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Learning from the European Union: India should not Exclude Medical Professionals from Consumer Protection Act

Introduction

Recently, the Supreme Court of India in Bar of Indian Lawyers v. D.K. Gandhi PS National Institute of Communicable Diseases and Anr., (hereinafter ‘D.K. Gandhi’) ruled that lawyers lie outside the ambit of the Consumer Protection Act (hereinafter ‘CPA’). The court applied the same rationale to disagree with and ask for review of Indian Medical Association v. V.P Shantha and others (hereinafter ‘Indian Medical Association’) which had ruled that medical ‘professionals’ lie within the ambit of the CPA.

This article aims to make a case against the exclusion of medical professionals from the CPA. While both the judgments presented several arguments for exclusion and inclusion of medical professionals within the CPA, this article primarily focuses on the argument based on comparative analysis of the relevant law on the issue in other legal jurisdictions. The article presents an analysis of the current legal framework pertaining to CPA and the above-mentioned cases. Further it compares the Indian legal framework with how some of the other countries (more specifically, countries belonging to the EU) deal with the issue of medical professionals being excluded from the CPA.

Indian Legal Framework

In the Indian Medical Association case, it was held that even though medical practitioners belong to a ‘profession’, they are within the purview of ‘service’ under the CPA (1986). However, the more recent case of D.K. Gandhi excluded ‘professionals’ from the ambit of CPA. It was observed that the legislative draftsmen have nowhere in the act intended to include professionals. Thus, it was stated that the judgment in Indian Medical Association be revisited and medical professionals, just like Advocates, be excluded from the ambit of CPA.

Currently, medical professionals fall within the ambit of CPA of 2019 (in accordance with the Indian Medical Association judgement). CPA provides for the establishment of Central Consumer Protection Authority, which through its investigation wing has the power to conduct inquiry and investigation under CPA. In addition to this, the disputes redressal mechanism is handled by the Consumer Disputes Redressal Commissions at the district, state and the national levels which provides speedy and inexpensive redressal. As per the Act, Complaints can be filed by aggrieved consumers/consumer associations or even the central/state government or the central authority, in accordance with the respective pecuniary limits of the commissions. Final appeal under this Act lies with the Supreme Court. The Commission can direct parties to remove the defect in the good(s), pay compensation, replace good(s), grant punitive damages, etc. 

Complaints and grievances relating to professional and ethical misconduct against a registered medical practitioner can also be brought before the State Medical Councils (hereinafter, ‘SMCs’) or the Ethics and Medical Registration Board, established under the National Medical Commission Act (hereinafter ‘NMC Act’). No court is entitled to take cognizance of an offence punishable under the NMC Act. The powers of the SMCs are scattered as different state legislations provide them with different powers with only seven of them allowing a person to file complaints against medical practitioners. All of these legislations allow the SMC to cause removal from the register but only a few allow them to award imprisonment or compensation.

Comparative Analysis

A major argument put forth in Bar of Indian Lawyers case and Indian Medical Association case against the inclusion of professionals under the CPA was the existence of special legislations exclusively dealing with these professions. These include the Advocates Act and the Indian Medical Council Act. To substantiate this argument, Justice Pankaj Mittal, in his judgment, cited the Directive 2011/83/EU of the European Parliament on consumer rights which stated that the provisions of the directive shouldn’t apply to regulated professions, due to a requirement of special regulation.

If the current legal position is changed, patients will have to rely on the NMC Act and civil litigation, with civil litigation being the major path for compensation considering the scattered approach of the SMC legislations of various states, as mentioned above. It must be noted that the reason why EU countries could exclude healthcare professionals from their consumer protection legislations is because they formulated special acts providing for cheap, quick and easy path for compensation, extinguishing the need for civil litigation. This is contrary to the SMC legislations and civil litigation in India. Below, countries are discussed that are considered to have the strongest consumer protections in the EU.

Netherlands

The Individual Healthcare Professions Act provides for punishments like fine and cancellation of registration to maintain the quality of healthcare provided by the professionals. This is comparable to the NMC act with regards to the punishment provided. Additionally, there also exists the Healthcare Quality, Complaints and Disputes Act with a stated purpose of strengthening the position of patients in disputes. It requires, under chapter 3, healthcare providers to establish a complaint procedure policy. This policy is to be made in consultation with the representatives of patients. It also requires the appointment of independent persons to advise the patient free of charge regarding the submission of the complaint. A maximum of six weeks is given, under normal circumstances, for the complaint to be settled. For external regulation, each such healthcare provider has to be affiliated with a dispute committee recognised by the Health Minister. The patient must be given all relevant information about this. These committees are moved to appeal against the decision made under the internal procedure and are authorised to award compensation. The committee must not take longer than six months in its decision. This means that this process is cheaper and quicker than the other path of litigation.

Finland

The Act on the Status and Rights of Patients provides that a dissatisfied patient may file a complaint with the head of the healthcare unit, who must deal with it within reasonable time. Moreover, if there is injury caused to the patient, he may move under the Patient Injury Act (replaced by the Patient Insurance act). Patients are granted compensation by a Patient Insurance Center on behalf of Insurance companies which insure the healthcare providers. Such compensation is granted in cases of injury caused by negligence and defective equipment usage. When a complaint is filed, the investigation is started within one week, with the decision and the undisputed compensation being given within three months. The Center must give reasons for rejection of compensation and must provide help to the patient with the procedure to be followed for further appeals to court, Patient Injury Board or other similar bodies. There is a separate who are appointed for each welfare services counties and have the duty to advise patients on the Act on the Status and Rights of Patients and help in filing complaint, claims for damages and appeals. Similar to the Indian law there exist organisations which maintain a registry of healthcare professionals. Deficiency in service can, under the Act on the Supervision of Social Welfare and Health Care Services, lead to removal from such registry.

Denmark

The Danish Patient Compensation Programme handles claims related to medical injury, while the costlier lawsuit-based redressal has been abolished. In contrast to the litigation-based approach where patients could only be entitled to compensation if there had been a mistake by the health professional, in the current compensation programme, it only requires to be proven that the injury was caused by the healthcare system.  Cases are received, disclosed and decided by the Patient Compensation Association, under Section 33 of the Danish Act on the Right to Complain and Receive Compensation within the Health Service (hereinafter ‘the Danish Act’). Patients can appeal against the decision of the Patient Compensation Association before the Patient Compensation Appeals Board, with the final appeal lying in the courts. After an application is received, a caseworker is assigned who investigates the case, along with one or two doctors who determine if the medical care received was adequate or not. On the basis of the investigation, the compensation is determined and then paid by the Minister for Health or other entities (including private entities), under Section 54 of the Danish Act.. It usually takes a period of nine months to reach an adjudication in a compensation claim under this scheme.

Norway

Compensation claims for medical injury can be filed before the Norwegian System of Patient Injury Compensation (NPE) which is a public agency under the Norwegian Ministry of Health and Care Services. Claims are considered free of charge, with legal costs being provided in certain cases. Nevertheless, the process can be successfully completed without the assistance of a solicitor. The claims are investigated by a claims manager who obtains relevant documentation and conducts investigation related to medical and legal matters relating to the claim. NPE also takes assistance of specialists or experts, engaged through framework agreements or for individual assignments, from various fields to reach at a decision. A decision by the NPE can be sent back for reconsideration, which will be sent for appeal to the Patient Injury Compensation Board, further appeal from which will lie before the courts.

In addition to the compensation scheme, the Norwegian Board of Health can impose sanctions on doctors in the form of warnings or loss of license to work, if doctors violate the Act on Doctors or otherwise engage in unacceptable practices.

Conclusion and Suggestions

After an analysis of the legislations of various countries, the authors make a few observations. Firstly, Most of the EU legislations discussed above, and the Indian CPA, have traces of provisions which focus on speedy and cost-friendly dispute resolution, or strengthening of the status of patients by providing them with adequate legal assistance. These legislations are in line with the UNGA Guidelines. These guidelines state its objective to be counterbalancing the power imbalance caused due to difference in economic terms and education levels. Doctors compared to the average patient have a high degree of difference in economic, educational, and social status. This makes the legislative strengthening of the patients imperative. Thus, EU ensures that the patients are protected in the policies and legislations made specifically for medical professionals. However, if the Indian CPA is held to not apply to medical professionals, the NMC Act will not be able to provide patients with the same degree of protection.

Secondly, as mentioned above, arguments had been made in the case of D.K. Gandhi that the legislature did not intend to include medical professionals under the act, even if it did not explicitly exclude them. However, on comparison to other jurisdictions such as the EU, we find that there is an explicit exclusion, by way of the Directive 2011/83/EU of the European Parliament. Moreover, if the legislature had intended to modify the present paradigm, it would have done so when it revamped the law in 2019. Such substantial changes must not be made through Judiciary but by the Legislature, through clarifications if necessary.

Therefore, even if medical professionals are to be excluded from the act, it is an absolute necessity that the same is done by the Legislature. In that case, the existing laws must be modified on similar lines as the EU laws to ensure adequate rights and protections to the injured patients.

The post is written by Hardik Kuldeep, Nishtha Chopra– 3rd year students at Dr Ram Manohar Lohiya National Law University.

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