New Delhi: The Bharatiya Nyaya (Second) Sanhita (BNS), 2023, passed by the Lok Sabha Wednesday prescribes a reduced jail term of two years for doctors charged with causing death by medical negligence as compared to other offenders for the same crime.
An amendment has been made in Section 106 (1) of BNS, 2023, that deals with “causing death by negligence”, which makes a differentiation between a doctor and any other person causing death “by doing any rash or negligent act not amounting to culpable homicide”.
The amended text of the BNS, 2023, was made public Thursday.
It states, “Whoever causes 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 five years, and shall also be liable to fine; and 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.
The section further defines “registered medical practitioner” as a person 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 the Act.
Subsection 2 of section 106 of BNS also prescribes a more stringent punishment — a jail term of 10 years and a fine — for somebody who causes death of any person by rash and negligent driving of vehicle not amounting to culpable homicide, and who escapes without reporting it to a police officer or a Magistrate soon after the incident.
The BNS, which seeks to replace the Indian Penal Code (IPC), 1860, was among the three crucial criminal law bills that the Lok Sabha passed Wednesday. The Bill — along with the Bharatiya Nagarika Suraksha Sanhita to replace the Code of Criminal Procedure, 1973, and the Bharatiya Sakshya (Second) Bill to replace the Indian Evidence Act, 1872 — is being discussed for passage in Rajya Sabha today.
While replying to a discussion on the three new criminal law bills in Lok Sabha earlier, Union Home Minister Amit Shah said that the government was introducing an amendment in the BNS to in keeping with the request made by the Indian Medical Association (IMA).
Last year, the IMA had written to Prime Minister Narendra Modi requesting that doctors be exempted from criminal proceedings in the BNS, 2023. The association had also sent its suggestion to the government last month, when the draft bill was released for public feedback.
“If a patient’s death was caused because of doctor’s negligence, it also came under the clause of murder committed unintentionally for which we have increased the punishment in the new law to 10 years… I am bringing an amendment to the law to free doctors from the ambit of this clause… IMA had sent us a memorandum regarding this,” Shah told the Lok Sabha.
In its letter, the IMA said that the concept of mens rea (state of mind implying criminal intent) has to be applied in letter and spirit for any duly qualified and Registered Medical practitioner. Mens rea, or the intention of wrongdoing, along with actus reus (the actual act) constitute the two essential ingredients of a criminal offence.
“Absence of mens rea in a case of a medical mishap or accident is too evident to be ignored,” IMA wrote to the PM, also urging for a “safe and amiable atmosphere” for doctors to practice their profession “without fear of criminal prosecution”.
IMA president Dr Sharad Kumar Agarwal welcomed the new provision favouring doctors and said it was a result of a long-pending demand by the association and lakhs of doctors.
“It has been really unfair that those responsible for negligent driving and doctors accused of medical negligence have been treated with the same provision of the IPC so far,” Agarwal told ThePrint.
The new provision could mean, he said, that doctors will be treated fairly. “Though no data could be available on the number of doctors charged for medical negligence, thousands have borne the brunt,” he said.
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‘Doctors take calculated risks’
In its letter last year, the association had said that causing the death of a patient without mens rea cannot be termed a criminal act.
“No police officer should be able to conduct inquiry or investigation into alleged medical negligence offence committed by a qualified and registered medical practitioner without prior opinion of gross negligence specified by an expert committee, as per the recommendations of the NMC (National Medical Commission) to MoHFW (Ministry of Health and Family Welfare),” the IMA’s letter said, adding that only the statutory bodies such as State Councils/ NMC should be empowered to refer criminal negligence cases to be filed in criminal courts after prima facie finding an element of gross negligence.
“Doctors must often take a calculated risk and make decisions to treat a patient, failing which the situation could become more complicated. Therefore, it becomes difficult to define gross negligence,” the letter said.
It cited Section 88 of the IPC, which protects doctors from criminal liability when the act is done with good intention.
“Therefore, Section 304A and similar sections of the IPC should be treated only with Section 88. In this context, there is a definite need for appropriate legislation to exclude the medical profession from criminal liability,” the letter said.
This report has been updated in accordance with the amended text of the Bharatiya Nyaya (Second) Sanhita (BNS), 2023, which was made public Thursday.
(Edited by Uttara Ramaswamy)
Doctor’s are claiming special protection for themselves basis lack of mens rea. But when talking about negligence, mens rea basically refers to failure to take reasonable care. If a doctor fails to take reasonable care, which results in injury to a patient, then a doctor should be treated as everyone else. After all people are equal before law and while protection of doctors is important, protection of patients is equally important.
so those doctors who are new pass outs and conduct surgeries are not criminals even if a patient dies. that mean dr. kafeel is no more a criminal then though he was made a scapegoat in a false case.
what about doctors who do abortions risking woman’s life ?, doctors who do abortions of illegitimate child ?, doctors who are into human organ sale rackets?…