9911796707
TMI Blog2017 (8) TMI 1507X X X X Extracts X X X X X X X X Extracts X X X X ..... consultation clinic will be used solely for the purpose of consultation and advice. The Act of 2017 does not take away the choice of an individual doctor to carry on its profession as a doctor and have a medical clinic or a medical consultation clinic. If a doctor is required to treat a patient in the course of consultation and advice, such a place would be considered as a medical clinic coming within the definition of clinical establishment under Section 2(c) of the Act of 2017 requiring such doctor to take a registration under the Act of 2017. Requirement to undergo a registration under the Act of 2017 by itself does not infringe or take away the right to carry on one's profession guaranteed under Article 19(1)(g). The right guaranteed under Article 19(1)(g) is not absolute and can be subjected to reasonable restrictions. The Act of 2017 does not militate against the right of the doctor to recover the reasonable and appropriate cost for the treatment advanced. It has been suggested that, the various provisions of the Act of 2017 which permits a service recipient to receive the service first and pay later will give rise to a situation where a service provider would not be in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious provisions of the Act of 2017 are onerous for an individual medical practitioner to comply with. He has referred to the statement of objects and reasons of the Act of 2017 and submitted that, the stated objective of the Act of 2017 is to regulate the affairs of large nursing homes and in effect it has brought an individual medical practitioner into its fold. The Act of 2017 has the effect of impeding the professional judgment of an individual medical practitioner. Such an effect of the Act of 2017 is neither desirable nor should be permitted. Such an effect will impede the discharge of professional duties of an individual medical practitioner, will affect the public interest and in fact will deprive the public from receiving the best medical treatment available. Requiring an individual medical practitioner to comply with the rigours of the Act of 2017 is unreasonable, impracticable and not desirable. An individual medical practitioner will have to obtain a registration under the Act of 2017 to avoid any prosecution. Such a medical practitioner will have to maintain records in the electronic form, provide for a complaint redressal mechanism to the patient party, amongst others. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... practicable for a medical practitioner, at any level, more so at the rural area. It is also not practicable for a medical practitioner to have such an elaborate setup at an urban area. In any event, if a medical practitioner is forced to undertake such an exercise, then the same would result in extra financial burden on the patient party. Maintenance of records in electronic form as required under Section 7(3)(n) of the Act of 2017 is impracticable, in the given context with regard to individual doctors practising at the rural area. 6. According to the Learned Senior Advocate for the petitioners, Section 7(3)(p) of the Act of 2017 would create mistrust between the patient and the treating doctor. Examination and diagnosis of a patient requires skill, observation and experience. These cannot be had in water tight compartments as sought to be suggested by the Act of 2017. 7. Referring to Section 7(3)(s) of the Act of 2017, learned Senior Advocate for the petitioners has submitted that, the requirement of discharge of corporate social responsibility is arbitrary and oppressive so far as the doctors who would choose to form a juristic entity. Moreover, the statutory provisions t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doctors would stand prejudiced as a non-doctor would be considering an issue as to whether or not there was medical negligence when such adjudicating authority and the appellate authority may not have the expertise to decide such a complex issue. This would lead to miscarriage of justice. He has referred to Section 33(2) of the Act of 2017 and submitted that, the power of the Commission to publish names of persons held guilty of an offence under the Act of 2017 is counterproductive. It would impede a doctor from taking a professional decision. The fear of penalty and publication will not allow a doctor to make a decision at a critical moment of the medical treatment of a patient leading to the patient suffering. This also is contrary to Regulations 1.1.2, 1.2, 2.1 and 8.2 of the Regulations of 2002. Referring to Section 38(1)(ix) of the Act of 2017, learned Senior Advocate for the petitioners has submitted that, the same is in conflict with Section 27 of the Consumer Protection Act, 1986. He has submitted that, the Act of 1986 already occupies the field of compensation and that, there is no requirement for any other body to look into the aspect of compensation, by reason of medical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that, an Act of the State Legislature has to pass the test of Article 14 of the Constitution of India. The various provisions of the Act of 2017 referred to by him, do not pass such test. Therefore, such sections ought to be set aside. Relying upon 2011 Volume 9 Supreme Court Cases page 1 (K.T. Plantation (P) Ltd. v. State of Karnataka) learned Senior Advocate for the petitioners has submitted that, the dominant intention of the two legislations are to be looked at and that, since it covers the same subject, the Central legislation should prevail over Act of 2017. The Consumer Protection Act, 1986 and the Regulations of 2002 will prevail over the Act of 2017. Commenting upon the classification amongst doctors sought to be introduced under the Act of 2017, learned Senior Advocate for the petitioners has submitted that, the Government doctors and Government medical facilities have been kept out of the purview of the Act of 2017. The Act of 2017 is directed towards private practitioners and private medical institutions. This classification is unreasonable. He has referred to 1996 Volume 1 Supreme Court Cases page 1 (Harbilas Rai Bansal v. State of Punjab Anr.) in support of such con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 14 of the Act of 2017 is under challenge in the prayer of the writ petition. Such section requires a doctor to take a registration under the Act of 2017. None of the petitioners before the Court have pleaded that, they have a registration under Section 14 of the Act of 2017. Therefore, none of the petitioners have any cause of action to move the Writ Court. Existence of a cause of action is an essential ingredient for maintaining an action under Article 226 of the Constitution of India. In support of such contention, he has relied upon 2004 Volume 6 Supreme Court Cases page 254 (Kusum Ingots Alloys Ltd. v. Union of India Anr.). He has relied upon 2007 Volume 10 Supreme Court Cases page 712 (Union of India Ors. v. Jai Prakash Singh Anr.) and 2010 Volume 11 Supreme Court Cases page 557 (Manohar Lal v. Ugrasen Ors.) for the proposition that, a writ petition without specific prayers assailing a provision of an Act ought not to be entertained. 13. Without prejudice to his contentions that, the writ petition as framed is not maintainable, learned Advocate General has proceeded to address the Court on the merits of the other contentions raised by the petitioners. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evail. In the present case, if there is a conflict between the interests of the doctors in his private field with his public obligations then the Act gives priority to the public purpose and requires the doctor to discharge his public obligations, in preference to the private one. He has submitted that, as in the educational field, where regulations are permitted, so also regulations are permitted in the medical profession field. The Act of 2017 ought to be looked at from the perspective of a patient or the patient party or public at large rather than the view point of an individual doctor alone. A doctor is required to serve the society at large, where service is primary and receipt of monetary benefit is secondary. The Act of 2017 recognizes such social obligation of a doctor. Therefore, the doctors cannot be heard to complain that, they are not being paid and that, the Act of 2017 impedes the earnings of a doctor. Quite to the contrary, the Act of 2017 seeks to protect the public from being overcharged and fleeced by unscrupulous elements operating at the health sector. Operators in the health sector are not limited to individual doctors. There are other stakeholders also. The A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at, there is no repugnancy between the Act of 2017 and the Regulations of the Medical Council of India. 21. In reply the learned Senior Advocate for the petitioners has distinguished the judgments cited on behalf of the respondents. He has submitted that, in the facts scenario of the present case, the judgments cited on behalf of the respondents do not apply. 22. The issues that have arisen for consideration in the instant writ petition may be summarized as follows:- (i) Is the writ petition as framed maintainable? (ii) Are the provisions of Sections 1(4), 2(c)(ii), 2(d), 2(v), 2(za), 7(2), 7(3)(c), 7(3)(i), 7(3)(j), 7(3)(k), 7(3)(l) to (p), 7(3)(r), 7(3)(s), 7(3)(v), 13, 27, 29, 30, 32, 33(1), 33(2), 36, 38 and 42 of the Act of 2017 ultra vires the Constitution of India? (iii) To what reliefs, if any, are the parties entitled to? 23. The maintainability of the writ petition has been questioned on two grounds. One of the grounds of questioning the maintainability has been that, the writ petition does not contain any prayer challenging the sections of the Act of 2017 argued in the course of hearing and the other being that, the petitioners have no cause of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tial to the previous prayers. There are pleadings with regard to the vires of the Sections that are under challenge, in the body of the writ petition. The prayer portion of the writ petition is not happily drafted. A member of the public would not be committing sacrilege, if such member was to observe that, the prayers made in the writ petition under consideration, imitates the level of diligence and care, the public have become accustomed to receive from the medical practitioners in the present day. However, it would be harsh to return a finding that, the writ petition is not maintainable as the prayers are not happily drafted. It is not a scenario, where the respondents are not aware of the challenges to the provisions of the Act of 2017 and where the petitioners are seeking to travel beyond the pleadings. A better way would have been to amend the reliefs, to make it in consonance with the pleadings. The petitioners have chosen not to do so. Then again, a Writ Court can mould the reliefs. In moulding the reliefs, the Writ Court should not travel beyond the pleadings. That caveat stands satisfied in the facts of the present case. Even if the Court is to consider the challenges to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... medical practice. They have claimed that, their right to practice stands infringed by the various provisions of the Act of 2017. 29. K. Shyam Sunder Ors. (supra) has held that, the history of legislation needs to be looked at by lifting the veil. It recognizes that, legislative competence can also be looked at while deciding the question of a vires of a particular provision of an Act. In such light, the history of the impugned Act needs consideration. It has not come about suddenly. The system of registration and regulation of clinical establishment has not been introduced for the first time through the Act of 2017. It was available in some form or the other from 1950. The system of registration and licensing in respect of the clinical establishment can be traced to the West Bengal Clinical Establishment Act, 1950. The Act of 1950 had introduced a system of registration and licensing. It had defined a clinical establishment to mean any nursing home, physical therapy establishment, clinical laboratory, hospital, dispensary with bed, medical camp, medical institution of analogous establishment, by whatever name called. The Act of 1950 had understood medical clinical to mean a pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... previous Act of 1950. The Act of 2010 had repealed the Act of 1950. 31. The State Government subsequently found the Act of 2010 not to be adequate to address the issues of lack of transparencies in the functioning of clinical establishment in general and private hospitals or nursing homes in particular. It found unnecessary and avoidable harassment and exploitation of service recipients at the hands of private operators in the health sector. The State Government took a view that, health care is not a commercial proposition and that, it is a service with humility and human touch. It wanted to regulate the costs and charges imposed by such establishment while dealing with service recipients. In order to address such issues, the State Government came up with the Act of 2017. 32. According to the petitioners, the provisions of the Act of 2017 do not satisfy the test of Article 14 of the Constitution of India, amongst others. The sections identified by the petitioners to be ultra vires, are set out below:- 1. Short title, extent, commencement and application. - (1) ............................................................................ (2) ..................... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .................. (j) ........................................................................... (k) ............................................................. ............. (l) ........................................................................... (m) .......................................................................... (n) ........................................................................... (o) ........................................................................... (p) ........................................................................... (q) ...................................................................... ..... (r) ........................................................................... (s) ........................................................................... (t) ............................................................................ (u) ........................................................................... (v) service provider means a medical doctor, nurse, midwife, other paramedical professional, social worker or other appropriately trained and qualified p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot resort to any unethical or unfair trade practices including unfair pricing for different services; (d)......................................................................... .... (e)............................................................................. (f).............................................................................. (g)............................................................................. (h) ................................................................... .......... (i) that every case of a victim of accident, injury, or trauma, received or accommodated or both thereto shall be reported to the police station within the jurisdiction of which such clinical establishment is located after providing immediate medical treatment; (j) that every clinical establishment shall provide necessary medical treatment to victims of road traffic accident, persons suffering from sudden calamities, acid attack victims and rape victims irrespective of their ability to bear the treatment cost at the relevant time: Provided that the clinical establishment shall have the right to recover the cost from the service recipients or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontinuance of their projects shall be responsible to provide completely free treatment to 20 percent of Outdoor Patient Department patients and 10 percent of Indoor Patient Department patients in such manner as may be prescribed: Provided that clinical establishments, owned and managed by corporate entities that have not availed such benefits, may endeavour to provide completely free treatment to 20 percent of Outdoor Patient Department patients and 10 percent of Indoor Patient Department patients as part of their Corporate Social Responsibility; (t) ........................................................................... (u) .......................................................................... (v) that no person shall be denied, under any circumstances, including inability to pay the requisite fee or charges, such emergency life-saving medical treatment and critical care by the clinical establishment as may be prescribed: Provided that the clinical establishment has the right to recover the cost from the service recipient or his representative in due course of time; ............................................................................... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision of this Act or any rule made thereunder shall, if no penalty is provided elsewhere, be liable to a penalty which may extend to fifty thousand rupees for the first contravention and one lakh rupees for any subsequent contravention. .............................................................................. 32. General provision relating to penalties. - (1) While adjudging the quantum of penalty under this Chapter, the Adjudicating Authority or the Commission, as the case may be, shall have due regard to the following:- (a) the amount of gain or unfair advantage, wherever quantifiable, made as a result of the contravention; (b) the amount of loss caused or likely to be caused to any person as a result of the contravention; (c) the repetitive nature of the contravention; (d) whether the contravention is without his knowledge; and (e) any other relevant factor. (2) The penalties which may be imposed for contravention of any provision of this Act or any rule made thereunder shall be without prejudice to the power of the licensing authority to suspend or cancel the license. 33. Compensation is case of injury or death of the service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted by the State Government, who is or has been a High Court Judge or any officer who has held the office of Chief Secretary, Additional Chief Secretary in the State Government or any officer who has held equivalent post in the Government of India: Provided that a retired High Court Judge, if appointed as Chairperson, may pursue his professional work; (b) a Vice -Chairperson who is a person of eminence to be appointed by the State Government; (c) members not exceeding eleven in number, to be appointed by the State Government, selected from the fields of medicine including diagnostics, public health, academia, social services, law, finance, public administration, nursing and consumer interests. .............................................................................. 38. Powers and Functions of the West Bengal Clinical Establishment Regulatory Commission.- (1) The Commission shall- (i) monitor the functioning of clinical establishments; (ii) regulate and supervise functions of clinical establishments as prescribed; (iii) mine and consider complaints, filed manually or electronically through an online system in matters related to patient care ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithstanding anything contained in sub-section (1), the Chairperson, the Vice-Chairperson or any Member of the commission may relinquish his office by giving in writing to the State Government a notice of not less than three months. .............................................................................. 33. The preamble to the Act of 2017 is as follows:- An Act to provide for the registration, regulation and transparency of clinical establishments of the State and for matters connected therewith or incidental there to. WHEREAS it is expedient, in the public interest, to provide for registration, regulation and transparency in the functioning and activities of clinical establishments licensed under this Act, to preserve minimum standards of facilities and service to be provided by them to the service recipients. 34. As the preamble suggests, the Act of 2017 has come into being to provide for the registration, regulation and transparency of the clinical establishment in the State. It seeks to provide matters connected therewith and incidental thereto. It states that, such registration, regulation or transparency is required in the public interest so tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l laboratory is defined in Section 2(d). A service provider is defined in Section 2(v). A doctor comes in within the meaning of a service provider. Section 2(za) defines West Bengal Clinical Establishment Regulatory Commission. It is a body constituted under the Act of 2017 as described in Section 36 thereof. It is required to regulate, supervise and discharge grievance redressal functions for patients as may be prescribed, over the activities of the clinical establishments licensed under the Act of 2017. Section 6 of the Act of 2017 requires a clinical establishment to obtain a registration and licence. It prohibits any person from keeping or carrying on any clinical establishment without any registration or licence. The conditions for registration and licence are laid down under Section 7 of the Act of 2017. Sub-section (2) of Section 7 prohibits grant of licence towards a clinical establishment unless such clinical establishment satisfies the criteria laid down therein. Sub-section (3) of Section 7 lays down that, a licence granted under the Act of 2017 would be subject to the terms and conditions laid down therein. Clause (c) prohibits a clinical establishment from resorting to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of indoor patients. Clause (v) lays down that, no person shall be denied, under any circumstances, including inability to pay the requisite fee or charge, such emergency life-saving medical treatment and critical care by the clinical establishment as may be prescribed. The proviso also allows the right to recover the costs from the service recipient or their representative in due course of time. 37. Section 12 of the Act of 2017 deals with the application for registration and licensing. Section 13 of the Act of 2017 deals with grant of registration and licence. Section 13 of the Act of 2017 allows either grant or rejection of an application for licence or renewal. The grounds for rejections are specified in Section 14 of the Act of 2017. Section 24 of the Act of 2017 allows any officer of the State Government duly authorised to make inquiries, examine the place or establishment, inspect equipment and other things and enter and search any premise in the manner and for the reasons as provided therein. Section 29 of the Act of 2017 distinguishes between minor and major deficiency. Section 30 provides for penalty for contravention. Section 32 deals with the general provisions relati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s into action and strikes down action of the legislature or the executive which violates the guarantee of equality. The concept of reasonableness and non-arbitrariness pervades the entire constitutional scheme. It is a golden thread which runs through the whole of the fabric of the Constitution. Article 14 is not limited to the formula of discrimination initially laid down. The scope of Article 14 has been noticed in Harbilas Rai Bansal (supra). It has held that, to be permissible under Article 14, a classification must satisfy two conditions, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons and things that are grouped together from others left out the group, and (ii) that the differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different basis, but what is necessary is that, there must be a nexus between the basis of classification and the object of the Act under consideration. B. Narasimha Reddy Ors. (supra) has held that, the doctrine of arbitrariness is not restricted to executive actions only, but also applies to the legislat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iminal Law Journal 735). 41. The Act of 2017 seeks to regulate clinical establishment. As noted above, a medical practitioner satisfying the definition of a clinical establishment comes within the fold of the Act of 2017. According to the Advocate General, the need to regulate the medical profession has been noted by the Supreme Court. In Shivram (supra), in a suit for damages, against a doctor in the employment of the State, on account of a child being born in spite of the wife undergone a tubectomy operation the Supreme Court has observed that, the medical profession, is developing a tendency to forget that self-regulation which is at the heart of their profession is a privilege and not a right and a profession obtains this privilege in return for an implicit contract with society to provide good, competent and accountable services. It has also observed that, self-regulatory standards in a medical profession have shown a decline and this can be attributed to the overwhelming impact of commercialization of the sector. It has noted reports against the doctors engaging in exploitative medical practices, misuse of diagnostic procedures, brokering deals for sale of human organs, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce is required to treat a patient at the consultation chamber. Therefore, a doctor undertaking a private practice has to obtain registration under the Act of 2017 and thereby throw himself into the rigours of such Act when such doctor is in private practice, while the Act professes to regulate the large clinical establishments. True, the definition of clinical establishment as appearing in Section 2(c) of the Act of 2017, makes a distinction between a medical clinical and a medical consultation clinic. A person engaged in a medical clinic has to take a registration under the Act of 2017. Medical consultation clinic stands outside the scope and ambit of the Act of 2017. For a doctor to run a medical consultation clinic and stand outside the scope and ambit of the Act of 2017, the doctor concerned, cannot treat a patient at such medical consultation clinic. A medical consultation clinic will be used solely for the purpose of consultation and advice. The Act of 2017 does not take away the choice of an individual doctor to carry on its profession as a doctor and have a medical clinic or a medical consultation clinic. If a doctor is required to treat a patient in the course of consultat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... serve the society. The nature of the profession and the oath that a doctor takes, requires a doctor to put service to the society prior to receipt of monetary benefits. The various provisions of the Act of 2017 which requires a doctor to serve the patient first and then look for the monetary return, in my view, does not infringe upon the right of a doctor to receive the monetary benefits for the services rendered or contravenes any provision of the Regulations of 2002. No regulation of the Regulations of 2002 has been placed before Court to suggest that, the Regulations of 2002 require a doctor to obtain the monetary benefit first before treating a patient, rather it is to the contrary. The Act of 2017 allows a doctor to recover the costs of treatment from the patients or the service recipients or their representatives in due course and through the due process of law. The provisions of the Act of 2017 seeks to arrest a disquieting trend in the medical profession to detain a service recipient, not to extend appropriate and adequate medical facilities, till such time the costs and exorbitant at that, are realized in advance. That surely is not the oath of a doctor. It has not been s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2017 seeks to regulate public health. It seeks to regulate private hospitals and dispensaries. Therefore, it can be said that the Act of 2017 is within the legislative competence of the State Government to legislate. 48. K.T. Plantation (P) Ltd. (supra) has held that, the classification created by a statute must have reasonable nexus with the object to be achieved. If the object can be achieved by an amendment to an existing statute, then a new Act need not come into being noted above, the State Government had felt that the existing laws were not sufficient to tackle the issues obtaining at the private health care sector. The legislature is deemed to know the subject on which it is legislating on. It has not been substantiated that the provisions of the Act of 2010 were sufficient to provide for all the areas now sought to be covered by the Act of 2017. 49. Chapter V of the Act of 2017 lays down the adjudicating authority for adjudicating complaints with regard to contravention of Sections 27, 28, 29(1) and 30 of the Act of 2017. The Act of 2017 contemplates constitution of the West Bengal Clinical Establishment Regulatory Commissioner. The powers and functions of such Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Act of 1986 for compensation with regard to deficiency in services rendered. He may also make a complaint under the Act of 2017. The complaint under the two Acts would operate in different fields although at a given level, both the Acts would consider grant of compensation for deficiency in services. 51. V.P. Shanta Ors. (supra) has held that, a professional man owes to his client a duty in tort as well as in contract, to exercise reasonable care in giving advice or performing services. Medical practitioners do not enjoy any immunity and they can be sued in contract or tort on the ground that, they have failed to exercise reasonable skill and care. Medical practitioners are not immune from a claim for damages on the ground of negligence. It has noted that, although medical practitioners are governed by the Indian Medical Council Act and are subject to disciplinary control of the Medial Council of India and/or State Medical Council as the case may be, the right of person to seek redress is not affected. Vishwabharathi House Building Co-operative Society Ors. (supra) has held that, the Consumer Protection Act, 1986 seeks to provide before protection of the interest o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
