Wednesday, March 29, 2023

The Healing Touch

Kerala High Court set an example by refusing anticipatory bail to a man who attacked a doctor while he was on duty. Stern action by governments is the only way to stop attacks on these professionals.

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“If a patient, who wants treatment, is aggrieved in the matter of touch on the body of the petitioner as part of examination, it is difficult for a doctor to do his medical profession by resorting to clinical examination. The same would include placing of stethoscope on the left chest portion of the patient to observe and evaluate the heart beat.” This was the observation of the Kerala High Court on February 24 while dismissing anticipatory bail to a man accused of manhandling a doctor for allegedly misbehaving with his wife while examining her at a hospital.

The application for anticipatory bail was filed by the accused under Section 438 of the Code of Criminal Procedure in Chalissery Police Station, Palakkad, where he is alleged to have committed offences punishable under Sections 341, 323 and 294(b) of the Indian Penal Code as well as Sections 3 and 4 of the Kerala Healthcare Service Persons and Healthcare Service Institutions (Prevention of Violence and Damage to Property) Act, 2012.

At about 18.50 hours on January 8, 2023, the doctor who was the complainant, was doing on-call duty when he examined the wife of the accused, aged 27, at the casualty. That is when the accused caught hold of his collar and slapped him on his left cheek alleging that he had touched his wife’s body. According to the accused, the doctor misbehaved with the wife. Thereafter, his wife lodged a complaint and alleged commission of the offence punishable under Section 354 of the IPC. 

It was submitted by the accused that his wife was innocent and the allegations filed by the doctor were false. According to the counsel for the doctor, the case was registered to avoid legal consequence which would arise out of the case lodged by the wife of the accused.

However, the public prosecutor strongly opposed bail, saying the husband had criminal antecedents and was involved in four crimes, had manhandled the complainant and obstructed his duty while the doctor was examining his wife. According to the public prosecutor, attacks against doctors were alarmingly high and therefore, doctors were under threat and fearful while examining patients. Therefore, a threat against doctors would be detrimental to the interests of the people at large. It was, therefore, submitted that this was not a fit case for anticipatory bail.

While considering the application, a single bench of Justice A Badharudeen held that the allegation of misbehaviour by the doctor, alleged to have been committed in the presence of two sisters and in an open space at the casualty of the hospital, cannot be believed prima facie. The bench noted that the allegation of misbehaviour was raised after registration of this crime.

“On evaluation of the factual aspects to be espoused from the case diary materials, the prosecution case is well made out and attack against doctors, while examining the patients, merely because they touched on the body of the patients could not be encouraged at all. Doctors, who had turmoiled their energy and time to learn the method of treating patients, when examining patients clinically, they cannot do the said exercise without touching the patients,” the Court said.

At the same time, the Court was conscious of the fact that genuine cases of such nature could not be ruled out in toto. But generally, it could be held that the truth of those allegations should be evaluated from the materials and attending circumstances to separate the grain from the chaff, the bench observed.

“In the case on hand, attack against the doctor at the instance of the petitioner is well made out and in such a case, if the petitioner is granted anticipatory bail, it would lead to a very dangerous situation, thereby, doctors, who are duty bound to treat patients as part of their oath, will not get protection and if so, the proper maintenance of health of the public at large would be in peril. In such case, arrest and custodial interrogation are absolutely necessary to accomplish successful investigation and eventful prosecution,” the order read.

The Kerala High Court in December 2022 had directed the police to launch an FIR within an hour of receiving complaints alleging such violence. It expressed concern over increasing incidents of attacks against doctors and other healthcare professionals in the state hospitals. “We are hence guided to believe, prima facie, that it is perhaps because citizens get the impression that the processes of law are slow and that they would not be taken to task, that such recurrent occurrences happen. The fact that the Government Hospital System is overwhelmed and that the number of patients are escalating by the day, are common knowledge. Unless the Doctors and Healthcare Professionals are able to act in peace and calm, it would become impossible for the system itself to sustain,” the division bench of Justices Devan Ramachandran and Kauser Edappagath said.

In 2021, a petition was filed in the Supreme Court seeking directions to the centre and the authorities concerned to prevent attacks on doctors and healthcare workers by relatives of patients and others and to ensure adequate security in hospitals and medical centres across the country.

The petition, filed by the Delhi Medical Association (DMA), highlighted 28 incidents of violent attacks on doctors or healthcare workers since 2017. The plea stated that at present, there is was no substantial central law for protecting medical professionals, etc.

DMA, with over 15,000 members from the medical fraternity, cited the recent attacks on doctors and healthcare workers in West Bengal, Uttar Pradesh, Telangana, Punjab, Kerala, Karnataka, Jharkhand, Assam and Arunachal Pradesh to argue that existing laws punishing assaulters of doctors and healthcare workers had not proved to be an effective deterrent.

Last year, the Supreme Court sought responses from the centre and others, including the Medical Council of India, to petitions alleging rising assault on doctors and seeking framing of guidelines for their protection across the country.

Two doctors at Government Medical College in Maharashtra were assaulted with a fruit cutter knife by a patient in January this year. After an incident of attack on doctors, a group of these professionals wrote to deputy chief minister Devendra Fadnavis demanding legal action against the offenders and the establishment of police chowky in the area to curb such incidents in future.

It should be the responsibility of the government to provide safety to healthcare workers. Stopping the violence against doctors is of paramount importance and unless we make the hospital environment free from fear and violence, doctors won’t be able to work to their full potential. 

—By Shivam Sharma and India Legal Bureau

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