The Madras High Court has taken serious note of the growing occurrence of government doctors abandoning their duties to start private practice for “personal enrichment”
By Dr KK Aggarwal
Expressing concern over government doctors who abandon their duties for developing their private practice and “personal enrichment”, the Madras High Court, in a judgment delivered on March 13, 2019, has directed the state government to constitute a monitoring committee to supervise the attendance and assess the performance of government doctors as well as look into the maintenance of government hospitals as per prescribed standards. The Court took serious note of the tendency of government doctors to, after gaining experience and exploiting government resources for acquiring their speciality qualifications and practical experience, leave their job for personal enrichment.
To understand the issue better, it may be pertinent to look at Clause 7.23 of the MCI Code of Ethics Regulations, 2002, which says that “if a physician posted in a rural area is found absent on more than two occasions during inspection by the Head of the District Health Authority or the Chairman, Zila Parishad, the same shall be construed as a misconduct if it is recommended to the Medical Council of India/State Medical Council by the State Government for action under these Regulations”. Further, Clause 7.24 says “if a physician is posted in a medical college/institution both as teaching faculty or otherwise, he shall remain in hospital/college during the assigned duty hours. If they are found absent on more than two occasions during this period, the same shall be construed as a misconduct, if it is certified by the Principal/Medical Superintendent and forwarded through the State Government to Medical Council of India/ State Medical Council for action under these Regulations”.
However, by way of a 2003 notification, these two clauses were conveniently omitted. The notification reads as follows: “In exercise of the powers conferred under section 20A read with section 33(m) of the Indian Medical Council Act, 1956, the Medical Council of India, with the previous approval of the Central Government, hereby makes the following amendments to the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002: The regulations, 7.23 and 7.24 appearing under Chapter 7, shall be omitted.” As a result, doctors posted in rural areas are regulated by their employer under the state service rules but not by the medical council.
In the above case, the Madras High Court said that under Article 21 of the Constitution, the right to life includes availability of decent medical facilities to all citizens and the State is duty-bound to ensure that medical treatments and facilities are provided at par and equally. The Court further stated: “Government hospitals are equipped with advanced medical equipment and infrastructure. But the utilisation of medical equipment and infrastructural facilities is not regulated. The machineries are not maintained properly as per the instructions provided by the manufacturers. Sometimes, medical equipment and facilities are misused by medical practitioners and employees of hospitals by mishandling or not operating as per the instructions.”
The Court further noted that: “Government doctors gain rich experience at the cost of public money….Poor men are being used as guinea pigs for learning. A poor man’s dead body is dissected and provided for learning. The government resources and the life of poor men are under the mercy of these government doctors. If no adequate measures are taken to monitor the quality of treatment and performance, the State is failing in its duty to uphold the right to life ensured to every citizen under Article 21 of the Constitution.” The Court also noted that apart from the prevalence of corrupt practices in government hospitals, doctors are irregular in attending duty, resulting in deaths of several patients, not all of whom are in a position to afford quality treatment in corporate hospitals. The situation results in denial of social justice and equal treatment. The Court went on to say that the economic condition of a citizen cannot be a ground for denial of quality treatment and thus, the government is duty-bound to ensure cleanliness, availability of doctors including speciality treatment, paramedical staff, supporting staff, etc.
Last year, in the matter of State of Uttar Pradesh & Others vs Achal Singh, the Supreme Court had dismissed a plea by a government doctor, Achal Singh, seeking voluntary retirement from government service. The apex court had held that the government may fill the vacancies, if any. But that would not bring doctors of experience at senior level, and exodus of doctors cannot be permitted to weaken the services when public interest requires them to serve for the sake of an efficient medical profession and fulfil the Directive Principles of State Policy. The Court further stated that when services are required, denial of voluntary retirement is permissible under the Medical Council Rules applicable in the state of Uttar Pradesh.
But why are so many government doctors quitting? What are the systemic compulsions and pitfalls that are compelling them to take such a step? Some possible reasons are: (a) Doctors are often not given their due salaries. The pay structure differs from state to state. Most doctors, from day one itself, start looking for jobs in metro cities for better pay; (b) Doctors do not find incentives in rural areas. Thus, rural salaries should be more than or equal to urban salaries as in Gulf countries; (c) The magnitude of care may differ, but the quality of care should be the same pan-India. All similar hospitals should have similar infrastructural facilities; (d) Doctors who are in the prime of their life (immediately after MBBS or MD) should not be posted to areas where they start de-learning their knowledge and experience due to non-availability of drugs, basic machines and other infrastructure; (e) Most doctors also shift for better prospects, like in any other industry, and this is not against the law. Even the Supreme Court, in the 2011 case of Kanwarjit Singh vs State of Punjab, held that if a medical professional has acted in a manner which is contrary only to government instructions de hors any criminal activity or criminal negligence, the same would constitute an offence neither under the Indian Penal Code nor under the Prevention of Corruption Act.
To remedy the problem of doctors abandoning government services, the following corrective steps can be taken: (a) The MCI must reamend its ethics regulation and re-bring this in their domain; (b) States must ensure proper maintenance of medical infrastructure and equipment; (c) Every hospital must have an internal redressal mechanism to deal with such complaints; (d) The government should ensure a uniform pay structure for government centres pan-India. It must also be borne in mind that when a doctor is transferred from one place to another, often he/she resigns from the post or seeks voluntary retirement as he/she doesn’t want to move out and leave the lucrative private practice, and joins duty only when he/she obtains a posting to a place of his choice. In such a scenario, people should not be deprived of the services of good doctors.
Reproduced from: http://www.indialegallive.com/madras-high-court/government-doctors-exodus-ill-gotten-gains-62255, Published March 23, 2019
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