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DR RAJENDRA PRASAD MEMORIAL NATIONAL MOOT COURT

COMPETION 2021

BEFORE THE HONOURABLE SUPREME COURT OF INDICA

ORIGINAL WRIT JURISDICTION

PUBLIC INTEREST LITIAGTION

SPECIAL LEAVE PETITION

W.P.(CIVIL) NO. 68/2020

SLP No.145/2020

UNDER ARTICLE 32 AND 136 OF CONSTITUTION OF INDICA

Mrs TALISA……………………………………………………………………. PETIONER

UNION OF INDICA & OTHERS………………………………………...RESPONDENTS

UPON SUBMISSION OF THE HON,BLE CHIEF JUSTICE AND HIS COMPANION

JUSTICES OF THE SUPREME COURT OF INDICA

MEMOMRANDUM OF BEHALF OF THE RESPONDENT

THE COUNSELS FOR PETITIONER:

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 Team Code:001

TABLE OF CONTENT

S.no Particulars Page no.

1. List of Abbreviation 1

2. Index of Authorities 2-3

3. Statement of Jurisdiction 4

4. Statement of Fact 5-10

5. Statement of Issues 11

6. Summary of Arguments 12-13

7. Arguments Advanced 14-25

8. Prayer 26

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LIST OF ABBREVIATION
LIST OF

ABBREVIATION FULL FORM

¶ Paragraph

Add. Additional
AIR All India Reporter

Anr. Another
Cr. P.C. Code of Criminal Procedure

Cri. L.J. Criminal Law Journal

ed. Edition

Exh. Exhibit

Hon’ble Honorable

IPC Indian Penal Code

Ors. Others

r/w Read With

Art. Article

Vs. Versus

Pat. Patna

CPC Civil procedure code

AC Appeal Cases

SCC Supreme Court Cases

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INDEX OF AUTHORITIES
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STATUTES:

1. CONSTITUTION OF INDICA, 1950

2. DRUGS AND COSMETICS RULE, 1945

3. CONSUMER PROTECTION ACT, 1986

4. HUMAN IMMUNODEFICIANCY VIRUS & ACQUIRED IMMUNE

DEFICIANCY SYNDROME (PREVENTION AND CONTROL) ACT, 2017

5. LIMITATION ACT, 1963

6. HINDU MARRIAGE ACT, 1955

7. CODE OF CRIMINAL PROCEDURE, 1973

8. CIVIL PROCEDURE CODE, 1908

BOOKS:

1. J,N,PANDEY, Constitution of India.

2. V.N.SHUKLA, Constitution of India, Thirteenth Edition.
3. C.K.TAKWANI, Civil Procedure Code and Limitation, Ninth Edition
4. C.K.TAKWANI, Code of Criminal Procedure
5. PARAS DIWAN, Hindu Law
6. DR. R.K. BANGAYA’s Law of Torts, Consumer Protection Act and M.V. Act

LINKS REFERRED:

1. www.lawctopus.com
2. www.indiankanoon.org
3. www.livelaw.com
4. www.lawcorner.in
5. www.kanoon.com
6. www.vakilno1.com
7. www.timesofindia.indiatimes.com
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8. www.casemine.com

9. scroll.in

10. indianexpress.in

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 11. www.hindustantimes.com

12. www.thehindu.com

13. www.indiatvnews.com

14. nbtc.nacogov.in

15. www.latimes.com

16. gscbt.net

17. www.legalservicesindia.com

18. www.myamericannurse.com

19. pubmrd.ncbi.nlm.nih.gov

CASES:

● Mr.X v. Hospital Z, 1999

● R.S. Bhatnagar v. Bakt Sajjan
● Gulam Hassan Bangi v. Hamida & Anr.
● Mohammed Ahmed (Minor) vs Union of India & Ors (Delhi High Court, 2014)
● State of Maharashtra vs Chandrabhan, AIR 1983 SC 803
● L v. Dr. G & Anr. (12Apr. , 2007)
● Harindra U. Singh v. Dr. K. S. Sethna
● Achut Rao Haribhau Khodwa V. The State of Maharashtra
● State of Punjab v. Ram Lubhaya case
● Laxman v. Trimbak Bapu Godbole & Anr.
● Roe Woolley vvv. The Ministry Of Health

ARTICLES & JOURNALS:

 THE HINDU
 TIMES OF INDIA
 HINDUSTAN TIMES
 INDIAN EXPRESS

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STATEMENT OF JURISDICTION

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The Hon‟ble Supreme Court of Indica has the jurisdiction in this matter under Article 32 of
the Constitution of Indica which reads as follows:

“32. Remedies for enforcement of rights conferred by this Part-

1. The right to move the Supreme Court by appropriate proceedings for the enforcement
of the rights conferred by this Part is guaranteed.

2. The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari, whichever may be appropriate, for the enforcement of any of the rights
conferred by this Part.

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STATEMENT OF FACTS

Your Lordship, with due your permission, I would like to lay down my humble submission
on behalf of Petitioner, Mrs Talisha for seeking the justice in light of law before your
considerations. The facts of the case are:
1. The Union of Indica is a sovereign, socialist, secular, democratic and republic country
with a population of about 1.38 billion people. Indica has a written Constitution that
came into force on 26th January 1950 and is a federal government with a strong
centralizing tendency. In Indica, the Fundamental Rights, embodied in Part III of the
Constitution, are justiciable and the importance of the Directive Principle of State
Policies is appreciated in realizing the objectives of a welfare state. Under the
Constitution, three organs of the state are established: The Parliament, the Executive,
and the Judiciary.
BACKGROUND
2. Mrs. Talisa Stark is a computer operator in an orphanage named Goodlife, with a
salary of Rs 20,000 per month. The orphanage is in Highgarden, a western district of
the State of Westeros. She is married to Mr. Rob Stark for the past six years. Rob is
an assistant teacher in a government school of the same district. The relationship
between the husband and wife haven’t been very harmonious. The rough patch in
their relationship began in the second year of their marriage, when Talisa had an
abortion without the consent of her husband. Things got so bitter at the time that Rob
threatened to press cruelty charges against his wife. However, things returned to
normalcy after Talisa conceived again in January 2018.
MEDICAL BACKGROUND
3. Both the husband and wife were excited about the pregnancy and took all the required
care and precaution.

In April 2018, Talisa went to the Hospital for her routine tests which included
Glucose Tolerance Test (GTT), Thyroid and Enzymes Linked Immunosorbent Assay
(ELISA) tests for HIV I and HIV II antibody, all of which were negative.

On 23rd October 2018, after six months she was admitted to the Dr Tyrion
Lannister’s Happy Mother Clinic for the delivery of the child. Due to some
complications, the attending physician decided to perform Caesarean surgery. Dr
Lannister asked Rob to fill up the standard consent form required for the surgery,
which he instantly did. After an hour into the operation, Talisa delivered a Baby Boy,
Jon.

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After the delivery, she suffered from postpartum hemorrhage, one of the leading
causes of maternal mortality. Due to excessive blood loss, Talisa’s blood pressure
started to drop severely, and the doctor had to take critical decisions in such pressing
situation. The doctor decided that blood transfusion is the only recourse available and
accordingly asked Rob to arrange for six units of blood. Rob went to a private blood
bank at Bravos, 5 km away from the clinic, named Targaryen Charitable Blood Bank.
He purchased six units of blood and handed it over to Dr. Lannister along with
certificate which was given to him by the blood bank with respect to the blood’s
suitability for transfusion. Dr. Lannister observed that a label from the blood bag was
missing. Since time was of the essence and he was in a hurry, he hastily enquired with
Rob about the same, to which Rob replied that he was not sure if while handling the
blood bags, he rubbed off any label. The doctor nodded and went ahead with the
blood transfusion to save the life of his patient. After the transfusion, both, the mother
and the child, seemed fit and therefore, were discharged from the clinic.

Few weeks after the discharge, Talisa experienced frequent low-grade fevers and
night sweats, loss of appetite, inability to sleep and overwhelming fatigue. She
consulted Dr Lannister since he has been her attending physician throughout her
pregnancy. Dr Lannister explained to her that these are the signs of postpartum
depression and that taking rest and meditating can solve her issues. After few days, in
November 2018, Talisa developed boils on her skin and had urine and stool infection.
She again consulted Dr Lannister, who then prescribed certain medication after which
her condition stabilized temporarily. However, the symptoms resurfaced and this time
she consulted another physician, Dr. Samuel Tarly at the Citadel Hospital. Dr. Tarly
asked Talisa about her family history and if she has had any operation which required
blood transfusion. After learning about the recent blood transfusion, Dr Tarly asked
her to undergo ELISA test, in which she tested HIV positive. Upon her diagnosis, Dr
Tarly advised a similar test for Jon. In Dr Tarly’s opinion, even though the transfusion
took place after the delivery of the child, continuous breast feeding could have
infected the child as well. Jon too tested HIV positive.

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ACTION TAKEN BY FAMILY COURT OF HIGH GARDEN

4. The hospital informed her about the status and counselled her accordingly. Talisa asked
Dr Tarly and Citadel Hospital authorities not to tell anything to anyone, especially her
husband. She said that she will tell her husband about her disease when the time comes.
Believing that Talisa will not tell her husband about her HIV positive status at the earliest,
they informed the husband, Rob about her HIV positive status, after informing Talisa
about their intention to do so. After Rob got to know that his wife is HIV positive, he
filed for a divorce under Section 13(1) (v) of Hindu Marriage Act, 1955. The Family
Court of Highgarden granted the divorce and proceeded for hearing on the issue of
maintenance to Talisa. On the date fixed for the hearing on the issue of maintenance,
neither Talisa nor her advocate was present in the court, without any notice. The court
passed an ex parte order against Talisa denying any maintenance to her. After 3 months of
passing of the order, Talisa filed an application in the court through another advocate for
setting aside the ex parte order. She claimed that she was unaware about the court
requirements and her advocate was negligent as neither he had asked her to be present in
the court nor had informed her about his absence. However, the family court dismissed
the application on the ground of inordinate delay. Against the order of the Family Court,
Talisa filed an application before the High Court of the state of Westeros and the High
court had upheld the Order of the Family Court. Now, Talisa has filed a Special Team Code:001
Leave Petition before the Hon'ble Supreme Court of Indica (SLP No. 145/2020).

ACTION TAKEN BY OMBUDSMAN & NATIONAL DIESEASE TRIBUNAL

5. At the same time, Talisa had filed a complaint before the ombudsman appointed under
The Human Immunodeficiency Virus and Acquired Immune Deficiency
Syndrome(Prevention and Control) Act, 2017 (Annexure I) on the ground of violation
of Section9 of the Act by Dr Samuel Tarly and the Citadel Hospital and claimed
damages for the same. She had claimed that the hospital authorities should not have
informed her husband about her HIV positive status as she specifically asked them not
to and that she was eventually going to do so at a right time and place and in a proper
manner. Ashe got the news from the hospital authorities and not from her, a bad
impression was created in the mind of her husband that she was not going to tell him
and that she wanted to infect him as well. This led to her divorce and a mental injury
was caused to her as well as her child in the form of abandonment. On the other hand,

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 the hospital authorities argued that they had informed the husband as they believed
that she was not going to tell her husband at the earliest and there was a substantial
risk of infection to her husband. Also, the husband has exercised his legal right in a
lawful manner through lawful means. Therefore, it cannot be said that mental injury
or abandonment has been caused to Talisa. The ombudsman decided in favour of
Talisa on the ground that the communication of such sensitive information by a
stranger had a disastrous impact over her marital relationship which eventually led to
her divorce. Therefore, the act of the hospital had a negative impact over her mental
well-being and the hospital is liable to pay a compensation of Rs 10 Lakhs to her. The
hospital went for appeal to the National Disease Tribunal. The tribunal overturned the
decision of the ombudsman and decided in favour of the hospital on the ground that
exercise of legal right in a lawful manner cannot be said to be causing mental agony
to her. Now, Talisa has filed an appeal before the Hon’ble Supreme Court of Indica
(Civil Appeal No. 314/2021).

ACTION TAKEN BY SCDRC & NCDRC

6. Talisa also filed a complaint against the blood bank, Targaryen Charitable Blood
Bank, as well as the attending physician, Dr Tyrion Lannister, before the State
Consumer Dispute Redressal Commission (SCDRC), Westeros in January 2019. The
complaint was filed against the blood bank for selling the HIV infected blood, without
proper labelling on the blood bag, to Rob for the blood transfusion of the
complainant; and against the doctor (i)For not testing the blood before carrying out
the transfusion, in spite of noticing missing labels from the blood bag, particularly
when proper labelling on the blood bag is a requirement under the Drugs & Cosmetics
Rules, 1945, (ii) for not taking real and valid consent for the blood transfusion, as the
complainant wasn’t informed about the inherent risks involved. The complainant
prayed for the compensation of Rs. 18 Lakh for the medical treatment for herself Team Code:001

and her son Jon.

Before the SCDRC, Westeros, the blood bank and the doctor both contended that it is
highly unlikely that the infection had been passed through breastfeeding. Therefore, it
is not safe to rule out all the other possibilities through which the complainant could
have been infected and to assume that the blood transfusion has resulted in the
infection. The blood bank argued that improper sterilization of equipment in an

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 operation including caesarean, infected needles, scalpels, tattooing equipment, etc can
also transmit HIV and most prominent route of the transmission is through
unprotected intercourse with an infected partner. Hence, he contended that paternity
test should done for this situation prior to admitting the allegations made by the
complainant. It was also averred that even if it is to be believed that the complainant
was transmitted HIV through the blood transfusion, the blood bank cannot be held
liable for the same since it had taken all the reasonable precautions and there is
always an inherent risk in blood transfusion because a donor, who, despite having
HIV virus in his blood, being in window period when tested, the aforementioned test
would give negative test report. The Doctor contended that in cases of postpartum
hemorrhage, blood transfusion is the only way to save the life of the patient. Also, the
consent form for the caesarean operation specifies that the operation may or may not
require blood transfusion, depending on the case at hand. Therefore, no additional
consent was required apart from the general consent, which was already signed by
Rob, for the blood transfusion

The SCDRC, Westeros held the blood bank liable for deficiency in service under the
Consumer Protection Act, 1986 since the blood purchased from the blood bank
transmitted HIV to the complainant. As far as the medical negligence by the doctor is
concerned, since the concerned doctor had failed to obtain a valid and real consent
from the complainant and the blood transfusion to the complainant was an
unauthorized act amounting to a tortious act of assault and battery, there was a
deficiency in service on his part as well. The commission directed the Doctor to pay
Rs. 18 Lakh towards the expenses claimed for the medical treatment of the
complainant and her son. An appeal against the order of SCDRC was filed under
Section 19 of the Consumer Protection Act, 1986 before the National Commission
Dispute Redressal Commission (NCDRC). The same was dismissed by the NCDRC
on merits. Against the order of NCDRC, the blood bank and the Doctor filed an
appeal before the Hon’ble Supreme Court of Indica under Section 23 of the Consumer
Protection Act, 1986 (Civil Appeal No. 329/2020).

JON’S MEDICAL CONDITION

7. While the proceedings were pending before NCDRC, Jon was diagnosed with a rare
disease called Duchenne Muscular Dystrophy (DMD), which affects the use Of

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 voluntary muscles in the body resulting in difficulty in walking, running or climbing
and even struggling to lift their head due to a weak neck. If the disease is left
untreated, the child is unlikely to survive. Given Jon’s history of HIV, the condition
was far more severe than the usual cases of DMD. The available therapy in the global
market is called Antisense Oligonucleotide (AON). An antisense therapy involving
the drug ‘Exondys 51’, manufactured and supplied by Sarepta Therapeutics, Capitalia
is available in Indica and approved by the Central Drug Standard Control
Organization. No Indican drug company has developed a competing drug for this
disease till date. It is expected that patients receiving this treatment have a high
chance of surviving. The treatment, however, is lifelong and expensive.

8. Given the existing condition of Jon’s household, arranging for such treatment was
next to impossible. Talisa availed the financial assistance for Jon’s treatment from
Westeros Swasth Kosh. Under the scheme, Rs.6 Lakhs was released in favour of Jon.
However, since the total expenditure of the treatment was around Rs. 25 Lakh for a
year, the Westeros Government stated that no further financial assistance for medical
treatment can now be extended to the child. Talisa also sought aid under Rashtriya
Arogya Nidhi Scheme from the Central Government. However, the Central
Government did not extend the aid for more than Rs. 2 Lakh rupees stating the
reasons of financial constraints and that the State Government should be approached
for further assistance. With no support from her husband and no other option left,
Talisa, on behalf of Jon, filed a writ petition under Article 32 of the Constitution of
Indica, before the Hon’ble Supreme Court stating that the Central Government and
the Government of Westeros were obligated under Article 21 of the Constitution and
Directive Principles of State Policies to provide totally free treatment to the petitioner
and like patients. The Hon’ble Supreme Court admitted the said writ petition (WP
No.68/2020).

9. On the request of Talisa and considering the commonality of facts and circumstances,
the bench has agreed to club all the appeals and petitions filed by Talisa and hear
them together. The Supreme Court has posted the matters for final hearing in June
2021

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STATEMENT OF ISSUES

The issues before the Hon’ble Supreme Court are:

I. Whether the Central and State Government’s refusal to free treatment of minor suffering
from a rare disease, where the parent of the child cannot afford the treatment is in
violation of Article 21 of the Constitution of Indica?

II. Whether the ex parte order of the Principal Judge, Family Court, Highgarden is liable to
be set aside on the ground of negligence of the advocate and innocence of the party?

III. Whether NCDRC order upholding the decision of the SCDRC of holding the Targaryen
Charitable Blood Bank and Tyrion Lannister liable for deficiency in service and medical
negligence liable to be set aside?

IV. Whether the decision of the National Disease Tribunal denying the liability of Doctor
Samuel Tarly and Citadel Hospital for the violation of section 9 of HIAIDS Act, 2017, is
liable to be set aside?

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SUMMARY OF ARGUMENTS

ISSUE 1
Whether the Central and State Government’s refusal to free treatment of minor
suffering from a rare disease, where the parent of the child cannot afford the treatment
is in violation of Article 21 of the Constitution of Indica?
It is humbly submitted before the Hon’ble Supreme Court, that the government never refuse
for treatment for Jon, son of Mrs. Talisa .Even the State Government of Westeros has
released Rs.6 Lakhs under the scheme of Westeros Swasth Kosh and the Central Government
has released Rs. 2 Lakhs under Arogya Nidhi Scheme each for Jon’s treatment. All restitution
as per the government policies in this matter have already been reimbursed to Mrs.Talisa.
Hence the Government is not liable to pay any additional monetary benefit.

All possible efforts are being taken by the Government of Indica to ensure best possible
livings for the citizen.

ISSUE 2

Whether the ex parte decree of the Principal Judge, Family Court, Highgarden and
uphold by the High Court of Westeros is liable to be set aside on the ground of
negligence of the advocate and innocence of the party?

It humbly submitted before the honourable Supreme Court that an ex parte order of the
principal judge family court high garden uphold by the High Court of Westeros is not liable
to be set aside on the ground of negligence of the advocate and innocence of the party.
Because order 9 rule 13 of the Civil Procedure code 1908 clearly mentioned on the basis of
only two grounds an ex-parte decree can be set aside and those grounds are -
1) if the summon was not duly served
2) if he or she was prevented by any sufficient cause from appearing when the suit was called
out for hearing.
In the present case we can witness that nothing has happened according to the above ground
only because of the negligence of one of my learned advocate friend she was not present at
the time of hearing which is said by Mrs Talisa , is not true. She is deliberately avoided the
hearing of the court knowingly the consequences even after the court has duly served
summons to her. knowing to the consequences that she have to faced after proving guilty she
did not appeared for hearing.

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Thus, an ex parte decree was passed against her, which cannot be set aside as summon was
duly served to her and there is an absence of sufficient cause.

ISSUE 3

Whether NCDRC order upholding the decision of the SCDRC of holding the Targaryen
Charitable Blood Bank and Tyrion Lannister liable for deficiency in service and
medical negligence liable to be set aside?

Argument on behalf of the blood bank:

On behalf of the blood bank, it is argued that HIV can also be transmitted through improper
sterilization of equipment in an operation including caesarean, infected needles, scalpels,
tattooing equipment, etc. And the most prominent route of the transmission is through
unprotected intercourse with an infected partner. Hence, he contended that paternity test
should be done for this situation prior to admitting the allegations made by the complainant.
It was also averred that even if it is to be believed that the complainant was transmitted HIV
through the blood transfusion, the blood bank cannot be held liable for the same since it had
taken all the reasonable precautions and there is always an inherent risk in blood transfusion
because a donor, who, despite having HIV virus in his blood, being in window period when
tested, the aforementioned test would give negative test report. Moreover, it is also not
proved that one of the blood unit contained no label as the husband is not sure that whether
there was no label at all or the label had fallen off in due course. Thus, there is no proof that
the blood bank was negligent in any manner whatsoever to ensure that the blood stored in the
bank was not contaminated.

Thus, holding the blood bank liable would be wrong and the decision of the NCDRC order
upholding the decision of the SCDRC of holding the Targaryen Charitable Blood Bank is
liable for deficiency in service and medical negligence liable to be set aside

Argument on behalf of Dr. Tyrion Lannister

As regards negligence of the Doctor there is virtually no evidence to prove that Dr Tyrion
Lannister is guilt of medical negligence. He had simply admitted the petitioner herein for
delivery. He rightly opined that the petitioner needed to be operated and the operation was
successful and further when there was post-operative complication, he had rightly advised
blood transfusion. Though there was a label was missing yet there was no time for further
hesitating as there was lack of time to decide otherwise. Practically there was no other option
than to go ahead with the transfusion as and other act would seriously prejudice the life of the
petitioner and hence the doctor has made an appropriate decision by going ahead with blood
transfusion at that time. In cases of postpartum haemorrhage, blood transfusion is the only
way to save the life of the patient. Also, the consent form for the caesarean operation

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specifies that the operation may or may not require blood transfusion, depending on the case
at hand. Therefore, no additional consent was required apart from the general consent, which
was already signed by Rob, the ex-husband of the petitioner, whom she was married to at that
point of time.

Thus, holding Dr Tyrion Lannister guilty of negligence would be wrong and the decision of
the NCDRC order upholding the decision of the SCDRC of holding the Tyrion Lannister
liable for deficiency in service and medical negligence is liable to be set aside.

ISSUE 4

Whether the decision of the National Disease Tribunal denying the liability of Doctor
Samuel Tarly and Citadel Hospital for the violation of section 9 of HIAIDS Act, 2017, is
liable to be set aside ?

Section 9 of the HIV AIDS Act, 2017 states as follows:

Disclosure of HIV positive status to partner of HIV positive person

1) A healthcare provider, who is a physician or a counsellor, may disclose the HIV positive
status of a person under his direct care to his or her partner, if such health care provider- (a)
Reasonably believes that the partner is at a significant risk of transmission of HIV from such
person, and;

(b) Such HIV positive person has been counselled to inform such partner, and;

(c) Is satisfied that such HIV positive person will not inform such partner, and;

(d) has informed the HIV positive person of the intention to disclose the HIV positive status
to such partner, provided that disclosure under this section to the partner shall be made in
person after counselling; provided further that such healthcare provider shall not inform the
partner of a woman where there is a reasonable apprehension that such information may
result in violence, abandonment or actions which may have a severe negative effect on the
physical or mental health or safety of such woman, her children or someone close to her.

2) In case of the disclosure of the HIV positive status of a HIV positive person in violation of
this provision, the healthcare provider will be responsible to pay reasonable damages to such
HIV positive person.

Again by referring judgement of Mr. X v. Hospital Z, 1999,in the case

“The Court acknowledged the sanctity that confidentiality is given in both the
Hippocratic Oath and in the Indian Code of Medical Ethics. But the Court noted that the
doctor-patient privilege allowed for exceptions when the public interest would override the
duty of confidentiality, particularly where there is an immediate or future health risk to
others.”

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In the present case the doctor Dr. Samuel Tarly and the Citadel hospital authorities had
reasonable apprehension that the petitioner would hide the fact that she had contracted AIDS
from her husband and after due counselling of the husband they had informed the husband of
the petitioner herein. Thus, the Doctor and the hospital authorities have acted in good faith
and took all reasonable precautions and also adhered to all formalities as mentioned in
Section 9 of the HIV & AIDS Act. Moreover, there was already existing dispute between the
petitioner and her husband as appears from the facts of this case.

In the present circumstances it is quite apparent from the facts that the concerned doctor and
hospital acted in good faith and to save the husband from contracting the devastating and
deadly disease of AIDS unknowingly and thus they have acted for the greater interest of the
society.

Furthermore, the husband of the petitioner had exercised his right conferred by virtue of the
provisions of the Hindu Marriage Act, 1955 in a lawful manner and hence decision of the
National Disease Tribunal denying the liability of the doctor and the hospital for violation of
Section 9 of the HIV & AIDS Act, 2017 must be upheld by this Hon’ble Court and as such
should not be set aside.

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 Team Code:001

ARGUMENTS ADVANCED

1. Whether the Central and State Government’s refusal to free treatment of a

minor suffering from a rare disease, where the parent of the child cannot afford
the treatment is in violation of Article 21 of the Constitution of Indica?

It is Humbly submitted before the Hon’ble Supreme Court that the above acquisition made by
Mrs.Talisa against my client are totally baseless and irrelevant The decision taken by the
Central and State Government refusing free treatment of the petitioner and her child who is
suffering from a rare where parents of the child cannot afford the treatment is not in violation
of the Constitution of Indica.

In the present case the Central Government has already granted a compensation of Rs. 2
Lacs. Further the Petitioner was also granted financial assistance of Rs. 6 Lacs under
Westeros Swasth Kosh Scheme. Thus, it cannot be contended that the Central and the State
Government has refused to provide financial aid to the petitioner. However, it has to be kept
in mind that the Union of Indica is a Third World nation which is developing and has its own
limitations. The Directive Principle of State Policy enshrined in the Constitution is directory
in nature and contains a set of directions intended for achieving a welfare state. These
principles are to be kept in mind during formulation of rules, laws etc. with the object of
achieving a welfare state. However, they are not enforceable.

Furthermore Article 21 of the Constitution of Indica states that “No person shall be deprived
of his life or personal liberty except according to procedure established by law, nor shall any
person be denied equality before the law or the equal protection of the laws within the
territory of India1.”

According to the Constitution, Parliament and the state legislatures in India have the power to
make laws within their respective jurisdictions. This power is “NOT ABSOLUTE” in nature.
Art. 21 does not place an absolute embargo on the deprivation of life or personal liberty and
for that matter on right to livelihood. What Art. 21 insists is that such deprivation ought to be
according to procedure established by law which must be fair, just and reasonable. Therefore,
anyone who is deprived of the right to livelihood without a just and fair procedure established
by law can challenge such deprivation as being against Art. 21 and get it declared void.
If a person is deprived of such a right according to procedure established by law which must
be fair, just and reasonable and which is in the larger interest of people, the plea of
deprivation of the right to livelihood under Art. 21 is unsustainable.

1. Furthermore, in State of Punjab v. Ram Lubhaya Bagga2, the Supreme Court has
recognized that provision of health facilities cannot be unlimited. The court held that
it has to be to the extent finance permits. No country has unlimited resources to spend
on any of its projects.

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 2. In Consumer Education and Research Centre v. Union of India (1995)3 the court, in
a PIL, tackled the problem of the health of workers in the asbestos industry. Noticing
that long years of exposure to the harmful chemical could result in debilitating
asbestosis, the court mandated compulsory health insurance for every worker as
enforcement of the worker’s fundamental right to health. It is again in PIL that the
court has had occasion to examine the quality of drugs and medicines being marketed
in the country and even ask that some of them be banned.
A note of caution was struck when government employees protested against the reduction of
their entitlements to medical care. The court said:
“No State or country can have unlimited resources to spend on any of its projects. That
is why it only approves its projects to the extent it is feasible. The same holds good for
providing medical facilities to its citizens including its employees. Provision on facilities
cannot be unlimited. It has to be to the extent finances permit. If no scale or rate is fixed
then in case private clinics or hospitals increase their rate to exorbitant scales, the State
would be bound to reimburse the same. The principle of fixation of rate and scale under
the new policy is justified and cannot be held to be violative of article 21 or article 47 of
the Constitution.”

3. In, Asha Ranjan v. State of Bihar4 , the two- Judge Bench,  has held thus:-
"It is settled in law that the right under under Article 21 is not absolute. It can be curtailed in
accordance with law. The curtailment of the right is permissible by following due procedure
which can withstand the test of reasonableness.

Thus, in view of the above facts the right of the petitioner under Article 21 of the Constitution
of Indica is not absolute right and the Central and State Government is not bound to provide
the financial aid to the petitioner according to her demands or as prayed by the petitioner
rather the Central and State Governments can after considering its limitations make available
such financial assistance to the petitioner as it can provide without prejudicing other
necessities of the State.

4. In,Maneka Gandhi v. Union of India5, Apex Court observed that, The limitation can
only be placed by a law that has been enacted by any competent legislature and such
procedure has to be “just, fair, and reasonable”. Also, the validity of the procedure
established has to be judged against Article 14 (therefore, reasonability is requisite) as
well as Article 19 as these rights are not exclusive of each other (Golden triangle rule)

Thus, In this subsequent case same reasonability must be applied If government provide the
scheme’s Fund more to one and from that act if some beneficiary of the said scheme get
deprived from getting the benefit of the scheme will per-forcedly violate the Article.14 of the
constitution of Indica. And it Must be noted into account that government never refused to
provide financial Aid to the minor child they already helped him with there own capacity
under the scheme.

In this present case both the Central and State Governments have provided financial
assistance to the petitioner to the best of their ability and there was no refusal on their part to
provide assistance. Under these circumstances it cannot be held that the Central and State
Governments have acted in violation of the provision as enshrined under the provision of
Article 21 of the Constitution of Indica.

17
 Team Code:001

2. Whether the ex parte decree of the Principal Judge, Family Court, Highgarden,
uphold by the High Court of Westeros is liable to be set aside on the ground of
negligence of the advocate and innocence of the party?
It is humbly submitted before the honourable Supreme Court, that an ex-parte order of the
principal judge family court high garden is not liable to be set aside on the ground of
negligence of the advocate and innocence of the party.
Because order 9 rule 13 of the Civil Procedure code 1908 clearly mentioned that only on the
basis of two grounds that an ex-parte decree can be set aside and those grounds are -
1) if the summon was not duly served .
2) if he or she was prevented by any "sufficient cause" from appearing when the suit was
called out for hearing.
But in this case we can witness that nothing has happened according to the above ground an
ex parte decree was passed because of the non-appearance of the defendant, on the date fixed
for the hearing on the issue of maintenance, neither Talisa nor her advocate was present in the
court, without any notice., in which she is claiming that her counsel did not informed her
about the court proceedings, which is not true.
We must bring in notice to the court that Talisa know very well that her claim for
maintenance is invalid as per Section 125 of Crpc , which provides that , "wife is entitled to
claim maintenance if she is unable to maintain herself". But here in this case, Talisa is able to
maintain herself as she is a computer operator in an orphanage named Goodlife, with a salary
of Rs 20,000 per month.

R.S. Bhatnagar v. Bakt Sajjan

In this case it was hel that, an ex parte decree cannot be set aside if the party against whom
the decree is passed if he had knowledge of the date of hearing. Even if irregularity in the
service of summons is established if the defendant had the notice of the date of hearing the
Court cannot set aside the ex parte decree.
An application under Order 9 rule 13 must in accordance with the bounds of Art. 164 of the
Limitation Act 1908 be made within 30 days of the decree. This conditions is not fulfilled by
Ms.Talisa as filed the appeal after 3 months of passing of the order. Therefore, the family
court dismissed the application on the ground of inordinate delay.

Ghulam Hassan Bangi v. Hamida And Anr.

In this case, it was held that Section 5 of the Limitation Act for seeking condonation of delay
in filing the said application. The trial court dismissed the application on the gro...deal with
the grounds taken by the appellant therein for setting aside the exparte decree. The issue
regarding reasons for setting aside exparte decree has not been determined by..., subsequent
application filed for setting aside exparte decree accompanied by the application under
Section 5 of the Limitations Act.
Thus, the ex-parte order of the Principal Judge, Family Court High Garden is not liable to be
set aside.

18
3. Whether NCDRC order upholding the decision of the SCDRC of holding the
Targaryen Charitable Blood Bank and Tyrion Lannister liable for deficiency in service
and medical negligence liable to be set aside?

It is humbly submitted before the Honorable Supreme court of Indica, that all the acquisition
made by Mrs. Talisa against my clients are totally baseless and irrelevant. That NCDRC
upholding the decision of the SCDRC of holding the Targaryen Charitable Blood Bank and
Dr. Tyrion Lannister liable for deficiency in service and medical negligence, must be set
aside.

3.1. Whether Targaryen Charitable Blood Bank held liable for deficiency in service ?

It is to be noted that not only in blood transfusion inherent risks of getting HIV but improper
sterilization of equipment in an operation including caesarean, infected needles, scalpels,
tattooing equipment, etc. can also transmit HIV and most prominent route of the transmission
is through unprotected intercourse with an infected partner.
Even the route cause from where the petitioner got the Disease is unknown because in April
2018, Talisa went to the Hospital for her routine tests which included Glucose Tolerance
Test (GTT), Thyroid and Enzymes Linked Immunosorbent Assay (ELISA) tests for HIV I
and HIV II antibody, all of which were negative. And in the month of October dated 23rd
October,2018 she got admitted to Dr Tyrion Lannister’s Happy Mother Clinic for the
delivery of the child. And it must be noted that the difference between the Tests reports and
the Labor period of Talisa is about Six(6) month she neither tested in between this 6 month
nor she test before labor.
To illustrate how the Blood bank is not liable for Any deficiency in service I would like to
give Light on the fact that
i. before blood is collected, full care and caution is taken to ascertain that donor is fit for
blood donation. Sample of blood collected from selected donors and while collecting
blood from such donors, all mandatory tests are performed as per FDA guidelines.
According to Targaryen Charitable Blood Bank procedure for collecting, storing and
forwarding of the blood unit at his Laboratory and normally in all Blood banks is as follows:-

a) Arrival of the donor

b) Medical history and clinical examination of the donor
c) Filing up of the Declaration Form by the donor as to his personal data and past medical
history including blood donation/transfusion
d) Collection of the blood sample for the mandatory laboratory tests

19
e) Collecting blood from the donor on the same day, if found suitable following the
laboratory tests
f) A sample of blood from the donated unit is then sent to the Government approved Zonal
Blood Testing Centre to confirm the HIV status.
g) Proper labeling and storing of the blood unit in the Blood Bank refrigerator.
h) If the Zonal Blood Testing Centre report is positive for HIV antibodies, then the said
blood unit is sent to the same Zonal Blood Testing Centre for proper discarding of the
suspect unit.
i) At no time any blood unit which is HIV positive is allowed to remain in the Blood Bank
refrigerator for any longer period.
j) On receipt of the requisition for blood, the said requisition is verified for its propriety.
k) The sample of blood brought along with the requisition is grouped and subsequently
cross matched with the proper unit.
l) The blood unit is then packed in proper ice container with proper labeling, instructions
and certificate with respect to its suitability for transfusion i.e. stating the blood group,
the unit no., the date of collection, the date of expiry and its freedom from any sexually
transmitted disease, including HIV, HBsAg and malarial parasites etc. All this
information is provided in one form.
It is also need to be noted that when a donor donates blood then the Blood bank conducts all
the necessary tests and puts appropriate label on the blood bag.Hence, the blood bank not fail
in his duty to take due and proper care in collecting the blood, in getting it tested from Blood
Testing Center,
ii. Blood cannot be said to be product and therefore, this Commission has no jurisdiction to
entertain and try such type of complaint.

L vs Dr.G & Anr on 12 April, 2007 ( Consumer Dispute Redressal Commission)

Maharashtra.

In this case it was mentioned that before any patient is advised to undergo HIV test, Pre-test
and Post-test Counselling, by the referring doctor or counsellor is a must. So, complainant
must have undergone pre-test and post-test counselling and must have been properly given
educational information. Counselling inter alia informs such a patient following things:-

a. That an HIV antibody test can be positive or negative. [The routinely performed screening
test is ELISA (Enzyme Linked Immunosorbent Assay)].
b. That in case the test is negative, it should be repeated after 3 months and then again at 6
months. This is because a negative test report could also mean that the patient could be in the
window period.
c. The window period means the time interval taken by the body to develop antibodies
against the HIV antigen. This window period lasts for 3 to 6 months following HIV infection
and this window period must elapse before results can be considered reliable. This is because

20
during the window period, though the patient is infected with the HIV, no screening tests
currently recommended by F.D.A. could detect the virus, as no antibodies have developed to
give the antigen-antibody reaction upon the test.
d. That if the test is positive, the result must be confirmed with Western Blot Test.
e. Other information on control/avoidance of HIV infection etc.

The element (b) & (c) of the above mentioned case is missing in the petitioner part She has
not gone through any Test before her labor and on the basics of 6 month old Report she filed
a case against The blood bank Which is totally baseless and irrelevant moreover this case is
not comes under jurisdiction of consumer protection act and the decision taken by National
Commission Dispute Redressal Commission (NCDRC) against Targaryen Charitable Blood
Bank must be set aside.

On-behalf of Dr.Tyrion Lannister

It is humbly submitted before the Honorable Supreme court of Indica, that all the acquisition
made by Mrs. Talisa against my clients Dr. Tyrion Lannister is also baseless and doesn’t hold
any strong ground to prove him guilty of medical negligence.

My client had simply admitted the petitioner herein for delivery. He rightly opined that the
petitioner needed to be operated and the operation was successful and further when there was
post-operative complication, he had rightly advised blood transfusion. Though there was a
label was missing yet there was no time for further hesitating as there was lack of time to
decide otherwise. Practically there was no other option than to go ahead with the transfusion
as and other act would seriously prejudice the life of the petitioner and hence the doctor has
made an appropriate decision by going ahead with blood transfusion at that time. In cases of
postpartum haemorrhage, blood transfusion is the only way to save the life of the patient.
Also, the consent form for the caesarean operation specifies that the operation may or may
not require blood transfusion, depending on the case at hand. Therefore, no additional consent
was required apart from the general consent, which was already signed by Rob, the ex-
husband of the petitioner, whom she was married to at that point of time.
1.In all cases of medical negligence, courts are required to see whether doctors had taken due
and reasonable precaution in the circumstances obtainable. In India is for everything
inclusive of blood transfusion and for surgery another consent is obtained. Here, Dr. Tyrion
Lannister had obtained general consent from petitioner Husband and general consent includes
consent for blood transfusion.
The following are such cases where another person can sign the consent form:
Minor- When the patient is a minor who is incapable of making decisions for their
betterment. The parents or guardian of the minor can sign the form on their behalf.
Advance Directive - In this case, the patient himself has directed the other person to make
their future medical decisions. A form has to fill prior to giving consent which is called an
advance directive. It will allow someone else to be consent on your behalf.

21
Cannot give consent- when the person is incapable to give consent then the other can give the
consent. These are the cases where the patient is in coma and Alzheimer.
2.In, Harindra U. Singh, vs. Dr. K. S. Sethna, the court opined that Negligence cannot be
attributed to a doctor so long as he performs his duties with reasonable skill and competence.
Merely because the doctor chooses one course of action in preference to the other one
available, he would not be liable if the course of action chosen by him was acceptable to the
medical profession. VIII. It would not be conducive to the efficiency of the medical
profession if no Doctor could administer medicine without a halter round his neck.
It is our bounden duty and obligation of the civil society to ensure that the medical
professionals are not unnecessary harassed or humiliated so that they can perform their
professional duties without fear and apprehension.

3. In the case of Laxman vs. Trimbak Bapu godbole and Anr, the Hon'ble Supreme Court
observed:
"The duties which a doctor owes to his patient are clear. A person who hold himself out ready
to give medical advice and treatment impliedly undertakes that he is possessed of skill and
knowledge for the purpose. Such a person when consulted by a patient owes him certain
duties, viz., a duty of care in deciding whether to undertaken the case, a duty of care in
deciding what treatment to give or a duty of care in the administration of that treatment. A
breach of any of those duties gives a right of action for negligence to the patient. The
practitioner must bring to his task a reasonable degree of skill and knowledge and must
exercise a reasonable degree of care. Neither the very highest nor a very low degree of care
and competence judged in the light of the particular circumstances of each case is what the
law requires; (of Halsbury's Laws of England, 3rd Ed. Vol.26 p.17).
4. In the case of Achut Rao Haribhau Khodwa vs. State of Maharashtra, Hon'ble
Supreme court observed:
"A medical practitioner has various duties towards his patient and the must act with a
reasonable degree of skill and knowledge and must exercise a reasonable degree of care. This
is the least which a patient expects from a doctor. The skill of medical practitioners differes
from doctor to doctor. The very nature of the profession is such that there may be more than
one course of treatment which may be advisable for treating a patient. Courts would indeed
be slow in attributing negligence on the part of a doctor if he has performed his duties to the
best of his ability and with due care and caution. Medical opinion may differ with regard to
the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in
manner which is acceptable to the medical profession and the court finds that he has attended
on the patient with due are, skill and diligence and if the patient still doe snot survive or
suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of
negligence. But it cases where the doctors act carelessly and in a manner which is not
expected of a medical practitioner, then in such a case an action in torts would be
maintainable.
5. In Roe Woolley v. The Ministry of Health, Lord Justice Denning said: "it is so easy to be
wise after the event and to condemn as negligence that which was only a misadventure.
We ought always to be on our guard against it, especially in cases against hospitals and
doctors. Medical science has conferred great benefits on mankind but these benefits are
attended by unavoidable risks. Every surgical operation is attended by risks. We cannot take

22
the benefits without taking the risks. Every advance in technique is also attended by risks.
Doctors, like the rest of us, have to learn by experience: and experience often teaches in a
hard way".
It was also observed in the same case that "We must not look at the 1947 accident with 1954
spectacles:". "But we should be doing a disservice to the community at large if we were to
impose liability on hospitals and doctors for everything that happens to go wrong. Doctors
would be led to think more of their own safety than of the good of their patients. Initiative
would be stifled and confidence shaken. A proper sense of proportion requires us to have
regard to the conditions in which hospitals and doctors have to work. We must insist on due
care for the patient at every point, but we must not condemn as negligence that which is only
a misadventure".
Hence, my client Dr. Tyrion Lannister performing his duty and he advised as best for
petitioner at the time of her labor also he has taken due consent from his spouse and
successfully performed Caesarean surgery even the blood transfusion decision taken by my
client to save the life of the petitioner as she was suffering from postpartum haemorrhage,
one of the leading causes of maternal mortality. In this kind of pressing situation doctors had
to take critical decisions for saving the life of patient. Blood transfusion was only solution
seen by my client and he did that by taking prior consent from petitioner spouse
Henceforth, my client is nowhere guilty of any medical negligence from his side because he
has given every due care to the petitioner on the time of her labor as well as her post-labor
period and he performed his duty with allegiance by keeping in my all-medical ethics
Hence, the NCDRC decision to uphold the decision of the SCDRC of holding the Dr. Tyrion
Lannister liable for deficiency in service and medical negligence must be set aside

4.Whether the decision of the national disease tribunal denying the liability of doctor
Samuel Tarly and citadel hospital for the violation of section 9 of hiv aids act ,2017 is
liable to be set aside?

Talisa had filed a complaint before the ombudsman appointed under the human
immunodeficiency virus and acquired immune deficiency syndrome (prevention and
control)act,2017(annexure 1)on the ground of violation of section 9 of the Act by Dr. samuel
tarly and the citadel hospital and claimed damages for the same.

Hospital authorities argued that they had informed husband as they believed that she was not
going to tell her husband at the earliest and there was a substantial risk of infection to her
husband.Also, the husband has exercised his legal right in a lawful manner through lawful
means.Therefore it cannot be said that mental injury or abandonment has been caused to
Talisa.

“Marriage is the sacred union, legally permissible, of two healthy bodies of opposite sex.It
has to be mental,psychological, and physical union .When two souls thus unite, a new soul
comes into existence. That is how life goes on and on this planet.”

23
The above quotation presented before the court to clear that neither Mrs. Talisa had good
relation with her husband which can be assumed with the help of fact of the case that they did
not have healthy relationship before his Son Jon born neither she have healthy body which
allows Rob to give her divorce under Section 13(1) of Hindu Marriage Act 1955 because
the relationship between them are not mentally & psychologically bounded but stand on only
compromises due to to Son Jon. So the fact clear that Dr. Samuel Tarly and Citadel Hospital
have no hand in their divorce.

Section 9 Human Immunodeficiency Virus & Acquired Immune Deficiency Syndrome

Act, 2017

(1) No healthcare provider, except a physician or a counsellor, shall disclose the HIV-positive
status of a person to his or her partner.

(2) A healthcare provider, who is a physician or counsellor, may disclose the HIV positive
status

of a person under his direct care to his or her partner, if such healthcare provider—

(a) reasonably believes that the partner is at the significant risk of transmission of HIV from
such person; and

(b) such HIV-positive person has been counselled to inform such partner; and

(c) is satisfied that the HIV-positive person will not inform such partner; and

(d) has informed the HIV-positive person of the intention to disclose the HIV positive status
to such partner: Provided that disclosure under this subsection to the partner shall be made in
person after counselling: Provided further that such healthcare provider shall have no
obligation to identify or locate the partner of an HIV-positive person: Provided also that such
healthcare provider shall not inform the partner of a woman where there is a reasonable
apprehension that such information may result in violence, abandonment or actions which
may have a severe negative effect on the physical or mental health or safety of such woman,
her children, her relatives or someone who is close to her.

(3) The healthcare provider under sub-section (1) shall not be liable for any criminal or civil
action for any disclosure or non-disclosure of confidential HIV-related information made to a
partner under this section. It is clearly mentioned under section 9(2) of this HIV AIDS act
that a physician can disclose a patient's status of HIV positive after counseling him. So in the
present case Dr.Tarly and Citadel Hospital authority disclose her status of being HIV positive
after counseling her,as they had the reason to believe that she was not going to tell her
husband about her status which is dangerous for her husband, he may be infected by HIV.

Mr. X Vs. Hospital Z – Disclosure of Dreadful Diseases

Section- 34 of the HIV and AIDS(Prevention and Control) Act,2017 which came into force
after this case has inscribed this rule of keeping parties name anonymous. The parties should
request the court to replace their name with a pseudonym and the court is under an obligation

24
to do a speedy trial ‘in camera’. People are restrained from publishing matter that will
disclose the identity of the person.

However, this section prevents the name of only HIV patients from being disclosed. In the
present case, it is to be noted that the court has not even disclosed the name of the Hospital in
order to prevent its image in the market from getting tarnished.

The facts of the case

A man was supposed to marry his fianceé but it was called off since he was diagnosed as an
HIV positive patient and his doctor disclosed this fact to his fianceé. The man contended that
the respondent hospital and doctor had breached their duty under medical ethics by
disclosing the information.

Right that Prevails when there is a Conflict between Two Fundamental Rights

The counsel for the plaintiff argued that the plaintiff has a right to marry but the court said
that right is not an absolute right but comes along with a duty to disclose information that
would affect the other spouse.

In the present judgment, the court has discussed how every right comes with a duty barring
certain rights which the court mentioned.

The judgment deals with the conflict between two fundamental rights-

● Right to privacy as an extension to right to life

● Right of the fianceé to a healthy life as enshrined under Article 21.

The court favored the right which was more towards public interest. The fianceé’s right to life
should be protected over the Right to Privacy of HIV patients.

The court, hence, held that the doctor had done no wrong in disclosing the HIV positive
status to the fianceé.

The Right of Marriage cannot be Suspended

The court did not stop at deciding on a patient's Right to Privacy but unnecessarily went
beyond to decide his right to marriage.

The controversial aspect of the judgment was the fact that the court held that the ‘right to
marry’ will be ‘suspended’ for the HIV AIDS patients until they are cured.

The judge’s counter to the appellant’s counsel’s argument that every man has a right to marry
seems justified. They asserted that every right comes with a duty and hence it is the
appellant’s not only moral but legal duty to inform his fianceé of his HIV AIDS status.

25
However, the reason behind this seems incommensurate. The court has relied on the various
divorce provisions where the grounds of divorce include a venereal disease in a
communicable form1. The fact that it is one of the grounds for divorce shows that every
spouse has a right to health and life and hence this provision extends to even before marriage
and the person suffering from such kinds of communicable diseases, cannot marry until that
person is cured.

Whether Silence on the Part of Appellant amounts to a Crime under Section-269 and
Section-270 of IPC?

Another question raised was whether the appellant could be charged under Section-269 and
Section-270 of IPC which talks about unlawfully, negligently or maliciously spreading of a
disease.

The court’s holding, that, appellant would have committed this crime if he had remained
silent about his HIV status and married his fianceé and the doctor would have been
participant criminals if he hadn’t disclosed the information to appellant’s fianceé, seems
flawed.

The court here has equated the appellant’s silence to him being negligent by not fulfilling his
duty of disclosing the information that would vitiate his spouse’s consent to marriage. The
court’s reasoning seems to be based on two things-
● Negligence arises where there is a duty to take care and that duty has been breached.
● Consent to marriage should not be vitiated by fraud or misrepresentation.
Mr. X vs. Hospital Z overruled by Mr. X vs. Hospital Z
This judgment later went for clarification2 where the Supreme Court held that the judges had
erred in their judgment by deciding on the matters which were irrelevant to the case. The
judgment holds good as far as the disclosure by the doctor and the right of fianceé to know
are concerned. The court upheld the decision on these two matters and disregarded the
Judge’s decision on everything else.
Conclusion Derived from the Judgement
Hence, what can be understood from the judgment is that the HIV AIDS patient’s right to
marriage is not suspended. They can marry with the informed consent of the other spouse.
Disclosure Of Information by Hospital amounts to Deficiency in Service
Another surprising facet of the case was that in the clarification judgment, the court has
mentioned section-2 of Consumer Protection Act, 1986, which talks of ‘deficiency in
service’. Though the court has not discussed this in the present judgment, it arises curiosity as
to whether ‘disclosure of information’ would amount to a ‘deficiency in service’ of the
hospital.
Deficiency is defined under the Act.

26
“Deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality,
nature, and manner of performance which is required to be maintained by or under any law
for the time being in force or has been undertaken to be performed by a person in pursuance
of a contract or otherwise in relation to any service;
Here, the question is whether the doctor and hospital’s manner of performance of service
could be said to be inadequate. Whether disclosure of confidential information extends to
‘deficiency in service’ or it comes separately as ‘violation of legal duty’ is to be considered.
Both these things rest on the doctor-patient relationship which is a commercial relationship.
Service- As per the Consumer Protection Act, ‘service’ is anything for consideration and
since the doctor-patient relationship is commercial, it is a service provided by a doctor to a
patient under the act.3
Legal Duty- The legal duty also rests on confidentiality which arises from the doctor-patient
commercial relationship. Both arise from the same source and violation of one may be
considered a violation of the other since both affect the same source.
The Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome
(Prevention And Control) Act, 2017
The act was formed by our Parliament to fulfill its commitment under the Declaration of
Commitment to The Human Immunodeficiency Virus And Acquired Immune Deficiency
Syndrome (2001).
Section 9 of the act lays down an exception to the concept of “informed consent” as
mentioned under Section- 8(2)(d).
“Informed consent”4 as differentiated from consent means consent to a specific intervention
which has been laid down in the guidelines without coercion, fraud, mistake or
misrepresentation by the person himself and his representative.
The act also defines “capacity to consent”5.
A person has the capacity to consent under the act if he can understand the consequences of
his actions and hence make an informed decision about it. It is hence subjective and gives a
very wide ambit.
Section- 8(2)(d) talks about not compelling a person to disclose his HIV status. It is to be
revealed with his informed consent.
However, informed consent of a person to disclose his HIV status is not needed under section
9 which allows doctors or in the terms of the act “healthcare providers to the limit of
physician and counselors” to inform the partner of the person about his HIV status in certain
cases which have been mentioned below:
● The doctor reasonably believes that the partner is at risk of transmission of HIV.
● The HIV person has already been counseled to inform his partner.
● The doctor is satisfied that the HIV person is not going to inform his partner.
● The doctor has informed the HIV person that he is going to tell the person’s partner.

27
The only exception is given to a woman where there is a reason to believe that if her partner
is told, she would be subjected to violence or abandoned by him or there might be some
negative effect on the mental or physical health of the woman, her children, her relatives or
someone close to her.
The legislators have made the last line of the exception very vague and wide. The effect on
“mental” health even of a “relative” seems too far-fetched.
We would first have to interpret whether the definition of “relative to a protected person”
given under Section-2(u) of the Act applies even to this section.
A bare reading of the provision would show that the woman under section-9 who is suffering
from HIV AIDS falls under the definition of “protected person” and hence relative under this
section falls within the meaning of Section-2(u).
This somewhat restricts the scope of this exception.
Example- Take a situation where the woman claims that disclosing the HIV status to her
fiancé would cause shock to his mother (comes under the definition of relative) and hence her
HIV status should not be disclosed to him. This could be an excuse not to disclose her HIV
status before marriage. Hence this section should be interpreted with caution by the court.
The lacuna however in this section as well as the case is the fact that HIV victim gets
ostracized by the society.
In the case of Mr. X vs. Hospital Z, the doctor told X’s fiancée about the patient’s HIV status
to protect her. However, she spread the news which leads to the appellant getting ostracized
by society. Therefore, there needs to be a provision in Section-9 which puts a legal duty or
restraint on the spouse who is informed of his/her spouse’s HIV status to not spread the news
which can harm the reputation and lead to the victim getting ostracized by the society.
In the present case the tribunal overturned the decision of the ombudsman and decided in
favour of the hospital on the ground that exercise of legal right in a lawful manner cannot be
said to be causing mental agony to her.

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 Team Code:001

PRAYER

Wherefore, in light of the facts presented, issues raised arguments advanced and authorities
cited the Counsel on behalf of respondent humbly pray before this Hon'ble Supreme Court
that it may be pleased –

1. Affirm and uphold the ex parte order of the Family Court of High Garden and confirm
the Decree of Divorce passed by the Ld. Court below against the petitioner herein;
2. Affirm and uphold the judgment passed by the National Disease Commission and
absolve Dr Samuel Tarly and Citadel hospital from any liability whatsoever;
3. To set aside the judgment of the NCDRC absolving Targaryen Charitable Blood Bank
and Dr. Tyrion Lannister from paying any compensation to the aggrieved person;

4. Absolve the Central and State Government from paying any additional monetary benefit to
the petitioner herein

AND/OR

5. Pass such other or further order or orders as your Lordships may deem fit and proper
in the circumstances of the case.
And for this act of kindness the respondents herein as in duty bound shall ever pray.

(COUNSEL FOR THE RESPONDENT)

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