The Indian Medical Association has asked for the professional service of doctors to be exempted from criminal prosecution in the proposed Bharatiya Nyaya Sanhita 2023 (revamped Indian Penal Code, IPC 1860).
“The concept of mens rea (state of mind implying criminal intent) has to be applied in letter and spirit for any duly qualified and Registered Medical practitioner. Absence of mens rea in a case of a medical mishap or accident is too evident to be ignored,” the IMA said in its letter to the Prime Minister.
Sharad Kumar Agarwal, IMA National President told businessline, that medical negligence was already covered under the IPC. It would be difficult for doctors to do their job, he said, if medical mishaps were viewed through the lens of criminal intent.
“Doctors must often take a calculated risk and make decisions to treat a patient, failing which the situation could become more complicated. Therefore, it becomes difficult to define gross negligence. Further, section 88 of the IPC which protects doctors from criminal liability when the act is done with good intention. Therefore, Section 304A and similar sections of the IPC should be treated only with Section 88. In this context there is a definite need for appropriate legislation to exclude the medical profession from criminal liability,” the letter explained.
‘A legitimate case’
Pointing out that there was a legitimate case to exempt the professional service of doctors from criminal prosecution, the letter asked the Centre to “to provide a safe and amiable atmosphere for doctors to practise their profession without fear of criminal prosecution.” Further it said, that under the new legislation, the punishment had been increased to five years, from two.
The letter pointed out that “causing death of a patient without mens rea cannot be termed a criminal act. No police officer should be able to conduct inquiry or investigation into alleged medical negligence offence committed by a qualified and registered medical practitioner without prior opinion of gross negligence specified by an expert committee as per the recommendations of the NMC (National Medical Commission) to MOHFW (Ministry of Health and Family Welfare).”
“Only the statutory bodies such as State Councils/ NMC should be empowered to refer such cases as criminal negligence to be filed in criminal courts after the element of gross negligence in care has been opined by the medical experts,” it added.