Arrest of Doctors
Doctor’s arrest is avoidable under pressure from mobs or political agents
Doctors under the banner of Indian medical association went on a country wide strike on June 6. The Clarian call given by its National President read as follows “The medical profession is facing the most difficult time of the era. Both doctors and patients have to understand that the ‘Doctor–Patient’ relationship is a sacred one and that the dignity of the profession should be maintained. It won’t be wrong to say that justice has been denied to doctors even within the framework of the constitution of India. People are indulging in violence against doctors which is further being condoned by governments and other institutions. Prescription rights of doctors are being trampled upon which can have disastrous consequences for patients. There is absolutely no end to the injustice being heaped upon the medical fraternity and this noble profession. It is after having decided that enough is enough that the IMA has given this call, Dilli Chalo.” Besides several injustices having been heaped on doctors, denial of wages as well denial of liberty by handcuffing them is not uncommon, on flimsy grounds. No doubt many doctors are quitting their profession for fear of humiliations and failure to make both ends meet. Brilliant young minds are unlikely to choose the ignoble profession, if radical changes are not made to restore the esteem, assure wages and provide immunity against violence and litigation. IMA has expressed its disagreement over the criminal prosecution of medical negligence and clerical errors and called it unacceptable. ‘To prosecute a doctor for criminal negligence, for any medical action with no intention to harm or with the knowledge that it can cause harm is not fair.. We never treat with an intention to harm or treat without an informed consent. Then why are doctors again and again subject to arrests?’
Recently, a number of news items in the media have shown doctors becoming victims of physical or verbal assaults or litigations in the courts of law. In several cases police picked up the alleged criminal doctor with or without a warrant and with no concrete evidence of the offence committed. With neither a political clout nor any muscle power doctors become soft target of excesses by the police or aggrieved patients. To save the skin of the doctors, Supreme Court of India observed in a case ‘if the advice of a lawyer/doctor goes wrong in some way, or a good outcome doesn’t come, no case under section 420 IPC or 109 IPC (Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment) or something like that can be registered. Court also said that in professions like lawyers and doctors, the professionals cannot guarantee for the success of the case. Courts said that no doctor can tell his patient that operations will always be successful. And though this professions doctor and lawyer can only say that they are experienced in their work and they would do their best efforts so that they are successful. So a Doctor can treat a patient with common standard justifiable knowledge of medicine available in his/her access of diagnosis and treatment need not to follow the best available standard or specialist or super specialist workup but have to be remain vigilant for any untoward side effect or complication requiring early detection or referral. But no recovery /cure is yardstick of competency, any failure can’t be considered as negligence or professional misconduct and thus no FIR for criminal case or consumer court can be initiated against a doctor.
The following guidelines must be kept in mind.
- A) What may be negligence in civil law may not necessarily be negligence in criminal law.
B) For an act to amount to criminal negligence, the degree of negligence should be much higher
- C) 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.
D) 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.
E) A doctor accused of rashness or negligence, may not be arrested in a routine manner
Several observations seemed to imply that error-free medicine is attainable if physicians work harder to achieve it. The fact is ‘medical science is imperfect and cure cannot be guaranteed’. It has been said that, “The medical profession seems to have no place for its mistakes. Indeed, one would almost think that mistakes are sins. Medical errors take a great emotional toll on providers. Feelings of guilt, devastation, shock, shame, self-accusation, loss of confidence, desire to change practice patterns or to leave medicine, and even suicide have been described. Yet outcomes must be clearly explained to patients and their families. Disclosure and apology can help both patient and physician resolve the distress associated with an error. A physician should do the following: 1. Make an explicit statement that an error occurred; 2. Provide a basic description of what the error was, why it happened, and how recurrences will be prevented; and 3. Offer an apology. Acknowledgment of medical errors has an important effect on the physician-patient relationship. Physicians may discuss the adverse event but avoid acknowledging an error or offering an apology because they worry that apologizing will create medical liability and the admission of fault. Yet they fail to understand that patients typically are seeking emotional support, including an apology, from their provider after an error occurs.
M.P. High Court, framed the detailed guidelines before lodging FIR and arresting Doctors in the offenses of Sec.304-A of IPC , in case of Dr.B.C.Jain V/s. Maulana Saleem, decided on 28/02/2017. Facts in short : 1. The only allegation against the Doctor in this case wass that he did not send the sample of the cerebral spinal fluid (CSF) for investigation.
The guidelines as laid by the court state, That, all allegations relating to negligent conduct on the part of a Government Doctor u/s. 304-A IPC and/or its cognate provisions, or under such other law involving penal consequences is sought, the same shall be enquired into by a Medical Board consisting of at least three doctors, constituted by the Dean of any Government Medical College in the State of Madhya Pradesh.The doctor so selected to sit on the Medical Board, shall not be inferior in seniority and experience to that of an Associate Professor. The doctor against whom such negligence is alleged, shall be given an opportunity by the Medical Board to give his reply/explanation in writing and if the doctor so desires to be heard personally, he shall be given such an opportunity by the Medical Board. The Medical Board shall endeavor to complete the exercise within sixty days from the date on which it is constituted and upon completion of the enquiry, submit the report to the Police. The police shall not register an FIR against such a doctor in the absence of the report of the Medical Board and only when the report by the Medical Board has held the doctor prima facie guilty of Gross Negligence.
Despite the observations of the courts vide supra West Bengal teaches the doctors that they are not supposed to treat critically ill patients. If you treat them and unfortunately they die, doctor and paramedics will be booked under IPC 304 A, which is a non bailable offence. To get the best out of doctors they need complete immunity against assaults of every kind