This is the 21st post of our COVID19 series
In Indore, two female healthcare workers were brutally attacked by the local residents when they attempted to conduct tests for suspected coronavirus patients. In Chennai, a mob attacked the healthcare workers, friends and family of a deceased-doctor who lost his life to COVID-19 when they attempted to bury him with dignity. He succumbed to death after possibly contracting while treating infected patients. These cases reflect how despite global appreciation for their work, healthcare workers are becoming victims of violence on ground zero of our war against COVID-19.
Taking cognizance of this issue, the Indian Supreme Court directed the government to ensure the security of healthcare workers. The central government took two major-steps in its pursuance. First, it directed all state governments to ensure the availability of adequate security personnel for every healthcare worker. Second, it approved an ordinance amending the Epidemic Diseases Act, 1897 to make all acts of violence and harassment against healthcare workers a cognizable and non-bailable offence.
The ordinance in question amends the provisions of The Epidemic Diseases Act, 1894 and is applicable only during health emergencies. It offers only a temporary solution since it fails to protect healthcare workers against everyday violence faced by them in the normal course of their duties. This article shall outline the reasons for such attacks and the shortcomings in the current legal protections. It shall then draw recommendations for India relying on international guidelines and practices.
Understanding the attacks
It is difficult to exhaustively ascertain the causes for such attacks because of the inherent subjectivity involved and lack of detailed inquiry in this regard. However, some reasons include deteriorating trust in the healthcare system, poor communication and conflict resolution between the patient and healthcare personnel, lack of adequate facilities in healthcare establishments among others. Oftentimes, these reasons trigger dissatisfaction among patient’s relatives and result in a sudden crime. To tackle the issue of violence against healthcare workers, legal mechanisms must be robust and reliable to suitably address its sudden nature.
However, the present laws in India do not tackle this problem. The only legal intervention for the protection of Indian healthcare workers is in the form of state laws which characterise all such offences as cognizable and non-bailable and also penalise them with increased penalties. Such enhanced punishments, also imposed by the present ordinance in question, intended to prevent such crime by creating a deterrent effect. However, reliance on deterrence might not be very useful in curbing crime against healthcare personnel which is seldom pre-planned and is instead perpetrated by angry relatives. Ineffectiveness of deterrence for attacks against healthcare violence was also witnessed in Queensland, Australia as the number of cases increased by 48% since 2017 even though the provincial legislative assembly doubled the punishment for assaulting healthcare workers in 2014.
In addition to the ineffectiveness of deterrence, the existing laws are also insufficient as they do not tackle the problem of under-reporting. Victims of healthcare violence often do not report the incident due to the fear of retaliation by the offender and unwillingness to be involved with courts which often takes decades. Solutions to these problems can be derived from international guidelines and practices.
International Standards & Practice
Acknowledging that healthcare establishments are most prone to workplace violence, the World Health Organization released framework guidelines in 2002 for addressing the same. The International Labour Organization also released the Violence & Harassment Convention, in 2019. Both these documents are similar in their approach and recommend focussing on effective enforcement of laws and integrated campaigns and policies to increase awareness. However, the highlight of both these documents is the fixation of employers’ liability for implementing prevention mechanisms and effective reporting.
Many countries have attempted to implement these guidelines. Australian law imposes a due-diligence obligation on employers for ensuring the health and safety of healthcare workers. Further, implementation of policies which prevent the attacks by targeting the root cause of the problem has also been emphasised. For example, New South Wales set up an inquiry panel which recommended community education and awareness programmes. The recommendations also require medical establishments to maintain databases of patients with a history of violence, tighten security, encourage victims to report incidents etc.
Similarly, USA’s laws also require employers to ensure that workplaces are “free from recognized hazards likely to cause death or serious physical harm.” Authorities have also released detailed guidelines for employers which set a minimum threshold of mechanisms to be implemented and due diligence obligations to be fulfilled by the employers. These include safety and health training, record keeping, security mechanisms etc. But these guidelines are only advisory in nature and efforts to make them mandatory have not yet been successful.
Firstly, states which have not yet passed a special law for violence against healthcare personnel must do so to establish a uniform regime throughout the country. In addition to this, all states must also amend the general criminal laws (Indian Penal Code, 1860 and The Code of Criminal Procedure, 1972) to reflect these changes. In these acts, healthcare workers must be broadly defined to include therapists, community health workers etc. Further, training programmes must be organized for police personnel to make them aware of these laws and recommending ways in which such cases must be handled.
Secondly, in line with international guidelines and practice, India must establish an employer-liability based regime to increase their accountability. Establishing employers’ liability for workplace violence in accordance with international standards would be effective in the Indian context by tackling the shortcomings of the current regime in three ways. First, it shall obligate employers to formulate a detailed action plan to be followed every time a conflict ensues. This shall be supplemented by the training of healthcare workers to better handle such instances through suitable communication skills while also making them aware of their rights.
Second, it shall require the employers to install adequate security mechanisms including guards, CCTV cameras etc, especially in sensitive zones like emergency wards or operation theatres. This will deter violence by ensuring that both parties behave in accordance with the law as they know that their actions are being surveilled. Further, the government must financially assist rural and smaller establishments for these investments. Third, it shall obligate the healthcare establishments to encourage the victim to report the incidents while maintaining a database of each incident with its possible reasons. This comprehensive database shall also help the government in formulating its policies and awareness campaigns.
For its efficient implementation, detailed guidelines on employers’ liability must be formulated under The Occupational Safety, Health and Working Conditions Code, 2019. Its provisions empower the government to form guidelines for specific sectors to adequately implement the employer-based liability established by this pending bill. These guidelines shall establish the minimum standards, including required security mechanisms, to be followed by employers for preventing workplace violence. Such standards must be added as a prerequisite to registration of new workplaces under the Clinical Establishments (Registration and Regulation) Act, 2010. Introduction of these guidelines as compliance for establishments will help in ensuring that medical workplaces follow these regulations with utmost sincerity.
However, these efforts are incomplete unless coupled with campaigns which address the vigilante mentality of resorting to violence if the results do not favour them. These campaigns must also increase awareness about the healthcare system, rights of patients and available redressal mechanisms.
The issue of violence against healthcare personnel has been recognised and condemned at a national and global level. However, this problem cannot be tackled by merely legislating for their benefit and ample regulatory efforts are required to ensure an effective response. The employers’ liability regime is a promising solution as it works simultaneously to enhance the immediate protection available at sensitive spots and increase enforcement-rates by encouraging reporting. It should be implemented along with adequate awareness campaigns to ensure that the problem is tackled at all its faces.
The author is a student at the National Academy of Legal Studies and Research, Hyderabad.
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Categories: COVID-19, Legislation and Government Policy