Can a Doctor be Arrested?
Doctors have no immunity against
arrest (as any other citizen of India) for the various criminal acts as per the
provisions of IPC or CPC of India.
Illegal organ trading, unlawful sex
determination etc. are non-bailable offenses. But the question is whether a
doctor be arrested for:
(a)
alleged medical negligence during day to day care of a patient,
(b)
unexplained hospital deaths like SIDS etc.,
(c)
postoperative complication or failure of operation;
(d)
not attending or refusing a patient (who was not already under his care) who
becomes serious or dies and
( f )
not attending a case of roadside accident.
Recently, the chairman of a hospital
was arrested for not complying with the Supreme Court directives in a roadside
accident. In this particular case the patient died while being shifted to other
hospital. The Supreme Court directives (criminal writ petition no. 270 of 1988)
in a roadside accident include:
• The medical aid should be
instantaneous. It is the duty of the registered medical practitioner to attend
the injured and render medical aid, treatment without waiting for procedural
formalities unless the injured person or guardian (in case of minor) desires
otherwise.
• The effort to save the person and
preserve the life, should be top priority, not only of the doctor but also of
the police officer or any other citizen who happens to notice such an accident.
• The professional obligation of
protecting life extends to every doctor, whether at Government hospital or
otherwise.
• The obligation being total,
absolute and paramount, no statutory or procedural formalities can interfere in
discharging this duty.
• Whenever better or specific
assistance is required, it is the duty of treating doctor to see that the
patient reaches the proper expert as early as possible.
• Non-compliance of these directives
may invite prosecution under provisions of Motor Vehicle Act or IPC(7).
If FIR is lodged by patient or relatives
then the police may arrest the doctor. Hence better approach in cases where we
feel that the patients or relatives may create nuisance will be as follows:
1. The doctor should lodge a FIR that
a particular incidence has happened in my hospital.
2. A crisis management committee may
be formed at each Taluka or District level. The committee shall include
doctors, social workers, legal personalities, politicians, press reporters etc.
The committee members may meet the police officers and request them for
complete investigation of the incidence and to avoid prosecution till the guilt
is proved. The committee can also request the press reporters not to give
unnecessary publicity to such cases.
The Government of Kerala (G.R. no. 3231/SS-B4/92/Home dated 20.09.1993)
has issued the following instructions if there are any cases of criminal
negligence against a private practitioner, doctor or private hospital.
According to G.R. the investigating Deputy Superintendent of Police shall refer
the case to a panel of Superintendent of Police, commissioner of Police,
District Medical Officer or Principal of Medical College. Still if the views
differ, the opinion of an apex body consisting of Director of Health Services
and expert in that particular speciality may be taken. The affected doctor is
also free to approach the apex body with appeals.
LINE OF ACTION:
The arrested person shall be communicated with the particulars of offence and the ground for arrest. If the offense is bailable, then the person should be informed and the arrangement for the bail may be made. If the police officer refuses to release such person on bail, he will be liable for damages for wrongful confinement. Sometimes a police officer may register an offense under Sec. 304 of IPC instead of 304-A in order to detain the accused doctor. In such cases officer may have to face serious consequences. The person shall not be subjected to more restraint than necessary to prevent his escape. If there are any offensive weapons belonging to the arrested person, these weapons may be seized. The arrested person must be produced before a magistrate having jurisdiction in that case. No police officer shall detain in custody an arrested person for more than 24 hours unless a special order from a magistrate is obtained(9).
Anticipatory Bail: In order to avoid frivolous accusations, there is provision of anticipatory bail. This may be granted as a protection in offences which are non-bailable. It is direction to release applicant on bail, if there is arrest. Once granted it remains in force. Pre-requisites for anticipatory bail are: (i) there must be reasonable apprehension of arrest, (ii) the alleged offence must be non-bailable, and (iii) the registration of FIR is not necessary.
Procedure for Bail: The accused is required to execute his personal bond at the police station with or without surety. The surety may be a close relative, a friend or a neighbour, who is required to undertake to pay the said amount in case of absconding of the accused.
Do’s and Don’ts
- Inform police whenever necessary.
- Extend all possible co-operation to the police.
- Furnish copies of medical records to police, court or relatives whenever demanded. Consent of patient may be taken while providing information to police.
- Follow the legal procedures or provisions.
- Have a valid informed consent for the treatment(10).
- Preserve the documents, records specially in medico-legal, controversial or complicated cases.
- Insist for post-mortem examination if the cause of death can’t be ascertained.
- Involve medical associations, medico-legal cells, voluntary organizations whenever legal problem arises.
- Consult your lawyer before giving any reply.
- Don’t become panicky.
- Don't manipulate or tamper with the documents.
- Don’t do unlawful or unethical acts.
- Don’t issue false or bogus certificates. Certificate was issued on request is no defense.
- Don’t neglect the treatment while completing legal formalities specially in serious or emergency situation.
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