Remove healthcare services from within purview of Bhartiya Nyay Sanhita please

To
Honourable Prime Minister
Sh Narender Modi
New Delhi

Re; Inclusion of medical services within purview of Bhartiya Nyay Samhita

Sir
Medicos legal Action Group is a group of about 1250 Doctors of Modern Scientific Medicine from across India who work towards legal resolution of issues which adversely effect medical profession. Bhartiya Nyay Samhita 2023 which has replaced IPC 1860 has caused consternation among doctors. We wish to bring forth our representation to you in the matter.

On the floor of the parliament when Bhartiya Nyay Sanhita Bill was placed, Sh Amit Shah the mover of the Bill and the honourable Home minister had clearly stated that doctors will not be covered within its purview for alleged professional medical negligence. Despite the widely publicised legislative intent when the Act was notified we found that provisions were if any thing more stringent for doctors than in IPC 1860. In Section 304 A IPC a medical professional could be prosecuted and punished for death due to negligence with a jail term of 2 years, and or fine. Now under section 106 (1) the provision is Jail term plus fine. With IPC being repealed and BNS being notified there was an opportunity to delink professional medical negligence from criminal law which appears to have been lost.

No doctor has a desire to harm his patient. All patients approach doctors for a disease / infirmity and doctors try to help them in good faith to the best of their ability. Sometimes they succeed and sometime they do not . Even BNS under Sections18, 19, 25, 26, 27 & 30 gives protection to those who may have caused harm but they had done the act which caused harm in good faith and for benefit of the person who was harmed. If this is so then why at all are medical services provided by doctors dragged to criminal courts. Section 18 specifies that an act done by accident and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution is not an offense. Perforating the uterus during a D&C procedure, Bile duct injury during cholecystectomy, are all accidents which happen during lawful treatment in a lawful manner with proper care and caution. Despite it being so doctors are prosecuted for suchlike complications despite similar protection existing even in IPC.

It is also of note that only doctors of modern scientific medicine have been mentioned in the Section 106 (1) where registered medical practitioners have been given a relief of retaining 2 years as term for imprisonment. Does this mean that doctors of Indian systems of medicine will be awarded 5 years imprisonment for death due to negligence or has it not been envisioned that doctors of alternate / Indian systems of medicine will ever be prosecuted for criminal negligence. Also Section 105 which covers culpable homicide has ambiguous language which prescribes imprisonment for life as well as from 5-10 years. As used to happen in IPC, doctors are apprehensive that like multiple incidents in the past where doctors were prosecuted under Section 304 (II) and Section 304 IPC instead of Section 304 A, similar misuse of Section 105 will happen under the BNS regime.

More importantly certain provisions of BNS like Section 117 and Section 124 can be misused to blackmail doctors due to ambiguous language used. Act causing permanent damage or deformity or vegetative state has punishments ranging from rigorous imprisonment of 10 years to life. Permanent Vegetative state is something a person goes into when his brain suffers hypoxic damage due to cardiac arrest and though he is revived by Cardio Pulmonary Resuscitation (CPR) and heart starts beating and he or she starts breathing on her own or with support, but patient remains only partially aware or unaware of surroundings and unresponsive or partially responsive to stimulus. This is a scenario where out of every 100 such patients, 75 will be so because they had suffered cardiac arrest in a place where facilities and human resources exist to revive a patient which means they were in a hospital already. Rarely a patient of head injury or stroke or meningitis initially comatose will recover partially to remain in a vegetative state. The dilemma for doctors who work in Intensive and critical care units where sometimes more than 20 patients go into cardiac arrest every day would be to resuscitate or not to resuscitate. If patient dies and they are held negligent under BNS the punishment is 2 year jail but if the person recovers but remains in a state of permanent vegetative state due to hypoxia of brain, the punishment if prosecuted is 10 years rigorous imprisonment to life imprisonment. There is no way for doctors who are doing CPR to know beforehand whether if CPR is successful and patients heart starts beating will he regain consciousness or not. Similarly loss of eye following surgery for cataract due to endophthalmitis, amputation of fingers due to development of gangrene in patient who had received IV drugs, leading to extravasation, thrombophlebitis, and compartment syndrome are all examples of permanent damage or deformity caused by an “act” (medical intervention). A delayed swelling of limb following plaster cast causing gangrene and amputation is another such scenario. Loss of limb or eye would be considered permanent disability and any incision made by a doctor would classify as grievous hurt.

Our biggest apprehension is the punishments are envisioned for having “knowledge” that harm may be caused by the act intended to be done. Section 100 states whoever causes death by doing an act ….with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Section 105 awards life imprisonment or imprisonment of 5-10 years for causing death,…. 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. This is despite it being clearly mentioned in Section 19 BNS that if an act is done with knowledge that it may cause harm but is done without criminal intention and in good faith for preventing harm to a person (Treating a disease) it is not an offense.

It is not in society’s benefit to be treated by ignorant doctors who do not have knowledge of side effects and complications which can happen during treatment. We have been taught and have knowledge of what the disease can do and also what are the benefits and the occasional harm which may result from a particular treatment modality. A police official wanting to extort gratification from a doctor in whose hospital a patient dies can easily turn a 106(1) Section to Section 103 or 105 because of this knowledge which a doctor possesses. Because of our knowledge we would be accused of doing an act rashly in disregard for consequences which is punishable. Though such acts of police personnel would later be rectified in all likelihood by the courts but it is the judicial process and not only the final verdict which is a torture for the doctors and of which they are worried. Hon’ble Supreme Court in Kartar Singh v. State of Punjab, (1994) 3 SCC 569, wherein Hon’ble Court has observed that: “Vague laws offend several important values. It is insisted or emphasised that laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Such a law impermissibly delegates basic policy matters to policemen and also judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. More so uncertain and undefined words deployed inevitably lead citizens to “steer far wider of the unlawful zone … than if the boundaries of the forbidden areas were clearly marked’.

Other sections like Section 239 will also be problematic for doctors to follow whereby doctors will be bound to inform police of any thing which could be a crime. Conflicting provisions in MTP Act prevent doctors from disclosing identity of victim. Chapter VI of BNS. Also many a times patient is brought to doctors with injury stated to be due to a fall but may actually be domestic violence. Vague laws which cannot be put into practice uniformly create ethical dilemmas for doctors which are best avoided. A crime in criminal law should clearly be a crime wherever and by whosoever it may be committed. A young patient brought for caesarean if dies due to amniotic fluid embolism or Post partum hemorrhage would be considered by some to be due to criminal negligence of doctors. Should the Operation theater at AIIMS / PGI be sealed till videography of alleged crime scene (OT) has been done as prescribed under BNSS.

Also the relief granted to doctors accused of criminal medical negligence by Jacob Mathew vs State of Punjab judgement of honorable Supreme Court would be void under BNS & BNSS in cases where punishment exceeds 7 years and the police official does not need any warrant to arrest. It is very easy for someone to claim that grievous hurt was caused because doctor knew that doing phaco surgery of cataract could cause loss of eye hence imprisonment more than 10 years is prescribed and hence Reputations of doctors are built over long years with great difficulty and such prosecution ruin all the years of hard work put in by doctors.

Besides these there are many other sections in BNS which will cause problems while treating patients and would leave a doctor in dilemma every time he has to take critical decisions. Shaky hands should not hold a scalpel. We need to empower doctors to do their best in emergencies and not shackle them in straightjackets. Removal of medical services provided by doctors totally from within purview of BNS is essential because medical services are already accountable under several laws before many judicial and quasijudicial for a. To compensate patient we already have many avenues including CPA and to punish a doctor for negligence / misconduct the State Medical Councils are empowered. This does not mean that we are advocating that a drunk doctor driving at 130 kmph causing a road side accident and killing a pedestrian should not be prosecuted to the full extent of the law. What we are asking for is to remove professional services and allegations of medical negligence from the purview of BNS.

Dr Neeraj Nagpal
Managing Trustee,Medicos Legal Action Group (MLAG)
Ex President IMA Chandigarh
Director Hope Gastrointestinal Diagnostic Clinic,
SCO 1066-67 Aerodale Market, New Sunny Enclave Sector 123 Mohali 140301
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