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World Applied Programming, Vol (3), Issue (9), September 2013.

473-478
ISSN: 2222-2510
2013 WAP journal. www.tijournals.com

The Doctor Penal Responsibility


Hasan Olfati *

Ghobad Naderi

Parvin Naderi

Faculty member of Payame


noor University, Iran.

Department of Law,
Payame noor University,
Iran.
naderighobad@yahoo.com

Kermanshah Branch,
Islamic Azad University,
Kermanshah, Iran.

Abstract: The duties and responsibilities that exist in every profession are determined to some extent by
working system code and public thoughts; like medical practice that has definite ethical rules for the doctor and
is different from the public morals. In general the former is more important. The medical practice is considered
always as an important profession in all communities and the doctor is recognized as a savior of the patients,
thus he/she has a grave responsibility against to the society. The legislators have anticipated not only the
medical morals, protecting the life of people mental and physical health of people, observance of the individual
rights, maintenance of peace and order, but also the rules of the doctor penal responsibility.
According to penal responsibility code, the doctors are responsible against their deeds. Whereas they abuse their
positions or break the law, they would be punished. In this study the doctor penal responsibility is considered,
besides the disciplinary responsibility is also addressed. In penal code of 1991 in general discussion about
medical acts was pointed this issue and repeated in Islamic punishment code enacted in 2013. In the punishment
discussion the doctor penal responsibility has been formally recognized, as in the abortion case this
responsibility was confirmed for doctors. Also in the articles 495 and afterwards this civil responsibility in the
checkups that cause injury has been formally recognized and is considered in the present study.
Keywords: Civil responsibility, penal responsibility, medical crimes, medical violation

PREFACE
There is not an agreement for definition of civil responsibility but the lawyers have interpreted it depend on the
indemnification of the injured person. For defining the penal responsibility it should be said: The ability of person for
changing the penal consequences of his/her criminal acts and the obligation of endurance of it. (meerSaeedi.S.M; penal
responsibility and its elements, 2009.p.13)
Medical crimes are divided in two groups. The first group is the crimes that are the direct results of the medical
measures. In this kind of crimes in addition to doctor, his/her criminal acts should be considered as medical and
therapeutic measures. (Amoozegar. M;penal and disciplinary prosecution of the offender doctor, 2009. p.148)
In the second group the criminal acts are not considered as medical measures done by doctor. (Amoozegar.M;penal and
disciplinary prosecution of the offender doctor, p.165)
Offence is the act done by doctor in the same occurrence situation and it can be known as a violation of medical practice.
(Abassi. M; penal responsibility of doctor, 1999, p.91)
INTRODUCTION
Today the knowledge especially in science, medical treatment and prevention of contagious diseases has considerably
improved and its amplitude has been extended, such as; increase the life expectancy, decrease the mortality of children,
increase the mental anxiety and response to the unknown risk. (caplan.sadok; the brief of psychiatry, 2011, p.143)
Today the improvement in medical profession such as; increase the life expectancy of people suffering from cancer,
AIDS, body limbs transplantation relates to the advanced knowledge of humans and the grave responsibility of doctors.

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On the other hand, carelessness about responsibility sometimes creates the basis that some people abuse the poverty and
ignorance of others and jeopardize their physical and mental health. Concerning the doctor penal responsibility and its
history, we can consider it from the historical point of view. In ancient Egypt the rules determined by the doctors were
collected in one holy book and the doctors were obliged to follow them so if they obeyed these rules, they were safe
from punishment, though the result of treatment was against the will of the doctor, i.e. If the patient died or was incurred
the physical injury.
If the doctors did not follow these rules, they were condemned to capital punishment. (Gheisebn mohammad,Alsheikh
mobarak, law and medical responsibility in Islam,2005)
In Iran especially after the Islamic revolution, medical science has considerably improved and regarding to medical
violations the codified rules were enacted.
The important issues about the doctor penal responsibility considered in the Islamic punishment code were as
followings:
The conditions of disavowal of the doctor and surgeon penal responsibility concerning to treatment measures.
The mere responsibility of the doctor about the loss of life and property of patient in the medical measures that he/she
does himself/herself or orders that.
Accepting the condition of the lack of responsibility for doctor and surgeon concerning the offenses caused by treatment
and anticipation the violations that the doctor may commit them. (Amoozegar.M. penal and disciplinary responsibility
of offender doctor, p.32 .2009)
DISCUSSION
Today the doctor penal responsibility has been taken into consideration in many countries and this responsibility was
recognized. In this regard some sources were considered in Iran legislation for governing the doctor penal responsibility
as followings:
1.

LAW
Law is the most important source for governing the doctor penal responsibility, so that it should not be considered
equal to other sources. Law is the series of rules approved in constitutional rights by legislative power, or approved
directly by referendum. In this regard many rules in the punishment discussion point to medical offenses:
-The way of prevention from epidemic and venereal diseases enacted in 1941.
-Regulations of medical, medicinal and edible affairs enacted in 1955.
-The Islamic penal code enacted in 1950.

2.

JUDICIAL PROCEDURE
In general the judicial procedure is the set of votes about the same cases issued by the courts especially the Supreme
Court. In medical cases we face less often the votes relating to the doctor penal responsibility. (Amoozegar.M. the
penal and disciplinary prosecution of offender doctor,2009, p.34)

3.

JUDICIAL VALID DECREE


In the cases that there is not any clear idea about the given cases in law, we refer to this source. It seems the judges
do not have any alternative for recognizing the evidences of the legal surgery and medical practice and separating
them from illegal ones except resorting to judicial valid decree. (Amoozegar.M. the penal and disciplinary
prosecution of offender doctor, 2009, p.36)

In addition to abovementioned sources that are the primary sources, there are also secondary sources concerning the
determination of the doctor penal responsibility such as; custom and the lawyers opinions.

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After this discussion we should address the basis of the doctor penal responsibility.
1.

Doing illegally medical measures and surgeries


By studying the Islamic sources it becomes clear that there is not any prohibition in doing the medical measures or
surgery according to Islam religion. Medical practice is permissible and entails the individual and society interests,
but it does not mean that the doctor can do any kind of surgery or medical measures because doing some surgery
cases is illegal from the religious point of view. So if the surgeon takes the letter of satisfaction from the patient or
his/her parent or follows the technical or scientific rules and then engages in illegal surgery, it is not religiously
acceptable, because this action is against the religious law and the surgeon is responsible. The legal surgery and
medical measures were stipulated in the article 158 of the Islamic punishment code (2013). This article stipulated
that all the surgical operations should be legal and according to law standards, but the legislator did not determined
the legal surgical operations and also he has not specified the criterion for distinguishing legal surgical operations
from illegal ones. The solution of this problem is to refer to the judicial valid decree.
So in order to distinguish between legal and illegal surgical operations done by responsible of medical affairs, we
consider one example of the late jurists opinions about some surgical operations like changing gender.
Changing gender from man to woman and vice versa and transformation the neutral to man or woman by surgical
operation is not religiously prohibited. (Amoozegar.M. the penal and disciplinary prosecution of offender doctor,
2002, p.41-42)
Today changing gender with special conditions has been officially recognized since the supporting law of family
was approved in 2012. (Zahedi.A.supporting law of family, 2012, p.11)

2.

Carelessness and imprudence


Punishment of the careless doctor that has done medical measures carelessly, although he/she took permission letter
from the patient or his/her parent is undeniable in Islam religion. The theoretical reason of this punishment is the
infringement of the doctor upon the rights of others.
Besides, religious leaders have also used many traditions. Artice158, note 336 and article 616 of the case law are the
justifications of the penal offenses. If a doctor owning to carelessness caused the patient to be killed or disabled,
he/she would be prosecuted from the legal point of view. The mean of carelessness is that the doctor takes an action
without paying attention to the predictable scientific results leading to death or physical hurt of patient. By referring
to the judicial opinions, we understand that the judicial procedure enumerates the carelessness as one of the basis of
the doctor penal responsibility. It should be noted when a person does not take an action that he/she has to do it
means carelessness. For instance, not performing the necessary tests before a surgery is carelessness.
(Amoozegar.M. penal and disciplinary prosecution of offender doctor, 2009, p.45-47)

3.

Lack of skill
Surgical operations or medical measures entail the skill and having enough knowledge, because if the medical
practice and its derivatives are done without the necessary information, the physical pains not only would not be
reduced but increased and even it may be cause death. In Iran case law in articles 336, 616 and 295 lack of skill is
one of the reasons of punishment. It can be concluded if a doctor and in general people who engage in medical
practice do not have necessary skills and if they cause hurt to patients, they would face penal punishments. Some
lawyers have divided this lack of skill to two groups; physical (not having enough skills) and moral (not having
enough information). (Goldozian.I. necessaries of common penal code, 2009, p.144)

4.

Non-observance of governmental regulations


Some jurists mention that breaking the medical and religious regulations are of the same rank and believe that as we
can not be opposed to religious rules; it can not be possible to oppose the medical rules. Non-observance of
governmental regulations in Iran penal code has been also introduced as a basis for accepting the doctor penal
responsibility. This subject is deduced from the article 158 (2013). The law did not define the term governmental

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regulations and also did not determined any criterion for recognition of its evidences, but in general it includes all
the regulations and enactments of the law and according to this definition, governmental regulations are all the
enactments, rules, circular letters and finally all the state rules approved by the component authorities.
(Langrodi.M.J. law terminology, 2006, p.322-715)
The offence due to non-observance of the governmental regulations in medical affairs is independent of carelessness
and lack of skill, although in some cases the doctor was either careless or skilless and also broke the rules.
In article 158, paragraph C (2013) and article 336 is mentioned that non-observance of state rules is a penal offence.
So non-observance of governmental rules is enough for reaching fulfillment of the doctor penal responsibility and
by clearing this non-observance, there is no need to prove the carelessness of the doctor. The criterion of this
determination is court, not custom. (Amoozegar.M. penal responsibility of the offender doctor, 2009, p.57)
Here we consider one example of non-observance of the governmental regulations by doctor.
If a doctor or dentist anesthetizes the patient in his/her clinic against the enactments of medical order organization
and this hurts the patient, he/she is responsible and punishable by virtue of article 59 paragraph 2, 1991 (article 158
paragraph 13, 2013) (Shahidi.P, dentist and law, 2001, p.143)
5.

Not being authorized for doing medical measures


As it is not possible to possess the others property without the permission and legal ground, it is more necessary in
medical measures to take permission from the patient. (Khoee.A. the basis of Almenhaj, p.221)
On this basis, if a doctor cure the patient without his/her permission and due to the medical measures of the doctor,
the patient face physical loss or any other problem, the doctor is considered to be responsible and adjudged to pay
fine or blood money. Imam Khomeiny(peace upon him) also in the book titled Tahrirol Vasileh believes that if a
doctor without the permission of the patient takes an action, even he/she is very skilful is considered to be
responsible. (Imam Khomeiny, Tahrirol Vasileh p.561, 1993)
In Iran case law, given the concept of article 158, paragraph C (2013) is mentioned that one of the conditions for
removing the doctor penal responsibility is to take satisfaction letter from patient or his/her parent or legal
representative.
If a doctor or surgeon refuses to take the satisfaction letter, his/her action is considered criminal and legally
prosecutable.
In other words, we can say it is another basis for accepting the doctor penal responsibility. (Amoozegar.M. penal
and disciplinary prosecution of guilty doctor, 2009, p.59)
Of course it should be noted the doctor obligation in Iran legal system is based on an appliance, because his
obligation depends on looking after the patient and performing the common ways and efforts in theory process.
(Goldozian.I. special penal law, 2008, p.143)

In the followings we consider the medical crimes:


Medical crimes are committed by doctors and are divided in two groups; the first group is called the crimes due to
medical measures. In this type of crimes, the damaging action should be considered as a medical and remedial action. Its
evidences are as followings:
1.

The commission of intentional murder and physical injuries during the surgical operations.
The discussion of intentional murder has been considered in article 290 (2013). The intentional murder is an
unauthorized action that a person intentionally and consciously does and leads to death of another person. Many
lawyers believe that the intentional murder is also happen by doing no action. (Goldozian.I. special penal law,
p.58-59)

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Given the above mentioned cases, if a doctor or a surgeon commits a murder in one of the ways mentioned in article
290 during the remedy process, his/her action is considered intentional and sentenced to death. (Educational Office
of Judicial power, Islamic penal law, 2013, p.61-62)
Concerning the physical hurts there are the same conditions.
2.

Commission of murder and cause intentionally pseudo physical hurts.


For the doctor would not be considered responsible due to remedy process from the penal point of view, it is
essential to take permission from patient or his/her parent or legal representative except the emergency cases and to
obey all the technical rules.

3.

Pity murder.
This kind of murder means reduce the time of suffering pain of the patients that there is no hope for them on the
basis of medical science. In different legal systems there are several tactics about this case. From the religious point
of view although the patients permission in this case is very effective for doctors, his/her action is against the
religion. Anyway on the strength of Islamic punishment code about the pity murder we can conclude that in Iran
legal system there is weaker punishment than intentional murder. According to article 612 (punishment), if a person
would not be sentenced to death for intentional murder for any reason, it has been determined 3 to 10 years prison
punishment.

4.

Interference in abortion.
Abortion is one of the crimes that is committed with different motives and in articles 622, 623 and 624 of Islamic
Punishment code (punishment) were determined punishment for offenders; If a person brings about the means of
abortion for a woman, punishment is 3 to 6 months and if the offender is doctor and conducts knowingly the
abortion and guides a pregnant woman to abort, punishment is 5 to 10 years prison and payment of blood money has
been also predicted. (Amoozegar.M. penal and disciplinary prosecution of guilty doctor, 2009, p.160-162)
But the conditions of legal punishment for abortion by doctors are as followings;
First, people who commit this crime are among doctors, midwifes, surgeons, and druggists.
Second, the above mentioned persons receive money in lieu of the commitment the abortion.
Third, these persons commit this crime intentionally and knowingly. (Amoozegar.M. penal and disciplinary
prosecution of guilty doctor, 2009, p.164-165)

Related crimes to medical measures


It can be seen some crimes in medical practice. Although it is not exclusively related to medical practice, it becomes
related to medical science since the doctor commits the crime;
1.

Divulge secrets. Faithfulness to a secret is one of the important factors between doctor and patient that since the
Hippocrates time the doctors from generation to generation have respected it. The reason of the faithfulness to a
secret is to gain trust and confidence. In Islamic Penal Code in punishment discussion, the article 628 implies:
The doctors, surgeon, midwifes, druggists and the others that are confidant based on their profession, when they
divulge the secrets of others illegally, they would be condemned to one day to 3 months prison or to pay 1,500,000
to 6,000,000 Rials as a pecuniary punishments.
The first condition; related to the offender.
The second condition; divulge secrets.
The third condition; the material factor of the crime.
The fourth condition; the criminal act.
The fifth condition; the doctor has not been obliged to divulge secrets according to special rules, in this case it can
be brought up his/her penal responsibility. (Amoozegar.M. penal and disciplinary prosecution of guilty doctor,
2009, p.165-166)

2.

Presenting the unreal sick note.


Presenting the sick note is the most important and sensitive routine of the doctors. Article 539 explains whenever a
doctor presents an unreal sick note about somebody for exempting from the military service or official offices to

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legal authorities, he/she is condemned to 6 months to 2 years prison or to pay 3 to 12 million Rials pecuniary
punishment, and whenever a doctor takes bribe in order to present the abovementioned note, the bribe would be
confiscated and the doctor will be condemned for taking bribes.
It should be added that this crime is an unconditional crime and not depends on its result. In other words, when a
doctor or surgeon presents an unreal sick note, the crime is clear and there is no need for its consequences.
In addition to the above cases, working illegally as a doctor and refusing to help the injured people are examples of
the doctor penal responsibility. (Noorbaha.R. the basis of public penal code, 2009, p.153-154)
RESULTS AND SUGGESTIONS
1.

The punishment of the doctor or the responsibility resulting from the medical measures has been taken into
consideration by the Islamic scientists since the forming of religious jurisprudence and in this regard if a doctor does
not have enough skill or qualification and or without taking the permission letter from patient or his/her parent
conducts the remedy process, he/she is responsible.

2.

Islamic Penal Code knows the doctor responsible in remedy process for the death or physical hurts of the patient and
legal terms the basis of this responsibility is on the risk basis.

3.

In Iran Case Code the penal responsibility of the doctor has been accepted in some cases of law. As a general rule,
every physical or mental injury to others without the legal decree is considered crime and the person is responsible.

4.

Islamic Penal Code against the former laws states that the medical actions are authorized if and only if the religious
rules confirm them.

5.

The obligation of the doctor is not dependent on consequences but it is remedy obligation.
It is necessary to consider other sources except the existing sources in Public Court, Revolution Court and
Governmental Punishment Organization.
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