Guest Column | Apprehensions of a nervous medical practitioner
No doctor has a desire to harm his patient; even BNS, under various sections, gives protection to those who had done an act in good faith and for benefit of person but instead it caused harm
Recently, when Bhartiya Nyay Sanhita (BNS) introduced, Amit Shah the mover of the bill and the honourable home minister had clearly stated that doctors will not be covered within its purview for alleged professional medical negligence. Despite the widely publicised legislative intent when the Act was notified, we found that provisions were, if anything, more stringent for doctors than in the previously existing Indian Penal Code (IPC).
No doctor has a desire to harm his patient. Even BNS, under various sections, gives protection to those who had done an act in good faith and for benefit of person but instead it caused harm.
Now that the term “medical negligence” has for the first time been included in criminal law. Doctors are apprehensive that like multiple incidents in the past where doctors were prosecuted under IPC Section 304 (II) instead of Section 304 A, similar misuse of Sections 105, 117 and 124 of the BNS will occur due to ambiguous language used. An act causing permanent damage or deformity or vegetative state (PVS) has punishments ranging from rigorous imprisonment of 10 years to life. PVS occurs when the brain suffers hypoxic damage. After cardiac arrest, cardiopulmonary resuscitation (CPR) is given, heart starts beating and the patient starts breathing on his own or with support, but the patient remains only partially aware or unaware of surroundings and unresponsive or partially responsive to stimulus.
The dilemma for doctors would be to resuscitate or not to resuscitate a patient who has gone into cardiac arrest. If the patient dies and they are held negligent under BNS Section 106(1), the punishment is a two-year jail term, but if the person recovers but remains in a state of PVS, the punishment is life imprisonment.
Various sections of BNS (100, 105) punish the accused “if he has knowledge that his act could cause harm.” Is knowledge bad /evil? It is not in society’s benefit to be treated by ignorant doctors who do not have knowledge of side effects and complications which can happen during treatment. Because of our knowledge we would be accused of doing an act rashly in disregard for consequences, which is punishable.
Honourable Supreme Court in Kartar Singh v/s State of Punjab, (1994), has observed that: “Vague laws offend several important values. It is insisted or emphasised that laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Such a law impermissibly delegates basic policy matters to policemen and also judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.
Other sections like Section 239 will also be problematic for doctors to follow whereby doctors will be bound to inform police of anything which could be a crime. Conflicting provisions in Medical Termination of Pregnancy (MTP) Act prevent doctors from disclosing identity of victim. Also, many a time, patient is brought to doctors with injury stated to be due to a fall but may actually be domestic violence. Vague laws, which cannot be put into practice, uniformly create ethical dilemmas for doctors which are best avoided. A crime, as per criminal law, should clearly be a crime wherever and by whosoever it may be committed. A young patient brought for caesarean, if dies, due to amniotic fluid embolism or postpartum haemorrhage, would be considered by some to be due to criminal negligence of doctors. Should the operation theatre at AIIMS/PGI be sealed till videography of alleged crime scene has been done, as prescribed under Bharatiya Nagarik Suraksha Sanhita (BNSS).
Shaky hands should not hold a scalpel. We need to empower doctors to do their best in emergencies and not shackle them in straightjackets. Removal of medical services provided by doctors totally from within purview of BNS is essential because medical services are already accountable under several laws before many judicial and quasi judicial fora. On one side, the Supreme Court in DK Gandhi v/s Bar Council of India has said that medical professionals should not be under the purview of even the Consumer Protection Act even for civil negligence while on the other hand medical profession has been firmly included under the BNS for criminal negligence, even though gravity of negligence has to be manifold higher to be considered criminal negligence. Doctors need freedom from fear and doubt when they tackle emergencies and prosecuting them under BNS would be a regressive step.
hopeclinics@yahoo.com
( The writer is a managing trustee of Medicos Legal Action Group (MLAG) and former president of Indian Medial Association, Chandigarh)
