“Medical Practitioners enrolled in one branch, not allowed to practice in other Branch..”
A Decision that may be welcomed by Allopathic Practitioners, but not by Homeopaths…
The Division Bench of Allahabad high Court in its recently reported judgment in AIR 2017 ALL 105, while dismissing the Petition filed by Homeopathic Surgeon Association of India, observed that :
Members of petitioner’s association cannot be permitted to prescribe allopathic/modern medicine as is provided for under Indian Medical Council Act, 1956, by any means, as a person having studied one particular system of medicine cannot possibly claim deep and complete knowledge about the drugs of the other system of medicine, and specially when right to health and medical care is fundamental right under Article 21 read with Articles 39(c), 41 and 43 of Constitution
The Judgment is based on various other judgments of Hon. Apex Court as well as other High Courts and contains the following important points
A: “Medical Practitioners enrolled in one branch of Medicine not allowed to Practice in other branch. Transgression into other Medical Branches, not permissible“.
The Hon. High Court observed that in various decisions, the Hon. Supreme Court has reiterated that as per Indian Medical Council Act, 1956 Medicines means Modern medicines the medicine means modern scientific medicine for all its branches and includes surgery, and same is entirely different from the Indian Medicine and only a person who possess the qualification enumerated in the first schedule of this order which have been recognized and entitled to be enrolled on any State register, can only practice.
Difference between “Medicines” and Indian Medicines :
Section 2(f) of the Indian Medical Council Act, 1956 defines “Medicines” as : (f) “medicine” means modern scientific medicine in all its branches and includes surgery and obstetrics, but does not include veterinary medicine and surgery”.
Whereas Sec. 2(1)(e) defines the term Indian Medicines as” “Indian Medicine” means the system of Indian medicine commonly known as Ashtang Ayurveda, Siddha or Unani Tibb whether supplemented or not by such modern advances as the Central Council may declare by notification from time to time.”
Thus, the Hon. Apex Court in its landmark judgment of Poonam Varma Vs. Ashwin Patel 1996 (4) SCC 332, wherein a homeopath was held to be not qualified to practice Allopathic medicines and it was further observed that “32. If a person practices medicine without possessing either the requisite qualification or enrollment under the Act on any State Medical Register, he becomes liable to be punished with imprisonment or fine or both” and
Physiology and Anatomy may be same for all the pathies, but medicines are certainly different.
36. But merely because the Anatomy and Physiology are similar, it does not mean that a person having studied one System of Medicine can claim to treat the patient by drugs of another System which he might not have studied at any stage. No doubt, study of Physiology and Anatomy is common in all Systems of Medicines and the students belonging to different Systems of Medicines 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.
B : Medical Practitioners of Indian Medicine not authorised to prescribe modern medicines.
The Petitioners tried to take shelter under Government Notification dated 25/11/1992 issued by the then Maharashtra Govt. under Medical Practitioners Act, 1961, but same was held to be inapplicable to the Petitioner Association registered in different state. The notification dated 22/01/2004 issued by Central Council of Indian Medicine was also held to be inapplicable .
The Apex Court in the case of D.K. Joshi V/s. State of U.P., 2000(5) SCC 80 issued the directions thereby asking the State to initiate legal actions against all unqualified / unregistered medical practitioners”
There is difference between using modern medicines advances like X-ray, Blood – Lipid Reports, ECG, but that does not make Indian Medicine practitioners to practice as Radiologist / Pathologists / Cardiologist”
It was observed that “In the context of, practitioners of “Indian Medicine” the practitioners of “Indian Medicine” can make use of modern advances in various sciences such as radiology report (X-ray), complete blood picture report, lipids report, ECG etc for practicing in their own system. This does not mean that practitioners of “Indian Medicine” would start acting as Radiologist/Pathologist/Cardiologist. Only for the purposes of practicing “Indian Medicine” they can make use of the reports and this will not at all authorize the practitioners of “Indian Medicine” to administer and prescribe modern medicines (allopathic)”
C: Medical Practitioners Administering unauthorised Medical Treatment amounts to unfair trade practice, under Consumer Protection Act.
The Court further observed relying upon the judgment of Apex Court in the case of Bhanwar Kanwar V/s. R.K. Gupta & anr. (2013) 4 SCC 252 that “Wherein unauthorized medical treatment is administered, same is unfair trade practice and administering allopathic medicine by person who is qualified in Ayurvedic medicine cannot be approved of. Apex Court in the facts of case, enhanced the compensation amount from Rs.5 lacs to Rs. 15 lacs.”
D: Dearth of doctors cannot be the ground to allow Pharmacology course :
The Court refused the contention of Doctors based on judgment of Apex Court in the case of Mumbai Vs. State of Maharashtra and another reported in JT 2009 (3) SC 351 that since there is dearth of Doctors , but Homeopathic practitioners cannot be permitted to to undergo Pharmacology Course, against the Law.
E : Conclusion :
First of all, the applicability of this Judgment is restricted to the jurisdiction of Allhabad High Court. In other States the prescribing of allopathic medicines by AYUSH doctors may be permitted. Even otherwise, if one peruse the judgments of Apex Court, a clear-cut line has been drawn between Modern Medicine Practitioners and others. No doubt the quackery is the biggest problem the Indian Medical fraternity is facing. All the medicines branches have their own limitations and if this fact is accepted, practicing of medicines will be very easy. There may be allopaths too who prescribe aurvedic / homeopathic medicines.. Ultimately will it be correct to say that Ego about ones own pathy is the main concern..
If we see from the point of view of the common people, they may not be interested in the Degree of the Doctor, but the treatment and its effect and they will be happy if the Govt. starts integrated course with all the branches, as it ultimately beneficial for the people . It is also to be kept in mind that this judgment may be challenged in Apex Court. If no stay is granted, its persuasive value cannot be denied.
Thanks and Regards,
Adv. Rohit Erande
(you may see the judgment link : http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do?judgmentID=5287600)