Guidelines to deal with the issue of medical negligence, whenever an aggrieved person instead of filing complaint in IHRA goes to police station or files private compliant u/s 200 Cr.PC. or 22-A & 22-B Cr.P.C. application for lodging of FIR against healthcare service establishment, professional or administration with the allegation of medical negligence;
i. To criminally prosecute only a healthcare professional for medical negligence under criminal law it must be shown that the accused did something wrong or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. And for that a technical report of subject experts is necessary by IHRA or PMDC.
ii. When an aggrieved person informs police regarding matters medical negligence against a healthcare/medical professional, no FIR shall be lodged and SHO is bound to keep the record in daily diary and shall prepare official letters requesting an expert inquiry/investigation report and address them to both IHRA and PMDC. Upon receiving a negative report form IHRA or PMDC or both then FIR will be lodged otherwise no FIR will be lodged.
iii. The SHO is bound to cite the name of the expert as a witness and make the report of IHRA or PMDC as part of challan.
iv. Similarly, the case of private complaint under section 200 Cr.PC. may be entertained subject to all legal exceptions, however, the complaint shall not be proceeded further unless the expert report from IHRA or PMDC with its conclusive findings is not obtained.
v. Ex-officio Justice of Peace when receives an application u/s 22-A & 22-B CrPC, instead of issuing order for lodging FIR, he/she would direct the concerned SHO to prepare official letters requesting an expert inquiry/investigation report and place it before the IHRA or PMDC. After receiving the report, based on the findings of the report, Justice of Peace will pass an order of lodging the FIR (or as the case may be).
vi. IHRA and PMDC have mutually exclusive jurisdiction to deal with the matter of medical negligence in case of a medical professional under section 33 and 44 of their respective laws. And the findings of one have persuasive value for other.
vii. Both the authority and council are bound to complete their investigation and submit the report to the PS within a period of ninety days.
viii. The standard minimum requirement to initiate criminal proceedings against a medical professional is to receive a technical expert report from IHRA or PMDC whereby it is suggested or held that the accused has been medically negligent. One negative report from any one of the above departments is sufficient to proceed criminally against the accused.
ix. PMDC is the regulatory body which deals with the licensing and registration of medical and dental practitioners in Pakistan, and it hears the matters pertaining to cancelation/suspension of license to practice. IHRA after completion of its inquiry forwards the matter to PMDC for cancelation/suspension of license of medical or dental practitioner. However, the findings of IHRA are not binding on PMDC and vice versa.
x. On the contrary, if a person is aggrieved from the negligent behavior of a healthcare establishment or healthcare service, only IHRA has the exclusive jurisdiction to entertain the matters against them. Under such circumstances the concerned Police Station will request to IHRA for expert report. And IHRA shall submit the report within 90 days.
xi. Consumer courts have no jurisdiction to exercise in the matter of medical/professional negligence by any healthcare professional or establishment. Because consumer protection law is general in nature and only the healthcare Commissions and Authorities (as the case may be) are solely responsible to investigate and adjudicate on complaints against healthcare service providers, professionals and establishments. As held by a division bench of Lahore High Court in PLD 2019 Lahore 429 (Dr. Riaz Qadeer Khan versus Presiding Officer, District Consumer Court, Sargodha and others) and further in PLD 2022 Lahore 18 (Lady Dr. Nafeesa Saleem vs justice of peace/ASJ Multan and 2 others.
xii. If a complaint qua medical negligence is filed in IHRA, and the authority comes to conclusion that there is medical negligence and mensrea of doctor or paramedical staff is reflected, the authority may refer the case to the concerned Police Station for criminal prosecution against the delinquent irrespective of the fact that complaint in terms of Section 30 of IHRA (which deals with only three specialized offences i.e. quackery, obstruction of inspection and running an Establishment without license) has been referred to Sessions Judge or otherwise.
W.P No.3431-2023
Dr. Farhat Ullah Bakhsh Versus Ex-Officio Justice of Peace/ASJ-III (East), Islamabad and others.
Date of Hearing:05.06.2024.
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