Provisions In Bharatiya Nyaya Sanhita 2023 That Decriminalize Medical Negligence: Basis Good Faith
Sec2(6)
"dishonestly" means doing of an act with the intention of causing wrongful gain to one person or wrongful loss to another person;
An act of providing treatment to a patient by a qualified and licensed physician can not be a dishonest act
Sec2(10)
"good faith".-Nothing is said to be done or believed in "good faith" which is done or believed without due care and attention;
Doctrine of 'Good Faith' is the prime premise on which all the exemptions are granted from liability from an offence. This is a paramount consideration of the acts of medical professional. However, good intention is not good faith. This section qualifies that an act to be accepted to have been done in good faith must have been done with 'care and attention'. This is a negative definition.
Sec2(13)"injury" means any harm whatever illegally caused to any person, in body, mind, reputation or property;
Sec2(14)"illegal"- "legally bound to do". -The word "illegal" is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action; and a person is said to be "legally bound to do" whatever it is illegal in him to omit;
An injury to constitute an actionable harm (Negligence) should have been illegally caused.
An act of qualified and licensed surgeon/physician causing all the bodily injuries, intended or unintended, as part of treatment is legal; he is legally bound to provide the treatment when approached by a patient.
Sec 3(1)
Throughout this Sanhita every definition of an offence, every penal provision, and every Illustration of every such definition or penal provision, shall be understood subject to the exceptions contained in the Chapter entitled "General Exceptions", though those exceptions are not repeated in such definition, penal provision, or Illustration.
Illustrations.
GENERAL EXCEPTIONS
Sec 14
Nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law to do it.
Treatment provided by a licensed practising physician falls in this category. Good faith is basis of exception.
Sec 15.
Nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law.
Judicial officers are exempted from any liability for their judicial decisions and acts on the ground of good faith. Physicians are also entitled to similar exemption from liability for their medical decisions and acts done in good faith.
Sec 17.
Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it.
Act of a physician to provide treatment for a disease is justified in law.
Sec 18.
Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.
A duly qualified and licensed physician providing treatment per medical norms, does so in 'lawful manner and lawful means. He does so with the consent of the patient. There can not be any intent to harm the patient by the treatment (care). Any unintended injury/harm is by 'accident or misfortune'. Its not an offence.
Sec 19.
Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property.
Explanation: It is a question of fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm.
A disease causes continuous harm to the patient. The patient approaches a doctor to intervene to prevent it. The treatment – surgery, especially ablative surgeries – cause intended harm. The patient consents for it. The physician has done it to 'preventing or avoiding other harm to person'. He has no criminal intent to harm his patient.
Sec 25.
Nothing which is not intended to cause death, or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, to any person, above eighteen years of age, who has given consent, whether express or implied, to suffer that harm; or by0 reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm.
Short of death and grievous hurt, harm can be caused, provided a competent person has consented to suffer that harm.
Sec 26
Nothing, which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm.
Illustration.
A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under the painful complaint, but not intending to cause Z's death, and intending, in good faith, Z's benefit, performs that operation on Z, with Z's consent. A has committed no offence.
Sections 25 and 26 of BSN are provisions that spell statutory parameters for physician to act on - intervene on human body. The three ingredients are Benefit, Consent and Good Faith. Good faith, as defined in Sec 2(10) BSN, is established by the legal competence of the doctor in terms of qualification and license, care and attention by record of patient's treatment for his benefit, and proof of consent to be legally authorised to provide the treatment. These provide tangible evidence to satisfy the legal principles and fictions evolved by judiciary to asses negligence, especially the criminal liability. Good faith is the basis.
Sec 28.A consent is not such a consent as is intended by any section of this Sanhita:
Sec 30.
Nothing is an offence by reason of any harm which it may cause to a person for whose benefit it is done in good faith, even without that person's consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent, and has no guardian or other person in lawful charge of him from whom it is possible to obtain consent in time for the thing to be done with benefit:
All the above exceptions are applicable to Sec 104(1) under which death by rash or negligent act is a punishable offence.
Sec 98.
Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
A physician never provides a treatment with the intention to kill the patient.
Sec 104.
The paramount doctrine of Good Faith is the basis of statutory protection (exemption) under clauses 14, 17, 18, 19, 25,26 and 30 of Bhartiya Nyaya Sanhita 2025.
Sec 25 and 26 state as under:
Sec 25.
Nothing which is not intended to cause death, or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, to any person, above eighteen years of age, who has given consent, whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm.
Sec 26.
Nothing, which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm.
Illustration.
A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under the painful complaint, but not intending to cause Z's death, and intending, in good faith, Z's benefit, performs that operation on Z, with Z's consent. A has committed no offence.
Good Faith is defined as:
Sec 10
"good faith".-Nothing is said to be done or believed in "good faith" which is done or believed without due care and attention;
Care and attention are the two ingredients of Good Faith.
In medical treatment 'care' means attending to the medical needs of the patient by providing treatment, and 'attention' means after duly assessing his medical needs of the patient after examination, investigations and diagnosis.
A medical record is proof positive that care and attention has been provided to the patient.
Definition of Good Faith in General Clauses Act is also relevant in this context:
It may also be noted that an act that caused bodily harm to be actionable should be 'illegal' vide clause 13 and 14 of the BNS:
Sec 2(13).
"injury" means any harm whatever illegally caused to any person, in body, mind, reputation or property;
Sec 14.
"illegal"- "legally bound to do". -The word "illegal" is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action; and a person is said to be "legally bound to do" whatever it is illegal in him to omit;
An act of providing treatment by a duly licensed medical practitioner cannot be an 'illegal'. He is legally bound to provide a treatment when approached by a patient.
Sec 112
Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
Sec 113(1)
Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt".
Sec 113(2)
Whoever, except in the case provided for by sub- section (1) of section 120 voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both.
Sec 114
The following kinds of hurt only are designated as "grievous", namely:
Sec 115(1) Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said "voluntarily to cause grievous hurt".
It may be noted that removal of a limb by amputation or kidney, spleen, intestine, eye, larynx etc etc by ablative surgery, though technically causing grievous hurt does not constitute an offence as the same is done with the consent of the patient and in good faith to benefit him. All voluntary injuries caused by a physician have to be dealt at a different level. All invasive procedures performed by a physician are inherently injurious. Exceptions provide exemption to a physician for all his acts done in good faith.
Written By: Dr. Shri Gopal Kabra
MBBS, LLB, MSc, MS(Anatomy), MS(Surgery)
15, Vijay Nagar, D-bloc, Malviya Nagar, Jaipur-302017
Ph no: 8003516198
"dishonestly" means doing of an act with the intention of causing wrongful gain to one person or wrongful loss to another person;
An act of providing treatment to a patient by a qualified and licensed physician can not be a dishonest act
Sec2(10)
"good faith".-Nothing is said to be done or believed in "good faith" which is done or believed without due care and attention;
Doctrine of 'Good Faith' is the prime premise on which all the exemptions are granted from liability from an offence. This is a paramount consideration of the acts of medical professional. However, good intention is not good faith. This section qualifies that an act to be accepted to have been done in good faith must have been done with 'care and attention'. This is a negative definition.
Sec2(13)"injury" means any harm whatever illegally caused to any person, in body, mind, reputation or property;
Sec2(14)"illegal"- "legally bound to do". -The word "illegal" is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action; and a person is said to be "legally bound to do" whatever it is illegal in him to omit;
An injury to constitute an actionable harm (Negligence) should have been illegally caused.
An act of qualified and licensed surgeon/physician causing all the bodily injuries, intended or unintended, as part of treatment is legal; he is legally bound to provide the treatment when approached by a patient.
Sec 3(1)
Throughout this Sanhita every definition of an offence, every penal provision, and every Illustration of every such definition or penal provision, shall be understood subject to the exceptions contained in the Chapter entitled "General Exceptions", though those exceptions are not repeated in such definition, penal provision, or Illustration.
Illustrations.
- The sections, in this Sanhita which contain
definitions of offences, do not express that a child under seven years of age
cannot commit such offences; but
the definitions are to be understood subject to the general exception which provides that nothing
shall be an offence which is done by a child under seven years of age.
GENERAL EXCEPTIONS
Sec 14
Nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law to do it.
Treatment provided by a licensed practising physician falls in this category. Good faith is basis of exception.
Sec 15.
Nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law.
Judicial officers are exempted from any liability for their judicial decisions and acts on the ground of good faith. Physicians are also entitled to similar exemption from liability for their medical decisions and acts done in good faith.
Sec 17.
Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it.
Act of a physician to provide treatment for a disease is justified in law.
Sec 18.
Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.
A duly qualified and licensed physician providing treatment per medical norms, does so in 'lawful manner and lawful means. He does so with the consent of the patient. There can not be any intent to harm the patient by the treatment (care). Any unintended injury/harm is by 'accident or misfortune'. Its not an offence.
Sec 19.
Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property.
Explanation: It is a question of fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm.
A disease causes continuous harm to the patient. The patient approaches a doctor to intervene to prevent it. The treatment – surgery, especially ablative surgeries – cause intended harm. The patient consents for it. The physician has done it to 'preventing or avoiding other harm to person'. He has no criminal intent to harm his patient.
Sec 25.
Nothing which is not intended to cause death, or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, to any person, above eighteen years of age, who has given consent, whether express or implied, to suffer that harm; or by0 reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm.
Short of death and grievous hurt, harm can be caused, provided a competent person has consented to suffer that harm.
Sec 26
Nothing, which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm.
Illustration.
A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under the painful complaint, but not intending to cause Z's death, and intending, in good faith, Z's benefit, performs that operation on Z, with Z's consent. A has committed no offence.
Sections 25 and 26 of BSN are provisions that spell statutory parameters for physician to act on - intervene on human body. The three ingredients are Benefit, Consent and Good Faith. Good faith, as defined in Sec 2(10) BSN, is established by the legal competence of the doctor in terms of qualification and license, care and attention by record of patient's treatment for his benefit, and proof of consent to be legally authorised to provide the treatment. These provide tangible evidence to satisfy the legal principles and fictions evolved by judiciary to asses negligence, especially the criminal liability. Good faith is the basis.
Sec 28.A consent is not such a consent as is intended by any section of this Sanhita:
- if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or
Sec 30.
Nothing is an offence by reason of any harm which it may cause to a person for whose benefit it is done in good faith, even without that person's consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent, and has no guardian or other person in lawful charge of him from whom it is possible to obtain consent in time for the thing to be done with benefit:
All the above exceptions are applicable to Sec 104(1) under which death by rash or negligent act is a punishable offence.
Sec 98.
Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
A physician never provides a treatment with the intention to kill the patient.
Sec 104.
- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
- Duly qualified and licensed physician (competent)
- In good faith (honestly)
- Providing treatment to a patient (care)
- Which he believes would benefit of the patient (relieve him of his disease and suffering)
- With consent of the patient
The paramount doctrine of Good Faith is the basis of statutory protection (exemption) under clauses 14, 17, 18, 19, 25,26 and 30 of Bhartiya Nyaya Sanhita 2025.
Sec 25 and 26 state as under:
Sec 25.
Nothing which is not intended to cause death, or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, to any person, above eighteen years of age, who has given consent, whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm.
Sec 26.
Nothing, which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm.
Illustration.
A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under the painful complaint, but not intending to cause Z's death, and intending, in good faith, Z's benefit, performs that operation on Z, with Z's consent. A has committed no offence.
Good Faith is defined as:
Sec 10
"good faith".-Nothing is said to be done or believed in "good faith" which is done or believed without due care and attention;
Care and attention are the two ingredients of Good Faith.
In medical treatment 'care' means attending to the medical needs of the patient by providing treatment, and 'attention' means after duly assessing his medical needs of the patient after examination, investigations and diagnosis.
A medical record is proof positive that care and attention has been provided to the patient.
Definition of Good Faith in General Clauses Act is also relevant in this context:
- Clause (22) a thing shall be deemed to be done in "good faith" where it is in fact done honestly, whether it is done negligently or not;
- It may be noted that 'honesty' in the act is the criteria of 'Good Faith'. A duly qualified, licensed and competent doctor proving treatment to the patient with his consent, he, ' shall be deemed to be done in "Good Faith" whether done "negligently or not."
- For justifiable bodily 'harm/injury' to be exempted from liability, it is further stipulated in Clause 26 of BNS that besides 'Good Faith' the act of treatment should be for the 'Benefit' of the patient and with his 'Consent', 'express or implied'.
- A duly executed informed consent as per Clause 28 of the BSN is sufficient for exemption from liability for the harm caused by the treatment. It is also a proof that the physician has exercised due caution.
It may also be noted that an act that caused bodily harm to be actionable should be 'illegal' vide clause 13 and 14 of the BNS:
Sec 2(13).
"injury" means any harm whatever illegally caused to any person, in body, mind, reputation or property;
Sec 14.
"illegal"- "legally bound to do". -The word "illegal" is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action; and a person is said to be "legally bound to do" whatever it is illegal in him to omit;
An act of providing treatment by a duly licensed medical practitioner cannot be an 'illegal'. He is legally bound to provide a treatment when approached by a patient.
Sec 112
Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
Sec 113(1)
Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt".
Sec 113(2)
Whoever, except in the case provided for by sub- section (1) of section 120 voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both.
Sec 114
The following kinds of hurt only are designated as "grievous", namely:
- Emasculation.
- Permanent privation of the sight of either eye.
- Permanent privation of the hearing of either ear.
- Privation of any member or joint.
- Destruction or permanent impairing of the powers of any member or joint.
- Permanent disfiguration of the head or face.
- Fracture or dislocation of a bone or tooth.
- Any hurt which endangers life or which causes the sufferer to be during the space of fifteen days in severe bodily pain, or unable to follow his ordinary pursuits.
Sec 115(1) Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said "voluntarily to cause grievous hurt".
It may be noted that removal of a limb by amputation or kidney, spleen, intestine, eye, larynx etc etc by ablative surgery, though technically causing grievous hurt does not constitute an offence as the same is done with the consent of the patient and in good faith to benefit him. All voluntary injuries caused by a physician have to be dealt at a different level. All invasive procedures performed by a physician are inherently injurious. Exceptions provide exemption to a physician for all his acts done in good faith.
Written By: Dr. Shri Gopal Kabra
MBBS, LLB, MSc, MS(Anatomy), MS(Surgery)
15, Vijay Nagar, D-bloc, Malviya Nagar, Jaipur-302017
Ph no: 8003516198
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