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RIGHT OF PATIENTS IN INDIA WITH SPECIAL REFERENCE TO NATIONAL AND INTERNATIONAL STATUTES AND PRECEDENTS BY: GEETHNNJALI J
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RIGHT OF PATIENTS IN INDIA WITH
SPECIAL REFERENCE TO NATIONAL
AND INTERNATIONAL STATUTES AND
PRECEDENTS
AUTHORED BY:
GEETHNNJALI J
Designation:
V year B.B.A., LL.B., (Hons)
Institution:
The Tamil Nadu Dr. Ambedkar Law University- Chennai
Introduction
A medical
practitioner is primarily a doctor/ physician (registered or certified under
law) who practices medicines. Medical practitioner diagnoses and treats the
unhealthiness of the patients whether physical, psychological or any harm. They
also refer the patient to another specialist, if necessary. Medical practitioner
plays a genuinely vital part in the society. They're responsible for society’s
adding life expectation and well- being. Indeed, during the tough times in
Covid- 19, they worked efficiently and effectively as an anterior bottom
warrior and saved lives of so numerous people. Doctors are critical to a
successful response to the Covid- 19 Epidemic. Doctors, since we all know, play
a truly important part in our subsistence that it's critical that there enjoy
rights be defended from any other wrongdoing or prejudice by few doctors
towards patients.
Legal documents on patient's rights:
In India, there
are various legal provisions related
to patient's rights
which are scattered across different legal documents, such as:
·
The
Constitution of India, Article 21
·
Indian Medical
Council (Professional Conduct,
Etiquette and Ethics)
Regulations 2002
·
The Consumer
Protection Act 2019
·
Drugs and Cosmetic Act 1940
·
Clinical Establishment Act 2010 etc.
In
2019, Charter of Patients’ Rights for adoption by National Human Rights
Commission was also released which
provides a guideline for the central and state to make legislative laws to protect patient’s rights.
Do doctors come under Consumer Protection Act,2019:
In a single line, we can say that doctors are neither included nor
excluded in the Act. The arguments and counter- arguments both remain strong till this point and is still debatable.
The core arguments that Doctors do not come under
the CPA’19 is as follows
·
Primary argument is that, that the term medical
professionals/ medical service/ health care services or anything referring to
medical field is not expressly mentioned under the definition ‘Service’. Also,
it is not mentioned anywhere else in the Act.
·
In the Consumer Protection Bill, initially the term Healthcare
was there in the definition of ‘Service’ but later was removed after receiving criticism
from many medical professionals. It was feared that if Medical Professionals come
under the Act, then they will be made vulnerable to excessive suits, many of
which would be filed to harass doctors or to evade the payment of medical
bills.
The core counter- arguments that Doctors do come under
the CPA’19 is as follows
·
Firstly, under the definition of ‘Service’ as given in
Section 2(42)- "service" means service of any description which is
made available to potential users and includes, but not limited to, the provision of facilities in connection
with banking, financing, insurance, transport, processing, supply of electrical
or other energy, telecom, boarding or lodging or both, housing construction,
entertainment, amusement or the purveying of news or other information, but does not include the rendering of
any service free of charge or under a contract of personal service;
Ø Though the definition expressly
included many services, the definition does
not limit its ambit by including the phrase- but
not limited to – in it, which
clearly gives a broader scope for the ‘service’ definition.
Ø The definition expressly mentions
only two things which are excluded, which
are services which are rendered at free of charge and services under a contract of personal
service e.g., Services provided by a
household maid (There is a master servant relationship and not supplier consumer relationship). Doctors and
Medical professionals do not fall under either of these categories.
Therefore, we
can say that Medical Professionals do come under the CPA’19.
·
Secondly, in 1995, the Supreme Court delivered a historic
decision in the case of Indian Medical
Association v VP Shantha which brought the medical profession within the ambit
of a service as defined in Section 2(1)(o) of the Consumer Protection Act, 1986
and the same is applied to Section 2(42) of the Consumer Protection Act, 2019.
·
Thirdly, the Apex court in the same previous case,
also defined that the relationship between the patient and the medical professional
is contractual in nature.
Keeping this in mind
read with Sec 2(11), CPA’19, which states-
(11) "deficiency" means any fault, imperfection, shortcoming or
inadequacy in the quality, nature and
manner of performance which is required to be maintained by or under any
law for the time being in force or has been undertaken to be
performed by a person in pursuance
of a contract or otherwise
in relation to any service
and includes—
(i)
any act of negligence or omission or
commission by such person which causes loss
or injury to the
consumer; and
(ii)
deliberate withholding of relevant
information by such person to the consumer;
We can say that Medical
Professionals are bound under CPA’19.
Though
the chances of medical professionals being harassed through excessive cases are high, the fact which cannot be
overseen, is that, to the protect the integrity of this profession, the growing cases of medical negligence are a matter
of concern, that must be kept under
check. Therefore, we can clearly state that, Medical Professionals are governed under the CPA’19. In any special cases, where the question arises
regarding Medical Professionals being a part of this act, then at those extraordinary circumstances it is at the
discretion of the Court to decide
and give answer
to its jurisdiction.
Do Patients come under the definition of consumers as per Consumer Protection
Act,2019:
As per Sec 2(7)(ii)
"consumer" means any person who—
hires or avails of any service for a consideration which has been paid or
promised or partly paid and partly promised,
or under any system of deferred payment
and includes any beneficiary of such service other than the
person who hires or avails of the services for
consideration paid or promised, or partly paid and partly promised, or
under any system of deferred payment,
when such services are availed of with the approval of the first mentioned person,
but does not include a person
who avails of such service
for any commercial purpose.
It clearly
signifies that all the patients making payments for availing health services do
come under the definition of “Consumer” by this act. Online consultation is also
included in it.
6 prescribed rights of the consumers as per Sec 2(9) of
CPA’19
Keeping in mind that patients
are consumers, the 6 prescribed rights of the consumers are also
given to patients.
(9)
"consumer rights" includes,
—
i. the right to be protected against the marketing of goods, products or
services which are hazardous to life
and property;
ii. the right to be informed about the quality, quantity, potency, purity,
standard and price of goods, products
or services, as the case may be, so as to protect the consumer against
unfair trade practices;
iii. the right to be assured, wherever possible, access to a variety
of goods, products
or services at competitive prices;
iv. the right to be heard and to be assured that consumer's interests will
receive due consideration at
appropriate fora;
v. the right to seek redressal against unfair trade practice or restrictive
trade practices or unscrupulous exploitation of consumers; and
vi. the right to consumer awareness;
In
a nutshell, the patient has the right to be informed about the standards,
quality and most importantly they
have the right to be informed about the critical conditions, the possible ways to go forward with the
situation and the possible outcomes of the treatment
(So that they could take a voluntary and firm decision)of the medical service which they are availing, the right to be
assured that the interests of patients are well taken care of, the right to be heard and they are not exploited.
The doctor must always get consent
from the patients or the attenders whoever is in the state to give consent before a treatment starts. All these
aforementioned rights are directly given to the Patients (consumers)
as per Sec 2(9) of the CPA’19.
Why to file a complaint against Medical Professionals
in Consumer court?
In Indian Medical Association v VP Shantha[1], the
Apex court held that all the other Medical Councils have rules, disciplinaries,
punishments to medical professionals in cases against him/her. So, what is need
for consumer courts in include a forum/remedy for medical negligence case? For
this the Apex court in Indian Medical
Association v VP Shantha[2] held
that Consumer Court, Sec 100 of CPA’19, is an additional remedy given to
Patients. It also stated that the procedures/remedies of Medical Council are
against practitioners and are done on disciplinary basis. The patients are not
benefited from this and they are not compensated for their loss. So, the patients
can redress their issues and can claim for damages through Consumer Forum.
The president of District forum is a
retired District Judge, the President of State
Commission is a retired State
Judge and the President of National Commission is the retired
Supreme Court judge. The Consumer Forum has the power to ger expert opinions from skilled people while
giving a fair judgement, therefore one cannot
argue that Consumer Forums do not have full capabilities to give proper judgements in complex cases relating to medical field.
Therefore, it is best to file a case in Consumer Court for any acts of Medical Negligence. The procedure for filing a case in Consumer court by patients
for any sort of medical
negligence, is same as filing
a normal Consumer protection case. The case can be filed by both online and offline mode.
Rights Provided
to Patients as per the Charter of Patients’ Rights:[3]
The charter defines
some rights of a
patient listed below:
·
Right to Information
Every patient has a right to satisfactory and pertinent information about
the nature, reason of unhealthiness, provisional verified diagnosis, proposed
examinations and operation, and possible complications to be explained at their
position of understanding in a language known to them. Patients and their
appointed caregivers also have a right to know the professional status of
various care providers who are giving service to the patient.
·
Right to Records and Reports
Every patient or his caregiver has the right to look into originals or
copies of case papers, internal patient records, and examination reports(
during a period of admission, rather within 24 hours and after discharge,
within 72 hours) This should be made available after paying applicable fees for
photocopying or allowed to be photocopied by patients at their cost.
·
Right to Emergency Medical Care
As per Supreme Court, all hospitals both in the government and in the
private sector are duty bound to supply essential emergency medical care, and
injured persons have the right to get emergency medical care. similar care must
be initiated without demanding payment/ advance, and basic care should be
supplied to the patient irrespective of paying capacity.
·
Right to Informed Consent
Every case has a right that informed permission must be sought previous
to any potentially risky test/ treatment (e.g., invasive investigation/
surgery/ chemotherapy) which carries certain pitfalls. The doctor may advance
only if concurrence has been given in writing by the patient/ caregiver or in
the manner explained under the Drugs and Cosmetic Act Rules 2016 on informed
consent.
·
Right to Confidentiality, Human dignity, and
Privacy
All patients have the right to privacy, and doctors have a duty to hold
information about their health conditions and treatment plans in strict
confidentiality unless it's essential in specific circumstances to communicate
similar information in the interest of guarding other or due to public health
considerations. Female patients have the right to be examined in the presence
of another female person during physical examination by a male practitioner.
·
Right to Second Opinion
Every patient has the right to opt for second opinion from a suitable
practitioner, of patients' or caregivers' choice. The hospital management has a
duty to respect the patient's right to second opinion and should give to the
patient's caregivers all required records and information needed for seeking
corresponding consultation without any excess cost or delay. Any kind of
discriminative practice adopted by the hospital or the service providers will
be deemed as Human Rights' violation.
·
Right to Non-Discrimination
Every patient has the right to receive treatment without any distinction
based on his or her sicknesses or conditions, including HIV status or other
health conditions, religion, estate, race, gender, age, sexual aspect,
linguistic or geographical/ social origins.
·
Right to Safety and Quality Care According to
norms
Patients have a right to safety and security in the hospital ground.
They've the right to be handled with care in an surroundings having necessary
cleanliness, infection control measures, and safe drinking water as per BIS/
FSSAI norms and sanitation facilities.
·
Right to Choose Alternative Treatment Options if
Available
Patients and their caregivers have the right to choose between
alternative treatment and administration options, if these are available, after
considering all aspects of the situation. This includes the option of the
patient disapproving care after considering all available options, with
responsibility for consequences being borne by the patient and his/ her
caregivers.
·
Right to Choose Source for Obtaining Medicines
or Tests
When any drug is specified by a doctor or a hospital, the patients and
their caregivers have the right to choose any registered drugstore of their
choice to buy them. also, when a particular investigation is advised by a
doctor or a hospital, the patient and his caregiver have the right to gain this
inquest from any registered diagnostic center/ laboratory having good labor
force and accredited by National Accreditation Board for Laboratories (NABL).
·
Right to Take Discharge of Case, or Receive Body
of Deceased from Hospital
A patient has the right to take the discharge and cannot be detained in a
hospital, on procedural grounds similar as a disagreement in payment of
hospital charges. Furthermore, caretakers have the right to the dead body of a
patient who had been treated in a hospital and the dead body cannot be
stationed on procedural grounds, including non- payment/ disagreement,
regarding payment of sanitarium charges against wishes of the caretakers.
·
Right to Patient Education
Patients have the right to receive education about major information
material to his/ her condition and healthy living practices, their rights and
liabilities, officially supported health insurance schemes applicable to the
case, applicable entitlements in case of charitable hospitals, and how to seek
redressal of grievances in the language the cases understand or seek the
education.
·
Right to be heard and seek redressal
Every patient and their caregivers have the right to give feedback, make
commentary or lodge complaints about the health care they're entering or had
entered from a doctor or hospital. This includes the right to be given
information and advice on how to give feedback, make commentary, or make a complaint
in a simple and user-friendly manner.
Rights to patients under Medical Negligence:
Medical
Negligence is one of the most common and important situations where Rights of Patients
come into play, so it’s very important to know what is medical negligence and what
are the remedies that a person can seek for to get justice.
Medical Negligence- Meaning[4]
There are 3
components of medical negligence:
·
Existence of legal duty
·
Breach of legal duty
·
Damage caused by such breach
There are
various kinds of situations which amount to medical negligence by a medical professional
such as incorrect diagnosis, deferred diagnosis, inaccurate surgery, long term
negligent treatment, childbirth and labour malpractice, needless surgery and erroneous
administration of anaesthesia etc.
In Vinod
Jain vs. Santokba Durlabhji Memorial Hospital and Ors.[5],
the Hon'ble Supreme Court
observed that the test for negligence shall be from the view point that a
doctor who has been accredited with a
special skill or competence but does not possess highest expert skill, it would in such case be sufficient that he
exercises skill of an ordinary competent man under similar scenario. This is primarily done for greater good of the
community at large, to prevent the
doctors from thinking about their
own safety instead
of the safety of the patients.
Standard of Care
The
Hon'ble Supreme Court in Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu Godbole [6]had
observed that every doctor must exercise reasonable "standard of
care" that are set out in the profession. Any breach towards
these duties shall hold him liable for medical negligence.
The
State Consumer Disputes
Redressal Commission of Jharkhand in Jagdish Prasad Singh
v. Dr. A.K.Chatterjee directed the opposite party to pay a sum of Rs. 25,000 to the complainant as compensation for his mental
agony and physical
harassment and Rs. 5,000 as litigation cost. It was observed that the accused
had failed to take due care to return the precise findings
in the reports. Whether harm came to the patient or not would not be
the criteria for case against negligence.
Remedies of Medical
Negligence
·
Medical Council
of India
An aggrieved
party can file a complaint of negligence against a medical practitioner to the
concerned State Medical Council as they have the power to take action against
the concerned doctor by suspending or cancelling his registration. However, the
Indian Medical Council Act, 1956 does not give them the power to compensate the
aggrieved party.
The accused
is required to file a complaint to the council precisely specifying all the facts
and relevant details in the concerned matter. The council shall then allow the accused
30 days' time to submit his reply. If the council is not satisfied with the
reply, then they shall call upon both the parties to present evidence in support
of their claims.
·
Civil liability
under Consumer Forum
An aggrieved
person can approach the consumer courts to file a case against the accused person
and the hospital. The Consumer Protection Act, 2019, the medical services shall
fall under the ambit of services as mentioned in section 2(42) of the Act. Any matter
in medical negligence on the part of the service provider will be considered as
deficiency under section 42(11) of the new Consumer Protection Act, 2019.
Any
aggrieved person can claim damages for medical negligence against a doctor or a
hospital. Section 69(1) of the Consumer Protection Act, 2019 lays down the time
limit within which a complaint for medical negligence must be filed as 2 years from
the date of injury.
·
Criminal liability
Under
various provisions of Indian Penal Code, 1860 any person who acts negligently or
rashly that results in threat to human life or personal safety or; results in
death of a person then the person shall be punished with imprisonment and/or
fine. However, the court have observed that in a matter of negligence where a
criminal case is being perused, the element of "mens rea" must be
shown to exist. To check for criminal liability, it must be clearly shown that
the accused did something or failed to do something which in the given
circumstances no other medical professional in his ordinary senses and prudence
would have done or failed to do.
·
If a medical professional behaves in a "bad
faith" manner or without providing the necessary care or attention [Section
52, IPC],
·
Simply put, the issue is whether the harm that a
doctor intended to prevent or dissuade was so severe and imminent that it justified
or excused the risk of performing the act while knowing that it was likely to
do harm. [IPC, Section 81]
·
The practitioner is responsible if a medical
operation is carried out with the patient's permission and in good faith but is
still against the law [Section 88 read with S. 91, IPC].
·
Rash or careless behavior that puts someone's
life in danger or harms them [Sections 337, 338, IPC]
The aggrieved
party will first file a complaint with the local police authority against the concerned
person/persons. If no action is taken, the aggrieved party can file a criminal complaint
under Criminal Procedure Code, 1973.
Inferences
Patients
should have more power as consumers to advance patient-centered treatment and
enhance results. However, because the health care industry differs from other
consumer-oriented industries, it cannot be entirely the patients' burden to
lower costs and improve quality. Because the health care sector differs from
other industries, we must be cautious when seeing patients as consumers.
Medical personnel are not allowed to treat patients like consumers and provide
unneeded care. Additionally, while demanding specific therapy, the patient is
not always right.
More than
ever, consumers are actively involved in making decisions about their health
care. Despite the fact that technology has increased everyone's access to
information, more information is not always better, and misinformation can be
particularly harmful in circumstances related to health care. The disparity in
authority between the patient and the doctor has led to numerous other
problems. Doctors are no longer the stewards of medical knowledge due to
changes in access to patient records. Patients run the danger of serious
misinterpretation when they have access to all of this information and lack the
necessary knowledge. Patients can find a lot of information in the form of
qualitative patient narratives, which, while enticing, can be misleading in the
absence of quantitative data. It is crucial for doctors to direct their patients
to helpful tools and services and act as good custodians of patient-generated
data.
Suggestions and Conclusion
Any
practitioner's primary responsibility is to do their duties carefully and
diligently. They must be knowledgeable of all the procedures that must be
followed and that have been established by the Indian Medical Council. Records,
a narrative of the case, and a list of therapies administered must all be
properly filed and available upon request for patients or submission to the
court. Always obtain the patient's or the attender's consent if they are in a
position to do so and are in a reasonable state to do so. The patient must be
fully informed of the purpose for their assent, and the consent paperwork must
be prepared in plain language that the patient can understand.
The patient
has to be informed of any potential risks and hazards that might exist during
the course of their therapy. Finally, the practitioner should not worry about a
case being brought against them unnecessarily by the patients if they act
carefully and practice quality care. The court has recently dismissed many
instances that were manifestly fraudulent, superfluous, or unreasonable claims
made by patients even before they went to trial. The consumer courts take
special precautions in these circumstances to safeguard the medical
professionals from harassment by patients with their flawed claims.
Article Information
RIGHT OF PATIENTS IN INDIA WITH SPECIAL REFERENCE TO NATIONAL AND INTERNATIONAL STATUTES AND PRECEDENTS BY: GEETHNNJALI J
Authors: GEETHNNJALI J
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/10/07
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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