The history of the medical profession is as old as the history of humanity itself. The relationship between an infirm and his healer is a unique blend of trust, confidence, and obligation. Both diligent and impetuous administration of medicine hold the power to alter the course of a human life, albeit in very different ways.
Consider, for example, the viral video clip that stunned the medical fraternity earlier this year, showing a large group of assailants thrashing and torturing a young doctor within the premises of a hospital in Lahore, after a minor girl passed away during treatment.
The horrific episode prompted widespread protests by doctors, nurses and paramedics, who while lamenting the increasing incidents of physical violence against doctors, issued a clarion call for the protection of healthcare providers through effective legislation.
When news of assault on doctors in hospitals make frequent rounds countrywide, certain questions become hard to ignore. For example, do these instances of misdirected rage stem from a lack of awareness about the existence of the right to file complaints against healthcare service providers or the procedure for seeking legal redress?
Or whether the distrust in dispensation of justice has become so deep-rooted amongst people, that they consciously choose a moment of violence over long-term justice?
Alternatively, when aggrieved persons choose to seek legal redress, why do most of them believe that the case of alleged medical negligence should entail criminal prosecution of the doctor?
The medical profession operates in spheres where success is not always guaranteed. So what is the standard of proof to establish criminal intent?
Universally, it is expected of doctors to unfailingly uphold the principles of beneficence, non-maleficence, autonomy, and justice. Therefore, it is imperative to distinguish between cases of genuine negligence and cases of unavoidable complications with adverse outcomes.
Criminal prosecutions of doctors without sound medical opinion pointing to their guilt would be doing a great disservice to the community at large. If the courts were to impose criminal liability on hospitals and doctors for everything that goes wrong, then the medical community would be more worried about their own safety than providing their patients with the best and most suitable treatment.
To devise a rational approach to professional liability, Healthcare Commissions were established through provincial legislations i.e. the Punjab Healthcare Commission Act 2010, The Sindh Healthcare Commission Act 2014, and, The Baluchistan Healthcare Commission Act 2019.
The main purpose of these Acts is to make provisions for the improvement of healthcare services and to ban quackery in the provinces. For achieving these objects, the Commissions are given statutory authority to perform several functions.
For instance, in terms of various sections of the Acts, the Commissions have power to investigate allegations of maladministration, malpractice or failure on the part of a healthcare service provider or any employee of the healthcare service provider on a complaint by any aggrieved person.
However, there is virtually nothing to highlight the differences between the contraventions identified by these Acts, or their penalties. For example, civil violations such as not acquiring a license, or not renewing a registration as well as violations of criminal nature involving actus reus resulting in the death or injury of a patient due to the doctor’s negligence, are both subject to the same statutory ceiling of PKR 500,000/- imposed as a fine by the Commission.
It may be important to note, that the jurisprudential concept of negligence arises from the Law of Torts, and has interpretational differences in civil and criminal and law. What may be negligence in civil law may not necessarily be negligence in criminal law.
Secondly, and more generally, the standard of proof in all civil litigation is simply the balance of probabilities, whereas in criminal prosecution, the offence is to be proven beyond reasonable doubt. Mere inadvertence or some degree of want of adequate care and caution might create civil liability but would not suffice to hold a doctor criminally liable.
Several court decisions recognise that when determining criminal liability of a doctor or surgeon for medical negligence, demonstrating that he or she has breached duty of care is the first major hurdle.
For example, in the case of Dr. M Asif Osawala vs. Mrs. Qamar-un-Nisa Hakro & others a double bench of the Sindh High Court observed that the determination of medical neglect could not be straightforward because of varied medical opinions, diagnostic practices, and methods of treatment.
Therefore, the standard of proof for establishing medical negligence should be set as high as possible to tantamount to recklessness, gross lack of competence or inaction and/or wanton indifference exhibited by the doctor towards his patient’s safety.
Casual criminal prosecution of doctors can create a climate of fear, discourage innovation, and shake the sacrosanct fiduciary relationship between the patient and the professional man.
Alleged medical negligence should undergo rigorous scrutiny through well-defined criteria, aiming to strengthen the trust and confidence between the medical profession and the legal system.
Conversely, we must also reject arguments pertaining to immunizing doctors against all forms of legal accountability simply because of the nobility and humaneness associated with their profession, as negligence in providing reasonable care, even in situations where the patient already suffers from life-threating conditions, is unacceptable.
To quote Ex-Chief Justice of the Common Pleas, Sir John Eardley Wilmot in the case of Wilkes vs. Wood (1769) “the law makes no difference between great and petty officers; thank God, they are all amenable to justice.”