How to regulate advertisements by corporate hospitals? Supreme Court asks NMC, Centre

New Delhi: While considering a plea seeking directions to regulate advertisements by corporate hospitals, the Supreme Court bench comprising Justices Sanjay Kishan Kaul and Sudhanshu Dhulia on October 10 issued notices to the National Medical Commission (NMC), the Union Government, and the Ethics and Medical Registration Board (EMRB).

Filing the Public Interest Litigation (PIL), petitioner Naratan Aniruddha Malpani highlighted that even though private medical practitioners are barred from advertising, such a restriction is not applicable to corporate hospitals.

Approaching the Apex Court bench, the petitioner sought directions to frame comprehensive guidelines to be followed by the Corporate Hospitals, in order to ensure safe and ethical advertising and to have a holistic solution to the problem of illegal advertising. Further, the plea also seeks to prevent indirect branch of the statutory regulations by doctors affiliated to Corporate Hospitals.

In the plea, the petitioner claimed that as a result of unfettered advertising by Corporate hospitals, an alarming situation has been created. As per the plea, the newly emerged venture capital-funded health care start-ups have also contributed to the situation. These have created an arbitrary, intraclass distinction between medical professionals and encroached upon the rights of the patients to make informed healthcare choices, which not only results in manipulating and misleading them, but also violates Articles 14, 19, and 21 of the Indian Constitution.

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Referring to the situation, the plea argued that these instances of unethical advertising and illegal direct/indirect solicitation of work by Corporate Hospitals are in direct contravention of Regulation 6.1.1 and 7.11 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 promulgated under the National Medical Commission Act, 2019, (NMC Act, 2019) which expressly prohibit direct or indirect solicitation of work by medical practitioners whether practising independently or as part of a clinic/hospital.

As per the latest media report by Live Law, the plea pointed out that the corporate hospitals are beyond the purview of the NMC Act, 2019 and the Ethics Regulations and instead they fall within the jurisdiction of Clinical Establishments Act (Registration and Regulation) Act, 2010.

The plea argued, “That this dichotomy results in a situation wherein the National Medical Commission (NMC) possesses limited to no authority over the advertising strategies employed by Corporate Hospitals. Thus, it becomes evident that, despite the uniform application of the Ethics Regulations of 2002 to all physicians without discrimination, those in association with hospitals are unfairly advantaged due to the advertising tactics employed by hospitals, thereby contravening the fundamental principles embodied in Regulation 6.1.1 and 7.11 of the Ethics Regulation of 2002. That such arbitrary intra-class distinction is in gross violation of fundamental rights guaranteed under Articles 14, 19 and 21 of the Constitution.”

Further, the plea also penned down the statement of Objects and Reasons of the NMC Act, 2019, and argued that the Statement makes it clear that the Act is meant to promote equitable and universal healthcare by making the services of medical professionals accessible to all citizens.

“However, the unfair advantage that Corporate Hospitals have over private medical practitioners, is on the contrary are indirectly giving corporate health care a boost at the cost of driving up health care costs and making healthcare unaffordable to the majority of the citizens of India, thereby making them inconsistent with the object of the NMC Act,” stated the plea.

The petitioner argued that the Corporate hospitals cannot use the freedom of speech as a shield to violate the mandate provided under the Ethics Regulation of 2002. Further, it was argued by the petitioner that the right to advertise, which comes under the ambit of Right to Freedom of Speech (Article 19(1)(A) of the Constitution) and allows the Corporate Hospitals to get engaged in advertising, is subject to reasonable restrictions imposed by State (Article 19(2)).

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Referring to this, the petitioner argued that Regulation 6.1.1 and 7.11 of the captioned regulations fall within the scope of such 'reasonable restrictions'. For this, the petitioner gave the rationale that the primary concern in healthcare is the well-being of patients and excessive or misleading advertising by doctors can lead to a situation where the patients will make uninformed decisions about their healthcare and also erode the fiduciary relationship between the doctors and patients.

At this outset, the petitioner relied upon the landmark case of Tata Press Limited v. Mahanagar Telephone-Nigam, (1995) 5 SCC 139, where it was opined that even though commercial speech is a part of freedom of speech and expression guaranteed by Article 19(1)(a), commercial advertisements, which is a form of commercial speech and is protected under Article 19(1)(a), is subject to Article 19(2).