ADEQUACY OF INDIAN PENAL CODE (IPC) IN DEALING WITH MEDICAL OFFENCES Author By: S.R Aadhi Sree Co-Author Tamoghna Chattopadhyay

Abstract

The country as a whole is striving to be at par with the developed nations. Similarly, the provisions, as well as punishments relating to medical offences, should also to be updated with changing times. In India, not always the medical offences are committed by the doctors or practitioners themselves. At times for the wrong done by the nurses or paramedics, the licenses of the doctors aresuspended/cancelled. Over here, vicarious liability can be raised only if the definition of a medical practitioner is widened. Another viewpoint is that India is still a developing country and people consider doctors as gods. So, if doctors themselves prescribe wrong medications, then people will start losing faith in doctors. This statement is in the wake of the case between Ajay Divanand Apollo Super speciality Hospital (Kolkata).

This paper intends to analyse the sections and provisions of the Indian Penal code that needs to be fine-tuned.  The present descriptive and analytical secondary data-based study was conducted to understand the sections/provisions that requires to be modified.  This paper also discusses the road ahead for the nation in curbing medical offences and future strategies that could be adopted,employing changes to the existing legislation and by enacting new laws on this regard.  Sections of the Indian Penal Code have to be tested based on medical as well modern principles and incorporation of the definition of a medical practitioner and other medical-related terms, are some of the inference from the study.

Keywords: Medical offences, Medical Negligence, Indian Penal Code, Medical Council Amendment, Medical practitioner.

1. INTRODUCTION

This paper is related to certain sections/provisions of the Indian Penal Code (hereinafter as IPC) relating to medical offences that are required to be revisited. We will confine ourselves to medical offences to the physical body and not the psychological body, which is expressly mentioned in Chapter XIV of IPC. This paper is not intended to criticise any of the sections of the IPCbut aims to suggest changes in those laws as may be required. Before delving deep let us look at thefollowing fewsections that will bediscussed in this paper:

1. Section 87- Act not intended and not known to be likely to cause death or grievous death or grievous hurt, done by consent.
2. Section 88- Act not intended to cause death, done by consent in good faith for person’s benefit.
3. Section 269- Negligent act likely to spread infection of disease dangerous to life.
4. Section 270- Malignant act likely to spread infection of disease dangerous to life.
5. Section 271- Disobedience to quarantine rule.
6. Section 274-Adulteration of drugs.
7. Section 275- Sale of adulterated drugs.
8. Section 276- Sale of drugs as different drug or preparation.
9. Section 312- Causing miscarriage.
10. Section 313- Causing miscarriage without woman’s consent.
11. Section 314- Death caused by act done with intent to cause miscarriage if the act is done without a woman’s consent.
12. Section 315- Act done with intent to prevent child being born alive or to cause it to die after birth.

This paper intends to deal with these few sections/provisions of IPCwhich are deemed to relate to medical offences. There are certain sections which the Indian Medical Association has contemplated to bring awareness in public.  In this paper, we confine ourselves to analyse as to how various courts in theirdifferent judgements have explained the above-said provisions. Some of the above sections may not squarely deal with the medicals offences however read in conjunction with other provisions of the law they may very well be related to medical offences.

1. CRITICAL STUDY OF SECTIONS

The first section to be discussed is Section 87, which does not expressly talk much about the medical offences but somewhat hints at it. We should remember thatinsofar as this section is concerned, there has not been any such deliberation in Indian courts in the past decade but has been extensively dealt with in the English common law courts. This section mainly states the fact that any person in or above the age of 18 yearsis entitled to give his/her consent for any legal act to be done. According to this section if a patient gives consent to perform a surgery or operation, and if the surgery had resulted in grievous hurt or death, the doctor cannot be charged for murder or hurt. This statute was framed by keeping in mind the Latin maxim Violenti non-Fit Injuria (The consent of the person serves as a good defence against him).  This law does not take into consideration that a medical practitioner may be coerced or threatened to commit such an act on the patient but can get away taking shelter under the above-said maxim.The doctors may be subjected to threat to his life or to his kithin case the patient happens to be a high-profile personality whom the vested interest group would like to extinguish.In such circumstances, the medical practitioner may succumb to such pressure and commit an act that may amount to grievous hurt or death of the patient. Such incidences do not get reported generally, but there are chances for such happenings in this medical world.This issue, though maybe hypothetical, needs to be addressed by the lawmakers.

Secondly, let us consider Section 88 which isthe first of its kind that deals about criminal liability on doctor or surgeonwhere it states that the prosecution has to come out with a case of a high degree of negligence on the part of the doctor. Thus, when a patient consentto undergo a particular medical treatment or surgical operation, not all the careless act of the medical practitionerbe termed as criminal. It can be termed criminal only when the physician exhibits a gross lack of competence or inaction and wanton indifference to his patient’s safety and which is found to have arisen from gross ignorance or gross negligence. Where a patient’s death results merely from an error that is not in the control of the medical practitioner, no criminal liability should be fastened to it.  Sheer inadvertence or some degree of want of adequate care and caution might create civil liability but would not suffer from holding him criminally liable. Even if the surgery was done without the consent of the patient or his/her guardian, if it is for the benefit of the patient, he is not liable. Section 98 deals with harm caused with the consent of the person injured or someone competent under law to give such consent on his behalf excludes causing of such harm from the category of offence.Section 88 of IPC provides that harm done for the benefit of the person injured and with his consent will not make the person causing harm liable for a criminal offence. Over here, the point to be noted is that section 88is silent as towhen and how the consent was obtained. Psychologically, a patient can be induced to give consent to an act. Free consent is not only vitiated by fear or force but also by psychological effects. By keeping this fact in mind, we suggest that this section of IPC has to be amended suitably.

Thirdly, let us look at Section 269 and 270,which are very much related to the medical offences.   Anyone, moreso, a medical practitioner is expected not to indulge in any unlawful or negligent or malignant act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life.Such indulgence is an offence under this section.  However, in practice, it is not easy for an affected person to prove such negligence as the subject matter is too technical and neither the affected person nor his legal practitioner may possess such mental calibre to deal withsuch offences.  A mechanism, therefore, has to be devised concerning this section.

Fourthly, before looking at Section 271, the word quarantine should be understood. Quarantine is nothing but a symbol found in hazardous places that are used to warn and resist the movement of people in that area. This rule was very much in vogue at the time of Ebola virus attack all around the world. These rules most of the times are declared by the government, but medical offences will be attracted when doctors and scientists who must make people aware of an impending danger along with its consequences in that particular area/region fail to do so.  Therefore, quarantine related laws in India have to be improved in this regard that may prescribe the role a medical practitioner would play in relation thereto.

Fifthly, let us consider Sections 274 and 275 that deal with adulterated drugs and its sale.So, in that regard, a doctor should be brought into the fold of pharmaceutical companies where such medicines are alleged to be sold. Like judicial activism, the doctors may be authorised to take the initiative to ensure that such adulterateddrugs do not enter the market. 

Though Section 312 of IPC deals with miscarriage and defines miscarriage an offence, nowhere in the IPC, we could find a definition of what a miscarriage means.  This act without actually defining that particular act contemplates punishing those indulging that act.  Like how legal insanity is distinguished from medical insanity, what miscarriage would legally mean has to be defined.

Now if we see Sections 313,it is a case of the murder of the foetus, but if it is done in good faith for the benefit of the woman,then the case is different. According to this section, if miscarriage is caused without the women’s consent, it is an offence. However, what if the woman is not in a position to give consent say, she is unconscious. Therefore, it has to be defined in the IPC, as to how to legally deal with the situation if the woman is unable to consent to this act or otherwise herself.  Hence sections 313 and 314 have to be amended with regards to the consent part if.

                                   With this, the critical study is completed.

• CONCLUSION

In conclusion, what can be stated is that the crime expressed above is grave, subject to certain changes in the wordings of law, but the other thing to be noticed is that the punishments contemplated in all sections seem not to deter anybody. Like the Motor Vehicle Act’s amendment, this law also needs to be amended. All the suggestions in this paper are subject to debate. The authors would like to make one thing clear that they have full faith in the Indian Medical system;instead, they only expect the laws to be up-to-date and be with modern times. We sincerely hope that the addition we propose be duly considered, and justice is done.