FORENSIC MEDICINE AND LAW 1 FORENSIC SCIENCE AND LAW Introduction The legal system in Kenya revolves around the Constitution which is the supreme law of the land Sources of law include: • constitution • legislation (acts of parliament) • subsidiary legislation • common law • customary law • religious law • precedents • international law and treaties 2 CATEGORIES OF LAW Public Law • constitutional • administrative • criminal Private Law civil common customary religious Criminal Court Procedures Civil Court Procedures arise from the State taking legal action against an accused person • prosecution • ruling • defence • judgement • appeals and reviews application defence hearing judgement appeals and reviews 3 FORENSIC JURISPRUDENCE Jurisprudence may be defined as the science or philosophy (basic principles) of law. • Forensic investigations bring scientific fields and law together. However, the term forensic jurisprudence is less frequently encountered than medical jurisprudence which has been defined as: • the application of law to medicine or • the application of various fields of medicine or medical science to legal problems Forensic jurisprudence may therefore be taken to mean • the branch of law that deals with the application of various branches of science (physical and social) to law (or the administration of justice). 4 The Ethics of Medical Practice Origin Laws governing the practice of medicine • vary from country to country • the broad principles of medical ethics are universal and are formulated not only by national medical associations but by international organizations such as the World Medical Association. What is broadly referred to as medical ethics : • is attributed to Hippocrates (Hippocratic Oath), • was developed over several thousands of years ago • is constantly being modified by changing 5 circumstances and technologies Forensic Medicine Court procedures 6 Evidence Evidence is defined in the Evidence Act as the means by which an alleged matter of fact, the truth of which is submitted to investigation, is proved or disproved, including statements by accused persons, admissions and observations by the court in its judicial capacity. Fact is defined by the Act to include any thing, state of things, or relation of things capable of being perceived by the senses. Witnesses are persons who present evidence in court based on their professions and areas of expertise 7 Types of evidence presented in courts Evidence admissible in court may be in the form of: • oral: must be direct evidence based on what the person saw, heard, perceived or formed an opinion on by themselves for it to be admissible (not hearsay) • documentary: documents containing facts (medical reports, certificates) • circumstantial: refers to facts drawn from inferences including opinion evidence of the person drawing the inference. • opinion • expert (provided by an expert in a particular 8 field) Doctors and the Law Members of the medical profession are bound by the same general laws as the population as a whole but they are also bound by additional laws specific to the practice of medicine Doctors become involved with the law as: • criminals or plaintiffs • ordinary or fact witnesses • expert witnesses • professional capacity 9 The Role of Doctors in court Professional witness: arises when a doctor is providing factual medical evidence e.g. a casualty doctor confirming that a leg was broken and reports on the treatment given Expert witness: arises when a doctor expresses an opinion about medical facts e.g. the cause of the broken leg. These two roles may overlap for e.g. a Forensic pathologist producing a post-mortem report (professional aspect) and then expressing their conclusions based upon their findings (expert aspect) 10 Attendance of Court • court appearance in an official capacity should be preceded by a witness (from police stations) or court summons • Doctors should carry all the relevant documents pertaining to the case • will be subjected to the formality of taking the oath (a swearing in) to ensure that they tell the truth • identify themselves and give a brief history of their qualifications and work experience • witnesses may have to identify exhibits which they received and analysed or reports which they signed and produced (exhibits should have 11 been signed Attendance of Court The witness may be examined in the following ways: • evidence-in-chief presented under the guidance of a prosecutor or lawyer (whoever summoned the witness) • cross-examination led by the opposing side • re-examination by the summoning lawyer Court-room etiquette • Forensic adage of ‘dress up, stand up speak up or shut up’ is expected to apply! • punctuality • clear simple language/explanations • respectful to all including annoying lawyers 12 Evidence Act CAP 80 • Expert witnesses providing evidence in the courts for the prosecution in their fields of expertise have to be gazetted by the Attorney General’s Office • Legal backing lends credence to the evidence given by FS who are considered as expert witnesses in criminal or civil investigations • Evidence Act: In Kenya this legal backing are various Sections under the Evidence Act CAP 80 of the LAWS OF KENYA • Some relevant sections of the Act read as follows: 13 Evidence Act Chapter II Part IX – Opinions Section 48 48. (1) When the court has to form an opinion upon a point of foreign law, or of science or art, or as to identity or genuineness of handwriting or finger or other impressions, opinions upon that point are admissible if made by persons specially skilled in such foreign law, science or art, or in questions as to identity or genuineness of handwriting or finger or other impressions. • (2) Such persons are called experts 14 Evidence Act Chapter III PART III – Documentary Evidence Section 77 on Reports by Government analysts and geologists 77. (1) In criminal proceedings any document purporting to be a report under the hand of a Government analyst, medical practitioner or any ballistics expert, document examiner or geologist upon any person, matter or thing submitted to him for examination or analysis may be used in evidence. (2) The court may presume that the signature to any such document is genuine and that the person signing it held the office and qualifications which he professed to hold at the time when he signed it. 15 Evidence Act (3) When any report is so used the court may, if it thinks fit, summon the analyst or geologist, as the case may be, and examine him as to the subject matter thereof. Others statutes of interest include: The Criminal Procedure Code: CAP 75 which facilitates: •Crime investigation by providing the procedures to be followed in criminal cases •autopsies and inquests: provides for conducting of inquiries into deaths arising from suicides, accidents homicides or suspicious circumstances . 16 Evidence Act The Penal Code: CAP 63 • facilitates definition of crime and outlaws sexual offences, concealment of birth, abortions, protects medical practitioners from liability in surgical operations conducted in good faith and with reasonable care and skill) • defines the terms ‘wounds’, ‘harm’ • defines the term ‘causing death’ 17 NATIONAL HOSPITAL INSURANCE FUND It is a government state corporation with a mandate to provide health insurance to Kenyans and is governed under the NHIF Act No 9 of 1998 18 Core Mandate and Benefits As the primary provider of health insurance it is mandated to enable all Kenyans to access quality and affordable health services and the services currently include: • provision of comprehensive in-patient and outpatient medical cover to all its members and their declared dependants (spouse and children) in a majority of healthcare facilities (Government, Mission and private hospitals) • coverage of comprehensive maternity cover • NHIF does NOT exclude any disease 19 Establishment • It was established in 1966 as a department under the Ministry of Health • NHIF has a large number of autonomous branches across the country and smaller satellite offices and service points in district hospitals Membership • NHIF membership is open to all Kenyans who have attained the age of 18 years • It registers all eligible members from both the formal sector (for which it is compulsory) and the informal sector (for which it is open and voluntary) 20 Payment of Claims • claims are submitted by hospitals directly to NHIF after the contributors have been discharged from the hospitals • a claim may be rejected and the hospital informed to address any abnormalities identified • the Fund strives to pay claims within 14 days upon receipt of the claim from the hospitals • members who opt to clear the bills with the hospital may launch a general claim directly to NHIF for reimbursement 21 National Social Security Fund (NSSF) It is a government agency responsible for the collection, safekeeping, responsible investment and distribution of retirement funds of employees in the both the formal and informal sectors of the Kenyan Economy. Participation for both employers and employees is compulsory 22 NSSF Age/Retirement Benefit • Eligibility: comes at the age of 55 years, or when they ultimately retire from regular paid employment Withdrawal Benefit • Eligibility: at least 50 years of age and they have retired from regular paid employment Invalidity Benefit • Eligibility: members who are certified to be permanently incapable of working because of physical or mental disability 23
