Why doctors are not happy with certain portions in new criminal laws
The IMA has launched a campaign seeking exemption for doctors from criminal prosecution under BNS section 106 (1) that deals with punishment for causing death by negligence
Doctors across the country are upset with the new criminal laws that came into force on July 1.
What is upsetting the medical fraternity is the language used in the Bharatiya Nyaya Samhita (BNS) that mandates a two year jail term and fine due to “medical negligence” for doctors.
Language change
The BNS section 106 (1) dealing with death caused by medical negligence says that the punishment for doctors will be imprisonment and fine, while earlier under the older Indian Penal Code, it was imprisonment “or” fine or both. A statement issued by the Union health ministry also emphasised this point saying that "if an act of negligence is done by medical practitioners while performing medical procedure, they shall be punished with imprisonment upto 2 years and fine".
However, sources in the ministry told the media that there are no changes in punishment for causing death due to medical negligence in the new laws.
Some doctors are objecting to the language used in the BNS, which makes it more stringent compared to the older law. They feel that the IPC 304 A, which earlier dealt with medical negligence, was more lenient since it had jail or fine, while the BNS 106 (1) is "harsher" because it says jail and fine.
No criminal intent, says IMA
Meanwhile, the Indian Medical Association (IMA), which is the country’s largest body of doctors with a membership of 400,000 physicians, has referred to the new laws as a “Damocles sword” hanging over them.
The IMA argued that there is no criminal intent (mens rhea) on the part of a doctor while treating a patient. And, for that reason there is no negligence to attract criminal prosecution.
The IMA has launched a campaign seeking exemption for doctors from criminal prosecution under BNS 106 (1) that deals with punishment for causing death by negligence.
The criminal liability of medical negligence is controversial legally, said IMA in a statement. To establish criminal liability, it is important to ascertain if there was an intent to harm (mens rea) existed. The association said that in the absence of mens rea (criminal intent) doctors can be held responsible only in civil law .
In fact, according to a report, when the bill to replace the IPC was placed before the Lok Sabha in December 2023, the death caused by negligence was made punishable with imprisonment upto five years and fine under section 106 (1). However, this was later amended to two years, after representations were made by the medical practitioners.
Use section 26
The IMA in their letter to the Prime Minister pointed out that Union Home Minister Amit Shah acknowledged on the floor of the Parliament that death during treatment is not murder.
Further, the IMA added in the letter to PM Modi that the new BNS legislation brought in by his government refers to this in Section 26.
"IMA kindly requests the government that the investigating officer invoke this provision (Section 26) 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 wrote.
According to the IMA, 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.
The IMA also said that 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," it said.
Dr Kalanidhi Veeraswamy, MP from North Chennai constituency in Tamil Nadu has also written a letter to Amit Shah slamming the government for giving "jail" as "Modi Sarkar's gift" to medical professionals. Medical negligence is not a criminal act and jail term for it will demotivate doctors, he said.
Further, he added that he strongly opposed the new law that mandates jail terms and fines for medical negligence. "It fails to acknowledge the complexities of medical practice and unfairly targets doctors who work tirelessly to save lives under challenging circumstances," he pointed out.
