Writing Opinion on Sexual Assault

Although I had four lectures to complete 'sexual offences' I was unable finish with 'writing opinion on sexual assault'. Therefore, I am writing this article explaining how to write the opinion at the end of the medico-legal examination of a victim of alleged sexual assault. 

After the examination is complete the forensic medical examiner is supposed to give a preliminary opinion to the accompanying police officer so that they will be able to decide what further action they should take with regard to the case.  Subsequently when the summons is received from the court the doctor should send a Medico-Legal Report, which should include their ‘opinion’ inter alia other information. Unfortunately this opinion has to be based, more often than not, on the physical findings and not on the results of forensic science investigations. 

Since ‘rape’ is a legally defined term the doctor should never use it in his/her report.  The court would arrive at their verdict as to whether the alleged victim has been ‘raped’ by the accused only after the court trial is concluded. In the same way the doctor should not use other legally defined terms as well, which describe particular sexual offences, such as ‘incest’, ‘grave sexual abuse’, ‘unnatural offences’ etc. Their duty is to express the opinion about whether particular sexual act has occurred as alleged by the alleged victim or suspected by any other party such as police, parents or social workers. For instance when the doctor concludes that there has been peno-vaginal penetration the court's duty is to decide whether it is ‘rape’ or not.  

When expressing opinion on cases of alleged sexual abuse the doctor can make use of ‘general’ injuries as well as ‘genital injuries’. When the alleged victim presents with ‘general’ injuries the doctor is generally required to express his/her opinion whether they are consistent with the alleged history or suspicion of ‘restrain’ and ‘resistance’ during the sexual act. When there are ‘genital’ injuries the doctor’s duty, in terms of opinion, is to conclude whether they are consistent with the alleged or suspected sexual act. Using these various opinions is the duty of the court to arrive at most appropriate verdict. 

Different kinds of opinion on genital injuries  

1.       Absence of injuries to the genitalia is inconsistent with the alleged sexual act.

For instance, a man is alleged to have sexually penetrated an eight year old girl, who does not have a previous history of sexual experience, twelve hours ago. She complains that she had bleeding per vagina and severe pain during the penetration. The doctor’s examination is negative. Since the doctor may expect to see some form of an acute genital injury according to the history they would express that the ‘absence of injuries to the genitalia is inconsistent with the alleged sexual act’ at the conclusion of their examination. Nevertheless, they should qualify their opinion by adding that ‘it does not mean that a sexual act which is unlikely to leave signs has not taken place’.

2.       Absence of injuries to the genitalia is not inconsistent with the alleged sexual act.

A married woman alleges that she has been 'raped' by a man twelve hours ago.  The medico-legal examination is negative. Since 'rape' of married women does not usually leave signs the examining doctor would tell the police that the 'absence of injuries to the genitalia is not inconsistent with the alleged sexual act'. 

3.       Presence of certain changes (redness and oedema) was unlikely to be due to a sexual act as there are many natural causes for these changes irrespective of whether there is an allegation or not.  These kinds of difficulties usually occur in cases of child sexual abuse as there usually is no proper history. The doctor should exclude all the other possibilities preferably with the help of a paediatrician. They should re-examine the child especially there is an allegation of a sexual act. They should also add that even if these changes are due to natural causes it does not automatically exclude the possibility of sexual abuse as many forms of sexual abuse do not leave signs.

4.       Presence of certain injuries (abrasions and bruises) in the genitalia is likely to be due to a sexual act especially when there is an allegation. However, before expressing this opinion the doctor should exclude natural causes such as bleeding disorders and excoriation of skin and other forms of trauma such as accidental injuries.

5.       Presence of certain genital changes e.g. deep posterior notch is likely to be due to a past sexual act even in the absence of specific allegation especially in pre-pubertal girls. (In pubertal girls there is no enough scientific data to come to such a conclusion.)

6.       Presence of certain acute or healed injuries (hymenal and posterior fourchette tears and ‘transections’) strongly indicates a penetrative sexual act specially in the absence of accidental penetrative injury.

7.       Presence of certain changes (spermatozoa in vagina and pregnancy) definitely indicates sexual contact  but not penetration. It is known that spermatozoa are able to migrate into vagina when deposited on the vulva and though very rare a woman can get pregnant by such an occurrence.

These are the different kinds of opinion a forensic medical examiner would express at the conclusion of their examination. There is no hard and fast rule about the 'style' of opinion one is supposed to provide. As long as the message is correctly understood by the receiver, (the police lawyers and court), the 'style' does not matter.

Priyanjith Perera

17/01/2013

 

Principle of Double-Effect and Assisted Suicide

I hope that you can remember one of our case scenarios of recently concluded 'small group disscussions' and 'Medical Ethics Seminar', which dealt with the 'principle of double-effect'. The scenario was as follows:-

 

A 72-year-old man with a terminal cancer was discharged from the hospital as there was no room. The consultant approached his relations and told them that if they could afford he would get a better care in the X private hospital, in which he was a major share holder.  He was also prepared to give them a substantial discount. Nevertheless, the relations declined the ‘offer’ as they couldn’t afford it. 

 

At home the patient was being looked after by his General Practitioner. He attended him every week at home and prescribed pain killers as he was experiencing severe pain. Since the oral pain killers became inadequate the doctor started morphine injections. 

 

One day the patient confided in with the doctor that he wanted to commit suicide because the pain is unbearable. He also asked the doctor to help him to achieve that, which doctor flatly refused.

 

Meanwhile the patient became resistant to the therapeutic doses of morphine. As a result the doctor gradually increased the dose to as much as twice the recommended daily dose.

 

The day in which the morphine dosage was increased to that level the patient passed away peacefully in his sleep.

 

Discuss the ethical and legal issues.

 

Although a few ethical and legal issues can be identified in this case scenario I would highlight two ethical issues in this discussion. They are 'assisted suicide' and 'double-effect'.

 

Assisted-Suicide

 

Assisted-suicide is different from euthanasia. It is to help some one to commit suicide as the term implies. A doctor supplying a powerful sedative to a patient so that he can use them to commit suicide would be considered to have assisted him to commit suicide. Other than supplying the means of committing suicide (can be medications or any other means) the doctor (or any body else for that matter) does not have any active involvement in the death.

 

In terms of doctor's intention and active involvement in the death of the patient they both should be present in order to call it 'euthanasia'. In other words it is defined as killing a person with intention of relieving pain and suffering.

 

Assisted suicide is illegal in Sri Lanka though committing suicide or attempt to commit suicide is not illegal. It is illegal in many countries including UK, Australia, Germany. Nevertheless In Netherlands assisted-suicide and euthanasia (voluntary) are both legal since 2002.

 

This is a good example of the maxim 'some of the ethical and legal principles do not have universal application'. One day a student asked me whether not-aborting a genetically malformed infant is ethical. The answer I had insofar as the law and ethical principle are concerned was that they depend on the country where we discuss these matters. The perfect example is euthanasia and assisted suicide. Whereas there are illegal and unethical in Sri Lanka it is both legal and ethical in Netherlands. However, even in Netherlands they should be conducted under strict guidelines. Every case of euthanasia and assisted-suicide should be referred to a review committee. They will scrutinise them to see whether they have been done according to the guidelines. If not the doctor may be prosecuted in a court of law of unlawfully killing.

 

Principle of Double-effect

 

This was originally suggested by Thomas Aquinas, a Catholic philosopher and theologian lived in the 13 century Italy. He argued in his famous treatise ' Summa Theologica' that unintentional bad effects happened during an action of good intention can be justified. For instance killing a man in self defence can be pardoned as the good intention is to save one's life (which is the good effect) and killing of the man is the unintended bad-effect. Nevertheless  if the way of killing is not proportionate to the act it can not be justified. This Roman Catholic doctrine is now applied to the 'end of life decisions'. This is permissible only if the action has at least one possible good effect in addition to the bad effects and four conditions or proviso's are met. They are

 

1. The action must not be immoral in itself.

2. The action must be undertaken with the intention of achieving only the good effect. Possible bad effects may be foreseen but must not be intended.

3. The action must not achieve the good effect by means of a bad effect.

4. The action must be undertaken for a proportionally grave reason (rule of proportionality).

 

According to this principle in order to make it permissible all the means of relieving pain and distress to the patient should have been exhausted, the patient should be in the 'end of life' situation, the intention should be to relieve pain although foreseen, the harmful side effects should not be intended, there should not be any safer or reliable alternative, the patient him/herself or surrogate should be consulted before commencing the treatment and the risk of such serious side effects should be proportional to the suffering.   http://theoncologist.alphamedpress.org/content/5/1/53.full 

 

Therefore, in this case scenario the doctor's action of giving twice the dose of morphine to relieve the pain can be justified even if he died as a result of overdose of morphine as he (doctor) seemed to have not intended to kill the patient. 

 

Priyanjith Perera

15/12/2013      

Homicidal Cut Throat with Defence Injuries

 

This man was found dead at home with a cut injury (incised wound) on the neck. The most pertinent question raised by the police was whether this was a homicidal or a suicidal cut throat. It was rather an easy question in this case as the presence of so-called 'defence injuries' on the hands and another incised wound on the left forehead had already solved that question for us. If he had not sustained the defence injuries and the injury on the forehead it (the decision as to the manner of death) would have to be done only on the features of the 'cut injury on the neck' ('cut throat').

 

As is shown in this picture the homicidal cut throat injuries are generally horizontal, deepest at the centre, tend to be lower on the neck, with clean edges (as the neck is usually stretched in homicidal cut throat the edges tend to get cleanly cut), sans 'tentative' cuts, with defence injuries and with cut injuries on other places.

 

Suicidal cut throat injury is more vertical or rather starts from one side of the neck depending on the handedness of the victim, extends downward and then horizontally across the front of the neck. As it progresses downward it becomes shallower and shallower. There may be tentative cuts (or hesitant cuts) around the beginning of the  injury. The edges may be irregular as the neck is not as stretched as in homicidal cut throat. There are no 'defene injuries' or cut injuries to other places. However the victim may have cuts on the wrists from trying unsuccessfully to kill him/herself by injuring the radial artery. There may even be self-inflicted stab injuries to the chest and abdomen or telltale signs of other methods of suicide.

 



 

Defence injuries. They are usually found on the hands, a result of grabbing the knife and/or forearms, upper arms, hands and sometimes even the lower limbs, a result of warding off the attack. Presence of defence injuries tells the pathologist  that this should be a homicide and the person was alive and capable of putting up a resistance at the time of attack. 

 

Defence injuries on the back of the hand. Likely to have sustained as a result of warding off the attack.

 

Cause of Death

 

Cut injury to the neck (cut-throat)

 

Mechanisms of Death

 

There are several mechanisms from which the victim could die. The commonest may be shock and haemorrhage from carotid artery or jugular injury. Aspiration of blood through the cut trachea may cause asphyxial death. The victim may also die from 'air embolism' as negative pressure in the neck veins may cause air to be sucked into them when cut. Rarely cut of the cervical spine may be the cause of death.  

 

Priyanjith Perera

10/01/2013

 

 

Methods of Torture - Lecture Notes

Definition of Torture

 

Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. 

I took this definition of torture from the United Nation’s Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). This was open for signatures from February 1985. Even if Sri Lanka did not signed it at that time we ratified this convention by introducing a law against torture in 1994 (Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Act, No. 22 of 1994).

Even before the CAT (Convention against Torture) was signed  human rights and torture were addressed in many other international declarations. 

Article 55 of the UN Charter signed in 1945 demands for universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.

Article 5 of Universal Declaration of Human Rights says “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”.

In the article 7 of International Covenant of Civil and Political Rights it is said that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

When we concentrate our attention to the national scene the first ‘legal’ prohibition of torture comes in the section 6 of the Kandyan Convention signed by then British Governor of the maritime provinces of Ceylon on behalf of his King in Great Britain and the Kandyan Chiefs. It states that every species of bodily torture and mutilation of limb, member or organ are prohibited and abolished.

Then comes the constitution adopted in 1978. Article 11 states that no person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Finally the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Act, No. 22 of 1994 ratifies the UN CAT and makes torture a criminal offence in Sri Lanka. The definition of torture it adopts is as follows:-

"torture" with its grammatical variations and cognate expressions. means any act which causes severe pain, whether physical or mental, to any other person, being an act which is - (a) done for any of the following purposes that is to say -(i) obtaining from such other person or a third person, any information or confession; or (ii) punishing such other person for any act which he or a third person has committee, or is suspected of having committed ; or (iii) intimidating or coercing such other person or a third person; or done for any reason based on discrimination, and being in every case, an act which is done by, or at the instigation of, or with the consent or acquiescence of, a public officer or other person acting in an official capacity.  

 

Incidence of Torture 

No country is immune from torture. Even in the west, though there is no state sanctioned torture within their national boundaries, their soldiers, who had been posted outside their countries, were reported to have engaged in practise of torture as their counterparts in third world countries. 

 

In 2004 it came to the public attention that in Abu Gharib Prison in Iraq the American soldiers were engaged in physical, psychological and sexual abuse of prisoner including torture, sodomy and homicide. Some of the perpetrators of this crime were court marshaled, dishonourably discharged and imprisoned by the American Government. 

http://en.wikipedia.org/wiki/Abu_Ghraib_torture_and_prisoner_abuse.)

 

The infamous Guantanamo Bay Detention camp in Cuba maintained by the American Government is another example. It had housed and still houses hundred of prisoners connected with Iraq and Afghanistan war since early 2000s. It is reported that various forms of torture has been used on prisoners during interrogation including sexual degradation, forced drugging and religious persecution, pepper spray, beatings, torturing with broken glass, barbed wire and burning cigarettes, sexual assaults, sensory deprivation and stress positions, sleep deprivation and forced drug injections. (http://en.wikipedia.org/wiki/Guantanamo_Bay_detention_camp)

 

Torture Characteristics

 

The objective of torture is to inflict severe pain and/or psychological suffering to the victim without killing them. If they die as a result it is usually an unexpected outcome. The torturers are trained in sophisticated and brutal techniques of physical and psychological abuse. The relationship between the victim and the torturer is characterised by anonymity and the former is entrapped in a double blind situation. (The victim cannot escape from the situation. The dilemma is that whatever the response may be, it is going to be ‘wrong’ in the eyes of the torturer). By definition it should not be an extreme expression of rage. Although the techniques of torture must produce pain it is not applied to the body indiscriminately. Therefore, ideally the torturers are trained to inflict extreme pain and should know when to stop just before the victim is dead.

 

Purpose of Torture

 

Torture is used as tool by the states as well as non-state agents to achieve different purposes. In places where there is political unrest it is used to suppress and intimidate the dissidents. Sometimes it is used to obtain confession about the ‘wrongs’ the victim or their organisation supposed to have done and information about their colleagues, activities, future plans etc. Torture can destroy the identity of the victim and make them collaborators too. 

 

Torture Methods

 

Methods of torture are different from country to country, region to region and village to village so much so that classification of them has become difficult apart from a few well-known and universal, as it were, methods of torture.  The torturers of different countries seem to have a common training program in terms of these few methods of torture. For instance 'falanga' is practised by almost all the 'centres' of torture whereas 'burning with lighted mosquito coils' may be practised by only one country to my knowledge. 

 

Suspensions

 

Parrot's Perch (Pau de Arara)(the Chicken)

 

Pau de Arara means in Portuguese 'macaw's perch'. It is said to have 'invented' by the Brazilian dictatorship who ruled Brazil from early 60's to mid 80's. A wooden pole is inserted between the knees and the forearms after wrists were bound or hand-cuffed in front of the shins. Then the pole is suspended horizontally. In this position the victim is hung for several hours and assault. The victims can be subjected all sorts of other torture such as electric torture, water pouring into nostrils etc. at the same time. It will cause severe muscle and joint pains.

 

 

Palestinian Hanging

 

The victim is hanged with wrists tied behind his back. This is also called 'strappado' and 'reverse hanging'. This has been used to torture people since medieval times. It causes intense pain and possible dislocation. While it may not cause external injury all the internal structures of the shoulder join may damage.

 

Other Types of Hanging

 

Hanging from wrists, ankles and thumbs are few different varieties of hanging practised all over the world. After hanged the victim may be subjected to other forms of torture.

 

Hanging from Feet with Electric Torture to Genitals

 

 

Hanging from Wrists

 

Fixations or Painful Stress Positions

 

The Motorcycle

 

The victim is seated on a chair, wrists handcuffed behind the back of the chair. The legs are brought around to the sides, the hips and knees flexed as tightly as possible. Then the legs are raised and put on chairs set on each side of the victim, causing intense pain in the knees. Further pain is induced by pressing the calves against the thighs. The victim is made to wear a helmet which was hit repeatedly, producing a deafening noise inside.

 

The Other Painful Stress Positions

 

Standing Perfectly Still for Hours, making them to perform exhaustive repetitive exercises such as standing up and sitting down until victim collapses,  Pigeon rope tightening (tightly binding a prisoner with his/her arms drawn up behind them by rope in such a manner that the victim is unable to move his/her body); clock torture (standing on one leg with both arms stretched out to mirror the hands of a clock and the other leg swinging like the pendulum of a clock); "motorcycle torture" (forcing a prisoner to imitate for hours on end the physical motions of riding a motorcycle); and endlessly repeating the process of sitting down and standing up.

 'Tortoise Cage' where the prisoner is put in a extremely small cage and is unable move due to smallness of the space available. 

 

The Shabeh combination

Shabeh is the combination of methods, used for prolonged periods, entailing sensory isolation, sleep deprivation, and infliction of pain. Regular shabeh entails shackling the detainee's hands and legs to a small chair, angled to slant forward so that the detainee cannot sit in a stable position. The detainee's head is covered with an often-filthy sack and loud music is played non-stop through loudspeakers. Detainees in shabeh are not allowed to sleep. Sleep deprivation is achieved by using the shabeh combination and by having the guard on-duty wake up any detainee who dozes off. Interrogators expose the detainee to an air-conditioner shooting cold air directly at him.

In other cases, interrogators force the detainee to stand with his arms tied behind him and to a pipe affixed to the wall.

In a third shabeh position, the detainee's arms are drawn backward and upward so that the upper body is forced forward and down.

http://www.angelfire.com/darkside/forgottendreams/TheShabeh.html

 

 

Another Example of a Fixed Position

 

 

 

Demonstration of 'banana method'

 

 

Demonstration of 'Shabeh'

Another Example 'Fixation'

Burning 

 

Cigarette Burns 

Burns with lighted cigarettes is a 'popular' method of torture so to speak. The distribution of these burns are usually on the front aspect of the trunk and limbs as the victim sitting or standing facing his/her torturer during interrogation. The burns are usually round or oval punched out lesions if the cigarette is stubbed out on the skin. 

 

Branded with Hot Objects

 

This has been used as a method of torture since medieval times. Type of instrument vary from place to place. I have seen a prisoner who had been branded with the hot clothe's iron. Burning fire wood and polythene have also been reported.
 

Electric Torture

 

Parrilla (The Cooking Grill or Barbecue in Spanish)

 

The was commonly practised in South American countries. The victim was stripped totally naked, then laid on his or her back on a metal frame, often a bed-frame. Then electric shocks were given through electrodes using a control box. A variety of methods were used to administer the shocks.

A common method was to fix an electrode to either penis or inserted to vagina and the other electrode was used to touch different places on the body, such as the feet, mouth, nipples, breasts and genitals. This caused excruciating pain, at both the place where the second electrode touched the body and in the penis or vagina of the victim and violent muscle contractions.  

 

Picana (Picana Electrica)

The picana is a wand or prod that delivers a high voltage but low current electric shock to a torture victim.The victim is undressed and then tied to a chair or table or hung upside down by the ankles. Often water is thrown over the victim to reduce the electrical resistance of the skin and to increase the effect of the shocks. The picana is applied to sensitive places on the victim's naked body, such as the head, mouth, genitals, breasts and nipples.

 

Beatings  

Falanga

 

One specific torture method is falanga which is systematic repeated application of blunt trauma to the soles of the feet. Since the connective tissues in the feet are dense bruises are rarely produced. Years after falanga, chronic pain in the feet and in the lower legs is common, often as deep, dull and cramping pain, and walking is impaired.

 

 

Asphyxiations

Submarino

The victims head is forced into the water filled with urine, feces, salt etc. until he almost suffocates. Then he/she will be rescued just before being drowned. If a doctor is present (as demonstrated in the picture below) he/she would check the vital signs and ask them to stop if he/she is going to die.

 

Water boarding

Water boarding is a form of torture in which water is poured over the face of an immobilised captive, thus causing the individual to experience the sensation of drowning. Water boarding can cause extreme pain, dry drowning, damage to lungs, brain damage from oxygen deprivation, other physical injuries including broken bones due to struggling against restraints, lasting psychological damage, and death. Adverse physical consequences can manifest themselves months after the event, while psychological effects can last for years.

 

 

Picture Depicting Water-Boarding

 

A Demonstration of Water-Boarding

 

Dry Submarino

 

In  “dry submarino” any impermeable material, such as a plastic bag is held over the face or head until the victims is asphyxiated. Sometimes a small amount of petrol is introduced to the plastic bag. Since there is direct pressure over the face and neck, and since the victim is likely to struggle, it may be that the classical signs of asphyxia are more evident, but not necessarily, as may be other signs of struggle such as abrasions and bruising around the face and neck. In parts of Central Asia, a gas mask with the filter blocked has been used to obstruct the external airways. 

 

Sexual Torture

 

Any form of sexual torture can occur.

 

Psychological Torture

 

Psychological torture can take many forms. The commonest are:- 

• Witnessing torture of close relatives, including children 
• Threats - the victim is threatened with torture of him-/herself or his/her family, unless they cooperate
• False execution - executioners pretend killing the victim

 

This Man is Threatened to Be Killed

Prolonged isolation, in a blacked out cell, where food, water, bath and use of toilet are denied for longer periods of time

 

These are only a few well-known methods of  torture. As I mentioned earlier these methods are many so much so that they defy proper classification.

 

Priyanjith Perera

07/12/2013

 



 

 

 

 

 

 

Greivous Hurt: Explained

Even if you have already decided not to bother about the contents of  the Sri Lankan Penal Code (SLPC) as being an irrelevant document for a practising doctor one cannot deny the importance of understanding different types of 'grievous hurt' given in the Section 311, at least  for the doctors who are engaged in medico-legal duties such as MOs-Medico-Legal, MOs-IC of peripheral units and DMOs and, of course the JMOs.

No body would fall in love with the Section 311 at first sight, especially as it is fraught with many confusing terminology. Most of these words are part of the legal jargon but as doctors we find them 'indigestible' so to speak.  

The word privation used in a few places means 'an act, condition, or result of deprivation or loss'.The word 'member' is used in two limbs. It means 'a part or an organ of human or animal body such as an arm or limb or penis (http://www.thefreedictionary.com/member). The rest of the words should not give any problems as far as the meanings are concerned.

Limb (a). Emasculation

Emasculation literally means castration or loss of virility (the ability to engage in sexual intercourse and produce children). This can be achieved either by physical removal of a man's genitals (penis and testicles or either of them) or depriving functionality of his genitals and making him impotent or sterile even if the genitals are physically present e.g. damage to spinal cord or nerves causing impotence, sterility from injury to testicles.

Limb (b).Permanent privation or impairment of the sight of either eye

I hope this is easy to understand. If the vision of an eye is totally lost or impaired permanently it comes under this limb. It is the examiner's responsibility to make sure that the defect is permanent. Eye surgeons opinion has to be sought and the patient should be reviewed until the defect seems to be permanent.

Limb (c). Permanent privation or impairment of the hearing of either ear

This should not cause any problem.

Limb (d). Privation of any member or joint

This deals with physical loss of joints and members such as hands, feet, or a limb. Somebody might argue that this also deals with 'functional' loses as privation may not mean only physical loss. Since functional losses are covered in the next limb it does not matter this limbs deals with it or not.

Limb (e). Destruction or permanent impairment of the powers of any member or joint

This deals with functional losses, both total (destruction) and partial (impairment) of members and joints.

This limb can be subdivided into four parts.

1. Destruction of the powers of any member

2. Destruction of  the powers of any joint

3. Permanent impairment of the powers of any member

4. Permanent impairment of the powers of any joint t

• Total loss of sense of smell due to injury to olfactory nerve following a head injury - Destruction of powers of a member
• Loss of sensation of a hand following neck injury - Permanent impairment of the powers of a member
• Ankylosis of the elbow joint following injury - Destruction of the powers of a joint
• Restriction of the movement of elbow joint following burn contracture - Permanent impairment of powers of a joint

In all these instances the member or joint is physically present but their functionalities are either totally lost or impaired permanently.

Limb (f). Permanent disfiguration of head or face

When an injury causes the skin to be breached (incised and lacerated wounds) it is likely that healing will result in a scar. When this scar disfigures head or face the injury should be categorised as  'grievous'.  Unlike the rest of the limbs this assessment is simply subjective. A disfigurement for one may not be so for another. The doctor does not have a set of objective criteria. He/she might consider many factors such as age, sex, occupation, etc. in deciding whether a scar is disfiguring. For instance, a disfiguring small scar on the nose of a young girl may not be so on the nose of a middle aged man.

Some injuries may be so severe that the doctor may not have to wait till the scar is formed to decide whether it is disfiguring. In not so easy cases the patient should be reviewed until the healing process is complete. The availability of plastic surgery should not be considered. What if the patient had not sought medical assistance when he/she got injured resulting in a severe scar tissue formation? It is my opinion that the doctor should decide whether the scar, as it is now, disfigures and the write in the remarks column that the lack of medical intervention is the likely reason for such a severe scar tissue formation.

Limb (e). Cut or fracture of bone, cartilage or tooth or dislocation or subluxation of bone, joint or tooth

This limb includes

1. Cuts of bones, cartilages and teeth

2. Fractures of bones, cartilages and teeth

3. Dislocations of bones, joints and teeth

and

4. Subluxations of bones, joints and teeth.

Limb (f). Injury endangers life or as a consequence of which an operation involving the opening of thoracic, abdominal or cranial cavities is performed.

This limb has two parts.

1.  Injury endangers life.

2.  Injury, as a consequence of which an operation involving the opening of thoracic, abdominal or cranial cavities is performed.

We have already discussed the first one. The second one needs little bit of explanation I guess. This covers the situations where the 'original' injury is non-grievous but it has become 'grievous' because a body cavity has been opened by the 'surgeon' to exclude internal organ damage or/and haemorrhage. A person was assaulted on the abdomen and admitted to the surgical casualty. The surgeon suspecting an intra-abdominal emergency operated on him only to find nothing. Even if the abdominal wall injury is non-grievous it will become grievous because of the surgical exploration of the abdomen.

Limb ((g). Any injury which causes sufferer to be in severe bodily pain or unable to follow his ordinary pursuit for a period of twenty days either because of the injury or any operation necessitated by the injury.

The two parts of this limb are :-

1. Any injury which causes sufferer to be in severe bodily pain for a period of twenty days either because of the injury or any operation necessitated by the injury.

2. Any injury which causes sufferer to be unable to follow his ordinary pursuit for a period of twenty days either because of the injury or any operation necessitated by the injury.

The doctor's responsibility in terms of this limb is to make sure the patient in fact suffers from 'severe' bodily pain for more than 'twenty' days. Just because the patient is in the ward for twenty days doctor should not make the injury 'greivous'.

With regard to the second part the ordinary pursuit it should be viewed subjectively. One person's ordinary pursuits may be different from another. (Pursuit is defined as an activity engaged in regularly.)

I hope this will help you in understanding this very important section of the penal code.

Priyanjith Perera

31/12/2012