The healthcare workers across the world are most susceptible to workplace violence, but still their concerns are least discussed and deliberated upon. According to the World Health Organization, around 8% to 38% of healthcare workers suffer physical violence at some point in their careers. A study conducted by the Indian Medical Association had found that at least 75% of Indian doctors have faced some form of violence, 12% of which were in the form of physical violence.
While the incidents of violence against healthcare workers were already widespread in India, they have increased manifold during the COVID-19 outbreak and most of these attacks are perpetrated when the healthcare workers are sent to collect samples of suspected COVID-19 patients.
To quote a few instances, physicians at Gandhi Hospital in Hyderabad were attacked after a 49-year-old patient who had been tested positive for coronavirus died. In another incident at the same hospital, when a doctor admitted a suspected COVID-19 patient for testing, his son demanded for discharge. On refusal, the doctor was attacked. These incidents are not limited to Hyderabad and are often happening in various states of India (see here).
In Chennai, a mob not only attacked a healthcare personnel but also prevented the burial of a surgeon who died of COVID-19 infection, though the burial was carried out in accordance with the WHO’s burial guidelines.
Violence against healthcare workers can never be acceptable as it not only disrupts their physical and psychological well-being but also hinders their job motivation, as a result of which the quality of care provided by them could also be compromised. Although according to some experts the cause of violence against doctors is deeply rooted in the breakdown of trust between patients and doctors, the lack of comprehensive legislation targeting criminalization of such violent attempts reinforces the confidence of these offenders. The President of India has promulgated the Epidemic Diseases (Amendment) Ordinance, 2020 to curb these violent attacks during this pandemic but it cannot be said to be a permanent solution.
This post analyses the ordinance in light of similar legislation enacted across the world and emphasizes on the need of having a comprehensive legislation to deal with such violence in India.
Legislation enacted in other nations
Violence against doctors is on the rise worldwide. According to a survey by the Chinese Hospital Association, the incidents of violence against Chinese healthcare workers is increasing at the rate of about 11% per annum. These violent incidents reached its zenith in December 2019 when a man stabbed a doctor at the Civil Aviation General Hospital because he was not satisfied with the emergency treatment given to his mother. This incident was highly condemned by the Chinese Medical Doctor Association and also provoked widespread protests across the country. After this incident, the government felt the need of a stringent law in this regard and came up with the Basic Healthcare and Health Promotion Law to protect the healthcare workers in the country. This law will come into effect on 1st June 2020 and will forbid any agency or individual from threatening or endangering the personal safety of medical workers.
In the United States of America, according to statistics of the Occupational Safety and Health Administration (hereinafter ‘OSHA’), out of total 25,000 workplace assaults recorded annually in the United States, more than 75% of them took place in hospitals and other healthcare settings, of which there are 71% cases in which the nurses have been sexually harassed by their patients. In order to protect these health care workers, the U.S. House of Representatives has passed the Workplace Violence Prevention for Health Care and Social Service Workers Act (H.R. 1309) and sent it to the Senate for a second vote. This act is based on the OSHA guidelines and mandates the healthcare employers to implement comprehensive workplace violence preventive plan. The Act covers a variety of workplaces ranging from community health care settings to field settings. In order to ensure timely protection of healthcare workers, this Act also provides a quick timeline on implementation.
In the year 1998, the United Kingdom launched the “Zero Tolerance Zone” campaign which aimed at bringing focus on the issue of violence against the healthcare workers. Thereafter, the House of Commons Committee of Public Accounts (hereinafter ‘committee) was set up to look into the matter. The committee, in its 39th report, observed the alarming rate of violent incidents against the health care workers and recommended for the enactment of deterrent measures. Based on the committee’s recommendations, the Assaults on Emergency Workers (Offences) Act, 2018 was enacted. Section 1(2) of the said Act provided for imprisonment of up to 12 months in case of an assault or battery against a healthcare worker.
An analysis of the Epidemic Diseases (Amendment) Ordinance, 2020
Since the Parliament is not in session, the President promulgated the Epidemic Diseases (Amendment) Ordinance, 2020 (hereinafter ‘Ordinance’). This Ordinance recognizes any attack on the healthcare workers, including their properties, as a cognizable and non-bailable offence. In the past, many Indian states have enacted special legislation to protect healthcare workers, but unlike this Ordinance, they do not have such a wide sweep and ambit as they were focused primarily on physical violence and do not cover violence at home and healthcare settings.
The Ordinance envisages strict punishments. It has introduced certain offences with a prison term of up to 5 years, which may be accompanied by a maximum fine 2 lakh rupees in acts of violence (Section 3(2)), and up to 7 years of imprisonment which may be accompanied with a maximum fine of 5 lakh rupees in cases involving grievous hurt (Section 3(2)). Also, in case of any damage to property, the perpetrators would be required to pay double the fair market value of property (Section 3E(2)).
For the purpose of an efficient and time-bound investigation and trials, Section 3A of the ordinance gives it overriding effect over the provisions of CrPC and Section 3A(iv) states that an endeavor should be made to conclude the proceedings within 1 year. Sections 3C and 3D provide for presumption of guilt and presumption of culpable mental state respectively in the same way as Section 29 of the POCSO Act, 2012 does. Section 3D(2) provides that in order to rebut the presumption under Sections 3C and 3D, the accused has to prove such fact beyond reasonable doubt and not merely by a preponderance of probability. To corroborate the strictness of this ordinance, in case of failure in payment of the compensation awarded under the ordinance, Section 3E(3) of the ordinance provides that such amount shall be recovered as an arrear of land revenue under the Revenue Recovery Act, 1890. [for a critical analysis of these provisions, see here].
Though the Ordinance provides welcome relief amid the attacks, it cannot be regarded as a permanent solution for the attacks on healthcare workers as it amends the Epidemic Diseases Act. As soon as the epidemic ends, the Epidemic Act shall cease to function. Last year, the Ministry of Health and Family Welfare had proposed the Healthcare Service Personnel and Clinical Establishments (Prohibition of Violence and Damage to Property) Bill (hereinafter ‘Bill’) for comprehensively dealing with the situation. The Bill was somewhat similar to that of the Ordinance as the intention behind its introduction was to ensure the safety of the healthcare workers and to punish those who cause damage to their property or any healthcare settings. The Bill considers any act of obstructing/ causing hindrance to a healthcare personnel in the discharge of their duties within the premises of a clinical establishment or otherwise, as an “act of violence”. Section 7 of the Bill recognizes such an act as a cognizable and non-bailable offence. For the person committing such an act of violence, the Bill prescribes an imprisonment term of six months to five years accompanied with a monetary compensation ranging from INR 50,000 to 5,00,000 (Section 5(1)). Moreover, if the act of violence causes grievous hurt to the healthcare worker, then the Bill prescribes for a stricter punishment of three to ten years imprisonment along with a monetary compensation ranging from INR 2,00,000 to 10,00,000 (Section 5(2)).
In addition to the punishments as mentioned above, the Bill also prescribes for the payment of twice the fair market value of the damaged property/ loss caused and if the convict is unable to pay the compensation, then such sum will be recovered as an arrear of land revenue under the Revenue Recovery Act, 1890. However, during the inter-ministerial consultations, the Home Ministry opposed the enactment of such special legislation stating that the existing provisions of the Code of Criminal Procedure and the Indian Penal Code are sufficient.
The authors recommend that India should enact comprehensive legislation dealing with violence against healthcare personnel to instill confidence in the healthcare workers and provide them a safe working environment.
The article has been written by Milind Rajratnam and Srishti Bhargav
This article was first published in the Blog namely The Criminal Law Blog