How to Get Relief against Medical Malpractice

Medical malpractice is not only a domestic issue rather a global concern all over the world. Countless patients are suffering from some sorts of medical negligence everyday in any corner of the country. But it draws media’s attention only when someone died or something bigger happen for mal treatment. Presently, there are several inadequate means to get relief against clinical negligence i.e. departmental action, cancellation of registration, bringing civil and criminal cases, filing complaint under the consumer rights and judicial review.

However, the existing ways to get remedy are not well circulated. Some legal procedures are not only complex but also time consuming, labourious, pricy and often it is tough to get expected result due to many factors including biased or improper investigation, lack of technology and technical knowledge, stringent rule of evidence etc. Therefore, victims or their families are reluctant to file formal allegation against medical practitioner rather they often involved with unexpected conflicts with them to mitigate their sudden excitements after happening of an unhappy situation.

However, one can file complaint in the form of an application on white paper addressing to the registrar of the Bangladesh Medical and Dental Council (BMDC) regarding any grievance caused by any mal treatment of a doctor, dentist or medical assistant. After getting that, the BMDC will form a committee to enquire the matter. If the accusation is proved before them then they can take action against that accused from warning to cancellation of registration depending on the gravity of wrong under the Medical and Dental Council Act, 2010 and the Code of Medical ethics adopted by the BMDC.

Nevertheless, the council is neither entitled to give any compensation nor empowered to take punitive action. After the formation of the council to till 2010 there was only 47 complaints filed in the BMDC and among them registration was cancelled permanently in one case only and in another one, registration was suspended temporarily. The rest of the cases the council merely warned or criticized the doctors or dentists. However, the BMDC’s website doesn’t have any option to file complaint through online. The enquiry is conducted by fellow physicians which questioned the neutrality and takes lengthy time. The council’s website doesn’t have any mechanism to file the complaint through online. Further, they have no power to deal with the matter relating to unregistered doctor. It is evident that the system needs to revisit. Apart from BMDC, the concerned appointing authority of the alleged physician may take departmental action like suspension from job against the accused.

Albeit there is no express provision in law for tortuous claim to get compensation for medical negligence but one can surely file civil suit for damages. However, compensation for mental trauma is yet to be recognized by our law. Complicated and arduous civil litigation system, requirement of advalorem court fee, lack of technical knowledge of lawyers’ and judges’, absence of clear law, stringent provision of producing evidence etc. are refraining complainant from litigating this kind of suit in civil courts.

The scope for criminal action for medical negligence is very narrow as well. The Penal Code (PC), 1860 only suggests to prosecute a medical practitioner for his negligent performance under section 304A; punishment of which is highest five years imprisonment or fine or with both. Victim or his near one may bring action under sections 314, 321-326 and 336-338 also. Nevertheless, the PC requires presence of strong mental element (mens rea) to prove the guilt while the context of a physician presupposes “good faith” as s/he tries to cure the patient. Hence, exemptions and immunities given for the defense of “good faith doctrine” in sections 88 and 92 of the PC thinned the scope for criminal action against clinical malpractice in Bangladesh.

Apart from these, Ss. 52 & 53 of the Consumer Rights Protection (CRP) Act, 2009 launches another door for the victim to claim compensation for medical negligence. Because a medical patient is considered as a consumer and the medical institutions or professionals are as service provider under section 2, though it is not expressly stated in the Act. Hence, one can file complaint directly to the Directorate of National Consumer Rights Protection (DNCRP) over phone call to 01777 753 668 or through email to nccc@dncrp.gov.bd or through post to the Director General, DNCRP, 1. Karwan Bazar (TCB Building-7^th floor), Dhaka-1215. However, the appellant will get 25% of fined money if s/he wins the case.

The CRP Act also provides forum for parallel civil jurisdiction for compensation which also not barred to bring criminal action simultaneously. The court of the Joint District Judge of whose local jurisdiction the matter has arisen is competent to try the matter and an appeal can lie to the High Court Division. However, where there is no other equally efficacious remedy obtainable under the domestic law, judicial review can also offer prospective collective remedy or open the sealed doors of procedural relief. Judicial review, in the form of Public Interest Litigation or in other cases, can provide remedy in this case.

Physicians are last resort for any physically vulnerable people. Hence, medical professionals must be accountable to ensure highest standard in healthcare. To guarantee this, enactment of a specialized legislation particularly deal with the matter and formation of an independent regulatory body are two crying needs to ensure good governance in health care sector in Bangladesh.

Published in the Law & Our Rights page of the Daily Star on 25 July 2017 

Can an Unscientific Test Prove Rape?

Bangladeshi rape victims not only suffering from grave physical and mental trauma for rape rather we can marked it as first phase of the torture which open multi windows to be persecuted further. The path way to get justice for rape victim is very stony in this country. Rape victims are usually treated judgementally from the moment they call up the incident. Indeed the victim needs to start her struggle towards justice. Victims are stricken by social stigma, repeated utterance of her harrowing experience in every steps of getting justice, maligned two-finger test, dishonour during trial by questioning chastity, humiliation by defence counsel during cross examination etc. Investigating agencies also highly relies on two-finger test to frame charge against rapist. Consequently, victims are disinclined to report the crime due to the fear of losing her privacy again after the occurrence of a monstrous crime against her. Despite that, if one justice seeker shows courage to go to court, becomes frustrate and hopeless at one point about the minimum chance of getting fare justice. As a result, either she doesn’t pursue the case properly or withdraw her complaint to become hassle free.  

Yet we can change the scenario by altering the horrendous two-finger test of the victim, amending the patriarchal legal provision of questioning character, introducing technology during investigation and so on. The horrific two-finger test is nothing but an extra torture and cruel treatment to the victim to prove the crime. The two-finger test or virginity test allows doctor to inspect the hymen of women who have been raped and also test vaginal size and laxity to decide whether the victim is habituated to sexual intercourse.

While there is no scientific or legal connection between rape, and habituation to intercourse, this evidence is frequently used in our criminal justice system to conclude whether rape took place or not. As if rape can only be committed against a virgin girl. What happen if somebody has previous sexual orientation like a married lady is being raped? It indicates that our total system is only focusing to a woman who has no prior sexual experience and others are disqualified to get justice! Additionally, if the rape survivor passes the test then she is to be treated as virgin that means she rape was not took place or alternatively, if she fails, it indicates she is sexually habituated which ultimately favors the accused.

Moreover the size of vaginal opening varies among women; the hymen is a flexible membrane which can be ruptured before sex due to many reasons. While gang rape happened the fact that finding habituation may be a result of that gang rape itself. Gang rape is more severe in nature than rape which needs to be addressed specifically by the law. Regrettably we do not have any separate provision to deal with the offence of gang rape except any woman or child dies in consequence of gang rape or injury causing out of rape. Incident may become more brutal if it commits against a pregnant woman.

However, there are too many variables to determine the flexibility of the vagina e.g. the size of doctor’s finger, perception of easy accessibility of the doctor may varies from person to person, experience etc. Additionally, rape can also be committed by partial penetration of penis; complete penetration or ejaculation is not at all necessary to prosecute the rapist. Even someone can bring allegation of rape against an individual with whom she is habituated to sex before. Habituation to intercourse itself is not a ground not to be raped.

Albeit sexual violence by means and manner other than penile-vaginal penetration is common and may take the form of penile-anal penetration, penile-oral penetration, finger-vaginal penetration or object-vaginal penetration but these are not recognised as any form of sexual violence in our country. One may merely bring an action for hurt or grievous hurt for these. Nevertheless, these are sexual assaults also and cannot be proved by outrageous two-finger test.

Furthermore, there is no sufficient and well equipped medical arrangement for this test in every hospital and often it is done by male doctor and male assistant in an open place which is a serious violation of right to privacy. Indeed this virginity test is a further arrangement of traumatization, aggression to her dignity, sexual violence by the system. However, forensic medical evidence can play crucial role to convict the accused but these issues should be dealt more sensitively. That is why; set up a separate designated room for forensic and medical examination of victims is crying need for us to avoid the infringement of privacy. There must be provisions to provide alternative clothing for the victims and smooth collection of medico legal cases evidence keeping in mind the sensitivity of the circumstances. To do any sort of medical examination for a rape victim if the doctor is male, a female attendant must be there and while carrying out medical tests no third person must be present in the room other than the doctor. Counselling should also be provided to victim to address the psycho-social impact of sexual violence and to alleviate her woes. However, doctors should not use the term rape in their opinion as it is purely legal matter which will ultimately determined by the court what we observed in Banani rape case rather they can say whether there is any evidence of forceful intercourse. Media should also be sensitive in reporting these incidents.

The World Health Organization’s guidance on the medical examination of rape survivors highlights that even a speculum examination of the vaginal walls to locate injuries “may be particularly difficult for the patient, as it may remind her of the assault. Even so concerned are not taking consent of the rape survivor to carry out the test. They presume that consent is not particularly important, as filing an FIR is deemed to entail any necessary examinations which is a misconception. Informed consent of the victim should be taken before any examination and informing to parent/guardian in case the victim is under aged or not in a position to give her consent. Names of examination, intended sample, purpose of analysis and how the procedure may be carried out has to be informed to the victim.

To come to a conclusion against this invasive human right violating, the Bangladesh Legal Aid and Services Trust (BLAST); seven others human rights, women rights, legal service organizations and two other individuals filed a public interest litigation before the High Court Division (HCD) challenging the test in 2013. In response, the HCD issued a rule against the legality and authenticity of the outdated draconian practice of two-finger test. The court also ordered to frame a guideline to eliminate this practice of the test and arrange sensitivity training for the medical personnel who will deal the matter. However, regrettably the rule still remains pending before the court. Nevertheless, criminal justice experts, lawyers, police and forensic specialists have demonstrated that this kind of test has neither evidentiary value nor scientific merit rather breaches national and international human rights standards, compounds the victim’s trauma and paradoxically amounts to a further sexual assault.

Hence, we should not waste more time to abolish this terrific and unscientific process to prove rape case. Government must take immediate step(s) to eliminate two-finger test and to formulate a comprehensive medical guideline for forensic medical care for sexual assault. Otherwise, victim will not only abused by the rapist but also infringed by the state as well. 

Published in the Young Observer of the Daily Observer on 08 June 2017 

Rape Laws Defeat Justice

Albeit rape is one of the primeval crime and a common phenomenon around the globe but the position of women are more vulnerable in this milieu in Bangladesh due to many factors including but not limited to medieval definition of rape and legal framework, lack of proper investigation and speedy trial, character assassination outside and inside the court, unfavourable social surrounding, unjust humiliation to the victim and her family, least chance of getting proper remedy, continuous harassment etc. However, rape is not only an atrocious crime against the body of a woman but also a crime against basic human rights and a violation of the victim’s most cherished fundamental rights, namely, the right to life. 

In addition to this, Bangladeshi patriarchal society tagged a seal upon the rape victim that because of rape she is losing her honour and dignity as if society put honour into the vagina while the fame of rapist remains intact! Also our spoiled mentality love to stamp the victim as “dhorshita” meaning the woman being raped instead of blaming the perpetrator.

However, while the country is changing towards modernity, there still we foster 157 years old penal provision to prosecute the offender! According to that backdated law, rape can only be committed under any of the following circumstances:

If a man has sexual intercourse with a woman firstly against her will or secondly without her consent or thirdly with her consent, when her consent has been obtained by putting her in fear of death, or of hurt; fourthly, with her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married and fifthly, with or without her consent, when she is under fourteen years of age.

However, there is a thin distinction between the two identical words “will” and “consent” describes in the first and second circumstances of committing rape respectively. Former denotes a desire, longing, ability to do something that you intend whereas later is permission or acceptance to do something or in other words it signifies agreement to a certain proposal. However, consent has to be given prior to the act; an accused cannot say that a woman consented to intercourse after he had sex with her. The presumption of consent must not be subjective that means the accused cannot argue he believed there was consent. Rather, he must demonstrate that he believed there was consent because he took reasonable steps to ascertain consent to the specific sexual activity.

Furthermore, accused cannot presume consent himself because of absence of actual physical resistance to the act of penetration. Nonetheless, the phrase ‘against her will’ reflect ideas that victims of rape must behave in a certain manner for the offence to be made out. This should be removed in recognition that respect for sexual integrity and autonomy does not require the victim to fit into any stereotypes on how he or she should behave.

However, the statutory definition of Rape in Bangladesh makes it transparent that rape is totally a gender biased offence which can only be carried out by a male through penetration and the victim can only be a female. To be specific, our criminal justice system only accepts penile-vaginal non-consensual intercourse. Penetration of the anus, urethra or mouth by the penis, or penetration of vagina, anus, urethra or mouth by objects other than penis is struck out of the definition from the 1860’s Penal Code (PC).

Gender neutrality within rape statute is the concept that the criminal law should recognize that both men and women can be rape victims as well as perpetrators. Hence the pronoun ‘her’ used in the definition should be replaced with gender neutral language in recognition that men can also be victims of rape and sexual assault. Similarly references to ‘man’ in mistaken identity should be reframed in gender neutral terms.

Nevertheless, under the Section 375 of the PC, a female cannot face the criminal trial as offender of rape, interestingly enough, the same punishment for rape, i.e. capital punishment or life imprisonment, can be imposed on her for instigation or abetment of such offence. Section 30 of the Women and Children Repression Prevention (WCRP) Act, 2000 confirms that the punishment for instigation or abetment of offence, under this Act, shall be the punishment provided for the commission of the offence or for the attempt to commit the offence.

Another mentionable problem which Bangladesh suffers concerning legal framework dealing with rape is absence of recognition of marital rape in any of the penal law. No married woman can seek legal protection if she is being raped in home by her husband. This discriminates between married and unmarried women. Under the present law, married women are deemed to give their consent forever at the time of solemnization of their marriage and are frequently obliged to have sex, even if she is not willing, with her husband. Additionally, our laws have no remedy against gang rape. Only the WCRP Act has mechanism for capital punishment if any woman or child dies in consequence of gang rape or injury causing out of rape.

It is important to remind, one has absolute right to withdraw the given consent at any point of sexual intercourse and continuation contravening that, even further penetration to any extent after withdrawal of consent shall commit rape. Hence, none can argue that he did the act with her loved or known one. Even if we imagine a situation where the victim likes to pretend she does not consent as it increase her sexual pleasure and shout “no” seriously while anyone penetrates to her shall also commit rape. Because, the offender must consider all the relevant circumstance reasonably and objectively to believe her consent. Moreover, uttering “No means No” or “Only Yes means Yes” is not necessary to reflect the consent even a damn lady can refuse to have sex by her attitude. Therefore, blaming victim’s attire, gesture, returning of home at late night or going to a party at night in an unknown atmosphere is not at all a valid justification behind committing rape. 

However, there is huge anomaly in determining age of consent to sexual activities in different laws of Bangladesh. The WCRP Act, 2000 defines child as below 16 years old person and any person having sexual intercourse with a below sixteen years old girl whether she consents or not and whether he lawfully marries her or not shall be prosecuted for rape. On the contrary, the Majority Act, 1885 implies the age of majority to give valid consent as 18 years. Then what will be the consequence of a consensual intercourse between 16-18 is unclear from the law. Furthermore, the PC, 1860 stipulates sexual intercourse a man’s own wife not being under thirteen years of age, is not rape whereas the WCRP Act of 2000 penalizes sexual intercourse between a legally married couple where the age of the wife is below 16 years! Additionally, under the Shariat, Muslims are allow to marry at the age of puberty and the Muslim Personal Law (Shariat) Application Act, 1937 stated that the rules of Muslim marriage shall be applicable to the Muslims that also creates another confusion regarding age of consent to determine commission of rape.

Yet we do not have any victim and witness protection law in this land. Another reason behind barrier for rape victim to seek justice is lack of gender sensitivity in our judicial system. Most of the rape cases are deal by the male personnel. From the very beginning of a case, a victim feels shy to disclosure all the matters before a male. Moreover, our police and other stakeholders are not properly trained to deal with the matter delicately. Though we have a victim support centre in the capital but that is not sufficient to handle huge number of cases occurred all over the country frequently.

However, most powerful reason behind non access to justice by the victim is character assassination by the defense lawyer during trial. Section 155(4) of the colonial Evidence Act 1872, relating to character evidence in rape cases permits the defense counsel to bring previous bad character of the victim to the court to vitiate her credibility. The section says "when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character."

The motivations behind this ancient rule are to prove the likeliness of the victim to consent to the conduct charged and to impeach her creditworthiness during the trial. Ironically, the character of the alleged rapist cannot be called in question under S. 54 of the Evidence Act unless he takes advantage of the 'mercy rule' and offers evidence of his own good character.

However, we need a 'rape shield' law which prevent questioning the victim about her past sexual history or behaviour except in rare circumstances. Generally previous character has rare connection with the case due to the issue of consent basically in the existing case. A person having several previous sexual records has equal right to get justice against an unlawful sexual intercourse and a mere history of past record may not diminish the merit of the present case.

Another point to remember is that, there is no time limit to file criminal case albeit it is suggested to file the case within possible shortest time to establish the allegation strongly and to prove the crime more easily. Despite that, lapse of time cannot make the matter silly. Apart from confession given by the accused, circumstantial evidence and in depth forensic examinations can bring the offender(s) before justice. However, if police show disinclination to register the case; victim can file complaint directly to the magistrate. Further, if the investigating officer becomes bias or does not investigate properly then the complainant has an option to apply to the court for proper investigation of the matter.

Trauma caused by sexual assault and compensation for that is highly neglected in the PC which only penalizes assault or criminal force to woman with intent to outrage her modesty that neither acknowledged the bodily harm of the victim nor the physical or psychological trauma that a victim may go through in consequence of that assault.

It becomes a trend now that the criminal often take photograph or record video of sexual offences and disseminate it in various ways. However, he Bangladesh parliament has legislated the Pornography Control Act in 2012 by which this type of awkward can be tackled effectively. If anybody forces a woman to produce pornography or take photo/record video with or without her consent shall be liable maximum rigorous imprisonment for seven years and fine up to 200,000 taka. In addition, if a person tries to blackmail anyone or damages anyone's social or individual reputation through pornography, s/he shall be punished with the same. Hence, apart from much discussed s. 57 of the Information Communication Act, 2006, a rape victim whose photo was being taken or video recorded can file a separate case under the Pornography Control Act, 2012.

Hence, there is every reason for an overhaul and comprehensive review of rape laws to take place, given the reality in Bangladesh of rape survivors not being able to get redress in these cases.

A shorter version has been published in the Young Observer of the Daily Observer on 1 June 2017