Medical professionals’ protests against BNS as new law dealing with negligence suggest jail term, fine

Dr Rohan Krishnan, FAIMA national chairman, said: “What was promised in Parliament has not been delivered.”
Medical professionals’ protests against BNS as new law dealing with negligence suggest jail term, fine

NEW DELHI: On National Doctor's Day, many doctors, from junior to senior professionals, expressed dissatisfaction and anger instead of joining in the celebrations.

They were unified in protesting a specific section in the Bharatiya Nyaya Sanhita (BNS), which replaced long-standing British-era laws. The protests coincided with the observance of National Doctors' Day, highlighting the widespread concern within the medical community regarding this legal change.

The new law requires doctors to pay a fine and also face jail time of five years if found guilty of a negligent act that does not amount to culpable homicide. Earlier, under the Indian Penal Code, there was a fine or two years jail term.

Even as Prime Minister Narendra Modi and Union Health Minister J.P. Nadda greeted and hailed doctors on Doctors Day, many medical professionals told this paper that the new BNS law is a "gift from the government" to punish them.

Reacting to doctors being brought under the ambit of the new law, Dr Arun Gupta, president Delhi Medical Council, said, "Earlier, the provision under 304 A did not specify medical professions, and it was of a general nature. However, the new law brings modern medicine practitioners into the ambit and clearly defines them. The law now makes jail term mandatory."

"The doctors are apprehensive. This will be a big deterrent for doctors handling critically ill patients. What kind of protection will they have now," he asked.

He tweeted, "BNS is here - happy Doctor's Day from the government. Now, jail is a must in case of medical negligence. Think 100 times before you take a sick patient."

Dr Gupta also said that in an earlier court case, the Supreme Court had observed that police negligence under 304 A has to be gross (more severe than ordinary negligence).

"The SC had also said that police cannot register a case against a doctor unless they get a clearance of prime facie from a competent medical body. So, what will happen to these two clauses? We need clarification now the IPC has been scrapped," Dr Gupta added.

Dr R.V. Asokan, National President, Indian Medical Association (IMA), said they had shared their views with Prime Minister Narendra Modi and Home Minister Amit Shah that doctors should be exempted from the law because they don’t have criminal intent as there is no crime involved. IMA has over 3.5 members.

“The new law has in fact increased the punishment for the doctors. Doctors don’t deserve this,” he told this paper.

Expressing unhappiness, Kerala-based Dr K V Babu said, "Today, Doctors' Day 2024, is a sombre day for doctors practising modern medicine in our country."

"Hundreds of our colleagues have sacrificed their lives when our nation was going through the worst COVID pandemic. Now it seems that jail is "Modi Sarkar's gift" to medical professionals who will likely get convicted in case of unfortunate situations when a death occurs during treatment," said the RTI activist.

Many also highlighted that during a discussion last year in the parliament on the new law, Shah had said the criminal law bill had been amended to give relief to medical professionals in cases of death caused by alleged medical negligence.

Shah had said, "Currently, if there is a death due to negligence of a doctor, it is also treated as criminal negligence, almost akin to murder. Hence, I will bring an official amendment now to free doctors from this criminal negligence on the request made in this regard by the Indian Medical Association.”

But despite the promise, Dr. Rohan Krishnan, FAIMA national chairman, said doctors have not been exempted and will instead face higher punishments of five years from two years.

"What was promised in the parliament has not been delivered. This change in the law can be misused against the doctor who genuinely works to save the patient's lives. How will a doctor now treat an emergency patient? Now, doctors will refer serious cases to a government hospital as they would not want to be involved in litigation. In the end, the patient will suffer."

Dr Rajeev Jayadevan, past president IMA, Cochin, further explained that modern medical practice frequently involves performing operations and other treatments for severely ill patients. “Many of these carry an inherent risk of side effects, injury or death which is never intentional. This makes it different from homicide, notably because the action is taken in the patient’s best interest, and done with informed consent. “

“Despite the best efforts, bad outcomes do occur, such is the nature of the profession.  Unfortunately, excessive fear of punishment discourages doctors from discharging their duties, and many are now opting to take up less risky specialties. This eventually will harm patients who are critically ill, and whose lives could be potentially saved,” he told this paper.

Dr. Dhruv Chauhan, national council coordinator of the Indian Medical Association-Junior Doctors Network (IMA-JDN) said, “This doctor’s day, we have got something which surely no doctor would probably want!.”

“The doctors working in the critical departments already have to worry before treating a sick patient thinking what if anything happens to the patient by trying to save life by critical approach then it’s the doctor who has to pay and suffer. The doctors should be relieved from these acts considering the sensitivity of our profession.”

Dr Asokan suggested that the government should issue clarifications on the provisions under Section 26 and Section 106 of BNS for the benefit of investigating officers (IO).

He said the home ministry can ask the IOs to take action against doctors only when the officer is satisfied of the recklessness or gross negligence and also register a case only after taking the opinion of the state medical expert team as is the norm in some states.

The law then: Under Section 304 A of the Indian Penal Code (IPC), 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.

Now: Under Section 106 (1) of BNS, 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 five years, and shall also be liable to fine.

Under BNS, if found guilty, imprisonment would be mandatory

The law explains that a "Registered medical practitioner" is a medical practitioner with 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.

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