The Supreme Court’s vacation bench comprising Justices Deepak Gupta and Justice Surya Kant, on Tuesday, found no urgency in taking up the petition seeking greater security for doctors, as the strike by the medical fraternity in West Bengal and in some other States has been called off.
“List the matter after summer vacation, before appropriate Bench”, the Judges said in their order. As the petitioner, Alakh Alok Srivastava, who argued in person, sought to persuade the bench not to wait for another incident to happen, the bench observed: “Let it happen. We can’t pass an order that nobody should be murdered.”
Read: After Mamata Meeting, West Bengal Doctors Agree to Call off Strike
The bench asked how it could direct the police to provide security to doctors without ascertaining what is its strength in the respective states, and whether it is feasible if the strength is inadequate. “We can’t put other citizens to risk for the sake of protecting the doctors. We are not against your prayer, but we can’t pass an order without knowing what is the security required, and who will provide that security”, the bench told the petitioner.
IMA expresses inclination to intervene
The Indian Medical Association (IMA), through its senior counsel, Suryanarayana Singh and Nitesh Jain, expressed its inclination to intervene in the matter in the form of an Interlocutory Application (IA). The IMA has since 2015 urged the Centre to enact a law to ensure protection of doctors from violence. It submitted a draft Bill, “The Protection of Medical Service Persons and Medical Service Institutions (Prevention of Violence and Damage or Loss of Property) Act, 2015” for the Centre’s consideration. The IMA is the national association of more than 3 lakh modern medicine doctors with 1,700 branches.
On June 15, the Union health minister, Harsh Vardhan asked states to consider enacting specific legislation on the model of the IMA’s draft Bill. Since “police” and “public order” are state subjects, it appears, the Centre is reluctant to enact a law on the subject, as recommended by a 14-member inter-ministerial committee in 2016. This committee, constituted under the chairmanship of additional secretary (health) Dr Arun Kumar Panda, to examine the issues raised by IMA, finalised its report on March 30, 2016. It held another meeting to clarify the IMA’s concerns on December 23, 2016.
The Centre was of the view that the Indian Penal Code (IPC) does not provide punishment for offences committed against any specific category of professionals. The committee, however, recommended that the Union Ministry of Health and Family Welfare should write to all state governments to strictly enforce the provisions of special legislation wherever they exist and/or enforce the IPC/Cr.P.C. provisions with vigour.
“In addition, the Ministry of Health and Family Welfare shall explore the possibility to initiate the process to bring a Central Act on the said issue in line with those in vogue in other States”, the committee recommended.
19 states have already passed legislation
According to the IMA, 19 states have already passed legislations in this regard. “Hospitals should be declared as ‘safe zones’. Structured safety measures including 3-layer security, CCTVs and restriction of entry of visitors should be well-defined and enforced uniformly across the country in all sectors”, Dr R.V. Asokan, honorary secretary general of the IMA, wrote to home minister Amit Shah on June 17.
Saying that healthcare violence has its origin in high expectations, lack of infrastructure and inadequate human resources, the IMA urged the Centre to provide for doctor-patient relationship, effective communication regarding nature of illness and professional counselling.
In its letter to Harsh Vardhan, the IMA has emphasised that limitations of infrastructure and human resources force doctors to spend less time with the patients, and hence the chances of doctor-patient conflicts are very high.
Watch: Doctors’ Strike and the Display of Enmity Through Cricket
Ironically, after rationalising the conflicts, the IMA warned that any form of violence against medical profession and facilities will be counter-productive, demoralising the health providers taking away their confidence and courage, especially in critical situations. “Ultimately, the situation will adversely impact on the patient care and safety”, the IMA told the minister.
The states which have enacted laws to protect doctors include Andhra Pradesh, Assam, Bihar, Chhattisgarh, Delhi, Goa, Gujarat, Haryana, Karnataka, Madhya Pradesh, Maharashtra, Orissa, Puducherry, Punjab, Tamil Nadu, Tripura, Uttar Pradesh and West Bengal.
The West Bengal Medicare Service Persons and Medicare Service Institutions (Prevention of Violence and Damage to Property) Act, 2009 declares any violent act against doctors as cognizable and non-bailable offence, and imposes a punishment of imprisonment which may extend to three years and with a fine up to Rs 50,000 on those found guilty.
While most states have similar punitive provisions, laws in Tamil Nadu and Puducherry seek to impose imprisonment for a minimum term of three years with maximum of ten years.
Effectiveness of legislation
The fact that the IMA called for an all-India strike following an incident in West Bengal – despite the presence of a state legislation to protect doctors enacted way back in 2009 – has called into question the effectiveness of such legislation.
In 2015, the IMA claimed that its survey of doctors – as revealed from 1,739 responses it received from all over India – led to shocking findings. About 45.4% of the doctors feared possible violence; 24.6% feared being sued and 13.5% feared criminal prosecution. Only 16.6% of doctors, the IMA said, reported no stress of any kind in the performance of their duties.
It is debatable whether a National Medical Tribunal comprising experts – as recommended by IMA – in place of the consumer courts, which currently hear grievances of medical negligence, could offer a way out.