Draft guidelines for prosecution under 304 A

Draft guidelines for prosecution under 304 A

Guidelines for protecting doctors from frivolous or unjust prosecution against medical negligence

WHEREAS, the Hon’ble Supreme Court in Jacob Mathew vs. State of Punjab [AIR 2005 SC 3189] had observed that statutory rules or executive instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India;

WHEREAS, the Hon’ble Supreme Court had, “so long as it is not done”, proceeded to lay down certain guidelines which should govern the prosecution of doctors for offences for which criminal rashness or negligence is as ingredient. The following guidelines were laid down:

“A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam’s test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner [simply because a charge has been leveled against him]. Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.”
WHEREAS, the Government of India, Ministry of Health and Family Welfare, vide its letter dated 11.07.2012 has asked the Medical Council of India to suggest guidelines, which need to be framed for protecting doctors against frivolous complaints/prosecution;

THEREFORE, the Medical Council of India proposes the following guidelines to be observed by the prosecuting agencies for protecting doctors against frivolous complaints/prosecution:-
1. The Prosecuting Agency on receipt of any complaint of which criminal rashness or negligence is an ingredient against a registered medical practitioner under the Indian Medical Council Act, 1956 prior to making arrest refer the complaint to the Chief Medical Officer of a District who shall place it before the District Medical Board for its recommendations as regards the merit of the allegations of criminal rashness or negligence, contained in the complaint.
2. The District Medical Board on receipt of such reference examine the allegation contained therein in a time-bound manner, preferably within two-weeks, and thereafter forward its recommendation to the Prosecuting Agency through the Chief Medical Officer of the District.
3. The District Medical Board that has examined the complaint must ensure a Doctor qualified in that branch of medical science is part of the Board.
4. The Prosecuting Agency, in case, it is dissatisfied with the recommendation of the District Medical Board may stating the reasons for such dissatisfaction refer the matter to the Divisional Medical Board for its recommendation within a period of three-weeks from the date of receipt of recommendation of the District Medical Board.
5. The Divisional Medical Board, on receipt of any such reference from the Prosecuting Agency would examine the matter within a period of three-weeks from the date of receipt of such reference. The Divisional Medical Board shall provide reason for endorsing or rejecting the recommendation of the District Medical Board. The decision of the Divisional Medical Board shall expeditiously be conveyed to the prosecuting agency, and in any case not later than four-weeks from the date of receipt of reference made by the prosecuting agency.
6. The Prosecuting Agency, in case, it is it is dissatisfied with the recommendation of the Divisional Medical Board may stating the reasons for such dissatisfaction refer the matter to the State Medical Board for its recommendation within a period of four-weeks from the date of receipt of recommendation of the Divisional Medical Board.
7. The State Medical Board, on receipt of any such reference from the Prosecuting Agency would examine the matter within a period of four-weeks from the date of receipt of such reference. The State Medical Board shall provide reason for endorsing or rejecting the recommendation of the Divisional Medical Board. The decision of the State Medical Board shall be expeditiously conveyed to the prosecuting agency, and in any case not later than five-weeks from the date of receipt of reference made by the prosecuting agency.
8. The Prosecuting Agency on the receipt of Recommendation of the District/Divisional/State Medical Board further proceed in the matter in accordance with law. However, in case arrest of a registered medical practitioner in the employment of State/Central Government is being made, the Controlling Officer of such Medical Practitioner would be informed by the Prosecuting Agency. Likewise, in case, the registered medical practitioner is engaged in private practice, the concerned State Medical Council, or in case there is no State Medical Council in that State/Union Territory, the Medical Council of India be informed.
The above-said guidelines may if deemed appropriate be notified by the Union of India under the Code of Criminal Procedure, 1973.

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