Read Time: 11 minutes

Justice R. Mahadevan of Madras High Court has issued a string of guidelines to be included in the National Medical Commission (NMC) Act, 2019 for handling complaints against medical practitioners.

The Court was hearing a writ petition filed by a practising doctor whose name was ordered to be removed from the Medical Register of Tamil Nadu Medical Council by the Tamil Nadu Medical Council.

FACTS IN BRIEF

In 2015, the doctor had examined a patient by name N. Pitchaimani, aged 66 years who was suffering from symptoms of disorientation, generalized weakness, giddiness and turbid urine and was admitted in the hospital on the same day. The said patient died under the treatment of the petitioner.

In lieu of this incident Tamil Nadu Medical Council ordered the removal of the petitioner’s name from the Medical Register of Tamil Nadu Medical Council.

VIEW OF THE COURT

The Court observed that there is no ground for disciplinary action against the petitioner due to the fact that there was no direct complaint against the petitioner and that he did not have sufficient opportunity to prove his innocence.

The disciplinary action taken against him was found to be wholly unjustified and liable to be set aside.

The Court observed that:

While "in the larger interest of the society, the highest degree of care, caution, propriety and rectitude is expected from and followed by the medical practitioners, who discharge a noble profession," it is important to acknowledge the services of medical practitioners, and "regard must be had to the fact that they work under tremendous pressure - physically, mentally, morally and also professionally. They cannot be expected to perform their best, if the swords of Damocles are kept hanging on their head constantly. Enough protection needs to be given to the medical practitioners in order that they may not be penalised, targeted or punished, unjustly."

In the course of the order the Court noted that current laws, including the Code of Medical Ethics, 2002 are completely bereft of any procedure to be adopted in carrying out disciplinary action for professional misconduct against medical practitioners.

In lieu of the same the Court deemed it fit to suggest the following guidelines to be included in NMC Act, 2019:

1. The Code/ Regulations should enunciate in general the duties bestowed by law on a registered medical practitioner. These duties and responsibilities are standards to be met by all medical practitioners in general.
2. After enumerating the general duties and responsibilities expected from a registered medical practitioner, certain specific duties and responsibilities, the violation of which would entail disciplinary action, would be construed as 'professional misconduct' to be enumerated in a list of instances that are illustrative.
3. Thereafter, a complete stage-wise guidelines/ mechanism is to be envisaged under the Code/Regulations from the time of filing of the complaint by an aggrieved person to the registration of such a complaint with the concerned medical council and the procedure to be followed thereafter.
4. The procedure for dealing with complaints would include the issuance of show-cause notice, opportunity for the accused doctor to reply, constitution of an expert committee, opportunity to hear both parties while following principles of natural justice, the submission of a detailed report by the Enquiry Committee and the submission of its recommendation to the disciplinary board of the State Medical Council/Ethics and Medical Registration Board.
5.  In order to make the disciplinary proceedings free from any loopholes and to avoid multiplicity of proceedings, the report of the enquiry committee is to be made final and binding the disciplinary board of the State Medical Council/Ethics and Medical Registration Board.
6. The disciplinary board of the State Medical Council/Ethics and Medical Registration Board will have to a permanent tenure, fixed three-member body (constituted by election by the Commission from amongst its members) that will function as the disciplinary authority for the purpose of professional misconduct by registered medical practitioners under the Code/Regulation.
7. The enquiry committee will have to be appointed by the unanimous consent of the members of the Disciplinary Board of the State Medical Council/Ethics and Medical Registration Board as the case may be.
8. The enquiry committee shall be a three-member committee with one member from the field of general/internal medicine and two other members from the concerned fields as required on a case to case basis.
1. Any complaint made to the State Medical Council/Ethics and Medical Registration Board shall be disposed of within a period of six months in total from the time of filing of the complaint.
10. For the purpose of giving enough and extensive powers to the enquiry committee, inspiration may be drawn from Section 42 of the Advocates Act, 1961 where the disciplinary committee of the Bar Council is given extensive powers with respect to conducting enquiry, recording of evidence et cetera.
11. A period of limitation for filing a complaint against a medical practitioner can be loosely fixed by the Council while giving liberty to the disciplinary board to relax the same, if the case so deserves

Cause Title: Dr. P. Basumani  V The Tamilnadu Medical Council & Ors.