Guidelines for protecting doctors
from frivolous or unjust prosecution against medical negligence
WHEREAS, the Hon’ble Supreme Court in Jacob
Mathew vs. State of Punjab [AIR 2005 SC 3189] had
observed that statutory rules or executive instructions incorporating certain
guidelines need to be framed and issued by the Government of India and/or the
State Governments in consultation with the Medical Council of India;
WHEREAS, the Hon’ble Supreme Court had, “so long as it is
not done”, proceeded to lay down certain guidelines which should govern the
prosecution of doctors for offences for which criminal rashness or negligence
is as ingredient. The following guidelines were laid down:
“A
private complaint may not be entertained unless the complainant has produced
prima facie evidence before the Court in the form of a credible opinion given
by another competent doctor to support the charge of rashness or negligence on
the part of the accused doctor. The investigating officer should before
proceeding against the doctor accused of rash or negligent act or omission,
obtain an independent and competent medical opinion preferably from a doctor in
government service qualified in that branch of medical practice who can
normally be expected to give an impartial and unbiased opinion applying Bolam’s
test to the facts collected in the investigation. A doctor accused of rashness
or negligence, may not be arrested in a routine manner [simply because a charge
has been leveled against him]. Unless his arrest is necessary for furthering
the investigation or for collecting evidence or unless the investigating
officer feels satisfied that the doctor proceeded against would not make
himself available to face the prosecution unless arrested, the arrest may be
withheld.”
WHEREAS, the Government of India, Ministry of Health and
Family Welfare, vide its letter dated 11.07.2012 has asked the Medical Council
of India to suggest guidelines, which need to be framed for protecting doctors
against frivolous complaints/prosecution;
THEREFORE, the Medical Council of India proposes the
following guidelines to be observed by the prosecuting agencies for protecting
doctors against frivolous complaints/prosecution:-
1.
The
Prosecuting Agency on receipt of any complaint of which criminal rashness or
negligence is an ingredient against a registered medical practitioner under the
Indian Medical Council Act, 1956 prior to making arrest refer the complaint to
the Chief Medical Officer of a District who shall place it before the District
Medical Board for its recommendations as regards the merit of the allegations
of criminal rashness or negligence, contained in the complaint.
2.
The
District Medical Board on receipt of such reference examine the allegation
contained therein in a time-bound manner, preferably within two-weeks, and
thereafter forward its recommendation to the Prosecuting Agency through the
Chief Medical Officer of the District.
3.
The
District Medical Board that has examined the complaint must ensure a Doctor
qualified in that branch of medical science is part of the Board.
4.
The
Prosecuting Agency, in case, it is dissatisfied with the recommendation of the
District Medical Board may stating the reasons for such dissatisfaction refer
the matter to the Divisional Medical Board for its recommendation within a
period of three-weeks from the date of receipt of recommendation of the
District Medical Board.
5.
The
Divisional Medical Board, on receipt of any such reference from the Prosecuting
Agency would examine the matter within a period of three-weeks from the date of
receipt of such reference. The Divisional Medical Board shall provide reason
for endorsing or rejecting the recommendation of the District Medical Board.
The decision of the Divisional Medical Board shall expeditiously be conveyed to
the prosecuting agency, and in any case not later than four-weeks from the date
of receipt of reference made by the prosecuting agency.
6.
The
Prosecuting Agency, in case, it is it is dissatisfied with the recommendation
of the Divisional Medical Board may stating the reasons for such
dissatisfaction refer the matter to the State Medical Board for its
recommendation within a period of four-weeks from the date of receipt of
recommendation of the Divisional Medical Board.
7.
The
State Medical Board, on receipt of any such reference from the Prosecuting
Agency would examine the matter within a period of four-weeks from the date of
receipt of such reference. The State Medical Board shall provide reason for
endorsing or rejecting the recommendation of the Divisional Medical Board. The
decision of the State Medical Board shall be expeditiously conveyed to the
prosecuting agency, and in any case not later than five-weeks from the date of
receipt of reference made by the prosecuting agency.
8.
The
Prosecuting Agency on the receipt of Recommendation of the
District/Divisional/State Medical Board further proceed in the matter in
accordance with law. However, in case arrest of a registered medical practitioner
in the employment of State/Central Government is being made, the Controlling
Officer of such Medical Practitioner would be informed by the Prosecuting
Agency. Likewise, in case, the registered medical practitioner is engaged in
private practice, the concerned State Medical Council, or in case there is no
State Medical Council in that State/Union Territory, the Medical Council of
India be informed.
The
above-said guidelines may if deemed appropriate be notified by the Union of
India under the Code of Criminal Procedure, 1973.
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