An Open Letter to the Prime Minister to exclude doctors from the list of services in Consumer Protection Act, 2019

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The medical fraternity has for long demanding the exclusion of the medical profession from the ambit of the Consumer Protection Act (CPA). Because CPA has reduced doctors to the status of mere “service providers” and patients have now become “consumers”, who now do not hesitate to resort to violence.

The Padma Awardee Doctors’ Forum had its annual meeting at India International Centre (IIC), New Delhi on Wednesday, August 28, 2019. The forum includes doctors in Delhi who have been honoured with the prestigious Padma Awards, among the highest civilian honors in India.

Our discussion primarily focused on the recently enacted Consumer Protection Act, 2019 and how it affects doctors and the medical profession all together.

It was decided to write an open letter to the Prime Minister requesting for his intervention to include medical professionals in the exclusion list under the Consumer Protection Act, 2019.

The letter is reproduced below:

To

Shri Narendra Modi Ji

Hon’ble Prime Minister of India

New Delhi

pmo@govmu.orgprivateoffice@govmu.orgpmoffice@gov.inpmosb@gov.inconnect@mygov.nic.innarendramodi1234@gmail.comconnect@mygov.nic.in,

Date: 31st August 2019

Subject: Consensus Statement of Padma Awardee Doctors’ Forum regarding exclusion of medical professionals from the Consumer Protection Act (CPA)

Padma Awardees Doctors’ Forum: Dr KK Aggarwal, Dr P Venugopal, Dr P Lal, Dr SC Manchanda, Lt General BN Sahi, Dr KK Talwar, Dr M Khalilullah, Dr Ashok Seth, Dr TS Kler, Dr Neelam Kler, Dr Mahesh Verma, Dr Arvind Lal, Dr Madan Mohan, Dr Harsh Mahajan, Dr Anoop Misra, Dr Kalyan Banerjee, Dr NP Gupta, Dr Yash Gulati, Dr AK Grover, Dr KK Sethi, Dr GK Khatri, Dr Nikhil Tandon, Dr Saumitra Rawat,  Dr NK Pandey, Dr NM Shroff, Dr Raman Kapoor, Dr Ganesh Mani, Dr AK Bhalla, Dr Nitish Naik, Dr M Wali, Dr Randhir Sud, Dr RK Grover, Dr Malvika Sabharwal, Dr D S Gambhir, Dr A S Soin, Dr Sanjeev Bagai, Dr Upendra Kaul

Respected Sir

The Consumer Protection Bill, 1986 was passed by both the Houses of Parliament and it received the assent of the President on 24th December 1986. It came on the Statutes Book as THE CONSUMER PROTECTION ACT, 1986 (68 of 1986). The Legislature while drafting the Bill, 1986 had specifically not included the services provided by the medical professionals in the term of services. Also, there is no mention of medical professionals, doctors, etc. anyplace in the Consumer Protection Act, 1986.

The fact that there is a distinction between a profession and an occupation was the main reason for not including the medical professionals under the purview of Consumer Protection Act, 1986. A person engaged in an occupation renders service, which falls within the ambit of Section 2(1)(o) of the Consumer Protection Act, 1986; however, the service rendered by a person belonging to a profession does not fall within the ambit of the said provision. Accordingly, medical practitioners who belong to the medical profession are not covered under the Consumer Protection Act.

But, in the matter of “Indian Medical Association versus V P Shantha, AIR 1996 SC 550”, the Hon’ble Supreme Court of India held that the Consumer Protection Act, 1986 is applicable to services rendered by doctors and hospitals. The Apex Court also held that the services rendered to a patient by a medical professional are “service” within the meaning of the Consumer Protection Act, 1986 and the persons who hire or avail such services are therefore, consumers as defined under the Act with the exception that where the doctor / hospital renders service free of charge to every patient or under a contract of personal service, a patient availing of such free of charge services will not be a consumer.

Consumer Protection Act, 2019: The Consumer Protection Bill, 2019 has been passed by both Houses of Parliament i.e. Lok Sabha (30th July 2019) and Rajya Sabha (6th August 2019). Thus, a new law on consumer protection has been enacted i.e. the Consumer Protection Act, 2019.  The new act does not include services rendered by medical professionals.

Earlier, when amendments to the Consumer Protection Act were introduced in 2015, there was no mention of “healthcare” in the list of examples of as to what constitutes “service”. The Bill said “service” means service of any description made available to potential users and includes, but is not limited to, the provision of facilities relating to banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information. It does not include the rendering of any service free of charge or under a contract of personal service.

The Bill had gone through the parliamentary committee. But in 2019, when the new Consumer Protection Bill was introduced in the Lok Sabha, “healthcare” was included in the list after telecom.

But later “Healthcare” was removed from the list of services which had been specifically mentioned earlier under the definition of services in the draft Consumer Protection Bill.

Now, in the new Act of 2019, the terms “medical profession”, “Healthcare”, “doctors”, etc. are not mentioned.

Legislative intent

While enacting both the Consumer Protection Act, 1986 and Consumer Protection Act, 2019, the draftsmen of the Legislature had specifically and intentionally not included the services rendered by medical professionals. In 2019, when the new bill was presented, the term “healthcare” was included in the draft of the Consumer Protection Bill; however, the same was later removed from the Bill.

Even though, the landmark precedents as laid down by the Hon’ble Supreme Court of India cover the medical profession/healthcare under the purview of Consumer Protection Act, the Legislature never intended to cover the services rendered by the medical professionals under Consumer Protection Act.

It is also to mention that medical professional services are not covered under GST.

Lawyers do not come under the purview of Consumer Protection Act

In the matter titled as “D. K. Gandhi versus M. Mathias”, the State Commission of Consumer Disputes Redressal Forum, Delhi, held that services rendered by a Lawyer would not come within the ambit of Section 2(1)(o) of the Consumer Protection Act, 1986, as the client executes the power of attorney authorizing the Counsel to do certain acts on his behalf and there is no term of contract as to the liability of the lawyer in case he fails to do any such act. The State Commission held that it is a unilateral contract executed by the client giving authority to the lawyer to appear and represent the matter on his behalf without any specific assurance or undertaking.

However, this verdict of the State Commission was reversed by the National Consumer Disputes Redressal Commission (NCDRC) in the Revision Petition titled as D. K. Gandhi versus M. Mathias on the ground that lawyers are rendering a service. They are charging fees. It is not a contract of personal service and that there was no reason to hold that they are not covered by the provisions of the Consumer Protection Act, 1986. It was held that though a Lawyer may not be responsible for the favourable outcome of a case as the result/outcome does not depend upon only on lawyers’ work, but, if there was deficiency in rendering services promised, for which consideration in the form of fee is received by him, then the lawyers can be proceeded against under the Consumer Protection Act.

However, the said judgement of the NCDRC has now been stayed by the Hon’ble Supreme Court in the matter titled as “Bar of Indian Lawyers vs. D. K. Gandhi”. The said case is still pending adjudication before the Hon’ble Supreme Court of India.

Thus, the question whether the lawyers are covered under the Consumer Protection Act or not is still pending before the Hon’ble Supreme Court of India.  However, as on date, the lawyers do not come under the purview of Consumer Protection Act.

Appeal

The Padma Awardee Doctors’ Forum requests you to intervene so that the medical professionals are included in the exclusion list of the services under Consumer Protection Act.

Padma Awardee Doctors

Dr KK Aggarwal

Padma Shri Awardee

President Elect Confederation of Medical Associations in Asia and Oceania (CMAAO)

Group Editor-in-Chief IJCP Publications

President Heart Care Foundation of India

Past National President IMA

Join the Mahapanchayat on 25th March to make the Indian medical profession strongest in the world

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Dr KK Aggarwal Immediate Past National President IMA The IMA has been opposing the proposed NMC Bill in its present format on several grounds. Following a country-wide 12-hour strike on 2nd January this year, the proposed NMC Bill was referred to a Parliamentary Standing Committee. The Rajya Sabha Committee considered each clause of the proposed NMC Bill and has given its recommendations on each in Chapter 4 of its report “109th Report on the National Medical Commission Bill, 2017 (Presented to the Rajya Sabha on 20th March, 2018) (Laid on the Table of Lok Sabha on 20th March, 2018)”. The report is in the public domain. To deliberate on the report, the IMA is organizing a Mahapanchayat on 25th March at Indira Gandhi Stadium, New Delhi, 10 am to 2pm. Over 10,000 doctors from all across the country will deliberate on the issue. As per a note from our National President Dr Ravi Wankhedkar, “after the 1st victory due to the Surgical Strike of 2nd Jan, IMA’s massive pressure has achieved the 2nd victory. Some of IMA demands have been accepted in the Parliamentary Standing Committee report. But the committee report is just a recommendation. Government has to accept and implement these recommendations along with remaining demands.” 25th March is an opportunity to show our strength to the whole world. Collectively, we see and influence over two crore patients every month. Collectively, on the 25th we should also show that we can also influence government policies and turn them into community-friendly policies. Most government policies today have penal provisions for doctors likening us to criminals. There are no policies to protect us. The govt. has failed to formulate and implement even a simple demand for a stringent central act for violence against doctors. Doctors are not supposed to be on the roads protesting. True. Therefore, we are continuing our efforts towards our legitimate demands, the Gandhian way. The Mahapanchayat is a corollary of the Dilli Chalo movement on the 6th June last year followed by a dawn-to-dusk fast observed throughout the country on 2nd October, the birth anniversary of Mahatma Gandhi. Each movement must be bigger than the previous. The critical mass of one percent must be achieved for any movement to spontaneously spread across the entire nation. All those who joined physically the Dilli Chalo movement on 6th June last year must repeat their presence, but this time with one more additional friend. You can bring a Non- IMA member or even a non-medical friend to participate. Delhi Medical Association is hosting the Mahapanchayat. Hence, all doctors from Delhi, in particular, should achieve this critical mass. It’s time… we should seize this opportunity. We must persist in our efforts till our goals are achieved. Cancel all your appointments on 25th March. Just join the mass movement.

If we dont self-regulate, then the govt. will

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There has always been a dispute whether healthcare is a commercial business or a social business. The first step in regulation of the medical profession was taken when the medical profession was brought under the Consumer Protection Act (CPA). Consequently, any medical service provided to the patient in the form of consultation, diagnosis and treatment came to be under the ambit of ‘service’ as defined in the CPA.

In several of its judgements, the Hon’ble Supreme Court of India has stated that costs/charges in the medical profession must be reasonable. In the matter of Samira Kohli vs Dr. Prabha Manchanda & Anr on 16 January, 2008, the Apex Court said, “28. But unfortunately not all doctors in government hospitals are paragons of service, nor fortunately, all private hospitals/doctors are commercial minded. There are many a doctor in government hospitals who do not care about patients and unscrupulously insist upon unofficial payment for free treatment or insist upon private consultations. On the other hand, many private hospitals and Doctors give the best of treatment without exploitation, at a reasonable cost, charging a fee, which is reasonable recompense for the service rendered. Of course, some doctors, both in private practice or in government service, look at patients not as persons who should be relieved from pain and suffering by prompt and proper treatment at an affordable cost, but as potential income-providers/ customers who can be exploited by prolonged or radical diagnostic and treatment procedures. It is this minority who bring a bad name to the entire profession.”

The word to be taken note of here is “exploitation”. You cannot charge more in an emergency. If you do, this may mean that you are exploiting the patient.

Earning a profit is required for sustenance. But should this justify profiteering? A very fine line separates the two, which must never be crossed.

The word “reasonable” needs to be defined. The govt. always wanted to cap pricing in the medical profession. Towards this end, the govt. introduced the Clinical Establishments Act (CEA) to regulate prices in health care, which was opposed by the IMA.

The govt. is now trying to control prices via TPA, CGHS, state government health scheme and now through the newly launched “National Health Protection Scheme” under the Ayushman Bharat initiative announced in the Budget on Feb.1, 2018. The National Health Protection Scheme will provide coverage of Rs 5 lakh rupees per family per year for secondary and tertiary hospitalization, but only under the ‘general ward’ category to about 50 crore beneficiaries. This scheme may be taken advantage of or exploited.

This means that the govt. may cap the prices for each procedure as it did under the Rashtriya Swasthya Bima Yojana (RSBY), a health insurance scheme for the Below Poverty line (BPL) families, which provided a coverage of Rs 30, 000/- per annum to beneficiaries on a family floater basis. Under this scheme, the govt. has framed indicative package rates for several interventions or procedures.

The only way health sector can be controlled is by way of re-imbursement.   Just as the HMOs have controlled healthcare costs in the US, insurance companies in India too may control pricing in India.

Two types of costs may be worked out; one, a reasonable’ cost, one which could be covered under the ‘general ward’ category as directed by the govt. and the other a ‘private’ cost, which is not capped and allows charging as per the paying capacity of the patient.

If we don’t self-regulate, then the govt. will. Then we may have no choice but to comply with the price cap that has been put by the govt.

Dr KK Aggarwal

Padma Shri Awardee Vice President CMAAO Group Editor-in-chief IJCP Publications

President Heart Care Foundation of India

Immediate Past National President IMA

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