Sunday, February 25, 2018

Is there a ‘grey’ area?

Dana Seetahal logo37

Mark Fraser

 In response to several news reports that a doctor at a private medical hospital last week failed to report the finding of 17 pellets said to contain cocaine in a patient’s stomach, the Medical Association sent out an urgent advisory to its members. While the advisory, released to the media this week, states that it is a legal requirement to make such reports to the police, comments by the PRO of the association, Dr Trinidade, who himself signed the advisory seemingly refutes some of its contents asserting that it is a “grey area”.

The advisory states that the association “wishes to remind all doctors that they must at all times stay within the prescribed legal guidelines with respect to treating patients involved in illegal activities or  who may be the victims of such activities. Please remember that it is a legal requirement that all gunshot wounds, stabbings, suspected or proven rape/sexual abuse; the discovery of narcotics must be reported to the police. Also at this time we remind you to report all cases of suspected child abuse to CHILDLINE (800-4321) Austin Trinidade, PRO”. 

Yet Dr Trinidade is reported is having said on Wednesday last that it was unclear whether there was any specific law  requiring doctors to report such incidents (presumably such as the finding of cocaine in someone’s stomach) but there was a general understanding that this should be done. He further asserted that some doctors may feel constrained by doctor/patient confidentiality in making disclosures to the authorities. He however did suggest that it would be the “ethical” thing to report the suspected crime.

It is an offence, as we all are aware in this country, to traffic in illegal drugs. Over the years persons have been charged for trafficking drugs which they have ingested in pellet form. Some persons have even died or been seriously injured when the pellets burst in their stomachs. One would have to be living on Mars, therefore, not to know that where pellets are found in someone’s stomach they invariably contain drugs, more often cocaine. So a doctor operating on a patient who retrieves such items from his stomach is deemed to be aware that they almost certainly contain illegal drugs.

Under the common law it is an offence of perverting the course of justice to commit an act with the intention of concealing the fact that a crime has been committed, even where no proceedings in respect of the crime have commenced. If a doctor, having retrieved pellets from a person’s stomach in the circumstances as have been reported in the media, fails to report this to the police and either destroys the items or returns them to the offender/patient, he may be liable for concealing the commission of a crime — or at least aiding and abetting the concealment, which is itself an offence.

In addition, the Criminal Law Act provides that where a person has committed an arrestable offence, any other person, who, knowing or believing him to be guilty of the offence without lawful authority or reasonable excuse, commits any act with intent to impede his apprehension or prosecution, is guilty of an offence. An arrestable offence is one where the maximum penalty is five years or more, this includes drug trafficking.  Even though the patient may not have been charged with drug trafficking, if all the reports are true, he would have committed the offence and a doctor who in the light of the circumstances destroys or conceals the pellets could be liable to prosecution.

Furthermore, if the doctor or any other person were to accept or agree to accept for not disclosing that information any consideration (money), knowing or believing that an arrestable offence has been committed, he is guilty of another offence. 

The Dangerous Drugs Act itself provides that any person who aids or abets the commission of an offence under that law is guilty of an offence and is liable on conviction to the same penalty under the Act as the principal offender. It is arguable that a person such as a doctor who knows that a patient is trafficking in illegal drugs in the form of pellets in his stomach, retrieves them and hands them back to the patient is guilty of aiding and abetting the continued illegal possession of the drugs, at the very least.

There is no question of confidentiality in this. Where a criminal offence has been or is being committed that overrides any consideration of confidentiality. The public interest demands it and the law demands it.

This requirement is specific in the Sexual Offences Act in the case of minors. Section 31 provides that where a medical practitioner (or a registered nurse or midwife) has performed a medical examination in respect of a minor, and has reasonable grounds for believing that a sexual offence has been committed in respect of that minor, he “shall report” this to a police officer as soon as reasonably practicable. Failure to so renders the offender liable to a fine of $15,000 and imprisonment for a term of seven years.

Again no question of confidentiality or ethical choice arises. The medical practitioner must do so or face a charge.

The advisory put out by the Medical Association at least attempted to make it clear when matters must be reported to the police. However the subsequent comments by the very PRO under whose name the release went out about “grey” areas suggest that there is still ambivalence in the association about their obligations. Further, no mention was made in either case of criminal sanctions that could flow from the failure to report.

It would be of interest to know the identity of the doctor who failed in his duty, why he did so and what became of the pellets.

* Dana S Seetahal is a former Independent Senator