Introduction:
According to The Kerala Healthcare Service Persons and Healthcare Service Institutions, Prevention of Violence and Damage to Property) Act 2012, prohibition of violence[1] is considered to be an offensive act. The idea is linked with an omission (to not to do something of legal nature). Violence[2] has been defined as the activities causing any harm, injury or endangering the life or intimidation, obstruction or hindrance, to any healthcare service person in discharge of duty in any healthcare service institution or damage or loss to property in healthcare service institutions. This act is designed to protect the people from act of violence i.e. commission of violence to health care service individuals and to decrease damage or loss to property in a healthcare service institution. Contrarily, if this act would not be considered offensive, it would be a risk to the health care service institution to help people in our country.
This act protects the rights of patients, doctors and hospital properties from attacks. The patient will have the right and power to get complete information of medical treatment. And if there is any lapse or negligence in treatment, patient can go for the prosecution of offenders. The judgement of punishment truly depends on the gravity of the offence committed.
Classification of Offences
Cognizable offence means an offence in which a police officer has the authority to make an arrest without a warrant and to start an investigation with or without the permission of a court. Contrastingly, in case of a non-cognizable offence, a police officer does not have the authority to make an arrest without a warrant, and an investigation cannot be initiated without a court order.
In case of bailable offence, the grant of bail is a matter of right. It may be either given by a police officer who is having the custody of Accused, or by the court. However, a non–bailable offence is one in which the granting bail is not a matter of right. Any violation of the act or any offence committed under the section 3 i.e. if any act of violence is committed against healthcare service persons or damage or loss to property in a healthcare service institution shall be cognizable and non bailable.
Police do not have to wait till they get a warrant to arrest the person who committed the act. If the person fails to pay compensation, then the govt can go for a revenue recovery against the assaulter. The offender can be imprisoned for up to 3 years for the same. The provisions under this act does not provide bail at ease. The investigating officer has the right to investigate the case as from the time of confirmation of commission of offence.
The Procedure For Arrest, Bail, And Investigation
The offence committed is serious in nature. Therefore, the arrest can be made without warrant and investigation begins immediately as the consequences of the offence being mentioned can be a question to the safety of the society. Any offender who commits any act in contravention of section 3, shall be punishable with imprisonment for a period which may extend to three years and with fine-which may extend to fifty thousand rupees. The section 437 of CrPC talks about bail.
The offender shall be liable to pay to the healthcare service institution; a compensation of twice the amount of purchase price of medical equipment damaged and the loss caused to the property which the court determines during the proceedings of the offence. During the investigation, police can collect evidence, interrogate and examine individual. If under investigation police finds that the person is not provided with good treatment, the police can act against them. If the offender has not paid the compensation under sub-section (2), the said sum shall be recovered under the provisions of the Kerala Revenue Recovery Act, 1968 (15 of 1968), as if it were an arrear of land revenue due from him. The same way of penalties is described in the Cr.PC procedure.
The offence committed is a threat to society and that is the reason for considering it as non bailable but as the ingredient of bail is seniority of the offence that is committed. This provision allows a person to seek bail in expectation of an arrest on accusation of having carried out a non-bailable offence. Investigation should be started immediately, and the person must be arrested too. It is a cognizable offence so without warrant also the police can arrest the person.
The Investigating Officer must produce the accused before the Judicial Magistrate /Judge concerned within 24 hours of the arrest. In this offence accused may be granted bail if competent authority deems it fit, exceptional circumstances should be brought in and presented to show that bail would not harm further process of trial and justice. A charge sheet should be presented before the court. A court is bound to presume a person innocent till the trial is complete. This is the procedure followed for the offence committed. If the charge sheet is not failed to file within the time, trial judges can grant bail. The procedure of investigation under CrPC depends upon the offence and has 60-90 days to file a charge sheet.
Punishable Acts
This act complies three types of punishment of IPC i.e. Simple or rigorous imprisonment up to three years, Fine which may extend to fifty thousand rupees and Forfeiture of property if fine is not paid as a penalty for illegal conduct. If a person failed to comply with an order from the commissioner within TWO WEEKS after the notice is given, the commissioner can seek a compulsive forfeiture as considered by the court. The Judge has all the means to form an opinion on the sentence which would meet the end of justice in a particular offence. If the offence is grave in nature, then the Code had prescribed the maximum and the minimum duration of the punishment i.e. up to 3years. The decision should fit to the overall gravity of the offence. The punishment which is given shall not be severe unless required. when an offender is punished with more than one sentence, the overall sentence must be just and appropriate which shall proportional to the offending behavior.
The purpose of punishment can be a deterrent, rehabilitative, protection of the healthcare institutions (including those having provisional registration), registered nurses, medical students, nursing students, para medical workers employees, etc. sentencing shall not be depending on the bias or personality of the judge. There shall be a clear and definite scheme of sentencing. the sentencing shall reflect the actual term to be served by the prisoner in prison, so there shall be no place for ambiguity. The court can issue a warrant to levy the amount by attaching and selling any movable property which belongs to the offender, can issue a warrant to the collector of the district at the place of living of the offender, authorizing him to take the money from the immovable property or movable property or both.
Cheating by providing non-valid services or information is also an offence and s.417 of IPC gives punishment for cheating. S.201,202 &204 IPC also talks about disappearance, intentional omission and destruction of evidence to hide facts and s.6 of The Kerala Healthcare Service Persons and Healthcare Service Institutions, Prevention of Violence and Damage to Property) Act 2012 talks about the same. Burden of proof lies on the prosecutor.
Continuance/Repeal/Revival of The Statute
It is in power and is enforceable. To repeal, revoke, abrogate or cancel particularly a statute the new statue must be more beneficial to both parties. This act benefits the legal system of the country to uplift and ensure the safety of the health service institutions (including those having provisional registration), registered nurses, medical students, nursing students, para medical workers employees, and patients who are treated. This act protects the rights of the patients, doctors and the hospital properties in the time of an attack). The Government may, by notification in the Official Gazette, make rules for the purposes of carrying out the provisions of this Act.
Section 7 (2) of The Kerala Healthcare Service Persons and Healthcare Service Institutions, Prevention Of Violence And Damage To Property) Act, 2012 says Every rule made under this Act shall be laid, as soon as may be after it is made, before the Legislative Assembly, while it is in session for a total period of fourteen days which may be comprised in one session or in two successive sessions, and if, before the expiry of the session in which it is so laid or the session immediately following, the Legislative Assembly makes any modification in the rule or decides that the rule should not be made, the rule shall, thereafter, have effect only in such modified form or be of no effect. However, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
Section 8(2) mentions that if the repeal is not withstanding, anything done or deemed to have been done or any action taken or deemed to have been taken under the said Ordinance shall be deemed to have been done or taken under this Act. This act must not be taken away as taking away this act may lead to unprotected state of healthcare service institutions.
According to changes in the medical field in future the act can be repealed so as to improve. Reviving a statute of limitations means that the entire time period begins again. The differences are made with consideration to provide better implementation of law. In case the new provision is not benefitting then we can revive. The provision of repeal in this act is bought in good faith. The repeal made should not be preceding against the central or state government or any other government body.
Conclusion & Commentary
Everyone in the society has the right to healthcare. The people who so ever in any manner do any act against the safety of healthcare service institutions must be inside the bars. People should be socially responsible. If the trouble is caused due to doctors or the service provider harassment which in response created an inconvenience to a genuine person who had no intention to harm but due to provocation harmed, should have right to protest against wrong doing of the doctor or the service provider.[3] There must be such exception to be provided as to make things better and idealize the judgement hence, removing the ambiguities. Other amendment can be, consumer protection act makes it better for the patient to get perfect treatment possible due to medical negligence. To get a bail one must pay the full fine of twice the amount of damage. If the person tries to damage the whole property and risk the life of people, the fine must exceed twice the amount of damage and exceed imprisonment from that of three years. There should be a special regulatory body to keep a check on health care service institutions on a regular basis to prevent the corruption in medical records and data entry of treatment given.
There must be videography in every healthcare institutions with the help of CCTV and these records must not be destroyed for a decade. Every prescription made must be kept on records until a year passes after the patient’s death after the enquiry and, summary of the reasons responsible for death including death certificate copy must be kept. These are some of the amendments that can be made to safeguard the health care services. The fine amount is revised as above 1 lakh as additional penalty if the person does not fallow or does not obey the rules of police while under investigation. And in statutory penalty, upon conviction, be punished with imprisonment for a period of minimum 5months to years, inclusion to the liability for payment of a monetary penalty in the range staring from 5000rs.
At the time of pandemic such as COVID-19 there much be an action towards people who do not follow the rules/medical instructions for safety and welfare of the country. Every person should be treated equally in medical institutions while providing services. The services if not provided with best quality then there must be appropriate provision to bring up services. The statue must be repealed for the benefit of the healthcare service institutions.
WRITTEN BY- POOJA LAKSHMI, LEGAL INTERN, PRIME LEGAL
REVIEWED BY- RITI GUPTA, LEGAL ASSISTANT, PRIME LEGAL
References:
- The Kerala Healthcare Service Persons and Healthcare Service Institutions, Prevention of Violence and Damage to Property) Act 2012
- Indian Medical Association Vs V.P. Shantha & Ors 1996 Air 550, 1995 SCC (6) 651.
[1] S. 3 of the act.
[2] S. 2(e) of the act.
[3] Indian medical association vs V.P. Shantha & Ors 1996 AIR 550, 1995 SCC (6) 651.
