By: Aastha Singh
Amid the worldwide crisis resulting from COVID- 19 pandemic, most nations, including India, are under a complete lockdown. While everyone is advised to stay home to prevent the risk of community transfer, the doctors, nurses and medical staffs have been working, selflessly, week in and week out. However, their selflessness goes undermined as they are attacked by the patients or their families. Although the Government has been taking initiatives to motivate them, a legislative framework should be implemented to ensure their safety from the threat of the virus and also the violence against them. In 2019, the Ministry of Health and Family Welfare (hereinafter “the Ministry”), had proposed the ‘Health Services Personnel and Clinical Establishments (Prohibition of Violence and Damage of Property) Bill’ (hereinafter “the Bill”), which contained stringent provisions for safeguarding healthcare personnel. In this article, the author seeks to highlight some of the striking features of the bill and why it is important to implement the same at this moment.
THE DARK REALITY – STRUGGLES OF MEDICAL PROFESSIONALS
Amidst this pandemic, the problem is buoyant enough to know the right idea of protection against violence towards medical professionals. Violence against doctors at their workplace is not a new phenomenon, but the fear and the misinformation about the novel virus have increased it substantially.
Various media reports have brought it into attention that there aren’t enough Personal Protection Equipments (PPE) for the doctors and nurses and that they are misbehaved with. There have also been instances of stone-pelting and spitting on the doctors which, in fact, is truly shameful. Therefore, it is the duty of the government to take some effective steps to create deterrence against such unruly acts.
EXISTING LEGAL FRAMEWORK AND THE DRAFT BILL OF PROTECTION AGAINST HEALTHCARE PROFESSIONALS, 2019
The Central Bill of Protection against Healthcare Professionals, 2019 was released in the Winter Session of 2019 by the Ministry but was inclined towards the negative side on the call for its implementation. Since 2008, the Union Territory of Delhi also has a similar, separate legislation. It provides for the protection of healthcare personnel as well as hospital properties. This Act defines ‘violence’ to be any act that injures, harms, intimidates or obstructs the healthcare personnel from discharging their medical duty, and ensures liability of the offenders therein.
On the other hand, the Bill mentions such violent acts against doctors to be cognizable and non-bailable. At present, provisions to protect the interest of the public servants are contained in the Indian Penal Code, 1860 (hereinafter “IPC”), the primary criminal legislation of the land. Section 332 and 353 of the IPC provide for voluntarily causing hurt and assault or criminal force, respectively that deter the ‘public servant’ to discharge their duty. Section 186 provides for a punishment extending up to three months, or a fine up to Rs. 500 or both in case of voluntarily obstructing any public servant from discharging public functions. Summing up these provisions brings out minimal remedies and that too only for ‘public servants’, i.e. in the present case- the doctors, nurses and healthcare workers that work in the government hospitals only. These provisions of the IPC never looked into the technical aspects of healthcare professionals working in the private sectors, as they do not come under the ambit of ‘public servant’ defined under Section 21 of the IPC. For the private medical staffs facing violence, only provisions of assault and hurt could be applied, which carry significantly less stringent punishments and deterrence.
In the United States, the Occupational Safety and Health Administration provides guidelines to reduce the risk of workplace violence in health care workers as well. However, these guidelines being merely voluntary are not binding. Although there are certain laws that are designed to prevent violence in the health care workplace, only a handful of states, like New York, Illinois, California, etc have adopted it. An evaluation by the policymakers in California revealed that there has been a 49% decrease in the assault rate in emergency ward after the enactment of the California Hospital Safety and Security Act of 1995. This model was then, in 2019, proposed as the national law
In the United Kingdom, there is no specific provision that mentions or engages assault on public servants, yet the scenario there is better and cases of assault on doctors are dealt with stringently. In one case in the UK, the Court of Appeals referred to the Criminal Justice Act along with Offences against Persons Act and held that 6 months imprisonment was the appropriate sentence for assault and actual bodily harm. The UK has very clear legislation which brings out that there are three basic types of assault offence set out in law – common assault, actual bodily harm and wounding / grievous bodily harm. They are primarily defined by the harm caused to the victim – with common assault at the lower limit and grievous bodily harm at the upper limit. Any such of these acts along with verbal abuse to ambulance crew members will be held liable and punished with imprisonment for not less than 15 months.
In the UK too, there is a similar problem of distinction between professionals engaged in public healthcare and those engaged in private healthcare. But the situation in the UK is far better, than the existing provisions of the IPC or similar laws that currently exist in India have seen limited enforcement as well as limited value in deterring the acts of violence just like the US laws.
HOW COULD THE DRAFT BILL OF 2019 AFFECT THE SITUATION?
Section (1)(3) of the Bill covers clinical establishments that are either registered under the Clinical Establishments (Registration and Regulation) Act, 2010 or under any State Legislation and Section 3(b)(i) mentions medical practitioners that have recognised medical qualifications under the Indian Medical Council Act, both provide for the wider ambit of protection of doctors in public as well as private sectors, unlike just public servants under IPC. The ambit of ‘clinical establishments’ on State Act’s perspective should be made clearer as not all states have the mandatory registration requirements. Doing so, will expand the ambit and cover more practitioners than just mere public servants as done under IPC.
Section 3(d)(ii) which defines violence includes any obstruction or hindrance to healthcare personnel while discharging his/her duty, which adds onto a collective and precise definition of violence as merely mentioned in IPC. Similarly, section 4 prohibits persons from indulging in an act of violence or causing any damage or loss to the property of clinical establishments, both public as well as private unlike Prevention of Damage to Public Property Act, 1984 which covers only public hospitals.
Furthermore, the punishment under Section 5(1), provides a mandatory sentence for a minimum period of six months and three years for acts of violence and grievous hurt respectively. If any person causes grievous hurt to a healthcare service professional, he will be imprisoned for a period between three years to ten years, along with a fine between two to ten lakh rupees. Whereas, under general IPC provisions, an individual who commits grievous hurt is punishable with imprisonment of up to seven years, along with a fine and only three months or fine up to rupees five hundred for causing assault. Section 7 specifies that any punishment for an offence committed under this Bill shall be cognizable and non-bailable. Essentially, the draft bill encompasses provisions specifically safeguarding the healthcare personal by making stringent laws, unlike the pre-existing overall penal laws regime.
At present, violence against medical professionals is addressed through a combination of general laws like the IPC and special state laws with focus only on violence on such professionals. The Draft Bill, however, differs from existing applicable provisions of the IPC with regard to the severity of punishment, i.e. increased sentence of imprisonment and higher quantum of fines. Secondly, it also differs on the basis of its classification of offences. While, the IPC defines hurt, grievous hurt, damage to property etc differently, the Draft Bill combines all of them under the common definition of ‘violence’.
Although the Ministry has shown reluctance to enact a special law to deal with violence against members of a specific profession considering IPC to be sufficient for such cases, the severity of the present unprecedented and extraordinary situation calls for ensuring the protection of these healthcare professionals who are no less than saviours of mankind in these times of crisis. It is now the ultimate need of the hour to bring the ‘Health Services Personnel and Clinical Establishments (Prohibition of Violence and Damage of Property) Bill’ into enactment with appropriate discussions and in strict sense and clarity.
(Aastha is currently a law undergraduate at Gujarat National Law University, Gandhinagar. She may be contacted at firstname.lastname@example.org.)
Cite as: Aastha Singh, ‘Protection of Healthcare Personnel against Violence- A Wake-Up Call Amidst Crisis’ (The RMLNLU Law Review Blog, 18 May 2020) <https://rmlnlulawreview.wordpress.com/2020/05/18/protection-of-healthcare-personnel-against-violence-a-wake-up-call-amidst-crisis > date of access.