Last century was epoch of commercialization and liberalization leading to synthesis of consumerism followed by the fad of superfluous products, iniquitous trade practices and misleading advertisements. This phenomenon set the stage for legislative amulet of Consumer protection. This legislation basically focuses on products in our country but for past two decades epic debate of appliance of Consumer Protection Act in medical services was also alive. The amendment made in the Consumer Protection Act in 1992 covered medical services given by private sectors and paid medical services provided by government. At that moment in time government contended that all the medical services can’t be included in the compass of Consumer protection as our country was facing challenges like lack of infrastructure, drugs and human resources. The government has introduced another amendment i.e. Consumer Protection (Amendment) Bill, 2011 which is also not dealing with medical profession.
Indian Medical Association alleged that the application of Consumer Protection Act is not only unconstitutional but also affecting doctor-patient relationship; but a decade ago, our apex court included medical services in the scope of Consumer protection in. Truly medical profession is noble but with nobility obligations also come. Express provisions in the act with guidelines and proper remedy can only usher to better medical practice and conscientiousness.
From Barter system of exchange of past to currency system of present consumer is always the focal point of all the economic activities. Ultimate consumption of goods and services by the consumer is the fate of any economy. Before the advent of dynamic trends like liberalization and commercialization markets were local in character and reach. Markets were more consumer-oriented at that time .With the occurrence of economic, social and technological developments these consumer-oriented markets had been extricated and profit motive became the declaration of international market; markets acquired international dimension and became complex and interdependent. With the industrialization mass production was started and slowly consumer- control was diminished.
Commercialization followed by liberalization expanded the market immensely. Business became an international experience. Wide range of products and services, large number of consumers as well as manufacturers and mass production with the theme of profit motive led to dreadful competition. Markets instead of consumer-oriented became profit-oriented. Monopolistic and unfair trade practices became part and parcel of economic activities of every country and hence consumer was having only compulsion instead of choice. This situation ultimately gave birth to need of consumer protection.
In our country Consumer protection mainly focuses on products but for past two decades epic debate of bringing service sectors like banking, insurance, medical care and education was also going on. These services deal with the consumers and their money and future is in stake while availing the merits of these services but still these services are not expressly included in the welfare Legislation of Consumer protection though having a look at the act these services satisfy the definitional requisites given in the act.
Consumer Protection in Medical profession Medical profession is a noble profession as human element is involved in this. Medical profession involves higher degree of virtue and character as mentioned in Charak’s oath 1000 B.C. for medical practitioners “you shall be free from envy and will look for creature’s welfare, will not make their private affairs public and will not let anyone die.” Any lack from doctor will cost something from patient’s health.
Before going further we will look for duties and obligations which are imposed on medical practitioners we will classify them in do’s and don’ts.
- Due care and diligence of a prudent doctor.
- To have standard and suitable equipment in good repair.
- Follow standard procedure and indicated treatment and surgery.
- To provide standard premises like nursing home, hospital must comply with all laws applicable.
- To have standard proper record.
- Duty to provide information to patient/attendant regarding necessity, risk, duration of treatment.
- Emergency care.
- Health education.
- To inform police all cases of poisoning, suicide, manslaughter etc
- To call magistrate for dying declaration.
- To inform about bride burning and battered child cases.
- Hence these are the basic duties which a medical practitioner must follow.
- Not to associate with unregistered medical practitioners and not allow him to practice what he is not qualified for.
- Not to indulge in self-advertisement.
- Not to issue false certificates and bills.
- Not to run a medical store.
- Not to write secret formulations.
- Not to perform illegal abortions.
- Not to issue death certificates when cause of death is not known.
- Not to transfuse wrong blood.
Legal aspects of Medical profession:
Legal aspects of medical practice constitutes syllabus of medical education. Any medical negligence is covered by basically law of torts and Indian penal code but these laws do not expressly deal with some problems these are as follows;
- Delay; no time limit was given which can be dangerous in terms of health.
- Cost of bringing a suit is also very high than the damages recovered, no fixed cost is given.
- Limited access to courts
- Success depends on proof of which is quite difficult to ascertain in case of medical negligence.
Hence all we need is to have an alternate and separate law which is speedy, cheap and effective though immunity to certain professionals was given on the ground of public interest as if these professionals will invest their time in legal suits society will suffer at large but medical practitioners do not enjoy such immunity and they can be used under contract or tort if they fail to exercise reasonable care and skill, but if separate legal provisions will be formulated for medical negligence stage can be set for more accountable and trust-worthy atmosphere.
Consumer in medical profession
- A consumer is a patient who pays to get ervices of hospital/doctor.
- Any person who pays for the patient.
- Legal heirs/representatives of patient.
- Children, spouse, family member of patient.
Contract of service or Contract of personal service
The argument which doctors generally give is that the services performed by them are under the contract of personal service or under master-servant relationship as a patient has full power to select his doctor/hospital, another point proving this is that he can terminate the relationship as and when he thinks fit also doctor’s fee is a remuneration paid to him. Hence this is also a strong argument given by them.
Some important points to consider
Truly medical practitioner has a pious duty to treat his patient sensibly but patient also has some duties; combining both set of duties can only lead to a good doctor-patient relationship. Some points to consider in this regard are;
- A patient may come late for treatment.
- A patient may not take with him his history of treatment.
- Patient may be hiding facts from the doctor.
- Patient may not take the drugs prescribed to him or he may not take them in accurate quantity.
- After the patient leaves the clinic can doctor control the subsequent actions etc.
- While making legal provisions regarding medical negligence we have to consider these points too.
The period of 1950 to 1960 was the period of growth and investment in public utilities like hospitals etc but during 1970’s investment decreased which led to bad medical facilities and opening up of space for private actors hence private nursing homes and hospitals increased. Due to this competition increased and medical facilities also became costly as well as less effective as lesser control by the government gave way to unethical practices and lesser bargaining power.
While opening up space for new possibilities we should not rule out ethical base of medical profession. Present medical profession requires strict accountability with the help of an effective and justice-oriented law and that law is the Consumer Protection Act.
- Rear v. Sinclair , 1974 1NZLR 180