Medical Profession a liability

Wednesday, 25 August 2010 16:11

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Does the proposed Clinical Establishment Bill / Act, 2010, violate the fundamental rights of doctors?

http://www.mumbai-central.com/nukkad/jun2010/msg00133.html

QUESTION:- Are there sufficient legal grounds for doctors to oppose the Clinical Establishment Bill / Act, 2010?

ANSWER:- The Bill has already been passed by the Lok Sabha. It may be passed by the Rajya Sabha soon. Doctors need to move the courts to protect their fundamental rights which are sought to be infringed by the proposed Bill. It is true that if the courts are petitioned against violation of fundamental rights even after the legislation has come into force, the same can still be struck down. However, it is better to nip the evil in the bud.

Once it becomes a law, the courts, even if they admit the writ petition against it, may not grant stay against its operation and it may continue to be in force while the litigation is pending. The real danger is that if doctors are not concerned now, when the attack is being openly planned against them, they are unlikely to protest when the attack is actually made. As a result, what is likely is that they will be further emasculated and will wail and whine and cry even more, with no effect.

The main objection is to Section 12(2) read with section 2(o) of the Bill. These sections state as follows:

Section 2(o): "to stabilise (with its grammatical variations and cognate expressions)" means, with respect to an emergency medical condition specified in clause (d), to provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a clinical establishment.

Section 12(2): (2) The clinical establishment shall undertake to provide within the staff and facilities available, such medical examination and treatment as may be required to stabilise the emergency medical condition of any individual who comes or is brought to such clinical establishment

The plain meaning of the above is that if a patient comes to the hospital at any time with myocardial infarction, strangulated hernia, ectopic pregnancy, appendicular abscess, peritonitis, stab injury, fracture hip, fetal distress in a full term pregnant woman needing Caesarian section, acute glomerulonephritis or retention of urine, etc., all of which need active, immediate, costly surgery or other intervention, the hospital would have to provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a clinical establishment.

There is no mention in the Bill about three things:

Who will pay for the treatment?

Where will the patient be transferred?

Who will pay for the cost of transfer?

All doctors know, in actual practice, that the government hospitals will not take the patient saying they have no bed vacant; the private hospitals will not take in the patient who is unlikely to pay; the patient would refuse to pay even the cost of transfer and will threaten to sue the hospital under the Clinical Establishment Act, 2010 if the condition of the patient suffers!

The fundamental rights of the doctors that will be violated are those granted under articles 19 and 21.

Under article 19(g), all citizens have a fundamental right to - to practise any profession, or to carry on any occupation, trade or business. Practising any profession or carrying out any occupation, trade or business means doing so for profit and not for charity.

Article 21 specifically states that - No person shall be deprived of his life or personal liberty except according to procedure established by law. The Supreme Court has held in various judgments that right to life includes right to earn a living.

Thus the proposed Bill restricts the right to earn and to practice the profession freely in order to earn the wherewithal. Besides, the proposed Bill is violative of the basic legal principle that there cannot be a duty without a corresponding right.

The proposed Bill imposes a duty to provide costly treatment without any provision for paying the cost. The citizens have a fundamental right to health as held by the Supreme Court in its interpretation of the right to life under article 21. This right to health is against the government.

It is the duty of the government to ensure that everybody’s health is protected. This duty cannot be passed on to other citizens / doctors by the clever and colourable device of the proposed Bill. This amounts to robbing Peter to pay Paul.

Clinical est Bill 3
Clinical est bill in loksabha
Clinical est Bill 1

M C Gupta, MD (Medicine), LL.M.

Ex-Professor and Dean
Practicing advocate

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