Juris Centre calls for stringent laws for private hospitals in India

Post Covid-19 the awareness for health and healthcare has increased manifold in India. People have become more aware of what they consume including food to medicines. Healthcare in India is regulated by a combination of laws and policies namely the Mental Health Act, Pharmacy Act, Bio-Medical Waste Act, Clinical Establishments Act, Indian Medical Council Guidelines, and various other rules and regulations.

Although Art.21 of the Constitution deals specifically only with the right to life, the Supreme Court has time and again taken the view that the right to health is a facet of Art 21. According to the apex court, the right to life implies the right to live a healthy life. Also in the state of Punjab and Ors vs Ram Lubhaya Bagga (1998 SC), it has been held that the right to health is integral to the right to life. Not only that the government has a constitutional obligation to provide health facilities and to maintain health services.

Although once a noble profession the medical profession today is in a state of indiscipline and is commercialized. Despite several efforts, there have been cases of negligence and non-adherence to laws rules, and regulations by clinics, doctors, hospitals, and pharmacists leading to risking lives of people as well death of patients in certain cases.

Privatisation of healthcare
India opened up markets to private participation 30 years ago. Over 70% of healthcare services in India are provided by private providers.

Privatization of health care has led to a steep hike in health expenditures, including the cost of drugs, medical consultations, medical tests, and hospitalization. There are concerns about the quality of services provided by private healthcare providers as people assume that quality services would be provided for higher prices but at times it’s the total opposite and patients become victims of various malpractices by hospitals and nursing homes. Privatization has also led to inappropriate competition in the market, not to earn but to earn more than others as private hospitals are usually managed by MBA professionals rather than doctors.

The Pharmacy (Amendment) Bill, 2023
The Pharmacy (Amendment) Bill, 2023, introduced in the Lok Sabha on August 03, 2023, and passed by both houses of the Parliament within a week, brings several benefits:

The bill states that anyone who is registered as a pharmacist under the Jammu and Kashmir Pharmacy Act, 2011, or possesses qualifications prescribed under the 2011 Act will be deemed to be registered as a pharmacist under the Pharmacy Act, 1948. This will be contingent upon the person submitting an application for registration within a year of the amendment coming into force, and paying a prescribed fee.

The bill extends the Pharmacy Act of 1948 to the Union Territory of Jammu and Kashmir. This represents a significant legal development within India’s pharmaceutical landscape, emphasizing the integration of Jammu and Kashmir’s local regulations with national law.

The passage of the Pharmacy (Amendment) Bill, of 2023, underscores the government’s commitment to promoting standardized and regulated pharmacy practices. By recognizing qualifications from the Jammu and Kashmir Pharmacy Act, the bill aims to uphold the professionalism and competency of pharmacists.

Various issues in healthcare
Overpriced medicines, bills and doctors fees
There is no statutory regulation over the fees charged by doctors- and medical care has become unaffordable as far as the common man is concerned. The hospitals and doctors have complete autonomy in charging the fees based on their experience and expertise thereby leading to overcharging. Pharma companies are not behind in this game. Even though the pricing of medicines is a complex issue influenced by many factors, including the costs of research and development, manufacturing, marketing, and distribution there have been instances where the cost of producing the medicine was low but the marketing costs blew up the prices and had to be borne by patients.

Referral and commission business
The practice of doctors receiving commissions for referring patients to other healthcare providers has been a contentious issue in India. There is a tendency amongst doctors to refer patients to other medical professionals for unnecessary expensive diagnosis (like x-rays, blood tests, and sonography) and to specialist doctors for no reason (except, perhaps, the commission received by the referring doctor).

The Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, prohibits physicians from receiving any freebies, bonus, or commission from the allied health industry, including hospitals, for referring any patient for medical investigation, surgical, or other treatment purposes. Violation of this regulation is a punishable offense and invites disciplinary action. Despite the regulation even today Medical labs and scanning centers ask for doctors’ names (Ref by the doctor) to provide them a commission on the scanning or X-ray.

Even as per the taxation laws, the High Court has held that the ‘referral fee’ paid to doctors for referring patients is not deductible as a business expense. Allowing the deduction of such expenses would encourage corruption in the medical field and frustrate the purpose of the Indian Medical Council Regulations, 2002, and Explanation 1 of Section 37 (1) of the Income Tax Act, 1961.

The practice of referral commissions can lead to higher costs for patients adversely impacting their pockets. For instance, if a patient paid Rs 1,000 to a doctor, the doctor might have to pay between Rs 400 and Rs 600 to the doctor who referred the patient.

Promotion of generic medicines
Unfortunately, most allopathic medicines have side effects, mild or severe, an opinion not shared by most allopathic practitioners. Recommendations by pharmacists to take generic paracetamols are a major issue in India too. Also, vitamin pills (which are often unnecessary) are manufactured in huge quantities by multinational pharmaceutical companies. These are often routinely prescribed by allopathic doctors or taken blindly by patients by way of self-medication. In most cases, the colossal benefits go to the drug companies rather than to the gullible patients.

Human rights commission or consumer court- your best ally?
As the relationship between a doctor and his patient is a contract, there is no reason why a doctor should not be liable for a deficiency in the service rendered by him under a contract with his patient.

Although complaints can be filed before Medical Councils at the state and national levels, these bodies are controlled by professional colleagues, who are likely to be biased in favor of the doctor against whom the complaint has been made. Additionally, in several states, these medical councils are either defunct or non-functional. Why should a patient in such a situation be deprived of his legal rights?

Consumer Courts: These courts look at faulty service and award compensation. However, they do not have medical advice available to them while deciding cases of medical negligence or malpractice because of which there is no direct mention in the Act clarifying whether doctors and hospitals are included or excluded from the purview of its provisions. Whether the services given by a doctor to his patient can be said to be covered by the definition of the term ‘service’? This question was answered by the Supreme Court in V.P. Shanta’s case. In this case, the apex court held that a doctor-patient contract is a contract for personal services- and not a contract of personal services, as there is no employer-employee relationship between a doctor and his patient. The effect of this decision is that a doctor does render ‘service’ under the Act and the patient is a consumer; he can therefore claim damages for any deficiency of such services under the Act.

It is also been observed in several cases, that when the facts of the case before a consumer court involve complicated questions of law and facts, requiring detailed investigation, including recording of expert evidence, the parties may be asked to approach the civil court. In such cases, it is not that consumer courts lose their jurisdiction in the matter; rather, such a reference to civil courts is to be seen in the best interests of the patient who is claiming compensation.

If any false or frivolous litigation is filed by a patient against a doctor under the Consumer Protection Act, the Act itself provides for the dismissal of such a complaint and the applicant can be ordered to pay the costs of such proceedings.

Human Rights Commission:
The National Human Rights Commission (NHRC) in India investigates grievances regarding the violation of human rights either suo moto or after receiving a petition. It has the power to interfere in any judicial proceedings involving any allegation of violation of human rights. The functions of the NHRC as stated in Section 12 of the Protection of Human Rights Act,1993 include inquiry into complaints of violation of human rights or negligence in the prevention of such violation by a public servant[1].

In the context of medico-legal issues, the NHRC can play a crucial role in ensuring that the rights of patients are not violated and that medical professionals adhere to the necessary ethical and professional standards.

In one of the cases, the NHRC issued the following directions: “This case pertains to allegations of medical negligence by a private nursing home. Since no public servant is involved in this case the matter is dismissed in limine.

Thus, looking at the above definitions and past case histories the Consumer Court seems to be your best ally for negligence or malpractice by doctors, private nursing homes, and hospitals.

Suggestions
Need for Medical Tribunals
Medical tribunals are seen as a necessary step towards improving healthcare standards and regulation in India. Here are some reasons why they are needed in our country at the earliest:

Accountability: The private medical healthcare system in India is set up in such a way that there is little accountability. Medical tribunals could help hold healthcare providers accountable for their actions.

Regulation: Existing laws, rules, and regulations have failed to regulate India’s healthcare sector effectively. Medical tribunals could help enforce regulations more effectively.

Redressal mechanisms: Medical tribunals could provide a platform for the redressal of grievances related to healthcare, especially medico-legal issues. They could handle offenses that take place in hospitals, government health schemes or programs, cases of offenses, negligence, and malpractice by doctors, hospital authorities, and services rendered by ambulance authorities.

Specialization: Tribunals in India are quasi-judicial bodies that are created to adjudicate specific types of disputes and matters. A medical tribunal, with a chairperson who has adequate and appropriate knowledge of medical crimes, could render quick and fair justice. A bench of 2 judges one with legal acumen and another with medical expertise could help to resolve the cases effectively.

Uniformity: There is a lack of strict and uniform regulation of healthcare in the country. Medical tribunals could help bring about uniformity in the regulation of healthcare.

Conclusion
In conclusion, the establishment of medical tribunals could be an important step towards improving the healthcare system in India. They could help ensure that healthcare providers are held accountable, regulations are enforced, and grievances are addressed promptly and fairly for the welfare of the people. Juris Centre