By Sanjay Raman Sinha
The gruesome rape and murder of Kolkata trainee doctor has swung the focus back on the healthcare sector in India. After the nationwide uproar, the Supreme Court recently took suo motu cognizance of the matter and instructed to develop a protocol to safeguard the interests of medical personnel and ensure their safety. The Court constituted a National Task Force (NTF) to look into the matter.
In a order dated August 20, 2024, the bench of Chief Justice of India DY Chandrachud, JB Pardiwala and Manoj Misra stated: “The NTF shall formulate effective recommendations to remedy the issues of concern pertaining to safety, working conditions and well-being of medical professionals and other cognate matters highlighted. The NTF shall while doing so, consider to prepare an action-plan. The action-plan may be categorized under two heads:
(I) Preventing violence, including gender-based violence against medical professionals; and
(II) Providing an enforceable national protocol for dignified and safe working conditions for interns, residents, senior residents, doctors, nurses and all medical professionals.
“The NTF is requested to consult all stakeholders and submit an interim report within three weeks and the final report within two months from the date of this order.”
Further to this order, the central government hastily put together its act and held a meeting with DGPs and chief secretaries of all states and UTs. In the process, all stakeholders are being consulted and an interim report on security and working condition protocol is being developed. This may form the basis of a model pan-India legislation in the future.
The Supreme Court has suggested to identify hospitals with high frequency of visitors and upgrade their security, assess the possibility of employing security personnel from among ex-servicemen or state security forces, review existing legislation to protect medical workers, and auditing spaces/rooms in medical institutions to ensure they are not misused. Notwithstanding the fact that there exists a comprehensive set of laws to deal with the issues of the healthcare sector, problems are galore.
While speaking to India Legal, Sneha Kalita, advocate-on-record and counsel for Delhi Medical Association in the current case, explained: “The punishment and compensation (for victims) varies from state to state. In the pan-India legislation, it is expected that this aspect is standardized across states. Furthermore, a compensation fund similar to Nirbhaya Fund should also be formed to facilitate compensation to victims.”
An effort was made prior to Covid-19 outbreak to develop one such All India legislation. “In the said bill no mention was there for security of medical personnel. There was no provision for granting any kind of compensation to the family of the deceased healthcare workers or victim. No safety standards had been prescribed as a prerequisite for permission of setting up Medical Institution or Medical Colleges,” added Kalita.
During the Covid-19, attacks on healthcare personnel became a serious concern. This led to the amendment of the Epidemic Diseases Act, 1897, to include provisions for the protection of healthcare workers. The Act criminalizes violence against healthcare personnel and damage to property during epidemics. However, the Kolkata incident has highlighted the need for a major overhaul of the laws and norms which govern the healthcare sector and be specifically more sensitive to the concerns of healthcare personnel.
This highlights the need for a draft of “model legislation” for protecting healthcare professionals, as suggested by the Ministry of Home Affairs. It is also an opportunity to address the legal loopholes which allow perpetrators of violence to escape accountability. The protocol development can very well serve as a fruitful exercise for the proposed legislation.
While speaking to India Legal, Dr Naresh Chawla, vice-president, Delhi Medical Council, and former national joint secretary, Indian Medical Association, said: “Although protection of healthcare professionals has been a long felt demand, but after the August Kolkata outrage, a comprehensive central act to protect the healthcare workers has been a demand made by the medical fraternity. Security of women doctors needs to be taken up on a war footing as they are the most vulnerable group. Accountability and responsibility needs to be fixed at every step. Strict implementation and enforcement, should be the byword. Identifying hospitals with high footfall and upgrading their security, exploring the possibility of employing security personnel from among ex-servicemen or state security forces and reviewing existing legislation to protect HCPs are utmost priorities.”
In the wake of the Kolkata horror, the West Bengal government passed the Aparajita Bill to strengthen laws against rape and sexual offenses. With this, West Bengal becomes the first state to amend central laws on such rape crimes. It is another story that the Bill has been hanging fire with the central government. West Bengal Governor CV Ananda Bose has not given his assent to the Bill, and has referred it to the president of India.
India’s healthcare laws primarily focus on regulating the medical profession and securing the rights of patients. However, laws protecting medical staff against violence are still evolving. For instance, the Medical Council of India Regulations, 2002, aim to safeguard the ethical standards of the medical profession, but lack any express provision for safety of medical staff. The Clinical Establishments (Registration and Regulation) Act, 2010, ensures the regulation of private healthcare establishments and provides for patient rights. However, it does not include provisions to stem violence against medical staff or doctors or ensure the safety of healthcare personnel.
Under the Constitution, health is a state subject. As such, it is the responsibility of the respective state governments to formulate laws and take cognizance of crime against medical staff and unethical practices. These laws basically look into licensing of medical facilities and compliance with certain minimum standards. These laws stress the regulation of the ever-expanding private healthcare industry. The government-run facilities generally don’t fall in their ambit.
Several states have introduced laws to protect healthcare workers, with Maharashtra being one of the first to enact the Maharashtra Medicare Service Persons and Medicare Service Institutions (Prevention of Violence and Damage or Loss to Property) Act, 2010. Similar acts have been adopted in states like Karnataka, West Bengal and Delhi. The Maharashtra Act has provisions for punitive action and up to three years of imprisonment and a fine of Rs 50,000 for assaults on healthcare professionals. The West Bengal Act (2009) has a similar provision with up to three years of imprisonment. The laws exist, but it is the implementation that is found wanting.
Since the laws are state specific, it depends on the political will of the respective states to ensure their optimum implementation. Right to health comes under the omnibus right to life provision of the Constitution. This obligates the judiciary to protect the rights regarding the health of citizens. Apart from the fundamental rights, the directive principles of state policies also impose the duty on the state to ensure the healthy wellbeing of its citizens. Often the cases have reached the portals of the judiciary and there have been efforts to dispense justice and suggest a framework for corrective policy measures.
In Dr Archana Sharma Suicide Case (Rajasthan, 2022) Dr Archana Sharma, a gynecologist, committed suicide after being wrongfully accused of medical negligence, following the death of a patient during childbirth. The case brought to the fore the immense pressure and harassment doctors face due to nebulous laws. After this tragic case, the then Rajasthan government decided to strengthen laws protecting healthcare workers.
In the West Bengal Doctor’s Strike (2019) case, a junior doctor was manhandled at the NRS Medical College and Hospital in Kolkata after a patient’s death. This led to nationwide protests by doctors demanding protection from violence. As a result of the strike and public pressure, the state government committed to strengthen laws protecting healthcare professionals, but as the recent Kolkata rape-murder incident highlights, the implementation of laws is lax.
In the Delhi Doctor Assault Case (2021), a senior doctor was assaulted by the relatives of a patient at a Delhi hospital. The case underlined how such incidents have invariably recurred despite the existence of state-specific laws. The case was closed without severe penal penalties, indicating the failure of existing laws to act as a deterrent.
Poor implementation of laws and the resultant dissatisfaction have not gone unnoticed. In 2010, the Clinical Establishments (Registration and Regulation) Act, 2010 (CEA) was enacted by Parliament. The law provided for a common regulatory structure for both the government and private sector medical facilities. However, since facilities regulation is constitutionally within the exclusive domain of the states, the CEA applies directly only to Union Territories (excluding Delhi as it has its own legislative assembly) and 12 states which have given their consent to the law. The remaining states have either continued with their own laws or brought their legislation in tune with the CEA 2010. Many have charted out a different legal path than that defined in the CEA 2010.
There is a dire need for a pan-India law that looks into the whole gamut of medical facility and medical personnel issues. Hence, the significance of the ongoing protocol development exercise and a future bill can’t be glossed over. It should be incumbent on all stakeholders to give in their inputs and work for a rigorous medical law which safeguards the interests of the consumers and medical professionals. However, without a serious commitment by the state to implement the laws, the effort may come to a naught. As the new comprehensive law is envisaged as a model pan-India law, it is assumed and hoped that a uniform legal framework will ensure a safer era in medical healthcare in the country.