Background:

On June 10, 2019, a doctor and an intern were seriously assaulted by the relatives of a deceased patient, who alleged medical negligence on the part of the healthcare staff, at the NRS Medical College and Hospital, Kolkata. This sparked off a week-long face-off between the doctors and the government in the State of West Bengal. The medical fraternity protested against the inaction of the government and went on a strike, paralysing the health care system of the State. The protests garnered solidarity of the entire country, and similar strikes followed in other cities, orchestrated by the Doctors’ Associations.

Such incidents of sickening violence against healthcare workers have become a regular occurrence, and have traced similar course with no respite and addressal to the underlying problem. According to the reports of the Indian Medical Association, more than 75% of the doctors have faced some form of violence.[1]

Violence against healthcare workers is a global occurrence, and the numbers are only soaring everywhere, including the USA[2] and the UK[3]. The Universal Declaration of Human Rights, in Article 3, guarantees the right to life, liberty and security to everyone. However, this basic human right has remained elusive to the healthcare fraternity over the years.

Constitutional Rights of Healthcare Workers:

The doctors and the other healthcare workers are constitutionally entitled to be protected from violence. Apart from holding the perpetrators of violence liable under criminal law, which has been primarily done in most cases, it is important that the State is also brought to question for failure to protect the fundamental rights of the healthcare personnel.

Article 19(1)(g)[4] of the Indian Constitution guarantees the right to practice any profession. In Vishaka v. State of Rajasthan,[5] the Supreme Court had held that the fundamental right to carry on any profession depends on the availability of a ‘safe’ working environment, which has not been a case for the healthcare personnel. Violence against them is, further, a clear violation of Article 21’s Right to life and Liberty[6], which the State was obligated to protect.

Need for Changes in Policy Structure:

The incidents of violence against doctors meet the characteristically same fate, almost every time. The Junior doctors go on strike, senior doctors pay token heed to their cause, medical associations provide meagre participation, and this, finally, ends with a demand for stricter laws and increased security, which are only formally agreed to by the government. The present case was no different, according to the reports.[7] Even the Supreme Court declined[8] an urgent hearing of the PIL regarding safety and security of doctors at government hospitals, as the strike had been called off by the doctors, pointing to the ignorance of the judiciary of the ground realities of the vulnerability of the healthcare personnel.

Nineteen Indian States have adopted certain legislations in order to “prohibit violence against medicare service persons and damage to property of Medicare service institutions.” However, there is a lack of a central legislation dealing with the issues of such violence. India being a plethora of legislations, with a quite dismal rate of application and enforcement of these laws, it is no wonder that even the existing laws haven’t been implemented efficiently.

However, the more pertinent question remains is that will stricter criminal law against the violent relatives of the patients, suffice in curbing the issues of violence. Such assaults are not pre-meditated, and rather are impulsive responses in emotional moments, which is clearly irrational. Any stricter law would not bring him back to rationality in such moments, and hence, the need is to address the policy structures, rather than merely punishing the perpetrators under criminal law, who himself is a victim of flawed policies of the State.

The Way Forward:

In India, the increased vulnerability of the doctors based on the perception that the doctors are negligent while rendering their services, and needs to be addressed, by bridging the communication gap between the stakeholders.

It can also be associated with the high costs of healthcare services, for a relatively and absolutely poor population. The public institutions lack enough resources to provide efficient healthcare, due to a meagre healthcare budget of the State. Hence, the people are forced to seek services of private institutions, which are costly and increases the expectations of the people to unrealistic levels, at times.

The requirement of reviewing the policies for the safety of healthcare workers is urgent, and it can be protected only by means of increasing the efficiency of the public institutions, the security of institutions and setting up an effective grievance redressal mechanism for the patients if there is a dismal quality of service provided to her. In the present case, there has been relatively less discussion about setting up an efficient grievance redressal mechanism, which could have become a viable alternative for patients to get their concerns addressed, rather than resorting to violence.

Adding yet another legislation to the growing pile would certainly not be enough to ensure the safety of the healthcare personnel. The need for policy changes at the very ground level is very imminent, which needs to be recognised by the State.

[1] N. Nagpal, Incidents of violence against doctors in India: Can these be prevented?, 30 National Medical Journal of India 97 (2017).

[2] J.P. Phillips, Workplace violence against health care workers in the United States, 374 New England Journal of Medicine, 1661 (2016).

[3] Robert Pigott, NHS Health Check: ‘Most staff have been attacked’, doctor says, BBC News, February 10, 2017, https://www.bbc.com/news/health-38917156.

[4] India Const. art. 19, § 1, cl. g.

[5] AIR 1997 SC 3011.

[6] India Const. art. 21.

[7] Ahead of meeting with Mamata Banerjee, doctors put forward 12 new demands, India Today, June 17, 2019, https://www.indiatoday.in/india/story/ahead-of-meeting-with-mamata-banerjee-doctors-put-forward-12-new-demands-1550562-2019-06-17

[8] Day after doctors call off strike, SC refuses urgent hearing on plea seeking increased security, Indian Express, June 19, 2019, https://indianexpress.com/article/india/supreme-court-doctors-security-protest-west-bengal-5786060/.

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ABOUT THE AUTHOR

Isha Goel

Isha Goel is a second-year law student from National Law University, Delhi. She has a keen interest in commercial laws and is an arbitration enthusiast.

Nitesh Mishra

Nitesh Mishra is a second-year law student from National Law University, Delhi. His keen interests lie in criminal law and IPR. He is an active legal blogger and also a Student Fellow at Centre for Innovation, Intellectual Property and Competition (CIIPC).