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Medical negligence law, revolutionary steps required

By: Barrister Afzal Hussain

To the lovers of democracy, freedom, human rights, and justice and for all without discrimination of color, caste, creed, and religion. There are some universal teachings and preached by all divine religions and cults; such as serving the humanity in different capacities and shapes. The profession of medicine is one of the ways of serving human cause. It includes allopathic, homeopathic, Hikimat, acupuncture (Chinese medicine) and others. There is no doubt that it is a noble pursuit, particularly the modern medicine (allopathic medicine) and the advancement in the field of surgery, and the people associated to the fields of medicine are noble men and women, either male / female doctors or nurses. Our religion stresses on the importance of this profession and particularly upon the research involved in its advancement.

There can be no disagreement on the nobility of the profession but there is certainly a disagreement on the ways, which have transformed it into an absolute business activity. Private practitioners act as salespersons searching for customers. Once their practice or more appropriately their trademark is talk of the town than sky is the limit. You would only find nameplates of specialists in the government hospitals, where a peon would give you directions to his paying master's private clinic. These specialists keep their government hospital posts to market themselves. The government hospitals are in worst possible shape and require revolutionary measure to resolve the problems. However, now the dire situation of medical profession (medical education, professionals and hospitals) reflect the commitment of our ruling class to the masses.

The subject of professional ethics is an essential part of any professional qualification. In this age of science and technology, professional attitude and compliance with the professional ethics is essential. However, it is astonishing to know that until recently, our medical colleges were not offering Professional Ethics as a subject. I am of the opinion that this can be a reason of usual ethical breaches by doctors. There are numerous examples of ethical breaches, starting from molesting / raping the patients to gross medical negligence resulting in personal injuries, inflicting fatal diseases (in OT), and often unnatural deaths. No reasonable person would buy this argument that it is routine work for them, they get use to such incidents and do not possess emotions. If this is the case than they have lost their professional, religious, and human values because it is their duty to serve humanity. They were not forced to take up this profession. It is same as if soldier says, "I can not defend the borders because I have to do it everyday". Doctors are under legal, professional and religious obligation to treat the patients with utmost care and responsibility.

Other than business activity and negligent doctors, there are quacks in disguise of doctors. These quacks have camouflaged and are misleading to the highest order. It is easy for an educated person to distinguish the quacks; although they may seem reasonable at first; but we must not forget the number of graduates Pakistani education system has produced. The Random House Dictionary describes a "quack" as a "fraudulent or ignorant pretender to medical skill" or "a person who pretends, professionally or publicly, to have skill, knowledge, or qualifications he or she does not possess. Bearing in mind the number of successful quacks in Pakistan, I am in no doubt that, these quacks are skilled but only in fraudulent affairs.

It is indeed unfortunate and murky state of affairs. Further, it is very frustrating that there is no adequate remedy available to the victims of the negligent doctors and fraudulent quacks. It is because of lack of the developed laws and expeditious judicial system that enhances the vulnerability of the aggrieved parties. If wrongdoers are aware of the consequences than it will be a different situation altogether.

This alarming situation requires many answers. Who is responsible? What needs to be done? I believe the government is responsible to provide adequate health care facilities to the citizens. There is a long way to go but we need to take some revolutionary steps to come over this adversity. The whole system needs a gigantic effort starting from the medical colleges (saying no to self-finance students and by setting good standard for private medical colleges, motivating the doctors (other staff members) by increasing financial incentives, and by introducing effective legal sanctions. The government's paramount goal should be to provide better health care facilities to the citizens.

In my humble opinion, the following points can be of some assistance to the government to achieve its paramount goal. (i) Newly qualified doctors should be given adequate remuneration and facilities (adequate remuneration should be given at all levels); this will motivate them. Once they will have job satisfaction, sense of character and responsibility will emerge on the scene. (ii) Newly elected government should allocate more funds to the federal and provincial health ministries, so they can buy modern machinery and equipment for the hospitals. (iii) Accountability is the most important element of progressive and prosperous systems. Therefore, special task forces should be formed, consisting of doctors, police or judicial personal to keep a close watch on the private practitioners. Further, they should be given powers to identify the quacks and take legal action against them. (iv) There is an utmost need of develop law on the medical negligence. The government of the day should consider the urgency and importance of the issue at hand and should make special laws pertinent to medical negligence, government should consult European and American jurisdictions for medical negligence laws; there is an utmost need of special courts (only for medical negligence cases) in every district or at least at a divisional level. These special courts must have the powers to award exemplary damages. Legal and financial sanctions are necessary to ensure the appropriate working of the health care system.

On May 9, 2008, I read in newspapers that Chief Minister Punjab suspends MS, MO Rawalpindi General Hospital for negligence. I quote, "The chief minister also took notice of the rude attitude of duty doctor to the patients and said that if this was the situation in his presence what would be the conditions when he was not there. He further directed Secretary Health to replace these doctors with efficient and competent doctors so that better health facilities could become available to the patients". Bravo! Doost Muhammad Khosa.

The million-dollar question is whether we want to give our poor fellow citizens better life and reasonable healthcare facilities. If yes than we need strong will and revolutionary step such as special task forces, special laws and special courts.

The writer is a barrister and alumni of London and Cardiff University. He is an Islamabad-based Corporate Lawyer. Email: barristerafzal@gmail.com

May 5, 2008

2.

Dowry & Employment clauses to be incorporated in the marriage contract

By: Barrister Afzal Hussain

To the lovers of democracy, freedom, human rights, and justice and for all without discrimination of color, caste, creed, and religion. It is understood that moral and cultural values are influenced by religious tenets and social norms. If we take into account the human history, we will come to conclusion that the institution of marriage had existed even in primitive societies. We may argue on the shape and dynamics of the institution of marriage. Various religious groups have different procedures and protocols pertinent to the institution of marriage. Their procedures and dynamics are influenced or set by religious beliefs and social norms. Different civilizations have various opinions and sanctions related to polygamy. In western civilization, bigamy is an offence, which results in imprisonment. However, in Islamic civilization, it is not an offence but there are certain conditions attached before exercising the right of polygamy. It is noteworthy that polygyny (one man having more than one wife) is only permissible in Islamic civilization but polyandry (one woman having more than one husband) is not permitted in any civilization, which includes western, eastern, and Islamic. We may argue that the situation is discriminatory in nature but there is a persuasive and prevailing argument that it is important to maintain the sanctity of the institution of marriage. In contemporary societies, it is acknowledged across the board that marriage is a contract between spouses, which consists of anti-nuptial agreement, offer, acceptance, terms of the contract, consideration, performance and attestation of witnesses. However, in modern civilization, it requires registration to overcome the issues of legality and legitimacy of wedlock; furthermore, it creates legal relations between spouses, which impose legal obligations and sanctions.

In our contemporary Pakistani society, marriage contract (Nikkah Nama) asks for a set of details and terms of the marriage. Initially it was not in the present form. It has been introduced to changes over the passage of time. Presently, majority of the clauses in the marriage contract illustrates that the government is interested in benefiting and protecting the women rights. Marriage contract concentrates upon the witnesses of different types. It is necessary that marriage between man and woman must be public to protect women from fraud and humiliation. It is important to protect chastity of women in our society. The contemporary society necessitates that the marriage contract must be registered with government assigned registrar, it is important to maintain the sanctity of the institution of marriage. Moreover, the important reforms are optional and ask to explain the attached conditions, whether the husband has delegated the power of divorce to the wife. If so, under what conditions. Whether the husband right of divorce is in any way curtailed. Another interesting clause requires bridegroom to seek permission of the Arbitration Council under MFLO 1961 provided he has any existing wife. This clause was incorporated to limit polygamy.

The marriage contract deals with the economic issues of dower or mahr (money, goods, or estate that a man gifts to her wife in marriage). It demands details of each and everything. Here, it is noteworthy that not even a single clause inquires about dowry (money, goods, or estate that a woman brings to her husband in marriage). It is understood that dowry is discouraged and condemned. However, the ground reality is different, it is sad but circumstances compel bride's family to give dowry. This self-deception would not bring any betterment in the murky state of affairs pertinent to the dowry issues in our society. The situation gets murkier when there is a dispute among spouses, which leaves women at the mercy of male dominated society, as there is nothing pertinent to dowry in marriage contract. Bearing in mind the bitter reality, I urge the government to incorporate dowry clause in the marriage contract.

The modern education and flourishing corporate culture has left deep impressions in our society and on our lifestyle. It has changed or altered the traditional mindset of our society. The mounting corporate culture and western influence is becoming an essential and unavoidable part of our society. This is an era of globalization and specialization, which inspires everyone to play his/her part in steering their lifestyles to the best possible luxurious way. The modern education and western influence in our lives has brought an urge for independence in everyone. Economic independence is the part and parcel of the modern lifestyle. It is an unavoidable desire that has taken over each one of educated men and women. There is nothing mischievous about such a desire. It has connotations with the notion of equality among men and women. This desire for economic independence in women obligates them to do something with their lives, in addition to family life. Women want to be lawyers, civil servants, engineers, teachers, doctors, and professionals. However, there are numerous hurdles to keep them at a distance from economic independence. It is not astonishing in a feudal-male dominated society. Where feudalism is more than having possession of land, it is a state of mind, which is not ready to accept that men and women are equal partners in marriage.

In urban areas, the situation is changing because of education and job opportunities but it has a long way to go. There are exploiters everywhere. However, the desire for economic independence is increasing everyday. The empirical findings explain that an overwhelming majority of married women are pressurized to give up their professions at time under the notion of morality, so husbands can control their wives because of their economic dependency. In such situations, women have only two options either to surrender their rights unilaterally or take divorce consequently on charges such as non-cooperation, stubbornness, immoral activities, and disobedience. This murky situation necessitates the legislators to take adequate measures to ensure women empowerment. There is a need of an employment clause to be incorporated in the marriage contract that whether bride will continue her employment or will be allowed to take up employment in future. This will clarify everything in the first place. Employment clause will provide parties an option to act according to their desires. It will also give working women legal protection at least to an extent. This will bring economic independence among women; only then Pakistani women will be in a position to protect their rights and render their services to Pakistani society.

It is time to take up responsibility and introduce new clauses to the marriage contract, which are based upon pragmatic approach rather than ideals. The million-dollar question is whether we want to transform Pakistan into a modern welfare Islamic state. If yes then we must empower women in our society and act in accordance with the notion of equality among men and women.

The writer is a barrister and alumni of London and Cardiff University. He is an Islamabad-based Corporate Lawyer. Email: barristerafzal@gmail.com

June 3, 2008

Identity among British Pakistani Youth

By: Barrister Afzal Hussain

To the lovers of democracy, freedom, human rights, and justice and for all without discrimination of color, caste, creed, and religion. Economic progression and stability is the backbone of every strong nation. The remittance from overseas British Pakistani community adds to our economy. The situation asks for an academic explanation that why people living abroad feels like investing large amount of money in Pakistan. The detailed analysis explain that there are two categories of Pakistanis, first working in Britain to earn their living for their families back home, and second, British Pakistanis who still consider Pakistan as home. The second category illustrates an interesting situation that why people born in Britain choose to be Pakistanis or it is their circumstances that obligates them to opt for the aforesaid identity. What are the compelling reasons that oblige them to opt for a country thousands of miles away? The empirical finding requires academic attention as it explains the issues faced by youth in a multicultural society. The diversity in society, social limitations, parental boundaries, their ethnic barriers (Asian or Pakistani origin), religious boundaries and Islamic identity obligates them to distinguish themselves from their fellow citizens.

The first line of argument is the social boundaries for analyzing the various ways in which young British Pakistanis differentiate themselves, or feel that they are differentiated, from the non-members of British Pakistani community. I am certain that numerous social boundaries can be identified, which help processing the British Pakistani identity. First, can be the definition of Britishness. What can be British? Bearing in mind the ethnic definition of nation and concept of citizenship, compelled British Pakistani Youth to think on different lines. Second, is the characterization of community by their older generation that wants to preserve "parental boundaries", which includes a narrow definition of their community, consequently, creating a sense that they are different? Third, the younger generation is in process of characterizing themselves in "ethnic boundaries" such as Asian, Desi, and Pakistani. Finally, the British Pakistani youth along with other Muslims are reconstructing "religious boundaries" to define themselves. The guiding source of Islam gives them strength and a sense of identity in a multicultural society. It is in the nature of the teachings of Islam that its followers are "one for all and all for one". Moreover, their community elders and religious scholars are addressing the conditions of survival and revival of traditions, especially religious traditions in modern society.

It is noteworthy that the prejudiced approach of a minority group among the white majority adds to the compelling reasons of identity formation in British Pakistani youth. Here, I would like to share my personal experience pertinent to racism in British society, "I have witnessed numerous racist comments and activities during my University days in Britain. I believe people become racist because of ignorance. It is not an excuse in law but I beg to differ because they are not harming others but themselves. They have their insecurities and inferiority complexes. As far the international students are concern, the racists need to understand that international students are adding to their economy by bring large amount of money. However, I have always believed that "crisis brings out best in the people". These sad series of events have strengthened my faith that all human beings are equal, black, brown or white.

One can understand that it is difficult to show magnanimity when you have to live with the sad fact for the rest of your life. The aforementioned reasons have created an identity crisis in British Pakistani Youth. They are hanging between the western, eastern and religious values. An overwhelming majority of the British Pakistani Youths' talent is flagging because of this confusing state of affairs. The situation gets murkier when Pakistanis do not accept them. We have been hearing many derogatory comments about the British Pakistanis. Just imagine that someone was told during his tender age that he is Pakistani. The aforementioned reasons obliged him to accept British Pakistani identity but later he realized that he is not acceptable to both societies. For British society, he is Pakistani and for Pakistanis he is British.

Here, I would like to narrate a sad story of a British Pakistani girl. I was friends with her classmate in London School of Economics. I quote him, "Sadaf (pseudonyms) was a bright student. She was eloquent in English and Urdu. She was interested in contesting election as President of Pakistani society. During the pre-election meeting, she stood up to announce her candidature but Pakistani students bullied her. They told her that we (Pakistanis) could not allow some British Born confused desi to run for an office. She was heartbroken and felt dismayed. She started crying and left the building and Pakistani society forever". I believe the message was loud and clear. Further, the performance of custom officers, immigration officials and airport staff is self-evident, which provides enough vendettas.

Even than we see British Pakistanis bringing large amount of money in Pakistan, celebrating Pakistan's Independence Day, hoisting Pakistani flag at their residences in England, supporting Pakistani cricket team in British stadiums at times against England, backing our legal stance on Kashmir issue, supporting our foreign policy, helping in poverty elevation, raising donations for earthquake victims and numerous services. I believe British Pakistani Youth is committed to Pakistan's advancement and prosperity. We need to understand that in this modern era, people have access to multiple nationalities or passports. We must not divide our strength. Therefore, I urge all Pakistanis to give British Pakistani Youth proper respect, love, appreciation, and sense of brotherhood.

The million-dollar question is whether we want to preach hatred in the name of religion, ethnicity, provincialism or we want to preach love, respect and tolerance? I believe we need to preach love, respect and tolerance, thus acting in accordance with Quaid-e-Azam's motto of Unity, faith and discipline.

The writer is a barrister and alumni of London and Cardiff University. He is an Islamabad-based Corporate Lawyer. Email: barristerafzal@gmail.com

May 19, 2008