Special Circumstances under which a Doctor or a Para Medic may leave Professional Duties amid Coronavirus Pandemic: Legal Remedies
In the wake of the current situation where Coronavirus or Covid-19 has turned out to be a global pandemic the healthcare professionals i.e. the Doctors and the para medic staff which includes nurses and ward boys have come to the forefront and are acting as soldiers and warriors. The determined and plausible efforts of the healthcare professionals, the Government of India and the State Governments have acted as a shield for India and the same is evident from the number of persons affected by the Coronavirus. The joint efforts of the Governments at the Centre and in the States and the healthcare professionals in India has not only saved many lives but has also displayed exemplary leadership and skills in a developing country which is inhabited by approximately 1.33 billion people.
Having said that, there exists some situations which can be termed as “personal difficulties” wherein the healthcare professional i.e. the Doctor is himself/herself going through tough times which includes personal problems which are beyond their control i.e.
- The Doctor suffered an injury
- There is no one to take care of children (below 5 years of age) of Doctor.
- The elderly parents (above 65 years of age) of the Doctor’s cannot maintain themselves.
- The Doctor is going through depression and mental trauma.
All of the above mentioned circumstances pose a threat to the decisions and judgments made by the Doctor or the healthcare professional which can eventually have a negative effect upon the treatment which the Doctor is administering to the patients and pose a grave threat to the ongoing treatment of the patient and ultimately to the health of the patients and their chances of recovering.
At present the Government has imposed the Epidemic Diseases Act of 1897 and the Epidemic Diseases (Amendment) Ordinance of 2020 respectively. The Government alongside the healthcare professionals is leaving no stone unturned to fight the Coronavirus which includes the Ministers, the Public Servants, the Police, the Doctors and the Para Medics working on extremely long hours under extreme conditions, without even thinking about themselves and their own good. Having said that, there are certain persons including from the ones who are mentioned herein above who needs to put down their feet and rest, especially the Doctors. As already mentioned in the preceding paragraph, there are certain rare personal difficult situations whereunder it become extremely difficult for the Doctor to discharge his/her duties professionally and thus the Doctor needs to be given temporary leaves (with or without pay) and should be discharged from performing his/her professional duties for a greater good. After an elapse of some time and only after conducting a proper medical and psychological evaluation of the Doctor, he/she shall be reinstated. There exists a cogent need for setting up Counselling Sessions & Services for Doctors and healthcare professionals to reduce their mental pressure which shall ultimately lead to bringing in more proficiency amongst them. Allowing a Doctor to work under the extreme pressure of personal difficulties as enumerated above poses a very potent challenge to the health and well being of not only the Doctor but also to the patients whom the Doctor is administering treatment.
In order to obtain leave the Doctor shall first apply through District Medical & Health Officer for any emergency leave but the discretion rests with Director of Health case by case. Practically, any severe emergency such as pregnancy, delivery, accident or any unavoidable reason, such permissions are to be given. But in case the permission is not granted for special circumstances, the Doctor can approach the Hon’ble High Court under Article 226 of the Constitution of India and file a writ In the case of Dr. Tandra Ghosh V. State of West Bengal & Ors Civil Writ Petition No. 266 of 2013, a Doctor whose resignation letter was rejected had filed a case. It was held in the case that mere shortage of teaching faculty was not a sufficient reason for rejecting the resignation letter despite the unwillingness of the petitioner to work. In another case of Dr Ritu Ahlawat vs State of Rajasthan Civil Writ Petition No.17495 of 2011, the petitioner was denied leave under family circumstances. A civil writ petition was filed before the Hon’ble High Court of Rajasthan. Here also the reason for rejection was shortage of Doctors. Thus, the Court allowed the writ petition and held that “the respondents are directed to consider the application for resignation and it may be granted if nothing adverse exists against the petitioner.”
Now the question that arises is whether there is any threat to a Doctor under section 188 of the Indian Penal Code (IPC) 1860 which makes it mandatory that if a government employee abstains from the performance of a duty entrusted to him by a public servant who is lawfully empowered to promulgate such an order, he/she shall be punished with imprisonment which may extend up to six months, or with a fine which may extend to one thousand rupees, or both. In a scenario where a government Doctor, is unable to continue with the provision of services to a government hospital, such a situation comes under certain specific circumstances under which the Doctor cannot be subjected to liability under the aforementioned provision.
It was recently observed by the Hon’ble High Court of Gujarat in the case of Suo Motu vs. State of Gujarat and Ors., W.P. No. 42 of 2020, that “it is also worth mentioning that in a state of lock-down and social distancing, the Government employees of various departments falling under essential services like police, medical and health, food and civil supplies, labour and employment, finance, etc., are working day and night to deal with crisis risking their life, any public interest litigation which is found to be motivated or sponsored or for personal gains for popularity or any vested interest, or frivolous would be dealt with at the appropriate stage firmly.” The Hon’ble Court in this case, had taken into consideration the dire situation prevailing due to COVID-19 and the many risks that the Doctors were undertaking to prevent the disease, and the initiation of any form of litigation without due cause would be dealt with accordingly. It was held in the case of Kharak Singh v. State of U.P. (1964) 1 SCR 332, and in the case of Gobind Singh v. State of M.P. (1975) 2 SCC 148 that the right to parenthood comes within the right to privacy within the meaning of Article 21 of the Constitution of India. Parenthood, according to our constitution grants the parental status to persons who have earned it through nurturing one’s biological child. Hence a government servant, who is a parent can avail the aforementioned right and can look forward to the leave by filing a petition before the Court for granting the same.
The need of the hour is not to penalize a Doctor for not performing duties but to ensure that things around the Doctor are made positive enough to ensure the voluntary and proficient performance of duties.
The present situation demands joint efforts by the people of all walks of life and especially the healthcare professionals like the Doctors and the para medic staff including nurses and ward boys yet sometimes we need to take care of the health of the healthcare professional.
Authored By: Adv. Anant Sharma, Abhijith Christopher & Sanjana Akasam