Government doctors now being tried under NHRC for medical negligence
Dr S S Agarwal and Dr K K Aggarwal
An interstate (Maharashtra, Gujarat, and Rajasthan) public hearing was held over two days on January 6-7, 2016 in collaboration with Jan Swasthya Abhiyan and the National Human Rights Commission (NHRC), with representation from the Ministry of Health and Family Welfare.
During its first day 88/106 cases were taken up, and compensation of Rs. 4.25 lakhs was issued in five cases relating to medical negligence, delay of treatment, incorrect HIV testing reports, lack of consent for private referral, and absence of doctors at a PHC resulting in denial of availability of services.
State Governments have been asked to conduct inquiries in a number of cases.
The second day featured NGOs grievances on public healthcare program implementation, and deliberations ensued on the role of State Medical Councils in patient rights and grievance redressal were made.
Chapter 3 (12 A) of the Human Rights Act (HRA) 1993 States the NHRC shall: ‘inquire, suo motu or on a petition presented to it by a victim or any person on his behalf [or on a direction or order of any court], into complaint of (i) violation of human rights or abetment thereof; or (ii) negligence in the prevention of such violation, by a public servant.’’
The clear distinction is public servant – every doctor in government is a public servant, as per Indian Penal Code (IPC) Section 21.
The Indian Medical Association wants an amendment of the Indian Medical Council Act 15 (3) such that more power is given to the State Medical Councils to investigate all cases of medical negligence with power to refer to the Consumer Protection Act (CPA) or NHRC. Such cases should not be tried simultaneously in different courts.
In summary, the Western Region public hearing has made a bold precedent for dealing of medical negligence and other such cases. Careful consideration of its impact and the role of State Medical Councils is required to make redressal more streamlined for all stakeholders involved – consumers, regulators, and medical service providers.