Authored By: Divita Pagey
Outbreak of Assaults
The COVID-19 Pandemic has unleashed a catena of crises across all sections of the society, impacted all walks of lives, and laid bare the latent wounds inflicted by human depravity upon humankind. An appalling recurrence during the fight with the pandemic has been the numerous instances of verbal and physical attacks, as well as neglect towards the health and safety concerns of the healthcare service personnel discharging their COVID-19 duties. The perpetrators of these wounds inflicted upon the healthcare service personnel include governments, patients, relatives of patients, and members of their dwelling societies, among others.
Reports of the junior doctor in AIIMS Bhubaneswar facing rape threats to vacate her housing society fearing risk of spread of the disease amongst the society members [i], or the oncologist in Kolkata detained and tortured in police custody for exposing through his social media posts, the failure of the State government to provide protective gears to doctors[ii], or the woman doctor in Hyderabad abused and harassed while returning home from her COVID-19[iii] duty, are symptomatic of a deep malaise in the society’s attitude towards the “frontline soldiers” in the battle against the COVID-19 virus who are supposed to be held in high regard as “God’s incarnation in white coats”[iv] during the global health crisis.
The problematic instances of attacks and assault against healthcare service personnel in general, and doctors in particular are unfortunately not limited to the COVID-19 pandemic or other crises of like magnitude. The problem is general in nature and global in its sweep, and has been a persistent cause of concern to the medical fraternity, while also being at the receiving end of political neglect for a few decades.
The earliest research on violence against doctors can be traced to the 1980s which concluded that in the US, 57% of emergency care workers have been threatened with a weapon, while in the UK, some kind of violence had been reported by 52% of the doctors. Medical professionals in Asian counties like China, Israel, Pakistan, and Bangladesh have also reported violence in large numbers, showcasing higher number of assaults in comparison to their western counterparts.[v] Reportedly, 85% doctors in China have suffered violence at workplace, and the country has recently introduced a new law intending to curb such instances of violent attacks against doctors. The law seeks to prohibit individuals and organisations from threatening or harming the personal safety or dignity of medical workers.[vi]
According to the Indian Medical Association (IMA), 75% of doctors in India have faced some kind of violence at work, which is similar to the rates from other Asian countries. The assaults or violence perpetrated on doctors includes verbal threats, intimidation, and abuse, physical assault, which may or may not cause simple or grievous hurt, but which may even extend to causing murder, vandalism, and arson in some cases. Further, medical professionals who have been victims of such violence have reportedly suffered consequent mental health issues, such as depression, insomnia, post-traumatic stress, fear, and anxiety, often resulting in absenteeism.[vii] However, scholarly opinion has also pointed out the difference between violence witnessed in India and in western countries in that verbal abuse is more likely to escalate into physical assault and vandalism in western countries, and there is lesser likelihood of third party intervention in curtailing such attacks.[viii]
The inadequate government spending on healthcare in India often compels patients to resort to private health care facilities for quality medical care, as the government hospitals are lacking in infrastructure as well as human resources. A large proportion of patients are drawn to small and medium private healthcare establishments, which offer a middle ground for seekers of quality health services at an affordable price. However, such establishments often lack the institutional support and organisational structure to combat violence, leaving them vulnerable to such assaults.[ix]
The causes of such violence or assaults against healthcare service personnel include a multitude of factors such as, the poor patient-doctor ratio leading to inadequate time given to consultation with doctors, and consequently ineffective communication with patients addressing their woes; the financial burden of quality healthcare; lax security arrangements at hospitals, especially public or government hospitals; demeaning treatment of junior doctors by senior doctors in front of patients and hospital staff thereby setting examples of belligerent behaviour towards them; the declining respect for the medical profession, arguably owing to the degrading adherence to professional ethics by the medical professionals themselves; rising instances of reported medical negligence, and the growing trend of half-baked Google-verification of medical diagnoses and prescribed treatment, adding to the scepticism among general public regarding credibility of medical professionals; and, the rampant intolerance plaguing the society in general.
Prescribed Remedies and their Insufficiency
The worldwide protocol prescribed to be followed by hospitals in response to violence threatening the aggressor himself, or members of the hospital staff, is known as “Code Violet”, and requires alarming the instance of violence through the hospital’s public address system and initiating security measures.[x] This protocol, although helpful in mitigating the assaults, does not penalise the aggressors, and has no deterrent effect.
Prevention of Violence against Medicare Persons and Institutions Act
The Prevention of Violence against Medicare Persons and Institutions Act intended to address the issue of violence against doctors comprehensively; however, it has been notified only in 19 states in the past ten years and has failed to achieve its intended objectives because of lack of awareness regarding the provisions of such legislation among enforcement authorities.[xi]
Healthcare Service Personnel and Clinical Establishments (Protection of Violence and Damage to Property) Bill, 2019
The repeated appeals by the Indian Medical Association (IMA) to the Central Government to enact comprehensive central legislation imposing stringent penalties upon acts of violence against healthcare service personnel so as to create a deterrent effect, led the Ministry for Health and Family Welfare to draft the ‘Healthcare Service Personnel and Clinical Establishments (Protection of Violence and Damage to Property) Bill, 2019’. The Draft Bill stipulated punishment for up to 10 years of imprisonment, along with the imposition of a fine extending to Rs 10 lakh upon conviction for assault on healthcare service personnel. The Draft Bill extended protection to healthcare service personnel including doctors, dentists, nurses, paramedical staff, medical students, diagnostic service providers in a health facility, and also to ambulance drivers.[xii] However, the Draft Bill fell out of favour with the Parliament after the Ministry of Home Affairs deemed it unnecessary and unfavourable to enact legislation specially dedicated for the protection of members of a specific profession against violence, when general penal provisions exist in the Indian Penal Code, 1860.[xiii]
Epidemic Diseases (Amendment) Ordinance, 2020
On April 22, 2020, the Government of India promulgated the Epidemic Diseases (Amendment) Ordinance, 2020 amending the Epidemic Disease Act, 1987. The Ordinance, inter alia, made “acts of violence” against healthcare service personnel combating an epidemic, a cognizable and non-bailable offence. The offence has been made punishable with imprisonment from six months to seven years and with a fine of Rs. One Lakh to Five Lakhs. The Ordinance has also provided for a speedy procedure in such cases, with a mandate for the investigation to be completed within 30 days from the date of registration of the First Information Report and the inquiry or trial to be ordinarily concluded within one year, with a permissible extension up to six months. Further, in prosecutions for causing grievous harm to healthcare service personnel, the Ordinance provides for a presumption in favour of guilt, unless the contrary is proved. Furthermore, it also provides for compensation to be paid to the healthcare service personnel who are victims of acts of violence. The Ordinance was promulgated in response to the mounting protests by the medical fraternity in the midst of the pandemic as they were being discriminated against, assaulted and mistreated despite putting their lives at risk and fulfilling their oaths as the saviours of the health of the society.
The scope of the said Ordinance extends to protect any healthcare service personnel who is at risk of contracting the epidemic disease while carrying out duties related to the epidemic, including public and clinical healthcare providers such as doctors and nurses; any person empowered under the Act to take measures to prevent the outbreak of the disease; and, other persons designated as such by the state government.[xiv] Such health care personnel are protected under the Ordinance against every “act of violence” which includes any of the following acts committed against healthcare service personnel: harassment impacting living or working conditions; harm, injury, hurt, or danger to life; obstruction in discharge of his duties; loss or damage to the property or documents of the healthcare service personnel. However, the said protection is restricted only during the outbreak of an epidemic disease, when a state government issues a public notice and imposes temporary regulations for the containment of such epidemic under Section 2 of the Epidemic Diseases Act, 1897. Therefore, the protections extended by the Ordinance to healthcare service personnel are not of general application, and serve only as a temporary symptomatic relief to the deeply-entrenched general problem of assault against healthcare service personnel.
Aiming for the Panacea: A Central Legislation for Deterring Assaults against Healthcare Service Personnel
The Parliament is empowered to enact a Central legislation for the protection of Heath care Service Personnel by penalising assaults against them because:
Firstly, ‘medical profession’ falls under Entry 26, List III of Schedule VII of the Constitution of India. Central enactments such as the Indian Medical Councils Act, 1956; the Dentists Act, 1948; the Chartered Accountants Act, 1949; and, the Pharmacy Act, 1948 fall under Entry 26. List III or the ‘Concurrent List’ comprises of matters which are neither exclusively of national interest, nor of purely state or local concern, but which are of common interest to both Centre and the states, and therefore both the Parliament as well as the state legislatures are empowered to legislate on such matters.
Secondly, Entry 1 of List III is “Criminal law, including all matters included in the Indian Penal Code at the commencement of this Constitution but excluding offences against laws with respect to any of the matters specified in List I or List II and excluding the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power.” A central law to be valid under this Entry must satisfy two conditions: first, the law must relate to criminal law; second, the law should not be such as has been, or could be, provided against by laws with respect to any matter specified in List I or List II.[xv] A central legislation criminalising and penalising acts of violence against healthcare service personnel satisfies both the aforementioned requirements.
Thirdly, as per the Sarkaria Commission, the need for a central legislation may arise with respect to Concurrent List subjects in cases in which, inter alia, coordination may be necessary between the Union and the states, and among the states, as may be necessary for certain regulatory, preventive, developmental purposes, or to secure certain national objectives.[xvi] A central legislation for protection of healthcare service personnel is imminently needed to prevent assaults on such personnel and regulate their safety and security.
Need for Special Legislation
Although verbal and physical assaults on healthcare service personnel are currently punishable under the provisions of Indian Penal Code, 1860, a special legislation dedicated to their protection is justified under Article 14 of the Constitution of India. Article 14 permits a special legislation to be crafted if two requirements are satisfied: one, such legislation has created a reasonable classification which is founded on intelligible differentia; two, the differentia has a rational nexus with the object(s) sought to be achieved by such legislation. Differential treatment does not per se amount to violation of Article 14 of the Constitution, and there are several tests for determining whether classification is reasonable or not, and one of the tests is whether it is conducive to the functioning of the modern society, or has been made to accommodate the practical needs of the society.[xvii]
Assaults or acts of violence perpetrated on healthcare service personnel can be reasonably classified into a separate category on the following bases: the nature of the perpetrator, who is typically patient or relative of patient; the nature of the victim, who is a healthcare service personnel; the site of such act of violence, which is typically a hospital or other healthcare establishment; and, the impact of such acts of violence on the society as a whole due to the special significance of the healthcare workers in maintenance of the health and well-being of the society. Therefore, a special legislation with the objective of creating deterrence against acts of violence of all forms against healthcare service personnel would satisfy the twin requirements of Article 14. Keeping in view the numerous instances of violence and assault against healthcare service personnel, both during and prior to the pandemic, it is conducive to the functioning of the medical profession and healthcare sector in the modern society that a special legislation be dedicated to their protection.
A special central legislation can go a long way in catering to the specific needs and vulnerabilities of the medical and other healthcare service personnel, and providing them protection against the stipulated forms of assault or violence. Aimed at deterring the assaults or violence against healthcare service personnel across India, the legislation would be uniform and comprehensive in its execution across the country, and can therefore, prove to be the legal panacea for such assaults or violence against healthcare service personnel.
[i] Is This How We Treat Our Covid-19 ‘Soldiers’? Medics Across India Battle Neglect, Harassment & Rape Threats (April 3, 2020), https://www.news18.com/news/india/is-this-how-we-treat-our-covid-19-soldiers-medics-across-india-battle-neglect-harassment-rape-threats-2562473.html.
[ii] Rabi Banerjee, COVID-19: Harassed by cops, Kolkata doctor remembers Wuhan doctor, The Week (April 09, 2020), https://www.theweek.in/news/india/2020/04/09/covid-19-harassed-by-cops-kolkata-doctor-compares-himself-with-wuhan-doctor.html.
[iii] Woman doctor on COVID-19 duty harassed abused in Hyderabad, The New Indian Express (April 25, 2020), https://www.newindianexpress.com/states/telangana/2020/apr/25/woman-doctor-on-covid-19-duty-harassed-abused-in-hyderabad-2134911.html.
[iv] Is This How We Treat Our Covid-19 ‘Soldiers’? Medics Across India Battle Neglect, Harassment & Rape Threats (April 3, 2020), https://www.news18.com/news/india/is-this-how-we-treat-our-covid-19-soldiers-medics-across-india-battle-neglect-harassment-rape-threats-2562473.html.
[v] Reddy, I. R. et al., Violence against doctors: A viral epidemic? 61(4) Indian J. Psychiatry S782 (2019), https://doi.org/10.4103/psychiatry.IndianJPsychiatry_120_19.
[vi] China Launches New Law to Protect Doctors (December 29, 2019), https://www.bbc.com/news/world-asia-china-50940827.
[vii] Reddy, supra.
[viii] Ghosh K., Violence against doctors: A wake-up call, 148(2) Indian J. Med. Res. 130 (2018), https://doi.org/10.4103/ijmr.IJMR_1299_17.
[ix] Nagpal, supra.
[x] Megha A. Singhania, Dial Code VIOLET for Violence Against Doctors: Protocol (September 6, 2017), https://medicaldialogues.in/dial-code-violet-for-violence-against-doctors-guidelines
[xii] The Healthcare Service Personnel and Clinical Establishments (Protection of Violence and Damage to Property) Bill, 2019, https://www.prsindia.org/sites/default/files/bill_files/Draft-%20Healthcare%20Service%20Personnel%20and%20Clinical%20Establishments%20%28Prohibition%20of%20violence%20and%20damage%20to%20property%29%20Bill%2C%202019.pdf.
[xiii] MHA Opposition Puts Bill to Check Violence against Doctors on Back Burner (December 15, 2019), https://economictimes.indiatimes.com/news/politics-and-nation/mha-opposition-puts-bill-to-check-violence-against-doctors-on-backburner/articleshow/72677503.cms?from=mdr.
[xiv] The Epidemic Diseases (Amendment) Ordinance, 2020, https://www.prsindia.org/billtrack/epidemic-diseases-amendment-ordinance-2020.
[xv] M.P. Jain, Indian Constitutional Law 562 (Jasti Chelameswar and Dama Seshadri Naidu revs.., 8th ed. 2018).
[xvi] Sarkaria Commission Report 65.
[xvii] Jain, supra, 911.
Ms. Divita Pagey is currently a Research Associate at National Law University, Nagpur.