In a refreshing, robust, rational, recent and realistic judgment titled Dr P Basumani vs The Tamil Nadu Medical Council in Writ Petition No. 12303 of 2021 and WMP No. 13086 of 2021 delivered as recently as on October 26, 2021, the Madras High Court 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. It must be noted here that the Madras High 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. It also made it clear 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.
To start with, a single Judge Bench comprising of Justice R Mahadevan of the Madras High Court first and foremost makes it a point to state in this latest, learned, laudable and landmark judgment that, “Petition filed under Article 226 of The Constitution of India praying to issue a Writ of Certiorari calling for the records relating to the impugned order in Reference No. TNMC/DC 136 of 2018 dated 04.05.2021 issued by the respondent in so far as it relates to the petitioner and quash the same.” It is then put forth in para 1 that, “This writ petition is filed praying to issue a Writ of Certiorari to quash the order dated 04.05.2021 passed by the respondent insofar as it relates to the petitioner.”
As we see, it is then disclosed in para 2 that, “The petitioner is a practising Doctor with specialisation in Gastroenterology. According to him, he has 35 years of practice and is presently working as Consultant Gastroenterologist at Sri Ramachandra Institute of Higher Education and Research, Porur, Chennai.”
While elaborating on the content of the writ petition, the Bench then brings out in para 3 that, “It is stated in the writ petition that during the year 2015, when the petitioner was working as a Primary Consultant at Fortis Malar Hospital, Chennai, he along with other specialists, examined a patient by name N.Pitchaimani, aged 66 years, on 27.09.2015, who was suffering from the symptoms of disorientation, generalized weakness, giddiness and turbid urine and was admitted in the hospital on the same day. The petitioner also stated that the condition of the patient improved initially and he was shifted to the general ward from Intensive Care Unit (ICU) on 04.10.2015. However, his condition suddenly deteriorated on 07.10.2015 and he was again shifted to ICU. As the condition of the patient deteriorated further, he was advised intubation and ventilation on 09.10.2015, but despite the best treatment afforded, the patient breathed his last on 11.10.2015 at 11.25 pm.”
Furthermore, the Bench then envisages in para 4 that, “The petitioner further stated that on 12.04.2021, he received a summons from the respondent / Tamil Nadu Medical Council, directing him to appear before a committee on 22.04.2021 and give evidence with regard to the enquiry initiated against one Dr. Radhakrishnan of Combatore, on the basis of the complaint given by Sri Subhitha of Chennai, alleging that the said Dr. Radhakrishnan has issued a false fitness certificate to her father, based on which, various properties worth about Rs. 50 crores have been registered in the name of Sakthi Kumar, who is son-in-law of the said Dr. Radhakrishnan. In response to the summons issued by the respondent, the petitioner appeared before the committee on 22.04.2021 and gave his statement. Thereafter, the respondent passed an order on 04.05.2021, imposing the punishment of removal of his name from the Medical Register of Tamil Nadu Medical Council for a period of six months. Aggrieved by the same, the petitioner is before this Court with this writ petition.”
Quite significantly, the Bench then hastens to add in para 15 that, “In the present case, the petitioner has taken a clear stand that he was caught unaware of the action taken against him behind his back. The copy of the report was not furnished to him. As stated earlier, the enquiry was not against the petitioner and he was summoned only to give material evidence. The alleged statement of the other witness namely the medical superintendent was not furnished to the petitioner. 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. As a matter of fact, during the course of hearing, such procedural lapses have also been agreed upon on the side of the respondent. Therefore, this court is of the opinion that without any complaint, the act of the disciplinary committee being quasi judicial authority, to recommend for imposition of punishment on the petitioner, that too, without providing any opportunity to him, is wholly unjustified and the same is liable to be set aside.”
As a corollary, the Bench then holds in para 16 that, “In the ultimate analysis, the order dated 04.05.2021 passed by the respondent is set aside insofar as the petitioner is concerned and accordingly, the writ petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.”
Finally and far most significantly, the Bench then minces no words to state forthrightly what forms the cornerstone of this brief, brilliant, bold and balanced judgment in para 17 wherein it is held that, “Before parting, this Court wishes to observe that it is the responsibility of the Medical Council to proceed against the medical practitioners, if there is any breach or violation of the Standard Operating Procedures (SOP) or instructions given from time to time. 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 Medical Council is expected to act in such a manner that every area connected with the complaints can be meted out, which will pave way for reasonable as well as legally based decision to be arrived at. Therefore, as discussed in the preceding paragraphs 10.1 to 10.10, this Court suggests the following guidelines to be included in the new Regulations that are to be framed under the NMC Act, 2019 and to be made as an SOP for the purpose of effective complaint-handling mechanism, so as to avoid unnecessary allegations against the Medical Board:
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
(g) 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.
(h) 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.
(i) 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.
(j) 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.
(k) 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.
(l) 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.
(m) 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.
(n) 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.”
All said and done, the Madras High Court has very rightly underscored that the medical practitioners who are rendering yeoman’s service for the betterment of the general public must be protected from onslaught of frivolous complaints. The single Judge Bench of Justice R Mahadevan who authored this most commendable judgment has certainly issued most commendable guidelines for National Medical Council which must be definitely implemented in letter and spirit so that its true purpose is achieved for which it is issued! No denying it!
Sanjeev Sirohi