OPINIONS

Opinion: What are we congratulating?

Monday, February 20, 2017

by Dr Neeraj Nagpal

We are doctors, not politicians; let us not make achievements out of our failures.

It is indeed creditable that due to actions taken by the Indian Medical Association (IMA) executives an inter-ministerial meeting was formed in November 2015 to look at the demands raised by the association. This, in itself, was a huge plus. However, to claim that the results of these inter-ministerial meetings have been a successful intervention by IMA is far from the truth.

Dr Neeraj Nagpal

On the issues that were raised by Indian Medical Association in 2015, when it had decided to go on Satyagrah, the government had then promised a six weeks time-frame in which an inter-ministerial committee would go into the issues raised by IMA and resolve the same. The committee finalized its report on March 30, 2016 when much more time than the six weeks promised had elapsed. IMA raised certain issues on the report, which were clarified on December 23, 2016, more than one year after the formation of the inter-ministerial committee (IMC). What were these demands; what was the committee’s response to these; and are these responses to our advantage?

Demand 1: IMA demands central medical protection act and strict implementation of the act by notifying it with rules and IPC (Indian Penal Code) sections to file cases against hooligans.

Result: No Central Act yet. Proposal to be examined.

What then was the inter-ministerial committee doing if not examining the issue.

Will ask the states which do not have such an Act to formulate the same. The MOHFW (Ministry of Health & Family Welfare) shall write to all state governments to strictly enforce the provisions of special legislation wherever they exist and/or enforce the IPC/CrPC provisions with vigour.

I wonder why it required a threat from IMA to go on Satyagrah and farce of inter-ministerial meetings to ask the state governments to implement the laws of the land enacted in 1860.

Demand 2: Amendment to the PNDT Act

Result: The Ministry of Health & Family Welfare will explore the methods of protecting bona fide clerical efforts in record keeping and will examine the proposal of graded punishments under the PC&PNDT Act (Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994) and accordingly will be submitted to the Central Supervisory Board (CSB).
Matter is sub-judice, so no decision can be taken.

The inter-ministerial committee (IMC) was the forum to explore and examine the proposal. If MOHFW was to explore this then there was no need for the IMC to have taken more than one year to come to this conclusion.

The honourable Supreme Court has already given its verdict in November 2016 on this issue and either way the mandate of the honourable Supreme Court was to interpret the current Act/Rules, not Amend them.

Demand 3: IMA demanded that single doctor’s establishment should be exempted from the purview of the Clinical Establishments Act and the need for pre-registration inspection may not be there for those clinical establishments, which already have entry level NABH (National Accreditation Board for Hospitals & Healthcare Providers) accreditation and above. IMA also demands single window clearance for registration of the establishments under various acts.

Result: The committee has recommended that single doctor clinical establishments (husband and wife should be taken as one unit / AOE own account entrepreneur) who are providing only consultation services may be exempted from the purview of the Clinical Establishments Act.

There is flaw in understanding the problems as regards CEA by the Team IMA. The clinics providing only consultation have not been the target of this Act. It is the small and medium nursing homes and hospitals, which take away a chunk of the hospitalization requiring patients from the corporate basket, who are the target. Since they provide facility for hospitalization / operation theatre / emergency services / labour rooms etc they are sought to be closed under the garb of this “Corporate Enacted Act” (CEA). If one goes into the details of the minimum standards of clinics providing consultation only, they are easily compliable and not like the impossible 26 licences requiring minimum standards of a 10-bed nursing home. Also, by excluding the clinics providing only consultations, the only positive feature of CEA that is its possibility to eradicate quackery will be lost in one swoop.

The committee recommends that in the exercise of such discretion, in respect of clinical establishments with entry level NABH accreditation need not be insisted upon in each case and the rules may be amended accordingly.

Whether registration is done after inspection or without also does not carry much weight. Any authorized person can inspect any registered clinical establishment at any time of the day and find faults sufficient to cancel the registration. It is only unregistered establishments, which need to be given a notice before inspection at appropriate time.

As regards single window registration the committee has said: While there can be no exemption from registration under the CEA, it is recommended that concerned Divisions of MoHFW shall explore the possibilities of bringing in legislative changes for single window registration.

Problem is that the various licences needed for registration are from different ministries like environment, finance, urban development etc and not only the MOHFW. The inter-ministerial committee was best empowered to provide a solution instead of passing the buck.

Demand 4: IMA raised the demand of deletion of the City Police Commissioner/SSP/SP or his nominee from the District Registering Authority (DRA). IMA also wanted the inclusion of a representative each from the eminent professional associations of modern system of medicines and AYUSH including IMA in DRA.

The committee recommended to delete the provision of membership of City Police Commissioner/SSP/SP or his nominee in the DRA and the inclusion of a representative from the eminent professional associations of modern medicine including IMA as well as AYUSH.

Why has AYUSH been demanded in this DRA? We needed representatives of API (Association of Physicians of India), FOGSI (Federation of Obstetric and Gynaecological Societies of India), ASI (Association of Surgeons of India), IAP (Indian Academy of Paediatrics), IOA (Indian Orthopaedic Association) etc. What we will probably get is now a representative from Yoga, Sowa Rigpa, Ayurveda, Homeopathy, Unani, if not also from their sub-specialities like Shalya Chikitsa. Inclusion of the Associations of AYUSH will dilute any advantage of having representatives of eminent professional associations of modern medicine.

Demand 5: Amendment to the CEA regarding free stabilization of emergency cases

The committee recommends that under the Clinical Establishments Rules 2012, under clause 9, VI following may be added for clarification:

In Section 12(2) of the Act the world “to stabilize” means “to provide basic life support measures”.

Problem is the Act and definitions mentioned under the Act, if are not amended, changes in Rules only will not resolve the problem. Either way this is insufficient. We should have demanded and got “Stabilization to be done under this Act whatever the definition only by establishments which declare and solicit 24-hour emergency patients and not those who do not provide or seek the same.”

Demand 6: Capping on compensation under the CPA (Consumer Protection Act) in negligence.

The committee recommended that the Ministry of Health & Family Welfare shall forward the proposal submitted by IMA as its recommendation to the Ministry of Consumer Affairs for an early action.

The inter-ministerial committee appears to have been cosmetic with no powers. This request to Ministry of Consumer Affairs has been sent long time ago even by the MLAG (Medicos Legal Action Group).

Demand 7: IMA demands “Stop Crosspathy”

As far as the existing legal position is concerned, as per the IMC (Indian Medical Council) Act, only those who are in the IMC/SMC register can prescribe allopathic drugs/medicines.

Further, as per Section 2-C (I) of the Clinical Establishments Act, only clinical establishment of a recognized system of medicines can be registered. This Act also seeks to register and regulate the clinical establishments, which have been set up and managed by the qualified professionals only.

So, already two Acts are there to stop crosspathy. What we need is strict implementation by the state governments.

Since no action has been taken taking refuge behind laws already in place, the inter-ministerial committee has conveniently glossed over the fact that state governments like Karnataka have recently passed a law permitting crosspathy to join a number of other states already permitting it.

I fail to understand the reason why we are exchanging congratulatory messages on social media when we have actually failed to achieve anything concrete on the ground. There is lots of work to be done. Let us not hide behind a camouflage of ACTION when actually we have simply fallen prey to the age-old political tool “Delay, Defuse, Detract”. Maybe I am biased but there must be objectivity in our assessment of our deeds.

Dr Neeraj Nagpal
Convenor, Medicos Legal Action Group
Managing Director, MLAG Indemnity
Ex-President, IMA Chandigarh
Director, Hope Gastrointestinal Diagnostic Clinic, Chandigarh

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