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Historic Bill Establishes Doctors' Legal Immunity

M3 India Newsdesk Jan 19, 2024

India plans to decriminalise medical negligence, backed by the Indian Medical Association's request. The Bharatiya Nyaya Sanhita 2023 proposes shielding physicians through collaboration with statutory bodies, gaining broad support from the medical community.

An extraordinary revelation was made in Parliament by a government minister, outlining steps to decriminalise cases of medical negligence by physicians. The medical community has widely praised this action, which represents a substantial change in the laws governing healthcare providers in India.

In his remarks, the Home Minister committed to bringing forward a formal change that would release physicians from criminal responsibility.

What has transpired up to this point in brief

  1. A request was made earlier this month by the Indian Medical Association to exempt the professional services of physicians from criminal prosecution under the Bharatiya Nyaya Sanhita 2023 which replaces the Indian Penal Code (IPC) of 1860.
  2. The IMA emphasised that if medical errors were seen through the prism of criminal intent, it would be difficult for physicians to do their duties.
  3. "Causing a patient's death without mens rea (state of mind implying criminal intent) cannot be termed a criminal act," the letter said.
  4. As per the recommendations of the NMC (National Medical Commission) to MOHFW (Ministry of Health and Family Welfare) no police officer should be permitted to conduct an inquiry or investigation into alleged medical negligence offences committed by a qualified and registered medical practitioner without first obtaining an expert committee's opinion of gross negligence.
  5. "After the element of gross negligence in care has been opined by the medical experts only statutory bodies such as State Councils/NMC should be empowered to refer such cases as criminal negligence to be filed in criminal courts," it said.

The medical community has praised this current action, which highlights the need for a collaborative framework between statutory bodies and medical experts and reflects a nuanced understanding of the challenges faced by practitioners. This will eventually pave the way for a more favourable work environment for doctors.

In order to treat a patient, doctors often have to weigh their options carefully; otherwise, things may become worse. It becomes difficult to characterise excessive carelessness as a result. Additionally, when a doctor acts with good purpose, they are shielded from criminal prosecution under section 88 of the IPC. Hence, it is appropriate to exclusively consider Section 88 when addressing Section 304A and analogous provisions of the IPC. The letter clarified that in this particular situation, suitable legislation is unquestionably needed to shield the medical profession from criminal culpability.

"A justifiable argument"

The letter requested the Centre to "Provide a safe and amiable atmosphere for doctors to practise their profession without fear of criminal prosecution," pointing out that there was a valid argument to exclude doctors' professional services from criminal prosecution. It further said that the penalty had been raised from two years to five years under the new law.

"Causing a patient's death without mens rea cannot be termed a criminal act," the letter said. According to the recommendations made by the National Medical Commission (NMC) to the Ministry of Health and Family Welfare (MOHFW), no police officer should be permitted to inquire about or investigate claims of medical negligence made by a licenced and registered medical practitioner without first receiving a certified opinion from an expert committee indicating substantial negligence.

"After the element of gross negligence in care has been opined by the medical experts, only statutory bodies like State Councils/NMC should be empowered to refer such cases as criminal negligence to be filed in criminal courts," the statement said.

Increased bar

Case laws have given doctors further defence against baseless accusations of carelessness. A seminal decision in this area distinguished between professional and occupational negligence, emphasising that a basic disregard for safety or a mistake in judgment does not automatically establish negligence. Two months ago, another ruling by the highest court reaffirmed these ideas, stating that a higher threshold must be met to hold a medical practitioner liable for negligence.

Expertise in the required field

Due to the specialised nature of medical treatments, doctors were shielded from even filing complaints. For instance, unless the complainant's case is supported by the opinion of a licenced physician, a private complaint cannot be considered. Should the case go beyond this point, obtaining a second medical opinion is even necessary for the investigating officer. Arrests are not the norm, but rather the exception.

Medical negligence resulting in death is now covered under Section 304A of the Indian Penal Code, which carries a jail sentence, a fine, or both. The Lok Sabha on 20th December approved the second version of Bharatiya Nyaya Sanhita, which would take the place of the IPC. It cleared the Rajya Sabha on 21st December. A specific exception for qualified medical practitioners was included in the version that was approved this week.

The revised version of the BNS, 2023, was made available to the public on 21st December

  1. It states, "Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and if such act is done by a registered medical practitioner while performing a medical procedure, he shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine."
  2. The term "registered medical practitioner" is additionally defined in the section as an individual whose name has been submitted to the National Medical Register or a State Medical Register as stipulated in the National Medical Commission Act, 2019, and who possesses any medical qualification recognised accordingly.
  3. Among the three significant criminal law measures that the Lok Sabha voted on 20th December was the BNS, which aims to replace the Indian Penal Code (IPC), 1860; The Bill, the Bharatiya Sakshya (Second) Bill to replace the Indian Evidence Act, 1872; and the Bharatiya Nagarika Suraksha Sanhita to replace the Code of Criminal Procedure, 1973.


Disclaimer- The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of M3 India.

About the author of this article: Dr Monish Raut is a practising super specialist from New Delhi.

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