Friday, 9 June 2017

Criminal prosecution in medical profession is unwarranted

Criminal prosecution in medical profession is unwarranted Gurgaon: Six doctors of Artemis hospital booked for medical negligence TNN, June 6, 2017 Gurgaon: Three doctors of Artemis Hospital including the CEO, medical director and medical superintendent of the hospital were booked for medical negligence by the police based on the complaint of the husband of a patient who died in the hospital in August last year after undergoing treatment in it for two months… He filed a complaint with Sector 50 police station, alleging negligence in October 2016, who forwarded it to PGIMS Rohtak for verification. A report was submitted by a board of doctors from PGIMS Rohtak on May 25, 2017, based on which the FIR was registered under Section 304A (death by negligence). This news only adds to the rising number of cases of criminal prosecution of doctors. Under section 304 of the Indian Penal Code (IPC), it is first important to establish criminal intent (mens rea) or that the doctor had the ‘knowledge’ that the treatment could harm but did not take the necessary informed consent. Section 304 cannot be applied to doctor on these grounds because as doctors we are bound by the principles of bioethics namely, beneficence (benefit of others) and non-maleficence (do no harm). No doctor chooses to become a doctor to harm a patient intentionally as was also observed by the Hon’ble Supreme Court in its landmark judgment in Jacob Mathew vs State of Punjab & Anr, which stated: “No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career… A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act.” And, no doctor practices medicine without taking informed consent. Any act of medical omission or commission, if done with an intention to harm, will come under the definition of “mens rea” and is a punishable criminal offence. "Knowledge" as a mean of negligence is without mens rea. If a doctor does an act or omits something in the treatment, with no intention to harm, but with the knowledge that such an act may cause harm; such an act shall be covered under “knowledge” and not under the definition of “mens rea”. For example, a person who performs a surgery in a drunken state, which results in the death of the patient. Even without an intention to harm such act shall be covered under “Knowledge” part of Section 304 of IPC. 304. Punishment for culpable homicide not amounting to murder.—Whoever commits culpable homicide not amounting to murder shall be punished with 1[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.” 304-A. Causing death by negligence. 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. In its judgement in Jacob Mathew vs State of Punjab & Anr on 5 August, 2005, the Bench of CJI RC Lahoti, GP Mathur and PK Balasubramanyan laid down guidelines regarding prosecuting medical professionals for criminal negligence as follows: “A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam's test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been leveled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.” The Apex Court further recommended framing of “Statutory Rules or Executive Instructions incorporating certain guidelines” by the Government of India and/or the State Governments in consultation with the Medical Council of India. But, these rules are yet to be formulated. Moreover, these rules or guidelines have to be structured uniform across the courts. The mandate is not to decide, if there is negligence, but to decide if there is ‘gross’ negligence amounting to criminal negligence. “The word 'gross' has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be 'gross'. The expression 'rash or negligent act' as occurring in Section 304A of the IPC has to be read as qualified by the word 'grossly'.”(Jacob Mathew vs State of Punjab & Anr) Medicine is an art based on science; hence, neither the police nor the complainant can decide if the negligence is criminally negligent or not as also mentioned in the Jacob Mathew vs State of Punjab & Anr judgment. Hence, section 304-A of IPC is not applicable on doctors as a routine; it is applicable only when the negligence is ‘gross’, which can be decided only by a Board of Experts. In Dr Sudhir Kumar Thakur vs The State of West Bengal & Ors on 20 July, 2016, the Calcutta High Court observed that “After going through all the decisions referred to by the rival parties, I am of the view that it is perhaps needless to say that indiscriminate prosecution of medical professional of medical negligence is counterproductive to the object and scheme. If during a surgical operation hands of a surgeon begins to tremor due to apprehension of medical negligence and that 'Sword of Damocles' is on his neck, he cannot render his best to carry on life saving scalpel to perform an essential surgery … In my humble view, Section 304A of Indian Penal Code although does not bear the word 'Gross', but while dealing with such case Court must consider it, as 'Gross'. It must be the causa causans otherwise doctor concerned would always be under the dangling fair of facing a prosecution and to refuse to treat the patient by referring the patient to some other hospital/nursing home, clinic, which eventually would lead to disservice to the society. Court should not encourage this approach (15).” The very fact that today practicing doctors have ‘professional indemnity insurance’ means that medical negligence is being accepted as a professional hazard. Medical negligence does not mean criminal negligence. And, unless some directives are issued, such cases where doctors are arrested for alleged negligence, even when they have not been convicted by a court of law, will keep on rising. “The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered in his reputation cannot be compensated by any standards.” (Jacob Mathew vs State of Punjab & Anr) Therefore, IMA demands that these guidelines as recommended by the Hon’ble Supreme Court should be framed immediately. Criminal prosecution of medical negligence is not acceptable to us. The media should not be allowed to report the name of any doctor till he/she is convicted. Disclosing the names of the doctor/s before conviction may mean defamation. This is one of our major demands in the ‘Dilli Chalo: Enough is Enough” movement. In the present case, 304 A can only be applicable if the board has opined ‘gross negligence’. If their report is simple negligence, the aggrieved party should approach the High Court for quashing of the FIR. Dr KK Aggarwal National President IMA

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