Dr K K Aggarwal
National President IMA and HCFI
Composition of the National Medical
Commission
One of the sections of the proposed Bill
provides for the composition of the National Medical Commission, which
will have a) a
chairperson b) 12 Ex-officio Members c) 11-part time members d) an Ex-Officio
Member Secretary. Thus, it would have an effective membership of 25 along with
the Chairman of which only 5 members will be elected (Part
Time Members who will be elected by the registered medical practitioners from
among themselves from such regional constituencies and in such manner as may be
prescribed.
Therefore, the proposed commission will have 1/5th
members (20% elected members and 80% appointed / nominated members). It is for
this reason it will not have a desired ‘representative character’ with
reference to ‘elected and nominated / appointed members’
The composition of the four autonomous boards
(Ethics and Medical Registration [EMR] Board, Medical Assessment and Rating
[MAR] Board, Postgraduate Medical Education [PGME] Board, Undergraduate Medical
Education [UGME] Board) prescribed under the Bill does not include any elected
member there under. Each board will have only three nominated members,
one president and two members and that to with full powers to recognize or
derecognize a medical college, powers today vested with 130 members.
The present MCI is a representative body with
representatives from central government (8), state representatives (one from
each state), state council’s professional doctors (one each), representatives
from each health university etc. covering all stake holders.
Functions of the Commission
The functions vested with the Commission under
the Act are generic, advisory and cosmetic in character. There
under it is to exercise appellate jurisdiction with respect to decisions of the
autonomous boards except that of the EMR Board as brought out in the proposed
Bill. However, in one of the sections, it is stated that a medical practitioner
or professional who is aggrieved by the decision of the EMR board may prefer an
appeal to the Commission within 60 days of the
communication of such decision, which is contradictory.
One of the sections of the proposed act
provides an appellate jurisdiction exclusively to a medical practitioner or
professional to prefer an appeal with the commission if aggrieved with the
decision of the EMR Board. However, the said clause is absolutely silent
in regard to providing appellate jurisdiction to the complainant, which
is a substantial omission with reference to equity and providence for justice.
Functionally commission would be framing
guidelines for determination of Fee in respect of such proportion of
seats not exceeding 40% in the private medical institutions and
deemed universities which are governed under the provisions of this Act. This
operationally means that the fee regulation would be limited to a maximum of
40% seats in the private medical institutions and deemed universities, which
is difficult to understand as to why such
a ceiling and furthermore it could be anything from nil up to 40% which is
paradoxical in nature. This will also have political implications and can be a
root cause of future corruptions.
Separate National Register
The Bill states that the EMR Board shall
maintain a separate National Register including the names of licensed Ayush
Practitioners who qualifies the bridge course referred in one of the sections
in such manner as may be specified by Regulations. By an explanation, Ayush
Practitioner has been defined as a person who is a practitioner of Homeopathy
or a practitioner of Indian Medicine as defined in Clause (e) of Sub-section 1
of section 2 of the Indian Medicine Central Council Act, 1970.
One of the sections of the proposed Bill
contemplates bridge courses even for the practitioners of homeopathy to enable
them to prescribe such modern medicines at such level as may be
prescribed. This is materially inconsistent with the definition of the
word ‘medicine’ as depicted in one of the sections wherein it is defined as
‘medicine means modern scientific medicine in all its branches and include
surgery and obstetrics but does not include veterinary medicine and surgery’.
As such these are the flood gates that have
been opened up in terms of the statutory provisions for backdoor entry into
medical profession entitling practicing modern medicine.
Dismantling Screening Test
In one section, the proposed Bill clearly
stipulates that ‘no person who has obtained medical qualification from a
medical institution established in any country outside India and is recognized
as a medical practitioner in that country shall, after the commencement of this
Act and the National Licentiate Examinations becomes operational, be enrolled
in the National register unless he qualifies the National Licentiate
Examinations.
It is strange that, a filter in the name of
screening test, was placed to ensure that the degree holders from medical
institutions outside country are tested in regard to their required level of
knowledge and upon clearance of the screening test were required to do one-year
internship for the hands-on training under supervision in a recognized medical
college to ensure that he is capable of rendering healthcare services to the
people at large in the Indian context. Upon the promulgation of the National
Medical Commission Bill 2017, the Indian Medical Council Act, 1956 would stand
repealed and therefore the clause 13 thereat prescribing screening test
would be rendered to nullity.
The proposed bill stipulates in one of the
sections that “The National Licentiate examination shall become operational on
such date, within three years from the date of
commencement of this act, as may be appointed by the Central Govt., by
Notification. This operationally means that till such time the National
Licentiate examination is notified, the Indian possessing foreign Medical
qualification would be entitled to seek permanent registration and practice medicine
without any screening rider or filter. As such, during the interregnum
a vacuum would be created, and the same would be filled in what manner is not
provided for anywhere in the proposed Bill. This may amount to backdoor entry
of over one lakh foreign graduates.
It is imperative to note that there are
several students who have sought admission to medical institutions outside
India after procuring eligibility certificate by the Medical Council of India
and therefore, are legitimately entitled to appear for the screening test after
acquiring foreign graduate medical qualification. Further, the foreign
qualifications which are there in the existing schedule in a limited number
appended to the Indian Medical Council Act, 1956, with the annulment of the said
Act would also become redundant.
By removal of the said filter and in the teeth
of the liberal provision incorporated one of the sections of the Bill, it
will open floodgates for the compromised degree holders to practice without
they being tested for the desired levels and country will be flooded with half-
baked and ill-equipped medical practitioners playing havoc with the
health of Indian population at large.
UG-NEET exam will be in English
or other languages with common counselling. There will be a uniform
National Licentiate Examination operational within three years with
no PG NEET and with common counselling.
Licentiate exam will be a hindrance to
students who have passed MBBS from North East States and or who belong to SC/ST
or other backward classes. They will never be able to pass such common exams.
Also, there is no provision for AYUSH doctors practicing modern medicine to
undergo licentiate exam. This amounts to restricting post MBBS students
to practice and allowing half-baked AYUSH doctors to start practicing modern
medicine with a ‘bridge course’.
Composition of Autonomous Board
One of the sections of the proposed Act
stipulates that each autonomous board shall consist of President and two
members. The composition does not provide for inclusion of any elected member
therein which goes to indicate that the membership of the said Boards would be
totally appointed / nominated without any representation of an elected member
and thus they would not have any representative character as is desired and
warranted.
Discretionary Powers for relaxing prescribed
regulatory conditions
In one of the sections of the Bill, a proviso
is provided, which entitles the MAR Board to relax the criteria for
opening of the medical colleges at its discretion with the previous
approval from the Central Government which yields not only a wide
authority but also provides adequate scope for availing the discretion for
extraneous considerations. More so the regulatory stipulations which
are mandatory in nature and binding in character cannot be open for any
concession or condonation vide discretionary authority.
The said discretionary authority is not only
vested with the autonomous board but also is with the Central Govt. as well.
Such dual / double discretions to waive the applicability of statutory
stipulations governing prescribed requirements per seis bad in the
eyes of the law.
Permission to practice without qualifying the
National Licentiate Examination
Proviso to one of the sections stipulates that
‘the commission may permit a medical professional to perform surgery or
practice medicine without qualifying the National Licentiate Examination, in
such circumstances and for such period as may be specified by
regulations’. This operationally means that without ascertaining of the
required levels and certification thereto the commission would be permitting
people to practice surgery and medicine is nothing less than legalizing
quackery in an operational sense.
Removal of embargo on Foreign Citizens
practicing in India
‘A foreign citizen who is enrolled in his
country as a medical practitioner in accordance with the law regulating the
registration of medical practitioners in that country may be permitted
temporary registration in India for such period and in such manner as may be
specified by a Regulation’ as clearly stipulated in a proviso to one of the
sections. An uninhibited permission to practice medicine by a foreign
citizen without any reasonable restrictions is harboring intrinsic dangers in
itself.
Imposition of Penalty
The Bill provides in one of the sections that
MAR Board take such measure, including imposition of monetary penalty, against
a medical institution for failure to maintain the minimum essential standards
specified by the UGME Board or the PGME Board, as the case may be, in
accordance with the regulations made under this Act.
It is further provided that the “medical
institution which has been imposed a first-time monetary penalty fails to take
any corrective action, the MAR Board may impose a second-time monetary penalty
for continued failure which shall be higher than the first- time penalty and on
continued failure, impose a third-time monetary penalty which shall be higher
than the second-time penalty:
Provided further that all the three monetary
penalties imposed under the first proviso shall not be less than one-half, and
not more than ten times, the total amount charged, by whatever name called, by
such institution for one full batch of students of undergraduate course or
postgraduate course, as the case may be:
Provided also that even after the imposition
of third-time penalty, if the failure continues, the MAR Board shall forward
its report to the Commission recommending to withdraw the recognition
granted to the medical qualification awarded by that medical institution.
The material point for consideration is that
all the three monetary penalties are not to be less than one half and not more
than ten times the total amount charged by such a institution for one full
batch of students of undergraduate course or postgraduate course as the case
may be. Apart from the heavy computation the contemplation of batch of students
of undergraduate course or postgraduate course fall short of indicating
required specifics.
For example, the penalty can range from 5 crore
to 100 crore, enough variation to have political implications or root cause for
corrupt practices.
Also, a medical college which has not been
compliant for want of financial resources how will the college pay the fine and
if closes down what will happen to these students admitted for these three
years.
Central Govt. empowered to issue directions
Although, autonomy is expected to be a
hallmark of the National Medical Commission Bill, 2017 and the Boards there
under are called as, “Autonomous Boards” in reality the same is a misnomer as
under one of the sections in the said proposed Bill the Central Govt. would be
entitled to give directions to the Commission and autonomous boards on
all the questions of policy which would be binding for the commission and
autonomous Boards to comply.
Further it is clearly stipulated that the
decision of the Central Govt. whether question is one of the policy or not
would be final and is not open for any require of any type.
In one of the sections, the proposed bill
further stipulates that the Central Govt. would be within its rights to give
such direction it may deem necessary to the State Govt. for carrying
out all or any of the provisions of this Act and State Govt. shall comply with
such directions is also undermining the authority of the State Govt.
and is inconsistent with the cardinal principles governing the federal polity
as stipulated in the Constitution of India.
The proposed Bill takes away the autonomous
status of state medical councils “(d) promote,
co-ordinate and frame guidelines and lay down policies by making necessary
regulations for the proper functioning of the Commission, the Autonomous Boards
and the State Medical Councils; and (f)
take such measures, as may be necessary, to ensure compliance by the
State Medical Councils of the guidelines framed and regulations made under this
Act for their effective functioning under this Act.