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Vulnerability of the patient should not be used as a weapon

Updated: Jun 17

By Swasti Chaturvedi - Verdictum - [INDIA] - [Prevention] Dr. Chethan Kumar S. v. State of Karnataka (Neutral Citation: 2024:KHC:19526) The Karnataka High Court rejected the petition of doctor who was accused of sexual harassment of the patient, saying that the vulnerability of the patient should not be used as a weapon.


The accused doctor challenged registration of crime against him for the offence punishable under Section 354A of the Indian Penal Code (IPC).


A Single Bench of Justice M. Nagaprasanna observed, “A doctor should remember that the patients seek their help when they are in a vulnerable state – when they are sick, when they are needy and when they are uncertain about the needs to be done. The unequal distribution of power in the doctor-patient relationship may give rise to opportunities of sexual exploitation. This vulnerability should not be used as a weapon by the doctors, misusing the trust the patient reposes in the doctor. Due to such position of power and trust between the doctor and a patient, no alleged sexual activity by the doctor on the patient is acceptable. If it happens or it is alleged to have happened, it represents sexual abuse. If any act of the kind emerges even as an allegation, the relationship of trust which is between the doctor and a patient gets eroded.”


The Bench said that a doctor by profession has access to the body of the patient and if such access is utilized for the purpose of healing, it is an altogether different circumstance and a divine act but, if it is utilized for some other feeling, it would clearly become advances which would attract Section 354A of IPC.


Advocate Afroz Pasha appeared on behalf of the petitioner while HCGP Harish Ganapathi appeared on behalf of the respondents.


In this case, the petitioner was a doctor by profession and the complainant complaining of chest pain, visited the hospital where the petitioner was the duty doctor. He treated her and suggested her to undergo ECG, X-ray of the chest and informed her to share the details on his WhatsApp. The mobile numbers of the complainant and the doctor were exchanged and the reports of ECG and X-ray were forwarded by the complainant to the doctor via WhatsApp. On seeing the reports, the petitioner directed the complainant to visit his personal clinic.


The complainant visited the petitioner’s clinic where he was alone. He took her into a room, asked her to lay-down, and started checking her heart-beat by placing the stethoscope on the breast. Thereafter, he directed her to pull up her shirt and bra. It was alleged that then he started touching her breast by hands and even kissing the left breast. The complainant left the clinic and informed her family members about the incident. Hence, a complaint was registered against the petitioner for the offence punishable under Section 354A of IPC. The petitioner, therefore, challenged the same before the High Court.


The High Court in the above context of the case noted, “Section 354A of IPC has four ingredients viz., physical contact and advances involving unwelcome and explicit sexual overtures. The other three ingredients are not relevant for the case at hand. The act of the doctor in directing the complainant to remove her shirt and bra and placing his mouth on the left breast would undoubtedly become the ingredients of Section 354A of IPC qua clause (i) of sub-section (1) of Section 354A of IPC as it is undoubtedly an unwelcome and explicit overture.”


The Court remarked that the petitioner cannot play doctor-doctor before it, seeking quashment of the proceedings, as any such acceptance would amount to putting a premium on the doctor’s allegation on his patient - the complainant.


Certain guidelines for doctors on sexual boundaries, is notified on the website of the Indian Medical Council. The guidelines are drawn by Indian Psychiatric Society Task Force on such boundary guidelines. The guidelines that would become germane to be noticed are that, whenever a female patient is being examined by a male practitioner, the guidelines direct that it should be ensured that it would be done in the presence of a female person, particularly at the time of physical examination”, it said.


The Court added that there are several other guidelines laid down by the Task Force including that, the doctor should ensure that they do not exploit the doctor-patient relationship for personal, social, business or sexual gain. It further said that the petitioner-doctor has prima facie, violated such guidelines and, therefore, an investigation in the least, should be permitted to be continued.


Accordingly, the High Court rejected the criminal petition.

If you have been affected by any of the issues raised in this article, you can contact Dignity4Patients, whose helpline is open Monday to Thursday 10am to 4pm.

 
 

Dignity4Patients Commentary: The power dynamics of the doctor-patient relationship and the vulnerabilities of all patients presenting as sick to a medical professional and seeking healthcare is well understood by Justice M. Nagaprasanna of Karnataka High Court.

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