BNS protection provision can be invoked in case of alleged medical negligence: IMA urges PM

New Delhi: The Indian Medical Association (IMA) has written to Prime Minister Narendra Modi stressing that an investigating officer should invoke the protective provision under the Bharatiya Nyaya Sanhita in cases of alleged criminal medical negligence.

The IMA stressed that there is no criminal intent (mens rhea) on the part of a doctor when treating a patient and there is no negligence that could lead to criminal prosecution.

“Union Home Minister Amit Shah ji has admitted in Parliament that death during treatment is not murder. The new BNS legislation proposed by your government reflects this aspect in Section 26. The IMA requests the government to kindly allow the investigating officer to invoke this provision in cases of alleged medical negligence. In rare cases which could be considered as negligence, the investigating officer may refer the matter to an expert committee for its opinion,” the IMA said in the letter sent recently.

Contacted, IMA President Dr RV Asokan said that Section 26 of the BNS clearly states that doctors do not come under the ambit of criminal law and demanded that the provision of Section 106.1 be deleted so that doctors are exempted from criminal prosecution.

“At present, the police charge doctors under Section 106.1 in cases of alleged criminal medical negligence and do not comply with the provisions of Section 26. A crime must necessarily have a criminal intent (mens rhea). In the absence of mens rhea (criminal intent), doctors can only be held liable under civil law (Torts Act). Accordingly, the IMA is committed to working towards exempting doctors from criminal prosecution,” Dr Asokan said.

The IMA also stressed in its letter that doctors in the country are, however, going through difficult times in the exercise of their profession and that there is an atmosphere of fear and mistrust in hospitals.

Violence against doctors and hospitals has reached epidemic proportions and constitutes a “national disgrace.”

“Your government had initiated a bill on violence against doctors and hospitals. It was even put out for public comment. However, the bill has not yet been introduced in Parliament. Your government has also protected doctors during the senseless violence during Covid by amending the Epidemic Diseases Act, 1897.

“A central law in the law on attacks on doctors and hospitals would be a deterrent and strengthen the laws of the lame duck states in 23 states. Virtually no convictions have been secured despite numerous violent incidents,” the IMA letter said.