The recently concluded parliamentary sessions of both Houses are touted as the most productive in 67 years. Twenty-eight Bills were passed, rather steam-rolled, through; 25 Bills in 5 days. Of these, 5 Bills had been sent for scrutiny in the previous sessions, but lapsed. In this post-election session, none of the Bills were placed before any standing committee for scrutiny, let alone public domain. This raises the question: was this an ‘achievement’ worthy of all the self-congratulatory back-slapping?
Since 2014, the Pre-Legislative Consultative Policy (PLCP) has been in force, whereby any proposed legislation should be published in public domain and 30 days provided for public scrutiny and comment. This was to promote a deliberative democracy rather than a representative one; legislation should be subjected to debate even when the government in power had the strength of numbers. Further the Law Ministry was to ensure that every Ministry complied with the PLCP requirements. The blunderbuss methods used to flout the PLCP policy, were a sad denigration of democratic legislative process. Space constraints restrict me to discussing only the Bills affecting the medical profession the most.
The IMA campaigned extensively, to exclude medical services from the purview of the Consumer Protection Act (CPA) 2019. Its inclusion in the CPA 1986, resulted from a SC judgement. Indeed, in Section 2, “Definitions” healthcare was included in the initial version, and later dropped following representation from IMA. Curiously, Ram Villas Paswan, when asked specifically about this in an interview, stated “Like any other service, healthcare comes under services.” So, which is it; are doctors included in the CPA 2019 or not?
A careful reading of Section 2 (42) of the 2019 Act, and opinion from legal pundits provides the answer. This paragraph states – “‘service’ means service of any description available to potential users and includes, but not limited to the provision of facilities in connection with banking, financing,” etc; the key words being “includes, but not limited to”. Therefore, even if not specifically mentioned, a service may be included. The real catch is at the end of the paragraph; “does not include the rendering of any service free of charge or under a contract of personal service”.
Legal opinion states that there is a difference between a “contract of service” and a “contract for service”. The former relates to a master-servant relationship as with an employer/employee. The latter relates to any individual contracting a service for a fee; as in a medical consultation and treatment. It therefore appears that healthcare remains included even though not specifically mentioned; and the medical fraternity has been short-changed.
A provision in the new Bill states that the complainant may file the complaint either at the place where the cause of action occurred, or his place of residence. In short if a patient travels from Chennai to Delhi for treatment, which is by no means unusual, he may file the complaint either in Chennai or Delhi. Considering the time taken to settle complaints, one can only imagine the plight of defendants having to travel to Chennai for every hearing. Bear in mind that penalties for frivolous complaints have been removed. Claims up to Rs 1 cr will be dealt with by District Commission, but this amount will be based on the fees paid for services. The Commission however, is in no way restricted by this amount in deciding the quantum of award. In case of an appeal, the appellant must deposit 50% of the awarded amount. The “National Medical Commission” Bill also contains a number of contentious issues which shook up the healthcare sector. The original version provided for a bridge course to create “Community Health Providers” (CHP) to cope up with the shortage of doctors in rural areas. This course would be open for AYUSH and paramedical workers enabling them to practise allopathic medicine prescribing specific medicines independently, and others under supervision. Following objections by the IMA, the “bridge course” was deleted. But the Bill still retains a provision for CHPs in section 32. Furthermore, section 57 (zm, zn, zo), provides for powers to make regulations relating to the registration, licensing, extent, and circumstances for CHPs. In other words, dropping the term “bridge course” made no difference.
Why is a cadre of CHP required? The government in a publication entitled FAQs on NMC, answers by highlighting the shortage of doctors in rural areas. Even as I write this, reports have emerged of a 73-year-old doctor, working post retirement, without remuneration, being brutally beaten to death in a tea estate in Jorhat, Assam, for arriving 30 min late. He was expected to be available round the clock, 7 days a week. With such levels of insecurity, and the pathetic facilities in rural centres, is it any wonder that 25% of posts in rural centres lie vacant? Creation of CHPs will produce a new breed of quacks, who have no fear of imprisonment as it has been removed in the NMC Bill; they can only be fined. The government is keenly promoting the AYUSH system of therapy as a viable alternative to allopathy. With 7.63 lakh registered AYUSH practitioners, this workforce can be mobilised, to improve the doctor patient ratio to 1:884, from the current 1:1655, and above the WHO recommendation of 1:1000, without resorting to a bridge course short cut to allopathy.
Political posturing aside, if the govt is really convinced about the efficacy of AYUSH, let the practitioners enter the system along-side allopathy. After all who in his right mind would struggle for seven years for an MBBS degree when a six-month bridge course would do.
Power intoxicates, and absolute power intoxicates absolutely. (Apologies to Lord Acton). Let us hope sobriety returns urgently.
(The writer is a founder member of the Voluntary Health Association of Goa)
