We have often heard that police handle criminal matters. This association of police with criminals raise a question whether police can manage civil matters? This article explains this matters with a case study.
The recent controversy in Pakistan regarding the limits of police powers revolves around ASP (Assistant Superintendent of Police) Shehrbano Naqvi who stands accused by Dr. Zain-ul-Abideen (a physician who performed LASIK surgery on a patient), forcing him to refund the money spent on LASIK surgery (1.4 million rupees). Reports indicate that ASP Naqvi assisted Dr. Zain-ul-Abideen in providing the refund and did not gain financially from the transaction. Questions have been raised regarding whether ASP Naqvi abused her power by pressuring Dr. Zain-ul-Abideen to provide the refund or whether ASP Naqvi’s intent was to provide a means of resolving the dispute.
Background of the Case
The incident is related to LASIK surgery in which the patient claimed that the procedure has failed on the part of the LASIK operation in fulfilling its intended function—correcting sight. Given that the outcome of the LASIK operation was not satisfactory to the patient, the patient contacted law enforcement authorities and pressured the physician to refund the costs incurred for the LASIK procedure. ASP Naqvi played an instrumental role in pressuring the physician to return the surgical cost.
It is significant to note that Ms. Naqvi is from an affluent family and is married to a wealthy person, evidencing no financial motivation for her involvement in this matter. Further, the cost of surgery (1.4 million rupees) is modest for ASP Naqvi given her strong financial background. As such, Ms. Naqvi appears to only assist the recovery without any evidence of Ms. Naqvi receiving a bribe or illegal benefit.
Legal Classification: Civil Matter or Criminal Offense?
The dynamics of this incident highlight the distinction between civil and criminal matters under the laws of Pakistan. In civil matters, the dispute between parties is about rights and responsibilities and compensation (tort law). Criminal matters include actions that violate the established public order and will be punishable by the state. In Pakistan, the tort law associated with medical negligence is based upon tort principles which developed from common law principles and English law.
Under tort law, a patient may sue for damages if an injured party demonstrates that the physician acted negligently which constitutes a failure of the standard of care they are owed as a patient. Damages could include compensation for harm to one’s body, for further medical expenses incurred to treat a complication caused by the previous negligent act, and loss of income due to the inability to work because of the complication.
Contrastingly, a person can only be criminally liable for medical malpractice if they have acted with gross negligence or reckless disregard for the safety of their patients, resulting in death or injury of another person. Under the Pakistan Penal Code (PPC), Section 304A, causing death as a result of a negligent or reckless act is a punishable offence. When a medical practitioner causes physical harm to another person, Section 337 provides the basis for establishing criminal liability for non-fatal injuries.
However, unless there is evidence of culpable intent or gross negligence involved in the performance of the LASIK surgery that would amount to a criminal offence, the performance of an inadequate LASIK surgery would be considered a civil matter between the doctor and the patient. As a civil matter, it would be best settled either by way of consumer protection legislation, or a tort action in civil court, where the patient could seek redress for violations of the principle of negligent conduct. The Punjab Healthcare Commission Act defines medical negligence as improper treatment resulting in injury to a patient, thus providing a regulatory framework for civil redress.
Police Role and Allegations of Coercion
Based on both the Police Order 2002 and Code of Criminal Procedure (CrPC), the investigative role of a Police Officer in Pakistan is to assess criminal matters. As such, the Police have authority to register First Information Reports (FIRs) regarding cognizable offences; maintain public peace; and prevent future criminal actions but do not possess the legal ability to become involved with domestic civil matters. Therefore, the Patient’s assertion of seeking redress comes from a civil court, or other medical regulatory authorities, and would not necessarily involve Police being pressured into securing a refund.
However, the circumstance of ASP Naqvi’s charge alleges coercive behavior, which may include provisions outlined in Police Order 2002, Article 155, which identifies misconduct as misuse of power to obtain a concession through coercive means. If proven true, these actions may also fall under Section 506, PPC that forbids the use of intimidation or the threat of injury. Conversely, ASP Naqvi’s defense claims his involvement to be altruistic and for no financial gain, motivated by the desire to aid the Patient, while his wealthy background with an inappropriate amount claimed by the Patient further dilute the arguments related to corrupt intent.
Broader Implications and Recommendations
The case highlights a fundamental issue within the police system in Pakistan – the distinction between civil remedies and criminal enforcement is often blurred as a result of repeated actions taken by police against individuals for non-criminal matters. These types of actions by police frequently interfere with civil remedies available to individuals who have been wronged, and since many judicial remedies are extremely slow due to the delays within the current system as outlined in reports about the judicial structure of Pakistan.
Individuals seeking remedies for similar types of grievances should pursue their claims in a civil suit under tort law and may also want to consider using applicable Consumer Protection laws and pursuing them through avenues available through organizations such as the Pakistan Medical Commission. Criminal charges should only be brought against individuals who have committed egregious offences to divert police resources from non-genuine threats to public safety.
The case also highlights lack of police training. Asp Naqvi is not trained enough to identify whether she should intervene in the case or not. Thus, police training should be made mandatory, so the officers can recognize when the dangerous situation and when offences should be charged.
