July 10,2024
New Delhi: Concerns raised by the Indian Medical Association on Bharatiya Nyaya Sanhita are unsubstantial and there is no change in punishment for causing death by negligence under it, official sources said Tuesday. The clarifications came amid some media reports stating that the IMA will hold protests against section 106(1) of BNS, the new criminal law.
The section states that death by negligence caused by a registered medical practitioner while performing a medical procedure shall be punishable for two years with a fine, the sources said.
“It is clarified that causing death by negligence by any person (including medical practitioners) was punishable with imprisonment up to two years or fine under section 304A of Indian Penal Code (IPC). When the Bill to replace IPC with the Bharatiya Nyaya Sanhita, 2023 (BNS) was introduced in Lok Sabha in December, 2023, the death caused by negligence was made punishable with imprisonment up to five years and fine under section 106(1) of BNS, 2023,” an official source said.
The representations were received from medical practitioners and the said section 106(1) of BNS, 2023 was amended to provide that if such act of negligence is committed by registered medical practitioners while performing medical procedure, they shall be punished with imprisonment up to two years and fine.
“It may be seen that the punishment for causing death by negligence by medical practitioners is imprisonment up to two years even now,” the source stated.
The IMA recently wrote to Prime Minister Narendra Modi highlighting there is no criminal intent (mens rea) on the part of the doctor while treating a patient and there is no negligence to attract criminal prosecution and demanded that an investigating officer should invoke the protective provision under Section 26 of the BNS in cases of alleged criminal medical negligence.
“Union Home Minister Amit Shah ji acknowledged on the floor of Parliament that death during treatment is not murder. The new BNS legislation brought up by your government reflects on this aspect in section 26.
“The IMA kindly requests 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.
IMA president Dr R V Asokan said Section 26 of 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.
“Presently, 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.
“In the absence of mens rea, doctors can be held responsible only in civil law (Law of Torts). Accordingly the IMA is committed to work towards exempting the doctors from criminal prosecution,” Dr Asokan said.
The IMA in its letter to the prime minister 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”, it said.
“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 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 inspite of numerous violent incidents,” the IMA’s letter stated.
Source: Healthworld