Report No. 196
(D) Section 81: (exception)
"Section 81: Act likely to cause harm, but done without criminal intent, and to prevent other harm: Nothing is an offence merely by reason of its being done with knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purposes preventing or avoiding other harm to person or property.
Explanation: It is a question of act in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that if was likely to cause harm."
This section may be applicable both in cases of competent or incompetent patients but involves proof of several questions of fact, even if there is no criminal intent. In our view, ss 76 and 79 give far greater protection than section 81. Further, this section covers cases of ,necessity' and only speaks of 'harm to person or property', whereas here we are dealing with death.
(E) Section 88: (Exception) Section 88: Action not intended to cause death, done by consent in good faith for person's benefit.-"Nothing which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent whether express or implied; to suffer that harm or to take the risk of that harm."
This section applies to competent patients who give consent but the consent is for acts which will cover 'benefit'. This section also requires several facts to be proved and question is of 'benefit'. We must go to the extent of saying that death relieves pain or suffering and is beneficial.
In our view, ss 76, 79 are more appropriate that section 88 and there is no offence under section 299 read with section 304 of the Penal Code.
Section 304A: (causing death by negligence): (position of doctor).
We next come to section 304A which deals with criminal negligence vis- à-vis the position of doctors, the Supreme Court in Jacob Mathew State of Punjab 2005 (6) SCC 1.
section 304A speaks of 'causing death by negligence'. It says:
"section 304A: Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both."
The Supreme Court in Jacob Mathew's case referred to ss. 88, 92, 93 and 304A of the Penal Code and stated that for purposes of criminal law, so far as doctors are concerned, section 304A requires 'gross negligence' to be proved. The Court pointed out that it must be established that no medical professional in his ordinary senses and prudences would have done or failed to do the thing which was attributed to the accused-doctor.
In our view, where a medical practitioner is under a duty at common law to obey the refusal of a patient who is an adult and who is competent, to take medical treatment, he cannot be accused of gross negligence resulting in the death of person within the above parameters. Likewise in the case of a competent patient, whose decision is not an informed one and in the case of an incompetent patient, if the doctor decides to withhold or withdraw treatment in the best interests of the patient and that is based upon the expert opinion of a body of experts, then the action of withholding or withdrawal cannot be said to be a grossly negligent act.
Hence section 304A is not attracted. The doctor is merely going by the wish of the patient to allow nature to take its course. Therefore, section 304A is not applicable.
Thus, the provisions of section 299 even if attracted to the cases of the doctor, ss 76 and 79 protect that action. Section 304A is not applicable.