Jammu & Kashmir High Court - Srinagar Bench
Initiating Suo-Moto Proceedings vs Secretary Health, Govt. Of India New ... on 14 September, 2018
Bench: Chief Justice, Dhiraj Singh Thakur
Serial no.3
Regular List
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
PIL No.19/2016
Date of order: 14.09.2018
Initiating Suo-Moto Proceedings v. Secretary Health, Govt. of India
New Delhi.
Coram:
HON'BLE THE CHIEF JUSTICE.
HON'BLE MR JUSTICE DHIRAJ SINGH THAKUR, JUDGE.
Appearance:
For the appellant(s) : Mr A. Haqani, Advocate.
For the respondent(s) : Mr T. M. Shamsi, ASGI, for no.1.
Ms Moksha Kazmi, Standing Counsel, for no.2.
Mr Asif Ahmad Bhat, AAG, for 3 and 4.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
1. Suo-Moto cognizance was taken by this Court on an open letter written by Mr G. S. Grewal, President of Punjab Medical Council to Hon'ble the Prime Minister, published in daily Newspaper "The Hindu" on 12 th June, 2016 and on an article written by Mr Fida Iqbal, published in daily "Greater Kashmir" on 29 th June, 2016. These writings refer to problems and hardships faced by general public due to medical corruption with regard to exorbitant pricing of drugs; payments and commissions to referring doctors by pharmacists as well diagnostic centres; unnecessary reference of patients for testing to the diagnostic centres and medical examinations without actual need.
PIL No.19/2016 Page 1 of 82. The Secretary Health, Medical Council of India, the Commissioner/ Secretary Health and Medical Education Department of the State of Jammu & Kashmir as well as the State Medical Council, J&K, stand impleaded as parties. Several affidavits have been filed by these respondents.
3. Our attention is drawn to a reply affidavit dated filed on 28 th February, 2017, by the Medical Council of India. Along with the said reply affidavit, the respondent no.2 has annexed copy of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. Inter-alia, we find that these relevant Regulations prescribe as under: -
"1.4.1 Every physician shall display the registration number accorded to him by the State Medical Council/ Medical Council of India in his clinic and in all his prescriptions, certificates, money receipts given to his patients.
1.5 Use of Generic names of drugs.--Every physician should, as far as possible, prescribe drugs with generic names and he/ she shall ensure that there is a rational prescription and use of drugs.
1.6 Highest quality assurance in patient care.--Every physician should aid in safeguarding the profesion against admission to it of those who are deficient in moral character or education. Physician shall not employ in connection with his professional practice any attendant who is neither registered nor enlisted under the Medical lists in force and shall not permit such persons to atend, treat or perform operations upon patients wherever professional discretion or skill is required. 2.1 Obligations to the Sick PIL No.19/2016 Page 2 of 8 2.1.1 Though a physician is not bound to treat each and every person asking his services, he should not only be ever ready to respond to the calls of the sick and the injured, but should be mindful of the high character of his mission and the responsibility he discharges in the course of his professional duties. In his treatment, he should never forget that the health and the lives of those entrusted to his care depend on his skill and attention. A physician should endeavour to add to the comfort of the sick by making his visits at the hour indicated to the patients. A physician advising a patient to seek service of another physician is acceptable, however, in case of emergency a physician must treat the patient. No physician shall arbitrarily refuse treatment to a patient. However for good reason, when a patient is suffering from an ailment which is not within the range of experience of the treating physician, the physician may refuse treatment and refer the patient to another physician. 2.1.2 Medical practitioner having any incapacity detrimental to the patient or which can affect his performance vis-à-vis the patient is not permitted to practice his profession. 3.1 Unnecessary consultations should be avoided:
3.1.1 However in case of serious illness and in doubtful or difficult conditions, the physician should request consultation, but under any circumstances such consultation should be justifiable and in the interest of the patient only and not for any other consideration.
3.2 Consultation for Patient's Benefit: In every consultation, the benefit to the patient is of foremost importance. All PIL No.19/2016 Page 3 of 8 physicians engaged in the case should be frank with the patient and his attendants.
3.7 Fees and other charges:
3.7.1 A physician shall clearly display his fees and other charges on the board of his chamber and/or the hospitals he is visiting. Prescription should also make clear if the Physician himself dispensed any medicine."
4. In chapter 6, these Regulations set-out what are considered Unethical Acts.
Regulation 6.4 which has a bearing on the instant writ petition reads as follows:-
"6.4 Rebates and Commission:
6.4.1 A physician shall not give, solicit, or receive nor shall he offer to give solicit or receive, any gift, gratuity, commission or bonus in consideration of or return for the referring, recommending or procuring of any patient for medical, surgical or other treatment. A physician shall not directly or indirectly, participate in or be a party to act of division, transference, assignment, subordination, rebating, splitting or refunding of any fee for medical, surgical or other treatment. 6.4.2 Provisions of para 6.4.1 shall apply with equal force to the referring, recommending or procuring by a physician or any person, specimen or material for diagnostic purposes or other study / work. Nothing in this section, however, shall prohibit payment of salaries by a qualified physician to other duly qualified person rendering medical care under his supervision.PIL No.19/2016 Page 4 of 8
6.8 Code of conduct for doctor and professional association of doctors in their relationship with pharmaceutical and allied health sector industry.
6.8.1 In dealing with pharmaceutical and allied health sector industry, a medical practitioner shall follow and ahere to the stipulations given below:-
(a) Gifts: A medical practitioner shall not receive any gift from any pharmaceutical or allied healthcare industry and their sales people or representatives.
(b) Travel facilities: A medical practitioner shall not accept any travel facility inside the country or outside, including rail, air, ship, cruise tickets, paid vacations, etc., from any pharmaceutical or allied healthcare industry or their representatives for self and family members for vacation or for attending conference, seminars, workshops, CME programme, etc., as a delegate.
(c) Hospitality: A medical practitioner shall not accept individually any hospitality like hotel accommodation for self and family members under any pretext.
(d) Cash or monetary grants: A medical practitioner shall not receive any cash or monetary grants from any pharmaceutical and allied healthcare industry for individual purpose in individual capacity under any pretext. Fuding for medical research, study, etc., can only be received through approved institutions by modalities laid down by law/ rules/ guidelines adopted by such approved institutions, in a transparent manner. It shall always be fully disclosed."PIL No.19/2016 Page 5 of 8
5. Chapter 7 prescribes acts of omission and commission on the part of the physician which constitute professional misconduct rendering a doctor for disciplinary action. Regulation 7 makes mention of violations of the regulations. Regulation 8 deals with the punishments and disciplinary Action.
6. It is submitted by learned counsel for the petitioner that the respondent nos. 3 and 4 were required to ensure compliance with the requirement of these regulations.
7. Undoubtedly, in terms of that Regulation, complaints are to be made to the State Medical Council. There may be several reasons as to why complaints are not so made. In the orders' dated the 19th of September, 2017, this Court has noted the requirement of publicizing the price of stents in terms of the above Regulations and that the same is stated to have been complied with. Doctors also need to be reminded about their duties as provided under the Indian Medical Council Act.
8. Let the Government of Jammu & Kashmir take effective steps to ensure adequate and effective publicity to the public at large with regard to the medical provisions as well as machinery provided under the Regulations of 2002 (supra) for taking action against the doctors who do not comply with the requirements thereof. It cannot be disputed that this matter brooks no delay and urgent steps are required to be taken by the Government. The respondents shall ensure that adequate publicity is given in the print as well as electronic media about the same. An affidavit in this regard shall be filed before us within four weeks from today.
9. It is also pointed out that there is no compliance of the directions made on 8th May, 2017 in so far as the issue of sub-standard drugs being sold to patients in the open market is concerned. The State Government was also required to PIL No.19/2016 Page 6 of 8 disclose number of prosecutions initiated by them. In this regard a simplisitic stand has been taken that no complaint has been received against any doctor with regard to overcharging their patients while a complaint regarding stents and pricing is being addressed by the National Pharmaceutical Pricing Authority (NPPA), Ministry of Chemical & Fertilizers, (Department of Pharmaceuticals), Government of India.
10. It is also to be noted that Mr A. Haqani, learned amicus has filed a response dated 13th September, 2018, pointing out that as per the daily newspaper "Greater Kashmir" dated 29th July, 2018, 81% of total drug samples taken by the authorities from the Kashmir Valley were found sub-standard. The Drug and Food Control Organization lifted several samples of drugs and other healthcare consumables in the year 2017-18, out of which 69 were found sub-standard. These samples include 30 samples from Jammu Division and 51 samples from Kashmir Division including the hospitals. Out of the sub-standard drugs, seven drugs stood supplied by JK Medical Supplies Corporation Ltd (JKMSCL) a Government Agency, which include anti-biotics and life saving drugs.
11. Let the State of Jammu & Kashmir to file an affidavit placing before this Court the action taken in respect of the sub-standard medical samples more specifically the sub-standard drugs found to have been supplied by JK Medical Supplies Corporation Ltd. The particulars of the officers who had approved such drugs for sale and supply as well as the particulars of the civil and criminal action taken, be also placed before this Court before the next date of hearing.
12. List on 23rd October, 2018.
13. Copies of this order be given to learned counsel for the parties under the seal and signature of the Bench.
PIL No.19/2016 Page 7 of 814. The State counsel shall ensure that copy of this order is placed before the Chief Secretary of the State.
(DHIRAJ SINGH THAKUR) (GITA MITTAL)
JUDGE CHIEF JUSTICE
Srinagar
14.09.2018
Abdul Qayoom, PS
PIL No.19/2016 Page 8 of 8