This article is written by Shivani. A. It provides a detailed analysis of the legal aspects of nursing. The article discusses the history of nursing and the offences related to nursing in torts as well as in the Indian Penal Code, 1860. The article also provides insights with respect to the consequences of the offences committed by nurses and also the defences which are available to nurses under various provisions of the Indian Penal Code, 1860. Further, it contains various judicial pronouncements pertaining to the negligence of medical practitioners and frequently asked questions related to the topic.
It has been published by Rachit Garg.
Table of Contents
Medical professionals and caregivers indeed have one of the most important jobs in the world. Nurses play a crucial role in ensuring the health and well-being of their patients. As quoted by Florence Nightingale, “Nursing is an art: and if it to be made an art, it requires an exclusive devotion as hard a preparation as any painter’s or sculptor’s work.” The profession of nursing is such that nurses must abide by the standard duty of care which is expected to be followed by them, else, they might be subject to legal action against them. Since the profession in itself is so important, the nurses sometimes have to make decisions and perform tasks that might result in legal action being instituted against them. Hence, in order to prevent such circumstances, it is pertinent to ensure that the nurses are educated and aware of the laws and statutes which are directly related to the nature of the job that they perform. It is also vital for them to follow certain legal and ethical standards for maintaining the safety, trust and dignity of the patients. This article therefore provides a comprehensive analysis of the legal aspects of nursing, various kinds of liability of nurses and the remedies available to the patients. For this, the article has analysed provisions mentioned in the Indian Penal Code, 1860, the Indian Nursing Council Act, 1947, the Consumer Protection Act, 2019, the Mental Health Act, 1987, Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, etc. The article also analyses various case laws pertaining to the topic.
History of nursing
The profession of nursing gained significance in 1854 during the period of the Second World War. This was a period during which Florence Nightingale was asked to go to the main theatre of war as there was the death of around fifty percent of the wounded soldiers due to the absence of servers, lack of supplies, food and absence of nursing facilities. After she and her team reached the place, they made sure that they brought significant improvement and brought down the death rate of the soldiers to 2.2 percent.
Florence Nightingale always advocated for the training of nurses and was of the view that the nursing services should always consist of nurses who have undergone special training. Some of the concepts preached by her are as follows:
- There should always be a professional relationship between doctors and nurses.
- The nurses should be trained in such a manner that they are capable of nursing the patients in hospitals as well as taking care of sick people in homes.
- The nurses should also be able to teach good health practices to their patients.
- A substantial amount of knowledge pertaining to nursing should be taught to the nurses during their training.
The increase in the role of nurses after the Second World War and also the increase in the number of legislations pertaining to the profession made the people realise that even nursing had its own independent identity as a profession and is not merely adjunct to the profession of a physician or a surgeon. A famous Canadian doctor, Sir William Osler, expressed his view that the profession of nursing is equally important to that of a physician and a surgeon and is in no way inferior to them. He also claimed that nursing is one of the greatest blessings for humankind.
Legal scenario of nursing
It is pertinent to note that like law relating to many other subjects, the law related to nursing also cannot be found in a single enactment and many sources need to be referred to have a clear understanding of the same. In order to understand the intricacies of the law related to nursing, one must refer to the following sources:
- The central enactment on the subject
- The state laws
The Central Act
The only central legislation pertaining to nursing in India is the Indian Nursing Council Act, 1947. However, this Act doesn’t provide any details regarding the rights and responsibilities of nurses. Instead, it mainly focuses on the education, training and examination of nurses. Section 12 of the Act deals with the training and examination of nurses. It states that any authority in any state which is qualified to grant recognized qualification will furnish the information related to the qualifications which must be obtained by nurses, the courses which must be studied by the nurses, the examinations which must be passed by the nurses to fulfil the qualifications whenever the council required the authority to do so.
Section 15A of this Act provides details regarding the Indian Nurses Register and provisions of this Act are only limited to the formalities of registration and do not extend beyond the same. Section 15B of the Act states that all the state councils should submit 20 printed copies of the state register to the national council before the 1st of April each year. The state council should also keep updating the state register regarding all the additions and other amendments from time to time.
They do not deal with disciplinary proceedings for misconduct. The main object of this Act is to provide nurses with appropriate education and aims to create a council to achieve this objective. Also, it doesn’t have provisions to prohibit the practice of nursing by unregistered persons, nor does it lay down any code of ethics which has to be followed by the nurses. The Act was amended in 1957, however, the amendment failed to expand the scope of the Act.
In India, the legislation enacted by the individual states is considered to be very important for the professional conduct of nurses. The legislatures of many states have enacted their own laws on nursing which are applicable only in that particular state.
For example, The Bengal Nurses Act, 1934 is the law made by the Legislative Assembly of Bengal. This Act contains all provisions related to the aspects of nursing like the establishment of the State Nursing Council, registration of nurses, removal of names of nurses from the register, procedure for conducting disciplinary proceedings against the nurses, etc. The Maharashtra Nurses Act, 1964 and the Karnataka Nurses, Midwives Health Visitors Act, 1961 are a few other similar Acts of other states.
Liability in common law
The study of uncodified law also plays an important role in understanding the law related to nursing in India. It helps a person understand how a nurse becomes liable for professional negligence under torts or civil wrongs. In common law, the liability of the nurses arises out of a breach of duty of care which makes them liable to pay compensation to the victim.
Also, as per common law, this duty of care does not arise out of a contract between the nurse and the patient. Rather, it is based on the general principles of the law of torts. The amount of duty of care which should be exercised by the nurse can be determined by observing the duty of care a reasonable man would exercise under similar circumstances. If the standard of care exercised by the nurse is the same as that of a reasonable man under similar circumstances, the nurse will not be held liable. Else, the nurse will be liable to pay compensation to the patient.
It was held in the case of Michael Hyde & Associate v. J.D. Williams & Co. Ltd. (2001) that, “Whenever there is a conflict as to what is the acceptable standard of conduct, then, the competence of the defendant has to be judged based on what would be considered as the lowest standard that would be considered as acceptable.”
According to Halsbury, these general principles are not only applicable to surgeons and physicians but also to all other people who give medical advice or treatment like dentists, nurses, midwives, etc.
Offences in tort vis-a-vis nursing
A tort refers to a civil wrong, whose commission or omission leads to a person being liable to pay damages or monetary compensation rather than imprisonment. Torts can be classified into two kinds:
- Intentional torts
- Negligent torts
Though generally, the intention of a person is irrelevant in deciding the liability of a person in torts, there are some torts for which the intention of a person is considered. In these types of torts, it is believed by the court that the person committing the tort is aware that the act committed by him will result in some kind of injury to others. Hence, these torts are called intentional torts. Some of the intentional torts are as follows:
Assault and battery
Assault is said to occur when a person intentionally puts another person in a reasonable apprehension of being subjected to imminent and harmful contact. Battery is said to occur when a person engages in intentional physical contact with another person which is harmful and without the consent of the person being subjected to such contact.
Illustration: A patient can refuse medication or treatment which is administered to him. If a nurse forcefully makes the patient undergo the treatment or medication, without the consent of the patient, it can be considered assault or battery. However, if the treatment is provided by the nurse in good faith, in an emergency situation to protect the patient’s life, it will not be considered assault even if the treatment is administered to the patient without his consent.
In the case of Ram Bihari Lal v Dr. J. N. Srivastava (1985), a patient was suspected to have appendicitis and was thus operated on by the doctor after obtaining the consent of the patient. However, during the operation, it was discovered by the doctor that the patient did not have appendicitis, rather, he had some problem with his gall bladder and thus removed it in the interest of the patient. Later, it was observed that the kidney of the patient was damaged due to the operation. It was held by the High Court of Madhya Pradesh that the doctor was liable as the first priority must be given to the autonomy of the patient and the doctor had acted without obtaining the consent of the patient. When he proceeded to remove her gall bladder, he was acting sans valid consent, which was an extreme case of professional paternalism and gross disobedience to the right of the patient’s autonomy.
False imprisonment is said to be committed when a person wrongfully restrains another person in such a manner that the person is wrongfully confined within a bounded area. It does not require the usage of physical force by the wrongdoer. It is sufficient if the person being confined has no reasonable means to escape and if he is being confined without his consent. Also, the time for which a person is confined is irrelevant.
The restraints which are imposed on a person can be physical, chemical or verbal. Nurses must ensure that they follow the policies of the agency pertaining to the restraints which can be imposed on a patient and should also carefully monitor the patients who are restrained. Chemical restraints include administering any kind of drugs which restrains the patient from any kind of movement. Usage of Pro re nata (PRN) medication comes under the ambit of chemical restraint and must be supported by clear documentation permitting the usage of such medicines. The term ‘Pro re nata’ is a Latin word which literally means ‘as needed’. It refers to those medicines which should be taken only under certain circumstances and should not be used regularly. Such medicines are generally administered to treat symptoms that occur every now and then like pain, insomnia, etc. Verbal threats against a patient to ensure that he stays under the supervision of the nurses also amount to false imprisonment and must be avoided.
Generally, most of the cases pertaining to false imprisonment can be observed against patients who have psychological conditions or those patients who are unable to pay their bills post treatment. Even such patients are entitled to file a suit of false imprisonment. However, if a hospital or any of its employees detains a patient in the hospital due to reason that he is suffering from a contagious disease, it cannot be considered as false imprisonment. Also, if the doctors feel that a patient undergoing a psychological issue might cause any sort of harm to himself or to any other person if he leaves the hospital, he can be forced to remain within the hospital. Additional information pertaining to the use of restraints is mentioned here.
Privacy and confidentiality
Confidentiality is the right of an individual which entitles him to protect the information about his health and keep it private. Invasion of privacy refers to the intrusion into the personal life of another person without any reasonable and just cause. Whenever such a situation occurs, it entitles a person whose privacy has been violated to bring a lawsuit against the person who violated his right.
The Medical Council of India’s Code of Ethics Regulations protects patient confidentiality by stating that the physician shall not disclose the secrets of a patient that have been learnt by him in the exercise of his or her profession. However, a medical practitioner may disclose the same in the following circumstances:
- In a court of law under orders of the presiding judge,
- in circumstances where there is a serious and identified risk to a specific person or community or,
- in case of notifiable diseases.
The right to privacy of a person helps him to be free from unwanted publicity and also advocates for the right of a person to live his life without publishing any intricate details of his life against his will. Hence, this imposes a duty on hospitals, physicians as well as nurses to refrain from divulging information about patients from medical records to improper sources. If any hospital or any staff of a hospital divulges the information of any patient, they will be liable for invasion of privacy.
However, there are certain circumstances like a patient suffering from communicable diseases, child abuse, elder abuse, gunshot wounds, etc, in which the hospital has to disclose the information of a patient and they will not be liable for breach of privacy. Section 13 of the Mental Health Act, 1987 states the circumstances in which there is no breach of privacy when a patient is made to disclose his private information. It provides that an Inspecting Officer may require any psychiatric hospital or nursing home to produce any records of a patient and may also conduct a private interview of the patient if the Officer feels that the patient is not provided with proper care and treatment or when the patient has complained that he is not receiving pepper treatment. The Inspecting Officer may report the matter to the licensing authority if he is satisfied that any patient is not receiving proper care in the hospital and this will not amount to breach of privacy of the patient.
In the case of Mr. X v. Hospital Z (1998), the appellant was diagnosed to be positive for Human Immunodeficiency Virus (HIV) when he attempted to donate blood at the respondent hospital. The hospital disclosed this information to the Appellant’s fiance which led to his marriage being called off. The appellant contended that the disclosure of such information amounted to a breach of privacy and was against Article 21 of the Constitution. The Supreme Court held that the right to privacy and confidentiality of the appellant was not enforceable in the instant case as the disclosure of information was to avoid the spreading of the disease to the appellant’s fiance and was only done to save her from being infected with a dreadful disease.
For more information pertaining to privacy and confidentiality, click here.
Defamation is said to occur when a person makes any false communication, shaming or ridiculing another person in such a manner that it causes the person being ridiculed to suffer damage to reputation. Even though a person is entitled to the right to freedom of speech and expression under Article 19(1)(a) of the Constitution, he does not have the right to defame a person as defamation is a reasonable restriction under Article 19(2).
Defamation can be classified into two types: slander and libel. Whenever a person defames another person by spoken words, it is called slander. Whenever a person defames another in writing or visual representation, it is termed as libel. To make a person liable for slander, the plaintiff must prove actual damages. However, with libel, no actual proof of damages is required to prove the liability of the defendant. The court will presume the liability of the defendant in libel. Also, no proof of actual harm to the reputation of the plaintiff is required when the statement made by the defendant is such that it affects the profession or business of the plaintiff.
The medical profession is based on the trust and confidence of the patients in their doctors and nurses. Therefore, whenever a patient discloses any personal information about his condition to the doctor, and the doctor releases such information to any third party only to warn the third party about the condition of the patient, there have been instances in which the patients have claimed that such revelations made by the doctors amounted to defamation. However, this is not defamation unless the information disclosed by the doctor is not true.
For example, in the case of Mr. X v. Hospital Z, the communication made by the doctor to the fiance of Mr. X cannot be considered as defamatory as it was made by the doctor in good faith to prevent the spreading of the HIV disease to his fiance and the doctor had no ill will towards the patient.
Therefore, there are certain defences which can be claimed by the medical practitioners to avoid liability under defamation. If the medical practitioner proves that the statement made by him is true, he will not be liable for defamation. A privileged communication is also outside the scope of defamation. Also, in both defences, the statement must be made by the medical practitioner in good faith and in the absence of malice or ill will towards the patient.
Misrepresentation and Fraud:
Fraud or misrepresentation can occur when a patient is deceived by a nurse for personal gain. A nurse may be charged with fraud when he or she documents procedures which were not performed on the patient at all or when he or she alters the documentation of a patient to conceal any sort of errors which were committed on the patient during the procedure. A nurse can be liable for civil as well as criminal charges for committing fraud. The hospital might also be liable along with the nurse for committing such an act.
In the case of Susan Meek. V. Southern Baptist Hospital of Florida, Inc. (2003), the patient was admitted to the hospital for a hysterectomy and started bleeding after surgery. The physician told the nurses to perform frequent leg examinations on the patient. However, the patient claimed that the examinations were not performed as a result of which the patient suffered nerve damage. There was no information as to whether the examination was performed by the nurses as there was no documentation supporting the same. Hence, in this case, the hospital was held liable and had to pay her $1.5 million in damages.
Negligent torts and nursing
The term negligence refers to failure to exercise a duty of care which would have been exercised by a reasonable person under similar circumstances. A person is considered to be negligent when he does something that a reasonable person would believe to be an unreasonable risk to a person or property without any intention to do so. In nursing, the liability of nurses for negligence is very vast and is somewhat an uncharted topic. The standard of care required by nurses is abstract and it varies according to the facts and circumstances of a case.
A nurse is generally liable for the negligent acts committed by her. A hospital or nursing home is also responsible for the negligence committed by the nurse when the act is done in the course of employment. Whenever a nurse is supplied to a hospital by an organisation and the nurse commits a negligent act, the liability of the organisation will depend upon the terms of the contract between the organisation and the nurse. However, a nurse will not be liable if the act which was considered to be negligent was committed by the nurse as per the instructions of a surgeon, physician or anaesthetist concerned.
Illustration: If a nurse fails to monitor a patient’s vital signs properly because of which the patient goes into cardiac arrest, the nurse will be liable for negligence even if the nurse followed all of the standards of care.
In the case of Laxman Balkrishna Joshi v. Trimbak Bapu Godbole And Anr (1968), the Respondent’s son, suffered a fracture in his leg and was moved to the Appellant’s hospital for treatment. The Appellant instructed his assistant to give his patient two doses of an injection, but only one dose was administered which led to the death of the patient. A suit was filed against the Appellant. The Supreme Court held that if the doctor does not act with due care, he will be liable even if he has acted with the consent of the patient.
Malpractice and nursing
The tort of malpractice is very similar to negligence. Malpractice is said to occur when a medical practitioner fails to comply with the standards required by his or her profession resulting in harm to a patient. The term ‘malpractice’ includes four elements:
- Duty of care
- Breach of duty
- Proximate cause
The first element which must be proved by the plaintiff to claim damages under malpractice is the standard of duty of care. This is the easiest element to prove. This is because the duty of care can be ascertained by simply establishing the relationship between the patient and the nurse at the time of occurrence of the injury. This relationship is presumed to exist by merely having a patient on a unit.
Illustration: If a nurse walks past a room and a patient who is not assigned to the nurse asks the nurse for help and the nurse thereby helps him, a relationship gets established simultaneously. However, if the nurse denies help to the patient and the patient suffers harm because of such denial, the nurse will be held liable and the defence that the patient was not assigned to the nurse cannot be claimed by the nurse. This is because a patient has the right to rely on the nursing staff to protect his interests at all times.
The second element which must be proved by the patient is that there was a breach of duty by the nurse. Once the patient has established that there was a duty of care which had to be exercised by the nurse, it is necessary for the patient to demonstrate that there was a breach in the duty of care exercised by him and that the nurse had deviated from the acceptable standards of practice. The patient must prove that the nurse did something that a reasonable nurse would not have done and failed to do something which a reasonable nurse would have done under similar circumstances.
Injury is the third element to constitute the tort of malpractice. The term injury refers to bodily injury. If no injury is caused to the patient, the nurses will not be liable for the tort and the patient will not be entitled to claim for compensation or damages. To receive damages, the plaintiff must prove that some kind of harm was suffered by him due to the negligent act of the nurse.
The fourth element to constitute a tort of malpractice is proximal cause which is also called causation. There must be a logical link or foreseeability between the act of the nurse and the injury suffered by the patient. ‘But for’ test can be used to ascertain whether there is a proximate link between the act of the nurse and the injury suffered by the patient. This test states that ‘but for the act of the nurse, the injury would not have occured’. Mere departure from the procedure which must be followed doesn’t lead to liability of a nurse if there is no proximate cause.
As per this test, the act of the nurse should be the cause of the injury sustained by the patient and there should be no intervening cause between the act of the nurse and the injury sustained by the nurse. However, even in the presence of an intervening cause, if the act committed by the nurse is the main cause for the injuries of the patient, then, the nurse will be held liable.
In the case of Barnett v. Chelsea & Kensington Hospital (1969), Mr. Barnett visited the hospital as he was suffering from severe stomach pains, vomiting, and diarrhoea. The doctor prescribed him some pain killers believing that he was only suffering from a stomach bug. The same night, Barnett died due to arsenic poisoning. A case was filed against the hospital for medical negligence.
The court applied the ‘But for’ test in this case. The court asked: “But for the doctor’s negligent conduct, would Mr. Barnett have died?” The evidence in the present case showed that even if the doctor had diagnosed arsenic poisoning and had prescribed him some medicines, the condition of Mr. Barnett was so severe that he would have still died. Hence, the court held that the doctor was not liable for medical negligence as the ‘But for’ test was not satisfied.
Offences in the Indian Penal Code vis-a-vis nursing
The entire criminal jurisprudence is based on the maxim, ‘Actus non facit reum nisi mens sit rea’ which literally means that an act cannot be considered as an offence under criminal law unless it is done with ‘Mens rea’ or a ‘guilty mind’. Hence, the main element that distinguishes an act of a medical practitioner under torts from that of a criminal act is the presence of a guilty mind or intention of the person at the time of commission of the act.
There are various provisions under the IPC which deal with criminal acts committed by medical practitioners. The concept of medical negligence has been provided under the following sections of the IPC:
Section 304A IPC
This section deals with the cases in which death is caused due to a negligent act. It is also known as medical negligence or criminal negligence. It states that if a person commits a rash or negligent act towards a person in such a manner that it amounts to culpable homicide, then, the person who commits the act will be liable for imprisonment for a term which may extend to two years or fine or both.
In the field of medical practitioners, if a nurse commits a rash or negligent act towards a patient in such a manner that it amounts to culpable homicide, then, the nurse will be liable for medical negligence under this Section. Professionals such as medical practitioners are expected to profess certain special skills. Whenever such a professional violates the duty of care which had to be exercised by him with respect to such special skill, then, he is considered to be liable for professional negligence. However, it is not necessary that the professional should be an expert in the branch that he practises.
However, it was held in the case of Kurban Hussein Mohomedalli Rangawalla v. State of Maharashtra (1965) that, “For a person to be liable under Section 304A of IPC, it is necessary to prove that the death of the person should be a direct result of the act committed by the accused and it should be the proximate cause of the death without any intervening cause. It must be causa causans; it is not enough that it may have been the causa sine qua non.”
In Samira Kohli v. Dr. Prabha Manchanda & Anr. (2008), a 44-year-old patient was complaining of menstrual bleeding for 9 days and underwent an ultrasound test. She was advised to take a laparoscopy test under general anaesthesia. The patient, while under general anaesthesia, was subjected to a laparoscopic examination. The doctor then took the consent of her mother who was waiting outside the operation theatre and removed the uterus, ovaries and fallopian tubes of the patient. It was held by the court that when the consent of the patient has been obtained for a particular operation, the doctor cannot consider the same as consent for additional unauthorised procedures like the removal of an organ even though it is beneficial for the patient if there is no imminent threat on the life of the patient.
Section 337 IPC
This section deals with the causing of hurt to a person. It states that if a person commits an act in a negligent or a rash manner such that it endangers the life of a person, then, the person committing the act will be liable for imprisonment for a term which may extend to six months or for a maximum fine of Rs. 500 or both. The term ‘hurt’ is defined under Section 319 of the IPC. It states that a person is said to cause hurt when that person causes bodily pain, disease or infirmary to another person.
Therefore, if a nurse performs any of his or her functions in a negligent or a rash manner such that it endangers the life of the patient by causing bodily injury, disease or infirmary to the patient, the nurse will be liable for causing hurt to the patient under this section.
Illustration: If a nurse, who is authorised to provide injection to a patient, performs the act negligently and thereby uses a contaminated syringe which causes the patient to develop some kind of a disease, the nurse will be liable for hurt under Section 337.
Section 338 IPC
This section deals with the causing of grievous hurt to a person. It states that if a person causes grievous hurt to another person by committing an act in a rash or negligent manner such that it endangers the life of the person, the person committing the act will be liable for imprisonment for a term which may extend to two years or with a fine of maximum Rs. 1000 or with both.
The term ‘grievous hurt’ is defined under Section 320 of the IPC. It states that, only the following acts can be considered as grievous hurt:
- Permanent privation of the sight of either eye.
- Permanent privation of the hearing of either ear,
- Privation of any member or joint.
- Destruction or permanent impairment of any member or joint.
- Permanent disfiguration of the head or face.
- Fracture or dislocation of a bone or tooth.
- Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
Therefore, if a nurse commits any of the acts mentioned in Section 320 in a rash and negligent manner thereby endangering the life of the patient, he will be liable under Section 338 of the IPC.
Defences to criminal liability of nurses under the Indian Penal Code
Section 80 IPC
This section deals with cases in which a person commits a wrongful act accidentally while doing a lawful act. It states that whenever a person does an act which is lawful in a lawful manner and with proper care and caution, however, another person gets injured in the process by an accident or misfortune, without any criminal intention on the part of the person committing the act, then, the person will not be liable for negligence.
This section protects nurses and other medical practitioners from being punished for medical negligence under the IPC and helps them in carrying out their duty without the fear of conviction under the Code.
Illustration: A doctor administers a drug to a patient, unaware that the patient is allergic to it, resulting in an adverse reaction. However, as long as the doctor acted in good faith and exercised due diligence, Section 80 IPC can be applied to shield the doctor from legal repercussions.
Section 81 IPC
This section provides for the defence of necessity. It states that if a person does any act in good faith and without any criminal intention and does the act to prevent greater harm to any other person, then, the person committing the act will not be liable even if the other person suffers any harm due to the act.
Therefore, if a nurse or any medical practitioner commits an act knowing that it will cause some harm to the patient but only to prevent the patient from suffering greater harm, the nurse or the medical practitioner will not be liable for the act committed by them.
Illustration: If a doctor removes a patient from life support, even with the knowledge that it might lead to the death of the patient, it would not be a criminal act. However, it is considered an exception under Section 81 only when it is believed by the doctor that the futile intervention of the life support would cause other more intolerable harm to the patient. Therefore, the existence of knowledge of consequences alone cannot render life support removal a criminal act. The circumstances of the act in this section would protect the physician.
Section 88 IPC
This section deals with situations in which a person does an act in good faith and without intention to cause the death of another person. It states that an act is done by a person with consent, in good faith and not with an intention to cause the death of the person and for the benefit of the other person. not intended to cause death, done by consent in good faith for a person’s benefit.
In nursing, a nurse is not liable for committing an act when the act is done:
- in good faith and for the benefit of the patient,
- without intending to cause the death of the patient,
- without knowing that the act is likely to cause death,
- when the patient has consented either in an express or an implied manner to suffer the harm caused or to take risk of that harm.
Illustration: A surgeon ‘X’ knows that a particular operation will likely cause the death of his patient ‘Z’ but performs the operation in good faith, without intending to cause the death of ‘Z’ and also after obtaining Z’s consent to perform the operation. In this case, X has committed no offence.
Section 92 IPC
This section states the conditions in which a person will not be liable for the harm caused to another person when he or she performs an act for the benefit of another person without his consent. It states that whenever it is impossible for a person to obtain the consent of the other person and perform an act for the benefit of the other person, he will not be liable if he causes hurt to the other person in the process.
However, this section does not protect a person who intentionally causes hurt to the other person or even attempts or abets the causing of hurt to the other person.
The general norm is that the consent of the patient is a must before treating or even providing medication to patients. If the nurse provides treatment without consent, he or she will be liable. However, the nurse will not be liable even if he or she provides treatment without the consent of the patient in the following circumstances:
- when the act is done by the nurse in good faith and for the benefit of the patient,
- the circumstances are such that it is impossible for the patient to grant consent,
- if the patient is incapable of giving consent,
- the guardian of the patient or any other person from whom consent can be lawfully obtained is not present at the time of the commission of the act by the nurse.
However, the immunity granted under this section cannot be utilised by a nurse to cause the death or grievous hurt of a patient or even to commit an act that is likely to cause the death or grievous hurt to the patient.
Illustration: A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation is immediately performed. There is no time to apply to the child’s guardian. A performs the operation in spite of the entreaties of the child, intending, in good faith, the child’s benefit. A has committed no offence.
Consequences of wrongful acts of nurses
Consequences under the Indian Medical Council Act, 1956
The Indian Medical Council Act, 1956 regulates the profession of medicine in India. It is the supreme Act in the country which has absolute control over medical practitioners in the country. Section 19A of the Act states that the Indian Medical Council has the jurisdiction to prescribe the qualifications of all medical practitioners. Also, Section 23 of the Act states that all medical practitioners must register with the council to carry out their practice. The Council also prescribes a standard code of ethics which is to be followed by all the medical practitioners and the violation of the same is actionable.
Some of the instances in which a medical practitioner can be held liable for negligence are as follows:
- Negligence of a medical professional while making professional reports or in maintaining professional records.
- Conduct of a medical practitioner towards the patient is improper.
- When a medical practitioner performs an illegal act or associates himself with the commission of an unlawful act.
- When a medical practitioner does any which is in contravention to any law such as the Drugs and Cosmetics Act, 1940.
- When a medical practitioner has been found receiving or giving commission.
- When a medical practitioner advertises for business.
- When a medical practitioner refuses to treat patients on any extraneous grounds such as race, gender, social class, age, religion, sexual orientation, appearance, or disability.
However, it is pertinent to note that the Indian Medical Council or any of the state councils do not have the power to award compensation. They can only debar a person permanently if it is proved that the person is guilty of the alleged offence.
Proceedings under civil court
One of the oldest remedies available to a person aggrieved by the act of a medical practitioner is to file a suit for compensation in a civil court. Whenever a medical practitioner commits a tort against a patient, the patient so aggrieved may file a suit against the medical practitioner in a civil court and may thereby claim for damages or compensation from the medical practitioner for the negligent or tortious act committed by him.
Liability under the Indian Penal Code, 1860
The law pertaining to criminal negligence has been expressed under various provisions of IPC which have already been covered above. It was held by the Supreme Court in the case of Martin F. D’Souza v. Mohd. Ishfaq (2009) that, “For an act to be considered as criminal negligence, the degree of negligence should be higher than the negligence which constitutes a civil liability. Thus, in a civil liability, it is enough for a patient to prove that the doctor did not exercise due care, however, to constitute an offence under criminal negligence, the patient must prove that the doctor was reckless in addition to being negligent.”
Writ Jurisdiction of the High Court and the Supreme Court
Any citizen aggrieved by any act of a medical practitioner has the right to approach the High Court or the Supreme Court under Article 226 and Article 32 of the Constitution respectively. However, a remedy under the following Articles is only available when the concerned court has the jurisdiction to hear the case. When a case is filed against a medical practitioner who has failed to exercise reasonable care towards their patients, the court may order the medical practitioner to pay compensation to the patient.
In the case of Sarwat Ali Khan v. Prof. R. Gogi (2007), the government organised a medical camp for cataract surgery and as a result, all the people who got their cataract removed suffered became blind due to the negligence of the doctors during the surgery. In this case, the Supreme Court or High Court will have the jurisdiction to hear the case under Article 32 and Article 226 of the Constitution.
Proceedings under the Consumer Protection Act, 2019
After the Consumer Protection Act, 2019 was enacted, almost all the cases relating to medical negligence are covered under this Act and a person who suffers injury can claim compensation through this Act. Section 2(7) of this Act provides that any person who avails any service for consideration including beneficiary service will be considered as a consumer. In case a consumer suffers from any sort of deficiency in the services availed by him, he may file a suit under this Act.
The procedure for filing a suit under this Act is very simple, hence, it has developed into a potent tool in the hands of the consumers who are dissatisfied with the goods and services availed by them. Therefore, cases of medical malpractice are mostly dealt with under the Consumer Protection Act, 2019.
In the landmark judgement of Indian Medical Association vs. V. P. Shantha (1995), the issue before the Supreme Court was whether the service rendered by a medical practitioner be considered as service under Section 2 of the Consumer Protection Act, 1986. The Supreme Court held the answer to this question to be affirmative and brought the medical profession within the ambit of the aforesaid Act.
Disciplinary action against nurses
The provisions stating the punishments and disciplinary action for medical negligence are provided under Chapter 8 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 which was formulated under the Indian Medical Council Act, 1956.
If the Medical Council of a state finds that a medical practitioner is liable for misconduct, he will be punished by the Medical Council. Some of the punishments are as follows:
- Removal of the name of the medical practitioner from the register of medical practitioners either for a specific time period or permanently.
- The Council may restrain the medical practitioner from practising when the complaint filed against him is still pending.
- The Council may also publish the removal of a medical practitioner through local press and other sorts of publications in different medical associations or bodies.
Cases related to nursing
Spring Meadows Hospital and Anr. v. K.S. Ahluwalia and Anr. (1998)
Facts of the case
In this case, a child was suffering from a fever and was admitted to a nursing home by his parents. The doctor diagnosed him with typhoid and prescribed medicines for the same. A nurse administered an injection named Lariago to the patient due to which he immediately collapsed. The doctor after examination of the patient testified that the child suffered cardiac arrest due to the injection administered to him. The National Commission also held that the cause of death was the injection which was administered at a very high dosage.
Issues of the case
Whether the nurse was liable for criminal negligence.
Judgement of the case
It was held by the Supreme Court that the doctor was liable as he should have administered the injection himself instead of asking the nurse to do the same. Further, it was also held that the nurse was liable as there was a breach of duty on her part and also because it was found that she was not registered with the medical council of any state. Hence, the doctor, nurse as well as the hospital was liable and was made to pay a compensation of Rs. 12.5 lakhs to the parents of the child.
Jasbir Kaur v. State of Punjab (1995)
Facts of the case
In this case, a newborn child was found missing from his bed in the hospital and was found bleeding near the wash basin of the bathroom. The hospital authorities claimed that the child was taken away by a cat as a result of which the child sustained injuries.
Issues of the case
Whether the hospital authorities are liable for negligence.
Judgement of the case
It was held by the Punjab-Haryana High Court that the hospital authorities were liable for negligence as they failed to exercise due care and precaution. Further, the hospital was also held liable to pay a compensation of Rs. 1 lakh to the family of the child.
Bolam v. Friern Hospital Management Committee (1957)
Facts of the case
In this case, the plaintiff, Hector Bolam was a psychiatric patient who went as a voluntary patient to Friern Hospital for issues related to recurrent depression. After diagnosis, the doctors decided to treat him with Electroconvulsive Therapy (ECT) and Bolam consented for the same.
Bolam was given an unmodified ECT in which the patient was not given anaesthesia and he was not even restrained during the procedure. This was done 7 to 10 times a day each session. Even though his depression was reduced, he developed a fracture as he was not administered with any muscle relaxant or anaesthesia. When he came to know about this, he filed a suit against the hospital.
Issues of the case
Whether the doctors did not follow the duty of care and did not act as a reasonable person.
Judgement of the case
The High Court in this case laid down the test to determine whether the hospital should be held liable for medical negligence or not. It was held that a doctor will not be guilty of negligence if he has acted in such a manner that the act committed by him is considered to be proper by a responsible body of medical professionals who are skilled in that particular art. If a doctor has exercised the standard of care that a responsible body of medical professionals deem to be enough, then he is not liable under negligence.
Arjesh Kumar Madhok v. Centre for Fingerprinting & Diagnostics (CDFD), Ministry of Science and Technology, Hyderabad (2007)
In this case, the Central Information Commission (CIC) upheld that the disclosure of information related to the purpose and results of medical testing was exempted under the Right to Information Act 2005. It was held that such disclosure would lead to an unwarranted invasion of privacy of the individual. However, the information can only be withheld if the disclosure of the same has no relationship to any public activity or interest.
It was further held by the CIC that information made available during the fiduciary relationship of doctor-patient shall also be exempted from public disclosure. In this case, the party seeking the test result was the patient’s parent. Therefore, the judgement of CIC provides little guidance in deciding what would constitute a relevant and overriding public interest.
To conclude, there is indeed no doubt that nurses have a duty to take reasonable care of their patients. The life of every person is very precious and should not be dealt with in a negligent or a careless manner. Hence, the nurses must abide by the standard of care which has to be exercised by them as per the facts and circumstances of the case. They should also follow the ethics laid down by the Medical Council to avoid any sort of liability or disciplinary proceedings against them. Further, if a nurse is found guilty of malpractice or negligence, action against her can be initiated by means of a civil proceeding through torts or the Consumer Protection Act, 2019 or a criminal proceeding under the Indian Penal Code, 1860.
Frequently Asked Questions(FAQs)
What is the difference between medical negligence under torts and medical negligence under criminal law?
To constitute negligence under torts, it is enough to establish that a nurse was negligent or breached the standard of duty of care which was necessary while performing the act towards a patient. However, to make a nurse liable for medical negligence under criminal law, the breach of duty should be coupled with recklessness or the act committed by the nurse must amount to gross negligence. Click here to learn more about the differences between medical negligence in torts and criminal law.
Who is considered to be a registered nurse?
A nurse is considered a registered nurse when he or she completes a diploma in nursing or is a graduate in nursing. Further, the nurses should also pass the National Council Licensure Examination-Registered Nurse (NCLEX-RN) exam which is conducted by the National Council of State Boards of Nursing (NCSBN). Also, to be a registered nurse, it is necessary for the nurses to comply with all the eligibility criteria and licensing requirements specified by the respective state boards of nursing.
Is registration mandatory to become a nurse?
Yes, it is mandatory for a nurse to register before practising. There is no national board or forum for the registration of a nurse. However, all the nurses should be registered under the State Nursing Council of the respective states in which they intend to practise. The Nurses National Registration and Tracking System is a new system of registration of nurses introduced by the Indian Nursing Council.
What is the Indian Nursing Council?
The Indian Nursing Council is an autonomous body which was established by the Ministry of Health and Family Welfare under the Government of India. It was established as per Section 3(1) of the Indian Nursing Council Act, 1947 to establish a uniform standard of training for nurses, midwives and health visitors. Click here to know more about the Indian Nursing Council.
- Bakshi, P. M. “NURSES AND THE LAW.” Journal of the Indian Law Institute, vol. 36, no. 3, 1994, pp. 285–91. JSTOR, http://www.jstor.org/stable/43952345
- Medical Negligence – The Judicial Approach by Indian Courts – The Association of Surgeons of India (asiindia.org)
- 5.4 Laws, Torts, Malpractice, and Disciplinary Actions – Nursing: Mental Health and Community Concepts (pressbooks.pub)
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