'Medical Practitioners Must Be Protected From Onslaught Of Frivolous Complaints': Madras High Court Issues Guidelines For National Medical Council

The Madras High Court on Tuesday quashed an order dated May 4, 2021 of the Tamil Nadu Medical Council (TNMC) suspending a gastroenterologist by observing that principles of natural justice were not given credence to. The Court also laid down exhaustive guidelines that are to be included in the new Regulations that are to be framed under the National Medical Council (NMC) Act, 2019 for effective handling of complaints against medical practitioners.

Justice R Mahadevan observed,

"It is the responsibility of the Medical Council to proceed against the medical practitioners.. At the same time, the Medical Council also owes a duty to protect the medical practitioners, who are rendering yeomen service for the betterment of the general public, from the onslaught of frivolous complaints or to proceed against them in a hasty manner."

The Court further opined that in the larger interest of the society the highest degree of care and caution must be exercised by medical practitioners however it is equally important to acknowledge the services of medical practitioners.

"Regard must be had to the fact that they work under tremendous pressure - physically, mentally, morally and also professionally. They cannot be expected to perform their best, if the swords of damocles are kept hanging on their head constantly. Enough protection needs to be given to the medical practitioners in order that they may not be penalised, targeted or punished, unjustly", the Court observed.

The directions were passed while allowing a write petition moved by gastroenterologist P. Basumani who had put in 35 years of practice against an order of the TNMC removing the petitioner's name from the Medical Register for a period of six months. The Court held that the petitioner had been punished without being afforded an opportunity to defend himself effectively by cross examining the witnesses and so on.

In the instant case, the petitioner had treated a patient in a private hospital in Chennai from September 27, 2015 till the latter's death on October 11, 2015. Subsequent to the patient's death, the patient's daughter had lodged a complaint with the Medical Council of India accusing a Coimbatore-based doctor Radhakrishnan of having issued a false fitness certificate for her father when he was actually hospitalised.

The complainant had alleged that her father's immovable properties worth Rs 50 crore had been transferred to the name of Dr. Radhakrishnan's son-in-law on the basis of the false medical fitness certificate. She had also lodged a police complaint.

The police authorities were informed by the Medical Superintendent of the concerned hospital that the complainant's father was conscious on October 8, 2015. Thereafter during the enquiry conducted by the TNMC, the petitioner had deposed that the patient was not conscious on October 8, 2015 and that he was not oriented to understand the legal documents.

On the basis of such an averment, the TNMC then proceeded to remove the petitioner's name from the medical register for alleged misconduct pertaining to the furnishing of false information to the police authorities and having facilitated the accused to escape from the clutches of law.

Justice Mahadevan disapproved the TNMC's order of suspension by noting that there was absolutely no ground for taking disciplinary action against the petitioner. He also pointed out that the enquiry conducted by the disciplinary committee was not against the petitioner and that he was summoned only to give material evidence.

"The petitioner was also not afforded any opportunity to cross examine the witness, whose statement or document was used against him and put forth his defence before the committee as to whether he was aware of the contents of the letter addressed to the Medical Superintendent and for that matter, he was not aware of the reply given by the Medical Superintendent. This Court also, from the records, is unable to find even any probability of joint decision or instruction from the petitioner to the Medical Superintendent for him to issue such a letter contrary to the medical records of the patient to the police authorities. Thus, the violation of the principles of natural justice has caused serious prejudice to him", the Court noted.

Thus the Court observed that the act of the disciplinary committee being quasi judicial authority, to recommend for imposition of punishment on the petitioner without providing any opportunity to him 'is wholly unjustified and the same is liable to be set aside'.

It was also underscored that the principles of natural justice is not an 'empty formality'. In the absence of observance to the principle, the element of 'fairness' in the action is removed and "arbitrariness" creeps in, the Court stated.

Accordingly, the Court issued the following guidelines which the TNMC was directed to refer to as a Standing Operating Procedure (SOP) for the purpose of effective complaint-handling mechanism, so as to avoid unnecessary allegations against the Medical Board.

Guidelines Issued

• The Code/Regulations should enunciate in general the duties bestowed by law on a registered medical practitioner. These duties and responsibilities are standards to be met by all medical practitioners in general.

• After enumerating the general duties and responsibilities expected from a registered medical practitioner, certain specific duties and responsibilities, the violation of which would entail disciplinary action, would be construed as 'professional misconduct' to be enumerated in a list of instances that are illustrative. A further guidance is to be issued in the Regulations itself as to which other further instances of misconduct may be treated by the disciplinary board or the superior Courts as qualifying under the term 'professional misconduct' that would entail disciplinary action against medical practitioners.

• Thereafter, a complete stage-wise guidelines/ mechanism is to be envisaged under the Code/Regulations from the time of filing of the complaint by an aggrieved person to the registration of such a complaint with the concerned medical council and the procedure to be followed thereafter.

• Once a complaint is received from an aggrieved person, the State Medical Council/Ethics and Medical Registration Board, as the case may be, may issue a show cause notice to the delinquent medical practitioner, annexing a copy of the complaint received and calling upon an explanation in detail from the medical practitioner, within a time frame to be fixed by the Council. The medical practitioner may submit his explanation within the time frame granted and the State Medical Council/Ethics and Medical Registration Board may, after considering the explanation given by the medical practitioner, constitute an enquiry committee consisting of experts in the field with specific reference to the field of medicine with which the medical practitioner is associated.

• After constitution of committee, notice is to be issued to the medical practitioner as well as the complainant and both parties shall be heard in person and relevant oral as well as documentary evidence shall be recorded by giving enough opportunity to both parties in the presence of each other. The principles of natural justice, as required in quasi-judicial proceeding, will have to necessarily be followed as the proceedings may end in punishments which would entail civil consequences to either party.

• After completing enquiry, the Enquiry Committee has to submit its detailed report encompassing all the evidence recorded before it by both parties and come to an informed decision on its recommendation to the disciplinary board of the State Medical Council / Ethics and Medical Registration Board. The Enquiry committee will have to indicate its finding on the veracity or otherwise of the complaint as well as its finding on whether the medical practitioner is guilty of 'professional misconduct' under the Regulations/Code.

• In order to make the disciplinary proceedings free from any loopholes and to avoid multiplicity of proceedings, the report of the enquiry committee is to be made final and binding on the disciplinary board of the State Medical Council/Ethics and Medical Registration Board. On receipt of the report of the enquiry committee, the Disciplinary Board of the State Medical Council/Ethics and Medical Registration Board, as the case may be, if the medical practitioner is found guilty, may decide on a proposed punishment and issue a show cause notice to the medical practitioner on the only ground of the proposed punishment, call for his remarks thereon and thereafter pass orders imposing punishment on the medical practitioner.

• The disciplinary board of the State Medical Council/Ethics and Medical Registration Board will have to a permanent tenure, fixed three-member body (constituted by election by the Commission from amongst its members) that will function as the disciplinary authority for the purpose of professional misconduct by registered medical practitioners under the Code/Regulation.

• The enquiry committee will have to be appointed by the unanimous consent of the members of the Disciplinary Board of the State Medical Council/Ethics and Medical Registration Board as the case may be.

• The appointment of the members of the enquiry committee, however, will differ from case to case depending on the field of medicine that the delinquent officer is associated with. The enquiry committee shall be a three-member committee with one member from the field of general/internal medicine and two other members from the concerned fields as required on a case to case basis.

• Any complaint made to the State Medical Council/Ethics and Medical Registration Board shall be disposed of within a period of six months in total from the time of filing of the complaint to the time of either closing of the complaint or imposing punishment on the delinquent medical officer.

• For the purpose of giving enough and extensive powers to the enquiry committee, inspiration may be drawn from Section 42 of the Advocates Act, 1961 where the disciplinary committee of the Bar Council is given extensive powers with respect to conducting enquiry, recording of evidence et cetera.

• The code of ethics which presently mentions under Regulation 1.3 that medical documents and records to be preserved for a period of three years can be extended for a period of 10 years as the entire records can be digitalised and the same may be required for dealing with complaints.

• A period of limitation for filing a complaint against a medical practitioner can be loosely fixed by the Council while giving liberty to the disciplinary board to relax the same, if the case so deserves.

Case Title: Dr. P. Basumani v. Tamil Nadu Medical Council

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