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Journal of the Academy of Hospital Administration

Organ Retrieval in Medicolegal Cases

Author(s): Dogra T. D., Lalwani S., Vij Aarti, Vyas M., Venugopal P.

Vol. 16, No. 2 (2004-07 - 2004-12)

Key Words:

Organ Transplantation act, Medico-legal case, Organ retrieval, organ donation.

Key Messages:

  • The number of organ transplant cases done in India is small, even eight years after enactment.
  • Majority of potential donors are medicolegal cases from whom organ retrieval is generally not done.
  • Certain guidelines have been proposed in this article for organ retrieval from such cases within ambit of law.

Abstract

Transplantation of human organs from one individual to other is an important and life saving measure. Eight years after the implementation of the Transplantation of Human organs act, organ transplantation have been performed only in few numbers of patients in India. The reasons for this are high cost of operation, post-operative management and lack of awareness for donation of human organs among people. Most importantly the majority of potential donors from which the organ can be retrieved falls within the category of medicolegal cases. This act prohibits the retrieval of organs in cases where inquest has to be conducted. In this article, we have discussed certain guidelines; to carry out organ retrieval in medicolegal cases after observing the procedure prescribed under the law without interfering the functioning of the investigating agencies, autopsy surgeons, the courts of law and serving the objective of Transplantation of human organs act 1994.

Organ Retrieval in Medicolegal Cases

Transplantation of human organs from one individual to other is life saving. To prevent commercialization or fraudulent activities in relation to organ transplantation, the Government of India passed the Transplantation of Human Organs Act on 8th July, 1994. Under section 4(3) of this act it is stated that

"removal of human organs not to be authorized in certain cases - if the person required to grant such facilities, or empowered to give such authority, has reason to believe that an inquest may be required to be held in relation to such body in pursuance of the provisions of any law for the time being in force".

The medicolegal cases particularly victims of accidents are the major potential donors. Though this act under section 4(3) restricts the retrieval of organs in such cases, in the opinion of the authors, if the organ retrieval is carried out after observing the procedure prescribed under the law, it will serve the purpose for which the Transplantation of Human Organs Act, 1994 has been enacted without violating any law.2

The All India Institute of Medical Sciences New Delhi has framed guidelines to carry out organ retrieval in medicolegal cases without violating any of procedures prescribed under the law and would not hamper the functioning of the investigating agencies, autopsy surgeons and the courts of law.

Medicolegal Formalities ordinarily followed in the disposal of the dead bodies in medicolegal cases in accordance with existing law is:

  1. Death certificate- Declaration of death in Medicolegal case.
  2. Inform the concerned police station about the death of an individual through police post attached to the hospital (Section 39 Cr.P.C.)
  3. The dead body is handed over to police and not to the relations.
  4. The SHO of the concerned police station deputes an investigating officer to conduct inquest under section 157 and 174 Cr.P.C.
  5. The Investigating Officer prepares the inquest papers and submits them with an application in the prescribed format to the medical officer of the Department of Forensic Medicine for post-mortem examination.
  6. The Medical Officer receives inquest papers, after scrutiny takes possession of the dead body from the Investigating Officer for the transient period of post-mortem examination.
  7. The Medical Officer conducts post-mortem examination to establish the cause of death and preserves any tissues, viscera, clothing, trace, evidences or any other material of significance to establish the cause of death or for the purpose of investigation.
  8. After the post-mortem examination is conducted and preserving any of the exhibits, the dead body is returned to the Investigating Officer, who in turn hands it over to the relations.

As per the above procedure, as soon as there is a declaration of "brain stem death" the police is required to be informed immediately and the possession of the dead body is handed over to the police. Once the police has taken the possession of dead body no intervention of any kind can be performed on the dead body without obtaining proper written consent / permission / no objection certificate from the police. Any direct intervention may amount to the destruction of evidence or disappearance of evidence, which is an offence punishable under sections 201 and 202 IPC for which the punishment prescribed is up to 12 years of imprisonment. It may also amount to causing indignity to human corps under section 297 IPC for which ordinarily the medical officer conducting the post-mortem examination or retrieving organ under the Human Organ Transplantation Act is immune.4

Strategy adopted for organ retrieval in "brain stem death" cases declared medicolegal at AIIMS in accordance with the law of land:

At the All India Institute of Medical Sciences, New Delhi, the procedure followed in medicolegal cases to avoid any legal complication and to serve the purpose of the Human Organ Transplantation Act, 1994 is as under:

  1. The team of doctors certifying the "brain stem death" as laid under chapter II section 3 (sub section 6) of the Human Organ Transplantation Act, 1994 contacts the Organ Retrieval Banking Organization to ensure that a proper procedure is followed prior to the declaration of death.
  2. The Organ Retrieval Banking Organization contacts the Head of the Department of Forensic Medicine.
  3. The Head of the Department of Forensic Medicine deputes a medical officer or himself attends the ward / operation theatre or the ICU as the case may be to verify the "brain stem death certificate".
  4. The medical officer informs the concerned police station either through police post or directly when the officer is not available during odd hours about the "brain stem death" and seeks a DD number as per the prevailing procedure of the hospital. (Section 39 Cr.P.C.).
  5. Copies of death certificates are distributed to the concerned sections as per the prevailing procedure at AIIMS.
  6. Appointed investigating officer arrives at hospital and prepare the inquest papers (174 Cr.P.C.).
  7. On completion of the inquest papers the Investigating Officer is asked to submit them for post-mortem examination with a request on the prescribed format. The necessary consent signed by the deceased himself (Chapter II Section 3 (subsection 2) of human organ transplantation act 1994) or next of kin or legal heirs or person in lawful possession of the dead body (Chapter II Section 3 (subsection 3) of the Human Organ Transplantation Act, 1994) is shown to the Investigating Officer. The Investigating Officer may, if he desires, to talk to the relations directly and after satisfying himself issues a no objection certificate or permission letter in the format given below.
  8. Other medicolegal formalities are completed as per the normal procedure, which is observed the in ordinary postmortem examination.
  9. Organ retrieval is carried out in the presence of the Medical Officer of the Department of Forensic Medicine who records the relevant findings during entire procedure of the organ removal.
  10. On completion of the organ retrieval procedure the dead body is sent to the mortuary where the same doctor who had attended the proceedings of organ retrieval conducts a complete post-mortem examination. Thus the entire procedure is followed without any break.

The above-mentioned procedure is in accordance with the provisions of Section 39 and 174 Cr.P.C. and with that of the Punjab Police Manual, which is applicable in Delhi. The postmortem examination begins right from the start of organ retrieval hence, this action gets the protection under Chapter II section 6 of the Human Organ Transplantation Act, 1994 and enables the forensic expert to testify in the witness box under an oath while giving evidence.1,4

Chapter II section 6 of Human Organ Transplantation, Act 1994 dealing with the authority for removal of human organs from bodies sent for post-mortem examination for medicolegal or pathological purposes states that- "Where the body of a person has been sent for post-mortem examination-

  1. for medicolegal purpose by reason of the death of such person having been caused by accident or any other unnatural cause or
  2. for pathological purposes

The person competent under this act to give authority for the removal of any human organ from such dead body may, if he has reason to believe that such human organ will not be required for the purpose for which such body has been sent for post-mortem examination, authorize the removal, for therapeutic purposes, of that human organ of the deceased person provided that he is satisfied that the deceased person had not expressed, before his death, any objection to any of his human organs being used, for therapeutic purposes after his death or where he had granted an authority for the use of his human organs for therapeutic purposes after his death. Such authority had not been revoked by him before his death." The "competent person under this act" is not clearly defined in section of the said Act. The authority seems to have been vested in the autopsy surgeon who is in lawful possession of the dead body for post-mortem examination. Neither rules nor the procedure / format have been laid in the "Rules of Transplantation of Human Organs 1995" for the said purpose, therefore, the intention of the Act and the Rules when read as a whole can be interpreted in following ways:

  1. It may be presumed that before his death the deceased person has not expressed any objection to any of his human organs being used for therapeutic purposes after his death. If the deceased has expressed any objection to organ removal after his death, the next of kin may produce proof of the same.
  2. Written statement may be taken from next of kin of deceased stating that deceased "has not expressed any objection to any of his human organs being used after his death for therapeutic purposes".
  3. Permission for the organ retrieval taken from the next of kin or near relations of the deceased as per form no. 6 & 7, which is in accordance with Rule 4(2) (b) of the Rules of Human Organ Transplantation, 1994.2

In the opinion of the authors, the procedure given in (b) & (c) above are safer alternatives and options as compared with option (a) till proper rules and guidelines and formats are framed for such cases.

Procedure for organ retrieval from medicolegal cases declared "brain stem dead" at centers other than AIIMS (authorized private hospitals):

When authorized private hospitals falling within the jurisdiction of All India institute of Medical Sciences contacts the Organ Retrieval Banking Organization, a forensic medical expert is deputed by the Head of Department under intimation to the authorities, who proceeds to the concerned hospital. He follows the same procedure, which has been laid down in the AIIMS but only after verifying each and every document up to his satisfaction. Meantime hospital is advised to inform the police and prepare the medicolegal report. Once the procedure of organ retrieval is complete the dead body is sent to the mortuary at AIIMS for carrying out the post-mortem examination by the same forensic expert. The Photostat copy of the consent form, brain stem death certificate, permission from police, inquest papers along with the copy of postmortem report is kept in the department"s record.

Organ retrieval from the unclaimed dead bodies

As per the Human Organ Transplantation Act, 1994, Chapter II Section 5 lays down:

Authority for removal of human organs in case of unclaimed bodies in hospital or prison:

1) In the case of a dead body lying in a hospital or prison and not claimed by any of the near relatives of the deceased person within 48 hours from the time of the death of concerned person, the authority for the removal of any human organ from the dead body which so remains unclaimed may be given, in the prescribed form, by the person in charge, for the time being, of the management or control of the hospital or prison, or by the employee of such hospital or prison authorized in this behalf by the person in charge of the management or control thereof.

2) No authority shall be given under subsection (1) if the person empowered to give such authority has reason to believe that any near relative of the deceased person is likely to claim the dead body even though such near relative has not come forward to claim the body of the deceased person within the time specified in subsection (1).2

Once the brain stem death is declared as per the legal requirement (under chapter II section 3 (subsection 6) of the Human Organ Transplantation Act, 1994) it is advisable to wait for 48 hours and during this period all efforts through press ("hue and cry notice", post and television are required to be made to locate next of kin. Such efforts in medico-legal cases are to be made by the police and the hospital authorities and in non medico-legal cases it is done only by the hospital authorities. The Punjab Police Rule (25:38) states that if a body is unidentified, the officer making the investigation shall record a careful description of it, making a note of all the marks, peculiarities, deformities, other distinctive features and shall take the finger impressions. In addition to taking all other reasonable steps to secure identification he shall, if possible, have it photographed. In cases where such action is desirable, a description should also be published in the criminal intelligence gazette. In Delhi, police sends telegraphic message called "Hue and cry notice" to various police head quarters of the country. The "Hue and cry notice" contains a brief description of the identification features of the deceased. The body is preserved in the mortuary for 72 hours from the time telegraphic message is sent. If there are no claimants to the body even after 72 hours, the police is legally authorized to dispose off the body.1,2,5

In the case of unclaimed dead bodies in the hospital, where death has occurred due to natural causes, the hospital authority should send telegraphic messages to the available addresses. If the dead body is unclaimed after 72 hours, it is legally authorized to dispose off the dead body. In view of the above, the dead body is declared unclaimed for the purposes of organ retrieval after 48 hours as per the Transplantation of Human Organs Act, 1994, but as per the Police Manual the dead body is declared unclaimed only after 72 hours, therefore, these two provisions when read together can be so interpreted that the organ can be retrieved 48 hours but the body is not to be disposed of before 72 hours. When all efforts fail and it is established that no one is likely to claim the dead body, than only a body can be declared as unclaimed and organs can be retrieved as per the Human Organ Transplantation Act, 1994.3,2,5

Organ retrieval when a medicolegal case is transferred from one hospital to another:

1. When a medicolegal case is transferred from one hospital to another, the receiving hospital registers it as a medicolegal case and all the medicolegal formalities are completed according to the prevailing procedure such as the preparation of medicolegal report, information to police etc. The documents/case sheet prepared in the hospital is labeled as medicolegal. Rest of the procedure remains the same as described earlier.

2. In non-medico-legal cases where "brain stem death" is declared in other hospital and the ventilating dead body is brought to the AIIMS purely for the purpose of organ retrieval the organs could be retrieved through ORBO.

3. Medical officer of Department of Forensic Medicine of All India Institute of Medical Sciences, New Delhi can deal with the medicolegal cases within its jurisdiction i.e. of South Delhi only. He cannot attend to the cases admitted in hospital out of limit of its jurisdiction. In such cases the forensic expert of the concerned jurisdiction may be associated.

4. All the Medical Officers dealing with organ retrieval are required to be careful and should not perform any act that violates the provisions of sections 39 and 174 of the Cr.P.C. and 201 and 202 of the IPC.

Reference

  1. Koshy, K. The Punjab Police Rules,- 1934, The Bright Law House, Rohtak, 1992;Vol. 3, P-1078-83.
  2. The Transplantation of Human Organs Act- 1994 and The Transplantation of Human Organs Rules-1995, Universal Law Publishing Co. Pvt. Ltd. 2002.
  3. Report on medico-legal centres and medico-legal services in Union Territory of Delhi, Director, Health Services Saraswati Bhawan, Cannaught Place, New Delhi May 1983, P-12.
  4. Sarkar P.C. Criminal Major acts (India). Orient law house, New Delhi, 6th edition 1999.
  5. Millo T., Agnihotri A K, Shakti Gupta, Dogra T. D. Procedure for preservation and disposal of dead bodies in hospital, JAHA 2001; July-Dec Vol. 13, No.2 : 65.

Dogra T. D. - Prof.& Head, Department of Forensic Medicine & Toxicology, AIIMS, New Delhi
Lalwani S. - Senior Resident, Department of Forensic Medicine & Toxicology, AIIMS, New Delhi
Vij Aarti - Assistant Professor, Incharge (ORBO), Department of Hosp. Admn., AIIMS, New Delhi
Vyas M. - Advocate (Supreme Court), Standing Counsel, AIIMS, New Delhi
Venugopal P. - Director & Chief, CN Centre & ORBO, AIIMS, New Delhi

For Correspondance:
Organ Retrieval Banking Organization, All India Institute of Medical Sciences, Ansari Nagar, New Delhi-29 (India)


Format of Consent for Organ Retrieval to be Taken from Police

To Whomsoever it may concern,

This is to certify that during investigation it was found that deceased _________________________________________,
S/o______________________________________ has not expressed any objection for use of his organ(s) for therapeutic
purpose after his death. The relative, namely__________________________________________________________,
relation____________________________, has also consented for organ retrieval in the prescribed format. As per the death
certificate and information provided, the cause of death is not related to the organs to be donated.

Considering all the above mentioned facts I am hereby issuing a no objection certificate for retrieval of the organ namely
__________________________________________________________________________________________.

Signature:_____________________________________
Name:________________________________________
Designation:____________________________________
Police Station:___________________________________

 

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