A legal remedy unenforced

Mumbai: “The Malad incident really shook us up,” says Sudhir Naik, President of the Association of Medical Consultants, referring to the 2008 case when a doctor was dragged out on the streets by a mob who then blackened his face. In response, there was an immediate agitation by doctors, culminating in a protest march from St. George Hospital to Mantralaya in which more than 4000 doctors participated. Dr. Naik says, “We met the then-Home Minister R.R. Patil, who agreed to come up with an ordinance, and the Maharashtra Medicare Service Persons and Medicare Service Institutions (Prevention of Violence and Damage of Property) Act, came in 2010.”

S.C. Jamir, the Governor of Maharashtra at that time, said in his statement at the end of the act, that it proposes stringent punishment. “On account of the rampant increase in the attacks on Medicare Service Persons by some patients, their relatives and caretakers causing injury or danger to life of Medicare Service Persons and damage or loss to property of Medicare Service Institutions […] It is proposed to punish the offenders, who indulge in violence against Medicare Service Persons or damage or loss to the property of Medicare Service Institutions with punishment of imprisonment which may extend to three years and shall also be liable to fine which may extend to ₹50,000.” The Act also proposed to recover compensation for damage or loss caused to property of the institutions at twice the amount of damage or loss caused. Seven years later, the State government has said it will consider increasing the number of years of incarceration to seven years.

A law in name

Doctors point put, however, that in the years since the Act became law, there has not been a single case where those who have assaulted doctors have been prosecuted, let alone convicted. If the Act was meant to be a deterrent, it has failed. Also, doctors say, very little has been done to create awareness about the Act.

“There are so many legal remedies for a patient if a doctor indulges in any negligence,” Dr. Naik says. He points out that aggrieved patients or relatives in the state can file criminal cases, approach a consumer court, file a complaint at the Maharashtra Medical Council, or approach the Human Rights Commission or the Competition Commission of India; for women, there is also the option of going to the Maharashtra State Women’s Commission. “And all we have is this one Act, but the implementation of it is also questionable.”

Most hospitals and clinics use closed-circuit television camera in their premises. Since assaults and vandalism would be captured by these cameras, it should, theoretically, make it easier to get evidence of the crimes; and, Dr, Naik says, “Nearly 60% to 70% of the incidents happen in big government hospitals.” Even with such evidence, he says, there have been cases where the police officials flatly refuse to even lodge a complaint. “And when they do, the accused are granted bail. We need to have convictions in cases to act as a deterrent, and there is a need for fast-track courts with special public prosecutors to deal with such cases.”

Senior counsel Amit Desai agrees with this. “The Act can only be a deterrent if they fast-track these cases, just like we did with Section 138 of the Negotiable Instruments Act [which deals, broady, with bounced cheques]. These are not very complicated and complex cases. They do not need a lot of witnesses; with three to four witnesses you prove your case and you have direct evidence.” As to increasing the quantum of jail time for those found guilty, Mr. Desai says, “Increasing the number of years is a matter of perception; if you [jail] someone for even six months it will send a strong signal. Send people to jail for at least a year, and see the effect.” However, there must be actual convictions. “Before you have a track record of cases and conviction, you are already talking about increasing the number of years. This will not act as a deterrent.”

Sensitising the law enforcers

For arrests or detentions to take place, the police first need to treat such cases with more seriousness.

In January 2014, the Bombay High Court put the onus for this on the government and the top level of the police force, saying, “The Additional Chief Secretary, Home Department, Government of Maharashtra, shall ensure that necessary instructions are issued to all the police officers in the State along with a copy of the Act. The State government as well as the Director General of Police shall also ensure that necessary workshop will be organised to sensitise the police officers about the Special Act and the need to enforce the provisions stringently. The Director General of Police in charge of the Police Training Academy shall also include it in the syllabus for training police officers.”

When The Hindu asked Satish Mathur, the Maharashtra Director General of Police, whether the copy of the Act has been given to officers, and whether workshops to sensitise police personnel have been included in the training syllabus, he replied, “It has all been done.”

The ground realities do not seem to support Mr. Mathur’s assertion. “All of this does not happen,” says Sagar Mundada, president of the Maharashtra Association for Resident Doctors. “We need to go and show them the copy of the Act for them to levy charges of the Act in the FIR [first information report]. There are hardly any cases where they would have done it on their own accord. Also, in the heat of the moment a FIR is registered, but charge sheets are not filed. Therefore there is zero conviction.”

Anil Pachnekar, Dean (academic), national headquarters, Indian Medical Association, agrees. “There is total apathy on the side of the police officers,” Dr Pachnekar says. “We have to keep showing the Act to them for them to implement it. We also want that the Dean must register the FIR, and cases against ailing doctors must be taken up really fast.”

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Printable version | Aug 9, 2020 9:12:58 PM |

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