Doctors fear new criminal laws' language on 'medical negligence'; IMA threatens strike

IMA has launched a campaign seeking exemption from criminal prosecution over the core issue of the fear of imprisonment due to 'medical negligence' because of the language used in the new laws in the Bharatiya Nyaya Sanhita.

New Delhi: Even as the Union Health Ministry tried to allay doctors’ fear on the new criminal code, a section of the medics on Tuesday said the union government did nothing to address the core issue related to the fear of imprisonment due to 'medical negligence' because of the language used in the law.

A section of the Bharatiya Nyaya Sanhita dealing with death due to medical negligence says the punishment for doctors will be imprisonment “and” fine whereas in case of the older law (Indian Penal Code) it was imprisonment “or” fine “or” both.

The Union Health Ministry in a statement on Tuesday reiterated, “If an act of negligence is done by registered medical practitioners while performing medical procedure, they shall be punished with imprisonment up to 2 years and fine.”

Soon after the three new criminal code laws came into effect on July 1, some of the doctors aired their apprehensions on the language used in the legislation because of which the new law becomes more stringent for doctors when compared to the one brought out by the Britishers.

“IPC 304 A inherited from British India was more lenient to Indian Docs where it can be jail or fine or both whereas the BNS 106 (1) enacted by the present government is harsher where it is jail and fine. The new statement from the ministry just confirms our apprehension,” KV Babu, an ophthalmologist at Kannur in Kerala who first flagged the concern told DH.

A ministry spokesperson has not responded to queries on physician’s apprehensions arising out of the language used in the legislation.

But in a statement the ministry said BNS retained the penalty provisions similar to what was there under section 304A of the IPC.

The clarification came after the Indian Medical Association – India’s largest association of doctors – launched a campaign against the new law and sought an exemption for doctors from criminal prosecution under BNS 106 (1) section that deals with “causing death by negligence.”

“The criminal liability of medical negligence is of controversial legality. To establish criminal liability, it is important to ascertain whether the intent to cause harm (mens rea) existed. In cases of criminal medical negligence, the intention to cause harm has been replaced by gross negligence. Gross negligence has not been defined in the BNS,” the IMA said in a letter to all of its units.

The association says in the absence of mens rea (criminal intent) doctors can be held responsible only in civil law (Law of Torts).