Docs can’t be tried under sex selection law for small errors: Bombay HC
A recent judgment of Bombay High Court – An Oasis for Drs in the desert of PCPNDT Act….
“The omissions of a nature not to mention the mobile number of the patient, full address of the patient with mobile number, difference in signature of the Doctor & other inadvertent mistakes cannot be termed as a discrepancy or act of inaccuracy amounting to violation of provisions of the PCPNDT Act”
Facts in nutshell.
1. In February 2015, when the Vigilance Squad inspected the Ultrasonography Center, it was found that the 32 year old Petitioner, who recently started her Clinic, was not maintaining the F Form (which has become the “F” word for Doctors ) properly and what were the main alleged lacunas ? look..
a) Serial No. is not given to F Form,
b) Signatures of Doctor and patient differed than Consent form
C) Not mentioning the Mobile No. of patient.
d) No detailed address some of the patient mentioned.
e) referral slip was not found in respect of one pregnant woman..
f) 9-1 register was not available in the Center.
h) F Forms for total 2 months were not submitted online
1. The Court carefully examined the evidence on record and law in hand and quashed the complaint against the Petitioner, by observing that the allegations made are so absurd that no prudent person can ever reach to conclusion that there are sufficient grounds to proceed against the petitioner..
2.The reply filed by petitioner to the show cause notice reflects that the deficiencies noted by Committee in respect of maintenance of record by petitioner was not deliberate or with oblique motive or intentional. The mistakes were occurred inadvertently. There were no allegations of Sex determination. No criminal intent can be attributed to petitioner in committing such procedural mistakes or lacunas.
3. The Complaint filed was also found to be in contradiction to the decision of the Advisory Committee.
4. The Hon. Court further observed that , it is nowhere the case of respondent No. 2 i.e. Municipal Corporation that, the petitioner has not maintained the record as mandatorily required under the provisions of the said Act & Rules thereunder. What has been alleged is certain omissions, mistakes or lacunae on the part of petitioner in maintaining the record as envisaged under
the provisions of the said Act & Rules. The discrepancies as noted are mainly refers to omission to mention full address, mobile number etc. of patients underwent sonography. If we consider the over all discrepancies noted by the Vigilance Committee, then same cannot be termed as act committed with
intention to violate the provisions of the said Act & Rules made thereunder.
5. The Court further said to investigate, (to collect proper evidence) the complaints received against the persons violating the provisions of PCPNDT Act is the job of Appropriate Authority and such investigation report is the basis for taking or dropping action against the Doctors. However, in the instant case, it appears that Appropriate Authority has failed to discharge its statutory obligations as contemplated u/s 17(4) of PCPNDT Act i.e. to investigate the report of inspection received from Vigilance Squad which restricts to noting of certain lacunae, omission and certain mistakes in maintenance of record. The report of inspection itself could not be the basis to arrive at the conclusion that such lacunae, omission and mistake were deliberate and acts of omission and commission committed on the part of the petitioner with an intention to violate the provisions of PCPNDT Act.
6. The case has been instituted solely on the basis of report of the Vigilance Committee without investigating the matter and collecting the requisite material to prosecute the petitioner.
7. Lastly the Court observed, keeping in mind the Medical Fraternity and the Criticism against PCPNDT Act..
Mistakes committed without any criminal intent and merely in the nature of procedural lapses needs to be properly understood before taking drastic action of initiating criminal prosecution against a person in the field of Medical profession. In an appropriate case, if the authority is satisfied that the mistakes were inadvertent and there was no criminal intent behind such procedural mistakes then such person be asked to rectify the mistakes and if necessary, such person be appropriately given understanding not to commit such procedural lapse. If there is persistent defaults and lapses on the part of such person, then recourse to stringent provision to prosecute such person may be taken. If such precautions are taken before lodging the prosecution against a person in the field of Medical profession, it would help to remove the fear in the mind of medical profession doing their work with utmost honesty, sincerity and due observance of medical ethics and code of conduct laid down under the PCPNDT Act being subjected to face unnecessary humiliation, harassment and criminal prosecution.
Another sigh of relief for Drs…. But Mind well, the mistakes were not so grave and the Doctor Could give proper explanation…
Thanks and Regards
Adv. Rohit Erande
Attached is the following judgement