NMIMS Law Review

NMIMS Law Review

COVID-19 SPECIAL: HEALTHCARE LAW

Posted on Author Law Review and Blog CommitteePosted in Healthcare Law, Year in Review: 2020

 DOCTOR’S PROTECTION LAW IN INDIA

  • Amidst news reports of violence against healthcare workers during the spread of the COVID-19 pandemic, the Epidemic Diseases (Amendment) Ordinance, 2020 was promulgated on April 22, 2020.  The Ordinance amends the Epidemic Diseases Act, 1897.  The Act provides for the prevention of the spread of dangerous epidemic diseases.  
  • The Ordinance amends the Act to provide provisions for health workers in the fight against infectious diseases and increases the powers of the central government to prevent the spread of these diseases.
  • The Ordinance was approved by the President of India on 22nd April, 2020. The Bill was then introduced in Rajya Sabha for permanent enactment of the law. It was passed by Rajya Sabha in September, 2020.
  • The Ordinance describes health service workers as individuals at risk of being infected with an epidemic while performing duties related to the epidemic, such as caring for patients. I public and clinical health providers such as physicians and nurses; (ii) any person empowered under the Act to take steps to prevent the outbreak of the disease; and (iii) other persons designated as such by the respective State Government.
  • ‘Act of violence’ under the Act involves any of the following actions committed against health service personnel: I abuse affecting living or working conditions; (ii) harm, disability, injury or threat to life; (iii) obstruction in the performance of duties; and (iv) loss or damage to property or documents of health service personnel. Property is classified as: I a clinical establishment; (ii) a quarantine facility; (iii) a mobile medical unit; and (iv) other properties in which health service staff have a direct interest in the epidemic.
  • The Ordinance specifies that no person can: (i) participate in or commit an act of violence against a healthcare service personnel, or (ii) participate in or cause damage or loss to any property during an epidemic.  A person committing these two offences is punishable with imprisonment between three months and five years, and a fine between Rs 50,000 and two lakh rupees.  However, for such offences, charges may by dropped by the victim with the permission of the Court.  If an act of violence against a healthcare service personnel causes grievous harm, the person committing the offence will be punishable with imprisonment between six months and seven years, and a fine between one lakh rupees and five lakh rupees.   All offences under the Ordinance are cognizable (i.e., a police officer can arrest without a warrant) and non-bailable.
  • Persons convicted of offences under the Ordinance shall be liable to pay restitution to the health care workers who have suffered damage. Such compensation shall be decided by the Court of Justice. In the event of injury or loss of property, the compensation due to the claimant shall be twice the fair market value of the damaged or destroyed property as determined by the Court.
  • In September 2019, the Ministry of Health and Family Welfare issued a bill to resolve the incidence of violence against healthcare workers and harm to the property of clinical establishments. The bill bans any acts of violence committed against health care workers, including doctors, nurses, paramedics, medical students, and ambulance drivers, among others. It also forbids any harm to hospitals, clinics and ambulances.

 

THE EPIDEMIC DISEASES ACT, 1897

♦ History of the Epidemic Diseases Act, 1897

  • The colonial government enacted the Act to resolve the outbreak of the bubonic plague that had spread throughout the Bombay Presidency of the 1890s. Using the powers conferred by the Act, the Colonial authorities would investigate alleged cases of plague in homes and among travellers, with forced isolation, evacuation and destruction of contaminated sites.
  • Historians have criticised the Act for its potential for violence. In 1897, in the year when the law was implemented, the freedom fighter Bal Gangadhar Tilak was punished with 18 months of extreme imprisonment after his newspapers, Kesari and Mahratta, had warned the imperial authorities to deal with the plague epidemic.

 

♦ Sections of the Act

  • The Act, which consists of four sections, aims to provide “for the better prevention of the spread of Dangerous Epidemic Diseases.”
  • Section 2 empowers state governments/UTs to take special measures and formulate regulations for containing the outbreak.
  • Section 3 provides penalties for disobeying any regulation or order made under the Act. These are according to section 188 of the Indian Penal Code (Disobedience to order duly promulgated by public servant).
  • Section 4 gives legal protection to the implementing officers acting under the Act.

 

♦ When was it implemented?

  • In 2018, the district collector of Gujarat’s Vadodara released a notification under the Act declaring the village of Khedkarmsiya in Waghodia taluka to be cholera-affected after 31 people had complained of symptoms of the disease.
  • In 2015, to deal with malaria and dengue disease in Chandigarh, the Act was enforced and control officers were ordered to ensure the release of Rs 500 notices and vouchers to offenders.
  • In 2009 the powers of Section 2 to resolve the outbreak of swine flu in Pune were used to open screening centres in civic hospitals across the city, and swine flu was declared a reportable disease.

 

♦ Scope in the future.

  • What we need is a legal structure that is applicable to the current context. Strong public health law infrastructure not only defines the powers of the government, but also forms the role of the government in the prevention and control of diseases. The Epidemic Diseases Act, 1897, is out of date.
  • The lack of uniformity between the various actions followed in different states was also a major problem. There is a need for an integrated, systematic, actionable and appropriate legal provision to manage outbreaks of disease in India. This should be expressed in a rights-based, human-focused and public health-oriented manner.
  • The National Health Bill is one of several proposed legislations. The draught National Health Bill 2009 aims to establish a legislative structure for the provision of vital public health services and powers to respond effectively to public health emergencies by effective cooperation between the Centre and the States. The Bill follows a rights-based approach which upholds the right to treatment and care. It explicitly sets out the public health responsibilities of the government.