Delhi High Court allows HCFI PIL and requests government to have separate CSR/charitable entity/account in government hospitals

Recently, vide order dated 15^th July, 2019 one of the public interest litigation (PIL) of Heart Care Foundation of India (HCFI) has been disposed off by the Hon’ble Chief Justice of Delhi High Court whereby Hon’ble Delhi High Court has requested the government to consider and take appropriate action on the issues raised in the PIL being WP© No. 2513/2019 “Court on its own Motion versus Union of India”.

The said PIL was by way of representation filed by HCFI with Hon’ble High Court and then the same was duly accepted by the Hon’ble High Court. The said PIL was mainly on the issues and suggestions given by the Hon’ble High Court of Delhi vide judgment dated 17.04.2014 in the matter titled as “Mohd. Ahmed (minor) versus Union of India & Others, Writ petition (Civil) No. 7279/2013 which are as follows:

 “SUGGESTIONS BY THE COURT

81. This Court suggests that both the Central and State Governments should consider the following suggestions:

i.              All government hospitals could have a separate CSR/ Charitable entity/account wherein donations can be received.  The donations could be subject to an audit.

ii.             Each hospital could have a designated officer, to whom applications for assistance can be made by patients in need. The decision to whom financial assistance could be provided, be left to the Medical Superintendent/CEO of the Hospital along with Head of the Departments.  Delhi could be adopted as the first model state.

iii.            The Ministries of Corporate Affairs and Finance could consider providing extra credit (for instance increased credit) for donations in certain sectors, such as health.

iv.            The Government could adopt a holistic approach to facilitate donations, so that the tax regime supports the said efforts.

v.             All donations in cash and kind must be accounted for, with complete transparency to ensure no misuse or misappropriation of donations. 

vi.            Government hospitals could put up list on the State Department of Health website of the drugs, implants and devices they require for EWS/BPL patients.  This way people would donate as per the need of each hospital.  This could be revised on a monthly basis.  

vii.           The State Government may put up a list of drugs, implants and devices which are excluded from its budget for which donations would be welcome.

viii.          Both the Central and State Governments could create a revolving fund to take care of recurring expenditure of patients suffering from chronic and rare diseases.

ix.            The Government could constitute a High Powered Inter-disciplinary Committee to:

- Develop and update a list of guiding principles/best practices in the area of donations in healthcare.

- Develop a policy for tackling rare diseases and promoting the development of orphan drugs.

- Evolve new and innovative methods for attracting spending in the area of healthcare.

- This Committee could have representatives from various State and Central Government departments, private and government hospitals, non-governmental organizations working in the area of healthcare, representatives of patients rights groups, representatives of pharmaceutical and other companies in the healthcare sector.”

Vide order dated 15^th July, 2019 the Hon’ble Chief Justice of Delhi High Court has held that

1.     This Court received a letter from Dr. K.K. Aggarwal, dated 14th November, 2018, and the same has been treated as a writ petition.

2.     Having heard learned counsel for Respondent Nos.1 to 4 and also having heard learned counsel for the petitioner, it appears that Dr. K.K. Aggarwal seeks directions upon respondents that all government hospitals should have a separate CSR/Charitable Entity/Account wherein donations can be received.

3.     It appears that in an earlier case i.e., W.P. (C) 7279/2013, this Court, vide its judgment and order dated 17th April, 2014, made the following suggestions in para 81 thereof as under: “SUGGESTIONS BY THE COURT 81. This Court suggests that both the Central and State Governments should consider the following suggestions:

i.              All government hospitals could have a separate CSR/ Charitable entity/account wherein donations can be received. The donations could be subject to an audit.

ii.             Each hospital could have a designated officer, to whom applications for assistance can be made by patients in need. The decision to whom financial assistance could be provided, be left to the Medical Superintendent/CEO of the Hospital along with Head of the Departments. Delhi could be adopted as the first model state.

iii.            The Ministries of Corporate Affairs and Finance could consider providing extra credit (for instance increased credit) for donations in certain sectors, such as health.

iv.            The Government could adopt a holistic approach to facilitate donations, so that the tax regime supports the said efforts.

v.             All donations, in cash and kind must be accounted for, with complete transparency to ensure no misuse or misappropriation of donations.

vi.            Government hospitals could put up list on the State Department of Health website of the drugs, implants and devices they require for EWS/BPL patients. This way people would donate as per the need of each hospital. This could be revised on a monthly basis.

vii.           The State Government may put up a list of drugs, implants and devices which are excluded from its budget for which donations would be welcome.

viii.          Both the Central and State Governments could create a revolving fund to take care of recurring expenditure of patients suffering from chronic and rare diseases.

ix.            The Government could constitute a High Powered Inter-disciplinary Committee to; - Develop and update a list of guiding principles/best practices in the area of donations in healthcare. - Develop a policy for tackling rare diseases and promoting the development of orphan drugs. - Evolve new and innovative methods for attracting spending in the area of healthcare. - This Committee could have representatives from various State and Central Government departments, private and government hospitals, non-governmental organizations working in the area of healthcare, representatives of patients rights groups, representatives of pharmaceutical and other companies in the healthcare sector.”

4.    Thus, it appears that suggestions have already been given by this Court to the respondents for having a separate CSR/Charitable Entity/Account and also other suggestions have been given.

5.    We, therefore, once again request the respondents to look into all these suggestions given by this Court in W.P. (C) 7279/2013 vide its judgment and order dated 17th April, 2014 and as far as possible the same will be implemented by the respondents in accordance with rules/regulations and the applicable policy to the facts of this case.”

Dr KK Aggarwal

Padma Shri Awardee

President Elect Confederation of Medical Associations in Asia and Oceania   (CMAAO)

Group Editor-in-Chief IJCP Publications

President Heart Care Foundation of India

Past National President IMA

DELHI HIGH COURT ORDER ON 2 PILS OF HEART CARE FOUNDATION OF INDIA (HCFI) ON ISSUES OF PUBLIC HEALTH IMPORTANCE

Dr K K Aggarwal and advocate Ira Gupta

On 3^rd of this month, the Hon’ble Chief Justice of Delhi High Court had strictly directed Central Government to provide the list of Over the Counter (OTC) Drugs by September 12 in the PIL filed by Heart Care Foundation of India. The Hon’ble High Court passed the following order:

“If the report as per the directions of this Court is not filed so far, the same be filed on or before the next date of hearing. We also direct the respondents to provide a list of Over the Counter (OTC) drugs by the next date of hearing.”

We appeared personally and argued and informed the Hon’ble Court that currently no such list is available by the government and the chemists and pharmacists are dispensing the schedule drugs on the plea that they do not have a list of OTC drugs where medical prescription is not required. The Central Government has filed its counter affidavit in which the Government had stated that it has constituted committee for the formulation of law on OTC drugs, however, the minutes of the meetings conducted by the sub-committee are under preparation.

In another case, the Hon’ble Chief Justice of Delhi High Court directed India Railways, Delhi Metro, all courts in Delhi to file their status report in the PIL about the installation of cardiopulmonary resuscitation (CPR) and automated external defibrillator (AED) machine in public places like courts, railways and metro.

The Hon’ble Court has passed following order:

“We have heard Dr.K.K.Aggarwal at length and also learned counsel for the parties. Learned counsel for the respondents to file an affidavit by the next date of hearing, stating clearly the following:-

(a) What steps they have already taken to establish the centres giving Basic Cardiac Life Support (BCLS) as well as the Advanced Cardiac Life Support (ACLS)?

(b) What is the infrastructure which is already provided and what infrastructure they are going to provide in the new centres?

(c) How many personnel have been deployed at such centres and what is the future road map for the personnel which are to be engaged in such centres which are yet to be established.

(d) In the affidavit it shall also be highlighted about the training given to the persons who are going to be deployed at the aforesaid centres.

(e) The respondents shall also highlight about the availability of ambulances with National Ambulance Code : Automotive Industry Standard (AIS) – 125 Part-II facilities.”

These directions of the High Court were in direct response to the PILs filed by HCFI, which has been named amicus curiae in both the cases.

Dr KK Aggarwal

Padma Shri Awardee

President Elect Confederation of Medical Associations in Asia and Oceania   (CMAAO)

Group Editor-in-Chief IJCP Publications

President Heart Care Foundation of India

Past National President IMA

Delhi High Court takes cognizance of two PILs filed by Heart Care Foundation of India

Recently, the Heart Care Foundation of India (HCFI) had filed two PILs on issues of public health importance.

On 3^rd of this month, the Hon’ble Chief Justice of Delhi High Court had strictly directed Central Government to prepare a “partial list” of Over the Counter (OTC) Drugs by September 12. Currently no such list is available by the government and the chemists and pharmacists are dispensing the schedule drugs on the plea that they do not have a list of OTC drugs where medical prescription is not required. The Central Government has filed its counter affidavit in which the Government had stated that it has constituted committee for the formulation of law on OTC drugs, however, the minutes of the meetings conducted by the sub-committee are under preparation. The central government standing counsel representing the health ministry told the court that the sub-committee's report was being examined by another sub-committee which shall give its final report in three months to the DCC which will forward it to the Drugs Technical Advisory Board (DTAB) for further consideration.

However, the bench was not impressed and said that going by the status report shown to it, the government appears to "have not understood what they (doctors) are asking for". "As things stand today, it is not that difficult to provide a list of OTC drugs," the court said

In another case, the Hon’ble Chief Justice of Delhi High Court directed India Railways, Delhi Metro, all courts in Delhi to file their status report in the PIL about the installation of cardiopulmonary resuscitation (CPR) and automated external defibrillator (AED) machine in public places like courts, railways and metro. The Hon’ble Chief Justice had asked all the respondents in the PIL to give the status report in bullet points thereby covering following points:

·         What is the present status of health and medical infrastructure?

·         What are the proposed requirements of health and medical infrastructure?

·         Whether or not the human resources / personnel are trained in CPR?

·         Whether all ambulances (Basic Life Support and Advance Life Support) are as per AIS-125 Part 2 standards or not?

In the affidavit filed by Central Government, it had been mentioned that as per Automotive Industrial Standards (AIS-125) part 2 standards all ambulances i.e. Basic Life Support Ambulance and Advance Life Support Ambulances should have Automated External Defibrillator (“AED”) machine.   

Over 50 people die in Delhi alone daily because of cardiac ailment and 75% of them can be saved if BCLS or ACLS support is available. All public places should have placement of AIS 125 part 2 standards of and ambulance or a center with these standards.

These directions of the High Court were in direct response to the PILs filed by HCFI, which has been named amicus curiae in both the cases.

Give Them a Chance

Following a petition in the Delhi High Court, the Medical Council of India has said that those with over 80 percent disability won’t be barred from postgraduate courses

The Medical Council of India (MCI) recently submitted to the Delhi High Court that discriminatory regulations for postgraduate (PG) medical education have been amended and people with over 80 percent disability will no longer be barred outright. They will now be considered on a case-by-case basis and evaluated for functional competency while using assistive devices.

This followed a petition by Anjani Bala, an MBBS doctor from Ranchi with polio, who was denied admission to a PG medical course after she was evaluated at Safdarjung Hospital in Delhi. She graduated from the Indira Gandhi Institute of Medical Sciences in Patna and secured rank 80,506 in the NEET PG, making her eligible for specialisation. She interned in all departments. She petitioned the Court, saying that when she had completed her MBBS and done internships and worked in every department, both clinical and non-clinical, why couldn’t she be allowed to do an MD? The exam for MD is on May 5 and the guidelines are yet to be finalised.

In response, the MCI submitted that the regulations had been amended. However, the amended regulations only solve the problems of those with locomotor disability of over 80 percent. For several other categories of disabilities, the problems still persist. For example, those who have had one hand amputated still can’t get admission.

Last year, the Supreme Court in the Muskan Sheikh case asked why the petitioner couldn’t become a doctor as only one hand was amputated. Thereafter, she was granted admission in the MBBS course. But the new regulations require an applicant to have both hands and defy the SC’s observations. Similarly, those with blood disorders such as haemophilia, thalassemia and sickle cell disease were also barred. Those with more than 80 percent of these diseases are not eligible for admission. But when persons with 80 percent locomotor disability— including those using wheelchairs—are not barred, why should persons with other disabilities be?

Disability is calculated by a board specified by the State (in this case, Safdarjung Hospital in Delhi) based on visual, locomotor, speech and mental impairment and multiple disabilities. Minimum impairment should be 40 percent and the disability certificate is valid for five years for temporary disability and lifelong for permanent disability.

With respect to specific learning disabilities, the MCI guidelines were discriminatory for both UG and PG admissions through NEET. This includes dyslexia, dysgraphia and dyscalculia. But now dysgraphia has been removed from the allowed categories. So why have the other two categories been allowed and not this?

As for international laws, the Americans with Disabilities Act, 1990, prohibits discrimination against qualified job applicants with disabilities. However, only a few disabled students enter the medical profession as they must be able to perform the essential functions of a doctor and each school determines for itself what these criteria are. The US has many practising disabled doctors. A study in the American Journal of Physical Medicine and Rehabilitation based on data from 1996 estimated that just 0.2 percent of medical school graduates have some type of disability. The number of disabled doctors has, of course, grown since the mid-1990s.

In a case in the US, a federal jury ruled in favour of a hearing-impaired former student of Creighton University School of Medicine on September 5, 2013, in Omaha, Nebraska. The verdict from the controversial lawsuit sets a precedent for the rights of disabled medical students and doctors to study and practise medicine in the US. Michael Argenyi was accepted to Creighton University School of Medicine in Omaha in 2008. He informed the school that his hearing was impaired and that he would need interpreters and special equipment to attend lectures and communicate with patients. Argenyi was diagnosed as legally deaf at eight months old, and had similar accommodation of his disability from grade school to his undergraduate years at Seattle University.

In 2009, after Creighton refused to provide Argenyi with “a real-time captioning system for lectures” and a “cued speech” interpreter during clinical training (he offered to pay for them), he left the school and sued it for discriminating against him because he was deaf. One of the reasons the medical school denied Argenyi’s request was because it felt patients “could be more hesitant to share information when someone else was present” and that doctors “needed to focus on the patient (not a third party) to rely on visual clues to make a proper diagnosis”. Argenyi’s attorney reportedly said that a judge will now decide whether Creighton will pay the student more than $1,10,000 as reimbursement for medical equipment he bought.

In India, the Rights of Persons with Disabilities Act, 2016, along with the Rights of Persons with Disabilities Rules, 2017 (together, the “Disability Law”) has been enacted by the government. The Disability Law gives effect to the principles of the United Nations Convention on the Rights of Persons with Disabilities. It inter alia seeks to protect disabled persons from various forms of discrimination, increases measures for effective participation and inclusion in society and ensures equality of opportunity and adequate accessibility.

Prior to its enactment, the law governing the rights of the disabled was scattered across the Constitution and various other Acts. Although these laws aimed at safeguarding the rights of persons with disabilities, they did not specifically provide for equality of opportunity especially in matters relating to employment. The Disabilities Act, 2016, replaced the Disabilities Act, 1995. Under the 2016 Act, all establishments (including the private sector) should have an equal opportunity policy and employers should register the equal opportunity policy with the State Commissioner or Central Commissioner (as applicable).

Most MBBS and PG doctors with disabilities may still be able to contribute significantly in desk and diagnostic jobs and as writers, speakers, medical artists, creators, administrators, etc. So why restrict them?

MCI Ethics Regulations 2.1.2 says: “A medical practitioner having any incapacity detrimental to the patient or which can affect his performance vis-à-vis the patient is not permitted to practice his profession.” This should be interpreted with regulation 8.5 which says: “During the pendency of the complaint, the appropriate Council may restrain the physician from performing the procedure or practice which is under scrutiny.” So such a person should choose a field in which his disability will not harm the patient.

All said and done, a professionally competent doctor with some disabilities should be handled with concern as he can still be of use to society.

Reproduced from: India Legal, Published April 22, 2019: p.36-37.

Dr KK Aggarwal

Padma Shri Awardee

President Elect Confederation of Medical Associations in Asia and Oceania   (CMAAO)

Group Editor-in-Chief IJCP Publications

President Heart Care Foundation of India

Past National President IMA

Hon’ble Delhi High Court directs social restaurant to provide wholesome meals and sanitary napkins to children of 10 orphanages and 10 foster care homes

In a yet another exemplary move, on 27th March, 2019 the Hon’ble Delhi High Court has directed Impresario Entertainment and Hospitality, owner of the ‘SOCIAL’ restaurant chain, to provide wholesome meals to children in ten orphanages and ten foster care homes in Delhi for two years.

The restaurant chain will continue providing one meal per day to the children lodged in these centres until the expenditure incurred by it becomes equal to the punitive costs of Rs 20 lakh imposed on it by the Court.

The owner of the SOCIAL chain will also provide sanitary napkins to adolescent girls at these centres.

The order was passed by a Single Judge Bench of Justice Najmi Waziri in a contempt case filed against Impresario Entertainment.

Luxury accessories and apparel label Hermes International had moved the Delhi High Court after discovering that Impresario Entertainment was violating its trademark, logo etc. Without going into the merits, the case was disposed of after Impresario Entertainment stated that it would not use the Hermes trademark or other intellectual property to its benefit.

Despite this undertaking, Impresario Entertainment’s Goregaon Social in Mumbai displayed a red watch-box with the Hermes logo and the word ‘Herpes’.

Aggrieved by the display, Hermes International moved the High Court. It was submitted that the word ‘Herpes’ was written in the same font style and size as ‘Hermes’. Therefore, an unsuspecting individual would ascribe some affinity to Hermes International, it was stated.

Further noting that the word ‘Herpes’ is associated with a skin disease, it was submitted that the display was in bad taste and reflected poorly on Hermes International.

Impresario Entertainment, on the other hand, argued that the element of humour was part of public life. The display on the red box was a word-play and it never intended any harm, it was submitted.

The owner of SOCIAL vowed to abide by any such terms and conditions that may be imposed on it by the Court, in larger public service. Hermes International also agreed to forego the sum imposed as costs on Impresario Entertainment.

Quantifying the punitive damages in the contempt proceeding at Rs 20 lakh, the Court directed Impresario Entertainment to provide one wholesome meal per day to children in ten orphanages and ten foster care homes in Delhi for two years against this amount.

The meal would be equivalent to a mid-day meal as provided by government schools, the Court said. The Court also directed Impresario Entertainment to file a compliance report every four weeks on the distribution of meals.

As per the order, Impresario Entertainment would also have to install a commercial water purifier at Delhi’s 150-year-old orphanage, Bhachhiyon Ka Ghar.

Additionally, it was also ordered to provide sanitary napkins to girls aged 6 to 18 years at these centres. The napkins would be procured by Impresario Entertainment from a Nagpur-based company which also provides sanitary napkins to the Delhi Government under the Kishori Shakti Yojna.

As a natural corollary to this judgement, the question arises “Why are doctors subject to criminal prosecution?”

To prosecute a doctor for criminal medical negligence, any medical action taken by him/her, should have been done with an intention to harm or with the knowledge that it can cause harm and the patient is not informed about the same.

But, no doctor chooses to become a doctor to harm a patient intentionally as was also observed by the Hon’ble Supreme Court in its landmark judgment in Jacob Mathew vs State of Punjab & Anr, which stated: “No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career… A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act.” Also, no doctor practices without informed consent.

To err is human and despite all care, errors do happen inadvertently.

Difference of opinion, error of judgment, medical errors and medical accidents are not medical negligence. Experiencing a bad outcome does not always mean medical negligence. This has also been the position of the Supreme Court of India in its various judgements.

Doctors are professionals and are bound by the MCI Code of Ethics Regulations.

If there is a Code of Ethics for doctors, then why should they be charged under Penal Codes?

Justice Waziri is known to hand out punishments with a difference.

Earlier this month, Justice Waziri quashed an FIR against a couple, who had employed a minor for household work, and directed them to plant 100 trees and pay Rs 1.5 lakh to the victim. He also directed two other persons, who were agents and through whom the minor girl was employed at the couple's house, to offer manual labour for plantation and care of the trees (Outlook India).

In February this year, Justice Waziri had ordered 2G case accused - Swan Telecom’s promoter Shahid Balwa, the director of Kusegaon Fruits and Vegetables, Rajeev Agarwal, and three firms, namely Dynamic Realty, DB Realty, and Nihar Constructions - to plant 3,000 trees each in the Delhi’s South Ridge forest area. He also specified that the plants should be indigenous, three and a half years of nursery age and six feet in height. They will also have to submit photographic proofs in the court ensuring plants' good health (Business Today).

Why can’t the medical councils and courts follow suit and award punishments of a similar nature instead to erring doctors?

Why are they still being penalized and punished?

It is now becoming evident that more than the medical or clinical factors, it is the social factors that determine the health outcomes.

Doctors are not just clinicians; they are change agents and act as a catalyst for change and transformation in their patients as well as the community. 

Regulation 8.2 of the MCI Code of ethics clearly states “…If the medical practitioner is found to be guilty of committing professional misconduct, the appropriate Medical Council may award such punishment as deemed necessary or may direct the removal altogether or for a specified period, from the register of the name of the delinquent registered practitioner…”.

(Source: Bar and Bench)

Dr KK Aggarwal

Padma Shri Awardee

President Elect Confederation of Medical Associations in Asia and Oceania   (CMAAO)

Group Editor-in-Chief IJCP Publications

President Heart Care Foundation of India

Past National President IMA