TN Doctors Urge for CM's intervention to ensure Protective Clauses in Bharatiya Nyaya Sanhita
Chennai: Chennai: The government doctors in Tamil Nadu have urged Chief Minister M K Stalin to intervene to ensure protective clauses for sections related to doctors in the Bharatiya Nyaya Sanhita, 2023.
In this regard, the Tamil Nadu Government Doctors' Association (TNGDA) has decided to refrain from performing elective procedures and surgeries until such protective clauses are introduced in the new rules that replaced the erstwhile Indian Penal Code.
Dr. K Senthil, the President of TNGDA told TOI, "Until protective clauses are introduced, doctors will have to exercise restraint in performing elective procedures and surgeries. They (doctors) will face enormous stress and anxiety while managing emergency medical conditions, including deliveries."
Writing to Chief Minister Stalin, Dr. Senthil referred to Section 106 of the Bharatiya Nyaya Sanhita (BNS), 2023, and said that as per this section, a police officer can register a First Information Report (FIR) for every instance of negligence, even those not amounting criminal negligence.
He also pointed out that Sections 88, 89, and 90 enable police to bar the medical practitioners from performing medical termination of pregnancy in about 95% of cases indicated by the Medical Termination of Pregnancy (MTP) Act 1971.
Bharatiya Nyaya Sanhita (BNS), which replaced the erstwhile Indian Penal Code, came into force on Doctor's Day i.e. on July 1st, 2024. Medical Dialogues had earlier reported that doctors were opposing a specific section in the BNS that made it mandatory for the 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."
On the other hand, Section 106 states that if a medical practitioner causes the death of any person by committing any rash or negligent act not amounting to culpable homicide, they shall be punished with imprisonment of either description for a term that may extend to two years and shall also be liable to a fine.
As per the latest media report by the Times of India, referring to the difference in punishment prescribed for doctors guilty of medical negligence under IPC and BNS, Dr. Senthil said, "Punishment was an option. In the new BNS, imprisonment is mandatory."
He also pointed out that in the new set of laws, there is no provision for a distinction between the negligence that could be considered criminal negligence. Dr. Senthil added, "Doctors are anxious now because they can be booked even for delays in administering medicine."
Meanwhile, TNGDA has pointed out that if they follow sections 88, 89, and 90 of the BNS, the registered medical practitioners can take up only 5% of the MTPs as other indications for terminating pregnancies such as foetal anomalies, rape victims, contraceptive failure and all other indications where termination is needed beyond 16 weeks of pregnancy, cannot be taken up.
