Very recently, a Senior Assistant Superintendent of Police Anisul Karim was admitted to Mind Aid Hospital in the capital’s Adabar area for treatment of his mental problems. But later, he was found very unfortunately thrown to the ground by six employees of the hospital in the name of treatment. Two more employees dressed in blue grabbed his leg. At that time, other two employees were hitting him on the side of his head with their elbows. Arif Mahmud, the manager of the hospital, was standing next to him. Anisul’s hand is tied behind his back with a piece of blue cloth. When Anisul was upside down, four minutes later his body was numb. He died!
Like Mr. Anisul, many of us may suffer from physical ailments at some point in our lives. Both illness and its treatment can affect our thinking and feelings. In fact, severe physical anger can affect all aspects of our life. Our relationships, activities, beliefs, and social interactions can all be affected. Tough Illness can make us sad, anxious, scared, or angry.
The incident happened to Mr. Anisul is a minor part of a big failure picture of our present health sector. In our country, there are a lot of mental patients who are facing a lot of mental challenges. However, Mental Health Act, 2018 assured of us providing health care, protection of dignity, property rights, and rehabilitation and overall welfare of persons with mental health problems.
Section 6 of Mental Health Act, 2018 ensures the right of a person suffering from mental illness. Despite of having this Act, mental patients are not getting any protection of rights regarding health, property, dignity, education and other rights including the right to life. Primarily Article 32 of the constitution of Bangladesh says that our citizens will have the protection of the right to life and personal liberty. Though the rights regarding health, property, dignity, education and guarantee of enjoying all types of rights are maintained for general people, but mental patients don’t have any of their rights protected and sometimes right to life of a mental patient is being violated which is guaranteed by the constitution.
However, there are only two specialized mental health institutes in our country. These are Mental Hospital Pabna, and National Instituted of Mental Health and Hospital. There are currently 260 psychiatrists for 161.4 million people in the country which is quite inadequate to serve such a huge number of populations. Moreover, our psychiatrists do not have enough chance to avail update knowledge through trainings. Therefore, a limited number of psychiatrists is are the main barrier due to which many people do not get the opportunity to get treatment of a psychiatrist and take care of the mental health. Often people have to suffer due to medical malpractice of some non-professional practitioners. It occurs when patients are harmed by the actions or inaction of doctors and other healthcare professionals. It means an unskilled treatment of a patient by a healthcare professional and also includes negligent care from a nurse, physician, surgeon, pharmacist, dentist, or other health care workers.
To prove medical negligence, some elements are required. These are:
1. The medical personnel are obliged to do a duty of care for their patients. Therefore, if someone owes a duty of care, they are supposed to be responsible for their own actions and a patient has right to do whatever is reasonable to protect him / herself from being injured or harmed.
2. The duty of care was breached or violated when someone’s negligence leads to another person suffering an injury. In such case, the victim may have the right to pursue legal compensation against the negligent party.
3. If the breach was the cause of the person’s injuries or losses, it requires a plaintiff to show that the defendant’s breach of duty was the cause of the plaintiff’s injury and losses.
4. The plaintiff who suffers injury or loss is a reasonable person; in that same situation he could expect or foresee monetary compensation that may be the only form of relief for those injuries. Damages include medical care, lost wages, emotional turmoil and more.
Legal remedies available under the law of Bangladesh:
Why mental patients come to mental hospitals or to a psychiatrist? Because they want to build up their stability and capability to get relief from such illness. But because of some doctor’s negligence and reckless behavior, patients sometimes cannot get proper treatment. If we face such problem, we can seek legal remedy. The Government can then have enacted laws for mental health. Government has the power of inspection, search and seizure and power to impose fines under section 9 and 10 of the Mental Health Act, 2018. Under section 23 (2) of this Act, mental hospitals’ doctors as a guardian or manager shall be punished with a fine not exceeding 5 (five) lakh taka or 3 (three) years rigorous imprisonment or both.
Moreover, mobile court has a power authorized by the government in which powers mentioned in Sections 9 and 10 of Mental Health Act 2018 is governed by the Mobile Court Act, 2009, provided to the section 25 of Mental Health Act, 2018. Because this offence is non-cognizable, compoundable and bailable under the section 24 of Mental Health Act 2018.
On the other hand, when it has been committed into causing death by negligence then the patient will get remedies under the section of 304A, 336, 337and 338 of Bangladesh penal code 1860. This is a way of how the mental patients get their legal remedies.
Medical malpractice is responsible for the violation of right to health, most often the wrongdoer – medical practitioners involved in such cases almost always get away. Lack of comprehensive legislation on medical negligence law, complexity of existing laws dealing with negligence, lack of public awareness are main drivers behind the issue. Our healthcare system should be more careful about the mental patients because they are very vulnerable and they need special care.
(Anika Nower Suvra, Department of Law and Human Rights, 5th semester, University of Asia Pacific)
