Dr. MC Gupta answers questions pertaining to a recent order passed by a state government under the Epidemic Diseases Act 1897 which mandates all doctors under the age of 65 to treat COVID-19 patients.

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A state government passes an order under the Epidemic Diseases Act, 1897, that all doctors in private practice till the age of 65 years must see and treat COVID-19 patients. In this context, please answer the following:

1. Can a private practitioner demand PPE to carry out his duty thus enforced?

2. If proper PPE is not provided, can he refuse to carry out the enforced duty?

3. What are the prescribed punishments for not obeying such a government order?

4. What is the legal recourse if a doctor is arraigned for not obeying such a government order?

Dr. MC Gupta answers--

1—A private practitioner can certainly demand PPE (Personal Protective Equipment) to carry out his duty thus enforced. In the alternative, he can demand expenses for purchasing PPE etc. In addition, he can also demand compensation in terms of Section 2 of the Epidemic Diseases Act, 1897, which reads--

“2. Power to take special measures and prescribe regulations as to dangerous epidemic disease.—(1) When at any time the [State Government] is satisfied that 7[the State] or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease, the 8[State Government], if [it] thinks that the ordinary provisions of the law for the time being in force are insufficient for the purpose, may take, or require or empower any person to take, such measures and, by public notice, prescribe such temporary regulations to be observed by the public or by any person or class of persons as [it] shall deem necessary to prevent the outbreak of such disease or the spread thereof, and may determine in what manner and by whom any expenses incurred (including compensation if any) shall be defrayed.”

2-- If proper PPE is not provided, he can refuse to carry out the enforced duty. However, before refusing, he must ensure that he has made the demand for expenses / compensation in writing in a clear legally appropriate manner and that the same has been refused or has been ignored. This is very important to ensure that he succeeds in his possible legal fight later. Please note that the demand and refusal etc. must be made in a modest and non-arrogant manner. The concerned documents will form a part of the submissions to the court and the court must not carry the impression that the practitioner is being unnecessarily evasive, arrogant or non-cooperative.

3-- The punishment for not obeying such a government order is specified in Section 3 of the Act, reproduced below:

“3. Penalty. Any person disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable under section 188 of the Indian Penal Code (45 of 1860 ).”

Section 188 of the Indian Penal Code reads--

“188. Disobedience to order duly promulgated by public servant.—Whoever, knowing that, by an order promulgated by a public serv­ant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple impris­onment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

Explanation.—It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm. Illustration An order is promulgated by a public servant lawfully empowered to promulgate such order, directing that a religious procession shall not pass down a certain street. A knowingly disobeys the order, and thereby causes danger of riot. A has committed the offence defined in this section.

4-- The legal recourse if a doctor is arraigned for not obeying such a government order will depend upon the specific situation.

i)—If a notice is issued to the doctor, he should draft a reply (preferably with the help of a lawyer) and submit the same.

ii)—If the police arrests the doctor, he will be given bail in the usual course immediately after arrest. An offence under Section 188, IPC, is a cognizable and bailable offence. [Cognizable offence means that the offender can be arrested by police without warrant. Bailable offence means an offence where the police itself can grant bail after arrest.]

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The writer, Dr. MC Gupta is a practising lawyer specialising in medical negligence cases. He also has an MD Medicine from AIIMS, Delhi where he also worked as a faculty member for 18 years, later working another 10 years as a Professor and Dean at National Institute of Health and Family Welfare, New Delhi, before pursuing law.