Madhya Pradesh High Court
Manoj Upadhyay And Anr. vs Medical Council Of India And Ors. on 11 July, 2007
Equivalent citations: AIR2007MP286, 2007(4)MPHT35, AIR 2007 MADHYA PRADESH 286, 2008 (1) ABR (NOC) 95 (MPG), 2008 (1) AKAR (NOC) 55 (MPG), (2007) 4 MPHT 35, (2007) 60 ALLINDCAS 476 (MPG)
Bench: Chief Justice, Rajendra Menon
ORDER A.K. Patnaik, C.J.
1. The petitioners who are local residents of Gwalior have filed this writ petition as a Public Interest Litigation. They have stated that Regulation 6.1 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 (for short 'the Regulations of 2002') prohibits doctors who have been registered as Medical Practitioners, from advertising their names in large sign-boards or hoardings, but in the entire State of Madhya Pradesh, doctors and Nursing Homes owned by doctors have put up big sign boards and hoardings so as to attract patients for treatment. The petitioners have prayed that a direction be issued to the respondent Nos. 1 and 2 to constitute a permanent committee to keep vigil on the soliciting and infamous acts of the medical practitioners and to frame a policy through which the doctors at large may be made aware of the Regulations of 2002. Various other reliefs have been claimed in the writ petition for the purpose of ensuring that doctors desist from such acts of self-advertisement and unethical conduct in future.
2. After hearing the learned Counsel for the parties, we find that the Medical Council of India with the previous approval of the Central Government has made the Regulations of 2002 under Section 20A read with Section 33(m) of the Indian Medical Council Act, 1956 (for short 'the Act of 1956'). Chapter 6 of the Regulations of 2002 is titled as 'Unethical Acts'. Regulation 6.1 in Chapter 6 deals with advertising. Sub-Regulations 6.1.1 and 6.1.2 of Chapter 6 of the Regulations of 2002 are quoted herein below:
6.1.1. Soliciting of patients directly or indirectly, by a physician, by a group of physicians or by institutions or organisations is unethical. A physician shall not make use of him/her (or his/her name) as subject of any form or manner of advertising or publicity through any mode either alone or in conjunction with others which is of such a character as to invite attention to him or to his professional position, skill, qualification, achievements, attainments, specialities, appointments, associations, affiliations or honours and/or of such character as would ordinarily result in his self aggrandisement. A physician shall not give to any person, whether for compensation or otherwise, any approval, recommendation, endorsement certificate, report or statement with respect of any drug, medicine, nostrum remedy, surgical, or therapeutic article, apparatus or appliance or any property, quality or use thereof or any test, demonstration or trial thereof, for use in connection with his name, signature, or photograph in any form or manner of advertising through any mode nor shall he boast of cases, operations, cures or remedies or permit the publication of report thereof through any mode. A medical practitioner is however permitted to make a formal announcement in press regarding the following:
(1) On s tarting practice.
(2) On change of type of practice. (3) On changing address.
(4) On temporary absence from duty. (5) On resumption of another practice. (6) On succeeding to another practice. (7) Public declaration of charges.
6.1.2. Printing of self-photograph, or any such material of publicity in the letter head or on sign board of the consulting room or any such clinical establishment shall be regarded as acts of self advertisement and unethical conduct on the part of the physician. However, printing of sketches, diagrams, picture of human system shall not be treated as unethical.
3. It is clear from Sub-Regulation 6.1.1, quoted above, that a physician is prohibited from making use of him/her as subject of any form or manner of advertising or publicity through any mode either alone or in conjunction with others which is of such a character as to invite attention to him or to his professional position, skill, qualification, achievements, attainments, specialities, appointments, associations, affiliations or honours and/or of such character as would ordinarily result in his self aggrandisement. In Sub-Regulation 6.1.2, quoted above, it is further provided that printing of self-photograph, or any such material of publicity in the letter head or on sign board of the consulting room or any such clinical establishment shall be regarded as acts of self advertisement and an unethical conduct.
4. Regulation 7 in Chapter 7 of the Regulations of 2002 deals with 'misconduct' and Sub-Regulation 7.1 states that if a physician commits any violation of Regulations of 2002, it shall constitute professional misconduct rendering him/her liable for disciplinary action. Regulation 8 in Chapter 8 of the Regulations of 2002 provides for punishment and disciplinary action. Regulation 8.2, which provides that any complaint with regard to professional misconduct can be brought before the appropriate Medical Council for disciplinary action, is extracted below:
8.2. It is made clear that any complaint with regard to professional misconduct can be brought before the appropriate Medical Council for disciplinary action. Upon receipt of any complaint of professional misconduct, the appropriate Medical Council would hold an enquiry and give opportunity to the registered medical -practitioner to be heard in person or by pleader. If the medical practitioner is found to be guilty of committing professional misconduct, the appropriate Medical Council may award such punishment as deemed necessary or may direct the removal altogether or for a specified period, from the register of the name of the delinquent registered practitioner. Deletion from the Register shall be widely publicized in local press as well as in the publications of different Medical Associations/Societies/Bodies.
5. Thus, violation of Sub-Regulations 6.1.1 and 6.1.2 prohibiting advertisement or publicity by a physician of the nature described in the said sub-regulations makes a physician liable for disciplinary action under Regulation 7.1 and such disciplinary action can be taken by the Medical Council, namely the respondent No. 2 under Regulation 8.2 quoted above. As provided in Regulation 8.2, any complaint with regard to professional misconduct shall be brought before the appropriate Medical Council for disciplinary action and upon receipt of any complaint in regard to the misconduct, the appropriate Medical Council will hold an enquiry and give opportunity to the registered medical practitioner to be heard in person or by pleader and if the medical practitioner is found to be guilty of committing professional misconduct, the Medical Council may award such punishment as deemed necessary or may direct the removal altogether or for a specified period, from the register of the name of the delinquent registered practitioner.
6. The M.P. Ayurvigyan Parishad Adhiniyam, 1987 (for short 'the Adhiniyam of 1987') provides for maintenance of register of all State Medical Practitioners. Section 15 of the Adhiniyam of 1987 provides that the State Medical Council may, upon reference from the Registrar or otherwise, prohibit the entry in, or order the removal from the State Medical Register of the name of any person whom the Council after enquiry at which opportunity has been given to him to be heard in person and which may, at the discretion of Council, be held in camera, finds guilty. Section 17 of the Adhiniyam of 1987 further provides that for the purpose of any enquiry under Section 15 of the Adhiniyam of 1987, the Council or any Committee authorised by rules made under Section 29 shall be deemed to be a Court within the meaning of the Indian Evidence Act, 1872 and shall exercise all the powers of a Commissioner appointed under the Public Servants (Inquiries) Act, 1850 and such enquiry shall be conducted, as far as may be, in accordance with the provisions of Section 5 and Sections 8 to 20 of the Public Servants (Inquiries) Act, 1850.
7. Thus, under the Regulations of 2002 and the Adhiniyam of 1987, both the authority and the procedure which is to be followed for dealing with cases of advertisement by a physician in violation of Sub-Regulations 6.1.1 and 6.1.2 of Regulation 6.1 have been provided and it is not necessary for this Court to direct constitution of a separate committee for taking action against medical practitioners for such violation by doctors. As a matter of fact, we find that the State Medical Council, respondent No. 2, in its return, has stated in reply to Para 5.12 of the writ petition that to doctors whose names have been mentioned in Para 5.12 of the writ petition and who have placed extra large sign board either at prominent places of the town or outside the hospitals and such sign boards have been found to be in violation of the Regulations, notices had been given under Section 17 of the Adhiniyam of 1987 to show cause why action be not taken against them for violation of the Regulation 6.1 of the Regulations of 2002. In Paragraph 5.16 of the return, the respondent No. 2 has further stated that the respondent No. 2 is continuously taking action against the Medical Practitioners who have violated the provisions of the Act of 1956 or the Adhiniyam of 1987, or the Regulations of 2002.
8. We, therefore dispose of this writ petition with the direction that henceforth any complaint with regard to violation of Sub-Regulations 6.1.1 and 6.1.2 of the Regulation 6.1 of the Regulations of 2002 by any physician may be made by the petitioner or any other person on behalf of the public to the respondent No. 2 the State Medical Council, and if such a complaint is made, the State Medical Council will enquire into such complaint in accordance with the provisions of the Regulations 2002 and the Adhiniyam of 1987 and after giving due opportunity to the delinquent registered medical practitioner of being heard, take action against him in accordance with the provisions of the Adhiniyam of 1987 and the Regulations of 2002.
9. Mr. Tapan Trivedi, learned Counsel for the petitioner, submitted that in this writ petition, the petitioners have also prayed for formulation of Conduct Rules in compliance of Section 24 of the Adhiniyam of 1987 and Section 26 of the Indian Medical Council Act, 1956. This relief has not been dealt with by this Court in this writ petition. If a separate writ petition is filed claiming the aforesaid reliefs, the Court will consider the same on its own merits. The security amount of Rs. 2000/- be refunded to the petitioners.