By Nevin Clinton, Flywork.io Team, Flywork.io.
Medical or health care services form an indispensable part of one's life, especially now during this worldwide health crisis. Let's revisit the Consumer Protection Act 2019 and see what could exclusion of healthcare under the new Act mean for consumers of medical treatments and services.
The Consumer Protection Act, 1986 which had been in force for more than 3 decades was repealed by the Consumer Protection Act, 2019 (hereinafter referred to as CPA 2019). The new act sought to replace those parts of the former act that were archaic while also bringing in a plethora of new provisions. Various objectives like the establishment of the Consumer Protection Authority, provisions on mediation, modern methods of filing of cases, hearings through video-conferencing, changing of pecuniary jurisdiction, and more were fulfilled and brought in. Among these changes, one other aspect that was pondered upon was the inclusion of ‘healthcare’ under the definition of ‘service’ which was present in earlier Bills presented before the Parliament. In the end, the inclusion was decided against from being implemented.
This exclusion isn’t a particularly groundbreaking one as such, but it still raises a lot of important questions. The reason why it isn’t groundbreaking is that the Act mentions that the definition ‘includes but is not limited to the terms that follow. And yet, it reflects the thinking of the lawmakers even as questions raised over how the issue of healthcare and medical negligence should be dealt with, continues to loom large. Before looking at the implications, it is noteworthy that ‘healthcare’ was never a part of consumer laws in India. It was only a potential change that seemed set to be made was not made.
Some Important Case Laws:
Now, it is essential to get some background on the issue of whether medical professionals have been covered under the CPA, 2019 through past case laws. The landmark case in this regard is Indian Medical Association v. V.P. Shantha where it was held that despite the fact that ‘healthcare’ is not included expressly under the definition of ‘service’, a medical practitioner’s consultation, diagnosis, and treatment would fall under it. In Jacob Mathew v. the State of Punjab, the same was reiterated and it was held that the degree of negligence on the part of the medical practitioner should be gross to be considered criminal. In Maharaja Agrasen Hospital v. Master Rishabh Sharma, the Supreme Court held that there was a vicarious liability on the part of the hospital as well, in cases of medical negligence. In none of these cases or any other case has there been a verdict stating that ‘healthcare’ does not fall under the definition of ‘service’ or that it should not be governed by the Consumer Protection Act.
Doctors are susceptible to harassment
It is noteworthy that medical professionals have not wanted to be governed by consumer laws and have wanted ‘healthcare’ to be expressly excluded from the act. And that is not what they’ve got as there is no express exclusion but a mere absence. So what are the implications? Firstly, cases of medical negligence can be governed by the CPA, 2019 as it has been in the past by the 1986 Act. So, doctors are still susceptible to harassment and hassles that could be caused by having a legal suit filed against them. Including medical negligence under ‘services’ could lead to frivolous lawsuits being filed. This is exactly why doctors have been opposed to the fact that ‘healthcare’ was not expressly said to be excluded.
Patients’ rights are important too!
But there is another side of the coin to consider. Protection of patients is of paramount importance and doctors can’t afford to be too casual in rendering their services. Of course, patients have the option of invoking Section 304A of the Indian Penal Code under which a case for death caused by negligence can be filed or deprivation of the right to life under the Constitution of India. But having the protection under the CPA helps patients hold doctors accountable wherever necessary and not only in cases of death or grave injury.
Hence, there is a need to strike a balance between protecting patients and safeguarding doctors from harassment and hassles. A clear explanation through regulations or guidelines can go a long way in ensuring the same instead of leaving every aspect of medical negligence to be dealt with on a case-to-case basis. If the government does so, not only the courts and consumer commissions but also the medical practitioners and patients will have much-needed relief from the uncertainty that is prevalent at present.