September 30   2015, Wednesday

Status paper on National Protest Day

1. Capping of compensation allowable on alleged medical negligence cases

Recently the Supreme Court of India awarded an amount of 11 crore rupees as compensation for medical negligence in a case. This judgment has caused a sense of panic among the medical professionals in our country. Subsequently in three more cases, the compensation awarded has been more than a crore. It has already resulted in a huge increase in the number of cases filed (several of which are on frivolous grounds) as well as a significant increase in the premiums paid to insurance companies.

Indian Medical Association (IMA) considers this as a very serious matter and we fear that this may even result in increase in the expenses on medical care.

A review of literature by IMA shows that the process of capping of compensation of medical practice law suits has been well established in developed countries, and India needs to adapt the policies being practiced in developed countries to its own requirements and can benefit greatly from their experience.

In this regard, to safeguard the interest of the people at large and to avoid unnecessary litigations and to save the precious time of courts as well as medical practitioners, IMA suggests the following:

• Amendments in the present act to cap the maximum allowable compensation in any case of medical negligence
• Mandatory screening of cases of medical negligence, before the case is admitted in the consumer court
• Mandatory provision of seeking expert medical opinion by the court before giving verdict on the technical issues
• Defining/ triaging the complaints into frivolous/ injurious/ grievous etc before submitting to the court of law
• Provision of penalty (to the Doctor/hospital) to be proportionate to the amount of compensation claimed
• The compensation is awarded on the basis of the income of the complainant. But irrespective of the income of the patient, the hospital always charges the same amount for services. Hence the compensation should only be decided on the basis of cost of the treatment.
• Health care Arbitrator: Just like insurance disputes are sent to arbitrators, an alternative dispute resolution mechanism can be looked into. The provision will be for providers and patients to submit disputes over alleged malpractice to a third party other than a court. This will help compensate victims faster, more equitably and with lower transaction costs (As of now the administrative cost of such law suits is approximately 53% of the total compensation claimed).
• Administrative Compensation Systems: It proposes to replace the current tort system with an administrative compensation system. The “health courts” model substitutes a specially trained judge as the finder of fact and arbitrator of law for the current system’s generalist judges and juries
• Judicial audits of the lower courts to assess fairness and judicious application of mind by the lower court
• A comparative analysis of the outcome of judicial verdicts given in past should also be carried out for better understanding of the effectiveness of the compensations awarded till date.
• The legal profession is kept out of the ambit of consumer court. Hence medical services should also be excluded from the consumer court.

2. Assault on Doctors-Central act for protection of clinical establishments and modification of IPC and CrPC similar to changes made to prevent crime against women

Indian Medical Association is deeply concerned about the increasing incidences of attacks on doctors and clinical establishments across the country every day even on very flimsy grounds. At least 13 states have acts to punish the perpetrators of such crime through the hospital protection acts. It has been observed that even in such states, no action is taken against the culprits under this act.

So IMA requests the Union Government to enact a common act to protect the clinical establishments from vandalism. If more than six states concur for such an act, a common act can be passed in the Parliament. Now more than 14 states have already enacted such an act and under the circumstances IMA feels that it is imperative in the larger interest of public health that a common act is framed and passed in the Parliament to curb this menace. Even in war, hospitals, doctors and paramedics have immunity against attacks. But now we find that on very flimsy grounds, anti-social elements who have a grudge against a hospital, utilise certain situations in the clinical institutions to seek vengeance, perpetuating vandalism. This cannot be allowed in a civilized society. This has to be considered as a crime against the helpless patients who are still in the hospital under treatment. For the sake of public health and to uphold the human rights, IMA urges the government to enact a law to protect the helpless patients, medical and para-medical staffs and clinical establishments.

IMA also observes that inspite of the state legislations or because the act is not effectively implemented, violence against clinical establishments and doctors occurs. IMA demands that changes should be made in IPC and CrPC similar to changes made to prevent crime against women.

3. Withdraw plans to start Bachelor of Science in Community Health (BSc Community Health)

IMA strongly objects to the Government move to start BSc Community Health course under the National Board, to man subcentres and empowering them to prescribe medicines.

Subcenters are the cornerstones of disease prevention activities and implementation of national health programs and not primarily meant to provide curative service except home remedies. The staff pattern in the subcentre consists of one male and one female multipurpose health worker (JPHN/JHI/ANMs). The job description of these staffs is family welfare services, immunization, awareness, household visits, data collection regarding disease prevalence, and coordinating other national disease control programs. These staffs currently work under the supervision of a medical officer posted in primary health centre (PHC). For this purpose, there is no need for a more qualified workforce. Posting the proposed BSc (Community Heath) graduates in subcentre level will be a wrong human resource management.

At the subcentre level, a more suitable workforce would be an ASHA worker with basic primary education and training. So the concept of posting paramedics at the subcentre will be a gross waste of human resources and will be counterproductive for the purpose they are meant. The policy proposal on this is not based on ground reality and is conceptually wrong. The deployment of overqualified staff at subcentres will only increase the attrition rate. Entrusting the newly proposed BSc (Community health) graduates to manage very sensitive areas like child health within the health system may even worsen the situation. To leave the health of children and adolescents in the hands of ill-equipped personals is detrimental and may nullify the results of years of hard work that the country has put into reducing child mortality and morbidity

Moreover, if the Government’s intention is to produce health workers to work in subcentres, why should such courses be conducted by national board of examination (NBE)?The NBE, in fact, conducts post graduate courses and not even undergraduate courses in modern medicine. Allowing these graduates to be registered under Medical Council will set a wrong practice.

IMA therefore, urges the Government to desist from the move to start BSc (Community Health) course

4. Amend PCPNDT Act

The PNDT Act came into being in 1994 with the purpose of improving the altered sex ratio in India. It was further amended in 2003 as the PCPNDT act to regulate the technology used in sex selection. The Act banned preconception and prenatal sex determination. Its intent was to curb the actual act of sex selection and female feticide by regulating the use of ultrasound technology. The World Health Organization (WHO) in its recent publication has clearly declared that restricting technology was not the way forward.

However, despite the Act having been in existence for over 20 years, the altered sex ratio in India has not changed. Instead, it has had two major negative consequences:

• In its current form, the implementation of the PCPNDT Act has deprived the community of life-saving and essential ultrasonography, which has now become an extension of clinical practice for all specialties globally, being a well known non-invasive, cost-effective and accurate diagnostic tool.
• The current PCPNDT act has made it extremely difficult for ultrasound clinics to ensure complete enforcement. Doctors and other medical professionals are being put to extreme hardship while performing routine and essential scans. Due to this, many qualified doctors are opting not to do PNDT scans, thus creating a shortage of experts trained in ultrasonography.

As the PCPNDT Act has not resulted in the improvement of the falling sex ratio, social rather than medical interventions will be required to handle this issue effectively. The Act is being used to punish doctors for minor offences such as clerical errors in the filling of forms, thereby resulting in doctors being prosecuted and ultrasound machines being seized and sealed.

IMA demands the following amendments:

• The Act needs urgent modification to allow unambiguous and easy interpretation. The “Rules” need to be simplified and implemented uniformly across the country, and ad hoc changing of rules by each local authority should be strictly prohibited. New rules must be logical and should apply to the entire country only after due discussion with the representative bodies. Time should be given for implementation of the new rules.
• The Act is to be directed only towards Obstetric Ultrasound and not any other applications of ultrasonography.
• The word “Offence” under this act has to be clearly defined. The word Offence should only mean the “actual act of sex determination or female feticide”.
• All other clerical/administrative errors should be classified as non-compliance (and not an offence). Strict penalties can only be imposed for the actual act of sex determination or female feticide and not for other errors. There is a need to redefine “what amounts to sex determination” as mere evidence of clerical error does not amount to sex determination. “Imprisonment” rules should be for the offence (of sex determination or female feticide) and not for non-compliance.
• Inspections should be conducted yearly, instead of every 90 days. No NGO can conduct “raids” on doctors’ premises and there should be no impediment to doctors doing their practice during inspections.
• Ultrasonologists should not be restricted to working in only two centers.
• The doctors should have the right to report on those seeking sex determinations and action must be initiated against them immediately.

5. Not to allow other system practitioners from practicing modern medicine through bridge courses and through government orders

During the pre independence era, the British Government had experimented with various type of health care from licentiate medical practitioners known as LMPs and various other integrated mixture system of practice mixing various systems of medicine. After the independence of India, due to the failure of all these existing types of health care delivery systems, the Government of India decided to re-evaluate the health care delivery system and framed the Indian Medical Council Act 1956, exclusively for the modern system of medicine and the Indian Medicine Central Council Act 1970 for the Indian System of Medicine. The Homeopathic Medical Council Act was framed for the Homeopathic system of medicine. Different qualifications were fixed for the practice of the different systems of medicine.

Thereafter, when disputes arose as to the right to practice the systems of medicine, the Supreme Court of India in Poonam Verma Vs Ashwin Patel and others reported in 1996(4)SCC 332, Dr. Mukhtiar Chand and Others Vs State of Punjab and Others reported in AIR.1999(SC) 468, Medical Council of India and another Vs State of Rajasthan reported in AIR 1996 (SC) 2073,categorically held that only persons holding the requisite qualifications prescribed by the respective medical councils and holding registration with the respective medical councils, alone will be entitled to practice the respective systems of medicine. It is also held in Dr. Preeti Srivastava Vs State of Madhya Pradesh reported in AIR-1999(SC) 2894 that dilution of the qualification prescribed by the councils for the practice of medicine cannot be diluted done by the State Government by any orders or legislations.

When the qualifications for the practice of modern medicine became rigid under the Indian Medical Council Act and by the various judgments stated herein above, Indian Medicine Central Council for Indian System of medicine and the Homoeopathy Central Council for the Homeopathic system of medicine started issuing circulars and orders permitting the persons registered under the respective councils to practice the modern system of medicine, which was out of the purview of the Indian Medicine Central Council and the Homoeopathy Central Council. These orders and circulars passed by the Indian Medicine Central Council and the Homoeopathy Central Council, for the practice of modern medicine, though out of their purview, are approved by the Central Government without proper verification. Usually the claim of medicine and systems of medicine is sent to the Indian Council for Medical Research for the final opinion before approval by the central Government, but unfortunately the circulars and orders of the Indian Medicine Central Council and the Homoeopathy Central Council for the practice of modern medicine are not properly verified and scrutinized by the Central Government before approval resulting in the practitioners of Indian System of Medicine and Homeopathic System of medicine practicing modern medicine under the guise of these orders and circulars, which are against the existing laws and the spirit of the judgments referred above.

The Government of India has to take strict notice of the purpose and contents of the orders and circulars of the Indian Medicine Central Council and the Homoeopathy Central Council for the permission to practice of modern medicine and these circulars and orders will have to be scrutinized by the Indian Medical Council and the Indian Council of Medical Research before approved by the central Government and the failure to do so will promote large scale quackery resulting in the damage to the life of citizens of our country.

The permitting of practice of modern medicine directly and indirectly to persons who has not qualified the standards of the Indian Medical Council under the Indian Medical Council Act will result in heavy miscarriage of public health causing dangers to the life of the general public in India.

Indian Medical Association demands the government to take note of the fact that various such orders and circulars are put to misuse by various State Governments and the Central Government overriding the provisions of Indian Medical Council Act. Therefore, IMA demands that the ministry should not permit Indian Medicine Central Council or the Homoeopathy Central Council to bring out such circulars and orders which are outside the purview of these councils and ensure that only modern medicine qualified doctors are permitted to practice modern medicine

It is noted that various state governments are passing Order/ Circular, permitting the practitioners of Indian System of Medicine registered under the Indian Medicine Central Council Act, 1970 to practice and prescribe modern medicine, under the provisions of the Indian Medicine Central Council Act-1970. In accordance with the law and the judgments of the Supreme Court in the Dr. Preeti Srivastava vs State of Madhya Pradesh case as reported in AIR-1999(SC) 2894, the state Government has no authority or power to pass any order/ circular or legislation to permit the practitioners of Indian System of medicine to prescribe and practice modern system of medicine. Such permissions if at all can be granted, it can only be granted by the Indian Medical Council constituted under the Indian Medical Council Act-1956.

The Supreme Court of India in DK Joshi vs State of Utter Pradesh, reported in SCR-2003-3-525 has directed the Utter Pradesh Government, to take action against the unqualified practitioners of modern medicine in the state. Moreover, the Division Bench of High Court of Utter Pradesh in writ petition no 64481 of 2012 in Praveen Kumar vs State of UP has clearly denied the permission for the practitioners of Indian Systems of medicine to practice modern medicine. This being the situation, the orders/circulars of various state Governments permitting the practitioners of Indian System of Medicine to prescribe and Practice modern Medicine is highly illegal.

Medical Council of India (MCI) is the supreme authority regarding modern medical profession and any form of training in Modern Medicine. When this issue came up for the consideration before the ad hoc Committee appointed by the Honourable Supreme Court and the Executive Committee of the MCI, they deliberated the issue at length and noted that as per section 2 of the Indian Medical Degrees Act 1916, the term ‘Western Medical Science’ has been defined as meaning the western methods of Allopathic Medicine, Obstetrics and Surgery, but does not include the Homoeopathic or Ayurveda or Unani system of medicine. Accordingly the MCI and the ad hoc Committee appointed by the Honourable Supreme Court decided that BAMS (Ayurvedic) practitioners, who being Ayurvedic graduates are not graduates trained in Western Medical Science as defined in Section 2 of the Indian Medical Degrees Act, 1916 and hence could not be allowed to practice modern medicine in any form.

The CCIM (Central Council of Indian Medicine) has no authority to prescribe training in surgery, obstetrics or in any form of modern medicine practice, unilaterally and suo moto in their syllabus and curriculum without consulting with the MCI. It is pertinent to note here that certain state Governments like in Telengana and Kerala have rejected similar requests of Ayurveda students in their state.

Training in modern medicine procedures and postmortem examination are carried out to students of modern medicine as a continuation and culmination of their course, which includes a prolonged study in modern medicine and that training cannot be given to Ayurveda students or internees during one or two months of their internship who do not possess relevant theoretical studies or practical experience. It will be hazardous to the public health and safety and for any modern medicine doctor to indulge in imparting such a namesake training would be unethical as violation of the rules of ethics of modern medicine.

Therefore, IMA demands that the state governments are directed not to issue Orders/Circulars permitting the practitioners of Indian System of Medicine to practice modern System of medicine

6. Clinical Establishment Act

• IMA strongly consider that CEA will affect the continued viability of small and medium health care institutions, which are accessible and affordable to our people.While IMA fully subscribes to the view that the standards of health care have to be improved, IMA fears that the provisions of this act will be counterproductive
• IMA suggests that it is only through a process of accreditation whereby professionalism is established in the management, and a system is put in place in the treatment, the standards of health care can be improved.
• The act should be amended by removing the objectionable clauses and by incorporating a clause whereby if a hospital is accredited through NABH, the institution need only register under the act.

1. Accreditation rather than licensing should be the procedure:
   • The present Act though it does not admit, has a licensing character.
   • IMA suggests that registration and upkeep of standards in health care delivery will be better maintained through accreditation process.
   • All health care institutions may be mandated to opt for a recognized accreditation process.
   • IMA and NABH has already started a unique scheme to assist even small and medium hospitals to gain entry level accreditation and this accreditation process should be recognised by the Government
   • The Government should exempt accredited hospitals from the licensing process.
2. Fixing of rates for services
   • The Government should refrain from determining the fee for services provided by hospitals, which are not availing the above government schemes.
   • The medical profession and the private hospitals have a right to fix their charges for their private patients.
3. Single doctor establishments should be exempted from the Act
4. Grievance redressal mechanisms are not legally correct platforms since alternative forums already exist.
   • This mechanism will put the already harassed doctors and hospitals into severe stress.
5. The onus of safe transport and the cost involved in emergency case management should be borne by the Government.
6. The clinical establishments act should include provisions for promotion of healthcare institutions. It should be The Clinical Establishments (Registration and Regulation and Promotion) Act 2010.
7. The high penalty rate determined in the law should be scaled down.
8. Many of the rules and clauses only result in closure of small and medium level hospitals which are the backbone of India’s health care delivery system along with Government institutions.

7. Increase budgetary allocation for health

It is the obligation of the state to provide free and universal access to quality healthcare services to its citizens. India continues to be among the countries of the world that have a high burden of diseases. The various health programs and policies in the past have not been able to achieve the desired goals and objectives.

High-level expert group (HLEG) on Universal Health Coverage (UHC) constituted by Planning Commission of India submitted its report in November 2011 for India by 2022. The recommendations for the provision of UHC pertain to the critical areas such as health financing, health infrastructure, health services norms, skilled human resources, access to medicines and vaccines, management and institutional reforms, and community participation. Planning commission has estimated that 3.30 lakh crores has to be spent in 12th FY period (2012-2017) to achieve the goal of UHC by 2022. We are already into third year of the 12th FYP and yet only a meager proportion of this amount has been budgeted so far on an annual basis.

It is believed that an important factor contributing to India‘s poor health status is its low level of public spending on health, which is one of the lowest in the world. In 2007, according to WHO’s World Health Statistics, in per capita terms, India ranked 164 in the sample of 191 countries. This level of per capita public expenditure on health was less than 30 percent of China’s (WHO, 2010). Also, public spending on health as a percent of GDP in India has stagnated in the past two decades, from 1990-91 to 2009-10, varying from 0.9 to 1.2 percent of GDP.

Government should increase the public expenditure on health from the current level of 1.1% GDP to at least 2.5% by the end of the 12th plan and to at least 3% of GDP by 2022. Government should ensure that a minimum of 55 percent of health budget is spend on primary, 35 percent on secondary and a maximum of 10 percent on tertiary care services (as proposed by National Health Policy 200), as against the current levels of 49%, 22% and 28% respectively.

The Twelfth Finance Commission provided grants to selected states to improve health indicators, but in effect, they recommended that the grants cover only 30 percent of the gap between the state’s per capita health expenditure and the expenditure requirements assessed by them for each of the state. This should go up to at least 50 percent of the gap. Additional transfers from the central government to selected states have to be directed toward primary care and the first level of secondary care by strengthening the related health infrastructure and personnel. This is important not only to facilitate basic primary and secondary care but also to reduce the burden and expenditure share at the tertiary level.

The estimated additional expenditure requirement just to provide subcenters, health centers and community health centers according to the norms is estimated at 0.6 percent of GDP. There are additional administrative expenditures and requirements for providing health facilities in urban areas, and these could add up to another 0.4 percent. Thus, a minimum of one percent of GDP will be required in the medium term (next 1 to 2 years) to ensure minimum levels of health care as per the norms.

There should be an increase in spending for public procurement of medicines from 0.1% to 0.5% of Gross Domestic Product (GDP). Government should bring in legislation to discourage pharmaceutical firms from using trade names in marketing. Drugs should be available only in chemical name, which will help to bring in uniformity. At the same time there should be strict mechanism to monitor and ensure that drugs available in the market are of good quality. Government should invest in establishing drug-testing laboratories in each state. In addition, government should support and rejuvenate the existing public sector drugs and vaccines manufacturing units.

General taxation plus deductions for health-care from salaried individuals and taxpayers as the principal source of health-care financing should be used, and no fees of any kind be levied for the provision of health-care services under UHC. Insurance is not a panacea and government should refrain from promoting health insurance as the best solution for health care problems in the country.

Government should introduce a health cess (0.5%) as a component of the existing VAT system and the new Goods and the Services Tax (GST) that is proposed. There should be additional health cess for sweetened beverages, tobacco, alcohol and cars. This will raise revenue for the government on one-side and at the same time will act as a measure to discourage the use of these products

Water, hygiene and sanitation are the cornerstones for effective public health protection. Government should not only increase allocation to these areas, but also ensure that the money is spend properly and time-bound.

Government should move to a system of ‘purchasing’ secondary care services from private sector until it can provide these services by itself. This will help to prevent out-of-pocket expenses for a large section of population and also can reduce the burden on tertiary care.

The reimbursement scheme for health care should be extended to all people working in organised sector and not just to central government employees. This will help to relieve some pressure on the public health systems on one side, and will help to give more options for people in the organized sector.

The present schemes such as JSBY, RSBY, JSY etc. are run by different ministries and departments. The Budget should facilitate convergence amongst the various stakeholder ministries/departments so that we can evolve a comprehensive social security package.

Public and private sectors should not move as parallel systems, but should complement each other. Public private partnership in health should be promoted. At present, the facilities in private sector are underutilized at one end, whereas public sector lacks in facilities to cater to the needs. Government should design special programs in discussion with professional associations like IMA to optimally utilize the resources- both in public and private sector. This will include sharing the resources in private sector like CT, MRI scans etc. for patient care in public sector.

Services of family doctor/single man private clinics should be optimally used on a retainership basis, at least in places where government doctors are not available at PHCs, until government is able to recruit and sustain regular doctors.

Government should increase the allocation for health awareness programs. A repository on health information should be created and disseminated using the social media. Non-communicable diseases and health needs of the elderly need urgent attention. Government should increase the allocation to these areas significantly. National programs for NCD and care of elderly should be introduced in all the districts within the next two years. Telemedicine should be given importance, with simultaneous investment in increasing the availability of trained and qualified human resources

8. Strengthen primary health care/rural health service

National sample survey, 2014 has shown that 40% of our population depend on single man clinic and small rural hospitals for their health needs. It is observed that these small and medium level hospitals are closing down due to financial non viability. IMA demands that the government should support these hospitals financially through a program of ‘aided hospitals’

To attract modern medicine practitioners to serve in rural areas, IMA suggests the following

• Government to identify difficult areas (primary health centers where doctors are not available for more than 3 years)
• To develop a package to attract doctors to these areas by offering higher salary, accommodation preferably at headquarters with transportation, weightage for PG admission for those serving in difficult rural areas (upto 30% weightage), admission of children to central schools
• To post minimum of three MBBS doctors in PHCs, instead of the present system of posting one MBBS doctor.
• To utilize the service of private practitioners in the locality on a retainership/contract basis
• To utilize the services of foreign degree holders (Russia/China/Indian graduates) as trainees under the supervision of PHC doctors up to three years or till they get registered
• Population covered by PHC to be revised from existing 30,000 to 20,000 whereas presently up to 1.5 lakhs population is covered by one PHC
• To get orientation of rural health problems, and to motivate them to work in rural areas at least 3 to 6 months should be spend by both undergraduates and postgraduates in rural set up, undergraduates to get training in PHC during their Community Medicine posting and also as part of vertical integration at clinical postings. The postgraduates can work at least 3 to 6 months in CHCs along with or under the supervision of specialists. The period for preparation of thesis for this can be reduced to 6 months

9. Make quality drugs available to public at affordable cost

As it was clearly established through various studies and as reported by the Planning Commission’s High Level Expert Group (HLEG) report, almost 70% of out-of-pocket expenses incurred in health care is directly due to the cost of drugs and this is more among the poorest quintile. Therefore, the government should spend more resources in making drugs affordable to the population -at least to the tune of 0.5% of GDP. Government should open more Jan Aushadhi stores and establish a drug distribution system catering to both public sector and private sector hospitals.

The essential drug list should be revised and published periodically. Drug manufacturing and distribution should be guided by the essential drug list. Very strict laws and penal provisions should be in place to curb irrational combinations and preparations. More drugs should be brought under the price control mechanism. Mechanism of adverse drug reaction monitoring should be made more effective. All the companies should market the drugs in generic name.

Government should return to the old system of cost based drug pricing and should do away with the current system of market based pricing. This will rationalize the cost of majority of the drugs and will help to avoid cartel formation.

Govt should ensure the quality of each batch of medicine, and this requires adequate funding to establish more testing labs in the country. Drugs should not be allowed to move to the market before the quality is tested for each batch.

Govt policy should be to facilitate domestic drug manufacturing companies to undertake drug research and innovation, to invent new molecules to address preferentially the diseases, which are predominantly prevalent in our country. Just like techno parks, govt should invest and facilitate common facilities for drug research and quality control.

Govt should also take steps to open and functionalize the closed down vaccine manufacturing units in the public sector and also sick drug manufacturing units in the public sector