An Overview of Medical Crimes in India with respect to Covid-19

This article has been written by Nikita Saha, a Final Year Student of the B.A.LL.B. (Hons.) program at Assam University, Silchar. She takes an active interest in Criminal law and Human Rights Law.

“Wherever the art of Medicine is loved, there is also a love of Humanity”

- Hippocrates

INTRODUCTION

Doctors are regarded as lifesavers in India. People treat them as gods and rely on doctors for their health problems. Thus, making the health sector, one of the largest and essential sectors of the country. Earlier, people who practiced medicine used to be precise in their treatment and more concerned with curing patients, it was considered as a service to humanity, but times have changed dramatically, particularly since the 1990s. In current times, the profession has evolved into a money-making enterprise rather than a noble work. This has devolved into misuse of a noble deed.

Today, the crimes like organ stealing, killing humans who are orphans and stealing their insurance money, sexually harassing and raping sick patients, etc., have spread throughout the world. It includes not only doctors but also pharmacists, nurses, and other healthcare professionals. It is disheartening to come across this news. Greed has turned the noblest of professions into a profit-making enterprise.

CRIME

Crime is defined as “an act punishable by laws forbidden by statute or injurious to public welfare”[i]. The acts which are against public welfare or which have been forbidden by law constitute a crime. Under the Indian Legal System, the essential elements of a crime are that a person must knowingly act in a certain way with the intent of causing harm and should cause injury to a person, property, or his reputation. According to Blackstone, crime is a “violation of public rights and duties due to the whole community, considered as a community, in its social aggregate capacity” [ii]

WHITE-COLLAR CRIMES IN THE MEDICAL PROFESSION

● MEANING

White-Collar crimes are crimes committed by the members of the educated and professional elites in the course of their employment. These are crimes against society as a whole and are characterized by deceit, concealment, or violation of trust rather than the use of physical force and violence. The concept of White Collar Crime was propounded for the first time by Edwin H Southerland in the year 1939. He defined White Collar crime as "a crime committed by a person of the upper socio-economic class, who violates the criminal law in the course of his occupational professional activities."

Traditional crimes differ from White-Collar Crimes as they are committed by the lower class of the society, such as theft, robbery, assault, etc. They are known as Blue Collar Crimes. Examples of White-Collar Crimes are tax evasion, adulteration of food products, drugs, etc. It is also termed hidden criminality.

● WHITE-COLLAR CRIMES IN VARIOUS PROFESSIONS

(1) Medical sector: It includes various white-collar crimes such as issuing false medical certificates, purposely prolonging the treatment with ulterior motives for money, illegal abortions, secret services to criminals for the acquittal, quack doctors practicing as experts, and administering medicines and injections without the knowing repercussions on the life of the patient, sale of adulterated drugs and medicines to the patients, sex determination of a child, etc.

(2) Legal sector: It includes various white-collar crimes such as preparing false and fabricated claims, false pieces of evidence and documents, delaying the litigation by colluding with the opposite party, violating the ethical standards of the legal profession, illegal methods of evasion of tax, threatening witness of the opposite party, etc.

(3) Education sector: It includes various white-collar crimes such as accepting donations instead of merit-based admissions, collection of a large amount of money, teachers involved in unscrupulous practices, misappropriation of government funds and students’ scholarships, etc.

(4) Corporate sector: It includes various white-collar crimes such as unfair labour practices, bribing, forming illegal contracts, frauds, etc.[iii]

● WHITE-COLLAR CRIMES IN THE MEDICAL SECTOR

With the advancement of business and technology, white-collar crime has become a global problem. Since then, the medical sector in India has seen the increase of various illegal practices by professionals from both the government as well as private hospitals. Some of the white-collar crimes committed by them are the issue of false medical certificates, illegal abortion, selling branded and expensive drugs instead of the affordable ones having no disparity in their chemical compositions. Health care fraud also includes altered or fabricated medical bills, excessive and unnecessary treatments, exaggerating medical disability. There are also several quack doctors practising as experts and administering medicines, in 2018, 21 people were infected with HIV in Uttar Pradesh after a quack used a single syringe to administer injections to all of them, luring people for cheaper treatment. [iv]

Today, the delay in treatment of patients has become a usual tactic by the hospitals to extract a large sum of bills. The misleading and fake advertisements are also a marketing strategy luring innocent people with the assurance of 100% cure. These include various health-related issues, fairness, and weight loss. Such drugs are not only ineffective but also dangerous. As a result of the pandemic, there were various advertisements of medicines promising cures for the Covid19. These persons may not violate the letter of the law in its spirit but they commit crimes that are anti-social and injurious to public health. [v]

With the advancement of technology there saw a huge surge in the crime rates. Various illegal practices came into light, such as the crimes in the medical sector -

(1) Bribing doctors- In many cases, medical representatives were found bribing doctors with foreign trips, expensive smartphones, purchase of cars, international conferences, online shopping vouchers, etc. Even in certain accident cases by accepting bribes they change the post-mortem report of the deceased and make the criminals escape. Thus, the government of India in the year 2016, introduced the Uniform Code for Pharmaceutical Marketing Practices (UCPMP)[vi] under which pharmaceutical companies and their sales representatives are barred from offering gifts, pecuniary advantage, or benefits to doctors. The UCPMP also provides companies or their associations shall not extend any travel facility inside the country or outside including rail, air, ship, cruise tickets, paid vacations, etc. to healthcare professionals and their family members for vacation or for attending press conferences.

(2) Organ Trading- Organ theft is the forcible removal of a person's organs to be used as transplants and sold on the black market. In India, the illegal purchase and sale of organs are rapidly growing. Mostly the poor sections of the society fall prey to it in return for money. Victims are operated on, and then the organs are sold in foreign countries for hefty money. It is not an individual job, a chain of small as well as big hospitals and doctors were found to be involved in such illegal practices.

The Santiago de Compostela Convention or The Council of Europe Convention against Trafficking in Human Organs[vii] is the first international treaty aimed at preventing and combating trafficking in human organs. The Convention calls on governments to establish as a criminal offence the illegal removal of human organs from living or deceased donors. In India, The transplantation of human organs act, 1994 punishes those who steal organs and do trade without the consent of the giver.

(3) Issue of false medical certificates - In many cases, doctors were found to issue false medical certificates. Such actions if caught, the medical council may cancel the registration certificates and suspend the doctors. They can also be punished for forgery under Section 471 of IPC. [viii]

(4) Illegal abortion – In many countries, abortion is still illegal. Even in countries where it is legal, it is time-barred, after which a woman cannot undergo an abortion. Based on data from 2010–2014, approximately 45% of all abortions worldwide were unsafe. Of all unsafe abortions, one-third were performed under the least safe conditions, i.e., by untrained persons using dangerous and invasive methods[ix]. Each year between 4.7% – 13.2% of maternal deaths can be attributed to unsafe abortion.[x] In India, The Medical Termination of Pregnancy Act deals with abortion. Recently the 2021 Amendment Act has increased the gestational limit for termination of a pregnancy from 20 to 24 weeks for some categories of women.[xi]

(5) Unnecessary Treatment - For their financial benefit, many doctors propose unnecessarily.[xii] They often terrify the patient's families to the point where they offer their assent as a last resort.[xiii] Recently, in Panchkula, the patients were suggested to undergo unnecessary tests. They were charged higher rates than the market rate for tests, medication, and other hospital facilities amid the Covid pandemic.[xiv]

(6) Fake and misleading advertising - With the increase of fake, misleading advertisements alleging cures for venereal diseases by means of the various newspapers, magazines, television, etc. Many innocent people fall into the trap of believing it and end up losing a large sum of money and suffer from immense harm and bodily injury. People involved in promoting such activities can be a real menace to society if kept unobserved and therefore deserve severe censure and penalty. And thus, to keep a check on such malicious activities the Drugs and Magic Remedies (Objectionable Advertisement) Act [xv]was enacted in the year 1954; it forbids misleading advertisements and prescribes punishment for them.

(7) Female feticide - It is the abortion of a female fetus outside of legal methods. Despite it being illegal in India as per the Pre-Conception and Pre-Natal Diagnostic Techniques Act (PCPNDT), states such as Rajasthan and Uttar Pradesh still record cases of female feticide. The PCPNDT Act was passed in the year 1994 to ban prenatal sex screening. It also prescribes punishment for female feticide. [xvi]

(8) Selling unsafe drugs – There are many in the medical sector involved in selling unsafe drugs at low prices even those which are so harmful that they are banned in many countries. Such illegal practices are punishable under Section 26A of the Drugs and Cosmetics act, 1940. [xvii]

People in the medical sector, who are involved, in illegal and unfair practices, such as - improper Coding Practices, fabricated medical bills, over or improper Billing, providing secret services to criminals for their acquittal, quack doctors practising as experts, selling samples-drugs to patients, fake and misleading advertising, drug diversion, exaggerating medical disability, etc., can be tried for “cheating” under Section 420 of IPC. Apart from the penal provisions, the central government and state governments have enacted the Indian Medical Council Act, 1954 and the State Medical Council Act respectively to keep a check on the increasing crimes in the medical field.

MEDICAL CRIMES IN TIMES OF COVID-19

Due to continued commercial operations, the medical sector is growing more like a business and this has worsened during the Second Wave of the coronavirus pandemic. Since there was high demand for necessities like sanitisers, masks, etc. It has paved way for moneymaking minds by way of Black marketing. There was bulk marketing of low-quality or duplicate hand sanitisers, masks, oxygen cylinders, Remdesivir injections, etc, which has affected lakhs of patients. Many who are in desperate need of medical assistance, were deprived of medicines, hospital beds, injections, ventilators, and other important medical facilities. Among other things, due to black marketing between private individuals and even doctors and hospital authorities specialists who are obligated to save lives, have caused tremendous losses to mankind as a whole due to bribes, nepotism, black marketing, and other acts. The probe into the bed-blocking scam has revealed that a huge number of private hospitals were hand in glove with fraudsters. Many including doctors were also arrested for issuing fake Covid-19 negative certificates. In another instance, a doctor and another woman were caught running a ‘private vaccination program’ in a house. [xviii]

According to the reports of Operation Pangea XIII, there was numerous illicit online sale of medications and medical products including counterfeit facemasks, substandard hand sanitisers, and unauthorized antiviral medication. More than 37,000 illegal and counterfeit medical devices were recovered, among which the majority were surgical masks and self-testing kits (HIV and glucose), and surgical instruments. [xix]

According to a report prepared by a member of the district bill committee, private hospitals in Panchkula recommended unnecessary laboratory tests to the patients and charged at least three to four times the MRP for medicines and also suggested unnecessary additions to the treatment, such as physiotherapy, etc. All these malpractices are against the spirit of Article 21 of the Constitution of India. The 'Right to Life' has been severely harmed, particularly during pandemics, when patients who required basic medical services such as a bed, oxygen, or a ventilator were simply refused on the basis of non-availability, leaving them on the point of death. [xx]

MEDICAL NEGLIGENCE

A doctor has a duty to exercise a reasonable degree of care in the conduct of his duties. Failure to take proper care, thereby causing damage to the patient, will be considered medical negligence. It can be defined as the improper or unskilled treatment of a patient by a medical practitioner. It includes negligent care from a nurse, physician, surgeon, pharmacist, and any other medical practitioner. Medical negligence leads to medical malpractice where the victim suffers some injury from the treatment given by the doctor or any other medical practitioner or health care professional.

In an instance, a motorbike accident resulted in a hairline fracture of the respondent's right neck. Instead of performing an internal fixation treatment, the doctor performed hemiarthroplasty, which caused the respondent to be confined to a chair for a year. Later in a case of medical negligence, the court gave him the appropriate compensation. [xxi]

Under medical negligence, a professional can be liable both in civil i.e., monetary compensation, and criminally under Section 304A for death by negligence. Disciplinary action can also be taken against him for professional misconduct under numerous medical regulations such as Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, etc.

CONCLUSION

The medical profession, regarded as the noblest of all, is not immune to White Collar Crime. Crime in the medical field poses a danger to society as it not only generates unjust enrichment but also leads to human rights violations.

Once regarded as a service to mankind, has now become a money-making business for some. The State must monitor malicious acts by such professionals or other private individuals who are ruining the entire justice system of the country. It is for the citizens are losing faith in such noble profession.

Even though there are several regulations in place to combat crime, unlawful activities continue unabated, particularly amid the recent Covid crisis. Such offences must be dealt with seriously by providing stringent punishments. Such crimes in the health sector degrade the spirit of the Constitution. The professionals must value the noble profession and not treat it as a business, only then crimes in this field can be eradicated.

FAQ –

Q. Who coined the term “White-Collar Crime”?

A. Edwin Sutherland.

REFERENCES

[i] The Oxford English Dictionary.

[ii] 4 Black, Comm. 5.

[iii] Dr. Rega Surya Rao, Lectures On Criminology, Penology & Victimology, LexWorth, Andhra Law House, Reprint 2020-2021.

[iv] “21 infected with HIV after Unnao quack used same syringe: UP official”, Hindustan Times. (6 February 2018, Unnao) <https://www.hindustantimes.com/india-news/21-become-hiv-infected-as-unnao-quack-uses-common-syringe-official/story-uMRqyrOd35kxVuv2BPZWdJ.html> accessed on 27 October 2021.

[v] N.V Paranjape, Criminology and Penology (including Victimology), Central Law Publications, 28th Edition 2019, Prayagraj.

[vi] The Uniform Code of Pharmaceuticals Marketing Practices (UCPMP).

[vii] Council of Europe Convention against Trafficking in Human Organs, 216.

[viii] Pushpa Narayan, “Three doctors suspended by Tamil Nadu Medical Council” Times of India, (May 26 Chennai) <https://timesofindia.indiatimes.com/city/chennai/three-doctors-suspended-by-tamil-nadu-medical-council/articleshow/82980145.cms> accessed on 27 October 2021.

[ix] Ganatra B, Gerdts C, Rossier C, Johnson Jr B R, Tuncalp Ö, Assifi A, Sedgh G, Singh S, Bankole A, Popinchalk A, Bearak J, Kang Z, Alkema L, “Global, regional, and subregional classification of abortions by safety” 2010–14: estimates from a Bayesian hierarchical model. The Lancet (September 2017)

[x] Say L, Chou D, Gemmill A, Tunçalp Ö, Moller AB, Daniels J, Gülmezoglu AM, Temmerman M, Alkema L, “Global causes of maternal death: a WHO systematic analysis” Lancet Glob Health. (Jun 2014)

[xi] Amrtansh Arora, “Centre notifies new rules allowing abortion till 24 weeks of pregnancy in case of minors, rape survivors” India Today. (13 October 2021, New Delhi) <https://www.indiatoday.in/india/story/abortion-new-rules-law-rape-survivors-24-weeks-pregnancy-1864487-2021-10-13> accessed on 27 October 2021.

[xii] Malathy Iyer, “44% advised unnecessary surgery: 2nd opinion-givers” Times of India. (4 January 2015, Delhi) <https://timesofindia.indiatimes.com/india/44-advised-unnecessary-surgery-2nd-opinion-givers/articleshow/45746903.cms> accessed on 28 October 2021.

[xiii] “Doctors often scare people into unnecessary stenting” Times of India. (25 June 2014, Delhi) <https://timesofindia.indiatimes.com/india/Doctors-often-scare-people-into-unnecessary-stenting/articleshow/37164514.cms> accessed on 27 October 2021.

[xiv] Pallavi Singhal, “In Panchkula: Unnecessary tests to meds charged above MRP, how Pvt hospitals tricked Covid patients into paying more”, The Indian Express. ( 16 July 2021, Panchkula) <https://indianexpress.com/article/india/in-panchkula-unnecessary-tests-to-meds-charged-above-mrp-how-pvt-hospitals-tricked-covid-patients-into-paying-more-7407000/> accessed on 28 October 2021.

[xv] The Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954.

[xvi] “State/UT-wise Cases Reported (CR) under Foeticide”, Ministry of Health and Family Welfare. (2015 to 2017)

[xvii] Abilash Mariswamy, “Banned drugs freely available in medical shops” Deccan Chronicle. (10 August 2018, Bengaluru) <https://www.deccanchronicle.com/nation/current-affairs/100818/banned-drugs-freely-available-in-medical-shops.html> accessed on 27 October 2021.

[xviii] Manju Shettar, “Common crimes dip, Covid-related cases on the rise in Bengaluru”, The New Indian Express. (24th May 2021, Bengaluru) <https://www.newindianexpress.com/cities/bengaluru/2021/may/24/common-crimes-dip-covid-related-cases-on-the-rise-in-bengaluru-2306684.html> accessed on 27 October 2021.

[xix] “Global operation sees a rise in fake medical products related to COVID-19,” Interpol. (19 March 2020, Lyon) <https://www.interpol.int/en/News-and-Events/News/2020/Global-operation-sees-a-rise-in-fake-medical-products-related-to-COVID-19> accessed on 28 October 2021.

[xx] Pallavi Singhal, “In Panchkula: Unnecessary tests to meds charged above MRP, how Pvt hospitals tricked Covid patients into paying more”, The Indian Express. (16 July 2021, Panchkula) <https://indianexpress.com/article/india/in-panchkula-unnecessary-tests-to-meds-charged-above-mrp-how-pvt-hospitals-tricked-covid-patients-into-paying-more-7407000/> accessed on 28 October 2021.

[xxi] C.P. Sreekumar v. S. Ramanujam, [2008] C.A.No.6167

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