TO THE HONOURABLE MEMBER OF PARLIAMENT

 

CONSUMER PROTECTION BILL 2018

Dear Sir,

Consumer Protection Bill 2018 has been passed by Loksabha on 20. 12.18. The original CPA act 1986 passed by Parliament did not envisage to include the medical profession. Medical profession was brought under the purview of Consumer Protection Act in 1994 following a supreme court verdict in V.P.Shanta Vs Indian Medical  Association case.

The Salient points regarding Consumer Protection Bill 2018 passed by Loksabha on 20.12.18 which will have impact on the health sector are

• District consumer redressal forum’s jurisdiction increased from Rs 10 Lakhs to Rs 1 crore.

• Jurisdiction of State Consumer Commission increased from 1 crore to 10 crores

 

• No provision for a  Judicial member in the current Act.

• Not  only patients, but associations and other bodies can complain to consumer fora.

• Provision for Consumer mediation cells which will be misused to harass and blackmail doctors.

• No expert medical opinion is required.

 

Composition of the Commissions :

The Bill specifies that the Commissions will be headed by a ‘President’ and will comprise other members.  However, the Bill delegates the power of deciding the qualifications of the President and members to the Central Government.  It also does not specify that the President or members should have minimum judicial qualifications.  This is in contrast with the existing Consumer Protection Act, 1986, which states that the Commissions at various levels will be headed by a person qualified to be a judge.  The 1986 Act also specifies the minimum qualification of members. Under the current Bill, if the Commissions were to have only non-judicial members, it may violate the principle of separation of powers between the executive and the judiciary.  Since these Commissions are adjudicating bodies and will look at consumer dispute cases, it is unclear how a Commission that may comprise only non-judicial members will undertake this function.

 

 

 

 

Method of appointment :-

The Bill permits the central government to notify the method of appointment of members of the Commissions.  It does not require that the selection involve members from the higher judiciary.  It may be argued that allowing the executive to determine the appointment of the members of Commissions could affect the independent functioning of the Commissions.  This provision is also at variance with the 1986 Act.  Under the Act, appointment of members to these Commissions is done through a selection committee.  These section committees comprise a judicial member. As mentioned previously, the Commissions are intended to be quasi-judicial bodies, while the government is part of the executive.  There may be instances where the government is a party to a dispute relating to deficiency in service provided by a government enterprise, for e.g., the Railways.  In such a case, there would be a conflict of interest as the government would be a party to the dispute before the Commissions and will also have the power to appoint members to the Commission

CPA was a turning point in the Health care industry.CPA was the prime reason for manifold escalation of the Health care cost. Mindless litigations and defensive practices flow from CPA. Slowly and steadily small  and medium hospitals have been eliminated. For profit Hospitals  have taken over the secondary care as well.

Indian Medical  Association,  the umbrella organisation of all modern medical practitioners in the country representing 8.5lakhs modern medical practitioners is very much concerned about many of the provisions of Consumer Protection Bill 2018. We feel that this move will cause further increase in treatment cost, make health care unaffordable and inaccessible to weaker sections of the society, promote corporatization of health care make small and medium hospitals unviable and will make implementation of public funded health programs difficult. On one hand Government is concerned about the catastrophic Health care cost and on the other hand the same Government indirectly changes the rules of the game. What has to be realised is that such moves hit people directly.  More and more people will go below the poverty line every year. Apart from the adverse impact on the small and medium hospitals, all small entrepreneurs across the spectrum will also be hit.

 

How the patients/community by large will be adversely affected if this Bill is approved by the upper house (Rajya Sabha) of the parliament:

1. Medical professionals will have to enhance their medical indemnity insurance protection by minimum 200% from the present level, for their protection against litigations if any. This will entail increase by 200% their annual subscription. They will then have no options left than to increase their professional charges of managing patients. Ultimately this burden will fall upon the poor and needy patients.

2. Medical professionals will have no alternatives left than to move away to a very defensive practice, and of not talking any risk to manage emergency and complicated cases. This would again adversely affect the positive health out come of patients.

3. Because of ensuing defensive practice, quantum of laboratory investigations will increase to multi-fold. This will again have an adverse implications on patients increasing their out of pocket expenses.

4. Around 60% of primary and secondary health care services are provided across the country by solo medical practitioners and/or by small nursing homes/hospitals. With such draconian provisions in the Bill, they will have no alternatives left than to close down their practices. Considering lack of these facilities available in public health centers and institutions, ultimately the sufferers would be the poor and marginalized patients.

5. This Bill more than draconian for the medical practitioners, have not considered these humanitarian issues, adversely affecting availability of these services at affordable cost provided by small nursing homes.

6. Health and welfare of an individual being the constitutional right of each citizen of the country, this Bill if passed and made as an Act, will impinge upon the constitutional rights.

7. And as a welfare state and a welfare federal government, this Bill will unfortunately will be against the spirit of a welfare state.

 

In this back ground Indian Medical Association had placed certain suggestions for the draft bill 2015  which were put in public domain but have not been considered in the 2018 Bill.

Hence we put forward the following points for your consideration

1. Very high compensation awards give rise to more frivolous litigations and indirectly promote defensive medicine. The compensation awards for medical negligence cases have to be capped to levels prescribed for drug trials.

2. A court without a Judge will be a Kangaroo court. A court cannot be entirely constituted with lay persons.

3. Litigations by organisations or associations are of vindictive in nature. These organisations have no locus standi in law.  It will be a bad precedence to allow such a practice.

4. Peer expert opinion need to be made mandatory before taking up a case of medical negligence by the consumer fora. This has been emphasized in the judgement by Martin D’Souza Vs Mohammed Ishaq read in 2009(3) SCC-1.

5. Representatives of Indian Medical Association have to be included in the consumer mediation cells and district, state and national consumer councils.

6. Provisions for imposing sufficient penalty for frivolous complaints have to be retained.

 

We request you to consider the concerns of the medical profession. We seek your solutions.

Thanking you

Yours sincerely

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