The move by the Karnataka government to enact amendments to Karnataka Private Medical Establishments (KPME) Act in 2007, has seen vociferous protests by the medical fraternity in the private sector, much of it immersed in propagating misinformation in the media. The KPME 2007 was enacted with a legislative intent of registering and monitoring the private medical establishments (PME), only to be poorly enforced, as can be seen by the fact that less than 50% of the PMEs are being registered so far, and no action has been taken on the others. In a decade, there is not a single case law that can be traced on this Act.
The amendments, therefore has a ground swell of support from patients who have litigated for medical negligence, patients’ groups, social movements who have witnessed the extraction of money and expropriation of savings of the poor seeking medical care in private hospitals. Owing to poor regulation over the private medical sector driven by profiteering motive, the country as a whole, and Karnataka state specifically, under the vigilant civil society organisations, has seen rampant corruption in the private medical sector and ethical violations for profiteering as seen in unethical clinical trials, surrogacy and artificial reproductive technologies, unwarranted hysterectomies, kidney grafts, organ trade and so on. In the wake of such a reality, no wonder, that the belligerence of the medical associations, is more driven by their desire to protect profiteering rather than patient’s interests, which they tokenistically endorse.
KPME Amendments Bill 2017
The government introduced the Karnataka Private Medical Establishments (Amendments) Bill 2017 in the Assembly on 13th June 2017. The Bill focuses only on private hospitals as the Principal Act and its salient features include a charter of patient rights, regulation of cost, setting up district level grievance redressal committees with powers of civil court. The Act also prohibits private hospitals from withholding dead bodies against payment of dues and demanding advance payment in medical emergencies.
While the focus of the legislation is on private medical establishments there continues to be an intense pressure on the government to include the government health system into the Act. Justice (retd.) Sen committee which was formed, in fact, had several recommendations for such inclusion. Doctors and their associations opposing the amendment Bill have made this a rallying point saying this is discriminatory. It should be noted that the legislative intent of the principal Act, i.e. Karnataka “Private” Medical Establishments Act, was to register and regulate private hospitals and not monitor government health system. The government hospitals and health centres, just like other government establishments, are functioning as part of the Constitutional mandate in public interest to provide preventive/ promotive and curative health care services along with several other services such as control of epidemics, surveillance and disaster management, relief and rehabilitation. Besides, several supervisory and monitoring mechanism operate such as departmental oversight, Arogya raksha samitis, Vigilance cell, Lokayukta, Civil service rules and so on which need strengthening for its effectiveness. Therefore what the government system needs is not yet another law but political will and commitment to invest more funds and resources and strengthen it meaningfully.
Context necessitating amendments to KPME: The idea of advocating for amendments to this Act sprouted in the context of unwarranted hysterectomies that several private hospitals conducted on poor and hapless Lambani women, by inducing fear of cancer and death, and obtaining their consent under duress, and in fact charging them exorbitantly. The effort by a civil society group (Karnataka Janaarogya Chaluvali – KJC) for redressal using KPME was infructuous due to the glaring gaps and lack of provisions needed to redress the grievances of patients.
Among others, the erstwhile Act focused only on registration as the method of regulation. There was no authority to enforce or take penal action, and their powers were not delineated. The district level committee comprised of doctors representing Indian Medical Association, the very body which resists any regulatory measure, thus obfuscating even the minimalistic implementation of the Act. The highest fine that could be imposed on an establishment was Rs.25,000/- without specifying the actions after the penalty. There was absolutely no mention of the patients who suffer due to negligence and callousness in the PMEs, cost regulation and merely required display of rates of services.
The process of amendments:
The present amendments that are mooted, though are weak in protecting patient’s rights to record, to have a second opinion, to know the charges for services etc. yet are historic in the sense of foregrounding cost regulation, protecting patient rights in private medical establishments. The glaring gap in the Indian health care and medical jurisprudence is that, the existing legislation provisioning for the MCI, has institutional approach to assess the professional conduct of the medical professionals primarily for negligence, the highest penalty envisioned is suspension of the licence. The patients have to separately litigate under the Consumer Protection Act 1986 for compensation for negligence. However, the legislations do not address the victims of medical negligence, the other incumbent rights of patients, subjecting to undue medical expenditure etc.
The amendment provides for cost-regulation based on rational approach to costing with the help of an expert committee, provides for an district level grievance redressal committee comprising of multi-stake holder body, a patients rights charter specifying various entitlements to patients, (such as right to care without discrimination, confidentiality and dignity, Information, preferences (second opinion), and redressal etc.), and penalities and provision for prosecution in cases of violations.
The democratic debate in Karnataka on amendments and patients’ rights:
Heeding to several civil society representations and patients’ groups, the government of Karnataka constituted Justice Sen Committee (Justice Vikramjit Sen), the majority of the members were from Indian Medical Association and various other medical association with only two people representing civil society and with no representation from patients’ groups. The recommendations therefore favored private sector interests. However, the government of Karnataka, added their clauses to protect patient rights. Subsequently, PMEs in Karnataka opposed not only the proposed increase in jail term from three years to five years and cost regulation but also inclusion of grievance redressal mechanism, patients rights charter and non-inclusion of public health system. All PMEs from small/ medium to corporate hospitals closed ranks and jointly held a protest against the Bill in July 2017.
The discussion in the Karnataka Assembly on the KPME Amendmnets Bill on 20th June 2017 was a historic event in India where over six hours assembly debated the amendments. The health minister’s 90 minute introductory speech providing evidence for the need for regulation of PMEs was followed by a nearly six hour long debate on the Bill. Finally, it was referred it to the Joint Select Committee (the Committee). The committee held extensive discussions with several groups in Karnataka, accepted delegations and recommendations and organised an open house hearing of all stakeholders before the entire committee on August 23, 2017 in which over 120 representatives of all the medical associations and civil society groups placed their submissions before the committee. The Karnatataka Medical Officer’s Association (doctors in public health care), among others, have welcomed the amendments.
However, even before the final draft of the Bill was placed before the assembly session due on 13 November, 2017, the private medical associations and doctor’s associations called for strike, have started a public misinformation campaign and have aggressively opposed the presumed recommendations. Among others, they continue to oppose rationalization and fixing of rates, inclusion of patient rights in the Act and penalities.This Act is about PMEs and rights of patients. However, the private medical doctors, have misled the public through their misinformation campaign to cast it as a debate about curbing the freedom medical doctors in treating patients.
There is no one to stand up for the patients in India today in an environment where health care has been allowed to run as an unregulated business. The private and corporate health care sector has held the patients to ransom in varied ways, most importantly by opposing any regulatory measure that infringes upon profit making. The medical fraternity, which takes Hippocratic Oath to uphold patients interest, has never stood up or stood by patient’s rights. On the other hand, it has left no stone unturned, to oppose any policy that regulates not only doctors but also the medical establishments which include CPA. PCPNDT Act, proposal for the Bachelor’s Course on Rural Doctors.
The KPME Amendment Bill 2017 is a progressive first step to which upholds patient rights. When the medical doctors have abandoned patients for their profiteering, it is the duty of the State to stand by patients, whose lives are protected by the Constitution. When the doctors have forgotten their ethical duty to uphold patients’ interest, who will stand by patients, if the State does not?