- Nehal Baldwa
The three-decade old Consumer Protection Act, 1986 has retired with the advent of the Consumer Protection Act, 2019 to protect the interest of the consumers and to provide speedy remedies and efficient administration with regard to a consumer dispute. The new law, in order to serve the consumer welfare, brought around some new changes as per the prevailing surroundings in the country in order to suit the current market scenarios. The new act has brought about numerous changes however, one of the most notable changes that the new statute brings around is the amended version of the definition of ‘service’ under Section 2 (42) which now does not include the area of ‘healthcare’ as a service under its ambit, unlike the former 1986 act. Thereby, a consumer cannot complain against any deficiency or negligence by any medical professional through the speedy and affordable recourse of consumer forums.
Removal of ‘healthcare’- A Sly Relief?
It is appurtenant to note that the bill passed in the Lok Sabha in 2018[1] included ‘healthcare’ under the ambit of ‘services’ under the new Consumer Protection Act. Nevertheless, ‘healthcare’ was eventually removed later on from the definition of services under a new amended statute and was termed and claimed as a technical amendment. Such removal seems to be conceiving misconceptions and confusion however the truth of the matter stands slightly different.
Subsequently, the said technical amendment was passed addressing the objections, concerns and, woes of doctors as well as medical associations regarding the harassment they have to go through due to numerous frivolous consumer complaints, notwithstanding, it has been made clear that any such amendment does not provide a blanket ban over the right of an aggrieved person to approach the consumer forums in any way[2]. Moreover, the definition of service under Section 2(42) is that of an inclusive nature as it contains the clause ‘includes but not limited to’ and, hence it can be considered that healthcare is eligible to be interpreted and contemplated as a service under the new Consumer Protection Act. Therefore, this removal to the medical practitioners seems to be a mere gesture by amending the act and providing an ostentatious relief.
Harassment of Medical Practitioners
It is further pertinent to note that the landmark case of V.P. Shantha[3] brought the private healthcare sector under the ambit of services of the Consumer Protection Act, 1986 and, any act of deficiency or negligence in the services of a medical practitioner that were sought by a consumer by paying for them was brought under the scrutiny of all Consumer Forums. This was seen as a win-win situation as the Consumer forums provided speedy justice and the doors to affordable justice became accessible and available to every section of the society.
However, the Apex Court in numerous cases has reiterated and expressed its concerns[4] that since the medical profession has been placed under the ambit of the Consumer Protection Act, there has been a significant upsurge in frivolous complaints against doctors due to which doctors have been facing harassment and humiliation. As a result of such fraudulent and frivolous complaints, doctors have stopped practicing freely or even to provide first aid out of fear of legal proceedings even over a genuine treatment. Therefore, doctors have continually and staunchly been objecting to the inclusion of healthcare services under the Consumer Protection Act.
Furthermore, these Consumer Forums possess a very limited knowledge pertaining to medicine and due to the constraints on these consumer courts for speedy justice, more often than not, the victims are granted compensation on the grounds of sympathy and suffering due to which doctors have been faced with mental agony, financial harassment and loss or reputation owing to these frivolous cases. In regards to such mounting cases of medical negligence, there has been seen a new trend of the practice of defensive medicine[5] due to the fear of involvement in legal proceedings followed by exorbitant compensations to the complainant patient.
Additionally, more often than not, it has happened that a complainant is awarded compensation from the source of humanitarian grounds and hence it is feared that now since the pecuniary jurisdiction of the forums has been increased, medical practitioners are highly likely to be financially preyed.
The Need of Balance
To err is human. Though the doctors who have been negligent towards their duty of care are liable to be rightfully penalized, it is counter-productive for the welfare of a society to punish or harass the doctors indiscriminately who have diligently exercised their professional knowledge. Subsequently, medical practitioners have been put in a constant state of fear of legal proceedings hindering the free exercise of their professional knowledge and ability.
The court, in the case of Martin F. D’ Souza[6] has observed that judges can be considered to be laymen pertaining to medical science and it can be difficult for them to understand even the testimonies as presented by other doctors leading to an erred decision. Therefore, the balance is needed to be struck in such cases.
Consequently, the case of VP Shantha should be interpreted such that doctors should not be harassed because their treatment did not get the right results or caused a mishap which was not necessarily due to negligence.[7]
Moreover, appreciably, it was directed by the Supreme Court that when any complaint is received against a doctor or a hospital to any Consumer For a, it should first and foremost be referred to a competent doctor or a committee of doctors. Further, if according to their report, if it seems to be a case of medical negligence then such doctor or hospital should be notified and informed about the same so as to avoid unnecessary harassment of such doctors.[8]
Conclusion
Though an easy and affordable access to a complaint mechanism is a necessity especially when the right to health has been granted the status of a fundamental right, it equally important to arbitrate and reach a balance so that a victim can approach the tribunal easily but also to protect the medical practitioners from unwanted harassment.
The guidelines have however been laid down by the Supreme Court, they have not been strictly followed. The legislature has always has placed its main focus over the protection of patients and their families for various obvious reasons but it is compelling to see the conditions of these doctors and therefore it is incumbent to enact a new set of regulations to maintain the sanctity and trust in the profession of doctors so as to protect them from such false and frivolous complaints filed only to gain advantage from professionals and further to relieve such doctors practicing in the fear of being encrusted with the shackles of such complaints against them.
Nehal Baldwa is a fourth year student at Pravin Gandhi College of Law, Mumbai.
(nehalbaldwa08@gmail.com)
[1]https://www.prsindia.org/sites/default/files/bill_files/Consumer%20Protection%20Bill%2C%202018%20as%20passed%20by%20LS.pdf [2] https://timesofindia.indiatimes.com/india/consumer-bill-draft-removes-healthcare-from-services/articleshow/69935129.cms [3] Indian Medical Association v. V.P. Shantha, (1995) 6 SCC 651. [4] Jacob Mathew v. The State of Punjab (2005) 6 SCC 1 ; Martin F. D'Souza v. Mohd. Ishfaq, (2009) 3 SCC 1. [5] Sekhar MS, Vyas N. Defensive medicine: A bane to healthcare. Ann Med Health Sci Res. 2013;3:295–6. [PMC free article] [PubMed] [Google Scholar]. [6] Martin F. D’Souza v. Mohd. Ishfaq, (2009) 3 SCC 1. [7] ibid [8] ibid