The new criminal code, Bharatiya Nyaya Sanhita, came into effect from July 1.
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New Delhi: The Indian Medical Association (IMA) has written to Prime Minister Narendra Modi highlighting that an investigating officer should invoke the protective provision under the Bharatiya Nyaya Sanhita in cases of alleged criminal medical negligence.
The IMA pointed out that there is no criminal intent (mens rhea) on the part of a doctor while treating a patient and there is no negligence to attract criminal prosecution.
"Union Home Minister Amit Shah ji acknowledged on the floor of the Parliament that death during treatment is not murder. 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," the IMA said in the letter sent recently.
When contacted, IMA President Dr R V Asokan said that Section 26 in the BNS clearly states that doctors fall outside the purview of criminal law and demanded that the provision under Section 106.1 should be deleted so that doctors are exempted from criminal prosecution.
"At present, police charge doctors under Section 106.1 in cases of alleged criminal medical negligence and do not follow the provision of Section 26. A crime necessarily has to have a criminal intent (mens rhea). In the absence of mens rhea (criminal intent) doctors can be held responsible only in civil law (Law of Torts) Accordingly IMA is committed to work towards exempting the doctors from criminal prosecution," Dr Asokan said.
The IMA in its letter also highlighted that doctors of the country however are passing through difficult times in practising the profession and that there is an ambience of fear and mistrust in hospitals.
The violence on doctors and hospitals has reached epidemic proportions and is a "national shame".
"Your government had initiated a bill on violence on doctors and hospitals. It was even put up for public comments. However, the Bill is yet to be introduced in the Parliament. Your Government also protected the doctors during the mindless violence during Covid by amending the Epidemic Diseases Act of 1897.
"A central law in statute on attacks on doctors and hospitals will be a deterrent and would strengthen the lame duck state legislations in 23 states. Hardly any conviction has happened in spite of numerous violent incidents," the IMA's letter stated.