Kolkata: In a major setback to medical practitioners in the state, the Calcutta High Court has now dismissed the petition that challenged the validity of the newly introduced West Bengal Clinical Establishment Act, mainly on the grounds of its enforcement on individual medical practitioners
A petition was filed by the West Bengal Doctors Forum, challenging the various sections of the West Bengal Clinical Establishment Act, asking the court to interfere and repeal the Act. The points put forward by the counsel for the forum stated
- The definition of ‘clinical establishment’ allows an individual medical practitioner to be treated as operating in any establishment within the meaning of the Act of 2017, in the event, such individual medical practitioner, in the discharge of his duties and attending to his patients, require a medicine to be administered to the patient visiting his chamber in view of the emergent medical condition of such patient.
- The counsel for the petitioners argued 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. 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.
- The Act casts a duty upon a medical practitioner to provide immediate medical treatment to a victim of an accident, injury or trauma before reporting to the police station. Yet there are different branches of the practice of medicine and that, one branch may not have the requisite expertise to handle a situation requiring a different branch of medicine to look into the issue. As the provisions of the Act of 2017 stands, every medical practitioner irrespective of the nature or the branch of his practice is required to attend to a victim of an accident, injury or trauma. This requirement would be counterproductive to the public at large. The public instead of taking the patient to an appropriate place for proper treatment, would be looking at the first available medical practitioner in the vicinity, to provide the requisite medical treatment.The first available medical practitioner, may not be the appropriate person to administer the requisite medical help.
- The requirement of maintenance of a public grievance cell, electronic records and a help desk is neither feasible nor practicable for a medical practitioner, at any level, more so at the rural area as individual practitioners may not have such an elaborate setup which would cause additional financial burden which will be passed on to the patient.
- The statutory provisions toward the ban on the insistence of professions fees or treatment cost would impede recovery of the same and would generate mistrust and ill-will between the doctor and the patient and infringes Article 19(1)(g) and 21 of the Constitution of India.
- The power of the Commission to penalize the doctors for negligence and deficiency of not providing service is not in conformity with the existing law. The professional negligence of a doctor is to be looked at by the State Medical Council to which the doctor is registered. There is a conflict between two statutory provisions.
- 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.
- 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.
The petition stated that the cumulative effect of the provisions under challenge makes the entire Act of 2017 unworkable, infeasible, impracticable, irrational and, therefore, the entirety of the Act of 2017 ought to be struck down.
The writ petition has been opposed by the State, Medical Council of India and West Bengal Medical Council. Advocate General appearing for the State submitted that the petition as framed is not maintainable. He stated that the contentions of the petitioners if accepted, will permit loopholes to appear in the Act of 2017 which would permit unscrupulous health service providers with tools to manipulate and exploit the public at large. The doctors have social obligations. They are to serve the society. Monetary consideration for them comes later than their social obligations.
The High Court quoting the previous judgements of the Supreme court Stated
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 obtain 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, amongst other. It has felt the need for external regulation to supplement professional self-regulation.
The court then went onto observe
- On Registration of Private Medical Practitioners- 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 Act of 2017 does not impede a doctor in the discharge of his professional duties…… A doctor is to 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 Act of 2017 does not militate against the right of the doctor to recover the reasonable and appropriate cost for the treatment advanced.
- The composition of the Commission is such that, it contains people from the fields of medicine including diagnostic, public health, social services, law, finance, public administration, nursing and consumer interest.The spectrum of choice of the State Government is wide. It includes the field of medicine but does not limit itself thereto. A large section of the stakeholders are sought to be accommodated in the Commission so that a better view on a matter can be achieved.
Dismissing the petition, the court observed
As the statement of objects and reasons as also the preamble of the Act of 2017 suggest, the State Government is concerned with the lack of transparency in the functioning of the clinical establishment, private hospital and nursing homes. The malpractices and malaise obtaining in the private healthcare sector is sought to be addressed by the Act of 2017. It cannot be said that the Act of 2017 discriminates between similarly situated and circumstanced persons
West Bengal Doctors Forum, a body of 17000 doctors in the state, is now going to challenge the said judgement. Speaking to Medical Dialogues team Dr Arjun Dasgupta, general secretary of the forum said, ” The current version of the act is highly draconian and adversely impact the medical profession. We are going to challenge the judgement in a higher court.”