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Bhartiya Nyaya Samhita 2023, medical practice and psychiatrists

Year: 2024
Type: article
Abstract: Bhartiya Nyaya Samhita 2023[1] is now effective from July 1, 2024, repealing the Indian Penal Code, 1860.[2] There has been a huge hue and cry from various doctors’ groups after its notification. Before discussing the act, let us first look at the timeline [Figure 1]. The Bill was initially introduced on August 11, 2023 and sent to the standing committee. The committee report came on November 10, 2023. It was withdrawn on December 12, 2023, and the second version was introduced on the same day. It was passed by Lok Sabha on December 20, 2023 and by Rajya Sabha on December 21, 2023. On December 25, 2023, it received the assent of the President of India and became effective from July 1, 2024.Figure 1: Timeline of BNSFollowing protests from truck operators, Section 106 (2) was withheld. However, there has been no concerted effort from the doctor community to change the provisions that go against doctors, particularly Section 106. Before delving into that, I want to discuss the highlights that may be important to us as doctors and psychiatrists in particular. Document {Sec 2(8[e])} – A writing containing directions or instructions is a document. Good faith {Sec 2(11)} – Nothing is said to be done or believed in “good faith” which is done or believed without due care and attention. Offence {Sec 3(7)} – Wherever the causing of a certain effect, or an attempt to cause that effect, by an act or by an omission, is an offense, it is to be understood that causing that effect partly by an act and partly by an omission is the same offense. Please note that writing anything on a chit of paper or electronic media is a “document” and has legal consequences. Acting in good faith is a defense, but if due care has not been applied, it is not good faith. Similarly, omission has been included, which may have long ramifications in terms of not providing life-saving treatments. Sections 22 and 23 deal with acts done by a person who is of unsound mind or intoxicated, which are not considered offences, similar to IPC 1860. Sec 30 addresses consent. Sec 31 No communication made in good faith is an offense by reason of any harm to the person to whom it is made if it is made for the benefit of that person. This section deals with communication about serious illness which may cause trauma to the person. Sexual Intercourse by a Person in Authority {Sec 68} Whoever, being— (a) in a position of authority or in a fiduciary relationship or (d) on the management of a hospital or being on the staff of a hospital, abuses such position or fiduciary relationship to induce or seduce any woman either in his custody or under his charge or present in the premises to have sexual intercourse with him, such sexual intercourse not amounting to the offense of rape shall be punished with rigorous imprisonment of description for a term which shall not be less than 5 years but which may extend to 10 years and shall also be liable to fine. Explanation – (b) “Hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation. (d) “Women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected women or children or a widow’s home or an institution called by any other name, which is established and maintained for the reception and care of women or children. Sex with patients has been a hotly debated issue and is clearly an unethical boundary violation, but it is not unheard of. If we read Section 68 very carefully, it may be punishable even if done with a patient’s consent in clinic or hospital premises. The doctor–patient relationship in legal terms is a fiduciary relationship and falls under this section. The terms “induce” and “seduce” can be interpreted to invalidate consent. Causing Death by Negligence {Sec 106} Sec 106(1) Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of description for a term which may extend to 5 years and shall also be liable to fine, and if such an act is done by a registered medical practitioner while performing a medical procedure, he shall be punished with imprisonment of description for a term which may extend to 2 years and shall also be liable to fine. Explanation – For the purposes of this subsection, “registered medical practitioner” means a medical practitioner who possesses any medical qualification recognized under the National Medical Commission Act, 2019, and whose name has been entered in the National Medical Register or a State Medical Register under that Act. This provision is being contested by the doctors’ community. There are some points to ponder: While punishment for negligence is up to 5 years in other cases, it is up to 2 years for RMPs (registered medical practitioners), defined as persons registered with NMC or any state councils. The government, in its clarification in parliament, has said that it has decriminalized doctor negligence and reduced punishment. The Supreme Court, in various judgments, has tried to distinguish between negligence and criminal negligence, which is not clarified or incorporated in the document. Under 304 A of IPC, it was either punishment or fine or both, but in Sec 68, it has been made punishable with imprisonment up to 2 years and a fine. So, if negligence is proved, the court has no option but to sentence imprisonment. What happens to other systems of practitioners? Are they punishable for up to 5 years? In my view, we need to change “and” to “and/or” through discussions with the government and using the good offices of our friends in the Parliament who have offered help in taking up the issue. Already our own member Psychiatrist Hon. MP Prof Sharmila Sarkar has raised the issue in parliament on 09.08.2024. It is pertinent to note that truck operators have been successful in stopping the implementation of Sec 106 (2) through timely protest. Sec 106(2) Whoever causes the death of any person by rash and negligent driving of a vehicle not amounting to culpable homicide and escapes without reporting it to a police officer or a Magistrate soon after the incident shall be punished with imprisonment of description for a term which may extend to 10 years and shall also be liable to fine. Provisions Regarding Suicide Abetment of Suicide of a Child or Person of Unsound Mind {Sec 107} If any child, any person of unsound mind, any delirious person, or any person in a state of intoxication, commits suicide, whoever abets the commission of such suicide shall be punished with death or imprisonment for life or imprisonment for a term not exceeding 10 years and shall also be liable to fine. Attempt to Commit Suicide to Compel or Restrain Exercise of Lawful Power {Sec 226} Whoever attempts to commit suicide with the intent to compel or restrain any public servant from discharging his official duty shall be punished with simple imprisonment for a term, which may extend to 1 year, or with fine, or with both, or with community service. For persons of unsound mind, there is a provision of abetment. Attempted suicide for political protests is punishable, whereas a general suicide attempt is not. Wrongful Restraint/Wrongful Confinement/Abduction {Sec 126(1)} Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed is said to wrongfully restrain that person. Exception – The obstruction of a private way over land or water which a person in good faith believes himself to have a lawful right to obstruct is not an offence within the meaning of this section. {Sec 127(1)} Whoever wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits is said to “wrongfully confine” that person. {Sec 138} Whoever by force compels, or by any deceitful means induces, any person to go from any place is said to abduct that person. Sometimes, these sections have been charged against psychiatrists for involuntary admissions. Bharatiya Nyaya Sanhinta, 2023 has replaced IPC, 1860 with effect from July 1 this year. Though we have missed the bus, with collective action and court explanations, we can remove or modify sections inimical to doctors’ interests. IPS must act in concert with IMA and other professional organizations. Understanding the law is required for the safety and security of professionals and patients. Financial support and sponsorship Nil. Conflicts of interest There are no conflicts of interest.
DOI: 10.4103/indianjpsychiatry.indianjpsychiatry_649_24
Author: Om P. Singh
Language: English
Open Access status: diamond
OpenAlex ID: W4401690524
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