Good Faith Exemption From Criminal Liability - Harm Resulting From Medical Treatment Is No Offence

The Bhartiya Nayay Sanhita 2023 replaces the Indian Penal Code 1860. The basic shift, per the minister piloting the Bill in the Parliament, was to provide for justice rather than punishment.

It defines offences, punishment for the defined offences and , more importantly, the covenants as exception clauses, that exonerate (exempt) the offender from any criminal liability.

Chapter III of BNS, General Exceptions, provides these exceptions. These exceptions apply to all the offences and penal provisions defined in the Act.

Clause 3. (1) of the act mandates:
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. (IPC 6)

Illustrations:

1. 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.

Thus all the offences defined in the act are to be read with the Exception Clauses, individually and collectively.

Each of these Exception Clauses begins with 'nothing is an offence', states the exempting covenant with the rider that it should have been done under 'good faith'.

Thus:
Clause 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. IPC 76

Clause 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.IPC 77

Clause 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. IPC 81

The basic legal principle in all the Exception Clauses, it may be noted, is the doctrine of good faith.

In BNS good faith is defined as:
Clause 2(10) "good faith": Nothing is said to be done or believed in "good faith" which is done or believed without due care and attention; IPC 52

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'. Even an act of negligence is exempted from criminal liability if it was done honestly in good faith.

Honesty is defined in the Act:
Clause 2(6) "dishonestly" means doing of an act with the intention of causing wrongful gain to one person or wrongful loss to another person; IPC 24

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 (BNS) 2023.These are the clauses that provide a physician protection from criminal liability from the bodily harm that he or she may cause by the treatment given to a patient.

Clauses 25 and 26 provide protection as under:
Clauses 25 and 26 state as under:
Clause 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.(IPC 87)

Clause 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.(IPC 88)

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.

Mutual good faith is the basis of relationship between a patient who seeks a treatment, and a doctor who accepts the case to provide it. The patient who trusts his body to the doctor expects that the physician will act in good faith (honestly) to provide him the treatment. The doctor expects that the patient who has chosen him, will, in good faith, have confidence in his competence.

Should such a confidence be belied, the patient, in good faith, will seek independent medical opinion to substantiate it. The judicial and the law enforcement agencies, will verify such evidence before initiating a legal proceedings against the doctor. Medical science is vast and complex. In a number of judgments of Supreme Court , it has been pointed out that all judicial officers are lay persons.

They cannot comprehend a medical case unless the same is discussed thread bare before the court by experts. It is only after the judicial officer has comprehended the case detail, that he can, in good faith, assert his competence to decide the case. A judicial officer is provided exemption from criminal liability for his judicial acts done in good faith. He is liable for his extra-judicial acts.

Clause 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.IPC 77

A duly qualified, trained and licensed medical practitioner is entitled to similar protection from criminal liability for his 'medical acts' done in good faith.

This is what was meant by the Hon'ble Home Minister when he asserted in the parliament that he is decriminalising medical negligence in the New Act (Bhartiya Nyaya Sanhita 2023).

Written By: Dr.Shri Gopal Kabra, MBBS, LLB, MSc, MS (anatomy), MS (Surgery)
15, Vijaya Nagar, D-block, Malviya Nagar, Jaipur-302017