What health related laws need to be made or amended?
1—Health as a fundamental right--The Supreme Court has held that as per the extended definition / scope of Article 21 of the Constitution, health is a fundamental right. The Parliament should pass an amendment to the Constitution on the lines of the 86th Constitutional Amendment (2002) whereby Article 21A was inserted which states:
“The State shall provide free and compulsory education to all children of 6 to 14 years in such manner as the State, may by law determine.”
The amended Article may state--“The State shall provide free / moderately priced health services to all citizens / legal residents.”
2—Central law on violence against doctors--At present, there are about 17 states which have their own state laws against violence towards doctors. For example, the Delhi state law is titled—“Delhi Medicare Service Personnel and Medicare Service Institutions (Prevention of Violence and Damage to Property) Act, 2008.”
These state laws are rarely used because of various reasons. The Parliament should pass a central Act for this purpose.
3—FIR against doctors--At present, there is much confusion regarding the registration of an FIR against a doctor for medical negligence. The factual and legal position is as follows:
a)—As per section 154(1), CrPC, an FIR has to be registered against a doctor for medical negligence immediately on getting the information that a cognizable offence has been committed by him.
b)— As per Lalita Kumari judgment of the SC, if the police is not sure whether the offence committed is cognizable or non-cognizable, the police must undertake a preliminary investigation / inquiry. Such preliminary investigation must be completed within 15 days. If such preliminary investigation reveals that the offence committed is cognizable, the police must register an FIR immediately.
c)— As per Jacob Mathew judgment of the SC, even after an FIR for medical negligence has been registered against a doctor, he cannot be arrested in a routine manner.
The confusion arises because of faulty interpretation of the Lalita Kumari and Jacob Mathew judgments. As per this faulty interpretation, there is a tendency to equate the preliminary investigation mentioned in Lalita Kumari with the Expert Opinion / Medical Board opinion referred in Jacob Mathew judgment.
There is a need to clarify this confusion by appropriate amendments in the IPC and the CrPC.
4—Guidelines to determine criminal negligence --The Jacob Mathew judgment, delivered on 05/08/2005, stated as follows:
“Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient.”
After 16 years, on 29-09-2021, the National Medical Commission sent to the Central Ministry of Health the guidelines referred above. Now the ball is in the government’s court. Let us hope that the necessary “Statutory Rules or Executive Instructions” referred above are issued by the Centre without further delay.
6— Guidelines to award punishment proportionate to the offence committed--There is no system or scale or guidelines by which the NMC / MCI decide how much punishment to give to a doctor who has been found delinquent. This was the reply which I received from the MCI under RTI a few years ago. The NMC needs to develop such guidelines.
7-— Clinical Establishments Act---Section 12(2) of the Clinical Establishments Act, 2010, reads as follows:
“(2) The clinical establishment shall undertake to provide within the staff and facilities available, such medical examination and treatment as may be required to stabilise the emergency medical condition of any individual who comes or is brought to such clinical establishment.”
Two things need to be noted:
a)—A clinical establishment includes even a solo private clinic of a doctor.
b)—The duty cast upon the doctor is obligatory and mandatory without there being any mention of payment to compensate for the services provided.
In general, no doctor would ordinarily refuse to treat a patient in an emergency if he is not forced to do so free. Please note that even if he provides his services free, he would still be subject to civil and criminal prosecution for alleged negligence in treatment, especially if the patient dies or suffers serious residual disability.
There is a need to amend section 12(2) of the CEA, 2010, by inserting therein a clause that the doctor would be entitled to his fee for services provide and if the patient cannot pay the fee, the same would be paid by the state.
In this context, it is highly relevant to refer the Law Commission’s report no. 201 titled as—
“201st Report On Emergency Medical Care To Victims Of Accidents And During Emergency Medical Condition And Women Under Labour (Draft Model Law Annexed), August 2006”. It is noteworthy that while recommending that all hospitals, nursing homes, private practitioners etc. should be obligated to provide necessary and possible “medical care to victims of accidents and during emergency medical condition and women under labour”, the Law Commission had also envisaged an appropriate compensatory mechanism to the providers of such services. This mechanism is explained on pages 102-103 of the report and states that—
“(I) Scheme for reimbursement to hospitals and medical practitioners, ambulance for transfer etc. to be framed by State Governments: States to allocate Funds:
The State Government must frame a scheme for reimbursement to hospitals, medical practitioners, ambulances and those who provide vehicles for transport. The State must notify an authority which will deal with reimbursement. The State must set apart substantial money for purpose of reimbursement. The scheme must provide for the procedure for reimbursement. The scheme must be published in State Gazette. These are provided in the Draft Bill in section 10…….”.
Thus there is a need to amend the CEA, 2010, in such a way as to provide a mechanism for payment to doctors for services provided in an emergency.
8—Medical Negligence Tribunals—Complaints of Medical Negligence are quite common in the consumer commissions. Such complaints are best heard by a bench having a medically qualified person as a member. There is an urgent need to ensure this. Possible solutions may be:
i)—Having special tribunals for medical cases. There already are separate tribunals for cases relating to railways, electricity etc.
ii)—Having sufficient number of medically qualified persons as members of consumer commissions and ensuring that medical cases are heard only by a bench which has a medically qualified person as a member.
10—Amendment of the PC-PNDT Act, 1994—Section 23(2) reads as follows:
“23. Offences and penalties.- (1) xxxx
(2). The name of the registered medical practitioner shall be reported by the Appropriate Authority to the State Medical Council concerned for taking necessary action including suspension of the registration if the charges are framed by the court and till the case is disposed of and on conviction for removal of his name from the register of the Council for a period of five years for the first offence and permanently for the subsequent offence.”
The above provides for suspension of the registration of the doctor concerned if the charges are framed by the court. This is patently uncalled for and amounts to punishing the accused even before the case is decided.
Section 23(2) needs to be removed.
11—Practice of modern medicine by AYUSH practitioners—The SC has held in Poonam Verma Vs. Ashwin Patel and Others, decided by the Supreme Court on10.05.1996, reported as 4 SCC 332, as follows:
“41. A person who does not have knowledge of a particular System of Medicine but practices in that System is a quack and a mere pretender to medical knowledge or skill, or to put it differently, a charlatan.”
Many state governments, including Maharashtra, have issued gazette notifications / government orders allowing AYUSH practitioners to practice allopathy / modern medicine. Such notifications are in clear contravention of the above- mentioned SC judgment. All such notifications etc. need to be challenged.
Courtesy : DR.M.C.GUPTA
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