For Comments
The present Study Group came to be constituted by
the President Medical Council of India in response to a communication from
National President Indian Medical Association Dr. K. K. Aggarwal addressed to
her bringing to notice that Rule 8.6 in the Code of Medical Ethics Regulation
2002, which brings out that Medical Council of India has to prescribe
guidelines with respect to judgment by a peer group pertaining to ‘professional
incompetence’ of a professional.
Accordingly the Study Group critically debated and
discussed the said issue and is pleased to observe as under:
Rule 8.6 of the Code of Medical Ethics Regulations
2002 reads as under:
“Professional incompetence shall
be judged by peer group as per guidelines prescribed by Medical Council of
India”
As such, it is evident that professional
incompetence of a professional duly registered with the State Medical Council
upon fulfilling the precondition of the eligibility of having acquired
recognized medical qualifications from a University and duly incorporated in
the concerned schedule appended to the Indian Medical Council Act, 1956, is
required to be judged by a peer group in accordance with the guidelines
prescribed by the Medical Council of India.
It is noted that as of now no such guidelines have
been prescribed by the Medical Council of India as contemplated under Section
8.6 of the Code of Medical Ethics Regulation 2002 whereby the modality of the
assessment of professional incompetence of a professional required to be dealt
by the registering council through a peer group constituted for the said
purpose is not in vogue for want of prescribed guidelines by the Medical
Council of India.
In this context the Study Group noted that ‘professional
incompetence, professional misconduct and professional incapacitation’ by
and large are used interchangeably in a colloquial as well as operational sense
on practically more occasions than not primarily because all the three within
their fold include failure on part of the professional to take reasonable steps
to safeguard the life and health of the person under his care. It is for this
reason it is imperative that the distinction between the three needs to be
taken note of.
Preamble: These guidelines shall be titled as ‘Guidelines governing assessment of
professional incompetence by a peer group under Rule 8.6 of Code of Medical
Ethics Regulation 2000 as amended from time to time.
1. These shall come into the force from date
of its Notification by the Medical Council of India.
2. Extent and coverage: These shall be
applicable for any medical trial jurisdiction at the institutional or at any
council level. They shall not cover criminal aspect of professional negligence.
3. Definitions: Unless the context requires
otherwise
a) ‘Adverse event’ means an unintended
injury to patient that results from healthcare management (rather than the
underlying condition of the patient), which results in measurable disability,
prolonged hospitalization or both
b) ‘Bolam Test’ means the test evolved out of the judgment in the case of Bolam v
Friern Hospital Management Committee [1957] 1 WLR 582 used to assess standard
of care when deciding medical negligence.
c) ‘Clinical Establishment’ means an establishment as defined in the Clinical
Establishment Act, notified by the Government of India.
d) ‘Guidelines’ means recommendations or standards notified by the Medical Council
of India in terms of Section 8.6 of Code of Medical Ethics Regulation 2002.
e) ‘Institution’ means a medical college permitted / approved / recognized by the
Medical Council of India/Non teaching Hospitals
f) ‘Medical accident’ means an unforeseen or unexpected medical event causing loss or
physical damage or injury, brought about unintentionally, as a result of
treatment or failure to treat appropriately due to ignorance or lack of
knowledge.
g) ‘Medical Council of India’ means the council constituted in terms of section 3
of the Indian Medical Council Act, 1956.
h) ‘Medical error’ means the failure of a planned action to be completed as
intended or use of a wrong, inappropriate, or
incorrect plan to achieve an aim.
i) ‘Medical malpractice’ means negligent or improper or unreasonable lack of
skill in the treatment of a patient, on the part of a health care professional
or health care facility that causes harm, injury, or death to a patient or any
act or omission by a physician during treatment of a patient that deviates from
accepted norms of practice in the medical community and causes an injury to the
patient. Or improper, unskilled, or
negligent treatment of a patient by a Health Care professional. Or medical malpractice
is the failure of a medical professional to follow the accepted standards of
practice of his or her profession, resulting in harm to the patient.
j) ‘Medical mishap’ means an unfortunate accident
k) ‘Peer’ means
a person who is equal in ability, standing, or rank with another
l) ‘Professional incapacity’ means inability to carry out professional
activities and responsibilities/obligations due to a physical or mental
condition/illness that may limit the capacity of a professional
person to fulfill his/her professional responsibilities/obligations temporarily
or permanently
m) ‘Professional incompetence’ means failure to exercise due care and
diligence in professional responsibilities due to lack of knowledge, skill.
n) ‘Professional misconduct’ means unacceptable/dishonorable and
unethical behavior by a professional person or noncompliance with the
applicable laws and regulations
o) ‘Professional negligence’ means an act or omission (failure to act when
there is a duty to act) which a reasonable man in the circumstances would
do or an act of commission (wrong doing) by
a medical professional, which a reasonable man in the
circumstances would not do.
p) ‘State Medical Council’ means a council constituted and notified under the
governing legislative enactment adopted by the concerned State
legislature.
q) ‘Untoward event’ means an unfavorable or adverse event
4. Mandate: To judge professional /
medical incompetence of a registered medical practitioner by a duly constituted
peer group
5. Composition of the peer group:
a) Peer Group shall be constituted at Institutional /
Clinical Establishment / State Medical Council / Medical Council of India level
to judge the professional incompetency of a registered medical
practitioner in a time-bound manner.
b) The peer group shall be a three-member committee with
a chairman, one IMA nominee and one professional subject expert.
c) The peer group on receipt of any complaint
shall examine the allegation in a time-bound manner, preferably within two
weeks and forward its reasoned-out speaking order following the principle
of natural justice and based on “Bolam’s Test” to the Institutional Head,
Clinical Establishment Head / Chairman of the Ethics Committee of the State
Medical Council / Chairman of the Ethics Committee of the Medical Council of
India as the case may be.
Report submitted to the President, Medical Council
of India, New Delhi, for needful.
Dr Vedprakash Mishra
Chairman, Academic
Committee, MCI
& Convener Study
Group
Dr KK Aggarwal
Dr RN Tandon
National President, IMA Secretary General, IMA
Member
Member
Dr Vinay Aggarwal
Past National President, IMA
Member
Place: New
Delhi
Date: 23rd Sept.
2017
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