Experts recommend special provisions in IPC, CrPC & Evidence Act to deal with prosecution of doctors

New Delhi: The 7^th National Convention on Medicine & Law 2022 was held virtually on 6^th November 2022. Speakers from diverse backgrounds including former Supreme Court and High Court judges, members of the Law Commission of India, doctors, lawyers, regulators, and administrators deliberated on the various aspects of the prosecution of doctors for medical negligence.

The general consensus that emerged was that the Parliament must introduce special provisions not only in the Indian Penal Code (IPC) but also in the Criminal Procedure Code (CrPC) and the Indian Evidence Act. Setting up of Medical Tribunals to deal with cases of medical negligence was another alternative endorsed by many speakers. It was also agreed that this problem is global in nature, the consequences are disastrous for everyone, especially patients, cosmetic changes in the existing law will not suffice, there should be no compromise on patients’ safety and rights, and the reasons given by the Hon’ble Supreme Court in the Jacob Mathew case to provide special protection to doctors in cases of criminal medical negligence are equally good today.

Dr. Vedprakash Mishra, Pro-Chancellor, Datta Meghe Institute of Medical Sciences, Nagpur chaired the Convention. Mr. Mayank Kshirsagar, Advocate on Record, Supreme Court was the Convenor, and Dr. Parag Rindani, CEO, Wockhardt Group of Hospitals, Maharashtra was the Moderator of the Convention.

Justice Asok Kumar Ganguly, retired Supreme Court judge, stated that unless the suggestions made by the Supreme Court in the Jacob Mathew case are “transformed into the Letters of Law” by the Parliament it will be difficult to guide the police officers in such cases. “It is high time for the Parliament to come forward and review these old, colonial legislation of IPC and make it in tune with the present need of the time” stated Justice Ganguly.

Justice Ravi Tripathi, Chairman of the Gujarat State Human Rights Commission and former member of the Law Commission of India stated that the general opinion is that doctors should not be totally immune from prosecution but must certainly be given ‘special treatment.’ He pointed out that in instances such as bride burning and rape, the courts framed the guidelines and the Parliament made laws thereafter and this model must be followed in cases of doctors also. He further recommended that only officers of a particular rank should have the authority to initiate criminal prosecution against doctors. He expressed surprise at why the MCI had not moved the Supreme Court seeking further orders in these 17 years after the Jacob Mathew case. He also assured the doctors that the judiciary respects the doctors as a class and advised them to refrain from behaving in an oversensitive manner.

Justice Ajay Kumar Mittal, former Chief Justice of Madhya Pradesh High Court stated that a balance must be evolved between the rights of the patients and the protection of doctors from criminal prosecution. He suggested that reference should be made to the Medical Council of India or the Medical Board of States to give an opinion in a timebound manner before initiating criminal proceedings against doctors, a difference must be drawn between a professionally qualified doctor and a quack, and the patient (complainant), as well as the police officers, must also be made accountable if they choose to prosecute doctors. He further opined that a new law was not required but special provisions must be introduced in the IPC and the Indian Evidence Act wherein a “rebuttable presumption” should be raised in favour of a qualified doctor.

Dr. Mukesh Yadav, President, Indian Association of Forensic Medicine, shared some valuable analytics based on the report of the National Crime Research Bureau (2017 to 2021). He pointed out that more than 90% of the doctors prosecuted for negligence have been arrested despite the protections provided in the Jacob Mathew case; about 80% of the doctors who were prosecuted are from the age group of 31 to 60 years – the most productive age for doctors; 90.79% of the doctors arrested are males whereas 9.21% are females; the conviction rate a mere 14.63%; and only 54.6% of the doctors prosecuted were charge-sheeted whereas the others were either discharged or the case against them simply abated. “What is the fun in filing an FIR and harassing doctors if you cannot even reach the trial stage” questioned Dr. Yadav.

Dr. Vedprakash Mishra who chaired the Convention as well as Dr. Shivkumar Utture, President – Maharashtra Medical Council & Member – National Medical Commission pointed out that the Medical Council of India and the National Medical Commission have forwarded draft guidelines to the Union government on the criminal prosecution of doctors as suggested in the Jacob Mathew case. They have recommended a 2-tier system wherein every case of prosecution of doctors must be sent to the District Medical Board which will give its opinion in 2 weeks. Any party aggrieved by this opinion can appeal to the State Medical Board which will also give its opinion in 2 weeks thereafter. The Board/s will have 2 specialists from the same speciality as the doctor accused of negligence. The government is yet to respond to the suggestions.