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MD. Rakibul Hasan Roni Lecturer, Department of Law, Uttara University |
Summary of the fact:
Syed Saifuddin Kamal was driving his
car on Airport Road near Road No. 23, Banani, Dhaka, when he was shocked to see
a man named Arafat slip and fall under the wheels of a bus just as he was
trying to board it. Saifuddin Kamal and another bystander put the victim in his
car. They drove to three private hospitals, but they refused to treat Arafat as
he was injured in a road accident. Lastly, he took him to Gulshan police
station and moved to Kurmitola General Hospital, but couldn’t save Arafat.
Hence, this writ petition.
Observation:
In this case, the court provided a
few guidelines. The main purpose of these guidelines is to minimize the death
& health risk of those injured by a road accident, as soon as possible.
This also aids the objective of the National Health Policy 2011 and the
Sustainable Development Goal 2030.
Court observed that, there is no
effective legal framework to ensure emergency medical treatment. Thus, private
hospitals tried to ignore this responsibility but was not held accountable.
Hence, to remove such gross ignorance, court instructed Ministry of health to
formulate a guideline on emergency medical treatment for injured persons of
road accident.
●
Court stated that, hospital authority should not show any sort of
incoherence while providing treatment to the injured person. Moreover,
financial incompetency and legal complexity shall not be an excuse to evade
emergency medical treatment to injured by road accident.
●
In guideline clause 9.1 stated that, to save the life of a gravely
injured person in a road accident, if a
guardian or relative
is not present, can be operated without the consent
of the guardian or relatives. In such a case,
if the patient dies, no action can be taken against that doctor. But later the
court recommended to visit international standards
concerning consent to surgical procedure that, in case of the adult accident victim, fully conscious and of sound mind,
the right to provide informed consent by him is preferable than kith and kin.
●
The
court, in considering clause 6.1, 6.2, and 16, directed the Ministry of Health to provide a
comprehensive list of the infrastructure of the
emergency healthcare division, manpower, and necessary equipment of government and private
hospitals within 6 months.
●
Within 6 months, a national ambulance code is to be formulated by the
health secretary.
● In considering The National Road Safety Strategic Action Plan
(NRSSP)2014-16, what initiatives have been taken by hospitals and
emergency medical centers, to be reported
within three months to the court.
●
The
court further directed that, within two months of
receipt of a certified copy of this judgment, a wide dissemination of that
guideline via printing and electronic media needs to be ensured for public interest.
●
Another important point of this guideline is that private
hospitals will provide emergency medical care under Corporate Social
Responsibility (CSR) without considering financial competency.
●
The
protection mechanism of the Good Samaritan from legal complexity and police harassment is
another good guideline to inspire people to help an injured person.
● According to the guideline, if the hospitals are competent to
provide emergency medical treatment, they must not show any incoherence
but where there is incompetence, they must
refer them to another competent hospital within the golden hour.
Legal
shortcomings:
Our jurisprudence is not rich in
regard to emergency medical treatment. There is no exhaustive legal framework.
Our constitution puts the right to health in the Fundamental Principles of
State Policy, which is not judicially enforceable under Article 8. But the writ
jurisdiction of our previous court practices enlarged the locus standi. Thus, this writ could have been
brought before the court under Articles 27,31, and 32. Moreover, the National
Health Policy has yet to be operationalized. Compliance monitoring systems
under the existing laws are very weak, under BMDC Act, 2010-misconduct or
standard of care is not clearly defined. A permanent forum to deal with
disciplinary actions is absent, under penal code, the immunity granted under
section 88 and 92 are the main hurdle to prove a case of medical negligence,
Consumer Rights Protection Act, 2009, being a new law, instances of seeking
remedy under the Ordinance have not been reported well yet.
Study
of Comparative Jurisdiction:
The court suggested making a comparative
evaluation of prevailing standards and practices in other jurisdictions,
promulgated in India, Canada, and Ireland. Court opined that a sustainable
response may draw on social settings relatively similar to ours in terms of
crisis settings and situations, which may be adopted by our system. As we know,
India has made great advances in medical jurisprudence. So, their experience
provided the best example to study and evaluate.
Whether
this verdict works as a milestone?
Yes, this judgment will work as a
milestone to give a verdict to the accidentally injured persons and protect Good Samaritans. As per the verdict,
this guideline will have the force of law until an Act has been enacted.
Moreover, this will act as a precedent in observing emergency medical care for
accidental or other injured persons. Sometimes high court takes necessary steps
to mitigate the lacuna of existing laws, in this regard, this verdict was an
innovative one.
But our general practice shows these
kinds of guidelines are not less than mere directives. In BNWLA v Bangladesh
2009, the
High Court issued 11-point directives on the prohibition of sexual harassment. However,10 years have passed, and no initiative has been taken by the
government to make legislation on sexual harassment.
In case of arrest without warrant,
in BLAST v Bangladesh (55 DLR 363), 15 directives were given. But observance of
these guidelines is still questionable.
Conclusion:
In this regard, two steps can be
taken,
⮚
Rolling
Mandamus/Continuing mandamus:
It should be one of the
duties of the court, not only to give a verdict but also to observe its
compliance. Our courts will observe whether these guidelines are followed or not and will ask for a
regular report.
⮚
Active role of the
Executive:
Law-making power is vested to the parliament, and they need to convert these guidelines into laws. Without their goodwill, these guidelines will remain as mere directives, and perpetrators will remain out of reach.
1. 29 BLD HCD 415.