TaxTMI 
TaxTMI 
2017 (8) TMI 1507
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.... that, the various provisions of the Act of 2017 are arbitrary, unreasonable and irrational. They infringe upon the fundamental right to practice one's profession guaranteed under Article 19(1)(g) of the Constitution of India. 3. Referring to Section 2(c) of the Act of 2017, Learned Senior Advocate for the petitioners has submitted that, the 2nd explanation to the definition of 'clinical establishment' allows an individual medical practitioner to be treated as operating in any establishment within the meaning of the Act of 2017, in the event, such individual medical practitioner, in the discharge of his duties and attending to his patients, require a medicine to be administered to the patient visiting his chamber in view of the emergent medical condition of such patient. Then such individual medical practitioner does not remain out of the purview of the Act of 2017. The various provisions of the Act of 2017 are onerous for an individual medical practitioner to comply with. He has referred to the statement of objects and reasons of the Act of 2017 and submitted that, the stated objective of the Act of 2017 is to regulate the affairs of large nursing homes and in effect ....
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....ioner irrespective of the nature or the branch of his practice, is required to attend to a victim of an accident, injury or trauma. This requirement would be counterproductive to the public at large. The public instead of taking the patient to an appropriate place for proper treatment, would be looking at the first available medical practitioner in the vicinity, to provide the requisite medical treatment. The first available medical practitioner, may not be the appropriate person to administer the requisite medical help. In that process, the interest of the patient stands to suffer. Moreover such a provision is opposed to Regulation 2.1 of the Regulations of 2002. 5. Referring to Section 7(3)(l) and (m) of the Act of 2017, Learned Senior Advocate for the petitioners has submitted that, the requirement of maintenance of a public grievance cell and a help desk is neither feasible nor practicable for a medical practitioner, at any level, more so at the rural area. It is also not practicable for a medical practitioner to have such an elaborate setup at an urban area. In any event, if a medical practitioner is forced to undertake such an exercise, then the same would result in extra fi....
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....misconduct. The Commission acting purportedly under Sections 36 and 37 would award an interim compensation and impose penalty as the case may be. This would be in conflict with the provisions of Regulation 8.2 of the Regulations of 2002. 8. Referring to the mechanism for adjudication of complaints against the doctors covered under the Act of 2017, learned Senior Advocate for the petitioners has submitted that, the Commission is the appellate authority. He has referred to Section 35 and has submitted that, non-medical persons would constitute an adjudicating authority. He has referred to Section 36 of the Act of 2017 and submitted that, the composition of the Commission and the quorum of the Commission for the purpose of adjudicating a dispute in an appeal would allow such Commission to take a decision without any medical person being on Board. Therefore, the interests of the doctors would stand prejudiced as a non-doctor would be considering an issue as to whether or not there was medical negligence when such adjudicating authority and the appellate authority may not have the expertise to decide such a complex issue. This would lead to miscarriage of justice. He has referred to Se....
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....submitted that, the Act of 2010 was more than sufficient to take care of the situation sought to be addressed by the new Act of 2017. The old Act of 2010 did not impede a judgment being made, a decision or a risk being taken by a doctor in the interest of the patient. 10. Relying upon 2002 Volume 8 Supreme Court Cases page 481 (T.M.A. Pai Foundation & Ors. v. State of Karnataka & Ors.) learned Senior Advocate for the petitioners has submitted that, the State cannot encroach into the functioning of a private institution. The Act of 2017 is replete with provisions regarding regulation of a private institution. He has referred to 1981 Volume 1 Supreme Court Cases page 722 (Ajay Hasia & Ors. v. Khalid Mujib Sehravardi & Ors.) and 2011 Volume 9 Supreme Court Cases page 286 (Andhra Pradesh Dairy Development Corporation Federation v. B. Narasimha Reddy & Ors.) and has submitted that, an Act of the State Legislature has to pass the test of Article 14 of the Constitution of India. The various provisions of the Act of 2017 referred to by him, do not pass such test. Therefore, such sections ought to be set aside. Relying upon 2011 Volume 9 Supreme Court Cases page 1 (K.T. Plantation (P) Ltd.....
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....benefit of a patient. According to him, the various provisions of the Act ought to be struck down. The cumulative effect of the provisions under challenge makes the entire Act of 2017 unworkable, infeasible, impracticable, irrational and, therefore, the entirety of the Act of 2017 ought to be struck down. 12. The writ petition has been opposed by the State, Medical Council of India and West Bengal Medical Council. Learned Advocate General appearing for the State has submitted that, the petition as framed is not maintainable. He has drawn the attention of the Court to the prayers made in the writ petition. He has submitted that, the various provisions of the Act of 2017 alluded to by the learned Senior Advocate for the petitioners, are not under challenge in the writ petition. In support of such contention, he has referred to the prayers made in the writ petition. Only Section 14 of the Act of 2017 is under challenge in the prayer of the writ petition. Such section requires a doctor to take a registration under the Act of 2017. None of the petitioners before the Court have pleaded that, they have a registration under Section 14 of the Act of 2017. Therefore, none of the petitioners....
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....id licence which according to him, a medical practitioner usually does not do so. In this regard, he has referred to Rules 2(f), 59(2), 65(2), (3), (4) and 9(a) and (b) along with Form 20, 20B, 20F and 20G. He has also referred to Item 5 of Schedule "K" thereto. 15. Referring to 2005 Volume 7 Supreme Court Cases page 1 (State of Punjab v. Shivram), 2016 Volume 4 Supreme Court Cases page 631 (Sayyed Ratanbhai Sayeed & Ors. v. Shirdi Nagar Panchayat & Anr.) and 2016 Volume 7 Supreme Court Cases page 353 (Modern Dental College and Research Centre & Ors. v. State of Madhya Pradesh & Ors.) learned Advocate General has submitted that, the Supreme Court had noted the need for regulations of the medical profession. The Supreme Court has recognized that, there can be a conflict been a private and public interest. When such a conflict arises, the public interest should prevail. In the present case, if there is a conflict between the interests of the doctors in his private field with his public obligations then the Act gives priority to the public purpose and requires the doctor to discharge his public obligations, in preference to the private one. He has submitted that, as in the educationa....
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.... State Legislature in List II Entry 6 thereof. Therefore, the State Legislature has adequate legislative competence to enact the Act of 2017. 19. Learned Advocate appearing for the respondent No. 2 has submitted that, the disciplinary proceedings in respect of doctors are to be considered by the State Medical Council. He has referred to Sections 23 and 24 of the Indian Medical Council Act, 1956 in this regard. He has relied upon 2008 Volume 4 Supreme Court Cases page 720 (Government of Andhra Pradesh & Ors. v. P. Laxmi) as well as Section 38 of the Act of 2017. 20. Learned Advocate appearing for the respondent No. 3 has submitted that, the petitioner is not entitled to challenge the entirety of the Act of 2017 or the provisions specified, in course of argument, inasmuch as the prayers in the writ petition does not sustain the same. He has submitted that, there is no repugnancy between the Act of 2017 and the Regulations of the Medical Council of India. 21. In reply the learned Senior Advocate for the petitioners has distinguished the judgments cited on behalf of the respondents. He has submitted that, in the facts scenario of the present case, the judgments cited on behalf of th....
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.... in the pleadings of the writ petition, with regard to such provisions of the Act of 2017. At the prayer portion of the Writ petition, the petitioners have, in aggregate, made seven prayers. In the first prayer, the petitioners have sought for a declaration that, the provisions of Section 14 of the Act of 2017 are ultra vires. In the second prayer, the petitioners have sought for appropriate writ or writs. In the third prayer, the petitioners have prayed for a Rule NISI. In the fourth prayer, the petitioner have sought for an interim order restraining respondents from giving effect to the provisions of Sections 1(4), 2(c)(ii), 2(d), 2(v), 2(za),7(2),7(3)(c), 7(3)(i), 7(3)(j), 7(3)(k), 7(3)(l) to (p), 7(3)(r), 7(3)(s), 7(3)(v), 13, 27, 29, 30, 32, 33(1), 33(2), 36, 38 and 42 of the Act of 2017. The balance of the prayers are consequential to the previous prayers. There are pleadings with regard to the vires of the Sections that are under challenge, in the body of the writ petition. The prayer portion of the writ petition is not happily drafted. A member of the public would not be committing sacrilege, if such member was to observe that, the prayers made in the writ petition under co....
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....a point of view which makes out a case to go to trial. Therefore, the petition discloses a cause of action. The issues raised in the writ petition are required to be decided. The writ petition as it stands cannot be dismissed on the ground of maintainability alone. It is one thing to say that, the writ petitioners may not receive any relief upon consideration of the merits of the matter. It is another thing to say that, the merits of the writ petition need not be adjudicated upon as the writ petition as it stands, is not maintainable. 27. The first issue is therefore, answered in the affirmative and in favour of the petitioners. The writ petition is maintainable. 28. As noted above, the petitioners are doctors claiming themselves to be members of a Doctors Forum. The petitioners have claimed to be engaged in individual medical practice. They have claimed that, their right to practice stands infringed by the various provisions of the Act of 2017. 29. K. Shyam Sunder & Ors. (supra) has held that, the history of legislation needs to be looked at by lifting the veil. It recognizes that, legislative competence can also be looked at while deciding the question of a vires of a particul....
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....e used or intended to be used for consultation and treatment by a registered medical practitioner. The registration and standards were laid down in Chapter II. The procedure for registration and licensing were laid down in Chapter III. It had provided for powers to enter any clinical establishment. It had also provided an appeal to the designated appellate authority in the event of orders being passed under the various provisions of the Act were assailed. Chapter IV of the Act of 2010 had dealt with the contravention and penalty. Chapter V of such Act had provided for an adjudicating authority and a Tribunal in respect of complaint relating to contraventions of Sections 27, 28, 29(1) and Section 30 of such Act. The Act of 2010 was more elaborate than that of the Act of 1950 and it had covered a large horizon than the previous Act of 1950. The Act of 2010 had repealed the Act of 1950. 31. The State Government subsequently found the Act of 2010 not to be adequate to address the issues of lack of transparencies in the functioning of clinical establishment in general and private hospitals or nursing homes in particular. It found unnecessary and avoidable harassment and exploitation of....
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.... analysis or collection of sample and specimen or other diagnostic or investigative services, procedure or intervention, or (ii) preparation of cultures, vaccines, sera or other biological or microbiological products, with the aid of laboratory or other medical equipment for the purposes of diagnosis, treatment or research of diseases; (e) .............................................................................. (f) ............................................................................... (g) ............................................................................. (h) .......................................................................... (i) ........................................................................... (j) ........................................................................... (k) ............................................................. ............. (l) ........................................................................... (m) .......................................................................... (n) ........................................................................... (o) ..........................................
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....be prescribed; (e) made such arrangements for disposal of biomedical wastes as may be prescribed; (f) made provisions for maintenance of such records and registers in such form and containing such particulars as may be prescribed; (g) fulfilled any other condition that may be prescribed. (3) Every license granted under sub-section (1) shall be subject to the following terms and conditions :- (a) ............................................................................ (b)............................................................................. (c) that the clinical establishment shall not resort to any unethical or unfair trade practices including unfair pricing for different services; (d)......................................................................... .... (e)............................................................................. (f).............................................................................. (g)............................................................................. (h) ................................................................... .......... (i) that every case of a victim of accident, injury, or trauma, received or a....
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....ice recipients during initiation or due course of treatment, and final bills shall not exceed estimates by a certain percentage, as may be prescribed by the Government; (q) ........................................................................... (r) that every clinical establishment having more than 100 beds may endeavour setting up Fair Price Medicine Shop and Fair Price Diagnostic Centre; (s) that any clinical establishment which has received land or other facility from the Government during initiation and in course of continuance of their projects shall be responsible to provide completely free treatment to 20 percent of Outdoor Patient Department patients and 10 percent of Indoor Patient Department patients in such manner as may be prescribed: Provided that clinical establishments, owned and managed by corporate entities that have not availed such benefits, may endeavour to provide completely free treatment to 20 percent of Outdoor Patient Department patients and 10 percent of Indoor Patient Department patients as part of their Corporate Social Responsibility; (t) ........................................................................... (u) ...............................
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....n of this Act or any rule made thereunder resulting in such major deficiencies, that pose an imminent danger to the health and safety of any member of the public or patient and which cannot be rectified within a reasonable time, shall be liable to a penalty which may extend to ten lakh rupees. Explanation.-For the purpose of this section "minor deficiencies and major deficiencies" shall have such meaning as may be prescribed. 30. Whoever contravenes any provision of this Act or any rule made thereunder shall, if no penalty is provided elsewhere, be liable to a penalty which may extend to fifty thousand rupees for the first contravention and one lakh rupees for any subsequent contravention. .............................................................................. 32. General provision relating to penalties. - (1) While adjudging the quantum of penalty under this Chapter, the Adjudicating Authority or the Commission, as the case may be, shall have due regard to the following:- (a) the amount of gain or unfair advantage, wherever quantifiable, made as a result of the contravention; (b) the amount of loss caused or likely to be caused to any person as a result of the contrav....
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....s Act for ensuring accountability and transparency in dealing with patients by clinical establishments in providing patient care services, to advise the Government on measures be adopted for enhancing and augmenting the performance of clinical establishments in the State. (2) The West Bengal Clinical Establishment Regulatory Commission shall consist of- (a) a Chairperson, appointed by the State Government, who is or has been a High Court Judge or any officer who has held the office of Chief Secretary, Additional Chief Secretary in the State Government or any officer who has held equivalent post in the Government of India: Provided that a retired High Court Judge, if appointed as Chairperson, may pursue his professional work; (b) a Vice -Chairperson who is a person of eminence to be appointed by the State Government; (c) members not exceeding eleven in number, to be appointed by the State Government, selected from the fields of medicine including diagnostics, public health, academia, social services, law, finance, public administration, nursing and consumer interests. .............................................................................. 38. Powers and Functions of the....
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....s of the West Bengal Clinical Establishment Regulatory Commission shall be such, as may be prescribed: Provided that the salary, allowances and other terms and conditions of service of Chairperson, the Vice-Chairperson and the members, shall not be varied to their disadvantage after appointment. (2) Notwithstanding anything contained in sub-section (1), the Chairperson, the Vice-Chairperson or any Member of the commission may relinquish his office by giving in writing to the State Government a notice of not less than three months. .............................................................................." 33. The preamble to the Act of 2017 is as follows:- "An Act to provide for the registration, regulation and transparency of clinical establishments of the State and for matters connected therewith or incidental there to. WHEREAS it is expedient, in the public interest, to provide for registration, regulation and transparency in the functioning and activities of clinical establishments licensed under this Act, to preserve minimum standards of facilities and service to be provided by them to the service recipients." 34. As the preamble suggests, the Act of 2017 has come in....
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....ted under the Act of 2017. Once such a doctor treats the patient, he comes within the ambit of the Act of 2017. His intention was not to come within the Act of 2017. However, he was forced to come within the Act of 2017, in view of a situation which is beyond his control. 36. Clinical laboratory is defined in Section 2(d). A service provider is defined in Section 2(v). A doctor comes in within the meaning of a service provider. Section 2(za) defines West Bengal Clinical Establishment Regulatory Commission. It is a body constituted under the Act of 2017 as described in Section 36 thereof. It is required to regulate, supervise and discharge grievance redressal functions for patients as may be prescribed, over the activities of the clinical establishments licensed under the Act of 2017. Section 6 of the Act of 2017 requires a clinical establishment to obtain a registration and licence. It prohibits any person from keeping or carrying on any clinical establishment without any registration or licence. The conditions for registration and licence are laid down under Section 7 of the Act of 2017. Sub-section (2) of Section 7 prohibits grant of licence towards a clinical establishment unle....
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....aving more than 100 beds to set up a fair price medical shop and fair price diagnostic centre. Clause (s) deals with clinical establishment which has received any amount or other facility from the Government to provide free treatment of 20 per cent of outdoor patients and 10 per cent of indoor patients. Clause (v) lays down that, no person shall be denied, under any circumstances, including inability to pay the requisite fee or charge, such emergency life-saving medical treatment and critical care by the clinical establishment as may be prescribed. The proviso also allows the right to recover the costs from the service recipient or their representative in due course of time. 37. Section 12 of the Act of 2017 deals with the application for registration and licensing. Section 13 of the Act of 2017 deals with grant of registration and licence. Section 13 of the Act of 2017 allows either grant or rejection of an application for licence or renewal. The grounds for rejections are specified in Section 14 of the Act of 2017. Section 24 of the Act of 2017 allows any officer of the State Government duly authorised to make inquiries, examine the place or establishment, inspect equipment and ....
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.... Act is taken up for consideration. 39. Ajay Hasia & Ors. (supra) has held that, Article 14 strikes at arbitrariness, as any legislative or executive action which is found to be arbitrary would constitute denial of equality. Article 14 guarantees equality. Article 14 springs into action and strikes down action of the legislature or the executive which violates the guarantee of equality. The concept of reasonableness and non-arbitrariness pervades the entire constitutional scheme. It is a golden thread which runs through the whole of the fabric of the Constitution. Article 14 is not limited to the formula of discrimination initially laid down. The scope of Article 14 has been noticed in Harbilas Rai Bansal (supra). It has held that, to be permissible under Article 14, a classification must satisfy two conditions, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons and things that are grouped together from others left out the group, and (ii) that the differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different basis, but what is neces....
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....the Legislature concerned has abdicated its essential legislative function as assigned to it by the Constitution or has made an excessive delegation of that power to some other body. (Hamdard Dawakhana v. Union of India, AIR 1960 SC 554 : 1960 Criminal Law Journal 735)." 41. The Act of 2017 seeks to regulate clinical establishment. As noted above, a medical practitioner satisfying the definition of a clinical establishment comes within the fold of the Act of 2017. According to the Advocate General, the need to regulate the medical profession has been noted by the Supreme Court. In Shivram (supra), in a suit for damages, against a doctor in the employment of the State, on account of a child being born in spite of the wife undergone a tubectomy operation the Supreme Court has observed that, the medical profession, is developing a tendency to forget that self-regulation which is at the heart of their profession is a privilege and not a right and a profession obtains this privilege in return for an implicit contract with society to provide good, competent and accountable services. It has also observed that, self-regulatory standards in a medical profession have shown a decline and thi....
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.... consultation clinic introduced in the definition of clinical establishment under Section 2(c) of the Act of 2017 allegedly gives rise to unreasonableness and irrationality. The petitioners have contended that, any doctor in private practice is required to treat a patient at the consultation chamber. Therefore, a doctor undertaking a private practice has to obtain registration under the Act of 2017 and thereby throw himself into the rigours of such Act when such doctor is in private practice, while the Act professes to regulate the large clinical establishments. True, the definition of clinical establishment as appearing in Section 2(c) of the Act of 2017, makes a distinction between a medical clinical and a medical consultation clinic. A person engaged in a medical clinic has to take a registration under the Act of 2017. Medical consultation clinic stands outside the scope and ambit of the Act of 2017. For a doctor to run a medical consultation clinic and stand outside the scope and ambit of the Act of 2017, the doctor concerned, cannot treat a patient at such medical consultation clinic. A medical consultation clinic will be used solely for the purpose of consultation and advice.....
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....called upon to violate the same while acting under the Act of 2017. 45. The Act of 2017 does not impede a doctor in the discharge of his professional duties. The conduct of a doctor is guided by the Regulations of 2002. A doctor is to serve the society. The nature of the profession and the oath that a doctor takes, requires a doctor to put service to the society prior to receipt of monetary benefits. The various provisions of the Act of 2017 which requires a doctor to serve the patient first and then look for the monetary return, in my view, does not infringe upon the right of a doctor to receive the monetary benefits for the services rendered or contravenes any provision of the Regulations of 2002. No regulation of the Regulations of 2002 has been placed before Court to suggest that, the Regulations of 2002 require a doctor to obtain the monetary benefit first before treating a patient, rather it is to the contrary. The Act of 2017 allows a doctor to recover the costs of treatment from the patients or the service recipients or their representatives in due course and through the due process of law. The provisions of the Act of 2017 seeks to arrest a disquieting trend in the medica....
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....red to List II Entry 6 under which the Act of 2017 has been enacted. List II of the 7th Schedule to the Constitution of India is the State List. Entry 6 relates to public health and sanitation; hospitals and dispensaries. The Act of 2017 seeks to regulate public health. It seeks to regulate private hospitals and dispensaries. Therefore, it can be said that the Act of 2017 is within the legislative competence of the State Government to legislate. 48. K.T. Plantation (P) Ltd. (supra) has held that, the classification created by a statute must have reasonable nexus with the object to be achieved. If the object can be achieved by an amendment to an existing statute, then a new Act need not come into being noted above, the State Government had felt that the existing laws were not sufficient to tackle the issues obtaining at the private health care sector. The legislature is deemed to know the subject on which it is legislating on. It has not been substantiated that the provisions of the Act of 2010 were sufficient to provide for all the areas now sought to be covered by the Act of 2017. 49. Chapter V of the Act of 2017 lays down the adjudicating authority for adjudicating complaints w....
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....t thereunder. 50. It has been contended that, there is a conflict between the Consumer Protection Act, 1986 and the Act of 2017. With respect, there is no conflict at all. A service recipient may approach the Consumer Forum under the Act of 1986 for compensation with regard to deficiency in services rendered. He may also make a complaint under the Act of 2017. The complaint under the two Acts would operate in different fields although at a given level, both the Acts would consider grant of compensation for deficiency in services. 51. V.P. Shanta & Ors. (supra) has held that, a professional man owes to his client a duty in tort as well as in contract, to exercise reasonable care in giving advice or performing services. Medical practitioners do not enjoy any immunity and they can be sued in contract or tort on the ground that, they have failed to exercise reasonable skill and care. Medical practitioners are not immune from a claim for damages on the ground of negligence. It has noted that, although medical practitioners are governed by the Indian Medical Council Act and are subject to disciplinary control of the Medial Council of India and/or State Medical Council as the case may b....