TARIQ SALEEM SHEIKH, J.---This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, is directed against order dated 30.1 1.2020 passed by the Justice of Peace, Multan.
2. Brief facts giving rise to this petition are that on 4.2.2019 Safooran Bibi, wife of Respondent No.3, was admitted to Gulzar Hospital and Maternity Home, Multan (GHMH), for surgery of abdominal tumor which was unsuccessful and she expired. Respondent No.3 blamed the Petitioners for her death and accused them of incompetence and gross criminal negligence. He made a complaint to the Punjab Healthcare Commission (the "Commission") which held an inquiry and found that the allegations were correct. Accordingly , vide order dated 8.10.2020, it imposed fine in the sum of Rs.50Q,000/- on GHMH and made a reference to the Pakistan Medical and Dental Council (PMDC) for taking action against Petitioner No.2 (Dr. Muhammad Saleem) in accordance with law. Respondent No.3 approached the Respondent SHO for registration of FIR against the Petitioners but he refused. Thereupon he moved an application under section 22-A Cr.P.C. before the Justice of Peace, Multan, who accepted it vide impugned order dated 30.11.2020 and directed the Respondent SHO to proceed under section 154 Cr.P.C. Hence, this petition.
3. The learned counsel for the Petitioners contended that the Commission had the exclusive jurisdiction under the Punjab Healthcare Commission Act, 2010 (PHC Act), to adjudicate on the complaints relating to healthcare services and section 29 of the Act expressly barred all suits, prosecutions and other legal proceedings, including registration of FIR, against a healthcare service provider . Hence, the impugned order was bad in law. He further contended that the allegations against the Petitioners were mala fide, false and vexatious. There was not a whit of evidence to suggest that Safooran Bibi died due to their negligence. The Justice of Peace was influenced with the findings of the Commission and he ignored the fact that the Petitioners had prefe rred an appeal against its order dated 8.10.2020 before the District and Sessions Judge, Multan, who had suspended its operation. Without prejudice to his claim of immunity under section 29, ibid, the counsel argued that FIR could not be registered against the Petitioners till their aforesaid appeal was decided.
4. The learned Assistant Advocate General supported this petition and adopted the arguments of the Petitioners' counsel.
5. The learned counsel for Respondent No.3 controverted the above contentions . He argued that the impugned order was unexceptionable because the Petitioners' criminal negligence was established before the Commission which was an independent expert body . Registration of FIR could not be stopped on the ground that they had filed an appeal against its order dated 8.10.2020.
Discussion
6. International law recognizes right to health as a human right and basic to the happiness, harmonious relations and security of all peoples. It is also important because human rights are interdependent, indivisible and inter- related. Violation of the right to health may impair enjoyment of other human rights, e.g. the rights to education, work and family life.The Constitution of the World Health Organization inter alia sets out the following principles: Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity . The enjoyment of the highest attainable standard of health is one of the fundame ntal rights of every human being without distinction of race, religion, political belief, economic or social condition. The health of all peoples is fundamental to the attainment of peace and security and is dependent upon the fullest co-operation of individuals and States.
7. Article 25 of the Universal Declaration of Human Rights proclaims:
(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family , including food, clothing, housing and medical care and necessary social services , and the right to security in the event of unemployment, sickness, disability , widowhood, old age or other lack of livelihood in circumstances beyond his control.
(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
8. The International Covenant on Economic, Social and Cultural Rights (1966) also recognizes "the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. Subsequent international and regional human rights instruments address the right to health in various ways. Some are of general application while others address the human rights of specific groups, such as women and children. The treaty bodies, conferences and declarations (such as the Declaration of Alma-Ata and the United Nations Millennium Declaration and Millennium Development Goals) "have also helped to clarify various aspects of public health relevant to the right to health and have reaf firmed commitments to its realization."
9. According to General Comment No. 14 (2000) issued by the United Nations' Committee on Economic, Social and Cultural Rights-- "The right to health is not to be understood as a right to be healthy . The right to health contains both freedoms and entitlements. The freedoms include the right to control one's health and body , including sexual and reproductive freedom, and the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and experimentation. By contrast, the entitlements include the right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health."
10. The right to health is an inclusive right. General Comment No. 14, supra , further says: "The Committee interprets the right to health, as defined in Article 12.1 [of the ICESCR], as an inclusive right extending not only to timely and appropriate health care but also to the underlying determinants of health, such as access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions, and access to health-related education and information,1 2 3 4 5 6 including on sexual and reproductive health. A further important aspect is the participation of the population in all health-related decision-making at the community , national and international levels."
11. Article 9 of the Constitution of Pakis tan (1973) protects right to life as a fundamental right which has been interpreted to include all facets of human existence. The right to health and by extension the right to health care are concomitant to the right to life. It can also be read into the right to dignity of man guaranteed by Article 14 of the Constitution.
12. Health care (also health-care or healthcare) "is the field A concerned with the maintenance or restoration of the health of the body or mind." In the present day, it covers a broad spectrum and has come to mean every aspect, service and device for takine care of the people's health. It signifies a system which is efficient, effective, responsive and accountable.
13. Medical negligence has always been taken very seriously on the principle that "a person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose." The Code of Hammurabi" considered it a crime and provided that "if the doctor has treated a gentleman 'with a lancet of bronze and has caused the gentleman to die, or has opened an abscess of the eye for a gentleman with a bronze lancet, and caused the loss of the gentleman's eye, one shall cut off his hands." Similarly, the Roman and Medieval law was hard on medical negligence. Today every country has its own set of laws to regulate its healthcare sector.
14. Negligence as a tort is "the breach of a duty caused by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonab le man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintif f has suffered injury to his person or property -- The definition involves three constituents of negligence: (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs because damage is a necessary ingredient of this tort."
15. Insofar as the doctors and surgeons are concerned, every lapse on their part in diagnosis and/or treatment does not amount to medical negligence. The statement of law is found in the following directions Of McNair J. which he gave to the jury in Bolam v. Friern Hospital Management Committee, [1957] 1 WLR 583: "[A doctor] is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. I do not think there is much difference in sense. It is just a different way of expressing the same thought. Putting it the other way round , a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view."
16. The courts have applied the "Bolam test", as it is generally called, to a wide range of medical issues, including diagnosis, treatment, information disclosu re and ethics in medicine. Nevertheless, it is extensively criticized and "viewed as the epitome of self-regulation, at its worst regarded as allowing the negligent doctor to escape liability by simply calling on other doctors to endorse the lowest common denominator in clinical practice." Bolitho v.
City and Hackney Health Authority , [1998] AC 232, "shifted the balance from an excessive reliance on medical testimony supporting a defendant doctor to a more enquiring approach to be taken by the court." It stressed that "ultimately the courts, and only the courts, are the arbiters of what constitutes reasonable care. Doctors cannot be judges in their own cause. In his leading judgment Lord Browne-Wilkinson said: "The court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter ."7 8 9 10 11 12 13 14 15 16 17 18 19
17. Even though the Bolam test "has not been uprooted" it is criticized more after the Human Rights Act, 1998, came into force and made England's obligations under the European Convention on Human Rights justiciable in the domestic courts. According to some scholars, "Bolam test is inconsistent with the right to life unless the domestic courts construe that the requirement to take reasonable care is equivalent with the requirement of making adequate provision of medical care."
18. Can the doctors be held criminally liable for negligence particularly if it leads to death of a patient? In R v.
Bateman, [1925] All ER 45, the Court of Appeal held that this is determined by the amount and degree of negligence. It ruled: "In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, the judges have used many epithets, such as 'culpable', 'criminal', 'gross', 'wicked', 'clear', 'complete'. But, whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving of punishment."
19. In Andrews v. Director of Public Prosecutions [1937] AC 576, Lord Atkin observed that "simple lack of care such as will constitute civil liability is not enough. For purposes of criminal law, there are degrees of negligence; and a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied 'reckless' most nearly covers the case ... but it is probably not all-embracing, for 'reckless' suggests an indifference to risk whereas the accused may have appreciated the risk and intended to avoid it and yet shown such a high degree of negligence in the means adopted to avoid the risk as would justify a conviction."
20. Lord Diplock formulated his well-known definition of recklessness in R v. Caldwell, [1981] 1 All ER 961, and R v. Lawrence, [1981] 1 All ER 974, which postulated that actus reus consisted of the defendant creating an obvious and serious risk and mens rea meant 'without having given any thought to the possibility of there being any such risk or, having recognized that there is some risk involved, has nonetheless gone on to take it.' This formulation caused problems when applied to involuntary manslaughter involving breach of duty. Hence, in R v. Prentice and another, [1993] 4 All ER 935 (CA), their Lordships explained that it is based on the premise that the defendant himself created the obvious and serious risk. This is entirely appropriate in a case of driving or setting a hotel ablaze because there is no risk unless and until the defendant drives or strikes a match. However, breach of duty cases such as those involving doctors are different in character. Often the risk to the deceased is not created by the defendant. It is pre-existing which causes the defendant to assume the duty of care with consent. Their Lordships, therefore, held that the proper test in manslaughter cases based on breach of duty is the gross negligence test established in Andrews v. DPP and the Lawrence/Caldwell recklessness approach is inappropriate. They added that in view of the fact that different tests and meanings which have been attached to "reckless" and "recklessness" these words should be avoided when directing juries as to involuntary manslaughter by breach of duty. They ruled that any of the following states of mind of the defendant might constitute gross negligence:
(a) indif ference to an obvious risk of injury to health;
(b) actual foresight of the risk coupled with the determination nevertheless to run it;
(c) an appreciation of the risk coupled with an intention to avoid it but also' coupled with such a high degree of negligence in the attempted avoidance as the jury consider justifies conviction;
(d) inattention or failure to avert to a serious risk which goes beyond 'mere inadvertence' in respect of an obvious and important matter which the defendant's duty demanded he should address.
21. R. v. Adomako, [1995] 1 AC 171, again discussed the ingredients of gross negligence. Lord Mackay of Clashfern LC af firmed the continuing authority of Andrews and said: "The jury will have to consider whether the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal ... The essence of the matter ... is whether having regard to the risk of death involved,20 21 22 the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission."
22. The courts in India apply the Bolam test to determine whether there is medical negligence. However, some of the recent cases seem to attenuate its parameters. In Martin F D'Souza v Mohd. Ishfaq [(2009) 3 SCC 1] the Supreme Court held that "the standard of care has to be judged in the light of knowledge available at the time of the incident and not at the date of the trial. Also, where the charge of negligence is of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time." In Arun Kumar Manglik v. Chirayu Health and Medicare Private Limited and another [(2019) 7 SCC 401] the Supreme Court ruled that while adopting a standard of care the Indian judges must bear in mind that a large number of hospitals and medical units in the country, especially in rural areas, do not have access to technology and medical equipment. And,' in F paragraph-45 of the judgment, the Court said: "In the practice of medicine there could be varying approaches to treatment. There can be a genuine difference of opinion. However, while adopting a course of treatment, the medical professional must ensure that it is not unreasonable. The threshold to prove unreasonableness is set with due regard to the risks associated with medical treatment and the conditions under which the medical professionals function. This is to avoid a situation where doctors resort to defensive medicine to avoid claims of negligence, often to the detriment of the patient. Hence, in a specific case where unreasonableness in professional conduct has been proven with regard to the circumstances of that case, a professional cannot escape liability for medical evidence merely by relying on a body of professional opinion."
23. Legal jurisprudence in India distinguishes between civil and criminal liability for medical negligence. In Dr. Suresh Gupta v . Government of NCT of Delhi and another (AIR 2004 SC 4091) the Supreme Court held: "Thus, when a patient agrees to go for medical treatment or surgical operation, every careless act of the medical man cannot be termed as 'criminal'. It can be termed 'criminal' only when. the medical man exhibits a gross lack of competence or inaction and wanton indifference to his patient's safety and which is found to have arisen from gross ignorance or gross negligence. Where a patient's death results merely from error of judgment or an accident, no criminal liability should be attached to it. Mere inadvertence or some degree of want of adequate care and caution might create civil liability but would not suf fice to hold him criminally liable."
The Court further said: "To convict, therefore, a doctor , the prosecution has to come out with a case of high degree of negligence on the part of the doctor . Mere lack of proper care, precaution and attention or inadverten ce might create civil liability but not a criminal one. The courts have, therefore, always insisted in the case of alleged criminal offence against doctor causing death of his patient during treatment, that the act complained against the doctor must show negligence or rashness of such a higher degree as to indicate a mental state which can be descr ibed as totally apathetic towards the patient. Such gross negligence alone is punishable."
24. A larger Bench of the Indian Supreme Court affirmed the above principles in Jacob Mathew v. State of Punjab and others [(2005) 6 SCC 1: AIR 2005 SC 3180) and reiterated that an act may amount to criminal negligence only when the degree of negligence is "gross" or "very high". It ruled that it must be shown that the accused did something or failed to do something which no other professional in ordinary senses or prudence would do or fail to do. The risk taken by the accused practitioner should be of such nature that the injury which resulted was imminent.
25. In India the cases of criminal medical negligence are prosecuted under the provisions of the Indian Penal Code, 1860, which are general in nature and do not provide specifically for it. For insta nce, section 304A, IPC (which deals with death of a person by rash or negligent act) is applied where death is caused by accidents occurring due to rash and negligent driving and also where a patient dies because of medical negligence. In the same way, section 337 (causing hurt) and section 338 (causing grievous hurt) are employed in relation to medical negligence cases.
26. On the jurisprudential plane, the courts in Pakistan follow almost the same principles as the English courts in respect of negligence by medical practitioners. Mrs. Alia Tareen and others v. Amanullah Khan and 3 others23 (PLD 2005 SC 99) was a case in which the respondent sued the gynecologist and the hospital administration for damages alleging that faulty C-Section and bad post-operative care had taken his wife's life. The Hon'ble Supreme Court of Pakistan held: "The standard of care to be observed by a professional has always been that of the ordinary skilled person exercising and professing to have that special skill. A doctor or surgeon was not to be held negligent if he acted in accordance with the practice accepted at a relevant time as proper by a respo nsible body of medical opinion, irrespective of the fact that other doctors might have adopted dif ferent practices in similar conditions."
The apex Court also approvingly cited the following directions of Denning L.J. that he gave to the jury in Hatcher v.
Black (1954): "You must not, therefore, find him negligent simply because something happens to go wrong: if, for instance, one of the risks inherent in an operation actually takes place or some complication ensues which lessens or takes away the benefits that were hoped for, or if in a matter of opinion he makes an error of judgment, you should only find him guilty of negligence when he falls short of the standard of a reasonably skillful medical man. In short, when he is deserving of censure, for negligence in a medical man, is deserving of censure."
27. Pakistan Penal Code, 1860, does not have any specific provision to deal with the cases of criminal medical negligence. Hence, its general provisions may be applied. Where medical negligence causes death of a patient, two provisions may become relevant --- sections 318 and 321, P .P.C. Section 318 reads as under:
318. Qatl-i-khata. --- Whoever , without any intention to cause the death of, or cause harm to, a person causes death of such person, either by mistake of act or by mistake of fact, is said to commit qatl-i-khata.
28. The essential element of section 318, P.P.C. is that there should not be an intention to cause death or harm because if there is one it would amount to Qatl-i-Amd within the meaning of section 300, P.P.C. In Sajid v. The State and another (2000 SCMR 167) the Hon'ble Supreme Court of Pakistan observed that the language of section 318 P.P.C. is broad enough to include death caused by an "rash or negligent act" of the accused. In Muhammad Aslam v . Dr. Imtiaz' Ali Mughal and 4 others ( PLD 2010 Karachi 134 ) the Sindh High Court held: "In other words, in order for an offence to be made out under section 318 in the present case, it would be necessary to prove that the respondent doctors were so negligent in the discharge of their professional duties that their conduct amounted to either criminal rashness (i.e., recklessness or indifference to the consequences of their conduct) or to criminal negligence (i.e., to a gross and culpable neglect or failure to exercise all the reasonable and proper care towards Mst. Badshahzadi as was their imperative duty to have adopted)."
29. Section 321, P .P.C. stipulates:
321. Qatl-bis-sabab. ---Whoever , without any intention to cause death of, or cause harm to, any person, does any unlawful act which becomes a cause for the death of another person, is said to commit qatl-bis-sabab.
The above section is attracted when the accused has no mens rea against a person but does some unlawful act which becomes the cause of his death. The distinction between sections 318 and 321, P .P.C. is pellucid.
30. The Punjab Assembly has enacted the PHC Act (XVI of 2010) to improve quality of healthcare services in the province and ban quackery in all its forms and manifestations. It also sanctions medical negligence. The following definitions given in section 2 of the FHC Act are relevant:
(xv) "healthcare establishment" means a hospital, diagnostic centre, medical clinics, nursing home, maternity home, dental clinic, homeopathy clinic, Tibb clinic, acupuncture, physiotherapy clinic or any other premises or conveyance ---
(a) wholly or partly used for providing healthcare services; and
(b) declared by the Government, by order published in the of ficial Gazette, as a healthcare establishment;
(xvi) "healthcare services" means services provided for diagnosis, treatment or care of persons suffering from any physical or mental disease, injury or disability including procedures that the similar to forms of medical, dental or surgical care but are not provided in connection with a medical condition and includ es any other service notified by the Government;
(xvii) "healthcare service provider" means an owner , manager or incharge of a healthcare establishment and includes a person registered by the Medical and Dental Council, Council for Tibb; Council for Homeopathy or Nursing Council.
31. The definition of the expression "healthcare service provider" given in clause (xvii) of section 2 of the PHC Act is inclusive. The legislature uses the words "includes", "shall include" or "shall mean and include" in an interpretation clause to enlarge the meaning of the term defined. Craies writes: "Where an interpretation clause defines a word to mean a particular thing, the definition is explanatory and prima facie restrictive and where an interpretation clause defines a term to include something, the definition is extensive. An explanatory and restrictive definition confines the meaning of the word defined to what is stated in the interpretation clause. The reason is that wherever the word so defined is used in the particular statute in which that interpretation clause occurs, it will bear only that meaning unless where as is usually provided, the subject or context otherwise requires, an extensive definition expands or extends the meaning of the word defined into include within it what would otherwise not have been comprehended in it when the word defined is used in its ordinary sense."
32. Mittal elaborates: "The principal function of definition is to remove vagueness and to provide a degree of definiteness about a word defined. The definition thus not only provides content to but also stipulates the boundaries of a phrase, word or expression. There are two broad clauses, delimitating and extending. A delimiting definition determines completely the limits of the signification to be attached to a word which is ambiguous having a number of meanings, or is otherwise vague, or of general signification. An extending definition is one which stipulates for the defined term, word or phrase, a meaning which is in some respect goes beyond the meaning conveyed in ordinary and common usage by the term 'word' or 'phrase'. Whenever the legislature uses the word 'means', the definition is meant to be delimiting, i.e. exhaustive, and where it uses 'includes', the definition is extending."
33. It is incumbent on the courts to give full effect to the interpretation clause unless the legislature has expressed a contrary intention. The definition of "healthcare service provider" in clause (xvii) of section 2 of the PHC Act expands the meaning of the phrase and takes the medical practitioner into its fold.
34. The PHC Act provides a comprehensive mechanism to attain its objectives. Section 3 establishes the Punjab Healthcare Commission (the "Commission ") and section 4(2), among other things, empowers it to monitor and regulate the quality and standards of healthcare services and clinical governance, and to inquire into complaints regarding healthcare services. Section 4(7) ordains that, notwithstanding anything contained in any other law, the Commission may undertake such investigation on the complaint of an aggrieved person or an aggrieved healthcare service provider but it would compulsorily hold the same where the Government or the Punjab Assembly makes a reference or the Supreme Court of Pakistan or the Lahore High Court directs it during the course of any proceedings.
35. As per Regulation 6 of the Complai nt Management Regulations, 2014, Commission has the jurisdiction to decide all complaints regarding medical negligence, maladministration, malpractice or failure in the provision of healthcare services. The term "medical negligence" is defined in section 2(xxii) of the PHC Act read with section 19 thereof while "maladministration", "malpra ctice" and "neglect" find their meanings in Regulation 2. Section 28 of the PHC Act empowers the Commission to impose fine upto Rs.500,000/- for contravention of the provisions of the Act and the rules and regulations made thereunder , keeping in view the gravity of the offence. The PHC Act, the rules and the regulations are informed by the, jurisprudence discussed above.
36. Section 29 of the PHC Act ordains that no suit, prosecution or other legal proceedings related to provision of healthcare services shall lie against a healthcare service provider except under the PHC Act. It follows that the Commission has exclusive jurisdiction in respect thereof. Nevertheless, the said bar is subject to section 26(2) which lays down that where it appears to the Commission that the circumstances of a case warrant action under any other law, it may refer the matter to the concerned governmental authorities or law enforcement agencies for appropriate action under the relevant laws. Section 26(2) should be widely constru ed. It confers sufficient authority on the Commission to prosecute a healthcare service provider under the criminal law, if the circumstances are grave, for medical negligence, maladministration and malpractice.24 25
37. In Dr. Riaz Qadeer Khan v. Presiding Officer, District Consumer Court, Sargodha and others (PLD 2019 Lahore 429) a Division Bench of this Court was called upon to consider , firstly , whether the Consumer Courts established under the Punjab Consumer Protection Act, 2005, were competent to entertain claims for damages on account of medical negligence, and secondly , whether the PHC Act encroached on the Pakistan Medical and Dental Council Ordinance, 1962, a federal law relating to medical profession. The Division Bench held that the PHC Act applied to the healthcare service providers as defined in clause (xvii) of section 2 thereof and the Commission was the sole authority to investigate and adjudicate complaints against them. As regards the Consumer Courts, it ruled: "The Punjab Consumer Protection Act, 2005 is applicable for protection and promotion of rights and interests of all kinds of consumers but the Punjab Healthcare Commission Act, 2010 exclusively deals with the matter for improvement of quality of healthcare services related to treatment, diagnosis and care. It regulates the 'healthcare service provider' being the person who is responsible for the provision of the services. It is well settled canon of interpretation that where there is a conflict between a special law and a general law, the former will prevail over the latter . Reliance is placed on case reported as Syed Mushahid Shah and others v. Federal Investigation Agency and others (2017 SCMR 1218)."
On the second question the Division Bench held: "No doubt the medical profession is a federal subject but it is only to the extent of regulating and educational qualifications and uniformity of standards in training and qualification for the purposes of education and entry into the profession. In this regard, the Pakistan Medical and Dental Council Ordinanc e, 1962 regulates the minimum standards of higher educational qualification in medicine and dentistry . It also regulates the institution from which the professional degree for qualifying as a doctor or dentist is obtained. However , this Ordinance does not regulate any of the healthcare services or establishments which will be used by the medic al or dental practitioners during the process of providing medical or dental services. Therefore, it can safely be concluded that healthcare services, establishment and service providers do not fall under the subject of medical profession, as such being a provincial subject are liable to be tried and adjudicated upon by , the provincial law ."
The case at hand
38. On 26.2.2019 Respondent No.3 made a complaint against the Petitioners before the Commission accusing them of malpractice, maladministration and medical negligence and alleging that they were responsible for the death of his spouse Safooran Bibi. The Commission took cognizance under section 4 of the PHC Act and during the course of proceedings found that the Petitioners were running GHMH for 25 years. Safooran Bibi was suffering from vaginal bleeding and was consulting Petitioner No.1 (Dr. Nafeesa) for a long time who diagnosed fibroid uterus and suggested surgery which was scheduled for 4.2.2019. However , two days before it, i.e. on 2.2.2019, an inspection team of the Commission suspe nded surgical services at GHMH due to non-availability of qualified staff.
The decision was duly communicated to Petitioner No.1 (Dr. Nafeesa) and her acknowledgement was obtained on the Inspectioh Report. On 4.2.2019 at 6:00 p.m. Safooran Bibi was admitted to GHMH. Her hemoglobin was 11.7 g/dl. According to the Petitioners, her X-ray and ECG were also done but Respond ent No.3 denies it. At 10:45 p.m.
Dr. Jahangir Khan (MBBS), who worked as Registrar Surgical Unit III at the Nishta r Hospital, Multan, and was On- call Surgeon of GHMH, performed total abdominal hysterectomy of the patient, including ovaries. Petitioner No.2 (Dr. Muhammad Saleem) gave her spinal anesthesia while Petitioner No.1 (Dr. Nafeesa) assisted the surgeon. The procedure was completed in half an hour after which Dr. Jahangir left. Safooran Bibi suddenly went down and suffered cardiac arrest. All emergency measures were taken to save her life, including CPR (cardiopulmonary resuscitation) and passing of ETT (endotracheal tube), and at 11:35 p.m. she was referred to tertiary care at ICU.
At 11:50 p.m. she was admitted to the Emergency of the Nishtar Hospital where she expired on 5.2.2019 at 5:30 a.m. due to hypoxic brain injury , shock and myocardial infarction.
39. According to Respondent No.3, Safooran Bibi's brain death occurred durin g the operation at GHMH. He submitted to the Commission her brain CT scan which was done at the Nishtar Hospital at 1:30 a.m. on 5.2.2019 and showed a dark patch in right frontal lobe
40. The Commission sought expert reports. The specialist in gynecology and obstetrics made the following observations: "a. According to the available record, the patient suffered collapse as she was being shifted to stretcher from the operating table. b. The hemoglobin of the patient at Nishtar Hospital is stated to be more than 10 g/dl. c. In view of the above, the likely condition for the patient's deterioration could be complication related to anesthesia or aggravation of pre-existing co-morbid conditions. Surgical complication causing sudden collapse is unlikely .
On the other hand, the anesthesiologist opined: "As Healthcare Commission suspended surgeries on their inspection on 2.2.2019, due to non-availability of qualified staff, the doctor should not have conducted surgery on 4.2.2019 without prior permission/ inspection by PHC.
"Anesthesia was given by a doctor having only three months training in anesthesia at junior level and he should not have done this without supervision."
41. The above resume prima facie shows that: (a) GHMH was not equipped to take Safooran Bibi as a patient and operate on her; (b) Petitioner No.2 was not qualified to give anesthesia to the lady without the supervision of a senior doctor; and (c) the factors that created complications for her could be related to anesthesia or aggravation of the pre-operation morbidities.
42. Clause (xxii) of section 2 of the PHC Act defines "medical negligence" as under:
(xii) "Medical negligence " means a case where a patient sustains injury or dies as a result if improper treatment in a healthcare establishment and, in case of death, determined on the basis of medical autopsy report.
Section 19 of the PHC Act stipulates:
19. Medical Negligence. ---(1) Subject to subsection (2), a healthcare service provider may be held guilty of medical negligence on one of the following two findings:
(a) the healthcare establishment does not have the requisite human resource and equipment which it professes to have possessed; or
(b) he or any of his employee did not, in the given case, exercise with reasonable competence the skill which he or his employee did possess.
(2) The recognized and known complications of a medical or surgical treatment are not considered as medical negligence.
43. In view of what has been discussed above, the various acts of omission and commission committed by the Petitioners fall within the ambit of the PHC Act. The Commission took cognizance of the complaint of Respondent No.3, held an inquiry and handed down order dated 8.10.2020. The Petitioners have appealed against the said order before the District and Sessions Judge in terms of section 31 of the PHC Act which is pending. I would not comment on that decision as it might prejudice either party .
44. Section 29 of the PHC Act is perspicuous. It expressly declares that a healthca re service provider can be held accountable under the Act. It follows that the Commission has exclusive jurisdiction to adjudicate the complaints relating to provision of healthcare services and, subject to section 26(2), all other legal proceedings, civil or criminal, in respect thereof are barred. Therefore, the Justice of Peace was not competent to entertain the application of Respondent No.3 under section 22-A Cr.P.C.
45. The impugned order dated 30.11.2020 is not sustainable even on merits. To prosecute the Petitioners under the criminal law Respondent No.3 is obligated to produce prima facie evidence in the form of credible opinion of another competent doctor to support the charge of negligence. The Commission's order dated 8.10.2020 exonerates Dr. Muhammad Jahangir and Petitioner No.1 (Dr. Nafeesa) but its findings qua Petitioner No.2 (Muhammad Saleem) are inconclusive. There is an observation that he had only three months training in the field at junior level and was not qualified to give anesthesia to Safooran Bibi without the supervision of a senior doctor but there is no concrete finding that he is responsible for her death. Accord ing to the specialist's opinion, complications could have occurred due to pre-operation morbidities. Safooran Bib's precise cause of death could only be determined through her postmortem examination but it was never conducted. In Mrs. Alia Tareen and others v. Amanullah Khan and 3 others (PLD 2005 SC 99), the Hon'ble Supreme Court of Pakistan accepted the appellants' appeal and set aside the judgment and decree in a suit for damages .grounded on the negligence of doctors and hospital administration as there was no autopsy report of the deceased. I am aware that in Abdur Rehman v. The State (1998 SCMR 1778 ) and Sikandar v. The State and another (2006 SCMR 1786 ) the apex Court held that omission to conduct postmortem of the deceased was not fatal to the prosecution but both these cases are distinguishable on facts. In Abdur Rehman, the accused was driving the bus rashly and negligently and rammed into a student waiting for his school transport. The testimony of the prosecution witnesses established that the boy's death was the direct result of the crash. In Sikandar's case the homicidal death was proved by "direct evidence of most neutral and independent witnesses" so the Supreme Court held that non-availability of medical evidence would be of no consequence as it was only confirmatory in nature. In the instant case, the real cause of death of Safooran Bibi is not known.
46. By way of postscript it may be stated that in the instant case it may not be poss ible even for the Commission to order registration of FIR against the Petitioners because clause (xxii) of section 2 of the PHC Act makes autopsy report mandatory to establish medical negligence.
Conclusion
45. In view of what has been discussed above, this petition is accepted and the impugned order dated 30.11.2020 is set aside.
46. No order as to costs. . Constitution of the World Health Organization. Available at: https://www.who.int/governance/eb/ who constitution_en.pdf The Right to Health, Fact Sheet No. 31. Available at: ohchr.org/documents/publications /factsheet 31 pdf Article 12 See note 2 . Ibid https://www.refwprld.org/pdfid/4538838d0.pdf Ms. Shehla Zia and others v. WAPDA (PLD 1994 SC 693) Government of Sindh through Secretary Health Department and others v. Dr. Nadeem Rizvi and others (2020 SCMR 1); Naimatullah Khan Advocate and others v. Federation of Pakistan and others (2020 SCMR 622) and Sadaf Aziz and others v. Federation of Pakistan and others (2021 PCr.LJ 205). Dr. Waldman writes: "Health care -- two words -- refers to provider actions. Healthcare -- one word -- is a system. We need the second in order to have the first." (soprce: arcadia.io/final-word-healthcare-vs-health-care) Dictionary.com/browse/healthcare . Medicaleconomics.com/view/what-healthcare Punjab Healthcare Commission v. Mushtaq Ahmad Chaudhry and others (PLD 2018 Lahore 762) Halsbury's Laws of England, Fourth Edition, Volume 30, para 34. Proclaimed by Babylonian King Hammurabi who reigned from 1792 to 1750 B.C. B. Sonny Bal, An Introduction to Medical Malpractice in the United States, DOI 10.1007/X11999-008-0636-2 Ratanlal and Dhirajlal, Law of Torts, Twenty-fourth Edition (2002), edited by Justice G.P. Singh, p. 441-442.
Also see: Blyth v. The Company of Proprietors of the Birmingham Waterworks, [1856] EWHC Exch J65. Michelle Robson et al, Doctors Are Aggrieved -- Should They Be? Gross Negligence Manslaughter and the Culpable Doctor, The Journal of Criminal Law, (2020) Vol 84(4) 312-340, DOI: 10.1177/0022018320946498 Ash Samanta and J. Samanta, Legal standard of care: A shift from the traditional Bolam test (2003), available at: https://www.researchgate.net DOI: 10.7861/clinmedicine, 3-5-443 Margaret Brazier and Jose Miola, Bye-Bye Bolam: A Medical Litigation Resolution? Medical Law Review, 8, Spring 2000, pp. 85-1141 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Ganguly J. in V. Kishan Rao v. Nikhil Super Specialty Hospital and another [(2010) 5 SCC 513]. See: V. Kishan Rao v Nikhil Super Specialty Hospital and another [(2010) 5 SCC 513]. . Lord Taylor of Gosforth, CJ. in R v. Prentice and another, [1993] 4 All ER 935 Jacob Mathew v. State of Punjab and other (AIR 2005 SC 3180). braies, Statute Law, Seventh Edition, p. 213 (1971) D.P. Mittal, Taxmanri's Interpretation of Statutes, ISBN: 81-7496-730-3, p. 774