CONSUMER PROTECTION AND HEALTH SECTOR
Consumer Protection Law may prove invaluable to consumers in determining the accountability of service providers. There is also criminal liability associated with medical negligence. An aggrieved person can either file a lawsuit for compensation or lodge a complaint in the consumer forum after a civil wrong has been committed. After being injured by the medical negligence of the health care provider, patients have begun to apply consumer protection law.
Every doctor is bound by his professional obligation to safeguard the lives of his patients, regardless of where he works. There are certain obligations a doctor has to the patient he consults with in case of illness. When medical negligence takes place, the failure to use reasonable skills according to the final standards and current conditions is considered medical negligence. Consumer Protection Act, of 1986 may be one of the most innovative pieces of financial aid legislation, and the provisions of this act are intended to provide consumers with effective and efficient protection against different forms of exploitation and unfair practices. As a result of its excellent services in protecting and preserving consumers’ rights, the Indian judiciary has made a significant contribution to raising awareness about the consumer’s rights in society. To advance and protect consumers’ rights is the primary objective of the Consumer Protection Law.
If you hire or avail of any services for a consideration that has been paid or promised, partially paid or partly promised, or on a credit basis, you may be considered a consumer, and this includes any person other than the person who hired or utilized the services for consideration paid or promised, or on a credit basis when the primary mentioned individual approved the utilization of such services. An individual who merely promises to pay is included in this definition.
Private Health Care Sector
In India, the provision of private medical services is a major component of health care delivery services. However, the quality of care from these services is questionable. There has been no significant change in the behaviour of private providers despite efforts made by professional organizations, like the Medical Council of India and local medical associations. Private medical practice will now be subject to the Consumer Protection Act (COPRA) 1986, which is considered a significant step toward the regulation of the private sector. A survey of private providers was conducted to assess their views on the legislation. It is their belief that the COPRA will minimize malpractice and negligent behaviour. However, it still leads to negative effects such as increased physician fees, increased prescription of medicines and diagnostic tests, and adverse effects on emergency care.
COPRA has also been criticized by medical associations as a step toward costly, overwhelming and excessive litigation. Furthermore, consumer forums have voiced concerns about the lack of standards for private practice, the uncertainty and risks involved with certain medicines, the effectiveness of the judicial system, and the responsibility of proving negligence.
India’s health care delivery system includes both the private and public sectors, with the private sector playing a much larger role in the current system. In the private for-profit and non-profit sectors, 70% of hospitals and 50% of hospital beds are currently located. Most qualified doctors are employed in these sectors. In the first few years after becoming a doctor, most of them want to start their own private practices or work in private hospitals. According to utilization studies, the private health care sector is not confined to the affluent classes; poor people also rely on the private sector for their health and have exhibited their preference for private doctors. About 5% of GDP is accounted for by the private health sector.
The rise of the private sector is accompanied by a number of concerns, which most often stem from reasons of market failure. This sector is supposed to be regulated by the State, but the State has so far remained passive in the process. In this sector, government intervention has been minimal, thereby allowing it to flourish without interference. As a result, medical associations and medical councils have played minimal roles in its development. There has been an increase in undesirable practices, which has affected the quality of care. In the country, the consumer movement has been attracted to the issue of dissatisfaction with the medical services provided by this sector, as well as an increase in medical malpractice cases. Now that the Consumer Protection Act of 1986 is in effect, private medical practices are covered by this act.
The Consumer Protection Act
There is no evidence that allowing market forces to determine health care policies will lead to an efficient and effective system. There are a number of market distortions, market imperfections, and asymmetric information that interact with the moral hazard cause, resulting in a market that is insufficient and costly.
Consequently, it is argued that the state is a key player in ensuring that this sector delivers health care services that are safe and appropriate. However, the state has taken few initiatives to regulate the sector’s services, despite significant growth in the sector. Legislation at local government levels is comparatively rare, with only a few acts such as the Nursing Home Act of Delhi and Bombay promulgated by the state. Most of these laws are outdated now anyway, and most of the provisions of these laws have never been implemented effectively. A large percentage of local governments in India have not implemented health law legislation due to health being a state subject.
Professional medical bodies also influence private health care providers, such as the Medical Council of India. Every practising member of these professional bodies is expected to observe the code of conduct prescribed by these organizations and to meet the expectations of these organizations. Medical professionals are generally expected to regulate themselves and each other. It has been noted, however, that over time, medical associations, councils and so on, which were once expected to regulate the behaviour of private providers, have lost their influence. Many physicians do not belong to these associations, or even if they do, do not take much notice of the guidelines issued by these societies.
Therefore, certain practices have become more prevalent in this sector, including fee-splitting, over-prescription of medications, and poor sterilization procedures as well as hiring untrained individuals. Known to adversely affect the quality of health care, these practices have now become more common. The negligent practice does more than just render unnecessary and ineffective care to a patient because it does not follow minimum guidelines and does not possess desirable skills. Several consumer movements in India have been concerned about this. Indian legislators have recently amended the Consumer Protection Act (COPRA), 1986 to allow the private for-profit sector to provide medical services.
Through the establishment of consumer councils, the COPRA protects the interests of consumers. The objectives of this Act are:
1) to promote and protect the rights of consumers;
2) to assure consumer rights to information and to protect them from unfair trade practices;
3) Making sure that the interests of consumers are fully considered by appropriate forums.
In order to accomplish these objectives, district, state and national consumer protection councils have been established. The quasi-judicial systems are available at the districts, states and national levels and provide speedy and simple redress. Consumers of services are those who ‘hire or avail’ those services for payment in accordance with this Act. The word ‘beneficiary’ includes anyone who is a recipient of such services, other than the one who actually hires them. Services of any description made available to potential users are included in the Act. In contrast to the alternative, time-consuming and expensive civil litigation process, the COPRA provides consumers with a less costly and quicker remedy. Under the Act (COPRA 1986), the redressal forums are specifically vested with the powers vested in the civil courts for summoning witnesses and examining them under oath, and for producing documents and other materials as evidence.
Is The Medical Sector A Kind Of Personal Service?
Medical services are not included in the COPRA’s list of specified services. As defined above, ‘service’ can include every possible kind of service in which a benefit, use or advantage can be obtained for a fee. This Act does not apply to two categories of service, however. The first is free services, the second is services provided under a contract of personal service.
There is no explanation or clarification of the nature of personal services in the Act. The Act does not apply to medical services provided by the public sector as a result of these two exemptions. In this case, private providers argue that medical services rendered by medical practitioners are not the same thing as services related to commercial transactions as defined by the Act. Thus, private providers argue that their services should not be included in the program.
Two cases have been filed with the State Commission where defendants (private doctors) have claimed that these cases cannot be tried under COPRA. These cases are Mis Cosmopolitan Hospitals and others (appellants) vs Vasantha P Nair (respondents) and Vinitha Ashok v Lakshmi Hospital and Others (opposite parties). The physicians argued that the services provided to the patients were not commercial transactions but rather personal services, and so did not fall under the purview of the Act.
According to them, the aggrieved party cannot be considered a ‘consumer’ of the services and, therefore, cannot bring a medical malpractice claim. As a result, the defendants appealed to the National Commission after their claim was rejected by the State Commission. Ultimately, the National Commission determined the judgement of the State Commission was correct.
The Commission gave the following reason:
“The act defines services broadly. It applies to any situation where there is a ‘contract for services and the service provider is entitled to act independently without being supervised or controlled by the person who demands service. Patients are not in a position to exert any influence over the doctors’ work when it comes to medical services. The principal (here the patient) authorizes the doctor (here the agent) to act on his behalf, meaning the principal is in effect paying a professional to perform a task that he is not knowledgeable about. In a contrast, the personal service industry involves a ‘contract of services’ that implies a master-servant relationship whereby the master directs the servant to perform a specific set of services in a specific manner (i.e. the master supervises the tender of services). In this sense, COPRA covers professional and technical services such as surgeons, lawyers, accountants, engineers, etc.’’
Moreover, the court ruled that the complainants were entitled to inherit the deceased’s estate since they were the legal representatives of the deceased. The consumers are vested with the power to enforce their rights, and under the Act can be considered ‘consumers.’