Atharva Naukarkar
Maharashtra National Law University, Mumbai
In recent years, the market has seen a major shift from being a seller dominant market to a consumer-friendly and dominant market. The medical profession is no different from this market. Patient satisfaction has become an important issue for health care managers and providers. The hospital have become a major and important spot for providing these services, as they have proper and required equipment and staff to render quality services to the consumer i.e. the patients. In this course of the market, there are certain rules and regulations that are to be followed so as to maintain certain uniformity and benefit the consumers, who can be exploited very easily. There are various rights that are granted to the patients, as well as, there are certain rules that are laid down for the hospital regarding the procedure to be followed.
The year of 2020 has been a year of COVID-19. These are some exceptional times that will be recorded in our history books, as these circumstances have not only never occurred in the past but also no one in this entire world was prepared for. COVID-19 is an infectious disease that is caused by the coronavirus. This is the disease that infects everyone equally irrespective of their caste, race, profession, gender, age, etc. the disease is even capable of causing the death of a person if not treated properly.
During these tough times, where everyone is restricted to their houses the doctors and medical-service providers are still working to help those who actually need them. The medical service providers have become our soldiers who are defending us by rendering their services to us. They are exposing themselves to the disease so as we can get cured of the disease. But the problem arises when the medical service providers and hospitals are denying their services to the patients in need. Some of the hospitals have started exploiting the patients and are refusing the treatment on various unreasonable grounds. In some places, the patients are denied of their rights just in the name of the pandemic that the country is facing.
So, the question arises can doctors or hospitals can legally refuse treatment of a patient in need during this pandemic? Are there any rights that are granted to the patients? And if yes what are they? What are the duties of the doctors towards their patients? And lastly, can hospitals deny admission to non-COVID patients in name of saying it’s not an emergency? This paper aims to answer some of the above questions raised.
What are Patients’ Rights?
In India, there are various legal provisions in relation to patient’s rights which are scattered across different legal acts and documents, some of them are listed below:
- The Constitution of India, Article 21. (Right to life and personal liberty)
- Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002
- The Consumer Protection Act 1986
- Drugs and Cosmetic Act 1940
- Clinical Establishment Act 2010 and many more.
Health and Family Welfare Ministry of Government of India have proposed a ‘Charter of Patient Rights’ to be implemented by state governments. This charter combines all the rights that are granted to the patients in a single document. This means that the rights which were classified under different provisions will now be classified under one document.
According to the ‘Charter of Patient Rights’[1], a patient is entitled to following rights:
- Right to Information[2]
- Right to Records and Reports[3]
- Right to Emergency Medical Care[4]
- Right to Informed Consent[5]
- Right to Confidentiality, Human dignity, and Privacy[6]
- Right to Second Opinion[7]
- Right to Transparency in Rates and Care as Per Prescribed Rates[8]
- Right to Non-Discrimination[9]
- Right to Safety and Quality Care According to Standards[10]
- Right to Choose Alternative Treatment Options if Available[11]
- Right to Choose Source for Obtaining Medicines or Tests[12]
- Right to Proper Referral and Transfer, which is free from perverse commercial influences[13]
- Right to protection for patients involved in clinical trials[14]
- Right to Protection of Participants Involved in Biomedical and Health Research[15]
- Right to Take Discharge of Patient, or Receive Body of Deceased from Hospital[16]
- Right to Patient Education[17]
- Right to be heard and seek redressal[18]
Once we are aware of the right of the patients, it is important to know whether what are the duties of the doctors and can they refuse treatment during this pandemic that the country is facing?
A doctor being in a position to treat and save a person’s life has various duties towards his patients and towards his society. Hence, to explain in brief the primary duties of a physician or doctor towards a patient is providing information to the patient, taking the consent for treatment, and providing with emergency care.[19] It is the duty of a doctor to provide the patient with due skill, care, and attention. The burden of adhering to the rights that patients’ have is also on the doctor as he is the person who is educated and aware of the rights whereas the patient might not be educated in this field.
Legally there is no provision in the law that specifies that a doctor has to compulsorily treat all the patients that comes to him/her.[20] Doctors can refuse treatment to any patient except in emergency situations. By virtue of being a human being a doctor has the right to choose the patients he/she want to treat. This means he/she also has the right to refuse a patient. The reason for refusal can’t be racial or religious or anything that would lead to any kind of discrimination/exploitation of the patient. Thus, a doctor can refuse treatments to any person whether he is COVID positive or not, whether he came during the pandemic or before or after it, the doctors enjoy full discretion on whom he wants to treat.
It is only mandatory for the doctor to treat the patient if a patient is presented in a clinic/hospital in serious condition[21], he has to be given primary care incapacity of the doctor and then transferred to an appropriate facility if required. If a doctor is not on duty, he can’t be forced to attend a patient legally. But profession conduct demands he should help.
So, this means that treating a patient is only a moral responsibility and not a legal responsibility. Hence, no charge will be filled against the doctor if he refuses treatment i.e., he can refuse treatment of any patient he/she wants, only if the refusal is not on basis of any discriminatory practice. So, to answer the long-asked question whether a doctor or hospital can refuse treatment during a corona pandemic? The answer is yes, the person or the hospital can refuse treatment, provided that it is not an emergency case, or the refusal is not on the basis of any discriminatory practice. This applies to Non-COVID positive patients as well provided severity of treatment required.
Conclusion
During this pandemic, when all the activities were put to a pause, the doctors were still on work and are playing an important role in this pandemic. But does this mean that they can neglect the very consumers of their facilities (patients)? Health-service provider has no obligation to treat all patients i.e. they can choose their patients but they do not use this power of choice wisely, they often discriminate the patients on the mere ground that they don’t want to treat them and often this results into the patient suffering more as the problem they had is not considered as an emergency situation in law.
Different people have different opinions regarding this provision for doctors in India. Some are of opinion that a law should be established regarding this, stating compulsory treatment to all the patients, i.e. if the patients desire to be treated in that hospital or by that doctor then the doctor or the hospital should not refuse, bringing the right of choice of the consumer in play. But some are of contrary opinion too. Some of the states[22] have made it mandatory for the hospitals to not to refuse any patient that comes to their step for treatment, however, some states have not taken any action regarding this, & let the medical association of the state make rules and regulate things, after all, it is them who are working on the ground level.
It is observed that the laws are more doctor oriented and are there to safeguard the doctors. Doctors are found to use these laws as a loophole and misuse the right that is given to them, which eventually ends up hurting the consumer/patient. Thus, it is suggested that these laws should now take a turn instead safeguard the consumers as they are after all the last one to be satisfied in all the processes.
REFERENCES:
[1] NOTE: This charter is not yet implemented and accepted by all the states of the country, but this does not mean that the rights specified in the charter are not granted to the patients. They are granted to the patients but are in scattered form in many provisions of law. The charter only aims to collect and make a single document of the rights.
[2] Annexure 8 of standards for Hospital level 1 by National Clinical Establishments Council set up as per Clinical Establishment Act 2010; MCI Code of Ethics; Patients Charter by National Accreditation Board for Hospitals (NABH); The Consumer Protection Act, 1986.
[3] Annexure 8 of standards for Hospital level 1 by National Clinical Establishments Council set up as per Clinical Establishment Act 2010; MCI Code of Ethics section1.3.2; Central Information Commissionjudgment, Nisha Priya Bhatia Vs. Institute of HB&AS, GNCTD, 2014; 4) The Consumer Protection Act, 1986.
[4] Supreme court judgment Parmanand Katara v. Union of India (1989); Judgment of National Consumer Disputes Redressal Commission Pravat Kumar Mukherjee v. Ruby General Hospital & Others (2005); MCI Code of Ethics sections 2.1 and 2.4; Article 21 of the Constitution ‘Right to Life’.
[5] MCI Code of Ethics section 7.16; Annexure 8 of standards for Hospital level 1 by National Clinical Establishments Council set up as per Clinical Establishment Act 2010; The Consumer Protection Act, 1986; Drugs and Cosmetic Act 1940, Rules 2016 on Informed Consent.
[6] MCI Code of Ethics sections 2.2, 7.14 and 7.17.; Annexure 8 of standards for Hospital level 1 by National Clinical Establishments Council set up as per Clinical Establishment Act 2010.
[7] Annexure 8 of standards for Hospital level 1 by National Clinical Establishments Council set up as per Clinical Establishment Act 2010; The Consumer Protection Act, 1986.
[8] MCI Code of Ethics section 1.8 regarding Payment of Professional Services; Section 9(i) and 9(ii) of Clinical establishments (Central Government) Rules 2012; Annexure 8 of standards for Hospital level 1 by National Clinical Establishments Council set up as per Clinical Establishment Act 2010; Various Drug price control orders; The Consumer Protection Act, 1986.
[9] Annexure 8 of standards for Hospital level 1 by the National Clinical Establishments Council set up as per the Clinical Establishment Act 2010.
[10] Clinical establishments (Central Government) Rules 2012; The Consumer Protection Act, 1986.
[11] Annexure 8 of standards for Hospital level 1 by National Clinical Establishments Council set up as per Clinical Establishment Act 2010; The Consumer Protection Act, 1986.
[12] Various judgments by the National Consumer Dispute RedressalCommission; The Consumer Protection Act, 1986.
[13] Medical Council of India code of ethics section 3.6; World Health Organisation – Referral Notes; Various IPHS documents.
[14] Protocols and Good Clinical Practice Guidelines issued by Central Drugs Standard Control Organisation, Directorate General of Health Services, Govt. of India; Amended Drugs and Cosmetics Act, 1940 and Rules, 1945 especially schedule Y; National Ethical Guidelines for Biomedical and Health Research Involving Human Participants, Indian Council of Medical Research, New Delhi, 2017; available at http://clinicalestablishments.gov.in/WriteReadData/8431.pdf
[15] National Ethical Guidelines for Biomedical and Health Research Involving Human Participants, Indian Council of Medical Research, New Delhi, 2017; World Medical Assembly Declaration of Helsinki: Ethical Principles for Medical Research Involving Human Subjects available at http://clinicalestablishments.gov.in/WriteReadData/8431.pdf; Drugs & Cosmetic Act, Rules 2016 on Clinical Trials.
[16] Prohibition of wrongful confinement under Sec. 340-342 of IPC. Statements of Mumbai High Court; Consumer Protection Act 1986.
[17] The Consumer Protection Act, 1986; Standards for Hospital level 1 by National Clinical Establishments Council set up as per ClinicalEstablishment Act 2010.
[18] The Consumer Protection Act, 1986; NHS – Charter of Patient Rights and Responsibilities.
[19] Source of the Duties: Code of Medical Ethics, 2002 (of MCI); Hippocratic Oath; International Code of Medical Ethics, 1949; Government of India Guidelines for Sterilization.
[20] Omprakash V. Nandimath, Consent and medical treatment: The legal paradigm in India, Indian Journal of Urology (Aug. 14, 2020 22:10), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2779959/#:~:text=The%20patient%20has%20a%20legal,obtained%20should%20be%20legally%20valid.
[21] Clinical Establishment Act, 2010;Paramanand Katara vs. UOI, AIR 1989 SC 2039.
[22] State of Maharashtra and National Capital of Delhi.
