Marketing of medical care.RK Gandhi
Keywords: Health Services, legislation &jurisprudence,Human, India,
Lately, a wave of resentment and rebelliousness is sweeping over the medical profession. The cause is judgement by a consumer court that medical disputes are to be taken as consumer disputes and as such, tried by one of the Consumer Redressal Agencies.
Before going into the legal intricacies, let it be made abundantly clear that the present submission is not to defend or condone the misdeeds of those professionals who are a blot to the profession. Let it also not be misunderstood that the profession is averse to consumer movement or to professional accountability. What one is opposing is denigration of medical service and defamation of the profession. Let a proper Act to try and punish the guilty be drafted and enacted. Let the profession get a chance to react and voice its reaction. Medical profession cannot and should not claim any extra immunity and even if it claims, no preferential treatment should be given.
The contention of the Commission is based on a rather convoluted connotation that medical care is a professional service rendered by a doctor (called a trader) to a patient (consumer) who will pay for the service rendered. Medical service is termed as a commodity and the patient's complaint against a doctor is counted as a consumer dispute. The logic behind this contention and its corroborative points are quite tenuous and far-fetched.
An argument against the contention of the commission, that is difficult to counter, is that nowhere in the Act, there is any mention of medical service. How, then, does medical service get dragged into the consumer net? This point, however, does not detract from the Commission, which promptly advances the two propositions to justify the jurisdiction of CONSUMER PROTECTION ACT (CPA) 1985 over medical service. These propositions are………….. a, Definition of 'service' in clause 2 (1) (o) and (b) Mind of the Parliament during the enactment.
Clause 2 (1) (o) defines the word 'service' as "A SERVICE OF ANY DESCRIPTION, which is made available…………” The Commission rightly lays emphasis on the words of any description, which according to the Commission (again rightly) are quite comprehensive and all-inclusive. These words, therefore, embrace the entire gamut of the professional services and this would include medicine also. So far, the contention appears very sturdy and solid and it would be virtually impossible to pick a hole in it -the logic is impeccable and the argument unassailable. The strength of the contention depends on whether this is the sole reference to the word 'services' in the entire Act. If so, the definition given to 'service' would acquire finality and would prevail.
However, it is not so; the same clause, after a few more words, expands on the word 'services' and proceeds to identify, itemize and enlist certain services in a group. The list includes as many as 13 services, but not medicine, even though some of the enlisted services are in no way higher than medicine in importance. Interestingly, the end of the list “..............entertainment, amusement or the purveying of news or other information" does not indicate that there was any intention of including any more services. Were the list incomplete, the list would end with words like ‘etc.’ ‘and others’ of some such indication of incompleteness. or of a desire to include some more items at a later date. An inescapable surmise that emanates from the presented data is that the list, as it is given in the Act, is comprehensive and conclusive. Undoubtedly, Medicine was neither thought of nor was it meant to be included.
A basis for enlistment: A close scrutiny of the list' reveals that, though the items in the list look diverse and disparate, they all have one thing in common. They all have some commercial relationship with commodity or its marketing. Medical service, by no stretch of imagination, could be constructed to have any commercial relevance to commodity, goods.or household article, and hence could not have been planned to be included in the list; and so it was not.
There are similar strong arguments that could pull to pieces, also, the already tottering other pillar, which symbolizes the second enunciation, namely, "though the medical service does not figure anywhere in the Act, it was very much in the minds of those who were drafting the Act and hence it is presumed to have been included!" The country has a reason to be proud of such astute mind readers!
The enunciation, however, has evoked a number of natural queries demanding the answers.
1. If the subject of medical service was in the mind of the architects of the Act, what prevented them from putting it on paper by adding just two words?
2. It medical service was in their mind, why did they not give some indication?
3. In the absence of any clue pointing to the presence of medical service in their mind, how did the Commission come to know about it?
All these queries, so far, have remained unanswered and the validity of the surmise remains as questionable as ever.
A likely corollary, with a touch of mysticism that may emanate from the last query (No. 3) is "HOW DOES ONE KNOW SOME ONE ELSE's MIND?” The Commission deserves all the KUDOS for this mysterious ability of reading someone's mind, and that too, the mind of a legislator, which so frequently is not known even to the legislator himself!
One sincerely hopes that intellectuals in the country will not take a ready recourse to such an illusory exercise of digging into someone's mind in order to retrieve what one wants for proving one's point.
The Act, when it is applied to medicine, starts seething with several legal inadequacies and improprieties. To mention only a few .............
1. Composition of the commission: The three member adjudicating body has no medical member, but it does have one lady member (it is obligatory to have one lady member). The mandatory inclusion of a lady is understandable so far as consumer articles are concerned. Her superiority in this regard may not be questioned. But in medical disputes, her mandatory inclusion (and that too, to the exclusion of a medical member) defies common logic! No legislator who has drafted the ACT, would commit such a blunder. In fact, he has committed none, because the draft is excellent for commodity for which it has been designed. What better evidence would one want for a conviction that this ACT is designed for commodity and not for medicine.
2. Chaotic justice: As at present, the Medical Council has been overseeing the conduct and behaviour of the professionals and has been adjudicating patients' complaints against doctors for years. The fact that the Council has been allowed to do it for centuries is in itself a proof of the litigants' satisfaction with the conduct of the trial. The only snag is that Council can punish the doctor either by issuing a warning or by striking his name off the Register, but the Council is not vested with any power to award financial compensation. Average human rationality and reasoning would dictate a simple and yet effective solution, which will be …………..Give the missing power to the Council. However, Instead of doing this, the Administration has thought it fit to hand this power over to a newly constituted CDRA. The profession has no objection to this arrangement, provided justice is not vitiated.
However, an unpleasant predicament is likely to unfold any time ...................
For the same complaint by the same patient, the same doctor may have to stand two trials by two different courts. He will be hauled up before Medical Council for disciplinary action and he will have to appear before consumer body for a question of damages. He will be an enviable beneficiary of two verdicts and two punishments FOR ONE 'CRIME'!
Heaven help the legal profession and judiciary if the two verdicts happen to be contradictory!
3. Socialist justice Clause 2 lays it down that benefits of CPA will accrue only to those who have paid for the service. No provision is made for relief to the poor, who must suffer in silence. Much worse will be the plight of those in free hospitals and dispensaries. These patients can be handled heartlessly and with impunity. What a noble example of equality and socialistic pattern of society!
4. EQUITY?A doctor can be sued even with frivolous complaints but the consumer cannot be countersued for this. In the Act, there is no provision for a penalty for making vexatious complaints. The consumer can go on sending frivolous, flimsy and fictitious complaints without any fear. Worse still, he may even blackmail the doctors, using a threat of a serious or multiple complaints, so that a doctor may end up spending more in court than in his clinic.
There are many more legal points, which militate against either the fairness of the Act or its very viability. On the whole, the act, which is stout and solid, appears to weaken itself when applied to medicine. It finds itself incapable of withstanding the force of a volley of valid arguments. Be that as it may, what worries one most, is not the Act itself, bit its aftermath.
II. Aftermath of the act. The most hideous scenario will be unfolded when the aftermath of the Act will start unrolling itself.
1. Health scene: Undoubtedly, what awaits us is a ghastly scenario, which will be characterized by disintegration and denigration of the structural framework of health-care, demolition of the superstructure built over the centuries, dissolution of doctor-patient relationship, distortion of medical ethics (or whatever is left of it), deformation and difigurement of medical practice, dislodgement of the doctor from the high pedestal, disablement of the patients because of poor medical care, dissemination of dreadful diseases, and the worst, debasement of human values which have made humanity what it is.
The list appears to be too imposing and no less frightening. But without good health, humanity will cease to be what it is. One does not value health till one loses it.
The two sensitive segments of health, which will perhaps bear the burnt of the impact are... (a) privilege of privity and (b) personal involvement. It is difficult to imagine medical service shorn of these two vital elements. What one shall then get, shall be, not medical service, but only its caricature.
2. Privileged communication: The patient often has something to divulge only to a doctor who is supposed to keep it protected under the code of medical ethics. This presupposes a deep interpersonal relationship and a long-term cultivation of trust and faith. Can one expect such sublime sentiments to survive after medical service is relegated to the level of commodity?
3. Personal involvement: A real medical care evolves out of deep interest that a doctor takes in the patient's personal and family life. With the Act in force, what sort of personal feelings would survive and thrive between a doctor and a patient?
History has it innate in itself that it must repeat. However, every time that it does so, the cost will be escalating astronomically. Sanity, sobriety and sagacity demand that humanity learns from its past and it must be ensured that rationality and reason are not allowed to be transcended by vanity and venality. Infirmities of the impugned Act have been ruthlessly revealed and a point has been emphatically brought home that the Act is neither designed, nor devised, nor drafted, no desired for medical service.