Medical Council will decide: No HC relief to Aster Medcity Doctors accused of Professional Misconduct while organ transplantation

Ernakulam: The Kerala High Court recently held that the Transplantation of Human Organs and Tissues Act, 1994 does not prohibit an authority under Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002 from issuing notice and conducting inquiry regarding allegations of misconduct in transplantation of human organs.

Therefore, the Division Bench comprising Chief Justice S. Manikumar and Justice Shaji P. Chaly dismissed the appeals by the doctors who had challenged the show cause notice issued to them over allegations of misconduct in organ transplantation surgeries. 

The bench observed that Ethics Regulations, 2002 is a self contained code since it clearly specifies the procedure and manner in which disciplinary action has to be proceeded with ; and any person aggrieved by any action taken is conferred with the liberty to prefer an appeal before the higher statutory authority.

"That apart, on an analysis of the provisions of Transplantation of Human Organs and Tissues Act, 1994, we could not locate any prohibition so as to detain the authority under the Ethics Regulations, 2002, to take any disciplinary action whenever a professional misconduct is detected or to make an enquiry when a complaint is received. In fact, in the case on hand, the authority has issued only a notice to conduct an enquiry on a complaint received, in terms of the Ethics Regulations, 2002, with the intention of finding out the veracity and truth, which cannot be said to be illegal, bad, or arbitrary, taking into account the provisions of law discussed above," further observed the court at this outset.

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The complainant doctor had brought allegations of misconduct against the petitioner doctors working in the Aster Medcity Hospital, Kochi during organ transplantation surgeries conducted in the concerned hospital on 5.3.2019 and 7.3.2019. In response to the said complaint, the DME had initiated investigative proceedings and issued order dated 17.09.2019 informing the Hospital about the proposed steps that will be taken in this regard.

Meanwhile, the complainant doctor filed another complaint before Travancore-Cochin Council of Modern Medicine, Thiruvananthapuram. While the complaint was exactly similar, the complainant allegedly did not disclose about approaching the DME in this regard. Consequently, the Council issued a show cause notice to the doctors on 25.11.2019 and directed the doctors for furnishing explanation.

Challenging the said notice issued by the Council, the doctors claimed that the allegations levelled against them were defamatory in nature and contrary to the truth. They also contended that the Council of Modern Medicine cannot conduct inquiry into the allegations mentioned in the complaint since the inquiry and adjudication of such complaints can only be under the provisions of Transplantation of Human Organs and Tissues Act (THOT), 1994 and the rules framed under the Act.

Besides, the doctors also contended that apart from the 1994 Act, Kerala had also incorporated additional steps in the brain death certification process under the Kerala Network for Organ Sharing (KNOS). 

On the other hand, the complainant doctor that it is trite that a writ court would not normally entertain a plea challenging a notice issued and also submitted that challenging an order passed by a competent authority appointing a competent person to enquire into a complaint is also unheard of. Apart from this, the complainant further pointed out that the doctors could avail alternate remedy if they were aggrieved with any decision taken by the Council.

Further, the complainant contended that the professional misconduct by the doctors resulted in the death of two persons. He also argued that the complaint was filed before the Registrar of Travancore Cochin Medical Council, which is an authority empowered under the Act for inquiring into a complaint of professional misconduct. Any person aggrieved by the decision of the Registrar, is at liberty to file an appeal to the council, as provided under Section 33 of the Act and second appeal to the Government, as provided under Section 35 of the Act.

On the other hand, the complainant doctor contended that Director of Medical Education is the Appropriate Authority constituted under the 1994 THOT Act. In that respect if the DME concludes that a particular hospital has not followed any provisions contained in the THOT Act, the authority has the power for suspending or cancelling the registration of the hospital for transplantation alone as provided under Section 16 of the THOT Act.

Meanwhile, the Medical Council submitted before the Court that no penal action against the petitioner doctor has even been suggested through the notice, which is only a device to ascertain the doctors' versions about the allegations in the complaint. Therefore, the Council referred to the challenge in the petition to be highly premature and sought to reject it at the threshold itself.

The counsel for the doctors contended that the Transplantation of Human Organs and Tissues Act, 1994 provides for the regulation of removal, storage and transplantation of human organs and issues for therapeutic purposes and for the prevention of commercial dealings in human organs and issues. Therefore, it was contended that the provisions of Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 (for short, Ethic Regulations, 2002), cannot be applied going by the nature of the complaint.

At this outset, the bench referred to the 2002 Regulations and noted, "On an analysis of the provisions of Ethics Regulations, 2002, it is clear that the said regulations are made by the Medical Council of India, in exercise of the powers conferred under Section 20A read with Section 33(m) of the Indian Medical Council Act, 1956, to maintain a set of medical ethics and to regulate the professional activities of the physicians."

"Going by the provisions of the Ethics Regulations, 2002, we could also gather that clear provisions are made with respect to the Code of medical ethics and duties and responsibilities of the physician in general, wherein it is specified that the physician shall uphold the dignity and honour of his profession, and that the prime object of the medical profession is to render service to humanity; reward or financial gain is a subordinate consideration; and whoever chooses his profession, assumes the obligation to conduct himself, in accordance with its ideals," it observed further.

Referring to the complaint, the bench held that

"It may be true, as per Regulation 7.5 that Conviction by Court of Law for offenses involving moral turpitude/Criminal act, might also be a ground for initiating disciplinary action against a physician. However, that by itself will not detain the authority under the Ethics Regulations, 2002 to take disciplinary action, if any of the conduct/act of a physician is a professional misconduct. That is why, Chapter 8 dealing with punishment and disciplinary action, is empowering the authority therein to ensure that whenever a complaint is received in respect of professional misconduct, it should be investigated/enquired into and take appropriate action."

Therefore, observing the 2002 Regulations to be a self contained code specifying the procedure and manner of disciplinary action, the bench observed,

"Therefore, considering the facts and figures, and the law as above, we are of the considered opinion that the notice issued by the Deputy Registrar, Travancore-Cochin Council of Modern Medicine, respondent No.2, to conduct an enquiry, is in accordance with law."

"That apart, going through the provisions of Transplantation of Human Organs and Tissues Act, 1994 and Ethics Regulations, 2002, we are of the opinion that the statutory authority was duty bound to conduct necessary enquiry or investigation when a complaint is received even from a third person, including a physician because, even that physician has a duty to expose unethical conduct on another physician and that the truth and reality of the allegations in the complaint can be found out only if an enquiry is conducted," further observed the bench.

Dismissing the petition, the order stated, "Considering all the above aspects and statutory provisions, we do not think that the appellants have made out a case of any jurisdictional error or other legal infirmities, justifying interference of this Court in an intra court appeal filed under the provisions of Kerala High Court Act."

To read the court order, click on the link below.

https://medicaldialogues.in/pdf_upload/kerala-hc-professional-misconduct-185565.pdf

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