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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 165
April 17, 2010

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Right to Life: 'Judicare' of 'Medicare'

S M Masum Billah

WE howl for proper medicare, but negligence is the fate. So who would cure the 'medicare'? 'Judicare' i.e. proper judicial redress against medical malpractice? Big question, no doubt. Concern for medical negligence is not something new in Bangladesh, though legal comprehension of it is still in a grey area. Death news on the allegation of medical malpractice often bewilders our eyes and gives a saga on the state's promise to attain the fundamental goal of promoting public health. The constitution of Bangladesh has guaranteed the right life as one of the absolute fundamental rights. Right to life has been interpreted to mean not only physical existence but also right to live with all its full encompasses. So, without achieving the right to health mere recognition of right to life does not become full-fledged and meaningful. Non-access to adequate health care and absence of due diligence has the effect of jeopardizing the right to life.

Definition of medical negligence itself is open to wider interpretation. In Bangladesh there is no particular law on the point except some scattered references on several medical code, ethics and civil and criminal statutes. This area squarely falls within tortuous liability which is not usually welcomed by our courts or the lawyers feel reluctant to resort to courts for various reasons. While the doctors should not be liable for mere 'error of judgment', they may not avoid responsibility in case of sheer disregard to patients and unskillful demonstration of medicare service. Alleged attachments of doctors with hospitals and pharmaceuticals industries which does not conform to the standard health service as reasonable people would expect in the particular situation, brings the ethical aspect of the problem. So, it is submitted that a comprehensive law on medical negligence with its qualifications having its emphasis on medical ethics, is needed so that the 'medicare' can be effectively 'judicially' scrutinized.

Negligence and medicare
Every person who enters into a learned profession undertakes to bring a fair, reasonable and competent degree of skill, and one will say whether in a particular case, the injury was occasioned by the want of such skill by the doctor or hospital. Area of medical negligence may be pervasive in nature. It does not merely mean 'daktari obohela' (doctor's negligence) but 'chkitshai obohela' (negligence in treatment). Medical negligence connotes culpable carelessness in the field of medical science. It involves risk to the health and being of an individual who entrusts his well-being into the hands of a medical professional. .

The leading English case setting down the standard of care is that of Bolam v Friern Hospital Management Committee, in which McNair J said: 'the test is the standard of the ordinary skilled man exercising and professing to have that special skill'. Lord Scarman in Maynard v. West Midlands Regional Health Authority accepted this test without qualification, and in Sidaway v. Bethlem Royal Hospital, he interpreted it as follows: 'A doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion... In short, the law imposes the duty of care: but the standard of care is a matter of medical judgment'.

Medical negligence and Right to Life
Ain O Salish Kendro (ASK), leading human rights NGO in Bangladesh, had discovered 504 specific medical negligence cases that happened in between June 1995 to September 2008, most of the narratives are sadly disappointing and sketch the horrendous picture of our state and standard of medicare. Let me give some headlines reflected therein. 'Asma's only kidney removed, brings death at last'… 'six succumbed to death for bad saline in Rangpur Medical Hospital'... 'Mahbuba ke harate holo sontan o jorau'… 'news anchor Rashida Mohiuddin caused to death after coming for a dental surgery'... 'Cinema celebrity Manna dies, medical negligence alleged'. The list is never ending.

Human rights, guaranteed by universal jurisprudence, have a 'feel of actuality' only if human health is free from disease and is freely available to everyone. Bangladesh, in its Constitution, has declared "right to life" as a fundamental right. Indeed, in its Fundamental Principles of State Policy, the State has been obligated to ensure the "basic necessities of life, including food, clothing, shelter, education and medical care and to 'raising of the level of nutrition and the improvement of public health'. Thus we have constitutional remedies where health is in jeopardy, under Articles 15, 18 read with Articles 31, 32, 44 and 102 as sentinels of citizen's health right.

Victims of medical negligence, institutional or individual, are thrown to a point of no return. The frequent allegation of medical negligence culminating into devastating consequences on life of people (specially on children, old and women) casts on a dark saga on the health care leading the 'right to life' (an all encompassing) at threat and establish the 'worth of human dignity' as pledged by the constitution (an reflected in Code of Medical Ethics) a sheer mockery to our conscience.

In Dr. Mohiuddin Farooque v. Bangladesh & others (Writ Petition No. 1783/1994 known as Doctor's Strike Case, the petitioner challenged the continuance of strike by government doctors wherein the court treated it (strike) as 'failure to perform their statutory and Constitutional duties to ensure health services and medical care to the general public, arising out of the abstention from duties by the striking doctors. It was emphasized that the wilful absence of the doctors of BCS (Health Cadre) as members of the Association from their statutory and public duties caused threat to life and body of the public is of no legal effect.

The all-encompassing phenomenon of right to life has received recognition from Bangladesh apex court. The High Court Division has responded pro-actively in a writ petition filed by ASK and BLAST in 2006 in giving rule to explain why there is no course of action on the part of the government medical regulatory bodies and recognizing the right to health as a corollary of right to life as submitted by the petitioners. The court recognized that failure to comply with the guidelines of medical practice regulation (a statutory obligation) has direct bearing on fundamental rights guaranteed by Article 27 (equality before law), 31 (right to life) and 32 (protection of law).

Areas of address
If reality is allowed to supplant myth, the folly of the medical ethics and health justice standard in Bangladesh becomes clear. This is not a nation where all can afford the best that medicine has to offer. Instead, the medical profession must serve at least two very different populations, one reasonably well insured and able to afford a relatively high standard of care and the other poor and uninsured, wholly dependent on direct and indirect forms of charity for the care it receives. To blink in the face of this painful reality and judge the medical care provided to the poverty-stricken under a standard of care the state must come forward with coherent, systematic and pro-people responses. Of course, any reform must not also forget that absence of effective safeguards for the doctors may be a 'disservice to the nation'. Following areas need a serious concentration:

* Legal Reform (i.e. Medical Negligence Law)
* Accountability (Reform in medical administration and Regulation)
* Optimum budget in healthcare
* Let the people know the medical ethics
* Medicare citizen's charter
* Redressal Forum apart Court
* Check commercialisation of 'hospital-diagnostic' endeavours.

Pathological conditions, writes Krisna Iyer in a Book review on medical negligence, command medicare as an aspect of social justice. This blend of 'medicare' and 'judicare' provides the perspective for a remedial jurisprudence governing medical negligence as an inevitable ancillary to the right to health. Integral to social justice, inalienable from human health and functionally auxiliary to the rule of life is delictual law, medico-criminal justice and statutory pharmacopoeia, the Indian legal legend adds. The law of medical negligence is indispensable if the right to life is not to be a fleeting breath imperilled by a physician's flaw, surgeon's knife, anaesthetist's indifference or equipmental inadequacy. Indeed, the inculcation of constitutional jurisprudence in the field of medical negligence is the demand of time. To address 'medical negligence' the rule of law must run faster to defend the right to life.

The writer is an Assistant Professor, Department of Law, Jagannath University, Dhaka.




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