Finalize Rules for arrest of doctors: Court tells government
Chennai: Responding to the grave issue of doctors being harassed in the name of medical negligence cases and the absence of clear cut state government guidelines to the police laying down the conditions of Doctors' Arrest, the Madras High court recently directed the Tamil Nadu Government to take out a Government order to this effect
The court directed strict enactment of the guidelines laid in the government order related to the filing of an FIR against doctors or before beginning any persecution of medical professionals.
The decision came in response to a petition filed by one Dr K. Thangamuthu , which demanded directions to the TN government to frame statutory rules or executive instructions incorporating guidelines as per the orders of the Supreme Court, in consultation with the Medical Council of India, pursuant to the recommendations of Ethics Committee.
The doctor pointed out that despite there being various guidelines framed by the honourable courts as well as various governments, the doctors in Tamil Nadu have to go serious harassment in the name of medical negligence cases and work under fear of arrest
Read Also: 304 A should be applied only when medical negligence is gross: Calcutta High Court
The Medical Dialogues team earlier reported that the Madhya Pradesh High Court had framed clear guidelines before lodging FIR and arresting Doctors in the offenses of Sec.304-A of IPC.
According to the guidelines issued by the Government regarding the issue, all allegations relating to negligent conduct on the part of a doctor needs to be first taken up by the Medical Board.
The doctor against whom such negligence is alleged shall be given an opportunity by the Medical Board to give his reply/explanation in writing and if the doctor so desires to be heard personally, he shall be given such an opportunity by the Medical Board. However, if the Medical Board is of the opinion that the request for personal hearing is with the intent of procrastinating the proceedings before the Board, it may, for reasons to be recorded, waive the opportunity of a personal hearing and proceed to decide the case on the basis of the documents/treatment record and give its finding.
Read Also:Court lays down 7 point Guidelines for Arrest of Doctors under section 304-A
The Medical Board shall endeavour to complete the exercise within sixty days from the date on which it is constituted and upon completion of the enquiry, submit the report to the Police. The police shall not register an FIR against such a doctor in the absence of the report of the Medical Board referred hereinabove and also, only when the report by the Medical Board has held the doctor prima facie guilty of Gross Negligence and not otherwise.
These guidelines are based on various court judgements and law of the land in the matter. However, in many cases, guidelines were not followed and cases were registered without an expert committee's reference.
The Medical Dialogues only recently reported that the Punjab and Haryana High Court quashed an FIR that was against a doctor under IPC Section 304-A for causing death by negligence despite the fact that he was absolved by the expert committee
Read Also:FIR under IPC 304A quashed: Surgeon gets relief for death at home post-op
Another issue is that doctors in cases of medical negligence are being booked under IPC section 304 ( culpable homicide not amounting to murder) rather than IPC 304A that deals with medical negligence
Read Also:Doctors cannot be prosecuted under Culpable Homicide: Gujrat HC
It is reported that the Madras High court while hearing of the petition was explained that the case was already referred earlier where it was clarified that the guidelines had already been issued earlier in 2008. The court then directed that a GO be issued to this effect reports the Deccanchronicle.
The court directed strict enactment of the guidelines laid in the government order related to the filing of an FIR against doctors or before beginning any persecution of medical professionals.
The decision came in response to a petition filed by one Dr K. Thangamuthu , which demanded directions to the TN government to frame statutory rules or executive instructions incorporating guidelines as per the orders of the Supreme Court, in consultation with the Medical Council of India, pursuant to the recommendations of Ethics Committee.
The doctor pointed out that despite there being various guidelines framed by the honourable courts as well as various governments, the doctors in Tamil Nadu have to go serious harassment in the name of medical negligence cases and work under fear of arrest
Read Also: 304 A should be applied only when medical negligence is gross: Calcutta High Court
The Medical Dialogues team earlier reported that the Madhya Pradesh High Court had framed clear guidelines before lodging FIR and arresting Doctors in the offenses of Sec.304-A of IPC.
According to the guidelines issued by the Government regarding the issue, all allegations relating to negligent conduct on the part of a doctor needs to be first taken up by the Medical Board.
The doctor against whom such negligence is alleged shall be given an opportunity by the Medical Board to give his reply/explanation in writing and if the doctor so desires to be heard personally, he shall be given such an opportunity by the Medical Board. However, if the Medical Board is of the opinion that the request for personal hearing is with the intent of procrastinating the proceedings before the Board, it may, for reasons to be recorded, waive the opportunity of a personal hearing and proceed to decide the case on the basis of the documents/treatment record and give its finding.
Read Also:Court lays down 7 point Guidelines for Arrest of Doctors under section 304-A
The Medical Board shall endeavour to complete the exercise within sixty days from the date on which it is constituted and upon completion of the enquiry, submit the report to the Police. The police shall not register an FIR against such a doctor in the absence of the report of the Medical Board referred hereinabove and also, only when the report by the Medical Board has held the doctor prima facie guilty of Gross Negligence and not otherwise.
These guidelines are based on various court judgements and law of the land in the matter. However, in many cases, guidelines were not followed and cases were registered without an expert committee's reference.
The Medical Dialogues only recently reported that the Punjab and Haryana High Court quashed an FIR that was against a doctor under IPC Section 304-A for causing death by negligence despite the fact that he was absolved by the expert committee
Read Also:FIR under IPC 304A quashed: Surgeon gets relief for death at home post-op
Another issue is that doctors in cases of medical negligence are being booked under IPC section 304 ( culpable homicide not amounting to murder) rather than IPC 304A that deals with medical negligence
Read Also:Doctors cannot be prosecuted under Culpable Homicide: Gujrat HC
It is reported that the Madras High court while hearing of the petition was explained that the case was already referred earlier where it was clarified that the guidelines had already been issued earlier in 2008. The court then directed that a GO be issued to this effect reports the Deccanchronicle.
"Considering the fact that the guidelines were already issued through a GO dated July 4, 2008, and in view of the fact that those guidelines are stated to be still in force, this petition is disposed of, by recording the facts and circumstances,"
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