Covid-19 & The Emergent Need To Harmonize Rights Of Doctors Vis-À-Vis The Society

-Dhruv Gupta

In the face of the present unprecedented crisis, the country has seen an alarming spurt in the number of instances where clinical establishments, including hospitals, have refused treatment of non-covid19 ailments, and consequently, turned away patients. Some of these patients ultimately succumbed to their ailments. The reasons for denial are aplenty ranging from the compelling lack of requisite medical equipment to insufficiency of manpower and other resources, to the fear of covid-19 manifestation in the subject seeking treatment, etc. The sufficiency, or otherwise, of the justifications notwithstanding, the incidents highlight the existence of a much greater conundrum. There is a need to resolve the apparent incompatibility between the citizens’ fundamental right to healthcare and the right to safety and security of the medical practitioners, especially in such testing times. The situation may be best understood through the prism of the legislation holding the field governing doctors.

In India, doctors are governed by the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, prescribed by the Medical Council of India. Although the council is now defunct on account of repeal of its parent legislation, these regulations continue to hold the field being saved by the transitory provisions in the new enactment. The regulations begin by reminding that the prime object of the medical profession is to render service to humanity and that whoever chooses this profession, assumes the obligation to conduct himself in accordance with its ideals. Further, it is unequivocally stated that a physician is free to choose whom he will serve. He should, however, respond to any request for his assistance in an emergency or whenever temperate public opinion expects the service. The regulations conclude, lest one forgets, any violation of these regulations shall constitute professional misconduct and render the physician liable for disciplinary action. The liability may even arise in tort, thereby, giving rise to a claim for damages.

The resounding mandate of paramountcy of saving life was cited with approval by the Supreme Court in the celebrated case of Pt. Parmanand Katara v. Union of India and Ors, wherein the court went further to hold that whenever the professional is unable to render the requisite services to save the life, he must assist the patient in reaching the proper expert, as early as possible. There is therefore, a statutory obligation, and not merely a moral duty, to treat patients when called upon. Interestingly, the Law Commission of India, under the chairmanship of Justice M. Jagannadha Rao, in its 201st report proposed a law for imposing stricter statutory duties and corresponding liabilities on hospitals and practitioners in emergency care. However, the recommendations never made it to the statute book.

Seen from the other side, it is equally incumbent upon the government in a welfare state to ensure protection of its frontline warriors. Those who work tirelessly, day in and day out, to keep us in the comforts of our homes, should not be subject to unnecessary harassment from others. The right to work without fear enures in them as also the right to not be bound to treat each and every person asking for his/her services. Where the ailment is one not in the range of expertise of the treating doctor, he may even refuse the treatment and refer the patient to another physician. Any incapacity detrimental to the patient or which can affect his performance can be a reasonable ground to refuse treatment. Such incapacity may even been on account of inadequate equipment or protective gear. There is, therefore, a need to harmonize the apparently conflicting rights of doctors vis-à-vis the society, so as to prevent the addition of an unwanted dimension in our fight against the pandemic. After all, the law is a watchdog and not a bloodhound.

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