Nurses like doctors cannot be directly arrested under IPC 304a: Kerala HC
Kerala High Court
Ernakulam: Highlighting the importance of nurses in providing healthcare facilities, the Kerala High Court recently ordered that nurses accused of medical negligence cases should be provided the same protection granted to doctors. Therefore, nurses accused of medical negligence are not to be arrested routinely unless their custody is absolutely necessary.
"I am of the considered opinion that the nurses in the Government service and in private hospitals should also get protection like the doctors, if a prosecution is initiated under Section 304A IPC alleging medical negligence. The Government should issue necessary orders/circular in tune with Jacob Mathew’s case (supra) to see that the nurse in the Government service and in private hospitals are protected from malicious and frivolous prosecutions," observed the HC bench comprising P.V. Kunhikrishnan.
Further, the bench directed the State Government to issue a circular specifying that nurses in Government Service or in private hospitals may not be arrested routinely simply because a charge has been levelled.
"In tune with the directions in Jacob Mathew’s case (supra), this Court declare that a nurse in the Government service or in private hospitals accused of alleged rashness or negligence while discharging duty, may not be arrested in a routine manner (simply because a charge has been levelled), unless his/her arrest is inevitable for furthering the investigation or for collecting evidence or the investigation officer feels satisfied that the nurse proceeded against would not make herself available to face the prosecution unless arrested. The State Government should issue a circular in tune with the above directions of this Court adopting the principle laid down by the Apex Court in Jacob Mathew’s case (supra) as far as the nurses in the Government service and in the private hospitals are concerned, within three months from the date of receipt of a copy of this order, similar to Circular No.73304/ssb3/2007/Home dated 16.06.2008 issued for the doctors," ordered the bench.
Referring to the devotion, hard work, and readiness of nurses to face any medical emergency of a patient day and night, the Court called the nurses as the "backbone of the health care system", whose role is not just to treat the disease but to care for the patients.
"The time spent by a doctor with the patients is less when compared to the time spent by a nurse with a patient. An experienced nurse can do wonders to a patient than an experienced doctor in some medical emergency situations. Therefore, the nurses also deserve care, protection and also moral support from the society while doing their duty," observed the bench.
The High Court bench referred to the Supreme Court's judgment in the case of Jacob Mathew vs. State of Punjab, where the Court had that before proceeding against any doctor accused of rash or negligent act or omission, the Investigating Officer should obtain an independent and competent medical opinion preferably from a doctor in Government Service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion to the facts collected in the investigation.
Referring to this, the Court questioned,
"Why not the same principle be applicable to the nurses in the hospital who are spending their day and night with patience, for the wellbeing of their patients?"
These observations were made by the court while considering an alleged medical negligence case in the treatment of a child leading to her death. The 10-year-old was taken to the Taluk Headquarters Hospital, Cherthala on 27.06.2013 because of diarrhea and vomiting. The concerned doctor treated the child and administered tablets and injection. After that, the patient was admitted in the observation ward. After an hour, another doctor examined her and recommended blood and urine tests. Accordingly, the child was taken to the lab and the result was obtained and shown to the doctor, who indicated that there were no issues with the child and that the complainant could take her home after some time.
Further, the complainant submitted that subsequently, the complainant's child showed symptoms of a high temperature and he informed the same to the concerned nurse. But the nurse allegedly advised to sponge the child's body with a wet towel. However, the temperature increased again and when the complainant contacted the doctor and nurse, they didn't respond properly.
Subsequently, when the complainant contacted the nurse again, she came and suggested taking the child to the doctor, and after taking the child to the doctor, allegedly the doctor declared that the child was dead. Based on this statement, a case was registered by the Cherthala Police under Section 174 Cr.P.C and subsequently, a final report was filed alleging offence under Section 304A IPC against the petitioner nurse alone, who is the nurse attached to the hospital.
The petitioner nurse submitted before the Court that she has to attend about 30-40 beds at a time at the Taluk Headquarters Hospital. Therefore, she was not able to attend the child immediately especially since the doctor indicated that there was no issues with the child. When the complainant approached the nurse for a second time, the First Information Statement stated that the nurse went to the place where the complainant's child was sleeping and accordingly directed him to take the child to the doctor. "In such circumstances, I am of the considered opinion that there is absolutely no negligence on the part of the petitioner nurse," noted the HC bench. Moreover, the complainant in the main case filed an affidavit before the Court stating that he had no grievance against the petitioner.
"In the light of the above facts and also in the light of the discussion stated above, I am of the considered opinion that absolutely no negligence is there on the part of the petitioner who was working as a temporary nurse in the hospital at the relevant time," the HC bench noted.
The HC bench noted in the case of Kurban Hussein Mohamedali Rangawalla v. State of Maharashtra that to convict an accused for the offence under Section 304A IPC, the death should be the result of a rash and negligent act on the part of the accused and must be the proximate and efficient cause without the intervention of another's negligence.
Referring to the Apex Court's order, the HC bench noted, "From the above it is clear that, to convict a person under Section 304A IPC, the death should be the direct result of a rash and negligent act of the accused and the act was the proximate and efficient cause without the intervention of another's negligence. As observed by the Apex Court, the act causing the death must be causa causans; it is not enough that it may have been the causa sine qua non. Therefore no offence is made out against the petitioner in this case, even if the entire allegations are accepted."
"Before parting, I am of the considered opinion that the nurses in the hospital should also get protection from malicious prosecution. They should be given moral support by the society and government. They should be allowed to work without fear of any prosecution and let them known as Indian nursing Nightingales," noted the bench.
Relying on the Supreme Court's observations in the case of Jacob Matthew, specifically, the guidelines issued by the Apex Court for prosecuting medical professionals, the HC bench noted that in tune with the above directions, the Government of Kerala issued a circular dated 16.06.2008 instructing procedure to be followed by the investigating officers of complaints registered against doctors.
"I am of the considered opinion that the nurses in the Government service and in private hospitals should also get protection like the doctors, if a prosecution is initiated under Section 304A IPC alleging medical negligence. The Government should issue necessary orders/circular in tune with Jacob Mathew’s case (supra) to see that the nurse in the Government service and in private hospitals are protected from malicious and frivolous prosecutions. A private complaint shall not be entertained by courts against a nurse in the Government service or in private hospitals alleging medical negligence, unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent authority to support the charge of rashness or negligence on the part of the nurse concerned," the HC bench noted.
"The Investigating Officer should, before proceeding against a nurse in the Government service or in private hospitals based on complaints of rash or negligent act or omission while they discharge their duty, obtain an independent and competent medical opinion preferably from medical experts qualified in that branch of nursing with a doctor who can normally be expected to give an impartial and unbiased opinion. In tune with the directions in Jacob Mathew’s case, this Court declare that a nurse in the Government service or in private hospitals accused of alleged rashness or negligence while discharging duty, may not be arrested in a routine manner (simply because a charge has been levelled), unless his/her arrest is inevitable for furthering the investigation or for collecting evidence or the investigation officer feels satisfied that the nurse proceeded against would not make herself available to face the prosecution unless arrested. The State Government should issue a circular in tune with the above directions of this Court adopting the principle laid down by the Apex Court in Jacob Mathew’s case (supra) as far as the nurses in the Government service and in the private hospitals are concerned, within three months from the date of receipt of a copy of this order, similar to Circular No.73304/ssb3/2007/Home dated 16.06.2008 issued for the doctors," the court further ordered.
Accordingly, quashing the proceedings against the petitioner nurse, the bench clarified, "...even if the entire allegation in Annexure 2 final report are accepted, absolutely no materials are produced by the prosecution to prove any negligence on the part of the petitioner. But I make it clear that, if any further evidence is obtained by the officer in charge of the police station about medical negligence on the part of anybody else, the officer concerned can do the needful in accordance with law by conducting further investigation and this order will not stand in the way of such further investigation."
To view the order, click on the link below:
https://medicaldialogues.in/pdf_upload/kerala-hc-celinamolmathewvstateofkerala-258713.pdf
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