Criminality of Medical Negligence Explained: Where doctors stand and what lies in future

New Delhi: Ever since Union Home Minister Amit Shah announced that he would decriminalise medical negligence, the medical fraternity has been hopeful with joy.

However, if one reads carefully the recent Bharatiya Nyaya (second) Sanhita Bill 2023, which was introduced in the Lok Sabha on Wednesday, we find that the bill calls for up to 2 years of imprisonment for doctors if they are found guilty of medical negligence.

This has created confusion in the minds of many doctors regarding the position of medical practitioners in the changed legal scenario. Medical Dialogues seeks to clarify what the current situation is, what we should look for in the future, and what the Minister meant with this comment.

If one goes through the recent bill, we find that it does not reduce the prison term for doctors in case they are accused in a case of death due to negligence compared to the IPC clause 304A which dealt with death by negligence. In fact, it is very similar to IPC 304 A, where the term of imprisonment was up to 2 years. What it indeed does is clearly distinguish the treatment of doctors from other cases of death by negligence, calling for a lenient punishment. 

What do the Existing Rules of CrPC say?

Criminal Negligence is a very bothersome and painful point for the medical fraternity. Currently, criminal negligence is dealt with under IPC 304 A, which is causing death due to negligence.

As per IPC 304 A, 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.

However, the problem for doctors in reality does not end there, as many of the doctors are tried in the IPC 304 rather than IPC 304 A. While 304 A deals with charges of causing death due to negligence, IPC 304 deals with charges of Culpable homicide not amounting to murder.

Accused, who are charged and found guilty under IPC 304 are punished with life imprisonment or imprisonment for up to ten years, and they may also be fined, depending on whether the act was done with the intention of causing death or with the knowledge that it is likely to cause death.

While it is extremely unusual, sometimes doctors get charged under IPC 302 (which prescribes the punishment for murder). This happened in the controversial case of Dr. Archana Sharma, who committed suicide after being booked under IPC 302.

Bharatiya Nyaya (second) Sanhita Bill: 

Section 106 (1) of the newly introduced Bharatiya Nyaya (second) Sanhita Bill, which seeks to replace the Indian Penal Code (IPC), 1860, mentions the following:

106. (1) 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.
Explanation: For the purposes of this sub-section, "registered medical practitioner" means a medical practitioner who possesses 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.

Therefore, as per the new law, registered medical practitioners who possess medical degrees recognised under the NMC Act 2019, and who have their names in the National Medical Register or a State Medical Register shall face imprisonment for up to 2 years if they are found guilty of medical negligence.

How does the new Amendment help? 

With this, when the Bharatiya Nyaya (second) Sanhita Bill is compared with the existing Section 304 A of the IPC, there is not much difference regarding the prison term or the liability to pay a fine.

Even though it does not reduce the tenure of imprisonment, the new amendment is indeed welcome as it clearly clarifies the confusion to the law executors on charging doctors accused of alleged medical negligence under IPC Section 304.

Earlier, even when a doctor should have been charged under Section 304 A, sometimes they used to be charged under IPC Section 304 and as a result, they faced longer prison terms extending up to 5 years.

Doctors Hopeful with Minister's Promise:

While the term of imprisonment for doctors remains the same even with the new amendment, doctors are still hopeful that the Minister's verbal announcement to decriminalise medical negligence will soon come into effect.

Medical Dialogues had earlier reported that recently addressing the Lok Sabha, the Union Home Minister stated, "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 the doctors from this criminal negligence."

"Indian Medical Association had asked us to look into the matter. And hence we have decided to free the doctors from the culpability of criminal negligence," added the Minister.

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Also Read: Breaking News: Home Minister Amit Shah Promises to Decriminalize Medical Negligence deaths