Should IPC Section 304A be applicable to doctors?

Dr Alok Chatterjee

The question has caused heated debates throughout the medical community, as well as involving specific, if not partisan position from the police and the legal community. Newspapers almost always carry stories of doctors being charged with negligence in delivering proper medical care to his patient. In the most oft-repeated scenario, the patient complains to the police who frames a charge under section 304A of the IPC and arrests the practitioner. However, when a doctor’s chamber or house or clinic is ransacked or attacked, the same police remains a silent spectator and the doctor has to bear the humiliations of constant barracking and harassment from hooligans, if he dares to pursue criminal action against the attackers. This then is the sorry scenario in which we have to examine whether section 304A can apply to medical negligence or not.

Instances of arrests of doctors for “rash and negligent act, causing death”, considered a criminal offence under Section 304A of the Indian Penal Code have been on the rise in the past few years. Although, medical negligence is an undesirable phenomenon plaguing the profession today, and should be dealt harshly, the spate of arrests under Section 304A is affecting the profession and is causing ripples of discontent which needs to be addressed.

Like most cases of negligence, medical negligence have civil, criminal and in recent times, consumer aspects. However, of all the remedies available, the criminal remedy is the harshest. At the same time, in terms of proof, it would be the hardest to prove. Whereas in a civil case, all the Plaintiff has to prove is that the “pre-pondence of probabilities” points to the liability of the defendant, the prosecutor has to prove a criminal case “beyond all reasonable doubt”. Given the nature of medical negligence, it is doubtful that such a standard of proof can be achieved in a court of law. This is evident by the fact that a 304A conviction is rarely if ever passed against a doctor and if so only in cases of gross negligence.

In legal terms, section 304A embraces what is called “involuntary manslaughter” in the United States, where death is caused but there was no clear intention to cause death. However, there must be an element of mental involvement in the act, failing which the same cannot be considered a crime. In criminal law, Actus non facit reum, nisi mens sit rea, a guilty act is not a criminal act, if there is no mental element involved. Therefore, the mental standard required in Section 304A is that of “wanton disregard to human life” for example- A motorist driving his car at a furious speed. If he does so in an empty highway and thus causes an accident he cannot be held to be guilty of a rash and negligent act. However, if he does so in a crowded city street, where he is aware that the chances of an accident are high, he would be guilty of an offence under section 304A.

How then, does section 304A apply to the medical profession? It does so if a medical practitioner acts with gross disregard to his duties towards his patient, leading to the death of the patient. It must be remembered that in all cases the Court judges the conduct of the doctor from the point of view of a reasonable man, i.e. it will ask whether a reasonable man in the position of the doctor would have acted in the way he did. The Hon’ble Supreme Court has held that “the skill of a medical practitioner differs from person to person” and “Courts would indeed be slow in attributing negligence on the part of the doctor if he has performed his duties to the best of his ability and with due care and caution”. [A H Khedwa Vs State of Maharashtra, (1996)]. It is unnecessary at this stage to go through all the duties, which is required from a doctor; suffice it to say that his duties include attending his patient; to be diligent in the choice of treatment and careful at every stage of the treatment process.

In this regard, it should be useful now to examine the recent judgement of the Supreme Court. On August 4, 2004, the Court held in Dr Suresh Gupta’s Criminal Appeal [Appeal (crl.) 778 of 2004] that to sustain a prosecution for offence under Section 304A of the Indian Penal Code (IPC), and to fix criminal liability on a doctor or surgeon or anaesthesiologist, the standard of negligence required to be proved should be so high that it can be described as ‘gross negligence’ or ‘recklessness’, not merely lack of necessary care. With this judgement, the Court raised the standard of proof required to prove medical negligence to a higher degree, commenting that a criminal remedy can be used only in very rare cases.

The Court held that every careless act of a medical person cannot be termed ‘criminal’. It can be termed ‘criminal’ only when doctors exhibit gross lack of competence or inaction, and wanton indifference to their patient’s safety, as a result of gross ignorance or gross negligence. When a patient’s death results merely from an error of judgement or an accident, no criminal liability should be attached to it.

Mere inadvertence or some degree of want of adequate care and caution might create civil liability; but not criminal liability. It was held that but for this approach, the hazards in the medical profession, which include civil liability, would also unreasonably extend to criminal liability, and doctors would then be at the risk of landing up in prison, a result that would shake the mutual confidence between doctor and patient.

Any discussion with respect to section 304A must necessarily also include an examination of two other provisions of the IPC, termed as defences, since they operate to remove the liability of the perpetrator by establishing circumstances in which criminal liability does not exist.

The first of these is section 80 of the IPC, which states that ‘nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act, in a lawful manner, by lawful means with proper care and caution.’ In other words, if a person commits an act by accident or misfortune without a criminal intention, using lawful means and with proper care and caution, his action cannot be labelled a criminal offence.

Further, Section 88 of the IPC provides that nothing which is not intended to cause death, is an offence by reason of any harm, which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm.

In other words, an act, not intended to cause death, and done in good faith and with the consent of the other party, cannot be labelled an offence even if it leads to the other party’s death or disability. It may also be mentioned here that the word ‘good faith’ used here has a special meaning. It means an act done with due care and attention will not make the practitioner criminally liable.

Therefore, the remedy under Section 304A will be available in the most extreme of cases, where the medical professional has acted in the most grossly negligent manner. Further, 304A is a cognizable offence, which means that the police can act without a warrant for arrest. Therefore, it is proposed that the Indian Penal Code be amended in such manner that for cases involving complaint with respect to medical negligence, a warrant for arrest from a magistrate would be required before the practitioner could be arrested, i.e. the offence be made a non-cognizable offence. The other alternative is to have a separate legislation covering medical negligence in both its civil and criminal dimensions, with adequate safeguards to protect the profession.

The author is president, Association of Health Services Doctors, West Bengal and senior anaesthesiologist with Sambhu Nath Pandit Hospital, Kolkata