Clause 106 Amendment: BNS accepts IMAS plea
Posted by admin on 2023-12-27 |
Last Wednesday, the Lok Sabha approved the
second segment of the Bhartiya Nyaya Sanhita (BNS), slated to replace the
Indian Penal Code (IPC). The bill was presented to the House on December 12.
As of now, Section 304A of the IPC governs
the punishment for medical negligence resulting in fatalities, prescribing
imprisonment for up to two years, a fine, or both. In the initial proposal of
the Bharatiya Nyaya Sanhita (BNS) 2023, Clause 106 dictated a heightened
punishment of up to five years. However, the revised BNS has reverted to the
original terms outlined in the IPC.
What
Clause 106 States?
The amended text of the BNS, 2023, states, “Whoever causes 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; and if such act is done by a
registered medical practitioner while performing medical procedure, he shall be
punished with imprisonment of either description for a term which may extend to
two years, and shall also be liable to fine.”
Causes for the Amendment
Addressing
the Bill, Home Minister Amit Shah mentioned that the amendment was proposed in
response to a request from the Indian Medical Association (IMA).
Last year,
the IMA had sent a letter to Prime Minister Narendra Modi, urging that doctors
be excluded from facing criminal charges under the Bharatiya Nyaya Sanhita
(BNS), 2023. The Indian Medical Association contended that assigning criminal
liability for medical negligence is a contentious issue. They emphasized the
viewpoint that medical mishaps can occur without any criminal intent and
suggested that deaths during medical treatment should be considered as
accidents unless proven as gross negligence through expert evaluation.
“If a patient’s death was caused because of doctor’s negligence, it also
came under the clause of murder committed unintentionally for which we have
increased the punishment in the new law to 10 years… I am bringing an amendment
to the law to free doctors from the ambit of this clause… IMA had sent us a
memorandum regarding this,” Shah said in the Lok Sabha.
Response from the Indian Medical Association
(IMA)
Dr. Sharad
Kumar Agarwal, the President of the Indian Medical Association (IMA), expressed
approval for the new provision supporting doctors, stating that it fulfilled a
longstanding demand from the association and the vast community of doctors.
“It has
been really unfair that those responsible for negligent driving and doctors
accused of medical negligence have been treated with the same provision of the
IPC so far,” said Agarwal.
“In essence, the government has declared, in principle,
its acceptance of the IMA’s stance that there is no criminality involved in the
relationship between a doctor and a patient. The IMA has consistently
maintained that there is no criminal intention between a doctor and a patient,
emphasising that criminality requires intent to harm, and crime is defined by
the presence of criminal intent,” said Dr R. V. Asokan, President-elect of IMA.
Provisions
regarding medical negligence are shaped by case laws, and a crucial case to
consider in establishing guidelines for medical negligence is Jacob Mathew vs
State of Punjab & Anr. (2005). In its 2005 judgment, the Supreme Court
recognized the necessity of safeguarding doctors from baseless criminal
prosecutions while underscoring the importance of accountability in cases of
authentic medical negligence.
The court
made a clear distinction between occupational negligence and professional
negligence, asserting that mere lack of care or errors in judgment do not
necessarily constitute proof of negligence. It stated that only gross
negligence, characterized by abject negligence, could render a doctor
criminally liable. The court emphasized that criminal liability would arise if
a medical professional's actions, conduct, or omissions are so recklessly or
negligently performed that they can be equated with a criminal act. Crucially,
the court highlighted the importance of obtaining expert opinions to establish
negligence, specifying that such opinions should be provided by a doctor
specializing in the same field as the accused professional.
What’s in it for patients?
In matters
of civil liabilities, the consumer commission serves as the accessible forum
for patients who hold doctors and hospitals accountable for negligence.
According
to Dr. Asokan, the new law is beneficial for both healthcare practitioners and
patients.
“In the event of a loss, patients’ families can pursue civil suits
without doctors being perceived as criminals or murderers. This instils
confidence in doctors, especially in critical situations, eliminating the fear
of imprisonment and allowing them to take calculated risks. The beneficiaries
here are both the patient and the doctor, making it a positive development for
public health,” Dr Asokan noted.
