A mentally challenged person cannot donate his organs even to his brother

  • Mentally challenged person cannot donate his organs even to his brother: In the matter titled as “Ganpatrao & Others versus State of Maharashtra & Others, Writ Petition No. 13918 of 2017”, the Hon’ble High Court of Bombay, Bench at Aurangabad dealt with the issue whether a person who is mentally challenged and represented by natural guardians father and mother can be a donor for removal of his organs or tissues within the meaning of Section 2(f) of the Transplantation of Human Organs and Tissues Act, 1994 and whether he can be permitted to donate human organ for transplantation in favour of his real brother inspite of bar provided under Section 9(1-C) of the Transplantation of Human Organs and Tissues Act, 1994.

The provisions of Section 2(f) of the Transplantation of Human Organs and Tissues Act, 1994 are as follows: Section 2(f) of the Act defines donor as any person, not less than eighteen years of age, who voluntarily authorises the removal of any of his [human organs or tissues or both] for therapeutic purposes under subsection (1) or subsection (2) of section 3.”


The provisions of Section 9(1C) of the Transplantation of Human Organs and Tissues Act, 1994 are reproduced hereunder:


“9. Restrictions on removal and transplantation of [human organs or tissues or both]

(1C) No human organs or tissues or both shall be removed from the body of a mentally challenged person before his death for the purpose of transplantation.

Explanation For the purpose of this subsection,

(i)                  the expression “mentally challenged person” includes a person with mental illness or mental retardation, as the case may be;

(ii)                 the expression “mental illness” includes dementia, schizophrenia and such other mental condition that makes a person intellectually disabled;

(iii)               the expression “mental retardation” shall have the same meaning as assigned to it in clause(r) of section 2 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996)]

In the present case, the Hon’ble High Court of Bombay held that as per the provision of Section 2(f) of the Act, the donor has to be a person who is not less than eighteen years of age and who voluntarily authorises removal of his organ or tissues. Further, the provisions of Section 9(1C) of the Act puts bar on removal of human organ or tissues or both from body of a mentally challenged person. Thus, the person who is suffering from mental retardation and who is not capable of making a decision for himself, is a person who not in a position to voluntarily authorise removal of his organ or tissues as per Section 2(f) of the Act and also in view of the bar of Section 9(1C) of the Act, the organ or tissues of such person cannot be removed and donated.

The relevant paragraphs of the judgment passed by the Hon’ble High Court of Bombay is reproduced hereunder:

“15. As has been recorded above, the principles in Common Law jurisdiction based upon “best interest test” cannot be made applicable in view of specific provisions in Transplantation of Human Organs and Tissues Act, 1994. Section 2(f) of the Act defines donor as the person not less than eighteen years of age, who voluntarily authorises removal of his organ or tissues. In the instant matter, petitioner no. 3 is not an individual who is in a position to voluntarily authorise removal of his organ or tissues. Apart from this, section 9(1C) puts bar on removal of human organ or tissues or both from body of a mentally challenged person. In the instant matter, petitioner no.3 is adjudged as suffering from mental retardation and he is reported to be a person not capable of making decision for himself. We, with a view to find out whether petitioner no.3 has a minimum level of understanding, interviewed him by calling him in chamber in presence of the counsel of both the sides. We have noticed that petitioner no. 3 even was not in a position to understand the questions put to him and is incapable of understanding the consequences of his act. His decision making power is severely impaired and we do not doubt the opinion of the Consultant Psychiatrist.


  1. The restriction on removal and transplantation of human organs or tissues or both contained in subsection (1C) of section 9 of the Act in respect of mentally challenged person is an absolute prohibition. The Statutory provision is couched in negative language and as such shall have to be construed mandatory.”

Therefore, the person who is mentally challenged and represented by natural guardians’ father and mother cannot be a donor for removal of his organs or tissues within the meaning of Section 2(f) of the Transplantation of Human Organs and Tissues Act, 1994.

Also, he cannot be permitted to donate human organ for transplantation in favour of his real brother in view of the bar provided under Section 9(1-C) of the Transplantation of Human Organs and Tissues Act, 1994.

  • Doctors’ body sends defamation notice to motivational speaker: The Indian Medical Association (IMA) has sent a defamation notice to a Delhi-based motivational speaker for calling doctors ‘murderers in white coats’ in a video on his YouTube channel. Titled ‘Indian medical system ki asliyat ’, the video is an attempt by Vivek Bindra’s to showcase good and bad medical business tactics. The IMA is claiming Rs. 50 crore in damages.

In the 9.40-minute video, Mr. Bindra, says some doctors don’t know how to earn ethically. “They will extract money from everyone, be it ambulances, chemists, pharmaceutical firms, pathologists.” he says, citing examples of how Caesarean section operations have increased in number in the past few years. He also claims that doctors work under pressure, trying to meet targets for surgeries and diagnostic tests. While he does not name doctors, Mr. Bindra gives the examples of cardiac surgeon Dr. Devi Prasad Shetty of Narayana Health, Dr. G. Venkataswamy of Aravind Eyecare and Tata Memorial Hospital in Parel. He says these doctors and organisations have made money ethically by innovating healthcare. “These are examples that need to be followed,” he says in the video, which was viewed 9.71 lakh times as on Monday evening. Dr Ravi Wankhedkar, national president, IMA, said the doctor-patient relationship is already strained. “He is damaging this further by labelling the fraternity in this way. Complaints, if any, can be registered with the State Medical Council, Consumer Court and the human rights commission.” Former IMA President Dr. K.K. Aggarwal said the video should be taken down and Mr. Bindra should apologise.

Mr. Bindra said, “Our lawyers are preparing an appropriate reply to the legal notice, and the same will be shared with all, if need be… (Jyoti Shelar, The Hindu, Mumbai, January 09, 2018 00:00 IST)

  • H3N2 ‘Aussie’ Flu, a near epidemic in Australia, UK and USA; H1N1 in Rajasthan India: The flu is rapidly spreading across the US, UK and Australia. Not only did it start early, but it seemed to occur all over the country more or less simultaneously. The predominant flu strain is H3N2. Vaccine effectiveness typically ranges from 40 to 60 percent in a good year. Preliminary estimates from last year show the vaccine was 40 percent effective in the U.S., similar to 2014-2015. But concerns have been raised about this year’s vaccine after an editorial published in the New England Journal of Medicine last Thursday said it was only 10 percent effective against H3N2 in Australia. Additionally, years in which H3N2 is the predominant influenza strain tend to have higher death rates, with approximately 20,000 deaths in the 2012-2013 and 2014-2015 seasons when H3N2 predominated. Good news is that H3N2 flu is quite susceptible to the available flu medications, like Tamiflu, also known as oseltamivir. Remember, it is most helpful if taken within 48 hoursof the start of the flu. It can take up to two weeks for the body to build up defences against the virus.

It is especially important for pregnant women to get the vaccine. There is dual benefit for the pregnant woman to get vaccinated. Not only will she get protection, but she’ll also pass those antibodies along to her infant, which will protect them for the first 6 months of life when the infant is too young to get the vaccine. And the vaccine is safe for pregnant women and the fetus.

For those who contract the flu, it could make symptoms less severe. Next, make sure to wash hands carefully to limit the spread of the virus and try to avoid close contact with sick people.

People who get sick should also keep up with fluids — and seek medical attention if they start to feel worse or develop shortness of breath, worsening congestion or cough… (abcnews.com)


Public health concerns

  • Trace the first case of H3N2 in India
  • High risk people to consider vaccinations
  • Do not allow any person suffering from flu to enter public places
  • Give compulsory off to people suffering from flu
  • Learn cough etiquettes and respiratory hygiene
  • The draft National Medical Commission Bill is full of anomalies (KK Aggarwal): The Parliament’s decision to send the draft National Medical Commission Bill, 2017, to the standing committee of health has raised hopes for a constructive debate among political parties to remove the draconian clauses in the proposed bill. If not modified, the bill will replace the Medical Council of India (MCI) by a near-total central government department called the National Medical Commission (NMC). Devoid of a federal character, this non-representative body will be a poor substitute for the MCI.

The proposed NMC is not representative of the medical profession in India. The MCI has one representative each from state and practising doctors. With this being taken away, it remains to be seen how the ethics of practising doctors providing care to 80% of the population can be managed without having representatives from their own tribe. The Indian Medical Association (IMA) is the collective consciousness of more than three lakh doctors from modern medicine, yet it was not consulted when the Union Cabinet took this decision to replace the MCI with the NMC.

The bill is not ‘national’ as it does not represent all states. Although, each state government does have the presence of a vice-chancellor in the body, the official will be appointed by the governor in through the Centre. It isn’t ‘medical’ either as it allows the mixing of ‘Ayush’ with ‘modern medicine. Combining the two in the same treatment by the same doctor will constitute a new treatment and hence necessitate a trial, which would require the approval of the ethics committee.

The NMC is not a ‘commission’ as any commission requires the provision for a developmental grant in the five-year plan. It’s also not ‘representative’ as there is no representation of doctors from every state but only five elected zonal members in the commission with only an appellant authority. The so-called four ‘autonomous’ boards, with full powers, will have 12 nominated salaried full-time members with no representation from elected members. The bill is not ‘community-friendly’; the bill will make medical education expensive in the future. This is because the bill will increase the percentage of fee to be decided by the private colleges from 15% to more than 60% of seats.

One of the main contentions for replacing the bill was to get a new corruption-free mechanism but the NMC has the potential to breed corruption. Full powers are given only to three full-time nominated members in the board appointed on salary by the government. The commission has only appellant powers; more than 60% medical seats in private colleges will have no fee restriction and the penalty for violating norms will vary from 1/2 to 10 times (for example, from 5 crore to 100 crore). Also, the central government vests total control on waiving off penalty, giving permissions, and allowing doctors to practice without fulfilling all norms. The bill is also not ‘students’ friendly’. Those medical students who pass MBBS by grace but fail in the licentiate exam will not be allowed to practice. The ‘so-called’ autonomous boards are not really autonomous as all boards are under direct control of the government and the commission. And, the commission has regulatory as well as directional powers. The secretary of the commission can be a non-doctor appointed by the government.

The bill is not IMA-friendly, which was not made a part of discussions despite being the largest stakeholder comprising government and private doctors, students, teachers, and hospitals. It is not ‘state medical council-friendly’ either as it takes away their autonomy to function. Not only this, the NMC will even have directional power over state governments. I hope the standing committee on health will rectify these anomalies by either amending the present NMC act or bring in a better act that takes into account IMA’s concerns. KK Aggarwal is vice president, Confederation of Medical Associations in Asia and Oceania and former National President IMA.

  • IIHP opposes bridge course for Ayush doctors in National Medical Commission Bill 2017: Monday, January 8, 2018, 08:00 Hrs [IST]. Indian Institute of Homoeopathic Physicians (IIHP) has opposed the proposed bridge course for Ayush doctors in National Medical Commission Bill, 2017 saying that its a retrograde step and highly detrimental to homeopathy in a long run. Unscientific mixing of medical systems is anti-people too. It will pave the way for backdoor entry of qualified quacks to medical field. Experts feel that such a provision, if passed, could do more harm than good.

Clause 49 of the Bill states that a joint meeting of the National Medical Commission, the Central Council of Homoeopathy and the Central Council of Indian Medicine should be held at least once in a year “to enhance the interface between Homoeopathy, Indian Systems of Medicine and modern systems of medicine”. “The joint sitting, may, by an affirmative vote of all members present and voting, decide on approving specific bridge course that may be introduced for the practitioners of Homeopathy and of Indian Systems of Medicine to enable them to prescribe such modern medicine at such level as may be prescribed,” it reads.

Said Dr M A Rao, national president of IIHP, “Our organization is totally against the proposed bridge course for Ayush doctors as it will not serve any purpose for the national health. This course will open a pandoras box for creating quackery which is disastrous for national health, thereby reducing the quality of allopathic medicare. Most importantly it will undermine the faith, homeopaths have in their own system of medicine. In the long history of 70 years of existence our organization has never, demanded government to permit Homeopaths to practice allopathy or requested government to start a bridge course. We are in favour of maintaining the purity of each system of medicine.”

As far as this bridge course is concern we fully support Indian Medical Association (IMA) concern. Though we are practicing Homeopaths with strong footing worldwide we are equally proud of our allopathic professionals who are world class in health care, said Dr Rao. Allopathy and homeopathy are different systems of medicine altogether. So there is no way they can clear a bridge course and then start practicing allopathy, he said… (Laxmi Yadav, Mumbai, pharmabiz.com)


Dr KK Aggarwal


Padma Shri Awardee Vice President CMAAO Group Editor-in-chief IJCP Publications

President Heart Care Foundation of India

Immediate Past National President IMA

Be the first to comment

Leave a Reply

Your email address will not be published.