Covid-19, Medical Professionals And Archaic Legal Immunity
Ankur Mittal, Additional Advocate General Haryana
Punjab & Haryana High Court, Chandigarh
Email Id : firstname.lastname@example.org
Date : 18/06/2021 Location : House No. 894, Top Floor, Sector 38-A, Chandigarh
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Covid-19, Medical Professionals And Archaic Legal ImmunityThe Covid-19 Pandemic has changed the dynamics of the world. As people are increasingly being confined to the safety of their homes, there are certain professionals who have had to step up to the challenge. One such community is that of medical professionals. Ever since the Covid-19 pandemic hit, doctors around the world have had to work round the clock. This is especially true for a country like India where healthcare facilities are less developed in comparison to other countries. While India achieved the WHO recommended doctor-patient ratio in 2017, the 1.34 doctor for 1,000 Indians ratio is still on the lower end of the spectrum. As a result, the healthcare facilities in the country have reached a breaking point, especially during the second wave of the Pandemic where record 4 lakh plus cases were being consistently reported at the peak. With rampant shortage in medical facilities and medicines, the mortality rate also shot up which caused the public anger to spill over and incidents of widespread violence against medical professionals also came to the fore. There are various regulations and legislations that lay down the responsibilities of the healthcare workers towards their patients. These include the Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002 and even the recently amended Consumer Protection Act, 2019. The former lays down under various sections the duties of the medical professionals to provide medical treatment to the sick, to not arbitrarily refuse treatment and even create awareness among the members of the society regarding issues of public health. While these regulations illustrate the responsibilities of the medical professionals, there are not enough safeguards to protect them in situations of violence by patients, their families or the society at large. Though violence against medical professionals isn't uncommon, it has garnered more media attention in light of the current situation. The governments since long have not promulgated any enactment to offer protection to this group. However, given the extraordinary health emergency that the country faces, the archaic Epidemic Diseases Act, 1897 has been employed by making certain amendments via the Epidemic Diseases (Amendment) Act, 2020, to give a certain level of protection to the medical fraternity. Section 3[1A(a)] of the Act defines what constitutes an "Act of violence" against a healthcare service professional. This includes harassment which may impact the living or working conditions of such healthcare service personnel and preventing him from discharging his duties. It also includes any harm, injury, hurt, intimidation or danger to the life of such healthcare service personnel, either within the premises of a clinical establishment or otherwise. Any obstruction or hindrance to such healthcare service personnel in the discharge of his duties, either within the premises of a clinical establishment or otherwise also amounts to an act of violence. And any loss or damage to any property or documents in the custody of, or in relation to, such healthcare service personnel is also covered under the ambit of this definition. Section 6 of the Act also lays down the punishment for such acts of violence. It reads that "whoever commits or abets the commission of an act of violence against a healthcare service personnel; or abets or causes damage or loss to any property, shall be punished with imprisonment for a term which shall not be less than three months, but which may extend to five years, and with fine, which shall not be less than fifty thousand rupees, but which may extend to two lakh rupees." In situations where the act of violence is such that it causes grievous hurt to a healthcare professional as defined in section 320 of the Indian Penal Code to such person, the punishment is "imprisonment for a term which shall not be less than six months, but which may extend to seven years and with fine, which shall not be less than one lakh rupees, but which may extend to five lakh rupees.". Generally speaking, the Indian Penal Code, 1860 (IPC) has various provisions, especially Sections 323, 325, 352, 506, which could be employed to deal with instances of violence. Further, the Medicare Service Persons and Medicare Service Institutions (Prevention of Violence and Damage to Property) Acts or the MSPMSI Acts has also been enacted in several states of the country. However, it has been argued by various groups including the government and medical professionals that a specific legislation is necessary to provide protection to the healthcare workers. But the question arises, how reasonable is this immunity, insofar, to situations where there is a prima facie case of medical negligence. Further, there is a scope of this Act being arbitrary since Section 3(3) of the Act mandates that the Court shall presume the existence of a culpable mental state which is a deviation from the standard presumption of innocence, until proven guilty. What is noteworthy is that the Amendment Act is based on a parent Act which is more than two centuries old and various provisions of the Act are insufficient to address the issues of the contemporary medical professionals and patients. For instance, the Act does not provide for recourse in situations of a global pandemic. The global connectivity then and today, levels of migration, greater occupation of individuals on per capita of land are some important issues that the Act is ill equipped to deal with. It is no wonder why even the Indian Medical Association has written to the Union Home Minister underlining the need for "a uniform, effective and comprehensive law against healthcare violence". In light of the same, the Indian judiciary has risen to the occasion and various courts have elaborated on various factors that must be taken into consideration while deciding on such cases of violence against healthcare professionals. For instance, in the case of Abdul Naser v. State of Kerala (2016 (1) KLT 168), the High Court of Kerala has dealt comprehensively with the question of anticipatory bail to the accused in such situations. The court laid down that three factors must be considered while deciding the question of anticipatory bail. These are:
1. The nature and gravity of the injury, if any, sustained by the doctor/hospital employee.
2. The extent of damage, if any, caused to the property.
3. The circumstances under which the acts of violence were committed.The last factor again highlights that there might be mitigating factors when it comes to incidents of violence as medical negligence in certain situations can also not be ruled out. Therefore, an Act which presumes the guilt of the accused from the outset becomes highly problematic. For instance, there have been reports of medical staff not following the safety protocols in some hospitals across the country. If such a situation leads to the death or deterioration in health of a patient, medical negligence could be established. But owing to the overwhelming pressure on the medical infrastructure of the country, a healthcare professional may misuse the immunity to shirk their responsibility. Further, instances of overcharging and even sexual assaults of Covid-19 patients are rampant which has led to an escalation in instances of violence against such professionals which makes a strong case for an urgent need in rethinking the legal immunity. Thus, one can reasonably infer that the present legislation is ineffective in both, protecting the healthcare professionals who are working against all odds in treating the patients and also securing the right to healthcare of individuals who may be victimised because of certain individuals engaging in unfair practices. In such a situation, courts across the nation have taken this matter seriously and passed various guidelines to ensure protection to both the sections of the society. In the case of Jerryl Banait v. Union of India (2020 SCC Online SC 357), the Supreme Court dealt with a matter wherein the doctors who had gone to screen certain patients were attacked and faced stone-pelting. The Court observed and directed: "The pandemic which is engulfing the entire country is a national calamity. In wake of calamity of such nature all citizens of the country have to act in a responsible manner to extend helping hand to the government and medical staff to perform their duties to contain and combat the COVID-19. The incidents as noted above are bound to instill a sense of insecurity in Doctors and medical staff from whom it is expected by the society that they looking to the call of their duties will protect citizenry from disease of COVID-19. It is the duty of the State and the Police Administration to provide necessary security at all places where patients who have been diagnosed coronavirus positive or who have been quarantined are housed." The court has made similar observations in various other cases reiterating the position that the present legislation is ineffective in addressing the concerns of all affected parties. What is needed is a balanced approach that takes into consideration all important issues and tries to address them comprehensively at legal, sociological and academic levels. Protecting the doctors and the healthcare workers is not the responsibility of the governments alone but also of the hospital administrations where they work. For instance, the WHO along with the ILO, ICN and Public Service International, has come up with Framework Guidelines to address the issues of workplace violence in the healthcare sector. It lays down that it is the responsibility of hospitals and other healthcare institutions that their employees work in a safe environment. To ensure this, the employers must regularly undertake threat assessment, eliminate all possible risks by developing policies and programs that ensure health and safety of such workers. Various contingency plans should also be put into place in case of any incident of violence along with proper reporting mechanisms and counselling services. Since the violence against health professionals is a wider public issue, an attempt must also be made to create awareness amongst the public at large regarding the various challenges the medical fraternity faces, especially during these unprecedented times. In many situations, it was observed that the unavailability of medical infrastructure was the cause behind ineffective medical care provided to a patient. The lack of oxygen support, unavailability of hospital beds or medicines is not a deficiency in service by a professional but rather an implication of the underdeveloped medical infrastructure of the country. Violence against the medical professionals of the country, as a result, will bring down the morale of these "Corona warriors" and may even discourage young medical professionals from joining this noble profession. At this juncture, it is important to mention that it is the duty of the government to ensure that medical supplies are readily available at this critical moment in time. This will help ensure adequate medical care to the patients and can also significantly reduce cases of violence against the members of the medical fraternity. Thus, one can see that there are various reasons for violence against healthcare professionals including lack of medical facilities, medical negligence and sometimes, even the inability of the general public in understanding the challenges being faced by them. While there are various Regulations that elaborate on the responsibilities of the doctors and other medical staff, the legislations relating to safeguards of these professionals are highly ineffective as they rely on a two hundred years old legislation as a guiding light. This, combined with the general ignorance and apathy towards the medical staff of the country has led to instances where the professionals have been beaten up, or worse, killed. The mounting pressure on the medical professionals coupled with inadequate infrastructure and looming threat of violence can spell doom in the nation's fight against the Covid-19 pandemic. What is needed is a zero tolerance approach towards this barbarism while ensuring adequate healthcare facilities and treatment is available to every citizen of this country which can be achieved only with the active participation of all the stakeholders of the nation and by framing new legislations that are adept to deal with the issues faced by medical professionals in the contemporary world.
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