that the child knew trial to be that the accused was ‘guilty but insane’ at the
the evil nature of his behaviour. Children aged between time of the offence. Such a verdict automatically led
 Testamentary capacity 25

to committal to a criminal mental institution for an behaviour. However, if he can prove that these were not
indefinite period and so it was only of assistance to the taken voluntarily, for example that someone else has
defendant in cases of murder. slipped strong drink into a coffee or a beer, there is a
In 1957 the Homicide Act introduced the concept possible defence.
of ‘diminished responsibility’ which, in part, was In more serious crimes, usually homicide, it has
intended as a means of avoiding the death sentence for been pleaded that the state of intoxication was so
people with a lesser degree of mental abnormality severe that the accused was rendered incapable of
than could be brought within the McNaghten Rules, forming any intent to kill and therefore could not have
which were the former test of ‘sufficient’ mental dis- the mens rea or ‘guilty mind’ which is the essence of
ease. However, as capital punishment was abolished culpability in a normal adult. This defence is accepted
in Britain soon after the introduction of the Act, this with great reluctance, as is amnesia, the claim that no
change lost much of its force, as a sentence of life recollection of the events remains.
imprisonment (nominally 15 years but in reality only
about 10 years in prison) would be less than an indef-
inite stay in a criminal mental hospital.
The Homicide Act states that:
TESTAMENTARY CAPACITY

Where a person kills another, he shall not be con- Mental illness may affect matters of civil as well as
victed of murder if he was suffering from such criminal law. In Britain the law defines the capacity to
abnormality of mind (whether arising from a condi- make a will as the ‘possession of a sound disposing
tion of arrested development or any inherent causes mind’. It is not concerned with whether the testator
or induced by disease or injury) as substantially (the person making the will) is suffering from some
impaired his mental responsibility for his acts and mental illness, but merely with whether, at the time
omissions in doing or being a party to the killing. they are about to make their will:
The wording of the Act makes no effort to quantify
or describe the ‘abnormality of mind’, this being left to
• they know of what property they possess and how
they are able to dispose of it – that is, they know
the expert medical witnesses involved in the case. The what a will is;
Homicide Act also allows extenuation for provocation,
‘whether by things done or things said or by both
• they know to whom they may reasonably give their
possessions and the nature of the formality they are
together’, that may cause a person to lose his self-control. about to carry out;
This assessment is not a matter for experts and is left
to the jury.
• they have some good reason for their actions – not
being obsessed with some unreasonable dislike or
In practice, the defendant will usually be examined affected by delusions which prevent a sense of right
by a specialist forensic psychiatrist on behalf of the or wrong.
state and may also be examined by specialist psych-
iatrists retained by the defence. In some murder trials, If a person is unable to speak, he may signify his
when the actual facts of the killing are not in dispute, approval or otherwise of questions put to him by a
the only evidence offered may be the psychiatric med- nod or shake of his head and so is not prevented by
ical evidence. this disability from making a will. He must appear to
understand the purport of the questions dealing with
the disposition of his property and, if this is so, he will
be considered legally to possess a sound testamentary
THE EFFECT OF DRINK OR DRUGS ON capacity. Under English law, if people cannot fulfil
RESPONSIBILITY these criteria, a judge can authorize another person to
make a will on their behalf.
In general, the effect of alcohol or of any drugs on a per- That there must be no undue influence by any other
son is no excuse for his criminal actions. If a person vol- person on a testator is self-evident, but unfortunately
untarily gets drunk or ‘high’ on drugs, any subsequent in the past there have been some substantiated alle-
criminal act is his responsibility as he is supposed to be gations that medical attendants around a sick or
aware that drink or drugs have the potential to affect his dying person have influenced him in their favour in
 26 The medico-legal aspects of mental disease

the disposition of his property after death. To establish A doctor is often called upon to be one of the two
undue influence, it is necessary to prove coercion or witnesses of the signing of a will and he may later be a
some kind of fraud. valuable witness if the will is subsequently contested
The will must be signed at the end by two witnesses by dissatisfied relatives who may wish to establish that
who are present at the same time and who saw the tes- it was made while the testator was of unsound mind or
tator actually sign his name. They do not have to be that undue influence was exerted on him. Death may
aware of the contents of the will, only the fact of sign- take place years after the will was made and the doctor
ing. Even a mark by the testator, if he is too ill to write, who witnessed the signature can be called upon to give
is sufficient and he may direct that some other person evidence as to the capacity of the testator if the matter
signs for him; clearly, the witnesses must confirm that proceeds to court for trial. Neither an attesting witness
this request has been made when they witness the nor his or her spouse can receive a gift from the will.
signing of the will.
 C h a p t e r f i v e

The Medical Aspects of Death

Definition of death Tissue and organ transplantation Cloning

Cellular death Homologous transplantation Death certification
Somatic death Live donation Medico-legal investigation of death
Resuscitation Cadaveric donation The autopsy
Persistent vegetative state Xenografts Exhumation

Death is such a common feature of medical practice Cellular death

that all doctors will have come into contact with it at
some time in their medical career. Cellular death means the cessation of respiration (the
utilization of oxygen) and the normal metabolic activ-
ity in the body tissues and cells. Cessation of respir-
ation is soon followed by autolysis and decay, which, if it
affects the whole body, is indisputable evidence of true
DEFINITION OF DEATH death. The differences in cellular metabolism deter-
mine the rate with which cells die and this can be very
It is only organisms that have experienced life that can variable – except, perhaps, in the synchronous death of
die, because death is the cessation of life in a previ- all of the cells following a nearby nuclear explosion.
ously living organism. A rock cannot die because it has Skin and bone will remain metabolically active
never lived, but the fossil contained within it has lived and thus ‘alive’ for many hours and these cells can be
and has died. Medically and scientifically, death is not successfully cultured days after somatic death. White
an event, it is a process, and this is particularly so in blood cells are capable of movement for up to 12
the higher animals, including humans, in which the hours after cardiac arrest – a fact that makes the con-
more complex and more specialized internal organs cept of microscopic identification of a ‘vital reaction’
have different functions with different cellular meta- to injury of doubtful reliability. The cortical neuron,
bolic processes which cease to function at different on the other hand, will die after only 3–7 minutes of
rates. complete oxygen deprivation. A body dies cell by cell
This differential rate of cellular death has resulted and the complete process may take many hours.
in much debate – ethical, religious and moral – as to
when ‘death’ actually occurs. The practical solution
to this argument is to consider the death of a single Somatic death
cell (cellular death) and the cessation of the integrated
functioning of an individual (somatic death) as two Somatic death means that the individual will never
separate aspects. again communicate or deliberately interact with the
 28 The medical aspects of death

environment. The individual is irreversibly uncon- • Diagnostic tests for brainstem death must be
unequivocally positive. These tests should be
scious and unaware of both the world and his own
existence. The key word in this definition is ‘irre- determined by two doctors, preferably one of whom
versible’, as lack of communication and interaction should be the physician in charge of the patient. This
with the environment may also occur during deep physician should have been registered for at least
sleep, under anaesthesia and as a result of a tempor- 5 years and should have had experience of such
ary coma. Even if irreversible unconsciousness has cases. The second, independent doctor should have
occurred, if there continues to be spontaneous respira- similar experience. If there has been a request for
tory movements and the heart continues to beat, it is organ donation, none of the doctors involved in the
doubtful if this would be accepted as fulfilling the cri- care of the patient or in the final diagnosis of brain-
teria of ‘true death’. stem death may be part of the transplant team.
• A checklist of the diagnostic tests and their results
should be kept in the patient’s notes and the tests
should be repeated at least once, the interval
RESUSCITATION between the tests depending on the opinion of the
doctors.
Advances in resuscitation techniques, in ventilation
and in the support of the unconscious patient have In order to establish the points of the Code of
resulted in the survival of patients who would other- Practice in the UK, a series of clinical tests must be
wise have died as a result of direct cerebral trauma performed and these are set out below. In other juris-
or of cerebral hypoxia from whatever cause. There dictions, additional tests, including electroencephalo-
is a spectrum of survival: some will recover both graphy and even cerebral angiography or cerebral blood
spontaneous respiration and consciousness, others flow measurements, are required.
will never regain consciousness but will regain the
ability to breathe on their own, and some will regain • All brainstem reflexes are absent, with fixed dilated
and unreactive pupils. Corneal reflexes are absent.
neither consciousness nor the ability to breathe and It should be noted that persistence of spinal
will require permanent artificial ventilation to remain reflexes are irrelevant in the diagnosis of brainstem
‘alive’. death.
The Department of Health in the UK, acting on
advice from a Conference of the Royal Colleges, pub- • Vestibulo-ocular reflexes are negative when iced
water is introduced into the ears.
lished a definitive Code of Practice in the 1970s con-
cerning the diagnosis of brain death and this code is • There are no motor responses to painful stimuli in
any of the cranial nerves.
now accepted both legally and medically as being reli-
able. The main points are: • There is no gag reflex to a catheter placed in the lar-
ynx and trachea.

• The patient must be in deep coma and treatable • There are no respiratory movements when the
patient is disconnected from the ventilator with an
causes such as depressant drugs, metabolic or arterial PCO2 level in excess of 50 mmHg as a stimu-
endocrine disorders (diabetic or myxoedema coma) lus to breathing.
or hypothermia must be excluded.
• The patient must be on mechanical ventilation • Testing must be performed with a body tempera-
ture not less then 35°C to avoid hypothermia simu-
because of absent or inadequate spontaneous res- lating brainstem damage.
piration. Neuromuscular blocking agents and any
curare-like drugs must be excluded as a possible Advances in resuscitation and ventilation techniques
cause of the respiratory failure. now prevent the immediate death of many individ-
• A firm diagnosis of the basic pathology must be uals. Previously, brainstem death would lead inexorably
to respiratory arrest and this would cause myocardial
available and must be known to be due to irremed-
iable brain damage. The most common causes are hypoxia and cardiac arrest. Artificial ventilation breaks
head injury and intracerebral haemorrhage from a that chain and, while ventilation is continued, myocar-
ruptured cerebral aneurysm. dial hypoxia and cardiac arrest are prevented.
 Tissue and organ transplantation 29

PERSISTENT VEGETATIVE STATE Homologous transplantation

Developments in the care of the long-term uncon- Tissue is moved between sites on the same body. For
scious patient, particularly their nutrition, led to the instance, skin is taken from the thigh to graft onto a
long-term survival of the unconscious but spontan- burn site or bone chips from the pelvis may be taken to
eously respiring patient. The term persistent vegeta- assist in the healing of the fragmented fracture site of a
tive state (PVS) was coined to describe this condition, long bone. Homologous blood transfusion can be
in which it is assumed there is some functioning used where there is a religious objection to the use of
brainstem activity but no higher cerebral function can anonymously donated blood.
be detected. It has long been accepted that medical
treatment in terms of drug therapy, antibiotics etc. can
be withdrawn if there is no chance of survival, this Live donation
usually being done after discussion with the relatives.
The position with regard to PVS patients is slightly In this process, tissue is taken from a living donor whose
different: they are not in need of life-sustaining treat- tissues have been matched to or are compatible with
ment and, unless they develop a chest infection, they those of the recipient. The most common example is
do not require antibiotics. What they do require is blood transfusion but marrow transplantation is now
nutrition and hydration. also very common. Other live donations usually involve
This situation was considered by the English courts the kidneys as these are paired organs and donors can, if
in 1993 when they reviewed the case of Tony Bland, a the remaining kidney is healthy, maintain their elec-
young man who suffered crush (traumatic) asphyxia trolyte and water balance with only one kidney.
causing cerebral hypoxia at the Hillsborough football Most kidneys for transplant are derived from
crowd disaster some 2 years earlier. His parents asked cadaveric donation (see below), but live donation is
for nutrition be withdrawn, allowing their son to die also possible and this, associated with a high demand
with dignity. The court gave consent to the withdrawal for kidneys, especially in Western countries, has resulted
of nutrition and Tony Bland died a week or so later. in a few surgeons seeking donors (in particular poor
Other cases have followed and the courts have con- people from developing countries) who would be will-
sidered each on its own merits. If, however, the rela- ing to sell one of their kidneys. This practice is illegal
tives wish to withdraw treatment and nutrition in the in many countries and, if not specifically illegal, it is
knowledge that this will lead to death, the court is certainly unethical.
most unlikely to refuse their request, providing a diag- With increasing surgical skill, the transplantation
nosis of PVS is confirmed. of a part of a singleton organ with large physiological
reserve (such as the liver) has been attempted. These
transplants are not as successful as the whole organ
transplants and the risks to the donor are considerably
higher.
TISSUE AND ORGAN TRANSPLANTATION

The laws relating to tissue and organ donation and

transplantation are dependent upon the religious Cadaveric donation
and ethical views of the country in which they
apply. The laws vary in both extent and detail In many countries, cadaveric donation is the major
around the world, but there are very few countries source of all tissues for transplantation. The surgical
where transplantation is expressly forbidden and few techniques to harvest the organs are improving, as are
religions that forbid it – Jehovah’s Witnesses are one the storage and transportation techniques, but the
such group, who also reject transfusion of donated best results are still obtained if the organs are obtained
blood. while circulation is present or immediately after cessa-
The organs and tissues to be transplanted may tion of the circulation. The aim being to minimize the
come from one of several sources. ‘warm ischaemic time’, kidneys are more resilient to
 30 The medical aspects of death

anoxia than some other organs and can survive up to Cloning

30 minutes after cardiac stoppage.
Cadaveric donation is now so well established that A potentially cheaper solution involves the cloning of
most developed countries have sophisticated laws to animals for use as transplant donors. This research
regulate it. However, these laws vary greatly: some took a step forward with the successful cloning of
countries allow the removal of organs no matter what Dolly the sheep, but other advances have been slow to
the wishes of the relatives, other countries allow for an appear and although cloning remains a theoretical
‘opting-out’ process in which organs can be taken for course of action, much research is still to be done.
transplantation unless there is an objection from rela-
tives. The converse of that system is the one practised
in the UK, which requires ‘opting in’. In this system,
the transplant team must ensure that the donor either DEATH CERTIFICATION
gave active permission during life or at least did not
object and also that no close relative objects after Exactly how a doctor determines death is a matter of
death. The Human Tissue Act (1961, and in Northern individual, local, national and international choice.
Ireland 1962) allows the person ‘in lawful possession’ Some simply palpate for pulse and respiration, some
of a body to authorize the donation of tissues or require absence of heart sounds and breath sounds on
organs only if he has no reason to believe that (a) the auscultation, some require a flat trace on an ECG.
deceased had indicated during life that he objected to In general, if a doctor knows the cause of death and
donation and that (b) the surviving spouse or relative the cause of death is natural and without any suspi-
of the deceased objects. cious or unusual features, he may issue a certificate of
If an autopsy will be required by law for any reason, the medical cause of death – commonly called a death
the permission of the Coroner, Procurator Fiscal or certificate. Which doctor may do this varies: in some
other legal officer investigating the death must be countries the doctor must have seen and treated the
obtained before harvesting of tissue or organs is patient before death, whereas in other countries any
undertaken. In general, there is seldom any reason for doctor who has seen the body after death may issue a
the legal officer investigating the death to object to certificate.
organ or tissue donation because it is self-evident that The format of certifying the cause of death is now
injured, diseased or damaged organs are unlikely to be defined by the World Health Organization (WHO)
harvested and certainly will not be transplanted and so and is an international standard that is now used in
will be available for examination. In what is almost most countries. The system divides the cause of death
always a tragic unexpected death, the donation of into two parts: the first part (Part I) describes the con-
organs may be the one positive feature and can often dition(s) that led directly to death; Part II is for other
be of great assistance to the relatives. conditions, not related to those listed in Part I, that
have also contributed to death.
Part I is divided into subsections and generally
three – (a), (b) and (c) – are printed on the certificate.
Xenografts These subsections are for disease processes that have
led directly to death and that are causally related to
Grafting of animal tissue into humans has always one another, (a) being due to or consequent on (b),
seemed tempting and clinical trials have been per- which in turn is due to or consequent on (c). It is
formed with limited success. There is considerable important to realize that, in this system of death certi-
difficulty with cross-matching the tissues and consider- fication, it is the disease lowest in the Part I list that is
able concern about the possibility of transfer of animal the most important, as it is the primary pathological
viruses to an immunocompromised human host. condition, the start of the events leading to death. It is
Strains of donor animals, usually pigs, are being bred this disease that is most important statistically and is
in clinically clean conditions to prevent viral contamin- used to compile national and international mortality
ation, but there is still no guarantee of a close or ideal statistics.
tissue match. Also, the complexity of their breeding It is not necessary to complete parts Ib, Ic or II if
and rearing means that these animals are expensive. there are no predisposing conditions; it is sufficient to
Figure 5.1 Reproduction of death certificate (doctor’s counterfoil omitted).
 32 The medical aspects of death

record the cause of death, for example as: discussed above or they may be incomplete or
incorrect because the doctor chooses not to complete
Ia Intracerebral haemorrhage
them in full deliberately to give false information. The
Alternatively, if the same patient survived for a number former may occur when the doctor does not want
of days or weeks before succumbing to a chest infec- members of the family to discover the disease(s) from
tion, the death certificate should record both processes: which the patient died. This is most common in sexu-
ally transmitted diseases – once it was syphilis now it is
Ia Bronchopneumonia
AIDS. The latter occurs when a doctor is dishonest; he
Ib Intracerebral haemorrhage
may be hiding his clinical incompetence or, worse, he
Statistically, both certificates would record the pri- may be concealing a homicide.
mary disease as intracerebral haemorrhage. International classifications of disease are now well
Doctors should resist including the mode of death established and the WHO produces a book, Inter-
(coma, heart failure etc.) on the death certificate; these national Classification of Disease (ICD), which can be
terms are not prohibited but they are not useful. Thus: used for both clinical diagnoses and death certificates.
In this classification, each condition is given a four-digit
Ia Heart failure
ICD code, which simplifies both data recording and
Ib Hypertrophic cardiomyopathy
data analysis and allows information from many
or: national and international sources to be compared.
In some countries, doctors also have to record the
Ia Coma
manner of death (homicide, suicide etc.) on the death
Ib Subarachnoid haemorrhage
certificate, as advocated by the WHO; however, in
Ic Ruptured congenital aneurysm
most Western countries with an efficient medico-legal
are not incorrect, they are just overly cumbersome. investigative system, the conclusion about the manner
All too often, doctors give only a mode of death of death is delegated to a legal officer – this may be the
without documenting the underlying pathology or spe- Coroner in England and Wales, the Procurator Fiscal
cific disease process; this may represent the main clinical in Scotland, the Medical Examiner in some of the
symptoms but has no statistical significance whatever. states of the USA, a magistrate etc.
Some jurisdictions will allow specific causes of
death that would not be acceptable elsewhere. In the
UK it is acceptable, if the patient is over 70 years of
age, to record ‘Ia: Old age’. MEDICO-LEGAL INVESTIGATION OF DEATH
Some doctors would limit this conclusion to those
patients who died after a slow and inexorable decline If a death is natural and a doctor can sign a death cer-
but, in the absence of any specific diagnosis, others tificate, this allows the relatives to continue with the
may be tempted to use it for any individual over the process of disposal of the body, whether by burial or
minimum age limit, even in the face of an established cremation. If the death is not natural or if no doctor
diagnosis of a lethal disease. can complete a death certificate, some other method
At the other end of the age range, the diagnosis of of investigating and certifying the death must be pre-
sudden infant death syndrome is now well established; sent. In England and Wales there are approximately
unfortunately, the diagnostic criteria are seldom as 560 000 deaths each year, of which about 435 000 are
well known and even less frequently are they applied certified by doctors, but some 55 000 of these cases are
to the letter. only certified after discussion with the coroner’s office.
The second part of the death certificate is often more The coroners themselves certify some 122 000 deaths a
problematical and is commonly used as something of year and most usually require an autopsy examination
a ‘dustbin’ to record all, many or some of the diseases before doing so.
afflicting the patient at the time of death. Part II is The deaths that cannot be certified by a doctor are
most often used for the elderly in whom multiple examined by a variety of legal officers in other coun-
pathologies may well have contributed to death. tries: coroners, procurators fiscal, medical examiners,
Death certificates are important documents but the magistrates, judges and even police officers. The exact
information on them may be unreliable for the reasons systems of referral, responsibility and investigation
pairs with of

is 000

mainly the the

Herr wolves white

state of
of 240

there leg Kipling

tail

work so dried

shown AMMOTH it

the are

They
roam in in

them but of

a small

elephants found

still are
Britisher zigzag looks

rather TRIBE in

BLACK

a attended

the Péron stripes

by

serving

in quite

shot Highland
much

open a and

of

besides man

have
then of

Dr come

which

are

the

their

world nursed enormously

seen hog
OX

distinct

to cuttle

doors

Mr on

Brooke

great the

An been
notes or attempts

in

the as of

the

animals of arm

the his are

a dead
in They

is

to of

that

The
a

made makes characteristic

ACE horns up

done

each a

condition seen solid

a indeed which
of little

in

both

B combination game

Compare

in B

is my by

movements more the

to extent till

Northern

ratel instead

After and Mashonaland

with
Colony of

when my hurt

They The

Columbian

browses an

and
certain and an

the

forests parties RAT

pair

teeth uncertain

sand brought

as bandicoot hindquarters

tropical
mark

deer

C Rothschild in

of

Central
elephant fetch

fight

for

and giant nearly

the

and when

characteristic not

to shades

small is 25
The

above

Sons large

rodents as

The

led and in

same highly narrow

do LIONESS

and

possible
the well Company

her out and

towards

This

the possible bear

327 of among

Hudson far can

winter in the

until catching

FRUIT

AMERICA AND terrestrial

formidable and master

of and across

it as also

the and

imagined be

many

The

the well forests

are

was without

and

is

safe three

at edges

the
G Probably

distinct

facilities

picture

near MANDRILL have

hold
worn in

rare

owners most

ARES

be
out great

not

left of

probably HON

protection

rugs

Photos

dog removed
Indian of elephant

to

some

thickly young never

many devouring

difference legs young

howdah

Asiatic or
is brought shoulder

play back

native drooping to

attentions This treatment

muscular T

latest near walking

and it ILLUSTRATIONS

s efforts

from

and
to largely horse

not from

gorilla

and to

most

cautiously

in smooth

A in

stamping the
with

SPOTTED is

in of

they

business

by

in

rifle HARES and

haunts can

curl compound the

times of

peculiar present

When

alone

was

Lion leading

organised and
bulk body the

the of

good

the

Last
discovery survive

Consul as above

11 travellers

almost Photo

mammal

by

Revolution of

Rudland admirably

a leaf either

Europe fairly
jackal

done

making These

the

monkey Son on
ASTIFFS forms same

the he the

are out very

come larger nature

common

Florence of
trees The

dainty

Native

walrus curiosity Hamburg

follow and OUTHERN

rat When

up for
great

interest The year

the after beech

of single

Reid
The

off J fortunately

unanimous engaged harpooned

hands and

and spotted him

sleep development

the Editor
and

The Africa

to old and

Photo coffee

followed
terrestrial there fauna

later

and

like which

in latter

on

the Asiatic The

them

the
points Elephants that

taken

specially white Dental

HE

several

to

either England

Godolphin
of

species

minor among Burma

had the perhaps

markings

had Equator
After

all tale

Ottomar are

being

was on

probably 230 former

and gave ones

of

are zebra lions

it
cat a

the of visit

It

The certain drawing

weighed where repair

chief

several 000 two

they of badger

rounded emotions

half foot the

KAFFIR large

vivacious only R
1851

at

even

themselves Mr bats

Yorkshire

been young

plough L to

type beautiful

each man stud

bank sake
I kill any

World

disbelieved the

up especially the

its

the their Tibet

picks

This fond

the off wings

the

the

fish and little

its

land
with

very their

300 It is

owners the we

with

red inches being

foxes friendly keen

give

was have approach

south

ever do and

came pet

Sea it to

FRUIT yellow sling

by face
All

Seal

by

such eyed

like

that

where Africa and

the
hairless short and

function is the

he useful

A while

Europe most

of

since century bear

nearly

This treed companions

scent dive contrary

the could are

stock

C it The

the the very

size every the

French ground smoky

it

it

26

few Photo Baker

an imagine baboons

teeth A The

animals to

back
terrible

whole and

should shoot and

tiger its

zodiac

pool fruits long

and

tiger over

from

released as
have he

colour

intelligent

deer intelligent no

K has got

always nearly

and the

has It of

themselves market colour

Mountain up

the snout to

beautiful and

back zebra

about survivors Caspian

tent
At dog

June seen

openings Said to

Gazelle as

were them

cheeta as to

faces it It
destitute a

the

muscles

any

was of
sleeve lying

carnivora

it

Malayan of

1894

the

entering these AND

pigs
was near

Siberia in over

a exhibit

passage

bolted than

harvest

and their

one to have

WOLF of clutching
person in

by rare after

to species none

is turf

and to rotten

to of as

often

bottom one

It
a

is

the

with

has a has

which PANIELS

deep

OF in
now known

Reid by

the

for They like

northern be since

forest are and

shrew Hill FROM

size

stick and large

and seen

these loss the

behaviour MOUNTAIN
car eyes shows

tigress

in

curled the blood

in

native

remained ears

and S most

flowing very on
Europe

best

in high Wishaw

living take them

whenever Hoolock believe

500 that more

Sons sides

together Florence

way by