Medical fraternity in India is greatly agitated on the two woes inflicted on the profession. First, the inadvertent mischief caused by inclusion of Health Care as service in Consumer Protection Act 1985 by the judgment in IMA vs V P Shantha, 1995. Second, by criminalizing 'acts of registered medical professional should the procedure performed by him result into death of the patient' by inserting a clause in Bhartiya Nayay Sanhita 2023. This insertion surprised and dismayed the profession as the minister while moving the Bill had announced that the Sec 304A of IPC that criminalized the medical act of a doctor, will be suitably amended in BNS to 'decriminalize' it.

Inclusion of medical services in CPA, though well intended, inadvertently has resulted into disastrous effect on the practice of modern medicine. The reason of the disaster was adjudicating complex medical negligence cases by affidavit-based-summary-trial by illinformed, incapable lay judiciary in CPA fora (they are not regular courts but quasijudicial bodies). The fora functioned like Kangaroo Courts or, more familiar to Indian people, like Kajiji Ki Adalat of Mughal era. In large number of cases where the matter reached the Supreme Court, for instance Jacob Mathew and Martin D'Souja, they have analyzed, highlighted and documented the patent distortions in the CPA adjudicated cases. To cure the mischief caused, the Supreme Court in their judgments in the aforesaid cases, have laid down laws to adjudicate medical negligence cases, and have suggested various tort reforms to be legislated.

The basis of reading-in health service in CPA by IMA vs VP Shantha case was the legislative intent inferred by the Court on statutory interpretation of the 1985 statute of CPA, to resolve the ambiguity in the provision defining services in the Act. Though almost a dozen services were named in the inclusionary clause of the Act, medical service was not named. Under the 'including but not limited to' provision preceding the services named, the court after analyzing the scheme and scope of the Act and the legislative process, inferred that the parliament intended to include health service in the Act.

This held sway from 1995 to 2023. The 1985 CPA was repealed and replaced by CPA 2023. In Bar Of Indian Lawyers Through Its ... vs D.K.Gandhi Ps National Institute Of ... on 24 April, 2019, both the statutes, 1985 CPA and the 2019 CPA, reached the Two Judge Bench of the SC, for statutory interpretation. The Appeals before the SC emanated from the impugned order passed by the National Consumer Disputes Redressal Commission (NCDRC) which had held that if there was any deficiency in service rendered by the Advocates/Lawyers, a complaint under the Consumer Protection Act, would be maintainable. The question of law before the SC was whether a complaint alleging "deficiency in service" against Advocates practising Legal Profession, would be maintainable under the Consumer Protection Act, 1986 as re-enacted in 2019?

The bone of contention was persistent ambiguity in the service clause of both the Statutes.

The court considered "Whether the Legislature ever intended to include the Professions or services rendered by the Professionals within the purview of the CP Act 1986 as re-enacted in 2019?"

The Hon'ble Bench concluded that "There was not a whisper in the statement of objects and reasons either of the CP Act, 1986 or 2019 to include the Professions or the Services provided by the Professionals like Advocates, Doctors etc. within the purview of the Act.''

"There is nothing on record to suggest that the Legislature ever intended to include the Professions or the Professionals within the purview of the Act."

As a matter of fact, per the parliamentary proceedings, 'health care' was deliberately removed from 2019 CPA bill after having specifically including it in the 2018 CPA Bill.

1. Inclusion in CPA 1986:
   • The Supreme Court's two-judge bench decision in IMA vs. VP Shantha led to the inclusion of healthcare services within the scope of the CPA 1986. This decision extended consumer protection to patients seeking medical treatment.
   • However, this inclusion raised concerns due to the unique nature of healthcare services and the fiduciary relationship between doctors and patients.
      
2. Exclusion from CPA 2019:
   • Recognizing the need for clarity, the Parliament excluded healthcare services from the CPA 2019.
   • The intent was to address any inadvertent consequences caused by the earlier judgment and to ensure that the CPA focuses on typical consumer transactions rather than professional services.

The woe of medical profession is that neither SC nor the concerned Ministry is prepared to state that 'health care' is not included in the CPA 2019. Reason -The Two Judge Bench has referred the Three Judge Bench IMA vs VP Shantha judgment to the Chief Justice of India to be revisited and considered by a larger bench.

Second woe: Criminalizing/decriminalizing medical negligence from criminal liability.
The scheme of the earlier Indian Penal Code and the recently enacted Bhartia Nayay Sanhita, dealing with the offences of causing injuries on human body, contain elaborate provisions as General Exception Clauses, applicable to all the offences, that exempt a person from criminal liability. A duly qualified and licensed medical professional providing regular treatment is exempted from any criminal liability from the resultant injury, even death of the patient.

Good Faith, Honest Act, Legally Provided, For Patient's Benefit, With Patient's Consent is exempted from criminal liability. (IPC Secs. 76 to 94; BNS Secs 14 to 30). Emerging medical negligence jurisprudence (Supreme Court Judgments Jacob Mathew, Martin D'Souza et al) have upheld the applicability of these Exception Clauses to the acts of regular practice of medicine.

Ignoring these exceptions, the prosecuting agencies by partition reading of the individual offence clauses would book a case of criminal negligence against a doctor, as there was not specific clause exempting doctors. This caused immense harassment to practicing medical experts. The Supreme Court ruled against it. The medical profession agitated. IMA made representations to the Home Minister when he introduced Bhartiya Nyay Sanhita Bill in the parliament. The Home Minster cognizant of the aforesaid facts made a categorical statement in the Parlament that "Currently, if there is a death due to negligence of a doctor, it is also treated as criminal negligence, almost akin to murder, Therefore, I will bring an official amendment to free the doctors from this criminal negligence."

"Indian Medical Association had urged us to look into the matter," he added.

However, the amendment made was the exact opposite of what the Minister had promised in the Parliament. The amendment in fact criminalizes all acts " done by a registered medical practitioner while performing a medical procedure."

Following amendments were made:

1. In BNS 106 (1), the punishment was increased to imprisonment of "five years" in place of "Two years" in IPC 304 A.
2. And to it was added: "if such act is done by a registered medical practitioner while performing medical procedure, he shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine.
3. Explanation: For the purposes of this sub-section, "registered medical practitioner" means a medical practitioner who possesses any medical qualification recognised under the National Medical Commission Act, 2019 and whose name has been entered in the National Medical Register or a State Medical Register under that Act.
    

Objections

1. The provisions of BNS 106(1) are in contravention of the provisions in Chapter III of BNS which under the good faith doctrine provide exemption from criminal liability to a duly qualified, registered and licensed physician. All acts done in good faith for the benefit of the patient with his consent are exempted from criminal liability.
2. Identifying specifically acts of registered medical professionals for harsh criminal liability is arbitrary, discriminatory and violative of equality.
3. What was the justification given by the Minister for the amendment in contravention of his statement in the Parliament that he would bring an official amendment to decriminalize medical negligence?
4. Was it not an act of parliamentary impropriety if not an act of misleading the Parliament?
5. The dichotomy in what the minister professed to provide by an amendment and what he in reality did, is patently manifest to be missed or overlooked.

The mischief caused by BNS 106(1) needs to be cured by suitable amendment to it by the Parliament in public interest or by the judiciary by a suitable judgment.

Till then the woe of the medical profession continues. Dehors the legal protection to the medical profession patient treatment, especially in serious of critical cases, will remain compromised.

Written By: Dr. Shri Gopal Kabra, MBBS, LLB, MSc, MS(Anatomy), MS(Surgery)
Ph no: 8003516198