Punishment on Doctors Day! Medical Fraternity upset with Bharatiya Nyaya Sanhita Mandating Jail Term, Fine in Medical Negligence Cases
Physiotherapy Curriculum
New Delhi: As announced, the Bharatiya Nyaya Sanhita (BNS) came into force on Doctor's Day i.e. on July 1st, 2024. However, the new laws that replaced the Indian Penal Code (IPC) are being opposed by the medical fraternity as many junior and senior doctors have expressed discontent over a specific section in the BNS.
Doctors are upset over the fact that the new rules have made it mandatory for doctors to serve jail term if they are found guilty of negligence not amounting to culpable homicide.
Punishment for medical negligence by doctors in terms of imprisonment was not mandatory previously under Section 304A of the Indian Penal Code (IPC). Under the Indian Penal Code, doctors were imposed a fine or a jail term extending up to two years.
As per IPC 304A, medical negligence was a cognisable offence and doctors could be "punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both" for causing the death of any person "by doing any rash or negligent act not amounting to culpable homicide."
However, IPC 304A has now been replaced with Section 106 of the final BNS Act. It states that "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."
Also Read: What is meant by Gross Medical Negligence? Doctors ask govt to clarify
Addressing the issue, RTI activist Dr. Babu KV wrote on X (formerly Twitter), "IPC 304 A will be replaced with BNS 106(1) wef Doctors' Day 2024, where imprisonment is mandatory if found guilty Gift to Indian Doctors on Doctors' Day? Practice Medicine Responsibly & Save Yourself Doctors' Day Greetings !"
Dr. Babu told Medical Dialogues, "Hundreds of our colleagues have sacrificed their lives when our nation was going through the worst covid pandemic. Now it seems, jail is "Modi Sarkar's Gift" to medical professionals who are likely to be convicted in unfortunate cases of deaths during the course of treatment in our country, on Doctors' Day 2024."
Dr. Arun Gupta, the president of the Delhi Medical Council wrote, "BNS is here. "Happy doctor’s day from Govt." Now JAIL is a must in case of medical negligence. Think 100 times before u take a sick patient. 100 times!"
Dr Gupta told The New Indian Express, "Earlier, the provision under 304 A did not specify medical professions, and it was of a general nature. However, the new law brings modern medicine practitioners into the ambit and clearly defines them. The law now makes jail term mandatory."
"The doctors are apprehensive. This will be a big deterrent for doctors handling critically ill patients. What kind of protection will they have now," Dr. Gupta questioned.
Commenting on the matter, activist Dr. Vivek Pandey told Medical Dialogues, "I strongly oppose the new law that mandates jail terms and fines for medical negligence. It fails to acknowledge the complexities of medical practice and unfairly targets doctors who work tirelessly to save lives under challenging circumstances. This punitive approach undermines patient care and discourages critical decision-making in emergencies".
"Every Doctor in the Country should know the new laws for us implemented on Doctors day under Bharatiya Nyay Sanhita (BNS) If any negligence occurs while performing any medical procedure then based on intent you will be liable for the damage in form of Imprisonment in jail for 2 years with Fine (almost similar to IPC section earlier but question is can the intention behind be really judged !) Here the govt should reconsider that due to Laws like this Today Doctors fears to perform any critical life saving procedure due to risk of their own lives (by attendants attack as well as legal consequences due to such laws) which is affecting the healthcare of nation," opined Dr. Dhruv Chauhan, National Council Coordinator of IMA JDN.
The issue was also raised by the Indian Medical Association (IMA) in its letter directed to Prime Minister Narendra Modi. Writing to the PM on 29.06.2024, the association pointed out that "there is no criminal intent (mens rhea) on the part of the doctor while treating a patient. There is no negligence to attract criminal prosecution."
IMA also referred to the fact that the Union Home Minister Amit Shah had also acknowledged in the Parliament that death during treatment is not murder. Medical Dialogues had earlier reported that addressing the winter session of Lok Sabha, the Home Minister had said, "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."
However, despite the promise of the Union Home Minister, the new BNS legislation has not decriminalised medical negligence. Referring to this, IMA mentioned in its letter directed to the Prime Minister, "The new BNS legislation brought up by your Government reflects on this aspect in section 26. IMA kindly request the Government that the investigating officer invoke this provision in cases of alleged medical negligence. In the rarest of rare cases which might be considered as recklessness the investigating officer may prefer the case to an expert committee for opinion. Some state Governments have a circular memorandum putting in place a district level body under the DMO and a state level appellate body under the DHS. High courts have upheld the legality of the procedure as well. A circular memorandum of procedure from the Union Government in this regard would remove the Democles’ sword hanging over the doctors. It will provide legitimate protection and facilitate crucial decisions in critical moments. This would actually benefit the patients."
Speaking on the matter, Dr. Karan Juneja, National Standing Committee member of IMA JDN told Medical Dialogues, "Earlier provision was definitely better. Medical Negligence is not a criminal act and jail term for the same will demotivate the practising doctors catering to patients across the country."
