Transplantation Of Human Organs & Tissues Act No Bar To Enquiry For Professional Misconduct Under IMC Ethics Regulations 2002

The Kerala High Court recently considered the question of whether an authority under the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002 is empowered to issue notice and conduct enquiry on a complaint regarding alleged misconduct in transplantation of human organs, since the latter is governed by the Transplantation of Human Organs and Tissues Act, 1994, and answered the question in the affirmative. 

The Division Bench comprising Chief Justice S. Manikumar and Justice Shaji P. Chaly observed that the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002 (hereinafter, Ethics Regulations 2002) is a self contained code since it clearly specifies the procedure and manner in which disciplinary action has to be proceeded with, and no bar to this authority could be found in the provisions of the Transplantation of Human Organs and Tissues Act, 1994 (hereinafter THOTA 1994), either when there is any professional misconduct, or to conduct an enquiry on a complaint received in this regard. 

"..... going through the provisions of Transplantation of Human Organs and Tissues Act, 1994 and Ethics Regulations, 2002, we are of the opinion that the statutory authority was duty bound to conduct necessary enquiry or investigation when a complaint is received even from a third person, including a physician because, even that physician has a duty to expose unethical conduct on another physician and that the truth and reality of the allegations in the complaint can be found out only if an enquiry is conducted".

As per the factual matrix, the appellants/writ petitioners in the instant case were doctors at Aster Medcity, Kochi. On 27th November 2011, they had received show cause notices from the 2nd respondent, Travancore-Cochin Council of Modern Medicine, Thiruvananthapuram, directing them to furnish explanation, in response to a complaint filed by the third respondent herein, alleging serious misconduct in the conduct of organ transplantation surgeries conducted in Aster Medcity Hospital on 5.3.2019 and 7.3.2019 on 5 persons. The Director of Medical Education (DME), which is the Appellate Authority, upon receipt of the complaint, initiated due proceedings to investigate the matter and issued an order dated 17th September 2019, informing Aster Medcity of the proposed steps that would be taken.

While so, the 3rd respondent (Dr. S. Ganapathy), filed another complaint before 2nd respondent, which was a replica of the former. It was in this context that the appellants herein contended before the Single Judge vide writ petition that the 2nd respondent could not enquire into the allegations contained in the complaint since the enquiry and adjudication of such complaints can only be under the provisions of THOTA, 1994 and the rules framed thereunder.

It had been contended before the Single Judge by the appellants herein, that the complaints filed were outright defamatory.  It was contended that apart from THOTA, 1994, there was also Kerala Network for Organ Sharing (KNOS) which has been envisaged as an additional process for brain death certification process, and each of the steps therein had been followed by them. It was contended that the allegations levelled in the complaint were restricted to alleged contraventions of the provisions of THOTA, 1994 only. It was further contended before the writ court that the 2nd respondent could not enquire into the allegations in the complaint since enquiry into the same can only be done as per the provisions of THOTA, 1994 and the rules framed thereunder.

The 3rd respondent on the other hand, contended that a writ court would not normally entertain a writ petition challenging a notice issued, and also that challenging an order passed by a competent authority appointing a competent person to enquire into a complaint was also unheard of. It was submitted that the notice was only for ascertaining their version on the allegations, and no penal action was even stipulated. It was further pointed out that effective alternative remedies were available to the petitioners.

It was also contended that it was the professional misconduct of the doctors involved that led to the death of two persons. Under the Travancore - Cochin Medical Practitioners Act, 1953 also, the Travancore Cochin Medical Council is the appropriate authority to enquire into complaints of professional misconduct. The Registrar can conduct the enquiry, and any person aggrieved by the same were at liberty to file an appeal to the council, as provided under Section 33 and second appeal to the Government, as provided under Section 35 of the Act, respectively. It was further contended that the DME was the Appropriate Authority under the THOTA, and in case of violation of any provisions of THOTA, it could suspend or cancel the registration of hospital for transplantation alone as provided under Section 16. On this basis, he contended that the action under both statutes were distinct, and also that he had the locus standi to file a complaint under the provisions of Code 1.7 of the Ethics Regulations, 2002. 

The Single Judge dismissed the writ petition, on finding that the notices issued were only in respect of the misconduct alleged against the petitioners, and for enquiring into the same. It was against this dismissal that the instant writ appeal was filed.  

Before the Appellate Court, it was contended by the appellants represented by Senior Advocate E.K. Nandakumar, and Advocates M. Gopikrishnan Nambiar, Joson Manavalan, Paulose C. Abraham, Pranoy Harilal, and Kuryan Thomas, that the writ court failed to appreciate the intention behind THOTA, and that it has 'demoted' the authority of the DME which is the designated body duly appointed by the State Government as the 'Appropriate Authority' under Section 13 of the Act. It was further contended that the court below had failed to provide the ratio that has been applied to distinguish or compartmentalize the allegations made in the complaint into offences under the THOT Act under one chamber and those under the 2002 Ethics Regulations into another. Further, it was submitted that the THOTA 1994 was a complete code in itself as far as transplantation of human organs was concerned and hence, the DME would be the appropriate authority, and the Act certainly precedes over any other general statutes. Several precedents in this regard were also relied upon by the counsels. Thus, the counsels contended that the the provisions of the Ethics Regulations, 2002 could not find application in the instant case. 

The Court in this case found that the crux of the issue centred around the issue that an authority under the Ethics Regulations 2002, had issued notice to conduct an enquiry into a complaint with respect to professional misconduct in the aspect of alleged misconduct in transplantation of organs. The Court in this case found that as per Regulation 1.9, provision for 'Evasion of Legal Restrictions' has been made, in light of which the Court ascertained that in case of any violation of the provisions of Act, 1994, the authority under the Ethics Regulations, 2002 is conferred with powers to take disciplinary action or make any enquiries, on receipt of a complaint, with regard to any professional misconduct. The Court found that although as per Regulation 7.5, Conviction by Court of Law for offenses involving moral turpitude/Criminal act, might also be a ground for initiating disciplinary action against a physician, it would not detain the authority under the Ethics Regulations, 2002 to take disciplinary action, if any of the conduct/act of a physician is a professional misconduct.

"That is why, Chapter 8 dealing with punishment and disciplinary action, is empowering the authority therein to ensure that whenever a complaint is received in respect of professional misconduct, it should be investigated/enquired into and take appropriate action", it was observed. 

It added that in the instant case, the authority had only issued a notice to conduct an enquiry on a complaint received, in terms of the Ethics Regulations, 2002, with the intention of finding out the veracity and truth, which could not be said to be illegal, bad, or arbitrary. 

It was in this light that the Court found that the notice issued by the Deputy Registrar, Travancore-Cochin Council of Modern Medicine, respondent No.2, to conduct an enquiry, is in accordance with law, and no jurisdictional error as highlighted by the appellants could be found in the instant case. The appeal was thus, dismissed. 

The respondents in the instant case were represented by Senior Government Pleader V. Tek Chand, and Advocates N. Raghuraj and R. Ranjith. 

Case Title: Dr. Mathew Jacob & Ors v. State of Kerala & Ors. 

Citation: 2022 LiveLaw (Ker) 480

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