The Doctor's Dilemma - Analysis Of Medical Negligence Under The Bhartiya Nyaya Sanhita, 2023
Author: LawSphereX
Category: General Law
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THE DOCTOR'S DILEMMA:
ANALYSIS
OF MEDICAL NEGLIGENCE UNDER THE BHARTIYA NYAYA SANHITA,
Anika Bhoot, Hidayatullah National Law University
INTRODUCTION
The Indian Penal Code, 1960 (hereinafter IPC), was a remnant of the colonial past of India which was recently overhauled to metamorphosise into the Bhartiya Nyaya Sanhita, 2023 (hereinafter BNS) which emphasises a shift towards decolonialisation of criminal provisions and painting over punitive approaches with a bright colour of reformative justice. Different novel sections in the BNS meant different tales for various stakeholders. Some reforms were welcomed with open arms while some raised speculations and reservations. Section 106 of the BNS was one such provision which was mired by protests by the medical community especially on the National Doctor’s Day (1st July, 2024) 1. In the face of growing violence against doctors recently, and an abysmal doctor-to-patient ratio, Section 106 was viewed as a fear-mongering provision that further penalises bona fide apprehensive doctors. The present article seeks to understand the reasoning behind such protestations and the merits thereof and evaluate the implications that the new provision in the BNS births. EXAMINING SECTION 106 UNDER THE MICROSCOPE Section 106 lays down the liability for death by rash and negligent act not amounting to culpable homicide and makes negligent registered medical-practitioners punishable for imprisonment for a term of two years along with fine. The Explanation defines “registered medical-practitioner” as someone with a medical qualification recognised by the National Medical Commission Act, 2019 and with a name entry
1 Jayanath, Doctors object to penal provision in Bharatiya Nyaya Sanhita, THE HINDU (Jul. 4, 2024).
in the National Medical Register or a State Medical Register as per the Act2. Medical-Negligence refers to when a medical-practitioner fails to observe the legal duty of care towards the patient and thereby causes harm to him/her. It must be established that the medicalpractitioner deviated from the standard norms of the medical-community and the injury is directly-attributable to this breach of duty. This was already covered under law of torts, consumer protection and Indian Medical Council Act 1956 which envisions a disciplinary board for negligent doctors. TRACING THE CHANGES TOWARDS STRICTNESS Section 304(A) of the IPC was the closest relative of Section 106 previously, which was more general in nature without specifying the medical professionals explicitly. Section 106 circled the community in a bold red ink and clearly defined them. This is a departure from the generalised framework that was set by the IPC previously3. The newer section mandates imprisonment whereas earlier it was either imprisonment or fine or both. Table 1: Comparison of BNS Section 106 and IPC Section 304(A)4 The Indian Medical Association (IMA) had urged the invocation of protective measures under the BNS for the doctors due to absence of mens rea or malintent as is presumed, in treating of a patient by a doctor.5 IMA submitted that sans mens rea, the treatment of medical-negligence
2 Bhartiya Nyaya Sanhita, 2023, S.106.
3 Supreet Gill, Healthcare Providers in Turmoil
How New Legal Reforms are Stirring up India's Medical Frontliners, BAR & BENCH (Jul. 31, 2024).
4 Pai & Yadav, The New Bharatiya Nyaya Sanhita Laws
Progress or Pitfall for Doctors?, 16(9) CUREUS, (2024).
5 Protective provision under BNS be invoked for alleged medical negligence
IMA urges PM, DECCAN HERALD (Jul. 5, 2024). should be under civil law and not criminalised.6 Additionally, it was stated by the IMA that Section 26 of the BNS on general defence of an act done in good faith without an intention to cause death and with the consent of the person for his/her benefit, would exempt medical-professionals from the ambit of BNS altogether. The illustration to Section 26 clearly protects doctors from liability during medical procedures. It is as follows: “A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under the painful complaint but not intending to cause Z’s death and intending in good faith, for Z’s benefit, performs that operation on Z, with Z’s consent, (in such a case) A has committed no offence”.7 CHILLING-EFFECT ON THE DOCTOR’S PRACTICE Fear of prosecutions may induce doctors to adopt defensive medication and impair medical decisions due to extra-medical considerations and an aversion to treating critically-ill patients. The apprehensive doctor may not opt for high-risk treatments with informed consent that are sometimes necessary to save a patient’s life. Unfavorable outcomes such as patient deaths occur despite the best efforts of doctors. The profession has inherent uncertainties and to penalise such events may make the doctors overly-cautious and compromise their judgments during emergencies. Criminal liability for medical professionals has been labelled as a legal absurdity by the IMA which could have been covered through compensation and disciplinary actions. Also, it is termed as the State’s duty to foster a safe atmosphere for medical-practice rather than to throw roadblocks into risk-taking under life-threatening cases, which is a common practice in the highly sensitive profession of doctors.8 Vinod Jain v. Santokba Memorial-Hospital9 delineated society’s obligation to safeguard medical-professionals from unnecessary humiliation/harassment. Sunanda Barve v. Jayant Barve10 held that doctors are not liable for every injury sustained by the patient and legal-tools cannot be used to pressure doctors and suffocate the medicalfraternity. THE LEGISLATIVE INTENT On the other hand, Section 106 is seen as a testimony of state’s resolve to enhance patientsafety and healthcare standards. It can improve medical-accountability and diligence and deter negligence among doctors11. It removes ambiguity and escape-routes by clearly defining the medical-practitioners. Providing complete immunity to doctors may invite misuse and medical leniency seems to be the norm currently and not immunity.12 ALLAYING THE FEARS Besides the protection from criminalisation under Section 26, other general defences are also applicable such as Section 18 (Accident in lawful act done with care and caution), Section 19 (Act likely to cause harm done to prevent other harm without malintent), and Section 30 (Goodfaith Act done for benefit of person incapable of consenting). A. K. Gupta v. State of U. P13 had held that only strong evidence of gross negligence of the liability of 2 years to protect them further15. CRIMINAL NEGLIGENCE VIS-À-VIS MEDICAL NEGLIGENCE The case of Jacob Mathew v. State of Punjab16 held that mere lack of care would constitute civil-negligence and for criminality, a very high degree of negligence needs to be proved. The standard of proof also must be based on more than mere error of judgment or preponderance of probabilities and must be culpable. The Bolam Test17 was also adopted in India in this case, which states that standard of care of medical-professionals will be judged according to established practices in the community. Doctors did not require highest skill and only ordinary reasonable skill will be considered to establish liability.18 It was also held that for an accused doctor, the investigation-officer must take the opinion of an independent expert over the prima facie rashness of the act. This distinction between mere medical-negligence and gross criminal negligence set the sails to determine the doctor’s liability and protected him/her from mindless prosecutions. However, with the scraping of IPC, it remains to be seen whether Jacob Mathew principles will apply to Section 106(1) in the absence of terms like “gross” from the text and inclusion of “any rash or negligent act”. Degree of negligence19 has not been discussed in the section which can prove to be fatal. SPECIALISED MEDICO-LEGAL CASES It is recommended that expert opinion be taken into account before registration of alleged medical-negligence cases through medical-boards to avoid unfair prosecutions from the beginning. Non-medical professionals judging upon the legal proceeding on the doctor’s negligence without entertaining a medical-discussion with the help of other experts would be detrimental to appreciate the material facts of the issue. Such a manner of ascertaining gross
15 Singh, Bhartiya Nyaya Samhita 2023, medical practice and psychiatrists, 66(8) INDIAN J. OF
PSYCHIATRY, 755-757 (2024).
16 (2005) 6 SCC 1.
17 Bolam v. Friern Hospital Management Committee, [1957] 1 WLR 583.
18 Munisankar, A Review of Landmark Judgments on Medical Negligence, 4(1) TELANGANA J. OF IMA, 20-
22 (2024).
19 Sethi & Bilgaiyan, Doctors in conflict with the criminal law
A records review of gross medical negligence cases under the Indian Penal Code, SRI RAMACHANDRA J. HEALTH SCIENCES, 1-6 (2024). negligence will protect the risk-taking doctors as well as serve the purpose of penalising criminal-negligence in the medical-fraternity.20 Martin F. D'Souza v. Mohd. Ishfaq21 the apex-court had laid down that prior to issue of notice to a doctor, an expert-committee must be consulted and only upon sufficient evidence can a doctor be arrested.
CONCLUSION & WAY AHEAD
While holding medical professionals accountable is a sound decision under the pro-victim enactment of BNS, it must be balanced with the practical realities of the medical field. Substituting “and” with “or” in the punishment clause and omitting mandatory imprisonment can be a laudatory amendment to Section 106 to alleviate undue pressures on an already burdensome profession. The doubts raised by the IMA cannot be dismissed merely by differentiating jail terms for medical and non-medical acts under Section 106. Additional safeguards are needed to prevent frequent litigations and stringent imprisonments of doctors. However, emotional arguments for total immunity must not cloud legal validity. Absolute immunity could harm patient welfare and arbitrarily privilege the medical fraternity. Sir William Osler quipped, "Medicine is a science of uncertainty and an art of probability." Section 106(1)’s inclusion of any rash medical act risks over-criminalization, straying doctors toward defensive, foolproof methods over riskier, better alternatives. Upholding Jacob Mathew is crucial to distinguish professional risks from culpable rashness. The judiciary must weigh accountability against practicality, ensuring justice without stifling medical liberty.