Our Unrecognized Pandemic Warriors: A Look-Over on the Legal Rights of the Doctors

Introduction:

Doctors are the only soldier in the last battle of man against death. COVID-19 pandemic is more of a battle for the entire universe, of which the doctors are frontline warriors. Just as it is important to provide medical care, it is equally important to protect the rights of those champions who are angelic to our world during a pandemic. In Bangladesh, several media reports reported constant allegation of negligence and grave accusation from a large section of medical personals that they are not well-equipped to provide treatment to Corona affected patients which violates their professional rights.

The recent tragic death of Dr. Moinuddin, one of the most dedicated doctors of medical fraternity, due to lack of PPE (Personal Protection Equipment) during his service to Corona positive patients, indicates the vulnerable condition of medical and health sectors in Bangladesh. World Health Organization warned and asked governments to enhance manufacturing medical tool-kits 40% to cope up with the increasing needs. But acute scarcities are leaving doctors, nurses and other frontline service providers in Bangladesh alarmingly ill-equipped to look after for COVID-19 patients. Thus, it becomes pertinent to question what rights doctors, nurses, medical staffs has in a pandemic.

Should physicians fighting against pandemic have any special attention?

A fire fighter likely might not be able to refuse to enter a blazing area simply because the place is on fire. Entering a burning premise is dangerous and it is inherent to the work. But the fire fighter might not be able to refuse to enter a burning premise with safety equipment that is commonly used by all fire fighters. Similarly, it is expected that doctors will not be able to refuse to work because of hazards attached to their job. When doctors join their profession, they explicitly receive a level of risk encoded with the profession. But if the standard safety equipment is unavailable and situation tends an imminent danger or risks the normal working condition,  that is a questionable circumstance which is pretty much justifying of a doctor’s refusal to work. Thus, authorities and government have a responsibility to try to accomplish them with sufficient medically protective equipments as far as possible, to tackle pandemic crisis.

Legal rights of doctors on pandemic response:

Everyone talks about the duties and responsibilities of doctors but no one talks about their rights. It is a pity that the rights of doctors are not directly recognized by any national law. After huge hue and cry, a law named Shastho Sheba Shurokkha Ain, 2018 was drafted and approved by the cabinet but ultimately failed to serve its purpose. However, it is mentioned to protect their rights in the Constitution, other domestic and international laws.

• Right to life:

Doctors have the highest life and health risks during pandemic. Since Article 32 of the Constitution of People’s Republic of Bangladesh recognizes right to life as a fundamental right of every citizen, doctors are entitled to it too. Article 3 of the Universal Declaration of Human Rights (UDHR), 1948 and Article 6(1) of the International Covenant on Civil &Political Rights (ICCPR), 1966 also recognizes right to life. Article 25 (1) Of UDHR provides that “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, medical care and necessary social services, and the right to security in the event of sickness, disability and in circumstances beyond his control…”   

Doctors vowed to serve, but they cannot be compelled to risk their own lives or act anything suicidal for themselves. Thus, no authorities should force doctors to attend patients without personal protective equipment or at least any alternative protective gear during pandemic. The right to health mentioned in the International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966 provides that governments should generate conditions that would ensure to all health care service and medical consciousness in the event of sickness.

• Right to freedom of movement:

It has been observed that many doctors are getting humiliated by the people on their way to and from workplace. If they are disrespected, how will they work comfortably? Doctors does not fall within the ambit of the phrases ‘reasonable restriction’ mentioned in Article 36 of the Constitution, unless they themselves are infected or prohibited to work for safety reason, because in pandemic situation, they are as vital as police force. Therefore, even in the event of Lockdown or State Emergency, their right to reasonable movement must be ensured. Moreover, Article 13(1) of the UDHR and Article 12(1) of the International Covenant on Civil and Political Rights (ICCPR), 1966 declare freedom of movement for the citizen of a country.

• Right to refuse patients:

If a doctor decides in public interest to temporarily stop seeing non infectious patients in the chamber and provide the service over phone or for any reasonable cause for him, there should be no complaint against the doctor. Doctors cannot be forced to see patients by exerting undue influence. In Re Steel Co. of Canada Ltd. and U.S. W. Loc. 1005, (1973) 4 LAC (2d) 315 (Ontario Labour Arbitration) some remarks in this regard, have been given:

Labour boards across Canada have affirmed that workers must satisfy 4 criteria to justify a refusal to work because of unsafe or dangerous conditions:

• Physicians must bonafide believe that there is apprehension of imminent danger.
• Another worker with the same training and experience would also believe that there is apprehension of imminent danger.
• It requires workers to notify their supervisor of their refusal to work, and the reasons for their refusal, as soon as possible.
• The danger must be sufficiently serious to justify the action; it must be immediate and more than a matter of repugnancy, unpleasantness or fear of minor injury.
• Right to freedom of speech:

Doctors will be able to express various logical views on pandemic and warn the citizens of the country and the whole world about the severity of a disease. Under Article 39(2) of our Constitution it is a constitutional right. This right is also guaranteed in Article 19 of the UDHR and of the ICCPR. So, no person or organization can deprive this right in any way.

Prohibition on such right can be dangerous for the whole world. For example, last December, 2019, a Chinese doctor Li Wan Ling, who warned China that the Corona Virus could spread in the form of a pandemic, died by Corona, was forcefully made not to disclose the corona-truth. Now the world is paying heavy cost by millions of lives. Therefore, the freedom of expression of doctors is of highest importance in pandemic.

• Right to freedom of press:

Doctors also have the right to freedom of press guaranteed in Article 39(2) (B) of the Constitution. They have the right to know and inform others through media about the number of pandemic patients, the number of deaths, the number of recoveries or other such issues.

• Right to receive medical treatment:

If a doctor falls ill while providing medical services, he also has the right to receive health services as the basic needs mentioned in Article 15 of the Constitution include medical treatment. Again he also has the right to go on reasonable strike or rest until he recovers according to Article 34 of the Constitution (where forced labour is prohibited) and Article 24 of the UDHR.

• Right to equal payment:

As Article 15(b) and 20 of the Constitution speak of reasonable remuneration, so the doctors have the right to receive equal payment in exchange for equal risky medical care without any discrimination. The right to equal pay for equal work also mentioned in Article 23(2) of the UDHR.

• Right to freedom of profession:

Right to freedom of profession is guaranteed by the Constitution under Article 40. So the doctors have the right of not to be suspended or bolted from practice unless required by law and professional regulations. They have the right to not to be forced to abstain from their professional work or to do anything that is not related to profession, except within the limits of law.

• Right to have proper training:

Doctors have the right to edify the grounds, guidelines and limitations for receiving and working with their patients. They are entitled to receive appropriate training in controlling disease prevention, medical procedures and infection control. These rights they will get as per Articles 15 and 18 of the Constitution which covers the development of treatment, public nutrition & health care. These rights are also enshrined in the National Health Policy (NHP), 2011. Therefore, in the public interest as well as that of the doctors, the government should take measures to ensure their health care.

• Right to have constitutional remedy:

In order to enforce the fundamental rights, doctors have the right to file a writ petition in the High Court Division in accordance with Article 102(1) of the Constitution. And this right is guaranteed by Article 44 of this Constitution.

• Right to be protected by law:

Doctors have exclusive immunity from false accusation of patients’ death, unless it is done intentionally or out of medical negligence. A doctor will incur no liability if a patient dies a natural death in the course of ongoing treatment under him. Sections 88 & 92 of the Penal Code, 1860 provide general exemptions from such accusations.

• Right to sue as civil remedy:

If the doctors or their family members are harmed by the negligent actions of the government or any other authority, then the aggrieved person can file a civil suit in the local civil court seeking compensation in accordance with Section 19 of the Civil Procedure Code, 1908.

• Right to have criminal remedy:

Doctors also may have the right to have criminal remedy under Section 304(A) of the Penal Code, 1860, in case of death of doctors or their family members due to negligent work of the government or other authorities.

• Right to speedy and effective remedy:

Like many other sectors, doctors have the right to an operative remedy by the competent national tribunals for acts violating the rights granted them by the Constitution or other laws. They are entitled to this special right as stated in Article 8 of the UDHR.

Recommendation:

Government must take necessary steps to protect the above mentioned rights of doctors and the entire medical community, such as –

• Ensuring immediate and adequate safety equipment, facilities for securing lives of the doctors and medical staffs dealing the corona positive patients directly.
• Proper arrangement of separate accommodation and meals for the safety and health concerns of the doctors and their families.
• Providing treatment protocol to physicians and arranging emergency training for them.
• Providing health insurance for the doctors and medical staffs.
• Providing minimum financial allocation in health sector and announcing specific incentives for doctors.
• Specific laws and regulations need to be formulated to address the rights, duties and responsibilities of the doctors in a pandemic situation.

Conclusion:

It is the responsibility of not only the government but also all of us to protect the rights of the doctors. Doctors are professionals who make hopeful even a person of incurable disease, by their tender touch of sympathy, care and love- The smiling faces that enable patients forget all their pain. Their contribution is incomparable- we must protect them so that they can serve the nation, in pandemic or whatsoever. We must thus, always fight together for their due respect and rights.

Writer:

Shamima Kawser, Student of LL.B, Department of Law, BGC Trust University, Bangladesh.

 

Reference:

1. Li Wenliang, Coronavirus death of Wuhan doctor sparks anger, BBC News, published on February 7, 2020; retrieved from https://www.bbc.com/news/world-asia-china-51409801?fbclid=IwAR2MmGdc7TDoSA8fg7a9BFxjfmtMz80A8o4AAJP0xEvD_smEozDZEeidLgI.
2. Cara E. Davies JD & Randi Zlotnik Shaul (2009, December) ; Physicians’ legal duty of care and legal right to refuse to work during a pandemic; Canadian Medical Association Journal , 166.
3. World Health Organisation (WHO), Shortage of personal protective equipment endangering health workers worldwide?, published on March 3, 2020; Retrieved from-https://www.who.int/news-room/detail/03-03-2020-shortage-of-personal-protective-equipment-endangering-health-workers-worldwide?fbclid=IwAR2Se_BL96ftu1_7a5s_YvpOIaujs4iPsNljR80MmZ_HpgGuK7rRw5QwpOs.