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Legal Framework for Healthcare in India
In India, the right to health care means that the meaning of health as used in these provisions of the Constitution are defined in the Oxford Dictionary that soundness of body or mind, that condition in which its functions are duly and The World Health Organization‘s Constitution (came into force in 1948) Alma Ata Declaration adopted in 1978.
Efficiently discharged. Statutory laws including the Indian Penal Code 1860 and others also ensure the right to be protected against medical negligence and protection has been recognized since early times. India is a founder member of the United Nations, and has ratified various International Conventions promising to secure health care rights of individuals in society. In this context, art 51 of
- The Constitution of India provides for promotion of international peace and security. Article 51 states that, the State shall endeavor to: (a) promote international peace and security; (b) maintain just and honorable relations between nations, (c) foster respect for international law and treaty obligations in the dealing of organized people with one another; and (d) encourage settlement of international disputes by arbitration.
- The preamble to the Constitution of India, which strives to provide for a welfare state with socialistic patterns of society, guarantees the right to life and personal liberty. It states that: No one shall be deprived of his right to life and personal liberty except according to procedure established by law‘.
Thought it does not expressly contain the right to health, it has now been well settled through a series of cases that this includes the right to health Further, Articles 38, 48, 43, and 47 of the Constitution also provide for the promotion of health of individuals in society.
Complaints of medical negligence have been made in the past of late, such complaints have assumed a wider dimension as the incidents have increased due to the opening of thousands of nursing homes, charitable hospitals, central government health services dispensaries, and employee state insurance hospitals etc. Though the Parliament has enacted the Indian Medical Council Act in 1956 and other corresponding legislation governing various branches of medicine such as
- Article 21 of the Constitution of India – the Indian System of Medicine, Dentists, Homoeopaths etc, they only provided for the registration and regulation of the conduct of doctors, hospitals and nursing homes, and have failed to protect the interests of persons who have suffered on account of negligence or deficiency on the part of medical professionals. Very few states such as Andhra Pradesh, Karnataka, Meghalaya and recently Delhi have enacted state legislations providing for constitution of state Medical Council.
- This field left untouched by the Medical Council Acts is covered by the law of tort in general, and now by the Consumer Protection Act 1986. It is worthwhile to remember that the existence on the state book of the Indian Medical Council Act has not stood in the way of such grievances being agitated before the ordinary civil Courts, by the institution of civil suits claiming damages for negligence as against the concerned hospital or medical doctors. Before the enactment of the Consumer Protection Act 1986, the field of medical negligence was governed only by the law of tort. The base for a liability rested on the concept of negligence. It is not and cannot possibly be the province of this judgment, to enter the tangled thicket of the scope of negligence in tort jurisprudence. It is a field too large to be traversed. It would suffice to point out that prior to the entry of consumer jurisdiction in this field, medical accountability rested primarily on the concept of negligence as understood in the law of torts. That a precise legal definition of negligence is perhaps not possible, and would remain a somewhat slippery would. However, the classic attempted judicial definitions of negligence may be noticed from the authoritative treatise as under:
- It is negligence in the objective sense that is referred to in the well-known definition of Alderson B, Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. So also Lord Wright said in strict legal analysis, negligence means more that heedless or careless conduct, whether in omission or commission; it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing‘. In India it is well settled that the general principle of law of tort is equally relevant and applicable within our country. The development of the Law of Torts is in the line and closely similar, if not identical with its parental concept.
- Treatise of Salmond on the Law of Torts 19th Edn.
» Indian Penal Code, 1860 sections 52, 80, 81, 83, 88, 90, 91, 92 304-A, 337 and 338
» Consumer Protection Act, 1986
» PNDT Act, 1994
» Criminal Liability