LegalMD Newsletter Jan 2018_NATIONAL MEDICAL COMMISSION

06 January, 2018

                                  Medico-Legal Newsletter
January 2018, New Delhi
NATIONAL MEDICAL COMMISSION- AN ANALYSIS
MEDICAL COUNCIL OF INDIA

The Medical Council of India (MCI) established in 1934 is a statutory body for establishing uniform and high standards of medical education in India and grants recognition of medical qualification, gives accreditation to medical schools, grants registration to medical practitioners, and monitors medical practice in India.
CHALLENGES FACED IN HEALTHCARE SECTOR

As per the report tabled on 8th March by Parliamentary Standing Committee on health and family welfare pertaining to the functioning of  MCI, it was alleged that it had become a club of influential doctors who perform their roles as regulators with little care for the basic norms of governance or fear of regulation. It was a damning indictment of a body, which the report stated had failed in discharging its duties of maintaining proper standards in health care. Among a host of accusations, the report detailed how corruption and bribery thrived in approvals for setting up these medical institutions, and further down the line even in the inspection process. Another crucial challenge faced in the healthcare sector in India is an unenviable challenge of tackling the dual burden of diseases and lack of qualified health personnel.

COMMITTEE APPOINTED BY SUPREME COURT

The Parliamentary Standing Committee on health in its 92nd Report observed that the MCI has repeatedly failed all its mandates over the decades and urged the Centre to usher in game-changing reforms. Due to which, the Supreme Court of India was constrained to appoint an oversight committee headed by an ex-CJI, justice RM Lodha, to supervise the functioning of MCI till a decision on reforms is taken by the appropriate executive or legislative authority.

The NDA government set up an expert committee under the late Ranjit Roy Chaudhary in February 2015. The committee had laid down the blueprint for reforms which forms the basis of the current draft National Medical Commission (NMC) Bill.
NATIONAL MEDICAL COMMISSION (NMC) BILL, 2017

The Union Cabinet has recently given its approval to the National Medical Commission (NMC) bill which aims to create a world-class medical education system by replacing the Medical Council of India with a new National Medical Commission and to create transparency. The main features of the new Bill are:
  1. The government, under the NMC, can dictate guidelines for fees up to` 40% of seats in private medical colleges. This is aimed at giving students relief from the exorbitant fees charged by these colleges and is a standout feature of the bill.
  2. The bill also has a provision for a common entrance exam and licentiate (exit) exam that medical graduates have to pass before practising or pursuing PG courses. For MBBS, students have to clear NEET, and before they step into practice, they must pass the exit exam.
  3. Recognised medical institutions don’t need the regulator’s permission to add more seats or start PG course. This mechanism to reduce the discretionary powers of the regulator.
  4. Fewer elected members to the new commission.
  5. Earlier, medical colleges required the MCI’s approval for establishment, recognition, renewal of the yearly permission or recognition of degrees, and even increase the number of students they admitted. Under the new bill, the powers of the regulator are reduced to establishment and recognition. This means less red tape, but also less scrutiny of medical colleges.
REASONS WHY THE DRAFT NATIONAL MEDICAL COMMISSION BILL HAS BEEN OPPOSED

The IMA has strongly opposed the draft bill claiming it to be an undemocratic move and stated that it will cripple the functioning of the medical profession by making it completely answerable to the bureaucracy and non-medical administrators as:
  • Undemocratic commission: IMA believe that through the bill the government is showing its intention of allowing the inclusion of non-medics to decide how medicine should be practiced in India as the NMC Bill will have a 25-member commission nominated by the Union government. It is believed that this will cripple the democratic functioning of the medical profession by making it completely answerable to the bureaucracy. The proposed NMC is devoid of federal character and is non-representative half non-medical body. It will be a poor substitute for MCI
  • Except for five members, who will be elected by the registered medical practitioners from amongst themselves, all other members of the commission will be nominated. Regulators need to have an autonomy and be independent of the administrators. The National Medical Commission will be a regulator appointed by the administrators under their direct control.
  • The Commission will have government-nominated chairman and members, and the board members will be selected by a search committee under the Cabinet Secretary. There will five elected and 12 ex-officio members in the commission.
  • Medical education for the rich: The draft bill permits the opening of medical colleges for profit. Currently, medical colleges can be started by trusts and charitable institutes and are classified as non-profit institutes. The rationale behind the move is to address the problem of doctor shortage. The report of the reform committee said the current ban on for-profit institutions has not prevented private and supposedly non-profit institutions from extracting profits through non-transparent and possibly illegal means.
  • The draft bill, in its current form allows the private medical colleges to charge at will, nullifying whatever solace the NEET brought.
  • Abolishes the Medical Council of India and “possibly” Section 15 of the IMC Act, which says that the basic qualification to practise modern medicine is MBBS, thereby taking away the voting right of every doctor in India to elect their medical council. The Medical Council of India is a representative body of the medical profession in India. Any registered medical practitioner in the country can contest the election and every qualified doctor can vote. Abolishing a democratic institution and replacing it by a body in which majority are nominated by the government is certainly a retrograde step.
  • Inclusion of AYUSH doctors: Also, it inducts non-medical people into the highest body of medical governance changing its perspective and character forever and introduces schedule IV to allow the AYUSH graduates to get registration in modern medicine.
  • The draft bill also proposes a common entrance exam and licentiate exam that all medical graduates will have to clear to get practising licences, which will only dissuade students from becoming doctors. As per the provisions of the draft bill, no permission would be needed to add new seats or to start post-graduate courses.
Hence, the opening medical education to private commercial players has not gone down well with many working in the field. Public health experts believes that for-profit private medical colleges will only make medical education a distant dream for students belonging to the economically weaker sections of the country and that if the problem with commercialisation of education and transparency in the nomination of members to the council is not addressed, the draft bill will only give birth to another tainted body.
WILL DISSOLVING THE MCI HELP MEDICAL EDUCATION?

Scrapping MCI might not be the right move in the long term as:
  • It will cripple the functioning of the medical profession by making it completely answerable to the bureaucracy and non-medical administrators. Instead, the government must consider introducing amendments to the existing MCI Act to make it transparent, accountable, robust and self-sufficient.
  • Experts also suggest that providing for an accreditation authority for medical education on the lines of the authority vested with the All-India Council for Technical Education in respect of technological institutions through National Accreditation Board can be a solution.
  • Vesting MCI with the authority to prescribe service conditions and payable scales for full-time teaching faculties in medical colleges on par with the UGC can be another solution.
  • The government had invited suggestions from stakeholders and public on the proposed NMC Bill and they are also of the opinion that an NMC, if formed, will be undemocratic and highly detrimental to budding doctors, community and medical associations.
DETAILED ANALYSIS

Keeping in view the ongoing issue, the two essential things that are to be taken into consideration are:
  • RESTRUCTURING OF MCI: In its eagerness to restructure the MCI to overhaul medical education in India, the Centre is taking away its autonomy. There is need for overhaul because medical education and sciences have evolved rapidly over the past few decades, but checks and balances are essential to ensure the MCI doesn’t lose its autonomy and democratic structure. And what is required is the restructuring of the MCI but not at the cost of its autonomy. The change is not seen to be happening for the better as according to the Census, the draft bill should have suggested a policy to check growing commercial is at ion of medical education, instead the policy directions given shows that it seeks to further accelerate privatisation and commercial is at ion of medical education.
  • IMPROVE STANDARDS: There is certainly need to overhaul medical education as the quality of doctors we are producing has gone down, which is primarily because of the private medical colleges that have been allowed to mushroom even when they don’t have the required infrastructure, patient load or faculty to train aspiring doctors. More than restructuring and changing names, what is needed is selecting the right people to ensure that the standard of medical education doesn’t suffer.
  • CHANGE IN STUDY MODEL: The current model of medical education is not producing the right type of health professionals because medical education and curricula are not integrated with the needs of our health system; many of the products coming out of medical colleges are ill-prepared to serve in poor resource settings like Primary Health Centres. Also, the MBBS syllabus has remained unchanged for 14 years, but requires to be revised every four to five years to be in step with developments in the medical profession. Methods of teaching too need urgent revamp. Hence, serious work is to be done in medical education to address these gaps.
  • CHECK ON PROFESSIONAL CONDUCT: Doctor salaries need revision, especially if they serve in public healthcare and the rural sector. As for the proliferation of private hospitals, they need to be monitored to check unethical practices. And as per the Report, the oversight of professional conduct is the most important function of the MCI. However, the MCI has been completely passive on the ethics dimension which is evident from the fact that between 1963-2009, just 109 doctors have been blacklisted by the Ethics Committee of the MCI. Hence, game changer reforms of a transformational nature are needed wherein these issues can be addressed.
PRESENT STATUS

The IMA has appealed to PM Narendra Modi to recall the draft NMC, Bill, 2017, recently approved by the Union Cabinet, arguing that it will seriously impede the democratic functioning of the medical profession.

The IMA is mainly upset about Clause 35 of the proposed NMC pertaining to the recognition of other medical qualifications and have requested that the Centralgovernment may by notification in the official gazette include medical qualifications granted by any other body in India under Schedule IV to this Act, which shall be recognised qualification as may be prescribed by the Central government in this regard. This is totally opposite to the provisions of The Indian Medical Council Act, which says that no person other than a medical practitioner enrolled on a State Medical Register shall practice medicine in any State, he pointed out.
However, several senior doctors have welcomed the Bill and said that it is a long-awaited change in Indian healthcare and have stated that the said Bill is “conceptually good” and seems to be student-friendly with clarity in fees and hassle-free for medical colleges withless regulations and ease of running the institutions. Further, that the one entry and one exit exam, will be good for students. Others have termed it as a progressive move by the Government.
CASE-LAW
 
NO CURE/ NO SUCCESS IS NOT NEGLIGENCE, SAYS NCDRC; SETS ASIDE RS 15L LIABILITY ON DOCTOR FOR IVF FAILURE
The National Consumer Disputes Redressal Commission (NCDRC) taking note of the judicial notice of the fact that increasing number of people are opting for in-vitro fertilization due to growing problem of infertility while acknowledging that its failure cannot be attributed to the treating doctor given the complexity of procedure and medically recorded evidence of low success rate in women above 35 years of age held that no cure/ no success is not negligence and fastening the liability on the treating doctor is not justified while setting aside the order of the State Commission by which a doctor was asked to pay Rs 15 lakh compensation to her client after the IVF in her case failed.
In the present case, the treating doctor adopted the standard method of IVF. The patient was properly investigated and given proper medicines for retrieval of eggs (ova) prior to IVF.Also SST was performed for her husband. The Court observed that in any given cycle, the chance of IVF success varies, depending on the age and the personal health circumstances and hence did not find any deficiency or lapses in the duty of care on the part of OP.
Read here

LATEST NEWS

INDIAN MEDICAL ASSOCIATION ISSUES GUIDELINES ON FETAL VIABILITY

The IMA, in collaboration with National Neonatology Forum and Indian Academy of Paediatrics has issued guidelines on “fetal viability” in the backdrop of a case in which a premature newborn was wrongly declared dead at the Max Hospital.

In an advisory issued to all doctors and state health secretaries, the IMA has stated that:

  • Removal of foetus in less than 20 weeks of pregnancy is abortion.
  • Born between 20-24 weeks of pregnancy is a not viable child and it is no advisable to resuscitate him or her but the child should be given comfort care.
  • Born between 24-28 weeks, the chances of survival is less and should be decided on case to case basis and born after 28 weeks every effort should be made to ensure the child survives.
  • According to the most read textbook of community medicine in Park’s Textbook of Preventive and Social Medicine, viability is a stage when foetus becomes capable of living independently, this has been fixed administratively at 28 weeks, when the foetus weighs approximately 1000g
  • It is defined as greater than 28 weeks and more than 1000 gram. Anything less than that, level of treatment has to be decided on case to cases basis on chances of intact survival, informed consent taking into consideration social determinants of health. Basic care should not be compromised
  • Questions about initiation of resuscitation for extremely premature babies is a grey area. Babies born between 25 and 28 weeks has been increasing in the developed countries, but it is still not be true for most parts of our country.
  • Non-initiation of resuscitation may be considered appropriate in confirmed gestation below 25 weeks, anencephaly and confirmed lethal genetic malformation disorder
[source]
LegalMD- New Age Risk Management Services for Medical Professional & Providers in India:
  • Customised Professional indemnity policy
  • Medico legal support by our team headed by - post graduate in Medicine (MD) & Law (LLM)
  • Handled over 9000 patient issue in last 10 yrs - with expertise to resolve 95% issues without them going to Courts 
  • Compliance of documents - medico legal documents by a law firm
  • Crisis support - by a PR agency that specialises in healthcare
  • Regular medico legal tips SMS to members
  • Monthly newsletter – on medico legal issues, verdicts, do’s & don’ts, judgments
 
 
 
Email: info@legalmd.in     Website: www.legalmd.in    Phone: +91 8287118711 
Stronger Together!
New Delhi | Bangalore | Vadodara | Ahmedabad