(1) An overpowering desire (craving) or actually need to continue taking the drug and to obtain it by any means.

(2) A tendency to increase due to tolerance to the drug used.

(3) A psychological and sometimes physical dependence upon the effects of the drug,

(4) Withdrawal symptoms or abstinence syndrome when the drug is withdrawn.

The numbers of drugs which are being abused are increasing day by day. In recent years, in the description of drug abuse, all these drugs are loosely termed as narcotics irrespective of their properties. Those known to be in common use are grouped under the following heads:

(1) Volatile anaesthetic solvents commonly toluene, known as glue sniffing

(2) Alcohol

(3) Hypnotics (barbiturates, non barbiturates such as paraldehyde and chloral hydrate

(4) Minor tranquillisers

(5) Narcotic analgesics, such as opium, morphine, heroin and pethidine

(6) Stimulants such as amphetamine and drugs of sympathomimetic group such as ephedrine and methylphenidate (Ritalin)

(7) Cocaine;

(8) Drugs causing distortion of the senses, such as marijuana and LSD.

These drugs are taken singly or in combination administered either by the oral route, subcutaneous injection (skin popping), intravenous injection (main lining) or as a snuff. A recent fashion, probably to avoid detection by the authorities, is to inject the drug subcutaneously tattoo mark or intravenously, and as the more accessible veins may be thrombosed, the drug may be injected into the venous plexus under the tongue, in the rectum or in the vagina. LSD is taken on a lump of sugar.

METHOD OF USE

The narcotic is usually purchased on the street as a packet containing the alkaloid (usually 4 to 8 percent) which has been diluted (cut) by lactose, mannitol or some other adulterant. After an epidemic of malaria the drug addicts, the dealers now add quinine to the packet as a prophylactic against malaria. The heroine bag in New York city at present about 100 mg of white powder, the constituents of which are heroin (3-30 mg), quinine (0-40mg), and the rest, various sugars. Very rarely, a minute amount of strychnine is included to add a pleasant sensation (kick).

The powder is dissolved in water a spoon (cooker), heated over a match and filtered through a piece of absorbent cotton to remove impurities and germs. The injection equipment known as the “works” generally consists of a hypodermic needle attached to a medicine dropper for some modification thereof so that the process of injecting could be manipulated with one hand. A belt, rope, or a shoelace tourniquet is most commonly used to facilitate intravenous injection, the most common injection being the antecubital region. The hypodermic needle is heated over a flame and is considered sterilized when carbonaceous material is scene over it. Communal use of equipments is common.

The new entrants (neophytes) and women inject the material under the skin (skin popping). Long-term experts (main liners) fever intravenous route resort to skin popping when there accessible cutaneous veins are no longer usable. The injections may be jabbed through the clothing into any part of the body – arms, chest, thighs, abdomen, or even the mucous membrane – nasal, oral or vaginal.

Those who are unable to obtain the “works” use a large hair pin, or nail to Jab a hole in their skin, and then force the tip of medicine dropper in the wound to inject the liquid.

Some narcotics like heroine, cocaine, and marihuana can be taken as snuffs and some can be smoked through various types of pipes.

CAUSE OF DEATHS

Drug deaths may occur in epidemics eg, heroine and methyl alcohol. Epidemics of “khopri” deaths due to the consumption of adulterated alcohol are common in areas where alcohol is prohibited. Falciparum malaria epidemic in New York in 1933 was due to sharing the common equipment contaminated by malarial blood when malarial parasites had a free ride into the succeeding man without having to rely on the salivary glands of anopheline mosquito.

Sudden death known as overdose or acute reaction is not uncommon. It is probably due to some unexpected sensitivity but not overdose or allergy. The other addicts who shoot up exactly the same dose from the same source suffer nothing at all. No laryngeal oedema as is found in allergic or anaphylactic reaction is seen. The basic mechanism of such death is not known. All that is usually found internally in such a case is frothy fluid in the air passages due to sudden flooding of the lungs – a manifestation of sudden heart failure. Sometimes, the addict is found with the needle and syringe still in the vein. This implies loss of consciousness. Aspiration bronchopneumonia is commonly found in such cases.

Septic complications account for the remaining deaths and such complications include septicaemia, hepatitis, fungal or bacterial endocarditis, lung abscess, malaria and tetanus.

Deaths may occur after the drug has disappeared from the system. Such deaths then appear unrelated to drug abuse. These deaths are commonly due to complications eg, bronchopneumonia, positional asphyxia, hepatitis, fungal or bacterial endocarditis, encephalomalacia, blood disorders, and acute muscle necrosis with myoglobinuria and renal failure. However, such deaths need to be correctly certified, eg., hepatitis following drug abuse.

Drug ingestion may trigger intravascular sickling in certain haemoglobinopathies resulting in sudden death.

AUTOPSY

The addict with characteristic skin lesions is recognised easily. However, cutaneous stigmata of drug abuse may be entirely absent.

In the examination of a body suspected to have died of drug abuse there are four lines of enquiry which demand special consideration, viz

(1) Scene investigation

(2) External examination

(3) Internal examination

(4) Preservation of viscera.

SCENE INVESTIGATION

The addict usually chooses a place where there is some privacy for his “works” unless he is indulging in group activity with common equipment. Accordingly, he is likely to select his bedroom, bathroom, a friend’s apartment, abandoned building, or roof top (shooting galleries), or similar place.

Should death occur, it may mimic natural death, suicide, or homicide; depending on the circumstances.

If death occurs at a place where the body can be safely left, eg, in the addict’s bedroom, the equipment may be taken away for later use and the body so lain as to mimic natural death.

If death occurs at a place where the body cannot be safely left, eg, in a friend’s house, it is dumped to a remote place – a park, roadway, railway track, or packed in a trunk to be abandoned when convenient, and this may then mimic a homicide. During the process of removing the body, clothings may be disarranged, blood stains may form on parts of the garments originally free from them, fresh tears on the clothes may result from rough handling, scraping abbreviations and bruises may occur, and existing rigor mortis may be broken down, at least, partially. There may be marks on the body secondary to attempted resuscitation. All these may mislead the doctor as regards the real cause of death. Inappropriate rigor mortis or postmortem lividity due to change in position of the body sometime after death on account of dumping may add to the confusion.

If any drug packets or injection equipment are recovered at the scene of death or from deceased’s clothing, they should be properly preserved for examination by Forensic Science Laboratory (FSL).

EXTERNAL EXAMINATION

In skin poppers, recent injection site may be identified. It is surrounded by a zone of inflammation adjacent to needle puncture. Old injection sites main show ulcer, abscess, or depressed scars resembling smallpox vaccination. These scars may be pigmented and sometimes hypertrophied.

In main liners, the site of recent injection may be identified. Hyperpigmented linear needle track scars (traces) overlying sclerosed, thrombosed, subcutaneous veins of the antecubital fossa, forearms and dorsal aspects of hands are common. These tracers can be concealed with tattoos or obliterated by abrading, burning or otherwise scarifying the area, in which case, appropriate marks are seen.

In addicts using the inhalation method, irritation, congestion, and atrophy of the nasal mucosa is common. Perforation of nasal septum occurs in due course.

INTERNAL EXAMINATION

A single longitudinal skin incision is made at an appropriate site in a skin popper and from mid-biceps to distal forearm in the main liner. The incised margins are reflected widely to expose the subcutaneous tissues and veins. Microscopic examination of the scar tissue often reveals foreign matter such as cloth, cotton or talc, inadvertently injected with the narcotic. The skin incision may reveal:

(1) Black debris in the dermis from carbonaceous material of the sterilized needle

(2) Diffuse subcutaneous scarring

(3) Foreign body granulomatas

(4) Partially or completely thrombosed, sclerosed veins

(5) Perivenous inflammatory changes,depending on the method of drug abuse.

Repeated unsterile injection of foreign material provides persistent antigenic stimulation resulting in enlarged thymus, enlarged lymph nodes near the liver, hyperplasia of the Malpighian follicles in the spleen, increased gamma globulin levels in serum, monocytic infiltration of liver.

Bronchopneumonia is commonly found in those addicts who have become comatose and then survived for some time.

Most conspicuous feature of a fatal narcotic injection is severe congestion and oedema of the lungs which manifest as shaving cream froth at the nose and mouth and filling the trachea and bronchi. Initially, the froth is gray white but becomes blood tinged later due to tissue autolysis. Foreign body granulomatas in lungs are found if drugs as barbiturates and methadone meant for oral use are injected intravenously.

The urinary bladder is frequently distended and often this is the only clue to death from drugs.

PRESERVATION OF VISCERA

Extensive toxicological studies are necessary. If incision through the skin reveals a needle track or fresh subcutaneous perivenous extravasation, the entire area should be excised and a corresponding control sample also taken from the other side. The toxicologist may be able to detect either the narcotic or the adulterant (quinine).

Stomach contents may show intact tablets or capsules and suggest type of drug ingested. Liver bile and kidney should also be preserved as in any other case of poisoning. Urine may show the presence of either the drug or its metabolic products. A majority of abused drugs can be routinely detected in urine. Blood is required for determination of the narcotic and gamma globulin levels.

In inhalation or solvent poisoning cases, the whole lung should be taken with the trachea tied for analysis of bronchial air.

MEDICOLEGAL ASPECTS

Deaths from narcotism should be suspected-

(1) When there is a history of drug use

(2) When teenagers and young adults die without serious injury or serious disease

(3) When there are physical stigmatas suggesting personality disorder eg, wrist scars, skin pops, tattoos, etc.

(4) In robbers, burglars and prostitutes who die of violence

(5) When autopsy examination demonstrates drug use and excludes other causes of death. 

Addicts are generally individuals with personality problems. They may manifest physical stigmata such as wrist scars from previous attempts at suicide. High drug use is common among certain groups such as hippies, prostitutes, motorcycle gangs and young robbers or burglars. Drug abuse is a contributing factor in auto accidents, homicides, and suicides.

Authors:

Navin Kumar Jaggi

Sayesha Suri

The post Drug Abuse Deaths appeared first on Legal Desire Media and Insights.

Negligence is the failure to exercise reasonable care;

The three ingredients of negligence are as follows:

1. The Defendant owes a duty of care to the Plaintiff.
2. The Defendant has breached this duty of care.
3. The Plaintiff has suffered an injury due to this breach.

LIABILITY UNDER MEDICAL NEGLIGENCE

As per existing Laws, cases for medical negligence caused by Doctors can be filed under following enactments at the option of the Patients:

1. A complaint for deficiency of service can be filed before the Consumer Forum under the Consumer Protection Act, 1986.
2. A Civil Suit for the Recovery of Damages in the appropriate Civil Court.
3. A complaint under Section 304-Aof the Indian Penal Code, 1860 in the appropriate Criminal Court.
4. A complaint to the Medical Council of India or The State Medical Council for de-registration of a Doctor on account of negligence.

The Right to Life enshrined in Article 21 of the Constitution of India includes the Right to Health. Hence, the Constitution of India casts an obligation on the State and the Medical Profession to preserve life. Every Doctor, whether at a Govt. Hospital or otherwise has the duty to extend his services with due expertise, for protecting the lives. Neither the State nor the Statute action can intervene to avoid or delay the discharge of the paramount obligation imposed upon the Medical Professionals. The duty owed by a Doctor towards his Patient, in the words of the Supreme Court is to “bring to his task a reasonable degree of skill and knowledge” and to exercise “a reasonable degree of care”.

MEDICAL NEGLIGENCE viz. CIVIL AND CRIMINAL WRONG

Medical Negligence constitutes Civil as well as Criminal wrong. The person guilty is liable either for compensation for damages or for imprisonment.

Civil Liability, i.e., monetary compensation can be imposed under the general law by pursuing a remedy before appropriate Civil court or consumer forums. An action seeking imposition of the Civil Liability on the negligent medical professional is initiated by the dependents of the  deceased Patient or by the Patient himself if he is alive, to seek compensation of the damages.

There is a thin line between the Civil Liability and the Criminal Liability, and no sufficiently good criteria have yet been devised by the Hon’ble Supreme Court providing any clear and explicit guidance. 

To impose the Criminal Liability, the offence must be made punishable under the Indian Penal Code, 1860 or under some Special Act. There are various degrees of negligence and a very high degree of Gross Negligence is required to be proved beyond reasonable doubt for certain acts to be made punishable under the provisions of Criminal Law. Under certain circumstances where the negligence of the Doctor amounts to death of the Patient, a Doctor can be prosecuted under Section 304 A of the Indian Penal Code, 1860.

Section 304A of the Indian Penal Code, 1860 states that whoever causes the death of a person by doing any rash or negligent act not amounting to Culpable Homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with a fine, or with both.

As opposed to this Ordinary Negligence, Gross Negligence is defined by the Supreme Court in the case of Jacob Mathew’s, which states that negligence must be of High Degree, i.e. the Doctor performs an act or fails to do an act which, in the given facts and circumstances, no Medical Professional in his ordinary sense or prudence would have done, or failed to do so.

Ultimately, Gross or Ordinary Negligence moves around the “facts and circumstances of each case” and no straight formula or definition can be laid down or is not even deducible. Thus, “negligence” of a Doctor is the only foundation on which the Civil or Criminal cases are based upon. However, if the negligence is not gross, a Criminal complaint is not maintainable under the Court of Law.

It must be taken into account that the Gross Negligence performed on the part of the Doctor was beyond Civil Liability. For example, if the act(s) of the Doctor was in utter disregard of Patient’s life and safety, it will amount to Gross Negligence and in such situation Criminal Liability shall be attracted. Thus, the onus of proof and standard of proof is different than one under Civil law. Therefore, the burden of proof is strict and beyond reasonable doubt in Criminal cases of Negligence.

In Criminal law, the onus is on the person alleging Gross Negligence was performed on the part of the Doctor. There is an exception to the said general rule of discharging the burden of proof by the Complainants. Such an exception is known as the principle of “Res Ipsa Loquitur” i.e. thing must speak for itself. The principle of “Res Ipsa Loquitur” is applicable only when there is a proof that the occurrence was unexpected, that the accident could not have happened without negligence on the part of the Doctor, and that it is clear from the circumstances that the Doctor was negligent. The application of the principle of “Res Ipsa Loquitur” in Civil and Criminal cases has also been considered by the Supreme Court in the case of Jacob Mathew.

Similarly, other provisions of the Indian Penal Code, (Act XLV) of 1860, such as Section 337 (causing hurt) and Section 338 (causing grievous hurt), are often deployed in relation to medical negligence cases.

DISCIPLINARY ACTION

Another repercussion of medical negligence could be in the form of imposition of penalties followed by disciplinary action. Professional misconduct by Medical Practitioners is governed by the Indian Medical Council (IMC) (Professional Conduct, Etiquette, and Ethics) Regulations, 2002, made under IMC Act, 1956. Medical Council of India (MCI) and the appropriate State Medical Councils are empowered to take disciplinary actions whereby the medical practitioner’s name could be removed forever or he may be suspended.

WHEN THERE IS NO LIABILITY

It is not mandatory that a Doctor is to be held liable in all the cases where a Patient has suffered an injury. He may not be held liable if he has a valid defense or that he has not breached the duty of care.

The Hon’ble Supreme court in case of DR. SURESH GUPTA V/S. GOVERNMENT OF NCT OF DELHI (2004) (6) SCC 4442, held that “for every mishap or death during medical treatment, the medical man cannot be proceeded against for punishment.”

In MARTIN F D’SOUZA VS. MOHD ISHFAQ, the Supreme Court held that abundantly clarifies that unless there is prima facie evidence indicating medical negligence, notice either to a Doctor or Hospital cannot be issued. At the same time, the primary essence of the judgment explicitly states that there cannot be an assumption that Doctors cannot be negligent while rendering care and treatment.

Authors:

Navin Kumar Jaggi

Aashna Suri

The post Medical Negligence – Liabilities of Doctors arising under Indian Laws appeared first on Legal Desire Media and Insights.

The syndrome must be considered in any child:

1. In whom the degree and type of injury is at variance with the history given;
2. When injuries of different ages and in different stages of healing are found;
3. When there is a purposeful delay in seeking medical attention despite serious injury;
4. Who exhibits evidence of fracture of any bone, subdural haematoma, failure to thrive, soft tissue swelling or skin bruising;
5. Who dies suddenly;

Injuries are commonly multiple, although all are not necessarily severe. They usually follow a pattern, with one or more severe localised bruises on the head, quite inconsistent with a simple fall, or bruises on face, trunk, and extremities consistent with grip marks. Tearing of the frenum of upper lip and of the alveolar margin of the gums to stiffle cries is commonly encountered.

Major injuries which prove fatal include head injuries, eg. fractured skull and subdural haematoma, or visceral injuries eg. ruptured liver and mesenteric hemorrhage. Clinical or radiological evidence may be obtained that injuries have occurred at different times.

In the Eastern culture, babies are considered as gift from God, and cases of battered baby syndrome are normally not seen.

AUTOPSY

The history may be completely misleading as to the circumstances surrounding death. The external and internal examination should be very thorough and supported by photographs, x-rays, microscopic sections of all pertinent lesions and toxicological analysis. Photographs should include views of the entire body showing the distribution of injuries and close up views showing their details. Colour photographs will show difference in age between the various bruises.

EXTERNAL EXAMINATION

Clothing should be examined for the degree of its cleanliness and state of repair. Weight, height, appropriate circumferences and state of nutrition should be noted. The state of nutrition is assessed by the subcutaneous fatty depots, degree of diaper rash and its sequelae search as infections, scarring or loss of pigmentation. Special note should be made of any evidence of insect infestation including fresh bites or secondary infection in more recent bites.

The external examination should also record any instance of suspected trauma, either remote or recent, noting in precise detail, size, shape, location, colour and the degree of healing. Asymmetry of head or extremities, tearing of the frenum of upper lip, burn scar, swelling of joints, and congenital deformities should be specially looked for. Careful search should be made over the exterior of the body for any type of trace evidence that may afford a clue to the actual assailant or the nature of the weapon used.

X-raying of the whole body is essential to reveal skeletal changes. If subtle changes are noted, another x-ray following the removal of the organs maybe more revealing.

A certain minimum number of photographs are essential, regarding:

1. the child in its clothing
2. all external injuries
3. injuries and abnormalities found during examination.

INTERNAL EXAMINATION

Head: Skull fractures must be described, both before and after removal of skull cap, with special reference to their location, shape and extent. Such fractures are usually caused by striking with the side of the hand. Any haemorrhage, eg, extradural, subdural or subarachnoid should be noted and carefully described as regards position in relation to fractures, amount, color and adhesiveness. Microscopic section of subdural haematoma including adjacent normal dura is useful for dating of lesions. Careful differentiation between coup and contre coup lesions will help to determine if the injury resulted from a moving head striking a fixed object or a moving object striking a fixed head.

Neck: The neck should be dissected as per special technique already described. Any obstruction or lesion of the airway should be noted. Injuries to the hyoid, cartilages of the thyroid and soft tissues are looked for.

Chest and abdomen: The important lessons to look for and fractures of ribs and vertebral bodies, and ruptured viscera due to blunt injuries. Localised fractures of ribs are due to impact with a blunt object and multiple fractures are generally due to compression. The viscera that commonly rupture are mainly central and include duodenojejunal junction, pancreas, and liver. Microscopic study of all fracture sites and organs is essential to assist dating of episodes of trauma.

Extremities: Any is symmetry of the arms or legs indicate fracture or deep hemorrhage. Deep incisions are necessary for adequate examination to show damage to soft tissues, extent of hemorrhage, and deep scarring which is evidence of prolonged maltreatment. Incision of soles of feet may reveal unsuspected hematomas.

After the autopsy is over, it is advisable to have a re-check for injuries when some obscure injuries and imprint of wounds caused by grip marks may be observed.

LABORATORY DATA

Routine histological examination should be conducted of every organ system to rule out the possibility of underlying, obscure, constitutional, debilitating disease which might lead to progressive wasting.

Bacteriological cultures (blood, lung, cerebrospinal fluid) are necessary when infectious disease is suspected as a cause or contributory factor of death.

Adequate specimens should be taken for routine toxicological analysis. In addition, role of lead as a primary or contributing factor in the death of these children should be ruled out. Lead poisoning may occur in children from eating paints on cribs, beds or toys.

Only when all facts concerning the circumstances are available, and the autopsy is complete, it is possible to give an opinion on the cause and manner of death.

Authors:

Navin Kumar Jaggi

Aashna Suri

The post The Battered Baby Syndrome appeared first on Legal Desire Media and Insights.

PHOTOGRAPHS

Photographs should be made of all potentially important medical evidence that can be recorded photographically. It is always better to take more photographs rather than less. Those which illustrate the main features clearly can be retained and others discarded. The total collection can be arranged in the sequence later. Although colour photographs are decidedly superior to the “black and white” the latter are still widely utilised in the medico-legal field. Some Courts do not allow colour photographs in evidence.

AT THE SCENE

A series of photographs should be taken from different angles. If this is done as a routine it would save much subsequent trouble. A permanent record of the scene is preserved and so also of hypostasis that might change when the body is moved to the mortuary. The photograph would document the lie of the body, state of clothing, material grasped in hand, fluids trickling from the mouth, discharges from natural body orifices, blood stains, exact position of weapons, etc.

Photography of the body and wounds should begin preferably with a full length view with a scale in position. If this is not possible, then it should be done in two halves. A full length scale provides a guide to the position of wounds in relation to the soles of the feet. Close-up photographs are taken where necessary. Slender arrows made from cardboard or matchsticks can be used to signify sites of importance.

The concept of flat field photography should be applied to all areas of the body including close-up views to minimise distortion. It is desirable to photograph the whole body or part of the body in recognised standard anatomical positions.

Loss of much useful information results when photographs are not taken. Nothing can give a better perspective of the scene than a photograph with undisturbed body with the knife still stuck in the chest or back, strangling cord round the neck, or an “empty” by the side of a firearm victim for real evidence.

The record of each photograph should include name of the deceased, autopsy number, date, place and time the photograph was taken, and the name of the Medical Officer.

AT AUTOPSY

Photographs are essential to identify the body, to document injuries and their location, to correlate external and internal injuries, and to demonstrate any pathologic process.

Photographs of the organs as they lie in the body cavity show the relative size and the position of the organs. Unfixed organs should be photographed soon after they are removed from the body or else drying, oxidation and haemolysis will produce confusing changes rendering the photograph useless. Normally, the cut surfaces of the interior of organs often reveal more of the disease process than the exterior. Instructive photographs are obtained by posing several gross sections of the organ in a series. Illustrative photo-micrographs should also be prepared for the autopsy protocol.

IN COURT

Photographs help the witness to refresh his memory about the findings. They help the court to understand the testimony in proper perspective. Relevant photographs enhance the credibility of evidence especially in regard to those observations and interpretations supported by them, eg., tailing of an incised wound indicates its direction; the height and appearance of a firearm entry wound indicates the angle of fire; and the blood trail indicates the path followed by the victim.

DRAWINGS

When photographic facilities are not available a drawing or sketch can serve the purpose. In some situations, a drawing or sketch can be more effective than a photograph as it may emphasize salient features and omit the distracting ones. A diagram of an aneurysm of the Circle of Willis for example adds much to the autopsy protocol.

Printed charts of body outlines and organs can effectively be incorporated into the autopsy protocol. Appropriate marks may be made in the sketches to demonstrate the lesion. The legend may indicate the significance of the marks.

Depending upon the scene of crime, the sketch is drawn. The sketches can be further divided as follows:

• Floor Plan
• Elevation Drawing
• Exploded View
• Perspective View

Floor Plan: It is most commonly used sketch. The other prevalent name is bird’s eye view. The items are drawn on a horizontal plane.

Elevation Drawing: These sketches portrays vertical plane, such as blood stain patterns on a vertical surface.

Exploded View: It is a combination of Floor Plan and Elevation View. This type of drawing is usually considered a floor plan.

Perspective Drawings: This is the most difficult type of drawing. It is usually done via 3-D. It is used infrequently. This drawing requires some artistic skills.

The drawings/ sketch can be used for the following:

• record location and relationships of evidence
• refresh the memory of the investigator
• supplement other records
• eliminate confusing and unnecessary details
• assist later understanding of crime scene(s) 
• assist in questioning of suspects or witnesses
• assist in correlating testimony of witnesses

IN COURT

The court looks into the sketches and drawings of the experts. The forensic artists can be called upon in the court for witness. They are called as expert witnesses because they possess all the special knowledge of art and forensic sciences.

As expert witnesses, artists can generally give their opinions and views about the sketch or other form of art to help prove a case. Sometimes, artists are called to the stand by the prosecution or sometimes, they are called by the defense. Either way, they may be asked to explain and defend their own art to the jury. The purpose of forensic art is to aid in the identification, apprehension, and conviction of criminal offenders.

Authors:

Navin Kumar Jaggi

Sayesha Suri

The post Relevance of Photographs and Drawings in Forensic Pathology appeared first on Legal Desire Media and Insights.

India consists mostly of villages which are served by Taluka or District Hospitals. Cities with big Hospitals and attached Medical Colleges are comparatively few in number. The requirements of an autopsy section at a Taluka or District Hospital naturally differ from those of a bigger Hospital, especially the one to which a medical college is attached. In Talukaor District Hospitals medico-legal autopsies constitute the major bulk of autopsy work and the routine medical autopsies are indeed very few, if any. Autopsies are performed by medical officers mainly occupied in patient care. Most of them have very little or no experience or training for this purpose. In bigger Hospitals and especially those attached to the medical colleges, both types of autopsies are performed. A certain number of Medical Officers are reserved for medico-legal autopsies and they can always have guidance from senior pathologists and forensic experts, when required.

REQUIREMENTS OF A LARGE HOSPITAL

The autopsy section should be located a little away from the main Hospital and should have its own entry exit to facilitate movements of the mourners, transport of the cadaver and proper handing over the body after autopsy to the relatives for further disposal. The autopsy section should provide the following:

a)  Office for the Medical Officer

b)  Units/ rooms for performing autopsies

c)   Mortuary

d)  A room for delivering the dead body

e)   A servants’ room

f)    A room for special procedures on the Dead

g)   Rooms for laboratory and radiological procedures, storage, maintenance of records, etc.

h)  Shade/ waiting room for the relatives

i)    Adequate sanitary facilities

a)  OFFICE FOR THE MEDICAL OFFICER

Here the Medical Officer can study the relevant documents, such as case papers, dead body challan, inquest report, etc., and can view the x-rays. He can also obtain additional information either from the police or from the relatives accompanying the dead body. Depending upon the suspected cause of death, he can plan out the procedures to be adopted at the time of performing the Autopsy; further, yeah can refresh his memory (quickly) by referring to standard textbooks, to avoid any omissions while conducting the autopsy; further, he can refresh his memory (quickly) by referring to standard textbooks, to avoid any omissions while conducting the autopsy. He can have the autopsy reports typed. He can contact the police or the relatives after the autopsy is over. Both internal and external telephones should be available in this office.

b)  UNITS/ ROOMS FOR PERFORMING AUTOPSIES

There should be provision of three units/ rooms for performing autopsies-

• One for, medical autopsy,
• Another for, medico-legal autopsies,
• And the third one as a spare unit.

The first two units should have a gallery type or a stepwise arrangement to accommodate 25- 30 students at a time. The third unit need not have such an arrangement. The floor and the walls of the autopsy units should be lined by glazed tiles. 

In each autopsy unit there should be two tables-

• One, standard autopsy table
• And another table with a marble top for carrying out further separation of the viscera, or dissection of individual systems or organs.

There should be arrangements for adequate water supply at each of these tables, and for the proper drainage of water, and blood stained and other discharges from the centre of each of these tables. Each autopsy unit should have two sinks (one each for dirty and clean work) and one wash basin.

Each unit should have ample natural light; however there should be provision for adequate artificial light, which may be supplemented by adjustable lights for a proper view. There should be adequate ventilation, and sufficient number of exhaust fans. Alternatively, these units should be air-conditioned. Facilities for closed circuit television system should be provided at suitable places in the autopsy room and at some places in the Hospital for teaching purposes.

Each unit should display charts to show the average weights of organs of the body. There should be x-ray viewing boxes and black boards in each of these units.

c)  MORTUARY

This is a place where the dead bodies are kept till they are ultimately handed over to the relatives or others for further disposal. The mortuary should have refrigerated boxes to keep the bodies cool; otherwise the latter would emanate foul smell due to decomposition. In a 1000 bed Hospital, there should be provision normally to keep 16- 20 dead bodies. However, it is advisable to have 28- 32 compartments to meet additional requirements following a major disaster.

The importance of preserving the dead body at refrigerator temperature cannot be overemphasized in a tropical Country.

d)  A ROOM FOR DELIVERING THE DEAD BODY

The dead body is brought in this room after it has been washed well in the autopsy room. The body is placed over a table. The relatives are called to identify the body, which is then dressed according to the religious customs. Minor traditional and religious rights can be performed at this place. It is necessary that the medical officer should be present while handing over the autopsied body either to the police or to the relatives.

In case of medico-legal autopsies, it is necessary, though not always practiced, to hand over the body to the police and not to the relatives. In case of medical autopsies, the body can be handed over to the relatives. In either case a receipt for having delivered the body should be taken and the same preserved.

e)  A SERVANTS’ ROOM

A separate room should be available for servants who are on 24 hours duty either for autopsy work or for receiving the dead bodies.

f)    A ROOM FOR SPECIAL PROCEDURES ON THE DEAD

Here cornea from a dead body or other organs may be removed for transplantation purposes. A refrigerator should be provided to preserve the organs removed for transplantation. This room should be preferably air conditioned.

g)  ROOMS FOR LABORATORY AND RADIOLOGICAL PROCEDURES, STORAGE, MAINTENANCE OF RECORDS, ETC.

Although these rooms should be of small size, they should be separate as they serve a definite purpose.

One room is used for storing the various organs removed at the autopsy, till they are despatched to the respective departments for further investigation. There should be adequate number of buckets/ trays and big sized glass jars to preserve the autopsy organs.

One room should house a side laboratory, where minor laboratory tests such as staining by Gram’s Method, or Ziehl-Neelsen’s method, examination of urine for sugar, simple tests for detection of poisons, etc, can be performed. Further, a freezing microtome or a cryostat can be installed in this room, and histological sections can be prepared, stained and examined.

All the stores of the autopsy section can be placed in one room. The stores include miscellaneous items such as test-tubes, glass jars, enamel buckets and trays, linen inclusive of gowns and masks, rubber gloves, cotton, formalin solution, first-aid equipment, new and discarded instruments, etc.

There should be one room for maintaining the medico-legal records, such as police inquests, autopsy reports, etc.

One room is provided for preserving material to be sent to the chemical examiner.

In one room, a suitable x-ray machine should be installed to facilitate taking of radiological plates of dead body, before, after, or during autopsy. A side room attached to this room should be used for developing an x-ray plate. The side room can also be used for developing and preparing photographs of the medical and medico-legal importance.

Gas connection should be provided in the autopsy units, room for special procedures and in the laboratory.

REGISTERS TO BE MAINTAINED IN THE AUTOPSY SECTION

It is advisable to maintain five types of registers in the autopsy section-

• Two general registers medical and medico-legal Autopsies,
• Two report registers for medical and medico-legal autopsies, and
• One mortuary register.

Entries in all the five registers should be made in the autopsy section only, and these registers should not be removed from this section under any circumstances.

h)  A SHADE/ WAITING ROOM FOR THE RELATIVES

This area is meant for the relatives who are required to wait till the autopsy is over and the dead body is handed over to them. This place should be a little away from the main autopsy section/ complex and the relatives should not have easy access either to the mortuary or to the autopsy units. After the body has been autopsied and brought to the room meant for delivering the dead body, a few of the relatives should be called to this room and body is handed over.

i)    ADEQUATE SANITARY FACILITIES

Adequate sanitary facilities should be provided to the Medical Officers, servants and to the relatives at respective places.

REQUIREMENTS OF A SMALL HOSPITAL

In a small Hospital, where the number of autopsies performed per year does not exceed 20-25, the requirements of the autopsy section cannot be as stringent as those in a larger Hospital. Nevertheless, the basic needs of the autopsy section must be fulfilled adequately. Thus, there must be one room for performing an autopsy (one unit), one room to function as a mortuary, and one room for delivering the dead body to the relatives. The other functions of the autopsy section can conveniently be carried out in the main Hospital premises.

Navin Kumar Jaggi

Aashna Suri

The post Requirements of an Ideal Autopsy Section appeared first on Legal Desire Media and Insights.

• Source, whether human or animal
• Whether bones belong to one or more individuals
• Age
• Sex
• Stature
• Race
• Identity
• Special features
• Cause of death, and
• Time since death

Source, Whether Human Or Animal:

The source can be easily determined from:

1. Gross anatomical characteristics
2. Microscopic characteristics
3. Chemical analysis of Bone ash

When doubt exists, precipitin test may settle the issue. It is necessary to examine the nutrient canals for the presence of red lead or some other stains to exclude the possibility of bones being from the dissection hall.

Belong to more than One Individuals:

Sometimes, a mix up of bones may occur due to more than one person being buried in the same area. This can be determined from the number of bones received for examination, noting the side to which they belong, and checking for their fitting, duplication and morphological similarities. For example, if the skull belongs to a female aged about 20, other parts should also be of a female about that age. Similarly, there can be only one right humerus. However, supernumerary ribs, toes and fingers must be borne in mind. A skeletal chart denoting which bones are present provides a permanent record of what the examiner had available for making his assessment.

When there is comingling of skeletal remains, bones can be segregated by use of short wave ultraviolet light when the bones reflect a variety of colours due to the organic and inorganic elements contained in them. The bones of different persons emit different spectrum. Other methods of detecting comingling include x-ray comparison to trabecular pattern and neutron activation analysis to distinguish the relative mineral contents.

Age:

This can be determined from the state of epiphyses; state of teeth, if present, and lower jaw; calcification of laryngeal and coastal cartilages and hyoid bone; changes in the sacrum; closure of the cranial sutures; parietal thinning; condition of the symphyseal surface of the public bone; changes in the joints; histological examination of teeth and cross-section of mid-shaft area of femur, tibia or fibula.

Sex:

This can be determined from an examination of the pelvic bones, skull, first cervical vertebra, mandible, scapula, clavicle, sternum, ribs, and ball joints of long bones. Recognizable sex differences are present only after puberty.

Stature:

This can be calculated if a long bone such as femur, tibia, humerus, or radius is available in its entirety, using the formulae of Karl Pearson (not generally used now), Dupertius and Hadden, Trotter and Glesser, or multiplication factors devised by Indian workers. The length of the humerus multiplied by five is a rapid method of estimation of height.

Race:

An expert can determine it from an examination of skull, mandible and teeth, pelvis and limb bones.

Identity:

Mal-united fractures, healing fractures or deformities of bone and supernumerary ribs, if present, are helpful. When skull is available, superimposition photography and reconstruction of face may be attempted. An x-ray of any bone, if taken during life, may be compared with an x-ray of the same bone, and may help in identification. Determination of blood group antigens A, B and H from teeth pulp might also help in establishing identity if the blood group is known. It may be possible to obtain material for blood grouping from cancellous bone.

Special Features:

By a meticulous examination of the ends of the long bones, one can determine, if the bones are cut by sharp instruments or sawn through or gnawed through by animals and medulla eaten away. In bones that are gnawed through, spicules of cortical bone will be found depressed into the medullary cavity.

Cause of Death:

This is quite difficult to determine. Sometimes, there may be some clues. Fractures, especially of Skull, hyoid, ribs and other bones should be look for; knife scratches on the cervical vertebral bodies and other bone or joint surfaces, if found, are informative. Foreign body, such as a bullet, when present in a bone is helpful. An opinion on these features however is difficult since the antemortem evidences disappear rapidly after death.

Bones or their charred remains may be subjected to chemical analysis for the detection of metallic poisons, such as arsenic, antimony, lead, as these are not destroyed by heat. Neutron activation analysis technique helps to detect certain poisons in quantities far below the limits of conventional analysis.

Time since Death:

This is quite difficult to estimate. Bodies exposed on the ground maybe skeletonised even in a day if attacked by animals. However, an inference can be made from the following:

In the process of skeletonisation, soft tissues disappear first, then articular cartilage, and finally the ligaments. In case of fracture, examination of the callus after dissecting it longitudinally may give some clue as regards time. Bones are foul smelling and humid in recent cases (about 1-3 months). When they go through putrefaction, they lose organic matter and consequently become light and fragile. Such bones have dark or dark brown colour. The duration for putrefactive changes to take place in the bones varies from 3 years to 10 years, depending on various factors such as the age of the individual, the nature of the soil, and the manner of burial of the individual. Moist, muddy, clayey soil promotes putrefaction. Similarly, if the body is buried without any cover of clothes or coffin, which is quite common in India, the duration for putrefaction would be lesser.

Authors:

Navin Kumar Jaggi

Aashna Suri

The post Examination of Bones appeared first on Legal Desire Media and Insights.

1. Source, whether human or animal
2. If parts belong to the same individual
3. Age
4. Sex
5. Stature
6. Race
7. Identity
8. Special features
9. Cause of death, and
10. Time Since death

Source, Whether Human Or Animal: This can be easily determined from knowledge of anatomy. However, if there is the slightest doubt, or if confirmation of the source is essential, a part of the soft tissues, provided decomposition is not too far advanced, is sent in a dry condition to the chemical examiner, without adding any preservative, for the Precipitin Test. Alcohol, formalin and mercuric chloride when added as preservatives interfere with the Precipitin Test. The Anti-Globulin Inhibition Test is more sensitive than the Precipitin Test but highly technical.

In places situated near medical colleges parts of human bodies, improperly disposed of, may be sent for examination. It is easy to determine their source from the dark colour, formalin odour and presence of red lead in the blood vessels including nutrient canals of bone, and unnecessary work may be avoided in doubtful cases, by testing the fragmentary remains for the presence of formaldehyde.

If Parts Belong To The Same Individual: A mix-up of parts may occur in mass mishaps. The parts belong to the same individual if they can be fitted together and there is no disparity or duplication. Testing for similarity of Blood Group and Haemoglobin from different parts is suggestive.

Age: This can be determined from the state of epiphyses; state of teeth and lower jaw; calcification of laryngeal and coastal cartilages and hyoid bone; changes in the sacrum, closure of the cranial sutures; condition of the symphyseal surface of the pubic bone; changes in the joints; and colour of hair on the scalp, beard, mouse touch and pubis.

Sex: The prostate and non-pregnant uterus resists putrefaction for a long period. Gross and microscopic examination of the internal genitals, if available, will settle the issue. In their absence, the nature and characteristics of the soft parts and configuration of the pelvis are quite helpful. If only head is received, the sex can be surmised from the presence or absence of beard. Sex can also be determined by nuclear sexing or by sexing root sheath cells of human capital hair.

Stature: This can be determined, even from parts of mutilated body, as follows:

1. The stature of an individual is approximately equal to the length measured from the tip of the middle finger to the tip of the opposite fellow when arms are fully extended.
2. The symphysis pubis normally forms the exact centre of the body from 20th or 25th year onwards. Accordingly, stature is twice the length from the vertex (top of the head) or the heel to the top of symphysis pubis.
3. The height can be ascertained from one arm by multiplying its length by two and adding 30cms for the clavicles and about 4 cm for the sternum.

The height given by the relatives is likely to be misleading as it commonly includes the height of the shoes and hair. It should also be remembered that the corpse length is approximately two centimetres more than the living stature.

Race: This can be determined from hair and skin, if available, and from nasal bridge height, nasal aperture shape, facial prognathism, palate shape, incisors, the skull (cephalic index), pelvis, etc.

Identity: This can be determined from the fingerprints, dental status, and personal property such as clothing, ring, bangles, bracelets, watch, belt,etc, in close proximity to the body. Also helpful are the congenital features like moles and acquired peculiarities like tattoos, piercings, condition of the palms, stars, deformities and amputation marks, if any. Evidence of any disease, eg, gallstones, uterus fibroid, and appendectomy scar, when present render valuable aid in identification. Determination of blood group antigens A, B and H from teeth pulp might help in establishing identity if the blood group is known. Selected X-rays, dental X-rays and/or total body X-rays are helpful if antemortem x rays are available. Neutron activation analysis technique can render valuable aid in identification when comparison samples are available.

Special Features: Mutilation may be the work of:

1. Persons with Anatomical knowledge,
2. Others without such to knowledge,
3.  Animals, or
4. May result from decomposition changes.

Each has its own characteristics, and therefore the manner in which the parts are mutilated is quite important.

Persons with anatomical knowledge destroy identifying features, as in the well-known Ruxton case. Others, without such knowledge, disfigure the body haphazardly, as for example, by the use of saw, axe, or any heavy weapon. Animals attack the exposed parts of the dead bodies and produce ghastly wounds resembling haphazard mutilation. But, a careful examination will reveal if the bones are gnawed through by animals or cut by sharp weapons. In addition, animals generally eat away the medulla of long bones and spicules of cortical bone are found depressed in the medullary cavity. Separation of parts of the body is brought about by decomposition also. The natural sequence is: soft parts, articular cartilages, and ligaments. Separation of joints of the hyoid as a result of decomposition may be mistaken for a fracture.

Cause Of Death: This is quite difficult to determine. An opinion on the cause of death is possible when there is some evidence indicative of some antemortem violence, such as, injury to some large blood vessel or some vital organ or recovery of a bullet. It must however be remembered that mutilated fragments of the body decompose quickly and then antemortem changes disappear or become indistinguishable from postmortem ones. Sometimes, there may be some clues, such as, depressed fracture of the skull, fracture of hyoid, fracture dislocation of the cervical vertebra, severe injury to bones by a cutting instrument, fractures of several ribs which are incompatible with life, or presence of a bullet. Sometimes, chemical examination of the available material for evidence of poisoning may also help. Obvious signs of disease such as malignant growth of soft tissues, bones, etc, should be looked for.

Time Since Death: The probable time since death can be ascertained from the condition of the soft parts in relation to the process of putrefaction.

Authors:

Navin Kumar Jaggi

Sayesha Suri

The post Examination of Mutilated Bodies and Fragmentary Remains appeared first on Legal Desire Media and Insights.

By exhumation is meant lawful disinterment or digging out of a buried body from the grave. It is sometimes necessary (1) for purposes of identification, and (2) to determine the cause of death, when foul play is suspected. As the Hindus who form a majority of population cremate their dead within a few hours, exhumation in India is quite rare.

In India, no time limit is fixed for exhumation of a body. A police officer cannot order it as, normally the dead are not to be disturbed and, some sanctity is attached to the grave. Only a magistrate or a coroner can therefore order it in the interest of Justice.

An exhumation like all other examinations should be a planned operation and the following are the practical aspects of the procedure with the necessary precautions to be taken. The procedure can be divided into:

(1) General precautions

(2) Identification and opening the grave and collection of samples of Earth

(3) Identification of the coffin and collection of samples

(4) Identification of the body and its viewing by magistrate or coroner, and

(5) An autopsy, if necessary.

General Precautions:

Exhumation should be carried out under the supervision of the medical officer and in the presence of a police officer after obtaining a specific order from magistrate or coroner.The police officer provides witnesses to identify the grave, the coffin, and the dead body. It is necessary to carry out exhumation in early morning before cemetery is open to the public so that there is some degree of privacy and the whole process of digging, and an autopsy if required, can be completed during the day, and the reburial of the body effected.

Identification and Opening the Grave:

The grave is formally identified by the warden of the cemetery from the records, and the exact site by friends and relations who may have been present at the time of burial. The sexton and caretaker may confirm this identification procedure. A tarpaulin screen is erected around the grave. It is then dug up carefully to avoid damage to the coffin and its contents. In a suspected case of poisoning, samples of earth in a quantity of about 500 grams are collected from above, below and sides of the coffin and control samples at some distance from it in separate clean, dry, glass bottles for chemical analysis. It is advisable to be cognizant of the nature or geological layout of the cemetery and direction of any water drainage. If the grave is waterlogged, samples of water should also be taken.

Identification of the Coffin:

The coffin top should be cleaned up and the name plate exposed. This should be identified by the original Undertaker who made it, and its photograph is of value. The coffin can then be raised to the surface, and before examining the contents the lid is lifted to allow the escape of gases. To avoid inhaling offensive gases, one should stand on the windward side and use a gauze mask to cover the face. If the coffin contains water, it should be drained off, the total volume with sludge measured, and sample collected for analysis. Further samples are collected from coffin wood and burial clothes to exclude any possibility of contamination from external sources.

Identification of the Body

An attempt is then made to identify the body by any person who was present when the body was placed in the coffin. The magistrate or coroner views the body and orders for reburial or an autopsy, if necessary.

Autopsy:

Disinfectants should not be sprinkled on the body and care should be taken to ensure that gloves worn are in a perfect condition. A full autopsy must be carried out in the usual manner preferably in the mortuary when possible or near the grave yard, and the autopsy report duly prepared. The following hints are important.

It is absolutely necessary that the doctor should have complete history of the case so that his attention properly directed to important points. The body should be photographed and if necessary x-ray examination of the body should be undertaken. The injuries, if any, should be described in detail. Since soft tissue injuries may disappear due to decomposition, fracture of the bones such as the skull, hyoid and ribs, should be specially looked for. The possibility of such fractures being produced during the process of digging should be kept in mind. It should be remembered that ununited pieces of sternum, costal cartilages and epiphyses of long bones may also be mistaken for fractures in children.

Any organ or part that may appear to offer any evidence should be removed for further examination and/ or chemical analysis of the chemical examiner. If organs are not distinguishable, masses obtained from the areas of these organs should be preserved. If viscera are not present hair, nails, teeth, bones and skin should be collected.

Before leaving the place, the medical officer should ensure that he has taken all specimens that may be required for subsequent examination as it may not be possible to re-examine the body, once reburial has been effected.

Authors:

Navin Kumar Jaggi

Aashna Suri

The post Read to Know: All about Exhumation appeared first on Legal Desire Media and Insights.

After the chest is opened the pleural sacs are inspected by lifting the lower lobes of both lungs out of the chest. Normally, the pleural cavities do not contain any appreciable quantity of fluid. If fluid is present it must be collected and measured. A specimen can be taken for microbiologic and other studies.

Before the lungs are removed, adhesions must be broken with fingers. If the adhesions are too dense the pleura should be stripped from the inner chest wall and the diaphragm so that the lungs are attached at the hilum only taking care not to lacerate the lungs in the process. The oesophagus is clamped or severed between a double ligature at the level of the diaphragm to prevent spillage of stomach contents. This is particularly important in suspected poisoning cases where collection of samples for toxicological examination is necessary.

The heart-lung block is then removed from the thoracic cavity and laid on the dissection table, anterior surface downwards, and posterior surface facing the dissector. The oesophagus is slit opened longitudinally, examined, separated from the mediastinal organs and back of trachea using scissors, and then removed. The trachea and main bronchi are usually opened along their posterior membranous walls and examined. Anterior incisions in situ are indicated in cases of aspiration and drowning.

The lungs are inspected and palpated. The degree of pulmonary oedema can be recorded by weighing. If fixation is required, one lung could be utilised for this purpose. About 3 centimetres of one main bronchus can be left for fixation of this lung. The other lung is dissected in the fresh state to obtain material for culture and smears and for any evidence of pulmonary oedema and embolism which are best assessed in the fresh lung.

The lungs should be described with special reference to their position in the thoracic cavity, size (measurements), edges, colour, consistency, weight and appearance on cut surface- cavity, consolidation, collapse, oedema, embolism, abscess, emphysema, and relationship to other structures, eg, bronchi and blood vessels.

The pulmonary bronchi are opened from the hilum towards the periphery. The pulmonary arteries are opened after the heart is removed from the lungs are turned anterior surface upwards. The lungs are cut along the longitudinal axis through the hilum in coronal plane or across the broader dimension in the sagittal plane. The left lung is cut first and then the right. The cut surfaces of the lungs, cross section of the bronchi and their ramifications, and blood vessels are examined for consolidation, oedema, emphysema, atelectases, congestion, petechiae, foreign body, mud, sand, soot, thrombi, emboli, etc. The diagnosis of pulmonary fat emboli can be confirmed by microscopic examination of the frozen section of the lungs stained for fat. In criminal abortion when soapy fluids have been injected, it is also possible to demonstrate soap in the lungs. After examination of lungs, the hilar lymph nodes should be opened along their longest diameter.

There are many special techniques for fixation of the whole lung. The most simple method is to suction off mucus or purulent materials from the bronchi and then to inflate the lung with 10% formalin solution through the main bronchus. The solution can be delivered from a bottle 50 cms above the specimen. Subsequently, a ligature is tied around the bronchus and the lung is floated in a formalin bath. The lung can be cut into slices as required even after a few hours but about three days are needed for proper fixation. Formalin irritates less if the slices are inspected underwater.

Author:

Navin Kumar Jaggi

Sayesha Suri

The post Dissection of Lungs appeared first on Legal Desire Media and Insights.

In Mann vs Brodie, Lord Watson suggested that the basis for the constitution of a public right of way by prescription was nothing other than continuous user over the prescriptive period. In doing so, he dismissed the views of others that the basis is presumed consent, or presumed grant, and we respectfully agree with the view which Lord Watson expressed and it is one of which we adopted in the context of servitude rights.

In examining the basis for constitution of public rights of way, it is strange that Ferguson considers only two possible methods for constituting one, namely express dedication and prescription. He does not mention the approach taken by Napier, namely that rights of way (or possibly only public rights of highway) are part of the jus coronae, or indeed Mann vs Brodie, but rather espouses the view of Lord Justice-Clerk Hope in Napier’s Trustees vs Morrison that the basis is possession, leading to an interference that a grant had been made at some time. This approach is inconsistent with that of Lord Watson in Mann vs Brodie that is more representation of the law of Scotland. However, as Ferguson accepted, express dedication is unlikely, but it has been recognised in reported cases as one method of constitution, and something akin to it can be seen in the constitution of routes such as the West Highland and Southern Upland Ways.

OTHER RIGHTS

Until the eighteenth century, the most frequently used roads were drove roads, but in the late seventeenth century a series of acts were passed requiring tenants, cottars and servants to contribute labour for the maintenance of roads – “statute labour roads”.  

So far as rights of way are concerned, it is difficult to identify these as distinct from highways in earlier times but, according to the Scottish Rights of Way Society Limited, reporting in 1995 after 150 years in existence, there are now 9584 public rights of way in Scotland.

HIGHWAYS AND PUBLIC RIGHTS OF WAY

SIMILARITIES

Each is used by the public to go from one public place to another and the solum of the road or public right of way remains with the original proprietor. 

Use by Public: The institutional writers mention highways, or the king’s highway, and make it clear that these routes are open to all. They are mentioned by institutional writers in the context of other public rights, which are part of the regalia majora. Stair gives two examples of a right of way, only a route from one burgh to a public port, and Brankton mentions highways leading to and from market towns tuition and sea ports.

Public Termini: It is clear from what has been said that highways, lead from one public place to another and this is also one of the requisites of a public right of way.

Solum: So far as the ownership of the solum of highways and public rights of way is concerned, at one time, the sola of both were thought to belong to the public, as can be seen in passages from the institutional writers and reported cases. It remains possible that land for a road has been acquired by a road authority buy modern procedures such as compulsory purchase, in which case the right of dominium will belong to the roads authority.

DIFFERENCES

Acquisition- several of the institutional writers have classified the right of highway as being within the regalia majora or as res publica. There are judicial dicta to similar effect. The exact meanings of these terms are unclear but both relates to the basic notion that the right of Highway is held by the Crown in some form of trust for the general public. In Mann vs Brodie, Lord Watson seemed to indicate that a right off highway could be acquired by prescription. As the ownership of the solum vests in the co-terminous proprietors, provided they have habile title right of highway can presumably be acquired by Express grant.

Termination- right of way may be lost by non-use over the prescriptive period of 20 years. The view that can be taken is that a right may be lost bye abandonment, as maybe the case where the land subject to a public right of highway has been altered to such an extent that physical exercise of the right is impossible.

Ancillary right- while there is authority in England for the view that anyone using the highway for anything other than passing and repassing is trespassing, this is not the position in Scots law. However, a public right of way is limited to passing and repassing and, thus, the right to place stances for cattle on rights of way is not recognised in Scots law.

Obstruction- while the public right of way is for passing and repassing, it is nevertheless recognise that the owner of the solum may erect gates, or stiles, provided that they do not interfere unduly with entitlement of the public to access and egress. Where there is an obstruction, the onus is on the owner of the land to justify its presence and there is authority for the proposition that an obstruction may be pulled down if it obstructs a public right of way.

SERVITUDES OF WAY AND PUBLIC RIGHTS OF WAY

Public rights of way resemble servitudes of way in that the function of both is similar, i.e. providing access. However, it would be a mistake not to recognise the essential differences between the two, which are as numerous as the similarities. We have touched on this point in relation to servitudes, but it is useful to restate the position here. In Thomson vs Murdoch, Lord Deas mention five points of distinction, and fifo Only four of which remain. These are:

1.   The title to sue in a right of way lies with every member of the public; in the case of a servitude, it lies only with the proprietors of the dominant and servient tenements;

2.   The effect of the action is different in that in the case of a public right of way, the degree granted is res judicata for or against the whole public; in the case of servitude, it is res judicata as between the owners of the dominant and the servient tenements and their successors and is not binding on anyone who was not party to the cause;

3.   The public right of way is for the public; a servitude is not; and

4.   In the case of a public right of way both termini must be public places; in the case of a servitude, neither need to be a public place. (The Fifth distinction related to the jurisdiction of the sheriff.)

In addition, a public right of way only a servient tenement whereas a servitude right has both a dominant and servient tenement. Lord Curriehill also commented on the differences. He mentioned two others, namely proof and remedies. As Rankine observed, however, Lord Curriehill is not to be taken to mean that visitors cannot use a servitude of way, nor that the owner of the solum of a public right of way is under any obligation to ensure that the route is fit for all public purposes.

Navin Kumar Jaggi

Aashna Suri

The post Basis of Public Rights of Way and Comparison with other Rights appeared first on Legal Desire Media and Insights.