Guest Blog: Private member's bills for Prevention of violence against healthcare professionals and institutions
It was certainly a heartwarming gesture on the part of Dr. Shashi Tharoor, M.P. when he presented a private member bill for prevention of violence against healthcare professionals and institutions. He kept his promise to the parents of 23 year old young doctor, Vandana Das who was brutally murdered by a patient treated by her. Question is will the Prime Minister of INDIA keep his promise of protecting healthcare providers in INDIA when he asked the nation to support the healthcare providers with “Tali, Thali and Mombatti” during Covid-19 pandemic. Four more members of Parliament have submitted their private member bills on the same issue. This article briefly takes overview of all these bills, and describes what is the root cause of violence against doctors and the real solution to the problem.
The statistics provided by Dr. Shashi Tharur and others say 75% doctors in INDIA have experienced violence by patients or their relatives. The Government of Maharashtra submitted startling figures in 2020 in response to the Criminal Public Interest Litigation (2332/2020) filed by me in the High Court of Judicature at Bombay. From 2016 to 2020, there were 1318 persons accused of violence against healthcare professionals against whom FIR was registered, out of which 504 were chargesheeted, and only 4 were convicted.
It is obvious that either the Police is not investigating the cases properly OR the laws applicable to such crimes are so weak that the accused goes scot free even if the crime is proved beyond reasonable doubt. The major lacuna in handling such episodes is that the accused pleads to the court that his act was a sudden, unintended response to grave loss. People who are booked for attacking doctors get the benefit of “on the spur of the moment” exception and are released with good behaviour bonds.
The Ministry of Health and Family Welfare, in 2019, had introduced a draft bill titled the Healthcare Service Personnel and Clinical Establishments (Prohibition of Violence and Damage to Property) Bill. However, the Home Minister refused to pass any such bill. During COVID-19, IMA threatened black ribbon and candle light marches to protest violence against doctors. On the morning of 22/04/2020 Home Minister in an online meeting promised IMA that there will be a law to protect doctors and requested IMA to withdraw the strike. Soon after the strike was withdrawn, Mr Prakash Jawadekar announced an amendment in the Epidemic Diseases Act 1897 and introduced clauses for punishment for violence against doctors. IMA realised that it was just an eye wash, a via media to tide over the crisis as the EDA would be withdrawn at some point in time and protection offered will be removed. On 4th August, 2023, the Health Minister refused to make any legislation in this regard in reply to a question on this issue.
I filed the Criminal PIL 2332/2020 in the High Court of Judicature at Bombay, requesting Hon’ble Court to issue certain guidelines for prevention of violence; Very few friends supported me initially. Subsequently many associations of doctors gave letters of support. Association of Physicians (API), Maharashtra Association of Orthopaedics (MOA), Pune Orthopaedics Society (POS) offered financial support. Association of Medical Consultants (AMC), Association of Private Hospitals (APH) and Pune Doctors Association(PDA) filed intervention applications supporting the PIL in addition to Core India Institute of Law and Medicine gives an alternate mechanism for protecting doctors. Involvement of so many associations underlines the need of some solution to the ever increasing problem of violence against doctors. Government of Maharashtra formed a committee of various associations of doctors and also the department of law and judiciary, director general of police under the chairmanship of director of health services. The committee prepared a draft Act and submitted it to the Government. On 13th July 2021 Advocate General of Maharashtra informed the Court that he has gone through the amendments and he felt that instead of amending the Act, the Government may want to repeal the old Act and frame new Act for which he sought time. More than two years have passed, but the Maharashtra Government is silent on the new Act.
While doctors from Maharashtra awaited the new strong Act, Medico Legal Society of INDIA filed an interlocutory application in Kerala Private Hospitals Association vs State of Kerala (11820/2021) and requested the Court to pass guidelines for protection of healthcare professionals. MLSI also submitted a draft for amendments in the Kerala Act. Kerala High Court directed the State to look into the suggestions from all stakeholders and the Government agreed to make changes in the Act. It took the death of Dr. Vandana Das to make the Government act, and within one week of the sad demise of this daughter of kerala, an ordinance was promulgated for amendments in the Kerala Act 2012. There are four more private member bills in the parliament on the same issue which are enlisted below :
- 277 of 2022 By Dr. Alok Kumar Suman, M.P. (JDU)
- 280 of 2020 By Dr. DNV Senthil Kumar S, M.P. (DMK)
- 98 of 2023 By Dr. Mohmmad Jawed, M.P. (INC)
- 99 of 2023 By Dr. Shashi Tharoor, M.P. (INC)
- 105 of 2023 By Shri Hibi Eden, M.P. (INC)
This list itself indicates that there are many members of Parliament who are really concerned about the security of healthcare professionals and institutions. It is a well known fact that private member bills presented by Dr. Shashi Tharoor and others will be voted out on the basis of strength, if the parliament conducts its business soon.
During the pandemic, more than 2000 doctors from INDIA sacrificed their lives treating patients as COVID warriors. It is submitted that while ‘Health’ and ‘Law and Order’ are state subjects, the Parliament is competent to legislate on matters related to ‘Legal, Medical and other professions’ as listed in Entry 26, List 3 (Concurrent List) of the Seventh Schedule to the Constitution of India. There are some better provisions proposed by other members of parliament who have tabled their Bills in 2022 and 2023. The Central Government should table its own bill with better enactment to protect healthcare professionals.
Bill presented by Dr. Shashi Tharur makes acts of violence against healthcare workers a cognizable and non-bailable offence. It requires speedy investigation and sentencing within a specified time frame and the establishment of designated special courts in every district. Addition of several categories of healthcare workers to the list of individuals protected by the bill is expanded as under : Medical practitioner registered for practising in any system of medicine including dentists, a registered nurse, midwife, auxiliary nurse-midwife and health visitor, medical and nursing students, paramedical workers and students, diagnostic service provider, ambulance driver and helper, security personnel, Accredited Social Health Activists (ASHA), administrative and other staff of the healthcare institution and any other category of persons notified by the appropriate Government from time to time. This is in line with the Crim PIL 2332/2020. Dr. Tharoor’s bill suggests that on receiving a complaint either from the institution or the affected healthcare personnel, a First Information Report should be registered within one hour of receiving the complaint; which echoes the order of Hon’ble High Court of Kerala after which the situation in Kerala has improved substantially.
However Dr.Tharoo’s Bill makes verbal abuse and violence less than grievous hurt compoundable offence. This opens an opportunity for hospital authorities, miscreants and politicians to pressurise the doctors to withdraw the complaint, failing which they suffer consequences. Similarly it provides presumption of offence and culpable mental state only when there is grievous hurt. Therefore the victim will have to give corroborative evidence which is considered unnecessary as per Karnataka Law Commission Report. In all cases there has to be presumption of offence and culpable mental state, as per Epidemic Diseases Act 1897 as amended in 2020.
While improving security of healthcare personnel the bill lacks a mechanism for redressal of grievances of the patients, which if not addressed may not prevent violence though it may have a deterrent effect on perpetrators of violence.
Bill presented by Dr. Mohammad Jawed, MP (98/2022) adds pharmacists, lady health workers, polio workers and volunteers to the list. It suggests institutional mediation for mental agony caused due to mental harassment by the accused. If any person is imminent to act in contravention of the provisions of this Act, a healthcare worker may document, report the behaviour, and refuse to treat the patient except in fatal or life-threatening disease or is in dire need of immediate medical assistance. However, refusal to treat on malicious grounds, will be treated with suspension of licence of such practitioner for two years.
The bill rightly recognizes the cost of deprivation of healthcare services to the public due to damage to equipment and property of the healthcare institution, and provides for a fine to recover damages. It prohibits carrying weapons by anyone except by security persons, into a healthcare facility; in consonance with the order in a suo-motu petition filed by Guwahati High Court, and provides punishment for contravention,. This bill asks the executive magistrate or police to prepare a detailed report on the extent of violence, obstruction, loss, and damage to the property of victim(s) and to take effective and necessary steps to provide protection to the witnesses and other healthcare providers at the healthcare facility. It asks the appropriate government to set up a Health Committee to conduct a review on improving healthcare providers’ mental health. However this bill provides that anyone causes bodily injury or death or which in the ordinary course of nature is likely to cause injury or death, such person shall be liable to punishment under the relevant provisions of the Indian Penal Code, 1860. Unfortunately IPC has failed to create any deterrence to reduce the violence against healthcare persons and institutions.
Bill presented by Shri Hibi Eden, M.P, (105/2023) asks the Central Government to establish a mechanism to provide protection and compensation to healthcare professionals who are victims of violence or harassment in the course of their duty and to provide adequate funds for the implementation of the provisions of the Act. While it provides that whoever commits an act of violence or harassment against a healthcare professional in the course of his duty shall be punishable with imprisonment for a term which may extend to five years and with fine which may extend to rupees five lakh, it lacks in graded punishment for different kinds of violence e.g. verbal, non-grievous and grievous hurt and may be looked at as injustice to the perpetrator of violence of minor nature.
Bill presented by Dr. Alok Kumar Suman (277/2022) titled criminal law amendment bill suggests amendment to IPC by adding two sub-sections. 304C and 327A, which are reproduced below.
“304C. Whoever, being a registered medical practitioner, causes the death of any person doing the cause of medical treatment due to any medical negligence shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; Provided that causing the death of a person during medical treatment or intervention done with consent in accordance with the proviso to section 88 of this Code shall not be considered as medical negligence, unless the contrary is proved supported by a team of medical experts or a medical Board.
“327A. Whoever, (i) commits or abets the commission of an act of violence against an healthcare service personnel; or (ii) abets or causes damage or loss to any property of a healthcare service personnel, shall be punished with imprisonment for a term which shall not be less than three months, but which may extend to five years, and with fine, which shall not be less than fifty thousand rupees, but which may extend to two lakh rupees; Provided that while committing an act of violence against a healthcare service personnel if a person causes grievous hurt as defined in section 320 to healthcare service personnel, he shall be punished with imprisonment for a term which shall not be less than six months, but which may extend to seven years and with fine, which shall not be less than one lakh rupees, but which may extend to five lakh rupees.”
For the first time this bill recognizes the opinion of a team of medical experts or a medical board in cases of alleged medical negligence, and also provides graded punishment for perpetrators of violence against doctors, in addition to amendments in Code of Criminal Procedure 1973.
Statement of objects and reasons of this bill state, that to cope with the difficulty of unjust litigations against doctors, the Hon’ble Supreme Court in the case of Jacob Mathew vs. The State of Punjab issued some guidelines for proper investigations. Almost sixteen years have passed since the order of the Supreme Court but there is no amendment in legislation. It also points out General Exceptions in section 88, 92 and 93 of IPC which save doctors criminality, and the need of protecting healthcare professionals.
Statement of Objects and reasons in the Bill presented by Dr.DNV Senthilkumar (280/2022) states that various lacunae exist in the State acts. The need is to focus on both positive deterrence and negative deterrence. The important dimension which leads to violence against healthcare service workers in the government and private hospitals is long waiting periods, patients' relatives feel that the doctors are not giving enough attention, trust deficiency etc. It underlines the need of good grievance redressal mechanisms, displaying the constraints under which healthcare service personnel works, etc. which will sensitise the public visiting hospitals. It expects that grief counselling should be the essential part of medical training. The need is also to establish a committee chaired by the Member of Parliament which will hear the appeals and grievances of the victims of medical negligence or mismanagement and to aid and advise such victims. The present Bill not only merely focuses on punishment but also addresses the other parameters which lead to violence. It will ensure that all the healthcare service personnel have the right to work in a safe and secure workplace which is free of violence and also secure the rights of patients. For this purpose it proposes to establish a District Committee or for such area as may be specified in such notification to hear appeals and grievances of the victims of medical negligence or mismanagement under this Act and to aid and advice such victims for taking recourse to an appropriate forum for a suitable relief including dealing with issues in insurance claiming by the patients. The committee will have one expert each from the field of medicine, law, consumer movement, health management and human rights to be appointed by the Central Government in such manner as may be prescribed.
It can be seen from the above five bills that members of parliament are looking at the problem from various perspectives and offering multiple solutions. All these suggestions were included in the applications filed by me (2332/2020) and MLSI (11820/2021). However one important aspect all these bills miss is the root cause of violence and actual solution thereof which was highlighted in both the above cases by the applicants.
It is obvious that nobody would just go and inflict violence against the doctor or break the glasses and equipment in the hospital. A sudden, unexpected and unacceptable outcome during treatment of a patient generates knee jerk reactions in the relatives. Since they are aware that they will not get any immediate relief from the police, and the judiciary will take its own sweet time to decide about their loss, they resort to taking violence in their hands in order to leverage compensation. However for the medical fraternity, such loss is completely unintended, and it usually happens by accident during treatment to help the patient to recover. Success of treatment depends on host response. Section 80 of Indian Penal Code describes “Accident in doing a lawful act.” : Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.
Final report of the study Group constituted by MCI states that ‘Medical accident’ means an unforeseen or unexpected medical event causing loss, physical damage or injury brought about unintentionally, as a result of treatment or failure to treat appropriately due to ignorance or lack of Knowledge.
The Indian Medical Association, Pune has defined medical accidents in the meeting of the medicolegal committee, and Medico Legal Society of INDIA has adopted it. Patient, who was reasonably evaluated to be fit for the planned surgical / medical procedure with or without anaesthesia; dies within 24 (minor), 48 (major) or 72 hours (supra major) of starting procedure/surgery as per HOTA (Human Organ Transplantation Act) OR suffers significant trauma / injury / damage to brain or other body parts, in unforeseen manner, suddenly, unexpectedly and unintentionally due to reason/s which can be attributed to abnormal host response, OR reason/s which are unexplained OR reason/s which cannot be attributed to normal course of the disease Or reason/s which cannot be attributed to gross negligence of healthcare provider/hospital or its staff OR reason/s which cannot be conclusively determined even after post-mortem examination will be termed as medical accident. Examples of medical accidents to support the definition enlisted, are situations where the best of the doctors in the best of the centres can not help the patient though they leave no stone unturned.
While everyone including doctors have sympathy for the loss of the patient, if the judiciary finds the doctors guilty of medical negligence in such situations, the doctors become defensive, which reflects in their day to day practice. Such defensive medicine leads to more financial loss to all the patients taken together, than the compensation few patients receive for alleged medical negligence. The real solution therefore is to recognize the definition of medical accident. Such a definition will pave the way for medical accident insurance which will provide compensation when there is no negligence on part of the doctor, but the relatives suffer grave loss. In case of medical negligence, the doctor or her indemnity insurance will pay the compensation, so that in any unforeseen death of a patient, his relatives will get compensation and the issue of dispute will not arise. While such insurance will not give licence to doctors to be negligent, and there will be adjudicatory mechanism to decide whether the doctor was negligent or the host response was abnormal; in either case there will not be any reason for the relatives to lose temper, take law in their hands and indulge into violence on the spur of moment or as knee jerk reaction to sudden loss.
Such a proposal has been submitted in both the Crim PIL 2332/2020 in Bombay High Court and 11820/2021 in Kerala High Court. However, neither Government of Maharashtra, nor Government of Kerala or Union of India have responded to this suggestion in reply to the application/s. It is high time that the Government brings in a bill for Medical Accident Insurance Cover to protect victims of medical accidents and prevent violence against healthcare persons and institutions. There can be small premium for such insurance for short duration of medical treatment, similar to railway travel (Rs. 0.75 mandatory for Rs. 5,00,000 sum assured) or air travel (say Rs. 100 optional for Rs. 5,00,000 sum assured) which can be paid by the healthcare persons and institutions at the time of admission of patient to the hospital. Additional premium for additional cover can be purchased by the patients, depending on the value of their own life. This will also obliviate huge numbers of claims by patients' relatives after a mishap which may agreeably be a medical accident; and reduce burden on the already overburdened judiciary including consumer courts.
Doctors in Kerala were fortunate that at least after murder of Dr. Vandana Das, Government promulgated ordinance which made the Act stronger. It appears that few doctors in Maharashtra will have to sacrifice their life before the Maharashtra Government awakes from deep slumber. Each state will have to struggle and make a separate Act, but the central Government will not yield to bills presented by members of parliament in opposition, as the ego of political parties prevail over the safety of doctors..!! Until such time violence against doctors is prevented, associations have to fight and at some point stop all services including the emergency room. All governments take pride in calling doctors as saviours of humanity, and force them to work under ESMA; but no one comes forward to protect doctors. That drives the final nail in the coffin of the doctor-patient relationship.
