Draft guidelines: Obligations of doctors/hospitals concerning seriously ill/injured persons

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It may be noted that in the case of Pt. Parmanand Katara v. Union of India [AIR 1989 SC 2039], the Medical Council of India (MCI) has submitted and that has been recorded in the judgment of the Hon’ble Supreme Court as under:

“It is further submitted that it is for the Government of India to take necessary and immediate steps to amend various provisions of law which come in the way of Government Doctors as well as other doctors in private hospitals or public hospitals to attend the injured/serious persons immediately without waiting for the police report or completion of police formalities. They should be free from fear that they would be unnecessarily harassed or prosecuted for doing his duty without first complying with the police formalities….. It is further submitted that a doctor should not feel himself handicapped in extending immediate help in such cases fearing that he would be harassed by the Police or dragged to Court in such a case. It is submitted that Evidence Act should also be so amended as to provide that the Doctor’s diary maintained in regular course by him in respect of the accident cases would be accepted by the courts in evidence without insisting the doctors being present to prove the same or subject himself to cross-examination/ harassment for long period of time.”

Whereas, the Council after consultation with the representatives of the Indian Medical Association has prepared the annexed format for Medico-legal cases that may be included as an Annexure to the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. The suggested format is annexed (as below).

In order that, this record be considered as evidence in Court’s proceedings, without requiring the concerned registered medical practitioner to attend Court’s proceedings, it must be ensured that the Record is legible. Therefore, a typed copy of the record should be submitted to the Court. Further, in criminal cases, information regarding the nature of injury is crucial. Therefore, in the Medico-Legal Case Sheet/Doctor’s Diary that is prepared the Registered Medical Practitioner should clearly record:

i. Findings
ii. Diagnosis
iii. Reasons for declaring the injury as simple/grievous
iv. Whether such injury is caused by accident/assault/unascertainab

A proposal in this regard if deemed appropriate may be drafted by the Ministry of Law and Justice for amending the Indian Evidence Act, 1972, in a time bound manner considering the requirement of criminal investigation and trial. The above proposal after approval of the General Body of the Council be transmitted to the Ministry of Health and Family Welfare, Government of India for appropriate action at their end.

Suggested Format for Medico-Legal Cases

1. Name of the patient:

2. Age:

3. Sex:

4. Identification Marks (i) (ii)

5. Address:

6. Occupation:

7. Brought by:

8. Date of 1st visit:

9. History:

10. Clinical note (summary) of the case:

11. Prov.: Diagnosis:

12. Investigations advised with reports:

13. Diagnosis after investigation:

14. Nature of Injury:

15. Advice: (Including Procedure Done)

16. Reasons for declaring the injury as simple/grievous

17. Whether the injury is caused by accident/assault/unascertainable

18. Whether the injury under reference can be caused by other means also?

19. Follow up:

20. Observations:

21. Date:

Signature in full ………………………….

Name and Designation of Treating Physician:
Registration No:
Registered with (Council Name):
Name and Place of the Hospital:

Note: The entries made in the above format should be typed.

Draft guidelines for prosecution under 304 A

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Guidelines for protecting doctors from frivolous or unjust prosecution against medical negligence

WHEREAS, the Hon’ble Supreme Court in Jacob Mathew vs. State of Punjab [AIR 2005 SC 3189] had observed that statutory rules or executive instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India;

WHEREAS, the Hon’ble Supreme Court had, “so long as it is not done”, proceeded to lay down certain guidelines which should govern the prosecution of doctors for offences for which criminal rashness or negligence is as ingredient. The following guidelines were laid down:

“A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam’s test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner [simply because a charge has been leveled against him]. Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.”

WHEREAS, the Government of India, Ministry of Health and Family Welfare, vide its letter dated 11.07.2012 has asked the Medical Council of India to suggest guidelines, which need to be framed for protecting doctors against frivolous complaints/prosecution;

THEREFORE, the Medical Council of India proposes the following guidelines to be observed by the prosecuting agencies for protecting doctors against frivolous complaints/prosecution:-

1. The Prosecuting Agency on receipt of any complaint of which criminal rashness or negligence is an ingredient against a registered medical practitioner under the Indian Medical Council Act, 1956 prior to making arrest refer the complaint to the Chief Medical Officer of a District who shall place it before the District Medical Board for its recommendations as regards the merit of the allegations of criminal rashness or negligence, contained in the complaint.
2. The District Medical Board on receipt of such reference examine the allegation contained therein in a time-bound manner, preferably within two-weeks, and thereafter forward its recommendation to the Prosecuting Agency through the Chief Medical Officer of the District.
3. The District Medical Board that has examined the complaint must ensure a Doctor qualified in that branch of medical science is part of the Board.
4. The Prosecuting Agency, in case, it is dissatisfied with the recommendation of the District Medical Board may stating the reasons for such dissatisfaction refer the matter to the Divisional Medical Board for its recommendation within a period of three-weeks from the date of receipt of recommendation of the District Medical Board.
5. The Divisional Medical Board, on receipt of any such reference from the Prosecuting Agency would examine the matter within a period of three-weeks from the date of receipt of such reference. The Divisional Medical Board shall provide reason for endorsing or rejecting the recommendation of the District Medical Board. The decision of the Divisional Medical Board shall expeditiously be conveyed to the prosecuting agency, and in any case not later than four-weeks from the date of receipt of reference made by the prosecuting agency.
6. The Prosecuting Agency, in case, it is it is dissatisfied with the recommendation of the Divisional Medical Board may stating the reasons for such dissatisfaction refer the matter to the State Medical Board for its recommendation within a period of four-weeks from the date of receipt of recommendation of the Divisional Medical Board.
7. The State Medical Board, on receipt of any such reference from the Prosecuting Agency would examine the matter within a period of four-weeks from the date of receipt of such reference. The State Medical Board shall provide reason for endorsing or rejecting the recommendation of the Divisional Medical Board. The decision of the State Medical Board shall be expeditiously conveyed to the prosecuting agency, and in any case not later than five-weeks from the date of receipt of reference made by the prosecuting agency.
8. The Prosecuting Agency on the receipt of Recommendation of the District/Divisional/State Medical Board further proceed in the matter in accordance with law. However, in case arrest of a registered medical practitioner in the employment of State/Central Government is being made, the Controlling Officer of such Medical Practitioner would be informed by the Prosecuting Agency. Likewise, in case, the registered medical practitioner is engaged in private practice, the concerned State Medical Council, or in case there is no State Medical Council in that State/Union Territory, the Medical Council of India be informed. The above-said guidelines may if deemed appropriate be notified by the Union of India under the Code of Criminal Procedure, 1973.

The Time for Satyagraha is over

Health Care Comments Off

Dr KK Aggarwal
From Tokyo

Dear Colleague

This is one of the toughest times for our medical profession. We seem to be in a Do or Die situation. It’s time that we all wake up because the countdown as begun.

CWC Agenda for actions

• Non implementation of inter-ministerial committee recommendations so far by the government of India
• Reaction of the DGHS towards IMA in the last meeting of the National Council for Clinical Establishments.
• No action on PNDT Act: Government itself has gone for a special
• and has halted inter-ministerial decisions
• Government not taking seriously considering a central act against violence
• Capping of compensation clause still far from a reality
• Criminalization of medical practice practically in every law
• JIMA not reaching even the office bearers and projecting losses without sanction
• NMC likely to come in November despite all agitations and likely to bring AYUSH as back door entry.
• Exit test likely to be introduced in spite of all representations by IMA
• Most states allowing AYUSH to prescribe modern drugs
• West Bengal Clinical Establishment Act not community friendly
• Karnataka Clinical Establishment Act, if enacted, will be like West Bengal CEA
• DGHS and National Council for CEA trying to allow non MBBS to sign path and micro lab reports?
• No uniform code for doctors and medical establishments
• MP slapping the doctor made the minister of state in Ministry of Skills Development and Entrepreneurship

Opinion

• Continue Satyagraha
• Protest, Protest and Protest ‘IMA Andolan’

I personally feel that the time for Satyagraha is over.

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