Whenever a doctor anticipates that a negligence case can be framed against him from the patient’s side, he gets panicked and indecisive. What should be the immediate steps to avoid police arrest? Can doctors be arrested in all medical negligence cases? What should a doctor know about his rights, if arrested by the police? This article will provide an insight to these questions.
As discussed in our previous article titled “A Quick Revision of Criminal Laws Relevant to Doctors”, doctors must know the provisions in IPC to save doctors from false allegation and legal suits filed by the patient and his family. This article deals with the probable police arrest and its consequences if at all a situation like that arises in any case.
When should the police be informed?
There can be two specific set of situation where a doctor MUST inform the police and where the informing police are ADVISABLE to avoid future complications. A doctor has to inform the police without fail in following circumstances, failing to which might lead to penal consequences for the physician.
Cases of suspected homicide
Cases of suicidal deaths
Unknown, unconscious patient
Death on operation table
Suspected unnatural death
Sudden, unexpected, violent and unexplained death
Instant death after treatment or reaction of medicine
Married lady dying within seven years of marriage due to any reason.
There are few situations where it is advisable to inform the police. Such as
Undiagnosed death within 24 hrs. of admission or especially if there is any suspicion
Any cases of poisoning
In cases of hospital deaths if (a) accidents that are not related to medical management like fall from staircase etc. (b) unexpected or rare complications may occur sometimes like a child may vomit, aspirate the content and may die.
In cases of death due to negligence in treatment, there are no specific provisions or legal obligation to inform the police but in order to avoid untoward incidences or allegation of patient’s family, it is better to inform the police.
Brought dead cases: In such cases, if the cause of death is clear and not related to some medico-legal complications then it is not necessary to inform the police. If the cause of death cannot be ascertained, it is desirable to send the body for autopsy examination preferably with the help of the police.
It is advisable to suggest postmortem in the following circumstances:
Whenever death is sudden, unexpected or unexplained,
Accidental deaths which may be roadside, domestic or industrial,
When the precise cause of death is needed for insurance claim purposes etc.
As a help to arrive at a final diagnosis.
Information to police shall preferably be in writing and the written acknowledgement should be obtained. If the information is telephonic one must note down the name, buckle number and designation of the police.
Can a doctor be arrested?
Doctors have no immunity against arrest (as any other citizen of India) for the various criminal acts as per the provisions of IPC or CPC of India. But whether a doctor can be arrested for the following reason is still debated.
Alleged medical negligence during day to day care of a patient,
Unexplained hospital deaths like Sudden Infant Death Syndrome etc.,
Postoperative complication or failure of operation;
Not attending or refusing a patient (who was not already under his care) who becomes serious or dies and
Not attending a case of a roadside accident.
The Supreme Court directives (Criminal Writ Petition no. 270 of 1988) in a roadside accident include:
The medical aid should be instantaneous. It is the duty of the registered medical practitioner to attend the injured and render medical aid, treatment without waiting for procedural formalities unless the injured person or guardian (in a case of minor) desires otherwise.
The effort to save the person and preserve the life should be the top priority, not only for the doctor but also of the police officer or any other citizen who happens to notice such an accident.
The professional obligation of protecting life extends to every doctor, whether at Government hospital or otherwise.
The obligation being total, absolute and paramount, no statutory or procedural formalities can interfere in discharging this duty.
Whenever better or specific assistance is required, it is the duty of treating doctor to see that the patient reaches the proper expert as early as possible.
Non-compliance of these directives may invite prosecution under provisions of Motor Vehicle Act or IPC(7).
If an FIR is lodged from the side of the patient’s family, a doctor can readily be arrested for not complying with the above guidelines. Therefore, it is wise for the doctor to lodge an FIR from his side beforehand stating the incidence happened whenever he anticipates that a nuisance can be made by the patient’s side. Further, a crisis management committee may be formed that includes doctors, social workers, legal personalities, politicians, press reporters etc. in the district or taluka level. The committee members may meet the police officers and request them for a complete investigation of the incidence and to avoid prosecution till the guilt is proved. The committee can also request the press reporters not to give unnecessary publicity to such cases. Some state government has formed such bodies where the medical negligence case is heard and decided by a group of related experts from the field and administrators.
Legal Rights of an Arrested Person
If in any case a doctor is arrested, the following rights of an arrested person should be kept in mind:
The arrested person shall be communicated to the particulars of offence and the ground for arrest. If the offense is bailable, then the person should be informed and the arrangement for the bail may be made.
The person shall not be subjected to more restraint than necessary to prevent his escape. If there are any offensive weapons belonging to the arrested person, these weapons may be seized.
The arrested person must be produced before a magistrate having jurisdiction in that case. No police officer shall detain in custody an arrested person for more than 24 hours unless a special order from a magistrate is obtained.
Anticipatory Bail: In order to avoid frivolous accusations, there is a provision for anticipatory bail. This may be granted as a protection in offences which are non-bailable. It is a direction to release applicant on bail if there is an arrest. Once granted it remains in force. Pre-requisites for anticipatory bail are: (i) there must be a reasonable apprehension of arrest, (ii) the alleged offence must be non-bailable, and (iii) the registration of FIR is not necessary.
Procedure for Bail: The accused is required to execute his personal bond at the police station with or without surety. The surety may be a close relative, a friend or a neighbour, who is required to undertake to pay the said amount in case of absconding of the accused.
As a precaution doctors can keep the following points in mind to avert a possible police arrest:
Inform police whenever necessary and extend all possible co-operation to the police.
DO NOT PANIC.
Furnish copies of medical records to police, court or relatives whenever demanded. Consent of patient may be taken while providing information to police.
Do not do unlawful and unethical manipulation and tampering of the documents
Follow the legal procedures or provisions. Consult your lawyer before giving any reply.
Have a valid informed consent for the treatment and preserve the documents, records especially in medico-legal, controversial or complicated cases.
Insist for post-mortem examination if the cause of death cannot be ascertained.
Involve medical associations, medico-legal cells, and voluntary organizations whenever a legal problem arises.
Do not neglect the treatment while completing legal formalities especially in serious or emergency situation.
There is a significant disjunction between legal standards and doctors’ awareness of those standards, thereby creating a significant source of liability for doctors, especially in countries like India. Therefore, it is an urgent need to develop legal awareness programs for clinical practitioners based on doctors’ identified needs and preferences.
Tiwari SK, Baldwa M. Medical Negligence. Indian Pediatr 2001; 38: 488-495.
Joshi MK. Doctor and Medical Law. 2nd edition, Ahmedabad, 1995, pp 4-6.
Lele RD. The medical profession and the law: An overview. In:The Medical Profession and the Law, 1st edition, Mumbai, Sajjan Sons, 1992; p 9.
All India Reporter. Supreme Court Section, Nagpur 1989, 76: 2039.
Jhabwala NH. Indian Penal Code, 13th edition, Mumbai, C. Jamnadas & Company 1997; pp 17-18.
Do you think, in most cases, patients and his family exploit the lack of medico-legal knowledge of a doctor to frame false medical negligence case against a doctor?
*Disclaimer: The legal information provided in this article in the form of case examples, solutions are, at best, of a general nature to provide an outline and cannot substitute for the advice of a licensed legal professional. Nothing in this article should be construed as an attempt to offer or render a legal opinion or otherwise engage in the practice of law.