Draft guidelines for prosecution under 304 A

Draft guidelines for prosecution under 304 A

Guidelines for protecting doctors from frivolous or unjust prosecution against medical negligence

WHEREAS, the Hon’ble Supreme Court in Jacob Mathew vs. State of Punjab [AIR 2005 SC 3189] had observed that statutory rules or executive instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India;

WHEREAS, the Hon’ble Supreme Court had, “so long as it is not done”, proceeded to lay down certain guidelines which should govern the prosecution of doctors for offences for which criminal rashness or negligence is as ingredient. The following guidelines were laid down:

“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 investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.”
WHEREAS, the Government of India, Ministry of Health and Family Welfare, vide its letter dated 11.07.2012 has asked the Medical Council of India to suggest guidelines, which need to be framed for protecting doctors against frivolous complaints/prosecution;

THEREFORE, the Medical Council of India proposes the following guidelines to be observed by the prosecuting agencies for protecting doctors against frivolous complaints/prosecution:-
1. The Prosecuting Agency on receipt of any complaint of which criminal rashness or negligence is an ingredient against a registered medical practitioner under the Indian Medical Council Act, 1956 prior to making arrest refer the complaint to the Chief Medical Officer of a District who shall place it before the District Medical Board for its recommendations as regards the merit of the allegations of criminal rashness or negligence, contained in the complaint.
2. The District Medical Board on receipt of such reference examine the allegation contained therein in a time-bound manner, preferably within two-weeks, and thereafter forward its recommendation to the Prosecuting Agency through the Chief Medical Officer of the District.
3. The District Medical Board that has examined the complaint must ensure a Doctor qualified in that branch of medical science is part of the Board.
4. The Prosecuting Agency, in case, it is dissatisfied with the recommendation of the District Medical Board may stating the reasons for such dissatisfaction refer the matter to the Divisional Medical Board for its recommendation within a period of three-weeks from the date of receipt of recommendation of the District Medical Board.
5. The Divisional Medical Board, on receipt of any such reference from the Prosecuting Agency would examine the matter within a period of three-weeks from the date of receipt of such reference. The Divisional Medical Board shall provide reason for endorsing or rejecting the recommendation of the District Medical Board. The decision of the Divisional Medical Board shall expeditiously be conveyed to the prosecuting agency, and in any case not later than four-weeks from the date of receipt of reference made by the prosecuting agency.
6. The Prosecuting Agency, in case, it is it is dissatisfied with the recommendation of the Divisional Medical Board may stating the reasons for such dissatisfaction refer the matter to the State Medical Board for its recommendation within a period of four-weeks from the date of receipt of recommendation of the Divisional Medical Board.
7. The State Medical Board, on receipt of any such reference from the Prosecuting Agency would examine the matter within a period of four-weeks from the date of receipt of such reference. The State Medical Board shall provide reason for endorsing or rejecting the recommendation of the Divisional Medical Board. The decision of the State Medical Board shall be expeditiously conveyed to the prosecuting agency, and in any case not later than five-weeks from the date of receipt of reference made by the prosecuting agency.
8. The Prosecuting Agency on the receipt of Recommendation of the District/Divisional/State Medical Board further proceed in the matter in accordance with law. However, in case arrest of a registered medical practitioner in the employment of State/Central Government is being made, the Controlling Officer of such Medical Practitioner would be informed by the Prosecuting Agency. Likewise, in case, the registered medical practitioner is engaged in private practice, the concerned State Medical Council, or in case there is no State Medical Council in that State/Union Territory, the Medical Council of India be informed.
The above-said guidelines may if deemed appropriate be notified by the Union of India under the Code of Criminal Procedure, 1973.

Criminal prosecution of medical negligence unacceptable, says IMA

Criminal prosecution of medical negligence unacceptable, says IMA A fair judgment will help in retaining the nobility of the medical profession New Delhi, 29 May 2017: Highlighting another pertinent issue faced by the medical fraternity, the IMA has expressed its disagreement over the criminal prosecution of medical negligence and clerical errors and called it unacceptable. This is one of the many issues leading up to the Dilli Chalo movement being organized by the IMA on 6th June 2017. To be joined in entirety by the medical fraternity, the march will be undertaken by over a lakh doctors in the country, both digitally and physically, and followed by deliberations on issues ailing the medical profession. According to a judgment passed by the Supreme Court in 2004, it had stated that the medical man cannot be proceeded against for punishment for every mishap or death during treatment. Without adequate medical opinion, criminal prosecutions of doctors would amount to great disservice to the community. Speaking about this, Padma Shri Awardee Dr K K Aggarwal, National President Indian Medical Association (IMA) and President Heart Care Foundation of India (HCFI) and Dr RN Tandon – Honorary Secretary General IMA in a joint statement, said, "To prosecute a doctor for criminal medical negligence, any medical action taken by him/her, should have been done with an intention to harm or with the knowledge that it can cause harm and the patient is not informed about the same. However, this is not the case in medical practice. We never treat with an intention to harm or treat without an informed consent. Then why are doctors again and again subject to criminal prosecution? Criminal prosecution of doctor should be an exception and not a routine. The situation today is that doctors now are being prosecuted in various special acts for non-professional activities like not wearing apron, not displaying a defined board or not keeping a copy of PC PNDT Act. Doctors are also being prosecuted for minor violations of privacy, confidentiality of patient information and data and violations of minor clauses in surrogacy, IVF and HIV_AIDS acts. This is not acceptable to the medical profession." Earlier, doctors from the IMA had also opined that many medical negligence cases took place in government hospitals. However, their comparatively lower bills kept such establishments out of the purview of the authorities. Adding further, Dr Aggarwal, said, "While it would be reasonable to cancel the registration of a doctor or a clinical establishment, booking a doctor under criminal charges will no longer result in this being called a noble profession. Justice has been denied to the medical fraternity on a number of accounts and this movement is a clarion call against all these issues." IMA is also initiating a signature campaign on the issues at hand on social media and has urged all doctors to join and collect hundreds of thousands of signatures to demand justice from the government.

Indian Penal Code & Criminal prosecution of medical doctors

Indian Penal Code & Criminal prosecution of medical doctors According to the provisions of Indian Penal Code 1860 (IPC) any act of commission or omission is not a crime unless it is accompanied by a “guilty mind” or mens rea. If it can be established without reasonable doubt that death was the result of malicious intention/gross negligence or with the knowledge that the act could cause harm and patient was not informed about the same, only then can a doctor can be charged with criminal negligence. No doctor treats a patient with an intention to harm or without taking an informed consent. Doctors must be aware of the Indian Penal Codes, under which they can be charged for negligence. They should know whether the act undertaken by them amounts to rash or gross negligent action under the provisions of the law of the country. This is very relevant today, where doctors are increasingly being subject to criminal prosecution. Is the act done in good faith with proper consent? IPC 88: Act not intended to cause death, done by consent in good faith for person’s benefit Nothing which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm. Illustration A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under a painful complaint, but not intending to cause Z’s death and intending in good faith, Z’s benefit performs that operation on Z, with Z’s consent. A has committed no offence. Has the consent taken by frightening the patient or without scientific data? IPC 90: Consent known to be given under fear or misconception A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person.—if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.—unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age. Is there any violation of a special act? IPC 91: Exclusion of acts which are offences independently of harm caused: The exceptions in sections 87, 88 and 89 do not extend to acts which are offences independently of any harm which they may cause, or be intended to cause, or be known to be likely to cause, to the person giving the consent, or on whose behalf the consent is given. Illustration Causing miscarriage (unless caused in good faith for the purpose of saving the life of the woman) is an offence independently of any harm which it may cause or be intended to cause to the woman. Therefore, it is not an offence “by reason of such harm”; and the consent of the woman or of her guardian to the causing of such miscarriage does not justify the act. Was the act done without consent? IPC 92. Act done in good faith for benefit of a person without con¬sent: Nothing is an offence by reason of any harm which it may cause to a person for whose benefit it is done in good faith, even without that person’s consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent, and has no guardian or other person in lawful charge of him from whom it is possible to obtain consent in time for the thing to be done with benefit: Provisos—Provided— (First) — That this exception shall not extend to the intentional causing of death, or the attempting to cause death; (Secondly) —That this exception shall not extend to the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or infirmi¬ty; (Thirdly) -— That this exception shall not extend to the voluntary causing of hurt, or to the attempting to cause hurt, for any purpose other than the preventing of death or hurt; (Fourthly) —That this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend. Illustrations (c) A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation be immediately performed. There is no time to apply to the child’s guardian. A performs the operation in spite of the entreaties of the child, intending, in good faith, the child’s benefit. A has committed no offence. How was the patient communicated? IPC 93: Communication made in good faith: No communication made in good faith is an offence by reason of any harm to the person to whom it is made, if it is made for the benefit of that person. Illustration A, a surgeon, in good faith, communicates to a patient his opin¬ion that he cannot live.The patient dies in consequence of the shock. A has committed no offence, though he knew it to be likely that the communication might cause the patient’s death. Was it a culpable homicide? Was there any intention or knowledge? IPC299: Culpable homicide: Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Explanation 1.—A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death. Explanation 3.—The causing of the death of child in the mother’s womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born. What is the punishment for culpable homicide? IPC 304: Punishment for culpable homicide not amounting to murder: Whoever commits culpable homicide not amounting to murder shall be punished with [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. IMA View: This penal code is not applicable to doctors unless there was intention to harm in the treatment provided or there was knowledge that the treatment can harm but the patient was not informed about the likely harm. Was it a case of gross negligence? IPC 304A: 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.] Who certified the gross negligence? Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India (MCI). So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. 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 levelled 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. [Jacob Mathew vs State of Punjab & Anr on 5 August, 2005: Author: R Lahoti: Bench: Cji R.C. Lahoti, G.P. Mathur, P. K. Balasubramanyan: Case No.: Appeal (crl.) 144-145 of 2004] Dr KK Aggarwal National President IMA & HCFI