The Minister professed before the Parliament to decriminalize medical negligence but what in reality he did was to specifically criminalize practice of medicine by registered medical practitioners

Medical negligence deaths to be decriminalized: Amit Shah as LS passes new criminal law bills

At the moment, cases of criminal negligence are handled under IPC 304 A, which pertains to causing death due to negligence. 

Union Home Minister Amit Shah in the Lok Sabha during the Winter session of Parliament, in New Delhi on Wednesday, December 20, 2023. (Photo | PTI)

NEW DELHI: Union Home Minister Amit Shah on Wednesday informed the Lok Sabha that the Centre is planning to bring an important amendment in the criminal law bill, which aims to exempt doctors from criminal prosecution in cases of death due to medical negligence.

Shah remarked as the Lok Sabha passed three criminal law bills- the Bharatiya Nyaya (Second) Sanhita, which proposes to replace the Indian Penal Code (IPC); the Bharatiya Nagarik Suraksha (Second) Sanhita, which proposes to replace the Code of Criminal Procedure; and the Bharatiya Sakshya (second) Sanhita, which seeks to replace the Indian Evidence Act.

During the debate, Shah said, “Currently, if there is a death due to negligence of a doctor, it is also treated as criminal negligence, almost akin to murder, Therefore, I will bring an official amendment to free the doctors from this criminal negligence."

“Indian Medical Association had urged us to look into the matter,” he added.

However, the amendment made was the exact opposite of what the Minister had promised in the Parliament. The amendment in fact criminalizes all acts “ done by a registered medical practitioner while performing a medical procedure.”

Following amendments were made.

1. In BNS 106 (1) the punishment was increased to imprisonment of “five years” in place of “Two years” in IPC 304 A.
2. And to it was: “if such act is done by a registered medical practitioner while performing medical procedure, he shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine.
3. Explanation.— For the purposes of this sub-section, “registered medical practitioner” means a medical practitioner who possesses any medical qualification recognised under the National Medical Commission Act, 2019 and whose name has been entered in the National Medical Register or a State Medical Register under that Act.

The amended Sec 106(1) of stands as:   

106. (1) Whoever causes 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 five years, and shall also be liable to fine; and if such act is done by a registered medical practitioner while performing medical procedure, he shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine. (emphasis added)

Explanation.— For the purposes of this sub-section, “registered medical practitioner” means a medical practitioner who possesses any medical qualification recognised under the National Medical Commission Act, 2019 and whose name has been entered in the National Medical Register or a State Medical Register under that Act.

(2) Whoever causes death of any person by rash and negligent driving of vehicle not amounting to culpable homicide, and escapes without reporting it to a police officer or a Magistrate soon after the incident, shall be punished with imprisonment of either description of a term which may extend to ten years, and shall also be liable to fine.

The original Sec 304 A of IPC was:

304A. 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. (emphasis added)

It may be seen that the liability and punishment for negligence for a medical practitioner remains same in BNS 106(1) and IPC 304 A. The worse aspect is that under the amended 106(1) the medical professional’s acts are specifically added for criminal liability. It certainly does not decriminalize medical negligence.

Objections

1. The provisions of BNS 106(1) are in contravention of the provisions in Chapter III of BNS which under the good faith doctrine provide exemption from criminal liability to a duly qualified, registered and licensed physician. All acts done in good faith for the benefit of the patient with his consent are exempted from criminal liability.
2. Identifying specifically acts of registered medical professionals for harsh criminal liability is arbitrary, discriminatory and violative of  equality.
3. It is not evident that the amendment made by official amendment in the draft bill was subjected to debate and approval of the Parliament (Manual of Parliamentary Procedures in the Government of India. Manual 2018 (9.18.4). What was the justification given by the Minister for the amendment in contravention of his statement in the Parliament that he would bring an official amendment to decriminalize medical negligence?
4. Was it not an act of parliamentary impropriety if not an act of misleading the Parliament?
5. The dichotomy in what the minister professed to provide by an amendment and what he in reality did, is patently manifest to be missed or overlooked.

Discussion

Specific protections for registered medical practitioners are part of the exemption sections in the Bharatiya Nyaya Sanhita (BNS). These exemptions are designed to protect doctors from liability under certain conditions. Here are some key points from those sections:

1. Good Faith Exemption: This exemption protects doctors who act in good faith and within the scope of their professional duties. If a medical practitioner causes harm or death while performing their duties with reasonable care and skill, they are exempted from criminal liability.
2. Informed Consent: Emphasizing the importance of informed consent, this exemption protects doctors who have obtained proper consent from patients before proceeding with treatment. If the treatment is within the scope of the consent given, it can serve as a defense against negligence claims.
3. Standard of Care: The law recognizes that medical practitioners are held to a higher standard of care due to their specialized knowledge and skills. This exemption takes into account the complexities of medical practice when determining negligence.

These exemptions aim to balance the need for accountability with the recognition of the inherent risks and complexities in medical practice.

 In contradiction to these provisions the minister added Sec 106(1) to specifically criminalize medical procedures.

Section 106(1) of the Bharatiya Nyaya Sanhita (BNS) appears to specifically address the criminalization of certain medical procedures, which are indeed contradictory to the protective provisions for doctors.

This addition potentially creates a challenging environment for medical practitioners, as it increases the risk of criminal liability even when acting in good faith and within the scope of their professional duties. It’s important to understand the exact wording and implications of Section 106(1) to fully grasp its impact.

Section 106(1) of the Bharatiya Nyaya Sanhita (BNS)  introduces specific criminal liability for certain medical procedures, which indeed are contradictory to the protective provisions for doctors. :

1. Criminalization of Medical Procedures: This section criminalizes specific medical procedures if they result in harm or death, regardless of the intent or good faith of the medical practitioner. This includes procedures that are inherently risky but necessary for patient care.
2. Impact on Medical Practice: The introduction of such a provision has created a chilling effect on medical practice. Doctors have become more hesitant to perform certain procedures, even when they are medically necessary, due to fear of criminal liability.
3. Balancing Accountability and Protection: While the intent is to ensure accountability, it’s crucial to balance with protections for medical practitioners, who act in good faith. It is lost. Over-criminalization undermines the ability of doctors to provide effective care.
4. Legal and Ethical Implications: This change raises important legal and ethical questions. It would lead to increased litigation. Clearer guidelines on what constitutes criminal negligence in medical practice, is needed.

Understanding the exact wording and legislative intent behind Section 106(1) is essential to fully grasp its implications.

The minister had amended Sec 106(1) after stating in the parliament that he would  decriminalize medical negligence by the proposed amendment.

It certainly raises concerns about consistency and transparency in legislative processes. If a minister publicly commits to decriminalizing medical negligence but then introduces a provision that criminalizes certain medical procedures, it can be seen as contradictory and potentially misleading.

In parliamentary terms, such actions could be scrutinized for their alignment with the principles of accountability and integrity.

Parliamentary Accountability: Ministers are expected to be accountable to the Parliament and the public. Any deviation from their stated commitments can lead to questions about their credibility and the trustworthiness of their statements.

Legislative Intent: The intent behind legislative changes should be clear and consistent. If the intent was to decriminalize medical negligence, introducing a provision that criminalizes medical procedures could be seen as contradictory.

Public and Professional Trust: Such actions affect the trust that medical professionals and the public place in the legislative process. Clear and consistent communication is crucial to maintaining this trust.

Legal and Ethical Implications: If the provision is seen as contradictory to the minister’s statements, it could lead to legal challenges and ethical debates about the role of government in regulating medical practice.

The introduction of a provision that specifically criminalizes certain medical procedures under Section 106(1) of the Bharatiya Nyaya Sanhita (BNS) seems contradictory, especially given the existing exemption clauses designed to protect medical practitioners.

1. Consistency in Legislation: Laws should be consistent and coherent. Introducing a provision that criminalizes medical procedures while having exemption clauses to protect doctors creates a legal contradiction. This inconsistency leads to confusion and uncertainty in the medical community.
2. Discriminatory Impact: If medical practitioners are subject to additional criminal liabilities that are not applied to other professionals, it is  discriminatory. This would discourage doctors from performing necessary but high-risk procedures, ultimately affecting patient care.
3. Legislative Intent and Trust: The minister’s statement about decriminalizing medical negligence followed by the introduction of a criminalizing provision can undermine trust in the legislative process. It raises questions about the true intent behind the legislation and the transparency of the process.
4. Legal Challenges: Such contradictory provisions could be challenged in court. Legal professionals and medical associations would argue that the provision is unfair and inconsistent with the broader legislative intent of protecting medical practitioners acting in good faith.
5. Impact on Medical Practice: The fear of criminal liability leads to defensive medicine, where doctors avoid certain procedures or over-prescribe tests and treatments to protect themselves from potential legal action. This can increase healthcare costs and negatively impact patient care.

Addressing these concerns requires a clear and consistent legal framework that balances accountability with the need to protect medical practitioners who act in good faith. It might be beneficial for medical associations to engage with lawmakers to clarify these provisions and ensure that the laws support both patient safety and the professional integrity of doctors.

To address the concerns regarding the contradictory provisions in the Bharatiya Nyaya Sanhita (BNS) and their impact on medical practitioners, here are some potential steps and strategies that medical associations and legal professionals might consider:

1. Engage in Dialogue with Lawmakers

• Consultation and Advocacy: Medical associations can engage in direct dialogue with lawmakers to express their concerns about the contradictory provisions. They can advocate for a clear and consistent legal framework that balances accountability with protection for medical practitioners.
• Public Statements: Issuing public statements and position papers can help raise awareness about the potential negative impacts of the current provisions on medical practice and patient care.

2. Legal Challenges

• Judicial Review: Legal professionals can file petitions for judicial review to challenge the contradictory provisions. They can argue that these provisions are inconsistent with the broader legislative intent and the principles of fairness and non-discrimination.
• Case Law: Leveraging existing case law and precedents where courts have ruled in favor of protecting medical practitioners acting in good faith can strengthen the argument against the new provisions. Lead cases Jacob Mathew and Marin D’Souza.

3. Clarification and Amendments

• Propose Amendments: Medical associations can propose specific amendments to the BNS to remove or modify the contradictory provisions. This can include clarifying the scope of Section 106(1) and ensuring it aligns with the exemption clauses.
• Legislative Committees: Participating in legislative committee hearings and providing expert testimony can help influence the drafting and amendment process.

4. Public Awareness Campaigns

• Informing the Public: Educating the public about the importance of protecting medical practitioners who act in good faith can help build support for legislative changes.
• Media Engagement: Engaging with the media to highlight the issues and potential impacts on healthcare can help garner public and political support for necessary changes.

5. Collaboration with Legal Experts

• Interdisciplinary Collaboration: Collaborating with legal experts, ethicists, and other stakeholders can help develop comprehensive strategies to address the legal and ethical implications of the current provisions.

By taking these steps, medical associations and legal professionals can work towards creating a legal environment that supports both accountability and the professional integrity of medical practitioners.

Home Minister Amit Shah did address the issue of medical negligence during the parliamentary debate on the Bharatiya Nyaya Sanhita Bill 2023. He mentioned that the government plans to exempt doctors from criminal prosecution in cases of death due to medical negligence. This announcement was made while the Lok Sabha was discussing the new criminal law bills, which aim to replace the Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC), and the Indian Evidence Act.

Shah highlighted that the Indian Medical Association had requested this exemption, and the amendment would help doctors make bold treatment decisions without the fear of prosecution². However, it’s important to note that while the bill reduces the maximum term of punishment for doctors from five to two years, it does not provide a complete exemption.

The minister’s professed protection

NEW DELHI: Union Home Minister Amit Shah on Wednesday informed the Lok Sabha that the Centre is planning to bring an important amendment in the criminal law bill, which aims to exempt doctors from criminal prosecution in cases of death due to medical negligence.

The announcement was immediately hailed by the medicos and the various medical associations, especially the Indian Medical Association (IMA), which had urged the government to decriminalize medical negligence death.

Shah remarked as the Lok Sabha passed three criminal law bills- the Bharatiya Nyaya (Second) Sanhita, which proposes to replace the Indian Penal Code (IPC); the Bharatiya Nagarik Suraksha (Second) Sanhita, which proposes to replace the Code of Criminal Procedure; and the Bharatiya Sakshya (second) Sanhita, which seeks to replace the Indian Evidence Act.

During the debate, Shah said, “Currently, if there is a death due to negligence of a doctor, it is also treated as criminal negligence, almost akin to murder, Therefore, I will bring an official amendment to free the doctors from this criminal negligence."

“Indian Medical Association had urged us to look into the matter,” he added.

At the moment, cases of criminal negligence are handled under IPC 304 A, which pertains to causing death due to negligence. As per this section, a person causing the death of another person through a  rash or negligent act not amounting to culpable homicide can face imprisonment for up to two years, or with a fine, or both.