‘Doctors will not take bold decisions in crucial moments’: IMA on why criminalising medical negligence in BNS is problematic

IMA had asked PM Modi to point out that there is no criminal intent (mens rhea) on the part of the doctor while treating a patient.

BySumit Jha

Published Jul 05, 2024 | 7:00 AM Updated Jul 05, 2024 | 7:00 AM

For doctors, the amendment will maintain the maximum imprisonment of up to 2 years and a fine. (Creative Commons)

With the new Bharatiya Nyaya Sanhita (BNS) Act coming into effect on 1 July, the promise made by the government to doctors last year has not been implemented, leaving doctors unhappy with the development.

“IPC 304 A, inherited from British India, was more lenient to Indian doctors, allowing for either jail or a fine or both. In contrast, the BNS 106(1) enacted by the present government is harsher, mandating both jail and a fine,” said Dr KV Babu, a doctor based in Kerala.

In December last year, when the three criminal reform Bills were passed in the Parliament, Union Home Minister Amit Shah had assured that the provisions related to death resulting from medical negligence would be excluded from Section 26 of the new Bill — Bharatiya Nyaya Sanhita (BNS). He pledged an amendment to shield doctors from potential legal repercussions.

“Currently, if there is death during treatment, it is treated as murder. Therefore, I will bring an official amendment to free the doctors from criminal negligence. Indian Medical Association has asked for this,” said the Home Minister at that time.

Even the Indian Medical Association (IMA) – the largest organisation representing doctors in the country – extended its gratitude to Prime Minister Narendra Modi and Union Home Minister Amit Shah via a daily newspaper advertisement after it.

Now, IMA has reiterated its concerns to the Prime Minister and Home Minister, urging them to address the issues faced by doctors.

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Medical negligence under the new law

Section 106 of the new Act – Bharatiya Nyaya Sanhita (BNS) 106. (1) states that, whoever causes death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of 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 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.

Under the previous law, Section 304 A of the Indian Penal Code (IPC) stated that 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 two years, or with fine, or with both.

“The IMA’s primary stance is that, in medical treatment, there is no negligence that can be classified as criminal. We have explained this, and our first demand is for an amendment to reflect this view. However, this amendment needs to go through Parliament, which will take time, as it involves a national concern where everyone, including the public, will provide their opinions. Therefore, we are asking for something that already exists,” said President of IMA, Dr RV Asokan, to South First.

It is written very clearly that when surgery is performed and the patient dies, the surgeon has not committed any offence. Our first demand is that by default, in cases where there is an allegation of medical negligence and people claim it is criminal, a case should be filed. So by default, this clause should apply, he said.

He added that if the investigator has doubts about recklessness on the part of the doctor, as enunciated by the Honourable Supreme Court in the Jacob Mathew case, the matter should be referred to an Expert Committee.

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Medical negligence as per the Jacob Mathew case

Medical negligence is subject to provisions influenced by case laws, particularly relevant Supreme Court judgements like Jacob Mathew vs State of Punjab, dealing with medical negligence and the criminal liability of doctors.

The case was heard by the Supreme Court of India and resulted in the formulation of important guidelines regarding the prosecution of doctors for offences related to medical negligence.

The case involved a doctor, Jacob Mathew, accused of causing a patient’s death due to medical negligence. Dr Mathew challenged criminal proceedings, arguing that a medical professional shouldn’t be held criminally liable for an error of judgement or a bona fide mistake while treating a patient.

The Supreme Court, in its 2005 judgment, acknowledged the need to protect doctors from frivolous criminal prosecutions but emphasised accountability in cases of genuine medical negligence. The court laid down guidelines to differentiate between genuine errors and acts of negligence by medical practitioners.

The key points from the Jacob Mathew case include:

1. Gross Negligence Standard: The court held that for a doctor to be held criminally liable, the negligence should be of such a high degree as to amount to gross negligence.

2. Intentional Acts or Omissions: The court clarified that criminal liability would arise only if a medical professional’s act or omission is so reckless or negligent that it can be equated with a criminal act.

3. Professional Standards: The court emphasised the importance of adhering to high professional standards and medical ethics, and that a breach of these standards could be a ground for criminal liability.

4. Expert Opinion: The court highlighted the significance of obtaining expert opinion to establish negligence, and that the opinion should be given by a doctor in the same field as the one being accused.

The Jacob Mathew case has since been cited in various judgements related to medical negligence in India and provided a framework for determining when criminal liability may be imposed on medical practitioners for their actions.

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‘Doctors will not take bold decisions in crucial moments’

“I would certainly want to reiterate that the scenario between the patient and the doctor is different. The Supreme Court has already stated that doctors are different in that same case. They clearly say doctors are to be treated in a different way because ultimately, whatever is done to the doctor affects the patient,” said Dr Asokan.

He added that suppose you punish a doctor under criminal law, other doctors will not take bold decisions in crucial moments.

“For example, we used to give adrenaline injections directly into the heart, called intracardiac adrenaline. Now, I may hesitate to do that. I would prefer to keep quiet rather than risk being accused of doing something unacceptable. Is it not? This is just an example to illustrate my point,” explained Dr Asokan.

“Who suffers if you punish the doctor? The rest of the medical fraternity will be watching, and society will suffer because they will lose a doctor who can treat thousands of patients. That is what we are. Let us have a national debate,” he added.

If the doctor deserves consideration by society, let it come from the people because public opinion matters. The government cannot ignore it, said Asokan.

Talking about how people nowadays want things to happen “instantaneously,” he pointd out, “lawmaking and negotiations with the government involve many dynamics. It’s a process. Both the amendment and the executive order have to go through a process. But in the meantime, another 100 doctors could be prosecuted under criminal law. So we are asking the government to give us the executive order as a low-hanging fruit.”

The letter to PM

On 29 June, two days before the law came into existence, IMA had asked the Prime Minister Narendra Modi to point out that there is no criminal intent (mens rhea) on the part of the doctor while treating a patient.

“There is no negligence to attract criminal prosecution. Union Minister for Home Shri Amit Shah acknowledged in the floor of the Parliament that death during treatment is not murder. The new BNS legislation brought up by your Government doesn’t reflect it,” reads the content of letter to prime minister.

“In the rarest of rare cases which might be considered as recklessness, the investigating officer may prefer the case to an expert committee for opinion. Some state governments have a circular memorandum putting in place a district level body under the DMO and a state level appellate body under the DHS. High courts have upheld the legality of the procedure as well. A circular memorandum of procedure from the Union Government in this regard would remove the Democles’ sword hanging over the doctors. It will provide legitimate protection and facilitate crucial decisions in critical moments. This would actually benefit the patients,” said the IMA.

(Edited by Neena)

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