The New Bharatiya Nyaya Sanhita

The Lok Sabha’s recent passing of the second iteration of Bharatiya Nyaya Sanhita (BNS), set to replace the IPC, marks a significant victory for the medical community. The Rajya Sabha followed suit, giving its approval to the bill, which was initially introduced on December 12. Notably, the amended version, passed this week, includes a special dispensation aimed at providing increased protection to registered medical practitioners.

Tackling Negligence in a Thoughtful Manner

Under the revised BNS, clause 106 introduces a lighter penalty for acts of negligence, particularly in the realm of medical practice. While death resulting from a rash or negligent act could lead to a maximum jail term of five years and a fine, medical negligence now carries a reduced punishment – a maximum of two years in jail and a fine. This nuanced approach recognizes the unique challenges faced by medical professionals in their line of duty.

As of the current date in 2023, there have been 12,623 cases filed nationwide for medical malpractice, averaging over 1,000 cases per month, 30+ cases per day, and more than 2 cases per hour. Addressing the bill, Home Minister Amit Shah acknowledged that the amendment had been introduced in response to a request from the Indian Medical Association (IMA). This recognition of the medical community’s concerns underscores the importance of a legal framework that understands and accommodates the intricacies of medical practice.

Specialized Protection for Medical Practitioners

The jurisprudence surrounding medical negligence has evolved to provide medical practitioners with layers of protection against unwarranted charges. In particular, two Supreme Court judgments, including the landmark case of Jacob Mathew vs. State of Punjab, emphasize the importance of distinguishing between occupational negligence and professional negligence. These decisions emphasize that neither a mere lack of care nor an error in judgment is sufficient proof of negligence.

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The new amendment eliminates the risk of police custody immediately upon the filing of an FIR under section 304A by the patient’s family. Despite existing judicial precedents discouraging police action, FIRs are still registered under 304A, leading to arrests. This law would prevent such registrations.m Consequently, police won’t be able to file an FIR under any such section, removing the possibility of immediate arrest.

Medical negligence cases are subject to a higher threshold, as reaffirmed by recent Supreme Court judgments. This legal stance asserts that to hold a medical practitioner liable for negligence, a more stringent criteria must be met. Such clarity in legal interpretation ensures that doctors are not unfairly burdened with baseless allegations.

Recognizing the specialized nature of medical procedures, the BNS offers doctors unique protection. Private complaints are only entertained if supported by the opinion of a qualified doctor. Even at the investigative stage, a separate medical opinion is required for the complaint to proceed. This stringent process ensures that arrests are the exception rather than the rule.

While the medical community benefits from an elevated level of protection against allegations of negligence, the lobbying by the IMA for lighter punishments raises questions.

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The proposed law is limited to cases of death and does not extend to instances of morbidity. While it may prevent immediate arrest post-FIR, it may not shield against potential prosecution for criminal negligence, possibly resulting in imprisonment if proven in a trial court. Bail may still be necessary to avoid arrest, as the prosecution might argue for custody to prevent evidence tampering or witness manipulation.

Enactment of this law could intensify hostility from the patient community, perceiving it as biased by the legal system. Possible outcomes may include increased incidents of violence from aggrieved families and a substantial rise in cases filed by patient families.

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With the existing legal safeguards, making a compelling case for a reduced penalty in the rare event of a doctor being found guilty seems unnecessary. Perhaps, at a later date, an amendment to the BNS may need to address this peculiar aspect.

In conclusion, the amended Bharatiya Nyaya Sanhita stands as a testament to a legal system that recognizes the complexities of the medical profession. While the additional protection is warranted, the debate surrounding the lighter punishment for negligence prompts reflection on the delicate balance between accountability and the challenging nature of medical practice.

Reference:

1. The Bharatiya Nyaya Sanhita, 2023 – (https://prsindia.org/billtrack/the-bharatiya-nyaya-sanhita-2023)

Source-Medindia