The doctors of Nepal are leading a nationwide protest by shutting down hospital services except for emergency cases, starting today ( well, strictly speaking, yesterday since they are a day ahead of us on the International Date Line). The government revised the criminal code to establish a criminal penalty for the doctor when a patient dies under their care. The Nepal Medical Association called for this to be suspended until it can be replaced, but the government did not respond to a two-week deadline.
“All Doctors Will Be In jail Due to New Criminal Code”
Writing in Setopati ( A Nepal online publication), Dr Chakra Raj Pandey wrote:
Our attention has been drawn to some provisions related to doctors and health practitioners in the new General Criminal Code that came into effect from first Bhadra, 2075 (August 17, 2018).
Clause 230 (1) and (2) is full of flaws. It seems that people who do not know anything about medical science have proposed the clause. In fact, it can take many individuals lives. There is nothing small or big in medicine. One tablet can cause anaphylaxis or one surgical incision can cut nerve or artery or even cause septicemia.
Medical error has been defined as an unintended act or one that does not achieve its intended outcome, the failure of a planned action to be completed as intended (an error of execution), the use of a wrong plan to achieve an aim (an error of planning), or a deviation from the process of care that may or may not cause harm to the patient. Heart ailments cause 611 thousand, cancer 585 thousand and medical errors 251 thousand deaths, according to statistics from US Hospitals for 2013.
Looking at clause 230 (3) and (4), any of us can be in prison from three years to whole life.
Hippocratic Oath prohibits all of us from treating any patient with wrong intention. If we do so, we are not physicians. In that situation, our license has to be confiscated by the council or other regulatory bodies. …..
Clause 231 (2) a and b treat malicious treatment by physicians like murders. They state that no physician will treat maliciously, and the physician’s license will be confiscated if there is any concern and complaint about malicious treatment. I have never heard and read about any physician treating maliciously in my life. How can a patient go to a physician who is treating maliciously?
Clause 232 talks about medical negligence. Is it medical error or is it a different thing? If we talk about medical error as medical negligence, there will be no space left in the country’s prisons and there will be no doctors left in the hospitals.
So, this law has been put forward without enough homework and no stakeholder was invited in the discussion process. It is still not too late to correct it. I am sure with the able leadership of Prime Minister KP Sharma Oli, this problem can be corrected once and for all.
The discussion, in my view, has to be focused on how to produce able doctors, how to provide life-long education, how to participate in maintenance of certification, how to do clinical and basic science research, how to make better hospitals where doctors can perform best surgeries, treat patients in the best possible way, and how to build safe institution.
It seems our focus has deviated from the main goal. Let physicians and allied specialties come together to show the correct path and solidarity.
Background to the issue
The problem is, Nepal is a Low Income Country with tremendous geographical challenges and an underfunded health system. There are many “excess deaths” in all regions of the country, an “excess death” being defined as one which might not have happened if the best possible medical care had been applied. A number of these inadvertent bad outcomes garner nationwide publicity. Most notably, for example, if a woman dies in childbirth it is not unusual for the relatives to assault the doctor, vandalize the hospital and demand compensation. The link will take the reader to a partial list of well-publicized incidents maintained by CCNEPal.
Deja Vu, All Over Again
In September 2017, the NMA strongly protested a similar proposal, one that would have also criminalized the practice of medicine. The government ministers have not gotten the message it seems. At that time an editorial in SwasthyaKabar wrote:
Doctors all over Nepal are now hesitant to take any risks by managing complicated cases on their own, thus leading to many unnecessary referrals to higher centers. This is what they call “defensive medicine.” Many hospitals are not managing serious cases because of the fear of repercussions if anything goes wrong. They are putting their safety first and being defensive, especially in those areas where they are practicing in small groups without much supervision and guidance. This will lead to a significant increase in the number of cases burdening the public health care system, thereby further decreasing quality and increasing the cost of clinical care. Patients will be directly affected if this continues. The patients from the most vulnerable and marginalized population will be the ones most dramatically affected, given that they do not have any alternative, and cannot afford to pay high out of pocket expenditures to go to private clinics. Health care will not be equitable and affordable to all, by any means.
Root Cause analysis
The custom in Nepal is to simply blame the doctor. In USA we would “drill down” to examine the safety systems in place to pro-actively identify hazards, but nobody seems to have applied this to Nepal before adopting the new law. For example, determining if the hospital owned the right emergency equipment and whether it was in good repair, or perhaps whether the staff was properly trained. Questions such as whether the patient intentionally delayed going to the hospital or did not enroll in prenatal care. One international NGO that runs a hospital in Nepal did publish one of their own such analyses recently, and it illustrates the points I am making.
Transfusions as an illustration
Nepal does not have a consistent blood banking system, but does have a population of citizens with AB+ blood, a situation that becomes dire when the person who needs it is a postpartum woman in hemorrhage. (Not the only problem with Nepal’s system for transfusion.) The way the new law is written, any doctor unable to obtain AB+ blood for such a patient can go to jail. If this is allowed to let stand, who in their right mind will risk agreeing to deliver the baby of any woman at risk?
Thrashing of doctors and vandalizing hospitals
This is already an issue in Nepal, and in fact it is a problem in all South Asia, as has been documented in this very blog you are now reading. Regardless of the circumstances of death, it is a widely known cultural practice to blame the doctor and attempt harm. In the recent past, India and other countries have considered a #JailWithoutBail penalty for any patient party that reacts to bad medical news with violence, modeed after a newla in Queensland, Australia. This new law in Nepal achieves the opposite effect, and increases the likelihood that doctors will get thrashed and the perpetrators will be immune from prosecution.
There is no central registry of inadvertent deaths
The government has no data of which I am aware, which is why I started the tally of cases that received newspaper coverage. There are many equally serious cases that do not receive coverage because they lack the sensational element. In my travels around Nepal teaching critical care skills to doctors and nurses, I listen to many anecdotal stories of systems failures.
It is crystal clear that any doctor working in an underfunded hospital can easily become a scapegoat. The biggest most underfunded hospitals in Nepal are the District Hospitals and Regional Hospitals. Even more so in rural areas. Why would any young doctor take the risk and work in a rural government hospital?
Protest in Kathmandu
Here in Nepali language is a video of a protest march.
These are not the kind of people you ordinarily expect to be out marching.
Other background info
More information as to other new and controversial clauses in the newly revised law are listed here.
This preset proposal needs to be withdrawn and all stakeholders need to have input.