This Article is Written By- Aayush Chadha BBALLB 4th Semester, Himachal Pradesh National Law University, Shimla
ABSTRACT
United Kingdom, once upon a time considered as the most developed country in the world due to the vast empire of the erstwhile Great Britain. It was often said that the sun does not set upon the British Empire, due to the vastness empire, stretching across continents. However, post the colonization period, the country has faced multiple issues and has been unable to maintain its hegemony. The colonial laws, which were favoured in many countries have not been amended. Human Development and welfare of citizens has taken precedence in global governance and education, medical laws have taken precedence in any nation. Thus the current medical laws of the former conquer of the world, need to be evaluated, analysed and compared. For the purpose of this article Medical Laws in United Kingdom will be compared to current Indian Laws.
Key words:
Medical, laws, United Kingdom, development
OBJECTIVES
The object of this article is to evaluate, analyse and compare medical laws of United Kingdom and India. Colonial Legislation, ideas and philosophies will be discussed and comparisons will be made upon the amendments and whether or not such laws were legally and morally valid in the given scenario of the Countries.
INTRODUCTION
Medical Laws include the rules and regulations required to establish and maintain a health care system, the training (education and practical application) and employment standards of Health Care Workers (Doctors, Nurses, diagnosticians, scientists and Administrators), and the governmental, political, social and economic factors affecting and influencing the aspect of medicine in a particular country. Medical Laws can be in the form of legislation, judicial judgements, codified and uncodified rights and duties available and enforceable against the government and private bodies etc. Laws related to the research, development and subsequent sale of Medical Drugs and the control over their standards, sales and prices also fall within the realm of medical laws. In the United Kingdom, in contrast to India, there isn’t a written constitution. A common law system of governance is followed, and the laws and legislations made by the Parliament comprising of the House of the Lords, and House of the Commons are supreme.
India has grown multifold in the past few decades, dubbed to be a superpower, being compared to the likes of China, United States of America and United Kingdom. Many legislations in India, including medical laws were framed keeping in many the colonial rule and its effects. However, India has liberalised many laws and has in multiple ways overtaken its former colonizer. The British Medical Infrastructure and Medical Law still has made great strides in many areas and the National Health Services offered and often praised globally. Hence, there is a need to properly analyse the system of healthcare in United Kingdom to get a clear and true picture.
National Health Service:
The health care system in United Kingdom is quite holistic and well-funded in its nature. The health care system provides employment to millions of people, and is funded with hundreds of billions of pounds by the Government every year. The capital for the funding is derived through public funds such as taxes, direct and indirect, and National Insurance Scheme, wherein workers/employed citizens pay a small amount from their salaries and wages, as compulsory contributions. The system not only provides for free treatment but also provides a plethora of other benefits to the contributor, fulfilling the functions of the welfare state.
This system has its originations linked to World War 2, soon after which a need for a system of universal health care was felt, wherein affordable, just and exceptional care can be provided to every citizen. The need was felt due to the mass number of deaths, due to factors like diseases, German Air attacks, and lack of basic affordable and widely available health facilities. The economy of the great nation slowed down due to the mass number of deaths, from diseased which could be cures, if for a properly established health care system.
This gave rise to the nation Health Service which provides free medical treatment to “ordinary residents” of the country, although voluntary procedures like dentistry are excluded from the list. The main purpose of the act was to establish a system for the overall benefit of citizens and to extinguish the problems persisting in the health care industry. The National Health Service went through major re-developments in the wake of the pandemic, and was widely praised, by citizens of United Kingdom and foreigners die to the exclusivity and competence of the British Healthcare System.
Brief history of Indian Medical System:
The Indian Medical System was purely based on indigenous methods of healing such as Homeopathic and Ayurvedic methods of healing practised by Vaidyas and Hakims. These methods relied upon natural elements and herbs to heal, using methods which were neither harmful to a person, nor having long term effects[1]. Furthermore, religious and spiritual healing played an important role in the wellbeing of a person.
However, after the arrival of various European Trading Companies in India, the system was gradually replaced by a system of western medicine, which ended the relevance and dominance of indigenous healing techniques of India. With the advent of the era of the East India Trading Company, and later the British Empire, the modern day system of medicine began to emerge, with the employment of surgeons and highly trained allopathic physicians.
Current Medico-Legal Scenario:
In India legislations, rules and statutory bodies from the era of British rule are still prevalent and present in the nation. However, there have been conflicts and subsequent in the medical laws governing in both the nations, due to the changes in the needs of the conflicting demographic, but some laws are still similar. Medical Laws, similar and conflicting in India and the United Kingdom are produced hereunder:
- As per the Abortion Act 1967, a legal right to abort a foetus has been provided on several grounds including if there is a risk to the life of the pregnant woman, or if the child, if born, would suffer from severe, physical and/or mental abnormalities, and if the pregnancy has not completed 24 weeks etc. A similar right is provided under the Indian Laws, as under the Medical Termination of Pregnancies Act, 1971, wherein all women are legally entitled to a safe and legal abortion. This right has been expanded and protected through many judgments of the Hon’ble Supreme Courts and High Courts.
- Keeping in mind the growing awareness and development of mental health and its importance, the act of Suicide by a person was de-criminalised by United Kingdom by virtue of the Suicide Act, 1961. As per this act any person who voluntarily ended their life would no longer be punished. Earlier the law was that if any person tried to commit suicide, survived the attempt, then the person would be prosecuted and imprisoned. Furthermore, legal action could be taken against the members of the person’s family. However, the act of suicide was decriminalised and relief was granted.
In India, as under section 309 of the Indian Penal Code, the act of suicide was considered to be a crime, attracting similar punishment as under the erstwhile British Laws, however as per the Mental Health Care Act, 2017, this section was repealed and the act of committing suicide was decriminalised.
- Euthanasia: Even though the act of committing suicide was de-criminalised in both the nation, that is India and United Kingdom, however, the act of assisted suicide by medical professionals still present conflicting legislations in both the countries.
The Hon’ble Supreme Court of India, in a truly landmark judgement, considering the wide ambit of Article 21, which include the right to life, and the right to live with liberty and personal dignity, legalised passive euthanasia in the year 2018. Dignity in death and the right to refuse medical treatment by making a living will had been duly recognised, along with a right to die in peace by the apex court of the country. Furthermore, the right to refuse artificial medical treatment to avoid prolonged agony, and indignity, in cases where there was little to no chance of recovery of patients was granted.
However, the situation in United Kingdom is quite opposite. As per the section 2 of Suicide Act, 1961, it is a crime for anyone to assist or instigate or induce a person to commit suicide, and the person can be duly found guilty for the crimes of murder and abatement to murder. The courts of justice, of United Kingdom, have interpreted the provision in line with the views of the government wherein it is a crime to assist in the suicide of someone, thus denying the right to euthanasia, both passive and active. The legislators of the country seeing the problems associated, and the liberalisation of the right of assisted suicide and euthanasia, brought a bill to legalise the aforementioned, however the same had not been passed. Perhaps the lessons of the pandemic and the growing need of emotional and mental healthcare in the lives of an individual can bring about a change.
- Laws Related to the use of controlled Medical Substances, including Cannabis- In India, since olden times the usage and prevalence of medical and recreation grade substances like cannabis/marijuana was present and the substances were widely accepted. However, since the advent of the British Colonizers, the production, usage and sale of these substances were banned and the native and indigenous Cannabis and Hemp Industry was effectively destroyed as under the Opium Act, and Dangerous Drug Act, 1930. The wide advantages of the drug in commercial and medical activities fell on deaf years and were ignored. After Independence, during the reign of the Rajiv Gandhi Government, the Narcotic Drugs and Psychotropic Substances Act, 1985 was passed, wherein cannabis, hashish, Ganja among other substances were banned and put in the list of controlled substances, possession of which would lead to prosecution, imprisonment along with heavy fines.
However, a conflicting position can yet again be seen in the United Kingdom, wherein the usage of Medical Marijuana and Cannabis has been permitted and the same can be possessed by an individual, if a prescription is being carried by the person. Even though the drug has still not been legalised, and it can neither be grown nor it can be possessed by an individual, however the possession of a prescription granted under the National Health Service or by a private doctor, can grant the right to possess the same. This has been done considering the medical advantages of the drug and its wide uses in the medical industry, and its potency in curing many diseases.
Conclusion:
In this article medical laws and legislation of the countries United Kingdom and India were evaluated in detail. The purpose of this article was to analyse and evaluate the laws of the two countries and to highlight the medical system and medical laws in the country of United Kingdom. Even though great strides have been made by India in the field of medicine and medical laws, the example of the well-developed and state funded medical system of United Kingdom, and the laws governing it need to be evaluated, considering the achievements of the system in providing employment to a huge chunk of its population and in providing affordable, quality healthcare to its citizens. After the pandemic, the need to establish and evaluate medical laws has arisen severely and it a duty to improve upon the system. The archaic laws of the colonization period need to be repealed and amended. Moreover, the legislations and laws in United Kingdom in the field of autonomy to the medical rights of the citizens need to be expanded and choices need to be given to the residents and citizens of the country. The Laws governing medicine in United Kingdom have huge governmental presence due to the National Health Services Framework, and this needs to be re-evaluated in order to further develop the medical laws in the Country.
[1] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5290754/
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