PCPNDT – Medicolegal Secrets

(written By Dr Vivekanshu )

Man & Machines
“Terror of Making Error” among Doctors under PNDT
“Doctors must play with Machines by the specific Country’s Rules”

Q. What is PCPNDT?
PCPNDT=Pre conception & Prenatal Diagnostic Techniques (Prohibition of sex selection) Act 1994.1

Q. What does PNDT Law regulate?
• PNDT Law regulates “Testing & Telling”
• Law regulates fetal testing, but does not prohibit testing, what is prohibited is disclosure of sex of fetus.

Q. What is difference between legal terms in PNDT act- “Permitted, Regulated, Authorized, Registered & Prohibited”?
• Permitted – Name, Place, Person, indication, method, duration
• Regulated – Permitted to kill in specific non-medical indications (population control)
• Prohibited- Punishment for doing act not permitted.
• Registered – Document what you do, when & why.
• Authorized- Take Documented Permit License authored by
o Legal Limiting body,
o for limited period,
o by limited doctors,
o using limited technology,
o for limited indications,
o in limited population,
o at limited place,
o in limited surroundings.

Q. How PNDT “Rules changed with Time” for Permitted, Registered, Regulated, Prohibited, Authorised?
• Before 1971- Abortion is illegal as per IPC
• 1971- Abortion is legal- to control population
• 1994- Sex selective Abortion (Amniocentesis) is illegal.1
• 2003- Sex selection (with USG) , Genetic studies) for abortion is illegal.2
• 2016- IVF for sex selective reproduction is illegal

Q. Why Doctors need to be legally controlled, regulated & prohibited?
• Magical Medical technology – Playing with God
(Technology needs money, to make more money “Money attracts Money”)
Technology for prolonging Life & Looks
• Implants & Transplants – Major Revenue generators.
• Implants in joints, bones, teeth, breast, face, genitalia
• Transplant- kidney, liver, heart, lung, cornea, bone-marrow, genitalia
Technology for continuing Lineage- generation (Inheritance of money)
• Sex Selection in choosing male child
• Pre- implantation genetic diagnostics- Perfect child
• Infertility – Assisted reproduction – IVF
• Intrauterine insemination -Surrogacy in infertile couples
• Wanting Child in single parent family
Technology for getting rid of unwanted pregnancy
• Unwanted fetus – feticide
• Unwanted Female Fetus – Female feticide
• Wanted “Designer” child

Q. How to easy recall Forms in PNDT?
Maintain “ABC” in Your USG centre
• Form ‘A’- Application for registration of an USG centre
• Form ‘B’- Batch displayed of registration certificate
• Form ‘C’- Cancelled- Rejection of application for renewal of registration
Maintenance of Records – Form D-G
• Form ‘D’- DNA Diagnosis in family – Genetic Counseling centres
• Form ‘E’- Examining DNA for abnormalities- Genetic Laboratories
• Form ‘F’- Fetus USG- Detail address of fetus family
• Form ‘G’ – Gravida –Pregnant consent form

Q. What are “added” powers for AA(Appropriate Authority) in PCPNDT amendments in 2003?
Sonography- “11 S”- Sex selection PCPNDT amendments – 2003
AA can
• Suspect PCPNDT violation on complaint received
• Sting Operation with decoy clients for Sonography
• Suspend the Sonography registration
• Summon the Sonography owner
• Suo motto cognizance
• Show Cause Notice for temporary suspension of registration
• Search warrant of Sonography centre,
• Seizure of Sonography
• Seal the Sonography machine
• Sale & purchase monitoring of Sonography
• Scrutinizing Records- Form F – Sonography
• Statement Recording from accused and co accused

Q. What is misuse of“ License Raj” related to PNDT?
PNDT officers victimize doctors – Many complaints made by doctors to Govt
• Allegation of Extortion of money from Gynecologists, for renewing license.
• Allegation to Blackmail Radiologists to seize the USG.
Doctors suffer
• IRREPAIRABLE LOSS,
• Financial HARDSHIPS
• Penal erasure
• DEFAMATION
• Outcaste from medical community
• Harassment of doctors by AA in PCPNDT- Undemocractic & violation of article 21 of constitution

Q. Who Acts in GOOD FAITH as AA under PNDT?
• Doctor
• CMO
• Police
• Magistrate
• IAS
• Judge

Q. What are Acts in GOOD FAITH?
Definition of “Good faith”- A thing shall be deemed to be done in good faith, where it is in fact done honestly whether it is done negligently or not.”
• Absence of “personal malice” may be relevant fact in dealing with the plea of good faith, but its significance or importance can’t be exaggerated.
Q. What are specific sections of Protection of Legal Action taken by AA in Good faith?
• PCPNDT- Section 9 & 31
• MTP – Section 8
• HOTA- Section 23
• Registration of Births and Deaths Act- Section 28
• Mental health act amendment -2017
• MCI Act- section 31
• No suit, prosecution, or other legal proceeding shall lie against any officer for anything which is in good faith done or intended to be done under this Act.
Q. Does it require to be Expert Specialist to become AA in PNDT?
• Good faith gives immunity – RMP can do surgery in good faith in emergency situation to save a life, as per law:
– No Qualification is asked
– No experience questioned
– No expertise expected
• Unlike acts done by doctors working AA in MTP, PNDT & HOTA, Doctor should have minimum qualifications as Expert Specialist, experience & expertise, before he does abortion, does USG, does amniocentesis, does transplant. So doctor has to do MCh in transplant surgery of the specific organ, before he can be authorised by doing transplant. But any govt MBBS doctor can be appointed by Govt in AA- legal bodies to regulate illegal acts of abortion, transplantation.

Q. Why PNDT Crime is called a Racket or Scam in News?
• Daily USG for sex determination is a continuing offence
• Section 178 (c) CrPC deals with a situation where an offence is continuing one, and continues to be committed in more local areas than one.
• A continuing offence means that if an act or omission on the part of the accused constitutes an offence and if that act or omission continues from day to day, then a fresh offence is committed everyday on which the act or omission continues.

Q. What is difference between legal Act, Bill & Rules?
An act is an official copy of a statute or regulation that is initially presented in the form of a bill and after being verified it is passed in the process of a legislature. An act is enforced in a legal manner. In context to an act, rules define the guidelines that must be followed for the successful implementation of the act.
A bill is the draft of a legislative proposal, which passes through various stages in order to become an act. It can be viewed as one of the sources of law. The acts are used for the creation of new laws or changing an existing law. The process of an act to become a law may vary from one country to the other.
Act is legal framework to define & regulate the illegal secret acts of criminals in specific field, by specific technology, done by specific person, on specific population, for making money illegally.
Rules are the procedures laid down for the authority taking action against the criminal doing the specific act. Rules can be enforced at any level. For example, a teacher might form a rule stating that every student in her class needs to show her homework everyday. The rules of these types are not rigid and depends upon the enforcing entity that how strict it is and what steps it has taken to ensure the proper implementation of the rules.

Q. How to court analyse Criminal Act in Law?
• Culprit
• Victim
• Date, time & Place of crime
• Intention for crime
• Damage & loss to victim
• Eye witness & Documentary Evidence of crime

Q. How PNDT act is configured?
• Illegal Act- Selective Child killing
• Crime – Selective Child making, kills unwanted gender
• Tools of crime – USG, Echo, Amniocentesis, CT, MRI
• Alleged Criminal – Gynecologists, Radiologists, Cardiologist, Sonologists, Veterinary Doctors.
• Govt Hospital CMO/ District Magistrates – Appropriate Authority(AA)
• IAS officer team – Authorizing committee
• Legal Cell – Advisory Committee advises AA

Q. How to easy recall the facts about “Gender specific Medicolegal Crimes”?
• W- What’s the crime- Sexual assault, Induction of sex selective Abortion.
• W- Who did it
• W- Where- Place of crime
• W- When- time & Date
• W- Why did the crime- Intention
• W- Whom- To Whom- Women
• W- Who is killed- Would be a Woman(female fetus)
• W- Witness of crime- pregnant Woman- Hostile

Q. Why Hospital owner is arrested in illegal organ transplant rackets & illegal abortion & sex determination, although he has done no illegal abortion by himself ?
• Owner of place of illegal work
• Allowed occurrence of repeated crimes
• Maximum money sharing in the deal
• Mastermind in procuring patients

Q. What are Dilemma’s related to PNDT act?
“Dilemma of AA – to report or not.”
“Dilemma of Police- to arrest or not (Cognisable)”
“Dilemma of Court – to bail out or not (non-bailable & Non-compoundable)”
• Role of AA, Police & court is to save life of female fetus.
• In human body related crimes- attempt to murder, physical torture, sexual assaults etc., police can immediately arrest the suspect without warrant, to prevent destruction of evidence or further attempts to harm victim & witnesses.
• Duty of Police is to maintain law & order in society, by stopping further crime by arresting the suspected criminal (Doctor/ nurse).
But to justify arrest, police need documentary evidence by an independent witness, so MLR by AA needed.
• Arrested Doctor/nurse can be bailed out in hours by court & can attempt to kill the female fetus again.
• So, to decide whether the accused can be bailed out or not, court needs expert opinion whether the criminal act was an attempt to diagnose gender for aborting female fetus.

Q. Why shouldn’t Police register FIR in PNDT?
As per PNDT rules. FIR should not be filed for any act of violation of PNDT. Instead, the Police should work with AA to file a court case against the alleged doctor, as per the complaint by victim.

Q. Is decoy “sting operation” by AA legally permitted ?
• AA can conduct decoy operation to generate evidence, when intelligence has been gathered about a centre or a facility that is conducting or aiding illegal sex selection.
Ref:- SOP Guidelines for AA in PCPNDT by MOHFW – Aug 2016.

Q. What are doctor’s Dilemma in PNDT act?
• Presumption about doctors alleged to be guilty -Section 24 – PCPNDT
• Presumption by AA that every doctor doing USG is guilty of sex determination, until proven otherwise.
• Burden of proof is not on the prosecution.
• It’s the Doctor, who has to prove that he is not guilty just like in Rape & Dowry deaths.
• Offence under the PCPNDT act is cognisable, non bailable & non compoundable

PNDT Offence : cognisable, non-bailable & non-compoundable
Cognisable – offence in which police can arrest without warrant from magistrate.

Q.How to recall list of Cognisable Offences aleegedly done by doctors?
10 R’s mnemonic of Cognisable Offences for easy recall
• Rape
• Ragging students
• Ragging wife by in-laws for dowry – causing death- 304B
• Rioting
• Robbery
• Recognizing sex of fetus (PCPNDT violation)
• Removing life (muRder) – 302 IPC
• Removing organs (HOTA violation)
• Removing Fetus (female feticide)- MTP violation
• Rash act of killing – 304 A – Negligence

Q. What is the Problem with the PNDT act?
• PNDT Act is still Toothless piece of legislation for quacks in villages

Q. What are Bottle necks & Clutches for doctors in PCPNDT ACT?
• Pregnant needs Prenatal investigation for fetal well being
• Prohibition of Female feticide
• Prohibition of sale of sex identification device- Sonography
• Prohibition of Advertisement of sex selection
• Prevention of misuse of sex selection
• Punishment for sex selection by prosecuting only doctors
• Penalties to doctors – Penal Erasure of registration to practice
• Permission to detect fetal anomalies
• Pro-life & Pro-choice issues
• Public Display of Signboard- No fetal sex detection
• Public Obligation of reporting PCPNDT violation
• Patrilineal inheritance in society
• Prescription for doing prenatal procedures- USG
• Portable USG can’t be shifted out from registered premises
• Protection of doctors against violence by patients is lacking in act
• Presumption by AA that every doctor doing USG does sex determination, until proven otherwise
• Paperwork – documentation of Form F, consent
• Preservation of Records

Q. What the Doctor Wants in PNDT act?
• Protection from getting arrested
• Prevention of legal hassle
• Progression in clinical Practice & career
• Permission to independent decision making in critical situations in emergency
• Doctors want to become Whistleblowers & inform AA, if any pregnant asks for fetal sex.
• But AA has no power to take any legal action against pregnant lady.
• Police do not take any action against pregnant, has no legal provisions for preventing abortion & MTP allows pregnant to seek abortion for controlling family size.

Q. How PNDT is misused against doctors- False allegations by pregnant mother’s family?
• Extortion of money from doctor
• Blackmail for Disclosure of gender of unborn fetus
• Alleged Negligence in prenatal care

Q. How PNDT is misused against doctors – False allegations by pregnant?
• Dowry – son preference
• Dowry Prohibition act, 1961
• Dowry Harassment- 498A
• Dowry Death- 304B
• Domestic violence act
• Discrimination by family members
• Disclosure of gender of unborn fetus
• Discard the Pregnant, forcing her to abort

Q. What are the usual allegations framed by Patient’s lawyer against Doctor doing illegal abortion causing PNDT violation?
• अस्पताल के डॉक्टरों ने मेरे ससुराल वालो से पैसे लेकर सोनोग्राफी से मेरे गर्भ में जुड़वाँ भ्रूण कि लिंग का पता किया, जब पता चला के एक भ्रूण लड़की है, तो मुझसे दहेज़ की मांग की, मेरे मायके वालो ने मना किया तो मुझे जबरदस्ती गैर-कानूनी कब्जे में अस्पताल रखा, जबरदस्ती खाली कागज़ पर मेरे हस्ताक्षर कराये, फर्जी दस्तावेज़ बनाकर मुझे एनेस्थेटिस्ट ने बेहोश कर के, गायेनेकोलोगिस्ट ने मेरा गर्भपात कर दिया.

Q. How above alleged complaint is dissected in legal format of IPC by court?
• 120 (B) IPC- अपराध को अंजाम देने के लिए साझा साजिश
• 34 IPC– दो या दो से अधिक व्यक्ति अपराध संयुक्त रूप
• (342)IPC= गैर-कानूनी कब्जे में रखना
• (468)IPC – धोखाधड़ी के उद्देश्य से जालसाजी
• (471) IPC-फर्जी दस्तावेज को असली की तरह इस्तेमाल करना
• 498A- IPC= Demanding Dowry & Domestic Violence
• Section 5 in MTP act- illegal abortion
• Section 23 in PNDT – illegal sex determination

Q. Why Doctors gets maximum allegations of misuse of PNDT?
“Documentary evidence of meeting the patient”
• Registration of patient
• Documentation of consultation
• Medical Investigation report like USG or amniocentesis mentions name of doctor reported & patient examined
• CCTV camera in public places
Q. What becomes the Evidence of Crime in PNDT?
• Documentary evidence (link between accused doctor & victim patient & unborn fetus)
– Hospital Registration form
– Prescription
– USG report & Forms
– Receipt of payment to Hospital
– Discharge summary
• All are missing in quacks doing female feticide, so AA fails to prove the crime in quacks & raids genuine doctors to complete monthly targets & finds faults in documents
Q. Why Doctors doing USG are presumed guilty simply on allegation by anyone?
Presumption about doctors alleged to be guilty -Section 24 – PCPNDT
• Presumption by AA that every doctor doing USG is guilty of sex determination, until proven otherwise.
• Burden of proof is not on the prosecution( victim’s lawyer- Public Prosecutor).
• It’s the Doctor, who has to prove that he is not guilty just like in Rape & Dowry deaths.
• Its contradictory to principles of Indian laws, as in other criminal cases like theft or murder, the burden of proof is on the prosecution.7
Q. Why Doctors doing USG face negligence charges under Consumer Protection Act, unlike doctors doing sterlisation under Family planning scheme?
• PCPNDT act doesn’t protect the doctor from Consumer Protection Act
• Faulty USG procedure in diagnosing congenital abnormalities is negligence
• Unlike Govt family planning schemes- Sterilisation in MTP act- Failed sterilization is not negligence.
Because in family planning, doctor is working for the government to control population, unlike doing USG for well being of fetus & pregnant.

Q. Why doctors doing illegal sex selection & abortion – considered as “heinous crime”?
Both PCPNDT & MTP are regulating doctors taking care of pregnant, because identifying sex of fetus & doing abortion of unwanted sex is contradictory under medical obligations of doctor of saving lives.

Q. How AA should respond to a complaint regarding violation of the PCPNDT Act?
• AA should –
• – as far as possible, not involve police for investigating cases under the Act as the cases under the Act are tried as complaint cases under the Code of Criminal Procedure, 1973 (2 of 1974).
• – investigate all the complaints within 24 hours of receipt of the complaint and complete the investigation within 48 hours of receipt of such compliant.4

Q. Why pregnant mother is not arrested in illegal abortion of female fetus in PCPNDT & any illegal abortion under MTP?
• Court’s Sympathy for pregnant patient’s critical state- as Why would a mother will kill her own child?
• No financial gain
• No Motive to directly harm.
• Public Sympathy for Pregnant.

Q. What is Catch “22” situation for Radiologists in PNDT?
Prescription required by Registered Gynecologist for doing prenatal procedures in Pregnant- “Catch 22” situation
• A catch-22 is a paradoxical situation from which an individual cannot escape because of contradictory rules. … Catch-22s often result from rules, regulations, or procedures that an individual is subject to but has no control over because to fight the rule is to accept it.
• If radiologist refuses to attend midnight obstetric emergency without prescription, he is guilty of breaching medical ethics.
• Whereas if he performs USG without prescription, he becomes culprit in PCPNDT – by AA.
• Self referral – can’t be done by Radiologists unlike Gynecologists, as they are not clinicians.
• Anger & aggression among pregnant & her relatives(lay persons) against radiologist for refusing USG.

Q. Describe horrible case of Radiologist murdered for refusing USG?
• Gruesome murder of Dr Manish Garg at a small place in Jind in 2014.
• Dr Garg was earlier beaten up and his hospital vandalized as he had insisted on asking for photo ID proof from a patient before conducting an obstetric ultrasound.6
• Requirement of photo ID proof is as per PCPNDT Act.
• Dr Garg had lodged an FIR and had provided CCTV footage of the incident but no action was taken against those responsible.
• this is not the first incidence of a doctor's murder in Haryana, giving example of Dr Ranveer Choudhary who was killed around five years ago and Dr Raman, who was murdered in Bhiwani.
• Haryana government which on one side asks doctors to work in rural and backward areas and on the other side does not give them even a semblance of a sense of security through its law and order machinery.6

Q. What is Catch “22” situation for Doctors in PNDT?
• Catch “22”-Advertising Sex selection is illegal- Section “22” – PCPNDT5
• Balaji Films- Kyunki saas bhi kabhi bahu thi- had a scene of sex selection by doctor
• Advertising on website- Ayurvedic drug maker advertised
• Name suggests- “Putra Jeevak” by Patanjali
• Article written in Marathi Magazine- How to have baby boy by jyotish, Mantra, tantra

Q. What do the Doctor Wants in changes in PNDT?
• Protection from getting arrested
• Prevention of legal hassle
• Progression in clinical Practice & career
• Permission to independent decision making in critical situations in emergency
• Doctors want to become Whistleblowers & inform AA, if any pregnant asks for fetal sex.
• But AA has no power to take any legal action against pregnant lady.
• Police do not take any action against pregnant, has no legal provisions for preventing abortion & MTP allows pregnant to seek abortion for controlling family size.

Q. What the Govt wants in PNDT act?
• Due recognition to fetal rights, but parents loses the right to choose child’s sex & loose the right to abort the unwanted gender of child.
• Control over medical technology & medical professional’s malintention for making quick money- Audit of USG- Form F
• Ethical use of new technology for further R & D

Q. How to easy recall Do’s & Don’ts for Doctors in PNDT?
All R’s mnemonic
• Register the Centre dealing with pregnancy
• Renewal of Registration before expiry date
• Registration certificate copy display in centre
• Rejection of Registration – do not continue USG
• Register the Doctor doing USG- Gynecologist, Sonologist
• Radiologist should update Resignation to AA
• Records maintenance up-to-date
• Report to AA monthly
• Retain all documents for atleast 2yrs
• Receive Declaration from pregnant, that no sex detection
• Remain alert & careful for protecting your career
• Refrain from disclosing sex of fetus.3

References:-
1. PCPNDT Act & Rules. 1994.
2. PCPNDT amendments 2003.
3. PCPNDT amendments 2014. http://cg.nic.in/health/pcpndt/Documents/GuidLine_02_21072016.pdf
4. Standard Operating Guidelines for District Appropriate Authorities by MOHFW -2016
5. Public notice in 2017 by PCPNDT committee in compliance to Hon’ble Supreme court directions via order dated 16-11-2016. http://haryanahealth.nic.in/userfiles/file/pdf/PNDT/2017/publicnotice_pndt_07032017.PDF
6. Medicos body condemns killing of doctor in Haryana. TNN | Sep 12, 2014.
7. Legal issues in Medical Practice. 1st Ed. 2016. Dr VP Singh. Jaypee publishers. Medicolegal outlook in PC- PNDT. Chapter 15, p 138.
8. Difference-between-act-and-rule. http://www.differencebetween.info/difference-between-act-and-rule.

One comment

  1. Dr Manoj Kumar · · Reply

    Great analysis sir.you should convey to lawmakers.

    Like

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