Proposed law to shield doctors from patients is against medical ethics and a frontal attack upon access to justice

Dr. Laifungbam Debabrata Roy *

Manipur's Chief Minister has been reported airing views, in a cavalier fashion, that legislation is being contemplated upon to "shield" doctors from violence committed by "patient parties". As a public health physician, I find this matter a very serious one. It is a crisis underscoring the problems plaguing the healthcare system in Manipur that needs to be tackled quickly with utmost care and due diligence. The language reportedly used by the respected minister is most disturbing, and there is evidence of a rather negligent attitude to the unique relationship between an individual and her treating physician as a matter of great confidentiality founded upon ethical principles and protected by law.

Such statements also leads to the belief that the government has no idea or imagination about the issues of medical malpractice and clinical negligence or what needs to be done about improving doctor-patient relationship, increasing patients' satisfaction and patient safety, and preventing violence against hospitals and medical staff. Further, such casually delivered information to the public about medical workers closing ranks and seeking government legislation to "shield" them only cause people to become increasingly distrustful of doctors and their explanations, leading to a sharpening of the doctor-patient conflict.

If this problem is not tackled effectively from the roots and underlying causes, as in China, it will lead to the decline in the popularity of medicine as a profession of choice by our young students, the arming of medical staff, the increase of policing and issuing of weapons to private security service staff in hospitals and an overall decline in the already poor quality of health services in Manipur.

The problem is not confined to Manipur. This is a problem that is increasingly being reported in other parts of India too. A Mumbai hospital reported doctors being molested, thrashed and abused by lay public for a trivial fault. According to them the causes of violence were lack of communication between doctor and the patient, poor image of medical profession, lack of faith in judicial system and the police, besides insufficient security for doctors.

Pakistan, Bangladesh, China, Saudi Arabia, and Australia have recently also report that increasing commercialization and corruption coupled with wide spread unethical practices by the medical profession has lead to increased violence against the healthcare professionals which has highlighted the importance of patients' satisfaction and patient safety.

Violence against doctors and other medical practitioners in China has been reported in the prestigious BMJ as an increasing problem. The Chinese National Ministry of Health statistics indicate that the number of violent incidents against hospitals and medical staff increased from about 10,000 in 2005 to more than 17,000 in 2010. A survey by the Chinese Hospital Association reported an average of 27.3 assaults per hospital per year in 2012, up from 20.6 assaults per hospital per year in 2006. In 2012, an editorial in The Lancet described the situation as a "crisis" for the practice of medicine in China.

A recent study, reported in the Pakistan Journal of Medical Sciences this year, found that almost 77% of physicians have faced either verbal or physical abuse in Pakistan. This is a startling report.

Another study from Pakistan reported that 74% of respondents in a retrospective exploratory cross sectional study in a public sector healthcare facility in Lahore were victims of violence during the preceding twelve months with verbal abuse being the most common. Those exposed to violence experienced high level of psychological distress. Emergency Departments were the most common place where violence was witnessed and the sources of violence were patient's relatives along with negative media reports besides irritating staff attitude. Clinical negligence, medical malpractice, patient satisfaction and patient safety are the core of the thinking that the Chief Minister mentioned very nonchalantly, but the thinking is not progressive. Rather, 'shielding' the doctors from the patients by legislation is not only retrogressive and dangerous; it is a direct infringement by legislature upon medical ethical principles and the confidential patient-doctor relationship that has a bearing upon the very important issue of medical negligence and malpractice. The government's proposed legal aid to doctors will have a catastrophic effect on those who have suffered as a result of negligent medical treatment.

The destruction of a person's life or the suffering of seriously physical harm through the mismanagement of their medical treatment requires legal aid and just compensation. Instead of safeguarding the interests of those citizens – such as a catastrophically injured child and young mothers – who find themselves in the greatest need at a time when they are least able to meet it, what the minister proposed is nothing short of the emasculation of the legal aid system and a full frontal attack upon access to justice. Doctors should ethically be the ones foremost to oppose such a move, and not be the community quietly engineering and abetting this immoral wrong!

A severe as this allegation may sound, I think the government and the administration is fully aware of what the impact will be of such kinds of legislation that restricts access to justice. The vast majority of cases of clinical negligence and damages that accrue from it are in the domain of government health services. The government is therefore the both accused and defendant compensator most of the time.

Access to justice is becoming extremely costly to it in costs and damages. By denying access to justice, the state stands to a win-win position. It does not need to provide legal aid nor compensation; saves it the trouble and money, and that by attacking access to justice its outlay in both regards will be reduced substantially.

The question is why is the government thinking about such legislation that protects alleged wrong-doing and denies the victim to any justice or recompense? The answer is that this government has no interest at all in maintaining access to justice because, as the defendant, it sees this as the problem itself.

The day may not be far when our learned legislators and legal experts would be contemplating 'shielding' the government and its agencies from all kinds of private and public interest litigation by passing a blanket law. That would put an end to all legal aid and human rights defence work, and many would become unemployed and out of work. And the Indian Constitution would have to be drastically amended.

On a serious note, the ethical and legal issues pertaining to medical practice are perhaps one the oldest established area of jurisprudence. The issues cover a complex web of standards that relate to many aspects and contexts of clinical practice.

We witness today vast leaps in the advances made in medical science and clinical practice, and research in many new areas. This is the era of human cloning, gene tinkering, total head transplant, test-tube babies and surrogate motherhood, Viagra, e-medicine and internet-based video-linked consultations, euthanasia and physician assisted suicide.

Many of these advances would make us shudder to contemplate, wondering if even God despite her omnipotence had actually foreseen any of this. The American Association of Family Physicians recently adopted a resolution recognising police brutality and violence as a public health problem.

US warplanes bombed a hospital killing 22 doctors, health workers and patients and injuring dozens of others in Afghanistan only a week ago. In an unprecedented step of great significance the doctors of the Médecins Sans Frontières (Doctors Without Borders) has moved the International Humanitarian Fact Finding Commission of the International Committee of the Red Cross (ICRC) to conduct an accountable and independent investigation into the atrocity amounting to a clear instance of war crime. Doctors are obliged to maintain the highest ethical standards in clinical practice, protect human rights, defend humanitarian principles and promote them in all their activities.

Ethical and legal issues surrounding the developments in medicine and medical practice is more complicated than ever before. Today, the fundamental concerns are the human rights implications of such advances and practices in the field of medicine and clinical care. The right to the highest attainable standard of health care is a universal human right. The Manipur government representing a state of India is obliged to protect and promote this human right, which is intimately linked to the right to life protected by the Indian Constitution.

The circumstances of unfortunate events that have led to a violent confrontation and breach of the sacrosanct relationship between doctors and their patients require a thorough and cold look. A realistic appraisal of the prevailing situation and communication to the patient and their attendants, relatives should be ensured. The remedy to this crisis is not denial and 'shielding' of healthcare staff, while seeking to criminalise and punish 'patient parties', which is against medical ethics.

The remedy is a simple set of practical and regulatory steps aimed at an efficient overhauling of the healthcare services to bring them in tune with the modern age of information access and retrieval, public relations, security and the rights and entitlements of users and providers of the services. New policies initiatives, such as privatisation and PPP models, must never lose the primary track of ethical and humane conduct in medical practice. Dual practice must be put to an end to improve the image of the profession. The healthcare services must remain humane at all times. Otherwise it risks losing its legitimacy and prestige.

Hospitals should always be hospitable. This means that informative, sensitive, empathetic, polite and gentle communication and behaviour along with a high level of technical competence should be the gold standard of our professional conduct. Healthcare professionals in general and junior doctors in particular must develop proper communication skills from the hospitality sector through training. Every hospital must have a public information department that is securely linked to all aspects of the services being rendered in real time.

There should be zero tolerance to any kind of negligence in practice and service, rude behaviour, use of highly objectionable and hurtful language or words, denigration of other fellow professionals and allied services while interacting or consulting with patients. There must be concerted and comprehensive attempt to improve the image and self-esteem of the healthcare staff of hospitals and health centres, especially government services.

There should be an effective and transparent mechanism to address clinical negligence claims and grievances. This will reduce patient-doctor conflicts provided that the overhauling of the services is also done and it is placed as a part of the public information services. This can be brought about by legislation to amend the legal aid law and make the system more effective. The lack of confidence in the system of governance and an increasing suspicion of the institutions of the government lead to "mob justice" in Manipur.

Clinical negligence claims must be brought within the scope of the legal aid system. For this to be effective the existing statutory framework must be strengthened. Reforms in the legal aid system must be a priority of the government and legal community. More laws to 'shield' doctors and criminalise the public users of healthcare services will not bring confidence in the services, nor will such laws be ever effective in reaching their intended objectives.