INTRODUCTION
With rise of “violence against doctors” throughout the country, unfortunately the doctor patient relationship is really at stake. In the light of these circumstances, emerged the new Consumer Protection Act (CPA), 2019.
This article is just an insight to the CPA in the “past” and in the “present” and its impact on the doctor–patient relationship.
CONSUMER PROTECTION ACT, 1986 (COPRA)
It is an act of the Parliament of India, passed in the Assembly in October 1986 and came into force from 24th December 1986. It has led to the establishment of a widespread network of consumer forums and appellate courts all over India and has a significant impact on consumer complaints and has empowered consumers to a great extent.1 Consumer Protection Councils are established at the National, State, and District levels to increase consumer awareness.2
Aim was to promote and safe guard the consumers by:
- Right to Choose
- Right to be Heard
- Right for Education of the Customer
- Right to Seek Redress
- Right to be Informed
- Right of Safety.
CONSUMER DISPUTES REDRESSAL AGENCY
- District Consumer Disputes Redressal Forum (DCDRF):
- This forum established by the State Government in each district of the State.
- District level court deals with cases valuing up to Rs 2 million.2
- State Consumer Dispute Redressal Commission (SCDRC):
- This forum established by the State Government.
- State level court deals with cases valuing up to Rs 10 million.2
Consumer courts do not have jurisdiction over matters where service of goods bought for commercial purpose. The Supreme Court of India said Jurisdiction of National Commission is limited & only to be exercised when State Commission fails.3 Medical profession was not included in this Act.
THE CONSUMER PROTECTION ACT IN 1996 INCLUDED THE “HEALTHCARE SERVICE”
In the verdict given by the Supreme Court of Indian VP Shanta versus IMA Case, (Air 1996 SC 550), it is clearly said that “a medical practitioner who renders service to the patients can be proceeded for deficiency in service before the forum under this Act”.
The term Deficiency is defined as any fault, imperfection, shortcomings or inadequacy in quality, nature and the manner of performance of the medical service rendered by a hospital and/or member of the medical profession.
Who is the Consumer in Medical Profession?
- A patient who pays to get services of doctor/hospitals.
- Any person who pays for the patient, legal heirs or representatives of such patients.
- In case of death of the patient, legal heir of the deceased, or any other person (not a legal heir) but paid for the treatment, was to be considered as “Consumer”.
A person receiving treatment in charitable hospital or government hospital free of cost is not a consumer under the Act.
Types of Medical Negligence
Criminal | Civil | Contributory |
|---|---|---|
When extensive damage caused:
| Acts of omission/commission:
| Party to whom the duty is owed contributes to the injury or damage |
With the inclusion of the doctors and hospitals, there was a tremendous rise in the medical negligent cases and compensations.3
CONSUMER PROTECTION ACT ON 9TH AUGUST 20194
It removes “Health Care” from “Services”, keeping with the concerns expressed by the doctors and Medical Associations.
- Doctors say that Consumer Court complaints have become a method of extracting money on humanitarian grounds and it has become a major hassle for them to practice freely.
- Inclusion of “Healthcare Service” under CPA hurts the very concept of the “nobility” of the medical profession.
What has Changed in the New CPA Act, 2019, at a Glimpse?
CPA, 1986 | CPA, 2019 | |
|---|---|---|
Regulator | No separate regulator | Central Consumer Protection Authority (CCPA) to be formed |
Consumer Court | Complaint could be filed in Consumer Court, where seller's (defendant's) office is located | Complaint could be filed in the court where complainant resides or works |
Product Liability | No provision. (Consumer can approach the civil court and not the consumer court) | Consumer can seek compensation for harm caused by a product or service from consumer court |
Pecuniary Jurisdiction |
|
|
E-Commerce | No provision | All rules of direct selling extended to E-Commerce |
Mediator Cell | No legal provision | Court can refer settlement through Mediator cells |
CONCERN OF THE OFFICIALS ABOUT THE CPA, 2019 (IMPACT ON GENERAL PUBLIC)
- The Supreme Court judgment, 1995, which clearly said that medical services to the patients where fees are charged come under the purview of CPA. So taking out service of “health care” can never be legally justified. Advocate Srinivas Rao said “whether the term exists or not a consumer who has been offered a service has the right to approach the court if he is not happy with the service. Consumer court cannot state that it will not take up the complaint of the consumer.”5 Removal of the term only lead to confusion in the minds of the consumer and will hold back many of them for approaching the court for justice.
REASONS WHY DOCTORS EXPRESS THEIR CONCERN FOR THE CPA, 2019
- Lack of requirement of expert opinion: Doctors demanded for an expert panel for proper analysis of the case to establish negligence. Compensation should not only be given just on sympathetic grounds. Currently for Civil cases, it solely depends on the whims of the commission members, whether an expert opinion is required or not. Doctors apprehend that if expert panel is not there, then they may be unnecessarily harassed in the name of CPA.
- Higher compensation power in lower fora:
- District consumer increased from Rs 10 lakhs to 1 crore.
- State consumer increased from 1 crore to 10 crores.
- National consumer >10 crores.
- Earlier if a doctor does not comply with the order of the commission, he could face a jail of 1 month to 3 years and fine of Rs 2,000–10,000. Now the imprisonment is not less than 1 month to 3 years and fine not less than Rs 25,000 is to be extended to Rs 1 lakh or both. Now,
- Injury not amounting to grievous hurt—imprisonment of 6 months or fine of Rs 1 lakh or both.
- Injury leading to grievous hurt—imprisonment up to 7 years and fine up to Rs 7 lakhs or both.
- Injury leading to death—imprisonment from 7 years to lifetime and a fine of Rs 5 lakhs or both.
Such high levels of Jurisdiction denominators are really undesirable.
- Non Judicial members may comprise the commission: The earlier CPA 1986 stated that commission at various levels will be headed by a person qualified to be a judge appointed by a State Judiciary Committee, but the new bill does away with this requirement and rests the entire power of appointment with the Central Government. This will violate the principles of separation of powers between the Executive and Judiciary. Thus someone with knowledge of neither law nor medicine will decide the fates in the medicolegal cases.
- Provision for consumer mediation cells: Earlier in Consumer forum one member of the bench had to be an ex High Court or Supreme Court judge. The new bill provides mediator cells to be attached to the District, State, and National Commissions. The Commissions may refer a matter for mediation and facilitate Alternate Dispute Redressal (ADR), if the parties consent to settle their dispute in this manner. So doctors now expect to go through a longer trial, first before Mediator Cell for settlement and then before the forum, (if the mediator cell fails). Doctors apprehend that in cases where high level of compensation is involved, 5these Consumer mediator cells may become tools for harassing and blackmailing doctors.
- No penalties for frivolous and vexatious complaints:
- Section 26 of CPA, 1986 calls for dismissal of false complaint even penalty of maximum of Rs 10,000.
- Surprisingly instead of enhancing the penalty in case of frivolous complaints the new bill completely gave a miss to this clause altogether.
- The likely implications of this will be that unnecessary and vexatious complaints may be used to blackmail doctors for crores of rupees without any fear of counteraction.
- Earlier, a patient could file a case against a doctor only in the state where the medical negligence happened. Now the patient can file even from a different state, where he resides. So, now the doctor may have to travel to attend the court.
- If a doctor fails to issue a bill or receipt to a patient, it is considered as unfair trade and he will be liable to face CPA.
- If a doctor discloses personal information given by a patient (unless required by law), he may face CPA.
CONCLUSION
Medical profession should internalize quality assured health standards in their routine professional duties to ensure protection of customer's rights. The ultimate aim of all doctors is to provide proper health care and maintain a good doctor–patient relationship and serve the society.
REFERENCES
- Kumar V. “An Analysis of Consumer Protection Laws in India”. Pleaders; 2016.
- “Consumer Protection and National Consumer Disputes Redressal Commission”. NCDRC. Archived from the original on 21 July 2011. Retrieved 18 December 2012.
- “Jurisdiction of National Commission under Revision Application is limited”. Consumer Law India, 13 November, 2016. Retrieved 28 January 2017.
- The Gazette of India, Ministry of Law and Justice (Legislative Department) New Delhi; 2019.
- Kaniza Garari IDC, “Health care to be ruled out of Consumer Courts” Deccan Chronicle; 2019.