This article is written by Prateek Mudgal, Faculty of Law, Aligarh Muslim University. The article deals with compensation programmes and liability immunity in health emergencies. A comparative method has been followed and reference to U.S laws has been given (in reference to ongoing pandemic). Apart from this, in this article, an analysis of Epidemics Diseases Ordinance 2020 is also mentioned.
The world is struggling with Covid-19. Nations across the globe have joined hands to tackle the issue. India under the leadership of the honourable Prime Minister has shown gratitude towards those helping hands which are saving us from the pandemic. At the same time, a certain number of anti-social elements are sabotaging every effort made by the ‘Corona Warriors’. There have been various incidents across the nation, where such elements have shown unforgivable offensive behaviour towards the helping hands. Whenever such issues arise it becomes the moral as well as the legal duty of the governing bodies to safeguard the interest of the frontline warriors so that termites of the nation fail to succeed in their inhumane agendas and bold measures by the government bolster the psychological will of selfless doctors working in the national interest. Apart from this the public also needs certain assurance and therefore it is important to understand what provisions are stored for public welfare. In this article, I will discuss the various measures that have been taken to deal with the issue, along with this I will also talk about Liability Immunity and the recent Epidemics Diseases Ordinance 2020.
In the case of medical negligence, the task of determining the negligence is not an easy one. One of the prominent and most used tests for taking into account negligence is Bolam’s Test. Let us find out what Bolam’s Test is.
This test was formulated by McNair. J. This test was put forth to determine the degree of care one may expect from a medical professional. This test came into existence through the case Bolam vs Friern Hospital Management Committee  1 WLR 583. In the case, the plaintiff sued the defendant body who had employed the doctor. In this case, the doctor had not given muscle-relaxation drug and neither restraint the plaintiff, who was a mentally-ill patient, while giving electro-convulsive theory. Due to the negligence of the doctor, the plaintiff sustained serious injuries during the process. The issue, in this case, was to determine negligence. To determine negligence in the law of torts it is required to show that the defendant has not taken proper care, the standard care.
In this case, it was decided that anything below the standard of a reasonable and competent medical practitioner will be considered as negligence. Apart from this, no medical practitioner will be guilty of negligence if the practitioner’s behaviour and standard of care are acceptable by a body of professionals who are specialised in the same practice. Other parties’ view regarding the same will not be considered.
In India, the final decision whether there was negligence or not, stays with the court. Even though the decision stays with the court, Bolam’s Test has been widely used in various cases which included medical practitioners as well as other professional men. Now what must be noted is, Bolam’s Test can be used in cases where the Medical Fraternity is familiar with the problem. In the case of pandemics like Covid-19 where the world is still struggling with understanding the nature of the virus its mutations, there exists no authority that can decide much regarding cases of coronavirus.
During health emergencies, and at a time like this, it is important to safeguard the interest of medical practitioners so that they don’t face unnecessary legal actions. Specific provisions that provide such immunity are absent in our country( except two relevant sections in Disaster Management Act and compensation provisions in the new ordinance of Epidemic Act), but the requirement of such laws cannot be neglected. Therefore I will discuss a U.S. Law that fulfils the requirement. The Public Readiness and Emergency Preparedness Act of 2005′ (PREP Act) is the law that provides immunity to health care workers. This act provides the authority to Secretary of Health Services to issue a declaration which will provide immunity to various health workers against various claims that arise out of the use of ‘covered countermeasure’ (in very basic terms it is referred to the drugs or any other device administered to mitigate cure or prevent the disease).
Providing such immunity to Medical Professionals during Health emergencies is a multi-purpose solution that will help the practitioners in the long run, a similar solution in India can also help and serve the following purposes:
- Firstly such a law in India will provide moral and legal support to the medical professionals. This will help them psychologically and they will be able to provide better services without any hindrance.
- Secondly, it may allow the usage of drugs which are banned or can be used with certain exceptions or due permission from various authorities which may come out to be tedious and time taking tasks.
Now I will discuss a few Indian Laws, situation and compensation programmes.
Disasters Management Act
It is a very famous act, but the most relevant sections related to health emergency are Section 73 and Section 74 of chapter 11 of Disasters Management Act. Therefore I will discuss both the sections one by one.
This section of the Disaster Management Act provides immunity to action taken in good faith. According to this section, no suit or proceeding can take place against the Central Government., State Government., or any other person or authority that are authorised by the central or state government.
This section of the Disaster Management Act provides immunity to various health workers working during a health emergency. But it has to be noted that even section 73, unlike the PREP Act of the US, does not clearly mention about health workers and covered countermeasures.
This section provides immunity to officers and employees of various governmental institutions, from any legal process in regard to dissemination or communication of any impending disaster. The employees who have been provided immunity are of the following institutions( as mentioned by the Act):
- Central Government
- National Authority
- National Executive Committee
- State Government
- State Authority
- State Executive Committee
- District Authority
It must be noted that though the Disaster Management Act is one of the chief legislations regarding disasters of national level, the incompetency of the Act in relation to providing specific medical immunity to health practitioners cannot be overlooked.
Now I will discuss the new ordinance i.e Epidemic Disease Ordinance, 2020.
Epidemic Disease Ordinance, 2020
This is a very important and much-needed ordinance, this ordinance was promulgated in April 2020. The ordinance has brought about many changes in the Epidemic Disease Act of 1897, but the main change that has to be noted is regarding the safety of health workers which was much needed. The Epidemic Disease ordinance has brought about the following changes:
The act specified that central govt. has the authority to inspect any ship or vessel and detain any person intending to travel through the port during an outbreak.
With the new ordinance, other means of transport has also been added to the list other than ship or vessel, which includes bus, trains, goods vehicles, aircraft, ships. The amendment also provides for detention of persons intending to travel through the above means.
- The amendment has added the punishment for the anti-social elements I have discussed. According to the ordinance, any individual who abets the commission or commits violence against any health personnel shall be punished. Apart from this, any individual who causes damage to property or causes loss during pandemic shall also be punished.
Punishment: Imprisonment which shall not be less than 3 months and may extend to five years and a fine between Rs. 50k and 2 lac Rupees.
- Investigation under the ordinance must be completed within 30 days, and the official conducting the investigation should not be an officer below the rank of Inspector.
- The trial should be completed within a year. In case of delay, the judge will have to furnish the reason for the delay and extend the trial, the trial cannot be extended for more than 6 months at once.
- Apart from this, the accused person will be considered as guilty of the offence in the prosecution until the contrary of this has been proved.
These were the major changes that have been seen in the new epidemic ordinance, it has to be noted that during such an emergency the requirement of such ordinance was very well needed, but the requirement of the compensation programme for the general public is also a need as well the same has been discussed in the next section
In India, compensation programmes are not very explicitly mentioned, there is no uniform method or system of compensation in relation to health emergencies. The best example is the ongoing pandemic, where the government has different schemes and programmes which are meticulously doing their job of providing relief. But the absence of a uniform programme cannot be ignored.
Again I would like to mention a U.S law that provides vaccine injury compensation. The name of the law is ‘Countermeasure Injury Compensation Programme’. This was formulated through the PREP Act. This provides benefits to those individuals who die or sustain serious injuries due to the administration of covered countermeasures. This is a general provision there is a more specific provision which is specifically for vaccine-related injuries. This type of compensation programme is present in a few nations that include Japan, The United States, France, etc. ‘Vaccine Injury Compensation Programme’, is the programme that compensates people who have been affected seriously due to the administration of covered vaccines.
But you must be thinking that what is the use of such specific programmes, in that case, I would like to share a fact. Between 2000 and 2017, 4.9 lakh people developed paralysis because of Oral Polio Vaccine. Because of such mishaps having general as specific compensation programmes become necessary and we cannot overlook the fact.
Absence of Such important compensation programmes cannot be fulfilled through other relief schemes. Because we have to understand the fact that during health emergencies, compensation programmes and relief schemes work as a complement to each other and neither of them is the substitute of the other.
The government has provided the citizens of the nation with various financial schemes that will help the poor and the needy, apart from these insurance programmes for health workers is also a commendable effort made by the government, various other measures are taken by the government to mitigate the plight of migrant workers, but again they cannot suffice for the need of uniform compensation programme.
In this article, I discussed liability immunity and Bolam’s test, have talked about changes in the Epidemic Disease Act, and important sections of the Disaster Management Act that are relevant to health emergencies. Throughout the article, it can be seen that India doesn’t have very specific laws regarding health emergencies, but only a general few. The comparative analysis shows that the U.S has specific as well as a general law, for both liability immunity and compensation programmes. India must implement similar laws because these are very much necessary and their need can be very well felt at such time when the whole world is fighting the coronavirus Epidemic Disease Ordinance has surely improved the situation for health workers by giving recognition to the serious issues faced by health workers, such moves should be appreciated.
But one should not get complacent as various laws require a revision. The importance must be given to compensation programmes and vaccine injury compensation programmes shall be introduced. And I will again lay stress that relief schemes and compensation programmes are complementary and none of them shall be considered a substitute for the other. It is important to run relief schemes to provide food, care and shelter to the needy, but it is also important to look after the legal need of citizens.
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