Consumer Protection Act and health, medicine and hospitals
CONSUMER PROTECTION AND HEALTH SECTOR
Consumer Protection Law may prove invaluable to consumers in determining the accountability of service providers. There is also criminal liability associated with medical negligence. An aggrieved person can either file a lawsuit for compensation or lodge a complaint in the consumer forum after a civil wrong has been committed. After being injured by the medical negligence of the health care provider, patients have begun to apply consumer protection law.
Every doctor is bound by his professional obligation to safeguard the lives of his patients, regardless of where he works. There are certain obligations a doctor has to the patient he consults with in case of illness. When medical negligence takes place, the failure to use reasonable skills according to the final standards and current conditions is considered medical negligence. Consumer Protection Act, of 1986 may be one of the most innovative pieces of financial aid legislation, and the provisions of this act are intended to provide consumers with effective and efficient protection against different forms of exploitation and unfair practices. As a result of its excellent services in protecting and preserving consumers’ rights, the Indian judiciary has made a significant contribution to raising awareness about the consumer’s rights in society. To advance and protect consumers’ rights is the primary objective of the Consumer Protection Law.
If you hire or avail of any services for a consideration that has been paid or promised, partially paid or partly promised, or on a credit basis, you may be considered a consumer, and this includes any person other than the person who hired or utilized the services for consideration paid or promised, or on a credit basis when the primary mentioned individual approved the utilization of such services. An individual who merely promises to pay is included in this definition.
Private Health Care Sector
In India, the provision of private medical services is a major component of health care delivery services. However, the quality of care from these services is questionable. There has been no significant change in the behaviour of private providers despite efforts made by professional organizations, like the Medical Council of India and local medical associations. Private medical practice will now be subject to the Consumer Protection Act (COPRA) 1986, which is considered a significant step toward the regulation of the private sector. A survey of private providers was conducted to assess their views on the legislation. It is their belief that the COPRA will minimize malpractice and negligent behaviour. However, it still leads to negative effects such as increased physician fees, increased prescription of medicines and diagnostic tests, and adverse effects on emergency care.
COPRA has also been criticized by medical associations as a step toward costly, overwhelming and excessive litigation. Furthermore, consumer forums have voiced concerns about the lack of standards for private practice, the uncertainty and risks involved with certain medicines, the effectiveness of the judicial system, and the responsibility of proving negligence.
India’s health care delivery system includes both the private and public sectors, with the private sector playing a much larger role in the current system. In the private for-profit and non-profit sectors, 70% of hospitals and 50% of hospital beds are currently located. Most qualified doctors are employed in these sectors. In the first few years after becoming a doctor, most of them want to start their own private practices or work in private hospitals. According to utilization studies, the private health care sector is not confined to the affluent classes; poor people also rely on the private sector for their health and have exhibited their preference for private doctors. About 5% of GDP is accounted for by the private health sector.
The rise of the private sector is accompanied by a number of concerns, which most often stem from reasons of market failure. This sector is supposed to be regulated by the State, but the State has so far remained passive in the process. In this sector, government intervention has been minimal, thereby allowing it to flourish without interference. As a result, medical associations and medical councils have played minimal roles in its development. There has been an increase in undesirable practices, which has affected the quality of care. In the country, the consumer movement has been attracted to the issue of dissatisfaction with the medical services provided by this sector, as well as an increase in medical malpractice cases. Now that the Consumer Protection Act of 1986 is in effect, private medical practices are covered by this act.
The Consumer Protection Act
There is no evidence that allowing market forces to determine health care policies will lead to an efficient and effective system. There are a number of market distortions, market imperfections, and asymmetric information that interact with the moral hazard cause, resulting in a market that is insufficient and costly.
Consequently, it is argued that the state is a key player in ensuring that this sector delivers health care services that are safe and appropriate. However, the state has taken few initiatives to regulate the sector’s services, despite significant growth in the sector. Legislation at local government levels is comparatively rare, with only a few acts such as the Nursing Home Act of Delhi and Bombay promulgated by the state. Most of these laws are outdated now anyway, and most of the provisions of these laws have never been implemented effectively. A large percentage of local governments in India have not implemented health law legislation due to health being a state subject.
Professional medical bodies also influence private health care providers, such as the Medical Council of India. Every practising member of these professional bodies is expected to observe the code of conduct prescribed by these organizations and to meet the expectations of these organizations. Medical professionals are generally expected to regulate themselves and each other. It has been noted, however, that over time, medical associations, councils and so on, which were once expected to regulate the behaviour of private providers, have lost their influence. Many physicians do not belong to these associations, or even if they do, do not take much notice of the guidelines issued by these societies.
Therefore, certain practices have become more prevalent in this sector, including fee-splitting, over-prescription of medications, and poor sterilization procedures as well as hiring untrained individuals. Known to adversely affect the quality of health care, these practices have now become more common. The negligent practice does more than just render unnecessary and ineffective care to a patient because it does not follow minimum guidelines and does not possess desirable skills. Several consumer movements in India have been concerned about this. Indian legislators have recently amended the Consumer Protection Act (COPRA), 1986 to allow the private for-profit sector to provide medical services.
Through the establishment of consumer councils, the COPRA protects the interests of consumers. The objectives of this Act are:
1) to promote and protect the rights of consumers;
2) to assure consumer rights to information and to protect them from unfair trade practices;
3) Making sure that the interests of consumers are fully considered by appropriate forums.
In order to accomplish these objectives, district, state and national consumer protection councils have been established. The quasi-judicial systems are available at the districts, states and national levels and provide speedy and simple redress. Consumers of services are those who ‘hire or avail’ those services for payment in accordance with this Act. The word ‘beneficiary’ includes anyone who is a recipient of such services, other than the one who actually hires them. Services of any description made available to potential users are included in the Act. In contrast to the alternative, time-consuming and expensive civil litigation process, the COPRA provides consumers with a less costly and quicker remedy. Under the Act (COPRA 1986), the redressal forums are specifically vested with the powers vested in the civil courts for summoning witnesses and examining them under oath, and for producing documents and other materials as evidence.
Is The Medical Sector A Kind Of Personal Service?
Medical services are not included in the COPRA’s list of specified services. As defined above, ‘service’ can include every possible kind of service in which a benefit, use or advantage can be obtained for a fee. This Act does not apply to two categories of service, however. The first is free services, the second is services provided under a contract of personal service.
There is no explanation or clarification of the nature of personal services in the Act. The Act does not apply to medical services provided by the public sector as a result of these two exemptions. In this case, private providers argue that medical services rendered by medical practitioners are not the same thing as services related to commercial transactions as defined by the Act. Thus, private providers argue that their services should not be included in the program.
Two cases have been filed with the State Commission where defendants (private doctors) have claimed that these cases cannot be tried under COPRA. These cases are Mis Cosmopolitan Hospitals and others (appellants) vs Vasantha P Nair (respondents) and Vinitha Ashok v Lakshmi Hospital and Others (opposite parties). The physicians argued that the services provided to the patients were not commercial transactions but rather personal services, and so did not fall under the purview of the Act.
According to them, the aggrieved party cannot be considered a ‘consumer’ of the services and, therefore, cannot bring a medical malpractice claim. As a result, the defendants appealed to the National Commission after their claim was rejected by the State Commission. Ultimately, the National Commission determined the judgement of the State Commission was correct.
The Commission gave the following reason:
“The act defines services broadly. It applies to any situation where there is a ‘contract for services and the service provider is entitled to act independently without being supervised or controlled by the person who demands service. Patients are not in a position to exert any influence over the doctors’ work when it comes to medical services. The principal (here the patient) authorizes the doctor (here the agent) to act on his behalf, meaning the principal is in effect paying a professional to perform a task that he is not knowledgeable about. In a contrast, the personal service industry involves a ‘contract of services’ that implies a master-servant relationship whereby the master directs the servant to perform a specific set of services in a specific manner (i.e. the master supervises the tender of services). In this sense, COPRA covers professional and technical services such as surgeons, lawyers, accountants, engineers, etc.’’
Moreover, the court ruled that the complainants were entitled to inherit the deceased’s estate since they were the legal representatives of the deceased. The consumers are vested with the power to enforce their rights, and under the Act can be considered ‘consumers.’
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Disproportionate assets case: Delhi High Court stays Lokpal proceedings initiated against Jharkhand Mukti Morcha chief Shibu Soren
On Monday, the Delhi High Court has stayed the proceedings initiated by Lokpal of India under the provisions of the Lokpal & Lokayuktas Act, 2013 against Jharkhand Mukti Morcha (JMM) Chief and Rajya Sabha MP Shibu Soren in connection with a disproportionate case of assets.
The bench comprising of Justice Yashwant Varma observed and has passed an order on Soren’s plea challenging the validity of the said proceedings, claiming that the same was ex facie bad in law and without jurisdiction.
In the present case, the proceedings were initiated by Lokpal of India pursuant to a complaint dated August 5, 2020 filed by BJP’s Nishikant Dubey. Therefore, it has been directed by the CBI to make a preliminary enquiry into the Complaint under section 20(1)(a) of the Lokpal and Lokayuktas Act, 2013. It was claimed by Soren that the said order was not served on him.
While claiming the complaint was false, frivolous and vexatious, Soren in his plea submitted that according to section 53 of the Act and there is a statutory bar against the Lokpal of India assuming jurisdiction to investigate or inquire into any Complaint made after the expiry of seven years from the offence alleged.
The plea reads that the initiation of the proceedings under the Complaint, or at the very least, continuation thereof, once it has been demonstrated by the preliminary inquiry that it pertains to alleged acquisitions prior to the 7-year period and is clearly barred by statute, without jurisdiction and the same is liable to be quashed.
Further, the petition filled submits that the maximum period of 180 days for completion of preliminary enquiry from the date of Complaint expired on February 1, 2021. In this backdrop, it has been stated that by this time, only on July 1, 2021, the comments were sought from Soren which is beyond the prescribed statutory period.
The plea adds that the final preliminary enquiry report was submitted by the CBI on 29.06.2022, about a year and a half after expiry of the 180- day period. Such purported report is void and null and non-est in the eyes of law and cannot be received or considered by the Respondent No.1.
Thus, the court took note of the order passed by Lokpal of India dated August 4, 2022 directing that proceedings under section 20(3) of the Lokpal Act be initiated to determine whether a prima facie case existed to be proceeded against Soren. It is Soren’s case that the order was passed without considering the preliminary objection on jurisdiction being raised by him.
In the said order, the court noted that all the Lokpal of India recorded was that the comments received from the petitioner were forwarded to CBI so as to examine and submit an enquiry report.
It was ordered by the court that the challenge to assumption of jurisdiction by respondent no. 1 (the Lokpal of India) has neither been answered and nor dealt with. Matters require consideration. Subsequently, there will be a stay of proceedings pending before the Lokayukta.
Accordingly, the court will now hear the matter on 14 December.
DELHI HC SETS ASIDE MURDER CONVICTION & LIFE SENTENCE OF MAN WHO WAS UNPRESENTED BY LAWYER; REMANDS CASTE BACK TO TRIAL COURT
The Delhi High Court in the case Narender @ Lala v. State Of NCT Of Delhi observed and has set aside the orders of conviction for murder and sentence of life imprisonment awarded to a man in 2018 who was unrepresented by a lawyer before the Trial Court. Thus, the Delhi High Court has remanded the case back to the Trial Court for cross examination of certain prosecution witnesses.
The division bench comprising of Justice Mukta Gupta and Justice Anish Dayal observed and was of the view that there had been a grave miscarriage of justice to the man as when number of witnesses were examined, he was not represented by a counsel and that the legal aid counsel, who was present before Trial Court and was appointed on the same day and asked to cross- examine the witnesses on the same day.
On March, 2018, Narender was convicted for offence of murder punishable under section 302 of Indian Penal Code, 1860. On 4th May, 2018, he was sentenced by the Trial Court for life imprisonment and also to pay a fine of Rs. 10,000.
In the present case, the case of the prosecution was that the man had committed murder of his wife by strangulating her to death.
In a appeal, it was argued by the man that during the substantial course of trial, he was not represented by a lawyer and hence the trial in the absence of a lawyer had seriously prejudiced him. He thus sought recalling of all the prosecution witnesses and thereby ensuring a fair trial.
The Court observed that the manner in which the trial is conducted, there was a serious denial of fair trial to the appellant and the appellant is required to be given an opportunity to cross-examine the witnesses i.e., the witnesses examined in the absence of the lawyer, or the lawyer having been appointed on the same day from the legal aid and is asked to cross-examine the witnesses.
Further, the court remanded the back to Trial Court for cross-examination of ten prosecution witnesses. Also, the court directed the Trial Court Judge to follow due process of law and also to record the statement of the man under Section 313 CrPC and permit leading the defence evidence if so required.
The Court ordered that the case be listed before the learned Trial Court on 26th September, when Superintendent Tihar Jail will product the appellant before the learned Trial Court and the learned Trial Court is requested to expedite the trial and conclude the same preferably within four months.
SUPREME COURT REFUSES TO ENTERTAIN PLEA CHALLENGING EXCLUSION OF SC/ST RESERVATION IN JHARKHAND DISTRICT JUDGES APPOINTMENT
The Supreme Court in the case Dr. B.R. Ambedkar Educational And Cultural Trust v. Hon’ble High Court Jharkhand And Ors. observed and has refused to entertain a plea challenging the non-inclusion of reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes communities in the process of appointment of District Judges in pursuant to an advertisement issued in March, 2022 by the High Court of Jharkhand. The present petition claimed that the exclusion of reservation violates Jharkhand State Reservation Policy and constitutional guarantee under Article 16(4). Apart from this, it is also in derogation of a resolution being passed by the High Court vouching to implement reservation in the Jharkhand Superior Judicial Service.
The bench comprising of Justice D.Y. Chandrachud and the Justice Hima Kohli observed and has granted liberty to the petitioner to file a petition under Article 226 of the Constitution before the Jharkhand High Court.
The court while considering that the process of appointment as per the concerned notification is underway, Justice Chandrachud asked the petitioner to approach the High Court with respect to future appointments.
It stated that “For the future you can file a petition before the High Court… We will give you liberty to approach the High Court under Article 226 of the Constitution.”
The bench of Justice Chandrachud observed that the Decisions of the Administrative side of the High Court can be challenged before the judicial side of the High Court. You can move the High Court.
In the present case, a writ petition challenging a similar notification was filed in 2017 before the High Court, which was eventually dismissed. It was observed by the High Court that there is no duty vested in the authorities to reserve seats for all posts, more particularly in higher judiciary. Moreover, it had already initiated the appointment process, the High Court opined that it cannot alter the rules midway. Thus, the appeal filed before the Apex Court was also dismissed.
However, in 2018 the Full Court of the Jharkhand High Court had agreed in principle to grant reservation in the recruitment for Jharkhand Superior Judicial Service. The advocates belonging to the SC/ST/OBC communities in 2021 had made representations to the Chief Justice of the High Court requesting for the implementation of the Reservation policy in appointment of District Judges (direct entry from Bar)/ superior judicial service. The impugned notification was issued without incorporating reservation for SC/ST/OBC communities in March 2022.
Mr. Arvind Gupta, Advocate on Record has filled the present petition.
Right to contest election is not a fundamental right; it is only a right conferred by statute: Supreme Court
The Supreme Court in the case Vishwanath Pratap Singh vs Election Commission of India observed that the right to contest an election is not a fundamental right but only a right conferred by a statute.
The bench comprising of Justice Hemant Gupta and the Justice Sudhanshu Dhulia observed while dismissing a Special Leave Petition filed by Vishwanath Pratap Singh that an individual cannot claim that he has a right to contest election and the said stipulation violates his fundamental right, so as is required under the Act, to file his nomination without any proposer.
Also, the court imposed a cost of Rupees one lakh on Singh.
In the present case, Singh had first approached the Delhi High Court challenging a notification issued by Election Commission of India for election to Rajya Sabha after he was not allowed to file his nomination without a proper proposer being proposing his name. His contentions were rejected by the High Court that his fundamental right of free speech and expression and right to personal liberty has been infringed.
While dismissing the SLP, the Apex Court observed that the writ petition before the High Court was entirely misconceived.
The bench observed while referring to earlier judgments viz Javed v. State of Haryana, (2003) 8 SCC 369 and Rajbala v. State of Haryana (2016) 2 SCC 445 wherein it was stated that the right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute.
However, the Supreme Court in Javed (supra) had made the following observations: Right to contest an election is neither a fundamental right nor a common law right and it is a right conferred by a statute. At the most, in view of Part IX having been added in the Constitution of India that a right to contest election for an office in Panchayat may be said to be a constitutional right and a right originating in the Constitution and given shape by a statute. But even if, it cannot be equated with a fundamental right. It is stated that there is nothing wrong in the same statute which confers the right to contest an election also to provide for the necessary qualifications without which a person cannot offer his candidature for an elective office and also to provide for disqualifications which would disable a person from contesting for, or from holding, an elective statutory office.
It was held in Rajbala (supra) that the right to contest for a seat in either of the two bodies is subject to certain constitutional restrictions and could be restricted further only by a law which the parliament made.
Further, the court added that Singh did not have any right to contest election to the Rajya Sabha in terms of the law made by the Parliament.
The Court stated while dismissing the SLP that the Representation of People Act, 1950 read with the Conduct of Elections Rules, 1961 has contemplated the name of a candidate to be proposed while filling the nomination form. However, it cannot be claimed by an individual that he has a right to contest election and the said stipulation violates his fundamental right, so as to file his nomination without any proposer as is required under the Act.
Post-conviction compounding of offences is permissible: Himachal Pradesh High Court
The Himachal Pradesh High Court in the case Shri Kantu Ram v Shri Beer Singh recently observed that a court, while exercising powers under Section 147 of the Negotiable Instruments Act and can proceed to compound the offences even after recording of conviction by the courts below.
The bench comprising of Justice Sandeep Sharma observed in a case where the revision Petitioner, who was convicted under Section 138 of the NI Act by the Magistrate Court and was aggrieved by subsequent dismissal of appeal by the Sessions Court and had agreed to pay the amount due and settle the matter.
Thus, the petitioner had sought compounding of offences.
In the present case, the respondent admitted the factum with regard to receipt of the amount due from the accused and expressed that the prayer made on behalf of accused for compounding of offence can be accepted.
However, the High Court allowed the prayer and the offence committed by the Petitioner under Section 138 NI Act was ordered to be compounded.
The Court observed that the Reliance was placed on Damodar S. Prabhu V. Sayed Babalal H. (2010) 5 SCC 663, wherein the Apex Court has categorically held that court, while exercising power under Section 147 of the NI Act and can proceed to compound the offence even after recording of the conviction by the courts below.
‘Pensionary benefits to employee, who is removed from service for misconduct, is not at par with those who retire on superannuation’
The Jammu and Kashmir and Ladakh High Court in the case Bashir Ahmad Wani v Jammu and Kashmir Grameen Bank and Another recently observed and stated that an employee who is removed from service for misconduct is not at par with those who is being retired on superannuation.
The bench comprising of Justice Sanjeev Kumar observed while dismissing the pension claim made by a former employee of the J&K Grameen Bank, who was removed from service in 2011.
In the present case, the petitioner had sought benefit of the J&K Grameen Bank (Employees) Pension Regulations, 2018 whereby provision was made for terminal benefits.
However, the court disallowed the claims on two grounds:
Firstly, that at the time of removal of the petitioner from service when there were no norms, rules or regulations providing for the benefit of pension to the employees of the respondent-Bank.
In the year 2011, the employees of the respondent-Bank were governed by the J&K Grameen Bank ( the Officers and Employees) Service Regulations, 2010… it is abundantly clear that it does not prescribe imposition of a penalty of removal along with the pensionary benefits.
Secondly, it was opined by the court that though the 2018 Regulations had been made applicable to those employees who were in service between 1st day of September, 1987 and 31st day of March, 2010 and the employees retired from the services of the Bank before 31st day of March, 2018, however, this leeway cannot come to aid of the Petitioner.
The Curt observed that the reason for finding that the Petitioner was not an employee who had “retired” on superannuation from the bank. Rather, he was “removed” for misconduct.
The Court stated that the regulations apply to those employees who retired from the service of the Bank before 31.03.2018 and not the employees who were terminated for misconduct. Viewed thus, the order of removal of the petitioner dated 02.09.2011 holding the petitioner entitled to terminable benefits and cannot, by any stretch of reasoning, be construed to be an order of removal with the benefit of the pension. Neither, the petitioner, at the time of his removal from service, nor with the promulgation of Pension Regulations of 2018, is entitled to the benefit of pension.
Accordingly, the court dismissed the petition.
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