Integration Of Ayurveda Into Modern Medicine: Mixopathy- The Unrealistic And Unguided Mixing

Though the Amendment to the Regulations notified by the Gazette Notification dated November 20, 2020 have been made as an attempt to regulate the education of post-graduate course in Ayurveda system of medicine, the manner in which it has been worked out shows that what it actually intends to achieve is nothing but the slow integration of Ayurveda into Modern Medicine at least to the limited extent, a purpose beyond the reach of the rulemaking power of the regulator, as the Post Graduate Ayurveda Education Regulations or its parent enactment, namely, Indian Medicine Central Council Act, 1970 do not empower the rulemaking authority to adopt such a course to integrate one system of medicine with the other, when the knowledge, training, application, exposure, approach and path of both systems are clearly exclusive, varying, distinct and separate. In Ayurveda, healing is facilitated with the amalgamation of elements of nature, whereas in Allopathy, the disease is primarily treated and managed with the help of drugs.

Section 36(1) of the Indian Medicine Central Council Act, 1970 deals with the power of the Central Council of Indian Medicine to make regulations generally to carry out the purposes of the Act. Under Section 36(2), regulations thus framed require the approval of both Houses of Parliament. Parliament can approve, disapprove or make modifications to the regulations. The purpose of the Act is to facilitate constitution of a Central Council of Indian Medicine and maintenance of Central Register of Indian Medicine and its connected matters. The Act inter alia envisages detailed provisions regarding composition of the Central Council and its committees; permission for establishment of new medical institutions, courses etc.; recognition of medical qualifications; withdrawal of recognition; prescribing minimum standards of education in Indian medicine; professional conduct; privileges, etc. Section 2(e) of the Act defines Indian Medicine as including Ayurveda, Siddha.

Section 36(1)(i) of the Act authorizes the Central Council to prescribe regulations on the courses and period of study and of practical training to be undertaken, the subjects of examination and the standards of proficiency therein to be obtained, in any University, Board or medical institutions for grant of recognized medical qualifications. Similarly, Section 36(1)(j) of the Act empowers the Council to make regulations on the standards of staff, equipment, accommodation, training and other facilities for education in Indian medicine; and sub-clause(k) enables rule making for the conduct of professional examinations, qualifications of examiners and the conditions of admission to such examinations. But the issue precisely raised is where lies the power of the Central Council to prescribe training conditions in surgical procedures in such a manner as to enable the PG scholars in Ayurveda in the mentioned disciplines to acquaint with and perform the listed surgical procedures independently.

A casual exercise, not a cautious choice:

Every rule making exercise has to pass the constitutional muster of rationality, legality, propriety and proportionality. The validity of the rule making power has to be determined not only with reference to its object, but also looking at its effect on the affected class. Rule making power has to be harmonized with the principles of natural justice and due process in its substantive and procedural essence. The instant changes appear to have been introduced in a unilateral manner without effective consultation with the stakeholders including the general public, medico-legal, insurance, etc. The changes seem to have been brought in a mechanical manner, without proper application of mind. No legislative authorization could be traced to the Indian Medicine Central Council Act, 1970 for integrating one system of medicine with the other. In the legal context, one cannot be faulted for thinking that it is a colourable exercise of legislative power or delegated power, apparently for the reason that relevant considerations have escaped from the zone of consideration of the rule making body before introducing such paradigm shift in approach, which has far reaching consequences not only on the medical practitioners, but on the public at large who are the ultimate beneficiaries of the different systems of medicine.

Regulation 10 of the Indian Medicine Central Council (Post Graduate Ayurveda Education) Regulations,2016 deals with method of training. The provision which has invited the present controversy, namely Regulation 10(9) was added to the Regulations by the recent amendment and it states during the period of study, the Post Graduate scholar of Shalya and Shalakya shall be practically trained to acquaint with as well as to independently perform the listed activities so that after completion of PG Degree, he is able to perform the mentioned procedures independently. Under the various categories so left open for independent surgical pursuit by Ayurveda PG Graduates of the above mentioned specialties come various surgical procedures forming part of General Surgery, Eye, ENT related surgeries and Dental procedures. Out of the delineated surgical procedures, 39 procedures form part of general surgery and 19 procedures involve the eye, ear, nose, throat and tooth.

The listed procedures include removal of metallic and non-metallic foreign bodies from non-vital organs, excision of simple cyst or benign tumors of non-vital organs, excision/amputation of gangrene, traumatic wound management, foreign body removal from stomach, squint surgery, cataract surgery, functional endoscopic sinus surgery, etc.

The 58 categories of surgical procedures thus made mention of in the amended regulations speaks in volume the sudden twist in law which may adversely affect the interest of the practitioners in modern medicine and goes against their legitimate expectations. But the ultimate question is whether the changes have constitutional footing and what is the immediate need and reasons for the changes. Whether the country and its people can approve it? Policy and policy matters are the domains of the Government and the ruler. But if the change in PG Medical Education policy is contrary to public interest and the health and well-being of the public at large, it calls for retrospection.

The unique right to healthcare and treatment:

Right to healthcare and treatment has passed through different stages of evolution to reach the present state of recognition and justiciability as a fundamental right. Its development is traceable from jurisprudential and international perspectives and both have cast a positive obligation on the State to protect peoples' health and public health. Yet, the often raised question is whether the 'State obligation' is something that can easily be knocked out.

Legalist thoughts would explain that citizen's life means not mere life, but living well. Life, liberty, and the pursuit of happiness are self-evident eternal truths. It is to secure the same that governments are instituted among men, deriving their just powers from consent of the governed. Constitutional limitations exist on the exercise of powers of each of the organs set up by the Constitution to make it enforceable by the Courts and to invalidate legislative and the executive despotism and its in-built tendency to authoritarianism. Inalienable and sacred individual rights of the people such as right to health, treatment, medicare and its access which are far superior to civil rights will have to be duly protected in the arms of the State. Rulers and lawmakers must do good to the sick, ill-nourished, infirm and the disabled.

Conferment of the right to health and Medicare on the subjects which is more important than the other rights mean a corresponding duty on the State to effectuate the exercise of the right, which means taking preventive and curative measures by the State. Consequently, State may need to refrain from conduct injurious to the enjoyment of physical and mental health of its people.

From human right to fundamental right:

The right to life is the most fundamental of all the rights and it is the very core of humanity. It is therefore, being considered as the sanctum sanctorum of human rights. It is the right from which all other rights stem out. Life means the state of being alive as a human being. It also means the qualities, events and experiences of human existence.

Aristotle, while explaining the origin and purpose of "State", observed that State came into being for fulfillment of bare needs of men and continues in existence for the sake of good life. Hobbes also justified man's natural right to life. The desire to stay alive is man's paramount wish, and the one that demands from other, their most unfailing respect.

Equally important was that Locke also acknowledged that "life, liberty and estate" of one person can be limited only to make effective the equally valid claims of another person to the same right. Emphasizing on the role of the State, Rousseau justified the existence of the State for protecting the rights of the subjects, the most important of which being the right to life. It is the heart of all fundamental rights and has received expanded meaning from time to time at national and international levels.

Right to health and Medicare - Evolution from international instruments:

A facet of the right to health finds a place in Article 25(1) of the Universal Declaration of Human Rights, which states that everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. Article 25(2) of the Universal Declaration emphasizes on the protection of motherhood and childhood by declaring that motherhood and childhood are entitled to special care and assistance.

The Preamble to the Constitution of World Health Organization, which was drafted more or less during the same time as that of the Universal Declaration states that enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political, economic or social condition.

Article 12 of the ICESCR forms the international base for the emergence of the right to health. It recognized explicitly the right of everyone to enjoy the highest attainable standards of physical and mental health.

Tackling health challenges through optimized health service:

It is the duty of the State to provide optimized health service so that everyone can realize the right to health. This must be achieved by assuring to all medical service and medical attention in the event of sickness. States must equally act to enhance the welfare of children in general, such as reduction in still birth rate and infant mortality and health development of the child. It is also the obligation of the State to prevent and treat epidemic, endemic, occupational and other diseases. Thus, a multi-faceted approach to health has to be shown by the State. It means creating duties under State responsibility to contribute to the satisfaction of the individual aspirations of citizens. Life is not mere living but living in health. The health of the individual, as of nations is of primary concern to all of us. Health is not absence of illness but a glowing vitality, a feeling of wholeness with a capacity for continuous intellectual and spiritual growth. State must recognize health as a public good. Right to healthcare embraces right to health services in relation to disease prevention, health promotion, therapeutic services and rehabilitation.

Health basically entails four essential elements, viz., availability, accessibility, acceptability and quality of health facilities. It is thus clear that State has certain specific obligations to fulfill in reference to the right to health which are in the nature of obligations to respect, protect and fulfill. The obligation to protect means that States are required to take action to prevent third parties from interfering with the Constitutional guarantee. This includes a responsibility to ensure that harmful or traditional practices which relate to any system of medicine do not impinge on the healthy development of women. The obligation to fulfill requires States to adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures to realize fully the right to health. The obligation consists of three specific elements, viz., the obligation to adopt positive measures capable of assuring individuals and communities to enjoy fully the right to health; the obligation to provide a specific right guaranteed in the ICESCR; and the obligation to promote, calling on States to undertake action that create, maintain and restore the health of citizens.

Right to access to health as a social right:

The crowning glory of Vincent Panikulangara decision was that health was seen by the Court as part and parcel of life. The activist attitude shown by the court in Consumer Education Research Centre case should be exalted. The Court had definitely played a decisive role in sketching the contours of the right to health. Judiciary acknowledged that a vibrant constitutional synthesis exists between social justice and individual freedom and in that process, it elevated right to health to the status of fundamental right. In the process, it has articulated access to public health also as part of Article 21 of the Constitution of India. The expanded meaning of right to life is wholly justified, for without health of a person being protected and his well-being taken care of, it would be impossible for him to enjoy other fundamental rights in a positive manner.

A change without jurisprudential footing:

The legal distribution of public power consists ultimately in a dynamic settlement. In the end, it is not a matter of what it is, but of what ought to be. The journey to find it is a search for principle, not the unfolding of a rule book. Education should be used cautiously as an instrument to change the rules relating to the game of life. In the attempt to preserve the quality of life, apart from the jurisprudential values, we should also follow the community values and heritage of Indian culture to make living healthy and productive and to allow peace and prosperity to prevail over mankind.

State should not evade the fulfillment of the minimum obligation in relation to health and medical care. Public interest is the paramount law. Right to health is a composite right which means right to highest attainable standard of physical and mental health, human right to equal access to adequate healthcare and health related services. Medical treatment should be accessible, affordable and qualitative. This cannot be compromised. Modern healthcare should embrace the best technologies and adopt best practices, without waiving its identities.

Mixopathy, the slow mixing of different forms of medical practices and education is not good for the country and its people. Its implications on code of ethics and preservation of life cannot be lightly viewed. If the patient suffers infection or goes blind due to mixopathy, whom to be blamed - Whether the system permitting it or the medical professional performing it? Surgery involves harmonious fusion of knowledge, experience and skill. Integration of systems cannot bring vitality or vigour to it, nor does it provide required learning and skill for independent pursuit. The dilemma projected by the issue will definitely continue for some time with groups and systems contradicting each other, unless the State appropriately intervenes in public interest and give a quietus to the issue by taking remedial action alleviating the genuine apprehensions of the medicos and other stakeholders including the general public. Ultimately people should be benefited from the treatment methods without risking efficacy and safety. However, the choice is of the lawmakers who must act circumscribed by constitutional limitations and guided exercise of power.

Views are personal.

(The Author is a practicing Lawyer, a public health law expert, and an adjunct Professor based in Kochi)