Healthcare providers in turmoil: How new legal reforms are stirring up India's medical frontliners

Instead of celebrating National Doctors' Day on July 1, doctors across the country expressed profound dissatisfaction and anger towards the newly implemented Bharatiya Nyaya Sanhita (BNS), which has supplanted the long-standing Indian Penal Code (IPC). This new legislation provides for penalties for medical negligence, culminating in widespread protests among healthcare professionals.

The crux of the controversy lies in Section 106 of the BNS, which replaces Section 304A of the IPC. Under the IPC, any individual causing death by a rash or negligent act not amounting to culpable homicide faced imprisonment for up to two years, a fine, or both. The new BNS provision increases the maximum jail term to five years and states that if the negligent act in question “is done by a registered medical practitioner while performing a medical procedure,” the punishment shall be imprisonment for a term which may extend to two years, and shall also be liable to a fine.

The five-year term was amended and reduced to two years for medical practitioners at the request of the Indian Medical Association, owing to the presumption of absence of mens rea.

The newly introduced provision has elicited significant concern within the medical community, primarily because it imposes mandatory penalties on medical practitioners. However, what truly unsettled them was the scrutiny on them, adding unwarranted tension to an already demanding profession. Several renowned voices in the medical community articulated the apprehensions prevalent in the profession, noting that the new law explicitly encompasses medical professionals and mandates imprisonment for negligence, a marked departure from the IPC's more generalised framework.

Sir William Osler, a renowned Canadian physician and one of the four founding professors of Johns Hopkins Hospital, famously stated, "Medicine is a science of uncertainty and an art of probability." This quote encapsulates the intricate nature of the medical profession, where decisions are frequently founded on probabilities and uncertainties. Medical professionals fear that the prospect of mandatory punishment will deter them from handling critical and high-risk patients. This could result in doctors being excessively cautious, potentially referring serious cases to government hospitals rather than exercising their judgment in emergency situations.

It is argued that such measures could ultimately harm patients, as fewer doctors may be willing to undertake complex, life-threatening cases due to the fear of litigation and imprisonment. It was further emphasised that the new law fails to account for the inherent risks and complexities involved in medical treatment. It is argued that doctors operate without criminal intent and often encounter adverse outcomes despite their best efforts and intentions. The fear of excessive punishment could discourage doctors from performing their duties effectively, leading them to opt for less risky specialties. This shift could compromise the quality of care available to critically ill patients.

Despite the ongoing protests, Prime Minister Narendra Modi and Union Health Minister JP Nadda extended their greetings to doctors on Doctors' Day. However, these gestures of goodwill did little to alleviate the growing anxiety and anger among medical professionals, many of whom perceive the government's commitment to the new law as a betrayal of prior assurances.

Conversely, supporters of the new law argue that it introduces necessary accountability within the medical profession. They assert that the prospect of mandatory penalties can act as a deterrent against negligent behaviour, thereby potentially improving the standards of medical care. Proponents highlight the necessity of clearly defined legal accountability in cases of medical negligence. The new BNS law explicitly identifies medical practitioners, ensuring no ambiguity regarding their responsibilities and the consequences of failing to meet these obligations. According to supporters, this can enhance diligence and care among doctors.

The new law represents an attempt by the government to bring uniformity and clarity to the legal system. While it imposes mandatory penalties, some view it as a balanced approach to ensure that genuine negligence is appropriately penalised without equating it to criminal intent. Though the intentions behind the new BNS law might be to establish a more accountable and robust legal framework, the concerns raised by the medical community cannot be dismissed. Valid fears persist that the new provisions could have a chilling effect on the medical profession, deterring doctors from taking necessary risks inherent in life-saving procedures.

Medical professionals have suggested clarifications and protective measures that could balance accountability with the realities of medical practice. Issuing a detailed circular memorandum, as suggested by some, could contribute positively in this regard. A clarification may be made that investigating officers need to ascertain gross recklessness before registering a case and should always seek the opinion of a medical expert committee. This would afford a layer of protection for doctors while upholding the law's intent to address genuine negligence. Even though their anxiety or insecurity is not unfounded, they may find some solace in Section 26 of BNS, 2023, which provides indemnity for acts done in good faith for the patient's benefit after seeking informed consent.

In our evolving landscape of medical ethics and legal accountability, we have transcended the confines of the Bolam test, which once shielded doctors under the umbrella of consensus-driven professional judgment. In Bolam v. Friern Hospital Management Committee, a UK court pronounced that a doctor is not negligent if they have acted in accordance with a practice accepted as proper by a responsible body of medical professionals skilled in that particular area, even if there are other alternative practices that could have been followed.

Over the years, the Bolam test became a well-established and widely accepted principle utilised by courts in India. In the case of Jacob Mathew v. State of Punjab & Anr, the Supreme Court of India delved into the realm of medical negligence and the standard of care owed by healthcare providers. By drawing on the Bolam principle, the Supreme Court established a framework for determining the standard of care expected from medical professionals in India. This case serves as a significant precedent in Indian jurisprudence, emphasising the importance of adhering to established medical practices and standards to assess allegations of medical negligence effectively. In Kusum Sharma & Ors v. Batra Hospital & Medical Research Centre & Anr, the Supreme Court referred to the Bolam principle to determine the standard of care and assess allegations of medical negligence within the Indian legal framework. The Court highlighted the significance of adhering to accepted medical practices and standards in evaluating the conduct of medical professionals in cases of medical negligence.

While aiming to create greater accountability, the new law has incited considerable unrest among doctors who fear that these provisions could undermine their ability to practice medicine effectively. The Modi government has a history of consistently supporting doctors - remember the prompt approval of the Epidemic Diseases (Amendment) Ordinance, 2020, addressing violence against healthcare workers as a cognisable and non-bailable offence.

Balancing the need for legal accountability with the practical challenges of medical practice remains a complex issue that necessitates careful consideration and potentially further amendments to ensure just and fair application of the law. Given the nature of medicine as elucidated by Sir William Osler's insightful quote, which characterizes it as a science of uncertainty and an art of probability, the question arises: Can we justifiably impose mandatory punishment on doctors? In light of the complexities and inherent uncertainties in medical practice, it becomes imperative to reconsider the implications of imposing such stringent measures on healthcare professionals in a country like India, where the doctor-to-patient ratio is abysmally low.

Dr Supreet Gill is an Assistant Professor in Law (part-time) at University Institute of Legal Studies, Panjab University, Chandigarh.