Wednesday, June 26, 2019

Doctor’s Dilemma

The strike by medical professionals is yet another reminder of the need for a one-time solution in the form of a central act against violence with stringent punishment

By Dr KK Aggarwal

It started as a small protest by doctors at a Kolkata hospital, two of whom were assaulted by a dead patient’s relative. But it did not take long for it to spread into a nationwide movement with government doctors in various states expressing solidarity and resorting to agitations. On June 17, the Indian Medical Association (IMA) staged a 24-hour-long protest across the country, demanding a comprehensive central law to deal with attacks on doctors and healthcare professionals in hospitals. The strike impacted medical services and all non-essential healthcare facilities, including OPDs, were closed from early morning on that day. The IMA also staged a dharna at its headquarters in Delhi.

Mercifully, normalcy was restored later the same day after West Bengal Chief Minister Mamata Banerjee accepted the demands of the protesting doctors. As the strike was called off, the Supreme Court on June 18 did not pass any order on a PIL seeking measures for the safety and security of doctors in hospitals across India and posted it for July.

The IMA has been urging the centre to frame a central law to check violence against medical professionals in hospitals for a long time. This writer was president of the IMA when it submitted to the centre a draft law in this regard. On June 15, the Union health minister, Dr Harsh Vardhan, attached a copy of the draft in his letter to all chief ministers asking them to frame laws for the protection of medical professionals.

This is not the first time that doctors have been assaulted. A 2015 IMA survey found that over 70 percent of them had faced mental torture and/or physical violence in their careers. It polled 1,781 doctors of whom only 37.7 percent said that they were happy with their profession; 82 percent were stressed out; 34.5 percent had high blood pressure; 18.6 percent had diabetes; 61.6 percent had fear of violence during patient visits; 56.5 percent had thought of hiring security at the place of their practice; 31.6 percent never wanted their children to become doctors; for 45.4 percent, the main source of stress was the fear of violence and 75.6 percent faced anxiety attacks.

There are several legal provisions that deal with the violence against doctors and healthcare professionals:

·         Criminal Law: Any assault or attack on doctors, nurses and other staff, as well as clinical establishments, etc, are punishable under the provisions of the Indian Penal Code (IPC), 1860. The provisions can be further placed under:
1.     Criminal conspiracy—Sections 120A and 120B of IPC
2.     Offences disturbing public tranquility—unlawful assembly (Sections 141, 143 and 144 of IPC), rioting (Sections 146, 147 and 148 of IPC), affray (Sections 159 and 160 IPC).
3.     Offences affecting public health, safety, convenience, decency and morals—public nuisance (Sections 268, 269 and 294 of IPC).
4.     Offences affecting human body—hurt (Sections 319, 323 and 324 of IPC); grievous hurt (Sections 320, 325, 326 and 326A of IPC); act endangering life or personal safety of others (Sections 336 337 and 338 of IPC); wrongful restraint (Sections 339 and 341 of IPC); criminal force and assault (Sections 350, 351, 352 and 355 of IPC).
5.     Offences against property—theft (Sections 378 and 379 of IPC); mischief (Sections 425 and 426 of IPC); criminal trespass (Sections 441 and 447 of IPC).
6.     Offence of defamation (Sections 499 and 500 of IPC).
7.     Offences of criminal intimidation, insult and annoyance (Sections 503, 504 and 506 of IPC).
8.     Offences outraging and insulting the modesty of women (Sections 354, 354A, 354B, 354C and 509 of IPC).

In case of the above mentioned offences, the doctors and their staff can lodge a police complaint under Section 154 of the Code of Criminal Procedure and get an FIR registered against the said offender.
·         Civil Law: A civil suit can also be filed by victims on the ground of offences committed as mentioned above. It could be a suit for permanent injunction, for damages or for defamation.
·         Apart from these legal remedies, around 15 states and Union Territories have their respective legislation related to violence against doctors. For example, there is legislation like the Delhi Medicare Service Personnel and Medicare Service Institutions Act, 2008; the Bihar Medical Service Institution and Person Protection Act, 2011, and so on. In all these laws, the accused, once convicted, can be punished with imprisonment which may extend up to three years or fine up to Rs 10,000, or both. The convicted person/s will also have to pay compensation which is twice the price of the damaged property. However, legislation is not effective and doctors and police authorities are hardly aware about the legal provisions.
·         Government doctors have additional protection against violence under IPC Section 186—obstructing a public servant in discharge of public functions which says: “Whoever voluntarily obstructs a public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.”

An Indian businessman was recently sentenced to life imprisonment for a hijack hoax on a Jet Airways’ domestic flight from Mumbai to Delhi in 2017 that resulted in an emergency landing in Ahmedabad. Birju Kishor Salla, a resident of Mumbai, was arrested and charged for posing a threat to the safety of passengers and crew on board the aircraft. He was also fined Rs 50 million ($720,000), which a special National Investigation Agency (NIA) court ruled would be given as compensation to the crew and passengers. Each pilot will get a compensation of Rs 100,000 out of the fine amount, while each member of the cabin crew will receive Rs 50,000, and each passenger will be paid Rs 25,000 for the “misery” the incident caused, according to a statement released by NIA.

The situation described in the fake hijack incident is the same as when a doctor is beaten by relatives/friends of a patient in a hospital. The safety of all patients in a hospital is at stake. And there may be more number of patients in a hospital than in an aircraft. The doctor’s role and importance is the same as that of a pilot.

The IMA has zero tolerance for patients or their relatives if they indulge in violence. The medical profession demands accountability but not at the cost of violence. A patient doesn’t have any right to attack doctors or indulge in violence at medical establishments. At the same time, doctors should not resort to violence as an answer for assault. They need to follow the principle of humanity. It is paramount for every doctor to be­come a role model in society as far as healthcare is concerned.

So, is strike the answer? In People for Better Treatment (PBT) vs West Bengal Medical Council (WBMC) & Ors on June 14, 2019, the Chief Justice of the Calcutta High Court, Thottathil B Nair Radhakrishnan, and Justice Suvra Ghosh said: “At the outset, let us record that we do not propose to proceed with the matter as an adversarial litigation. However, we need to provide appropriate push with requisite grease to ensure that the ongoing strike by a section of doctors comes to an end through governmental intervention by way of persuasion or otherwise, in accordance with law. We do so because, within the parameters of Article 21 of the Constitution of India, ‘human rights’ as understood in the civilised societies and recognised in the international domain through terms of international conventions, which bind different nations, it is the fundamental requirement that the right to health is given top priority and any need for medical help is immediately extended to any human being even if he is not a citizen.

“Therefore, we take this opportunity to state that resolution of disputes which would have arisen as a consequence of certain unfortunate events even in the hospital is not to be countered by action of eminent and well informed people like doctors by keeping away from their primary and fundamental duty to serve the people.

“Be that as it may, the State Government has also to ensure that the grievance of the doctors, particularly in relation to certain incidents which are alleged to have occurred, are addressed in accordance with law without any delay. We record the submission made by the Learned Advocate General that First Information Report has been lodged and arrests have been made insofar as the alleged incidents in which the doctors are stated to be victims. This means that the State Government has taken efforts to push the machinery in that regard. As a necessary consequence, it is definitely for the doctors to now turn themselves to the reconciliatory mode in the larger interest of the suffering people and answer their oath which they have taken when they became doctors. The great advice given through the Hippocratic Oath ought to lead them to better ways of dealing with the problems which they are faced with. The State Government shall also ensure that adequate protection is provided to the hospitals and place of work of all doctors and also such places where doctors may feel insecure in any circumstances.”

Every time there is a doctors’ strike, courts have to intervene. The solution is a central act with harsh punishment.

Dr KK Aggarwal
Padma Shri Awardee
President Elect Confederation of Medical Associations in Asia and Oceania   (CMAAO)
Group Editor-in-Chief IJCP Publications
President Heart Care Foundation of India
Past National President IMA

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