The Sindh Healthcare Commission Act, 2013 (the SHCC Act) was enacted with the object and purpose of establishing the Sindh Healthcare Commission (the Commission), i.e., an autonomous body corporate that serves to manage and maintain the standard of healthcare services and hinder dishonest practices among medical professionals in Sindh.[1] The SHCC Act applies to all healthcare institutions, including both public and private hospitals, non-profit organizations, charity-based hospitals, trust-operated hospitals, as well as semi-governmental and autonomous healthcare entities.[2]
The SHCC Act defines “Medical Negligence” as a case where a patient sustains injury or dies as a result of improper treatment in a healthcare establishment, as determined on the basis of a medical autopsy report.[3] The SHCC Act empowers the Commission to suspend the licenses of healthcare establishments in Sindh in the event that repeated instances of medical negligence have been proved against them.[4] The SHCC Act provides for two scenarios where the Commission may determine that a healthcare service provider has committed medical negligence i.e., (i) the concerned healthcare establishment lacks the necessary human resources and equipment which it claims to possess; and (ii) any of the concerned healthcare establishment’s employees fail to exercise minimum service delivery standards prescribed by the government.[5] The SHCC Act provides a safeguard to medical practitioners whose patients may face injury or death in the proper course of their work by clearly stipulating that the recognized and known complications of a medical or surgical treatment are not considered medical negligence.[6]
The SHCC Act empowers the Commission to investigate instances of maladministration, malpractice, and failures in the provision of healthcare services and issue advice and orders with respect to the same.[7] The SHCC Act also empowers the Commission to investigate allegations of malpractice or maladministration on the part of healthcare service providers and their employees.[8] It is crucial to note that the SHCC Act does not provide a definition for “Malpractice”. Rather, the statute’s plain language suggests that “Malpractice” and “Maladministration” are causes of “Medical Negligence”.
The SHCC Act provides for four cases where the Commission may conduct an investigation into allegations of maladministration and malpractice. These are: (i) when an aggrieved person renders a complaint to the Commission; (ii) when an aggrieved healthcare service provider renders a complaint to the Commission; (iii) when a government or provincial assembly of Sindh makes a reference to the Commission; or (iv) when Supreme Court or the Sindh High Court makes such a motion during the course of any proceeding.[9] Under the provisions of the SHCC Act, the Commission is empowered to constitute an inspection team composed of duly qualified experts in the relevant field, who shall carry out assessments within the parameters prescribed by the Commission.[10] The SHCC Act mandates this inspection team to examine instances of maladministration, professional misconduct, or lapses in healthcare service provision.[11]
Remedies available to patients/victims of medical malpractice.
A person aggrieved by maladministration or malpractice may render a complaint to the Commission under Section 4 (6) (a) of the SHCC Act. The SHCC Act furnishes the Commission with the powers of a civil court under the Code of Civil Procedure, 1908, with respect to summoning and examining individuals, ordering the production of documents, receiving and admitting evidence, and examining witnesses.[12]
Statutory protection available to medical practitioners in Sindh.
The SHCC Act is a special law that provides immunity to healthcare service providers from any civil suit, criminal prosecution, or legal proceeding concerning healthcare.[13]Prior to the enactment of the SHCC Act, a person aggrieved by medical malpractice could bring a common law suit for damages, or a suit for damages under Section 1 of the Fatal Accidents Act (in the event of a death).
The Consumer Courts.
The Sindh Consumer Protection Act, 2014 provides for the establishment of Consumer Courts[14] with jurisdiction to entertain complaints.[15] A person may bring a complaint under Section 13 of the Sindh Consumer Protection Act, 2014, for damages caused by the provision of a faulty or defective service.[16]
The Sindh High Court in Muhammad Asif Osawala V. Qamar Un Nisa Hakro (PLD 2022 Sindh 430) determined as follows with respect to the jurisdiction of Consumer Courts in cases of medical negligence:
“Turning to the aspect of whether the Consumer Court is the appropriate forum to determine whether medical malpractice or negligence has occurred, it is well accepted that for a claim for medical/ clinical negligence to be established, a medical practitioner has to be found to have breached a duty of care to a patient, who in turn suffers injury as a result of that breach…
…Needless to say, liability claims for defective services, as envisaged under Section 13 of the SCPA, would similarly entail a breach of a duty to be determined with reference to the parameters laid down in Section 14, where the quantum of damages, if any, would be circumscribed by the restriction imposed in terms of Section 15 thereof. However, that is not to say that Section 14 requires that a prior determination to that effect be made by the Commission for the Consumer Court to be able to proceed on a medical negligence claim…
…As such, merely being a minority view of accepted medical practice does not necessarily mean an opinion is “illogical” or “irrational” and the final judgement as to whether there has been professional negligence must lie with the court and not the medical profession.”[17]
In the abovementioned case, the Sindh High Court decided that the Consumer Court may proceed with a medical negligence claim without the need of a determination from the Commission under the SHCC Act. The Court reached this decision despite the explicit immunity clause provided in the SHCC Act.
In the abovementioned case, the Sindh High Court referred to the decision in Bolitho v City and Hackney Health Authority [1998] AC 232 wherein the House of Lords determined that practice accepted as proper by a responsible body of professionals must be based on logical and defensible grounds. The Sindh High Court’s decision in the aforementioned case suggests that the courts are competent to determine whether an expert opinion is satisfactorily logical and rational, as opposed to members of the medical profession.
Common law principles concerning medical malpractice.
Courts in Pakistan have laid down certain principles regarding cases involving medical malpractice.
- Recommendations of the Commission are to be given weight in cases of medical negligence.
The Sindh High Court in Dr. Shahid Karim V. The Chief Executive Officer, Sindh Health Commission (PLD 2024 Sindh 320) determined as follows:
“Doctors must be judged by their peers. The SHCC, constituted of experienced and wise doctors, have cleared the doctors of criminal liability. The recommendations of the Commission have to be given weight in cases of medical negligence.”[18]
- Medical practitioners cannot be guilty of negligence when they have followed proper practice and procedure.
The Sindh High Court in Dr. Khair Muhammad Sahowal V. Province Of Sindh (2022 YLR 63) determined as follows:
“the test of medical negligence has been laid down in a case reported as “Bolam v. Firern Hospital Management Committee” reported in 1957(2) All England Law Reports 118, wherein the House of Lords formulated the Bolam Test which is as under:–“A medical professional is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in the particular art.”[19]
Additionally, the Peshawar High Court in Mrs. Alam Ara V. Dr. Shaista Tariq (2013 MLD 743) determined as follows:
“Perusal of the record would show that the findings of the learned trial Court are correct and warrants no interference from this Court. The appellant has failed to prove that there was some defect in the ultrasound machine and the same was not properly functioning. The quality certificate and regular maintenance certificate are clear proof of the fact that ultrasound machine of the respondent was properly functioning. The appellant admitted that she is suffering from high blood pressure and the respondent advised her to be careful regarding the blood pressure. That appellant admitted that after using the medicine prescribed by the respondent, she felt quite better. The plaintiff has failed to prove any negligence on the part of respondent.”[20]
- A duty of care must be established for a case of actionable negligence to arise.
The Peshawar High Court in Mrs. Alam Ara V. Dr. Shaista Tariq (2013 MLD 743) determined as follows:
“For the purpose of negligence and carelessness, the duty to take care, the essentials are that negligence in the sense of mere carelessness, would not give rise to any cause of action. Carelessness, however, would assume legal quality of negligence where there was duty to take care and where failure in that duty had caused damages. Duty to take care was, thus, essential ingredient of tort of negligence. Unless such duty was established, no case of actionable negligence could arise.”[21]
- A hospital administration and its staff hold their respective duties.
The Sindh High Court in Sikander Shah V. Dr. Nargis Shamsi (2014 MLD 149) determined as follows:
“In my view no doubt the doctors examining a patient are primarily responsible to look-after the patients but the administration of the hospital also plays an important role in the care of a patient, as it is the hospital where the patients are given the treatment and the administrator of the hospital is primarily responsible to make necessary arrangements like ICU availability of Oxygen etc. for those patients. Simply shifting the burden upon the doctors cannot absolve the hospital from their responsibilities towards the patients…
Neither a doctor/surgeon could simply shift his responsibility upon the administration in case of happening of any event nor the hospital could lay off its hands by throwing away the responsibility upon the doctors.[22]
Conclusion
The purpose of a special law is to provide clear, unambiguous legal rules on matters that may not be adequately addressed by common law or that pertain to a particular field of expertise. With respect to the field of medicine, special laws provide a structured framework to regulate healthcare professionals, protect patient rights, and ensure that medical services are delivered ethically. The field of medicine envisages a certain degree of uniformity in operational protocols and safety guidelines. It is crucial for a competent authority to oversee compliance with established practice standards and address complaints. The Commission established under the SHCC Act fulfils this role by serving as the competent authority responsible for maintaining service delivery standards for medical practice in Sindh. The SHCC Act provides immunity to healthcare service providers against civil proceedings and criminal prosecution. This immunity appears to have created a conceptual quandary among the judiciary. On one level, the courts have determined that medical practitioners must be adjudged by other medical practitioners. This perspective is predicated on the idea that only doctors can fully appreciate the intricacies of their work, and therefore, doctors should be judged by their peers. The Commission is comprised of doctors with the necessary expertise and credentials; therefore, the Commission would be the competent authority to investigate and adjudicate matters of medical malpractice. Medical professionals understand the complexities of standard care, diagnosis, treatment, and operation; therefore, a statutory system of peer review would be the correct way to ensure adherence to professional guidelines. On another level, the courts have determined that they are the competent authority to decide cases of medical negligence. This perspective is predicated on the independence of the judiciary and the importance of due process under the legal system. The courts provide a forum for impartial adjudication and implement strict standards of evidence to determine whether a medical practitioner has erred in their duties or neglected their responsibilities.
[1] The Sindh Healthcare Commission Act, 2013, Preamble.
[2] The Sindh Healthcare Commission Act, 2013, Section 1 (4).
[3] The Sindh Healthcare Commission Act, 2013, Section 2 (xxii).
[4] The Sindh Healthcare Commission Act, 2013, Section 18 (2).
[5] The Sindh Healthcare Commission Act, 2013, Section 19 (1).
[6] Ibid (2).
[7] The Sindh Healthcare Commission Act, 2013, Section 4 (2) (e).
[8] Ibid (6).
[9] Ibid.
[10] The Sindh Healthcare Commission Act, 2013, Section 22 (1).
[11] Ibid (4).
[12] The Sindh Healthcare Commission Act, 2013, Section 4 (9).
[13] The Sindh Healthcare Commission Act, 2013, Section 29.
[14] The Sindh Consumer Protection Act, 2014, Section 27 (1).
[15] The Sindh Consumer Protection Act, 2014, Section 28.
[16] The Sindh Consumer Protection Act, 2014, Section 13.
[17] PLD 2022 Sindh 430.
[18] PLD 2024 Sindh 320.
[19] 2022 YLR 63.
[20] 2013 MLD 743.
[21] Ibid.
[22] 2014 MLD 149.
