INTRODUCTION:
Tribunal is any person or organization who has the authority to judge. In India, there are many tribunals for solving the cases on particular organizations or institutions, but there is no tribunal for medical offenses. Till today, the offenses that take place in the medical sectors will ultimately go to the courts and the judgments are rendered by the judges who have partial knowledge on the medical issues. We will discuss the concept in detail.[1]
WHY THERE IS A NEED FOR MEDICAL TRIBUNAL?
Article 323(B) of the Indian Constitution deals with the establishment of tribunals for other matters and Article 323(A) of the Indian Constitution deals with the administrative tribunals. Many cases are emerging in the medical sector regularly. There are a lot of medical issues that happen in hospitals, clinics and also the offenses done by the medical practitioners. If there is a medical tribunal in India, the disputes or the offenses that arise in the medical sector can be controlled. However, the decision of the tribunal may not be the final, but the parties can move for an appeal further to the High Court and the Supreme Court.[2]
CRIMES THAT TAKE PLACE IN HOSPITALS:
1. ABORTION:
Abortion is the destruction or destroying the child inside the womb of the mother or can be simply said as termination of pregnancy. According to the Medical Termination of Pregnancy Act, abortion is legal up to 12-20 weeks. In cases like pregnancy by rape, pregnancy which can cause grave injury to pregnant women, pregnancy by failure of contraceptives for limiting the number of children are the exceptional cases where the termination of pregnancy can be done at any time.[3]
2. ORGAN TRADE:
Organ transplantation is a medical procedure where an organ is removed from the body of one person and replaced in the body of another person. There is a huge demand in the markets for human organs. Here comes the role of organ trade where the organs of one person are illegally removed and sold in the market for organ transplantation. If any doctor does any trade of organs in India is punishable under the Transplantation of Human Organs (Amendment) Bill passed in 2011 with imprisonment of 10 years and fine up to Rs.1 crore.[4]
3. MEDICAL NEGLIGENCE:
Medical negligence is the misconduct by a doctor by not providing proper care which results in the violation of their duties and injuring the patients which sometimes leads to the death of the patient. The negligence of medical practitioners may lead to severe injuries or death of the patient.[5]
4. FAKE DOCTORS:
Fake doctors are also called quacks who do not have sufficient knowledge or medical practice or who might have discontinued from his medical college. In India, these quacks easily and independently function is the saddest fact. Quacks are formed because people are shy to open up with their issues to a qualified medical practitioner and they open their issues to the quacks and they misuse the trust of the people.[6]
DOCTORS LIABILITY:[7]
Under tort law: A medical practitioner has the duty to exercise due care, breach of his duty will make him liable for damages. If he acted by following his duty and abide by the ethics and law, then he will not be liable.
Under criminal law: However, if a doctor commits a negligent act by breach of his/her duty, breach of service which leads to severe injury or death of the patient, then the doctor will be liable for a criminal offense under the Indian Penal Code 1860.
Under the Consumer protection act:[8] Not only a medical practitioner but in general a professional person has the duty to provide proper care in performing services and rendering advice to his/her clients. Doctors from all the medical fields can be liable if there is a breach of duty under consumer protection act.
The duties are:
a. Decide to undertake a case carefully.
b. Deciding the treatment to render.
c. Performing the treatment with care.
Indian Medical Association Vs. V.P.Shantha[9]
This is a landmark case under the consumer protection act where the Supreme Court of India brought the medical professionals inside the scope of a “service” under the act. This explains the relationship between the doctor and the patients as contractual. The patients who had caused severe injuries at the time of treatment could now onwards sue the doctors in “procedure free” consumer courts for compensation. The Supreme Court held that medical practitioners cannot be treated as personal service contractors. A “contract of service” connotes a contract where one party render service to others in which the provider of the service is not subjected to control. The medical practitioner exercises technical skills and should use their own knowledge. The consumer protection act will not rescue the patients if the service is provided free of cost or if they have paid the nominal registration fee.[10]
NATIONAL MEDICAL COMMISSION BILL, 2019:[11]
The National Medical Commission bill was introduced in the Lok Sabha. The bill provides medical education system which assures
a. The availability of highly qualified doctors.
b. The adoption of recent medical research by professionals.
c. Checking the medical institutions periodically.
Functions of National Medical Commission:
a. Formulating policies for the regulation of medical institutions and professionals.
b. Judging the healthcare requirement for human resources and the infrastructure.
c. Formulating the guidelines to determine the fees up to 50% of seats in private medical institutions which includes deemed universities.
This bill merely acts like a medical tribunal which has similar procedures and actions like that of a medical tribunal.
CONCLUSION:
So far we have discussed the crimes, issues that take place in hospitals and we have also discussed the liability of a doctor under civil law, criminal law and consumer law. From the above study, we come to a conclusion that India requires a medical tribunal in the union and also in the states so that the offenses that take place in the hospitals, government health schemes or programs, offenses done by the doctors, hospital authorities, services rendered by the ambulance authorities can be then discussed by the chairperson in the tribunal who have the sufficient knowledge of the medical crimes and can render quick and reasonable fair justice. Therefore this study concludes that establishment of medical tribunal is a requirement for Indian society.
REFERENCE:
4.https://m.timesofindia.com/india/Now-10-years-jail-for-illegal-organ-trade/articleshow/9585613.cms
9.“Medical negligence and doctors liability” – Talha Abdul Rahman Indian Journal of Medical Ethics Vol II No. 2 April-June 2005
FOOTNOTES:
[1]https://en.m.wikipedia.org/wiki/Tribunal
[2]https://www.google.com/amp/s/amp.scroll.in/article/861096/interview-we-need-a-medical-regulator-that-is-more-like-a-tribunal-and-not-the-consumer-court
[3]https://www.google.com/amp/s/www.myadvo.in/blog/is-abortion-legal-in-india/amp/
[4]https://m.timesofindia.com/india/Now-10-years-jail-for-illegal-organ-trade/articleshow/9585613.cms
[5]https://www.lawctopus.com/academike/medical-negligence/
[6]https://www.google.com/amp/s/www.livemint.com/Science/BFelCnQ2fp120Kf5dhBQZP/Why-do-quacks-function-freely-in-India.html%3ffacet=amp
[7] “Medical negligence and doctors liability” – Talha Abdul Rahman Indian Journal of Medical Ethics Vol II No. 2 april-june 2005
[8]http://www.helplinelaw.com/govt-agencies-and-taxation/MNCP/medical-negligence-under-consumer-protection-act.html
[9] AIR 1996 SC 550
[10]“Medical negligence and doctors liability” – Talha Abdul Rahman Indian Journal of Medical Ethics Vol II No. 2 april-june 2005
[11]https://prsindia.org/billtrack/national-medical-commission-bill-2019
Submitted by,
Umamaheshwaran. R,
B.C.A.LL.B.(Hons.),
The Tamil Nadu Dr. Ambedkar Law University (School of Excellence in Law).
(Image used for representational purpose only. Image Courtesy: https://blog.ncqa.org/ncqa-seeks-publics-help-on-new-and-revised-hedis-measures/male-medicine-doctor-hand-holding-stethoscope-head/)