By Dr. (Prof.) Mahesh Baldwa,
M.D, D.C.H, FIAP, MBA, LL.B, LL.M, PhD (law)
SENIOR PEDIATRICIAN & MEDICOLEGAL ADVISOR
Formerly Assistant Professor of Pediatrics at T.N. Medical College and Nair Hospital, Mumbai-400008
Ex. Asst. Professor JJ Hosp, Grant medical college
Ex. Professor, paper setter & examiner of law to postgraduate students of University Department of Law, University of Mumbai
Baldwa Hospital, Sumer Nagar, S.V. Road, Borivali (West) Mumbai 400 092
2. Dr. Sushila Baldwa, MBBS, MD, consultant, Apollo clinic (part of Apollo Hospital), Kandivali west, Mumbai
3. Dr Namita Padvi, MBBS, MD,DNB, PGDML, Fellowship in pediatric anesthesiology, Assistant Professor of Pediatric medical s at T.N. Pediatric medical College and Nair Hospital, Mumbai-400008
4. Dr Varsha Gupta, MBBS, MD, PGDML, Senior resident in department of pathology, Government medical college, kota, Rajasthan
Introduction
Minimum Legal Points a doctor should know is about emergencies, right to practice medicine and crosspathy practice. Same are described below.
Law related to medical emergencies
The following questions repeatedly confront doctors, patients and social and legal activists:
- Are doctors and hospitals bound to attend to emergency patients?
- Is the obligation same for government hospitals and private hospitals?
- If it is a police case, should the police formalities be first completed before attending to a patient?
- What if the patient or her relatives do not have money to bear expenses for the treatment?
We read about and hear of many cases where emergency patients are sent from one hospital to another without receiving proper attention. Often private hospitals refuse to admit medico legal emergency cases (like accidents, poisoning and attempted suicide, etc.) and ask them to approach public hospitals.
In India, there is no law that deals specifically with the duties of health facilities and personnel to provide medical treatment in emergency cases. Emergency health care, like public health facilities falls in the shadow of Article 21. In other words, where there is a refusal to treat an emergency case, the patient may approach the court.
In the ordinary course of practice private medical practitioners and private hospitals, have a right to decide whether to undertake a case or not.
If the hospital refuses to treat a patient in emergency cases this can definitely amount to negligence in the performance of its duty towards the patient.
Chapter 2 of the Code of Medical Ethics Regulations 2002 drawn up by the Medical Council of India says:
2.1 Obligations to the sick:
Though a physician is not bound to treat each and every one asking his services except in emergencies for the sake of humanity and the noble traditions of the profession,……………..
2.4 The patient must not be neglected:
A physician is free to choose whom he will serve. He should, however, respond to any request for his assistance in an emergency or whenever temperate public opinion expects the service.
There is still no clarity on certain urgent but non emergency areas of health care. In the absence of a specific law, there is also not likely to be clarity in every area of health care since the law develops depending on the cases which come up before the court and such development is very erratic and uneven.
Obligation to Provide Emergency Health Care
In Paschim Banga Khet Mazdoor Samiti vs. State of W.B. the issue before the Supreme Court was the legal obligation of the Government to provide facilities in government hospitals for treatment of persons who had sustained serious injuries and required immediate medical attention. The petitioner who had suffered brain hemorrhage in a fall from the train was denied treatment at various government hospitals because of non-availability of beds.
The patient was given first aid in a PHC and referred to a specialized state hospital for better treatment. At the specialized hospital, the patient was examined and X-rays of his skull were taken which showed his condition to be serious. Immediate admission for further treatment was recommended. However, he was not admitted in that hospital as there were no vacant beds, and was referred to another specialized hospital. There too, he was refused admission as there were no vacant beds. After doing the rounds of three more state run specialized hospitals, the patient was admitted to a private hospital and the final bill came to much more than he could afford. He had to spend Rs. 17,000 for his treatment. The West Bengal government justified its action on the ground that the petitioner could not have been kept on the floor of a hospital or trolley because such an arrangement of treatment was fraught with grave risks of cross-infection, and moreover there was a lack of facility for proper care after the operation. The government of West Bengal further stated that state hospitals catered to the need of poor and indigent patients, and 90 per cent of the beds maintained by the state government all over the state, were designated as free beds for treatment of such patients. The Court also ordered that the Petitioner be paid Rs. 25,000 as compensation.
Implementation of Case Law on medical emergencies
Labonya Moyee Chandra vs. State of West Bengal case reflected the lack of seriousness of the State in executing its duties and the implementation of the directions and recommendations in Paschim Banga Khet Mazdoor Samiti case. The patient was an old woman residing in a village near the city of Burdwan who was denied admission in SSKM, a state hospital on account of nonavailability of bed even though her condition was recorded as critical. This hospital was also involved in the earlier case of Paschim Banga Khet Mazdoor Samiti. The patient suffered severe chest pain and difficulty in breathing. The local doctor examined her, diagnosed a heart block and recommended immediate hospitalization. She was taken to Burdwan where she was shown to Burdwan Medical College hospital (BMCH) who referred her to cardiology department of Seth Sukhlal Karnanl Medical College (SSKM) in Calcutta or any other State hospital having cardiology department as they didn’t have the said facility. At SSKM, RMO referred her to the cardiology department who informed her that there were no vacant beds and referred her back to the RMO. She instead got admitted to a private hospital where she underwent an operation and a permanent pacemaker was implanted. There were two issues before the Supreme Court: First, whether the patient was brought to SSKM hospital in a critical state, and second, whether she was refused admission and ‘turned out at night’. The Supreme Court considered the following evidence to conclude that the patient indeed was in a critical state, based on the case notes and prescription of the local doctor, the discharge certificate of the BMCH and the endorsement of the cardiology RMO on the outdoor emergency department ticket of the SSKM hospital:
1) The prescription of the local doctor recorded that patient was unconscious, suffering from convulsion and frothing at the mouth. He diagnosed a complete heart block condition known as Stokes-adams. It is a medical term to designate occasional transient cessation of the pulse and loss of consciousness, especially caused by heart block. ‘The condition of such patient must be critical.’ Accordingly the local doctor advised urgent hospitalization, and prescribed oxygen inhalation and medication.
2) Discharge certificate of BMCH described her condition as a ‘complete heart block’ and referred her to a State hospital with a cardiology department.
3) The endorsement of the cardiology RMO on the outdoor emergency department ticket of SSKM hospital also described her as suffering from a ‘complete heart block’ with S.A. Attack. This clearly showed that Appellant’s condition was not stable as alleged by the State. As regards the second issue, the Supreme Court held that though the SSKM hospital did not turn her out, she could not possibly have been expected to bear with the jostling between the two departments when she was in a critical state. It was the responsibility of the doctor in charge of the cardiology department who examined her, to ensure that a bed was made available in any of the department so that she could be accommodated in the cardiology department as and when a vacancy arose.
The Supreme Court observed that despite the directions issued by it and the State government in Paschim Banga Khet Mazdoor Samiti case there had been no compliance of the same. The Appellant was denied treatment in BMCH on grounds of lack of proper facility. This was despite the specific direction in Mazdoor Samiti case to upgrade facilities and to set up specialist treatment in the district-level hospitals. “Clearly State Government has not taken any follow up action to ensure that recommendations are implemented.” There was no ‘centralized communication system’ set up with the help of which BMCH could have referred the Appellant to a hospital that had vacant beds before setting her off on a long journey in a critical state. The ‘admission register’ maintained by SSKM hospital was not as per the guidelines set out in the Mazdoor Samiti case. The entries were haphazardly and irresponsibly made. They did not describe the medical condition of the Appellant although such a column had been provided. The inquiry report submitted by SSKM hospital to the Court did not show that a bed could not be arranged for the Appellant. It was silent about the occupancy of beds in other departments.
In the light of above circumstances and lapses on the part of State and the government hospital to implement the recommendations in PaschimBanga Khet Mazdoor Samiti case, the Supreme Court held the state liable to compensate the Appellant for the cost of the pacemaker assessed at Rs. 25,000. Further, the State government was directed to take follow up action on the implementation of the recommendations under the earlier case.
Medico Legal Cases on Right to Emergency Care during Accidents:
Parmanand Katara vs. Union of India was a petition filed by a human rights activist seeking directions against the Union of India that every injured citizen brought for treatment should be instantaneously given medical aid to preserve life and thereafter the procedural criminal law should be allowed to operate in order to avoid negligent death. The Petition also demanded that in the event of breach of such direction, apart from any action that may be taken for negligence, appropriate compensation should be admissible. The Petitioner had appended to the writ petition a report titled ‘Law helps the injured to die’ published by the Hindustan Times that told the story of a hit-n-run case where the victim was denied treatment by the nearest hospital and asked to approach another hospital authorized to handle medico-legal cases but situated 20 km away. The victim succumbed to his injury on the way to the other hospital. There were three issues before Supreme Court:
1. Whether there are any legal impediments that hindered timely treatment in medico-legal cases;
2. What is the nature of the duty of the government, the government hospital and the police in medico-legal cases; and
3. Whether private hospitals could refuse to treat medico-legal cases?
The Medical Council of India in its affidavit stated that though doctors are not bound to treat every case they cannot refuse an emergency case on humanitarian grounds and the noble tradition of the profession necessitates this. The affidavit stated that the doctors were reluctant to undertake medico-legal cases because of unnecessary harassment by the police during the course of investigation and trial. The MCI urged that doctors attending medico-legal cases should be indemnified under the law from any action by the government/ police authorities so that it is conducive for doctors to perform their duties. Criminal procedure should be amended so that injured persons may be treated immediately without waiting for a police report or completion of police formalities. The Indian Evidence Act should also be amended so that the diary maintained by doctors in the regular course of their work is admissible as evidence for the purposes of the medico-legal cases in place of their presence during trial to prove the same.
The Supreme Court, agreeing with this, held that- There is no legal impediment for a medical professional when he is called upon or requested to attend to an injured person needing his medical assistance immediately. The effort to save the person should be the top priority not only of the medical professional but even of the police or any other citizen who happens to be connected with the matter or who happens to notice an incident or a situation.
Preservation of human life is of paramount importance. That is so on account of the fact that once life is lost, the status quo ante cannot be restored as resurrection is beyond the capacity of man. The patient whether he is innocent person or liable to be punished under the laws of the society, it is the obligation of those who are in charge of the health of the community to preserve life so that innocent may be protected and the guilty may be punished. Social laws do not contemplate death due to negligence to tantamount to legal punishment. A doctor at the Government hospital positioned to meet the State obligation is, therefore, duty bound to extend medical assistance for preserving life. Every doctor whether at a Government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life. Indian courts have held that in emergencies neither government nor even private doctors can insist on payment of money before dealing with the patient. In Pravat Kumar Mukerjee vs. Ruby General Hospital,the National Consumer Commission was concerned with the case of a young student whose motorcycle was dashed by a bus in Calcutta. He was brought to the Respondent hospital but the treatment was not continued as Rs.15, 000 as demanded by the hospital were not immediately paid. The boy died. The National Commission held that though a doctor was not bound to treat each and every patient, in emergencies the doctor was bound to treat the patient and could not insist on delaying treatment until the fees were paid. The Petitioner was awarded a compensation of Rs. 10 lakh. In conclusion all doctors and hospitals, whether private or government, have to treat emergency patients.
If they do not do so, the patient or immediate kin can approach the court for compensation for violating their right to life (Article 21). The excuse of having no beds does not hold in the case of government hospitals and detailed recommendations are given in this regard. The obligation is the same for government hospitals and private hospitals. The courts have clearly held that no legal procedures can take priority over providing life saving treatment for the patient.
Medical practice and crosspathy
- What is medical practice?
- When does a person become entitled to practice medicine?
- Is cross practice permitted under the law?
- Are persons who claim to have qualifications such as electropathy, etc. that are not recognized under any law entitled to practice their respective branches?
Medical practice in a given society depends on the quantum of knowledge and also on the extent to which such knowledge is made available to society. In fact, in a welfare state, the medical needs of society accelerate the growth of knowledge in the medical sciences. If medical sciences should be attuned to the aspirations of the Indian people as outlined in the Indian Constitution, medical personnel should be oriented to the practice of the art and science of medicine, in relation to India’s social structure. The control of disease must form part of the general alleviation of the social and economic ills caused by the exploitation and deliberate neglect of the Indian villager through the last few centuries. Not every person who has studied medicine has a right to practice medicine. Not every degree or diploma qualifies a person to claim that he has studied medicine. Medical profession is governed by various Central and State Acts that prescribe standard of education and practice in the interest of public and to maintain high standard of the profession. Thus, to be eligible to practice there must be absolute adherence to the provisions of concerned Acts.
Since medical practice is part of the concurrent list of the Constitution, both Central as well as State Governments can pass laws concerning medical practice. Ordinarily if the State law conflicts with the Central law, the Central law will prevail. In respect of all systems of medicine Central as well as State laws have been passed.
- The Medical Council Act, 1956 regulates modern system of medicine;
- The Indian Medicine Central Council Act, 1970 regulates Indian systems of medicine including Ayurveda, Sidha and Unani systems of medicine
- The Homoeopathic Central Council Act, 1973 regulates practice of homoeopathic medicine.
Most State Governments have also passed laws each of these branches of medicines. All these laws have schedules which list the qualifications and degrees and diplomas which would entitle practitioners to practice a particular branch of medicine. Thus, the Medical Council Act, 1956 gives a list of degrees and diplomas which are recognized for practicing allopathic medicine. Similarly, say the Maharashtra Medical Practitioners Act has an additional list of degrees and diploma, available in Maharashtra that would also entitle practitioners to practice allopathic medicine. Medical Councils are set up at both Central and State levels, and these apart from their other functions also set the standards for medical ethics and parameters of medical malpractice.
Cross Practice
May a homoeopath prescribe allopathic drugs?
In Poonam Verma vs. Ashwin Patel, the Supreme Court made its famous observation:
A person who does not have the 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. The Court went on to observe that no person can practice a system of medicine unless he is registered either under the Central Indian Medical Register or the State Register to practice that system of medicine; and only such persons as are eligible for registration and possess recognized degrees as specified under the concerned Central and State Act may so practice. The mere fact that during the course of study some aspects of other systems of medicine were studied does not qualify such practitioners to indulge in the other systems. In this case, a registered homoeopathy doctor prescribed allopathic medicines to Poonam Verma’s husband. His defense was that he had received instructions in modern system of medicine (allopathy), and after the completion of his course, he had worked as Chief Medical Officer at a well known allopathic clinic. The Supreme Court observed that a registered homoeopathic practitioner could only practice homoeopathy. Further the Court opined that, physiology and anatomy is common in all systems of Medicines and the students belonging to different systems may be taught physiology and anatomy together, but so far as the study of drugs is concerned, the pharmacology of all systems is entirely different. Therefore, merely because the anatomy and physiology are similar does not entitle a person who has studied one system of medicine to treat patients under another system. The Court held that the doctor was registered only to practice homoeopathy. He was under a statutory duty not to enter other systems of medicine. He trespassed into a prohibited field and was liable to be prosecuted under Section 15(3) of the Indian Medical Council Act, 1956. His conduct also amounted to an actionable negligence for any injury caused to his patients in prescribing allopathic drugs.
May an ayurvedic doctor prescribe allopathic drugs?
In Mukhtiar Chand (Dr.) vs. State of Punjab the primary question before the Supreme Court was “who may prescribe allopathic medicines?”
This case raises questions of general importance and practical significance; questions relating not only to the right to practice medical profession but also to the right to life that includes the health and well-being of a person. The controversy in these cases was triggered by the issuance of declarations by the state Governments under clause (iii) of Rule 2(ee) of the Drugs and Cosmetics Rules, 1945 (for short ‘the Drugs Rules’) which defines “Registered Medical Practitioner”. Under such declarations, notified vaids/hakims claim right to prescribe Allopathic drugs covered by the Indian Drugs and Cosmetics Act, 1940 (for short ‘the Drugs Act’). Furthermore, vaids/hakims who have obtained degrees in integrated courses claim right to practice allopathic system of medicine. In exercise of the power under clause (iii) of Rule 2(ee) the State of Punjab issued a notice declaring all the Vaids/Hakims who had been registered under various medical acts as persons practicing modern System of Medicine for purposes of the Drugs Act. One Dr. Sarwan Singh Dardi who was a medical practitioner, registered with the Board of Ayurvedic and Unani System of Medicines, Punjab, and who was practicing modern system of medicines was served with an order of the District Drugs inspector, Hoshiarpur, prohibiting him from keeping in his possession any allopathic drug for administration to patients and further issuing general direction to the chemists not to issue allopathic drugs to any patient on the prescription of the said doctor. Dr.Dardi claimed that he was covered by the said notification and was entitled to prescribe allopathic medicine to his patients and store such drugs for their treatment (hereinafter referred to as Dardi’s case). The Court held that the said notification was ultra vires the provisions of sub-clause (iii) of clause (ee) of rule 2 of the Drugs Rules and also contrary to the provisions of Indian Medical Council (IMC) Act, 1956 and accordingly dismissed his writ petition. Now what does the rule 2(ee) say? It defines ‘registered medical practitioner’ as a personi) holding a qualification granted by an authority specified or notified under Section 3 of the Indian Medical Degrees Act, 1916, or specified in the Schedules to the Medical Council Act, 1956; or
ii) Registered or eligible for registration in a Medical Register of a State meant for the registration of persons practicing the modern scientific system of medicine (excluding the homoeopathic system of medicine); or
iii) registered in a Medical Register (other than a register for the registration of homeopathic practitioner) of a State, who although not falling within sub-clause (i) or sub-clause (ii) is declared by a general or special order made by the State Government in this behalf as a person practicing the modern scientific system of medicine for the purposes of the Act. Through this petition, the doctors sought to reinforce their right to prescribe allopathic medicine on the strength of the notification and restrain State authorities from interfering with such a right. Similar issues also arose in various other high courts and finally all the cases reached the Supreme Court. The Apex Court observed that the Rule 2(ee) only defines the expression ‘registered medical practitioners’ and does not provide as to who can be registered. Therefore, the Court read the notification in consonance with laws regulating and permitting medical practice. As a rule medical practitioner can practice in that system of medicine for which he is registered as a medical practitioner. Under the IMC Act, 1956 there are two types of registration: under ‘State Medical Register’ and ‘Indian Medical Register’.
According to Section 15(2) of the IMC Act only those who are enrolled in any State Medical Register can practice allopathic medicine in the State. Section 15(1) provides that qualifications specified in the Schedules of the Act shall be sufficient for enrolment in the State Medical Register. However, such qualification is not a necessary pre condition for registration. ‘State Medical Register’ is a contradistinction to ‘Indian Medical Register’ and is maintained by the State Medical Council constituted under any State law that regulates the registration of medical practitioners. It is thus possible that in a State, the law governing registration may enable a person to be enrolled on the basis of qualifications other than the ‘recognized medical qualification’. On the other hand, ‘recognized medical qualification’ is a perquisite for enrolment in Indian Medical Register. To summarize, persons holding ‘recognized medical qualification’ cannot be denied registration in any State Medical Register, but the same cannot be insisted upon for registration in a State Medical Register. Further, a person registered in a State Medical Register cannot be enrolled on the Indian Medical Register unless he possesses ‘recognized medical qualification’. The Indian Medicine Central Council Act, 1970 has made a similar distinction between ‘State Register’ and ‘Central Register of Indian Medicine’. Section 17 of the Act provides the recognized medical qualification for enrolment in the State Register, and that no person other than those who are enrolled either on the State register or the Central Register of Indian Medicine can practice Indian medicine. Section 17(3) carves out exceptions to this prohibition and protects, inter alia-
(a) The right of a practitioner of Indian Medicine enrolled on a State Register of Indian Medicine to practice Indian medicine in any State merely on the ground that, on the commencement of this Act, he does not possess a recognized medical qualification.
(b) Privileges including the right to practice any system of medicine which was conferred by or under any State law relating to registration of practitioners of Indian Medicine for the time being in force, on a practitioner of Indian Medicine who was enrolled on a State register of Indian Medicine.
(c) The right of a person to practice Indian medicine in a State in which, on the commencement of this Act, a State Register of Indian Medicine is not maintained if, on such commencement, he has been practicing Indian medicine for not less than five years. Thus, a harmonious reading of Section 15 of the IMC 1956 Act and Section 17 of 1970 Act leads to the conclusion that a medical practitioner of Indian Medicine enrolled on the State Register of Indian Medicine or the Central Register of Indian Medicine can practice modern scientific medicine only if he is also enrolled on a State Medical Register within the meaning of Section 15(2) of the 1956 Act.
The Supreme Court held that benefit of Rule 2(ee) and the notifications issued there under would be available in those States where the privileges to practice any system of medicine is conferred upon by the State law for the time being in force, under which medical practitioners of Indian Medicine are registered in the State. Lastly, doctors urged that integrated courses in ayurvedic medical education includes to an extent the study of modern scientific system of medicine. The right to practice a system of medicine is derived from the Act under which a medical practitioner is registered; whereas the right which the holders of a degree in integrated courses of Indian Medicine are claiming is to have their prescription of allopathic medicine honored by a pharmacist or a chemist under the Pharmacy Act and Drugs Act. The Supreme Court held that the right to prescribe drugs is a concomitant of the right to practice a system of medicine. Appellants cannot claim such a right when they do not possess the requisite qualification for enrolment in the State Medical Register. In Subhashis Bakshi vs. W.B.Medical Council & Ors the Court reiterated that State Governments were at liberty to decide the on qualifications that would permit prescription of allopathic (as also other) medicines in the State. The other issue before the court was whether the right to issue prescriptions or certificates could be treated as a part of right to treat. The court, relying on Mukhtiar Chand’s case held that right to prescribe drugs and the right to issue certificates is concomitant to the right to practice medicine. This was a case where the West Bengal Government had allowed certain diploma holders to practice medicine to a limited extent in rural areas. As per the Supreme Court’s order this was continued.
May allopathic doctor prescribe ayuvedic drugs?
The Akhtar Hussain Delvi (Dr.) vs. State of Karnataka case dealt with a situation quite opposite to the earlier cases. Here, a registered allopathic medical practitioner sought the right to prescribe drugs and medicines of ayurvedic origin, which had been accepted by professionals practising allopathic medicine pursuant to clinical and other tests. The high court observed that under the Indian Medicine Central Council Act, 1970 only those who either possess medical qualifications specified in Second, Third or Fourth Schedule of the Act or are enrolled in the State Register of Indian medicine have right to practice Indian medicine. The Petitioner, neither had acquired such a qualification nor passed qualifying examination under the concerned State Act, nor therefore, was not entitled to prescribe ayurvedic medicine.
Recognition of a medical degree:
The Delhi Pradesh Registered Medical Practitioners vs. Director of Health, Delhi Administrative Services was a Petition filed against the decision of the Indian Medicine Central Council constituted under the Indian Medical Central Council Act, 1970 denying recognition to the degree in Indian medicine awarded by Hindi Sahitya Sammelan after 1967. The Appellants’ case was that:
1. The Institution in question was very old and reputed, and on the basis of degrees awarded by it, large number of practitioners in the discipline of Ayurveda had been registered in various States including Delhi and have been successfully practicing in the discipline of Ayurveda.
2. In the absence of proper medical facilities available to a large number of poorer sections of society, the ban on practitioners who were providing medical services to the needy and poor people was wholly unjustified. The Supreme Court, however, refused to review the decision of the Indian Medical Central Council merely on the basis of the above submission as it fell within the realm of policy decision of constitutional functionaries who had the requisite knowledge and expertise to take such decisions. Thus, the degrees were not recognized. The courts have by and large left it to the expert bodies such as Medical Councils to decide as to which qualifications should be recognized and which should not be.
Practicing Different Systems of Medicine:
In State of Tamil Nadu vs. M.C. George decided by the Tamil Nadu High Court the Petitioner was a hereditary practitioner of Siddha medicine. He had been practicing Siddha since the mid-1960s after learning it from his father, and was very popular with the villagers. In 1981 the Tamil Nadu Government issued a notification asking people who were practicing Indian system of medicine to register. The Petitioner delayed the matter and was not granted registration. He challenged this in the high court. The Division Bench said that the Petitioner did not have any need to register himself since under the Indian Medicine Central Council Act, if a person had been practicing Indian medicine for a period of five years at the time of the commencement of the Act; he had a right to continue practicing Indian medicine. The Court held that the Petitioner could continue to practice Siddha without registration. It needs to be noted of course, that this right is only for those who were already practicing Indian medicine for five years at the time of commencement of the law and not the subsequent entrants.
The Court also observed: Before dealing with the facts of this case, it may be mentioned that in our country, like in other countries, since ancient times medicine has been practiced and a medical system has been evolved. We had renowned medical practitioners like Sushrut and Charak who are internationally known. In fact, no society can get along without medical practitioners. In every society some people fall sick and get diseases, thus requiring medical treatment. In our country, the Siddha, Ayurveda and Unani systems were evolved, which were traditionally indigenous systems of our country. Medical practitioners of these systems would often pass all their medical knowledge to their children or disciples and often this knowledge were kept secret from others. Thus, this knowledge was passed on from generation to generation, but it was only given to the children or the devoted disciples and kept secret from others. Many of the treatments in our indigenous medical systems are very effective and there is no reason why we should not utilize the wisdom of our ancestors.
In our opinion, we should encourage indigenous systems of medicines, though with scientific discrimination and after experimentation. However, it is also important that quackery should be suppressed, because it is also true that quackery is widely prevalent in our country, as poor people often cannot afford the fees of qualified doctors. Hence, a balance has to be maintained.
In Private Medical Practitioners Association of A.P. vs. State of Andhra Pradesh, the State Government issued a notification prohibiting all unlicensed practitioners from practicing medicine. The association representing the unlicensed practitioners challenged the notification in the high Court. Its contention was that they were mainly practicing in rural areas and were of great help to the poor villagers. The high court, however, dismissed their Petition holding that unless a person had the qualifications prescribed under one of the medical laws he did not have the right to practice medicine. In the case of Electropathy Medicos of India vs. State of Maharashtra a college was conducting a three year course in electropathy, a branch of medicine contended to be different from homeopathy, ayurveda and allopathy. The State Government had issued a notification directing that such a course was not recognized and no degrees or diplomas could be offered. The Petitioners contended that electropathy was founded in the 19th Century in Italy and provided a sound system of medical practice. The high court, however, rejected this and ordered:
(i) The petitioner-society is directed to close down all courses in electropathy/ electrohomoeopathy forthwith.
(ii) The petitioner-society is directed not to grant affiliation and/or recognition to any college or institution.
(iii) The petitioner-society is hereby directed to refund the fees received from the students admitted by the petitioner-society for its 3 years diploma courses as well as one year diploma course with interest at the rate of 18% p.a. within 3 months.
(iv) The State Government is directed to close down all institutions in the State holding the course in electropathy or electrohomoeopathy and to take action against the electropathy practitioners in accordance with the provisions of the Maharashtra Medical Practitioners Act, 1961. A similar case concerning electropaths and electrohomeopaths in Uttar Pradesh vs. Electro Homeopathic Practitioners Association of India a Division Bench of Allahabad High Court was asked to permit electrohomeopaths to continue to carry on their profession. The court rejected this contention and held that unless a system of medicine was recognized by the legislature it could not be allowed to continue. Upon this, the Association claimed that its members were not practicing medicine. The Court, while rejecting this contention held:
Shri U. K. Shandilya. Learned sr. counsel for the appellants then submitted that the members of the petitioner’s Association are not practicing medicine, and hence they cannot be debarred from practice. We cannot agree. Chambers English Dictionary defines medicine to mean “the art or science of prevention and cure of disease.” Thus, medicine is that knowledge which is used for curing the aliment of the human body. Since the petitioners claim that their activities are aimed at curing the ailment of the human body there can be no doubt that they claim to be practicing medicine. It is of course a different matter that their claim has not been accepted by the expert committee appointed by the Central Government. The Court directed the State to restrain the practice or teaching of electrohomeopathy throughout the State.
Quacks:
In the case of D.K. Joshi vs. State of U.P., public interest litigation was filed demanding that the State Government take steps to stop unqualified practitioners from practicing in Agra and the surrounding areas. The Court felt that adequate steps were not taken by the administration and issued directions in respect of the entire state as follows:
In the case of Charan Singh vs. State of U.P., the Allahabad High Court was concerned with practitioners having degrees from unrecognized colleges. This arose as a follow up of the D.K. Joshi case cited above. The court came down heavily on these practitioners and held that they had no right to practice medicine. Similarly, it also ordered the State Government to close down unrecognized institutions. Besides this, the court repeated the directions earlier issued by it meant to ensure that only registered medical practitioners practiced in the State. Towards this the Court directed:
(1) All the Hospitals, Nursing Homes, Maternity Homes, Medical Clinics, Private Practitioners, practicing medicine and offering medical and health care services, Pathology Labs, Diagnostic Clinics; whether run privately or by firms, Societies, Trusts, Private limited or Public limited companies, in the State, shall register themselves with Chief Medical Officer of the District where these establishments are situate, giving full details of the medical facilities offered at these establishments, the names of the registered and authorized medical personnel practicing, employed or engaged by them, their qualifications with proof of their registrations, the Para Medical staff employed or engaged and their qualifications, on a form (for each category) prescribed by the Principal Secretary, Medical Health and Family Welfare, Government of U. P. The prescribed pro forma with true and accurate information shall be submitted, supported by an affidavit of the person providing such medical services of the person in charge of such establishment, sworn before Notary Public. The required information shall be submitted for registration, by al these persons, on or before 30-4-2004. (2) The principal Secretary, Medical Health and Family Welfare, U. P. shall publish the information requiring all the persons to obtain registrations, along with the directions given in this order, and the prescribed pro forma, in all leading newspapers of the State, at least three times, in the month of February, 2004.
(3) Any change or addition in the particulars submitted shall be notified within thirty days and that the registrations shall be renewed every year before 30th April of the year.
(4) On and from 1-5-2004, all those persons who have not furnished the information and obtained registration with the Chief Medical Officers of the District, shall be taken to be practicing unauthorized and that the Chief Medical Officers, shall scrutinize and forthwith report the matter to the Superintendent/Senior Superintendent of Police of the District with information to this Court, to conduct raids and to seal the unauthorized premises/ establishments. All the authorized persons/ establishments, who fail to obtain registration, will have liberty to apply only to this Court to explain the delay and to seek permission to continue with their medical practice/ profession.
(5) All those medical practitioners who desire to offer medical services in the State, in future, shall be required to submit the details in the aforesaid pro forma for registration as above with the Chief Medical Officer of the district before they start medical practice.
(6) All the institutions/establishments/ colleges awarding medical degree in the State shall apply and get themselves with the Principal Secretary Medical Health and Family Welfare, U. P. with full particulars of their authorization to confer such degrees/ certificates, on or before 30-4-2004.
(7) The news papers and magazines, published in Uttar Pradesh, are restrained from publishing advertisements by and from unauthorized medical practitioners, publishing their claims of quick and magical remedies. They shall require these persons to give proof of their qualifications and registrations. The breach shall be taken to aid and obviate illegal activities violative of Magic Remedies (Objectionable Advertisement) Act, 1954, and other relevant legislations.
(8) The Principal Secretary, Medical Health and Family Welfare, it is directed, to ensure that no medical officer in the Government Service is posted beyond three years in any District, and that all para medical staff serving in the Primary Health Centre/Community Health Centre/District Hospitals and other hospitals run by Government of U.P. for more than five years shall be transferred from that centre/ hospital. Any doctor in employment of State Government offering their services to the unauthorized medical practitioners shall face immediate disciplinary action by the State Government, and shall be prosecuted for aiding and abetting such unauthorized practice.
Physiotherapist
In the case of Shri Sarjoo Prasad vs. State of Bihar the Patna High Court was concerned with the right of practice of occupational therapists/ physiotherapists. To begin with, after studying the literature in detail the court held that occupational/ physiotherapy is a recognized form of medical practice. However, the court further observed that unless the concerned qualification finds a place in the schedule to the Medical Council Acts and the holders of the qualifications are registered under that Act, they have no right to practice modern scientific medicine or prescribe allopathic drugs.
Certificate for medical practice
An issue that has been constantly coming up especially in States like Maharashtra concerns registered practitioners of other States. In states like Bihar, the practice of medicine is permitted even without any formal qualifications, if one is able to satisfy certain basic criteria. A number of persons from Maharashtra, for instance, go to Bihar and get these Certificates and start practicing medicine in Maharashtra. Similarly, in a recent case in Maharashtra, the Petitioners were registered in Bihar and Uttar Pradesh but not in Maharashtra. They were not registered under the Central Acts. Their qualifications were recognized under the Bihar and the Uttar Pradesh laws, but not under the Maharashtra or the Central laws. The Maharashtra law entitles only those who are either registered in Maharashtra or under the Central law to practice in Maharashtra. The Court found nothing wrong with this law and held that merely because a person is registered under any other State medical law does not entitle him to practice in Maharashtra unless he is registered in the State (i.e. his qualification is recognized in Maharashtra) or under the Central law (i.e. his qualification is recognized by the Central Council).
Conclusion
India is a place where various systems of medicine are practiced. The legislature however recognizes five main systems, namely allopathy, ayurvedic, unani, siddha and homeopathy. In order to practice medicine, the practitioner has to have a recognized qualification from a recognized institute. In all other cases, the practice of medicine is prohibited. The law does not recognize an inherent right to practice medicine, but is subject to national and state laws. An interesting issue that has not come up concerns specializations. There is no law that prevents a person who has only an MBBS (and not MD or MS) degree from practicing and even setting up as a specialist in cardiology or ENT, etc. Of course, if a case of negligence is filed against the practitioner, he may be held guilty on account of holding himself out to be an expert in a subject in which he has not acquired such an expertise. But that is only if a case of negligence is filed against him. On the other hand, not having the basic recognized qualification disentitles a person altogether from practicing that branch of medicine and this will not be contingent upon any case being filed against him. In M. Jeeva vs. R. Lalitha, the National Consumer Commission has dealt with the case of a woman running a gynecological hospital for 40 years. The Complainant gave birth to a dead child and her uterus was removed. The person running the hospital and performing procedures and administering treatment was a qualified nurse and midwife but not qualified to practice medicine. The complainant was awarded a compensation of Rs. 2 lakh. The courts have been mainly concerned with cross practice and of certain non recognized systems of medicine. Cross practice has not largely been allowed though there are certain exceptions. Similarly, uniformly the courts have come down heavily against unrecognized degrees or qualifications granted by unrecognized institutions. The courts have also refused to recognize other systems of medicine such as electropathy, etc. Every medical practitioner has a “right to treat” and every patient has a right to say: “treat me, treat me well.” That depends on one’s qualification, knowledge, skill and experience. A degree for qualification is no guarantee of knowledge or skill. Justice Suresh feels that it is ‘quackery’ that is to be taken care of. Quacks are unqualified practitioners who falsely claim to possess a degree in medicine and prescribe drugs, licensed or unlicensed. Hidden quackery occurs in ‘doctors’ clinics that acquire legitimacy through fake degrees and registration acquired through bribery, etc. and those that claim Tantric powers to cure by miracles. India is otherwise short of registered medical practitioners. According to UNDP Human Development Report, 2003, India has 48 physicians for 1, 00,000 people. This is grossly inadequate. We have to have more people duly qualified to provide medical care with a short term course – may be with an Integrated Medical Course – who can go to villages and small towns, so as to make access to health and health care for all a reality. As part of the strategy to mainstream AYUSH (Ayurveda, Unani, Siddha, and Homeopathy Systems etc.) and reinforce healthcare delivery through the primary health network, the Government has decided to appoint AYUSH doctors in PHCs and Community Health Centers. Initially, AYUSH doctors and medicines would be made available in single doctor PHCs and two doctor Community Health Centers in every district.
Tamil Nadu and Kerala that have such integrated health services have shown the usefulness of these, in improving health delivery. The Government has taken measures to mainstream and integrate AYUSH and provide choice and cross-referral facilities to the public under one roof. the issue of cross malpractice needs to be addressed by strengthened regulatory mechanisms, which should be developed within the framework of various systems of medicine. The fact that AYUSH practitioners may be the only accessible practitioners in many rural and semi-rural areas needs to be recognized and taken into account while attempting to undertake standardization.
