Two writ petitions have so far unsuccessfully challenged the Clinical Establishments Act (CEA) 1) Dr R S Bedi vs Union of India in Punjab & Haryana High Court and 2) Dr Ashwani Goyal vs Union of India in Delhi High Court. Another petition filed in Madras High Court is still pending. Various provisions of the Clinical Establishments Act, specially the clause 12 (2) of the Act which states that all clinical establishments will provide in emergency such medical examination and emergency treatment as may be required to stabilize the emergency, were challenged.
The petitioner’s contention in Punjab & Haryana High Court was that they were only running their clinics and they may not be able to provide for facilities for stabilizing the emergency medical condition of individuals who are brought to such clinics. And those who cannot provide such facilities cannot be debarred from carrying on their medical profession. This was not accepted by the High Court. The Court observed that a clinical establishment as defined under Section 2(c) covers various types of clinical establishments. Facilities for stabilizing, expected to be provided in each such establishment, will obviously mean facilities expected from the type of clinical establishment run by an institution or an individual. An individual medical practitioner may not be expected to do something impossible by providing facilities at par with a big hospital. Interpretation of a statutory provision depends upon the situation which may arise. The provisions of the Act do not create any impossible situation so as to affect the right of the petitioners to practice the medical profession. The petition was hence dismissed in the Punjab & Haryana High Court.
The Delhi High Court also did not agree with the contention of the petitioner that the CEA infringes the right of the medical practitioners to carry on their occupation as provided under Article 19(1)(g) of the Constitution. The court held that it is the right of the Legislature to make regulatory framework in respect of healthcare delivery system and that is what is sought to be achieved. Therefore, the provisions are reasonable and protected under Article 19 (1) of the Constitution.
That Clinical Establishments Act will change medical practice in India for the worse is undisputed. The CEA will make medical treatment costly and there will be substantial increase in paperwork and bureaucratic meddling. It is anticipated to spawn an Inspector Raj, which is best known to flex its muscles against small establishments and entrepreneurs. In India, this segment is mainly a nursing home with a husband-wife team with some visiting doctors providing indoor facility and routine surgeries. This is the segment where bulk of the cholecystectomies and caesareans in the country are performed. These small and medium healthcare establishments are expected to be hardest hit and facing closure.
The judicial view is that regulation of private and other medical establishments is needed. The point where we can get relief is in the minimum standards of facilities and services, minimum requirement of personnel, and provisions of maintenance of records and reporting as may be prescribed. What needs to be done is get registered provisionally. Wait for minimum standards to be prescribed and then approach courts on discrimination between various categories in the minimum standards. The requirements in draft minimum standards for the government sector are vastly different than for the private sector as also for AYUSH even for establishments of similar size providing similar facilities including surgery. Discrimination against allopathic establishments is very visible in the draft minimum standards and that is where we will need to target and strike.
First step will be the use of RTI (Right to Information) to collect information of the standards, personnel, reporting and record maintenance of all government and Ayush establishments in the region. This needs to be done in all districts and states. Once this data is available then we will have a strong case of our constitutional rights against discrimination being invoked under Article 14 of the Constitution.
Meanwhile any representations being made to Govt should try for following amendment: In Section 13 of the principal Act after subsection (2) the following section shall be inserted namely —
“(3) Notwithstanding anything in this Act, the Central Government shall while prescribing minimum standards for different categories of clinical establishments, relax such conditions of adherence to the standards for small and medium healthcare establishments (SMHCE) which include clinics and small nursing homes (less than 20 bed), as it may deem appropriate, having regard to the local conditions, as determined by the state council or union territory council as the case may be, or by the state government concerned. Minimum standards prescribed for SMHCE should however be the same for government as well as private sector establishments. There should also be no discrimination between allopathic (modern medicine), alternate systems (Ayush), and Yoga and Sowa Rigpa establishments of similar size and facility in terms of minimum standards required to be fulfilled for registration under the Clinical Establishments Act.”
We all have to work together to achieve positive results. MLAG (Medicos Legal Action Group) at least will coordinate and work with the IMA HQs (Indian Medical Association headquarters) wherever required for this and other similar issues. Inadequate small poorly prepared efforts frequently close the way for a properly prepared campaign. If we pool resources nothing is impossible.
Dr Neeraj Nagpal
Convenor, Medicos Legal Action Group
Ex-President, IMA Chandigarh