Madras HC slams Medical Council for removing gastroenterologist's name, gives 14 pointer guidelines
Chennai: Slamming the Tamil Nadu Medical Council's decision of removing a gastroenterologist's name from the medical register without providing any opportunity of defence to him, the Madras High Court has set aside the punishment of suspension imposed by the council.
Noting that the petitioner gastroenterologist was only a witness in disciplinary proceedings initiated against another doctor, the HC bench comprising of Justice R. Mahadevan observed that the doctor was in no way connected to the false medical certificate issued by the main accused doctor and therefore, there is absolutely no ground for taking disciplinary action against the petitioner doctor.
Holding so, the bench has directed 14 pointer guidelines in the new Regulations that are to be framed under the National Medical Commission (NMC) Act, 2019 and to be made as an SOP for the purpose of effective complaint-handling mechanism, and avoid unnecessary allegations against the Medical Board.
"Before parting, this Court wishes to observe that it is the responsibility of the Medical Council to proceed against the medical practitioners, if there is any breach or violation of the Standard Operating Procedures (SOP) or instructions given from time to time. At the same time, the Medical Council also owes a duty to protect the medical practitioners, who are rendering yeomen service for the betterment of the general public, from the onslaught of frivolous complaints or to proceed against them in a hasty manner," further noted the bench as it issued the guidelines.
The case goes back to 2015, when the concerned Gastroenterologist while working as a consultant at Fortis Malar Hospital, Chennai, had examined a patient suffering from symptoms of disorientation, generalized weakness, giddiness and turbid urine. Although the condition of the patient improved initially, it deteriorated suddenly and despite the best treatment, the patient expired.
Following this, the daughter of the patient lodged a complaint against another doctor before the Tamil Nadu Medical Council and alleged that the doctor had issued a false fitness certificate to the patient, based on which, the son-in-law of the doctor registered various properties worth about Rs 50 crores in his own name. Consequently, the State Medical Council had taken action three doctors altogether in connection with the case.
Medical Dialogues had reported about the case where the Coimbatore-based doctor was suspended by the TNMC for issuing a false medical certificate and for their alleged complicity, the council had directed the Karnataka Medical Council to suspend two other doctors associated with the city hospital for "short of the standard of care, integrity, and conduct". The state medical council suggested removing the name of the former medical superintendent for one year and the petitioner doctor's name for six months.
Aggrieved by the decision, when the treating doctor (petitioner) approached the High Court, notice was issued to the TNMC, which submitted before the High Court bench that after receiving the complaint from the erstwhile Medical Council of India, the case was issued to the disciplinary committee. During the hearing, the committee found faults in the certificate issued by the main accused doctor and also summoned the primary consultant (treating physician) and the present medical superintendent of the hospital and looked into the reply sent by the doctor to the Police probing the case.
Afterwards, the committee opined, that the petitioner being the treating doctor, failed to ensure that correct reply was sent indicating the exact conditions of the patient; such failure has crippled the investigation and facilitated the accused to escape from the clutches of law; and thereby, he fell short of the integrity and conduct expected out of medical practitioner, besides violating the trust the public placed in the medical profession. Thereafter, the Committee imposed punishment of removal of the doctor's name from the Medical Register for a period of 6 months.
However, the petitioner doctor contended that there was no allegations of medical negligence against him, he was only summoned by the Committee to give evidence in connection to the case registered against another doctor, further he was not given any show-cause notice before being removed from the register for six months nor was he given any opportunity of cross-examination.
On the other hand, the State Medical Council placed reliance on the Tamil Nadu Medical Council Code of Medical Ethics (Professional Conduct, Etiquette and Ethics) Regulations, 2003, which prescribes an inclusive definition of professional misconduct; the different acts of misconduct given in the said Regulation are only extensive and not exhaustive; and the violation of any provision of the Regulation is a ground for action under professional misconduct. According to the Regulations, if a medical practitioner is found guilty of professional misconduct, he may be awarded punishment which includes removal of name from the register of medical practitioner permanently or for a specified period.
After listening to the contentions the bench referred to the Tamil Nadu Medical Council Code of Medical Ethics (Professional conduct, Etiquette and Ethics) Regulations, 2003. Referring to the Code, the bench noted,
"That apart, a perusal of the provisions of the Code would reveal that the procedure to be adopted in disciplinary action for professional misconduct against medical practitioners is completely absent. The Code is bereft of the stages to be followed from the initiation till end, in case of complaints are received against the medical practitioners. This requires a complete overhaul of the Code of Medical Ethics in the new Regulations to be framed under the NMC Act, 2019."
"Therefore, this court deems it fit and appropriate to suggest certain guidelines to be included in the new Regulations that are to be framed under the NMC Act, 2019, in order to establish a fair and reasonable disciplinary procedure in the interests of the medical professionals as well as the public in general," noted the Court.
Referring to the present case concerning the petitioner doctor, the bench noted that the doctor was in no way connected to the false medical certificate issued by the main accused doctor and therefore, there is absolutely no ground for taking disciplinary action against the petitioner doctor.
Further referring to the submissions made by the doctor that he was caught unaware of the action taken against him behind his back and taking note of the facts that the copy of the report was not furnished to him, the enquire was not against the petitioner doctor, he was not given any chance to cross examine the witness, the bench noted that the "violation of the principles of natural justice has caused serious prejudice to him."
"Therefore, this court is of the opinion that without any complaint, the act of the disciplinary committee being quasi judicial authority, to recommend for imposition of punishment on the petitioner, that too, without providing any opportunity to him, is wholly unjustified and the same is liable to be set aside," stated the order.
Before parting, the Court also noted that just the way it is the duty of the medical council to take action against doctors if there is any breach of duty, similarly, the Council also owes a duty to protect the doctors from the onslaught of frivolous complaints or to proceed against them in a hasty manner.
Noting that the Medical Council is expected to act in such a manner that "every area connected with the complaints can be meted out, which will pave way for reasonable as well as legally based decision to be arrived at," the bench suggested some guidelines to be included in the new Regulations that are to be framed under the NMC Act, 2019 and to be made as an SOP for the purpose of effective complaint-handling mechanism, to avoid unnecessary allegations against the Medical Board.
The guidelines are as follows-
(a) The Code/Regulations should enunciate in general the duties bestowed by law on a registered medical practitioner. These duties and responsibilities are standards to be met by all medical practitioners in general.
(b) After enumerating the general duties and responsibilities expected from a registered medical practitioner, certain specific duties and responsibilities, the violation of which would entail disciplinary action, would be construed as 'professional misconduct' to be enumerated in a list of instances that are illustrative. A further guidance is to be issued in the Regulations itself as to which other further instances of misconduct may be treated by the disciplinary board or the superior Courts as qualifying under the term 'professional misconduct' that would entail disciplinary action against medical practitioners.
(c) Thereafter, a complete stage-wise guidelines/ mechanism is to be envisaged under the Code/Regulations from the time of filing of the complaint by an aggrieved person to the registration of such a complaint with the concerned medical council and the procedure to be followed thereafter.
(d) Once a complaint is received from an aggrieved person, the State Medical Council/Ethics and Medical Registration Board, as the case may be, may issue a show cause notice to the delinquent medical practitioner, annexing a copy of the complaint received and calling upon an explanation in detail from the medical practitioner, within a time frame to be fixed by the Council. The medical practitioner may submit his explanation within the time frame granted and the State Medical Council/Ethics and Medical Registration Board may, after considering the explanation given by the medical practitioner, constitute an enquiry committee consisting of experts in the field with specific reference to the field of medicine with which the medical practitioner is associated.
(e) After constitution of committee, notice is to be issued to the medical practitioner as well as the complainant and both parties shall be heard in person and relevant oral as well as documentary evidence shall be recorded by giving enough opportunity to both parties in the presence of each other. The principles of natural justice, as required in quasi-judicial proceeding, will have to necessarily be followed as the proceedings may end in punishments which would entail civil consequences to either party.
(f) After completing enquiry, the Enquiry Committee has to submit its detailed report encompassing all the evidence recorded before it by both parties and come to an informed decision on its recommendation to the disciplinary board of the State Medical Council / Ethics and Medical Registration Board. The Enquiry committee will have to indicate its finding on the veracity or otherwise of the complaint as well as its finding on whether the medical practitioner is guilty of 'professional misconduct' under the Regulations/Code.
(g) In order to make the disciplinary proceedings free from any loopholes and to avoid multiplicity of proceedings, the report of the enquiry committee is to be made final and binding on the disciplinary board of the State Medical Council/Ethics and Medical Registration Board. On receipt of the report of the enquiry committee, the Disciplinary Board of the State Medical Council/Ethics and Medical Registration Board, as the case may be, if the medical practitioner is found guilty, may decide on a proposed punishment and issue a show cause notice to the medical practitioner on the only ground of the proposed punishment, call for his remarks thereon and thereafter pass orders imposing punishment on the medical practitioner.
(h) The disciplinary board of the State Medical Council/Ethics and Medical Registration Board will have to a permanent tenure, fixed three-member body (constituted by election by the Commission from amongst its members) that will function as the disciplinary authority for the purpose of professional misconduct by registered medical practitioners under the Code/Regulation.
(i) The enquiry committee will have to be appointed by the unanimous consent of the members of the Disciplinary Board of the State Medical Council/Ethics and Medical Registration Board as the case may be.
(j) The appointment of the members of the enquiry committee, however, will differ from case to case depending on the field of medicine that the delinquent officer is associated with. The enquiry committee shall be a three-member committee with one member from the field of general/internal medicine and two other members from the concerned fields as required on a case to case basis.
(k) Any complaint made to the State Medical Council/Ethics and Medical Registration Board shall be disposed of within a period of six months in total from the time of filing of the complaint to the time of either closing of the complaint or imposing punishment on the delinquent medical officer.
(l) For the purpose of giving enough and extensive powers to the enquiry committee, inspiration may be drawn from Section 42 of the Advocates Act, 1961 where the disciplinary committee of the Bar Council is given extensive powers with respect to conducting enquiry, recording of evidence et cetera.
(m) The code of ethics which presently mentions under Regulation 1.3 that medical documents and records to be preserved for a period of three years can be extended for a period of 10 years as the entire records can be digitalised and the same may be required for dealing with complaints.
(n) A period of limitation for filing a complaint against a medical practitioner can be loosely fixed by the Council while giving liberty to the disciplinary board to relax the same, if the case so deserves.
To read the Court order, click on the link below.