Relief: Now NMC Can Stay State Medical Council Disciplinary Actions against Doctors
New Delhi: In a decision that may bring relief to doctors across the country, The Ethics and Medical Registration Board (EMRB) of the National Medical Commission (NMC) can now put a stay on the penalty actions taken by the State Medical Councils against doctors.
This is going to bring a major relief to the medical professionals in the Country, who had earlier no choice but to serve disciplinary actions until the NMC Ethics Board could take a call regarding their plea.
State Medical Councils act as the Apex medical bodies in the respective States and they have the power to take a decision on the complaints of professional or ethical misconduct against the doctors. If found guilty, the registered medical practitioners face disciplinary actions that might include their suspension for a specific period of time or removal of their names from the medical register.
However, the doctors can challenge the orders passed by the State Medical Councils and file a plea to the Ethics and Medical Registration Board of NMC within the appeal period, which is sixty days of communication of such a decision.
In this regard, the Section 30 (3) of the NMC Act 2019 mentions, "(3) A medical practitioner or professional who is aggrieved by any action taken by a State Medical Council under sub-section (2) may prefer an appeal to the Ethics and Medical Registration Board against such action, and the decision, if any, of the Ethics and Medical Registration Board thereupon shall be binding on the State Medical Council, unless a second appeal is preferred under sub-section (4)."
Section 30(4) clarifies that the aggrieved medical professionals can approach the NMC board within sixty days of the State Medical Council order. It reads as follows:
"(4) A medical practitioner or professional who is aggrieved by the decision of the Ethics and Medical Registration Board may prefer an appeal to the Commission within sixty days of communication of such decision."
Although EMRB acts as the Appellate authority against State Medical Council orders and its decisions are binding on the State Councils, until now it could not stay the orders already passed by the Apex medical bodies of the respective States.
This would mean that by the time the NMC Ethics Board could decide the appeals, the doctors had already served their penalties. This would make the entire point of appeal infructuous.
The issue was raised by a doctor in a plea before the Bombay High Court. Holding the doctor guilty for violating Articles 1.1.1, 1.1.2, 1.4.1 and 1.9 of Chapter-I of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, the Maharashtra Medical Council (MMC) had penalized the doctor after finding him negligent and involved in gross professional misconduct.
Consequently, MMC directed removal of the doctor's name from the register of the Council for a period of two months. When the doctor approached the EMRB and challenged the State Medical Council order, he also made a plea for grant of stay to the State order during the pendency of the appeal. Getting no response, he approached the Bombay High Court and consequently he was informed by NMC that it could not consider his stay application since there was no provision in the NMC Act of 2019 to grant interim relief.
When the matter came to be considered before the HC bench, the counsel for the doctor argued that it was likely that even before the NMC board could decide on the appeal, the order of punishment of removal of the petitioner doctor's name from the register of the Council would be implemented. This way the appeal itself would become infructuous.
After considering the matter, the Bombay High Court bench comprising of Justices A.S Chandurkar and M.S. Jawalkar held that the NMC ethics board had an implied power to put a stay on the State Medical Council proceedings and noted, "we are of the view that on application of settled legal principles it would have to be held that the Ethics and Medical Registration Board has an implied power to stay the disciplinary action taken against a registered medical practitioner or a professional by the State Medical Board during the pendency of an appeal preferred by such aggrieved registered medical practitioner or professional under Section 30(3) of the Act of 2019."
The bench observed that no provision for staying the effect of the disciplinary action would mean that "by the time the appeal is decided the penalty awarded by the State Medical council would be suffered."
Therefore, the HC bench mentioned in the order, "It is in this backdrop that the incidental power to atleast preserve the status quo ought to be recognized as existing with the Ethics and Medical Registration Board while entertaining an appeal under Section 30(3) or with the National Medical Commission while entertaining an appeal under Section 30(4) of the Act of 2019. Recognition of such incidental power to stay the adverse action taken against a registered medical practitioner or a professional till the time such appeal is decided would make the appellate remedy more effective rather than being a remedy whereunder only final relief could be granted but no interim relief in aid of any final relief could be granted."
Holding that the NMC Ethics Board possesses incidental powers for granting stay, the bench further mentioned in the order dated 06.04.2022, "The Ethics and Medical Registration Board while hearing an appeal under Section 30(3) of the Act of 2019 possesses incidental powers which power would include granting stay to an order of penalty imposed by the State Medical Council under Section 30(2) of the Act of 2019. The mode and manner in which such incidental power is to be exercised and the terms and conditions to be imposed while exercising such power would be a matter within the discretion of the Ethics and Medical Registration Board."
At that time, the Bombay High Court had also provided interim relief to the petitioner doctor by approving the grant of stay on the MMC order.
Exercising the new found powers for staying the orders passed by the State Medical Councils, the NMC Ethics Board recently provided interim relief to a Delhi based medical practitioner, Dr. Agarwal.
The Delhi Medical Council in May 2022 had decided to remove his name from the State Medical Register for a period of 90 days. However, writing to the Delhi Medical Council, the Ethics and Medical Registration Board of NMC referred to the Bombay High Court order and mentioned, "the EMRB in its emergent meeting held on 25th April, 2022 decided to comply with the decision of the Hon'ble High Court of Bombay, Nagpur Bench and consider requests by Medical Practitioner/Professional for grant of stay on an order of penalty imposed by State Medical Councils as and when they are received through appeal filed before EMRB till new regulations are notified in Gazette."
Referring to the plea by Dr. Agarwal, the NMC Ethics board noted, "As the process of appeal usually takes around 6 months to be completed, Ethics and Medical Registration Board (EMRB) in its internal meeting held on 12.07.2022 considered the matter regarding grant of interim stay against the operation of the Order dated 12.05.2022 of the Delhi Medical Council till the matter is decided by EMRB."
"After due deliberations in the matter, the EMRB has decided to stay the operation of the order No. DMC/DC/F.14/Comp. 3039/2/2022/305659, dated 12.05.2022 till the matter is heard and decided by EMRB and an order passed thereon," further read the NMC letter issued by the Deputy Secretary of EMRB.
To view the Bombay HC order, click on the link below.
https://medicaldialogues.in/pdf_upload/bombay-high-court-order-181369.pdf
