ETHICS. NEW RECOMMENDATION by NMC in case of criminal medical neglegence
Ethics
and Medical Registration Board (ERMB), which operates under the National
Medical Commission (NMC), has recently developed certain recommendations that
set out the punishment of physicians for causing the death of innocent people
as a result of gross medical negligence or reckless treatment. This article
throws light on the principles to safeguard physicians from unfair prosecution
against medical neglect.
The move comes after receiving a letter from Dr Kunal Saha, President People
for Better Treatment (PBT), requesting compliance with the Supreme Court’s
directives.
In 2005, the Supreme Court said that:
“Statutory rules or executive orders including certain guidelines must be
framed and issued by the Government of India and/or state governments in
consultation with the Medical Council of India.”
The National Medical Council (NMC) sent a letter in response, to the Secretary
of Ministry of Health and Family Welfare (MoHFW). Meanwhile, the court
established specific rules for future prosecutions of physicians for offences
including criminal rashness or criminal negligence.
Since Jacob Mathew vs. the State of Punjab dated August 5, 2005, when the Apex
Court issued provisional rules/observations for declaring a doctor guilty of
“criminal negligence” under the Indian Penal Code (IPC Section 304A), these
guidelines developed by NMC shield physicians from frivolous or unfair
prosecution against medical negligence.
The recommendations detail the full process for protecting physicians under IPC
304A and propose for the establishment of a specialised district medical board
to adjudicate cases of physician carelessness.
The new rules mandate that upon receipt of a complaint under the Indian Medical
Council Act, 1956, the case be referred to the district Medical Council Board
for advice before any arrest is made. Additionally, the problem may be referred
to the State Medical Council Board, and the rules state plainly that a doctor
accused of medical malpractice may not be arrested routinely.
Rules and regulations
Section 304-A of the Indian Penal Code governs the prosecution of doctors who cause the death of a patient via medical negligence. The Supreme Court, in its judgement dated 05.08.2005 in the case of Jacob Mathew vs. the state of Punjab, recognised that investigators and private complainants cannot always be assumed to possess knowledge of medical sciences in order to determine whether a law under section 304-A of the IPC has been violated.
Once the criminal procedure is launched, the medical practitioner faces
significant humiliation and, in some cases, harassment. The Honourable Supreme
Court noted in the aforementioned decision that new rules or executive
instructions comprising specific guidelines must be developed and published by
the Government of India and/or the state government in conjunction with the
Indian Medical Council in order to safeguard practitioners against frivolous or
unfair prosecution for medical negligence.
Additionally,
the honourable court stated that a physician accused of haste or carelessness
may not be arrested routinely (just because a charge has been filed against
him).
According to a judgement dated 12.11.2013 (and partly modified on 05.03.2014)
by the Supreme Court in the case of Lalita Kumari versus the state of U.P.
& Ors, the preliminary investigation in medical negligence cases shall be
time-constrained and in any case, should not exceed fifteen days usually, and
in extreme situations, it must be reflected in the general diary entry.
Principles for protecting physicians against improper prosecution
While
noting that “criminal procedure once began puts physician to considerable
humiliation and sometimes harassment,” NMC’s EMRB suggested the following principles for safeguarding
physicians from criminal rashness or wrongful prosecution against
medical neglect:
The prosecuting/investigating agency on receipt of any complaint of which
criminal rashness or negligence is an ingredient against medical practitioners-
Under the Indian Medical Council Act, 1956/NMC Act, prior to making an arrest,
refer the complaint to the district Medical Council Board for its
recommendations with regards to the merit of the allegation of criminal rashness
or negligence, contained in the complaint. The District Medical Board should be
in a government medical college and in the district hospital. If the district
doesn’t have a medical college (the reason is the availability of all the
experts with them), the department of forensic medicine and toxicology in every
medical college can be a nodal department for such a board.
The District Medical Board on receipt of such a reference must examine the
allegation contained therein within two weeks from the date of its receipt and
forward its recommendations to the prosecuting/ investigating agency.
The prosecuting/investigating agency or doctors (against whom the complaint is
lodged), if dissatisfied with the recommendation of the District Medical Board
may state the reasons for such dissatisfaction, refer the matter to the State
Medical Board for its recommendation within a period of two weeks from the
receipt of the recommendation of the District Medical Board.
The state medical board should have a pool of specialists from the state, from
each speciality apart from permanent members appointed by the state government.
Two specialists of the concerned branch should be included in the board on the
day of receipt of the complaint or appeal.
The state medical board on receipt of any such reference from the
prosecuting/investigating agency would examine the matter within two weeks from
the date of receipt of such a reference. The state medical board shall provide
a reason for endorsing or rejecting the recommendation of the district medical
board.
The prosecuting, investigating agency on receipt of the recommendation of the
district/state medical board may further proceed in the matter in accordance
with the law. However, in the case of arrest of a registered medical practitioner
in the employment of state/central government is being made, the controlling
officers of such medical practitioner would be informed by the
prosecuting/investigating agency. Likewise, in case the registered medical
practitioner is engaged in private practice, the concerned state medical
council should be informed. In case there is no state medical council in that
state/UT, EMRB NMC should be informed.
A doctor accused of rashness or negligence may not be arrested in a routine
manner simply because an allegation has been levelled against him. The arrest
may be withheld unless the alleged negligence is of gross nature, and arrest is
necessary for furthering the investigation or for collecting evidence or unless
the investigation officers are satisfied that the doctor proceeded against, or
the doctor would not make himself/herself available to face the prosecution
unless arrested. Further, the investigating agency prior to the arrest of the
doctor in such cases shall place a factual position for consideration of the
concerned superintendent of police/DCP.
The board should apply Bolam’s test to facts ‘Standard of a responsible body of
medical opinion’. Additionally, the instructions indicate that in the instance
of the district board, Members of the board of directors should rotate at least every two years.
If the board is located at a medical college, one member from the office of the
civil surgeon should be involved.
Additionally, in the case of the State Board, permanent members of the board
should be replaced every two years, and a representative from DGHS should be
included.
JUSTICE MARKANDEYA KATZU DIRECTS-
Even though stringent acts like Nirbhaya and SC atrocity prevention acts are there, still such crimes never abated. So, it's not only legislative act but strict implementation is crucial.
Its advisable that all doctors to display this banner in their mother tongue in reception areas of the hospitals:
IN the recent issue of Dr.Archana sharma, the IMA SHOULD act decisively with persistent effort.
DEMANDS OF IMA should be:
1. Not Simple SUSPENSION but DISMISSAL of POLICE officials INVOLVED IN THE INCIDENT.
2.File criminal case against SHO, SP, DSP and local political leaders for abetting suicide of a doctor.
3.punitive compensation of 5crores to Family.
4.. IMA Rajasthan should file a petition in Rajasthan high court for contempt of court pleading penal action against the police officials involved in lodging FIR under section 302 (attempt to murder) even though there is no mens rea.
Unless There is some inhibitory action, police frequently ignore the law and succumbed to the orders of local political goondas.
5. By IMA HQ... Persistent and steadfast Political pursuance and judiciary Battle at Apex Court for National medical protection act & strong IPC, CrPC sections with more than 7yrs imprisonment.
The IMA along with FOGSI and other associations of FOMA should appraise the public and the media about the difference between complication and negligence.
The public shoulld know that mistakes,errors,failures are part of the healing.
if you think that every death in the hospital is murder,then every attempt of treatment may be doomed as an attempt to murder.
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