PART VII Measures to Get Rid Out Form The Existing Problems. Chapter-8

8. Suggestions:

Despite the existence of some legislations and medical ethics, proper medical service remains an illusive proposition for the patients in Bangladesh. ⁸¹ To improve this condition, following steps may be taken :

4.1 Accountability to self-conscience:

The great edifice of the medical profession stands on a foundation of ethics, which outlines the duties of a medical practitioner towards his patient. ⁸² In fact ethics is a self-imposed code of conduct assumed voluntarily by the medical profession. When he fails to perform this duty properly, he is said to commit negligence. Every doctor has to take oath while entering into profession, where he promises to be abided by so many obligations. it should be towards the patients primanly, then his fellow doctors, teachers and society at large. Whenever a physician does anything contrary to his oath he will be accountable to himself at first. He has to declare at the time of taking oath, “I will endorse my life for the service of humanity; my first consideration will be the health condition of my patient, etc. “A doctor should keep in mind these words while giving treatment to his patient and would regulate himself by the code of medical ethics. Commitment to service and adherence to the self-imposed discipline of ethical conduct could be the best check upon medical negligence and the nobility of the professions could have been maintained thereby.

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⁸¹          Dr. Menon Madhava R. N. “Medical Negligence Liability; Emerging Trends in Indian Law and Practics.” Law and Medicine, Vol. 3 Bangalore, India (1997) pp. 14, 15.

⁸²          Ibid, p. 15

8.2 New Codes of Conduct:

In the light of new knowledge and considerations of human rights and social justice, doctors, nurses, para medicals and hospital administrators should formulate new laws and practices governing conduct of professional services. These codes of conduct should be subjected to periodic review at the highest level and should be transmitted to every member of every member of the profession with examples and directives. Committees of professionals known for their experience and integrity should monitor and oversee the observance of such norms without fear or favour. If the electoral processes within professional bodies are coming in the way of effective implementation, the medical council should be authorized to constitute disciplinary committees selected on the basis of competence and integrity through transparent and objective procedures. Punishment for erring members should be determent and in extreme cases, exemplary Reports of such actions should be widely publicized to inform the people to be careful of such elements in professional ranks.

8.3 Continuing Education:

Continuing Education in appropriate modules should be made compulsory for every member and more particularly to the so-called specialists. Apart from updating their knowledge and skills, such courses should aim at informing them of the ethical and legal standards and on how to carry on medical practice in conformity with in exceptions of society. The medical councils and associations have to take the initiative and medical colleges in different districts can hold the programmes on a continuing basis.

8.4 Need for New Law:

As the existing laws have been proved to be inadequate, in order to regulate the cases of medical negligence a new law should be enacted. The main disadvantage of proceeding under the criminal law is that it does not contain any provision dealing with the concepts of duty of care, standards of care, breach of duty of care etc. These are the fundamental principles determining liability for negligence, which are the subject matter of tort. The proposed law should contain a specific provision on these concepts. Another problem lies with the present system is that neither the doctor nor the hospital authority can be compiled to give to the patients the documents containing the case history along with the recommendations made by the doctor, medicine prescribed, other suggestions given time to time. It is very difficult to prove a case of negligence in the absence of such document. Under the difficult to prove a case of negligence in the absence of such document. Under the proposed system the doctor or hospital authority would be required to give such document to the patients keeping a copy of the same for their own use. ⁷³ The new law should introduce a scheme enabling the victims to get a prompt and effective relief of medical negligence, that is, it should be free from all complexities of the ordinary courts. It would allow the victims of file such a suit without any court fee or at a nominal court fee.

The adoption of anew law like Consumer Protection Act as it exists in many countries may be of use of include the above proposals. With the object of providing better protection of the consumer interests in the background of certain guidelines evolved by the United Nations on the subject in 1985, many countries like India (1986), Pakistan (1995), Nepal (1998), malaysia (1999), Indonesia (1999) adopted laws on consumer protection. Bangladesh started a process of enacting such a law in 1992. But it has not yet been adopted, through a number of drafts of the proposed law have been made at several times. ⁸³

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⁸³ Ibid.

An alternative and effective system for medical negligence might have been introduced in the Act. In India, for example, victims of medical negligence can go to the consumer courts under the Consumer Protection Act, 1986. This Act contains no specific provision on medical negligence. But in Indian Medical Association v. V. P. Shanta⁷^¹ the Supreme Court held that medical services indeed do fall within the consumer protection. In spite of the fierce reaction showed by the doctors, it was brought within the purview of the Act. They doubted about the competency of the consumer courts in deciding on medical issues, which are highly technical and argued that a judge who does not have any medical background could not determine whether in particular case the doctor has administered treatment properly or not. ⁸⁴ But their contention was not entertained. Given the failure of the medical councils to keep malpractice in check, given, the extreme commercialization of heath sector where non medical people venture into the health market, and given the extreme poverty and ignorance of a large section of the people, the National Consumer Forum and the Supreme Court have been persuaded to include the medical profession within the scope of the Consumer Protection Act. The problems in the health sector of Bangladesh are: he same. The proposed Act is therefore, required to include specific provisions en medical negligence, so that it could avoid the difficulties that India faced while including it within the scope of the Consumer Protection Act, 1986. In order to ma consumer court's jurisdiction more acceptable medical fraternity should be asked to suggestions on the matters.

Without going to the costly, dilatory, and complexities of civil litigation the plaintiff get relief from the consumer forum, which should be more easily accessible time consuming, more flexible in procedures and desirable in the context of "creasing commercialization of health services. ⁸⁵

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⁸⁴ Ibid.

⁸⁵ The Daily Prothom Alo, 10^th September, 2006

It is but natural that judges may not be competent enough to decide cases on medical issues, which are highly criticized. It may assume from this that it would be better to leave these issues to a regulatory body composed of medical experts. But it cannot be a solution in a country like Bangladesh where the regulatory bodies in most of the department are seemed to be inactive. Apart from this the impartiality of the members of such board may be questioned as the accused himself belong to the same profession. In order to make a balance between the interest of the patient and physicians a forum should be introduced which is free from all shortcomings of the ordinary courts and the medical regulatory bodies. The consumer forum under the Consumer Protection Act should be constructed in this way. Two medical experts nominated by the Bangladesh Medical Association may be inducted in the consumer forum whenever the forum hears serious cases of negligence.⁸⁶

If medical services were treated as like as other services as it has been done in the case of India, then the forum would have no jurisdiction in the cases where treatment is given free of cost. ⁸⁷ As a result the government hospitals upon which most of the people depend could very easily escape their liability. Medical services should therefore, be treated distinctively from other services. In such a case a physician can be held liable for negligence irrespective of the fact whether he practices privately or an employee of a hospital. The right of the patient could be protected more effectively under this rule. The new law should also make provisions for vicarious liability. So that a hospital authority may be held liable for the negligence of doctors who are its employees, senior doctors for that of his junior and the owners of clinic for the negligence of its employees.

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⁸⁶          (1995) 6 SCC 651.

⁸⁷          Damayanti S. “What is Medical Negligence? What are the Standard of Care Principles”, op. cit, p. 48

8.5 Active Regulatory Bodies

Adoption of new aw on medical negligence cannot be the last word. The regulator/ bodies have a critical role to clay. They should take exemplary actions against the accused doctor, which would deter other from repeating the same offence. The BMDC, which is concerned with the private practice, should take disciplinary action against a doctor who has committed negligence without fear and favour. The' DG Heath and Health Ministry are the appropriate authorities in other cases that is, where health service is free of cost. In Health Ministry there must be a special branch to consider the complaint of negligence and an administrative tribunal may be established to settle such disputes.

8.6 Judicial Activism

Article 15 of the constitution Bangladesh provides that it shall be a responsibility of the state. Through planned economic growth, a necessary of project forces and 2 steady improvement in the maters cultural standard of living of the people with a view to securing to its citizens this provision of the basic necessities of life, Deluding food, nothing, shelter, education and medical care. As the Article dealing with the basic necessities of life is embodied in part II of the constitution as directive principles of state policy .t is not judicial enforceable. So the person to whom the right to medical care is denied cannot move to the High Court Division for its enforcement under Article 102 of the constitution. Right to life is a fundamental right guaranteed by part III of the constitution and thereby judicially enforceable. ⁸⁸ In straight forwards an attempt use in the form of law suit against Government measures moles the fundamental principles of state policy while mole be maintainable in the court. The right to medical care can be brought within the purview of right to life, 'which includes the basic necessities of life. ⁸⁹

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⁸⁸             Shobnom Sohana, (2001) "Dactari Abohe Snonkranto Bangladesher Airi'', op. cit, p. 49.

⁸⁹             Article 15, The Constitution of the Peoples Republic of Bangladesh.

Under Article 18 of the constitution the government is under an obligation to take measures for the violation. ⁹⁰ In India medical profession has been brought within the ambit or service under section 2(1) (o) of the Consumer Protection Act 1986. Under this section service means service of any description which is made available to potential users and includes the transport, processing, supply of electrical or other energy, boarding or lodging or both, entertainment, amusement or the purveying of news or other information but does not include the rendering of any service free of charge or under a contract of professional service improvement of public hearing. Failure on the part of a government hospital to provide timely medical treatment to a person in need of such treatment results in a violation of his right to life guaranteed under Article 32. Leaving the rigid and complex process the court should proceed with the liberal interpretation of the constitution. The fundamental principles should be a guide to the interpretation of the constitution. ⁹¹ The court through judicial activism can enforce t-he right to basic necessities and health.

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⁹⁰             Shobnom Sohana, (2001) "Dactari Abohe Snonkranto Bangladesher Airi'', op. cit, p. 49.

⁹¹             Article 15, The Constitution of the Peoples Republic of Bangladesh.
8.7 Public Interest Litigation (PIL)

Illiteracy and poverty are two major factors, which refrain the people from seeking relief by judicial process. Being illiterate they do not know about the rights, which have been violated by negligence, 3rd what type of relieves is available for it. The ways of seeking relief by the courts often gives rise to further sufferings, as they involve huge costs, which may not be afforded by the poor people. The active participation of the voluntary associations, legal aid NGOs, and human rights activists may improve the situation. They can file public interest litigation in such a case. Sometimes a prompt action is required to be taken to save the life of a patient whose condition has become deteriorated because of medical negligence. The ordinary civil and criminal process of the court may not be suitable here and a writ petition may be filed in the form of cyclic interest litigation. In Asma's case the High Court Division on the basis of such a litigation Flea by a human rights organization Darned  Adhikar" directed the relevant government authority to take immediate steps for her treatment. ⁹² The rights of the victims can be protected more efficiently, if the human rights NGO’s come forward to help them who are in a vulnerable position with the instrument of public interest litigation.

8.8 Role of Civil Society

The civil society has to play a vital role as regard the implementation of the rights of victims of medical negligence. Courts already face a substantial workload and while they have definite means to compel governmental compliance, the cannot be expected to assume full time role as government watchdogs. Civil society through the media, non-governmental organizations, lawyers and other professionals bear the responsibility of ensuring that constitutional obligations of right to health are met.⁹³

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⁹²             Article 32 of the constitution provides that no person shall be deprived of life or personal liberty save in accordance with law.

⁹³             Francis Corallie Mullin v. Administrator of Delhi MR (1981) SC 746.

8.9 Complain Box

In each and every hospital medical center there should be a complain box or complain center. The patients may put their grievances and suggestions to improve the existing situation. The BMDC should consider them seriously and heartily.

8.10 Awareness Programme

Ignorance of right is one of the main important reasons of the non-implementation of the rights of victim. So they should be made conscience about the rights to which they are entitled, how to check the violation and what is to be done in the case where violation has already been occurred. The non-governmental organization, human rights activists, media, and the government as well may conduct such awareness programme.