Doctors practising modern medicine have objected to a section in the Bharatiya Nyaya Sanhita (BNS), which will replace the Indian Penal Code (IPC), on World Doctors’ Day on July 1.

Section 304 A of the IPC will be replaced with Section 106 (1) in the BNS. Under Section 304 A, whoever causes the 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 two years, or with fine, or with both.

Section 106 of the BNS says, 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. “Registered medical practitioner” has been defined as a medical practitioner 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 that Act. Thus, under BNS, if found guilty, imprisonment could be mandatory.

In a letter to Prime Minister Narendra Modi on June 29, the Indian Medical Association (IMA) pointed out that there would be no criminal intent on the part of the doctor while treating a patient. “There is no negligence to attract criminal prosecution,” the letter said. IMA national president R.V. Ashokan and general secretary Anil Kumar J. Nayak said in the letter that Union Home Minister Amit Shah had acknowledged in Parliament that death during treatment was not murder. Section 26 in the BNS reflects on this aspect, as it talks about an “Act not intended to cause death, done by consent in good faith for person’s benefit”. The IMA functionaries suggested that the investigating officer shall invoke this provision in cases of alleged medical negligence. In the rarest of rare cases, which might be considered as recklessness, the investigating officer could refer the case to an expert committee for opinion. Some State governments have a circular memorandum putting in place a district-level body under the district medical officer and a State-level appellate body under the Director of Health Services to examine such cases. High Courts have upheld the legality of the procedure. A similar circular memorandum from the Union government would provide legitimate protection and facilitate crucial decisions in critical moments, they added.

Source: https://www.thehindu.com/news/national/kerala/doctors-object-to-penal-provision-in-bharatiya-nyaya-sanhita/article68351966.ece