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RF_CON__1_SUDHA
Panel Discussion on
DOCTORS AND THE CONSUMER PROTECTION ACT
11th Feb 1996
Organised by:
Rotary club of Vijayanagar &
Consumer Rights, Education & Awareness Trust
(GREAT)
Vijayanagar, Bangalore - 5600 40.
ifc^9
ROTARY CLUB OF. VIJAYANABAR
X*
CONSUMER RIGHTS. EDUCATION ~AMD AWARENESS TRUST
VIJAYANABAR,
(GREAT)
BANGALORE - 560 040
PANEL DISCUSSION ON
DOCTORS AND CONSUMER PROTECTION ACT
NIPM Hall,
Blue Cross Chambers,
Bangalore
11th February 1996
PROGRAMME
09.30 a. m.
Invocation and Rotary Deliberations
09. 45
Welcome and Programme objectives
Mr.Y.G.Muralidharan,
Presentation of
GREAT
legal aspects
Prof. M.K.Ramesh
National Law School of
'10.25
India University
Presentation of Doctors'
views
Dr.Nan j und i ah
PRO, Indian Medical Association,
Karnataka State Branch
10. 50
Presentation of Consumers'
Dr.
H. S'. Sh i vanna,
Mysore
11.15
COFFEE BREAK
11.30
Panel Discussion and
Moderator:
Ms. Madhura M.
12.30 p. m.
12. 45
01.00
views
interaction
Chatrapathy
PANEL DISCUSSION ON
DOCTORS AND THE CONSUMER PROTECTION ACT
Ongandned by
Rotany CZab 0-6- Vi^ayanagcM. and
Connuman Rtghdn, Education and Av/ananenn Tnunt (CREAT)
Vnjayanagan, Bangadono — 560 040
Sunday,
A
11th Febnuany 1996
NOTE ON THE SUPREME COURT JUDGEMENT ON MEDICAL
UNDER THE CONSUMER PROTECTION ACT 1_986
SERVICES
ON
13th Novenbea., 1995, the Supnema Count ol India pno—
nounaed the Zandmank. jad. gement on, the Civ Id AppeaZ. No. 688 ol
1993 Ilded by the Inddan MeddaaZ, Annocdatton.
Thin judge
ment neddded none -than. 35 Appeadn and S pealad Leave Petltlonn v/hdah v/ene pending begone the apex count agalnnt
dlvengent venddcdn o-& High Countn and the National, Connuman
Dtnpulan Redneanad Conmdnnton,
The ddnpuden bedv/een the
medlcaZ. poJjennlonadn and connunen acddvtntn had bean naglng
In>n a coupZe ot yeann with, negand -to the appZdcabtZdty ol
Connunen Pnotecddon Acd -to maddcad nenvtcen.
The SC had to
nay the Zant v/ond tn the tnnue.
The 65 page, noting given by a thnea judge, bench com.pnlnlng
od Juntlaen Kudddp Singh, S . C . Agganvad and B.L. Romania may
have, noma -(an neaahdng connequancan on tha maddcad neavtcan
tn tha countny and Id may dedajnna tha lyudane docdon-patient
Tha bantc quentlonn tha Hon' bZa judgea dacdded upon vjevta:
yl.
Whathan tha nanvtcan nendaned by a maddcad pnacddtdonan
can be. aonntdeaad an ‘ Seavtca' ^tthdn tha moaning ' od
Seatdon 2(10(o) o-f,- tha CPA, 1986, vihdah. nayn ‘ Senvtca'
maann neavnca 0-6- any dancndptton vjhdah. In made, avadda—
bZa to potentdad unean J^o-n a ' conntdanatlon’ v/hdah. han
bean paid on pnomdned on paatdy paid and pantdy
pnomdned, bud doe^. not -Incduda tha nondanlng 0-6- any
nonvnca Ipiea o^ change, on andon a aontnacd o-fr peanonad
nznvtca,
B.
VJhathan tha ne-nvlca nandaned at a h.onp-itad/nunntng h.oma
can adno be. aoveaed andon thdn dajdnlddon.
C.
Whathan tha poop-Za wh.o avoid oj^ thana neavlcan ana
' Connumann' vilth-tn tha moaning ojy- Seation 2(1 )(d) 0-6tha CPA vihdah. nayn ' aonnumonn' maann any pennon v/h.o
bayn any goodn on av-tadn oh- any nenvtcan Iron a aonnlda—
nation v/hdah. han been paid on pnomdned on pantdy paid
pantdy pnontned.
D.
yihathan the pnovtndonn
CPA ana vtoZattve o-E Antdcda
14 and 19 (Z.) (g) 0-4 tha Conntlduddon, an I^an an tha
nadlaad pnolyennton tn aoncanned.
E.
Wdedhen Zhe. c-om.po<dZzon 0-6- -t/i^- Connumen Fona, w-i-th. onhy
one peznon an ZZn pnenZdenZ and. oZhen membenn being
non—Zegad expezdn, cm weZd an Zhe pnocedune oZ- ‘ nummany
ZnZaZn' ZoZdowed Zn Zhene counZn, ermune compeZency and
■jimZdce Zn dZnpuden nedaddng -to deZZcdency Zn meddead
-cenv-tcen.
AZ-ten evaduxtddng adZ. Zhe angunendm and, eanZdez. pudgemenZn oZ
vanZeun HZgh CounZn and. Zhe NaZZenad Conn-omen DZnpuden
Redzennad Commdnn-Lon, Zhe Sapzene Count bench han aznZved ot
■the- ZrotdowZng concdunZcrm.
1 .
SenvZce zendezed -to a paddenZ by a medZcad pzaaZddd.onen
by way 0-6- connudZxtddmn, dZagno-tdn and, dt&adi&nZ, boZh
meddcdnad and, -cnng-icad Zn covezed unden- -the- neanZng oZ
‘ nez,vZce‘ an deZZned Zn Zhe CPA.
2 .
The. ZacZ ZhaZ nedZcad pzacddddenezn one -cnb^jecZ io -the.
conZnotn o-6- PedZead Councddn oz, any oZhez, bodden woudd
not excdude Zhen Z-Z-om, -the- am-bZd. oZ- Zhe CPA.
3 .
A conZnact OF peznonad -tvznvZce Zn d-tZZezend- Z-Zon a
conZnac-t FOR peznonad -csnvZae.
DocZoZ-' -6- nez-vZee Zo Zhe
paddenZ Zn ondy a conZnacd- FOR -oenvZce.
Thene can be- a
condnacZ OF peznonad eenvZce -id- Zhene- Zn a ze-Zxt-Zd-onnhZp
oZr ntanZen and -^envanZ beZween a docZon and Zhe. pe-Znon
aaadddng hdn zenv-tcen.
In Zha-Z cane Zhe. -txenaZee. zend-e—
zed by a meddead. oZddcen. Zo hdn enpboyen. vtZdd. be ouZ—
■idde. Zhe anbZZ oZr- CPA.
4.
The CPA v/Zdd appZ-y Zo canen >zheze pa-ymenZ o-ft changen
Zn made by Zhe Innuzance. Com-pany on behaddr 0-6- Zhe
Znnazed paddenZ Zo Zhe docZoz-/hoz~pZdad..
LZhe-viZne Zd an
em-p-toyez, pa.y& ZrOZ, hdn em-pZ-oyee'
oz, hdn/hen. dependendn
meddead. ZneadmenZ, Zhdn nenaZce. admo vtZdd. be covened by
Zhe Law.
DocZozn and ho-cpZdadn (Govennme-nZ hxmpZdadn, nazndng
homen and pnZvaZe ho-cpZZadn/nunnZng h-omen) haae been
cdannZdided ZnZo Zhzee- caZegozden:
•
\Zhene -sena-tcen one zendened FREE oZt change Zo evenybody
Thdn cadegoz.y Zn Zaddy oudnZde Zhe am.bZd oZ- CPA.
The- pay—
mend. 0-6- a -token am-ounZ 0-6- negZnZnaddon Zn noZ conzddezed an
a paymenZ /jcz. Zhe zenv-Lce.
Even when Zhe medZcad- oZdrdcen
zeceZven enoZnmendn by way o-& -cndaZ-y -6-oZ- em-pZ-oymenZ Zn -the
hon-pZZad,
ZZ wZdd not be cormZdened changed padd -^oz, Zhe
■benvZcen whdeh aze d&e..
Thdn payment Zn padd by Zhe hon.pZ—
Zad admdnZntadden not on behad/r oZr Zhe paddenZn and Zhene—
Zroze Zhe paZdenZn aze not ’ con-tnmezn'
GovennmenZ headZh -cy<dem- Zn nan by Zandn /piom, Taxen coZdecZed dnom. Zhe pabZdc.
Ba-t Za-xe-t^. padd one not cormZdened
paymenZ made by connuanezn Zy-on Zhe -nenvZce.
b.
WbeJte: chanqen <tne PAID
-the tenv-lccn bq evedqbbd.q
Thdn ca-tegony cdeandy Jaddn vj-i-thdn -t/ua ayn.fo-4-t 0-6- CPA becaune
-the -cenv-iaen ane 'hdned’ Jon a ' aonnddenaddon' d-.e paymend.
Connunen Fona vj-idd enden-tadn conpdadndn nedaddng -to de-fydcdency dn nuch -cenvdaen — canen oj meddead negtdgenae — and
dec-dde upon -them..
DeJda-ienay -in de-iydned a>x any ^audd, dnpendecddonn , nhondaon—
dng on -inadequacy -in -t/ua quad-id y, nadune and mannen o-(y
penjonnance wd-ich -in nequ-ined -to be madn-tadned andon -the Zavt
by -the pennon pendonndng -the nenvdae.
Ded-icdenay w-idd be endabd-inhed by annenndng whe-then -the
pnov-iden 0-6- nenv-ice dan exencdned -the ond-ina-ny nh-idd o-fy an
onddnany conpedend pennon dodng a pand-iaudan and.
A neddcad
pnacddddonen wh,o undendaken -tneadnend o-iy a paddend dnpdden
dhad he pomyen enough nbddd and knovtdedge don -the. punpone.
Id -thene -in adean negtdgence -in appdydng a neanonabte degnee
od nhddd and k-novtdedge and cane, -the. paddend han a ndghd od
acd-ion agadnn-t dhe docdon.
Tde. daw nequdnen neddhen -the.
ddghend non a veny taw de-gnze. o-fr aane. and aom-pe.-te.nce. -in tho
tdghd 0-4 the. pan-tiaudan cdncaanndancen od eoah aane..
Pno^enn-ion and oaaapaddon
The. Count dne.vt a dnnhdncddon bedween an occapaddon and a
pno-{)emdon.
Dcaupaddon nendenn nenv-iae. connecded bandcaddy
vt-idh pnoducddon on node, o-ft aomn-oddd-ien. wh-ic-h -in ve.ny m.ach
vf-i-td-in -tde. ncope. o-fr CPA.
A pno^enndon meann none o-^ -inded—
deaduat. nk-iddn com-b-ined vt-idh rnanuad nk-iddn and npecdaddnad-Lon.
Pno-fyenndonad-inm. pnenupponen ex-tneme aonmddnend -to
nonad pn-incdpden, pno-ftenn-ionad -tnadn-ing and conducd ben-iden
ddgd ntadun -in -the connun-idy .
Pno-fjenndonad ddab-idd-t-ien adno dddden -Gnorn. o-then oaaupaddonn
an nuacenn -in eveny cane -in nod cen-tadn and naccenn on
t^addune nay depend on -{jacdonn beyond -the pno-6enndonad pen
non ' n aon-tnod.
The Count hedd -thad -the pno-(yenndonad pennon nhoudd ponnenn a
centadn n-indrmun degnee 0-6- aonpedenae and -they nhoudd exe-n—
cdne neanonabte cane -in -the d-inahange o-^ dhedn dud-ien.
Thun
-the aonnunen can expend -^non a pnoT^e-nndonad a dudy -in dond
and a aondnacd do exe-ncdne neanonabte cane -in gdvdng adv-ice
on peniyonndng nenv-iaen.
Peddead pnacddddonenn do nod enjoy
any -innunddy and -they can be need dn aondnacd. on dond on -the
gnound -they have Ja-ided do exenadne neanonabte nk.-idd and
cane.
Renedden ava-idabde do head-th aonnunenn:
Redunn o-& dhe changen pa-id by -the com-ptadnand
Com-penna-ddon ^on any donn on dnjuny nudJoned due do
negZdgence c>4 'dhe oppondde pandy
Reno vad o-b de-^^ecdn on de-i^da-ienc-ten dn dhe -^envdaen
c..
\4here -the. bath o4 the se-tv-Lces ARE PAID -{toh. bU. -t-h-bdowho can at-jord to pay but are FREE Tor. those who cannot pa_y
This category where the expenses. -incurred tor providing tree
servlee are met out ot -the. Income trom. -the. service rendered
■to the- paying patients, wtZt atso be tuZty covered by theLaw.
Th-is service ts considered as. being run on. commerc-iaZZtnes.
The. SC Intends -to ensure un-ij-crm. standard and. guaZt—
ty ot service to aZt- patients trrespecttve 0-6- their paying
capacity.
This ts very much -tn tune with. -the. sptrtt o-fj- the.
CPA wh-iab ts -to ‘ encourage htgh ZeveZs o-6- eth-icaZ. conduct
tor those engaged -tn the production and distribution ot
goods,, and services to the consumers' .
It means protection
ot consumers as a cZass.
It cannot be held that protection would. be avatZabZe to onZ.y
-those who can. aj-tord to pay and such protection would. be
dented to those who one poor, though they are the ones who
need the protection nost.
The -judges observed that “ the Government hospitals. may not
be commerctaZ. -tn that sense bat on the overatZ- consideration
ot the objectives and scheme ot the Act, -it wouZd not be
possible -to treat the Government hospitals. d-itTerentty .
In
such, sttuattons, -the persons belonging to 'poor. class'
who
are provided -seravlces tree ot change are the benetledarles
ot the service which -is hired or availed ot by the "paying
cZass"
Individual. doctors em.pZ.oyed and working In Government/non
Government hospttaZs./nurs!ng homes/dtspensardes belonging to
categories b and a wouZd be covered by the Act atong with
the management o-(r the hospital..
By hoZdtng that medlaaZ. practtttoners taZt w-tthln the pur
view ot the Act no change ts brought about -in the substan—
ttve Zaw and prlnctpZes governing cZatms. 4or conpensatton on
the ground 0-6- negZtgence before -the Ctvlt Court.
The judges observed that the ZegaZ. system, has -to do justice
to both patients and doctors.
The Tears oT- the medlcaZ.
prolerston should be taken Into account white the Zegltalm.—
ate ctatme oT- the patient cannot be tgnored.
It would be a
mtstake to think oT- doctors and hospltats as- easy targets
■Tor the dtssattstled patient.
It ts sttZt very dtlttc-uZt to
raise an aetton oT- medteat negZtgence.
A patient who has
been Injured by an act ot medteat negZtgence deserves com.—
pensatton tor Z.oss ot future earning and cost ot medteat
treatment etc.
Alter aZt there -is no dljterenae tn Zegat
theory between a person Injured through medteat negZtgence
and Industrtat or rrnotor acctdent.
As tor the com.petenae ot consumer courts to deetde upon
medteat cases the judges observed that, though the dectstons
at the consumer courts one taken by majority, the presence
o-fj. a person weZt versed tn Zaw as the President wltt have a
bearing on the deZtbenattons.
The presence ot mem.bens tn the
^jany vi-idh ab-tZdty, -indagn-idy and. ntanddng hav-ing ahe.quzz>te.
knoviZadga on axpen-Zenaa -in deaZ-tng w-t-th p-rob-tejit-a- -TeXotezt -to
vcL-’tXou-^. -6-teXh-^.,
-ta. -indendad -to hedp hez>t<ie. cane-n. w-bth a
nenna 0-6- nzt-tu-aaX yu^-ttce-, vi-tthoat go-tng -into axtnana teahnt—
aaZ. deXoiXa.. Hav-ing Zdmdded nanban -in tha -jany, -tt -ba. -tm-pon-—
n-ibZa to expeat npecdaZdntn. -in eveny d-iatd.
I-t w-btt be- -6-0-x
-the. pant-tan to pZaca -the. neaennany matantadn don the mem-benn.
-to dea-tde upon..
The- aonnama-n Fona c-om-b-tnen. -the. man-idn- o-f>
•ta-y deotaXon. nah-Lng vt-idd -te-gaX c-om-pa-tejice-.
Fu--T^thot. -the.
p-rov-taXon-a. -4o-r appeaZn. to htghan c-oantn- -tn. an- added, -^adje.—
gaaxid..
Con-^unen. Fona, Iza-ve. -the- -t^amn. povten-t- a^. o-if dhe. C-Cv-tZ.
Counxtxi. ZdJze. ^umm.oridn,g -the. de^en-docn-t on vt-ttne^n and. e.xamdndng
■then, on oaxth., axdz -^on. any doatunenxtn on mxL-tan-iadn an e.v-C—
dence., naae.p-tn.on o-^- av-idanae. on a-idndav-idn, ank. -6a>n Zabona—
■tony anaZ.ynZn 0-6- pnodu-cxtn. ata.
Evtdenae. 0-6- e-xpexitn. may be. ne-qa-tned, -tn daandtng aext-tadn.
aom.pZdaaxted. maxt-iaaZ, aanaa.
In naah, aanan, -the. aonpZa-inanxt
aan be. anhed. to appnoaah. -the. C-tv-t-2. Coant -iyon appnopnta-te.
neddedt-.
It may not be. ddddda<-t--^ 'to pnove. ded-tcdenay -in.
nteddaaZ. -tanv-taen. -in. many aanea vihane. the. ne-gZ-dgenae, aoaZd. be.
aan-Lty eatabZdnhed Zdk-e. nenovad. o-4 vtnong Zdnb,
opena-t-ing
upon -the. vtnong pad-tent, gtv-ing vinong dnag to the. pad-lent
Zaad-ing to a-Zde-ng-ta neac-t-tonn , ana od vinong gan. t^on anaan—
the-nta,
Zaav-ing nvtabn on othan ope-nad-tng e.qadpmantn. -tnn-ida
tha pad-tent -in. ope-naddon eda.
Thanedtone.,
thana ana no
naanonn. -^on axa-Zxandon 0-6- mad-taa-Z. nanv-taa -^nom. CPA.
Adapted dnon a pa pan pabZdnhed by VoZamdany HeaZdh
tnon od Ind-ta, Navi De-Zhd.
Annoata—
Consumer Protection Act
With Special Reference to
Health Semees
The great Hippocrates father of modern
allopathic system of medicine, enjoined
upon all those in this nobel profession
through an oath of first do no harm.
Tragically, many in the medical profession
had thrown all this to the winds. Shielded
by compliant regulatory authorities and an
indifferent judicial system, the health ser
vices were almost immune to charges of
malpractice. Even when the problem grew
W to serious proportions, they failed to resort
to corrective surgery.
With Consumer Protection Act (COPRA) of 1986 coming into existence,
the aggrieved patients were beginning to wield the scalpel. However,
due to inherent weaknesses in the Act in terms of non-inclusion of some
aspects, coupled with organizational and implementational problems,
diminished its efficacy. To make the seven year old statute more
effective the government issued the Consumer Protection (Amend
ment) Ordinance which came into effect on June 18, 1993 and whs
passed by the Parliament on August 21, 1993- If the original act of 1986
was a landmark in consumer movement, the proposed amendment
provides more teeth to the existing Act.
Extent and Coverage of Consumer Protection (Amendment) Ordinance 1993
While the State Commission president
will be appointed after consultation with
The requirement of Central approval the High Court Chief Justice, the Presi
for District Forums have been done dent of the National Commission will be
away with. State Governments can appointed after consultation with the
set up more than one forum in one Chief Justice of India. The tenure of
district. There has been significant these commissions will be five years.
change in the procedure of selection The amendment gives the National Com
of members to the District Forums, mission administrative control over all
the State Commissions and the Na state bodies.
tional Commission. They no longer
have to be nominated by the state However, the role of advisory body - the
and central governments. In case of Central Consumer Protection Council,
the District Forums, every appoint has been diluted. Instead of three meet
ment shall be made by the State ings a year, it will have ‘not less than one
misuse of the redressal forums.
With private doctors and hospitals now
under the purview of Consumer Protec
tion Act. More and more doctors shall
find themselves in the dock over issues
such as negligence, wrong diagnosis
etc. But a major lacuna remains as
government doctors and hospitals have
been exempted. The ordinance explains
if a service is provided free of cost as in
the case of public services, it does not
come under purview of the act. In fact
there is amendment in the definition of
services. The definition covers ‘housing
construction’ in addition to services
covered earlier such as banking, financ
ing, insurance, transport, processing,
supply of electricity and entertainment.
Amendments to the Act include those
to its contents and its implementa
tion. One significant change is that
the loopholes of not providing for
class action have been removed.
Under the amended Act a group of
consumers or an organisation can
file a case on behalf of a class of
consumers having the same interest.
There is relief for self employed
persons. “A person who purchases
goods for commercial purposes” was
not covered by the Act and this has
caused difficulties to those who buy
goods for their livelihood such as a
widow who buys a sewing machine.
The amendment covers all such ex
cluding, however, purchases for com
mercial purpose by large business'
houses, as in the original Act. Re
strictive Trade Practices have been
included as a defect, and the defini
tion of unfair trade practice has been
widened to include misleading ad
vertisements, representation that pur
port to be warranties or guarantees,
tall claims and price-fudging.
Another important actionable right
given to consumers is with regard to
information regarding hazardous
goods. Legal rules require that saleof such goods should be carried out
along with a display of requisite
information on the contents, manner
and effect of use of such goods. The
consumer can now have the sale of
such goods stopped in case relevant
information provided by or under
any law is not so provided.
A new provision, perhaps in response to
the grievances of producers who be
come victims of false complaints, has
been added. If a complaint is dismissed
on the grounds of its being untrue, the
complainant can be directed to pay
costs up to Rs. 10,000. This will avoid
| SUPREME COURT~|
NATIONAL COMMISSION
FOR THE CLAIMS ABOVE Rs.20 LAKHS
SECRETARY
SITTINS OR RETD.HIGH COURT JUDGE
LAW
DEPARTMENT
CONSUMER
AFFAIRS
STATE COMMISSION
FOR THE CLAIMS ABOVE Rs. 20 LAKH
i
RETIRED JUDGE
0
Social
Worker
Women
DISTRICT FORUMS
FOR THE CLAIMS BELOW Rs.5 LAKH
Government on the recommenda
tion of a committee, chaired by the
State Commission President and
whose other two members will be
the Secretary to the law department
and the Secretary to the department
dealing with consumer affairs. This
committee will also recommend per
son for the State Commission.
a year’.
The amendment stipulates that the Na
tional Commission, the State Commis
sion and the district shall not admit a
complaint filed beyond a year of the
course of action. Many consumer activ
ist feel that the amendment on the
limitation of time to file a case is unwar
ranted and unduly restrictive. It would
also reduce the possibility of the compromise or a settlement. The complainant
would now have to hurry to file his case before the expiry of the one year period.
A problem which remains un-rectified is - no provision for a second appeal. An
appeal can be made to the State Commission, if the District Forum dismisses a case.
But if the State Commission, also dismisses the case, the National Commission can
not be approached for a second appeal.
A welcome feature among the procedural amendments is that the District Forums
can now take up cases up to Rs.5 lakh and the State Commission upto Rs.20 lakh
against Rs.l lakh and Rs. 10 lakh respectively earlier. Many consumers would
benefit as they would not have to run to the State Commission or to Delhi.
The amendments in the Consumer Pro
tection Act are definitely a step in the
right direction. Hopefully, by giving ad
ditional powers to the redressal agiencies,
it will go a long way in safeguarding the
interests of consumers in today’s vastly
altered buisness environment.
Doctors Have a Social Responsibility
* A doctor comes out of the medical col
lege spending about four lakhs of rupees
from the government funds. He may
spend some 40,000 rupees from his
parent’s purse. He is 10 times more
answerable to the society. The reverse is
happening now.
* The diseased people teach this doctor
medicine by offering their diseased bod
ies in the wards/clinics/corridors.
* The unclaimed “dead” travel to anatomy
theatre and teach the medicos anatomy
by offering themselves after death.
* But the doctors are allowed to go for
private practice and charge the people as
they like neither paying back the people
nor the government.
* Doctors go out of our country forgetting
what this country has given to them.
* Skills are fast deteriorating; good medi
cal teachers are disappearing.
* Between the doctor and the patient, in
the place of mutual trust, money has
come in a big way.
Patients Have Rights
Hence, a patient has the right to enquire
several times if need be what is being
done to him/her by the doctor. Doctor
has the responsibility to answer and in
form the patient, as accurately and com
pletely as possible, Because
* Patient pays for consultation (it is his
money)
* Patient purchases drugs (again it is his
money), and
* Procedure is carried out on patient’s
body. If anything happens, it happens to
him/her.
(Health Action, June 1993)
Physicians prescribe medicine of
which they know little, to cure
diseases of which they know less,
of human beings of whom they
know nothing.
Voltaire
At Last........
Justice Has Prevailed For Patients
In 1989, the Consumer Protection Act (CPA)
1986, set up an apparatus which for the first time
in India promised consumers speedy redressal of
their grievances. As a result, consumers with
complaints could approach consumer grievance
redressal commission at the district, state and
central level. The accused party is given five
weeks to reply to the charges, failing which a
hearing must be held on a daily basis, allowing
for quick disposal of complaints. Though medical
services are not mentioned by name in the
Consumer Protection Act 1986, the commissions
have handed down judgements on a number of
complaints of medical negligence.
* Vasantha Nair Vs Cosmopolitan Hospital
Mr. G.P. Nair was admitted to Cosmopolitan
Hospital which is a private hospital with a
persistent backache. A senior consultant in
orthopaedics diagnosed his ailment as tuberclosis
and started treatment for it. He was later
transferred to another physician for treatment of
jaundice while undergoing the treatment at the
hospital he died. His widow, Vasantha P Nair
filed a complaint of negligence against
Cosmopolitan Hospital (P) Ltd.
The Kerala State Commission awarded
damages the complainants. However the
cosmopolitan Hospital challeged this
verdict and appealed before the National
Commission. The National Commission
upheld the Kerala Commission’s
judgement stating specifically that medical
services fall under the purview of
Consumer Protection Act.
* Mr. A.K Shah Vs Bombay Hospital Trust
Mr. A.K. Shah was admitted to the Bombay
Hospital for the operation of his hip. After the
operation, he did not regain consciousness till
late in the evening. He had bled continuously
after the operation till his death at 5.30 a. m. the
next day. According to Mrs. Shah, the hospital
did not give any treatment to stop the bleeding
nor were the relatives of the patient warned in
advance about the likelihood for any emergency
need for blood. Relying on the code ofMedical
Ethics and other authorities, the Commission
came to the consclusion that hospital trust was
guilty of negligence and carelessness in causing
the death of Mr. A.K. Shah.
The Commission directed the Bombay Hospital
to pay the complainant Rs. 7 lakhs towards
compensation.
(Indian Express 15 July 1992)
* Mr. B.S. Hegde Vs Dr. Sudhanshu
Bhattacharya of Bombay Hospital
Dr. Bhattacharya, a leading cardiac surgeon at
Bombay Hospital, charged Mr. B.S. Hegde Rs.
92,000 for cardiac by-pass surgery and post
operative care. Mr. Hegde developed
complications after surgery and approached Dr.
Bhattacharya for medical care. The doctor
ignored patient’s requests with the result that he
had to undergo a second operation which was
performed by another doctor.
The Maharashtra State Consumer Forum
directed Dr. Bhattacharya to pay Rs. 2
lakh as compensation to the patient for
not providing post operation care.
*Mr. V. Chandrasekhar Vs. Appollo Hospital
Mr. V. Chandrasekhar, a former table tennis player
went in for an operation at the Appollo Hospital for
a simple cartilage tear in the right knee. Several
(Sunday Observer, 26 July 1992)
complications developed during and after the
surgery. He recovered consciousness fully nearly
Mrs. Bimla Gupta Vs. Rana Nursing Home
one month after the operation to find himself
reduced to “virtually a cripple”. His vision, his
*Mrs. Bimla Gupta, mother of a 13-year old girl speech and other faculties were severely damaged.
got herself sterlized on August 25, 1978. Two The Madras High Court directed Appollo
years ago she desired to have another child.
Hospital to pay Rs. 17 lakh as damages for
Rana Nursing Home in West Sagarpur gave her the disabilities caused after he underwent
a “100 percent guarantee”, and agreed to
the surgery at the hospital.
perform recanalization operation on a payment
(The Pioneer, 26 June 1993)
of Rs. 12,000 besides other charges. After the
operation she was told that 100 percent
With increasing cases of doctors misusing the trust
confirmation could only be given after x-ray
reposed in them by a patient, a new equation,
report which would be taken after three months. which allows the patient to question a doctor’s
The x-ray report revealed that operation was not motives and actions and makes him accountable for I
successful. Bimla filed a complaint in the
treatment he provides, has become very necessary.
consumer court.
The Consumer Protection Act, which has been
especially enacted to provide quick relief to the
She was granted a compensation of Rs.
consumer in any grievance, can help in establishing
25,000 and refund from the nursing home a more equal and satisfactory relationship. Let the
towards her medical expenses.
doctors and the patients cooperate in using this act
to restore the noble reputation, medical profession
(The Pioneer, 12 March 1993)
once had.
?
|
i
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Prepared by: BhavnaBanati, Information & Documentation,
Voluntary Health Association of India,
40 Institutional Area, South of IIT, Behind Qutab Hotel, New Delhi - 110016
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£
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0O«W
Synopsis on
CoN
CONSUMERS AND MEDICAL NEGLIGENCE
l - ’3
Y. G •Mu r a 1 i d h a r an
C R E A T
Ban pa 1 o r e • 560 040
Fl IE roc ent judpement of the supreme Court br inp inp
the
m e d i c a 1 s e r v ices u n d e r t h e ambit of t h e C o n s u m e r
P r o Lectio n
Act (CPA) has broupht medical neplipence into sharp
*
focus.
Medical neplipence is a response
o f qu e s t i on s "
to
the
following types
patients visa vis the doctors
1.
What are the riphts ol
a nd ho Sf’italSn n t
E«
What
3o
W hat is the level of
4.
Does a doctor have to take
be f o re an ope ra t i on » » ;
Ea
X f man y d o c t o r s h a v e h an died a pa 1 i ent w h i c h o <
is ultimately liable..
What
is nep1iqence n » ?
if the doctor wronp1y d i a p n o s e s a disease.» ?
c o im p e t e nc e e xp e ct ed o<
the consent ol
a do cto i . :
the *
atient
p
t h e rri
A
person
is
said to be nep lipent
when
he/she
acts
without
due care in repard to the harmful
consepuences
of
somet hi n p
his/her
action.
Neplipence is defined as
do inp
s ome t h i n q
that
one is not supposed to do or I ai1inq to
do
that
is supposed to do.
Medical
n e p 1 i p e n c e i s absence o { r e a s o n able c a r e and
s r;. i 11
or
wilful
neqliqence
of a patient so as to
lead
to
his
bodily
injury or death.
In the context of doctors^
nepli
pence has been defined thuss
11
Dy
the mere f a c t o f und e r t ak i n p the t r ea t ment o 1
a
p*a ■
tienty
the doctor has placed himself in such a
relationhip
to
that patient that a want of care and skill on
his
part
will involve the risk of injury to the patient and a liabil
ity for nep1ipence "
•1
Medical Negligence
a»
b»
c.
d■
is made up of
four components.
Existence o f a OUT',r of cars by ths doctor
The failure on t h e part of the doctor to maintain
care and sk ill
The failure t 0 e x e i ■cise a duty of care must lead to
d a ma g
The d a rrici g e which res u .1. t s mu st be re a s o n a b 1 y ! o r^^e able
A medical pro fess i onal wi 11 be liable in
1.
f o 11 owing cases ■
“
If "there is no informed consent
I1 his negligence causes o the rs to ca t ch a disease
•from his patient
If he does not attend to the patient altogether or do
not attend in time
If he rails to see the pat ient as frequently as
r equ i r ed and wh e r e d a ma g e s result from his absence
If he fails to give proper instruct i ons
If he fails to examine the patient himself to !i nd out
the true ■! a c t s ? but relic s on the diagnosis of another
do c t o i" and L r ea t s t he pa t1 ent
A wr ong diagnos is
P r e ilia t u r e d i s c h a r g e o f the pa t i e n t
Res Ipsa Loquitur (The thing speaks
for itself)
u r d inarily, the professional n e g 11 g e n c e of a
ph y s i c i a 1
must
be
established in court by the
expert
testimony
of
another
physician,.
Dut this does not happen■
No
profes
sional
will speak against his co 11 eague»
However the
con
sumer
(patient) need not prove negligence in the
following
a□
b»
c«
In the absence o f neg1i g ence t h e inj ury wou1d not
have o c c u r red o r dinarily
That the doctor had exclusive control over the injury
p ro d uci ng inst r ument o r tr e a tment
That the patient was not guilty of con 11” i bu to ry
n eg 1 i g en ce «
Medical
negligence can be a vo i d e d if
precaution
in discharge of their duties.,
as fol lowss
1»
do c t or s t a k e
Some of them
due
are
O C3
0> tn -h Cj DJ
'lave good relationship with the patient
Obtain informed consent from the patient
Never guarantee a cure
Keep full, accurate and legible medical records
Lmploy ordinary skill and care at all times
Confirm diagnosis by laboratory tests
Seek cons u11 a t i o n where ne ces sa r y
Do not criticise another doctor
Check condition of eguipments periodically
‘10»
Do not experiement without the consent of the patient
1 I .>
Keep yourself abrest with medical advances
‘12»
It is dangerous to telephone a prescription
13.
14.
15.
Take care while appointing assistants and delegating
duties to them
In case of death during operation infrom the police
Do not fail to secure the consent of both husband and
the wife? if an operation is 1ike1y to resu1t in
sterilit y
Obligations of the consumers
Despite the fact that consumers do have a large
number
oT
r 3. gh t s as pa t i e n t s , in c 1 ud ing filing a case in the
con
sumer
fo ra ,
they s h o u1d r emembe r tha C
Chey
hav e
cer Lain
obligations towards the d o c t o r s « 3 o m e of t h e m are »
To give full, accurate medical history
Follow the instructions of the doctors in full
Should not refuse to take suggested ti" eatm ent
Not to 1eave the hospita1 without doctors approval
Infor med consent
One
of
the most rapidly growing
medical
malpractice
litigation
is
in the areas of in fo r m e d
consent.
Co hsent
means
voluntary agreement, compliance or permission.
Con
sent
may
be
express or implied. Ex press
consent
may
be
v e r ba 1 o r w r i 11 e n .
Informed
consent implies an understanding by
the
pa'
tient
of the nature of his condition,
proposed
treatment,
Procedures, a1ternaLive course o f action, ri sks invo1ved and
chances o■! success or fa11 ure .
o m e 1 e g i s 1 a Cions connected to medical professionalsJ
9.
10.
The Indian Medical Degrees Act, 1916
The Indian Medical Council Act, 1933
The Dentists Act, 1946
The Indian Medical Council Act, 1956
The Drugs and Cosmetics Act
The Drugs and Magical Remedies (Objectionable
Ad v e r t i s emen t s ) A c t
T h e 11 o m e o p a t h y A c t
The Indian Penal Code
The Const i tut ion o f India
The Consumer Protection Act, 1986
Bangalo re
3rd December 1995
Co N
Synopsis on
CONSUMERS AND MEDICAL NEGLIGENCE
By:
Y.G.Mural id haran
C R E A T
Bangalore - 560 040
THE recent judgement of the Supreme Court bringing
the
medical services under the ambit of the Consumer
Protection
Act (CPA) has brought medical negligence into sharp focus.
Medical negligence is a response to the
of guest ions:
following types
1.
What are the rights of patients vis-a--vis the doctors
and hospitals..?
2.
What if the doctor wrongly diagnoses a disease..?
3.
What is the level of competence expected of a doctor.?
4.
Does a doctor have to take the consent of the patient
before an operation..?
5.
If many doctors have handled a patient which of them
is ultimately liable..?
What is negligence..?
A
person
is
said to be negligent when
he/she acts
without due care in regard to the harmful
consequences
of
his/her action.
Negligence is defined as
doing
something
that
one is not supposed to do or failing to
do
something
that one is supposed to do.
Medical
negligence is absence of reasonable care and
skill
or
wilful
negligence
of a patient so as to
lead
to
his
bodily
injury or death.
In the context of doctors,
negli
gence has been defined thus:
"
By
the mere fact of undertaking the treatment of a
pa
tient,
the doctor has placed himself in such a
relationhip
to
that patient that a want of care and skill on
his
part
will involve the risk of injury to the patient and a liabil
ity for negligence "
I-
Medical Negligence is made up of
a.
b.
c.
d.
four components.
Existence of a DUTY of care by the doctor
The failure on the part of the doctor to maintain
care and skill
The failure to exercise a duty of care must lead to
damage
The damage which results must be reasonably forceable
A medical professional will be liable in following cases:
•1.
2.
3.
4.
5.
6.
7.
8.
If there is no informed consent
If his negligence causes others to catch a disease
from his patient
If he does not attend to the patient altogether or do
not attend in time
If he fails to see the patient as frequently as
required and where damages result from his absence
If he fails to give proper instructions
If he fails to examine the patient himself to find out
the true facts, but relies on the diagnosis of another
doctor and treats the patient
A wrong diagnosis
Premature discharge of the patient
Res Ipsa Loquitur (The thing speaks for itself)
Ordinarily, the professional negligence of a
physiciai\
must
be
established in court by the
expert
testimony of
another
physician.
But this does not happen.
No
profes ■
sional
will speak against his colleague.
However the
con
sumer
(patient) need not prove negligence in the
following
cases:
a.
b.
c.
In the absence of negligence the injury would not
have occurred ordinarily
That the doctor had exclusive control over the injury
producing instrument or treatment
That the patient was not guilty of contributory
negligence.
Medical
negligence can be avoided if doctors take
precaution
in discharge of their duties.
Some of them
as foilows:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
due
are
Have good relationship with the patient
Obtain informed consent from the patient
Never guarantee a cure
Keep full, accurate and legible medical records
Employ ordinary skill and care at all times
Confirm diagnosis by laboratory tests
Seek consultation where necessary
Do not criticise another doctor
Check condition of equipments periodically
Do not experiement without the consent of the patient
Keep yourself abrest with medical advances
It is dangerous to telephone a prescription
Medical Negligence is made up of
a.
b.
c.
d.
Pour components.
Existence of a DUTY of care by the doctor
The failure on the part of the doctor to maintain
care and skill
The failure to exercise a duty of care must lead to
damage
The damage which results must be reasonably forceable
A medical professional will be liable in following cases:
1.
2.
3.
4.
5.
6.
7.
8.
If there is no informed consent
If his negligence causes others to catch a disease
from his patient
If he does not attend to the patient altogether or do
not attend in time
If he fails to see the patient as frequently as
required and where damages result from his absence
If he fails to give proper instructions
If he fails to examine the patient himself to find out
the true facts, but relies on the diagnosis of another
doctor and treats the patient
A wrong diagnosis
Premature discharge of the patient
Res Ipsa Loguitur (The thing speaks for itself)
Ordinarily, the professional negligence of a
physicial\
must
be
established in court by the
expert
testimony
of
another
physician.
But this does not happen.
No
profes
sional
will speak against his colleague.
However the
con
sumer
(patient) need not prove negligence in the
following
cases:
a.
b.
c.
In the absence of negligence the injury would not
have occurred ordinarily
That the doctor had exclusive control over the injury
producing instrument or treatment
That the patient was not guilty of contributory
negligence.
Medical
negligence can be avoided if doctors take
precaution
in discharge of their duties.
Some of them
as foilows:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
due
are
Have good relationship with the patient
Obtain informed consent from the patient
Never guarantee a cure
Keep full, accurate and legible medical records
Employ ordinary skill and care at all times
Confirm diagnosis by laboratory tests
Seek consultation where necessary
Do not criticise another doctor
Check condition of equipments periodically
Do not experiement without the consent of the patient
Keep yourself abrest with medical advances
It is dangerous to telephone a prescription
13.
14.
15.
Take care while appointin'.! assistants and delegating
duties to them
In case of death during operation infrom the police
Do not fail to secure the consent of both husband and
the wife, if an operation is likely to result in
sterility
Obligations of the consumers
Despite the fact that consumers do have a large
number
of
rights as patients, including filing a case in the
con •
sumer
fora,
they should remember that
they
have
certain
obligations towards the doctors. Some of them are:
1.
2.
3.
4.
To give full, accurate medical history
Follow the instructions of the doctors in full
Should not refuse to take suggested treatment
Not to leave the hospital without doctors approval
Informed consent
One
of
the most rapidly growing medical
malpractice
litigation
is
in the areas of informed
consent.
Consent
means
voluntary agreement, compliance or permission.
Con
sent
may
be
express or implied. Express
consent
may be
verbal or written.
Informed
consent implies an understanding by
the
pa
tient
of the nature of his condition,
proposed
treatment,
procedures, alternative course of action, risks involved and
chances of success or failure.
Some legislations connected to medical professionals:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
The Indian Medical Degrees Act, 1716
The Indian Medical Council Act, 1933
The Dentists Act, 1948
The Indian Medical Council Act, 1956
The Drugs and Cosmetics Act
The Drugs and Magical Remedies (Objectionable
Advertisements) Act
The Homeopathy Act
The Indian Penal Code
The Constitution of India
The Consumer Protection Act, 1986
Bangalore
3rd December 1995
IN THE SUPREME COURT OF
INDIA
CIVIL
APPELLATE JURISDICTION
CIVIL
APPEAL NO.
688 OF 1993
Indian Medical
Association
...
j
Appellant
I
VERSUS
V.P.Shantha X Ors.
...
Respondents
[WITH C . A . NO. 6 8 9 / 9 3, WP(C) NO. 16/94, C.A.NO. 4 6 6 4 4 665/9 4 , C.A.NO. 254 /9 4 AND C . A . N 0 S . IQ? ?? I0.0.8.1./.1.0.0.5?"’8?/95
{Arising out of S L P(C) N 0 s.
18497/93,
21755/94,
and
18445-73/94}, SLP(C)NOs.
6885/92,
6950/92,
351/93,
21343/93 and 21349/93]
JUDGMENT
S.C.
AG RAW A Lj
J.
:
Leave
granted
in
SLP(C)
Nos.
Delay
condoned
and
leave
granted
These
appeals,
21755/94.
and
18497/93
in
Nos.
SLP(C)
18445-73/94 .
Writ
Petition
so,
in
what
regarded as
Consumer
raise
a
special
common
circumstances,
rendering
Protection
a
1986
petitions
medical
and
and,
if
practitioner,
can
be
Section
2(1)(o)
(hereinafter
referred
under
the
whether
viz.,
question,
'service'
Act,
leave
of
to
the
as
-:2:~
'the
Act'].
the
whether
be
as
as
'service'
questions
well
as
by
a
at
under
have
been
the
National
is
question
the
hospital/nursirig
home
can
Act.
Section
2(1)(o)
of' the
by
various
High
considered
[hereinafter
Commission
question
this
rendered
service
regarded
These
with
Connected
Consumer
to
referred
Courts
Disputes
Redressal
'the
National
India,
(1992)
as
Commission' ] .
In
D r_.
A.S. Chandr a
Andhra Law Times 713,
Court
has
private
medical
must
homes
for
practi tioners ,
private
hospitals
2(1)(o)
services
are
2(l)(d)
of
the Act.
In
P£.C tS_.
438,
MLJ
a
of
the
services
rendered
hospital
Act
a
and
different
by
to
a
way
the
view.
patient
of
by
and
Madras
It
has
a
medical
diagnosis
High
been
and
nursing
availing
meaning
by
purpose, of
of
Kumar asam.Y & A nr.,
the
of
the
persons
the
within
Bench
for
'service '
Sy_b.raman i an v.
Division
taken
a
as
'consumers
however,
by
consideration
rendered
Section
1
a Division Bench of Andhra Pradesh High
construed
be
of
service-
that
held
Union
v
Section
<1994)
Court
Field
such
has,
the
that
practitioner
treatment,
1
or
both
- :3:-
medicinal
of
surgical,
and
'service’
who
under
undergoes
hospital
by
and
surgical,
the
meaning
under
treatment
way
Section
or
practitioners
the
Act;
undertaking
and
hospitals
of
and
kinds
all
the provisions of
the
extent
within
them,
person availing of
such
the meaning of
the Act.
arising out
of
SLP(C)
and
Appeals
filed
Civil
the
by
judgment of
of
such
India
medical
the
cannot
claim
the AcL and that
they
services
para-medical
of
a
and
'service'
within
4564-65/94 and Civil
Appeal
filed
a
by
SLP(C)
of
are
but
'consumer'
217 7 5/ 94
out
within
pa ra
would be
C.A.Nos.
consumer
providing
definition
service
No,
directed
the
Nos.
complainants
13445-73/94
against
the
said
the Madras High Court.
The National
dated
December
held
that
medical
the
arising
Union
of
a
or
medicinal
both
categories
from
patient
practitioner
2(1) (d)
Immunity
by
a
a
similar
rendered
and
Act
to be
of
to
the
treatment,
services
fall,
definition
medical
ined i cal
would
the
considered
be
cannet
a
of
and
diagnosis
of
of
2(1)(o)
Section
within
come
would not
15,
persons
treatment
1989
who
Commission by
in
avail
its judgment and order
Appeal
No
2
theroselves
of
the
First
1969
has
facility
of
of
in Government hospitals are not "consumers
- :4 : -
the
and
cannot
facility
said
regarded
be
It has been held
by
public
the
as
that
does
offered
in
service
"hired"
has
been
also
in
employee
other
held
the
the
meaning
of
No.
18497/93
has
recognised
the National
Central
Scheme
similar
the
a
that
been
the Government hospitals.
It
Government
Health
make
him
a
Govern me nt
a
by
within
SLP(C)
out
Consumer
Unity
Trust
against
such
"consumer"
arising
association,
or
Scheme
Appeal
Civil
filed by
consumer
for
made
not
taxes
indirect
paid
contribution
does
Act.
in
or
"consideration”
constitute
hiring the services rendered
hospitals
"consideration".
for
di rec I
the payment of
not
Government
the
of
Society,
judgment
this
of
Commission.
By
judgment dated
Nos.
48 and 94 of 1991,
the
activity
of
April
the National
medical
providing
in First
Appeal
i
Commission has held that
21,
1992
for
assistance
payment
carried on by hospitals and members of the medical
profession
falls within the scope of
as defined
w
in
Section
2(1) (o)
deficiency
in
party
can
invoke
filing
a
the
of
the
the expression
Act
performance
the
complaint
and
of
remedies
before
that
such
’service’
in
service,
provided
the
event
the
the
under
Consumer
of
any
aggrieved
the
Forum
Act
by
having
-:5:-
jurisdiction.
representatives of
treatment
in
are competent
filed
689/93
the
also
has
It
the
directed
are
'consumers'
hospital
the complaint.
the
Medical
by
Indian
against
said
The
said
First
3m t .
K a n n o1 i1
filed
by
Anr . . v .
351/93
has
aga i ns t
the said judgment of
been
By
the
National
that
was
judgment
given
to
the
nursing home belonging
any
under
any
charge,
the
Act
it did
and
relief under
dated
the
Pathum ma
Josgiri
the National
has
held
complainant's
not
1992
its
judgment
Lhe Act.
C.A.No.
dated
1991
[Dr .
Sr .
Anr . 1.
SLP
No .
of
8
was
and
Nur sing
Home
Commission
1993
in O.P.No.
93/92,
that
since
treatment
deceased
constitute
complainant
are
21,
the
husband
the opposite party was
to
SLP(C)
April
Hospital
dated May 3 ,
Commission
and
National
No.97
1992
588/93 and
the
Appeal
16 ,
and
Act
of
in
N o v e tn b e ir
the
legal
Cosmopolitan Hospital
in
the
undergoing
Association
Commission
by
were
C.A.Nos.
judgment
judgment
Lhe
under
National
followed
8
the
that
who
patients
to maintain
Commission.
Louie
held
deceased
6885 and 6950/92 filed by M/s
Nos,
of
been
was
'service'
not
in
the
totally free
as
entitled
defined
to
254/94 has been filed
seek
by
-:6:-
tlie
against
complainant
said
the
of
judgment
the
National
Commission.
Writ Petition No.
16 of 1994 has been
Article
32
of
the
Ltd.,
and
Dr.
K.Venogopolan
Nos.6885
and
assailed
the
as
they
as
being
of
validity
to be
are held
Act,
medical
SLP(C)
have
insofar
profession,
19 (1) (g)
and
14
Articles
the
of
thie
in
(P)
petitioners
said
to
applicable
of
violative
the
provisions
ttie
Hospital
[petitioners
Nair
wherein
6950/92]
Cosmopolitan
by
Constitution
filed under
the
of
Constitution.
Shri
A.M.Singhvi,
addressed
hospitals
of
the
Krishnaraani
Shri
the
the
K.Parasaran,
court
and
the scheme of
On
and
Shri
on
behalf
of
Shri
Rajeev
Dhavan
Before
we
complainants.
contentions we
Harish
Shri
would briefly
take
the
have
profession
to
note
thie
deal
and
the
case
with
their
presented
proceed
of
Shri
S.Balakrishnan
medical
has
Salve,
background
and
the Act.
April
United Nations,
9,
1985
the
General
Assembly
by Consumer Protection Resolution No.
of
the
39/248,
elaborating
in
use
for
protection
of
encouraging high levels
the
production
to
hazards
meet
their
to
tive
consumer
the
Act
was
to make
and
Keeping
redress.
consumers
conduct
for
those
the
in
Parliament
by
of
goods
view
to
the
establishment
authorities
for
the
Al
the lowest
level,
the
Disputes
the
Consumer
engaged
to
from
consumers
the
said
provide
for
for
at
and
services
and
of
interests of consumers and
structure
Forum';
guide
as
protection
the
three-tier
Consumer
said
the
of
settlement
next
the
i . e, ,
Redressal
higher
Disputes
Forum
level,
Redressal
for
for
the
better
that purpose
councils
consumers'
of
redressal
guidelines,
consumer
of
putes and for matters connected therewith.
ances.
protection
consumer
health and safety and availability of effec
provision
other
to
population
ethical
include
enacted
protection of
countries,
in achieving or maintaining
distribution
and
for
The legitimate needs which the guidelines are
the consumers.
intended
their
framework
developing
objectives
The
include assisting countries
adequate
in
of
strengthening
and
policies and legislation,
lines
a
provide
those
particularly
Governments,
to
guidelines
the
adopted
dis
The Act sets up a
consumer
griev
the District level,
is the
of
known
i.e.,
as
the
Commission
'the
State
District
level,
known
as
is
'the
-:8:-
State
Commission'
Commission.
[Section
Consumer Disputes
ary
limit
lies
to
of
claim
the
jurisdiction
of
these
is
on
the
the
by
Commission
State
is
Agencies
made
based
complainant.
an
against
District Forum
[Section 15] and an appeal
al
Commission
against
on
a
complaint
filed
order
passed by
the District
Commission can
to
sumer
dispute pending
[Section
17(b)]
revisional
pending
or
Further,
from
an
or
mission.
[Section
complainant
the
consumer
trade
on
an
or
the
respect
a
provision
appeal
23).
against
By
unfair
adopted
by
State
the
against
in Section 2(1) (c) ,
practice
of
is
by
by
State
similar
a
to
District
a
has
similar
a • consumer
dispute
Commission.
appeal
for
|
[Section
to
Commission
the
of
order
of
con
Forum
National
virtue
the
a
State
this
on
a
Com
definition
of
the Act affords protection
to
trade
any
The
grounds
Commission
a
made
19].
relation
decided
the
against
CPC
by
there
appeal
on
in
appeal
Commission
powers
National
in
An
State
[Section
decided
order
complaint
115
before
jurisdiction
before
21(b)].
Court
and
revisional
pecuni
made by the
i
to the Nation
lies
an
three
order
the
by
in
or
Forum.
Section
in
made
it
before
exercise
contained
those
order-
an
National
level
highest
The
9].
Redressal
the
the
the
at
and
practice
trader,
or
defect
a
restrictive
in
the
goods
-:9i-
bought or
the
to be bought by
agreed
deficiency
consumer ,
in
i
the
service'
hired
by
the
consumer,
price
fixed
availed
of
excess
of
the
being
in
force
or
or
availed
of
under
any
law
for
the
displayed
on
the
goods
or
any
package
to
to
and
safety
in
in
or
which
being
price
by
a
sale
hazardous
of
trader
by
for
contravention
or
charging
offering
be
hired
to
containing such goods and
will
be
agreed
or
the
life
provisions
of
any
law
force
requiring
traders
to
d i splay
the
contents.
manner
and
effect
public,
time
goods
when
used,
for
the
in
time
information
in
i
regard
to
goods.
The
expression
2(1)(b;1,
is
comprehensive
any
voluntary
Companies Act,
force,
or
or
one
more
the
having
consumer
the
Central
consumers
same
appropriate
Consumer
in accordance
13
of
well
the
as
Act
the
which
State
the
enable
where
in
Section
consumer
as
well
registered
are
file
a
Commission
State
Government
numerous
consumers
before
Agency
the
that
and
and
is settled by
procedure laid
prescribes
the
the
the
time being
complaint
Redressal
in such complaint
the
under
as
the
for
any
or
there
to
Disputes
with
def i ned
any other law
Government
such
use
as
association
interest',
sumer dispute raised
agency
to
1956 or under
in
or
" complainant" ,
of
of
down
District
National
the
con
the said
in
Section
Forum
[as
Commission]
-:10 : -
shall
have
under
the Code of Civil
the
as
power
same
vested
are
Procedure
attendance
of
any
defendant
or
ing
witness
oath;
discovery
and
the
on
reception
affidavits;
Lhe
report of
priate laboratory
or
issuing
the examination of any witness;
and any
prescribed.
Section
reliefs
can
for
the
nature
of
the
complainant
on
such a
complaint.
Act
are
in
addition
of
source;
to
sions of jany other law
be
the
for
in
not
and
from
test
relevant
other
any
may
provisions
the
appro
which
other
as evidence;
the
from
ef any commission for
any
requisitioning
the
analysis or
concerned
the
matter
on
of
production
object producible
evidence
examin
and
witness
document or other material
of
court
civil
of summoning and
in respect
enforcing
a
in
that
be
14
makes
granted
The provisions of
derogation
time being
of
the
in force.
to
the
provi
[Section
3] .
In
this
we
are
goods
and
Since
the Act
rendered
has
be
"consumer"
only
concerned
to him,
construed
in
cases we
gives protection
service
to
group of
the
Act.
the
rendering
the consumer
of
in
expression "service"
keeping
It
with
to
concerned with
are not
is,
in
view
the
therefore,
services.
respect
of
the
Act
in
definition
i
necessary
to
of
set
: 11.
:
out the definition of the expression
Section
2(1)(d)
insofar
expression
the
definition
of
2(1)(o) of
the Act,
"Section 2(1)(d)
I
(i)
as
it
’consumer'
relates
'service'
to
contained
in
and
the
services
contained
in
Section
The said provisions are as follows
"consumer" means any person who,
:
-
omitted
(ii)
hires [or avails of] a ny service_s_ for a
consideration which , has. .been paid or .ftronjised or
partly paid and partly promised, or under any
system of deferred payment and includes any
beneficiary of such services other than the person
who
hires
[or
avails
of]
the
service
for
consideration paid or promised, or partly paid and
partly promised, or under any system of deferred
payment, when such services are availed of with the
approval of the first mentioned person.
Explanation.
-
Omitted"
i
"Section 2(l)(o) :
"service" means service of any
d e s c r i p t i o n which
made available
to
the
is
potential use r s and
inc ludes t fi e provision of
f a c i 1 i t i e s i n connection with banking,
financing,
insurance ,
t ransport,
processing, supply of
electrical
o r other energy,
board or lodging or
both,
[housing
construction],
entertainment,
amusement or the purveying of news or other
information, but does not include rendering of any
service free of charge. or under a contract of
personal service;"
The words "or avails of" after the word "hires" in
Section
2 (1) (d ) (i i)
and
the
words
"housing
construction"
I
in
- : 12 : -
Section 2(1)(o)
nser led by
were
1993.
the Act 50 of
I
in Section 2 (1)(o)
The definition of
the main part
the Act can be split up
inclusionary
explanatory
of
any
and
part
description
u se rs .
Th e
exclusionary
the
which
part
inclusionary
P rov i s i on
of
f i n a n c i ri 9 ,
insurance,
available
made
is
to mean service
the
to
1 udes
w i th
both
el e cy r i c a 1
other
construction,
entertainment,
amusement
information.
The
exclusionary
of
charge
other
news
rendering
of
of personal
board
any
or
lodging
the
or
under
definition
of
'service'
the
has
been
construed
in Lucknow Deyel_p_pment Authority v.
M.Jt^Gupta
243.
parts,
housing
purveying
part
a
of
of
excl udgs
contract
service.
The
Section
banking,
supply
ing ,
transport,
energy-,
potential
expressly
connection
in
facilities
the
main
The
part.
nature and defines service
in
of
2(1)Co)
of
After pointing out
Act
that
the Court has observed
contained
by
the said definition
:
this
Cou-t
1994
(1) SCC
is
in thrlee
- : 13:-
It applies
"The main clause itself is very wide.
to any service made available to potential users.
The words 'any'
and 'potential' are significant.
Both are of
wide
amplitude.
The
word
'any'
dictionarily means;
one or some or all'.
In
Black's Law Dictionary it is explained thus, "word
'any' has a diversity of meaning and may be
employed to indicate 'all' or 'every' as well as
'some' or 'one' and its meaning in a given statute
depends upon the context and the subject- matter of
the statute".
The use of the word 'any' in the
context it has been used in clause (o) indicates
that it has been used in wider sense extending, from
one to all.
The other word 'potential' is again
very wide.
In Oxford Dictionary it is defined as
'capable of coming into being, possibility'1.
In
Black's Law Dictionary it is defined "existing in
possibility but not in act.
Naturally arid probably
expected to come into existence at some future
time,
though not now existing;
for example,
the
future product of grain or trees already planted,
or tire successive future
instalments or payments
on a contract or e n g a g e m ent already made."
In
other words service which is not only extended to
actual users but those who are capable of using it
are covered in the definition.
The clause is thus
very wide and extends to a ny o r all actual or
potential users
[p.255]
The contention
Act
is
to
business was
protect
the
rejected with
that
the
consumer
entire
objective of
against
the observations
the
malpractices
:
"Tiie argument proceeded on complete misapprehension
of the purpose of Act and even its explicit
language.
In fact the Act requires provider of
service to be more objective and caretaking."
tp.256)
in
i
Referring
it was. sa i d
'
to the inclusive part
of
the
definition
:
"The inclusive clause succeeded in widening its
scope but not exhausting the services which could
be covered in earlier part.
So any service except
when it is free of charge or under a constraint of
personal service i s included in it. " IP • 257]
I
In
question
that
ca s e
the
hous i ng
whether
Court
deal i n 9
was
construction
service under
Section 2(1)(o)
of
was
in
"housing
pending
inserted
in
the
this
Court,
inclusive
part
the
by
be
coul d
regarded
the
While
Act.
the
with
matter
construction"
Ordinance
No.
of
24
as
was
1993.
Holding that housing activity’ is a service and was covered by
the main part of
the definition,
the Court observed
:
"
the entire purpose of widening the
definition is to include in it not only day to day
buying and selling activity undertaken by a common
man but even such activities which are otherwise
not commercial
in nature yet they partake of a
character in which some benefit is conferred on the
consumer." [p.256]
In
the
present
definition of "service"
case
the
inclusive
part
of
the
is not applicable and we are required
- : 15 : -
to
with
deal
light
of
questions
the
the
main
definition.
The
consultation,
or
diagnosis
in
the
part
of
the
part
exclusionary
if
only
consideration
consideration
exclusionary
the
and
part
for
failing
it
is
found
that
and
treatment
a
a hospital/nursing home
matter
the
in
medical
a service
renders
require
will
of
practitioner
falling within
■ I
the main part of
of
the
definition contained
the
We
Act.
practitioners
medical
therefore,
have,
Section 2(l)(o)
in
to
determine
hospitals/nursing
and
homes
whether
can
be
regarded as rendering a "service" as contemplated in the main
part of Section 2(1) (o).
in
the
light
D e ye_1 opmen t
the
of
determination has
This
aforementioned
Authority
question in relation
to medical
in
observations
will
We
(supra).
first
to be
made
Lucknow
examine
this
practitioners.
i
has
It
distinction
been
between
a
while a person engaged
falls
rendered
fall
the
within
contended
profession
ambit
of
person
belonging
within
the
ambit
of
who
the
said
belong
to
in
law
2(1)(o)
a
is
and
a
that
renders service which
the
profession
the
service
does
not
and,
therefore,
medical
profession
provision
to
there
occupation
an
Section
a
practitioners
and
in an occupation
by
medical
that
- : 16 : -
are not
covered
urged
that
provisions
Code
of
by
medical
are
9 O v e rned
by
the
1956
and
the
Council
Medical
conduc t as members of
State
practi tioners
Medical
by
Councils
Medical
Medical
Council
Ind
of
Section 3 of
r e g u 1ates
wh i c h
1956
Act,
the
Act,
India unde
the medical
by
action
Council
the
o f
the Gove r n in e ri I.
approved by
disciplinary
Act.
Ethics made
Medical
Indian
the
Indi an
the
of
b f; e ri
ha
I t
of
provisions
the
their
profession and provides
Medical
a 9 a ns t
a
his
re
the
for
Counti1
of
India
per son
for
professional
to
propound
and/or
misconduct.
While
express 1 n g
comprehensive definition o f
a
said
present
the
idea
of
intellectual
the
in
'profession'
'profession' ,
an
0C cup 3 t i o n
skill,
of
painting and sculpture,
of the operator,
e
of
1anguage
r equ i r i ng
manual
or surgery,
as distinguished
use
Scrutton L.J.
a
has
i nvo1 v e s
e i t he r
pur el y
skill
controlled,
as
the
intel 1ectual
sk i 1 1
by
in
from a n occupation which
substantial 1y
the
product i on
sale
of
commodities.
The
of
demarcation
may vary
from
time
to
time.
'profession'
used to be
confined
to
the
three
production
or
sale
The word
learned
arrangement
line
professions,
the
for
the
Church,
- : 17 : -
and
Medicine
[See
Law.
has
It
Commissioners of
:
now,
I
t h ink,
a
meaning
wider
.
1919 1' K.B.
Inland Revenue v.
Maxse,
Rupert M.
and John L.Powell
647 at p.6571 .
According
the
to
occupations
which
characteristics,
viz.,
i)
the nature of
as
regarded
the work which
part
and a substantial
are
Jackson
is menial
four
have
professions
is skilled and specialized
rather
Ihan manual;
i
ii)
commitment
general
duty
may transcend
of
the duty
professional
seeks
to
iv)
moral
honesty
iii)
uphold
professional
to
and
principles
a
wider
duty
to
standards
of
regulates
the
beyond
community
to a particular client
associat-ion which
the
go
which
in the community.
which
or patient;
admission and
profession
codes on matters of conduct and ethics;
high status
the
through
and
— : 18 : -
The
twentieth
centbry
been
seeking
this
has
an
and
led
increasing
occupations.
Tn
the
Negligence
professional
status
architects,
surveyors,
barristers,
(vi)
[See
brokers.
;
the
seven
to
case
and
beyond
rational
very
the
approach
of
tha t
that
the
of
features
other
from
to
relating
law
have
accorded
occupations,
namely,
surveyors,
(ii)
solicitors,'
( i v )
and
(vii)
(v)
insurance
Negligence,
on Professional
professional
or
success
to
for the
failure
depends
man’s
to
professional
the
achieved
while
should
every
factors
devising
a
which
must
allowing
for
liability
consumer
in
upon
In
control.
Lhe approach of
men
professions
reason that professions
be
professional
protection
liability
cannot
success
factors mentioned above,
require
and
3rd Ed.i.].
professional
provide proper
the
often
have
authors
practitioners
spheres where
in
occupations
status
quantity
and
accountants,
differ from other occupations
operate
the
of
specific
Jackson 8 Powell
matter
of
professions
learned
the
medical
paras 1-01 and 1-03,
In
the
the
that during
blurring
some
context
engineers
(iii)
number
distinguish
Professional
(i)
to
inevitably
stated
"professional”
achieving
traditionally
which
authors have
learned
the courts
possess
a
is
to
certain
- : 19 : -
degree
of
competence
reasonable care
in
the discharge of
a professional
man
owes
to
his client
a duty
to
exercise
reasonable
care
minimum
as
in
or
performing
contract
paras
by
certain
The
trend
longer
1-56].
and
professions
is
enjoying
is
field
limited
of
in
work
to
done
pre-trial
work
which
transpires
in court.
[See
:
1-66;
Saif
A]_i
Rees
v■
Sj_nc_l_a_i.r
Wrai th
(1938)
category
any
enjoy
on
the
skill
Sidney
v.
81
ground
and care.
that
and
even
them
for
a
small
related
to
what
(supra),
para
(1980)
1
A.C.
Medical
practitioners
have
sued
failed
to
in
the
to
and
4171.
be
no
certificates
180;
can
is
it
N.Z.L.R.
they
they
interest.
barristers
Powell,
Co.,
8
enjoyed
was
1
(1974)
A.L.R.
immunity
Mi.tche.l_l
(supra),
Earlier,
court
&
Jackson
advice
of
directly
is
giving
immunity and
now
in
as well
public
respect
but
tort
Powell
8
of
valuers.
immunity
exercise
In general,
from suit
such
of
in
in
Jackson
grounds
the
to mutual
complete
their duties.
:
architects
to
available
on
should
they
that
Immunity
narrowing
towards
negligently given and
were
[See
services.
1-05
1-04,
and
198;
G i anna rel 1 i
contract
exercise
do
or
v.
not
tort
reasonable
-:20 : -
It
though
that
would
thus
appear
belonging
to
the
medical
claim
damages
profession,
from
a
fact
that they are governed by the
and
are
for
subject
of
Council
India
who
to
on
the
the
ground
of
State
has
suffered
Medical
the
right of such person to seek redress
Referring to
the
relationship
patients
in
negligence.
Councils
the
due
to
immune
not
their
The
Council, Act
of
control
to
person
are
Indian Medical
disciplinary
and/or
practitioners,
medical
is
no
Medical
solace
negligence
and
is not affected.
the changing position with regard to
between
the
the United Kingdom,
medical
practitioners
it has been said
and
:
"Where, then, does the doctor stand today in
relation to society?
To some extent, he is a
servant of the public, a public which is widely
informed
on
medical
(though not always w ell)
matters.
Society
is
conditioned
to
distrust
paternal ism and the modern medical practitioner has
little wish to be paternalistic.
The new talk is
of 'producers and consumers' and the concept that
'he
who pays
the
piper
calls
the
tune'
is
established both within the profession and in its
relationships with patients.
The competent
patient's inalienable rights to understand his
treatment and to accept or refuse it are now well
established." (pp.16-17)
,
"Consumerism is now firmly established in medical
practice - and this has been encouraged on a wide
scale by government in the United Kingdom through
the
: 21
lhe introduction- of
'charters'.
Complaint is
central to this ethos - and the notion that blame
must be attributed,
and compensated, has a high
priority." (p.192)
[Mason 8 McCall
4th Edn . ]
In Arizona v.
457
US
332
-
73
formed
societies
two
Ethics,
County; Medical
Maricopa
L.Ed.(2d)
Medical
and
48,
two
foundations
for
Arizona
medical
medicine
and
to provide
alternative
to
existing
fee-for-service
competitive
:Law
Smith
the
health
that
participating
doctors
as
payment
in
full
for
performed
under
as
price
services
It
was
held
fixing
agreements,
It
was observed
the Sherman Act.
promote
with
insurance
fees
agreement,
to
community
maximum
plans.
medical
care
of
under
county
a
plans
the doctors established the schedule
and by agreement amongst
insured
Society,
agreed
for
lo
accept
patients
that
the
maximum
are
per
se
fee
unlawful
:
"Nor does the factdoctors - rather than non
professionals - are th.e parties to the price
fixing
agreements
support
the
respondents’
position. ... The respondents claim for relief from
the per se rule is simply that the doctors'
agreement not to charge certain insureds more than
a fixed price facilitates the successful marketing
of an attractive insurance plan.
But the claim
that the price restraint will make it easier for
customers to pay does not distinguish the medical
profession from any other provider of goods or
services." [pp. 348-^9, 61-52]
- : 22 : -
they
prof ession
medical
the
of
provisions
subscribe
has urged
Association,
is
'which
Section
Salve,
Harish
the
are
outside
the
purv i e w
of
the
the
services
rendered
provisions
of
expression
is
the
potential
Act ,
medical
service
all
who
has
also been placed on
of
the
definition
of
the
Act.
We
are
'hires'
in
Section
word
commercial
same
sense
'when
such
as
to
avail
of
'avails
services
of
has
of
the Act.
Indian
Medical
the
expression
to
contained
practi tioriers
covered
urged
k i nd
the
not
wi thin
the
that
and
open
and
thereof.
In
this
context,
word
'consumer'
unable
of'
are
contained
in
this
uphold
Section
(ii)
2(1)(d)
The
used
the
evident
from
in
latter
been
the
to
contention.
would be
of'
wjiich
reliance
has
availed
1 aw
available
2(1) (d) (ii)
as
the
in sub-clause
'hires'
to
said
type
enterprise
the
the
service
of
in
are
institutional
an
medical
by
of
users’
be
t o
He
i nd i cat i ve
really
seek
regard
to
is
a
having
Ac t .
namely,
contemplates,
for
Pari i a m e n t
by
contemplated
the
of
2(1)(o)
the
appearing
that
available
made
view
to
practitioners are not covered by Section 2(1)(o)
Shri
the
to
bel o n 9
and
Act
to
practitioners
medi cal
because
merely
that
unable
therefore,
are ,
We
in
the
words
part
of
-:23 : -
Section 2(1)(d)(ii).
the
after
Act
the
' h ires'
word
The
of'.
:
has
Bl_ack’_s
'user'
in
been used
'use'
6th
the
expression
potential
users'
in
the
2(1)(o)
to
of
has
'availing
it
users'
services
rendered
contemplated
by
cannot.,
by
implicit
of
available
'service'
regard
and,
to
The
the
to
Section
in
definition
if so construed,
it
therefore,
be
inferred
that
the
practitioners
are
not
within
the
medical
to
as contained
of
expression
of
was
use
Salve
Section 2(1)(g)
'avails
the
Harish
the
as
1541].
made
is
that
oneself of'.
p.
at
the
From
Parliament
expression 'service'
definition
having
services',
'potential
Shri
definition
construed
of
'to avail
'which
in Section 2 (1) ( d ) (i i )
'consumer'
means
be
what
Edn.,
by
indicated
same sense
clarifies
also means
in
word
2(1) (d) (i i)
clearly
in the
only
Diet i.onary,
Law
has
of'
avails
'or
words
Section
Parliament
amendment
said
The word
earlier.
[See
1993,
of
the
inserting
'hires'
word
Amendment
By
has
be
covered
of
the
word
in Section 2(l)(o).
also
placed
'deficiency'
the Act which provides as
reliance
as
on
the
contained
follows
:
in
- : 24 : -
:
"deficiency" means any fault,
"Section 2(1)(g))
shortcoming
or inadequacy i n the
imperfection, «
and
manner
of
performance which i s
quality, nature
r e q u i red t 0 b e maintains d by or under any law for
the time be i ng in force or has been u ndertaken to
be perfor ni e d by a person in pursuance o f a contract
or oLherw i $e i n relation to any service
The
clause
the
with
deficiency
or
shortcoming
Shri
of
submission
inadequacy
in
under
Salve
is
regard
to
fault,
respect
of
a
that
the
said
imperfection,
service
to
be
relating
to
lias
on
the
basis
of
certain
quality,
nature
and
mariner
of
performance
and
services
rendered by
medical
practitioner
cannot
be
judged
and,
therefore,
a
medical
have
been
ascertained
on
the
any
of
basis
a
fixed
norms
cannot
be
said
expression
"service"
as
defined
unable
agree.
practitioner
to
provisions of
While
the Act
relevant
it would be
in
2(1)(o).
Section
construing
covered
the
scope
by
the
We
are
of
the
in service
to take note of the provisions contained
of
the
be
granted
a
complaint
of
defic iency
in
in
medical
that
the context of deficiency
in Section 14
on
to
norms
Act which
indicate
filed
service,
the
under
the
the
reliefs
Act.
following
In
re1 i e f
that
can
respect
can
ue
granted :
i)
return of
the charges paid by
the complainant.
[Clause c) )
- : 25 : -
payment of such amount as may be awarded as compensation
ii)
the
consumer
for
any
consumer
due
to
the
negligence
of
the
defects
to
injury
suffered
by
of
opposite
party.
or
the
I. lie
(d) ]
[Clause
removal
iii)
loss
services
Section 14(1)(d)
the compensation
by
the
A
determination
would,
therefore,
is
for loss or
to be awarded
consumer due
i
negligence of
the
to
about
in
deficiency
of Section 2(1)(g)
has,
same
is
applied
i n
an
The
standard
of
car»
test
as
negli gence.
medical
th er e fore,
practitioners
direction
to
the
jury
Management Committee,
the
House
v.
J orda.n >
of
Lords
1981
Regional
Health
Governors
of
as
in
(1)
Bethlem
that
opposite
party.
the
purpose
for
damages
for
wh i cti
is
required
from
by
McNai r
in
his
582,
of
WLR
246;
Maynard
1984
injury suffered
for
act ion
number
Royal
indicate
the
a
Authority,
the
to be mad e by applying
B o 1 am
1 WLR
the
service
d own
1 aid
in
(1957)
in
deficiencies
(e) ]
[Clause
in question.
or
Fr i e rn
v .
has
Hospital,
been
[See
cases.
(1)
v.
WLR
J .
accepted
by
:
Whi tehouse
West
Mi.dl_and.s_,
634 ;
1985
Hosp i t a 1
AC
Sidaway
v.
871],
In
: 26 :
Bolan
(supra)
McNair J has
said
:
"But where you get a situation which involves the
use of some special skill or competence, then the
test as to whether there has been negligence or not
is not the lest of the roan on the top of a Clapham
omnibus, because he has not got this special skill.
The test is
lhe standard of the ordinary skilled
man exercising and professing to have that special
skill.
A man need not possess the highest expert
skill;
it is well
established law that
it
is
sufficient if he exercises the ordinary skill of an
ordinary competent man exercising that particular
art." [p.586]
In
an
action
for
negligence
in
tort
surgeon this Court,
in Laxman Balak r.ishna J_oshi
B.apu Godboje S A nr. ,
1969
(1)
SCR 206,
against
v.
a
T r ijsbak
has held:
”The duties which a doctor owes to his patient are
clear.
A person who hold, s himself out ready to
give medical advice arid treatment
impliedly
undertakes that
he
is possessed
of
skill
and
knowledge for the purpose.
Such a person when
consulted by a patient owes him certain duties,
viz., a duty of care in deciding whether to
undertake the case, a duty of care in deciding what
treatment to give or a duty of
care
in the
administration of that treatment.
A bread) of any
of those duties gives a right of action for
negligence to the patient.
The practitioner must
bring to his task a reasonable degree of skill and
knowledge and must exercise a reasonable degree of
care.
Neither the very highest nor a very low
degree of care and competence judged in the light
of the particular circumstances of each case
is
what the law require. [p . 213 ]
It
therefore,
is,
view
of
the
definition
tion
2(1) (g)
medical
excluded
by
the
from
possible
not
"deficiency”
of
practitioners
the
of
ambit
Another contention that
for
appearing
counsel
the
practitioners
treated
be
must
of
the National
Commission
the
the
professio
Forum,
is such that
may
which
issues
been
the ambit of
District
complex
the
has
medical
from
composition
ciate
in
in
Sec
to
be
service
rendered
urged
learned
is not covered under Section 2(1)(o).
them
cal
that
contained
as
and
Act
hold
to
the
by
exclude
to
is
the Act
State
medi
that
the
Commission
and
they cannot
fully appre
for
determination
arise
i
and
bodies
for
able
for
arise
in
the
determination
respect
of
of
claims
to
the
contained
in
Section
President
of
the
that
issues
is
before
negligence
of
111 e
of
Act
which
a
person
Forum
shall
them
in
these
is
not
suit-
the
be
respect
of
the
T fi e p r o v i s i ons
practitioners.
composition
10
by
followed
the complicated questions which
for
rendered by medical
regard
been or
procedure
the de te rmination of
serv i ces
with
that
further
Forum
are
provides
that
the
w 11 o
who
has
the other
two
District
is qualified to be a District Judge and
is
or
- : 28 : -
members shall
having
oi’
knowledge
in deal i ng
with,
problems
is
regard
to
the
provided
in
Section
the
Commiss i on
Judge
of
a
consultation
that
the
integrity
with
other
and
relating
to
economics,
having
shown
woman.
The composition of
Judge
of
the
State
of
the
commerce,
Supreme
a
person
Court
to
be
be
of
been
has
in
Court
and
of
ability,
or
experi
with,
problems
accountancy,
industry,
of
shall
them
Commission
four other members shall
be
a
is governed
the President of
or
who
I
has
been
appointed
by
the
Central
who
is
Government after consultation with the Chief Justice of
and
a
Government
High
deal .ng
the Act which provides that
shall
President
knowledge
and one
the National
it
persons
be
in
Commission,
who
or
or
affairs
Similarly,
the
the
adequate
administration,
affairs
Commission
by
capacity
law,
public
the
is
shall
having
by Section 20 of
who
members
or
or
per son
Justice
standing,
State
that
Chief
of,
ence
a
economics,
be a woman.
the
shown
having
pu b 1 i c
Act
appointed
the
two
t0
the
of
16
be
Court
High
0f
composition
shall
relat 1 ng
Lhem shall
administration and one of
with
or
industry,
standing,
and
or ,
experience
accounta ricy,
commerce,
integrity
ability,
of
persons
adequate
capacity
law,
be
be persons of ability,
a
India
integrity
- : 29 : -
standing
and
having
adequate
having
capacity
shown
dealing
in
economics,
law,
affairs
or
administration
It
thus
will
Forum
commerce,
seen
be
with,
or
experience
problems
accountancy,
shall
them
State Commission
is
r e q u i red
to be
a person who
of
the
High
Court
and
Nati onal
Comm i s s i on
is
required
has
been
a
the
the
Consumer
Disputes
is
who
person
of
cial
or
that
in case
the
majority
is
to prevail
be
out-voted
by
the
legal
experience.
is
there
in
law
It
other
and,
wf11
doubt
as
true
that
the
who
means
that
all
which
has
headed
are
considerable
the
therefore,
and
should have
decisions
the State Commission and
is o r
opinion,
in dealing with problems
is no
person who
of
experience
members
the
been
that
the
of
however,
quirement
District
is or who has
has,
members
woman.
President
Agencies
and
difference
a
President
the
Court,
Redressal
versed
well
the
a
to be
Supreme
be
the
and
Judge
public
0f
Judge
Judge
to
is
District
the
relating
is or who has been or
a
been
or
the
of
be
to
I
of,
industry,
President
the
that
of
one
and
to be a person who
is required
quali f i e d
knowledge
the
that
judi
submitted
opinion
the
no
re
knowledge
or
is
District Forum
the National
of
may
relating to medicine.
of
a
President
there
adequate
by
It
as
Commission have
-:30 : -
to be
taken by
the Preside n't may be
that
person well
versed
on
the
sions.
As
member
having
ing
and
majority
regards
absence
the
the problems
the
persons
to
knowledge
relating
be
disputes
consonance
members
field
the
to
must
have
stated
that
to
have
as
are
members
I
complaint
required
of
interests
situations.
before
up
of
them
the
knowledge
goods
services,
made,
At
one
or
are
time
related
there
purpose
and
the
of
adequate
is
be
dealing
object
the
with
requirement
the
which
a
relating to
coming
the
with
about
may
said knowledge and experience would enable
consumer
deci
in
it
and
protection
viz.,
Act,
their
in dealing with problems
connected
fields
bear
experience
to medicine
chosen
knowledge and experience
or
and
a
requirement
a
of
have
will
Agencies
these
some cases
in
the presence of a
But
President
of
with
various
the
deliberations
adequate
possible
in minority.
law as
in
may be
it
consumers.
to handle
for
settlement
To say
or
experience
in
respect
would
lead
be
two
will
The
them
Act.
to
that
of
the
in
the
in
Lhe
the
which
impossible
members
in
the
District Forum and they would have knowledge or experience in
two
fields
goods
or
which
services
would
mean
relating
to
that
complaints
other
fields
in
would
respect
be
of
beyond
- :31 : -
the
of
purview
Commission
there
ence
in
the
District
mean
that
fields
District
the
may
other
Forum
the
purview
of
the
State
respect
of
the
Act may
than
the
goods
Forum can
services
members
have
District
in
be
fields
relate
of
have expertise
services
in
respect
complaint
Commission.
National
the
to number of
in
parties
knowledge
and
fields
indicated
their
findings
therefore,
and
to deal
be
in
on
said
Redressal
experience
with
the
the
it cannot be expected
that
Agencies
must
that
It will
related.
would
of
since
medicine,
issues which may
members
will
enable
them
th e
Agencies
in
are
the
bas i
or
fi led under
led.
Act
the
goods
the good
the
o u ts i de
t he
to which
which
the
Since
field
place
w fi i c h
position
Redressal
to
would
the
Dispute
the
of
be
will
Commission.
experi-
It
of
be
Consumer
experience
fields
edge
Same
will
State
members
the
experience;
respect of which complaint
Disputes
n which
or
entertain a
the
or
knowledge
respect of which complaint can be
the members
for
having
know!edge
or
the
in
Forum.
and
the
have
in
the
to
of
the
members
not
required
they
arise
al
material.
that
are
cannot,
Consumer
the
to
have
in
a
position
them
in
proceed-
not
before
be
know!-
-:32 : -
i ngs
arising out
ice
rendered by medical
of
making,
White has
Prof.
0f
role
judges
the application of general
notions
that
they act as
and
'some
from
reality'.
are
not
with
experts,
that
danger
the
'Claims
the
other
view,
1 ay
may
be
has
to develop
ihe
of
lay
on
indicated
opportunity
merits
present
whether
be
law
the
to
decision
the
and
too
far
since
they
very
real
a
in
accordance
adjudication
of
seen
as
claimant
is
rules
of
entitlement.
preference
for
a
prof.
a model
and
legal
his
that
resolved
the
as Chairman,
according
Tribunal,
maker’s
on
than
diverge
is
not
in
technicality'
however ,
of
composed of a lawyer,
a
may
One
faith
good
not
rules
based
rather
White
and
does
law
dec ision
dispute
the
prescribed
deserving
Prof.
The
that
decision
to professional
'an antidote against excessive
guarantee
in
standards of conduct,
fairness
reasonableness,
of
persons
adjudicators are superior
that lay
their
lay
serv
in
two divergent views.
referred t 0
view hoi ds
in
deficiency
practitioners.
the
Di scuss i ng
the
about
complaints
of
making
and
Tribunal
two lay members.
White,
would
adjudication
with
legal
Such
present
that
an
combines
competence
and
- : 33 :
participation
confidence
social
experience
White
says
that
key
role of
do
not
before
them
process
designed
Robin
are
C.A.
p.
Edition,
the
process
and
represented by
the
decision
makers.
of
not
reduced
:
The
and
the
that
ensure
disputes.
their
Prof.
that
the
procedures
litigants
in
spectators
passive
to
tfie
widen
[See
:
a
Prof.
Administration
of
Justice,
constitution
of
the
2nd
345].
the
State
members
with problems
with
and
mystery
resolve
to
ensuring
in
public
experience,
of
breadth
would be
matter
interests of
and
and
the
compete nee
having
relating
object
of
Commission
Act combines with legal
making by
their
from
full
White
In
Forum,
qene 'a1
tc
the
apart
too
lead
of
lay members
become
would
fairness
the
in
members
lay
of
to
National
and
various
fields
of
Commission
the
the merits of lay decision
knowledge
purpose
District
the
experience
which
Act,
are
namely,
in
dealing
connected
protection
the consumers.
Moreover,
t he r e
is
a
further
safeguard
of
an
against
State
Commission
to
Commission
order
the
appeal
and
cannot,
Disputes
Consumer
them
therefore,
As
in
agencies
for
proceed
the
is
it
to
to
Commission.
composition
of
such
render
service
in
Slate
further appeal
to
as
the
arising
in
a
rendered
by
a
issues
on
settle
the
opposite
party,
where
determination of
it
may
the
brought
that
his
case
within
the
notice
by
opposite
issues
coming
that
under
Section
(i)
Forum
on
the
party
denies
shall
basis
of
and
the
complainant
the
these
the
District
disputes
or
disputes
in
thu
complaint,
or
(ii)
to
it?)
notice
by
the
complainant
where the opposite party omits or
represent
stated
be
consumer
contained
evidence
followed by
to be
of
its
to
allegations
procedure
provided
brought
of
the
matter
evidence
basis
is
deficiency
regards
iconsideration
13(2)(b),
the
Agencies
the
the
practitioner.
medical
up
the
adjudicating
regarding
complaint
that
said
Redressal
for
unsuitable
by
made
Commission and a
be
to
Forum
the order made by the National
this Court against
It
District
order
the
against
the National
Lhe
by
made
the
fails
tVoe
to
given
on
take any action
by
the
Forum.
the
to
In
- : 35:-
Section
13(4)
of
District
Forum
shall
the
civil
trying a suit
it
is
have
the
same
under
court
further
Act
the
the
Code
in respect of
powers
of
provided
are
as
that
the
vested
in
procedure
Civil
while
following matters:
the
the summoning and e n forcing attendance of
and examining
any
defendant
o r w i tness
the witness on o a th;
the discover y
and p r o d u c t i o n of any
document or other mate i i a 1 object
producible as ev i dene e;
the
The
issuing
of
any
commission
examination of any witness and
(vi)
any other
same
provisions
Commission
that
evidence on affidavits;
the
requisitioning of the report of the
concerned
analysis or test from- the
appropriate laboratory
or from arty other
relevant source;
(iv)
( v )
reception of
and
the
proceedings
rendering
complicated
services
for
the
(
matter which may be prescribed."
apply
to
proceedings
before
the
State
National
Commission.
It
lias
been
involving
negligence
in
the
matter
by
questions
a
medical
requiring
practitioner
evidence
of
would
experts
urged
of
raise
to
be
-:36 : -
recorded
and
of
determination
in
for
not suitable
is
no
that
complaint
about deficiency
in
but
deficiency
about
practitioner.
complicated
may
be
questions
and
the
removal
the
wrong
the patient
the
is
swabs
One
or
may
a
in
arise
by
a
in
all
complaints
services
by
a
which
do
not
raise
deficiency
in
service
not
be
so
of
other
the performance of
an
injection of
a
drug
looking
the
giving
or
allergic without
1
(1967)
course
questions
services
cases
limb or
patient
card containing the
M_al.axsja,
It
of
medical
medical
such
may
be
faults which can be easily established such as
the wrong
of
is
questions.
complicated
experts
and
ground
rendering
in
summary
affidavits
of
for
the
medical
would
is
Act
the
in service based on
There
due to obvious
on
this
followed
is
complicated
of
evidence
rendering
practitioner;
under
sometimes
recording
of
which
basis
determination of
requiring
negligence
the
on
trial
true
doubt
disputes
consumer
involving
nature
procedure
the
that
an
warning
WLR
813
[as
P.C.)
anesthetic
items
of
or
in Ch.inkeow
or
use
of
leaving
operating
often reads about such
Into
Incidents
v.
in
to
which
patient
out
Government
wrong
inside
equipment
operation
of
gas
during
the
patient
after
surgery.
the newspapers.
The
- ; 37 : -
Issues
i rr
the
speedily disposed of
by
by
arising
Consumer
the
should
Act.
In
not
be
of
asked
approach
Section 3
the
Act
of
the
AcL
shall
be
in
other
preserves
the
right
of
court
for; necessary
hold
that
on
the
for
appropriate
relief.
to
the
wh i c h
is
determining
the
issues
of
arising
the
medical
included
in
the
expression
2
of
the Act.
the
force,
approach
the
civil
of
on
the
the
said
before
of
in
c o m p o s i t ion
by
be
being
therefore,
are,
or
provisions
in derogation of
to
consumer
We
the
time
the
for
follow ad
rendered by
Lhat
and not
Age n ci e s
procedure
(1) (o)
court
r e1 i a f.
Red ressal
Disputes
can
law
ground
requiring
issues
complainant
addition
any
the
the
which prescribes
of
in such
under
Agencies
no
experts,
civil
provisions
is
there
in service
the
by
be
followed
being
and
complicated
involving
the
of
is
that
Agencies
Redressal
adjudicated
evidence
recording
procedure
can
cases
such
in
regarding deficiency
complaints
to
the
Disputes
reason why complaints
cases
complaints
unable
the
to
Consumer
ground
of
the
Agencies
for
them,
the
service
intended
practitioners
are
not
’service’
as
defined
in
to
be
Section
- : 38 : -
in
Keeping
as
(supra),
the
of
2 (1)(o)
in Lucknow Development
ftuthpri ty
we find no plausible
that part so as to exclude
practitioner
amplitude
wide
in the main part of Section
this Court
construed by
the
view
'service'
of
definition
I
reason to cut down the
width of
the services rendeied by
a medical
the main
part
of
may now proceed to consider
the
exclusionary
the
from
ambit
of
Section
2(1) (o).
We
part of the definition to see whether such service
ed by the said part.
main part service
The exclusionary part
rendered
a contract of' personal
practitioner
medical
confidence and,
of
practitioner
2(1)(o)
the
well
therefore,
trust
of
and
contract
rendered by
the
medical
'service'
under
Section
contention of Shri
Salve
ignores
to the patient
is
is not
the Act.
This
recognised
distinction
and
is
in the nature of a
it
between
a
'contract
for services'.
of England,
4th Edn.,
Vol.
service'
Laws
of
under
(ii)
relationship between
and the patient
service and the service
personal
or
service.
Shri Salve has urged that the
a
excludes from the
free of charge;
(i)
is exclud
16,
a
[See
para 501;
'contract
:
of.
Halsbury’s
Pharanoadhara
-:39 : -
Works Ltd.,
Chemi pal
p.
A
157].
whereby
party
control
and
uses
to
undertakes
or technical
performance of which he
and
services'
'contract for
one
professional
£tate of Saurashtra.
v.
services,
to detailed
p.
A
1134].
in the work
to obey orders
manner
of
(1910)
1 K.B.
543 ;
p.
159].
We
54 0;
entertain
this well
chosen
instead
the expression
exclusionary
2(l)(o).
The
reason
employee
skill
:
Oxford
implies
to
its mode
:
Stroud's
Judicial
v.
Hq a Qi
Laundry Cp.
(supra)
Works
that
Parliamentary
accepted distinction between
'contract
for services"
'contract
and
of
has
service'
for services’ ,
part of the definition o f
regarded as a consumer
his
doubt
the expression
deliberately
of
Simmons
no
the
involves an obligation
See
service” and "contract
of
[See
and Dharangadhara Chemical
draftsman was aware of
"contract
p.
in
technical
to be performed and as
[
e.g.
direction
'contract of service'
performance.
5th Edn.,
Dictionary,
at
or
professional
relationship of master and servant and
and
services
his own knowledge and discretion.
Companion to Law,
contract
to or for another
is not subject
but exercises
a'
implies
render
152 at
1957 SCR
in
’ service'
in
cannot
the
Section
that
an
employer
in respect of
the
services rendered by
being
in pursuance of a contract of
employment.
be
By
- : 40 : -
the adjective
affixing
nature
to the word "service"
'personal'
the contracts which are excluded is
of
said adjective only emphasizes that what
The
excluded is personal
of
personal
2(1)(o)
service"
must,
services
service only.
construed
be
by an employee
rendered
altered.
be
is sought to
"contract
The expression
in the exclusionary
therefore,
not
the
part
as
of
Section
the
excluding
to his employer
under
the
l
contract of personal
service
from the ambit of
theiexpression
"se rv i ce’-.-p
It
a
is no doubt true
practitioner
medical
certain degree of mutual
the
services
that
and a
the
patient
relationship
within
carries
confidence and trust and,
regarded as services of personal
it
therefore,
practitioner
rendered by the medical
between
can
nature but since there
be
is no
relationship of master and servant between the doctor and the
patient the contract between the medical
patient
cannot be
practitioner and his!
treated as a contract of personal
but
is a contract for services and the service
the
medical
contract
definition
Act.
not
of
rendered
by
patient
under
covered by the exclusionary
part
of
the
contained in Section 2(1) (o)
of
the
practitioner
is
service
'service'
to
his
such
a
- : 41: -
expression 'contract of personal
the
Section
of domestic servants only.
known legal
of the
connotation and has been construed
right
agents of a company and a professor
The High Commissioner
R.
L.
77
I.A.128;
there
for India v.
and D r,
servant,
I■M . U a1 1 ,
Satya Charan Law,
(1949 )
S . B . Pu11 v.
the person availing his services
event
the
services rendered by the doctor
would
be
excluded
under Section 2(1)(o)
exclusionary clause
services
purview
the-
of
to
a
and
in
his
employer
that
expression
the
of the Act by virtue of
the
in the said definition.
other part of exclusionary clause
rendered
service
between-
servant
and
Pel hi.
of
Uni ver;ity
There can be a contract of personal
from
[See
L.R.
is relationship of master and
The
managing
(1948)
doctor
'service'
the
in the University.
Ram K issendas D h a n u k a v .
1959 SCR 1236].
if
in the context
For that purpose a contract of personal
service has been held to cover a civil
7 5 I . A . 225 ;
well
to seek enforcement of such a contract under the
Specific Relief Act.
:
this
a
has
service’
in
employment
find any meri't in
We do not
expression ’personal
The
that
contained
service’
of the Act has to be confined to
2s( 1) (o)
submission.
submitted
however,
Rajeev Dhavan has,
Shri
"free
of
charge".
relates
The
to
medical
: ^2 :
practitioners.
Government hospitais/nursing homes and private
hospitais/nursing
homes
hospitals") broadly fall
called
(hereinafter
in three categories
where services are rendered free of charge to
everybody availing the said services.
ii)
where charges are required to be paid by
everybody availing the services and
iii)
where charges are required to be paid by
persons availing services but certain
categories of persons who cannot afford to
pay are rendered service free of charges.-
is no difficulty
in respect of
Doctors and hospita.ls who render service
whatsoever
to
every person availing
fall
within the ambit of "service"
the
Act.
The payment of a token
and
concerned,
hospitals.
the service
would
not
under Section 2(1); (o)
of
amount
2(1)
(o)
of the Act.
for
in respect of such
is rendered on payment basis
to
second
within the ambit
The third category of
and hospitals do provide free service to some of
belonging
registration
is
the
the persons they would clearly fall
Section
charge
category
So far as
since the service
categories.
without any
purposes only would not alter the position
doctors
two
first
and
:-
i)
There
all
"doctors
to the poor class but the bulk of
the
of
doctors
the patients
service
is
- : 43 : to
rendered
the
rendered
service
paying
by such doctors and
service
rendered
patients
undoubtedly
(o)
the
to
expenses
The
the
income
patients.
The
free service are met out of
incurred for providing
from
basis.
the patients on payment
hospitals
to
paying
within the ambit of
Section1
2(1)
The question for our consideration
is whether
the
fall
of the Act.
service rendered to patients fee of charge by the doctors and
hospitals
in
(iii)
category
opinion the question has to be answered
this context
is necessary to bear
it
been enacted "to provide
o f "co rpju in e r s"
in
the
for
Consumer
In
our
in the negative.
In
virtue
the Act.
of
in mind that the Act has
the protection of
the background of
in
the
(o)
in Section 2(1)
clause
exclusionary
of
is excluded by
Protect!-on
the
interests
the guidelines
contained
passed
Resolution
the
by
i
U.N.Ge neral
Assembly
on April
9,
1985.
• These
guidelines
refer
to "achieving or maintaining adequate
their
population as consumers" and "encouraging high
of
ethical
distribution
protection
tection
for
conduct for
those engaged
in the
of goods and services to the
that
is envisaged by
consumers
the Act
as a class.
The
is,
protection
for
levels
protection
and
consumers".
The
therefore,
pro
word
"users"
(in
-:44 : plural),
of
in the phrase
'potential
the Act also gives an
of
Section
of the Act which
(c)
12 which enable a complaint to be filed
by
any
protect the
and clauses
association or one
for
the
also lend support
interested,
to
or
of
behalf
to
protection
would
only
though they are
of
all
consumers
the view
that
the Act
those who can afford
be denied to
so
seeks
To
hold
the Act would
to
and
pay
those who cannot
so
be
such
afford,
the people who need the protection more.
to conceive
difficult
interest,
of consumers as a class.
interests
available
consumers
having the same
benefit
to
more
or
otherwise would mean that the protection of
is
(ii),
and
where there are numerous consumers,
on
under clause
includes,
(b)
consumer
recognised
(o)
contained
'complainant'
voluntary consumer association,
any
in Section 2(1)
indication that consumers as a class
The definition of
are contemplated.
in Section 2(b)
users'
that
the legislature
It
intended
to
such
a result.
Another consequence of
adopting
a
i
construction, which would restrict the piotection of the
Act
achieve
to persons who can afford
them
and
deny
to pay
for the services availed
by
in
a
such protection to
position to pay for such services,
and
quality
of service
those who are
would be
rendered at an
not
that the standard
establishment
would
- : 45: cease to be uniform.
It would be of a higher standard and of
in a position to pay
quality for persons who are
better
such
service while the standard and quality of such
would
be
inferior for person who cannot afford to
such service and who avail
a
the service without payment.
who
avail
the services by doctors
category
(iii),
are
required to be
the
footing
irrespective of
service
and others avail
the
fact
free of charge.
the same
who are not
hospitals
overall
Act
may
in a position to bear
it
would
rendered to paying patients.
not
be
and
the
charge
to
charges
are
hospitals
The
Government
the objectives and the scheme of
the
possible
to
treat
situation
the
belonging to "poor
which
of
the
We are of
provided services
same
and
in that sense
differently.
persons
in
on
not be commercial
hospitals
service
the
income earned by such doctors
consideration of
per
Most
lines
patients
services
Such
that some of them pay for the
incurred for providing services free of
from
the
on
treated
expenses
out of the
All
for
hospitals
and
doctors and hospitals work on commercial
met
service
pay
consequence would defeat the object of the Act.
sons
for
free of charge are
but
Government
the
the view that
in
class"
such
who
the beneficiaries of
is hired or availed of by the "paying
a
are
the
class".
,
: ^6 :
are,
We
therefore,
doctors
the
of charge,
the
expression "service” as defined
the
Act.
who
are
the "beneficiaries" and
as
such
within the definition of "consumer" under Section
2(1)
free
service are
of the Act.
the hospitais/nursing homes
falling
in category
rendered free of charge
are
services,
the service
charge,
does not
fall
service would fall
Dhavan
being
where
availing
that
even
free
of
within the ambit of Section 2(1)(o)
of
is
concerned,
'the
within the ambit of Section 2(1) (o)
is rendered by a medical
is not
(Govern
i . e. ,
(i),
everybody
rendered at the hospital,
in so far as the hospital
Act
to
it has been urged by Shri
though
who
of
the view that persons
We are further of
services
it
within the ambit
of
ment and non-Governmerit)
the
is rendered
(o)
In respect of
the
fall
(iii)
category
in Section 2(1)
rendered
(d)
would nevertheless
by
rendered
the fact that part of the service
free
cone
in
falling
hospitals
and
irrespective of
opinion that service
of
officer employed
rendering the service
said medical
officer
employment
in the hospital.
in t,he
said
since
hospital
free of charge because
the
receives emoluments by way of salary for
"[here
is no merit
in this
con-
J.
tention. : The medical
officer
who
is employed
in the hospital
-^Vi
renders
and
if
fall
within
the service,
as
rendered by the hospital,
the ambit of Section 2(1)
(o),
Section 2(1) (o)
for
in
officer
medical
employment
reason that
the hospital
in the hospital.
payment
hospital
the
the salary
of
administration
The
rendered.
administration
salary
to
There
service or
who
receives
is
officer
medical
paid
of
rendered to him.
medical
continue
to be service
outside
the
service
is
officer
hospital
cannot
be
the person availing the
to make
the person
The service
availing
in respect
rendered
officer to such a person would,
employee
by
the
by
the service a "consumer" under Section 2(1)(d)
service
for
is no direct nexus between
the employee medical
for his benefit so as
of
under
salary
and the person to whom
regarded as payment made on behalf
the
free
being
it has been rendered by a
to the
that
not
does
the same service cannot be treated as service
charge,
the
administration
the service on behalf of the hospital
by
of
the
therefore,
rendered free of charge and would
be
the purview of Section 2(1) (o) .
A contention has also been raised that even in the
centres/dispens aries where
Government
hospitais/health
ices
rendered free of charge
are
provisions
of
the Act shall
to all
the
apply because the
patients
expenses
serv
the
.of
- : 48:-
running the said hospitals are met by appropriation
Consolidated Fund which
We Jo not
tax payers.
The
(i)
it
payer's
is
the
characteristics of a tax
are
that
without
the
tax
consent and the payment is enforced by law;
b e n e f it
and
it
(iii)
Endowments ,
t o b e conferred on
[See
Madras v ■
Mutt,
the common burden,
Sri
the
upon
his
Hindu
The
R e1i g i o us
r of
Sri
tax paid
by
Government
a
tax'
of
1akshmindra Thi rtha Swam i
1954 SCR 1005 at pp. 104 0- 41 ],
the
hospital
cannot be treated as a consideration or charge for the
ice
rendered
rendered
at the said hospital
free of charge does not cease
person availing
the service happens
Adverting
serving
tors
and such
to
working
in
the
though
the
tax payer.
doctors employed
and
we are of the view that such
doc
the
in the hospitals,
service
serv
to be so because
to be a
to
quantum
generally
The Commissioner,
:
availing the service at
person
the payer o f
the tax payer depends
to pay.
it
(ii)
for public purpose w i thout reference
is part of
upon
imposition
the
taxes paid by
raised from the
imposed under statutory power
any special
Sh i r u r
the
agree.
essential
is an imposition made
capacity
is
from
individual
hospitals/nursing
whether Government or private - belonging
homes/dispensaries/
to categories
(i i)
- : 49 : -
(iii)
and
above would be covered by the definition of
"serv
ice" under the Act and as such are amenable to the provisions
of
the Act along with the management of
etc.
hospital,
the
jointly‘and severally.
There
however,
may,
an insurance policy
taken
charges for consultation,
by the
borne
under
for
the
In such a case
is a beneficiary of
the medical
which would be made by
insurance policy.
the
the
practitioner,
insurance
practitioner cannot be said to be free of
and would,
therefore,
'service'
in Section 2(1)
be
where as a part of
cases
employer
bears
within the ambit of
the Act.
of
the conditions of
the expense of medical
of
to him by a medical
charge
and would,
Section 2(1)
the
company
charge
the expression
So also there
the
the
em
The
service
practitioner would not be
therefore,
constitute
may,
service
treatment of
ployee and hie family members dependent on him.
rendered
person
rendering of such 'service by
The
(o)
the
the service which
the medical
fall
all
has
treatment are
diagnosis and medical
rendered to him by
been
payment
for roedi-care whereunder
insurance company.
receiving the treatment
has
be a case where a person
service
free
under'
(.o') .
Shri
A.M.Singhvi has
invited our attention to
the
- : 50 : -
in Wh i tehouse
following observations of Lord Denning M.R.
Jordan & Anr . ,
(1980)
1 All.E.R.
650
v.
:
"Take
heed
of
what has happened
in
the
United
States.
'Medical malpractice' cases there are very
worrying,
especially as they are tried
by
juries
who have sympathy for the patient and none for
the
doctor, who is insured.
The damages are
colossal.
The
doctors
insure but the premiums
become
very
high
: and these have to be passed on in
fees
to
the patients.
Experienced practitioners are
known
to have refused to treat patients for fear of being
accused of negligence.
Young men are even deterred
from
entering the profession because of the
risks
involved.
In the interests of all, we must
avoid
such
consequences
in England.
Not only
must
we
avoid
excessive
damages.
We must
say,
and
say
firmly,
that, in a professional man, an
error
of
judgment is not negligent." [p.658]
Relying
on these observations
learned counsel
has
if
practitioners
are
painted
a
brought
within the purview of
be
huge
grim picture
increase
in
that
medical
the Act
medical
the consequence
expenditure
on
account
as
medicine and that medical
practitioners may refuse
to
and
medical
against
blackmail.
it
observations
of
attend
no
safeguards
and vexatious complaints
and
consequent
will
We do not entertain such an apprehension.
place,
first
to
be
emergencies
frivolous
there
increase
of
in defensive
insurance charges as well
tremendous
would
may
be
stated
that
Lord Denning were made
the
in
In the
aforementioned
the
context
of
51
I
of
holding that medical
for compensation on
principles which apply
the
claim before the civil
before
disputes
under
the Act.
speedy remedy
study of
Court,
reported
law
the ground of negligence
to determination of
Disputes
such
apply to
consumer
Redressal
Agencies
and
relating
number.
[See
and
:
Galanter
reveals
in the All
that a total (number of
the High
Courts
India Reporter,
out
I
and
this
of
which
the
a.nd
to medical
malpractice were
only
three
llpendra Baxi
and Thornes Paul,
Mass
Disasters
Case,
pp.
214-218] .
Multinational
One of
a
An analytical
360 cases related to claims under the Motor Vehicles Act
cases
a
India during the period from 1975
were decided by
cases
as
in
By
substantive
for adjudication of such claims.
tort litigation
tort
in the
The Act only provides an inexpensive
to 1985 made by Prof.
416
appeal,
within the purview of
court would equally
the .Consumer
in
of
All. E.R. '267].
(1)
practitioners fall
no change is brought about
AcL
governing claims
and
1981
:
[See
the
error
"an
is not negligent" has not been approved,
the House of Lords.
the
There too
in the said observations that
sentence
judgment
by
practitioners.
negligence against medical
last
ground
law governing actions for damages on tha
substantive
factors
Liability,
The Bhopal
inhibiting such claims
is the
in
requirement
: 52
regarding court
court
the
fee
Act
injury
that must be paid by
the plaintiff
damages on the ground of negligence.
for
action
fee
:
in
an
Since
'flo
is required to be paid on a complaint filed
it would be possible
due
to
for persons who
in service
have
und^fr
suffere.d
by
medica^l
practitioners or at hospitals/nursing homes to seek
(redress.
The
conditions
deficiency
prevailing in India
compared with those
As
malpractice
said
in England and
regards
litigation by
the
rendered
cannot,
therefore,
be
in the United States.
criticism
of
the
the British judiciary
American
it has
:
"Discussion of these important issues is
sometimes
clouded
by an over-simplistic
comparison
between
England
and
American
"malpractice"
litigation.
Professor
Miller
noted in 1986
that
malpractice
claims were brought in the United States nearly
10
times as often as in England, and that this is
due
to
a
complex combination
of
factors,
including
cultural
differences,
judicial
attitud.es,
differences in the legal system and the rules about
costs.
She
points
to
the
deterrent
value
of
malpractice
litigation
and
resent
some
of
the
criticisms of the American system expressed by
the
British
judiciary.
Interestingly,
in
1989
the
number of medical negligence claims and the size q f
medical
malpractice insurance premiums started
to
fall in New York, California and many other states.
It
is
thought
that
this
is
due
in
part
to
legislation in a number of states limiting
medical
malpractice claims, an in part to improved
patient
care as a result of litigation."
been
53
[Jackson
& PowelVon Professional
Edn., para 6-25, p. 466]
Deali ng
negligence cases
with
the
present
in the United Kingdom
Liability,
state
of
3rd
medical
it has been observed
"Theilegal system, then, is faced with the
classic
problem
of
doing justice to
both
parties.
The
fears of the medical profession must be taken
into
account while the legitimate claims of the
patient
cannot be ignored .
Medical
negligence apart, in practice, the
courts
are increasingly reluctant to interfere in clinical
matters.
What was once perceived as a legal threat
to medicine has disappeared a decade later.
While
the
court
will
accept the absolute
right
of
a
patient to refuse treatment, they will, at the same
time,
refuse to dictate to doctors what
treatment
they should give.
Indeed, the fear could be
that,
if
anything,
the pendulum has swung
too
far
in
favour of therapeutic immunity . "[p . 16]
"It
would
be a mistake to think
of
doctors land
hospitals
as
easy targets
for
the
dissatisfied
patient.
it is still very difficult to
raise
an
action of medical negligence in Britain; some, such
as
the
Association
of
the
Victims
of
Medical
Accidents,
would
say
that
it
is
unacceptably
difficult.
Not
only
are
there
practical
difficulties
in linking the plaintiff's injury
to
medical
treatment,
but the standard
of
care
in
medical
negligence
cases
is
still
effectively
defined
by
the
profession, itself.
All
these
factors,
together
with
the
sheer
expense
of
bringing
legal action an.d the denial of l?gal
aid
to all out the poorest, operate to inhibit
medical
litigation
in a way in which the American
system,
with
its
contingency
fees
and
its
sympathetic
juries, does not.
:
- : 54 : -
It
5s difficult to single out atiy one
cause
for
what increase there has been in the volume
of
medical
negligence actions in the United
Kingdom.
A
common
explanation
is that
there
are,
quite
simply, more medical accidents occurring whether
this
be
due
to increased
pressure
on
hospital
facilities,
to falling standards
of
professional
competence
or,
more
probably,
to
the
everincreasing complexity of therapeutic and diagnostic
me thods." [p. 191 ]
"A
patient
who
has been injured
by
an
act
of
medical
negligence has suffered in a way which
is
recognised by the law - and by the public at
large
as
deserving compensation.
This
loss
may
be
continuing
and what may seem like an unduly
large
award
may
be little more than that
sum
which
is
required to compensate him for such matters as loss
of
future earnings and the future cost of
medical
or nursing care.
To deny a legitimate claim or
to
restrict
arbitrarily
the size of an
award
would
amount to substantial injustice.
After all, there
is ino
difference
in
legal
theory
between
the
plaintiff
injured through medical
negligence
and
the
plaintiff
injured in an industrial
or
motor
accident." [pp. 192-93]
Ethics,
[Mason's Law and Medical
4th Edn.]
4
view
of
Whitehouse
therefore,
We
are,
the
consequences
v.
J o r de n
not persuaded
indicated
(supra)
medical
by
to hold that
in
Denning
in
Lord
practitioners
should
be excluded from the purview of the Act.
On the basis of
the
following conclusions:
the above discussion we arrive
at
- : 55 : -
(1)
rendered to a patient by
Service
practitioner
personal
a contract of
(2)
7 he
the
medical
tiiat medical
fact
disciplinary
both medicinal
of
in Section 2(1)(o)
and are
control
the
India
and/or
under
the provisions of
'service'
the Act.
to
the
Council
of
subject
Medical
Jtrate Medical
the
constituted
Councils
Indian Medical
Council
Act would not exclude the services rendered by
from the ambit of;
(3)
A
services'.
Prom
a
service' has
relationship
master and servant between the patient and
practitioner,
practitioner
tine
to
service
to
rendered by
the patient cannot be
be
personal
for
'contract
the absence of a
In
them
the Act.
'contrapt of -personal
distinguished
and
practitioners belong to
profession
of
under
consul
within the ambit of
would fall
as defined
renders
by Way of
service),
diagnosis and treatment,
surgical,
doctor
the
to every patient or
free of charge
service
tation,
where
(except
medical
a
a
of
medical
medical
regarded
as
I
service
service'.
rendere’d
under a
Suth (service
'contract
is service
of
personal
rendered under a
-:56 : -
'contract for personal
services'
exclusionary
of
by
'service'
clause
in Section 2(1)(o)
'contract of
said
the
medical
service
rendered
the
Service
service
by
a
medical
home
where
charge
to
only
include
to the
employer.
officer
of
to
defined
the
of
The
his
be
in
the Act.
rendered
f r e.-e of charge by a
of a
token amount
the
hosp i t al/nu rs i ng
for
hospital/Nursing
a
service is are
everybody,
medical
hospital/Nursing home or
officer employed in
such
as
'service'
rendered
would not
defined in Section 2(1)(o)
p o s; i t i o n .
service'
for the purpose
medical
practitioner attached to a
a
would
officer
purview of
Section 2(1)(o)
(5)
personal
the contract of employment would
employer under
outside
of the Act.
of domestic servants
expression
employment of a medical
rendering
of
of the Act cannot be confined to
contracts for employment
and
definition
the
in Section 2(1)(o)
contained
The expression
(4)
is not covered
and
of
be
free
of
"service"
as
the Act.
The payment
registration purpose only
homia
would
not
alter
at
the
-157:-
(6)
Service
rendered at a non-Government 1 hospi-
tal/Nursing home' where no charge whatsoever is made
from
person
any
patients
(rich and poor)
the expression
in Section 2(1)(o)
defined
and
service
of
the
'service'
Act.
payment of a token amount for registration
at
only
all
are given free service
is outside the purview of
as
the
availing
The
purpose
the hospita 1/Nursing home would not
alter
the position.
(7)
Service
rendered
non-Government
a
at
hospital/Nursing home where charges are
required to
be paid by the persons availing such services falls
within
the purview of
defined
in Section 2 (1)(o)
(8)
Service
the expression
rendered
of
as
'service'
the Act.
a
at
non-Government
hospital/Nursing home where charges are required
be paid by persons who are
in a position to pay and
afford to
persons
who
service
free of charge would
of
the expression
2(1) (o)
the
cannot
of
service
the Act
to
'service'
fall
pay
are
rendered
within the
as defined
irrespective of
the
in
ambit
Section
fact
is rendered free of charge to
that
persons
- : 58 : -
who are not
Free
in a position to pay for
would
service,
also be
such services.
"service"
and
the
recipient a "consumer" under the Act.
(9)
hospital/ heal th
whatsoever
at
rendered
Service
made
from any person
services and al!
patients
free
is outside
charge
the
availing
(rich and poor)
are given
the purview of
the
ex
as defined in Section 2(1) (o)
pression
'service'
the Act.
The payment of a
tration
Government
centre/dispensary w is ere no
is
service -
a
purpose only at
token amount
of
regis
for
the hospital/nursing
home
would not alter the position.
(10)
Service
hospital/health
are
dered
rendered
centre/dispensarv
a
Government
free of charge
'service'
Act
irrespective of
rendered
such
within the ambit of
the
free of charge
service.
ren
also
to other persons availing such
as defined
sion
services
where
rendered on payment of charges and
services would fall
for
at
expres
the
in Section 2(l)(o)
fact that
the
of
the
service
is
to persons who do not
Free service
would
also
pay
be
-:59 : and the
"service"
a "consumer" under
recipient
the
Act.
Service rendered by a medical
(11)
regarded as service
hospitai/nursing home cannot be
if
rendered free of charge,
care
whereunder
the person availing the
insurance policy for
has taken an
service
the
charges
and medical
insurance
company
and
within the
ambit of
'service'
2 (1) (o)
the Act.
Similarly,
(12)
of
service,
where,
employee
an
not be
would
'service'
In
judgment
of
the
the service
and his
or a
family
under Section 2(1)(o)
of
the National
would
fall
in Section
his
rendered
members
would
of
the conclusions
of
family
to
by
hospita 1/nursing
free of charge and
view
the
expenses
of an employee and
practitioner
medical
as defined
by
as a part of the conditions
members dependent on him,
such
service
the employer bears
treatment
medical
such
medical
consultation,
for
treatment are borne
diagnosis
of
practitioner or
a
home
constitute
the Act.
aforementioned
Commission dated April
21,
1992
the
in
-:60 : -
First
Appeal
Anr.
v.
Smt.
November
48 of 1991
v.
activity
[M/s Cosmopolitan
P.Nair]
and
the
in First Appeal
No.
97 of
Vasantha
1992
16,
Louie & Anr.
the
No.
Smt.
of providing medical
within
the
defined
in Section 2(1)(o)
of
deficiency
any
invoke the
S . L . P . (Civi1)
filed
against the said judgment have
Nos.
to
charge
2(1) (o)
the
under
the
688/93 and
and
1993
351/93
'service'
The Tribunal
patientsavailing services
The
in O.P.
treatment that was given to
has
free
as defined
not
of
considered
in the said nursing
home
any
in Section
question whether services are rendered free of charge
the
having
dismissed.
opposite party was totally
the Act.
the
the complainant in the nursing
it does not constitute
of
service
6950/92
to be
as
event
Forum
in its judgment dated May 3,
deceased husband of
profession
Nos.
Appeal
6885/92,
93/92 has held that since the
belonging
such
the Consumer
and
the
payment
for
remedies provided
689/93
No.
that
in the
must be upheld and Civil
Commission
holding
the Act and that
jurisdiction,
National
Sr.
’service'
by filing a complaint before
Act
[Dr.
the medical
in the performance of
party can
aggrieved
of
&
dated
expression
the
scope of
1991
assistance
carried on by hospitals and members of
falls
judgment
Pathumma & Anr.]
Kannolil
Hospitals
the
to
all
home
or
- : 61: such services are rendered
patients
of
and are
at the nursing home,
Act.
allowed
Appeal
as defined
No.
for consideration
Commission
to be
Ku maraswamy
cal,
practitioner or a hospital
be a
'consumer'
well
21775/94
as Civil
and
judgment of
National
judgment.
Sub raman i 3m
the
both medicinal
services
and surgical,
and
surgi
'service'
diagnosis
cannot be
Appeals Nos.
18445-73/94 have
and
considered
within the meaning of Section 2(1)(d)
Appeals arising out of
in
treatment under a
by way of
the Act cannot be sustained and Civil
as
to
practitioner or a hospital
and a patient who undergoes
both medicinal
the
C.S.
in D r■
not come within' the definition of
would
treatment,
be
holding that
to a patient by a medical
Section 2 (1) (0)
to
(supra),
way of diagnosis and treatment,
medical
therefore,
in the light of this
v.
An r ■
of
remitted to
judgment of the Madras High Court
by
are
in Section 2 (1) (o)
254/94 has,
The
rendered
rest
it cannot be held that the said services
the matter has
and
the
the patients availing services
to all
'service'
Civil
to the
is found that the services
it
Unless
rendered free of charge
the
to some of
rendered on payment of charges
the patients.
do not constitute
free of charge only
of
4664-65/94
S.L . P . (Civi1 )
Nos.
the
said
to be allowed
and
the Madras High Court has to be set aside and the
- : 62: -
writ
petitions disposed of by
dismissed.
The
15,
December
1989
that
services
ered
by
2(1) (o)
the
judgment of
the National
expression
to be
can
18497/93 has to
this
the Kerala High Court dated October 6,
rendered by
State
judgment.
1993
in
the hospitals claiming
that
the hospitals do not
of
the Act.
sion
of
the National
Commission
(supra)
and the pendency of appeal
before
this Court.
in
fall
The said Writ
dismissed by the High Court having
within the
Petitions
regard to the
deci
Cosmopolitan
H p s p i tai
the said
decision
against
Since the decision of the National
in CosipopoT itan Hospi tai
S.L.P.(Civil)
Section
in
remitted to the
were
us,
cov
21348-21349/93 have been filed against the
Nos.
ambit of Section 2(1)(o)
mission
No.
the light of
Writ Petitions filed on behalf of
the services
holding
in its entirety but
arising out of S.L.P.(Civi1)
S.L.P.(Civil)
1989
indicated in conclusion No.9.
for consideration in
of
2 of
be
dated
Commission
defined
as
'service'
be allowed and the complaint has
Commission
to
in Government hospitals are not
rendered
of the Act cannot be upheld
Appeal
judgment
No.
First Appeal
in
be upheld only to the extent as
Civil
said judgment have
the
Nos.
(supra)
21348-21349/93 have
Com
is being upheld
to be dismissed.
by
- : 63 : -
the
Cosmopolitan
6550/92 against
April
21,
16/94 has been filed
(P)
Hospital
Ltd.
and Dr .
the judgment of
petitioners have sought a declaration
the
14 and 19(1) (g)
Articles
the
first part of
the
provisions
medical
service,
that
the
deficiency
provisions of
the
The other prayer sought
regarding
the validity of
provisions of
As
seeking
the Act
reason
in
same
of
regards
deficiency
of
in
and
a p p1 i c ab1e
t0
p rac t i t i oners
and
the s a i d prayer cannot
for
be
matter
are
Act
rendered by med i c a 1
substance.
to
violative
we have already considered the
allowed.
are
alleged
the
and for the same
peti tioners
held
as being
of
medical
regarding the applicability
to
the Act
in service
any
are
the Constitution.
of
hospitals
without
in
profession and hospitals the
the prayer
of
the provisions
the said provisions
declared as unconstitutional
be
found
if
the medical
to
applicable
may
that
and
writ
said
the
to alleged deficiency
Act are not applicable
service
that
and
6885/92
Commission dated
Petition,
the Writ
In
1992.
the National
by
Venugopalan
K.
Nos.
also filed S.L.P.(Civil)
have
who
Nair
No.
(Ci vil)
Writ Petition
the
the p r o v i s i ons of
Peti t i on
Writ
the Act
The
ground
on
w fi i c h
to
assail
the
validity
is that the composition of
be
is
also
writ
the
of
the
the Consumer
- : 64 : Agencies and the procedure to be , followed
Disputes Redressal
by
the complex
adjudication of
We have already considered
the medical
the
adjudication
of
compla i nts
relating
medical
is
the
out
that
in
to deficiency
the Act
or
Arti c1 es
14 and 19(1) (g)
suffers
unreasonableness
no
merit
In
the
therefore ,
proper
of
rendered
In our opinion,
the
from
so as
to
0f
out
arising
service
the
as
well
Agencies as
disputes
consumer
trariness
of
found that the composition of
practitioners and hospitals.
made
for
suitable
them does not preclude a
followed by
to be
procedure
not
is
this grievance urged on behalf
Redressal
Disputes
it
issues arising for consideration.
and have
profession
Consumer
that
is such
said Agencies
the
no case
of
vice
by
arbi-
be
violative
of
the Constitution.
There
i s,
in the Writ Petition and
it has
to
be
dismissed
689/93,
and
dismissed .
plaints
result
Civil
Appeals
Nos.
688/93
and
Nos.
6885/92
and
6950/92
are
S . L . P . (Civi1 )
The
in the
State Commission will
light of
this judgment.
deal
the
com
S. L.P. [Civil ]
bi o s .
351/93 and 21348-21349/93 and Writ Petition
are also d i sm i s sed.
the
judgment of
Civil
Appeal
the National
No.
with
(Civil)
254/94
16/94
No.
is allowed
Commission dated May 3,
199
and
is
- : 65 : -
93/92
is
remitted to the National
cons ide ration
in
the
set aside and 0 . P . No.
mission
Civil
of
for
Appeals Nos .
of
this
judgment.
Appeal s arising
21755/94 and 18445-73/94
allowed
are
17,
is set aside and the writ petitions disposed of by
the
said judgment of
the High Court are dismissed and as a result
the Consumer Disputes Red res sal
Agencies would deal
complaint
petitions covered by those writ petitions
light
this
of
S.L.P.(Civil)
No.
out
the Madras High Court dated February
and the judgment of
1994
and Civil
4664-65/94
S.L.P.(Civil) Nos.
light
Com
1 of
judgment.
No.
1988
consideration
18497/93
is
Civil
Appeal
with
the
in
the
out
of
arising
is also allowed and Complaint Case
remitted
in the light of
to the Slate Commission for
this judgment.
No order as
costs.
................................................ J .
[ KULDIP SINGH ]
........................................... .. ...............J .
[ S.C. AG RAWAL ]
............................................................. J .
[ B.L. HANSARIA ]
New Delhi,
November 13,
1995.
to
<2o N i - S~
I
New Drug Policy
Betrayal of Consumers’ Interest
The following is a statement issued by the Voluntary Health Association of India on the new drug policy. It
was issued on September 16, 1994.
_ Editor
he Voluntary Health Association of India
(VHAI), New Delhi, a federation of more than
3000 organisations involved in community health,
has noted with great concern the announcement of
the new drug policy. The policy was announced at a
press conference on September 15, 1994. We are
shocked that the policy is totally in the interest of
the industry and the consumers basic needs are
neglected. We are dismayed at the' callous
indifference of the government towards the health
needs of the people. Even the way the government
chose to announce the drug policy (which has farreaching implications as far as the health and life of
millions of people are concerned) through a press
conference rather than after a proper discussion .in
Parliament itself is undemocratic.
Drug prices will shoot up because the number of
drugs in the price control range has been brought
down to 73 from 142. Increasing the profitability
ceiling for bulk drugs will directly further worsen the
situation as far as the prices are concerned.
The rationale for allowing price decontrol, can in
no way be justified if the figures for the last few
years are studied. There has been a steady
increase in sales, profits and dividends of the drug
companies. It is sad that the government has
'bought' the drug industries’ argument that drug
production is not profitable and drafted the policy
accordingly.
The total liberalisation will further worsen the
existing anarchic situation in drug production. In the
absence of a mechanism to ensure the production
of essential drugs, its acute shortage will hit
all national health programmes. Its implications
are far-reaching as it will lead to further proliferation
of hazardous and irrational drugs. The argument
of the industry that trade is a fundamental right
should not be at the cost of the public’s health and
life.
The present policy as such will open the gates
for th_e~ multinationals. High priced, useless and
2
hazardous drugs will be pushed down the throat of
the gullible Indian consumer. Increased dependence
or imports, higher prices and proliferation will
happen due to the policy which allows companies
with 51 per cent equity participation to be treated on
par with Indian companies. This policy will further
hit the Indian industry resulting in import and
increasing prices.
It is further disappointing that there has been no
reference to the irrational and hazardous drugs
which are still being sold.
The neglect towards such an important issue
where thousands of products keep the life of the
public at stake is very critical. These products will
pose a continued threat as far as safety is
concerned because the new drug policy does not
address this critical issue.
Even in developed countries where the industry
has been enjoying a “free-hand" it is under criticism
of late. The spiralling costs in health care in the
USA is just an example. Recent studies from
different parts of the world point out that competition
by market forces need not bring down prices. For
example, the Office of Technology Assessment in
the US was forced to study the costs and profits of
pharmaceutical manufacturers because of the ever
spiralling drug costs.
The OTA report dated Februray 25, 1993 tell’s
why drug prices in the US are high and it also
shows that competition simply does not work in the
market for prescription drugs which are becoming
unaffordable even in the US. The OTA report states
that to reduce prices there is room to reduce profits,
advertising costs, unimportant research while leaving
breakthrough drugs intact and leaving industry a
generous profit.
These lessons of failures of such liberalisations
and Structural Adjustment Programmes initiated in
those countries, instead of being taken as an eyeopener, are being ignored.
The drug companies have proved in the past that
September 24, 1994 ■ MAINSTREAM
their organised sales promotion propaganda with
advertising and marketing strategies will leave no
chance for the medical profession to make a free
decision. Furthermore, drug is not a substance
which an ordinary consumer/patient can decide
upon.
The government is giving a “false hope’ to the
public that if required the government will bring back
decontrolled drugs to the price-control category. But
lessons from past experiences show that giving
even a chance for overcharging for drugs by drug
companies Has never benefited the consumer.
The VHAI urges the government to reconsider
the policy. We urge that a “rational drug policy"
which will ensure the concerns of the consumers
[namely, (a) availability of essential and life-saving
drugs, (b) withdrawal of hazardous and irrational
drugs, (c) adequate quality control and drug control,
(d) technological self-reliance] is to be formulated in
a democratic process by discussions at various
levels, like with professional bodies, health groups,
rational drug groups, consumer groups, voluntary
organisations, people's organisations and in the
Houses of Parliament.
■
Allround Decadence and Ray of Hope
NIKHIL CHAKRAVARTTY
w
hile there ismo doubt a lot on which to attack
such a critic from inside the very government over
those in authority for their dereliction in
which he presides. And quite likely there are many
running an orderly syXem of governance, one has
more Khairnars waiting to be counted in the months
to ask at the same timexwhy there has been such
to come. Obviously the ministerial standing for
an appalling deterioration i social conscience in
probity has plummetted so much that it cannot
most of our public activity.
other^words, the
make short shrift of critics from within the
corrosion of values in public lifeN not confined to
bureaucracy itself.
Ministers and top bureaucrats, but is become all• If we look back on the immediate past, we find
pervasive, the pollution of morals
to choke
that in the last ten years corruption has become a
out public service.
by-word in our public life and is having a deleterious
If we look around, there is undoubtbdly a
effect on the stability of the government. The fact
widespread feeling of being let-down by thos'edn
that criminalisation of politics has become a serious
power, those who have been assigned the mandate
item of concern for responsible .people in politics
tp rule by the public that has elected them and \irrespective of party labels—and not just the
placed them on the position of authority. It is
exaggerated outburst of some chronic critics of the
precisely because of this reasomthat the Chief - establishment—shows the dangerous deterioration
Election Commissioner has suddenly become a
in our public life. All this has begun to stir the public
phenomenon—applauded by the public that expects
in general., 'The shock of the scam, that nobody in him to weed out corrupt practices from the business
authority is prepared to take the responsibility for,
of election, while he is the target of attack largely by
has contributed in no small measure towards the
those who feel that their citadel of vested interests
sapping of public'confidence in the government.
But the government apart, the callous irrespon
in the business of vote-collecting is being invaded
by Seshan’s attempt at weeding out irregularities in
sibility of people at'different stations of public life is
the running ’ of the election machinery. Khairnar
now becoming an issue' of intense comment and
concern all over the country. The scandal of the
might be reckless in his charges against Sharad
Pawar, but the fact that he, a minor fry in the
capitation fees for entry into educational institutions—
and the angry objections at any ban being imposed
bureaucratic1 set-up, could brace up to make such
charges of corruption against the Chief Minister,
on this vicious practice—has been widely commented
upon, and one would not be surprised if this
who is patently on the defensive, shows that in the
touches off violent protests. It is not merely the
public mind Pawar’s reputation cannot smother out
MAINSTREAM ■ September 2A. 1994
3
FORUM
XII SUNDAY, DECEMBER 25,1994
FTER a long wait of eight
years the New Drug Policy
(NDP) has been announced,
the objective of which is to create
'conditions of adequate availability
of medicines of good quality at rea
sonable prices’.
While the objectives are laudable,
one doubts whether these would be
achieved in the light of the earlier
experience and the contents of the
NDP.
For, what we have as a drug pol
icy is basically a pricing and pro
duction policy where the dominant
force is the 'profit motive’. It is a
policy which is heavily oriented
^towards the benefit of the
J^Pultinationals. It attempts to ad
dress many of the problems facing
the drug industry and not the availability of cheap and good quality
’ ■ medicare to the public.
’
From the consumers point of
view any drug policy should not
only ensure good quality of medi
cines at reasonable prices but also
. eliminate irrational, useless and
hazardous drugs.
In addition, an ideal drug policy
should provide a list of graded es
sential and priority list of drugs in
keeping with the actual health
needs of the people. But the NDP
does not seem to answer to any of
these requirements.
For the past many years, the
objective of drug policies has been
hovering around the same prin
ciples of price, quality and easy
■ ^^-ailability. For instance the S.L.
^^ratia Committee (1953) laid em
phasis on quality and recom mend, ed centralisation of drug regulatory
■ set up in the country. The Borkar
Committee did the same a few
years later.
During 1974 the Jaisuklal Hathi
Committee not only recommended
strengthening
quality
control
measures, but also nationalisation
of multinational drug companies,
establishment of a National Drug
Authority’, elimination of irrational
drug combinations etc., While these
recommendations were put to prac
tice in the neighbouring Bangla
desh, it was not implemented in In
dia.
Even the successive Drug Policy
statements of 1978, 1982 and 1986
had similar objectives. These state
ments aimed to ensure that drugs
are available in abundance to meet
the health needs of our people, to
make drags available at reasonable
prices, to keep a careful watch on
the quality and malpractice etc.,
But none of these objectives have
been achieved. India is a signatory
to the Alma Ata of bringing health
A
DECCAN
New Drug Policy has many loopholes...
to all by AD 2000. Only a miracle
can bring about this in another five
years.
One of the objectives of the NDP
is to control prices. But how does
it propose to do? By decontrolling
more drugs' The NDP states that ‘it
has been decided to keep the drugs
liaving an annual turnover of Rs.
400 lakh or more under price con
trol’. In effect drugs, the turnover
of which is below Rs. 4 crore will
be out of price control
As a result of this decision, the
number of drugs under price con
trol will get reduced to 73 from the
present 142 and the span of control
to about 50 per cent from the pres
ent 70 per cent
Decontrolling half of the present
drugs un der control would definite
ly mean rise in prices. As such it
would defeat one of the objectives
of the NDP. The policy further
states that the government would
keep a close watch on the price
movement of drugs not in the list
and reclamp price control if necess
ary.
But the earlier efforts in this
direction have not been encourag
ing. Drugs came under price control
for the first time in 1962. The Drugs
(Display of Price) Order 1962 and
the Drugs (Control of Price) Order
1963 were promulgated under the
Defence of India Act, freezing prices
of medicines as of April 1,1963.
The Drugs Price Control Order
(DPCO) 1970 was issued under the
Essential Commodities Act 1955 to
bring down prices of 17 essential
bulk drugs and their combinations.
The DPCO 1979 and 1987 was also
issued with the same objective.
Despite price control mechanism,
prices of drugs have increased
steadily. And many of the drug in
dustries have been pulled up by the
courts to pay back the excess
amount collected on price control
led drugs.
Following the Supreme Court
verdict against over-pricing by drug
companies the government is to
realise Rs. 270 crore from the indus
try. The available figures indicate
that the actual recoveries is not
more than Rs.13.82 crore up to 1992.
However in reality, prices of all
categories of drugs have increased
by almost 50 per cent The prices of
cardiac and hypertension drugs
have increased by 40 per cent Simi
larly, prices of anti-TB drugs like
Rifampicin have gone up by 40 per
cent in the last two years. Several
From the consumer point of view any drug policy should not only ensure good
quality of medicines at reasonable prices but also eliminate irrational, useless
and hazardous drugs. In addition, an ideal drug policy should provide a
graded, essential and priority list of drugs in keeping with the actual health
needs of the people. But the NDP does not seem to answer any of these
requirements, writes Y G MURAUDHARAN
However, simultaneously efforts
were not made to ensure produc
tion of these price-controlled es
sential drugs and check prolifer
ation of non-essential drugs. The
NDP states that the DPCO will be
issued in “three months time".
This was in September 1994. The
DPCO is yet to be announced. The
time lag has given enough oppor
tunity to the interest groups to
step up their lobbying efforts at
New Delhi, to be out of the list.
It is fortunate that the NDP has
a provision for setting up an auth
ority for price fixation. This is a
welcome move. The NDP states
that the government would set up
an independent body of experts to
be called the Pharmaceutical Pric
ing Authority (NPPA) to do the
work of price fixation. In addition
it will also oversee the enforce
ment of the provisions of the
DPCO. The degree of autonomy of
this proposed authority is to be
watched.
essential drugs are not available in
the market
Even after the DPCO of 1987 was
issu ed prices of drugs has shown
an upward trend. Though the gov
ernment intends to monitor price
rise, one cannot be optimistic about
it Way back in 1978, the Lovraj
Committee was set up to investigate
the allegation of large profits of
foreign companies, suggested that
the effect of DPCO (1979) on profit
ability of the drug industry should
be assessed periodically. So far no
attempt has been made to monitor
prices and profits.
The NDP states that prices would
be kept in check by forces of market
com petition’. One need not be an
economist to understand the econ
omics of drug industry.
The Indian drug industry has all
the problems associated with an
oligopolistic industry dominated by
a few private firms and an industry
dominated by foreign companies i.e.
MNC’s.
As such, market is a poor mech
anism for regulation of prices of
drugs. Production and price control
measures are very much essential
to ensure drugs at low prices.
Secondly, the market for drugs is
not determined by consumers but
by pharmaceutical companies, de
tail men (medical representatives)
and doctors. Unlike all other com
modities in the market, in case of
drugs, the consumer has no say
over the choice of the commodity
he purchases. He goes entirely by
the doctor’s prescription.
,
verT fact that the concept of
turnover’ has been taken as basis
to determine drugs which are to be
brought under price control is itself
an indication that the NDP is trade
oriented.
Although medicinal products con
stitute essential tools for health
care, it is observed that drug polic
ies are often directed towards in
dustrial and trade development It
is precisely for this distorted object
ive, d'-ot the drug policy is formu
lated by the Ministry of Chemicals
and Fertilisers and not by the Min
istry of Health.
This is the first time that we have
a policy which determines the list
of diniBS under price control on the
basis of turnover. In the DPCO 1976,
csseiitiaUy was the basis for
categorisation of drugs. The Kelkar
Qanitb'fioo list of drugs for DPCO
1987 td30 used essentiality as basis.
This concept of essential drugs find
no ine'^on in the NDP.
According to the Health Action
International (HAD an essential
drug is one which meet real medi
cal needs, has sufficient therapeutic
value, be acceptably safe and offer
satisfactory value for tial drugs are
those that satisfy the health care
needs of the majority of the popula
tion.
Some efforts have been made in
the past to prepare a list of essential
drugs with the main objective of
price control The Committee on Es
sential Drugs (1967) listed 17 drugs.
The Hathi Committee gave 104
drugs as essential.
The Drug Policy of 1978 prepared
37 bulk drugs grouped in Category
I and ft which are highly essential
and life saving. The Steering Com
mittee of NDPDC shifted from, the
essential drug list and prepared pri
ority list of 95 drugs.
HERALD
ested in the financial health of the
companies and not in health of
consumers. Secondly, they are not
interested in producing essential
bulk drugs, but in multiplying
unnecessary medicines, tonics and
syrups. The recommendations of
the Bhore Committee, Sokhey
Committee, Mudaliar Committee
and the Hathi Committee have
warned the exploitation of the con
sumers in our country by the
MNC’s. Again these MNC’s utilise
developing countries including In
dia. as dumping grounds for sub
standard and discarded drugs
which have been banned in the
country of origin.
Due to extensive price decon
trol. liberal licencing and free ac
cess to multinationals, the drug
market will go unregulated. This
will lead to economic drain of
crores of rupees on non-essential
drugs. As long as the industry is
free to produce what it likes, it is
almost impossible for the cus
tomers to get rational drugs. Back
ed by vast promotional network,
the MNC’s are capable of distort
ing the genuine marketing infor
mation and pushing the people to
For the past few years drug consumer irrational drugs. Nonmanufacturers have been trying to essentials like tonics, vitamins.
pressurise the government to con health drinks, digestive enzymes,
stimulants and cough
cede its demand for decontrol of sex
production and pricing. The drug expectorants will increase as
industry has been claiming that against essential drugs to combat
its turnover and profit have suf TB, Malaria etc.,
fered due to controls. And the NDP
A welcome feature of the NDP
has favoured the industry. But in
reality, the sales and profits of is that it provides for setting up
drug companies have increased of a National Drug Authority
over the last few years. The half (NDA) to ensure quality’ control
yearly results (up to March 1994) and rational use of medicines. The
of drug industry shows that sales NDA to be set up by an Act of Par
has gone up by 32 per cent and liament would also prepare and
publish national formulary and
profit by 84 per cent.
also the formularies relevant to
Another set back to consumers various levels (like district hospi
is the provision in the NDP to tals, community centres, PHC
bring companies with foreign etc.,) for the guidance of con
equity up to 51 per cent on par sumers as well as doctors. One
with wholly Indian companies. hopes that drug information,
The NDP states that automatic ap which is almost absent in the
proval would be given for foreign country would be soon available to
technology agreements, as per the consumers.
Industrial Policy for all products
The establishment of more zonal
except those produced by the use
of recombinant DNA technology’. and sub-zonal offices under the
Since the government aims to re Central Drug Standards Control
vise the drug policy “so as to bring Organisations as well as addition
it in consonance with the Indus al regional drug testing laborator
trial Policy 1991 and the present ies is a welcome move. If the qual
EXIM policy” allowing foreign ity of drugs is not up to the mark,
it is also because of insufficient
companies is no surprise.
manpower, and other facilities.
Allowing foreign companies (al The NDP needs to be reviewed be
ready we have in surplus) to oper fore implementation so that the
ate without restrictions would hit welfare of the consumers will get
the welfare of the consumers. It is priority and not the industry as it
well known that MNC’s are inter is now’.
tor Is paid a salary by the hospital, the
service he renders cannot be said to be
free of charge. The Court rejected this
ingenious interpretation, saying
"there Is no direct nexus between the
payment of the salary to the medical
officer and Mie person to whom ser
vice is rendered".
. 1
Dhawan. however, lauds the Court
for "creatively" using his argument. It
conceded his plea to discard the blan
ket ban imposed by the national com
mission in J 989 on the enforcement
of the CPA in government hospitals.
"The Supreme Court has removed the
very foundation of the commission's
verdict, the travesty that those who
can't afford to pay don't get the pro
tection of the consumer law." says
Dhawan. By exempting pure welfare
programmes, the Court has. in his
opinion, saved primary health cen
tres. birth-control measures, anti
malaria drive and other such vital
activities from being hampered by the
j- ; cpa. But, then, others argue that pri
mary health-care and birth-control
programmes, notwithstanding their
“^ke welfare" character, are as much
kWrn for "deficiency in service" as
!
their now-accountable counterparts.
The judges have also turned down
a more fundamental contention, that
since the expenses of government
hospitals are met by the public exche
quer, the patients could not be said to
be availing services free of charge. The
reasons given inter alia: the direct and
indirect taxes paid by a patient are im■
posed under statutory power without
the taxpayer's consent, and the pay
ment is enforced by law: and they are
part of the common burden, the
quantum depending generally on his
capacity to pay.
'
Finally, was the Court right in disbe
lieving the doctors’ grim forebodings
that consumer disputes would lead to a
sharp increase in insurance charges
and "defensive medicine" expenses?
^ad eventually to a situation where
^P^y may refuse to attend to emergen
cies? The apex court does not share
these apprehensions because the cpa
has not brought about any change in
the substantive law governing claims
for compensation. It only provides a
procedural alternative, which is more
attractive because of the absence of
court fee and the emphasis on speed. Indeed. the wholecontroversy seems to be
on account of the fact that the cpa is
more expressly geared to enforce ac
countability than the general law.
S
a wrong organ is removed or even (he
wrong patient is operated upon, negli
gence can be inferred wit hou t expert tes
timony. Unfortunately, even in these
cases, civil courts, with their elaborate
evidentiary procedures, cun take over a
decade to render justice. By contrast.
consumer fora are designed to provide a
speedy trial, but without compromising
on the fundamental principles of justice.
In essence, tile Supreme Court's decision
to bring the medical profession under
the purview of the cpa is intended to set
right this anomaly.
The judgement has already had a
salutary effect on doctors across the
country. But I he sheer scale of reckless
ness and disregard for human life that
most Indians are compelled to suffer in
the name of medical service will re
quire a more drastic remedy. The rapid
commercialisation of health services,
with private practitioners accounting
lor over 70 percent of out-patient care,
has bred a new class of practitioners
who have Hille knowledge to begin
with, who will prescribe any combina
tion of drugs regardless of their useful
ness, who have little time for the
patient, and who will do virtually any
thing to earn a quick buck. There is no
legal recourse for the victims of such
routine and widespread malpractices.
Only stringent regulation governing
every aspect of medical pracllcc and its
firm enforcement will make the profes
sion accountable and restore to it (he
'nobility' it could once proclaim.
■
Will greater access to consumer
courts make a difference to patients?
BEFORE the Supreme Court
gave its verdict, there were over
1.000 cases of medical malpract ice lodged in consumcr-redressal i'ora across the country.
In 1989. the Kerala Consumer
Disputes Bedressai Commission
held that medical services rendered for
payment were 'services' within tile
meaningof thecTA, a view affirmed by the
National Commission headed by Justice
Balakrishna Eradi. But subsequently the
Madras High Court ruled that they were
not. Then, in 1993, (lie Indian Medical
Association (IMA) filed an appeal before
the Supreme Court against the National
Commission's ruling. Now, the apex
court's ruling upholding the commis
sion’s position has cleared the way for all
these pending cases to go to trial.
Dr A.I.Sheliil.Mahuriishlraslatc pres
ident of the ima. fears that the ruling "will
now open the floodgates for frivolous and
vexatious complaints”. This is a common
perception among doctors, but is it neces
sarily true? The elimination of court fees
andstampdutycertainlyremovesa major
bar to filing complaints before the con
sumer forum. Also, the expedited proce
dure to be followed will "not be as detailed
and subjected to careful cross-examina
tion as in the case of a civil suit”, says con-
The more glaring cases of neglect and. callousness
will tie handled with a greater degree of despatch.
KAI FR1ESE
DI'.CIAIIH.K IS. ID'lS ♦.INDIA TODAY
145
—
COVER STORY
CONSUMER COURTS
In State of Despair
OOR infrastructure, resource crunch, increasing backlogs: the story is
the same in the three-tier—national, state and district—consumer
courtset-upinthecountry. What was seen as a meansof speedy disposal
(ail cases under the CPA are supposed to be dispensed within 90 days), is today
seen as a labyrinth of chaos in the about 450 fora at the district and state lev
els. The reason: the number of cases faroverburden the existing facilities.
For instance, take Bihar: of the 1,000 cases registered, most are still pend
ing. For starters, one of the two member posts in the Bihar Consumer Protec
tion Forum has been lying vacant. The forum works out of a small room in
which the court is also cramped In. West Bengal Is no better. The three mem
bers in the state commission have not been paid their dues since April. The
P
SHIVANI SHARMA
A number of government
A consumer court at work in Delhi: cases far overburden facilities
court has no bench clerk, and worse, copies of notices and judgements can
only be procured by greasing a palm.
In Tamil Nadu, six district foras are not even functional as the required two
members have not been appointed. In another sue districts, one member has not
been appointed, and the required quorum for hearing cases is two. According to
N.I,. Rajah, a consumer-rights advocate, hardly any of lhe consumer courts set
tle disputes in lhe stipulated time period. Sometimes, cases take one to two years.
The National Consumer Disputes Redressal Commission in the capital fares
only a shade better. Here too, the sanctioned staff strength is the same since in
ception in 1989. Since then, about 7,050 cases have been registered: 2,541 are
still pending. Of those pending. 64 relate to medical complaints. The recent
Supreme Court ruling will mean more cases for these overburdened courts. And,
in that sense, just more despair for the aggrieved consumer.
sumerlnwyerRui Rodrigues. Despitcthese
welcome changes, there remain formida
ble obstacles to proving medical malprac
tice in consumer fora.
The most serious is the difficulty the
claimant may face in getting medical
opinion to support his contention. Doc
tors have astrongsurvival instinct, and if
one of them were found willing to testify
against a colleague, it would indeed be a
rare case. Yet the president of the Maha
rashtra statecommission has instituted a
requirement that a malpractice com
plaintwill be entertained only if thecomplainant's charge is backed by another
doctor’s opinion. This, in turn, has led
146
INI11A T0IMV ♦ UKTMIIIK 11. 1'1‘H
lawyers appearing for lhe accused doc
tors to demand a further refinement of
the procedure: how can an anaesthetist,
they ask, opine on the competence of a
cardiac surgeon? If the testimony is to be
subjected to cross-examination, they
contend, both doctors must be from the
same specialisation. But considering
how difficult it Is to get any doctor to tes
tify in the first place, this additional re
quirement is a very tall order indeed.
As in civil and criminal proceedings,
the burden of proof lies squarely on the
plaintiff. Doctors can employ a variety of
defences: the patient had given his in
formed consent for (he operation, death or
injury was on account of wholly unre
lated developments: the patient withheld
crucial Information (for example, a his
tory of cardiac problems): the failure
could be traced to agents beyond the doc
tor's control or simply that the accident
was lhe result of an unforeseeable error
that I lie doclor'sdiligcncccould not guard
against. The Supreme Court's ruling that
‘‘deficiency of service" in lhe case of doc
tors must be "subject to the same test as is
applied in an action for damages for negli
gence" is bound to make the standard of
proof that much more rigorous. And the
system thatmuch more even-handed.
DD to these lhe penalties levied to
discourage frivolous litigation, the
deplorable slate of the consumer
court infrastructure, the delays resulting
from their lack of personnel and finances.
the torture of participating in any sort of
legal proceeding in India, not to mention
the stigma of cashing in on a dear one's
suffering: it would be truly surprising if
anyone were to seek reparation from these
fora. The fact that some intrepid souls ac
tually do so is testimony io their grit as
much ttslolhe magnitude of the pain they
have suffered at somebody else's hands.
There is little doubt, however, that
the access to consumer courts granted
to malpractice victims by the Supreme
hospiti
Court
claimsglaring
will be
despat
tnoush
the po:
import
Wi)
inc
A
officers
Insurat
rcceivii
inquirii
Genera
tains: “I
that me
crease v
terlheS
Few
pecially
Insurance Cover:
What’s on Offer
DOCTORS:
(Max. cover: Rs 1 crore)
For a Rs 30 lakh policy:
■ GPs: Rs 1,500 p.a.
■ General Practice Surgeons:
Rs 6,000-10,000 p.a.
■ Specialist surgeons,
cosmetic surgeons
and gynaecologists:
Rs 18,000 p.a.
Covers all claims arising out
of bodily injury or death of
any patient caused by error,
omission or negligence.
Exclusions: Any criminal
act, or any act in violation
of law, or service rendered
under the influence of
intoxicants.
hospitals have now come into the net of the CPA.
Court will make a difference for
claimants and doctors alike. The more
glaring cases of neglect and callousness
will be handled with a greater degree of
despatch, something that will enor
mously increase public confidence in
the possibility of legal redress. Equally
important is the impact this additional
liability will have on the conduct of
medical practitioners. As Dr Pragnya
Pai. dean of Bombay's King Edward
Memorial Hospital, observes: ‘‘At the
very least, it will force doctors to com
municate belter with their patients to
help avoid any misunderstanding that
might result in litigation."
Will malpractice liability insurance
increase cost of health-care?
ONE of the most striking reac
tions to the Supreme Court
judgement has been the sud
den spurt of interest in doctors'
and medical practitioners' ‘in
demnity insurance cover'. Ac
cording to senior insurance
officers. all four subsidiaries of General
Insurance Corporation (etc) have been
receiving an unprecedented number of
inquiries about these policies. But c.ic
General Manager M.V. Purohit main
tains: "It would bean exaggeration to say
that medical costs will significantly in
crease with wider medical insurance af
ter I he Supreme Court judgement."
Eew dispute (hat more doctors, es
pecially surgeons and specialists, will
now seek insurance to indemnify them
selves against successful claims of mal
practice. At present, barely I 5 percent
of the ima’s one lakh members are esti
mated Io be insured against profes
sional liability. Similarly, thousands of
medical establishments, including
large hospitals, operate without 'med
ical establishment cover' offered by in
surance companies, despite being
vicariously liable for the acts and omis
sions of thousands of non-medical per
sonnel in (heiremploy. Public hospitals
have traditionally never been insured,
but those that charge some of their bet
ter-off patients will have to consider do
ing so in the light of the judgement. So
there is a huge market for medical in
PATIENTS:
(Max. cover: Rs 1 lakh)
a Covers hospitalisation,
surgery, doctor’s fees, room
charges, tests etc. Pre
existing diseases not
covered.
surance wailing to be tapped. But even
if 11 ic cnIire cost of insurancc were lobe
passed on Io consumers, it is not clear
what impact this will haveon thccostof
health services.
The reason is that premiums on
m cd i c a 1 i n d e in n i ty i n s u r a n cc v a ry ve ry
widely. The price of a policy depends on
a raft of factors which together deter
mine the degree of risk that the insured
person faces. This depends principally
on the doctor’s specialisation, his expe
rience, the number of patients he sees,
the quality of his equipment, his past
record of malpractice claims and so on.
At the top of the risk league are cos
metic surgeons, obstetricians and gy
naecologists. The reason: judges tend to
be very harsh when cosmetic surgery
goes awry as the exercise has no med
ical rationale and there was nothing
'wrong' with I he client in I he first place.
Similarly, when t hings go wrong with
female reproductive health, the outDIX I MHI.U K. I'l'A ♦ INDIA TODAY
147
COVER STORY
ASHESH SHAH
CPA: Who’s Liable
and Who’s Not
Those Subject to the
Consumer Law...
■ Doctors with
independent practice,
unless rendering only free
service.
■ Private hospitals
charging all.
■ All hospitals having free
as well as paying patients.
They are liable to both.
The Court’s ruling is likely to lead to a closer risk
assessment of the country’s medical industry.
come is usually fatal.
Al the oilier extreme are the gen
eral practitioners (Gt’s) whose pre
mium rales are a 12 th of what plastic
surgeons pay. The maximum that a
doctor can currently insure himself
for is Rs 1 crore, although rare excep
tions are allowed. Usually, the premi
ums workout to less than 1 percent of
the amount insured for and payments
arc restricted to four claims a year.
Claims arising from a criminal act or
any violation of law are disallowed as
are those arising from "services ren
dered under the effect of intoxicants
and narcotics". Premium rates were
last revised in 1989 and the 1’inance
Ministry is now considering another
revision. With the sudden surge in de
mand from both ends of I lie spectrum.
til’s' rates are likely Io be increased
while those paid by specialists could be
reduced. Moreover, a number of foreign insurers have approached the t.\t/\
with a range of policies. So. despite the
increased demand for medical insur
ance. its cost could go down in the
short run.
According to Purohit, the positive
fallout of the judgement is that "it
will compel doctors to pul their
houses in order, improve the quality of
I heir record keeping and force them Io
keep the patient belter informed".
The real increase in medical costs, he
feels, will come from additional tests
that physicians might now insist upon
to reduce their chances of error.
Agrees Dr B.K. Sharma, director. PostGraduate Institute of Medical Educa148
IMUA ron.W ♦ tnVI.MIJIR H. l*Wi
lion and Research. Chandigarh: “Es
calation in the cost of medicare out
of overabundant precaution by the
doctors would be the immediate fall
out." he says.
On the other hand, the apprehen
sion of an overall increase in health
care costs could expand lhemarket for
medical insurance among patients.
The present mediclaim policies that
the industry offers have a limit of Rs 1
lakh. And despite numerous com
plaints of non-payment of claims by
the companies, following abuse of the
systems by patients and hospitals.
these policies too are becoming in-
■ Doctors/hospitals paid
by an insurance firm for
treatment of a client, or an
employer for that of an
employee.
...andThose Exempt
from its Ambit
H Doctors in hospitals
which do not charge any of
their patients.
■ Hospitals offering free
service to all patients.
crcasingly popular. In effect, the
judgement is likely to lead to a closer
risk assessment of the medical indus
try in an effort to spread the risk of fail
ure as wide as possible.
■
Will the judgement curb unethical
and reckless
medical practices ?
lopaths. the majority of
whom
concentrated
or
42 were
per
cent,
were
alin
India
7.6over
lakh
I he cilies. lN
It is1986.
estimated
11 had
ml just
a
registered
doctors
practising
quarter of
all About
allopathic
doctors
arc
cine.
3.2 lakh
of them.
of systems
of medi
employedainvariety
government
services,
the
rest being either self-employed or work
ing in private hospitals and clinics. The
concentration of the profession in ur
ban areas has led Io intense competi
tion and. consequently, to dubious
practices toearn a Iiving. AsSuniI Nandraj. :i Bombay-based health re
t
searcher. observes: "The doctor-doctor
relationship is characterised by what is
known in medical parlance as ‘cut
practice'—the doctor gets a cut of the
fees charged by I he consultant, labora
tory or nursing home that he refers the
patient Io."
In Bombay, the cut could he its high
as JO-IO per cent of the fees charged.
The system is pervasive and the nexus
extends even Io beauty parlours who
supply a steady stream of clients to the
b( joining cost net ic-su rgery business. As
Nandraj pointsoul. the practice thus in
evitably leads to “unethical and unnec
essary
investigations.
referrals.
hospitalisation"—in short. Io the sys-
COVER STORY
MEDICAL COUNCILS
Discredited Cabal
I'thecase for self-regulation by the
medical profession has been so
thoroughly discredited, the blame
rests with the medical councils. Al
most everybody who has ever had oc
casion to approach a state council to
seek redrcssal against professional
I
misconduct of doctors Itiiscomeaway
with the distinct Impression that Ills
nothing more than a cabal created to
shield doctors against criticism.
The Medical Council of India
(MCI), constituted under the Central
statute in 195 6, is entrusted with the
task of regulating medical education
and maintaining academic stan
dards in the country. The state med
ical councils, created under state
legislation, are entrusted with regis
tering qualified medical practitioners
and providing u disciplinary forum
for public grievances agalnstdoctors.
Those found guilty of misconduct
can be deregistered, which amounts
to a denial of the right to practise. Of
course, deregistration in one state
does not mean the doctor can’t prac
tise elsewhere in the country.
A state medical council has 22
members, five of whom are nomi
nated by the state government. The
council, however, meets extremely in
frequently, as a result of which com
plaints take years to be dealt with.
Proceedings before the council are In
two stages. In the crucial first stage, a
prima facie case has to be made out
against the doctor but the compliilmml. is not allowed Io be repre
sented by a lawyer. It's a rare case that
makes it to the second stage of inquiry.
But even here, the case is held in-camera. Descriptions of proceedings bor
der on the absurd, with a continuous
stream of members wandering in and
out. asking the president which case
was being heard while others spend
the time reading newspapers.
According to consumer-activist
Vijay Jathanna, in its three decades of
existence, the Maharashtra Medical
Council has deregistered just three
doctors: one for having been convicted
of murdering his wife and two for vio
lating the council's sacrosanct bar on
advertising. Over this period, Bombay
has witnessed hundreds medical-mal
practice cases ending in death and dis
ability, but in not one has the council
thought it necessary to do anything
more than issue a stern warning.
—ARUN SUBRAMANIAM
Liability under CPA: The Debate
DOCTORS
CONSUMER ACTIVISTS
E Medical service not a
Ki It is like any other
professional service.
h Needed to do only what’s
professionally possible.
□ Civil and criminal courts
have been judging with the
help of expert testimony.
■ The CPA being amended to
deter such cases.
■ All civil-court procedures
followed.
■ Already do so to recover
investment in equipment.
a Already do so for fear of
medico-legal complications.
■ India’s limited insurance
market will prevent that.
commodity.
■ Judge competence and
timeliness, not result.
■ Judges can’t grasp the
technical nature of medical
cases.
■ No court fee and stamp
duty means frivolous suits.
■ Consumer fora are
kangaroo courts.
■ Costs will rise as doctors
turn to ‘defensive’ medicine.
■ Doctors would withhold
services in critical cases.
■ A USA-like situation of
huge awards will be created.
temalic plunder of the patient. So doc
tors who have warned that the Supreme
Court judgement will encourage “de
fensive medicine", or a basic conser
vatism thatrclieson more investigations
to avoid the risk of misdiagnosis, forget
to mention that such practices are al
ready an industry standard.
Doctors trealdisease with a degreeof
casualness that can at times be breath
taking. A much-cited study of to treat-'
menl by 100 private practitioners in
Bombay discovered no less than 80 dif
ferent treatment regimens, most of
which were both expensive and ineffec
tive. I'or supplies, doctors often rely on
free samples from medical representa
tives and routinely dispense the medi
cines loose in paper packets without
identifying the contents. Many do not
consider it necessary Io even provide the
patient any information regarding the
diagnosis or the line of treatment being
prescribed. Nor are fees charged by doc
tors standardised. By making them ac
countable undcrtheci’A, feel many, could
see that change. Says K. Sudhakaran.
is. iw ♦ India today
151
COVER STORY
former Kerala advocate- general: “It will
improve the quality of treatment.”
Theslalrof health infrastructure in
the private sector, however, is just as
alarming. Barringa few largecorporatc
hospitals, the vast majority of private
nursing homes are badly constructed.
with poor ventilation, lighting, waler
and sanitation. A recent study in Bom
bay found that 62 per cent of private
hospitals were located in residential
premises. The operating theatres and
labour rooms won Id typically be located
in the kitchen. Many of them were con
gested, with insufficient space to move a
trolley or stretcher. They had few emer
gency-support services like an ambu
lance, blood, oxygen cylinders or
electricity generators. Worse, all the
hospitals studied disposed of their
waste in open garbage dumps, thereby
endangering public health.
LL this is widely known, but lit
tle seems to be done about it.
The medical councils (see
box)—which are entrusted with regis
tering practitioners, setting standards
of practice and disciplining the profes
sion—have collapsed into disrepute.
More scandalous, a 1992 nationwide
survey of slate regulations governing
the establishment and operation ol
private hospitals and nursing homes
revealed that only Maharashtra and
Delhi have enacted laws to govern this
vital sector. The actsof both stales stip
ulate that all nursing homes must re
new their registration every year by
submitting detailed information re
garding lheirslaff strength and quali
fications, equipment, accommodation
A
and sanitary conditions, with penal
ties for non-compliance. Yet the Delhi
administration readily admitted that
only 1 34 out of 545 nursing homes in
the slate were registered while the
Bombay Municipal Corporation adm i It e d, fo r i I s p a r t, I h a t fo r I h e p a s 11 wo
to three years, officials had not visited
the hospitals in several city wards.
As Nandraj observes: “Despite
having one of the largest private
health sectors in the world, providing
70 per cent of lhe country’s health
care. the fact that it functions practi
cally unregulated is a mailer of grave
concern." Such a callous altitude to
wards health regulation on the part of
the Government encourages the pri
vate health sector lo behave recklessly.
Consumer courts are now empowered
to compensate those who are injured
by the gross negligence of medical
practitioners, but sadly they arc help
less to prevent it.
■
Is tougher regulation the only way
to ensure accountability?
rights.
in the absence
punitiveBut
damages,
even a reof’
roughshod
THE
Supremeover
Courtpatients
has sent
sponsive consumer court cannot deter
aslrongsignaltodoctorsthat
and watch
as they
runif
rash and by
negligent
behaviour.
And
it is no longer willing to sit
the medical profession cannot regulate
itself, it is inevitable that the slate will
be called upon Iodo so.
Il is obvious that lhe medical coun
cils will first have lo be revamped lo re
store their credibility. Their members
have lo be fairly elected and must in
clude a larger proportion of non-medical personnel. Those doctors who
choose to serve on the council should
be required lo sacrifice their private
practice for lhe duration of their tenure
if lhe council islo function on a regular
basis. The register of medical practi-
f
tioners should be scrutinised and
broughtup todate. And all proceedings
before the council should be public:
perhaps like their US and UK counter
parts, they could provide for a prelimi
nary screening process by the
president. But the trial of all charges of
misconduct must be held in public.
"The argument that this could
compromise lhe reputations of
prominent doctors is disingenuous,"
says advocate Colin Gonsalves. "After
all. anybody charged with a criminal
offence is forced lo testify in an open
court.The presumption of innocence
till he's proven guilty is lhe only pro
tection the law affords to his reputa
tion." Why indeed should doctors be
treated any differently? In fact, as
Gonsalves adds, "It is lhe preoccupa
tion with secrecy that has raised sus
picions about their intentions and
undermined the council’s status of an
______£-• w/vn Ac J
The Government must establish clear standards
for the regulation of the health sector as a whole.
fr- yv'
1
What Can be Done
Medical Councils can:
■ Stop government
appointments
■ Take full-time members
■ Update registers
■ Make proceedings public
■ Make continuous
education compulsory
■ Arrange for imposing
fines on erring doctors
The Government can:
■ Set clear standards for
health institutions
■ Standardise fees
■ Invest in health sector
BHAWAN SINGH
Dt'Cl.Mlll.K 15. 1995 ♦' INDIA I’ODAY
153
CQVERSTORY
along been Mukherjee's patient. Yet
Singhi was presented a Rs 5,000 bill
as Desai's fees. He filed a complaint
before the medical council, and
Mukherjee testified in his support. In
T is one of the most intriguing cancer had spread too far for an a move to exonerate himself, Desai
medical malpractice cases ever to operation, and recommended produced what he claimed was the
hospital register showing Leela as
have been fought in India. Retired chemotherapy.
But soon after the couple re Mukherjee’s patient. Singhi, in turn,
IAS officer P.C. Singhi has spent the
best part of the past eight years seek turned, Leela started bleeding exces produced a xerox copy of the original
ing both to prosecute andclaimdam- sively and was admitted to tmh. proving quite the contrary.
On January 13,1990, themedical
ages for the suffering his wife had to Dr Desai, who had succeeded Pay
endure at the hands of one of the master as the head of oncology, ex council found Desai guilty of "profes
country's most eminent oncologists, amined Leela, and recommended sional misconduct" and issued him “a
Dr Praful Desai, the director of Tata Immediate operation, to be con very strict warning". In civil proceed
ings before the Bombay High Court,
Singhi sued Desai for Rs 25 lakh. He
was offered Rs 5 lakh to settle the case.
The police have also charge-sheeted
the director on the strength of the I
medical council’s finding. Desai tried ;
to quash proceedings three times by
filing writ petitions before the high
court but failed. Now that Justice P.D.
Upasani of thesessions court has held
that a prima facie case of rash and
negligent behaviour has been made
out against Desai and ordered him to
appear before the metropolitan mag
istrate on December 12, 1995, the
case is finally going to trial.
It would have been inconceivable
earlier that a doctor of Desai's stand
ing could ever be indicted by the med
ical council, which operates more
P.C. Singhi and wife Leela: their case highlights the need for tougher regulation
often as a doctor’s counsel. The
ducted by him. On the appointed day. charges of fabricating evidence to
Memorial Hospital (tmh), Bombay.
Singhi's wife Leela had been suf however, Desai asked Mukherjee to evade responsibility might have
fering from cancer for over a decade operate on Leela. When Mukherjee helped. But if Mukherjee had not tes
when in 1987 she complained of opened her up and confirmed that tified in Singhi’s favour, the latter
acute pain in the abdomen. She had the cancer had Indeed spread all over, would have had virtually no chanccat
been under the treatment of Dr J.C. Desai told him to sew Leela up, not all. Mukherjee proved a man of enor
mous courage to publicly denounce
Paymaster and his assistant, Dr A.K. once having looked at her.
Mukherjee. atTMll, Bombay. Paymas
The operation aggravated Leela’s his superior. Desai, on the other hand,
ter advised her to seek the advice of condition and exactly 14 months appears to have underestimated
doctors at New York's Sloan Ketter later, she died painfully. When Singhi Singhi’s shrewdness and tenacity. But
ing Memorial Hospital to see if her complained totmh, he found that De even with this formidable combina
uterus could be removed. However, sai had completely disowned the tion, Singhi is still waiting for justice.
—ARUN SUBRAMANIAM
Sloan doctors determined that the case, claiming that Leela had all
SINGHI CASE
Waiting for Justice
I
independent watchdog.”
Another major responsibility of the
council is to ensure that those regis
tered for practice undergo continuous
medical education to ensure that they
stay abreast of developments in their
field, so as to provide patients the best
available medical care, in the US, every
licensed medical practitioner must de
vote 50 hou rs a year to attending med
ical school as a condition for retaining
his licence to practise. It has also been
suggested time and again that the med
ical councils be empowered to levy
punitive fines in addition to their pow
ers to suspend and deregister offenders.
Butequally important, the Govern
ment must establish clear standards for
the regulation of the health sector as a
whole. These include minimum stan
dards for hospitals and clinics, whether
in the public or private sector: standar
dising fees charged by practitioners for
specified services; ensuring patients
have a right to their medical records:
and so on. It must, moreover, compel
everybody to adhere to them, includ
ing institutions under its control. The
exclusion of services rendered free of
charge from the ambit of the cpa has
widely been seen to reflect the Govern
ment's inability to maintain standards
in public hospitals. While the Govern
ment might have other considerations,
as the Supreme Court has clearly
recognised, thedeplorablestateof pub
lic-health services may make it difficult
for it to enforce the law against the pri
vate sector without attracting the
charge of double standards. The judge
ment thus could provide the firststep in
treating the consumer asa class.
■
Olxr.Mlir.fi 15. 1555 ♦ INDIA TODAY
155
J
05 fN
COVElCSTORY
by Arun Subramaniam
^Sfe^. "NO greater opportunity, no greater responsibility,
1,0 Hmilcr obligation fall to the lot of the human beIng than tobeeomcnmcdii aldoctor. Inthccareof the
siiflcrlng. he/shc turds scientific knowledge, lechnl®
cal skill anil human understanding. And those, who
w
use these with courage, with humility and with wisdom, wtllprovldeaunliiueservlcetothelrfellowmcn
(titd women and will build an enduring edifice of character
within themselves. It is this nature of human service, that
gives medicine its unique status of being a noble profession."
—Dr K.D. Lclc. former director, Jttslok Hospital, Bombay.
R)
(jjS^
qjKi
Sadly, countless patients who have had first-hand
experience of the Indian medical profession do not
share I .ale's exalted notion of his calling. Not even the
judiciary. Last fortnight, a three-judge bench of the
Supreme Court ruled that doctors were like any other
provider of services under contract and. therefore, are
under the same obligation to compensate the purchaser
for any deficiency in the quality of I heir wares. The apex
court decreed (hat medical practitioners, like other pro
fessionals. were indeed liable under the Consumer Pro
tection Act (CTA). 1986.
Doctors are already liable under civil and criminal
law for acts of negligence. A doctor who fails to do what is
required of him in his professional capacity, or who does
something that a reasonable person under (he circum
stances would not do. is said Io have acted negligently. Of
course, in diagnosing or treating a patient, no doctor
guarantees pet feel judgement, let alone a cure.The inex
act ness of biological.science precludes.such certain ty. Hut
by undertaking to render medical service, a doctor is "un
derstood to hold himself out to possess the standard pro
fessional skill and knowledge”, as advocate Mihir Desai
pids it. hi determining what this "standard" of skill is.
courts rely nolon the average ability that a member of the
profession possesses, but theminimum common skill that
is required to belong to that profession.
Proving medical negligence is not easy. In order to
pass judgement on matters of medical science or tech
nique. judges typically rely on expert testimony. Hut
where the issues in contention can be said Io lie within
common sense or common knowledge, as in cases where
Negligence: Court’s Defnution
--s
^library ”>
AND
>£
documentation ) '“
x.
UN»T
A
^YGaCoRO/^
<
<
“A person who holds himself out ready to
give medical advice and treatment
impliedly undertakes that he is possessed
of skill and knowledge for the purpose.
Such a person, when consulted by a
patient, owes him certain duties, namely a
duty of care in deciding whether to take
the case, a duty of care in deciding what
treatment to give or a duty of care in the
administration of that treatment. A
breach of any of those duties gives a right
of action for negligence to the patient."
DECi’MIlIiR 15. IM95 ♦ INDIA TOI)< VY
143
COVER STORY
■ tor 1
•5 ('sort
■ - free
Ingi.
;.:‘th»
pay
V °ffi<
■L..vice
SUPREME COURT RULING
Speeding up Redressal
service. Which means that deficiency
would be determined under the CPA "by
applying the same test as Is applied in
Toran action for damages for negligence"
?,T: con
in a civil court. Negligence implies a
■ . ket I
gross failure to take reasonable care as,
-mis#
for instance, amputation of the wrong
-of t
limborperformanceof anopcratlonon
"Th
the wrong patient, ima’s counsel Harverj
Ish Salve, therefore, welcomes the
■ vert
I lluelmllon by JAYANTO
judgement despite his
... can
client's reservations. "The
tect
ima does not seem to have . . .
■' Dha
understood how the situaV. , prof
lion has improved. Doctors .
. . ' opir
cannot be hauled up any- ...
. ■ tres
more by a commission on a
'■ mal
vague charge like substan
."' ■ actidard service," he says.
f 'cpa!
Another major gain for
; - mar
the medical side has been ■
‘
prof
the Court's guideline that •
Afcg ?ui
“in complaints involving , . ■ ^^Kno
complicated issues requir-.
•:-thcl
ingrecordingofcvidenceby
experts, the complainant .
■
ami
can be asked to approach
sine
lhe civil court" instead of ■
host
pursuing lhe matter before
quei
the commission. The
be a'
Supreme Court conceded
reas.
ima’s point that the sum
indi
mary procedure prescribed'
post
by the cpa would suit only
the
glaring cases of negligence.
mer
But. as senior advocate C.S.
pari
Vaidyanathan points out;
qua
most of lhe medical com
caps
plaints that have so far come
before the various commislievi
from any field. This is unlike the other
tribunals, such as administrative and
income tax, which have judicial and
non-judiclal members In equal
strength. Doctors’ organisations had
argued that the presldentcould thus be
overruled by the lay membersof a com
mission. This, they claimed, would be
prejudicial to them and therefore was a
ground for exempting doctors from the
BY Manoi Mitta
N what circumstances can a doctor
be sued under the Consumer Pro
tection z\ct (cpa)? This question
arose for the first time about seven
years ago when a Rajasthan villager.
Sushila Devi, became an invalid after
undergoing a tubectomy operation us
part of the family-planning pro
gramme. In December
19H9, the National Con
sumer Disputes Redressal
Commission ruled that she
was technically not a con
sumer as she had under
gone the surgery at a
government hospital. But
last fortnight, the Supreme
Court made it possible for
victims like Sushila Devi to
get the benefit of thecpa.
Last fortnight, while de
ciding a bunch of medicalnuilpractice cases, in
cluding an appeal filed on
behalf of Sushila Devi, the
Court held that lhe only
precondition for applying
the cpa to a government
hospital was that there
should be some paying pa
tients as well. The non-pay
ing patients can also then
take recourse to the cpa be
cause "consumers as a
class" are envisaged to be
protected.Othcrwi.se. those
who cannot afford to pay
would be denied access to
mv,____ _________ x" • _
•
be
the cpa "even though they The ruling clarifies that “deficiency
are the people who need the service” will
only negligence.
amenable to a summary
protection more". As the
trial. And yet, a lot of those
Court pointed out: “It is difficult to con- purview of the CPA. But the apex court complaints wcre dismissed. “This
ceive that the legislature intended to asserted that the cpa actually combined shows that the commissions have erred >'
achieve such a result."Thus, a number legal competence with "the merits of in favour of lite doctors," he says.
of big government hospitals have now lay decision making".
While the consumer lobby has ■.
come into the net of the cpa, which pro
At the same time, the judgement succeeded in maintaining the cpa’s ju- •
vides a speedy and inexpensive remedy has strengthened the position of the risdiction over medical malpractices,
to aggrieved consumers.
doctors and hospitals by clarifying it has failed in its bid to expand the am
In an equally significant develop that, in theircase, thestatutory expres bit to include those hospitals that ren
ment. the Supreme Court has pul its sion "deficiency in service" would der only free service. Tills Is because of
slumprtf approval on thcpeculltircom- mean only negligence. This is how the tin express bar In the cpa, staling that
position of consumer commissions Court met the contention of the Indian the law will not apply to a service ren
which are dominated by laypersons. Medical Association (ima) that doctors dered "free of charge". The advocate
The cpa stipulates a judicial back should be exempted from the cpa be representing the consumers, Rajeev
ground for only the president of a com cause there were no fixed norms for as Dhawan, sought to overcome this
mission. while the members could be certaining any deficiency in medical
hurdle by arguing that when the doc-
I
1
in
sions wcre found t0
mean
144
INDIA TODAY ♦ DIX'I-.MIIKR B
•
•
that
shai
and
. Anti
F they
cies
theshas
the >
for <
proc
ullrs
corn
deec
on 8
mor
corn
C O IN
lore
1 I 'S
1)
-
BANGALORE
t'qj;
r
thu
After six-year battle, consumer court tells doctor to carry on
Meera John Chakraberty
BANGALORE: Unarguably, the recent
decision to bring die medical profession
under the purview of the Consumer Pro
tection Act pinches practising doctors the
most. Reason: the slightest complication
in a medical case and inevitably, the nee
dle of suspicion points to the doctor first.
But the case of 68-year-old Dr N.P.
Mookherjee of Bangalore, who has with
43 years of service behind him in obstet
rics and gynaecology, might hearten con
scientious doctors who might have feared
victimisation, post-CPA.
In an agonisingly long and sapping bat
tle, spanning nearly six years in the Kar
nataka consumer court, Dr Mookherjee
fought valiantly to the finish to "save his
hoMW’" On November 18, 1996, he create^^story of sorts, when the Justice D.R.
Vithal Rao, president of the Karnataka
State Consumer Disputes Redressal
Forum (State Commission) pronounced a
verdict, negating all charges levelled
against him.
Dr Mookherjee's patient, Uma Pingle,
had dragged him to court on January 11,
1991, slapping charges of "sheer negli
gence and mishandling her case, causing
untold suffering” on him. She claimed Rs
6.8 lakh by way of damages.
After subjecting a long line of deposers,
including the complainant and the
accused, through gruelling cross-examina
tion, the judge concluded that: "...given
the facts and circumstances of the case,
we find Dr Mookherjee has attended the
patient with care, skill and diligence. No
material has been placed on record to
attribute negligence in operation and sub
sequent management. This complaint fails
and is dismissed. The parties are directed
to pay and bear their own costs."
In delivering its judgement, the State
Commission harked back to the Supreme
Court verdict in the Acbutrao Haribbau
Kbodwa and others vs. State of Maha
rashtra and others case reported in 1996
which read: "...die skill of medical practi
tioners differs from doctor to doctor.
Courts should be slow in attributing neg
ligence on the doctor's part if he has per
formed his duties to the best of his ability'
operation in a private nursing home of
and with due care and caution..."
Unspool to the year 1980, when Uma her choice.
Dr Mookherjee operated on her at the
Pingle, wife of an army major, approached
Dr Mookherjee, then senior adviser Ashok Nursing Home in the city on July
(obstetrics and gynaecology) at the Com 23, 1990 and the doctors were satisfied
mand Hospital Air Force in Bangalore, with her post-operative recovery. On July
with a problem of excessive vaginal bleed 26, 1990, however, she developed
ing and pain in the abdomen. The doctor swelling of the abdomen, fever and irreg
diagnosed it as extra-uterine endometrio ular bowel sounds. "We diagnosed it as
'paralytic ileus', a reversible complication
sis at the vault of the vagina.
The options before Dr Mookherjee at that crops up in abdominal surgeries. It is
that time were to perform surgery or to only if spontaneous correction fails that
put his patient on drugs. He decided on we resort to laporotomy (a re-operation of
the latter. "In 1982, another gynaecologist the abdomen)," Dr Mookherjee pointed
at the military hospital in Udhampur bun out.
Dr Mookherjee decided to open her up
gled up the case by performing a total hys
terectomy on her, removing her uterus again to get to the root of the problem.
and cervix but leaving behind the ovaries On Ms Pingle and her husband's insis
and fallopian tubes from which she con tence, she was shifted to the Command
Hospital for re-surgery.
tinued to bleed," said Dr Mookherjee.
The patient's case-sheet at the,. Com
In late 1989, a frustrated and anaemic
Ms Pingle reapproached Dr Mookherjee mand Hospital has recorded that both the
in Bangalore. After a thorough examina duty doctor on admission and the senior
tion Dr Mookherjee suggested surgery to surgeon who operated on Ms Pingle diag
remove both her ovaries for permanent nosed her case as 'paralytic ileus'.
The re-surgery was successful and after
cure. She requested Dr Mookherjee (now
retired from the Services), to conduct the recouping in the hospital for close to a
M.D. Asad
month, the patient was discharged.
However things took a nasty turn, when
close on the heels of her discharge, Ms
Pingle, who till then had expressed no
complaints about Dr Mookherjee's line of
treatment, sued him for "mishandling her
case". Her evidence stated: 'The doctors
who treated me in Command Hospital
convinced me that all this was due to the
negligence of Dr Mookherjee at the nurs
ing home."
Dr Mookherjee further disclosed before
the State Commission that in a deaprture
from convention, Ms Pingle's case-sheet
was not destroyed 48 hours after her dis
charge from hospital but was recorded in
the statistics section, to be followed up as
a medico-legal case. "The doctors had
planned to frame a case against me."
Shattered though he was by the six-yearlong nightmare. Dr Mookherjee has come
out trumps. His victory, like that of the
eminent Bombay-based cardiac surgeon,
Dr S. Bhattacharyya, should reassure his
medical colleagues ■ that the Consumer
Protection Act cannot be used cavalierly as
an instrument of harassment.
V
•
• a.
I»
<•
Corf
LORE
THE TIMES OF INDIA, BANGALORE
Seeing your doctor? Do you know
about your rights?
The enactment of the
Consumer Protection Act
(CPA) in 1986 and the
Sup^ae Court's judgemerf^^l995 setting at rest
the controversy over CPA's
applicability to doctors,
coupled with increasing
instances of medical negli
gence has brought into
focus the right of patients.
Patients can expect and get the best health
care only when they know their rights and
aren’t afraid to assert them. Many countries
have already adopted a charter of patients'
rights, though in many cases it is yet to
receive legal sanction. In Indonesia, a health
law adopted in 1992 sets out provision for
these rights, like information and informed
consent. The Australian Consumers Council
is developing a charter for all recipients of
healthcare in public and private hospitals. A
country like Vietnam has a law on this sub
ject. Malaysia, where consumer awareness is
quite high, has a charter of patients rights.
In India, in response to an increasing num
ber of complaints about deterioration of
health service, the ministry for food and civil
supplies and consumer affairs, set up a workgg^^Bip to identify possible improvements.
As’a result, a voluntary scheme sets out the
basic standards for health facilities in both the
public and private sector.
The Consumers International, an organisa
tion having more than 200 member organisa
tions in over 80 countries has recently
launched a campaign at the international
level for patients rights.
The first right of the patients relates to rea
sonable and acceptable standards of health
care. It is the responsibility of the government
to ensure that optimal healthcare services are
provided to all citizens without discrimina
tion on the basis of age, sex, ethnic origin,
religious affiliations etc.
According to the World Health Organisa
tion (WHO), minimum healthcare includes
safe water in homes or within 15 minutes
walking distance, adequate sanitary facilities
and immunisation against certain diseases.
Health workers say that if good drinking
not only enhances quality of healthcare ser
vice but also encourages allocation of
resources necessary for maintaining adequate
Y.G. Muralidharan
healthcare systems.
Another important right of patients is the
water is made available, one-third of diseases right to complain in case of injury, suffering
can be eliminated.
or loss of life due to medical negligence. In
A patient's second right is access to infor the event of negligence, the patient should
mation. The charter says that access to infor have the right to recover damages even if
mation is essential for a patient to play an he/she has not been caused any harm.
active role in his/her health care. The WHO
Fortunately in India, the CPA has given
feels that an Informed patient responds more opportunity for patients to sue doctors in
effectively to treatment.
case of negligence. At present, government
The right to information includes Informa run hospitals are not covered under the CPA
tion about cost of treatment, side-effects, var Since most Indians depend on public health
ious alternatives to treatment, right to view service, there is a need to bring government
their own medical records etc. Recently, the hospitals with the CPA net.
Bombay high court held that the hospital is
The author is executive trustee, GREAT
bound to furnish medical records if a patient
(Consumer Rights Education and
asks for it.
Awareness Trust)
A patient should have the right to informa
tion not only about the disease but also drugs
and medicines. Almost all patients blindly fol
CLARIFICATION
low doctors' instructions. They do not dare to
While discussing courier services in these
ask questions lest the doctor be annoyed.
columns (3.1.97) a case relating to Sudhir
For instance, a study conducted by a doctor
Deshpande vs Elbee Services was quoted
at the University of California showed that
and it was said that the National Commis
only 2 out of 23 manufacturers were consis
sion had ordered Elbee Services to pay com
tent in what they told Indian and Latin Amer
pensation of Rs 1,29,992 to Mr Deshpande.
ican customers about their products.
Attorneys representing Elbee Services
Also, in Third World countries, it has
have informed us that the company went
become increasingly common to sell drugs in
in
appeal to the Supreme Court against the
foil strips without cardboard packs or pack
age inserts. Foil strips have the advantage of National Commission's order. Meanwhile,
a settlement was reached between the par
protecting drugs from humidity, but they
ties under which Mr Deshpande agreed for
have little space for vital information on
compensation of Rs 25,000.
dosage and precautions for use.
The Supreme Court also directed Mr
Patients should also have the right to
choose their health care. Choice implies con Deshpande to pay back the amount to
sent. Patients have the right to refuse treat Elbee Services after deducting Rs 25,000.
Since Mr Deshpande is yet to refund the
ment, provided they are well informed. The
amount, Elbee Services have filed a com
right to choice includes changing doctors,
plaint
in the National Commission.
confidentiality of their ailment etc. The
This clarification has been issued at the
healthcare system should be flexible enough
request of Elbee Services' attorneys.
to enable patients to choose their own doc
tor, healthcare provider and healthcare estab
lishment.
Write In
The right to participation ensures that
Send
in
your
queries
and concerns to: The
healthcare consumers receive adequate rep
resentation in policymaking bodies and deci Resident Editor, Times of India, 40/1
sionmaking processes. Right to participation M. G. Road, Bangalore — 560001.
CONSUMER RIGHTS
THE TIMES OF INDIA, BANGALORE
Zb/b/le^p
Consumer charter for health
BANGALORE:,
— CONSUMER RIGHTS —
Come Decem
ber, more than
Y.G. Muralidharan
600 members of
the civil society
able statistics is an indication. It is
from all over the
estimated that of every 1000 chil
world will be
dren bom. 70 die before the age of
converging
at
one and another 50 die before they
Dacca to re-es
reach the age of five. This is 12
tablish
health
times the rate for UK and about 5
and equitable development as times that of Sri Lanka. In every
items of priority in local, national one lakh birth about 510 women
and international policy making.To die. That is every year about
ensure this, a People’s Charter for 1,48,000 women die in childbirth.
Health has been formulated.
The global health crisis is due to
In an effort to find a solution to several factors. For example health
the current global health crisis and drug issues has never been
characterised by. growing in considered as part of an overall so
equities within and between coun cial policy. Secondly people’s in
tries a People’s Health Assembly
volvement in their own health de
(PHA) fias been planned.'lhe assembly aims to draw on and sup velopment is not encouraged or
port people’s involvement in their promoted. There is reduced state
struggle to build long term and sus responsibility at all levels as a con
tainable solutions to health prob sequence of widespread privatisa
tion process.
lems
" ■
In this background the civil soci
Twenty years ago the world com
munity adopted a resolution to ety groups meeting at Dacca has
provide Health For All by 2000. It formulated a People’s (consumers)
meant that national governments Health Charter which addresses
should provide primary healthcare several consumer related issues
for everyone, irrespective of the like the ongoing deterioration of
ability to pay for it. It laid emphasis the health situation, particularly of
on primary health centre including the poor, lack of participation of
health education, promotion of most people in decision that effects
food supply, proper nutrition, equi their lives at levels and lack of ac-.
table supply of safe drinking water cess to quality, affordable and uni
and control of endemic diseases versal primary health care.
The charter says that the present
More' importantly it accepted
state of health affairs is due to pre
health as a fundamental right.
Unfortunately today the health vailing dominant world economic
scenario is highly disturbing. De order which is creating greater in
spite medical advances and in equalities and poverty despite
creasing average .life expectancy, growing world wealth. Secondly,
there is evidence of rising dispari governments have failed to con
ties in health status Enduring. front transnational companies
poverty.with all its facets and in ad which are the main driving force
dition ^epidemics like HTV/AIDS behind many of the health related
are leading to reversals of previous problems. The charter says that the
health gains Last year the World role in world governance played by
Health Organisation .(WHO) re a few advanced industrial coun
ported that certain diseases likeTB tries, few hundred multinational
and Malaria which was thought to, companies supported by World
be eradicated are back with a Bank, the International Monetary
vengeance. In India every year 5 Fund and the World Trade Organi
lakh die of TB and over 9 million sation is a major cause of worry for
cases of Malaria are reported.
■world health situation. •
;’
r Part of this gloomy situation is .
A large number of voluntary
because of faulty planning and ad-? health and consumer organisations
ministrative distortions. The avail- .' in India have taken up the issue se:
riously. Associations like the
Catholic Health Association of
India, Drug Action Forum. Kar
nataka Rajya Vignana Parishat,
Voluntary Health Association of
India, the Vivekananda Founda
tion etc have started a series of ac
tivities to promote people’s health
charter. Keeping in mind the pecu
liar situation in India, a draft char
ter has been prepared whichcalls
for a thorough look at the primary
health centres and its working, it
calls for immediate action to up
grade these PHCs and be run with
people’s monitoring and involve
ment.
Most importantly the Indian
charter demands a rational and
people oriented drug policy with a
ban on irrational, hazardous and
redundant formulations. Other
points of action include production
quotas and price ceiling for essen
tial drugs, compulsory use of gener
ic names repeal of the new Patent
Act and control over the multina
tional drug companies Tne charter
wants the government to support
traditional healing systems
However, none of these charters
mention anything about quacks
who are playing with the lives of
consumers, particularly in rural
India. Though government may
enact legislations to ban quackery,
but ultimately it is the people and
the community which can really
put an end to this unhealthy sys
tem. How people can do this needs
to be highlighted in these charters
Those interested in PHA activi
ties may email: sochara@ysnl.com
THE TIMES OF INDIA, BANGALORE
‘Doctors can’t
expect to loot
& scoot forever’
Kalpana Jain speaks to Dr N.H. Antia
about the Supreme Court judgement
which brings doctors under
the purview of the CPA
depended on medical colleges
and expected doctors to go to ru
ral areas. Both had their own
problems, which we could not
foresee.
•
The . medical
profession
thought that Western science will
solve all our problems. The trou
ble with Western science and
technology was that it was a re
sult of revolt against Christian
church dogma. They didn't real
ise that it was the ritual in dogma
that was disturbing. They threw
out the religion. What resulted
was a dissective kind of science. It
was discovery of the method of
discovery.
The problem was while science
found the atom and the gene, it
threw out religion, which has
Excerpts from the interview: morals and ethics. Powerful
Do you think the Consumer knowledge without the wisdom
Protection Act will be able to to use it, resulted in its misuse.
help patients?
Western science does not even
It is true that insurance premia understand the mind, it under
wi^^o up and medical costs will stands the brain — which is a
ir^nse. But it had to come. The machine.
porcy of loot and scoot cannot
What is responsible for the de
work for a long time. Ten years cline of values at prestigious in
ago doctors paid Rs 100 as mal- stitutions like the All India Insti
; practice insurance. That means tute ofMedical Sciences?
virtually no one- sued. Now, the
We have to take a look a the
insurance premium is running overall picture. Anything that be
comes too large is difficult to
into thousands.
All this is bound to happen if tackle. We have to see why we are
you lose your moral and ethical in this situation. We had a blue
basis of life. All prophets have print for developing health care
said: subdue greed. Are they out in the form of the Bhore commit
dated? The medical profession tee and Sokhey committee re
1 has converted health into illness ports, which talked about decen
and illness into industry. A per tralised health care.
son from the middle class is will
We had four major problems
ing to sell his house to get his fa when we attained independence:
ther treatment for heart disease.
small pox, cholera, malaria and
J
It is also a fact that you cannot plague. With simple technology’
run the world on a legal basis. and masses of workers, small pox
When everyone becomes im was eliminated. There was no po
moral, you cannot legislate. litical interference and no unions
Therefore, we have to support a to check us from enforcing work
culture. Malaria cases came down
new'wave, it will come.
What has brought health care to 65,000 in 1965 and cholera
was controlled to some extent. It
to this state?
My main criticism is that we proved that people can do lots
depended on the medical profes even with limited resources.
sion to provide .leadership in takBut soon the few elite mo•' ing heaTth care to the'people: We "nopolised
technology.
Self-
. recent Supreme Court (le
sion to bring doctors under
purview of the Consumer
ction Act has worried the
medical fraternity. However, Dr
N.H. Antia, an acclaimed com
munity health expen, feels this
was necessary to check malprac
tices that have come into the pro
fession.
Dr Antia is a plastic surgeon
and has done extensive work
• with leprosy patients. He is direc
tor of the Foundation for Medical
Research and the Foundation for
Research in Community Health in
Bombay. A recipient of the Padma
Shri and the Gandhi Award for In
ternational Understanding, he is
evolving models to take health
care to the masses.
S
V-
interest was important. There was ning.
no interest in educating people.
Now we have these adviser
They saw medicine as a good way come and tell us how to handb
of making money. In fact, the best tuberculosis. They tell us to tr
way, as there was no consumer DOTS, where a health workc
resistance. The United States, too, opens the mouth of each patien
has shown that it is the fastest- and pops the drug in. [t has beei
growing industry-.
tried on a fevy thousand patient
The Westernised medical pro in New York, they say.
fession has denigrated all our
My view is that people in Indi;
own systems of medicine. While love suffering from TB; they lovt
the West has evaluated technol passing it one to their wives; the;
ogy’, we have just borrowed love passing it on to their chil
Western technology. The West dren and they love dying of it
has shown that general develop Hence they do not take the medi
ment is important to control cines.
The health minister has al
communicable disease. But we
have done the opposite. The ready said that India will not bi
medical profession has failed the able to meet its commitment to
country in-its greed.
wards Health for AU by 2000
What has led to a failure of How do you feel it can b<
major national disease control achieved even a few decade
*
later?
programmes?
Health has to viewed in it
We have taken up vertical pro
grammes without any knowledge overall context It cannot bi
of sociology. The primary health separated from other develop
centre has nothing to do with meat 'indicators. And this can b<
people People go to private prac done through panchayat raj. The
titioners and take a vitamin injec village can be made a nice self
tion. An intravenous drip is given sustaining unit with lots of cul
in which the needle is taken out tural activity. How can you talk o
from the arm of one, wiped and health without nutrition, educa
pushed into another. It gives tion, water supply and sanitation.
them some energy and they feel
Kerala has shown that we neec
better.
not be very wealthy to be healthy
If the village woman is edu The. US has achieved an infani
cated. she will be able to handle mortality' rate of 10 after spend
health care needs better as she is ing S 5.500 per capita per annum
interested in looking after the vil Kerala has achieved an infani
lage. Instead, the medical profes mortality rate which is close
sion is buying so-called high enough. , 17, after spending $ 2C
technology' for what — for few per capita per annum.
more months of life for a cancer
You should reach the best ol
patient. We don’t look at our own all systems to the people. Use the
systems which, are very good for Western system for communica
non-communicable diseases. The ble diseases. Also use the; best ol
classical instance is-family’ plan Indian systems.
THE CUTS I
..
newsletter
14th World Consumer Congress, Sept '94
CONTENTS
We present herewith a collection of articles specially written for the 14th World Consumer
Congress and commend them for your kind perusal. Given below are the names and a
small summary of each of the pieces:
■ LEADER: CONSUMERS OF THE WORLD UNITE
...
1
■■■
2
...
4
...
7
As the world is becoming one big global market, the need to end the North-South divide
in the global consumer movement is imperative.
■ DOCUMENT: CONSUMER MANIFESTO 2000
The UN Guidelines on Consumer Protection is nearing a decade of existence. Stock taking
of the Consumer Manifesto 2000 adopted by IOCU members in New York in 1986 and a
resolution of the ESCAP of April,1992 which seeks to accelerate the implementation of
the UN Guidelines on Consumer Protection in the Asia Pacific region.
■ YOUNG CONSUMER ACTIVISTS: TRAINING A TRIBE
A report on an exciting training programme for young consumer leaders that CUTS, in
association with IOCU, is undertaking in India to meet the challenges of the 21 st century
and the new coalition which seeks to bring about a rational drug policy.
■ RURAL CONSUMERS: HELPING THE POOR, AND WOMEN
It is simply not true that the consumer movement in India exists only in its cities - a small
report on few exciting case studies of consumer action in rural areas of Rajasthan, which
has resulted from an intensive, extensive and ongoing training programme being conducted
by CUTS.
9
■ INDIA: A PLANET IN THE TNC UNIVERSE
For decades, India followed an independent path to economic recovery. The former
programme had a strong emphasis on self reliance in technology and products. But in
1991. India suddenly decided to open the floodgates to TNCs. Today the country’s
experience with TNCs offers vivid images to the developing world on what they can
expect from a liberalisation programme gone out of control.
18
■ TRANSNATIONAL CORPORATIONS: TOO BIG FOR RULES
Report on the failure of the international community to harness TNCs when the last ditch
efforts to rescue the UN Code of Conduct for TNCs flopped and pointers for future.
■ CAMPAIGN: DELHI DECLARATION ON FAIRPLAY IN GLOBAL BUSINESS
The declaration as adopted by the participants at the CUTS-IOCU International Conference
on Fairplay in Global Business held at New Delhi during 14-15, February, 1994 which for
the first time discussed the fate of adoption of the UN Guidelines for Global Business, the
new soft avatar of the UN Code of Conduct for TNCs.
■ INTERNATIONAL CONFERENCE ON COMPETITION POLICY
On the inside back cover there is an announcement of an International Conference on
Competition Policy in the Context of Liberalisation to be held in New Delhi during January
20-21,1995 which resulted from the February conference on global business. To many of
us this seems to be the only area left for saner elements to get their hands on the levers of
world trade, even as WTO grapples with time to evolve a pioneer competition policy.
The CUTS newsletter: 14th World Consumer Congress, Sept'94
-■
20
■ LEADER
CONSUMERS OF THE WORLD UNITE
PRADEEP S. MEHTA & UDAYAN NAMBOODIRI
The North-South divide in the
consumer movement must end
he integration of the world into one
composite trade block bound by
common rules makes the world consumer
movement an extremely important
instrument to articulate the economic and
environmental concerns of human beings
globally. Therefore “Consumers of the
World Unite “ should be the logical
message to ring from the 14th IOCU
World Congress.
T
Sadly, those of us who have given our
lives nursing this movement from its early
stages, are already discerning a schism
growing in the movement. The northern
consumer is speaking in one voice, the
southerners in another. The former thinks
goods made with child labour should be
boycotted. The latter says this is a ruse to
protect the high-cost industries of the
north. On the other hand the northern
businesses unload unsafe medicines,
pesticides etc on the unsuspecting south,
which many of us in the south would like
to be boycotted.
This is not only unfortunate but also
dangerous. With the the all-round
withdrawal of government from the
economic process, the cry “Workers of
the World Unite” needs to inspire the
consumer movement as well. The only
positive checks and balances that can be
offered to big business is a globally united
consumer movement. And they should
not get the slightest opening to infiltrate
into our struggle.
ROLE OF IOCU AND CONGRESS
Today the IOCU is doubtless doing
commendable work in binding the
disparate cultures that make up the
movement with common concerns.
Thanks to its inititatives and
interventions, the consumer movement’s
concerns were advocated before GATT,
including opposing the much abhorred
patents regime which has caused serious
concern in many developing nations
including India.
This Congress should critically evaluate
lOCU’s role, not just praise it. What, for
instance, is the IOCU? Is it us, the men and
women working in cities, villages and
deserts awakening people about their
rights? Or a mere postal address to which
we seek network support and funding?
Declaration (Pg. 20). We would have liked
the event to be a bigger one, but still it was
an important beginning. We would like to
follow it up with a similar conference next
year on the need for adoption of an universal
competition policy and thus seek members’
support.
CONSUMER MANIFESTO 2000?
Like in previous years CUTS has taken out
a special IOCU World Congress number of
its newsletter. We decided to attract the
members’ attention to the real issues in
India, the country of 900 million consumers
or roughly one-sixth of humanity. We hope
it serves as a show window of the problems
that result from following an open door
policy with TNCs.
The road before us is very hard. So we must
tone up the organisation. The Consumers’
Manifesto is a forgotten document today.
We must look into it afresh and revivify it.
Members must use IOCU more frequently
as a forum than a mere address to write for
information for several things. The
infrastructure of IOCU is perfectly suited
to bind us all together into a common body
so we can fight for our basic goal of Value
for People.
That the consumer movement is like a
phoenix rising from oblivion need not be
overemphasised. In our country for
instance, there were barely a couple of
dozen voluntary groups at the turn of the
1980s. Today there are over a thousand. The
government of India takes the movement
very seriously and these organisations are
seen forcing its various arms to prove this
through action. We feel proud not only for
CUTS, but for India too, that the first ever
NGO initiative to press for the UN
guidelines on TNCs was held here (CUTSIOCU Conference on Fairplay in Global
Business, New Delhi, Feb.14 & 15,1994)
and led to the adoption of the Delhi
The CUTS newsletter: 14th World Consumer Congress, Sept’94
GLIMPSES OF CONCERNS
There is no doubt that developing countries
need to shed their old fears about the North.
But the opening up process must be
cautious, never hasty. At stake are the
interests of the consumers who have been
used to certain traditions.
That the market is never perfect and needs
constant correction is best illustrated by the
widespread damage to the social, economic
and political scene by unchecked FDI. We
are afraid that for constraints of space we
can offer only glimpses. Members are
welcome to visit our ancient land to study
its modem problems first hand. We promise
it will be a rewarding experience and shake
us all out of our complacence.
■ DOCUMENT
CONSUMER MANIFESTO 2000
This Manifesto was adopted by IOCU members who had
gathered in Bronx, New York in the summer of1986 to discuss
the direction of Consumer Policy until the end ofthis century.
he modem consumer movement, bom
more than 50 years ago, has become
an important means to achieve a just and
fair society.
T
As we move towards the year 2000 it
remains committed to this aim. Its theme is
that the conditions in which consumers have
to live must become better and more
equitable. It applauds economic growth
only when this leads to well-being and
happiness.
By careful research and concerted action,
it sets out to redress the imbalance in
knowledge and power between suppliers
and consumers. It has concrete economic
and social ills to challenge, specific market
abuses to change, and shortsighted
exploitative and destructive use of resources
to expose. It draws attention to the need to
change bad systems, as well as to deal with
their unpleasant symptoms.
The principal needs of the consumer —
access to essential goods and services and
fair choice, safety, information,
representation, redress, consumer education
and a healthy environment — form the
agenda of the consumer movement. The
market place and public authorities alike
should become more responsive to those
needs.
Such responsiveness includes:
* participation by consumer organizations,
on an equal footing with other corporate
groups in society, in the formation of
policies that affect those they represent;
* ensuring that the basic needs of all
consumers are met : adequate food,
clothing, shelter, health care, sanitation
and education;
* measures to enhance fair competition
and to control harmful business and
professional practices; for example, to
oppose practices that mislead, restrict
choice, or erect barriers to trade so as to
“protect” business and state enterprises at
the expense of the private individual;
* laws and standards that safeguard
consumers from hazardous goods and
services, as well as from the social costs of
environmental pollution;
* procedures, formal and informal, to
provide effective redress to aggrieved
consumers at all income levels;
* accurate and adequate information to
help consumers choose, an example of the
consumer movement’s own contribution
being the publication by IOCU’s affiliates
of comparative test and survey results;
* consumer education to ensure that all
people may acquire the knowledge and
skills necessary to be informed and active
consumers exercising their rights and
fulfilling their economic role; special
attention must be given to the needs of
vulnerable groups such as children,
handicapped and the elderly.
The CUTS newsletter: 14th World Consumer Congress, Sept'94
We assert the right of organized consumers
to be represented, heard and heeded —
nationally, regionally, and internationally.
Through IOCU, consumer representatives
have successfuly called these needs and
interests to the attention of the United
Nations. The Guidelines for Consumer
Protection, adopted by Resolution of the
General Assembly, map out a future that it
is our duty to advocate and realize for all
consumers. By “all", we mean five billion
consumers, organized and unorganized, in
richer countries and poorer, whose wish is
to dwell in peace and safety, enjoying goods
and services that are a fair reward for honest
work.
The following are among the goals we aim
at before this century is over:
1.
Full implementation in all countries of
the United Nations Guideliens for
Consumer Protection and the
establishment within the United Nations
of a monitoring and assistance system
for such implementation.
2.
Adoption by the United Nations and full
implementation by governments of a
Code of Conduct on Transnational
Corporations.
3.
Promoting the fulfillment of basic needs
of all consumers, in particular of the
poor, low income and disadvantaged
groups.
national and international food policies
aimed at meeting people’s need for safe
and nutritious food.
7.
4.
5.
6.
Establishment of national and
international laws that prohibit trade in
hazardous products and eliminate
double standards in international trade.
Establishment of stringent international
guidelines on the siting and operations
of potentially hazardous industrial
and agricultural plants, processes and
practices, including the right to full
information by the local community and
the workers.
Elimination of economic practices
which inhibit the equitable distribution
of food and the encouragement of
Implementation of policies on new
information technology which ensure
on the one hand the fair protection of
consumers and on the other that they
can make full use of the technology for
their own benefit.
8.
Development of testing and research
with particular reference to the needs
of Third World countries, building on
the experience, skills and resources of
IOCU’s testing organizations.
9.
The reduction and finally dismantling
of trade barriers which have a negative
impact on consumers and the
establishment of national bodies with
consumer
representation to analyse
and publish the relevant information
concerning the costs and benefits of
proposed and existing trade controls.
10.
Ensuring responsiveness of
monopolies providing services to
consumers, including ways to
measure their performance in
relation to meeting the needs of
consumers and to ensure
accountability.
Looking towards the year 2000,
IOCU
and
its
member
organizations reaffirm their
commitment to produce social
change. We shall do so by striving
to attain the goals set out above.
We shall vigorously continue to
work within and strengthen the
networks and programmes
already established to fight
hazardous commercial practices.
We shall intensify our efforts to
seek fair protection of consumers
and representation of their
interests in the economic field. In
all this our aim will be to further
a society responsive to the
consumers interest. Q
UN Guidelines for Consumer Protection
s we enter 1995 there is a cause for celebration as it will
witness 10 years since the UN Guidelines for Consumer
Protection were adopted by the United Nations in 1985. In the
Asian region there was a kind of stock taking on this during
1990, when the Economic and Social Commission for Asia
and the Pacific organised a regional seminar at Bangkok during
19-22, June, 1990.
A
The following resolution was adopted at this seminar, which
we think important to reproduce here for the benefit of
consumer activists and for follow up towards fruition.
The Economic and Social Commissionfor Asia and the Pacific.
Recalling General Assembly resolution 39/248 of 9 April 1985,
in which the Assembly adopted guidelines for consumer
protection,
I. Commends the Executive Secretary on the efforts currently
being undertaken by ESCAP to promote the implementation of
the guidelines for consumer protection;
Noting with satisfaction the recommendations of the United
Nations Regional Seminar of Consumer Protection for Asia
and the Pacific, held at ESCAP from 19 to 20 June 1990,
Noting also Economic and Social Council resolution 1990/85
of 27 July 1990 on consumer protection, in which the SecretaryGeneral was requested in cooperation with, inter alia, the
regional commissions of the United Nations to continue to
provide assistance to Governments, in particular to those of
developing countries and other interested countries in
implementing the guidelines for consumer protection, and to
develop a programme for action for the next five years on the
implementation of the gnidelines.
2. Requests the Executive Secretary, for cooperation with non
governmental organisations, development funds and
programmes of the United Nations, and other relevant bodies
and agencies in the United Nations system, to promote the
implementation of the United Nations guidelines for consumer
protection, initiate specific activities to follow up the
recommendations of the Regional Seminar on Consumer
Protection for Asia and the Pacific and to seek such
extrabudgetary contributions as may be necessary for that
purpose.
__________
The CUTS newsletter: 14th World Consumer Congress, Sept'94
739th meeting, 23 April 1992
3
■ YOUNG CONSUMER ACTIVISTS
TRAINING A TRIBE
SHIVANIPRASAD
In association with IOCU, CUTS takes up an exciting
programme in India to create a breed ofyoung consumer
leaders to meet the challenges of the 21st century
consumers, and for consumer activists to
demand better legislation from their
governments. Since then the consumer
movement has never looked back.
ROOTS IN INDIA
hough laws for protecting consumer’s
interests existed as long ago as 400
B.C., the roots of the modem consumer
movement in India can be traced to 1913,
when in Bombay, citizens formed the
Passengers and Traffic Relief Association
and in 1949 when the Madras Provincial
Consumers Association came into being.
T
Shanti Ramanathan of IOCU addressing participants at ths first workshop on "Skills in
Consumer Campaigning" organised by CUTS and IOCU at Calcutta, January 1994,
hen Karl Marx propounded his
theory of 'Economic Determinism',
neither he nor anybody had realised that
very soon it would come true and the world
would became a large market place
dominated by two major groups - the
producers and the consumers. However this
market was not in favour of the consumer
despite their being more in number and was
strongly tilted towards the producers or the
providers who held the reins of the
economy.
W
Yet, as it is truly said, no condition can
remain constant forever, now we can feel
clearly the blowing of the winds of change.
A slow and silent movement - the consumer
movement - is sweeping across the world
today. The most important aspects of this
movement are - it is democratic in nature,
it speaks of the urges and the aspirations of
the people and it has unified the people
irrespective of age. sex, caste, colour and
creed.
Consumers are now awakening from their
‘great sleep’, asserting their rights and are
putting pressure on those elements who took
them for granted.
ROOTS
t was in the USA, that the consumer
movement has its roots, when in 1900,
the American Consumer League was
formed to tackle an increasingly complex
market place following the industrial
revolution.
I
In the sixties, some voluntary consumer
bodies were formed, notably the Consumer
Guidance Society of India in Bombay.
However it is during the late seventies and
early eighties that the consumer movement
gathered momentum.
In India liberalisation began in the mid
eighties, when the late Prime Minister Rajiv
Gandhi launched the process of reforms. He
was farsighted enough to realise that
consumers need protection not only against
unscrupulous traders and manufacturers,
but also against the monopolistic public
utilities which are inherently anti-consumer
His observations and thoughts finally
culminated in an omnibus Consumer
Protection Act in 1986, which for the first
time recognised six rights of consumers'.
“If the consumer’s interest suffers, the
national interest suffers”, said the illustrious
US President John F. Kennedy, while
advocating the famous Bill of Rights for
Consumers before the US Congress on
March 15, 1962.
1.
2.
3.
4.
5.
6.
Ten years later the International
Organisation of Consumer Unions (IOCU)
adopted March 15 as the World Consumer
Rights Day to be celebrated from 1983. In
1985, the efforts of IOCU suceeded in the.
United Nations adopting the UN Guidelines
for Consumer Protection - a tool for nations
to adopt measures for protection of
The only law of its type in the world.
exclusive courts for consumer disputes have
been set up at district, state and national
levels to provide simple, inexpensive and
timebound adjudication.
The CUTS newsletter: 14th World Consumer Congress, Sept'94
Safety,
Information,
Choice,
Representation.
Redress, and
Consumer Education.
The courts are empowered to give various
reliefs:
1.
2.
Removal of defect,
Refund of price,
continent..
SERIES LAUNCHED
3.
Replacement of goods,
Withdrawal of and ban on marketing of
hazardous goods,
"The success of this workshop can only be
measured in what you young leaders do
with the newly acquired knowledge in the
months to come. It should be your
commitment that your knowledge should
enrich your organisation and they be better
equipped to conduct consumer campaigns”,
thus spake Shanthi Ramanathan, Project
Officer of IOCU, Penang, at the inaugural
session of the Training Workshop for Young
Consumer Leaders at Calcutta on January
22,1994.
he workshop programme was such a
huge sucess that both the participants
and the organisers felt that one workshop
is not enough for imparting the multifarious
skills of consumer activism. And thus the
idea of second workshop came into being.
The second on Skills in Advocacy and
Media: “Reaching Out” was held at New
Delhi during 14-18, August, 1994.
4.
5.
Removal of unfair and restrictive trade
practices,
6.
7,
Compensation due to negligence, and
Costs of litigation.
The law also spurred the development and
growth of several consumer groups.
Launched in 1983, today CUTS is the
second largest consumer group in India and
at the forefront of several happenings in the
history of the Indian consumer movement.
LAUNCH OF TRAININGS
One key feature of the programme was to
enable the trainees to interact with current
consumer leaders in India. Realising the fact
that the best learning can be done through
n today’s age the
world is becoming
increasingly
complex, as the borders
are crumbling in the
wake of globalisation
and marketisation of
several
protected
economics, including
that
of
India.
Liberalisation
of
economy has heralded
newer
forms
of
marketing and products,
and a very complex
market
leaving
consumers confused and
bewildered.
I
T
Instead of lectures in the abstract, the
workshop was woven around four current
issues of social concern:
1. Legal redress, innovations and delays.
2. Pollution in cities, quality of life.
3. Safe drinking water, elusive goals
4. Irrational and sub
standard drugs and
prices.
The structure of the
second
workshop
involved
the
impartation of skills in
both advocacy and
media
with real
persons.
The success story of
first workshop was
repeated in the second
one
also.
The
participants
were
divided into four
groups and were asked
to draw up workable
Over a period of time,
plans
on the four issues.
A participant, Raghav Narsalay at the workshop on ' Skills in Consumer Campaigning"
CUTS realised that the
The response of the
present consumer movement, dominated by
participants was quite enthusiastic and they
actual examples, CUTS selected three
a handful of consumer activists, is incapable
successes and three failures of consumer
came out with many innovative ideas.
of tackling the new challenges..An urgent
campaigns at three levels: local, provincial
need was felt to scientifically promote a
The most interesting and exciting part of
and national. The participants analysed the
generation of young consumer leaders who
the workshop was the participation of the
causes for failure and success of a
can carry the flag into the 21 st century. The
youngsters on the ‘Question Forum’ - a
campaign. The rest of the event dealt with
regional office of the IOCU saw reason in
popular national TV programme. The
the know-how and do-how of designing and
young activists threw a numberof questions
this viewpoint.
implementation of a campaign - advocacy,
to a distinguished panel of persons like Dr.
communicating and dealing with the
G. Sundaram, Secretary' in the Consumer
As a part of its programme to strengthen
government and courts.
Affairs department of the Govt of India.
the consumer movement in India, the IOCU
Justice V. B. Eradi, President of the National
selected CUTS to organise a training
The process was extremely interactive with
Consumer Disputes Redressal Commission.
workshop to impart leadership traits among
trainees divided into four working groups
Ms. Pushpa Girimaji, a popular consumer
to ensure maximal participation and
the young leaders.
columnist, Mr. S. P. Virmani. a businessman
interaction. Said a trainee Sonal Mehta:
and past President, Council for Indian Food
About 25 activists in the country between
"The'workshop was indeed exhilarating,
Trade & Industry, and Mr. Pradeep S Mehta,
excellent combinations of theoretical
the ages of 25 and 35, both staff and
a noted consumer activist. The programme
volunteers were identifted.Those cleared,
framework and practical experience with
was an eye-opener for all the participants,
were invited to participate in the first ever
actual examples of successes and failures.
as they got a hands-on exposure in using
It gave a lot of intellectual excitement and
training programme on Skills in Consumer
the electronic media for lobbying.
Campaigning, with priority to members of emotional triggering. We look forward to
IOCU affiliated organisations in the sub
the next one.”
The CUTS newsletter: 14th World Consumer Congress, Scpt'94
participants, as succinctly observed by one
of the young activists Yogini Acharya of
ACASI-I, Bombay: “It’s good to be back
with our respective organisations armed
with the strong knowledge base and skills
acquired at the workshop.”
Others were overwhelming in their
feedback. Said Parag Redkar of Mumbai
Grahak Panchayat. Bombay: “CUTS have
foresighted the need of Indian activists and
organised such a unique programme for
constructing a movement, itself a milestone
in the consumer movement." His colleague,
Raghav Narsalay acknowledged the values
learnt: “ The workshops are among the few
instances in my life that have taught me
what hard work is. Most of the resource
persons were outstanding.”
Umesh Anand, a journalist, speaking to the participants at the second training workshop:" Reaching
Out" held at New Delhi, August 1994.
Supreme Court. Consumer and health
groups should intervene in the same to
pressure the court and build up
solidarity.
CAMPAIGN ON DRUGS &
MEDICINES
t the concluding session, it was
decided unanimously that one single
issue should be selected for evolving a
workable action plan. The issue selected
was drugs and medicines - a very timely
and important issue, thus a campaign was
revitalised.
A
Stressing on the importance of a rational
drug policy, the All India Drug Action
Network coordinator. Dr. Mira Shiva, as one
of the key resource persons at the workshop,
said: “ If we do not immediately gather a
mass base for a rational drug policy,
essential drugs required by SO percent of
our population will be beyond their reach
in terms of prices.”
4.
In view of attractive incentives, doctors
often over-prescribe unnecessarily.
Consumer and health groups should
conduct test checks at major
pharmacists’ shops, obtain copies of
prescriptions and expose such doctors.
A MILESTONE
hus the final outcome of the second
workshop was concrete and on a timely
issue in India. This outcome charged the
T
A third workshop scheduled at Ahmedabad
in February, 1995 will impart training in
strategic planning and capacity building
again to be woven around the one issue of
rational drugs. The fourth and conclusive
workshop will be held at Bangalore to cover
uncovered issues, take stock of the whole
excercise and the campaign on rational
drugs. Donor agencies would also be invited
to send their representatives to this
culminating event.
The logical end envisaged is the building
of a second line of leadersliip in the Indian
consumer movement. One that is alert to
the fast developments in the world of
communications and conscious of the need
to build bridges with the community. The
questioning society thus developed will
make a positive contibution to the growth
and progress of the nation. 13
A four point action plan was proposed by
the participants to work on the drug issue:
1.
A mass signature campaign on a
memorandum demanding a rational
drug policy be launched, so that while
people are educated a pressure is also
created on the government.
2.
Many banned drugs are still sold in the
local markets. Consumer groups
should buy them and file cases in
district forums under me Consumer
Protection Act, so that there is a local
media interaction leading to higher
awareness.
3.
A writ petition on banned and bannable
drugs is already pending in the
Working groups at the second workshop seen absorbed drafting press releases.
The CUTS newsletter: 14th World Consumer Congress, Sept'94
■ RURAL CONSUMERS
HELPING THE POOR, AND WOMEN
PRADEEPS. MEHTA
Nearly 300 rural consumer activists have been trained by CUTS in
Rajasthan, a state in north-west of India, and they are tackling a range
of citizen abuses.
t is indeed a fallacy to continue to believe
that the consumer movement exists only
in the cities of India. Today it is not only
helping the well-to-do but a large section
of poor and illiterate brethren in villages
also. Thanks to the Consumer Protection
Act of 1986 (COPRA) and a growing army
of dedicated and trained activists in India’s
rural areas.
I
a rural hinterland of
nearly
50,000
people.
Farmers who have
to obtain a loan
under
the
Integrated Rural
Development
Project or similar
The need for such activism is directly
scheme from the
proportional to the increasing consumer
local co-operative
abuses in our society. Many continue to
bank need to apply
make a fast buck by cheating helpless
with three copies of Rural women at CUTS Centre for Human Development, Chittorgarh at
passport
size the first training programme for women, December 1991.
consumers, as if it is a normal thing. The
outdated anti-consumer clause : ‘Goods
photographs. The
woes to the assistant manager: Goverdhan
pictures arc affixed to the loan papers for
once sold will not be taken back’ continues
Lal Sharma, who also happens to be the
proper identification, especially for the
unbridled.
founder secretary of the Rashmi Tehsil
illiterates.
Upbhokta Sangrakshan Samiti, a local
WIDOW’S WOES
consumer group.
One such illiterate widow, Sunder Bai Orh
of village Lasadiya Khurd applied for a
n Rashmi, a small tehsil/taluqa
Sharma took up the matter with Amar Art
short term crop loan of Rs.2000 to the
headquarters of the Chittorgarh district
Studio but he only received threats and
Chittorgarh Central Co-operative Bank’s
in south west Rajasthan, there are two
abuses. Undeterred, he asked Sunder Bai
branch in Rashmi on 28th February 1991.
photographic studios. Amar Art Studio
to put her left thumb impression on a
She went to Amar Art Studio for the
owned by Bhanwar Lal Sharma and the
complaint to the Chittorgarh district forum
necessary pictures and paid Rs. 15 for 3
Mateswari Photo Studio owned by
and a letter authorising him to appear on
copies of her P.P. photo. Since she cannot
Shankerlal Prajapat. Considering the need
her behalf.
read she did not see the condition on the
for photographs by consumers for a
bill, that she should have paid only half the
thousand and one reason, they are doing a
Unlike the city district forums, the
price as advance.
fairly good business. Though the population
Chittorgarh Distt Forum sends notices
of Rashmi is only 10,000, the town serves
through the Tehsildar (the lowest revenue
She and her son went
official) instead of postal deptt. It does not
to Amar Art five
have a budget for such valid expenses. Well,
times but was
as soon as Amar Art received the notice.
handed out one or
the proprietor quietly approached friends in
the other excuse. Her
the bank and affixed the pictures in Sunder
loan was stuck and
Bai’s file.
she had to borrow
from a moneylender
Close on the heels of this complaint.
at usurious interest to
Goverdhanlal was deluged by similar
finance the sowing
grouses against both the studios. Dhukal
of pulses etc. in her
Chamar had asked for Rs.2000 loan for
tiny 8-bigha (2.5
purchase of goats, Mohan Chamar had
acres) land-holding.
wanted Rs.800 for a crop loan, and Janakilal
Sharma Rs.1000 for a similar purpose. All
In one of her visits to
were in the same boat.
the local marketing
co-operative society
Both the studios, working in cahoots, were
to buy fertilizers etc.,
piled with a barrage of complaints in the
she narrated her
Women protesting for closure of an arrack shop.
I
The CUTS newsletter: 14th World Consumer Congress, Sept'94
consumer court for delivery of pictures,
return of money and damages as well. While
they unsuccessfully contested these cases,
they stopped cheating other innocent,
illiterate and poor consumers.
It was not a case of few rupees for the non
delivery of pictures - but its multiplier effect
on the economy as a whole. The mischief
of a small neglect, immortalised by
Benjamin Franklin in his famous poem
For want of a nail, the shoe was lost...
the horse was lost ... the battle was lost ..
the country was lost “.
ADVOCACY PAYS
his is not a story of nails but that of
stone dust in ‘atta’ (wheat flour used
to make local bread). Since the arrival of
electricity power in many of our villages,
local entrepreneurs have set up attachakkis
or electrically driven flour mills. This has
reduced the drudgery of village women-folk
to a large extent, if at all.
T
Three consumers namely Gyarsiram,
Ramesh and Ram Sahay of village Khan
Satai Khedi in Kota district had got their
wheat ground at a local chakki owned by
Hanuman and Sheodayal. Their atta was
spoiled due to dust from bad millstones.
They then complained to a local consumer
group.the Kota Zilla Gramin Upbhokta
Sangrakshan Samiti. village Luhawad,
whose secretary'. Fazr Mohammed sent a
notice of the complaint to the chakki
owners.
Rather than face protracted legal
proceedings,
the
chakki-owners
surrendered to the group and paid Rs. 68 to
Gyarsiram for spoiling 13.5 Kg. wheat, Rs.
150 to Ram Sahay for 30 kgs and Rs. 50 to
Ramesh for 10 Kgs. In this case the threat
of COPRA worked with the chakki owners.
measures inspector and the sh.op owner was
fined Rs. 300. Similarly, Kalal also stopped
corruption by the village council head who
religiously collected Rs. 100 to 150 from
farmers for issuing revenue certificates,
while the official fees was only Rs.20. Now
farmers of Upreda pay just the official
charges.
POSTCARD - A POTENT WEAPON
aswant Singh, an agricultural teacher in
Masuda, District Ajmer, has been
associated with CUTS since its inception.
In 1985 he set up the Ajmer Distt. Rural
Consumers Organisation. By the simple use
of a 15 paise post card the group has been
able to resolve hundreds of complaints. For
instance, widow Hiradevi was unable to
recover Rs. 55,000 from the Life Insurance
Corpn. of India against her late husband,
Badri Prasad’s policy. The group sent a
postcard to LIC which promptly settled the
matter.
J
It has also resolved many non-consumer
disputes by using the same humble weapon.
Balchand Sain of village Juni Kekri in the
same district could not get a rightful job in
the govt, deptt. that his father had worked
in and died while in harness. On (his group’s
intervention he was called to join.
Earlier, through a novel postcard campaign,
a group in Mithariya village of the Bikaner
distt. had got an electric transformer
installed. It was an interesting story. The
state legislator from the constituency was
annoyed with the village as it had not voted
for him, so he got the installation blocked.
As a result there was no electric power in
the village.
In another instance, a similar threat worked
with a prospective chakki owner. Prakash
Chand of Hingora village in Chittorgarh
district had applied for a new electricity
connection to the Rajasthan State Electricity
Board, but nothing happened for over six
months. He filed a complaint before the
Chittorgarh distt forum. Just on reciept of
the forum’s notice, RSEB delivered the
connection.
Another Chittorgarh based group in village
Upreda, once hauled up the fair price shop
when caught selling under weighed
kerosene. The group, headed by Ramlal
Kalal, complained to the area weights &
The CUTS newsletter: 14th World Consumer Congress, Sept‘94
Several efforts by the villagers proved
futile, until one youth, Mahendra Singh
Sekhawat appealed to CUTS. On advice
from CUTS, he organised the villagers to
write five postcards a day to the chairman
of the utility: Rajasthan State Electricity
Board. Presto, the transformer was installed
in no time. Now the village is booming with
economic activity, and Sekhawat has
formed a consumer group with branches all
over the district.
Rauf Ahmed, a teacher in a village school
of Ramsar in Ajmer district, was inspired
by Jaswant Singh to set up a local consumer
group. He swung into action by writing to
the distt. medical officer about doctors and
nurses not attending to patients at the local
primary health centre. Rauf was soon
pleasantly surprised to see the medicos
changing their ways.
Similarly his advocacy paid off with nearly
every local problem, and he proved that the
pen is mightier than the sword. In another
instance he was able to get a widow’s
pension regularised.
Goverdhanlal Sharma, Fazr Mohammed,
Prakash Hingora, Jaswant Singh, Rauf
Ahmed, Mahendra Singh have only
qualified at school. They have never been
to a college or a university. They among
several others underwent training as para
legals with ‘CUTS’, where it isour mission
to train barefoot lawyers. Activists who will
question every injustice, and will protest
each such action, so that our moot brethren
in villages can demand their rightful due.
And in turn create a questioning society,
which will make every small and large
enterprise accountable to poor consumers. ■
■ INDIA
A PLANET IN THE TNC UNIVERSE
UDAYAN NAMBOODIRI
Traditional priorities go haywire as TNCs
force pace of liberalisation.
ndia, a nation of 900 million, is growing
in the focus of transnational corporations
(TNCs). The nation’s leadership, brushing
its age old social problems under the carpet,
is increasingly packaging it as a corporate
entity ripe for TNC takeover. This is not
parotting the line often taken by the country
opposition programmes left and right of the
political spectrum, but an easily
distinguishable characteristic iterating
through all the new policies announced by
the federal government since July 1991.
I
communism, subscribing to this was a juicy
proposition for many countries in India’s
neighbourhood. The state allowed private
enterprise to thrive in limited areas,
promoted research to develop indigenous
technology so as to lessen dependence.
Exactly when this path was abandoned is
difficult to say. Certainly before July 1991
when the newly elected Narasimha Rao
government discovered that the foreign
exchange situation was hopeless and the
global stock of India quite low. Since at least
a decade before that TNC lobbies were very
active in New Delhi, using every
mechanism available to ensure that the
country abandon its chosen path in favour
The traditional reason extended for Indian
prime ministers and lesser mandarins’
frequent foreign jaunts had been either “ to
develop bilateral ties or to “ study how
system X works”. No
longer. Today, the Indian
prime minister travels
-WW/WI5T0 m
abroad to 'self India as an
WHAT INPIAK TO x
investment proposition.
THHWORLp
The usual retinue of
bureaucrats, journalists
apart, a large number of
indegenous businessmen
accompany him these
days. And each time he
returns with promises of
N.,
huge investment. Even
those Foreign Direct
Investment
(FDI)
of easy imports. TNCs were thrusting
proposals which materialise, make India,
obsolete technology undermining domestic
according to the 1994 World Investment
research, by paying hefty kickbacks to
Report, the fastest growing destination of
ministers and bureaucrats. Consumers in the
FDI. It is estimated that at this rate, India
will surpass China's record by the turn of country were fed up with the shoddy quality
of goods and services that the domestic state
the century.
and private sector churned out insulated
from competition. The economic outlook
This is the same nation which felt the brunt
was characterised by langour. Clearly a
of the East India Company, the empire
break had to be made from the past if India
building corporate to which the history of
had to survive. Her neighbours to the east
the multilnational form of doing business
had made tremendous strides forward by
can be traced. With the memory of two
liberalising and opening their doors to
centuries of political subservience to a
foreign investment. India now decided to
foreign power fresh, the first few
emulate them.
governments of independent India adopted
a policy to keep TNCs in check. The route
THE REFORMS
to nation building, according to the
Gandhian ideal, was to empower the state
ar reaching corrections were demanded
with the levers of the economy and till 1991,
by the vocal section of urbans. But
successive governments did just that. While
bowing to political expediency,the
doing this they also steered clear of government decided to use the medicine
F
The CUTS newsletter: 14th World Consumer Congress, Sept'94
with restraint. After three years, reaction to
the progress of the ‘reform’effected in the
name of liberalisation. Some agree that
India launched the programme much after
China and so must hurry up. Others feel the
government is yet to take the crucial
decisions, like what to do with the cash
strapped public sector, how to make the
transition from the welfare state to
capitalist, etc. At the same time it is
solemnly declaring that the public sector
will not be privatised and the small scale
industries using much labour will be
protected. Sceptics think the government
will unravel the inhuman face of
liberalisation only after the 1996 elections.
Till then, India’s ability to increase the
inflow of FDI is all that
matters. Many are rejoicing
that the foreign exchange
situation is much better, so
the reforms must be
•working.
To
the
consumer
liberalisation must be good.
The dismantling of barriers
against imports means
lower prices. More players
in the market means
Do.uToE.rn>,
competition. The entry of
TNCs
means
better
standards in products and services. Indian
consumers have a very useful law they can
use against recalcitrant agents of produc
tion :The Consumer Protection Act, 1986
(COPRA). It is very comprehensive, aimed
to protect the poorest of the poor against a
wide variety of quarters, including doctors.
What are these reforms ? Today, a TNC can
not only pick up the controlling stake in
theircompanies, they can float 100 percent
subsidiaries. They can operate in the
financial markets. They can import raw
material for their production lines by paying
less and less import duty. They can
influence the government to give to them
wide preferences which were hitherto
denied to even domestic businessmen. As
one economist puts it:
“I see the transition happening too fast.
9
Under the Nehruvian model, the official
policy was to regard the private sector as
pure profiteers, interested in nothing else.
So they were kept at arms length. An
industrialist may be a billionaire, but he had
to stand before the door of a petty official
and cajole him into giving him one of the
hundreds of licenses necessary to start a
factory. But overnight, the government is
going overboard in trying to please not only
domestic, but even transnationals.”
THE LEVEL PLAYING FIELD
I
f you spend a week in India you cannot
miss this phrase. Everybody is
demanding it today without grasping its full
import. It was first heard from the so called
“Bombay Club”, a body of industrialists
who, in late 1993, issued, after a meeting
in the financial capital of India, a statement
integrating this demand. Domestic
industries, so long kept under 'harness' must
be allowed to flourish, not be swamped by
competition from international giants. In
other words they must be protected by
exclusive rights over certain sectors in
which TNCs must not be allowed. That was
the sum and substance of their demand.
They paid for it. Countless words in
condemnation of this attitude, the Indian
businessmen’ inability to perform without
protection, were churned out all over the
world. Their ulterior motive, as pointed out,
was that they should not lose control over
their companies which they treated as their
fiefdoms. The professional classes were
particularly angered. TNCs operating in
their country meant falter salaries, better
work environment and choice of jobs.
Quickly the Bombay Club, in the interest
of public relations was forced to backtrack
from the statement.
But few in India failed to see an important
parallel. India’s small scale industries often
raise the demand for greater offtake of their
ENRON DEAL : SCANDALOUS !
he west coast is India's most industrially prosperous,
contributing more than 24 per cent of her net produce.
Because of its relative infrastructural superiority , this
region is the destination of more than half the country's
total FDI projects. The Indian government hopes to
generate 16,000 megawatts of electric power in this
region alone to match the rising demands of industry
over the next few years.
T
Power projects imply huge investment, something that
the government cannot fork out. So allowing TNCs to
operate in this capital intensive industry required
fundamental change in the official outlook towards
their entry into a sector so long considered 'core' and
therefore out of bounds for private foreign investment.
This was managed when the Finance Ministry argued
that inviting private/foreign investors in the power
sector would garner 'additionality of resources'.
The Dabhol Power Corporation, in which the state owned electricity company, MSEB and the Houston
based, Enron Corp, tied up with General Electric and
Bechtel, and some Indian companies to build a 2015
megawatt project in Dabhol, Maharashtra. Flow the
deal was struck and the manner in which money was
raised for it, bears out two typical modern TNC traits.
First: the whole affair was conducted in secret. Second,
the TNC demanded, and got, special privileges which
led to it sinking less money than the Indian
government.
The fallout of the first game affects consumers directly.
There was complete lack of transparency in the dealings
between the government and the investor. There had
been no attempt to invite offers from other suitors to
rate the Enron offer. The lack of competitive bidding is
undoubtedly going to make the project cost
astronomical and then this will logically be passed on
to the consumer. "The people who will pay for the
project are totally in the dark," says G. V. Ramakrishna,
a member of the government's Planning Commission.
Besides, the TNC has also extracted an agreement from
the government on the price per unit at which it
proposes to sell the generated power."The consumer in
this country is entitled to the supply of electricity on a
least cost basis and the scheme of private sector
participation should subserve this primary objective —■
something that is clearly missing from the
implementation of the power policy and definitely in
the awarding of tire project to Enron", Ramakrishna adds.
Now, the second part : The raison d'etre of inviting
private/foreign investors in the power sector according
to the Indian finance ministry, is to gamer "additionality
of resources". But a fundamental departure has been
made in the case of the Dabhol project. Indian investible
funds will be used to set up the entire first phase of the
project. Out of a cost of $ 910 million, more than half
will be put up by the government owned financial
institution, the Industrial Development Bank of India in
terms of loans and counter guarantees. Other loans too
are being guaranteed by the government and as if this
was not enough, a bond issue of $ 300 million issued by
the Dabhol Power Corporation and lead managed by
Lehman Brothers, will now be guaranteed by the
government of India.
Then comes the revelation that Enron was allowed to
raise $ 650 million outside India at 12 per cent interest.
Indian financial institutions have been stopped from
raising funds at less than 7 per cent. This, when the 12 year bond already carries the government's counter
guarantee. The high cost of money raised is bound to be
passed on to the consumer.
Besides, the project will be using imported natural gas,
a big drain on India's foreign exchange reserves. But this
is only the beginning. Everything that Enron does will,
and has to be, followed in toto by six other projects
involving TNC gas and power giants in the south —
western part of India. A senior government official
says: Now that Enron has managed to get the
Government of India's ascent on a 12 - year paper, six
other projects waiting in the queue will follow suit and
probably raise money at even higher rates of interest.
This is scandalous."
The CUTS newsletter: 14th World Consumer Congress, Sept'94
produce by the government’s procuring
agencies. But here was the creme de la
creme of Indian business raising an identical
outcry!
In their own clumsy way, the Bombay Club
had driven home a valid point. Vital sectors
of the economy — telecommunications,
power generation to name a few —were
hitherto closed to them. Inslead of allowing
them time and space to operate with
indigenously available technology
developed through institutions into which
considerable public money had been sunk,
here was India throwing open its doors in
one shot to TNCs. How were they to
compete? The impatient editorials only
demanded that if the domestic sector cannot
compete, they can fold up. If the public
sector is to perish, so be it. An Unilever
director on visit to India scornfully said :
“’Those who wait for a level playing field
will end up never playing.”
The transnational form of business is not
bound by any rules. The international forum
to develop a Code of Conduct for TNCs is
a sad story. TNCs do not respect
governments or social mores. The
developing world in the eighties were seen
bending or discarding laws originally
designed to protect consumers from TNCs.
India too decided likewise. The consensus
was the country is essentially stronger today
than in the 18th century. There can be no
repeat of the East India Company
syndrome, they say.
But they fail to grasp the fact that there is
no longer one East India Company. There
are some 37,000 of them, multiplying
constantly all over the world. Today the
governments backing them don’t need to
send armies to conquer. They do it through
intricate little games of mergers,
acquisitions and cartels. Operations that
Indians, like their counterparts elsewhere
in the developing world, will take years to
understand. More than protection they
wanted policing of the visitors. But they
lacked communication skills. History will
condemn them for this.
INDIA, THE OPPORTUNITIES :
hat does India offer to the TNC ? If
taken as part of the developing world,
it offers a tremendous opportunity for the
developed nations to come out of their
recession. The share of the’developing
countries in world FDI flows, according to
the 1994 UNCTAD World Investment
Report, reached about 40 per cent.
The most important factors making
developing countries attractive to TNCs
were rapid economic growth, privatisation
programmes open to foreign investors and
the liberalisation of the FDI regulatory
framework. Taken individually, India is a
sound investment proposition.
Today China, thanks to its early
liberalisation, is the largest host country
with annual inflows totaling $ 26 billion.
India, with only three years, has crossed the
$ 4 billion mark. But before the decade is
out, India is expected to catch up, thanks to
the following favourable factors :
1. Her vast population of 900 million
includes a middle class of some 200 million.
This segment is concentrated in a few urban
areas making the distribution of products
more cost effective. They are also educated,
skilled in various ways and quite ‘global’
in the sense they adapt quite fast to
foreigners.
airports, shipping, enough power near the
cities and above all, vast mineral and forest
wealth. The best part, in the view of TNCs,
is that there is immense scope for
improvement, hence business opportunities.
5. A sound, westernised judicial system
exists in India which is highly respected.
Industrial disputes can be settled in courts
which still use English as the official
language.
There is also a crude underbelly about India
which the TNCs are cynically addressing.
Its highlights are :
I. A thoroughly corrupt polity aided and
advised by a bureaucracy made up of well
heeled rogues, is still calling the shots.The
red tape can thus easily be cut through using
familiar means. In China, corruption can
lead its perpetrators to jail, even the firing
squad. Not so in India. The judicial system
can very easily protect the wrong-doer as it
can the wronged. On paper, it may be
difficult to exploit the Indian consumer, but
with a little intelligence and greasing of
palms its a cakewalk.
2. The capital market is nebulous,
suspiciously operated and certainly
imperfect. Transnational mutual funds and
fund managers are already reaping the
bounty. Foreign banks have been
manipulating the bourses with their
depositors’ money for long time. Facing
2. A democratic political system which is slow growth back home, some fund
managers have started shifting their
gradually maturing makes India far more
‘emerging market funds’ to India and their
attractive than China. "Unlike China where
presence has quite threatened the
you never know when hardliners will
indigenous broking community.
re-emerge,India is basically liberal," a
foreign company head says.
3. A huge market of 200 million suckers is
3. Cheap, easily motivated labour is India’s waiting here to be dazed by the flow of
‘phoren’ goods. Environment standards are
trump card. One only needs an efficient,
very weak here and so a number of
technically sound professional class. India
polluting industries ■— aluminium, steel,
has this too in plenty, thanks to four
textile dyestuff to name a few — can be
generations of subsidy in higher education.
transferred here without much difficulty, so
4. Basic infrastructure exists in India. The long as they earn foreign exchange.
Consumers are protected very well on
country has a well spread railway network,
The CUTS newsletter: 14th World Consumer Congress, Sept'94
the obsolete plants
and the practically
MORE JOBS?
saturated markets of
the west. At the
ob generation is an important impulse behind opening
same time, they
the floodgates to FDI. India, with a registered
offer
excellent
unemployed population of 12 million, hopes to generate
hands-on
8.5 million jobs in the Eighth Plan (1992-97) period. But
experience about
after three years of economic liberalisation, which has
Indian conditions to
led to over $ 4 billion in FDI, planners are worried that
the TNCs who are,
far from generating fresh jobs, liberalisation is creating
at this stage, content
1.5 million more jobless every year. This, even before the
at
prospecting.
process of restructuring has started in the state-owned
Some Indians have
industries. The highlights :
already sold their
* Planning Commision adviser, Jairam Ramesh, says the
businesses lock
liberalisation is going to cost 1.2 million jobs as companies
stock and barrel to
undergo restructure and state owned units are privatised.
TNCs. Parle, the
More than 70 per cent of these losses are to take place in
largest beverage
the country’s eastern region alone. And this region is least
maker, sold off four
attractive to investors, both domestic and foreign for its
of its leading brands
poor infrastructure.
to Coke fearing a
* The actual employment generation picture is skewed.
swamp when the
Openings are created in the services — financial,
Atlanta-based cola
computer software, etc — and only for the western
giant announced
educated, highly skilled. Doors are in fact closing for the
plans of a1 return to
poor. Companies are no longer employing errand boys,
India. The soaps
gate men, drivers, etc. For these personnel, they ring up
giant, Tomco, sold
service companies who supply men and women hired at
off its 50 per cent
atrocious terms. Even TNCs are not above giving job
marketshare and
contracts to these labour contractors.
merged it with
★ The employment growth during the first two years of
Hindustan Lever,
the Eighth Plan, coinciding with the liberalisation period,
thereby handing
has been lower than the modest target of 8.5 million new
over a total 77 per
jobs per year. According to official estimates, employment
cent share of the
had achieved an estimated growth of 2.1 per cent in 1992soaps market to the
93 and 1.8 per cent in 1993-94 against an average annual
TNC. Levers even
growth rate of 2.6 per cent.
got a notable Indian
NGO to act as its
Most Indians however believe this is just a manifestation
in-house set-up to
of the difficult transition that the nation is undergoing.
deal with any
But a government official says : “This rise in
consumer with a
unemployment is due to slow economic growth. The
grouse in a market
average annual economic growth rate for the first two
where it has no
years of the plan is 3.9 per cent against the target of 5.6
rival. The TNC has
per cent for the entire period”.
thought it out
carefully indeed.
Better to preempt
paper. Ignorance about the very existence
oppostion by having a pet opposition !
of COPRA is rampant. This is but a small
reflection of the general feeling of welcome
THE FLIP SIDE
towards TNCs. Most Indians are quite
convinced that a few small sacrifices have
here is a flip side to this, of course.
to be made if the nation is to ‘globalise’.To
Memories of the humiliation of foreign
be honest, the entry of TNCs has at least
dominance still persist. There is a vast
improved the quality of the packaging of
groundswell of opposition against
consumer items. Besides, a lot of things like
globalisation in general and institutions like
fountain Pepsi. Camay soap and LacosteTGATT. World Bank — IMF and TNCs, just
shirts have put smugglers out of work.
waiting for a charismatic political leader to
J
T
tap. A recent Wall Street Journal article
4. An indolent indigenous business pointed out that TNC bashing is a favourite
community is only too eager for joint
Indian pastime.
ventures and play a subordinate role in them
too. They are entering into all sorts of The consumer movement, encompassing
technical and marketing tieups to gain from
the environment protection movement, is
The CUTS newsletter: 14th World Consumer Congress, Sept'94
steadily growing. All it needs is a strong
orientation to the larger issues threatening
the consumer. For the moment these groups
are middle class outfits visible mostly in
urban and semi-urban parts. But movements
like CUTS' in the rural areas are growing.
Every district in the country is entitled to a
consumer protection group. Once active,
they can stretch the top managements of
even TNCs quite thin by forcing them to
travel endlessly from one corner of the
country to another.
The 200 million strong market may prove
a myth. It is assumed that this group, large
enough to fill many European countries,
have enough liquidity to keep the cash
registers active. But then, it took 12 years
for Suzuki-Maruti, India’s most popular
car, to sell its first million cars. Only 32
Indians in thousand own a television set.
On examination of the consumption pattern
of almost every product of industry, it is
seen that India ranks lower than even
Thailand. To sustain a consumer boom one
needs an educated, well employed
population constantly on the move upwards.
The opposite is happening. Most
professional Indians in the 25-45 age group
are right now stashing away their excess
cash in pursuit of their biggest obsession,
which is, owning a house.
As production shifts from high-cost Europe
to cheaper Asia, the impoverishment of the
working class will only increase. In India,
wages are not just low, but in fact
ridiculously low. A World Bank study last
year identified India as one the biggest
computer software developers of the future
because not only are skilled engineers and
technically qualified people available here,
but they can be had real cheap. At the lowest
level is the man keying in data. After
slogging monotonously, straining his eyes
from the glare of the computer screen six
days a week, he takes home less than Rs
800 ( $ 25 ). This, and a lot of other
examples suggest that the ever widening
consumer base in India may be a myth.
Moreover, all but one Indian state (West
Bengal) is seeing agriculture’s former
dominance in the GDP fast go down. And
agriculture is the biggest employer in India!
.JOINT VENTURING
ince 1991, the queue of corporate
houses seeking qualification to enter the
primary market to raise money is growing.
Their prospectuses tell the same story. "So
many millions of rupees needed to fund
expansion and meet working capital
requirements”. Replace the “expansion”
S
12
Levelplaying what... ?
TAThen. in late 1993. a group of prominent industry
cVpmins issued a statement demanding 'level playing field’
against TNCs. they were quickly dubbed 'the Bombay Club’,
retrogressive lor wanting insulation from competition. Actually
their concerns are quite valid but owing to lack of articulation,
the wrong signal was conveyed to the public. It was not so
much the technological might of the TNCs that they feared.
because ultimately the
large markets in India
always has special niches
for both TNCs and
indigenous businesmen.
Perhaps what scared
them most was the
complicated strategies
that TNCs are constantly
formulating all over the
world which is too
confusing for even
seasoned businessmen
like them to grasp fully.
But they bungled the
whole thing. The (erm
stuck, however. Hardly a
week passes in India
newspapers reporting
one new economic group
or rhe other demanding
it.
In the first four decades, newly independent India’s attitude
towards TNCs suited indigenous industry. They were allowed
to invest only in earmarked areas, mainly consumer goods
manufacture, and (hat too with less than 51 per cent control of
their companies. In fact, the domestic private sector was also
manacled. The state owned companies controlled vital —
called ‘core’ — industries like power, coal, metal mining.
telecommunications, railways, etc.Protecting economic
sovereignty of the nation was high priority, consumer rights
not. The largest number of cases filed in the nationwide
consumer courts set up under the Consumer Protection Act
since 1987 was against the stated owned public utilities.
TNCs. since the government began the economic and industrial
liberalisation process, are now welcome anywhere. They may
even increase their stake in formerly widely held companies.
Or. like Sony, may even float 100 per cent subsidiaries. What
is worrying big domestic industrialists most is that TNCs, with
their brute money power, may even raid their companies, and
by buying out key officials in the government, even succeed.
once in a while with ’‘diversification’’ or
“new project". But invariably, there will be
some joint venture, either for technology
or access to markets abroad.
“Joint ventures are very necessary because
though Indian goods are widely sold abroad.
they cany foreign brandnames because not
Reason : government owned financial institutions arc
stakeholders in virtually all companies deemed public. The rest
of the stock can be picked up from the market with the help of
the operators specialising in the task.
Some of their worries should be shared by consumers. Indian
manufacturers were notorious for their shoddy quality. But at
least they kept the price line down. For instance, an everyday
product like soaps and
detergents used to be
manufactured by over
250 small shops, some
of who never even used
electricity in the process.
The big companies’
products were for the
rich, the poor were
content
with
inexpensive soaps.
Today however the
picture is changing. The
soapTNCs are operating
at the upper end of the
market,
pushing
1 international brands with
multi-million dollar
advertising campaigns.
Anticipating a rout, a
leading Indian manufacturer, Tomco, sold out to Hindustan
Lever, the subsidiary of the Unilever group resulting in a 77
per market share for the TNC in most segments.The price
advantage that the small-scale producers formerly enjoyed is
now fast eroding because TNCs are using their clout to get
excise and customs cuts for themselves. Advertising is alluring
the consumer to pay just two-three rupees more for an
‘international choice’.
TNCs are also seen disrupting the economic life of poor fish
ing communities along India’s coastline. Some 10 million
fishermen used primitive craft for their catch all these years.
But enticed by TNC hype about increasing India’s share in the
international marine product market, the government threw this
sector open to them. Addressing the UN Conference on
Negotiating the Future of World Fisheries at New York in
August 1994, Harekrishna Debnath, general secretary of the
National Fishworkers’ Forum, said : “... an armada of foreign.
hi-tech fishing fleets is poised to invade India, armed with the
most predatory and destructive technologies on earth... our
future is at stake”. TNC entry implies unsustainable
development.
a single Indian brandname , with some
notable exceptions like 'Bajaj' scooters and
a few brands of tea and basmati rice, is
known in the developed markets,” says an
underwriter of primary issues.
in spite of his investment in the project
being larger. A few foreign partners are not
only picking up hefty stakes in the joint
ventures, but also making the Indian partner
pay for using his technology.
The Indian facility will forever be used with
the Indian partner getting only thin margins
Solemn promises are made at the time of
the tie-up that the foreign collaborator will
The CUTS newsletter: 14th World Consumer Congress, Sept'94
13
always pay prevailing international prices
for offtake. But actually quite the opposite
happens in reality. "What ensues is plain
blackmail. The TNC collaborator lifts the
offtake paying ridiculously low prices. If
the Indian partner protests, the TNC
threatens to cut off his links with the world
outside, or, walk out with his money, plants,
and leave the Indian high and dry.” an
Indian economist says.
The 1993 World Investment Report
described the “ growing complexity ofTNC
operations as they pursue strategies of
integrated production ", The examples are
so bizarre, they defy classification. An
Italian company growing crystals exports
a certain quantity of crystals at prevailing
international rates to a company in India in
which it has a 50 per cent stake. This Indo
Italian venture, after importing the ingots,
slices them with Italian technology and
much cheap labour into wafers. Now, this
product is used to make photovoltaic cells.
Luckily, one company manufacturing
photovoltaic cells exists on the other side
of the boundary wall to which it can easily
sell the wafers. And what coincidence, the
Italian has 25 per cent stake in its threeway stakeholding. Now, the prospectus of
this third entity which entered the capital
market recently, claimed "technology has
been supplied (sic) by a leading Italian
company which has also guaranteed 100 per
cent buyback.” No prizes for guessing
which one.
Every few months, a high-powered
committee clears applications for setting up
FDI fuelled projects. The vast majority will
serve no real good to the Indian economy
in the long run. Domestic companies, in the
thick of working capital shortages, can
never plough back their sales turnovers into
research aimed at technological selfreliance. Eventually a large number of them
will be forced to close down, paving the
way for monopolies or oligopolies in the
marketplace. The dream of employment
generation will also remain unfulfilled. In
many instances, employment opportunities
may be created, but scenarios full of low
human resource utilisation will result. Sony,
for instance, has been given permission to
set up a 100 per cent owned unit where 180
qualified Indian technicians and engineers
will use screw-drivers to assemble 300,000
color TV sets from imported kits annually.
Other Indian manufacturers are naturally
peeved. They employ 300 to turn out
100,000.
Lastly, the flow of FDI has made no
difference to India’s improved export
performance. At best liberalisation has
saved a lot of precious dollars by
compressing imports for indegenous
industries. Exports have risen, but of the
same old basket of products from
agriculture, hand cut and polished
gemstones and computer software. Joint
ventures with TNCs have often led to highly
import based industries. This is reflected in
the latest statistics. The rate of growth of
imports is larger (9.9 per cent) than the same
for exports (8.3 per cent). The trade deficit
for the April to July 1994 period is $ 594.73
million compared to $ 437.99 million in the
same period last year.
AGENTS OF RECOLONISATION
t is a truism about colonialism that
divide and rule is the best policy if you
are to enjoy the fruits sitting at home. Just
develop a sub-nation of obedient natives
and they will do the dirty work for you. In
the nineteenth century, the East India
Company ruled India with just 5,000
European army officers ( a motley crowd
ofEuropeans of different nationalities) and
some three to four thousand businessmen,
clergymen and other professionals. The day
to day business of running the Empire was
carried out by the new class of Indians who
carried out their orders with unqualified zeal
I
Foreign Shylocks
oreign banks were allowed to operate in India even after the bank nationalisation
in 1969. The nationalised banks totted up huge losses over the years because
the government forced them to lend money to the ‘priority sector’ (like creating
assets in poor farming communities) and opening banks in remote areas where
people have practically no savings.. But the foreign banks made money. Their
clientele was small and rich. But no one minded them, because of their miniscule
role in the nation’s economy.
F
Since 1991 however, the foreign banks have become more dominating. The cash
strapped domestic banks are less forthcoming with loans. So industries are quickly
getting trapped by the foreign bank consortium. Though foreign banks’ combined
contribution to the debts of compa
nies is yet small, they call the shots
now. Their executives demand, and
get, special treatment. Many
companies allege unfair practices by
the foreign Shylocks’. Meanwhile
domestic banks are still forced by the
political godfathers to continue
funding operations which the
foreigners will not touch with a
bargepole. The less said about the
poor units and agriculture the better.
Direct interface between consumers
and foreign banks is growing.
Seduced by advertisements to buy high priced products, middle class consumers
are incresingly sucked into their orbit. The huge burden subsequently borne can be
imagined from this example. Say, an Indian takes a
loan to buy a car costing over Rs 200,000. Apart from
the compounded interest of between 18.5 and 19.57
per cent, the foreign banks charge upto Rs 450 for
‘documentation’.The visit to the bank must be made
with securities worth at least Rs 450,000 in hand. Next,
an account has to be opened with the branch. The loan
will be given as an overdraft with the interest debited
quarterly to his account. That works out to Ri; 9,500
debited every three months taking the interest to be
18.5 percent until the principal is paid off. And don't
forget, the ‘out of pocket expenses’ which work out
to about 1.5 per cent per annum. Says the newspaper I hope foreign competition is
Business Standard: “ If you think this is astronomical not allowed to enter our
business too !
you are right.”
The CUTS newsletter: 14th World Consumer Congress, Sept’94
14
and loyalty. More than monetary
compensation, what thrilled them most was
proximity to the white man. It was Thomas
Babbington Macaulay, a great Empirist,
who first hit upon the idea of developing
the millions whom we govern — a class of
Indian in blood and colour, but English in
taste, in opinions, in moral and intellect....to
render them by degrees fit vehicles for
conveying knowledge to the great mass of
equivalent to what their parents could
accumulate as a lifetime’s savings, are today
ruling the roost in the TNCs' Indian
operations. In their arrogance, their
impatience and irreverence to everything
Investment blues
he capital markets in India, thanks to the recession in the
west, are booming. In 1993, companies raised more than
Rs 200 million ( more than $ 6.5 million ), an Indian record
which will easily be surpassed this year. Investor abuse has
also grown. Some examples :
agency.SEBI, points out : “ there is no link between the
performance of a company and the price of its scrip. A few
big brokers are manipulating prices."
T
• Morgan Stanley, the US Mutual Fund, raised Rs 20 million
( S 650,000) by misleading investors on two counts.The
common investor was quite in awe of their product. But
they misled on two counts. One, they announced allocation
of units on a first-come-first-serve basis, where no scientific
system existed to determine this. Second, they concealed
important facts. Today the units are quoting below par.
o The Indian bourses run on primitive lines. TNC mutual
funds and emerging market funds were at first sceptical,
but now they have struck strategic alliances with the local
broking community and are merrily manipulating prices.
As S S Nadkarni, chairman of the official monitoring
such an auxiliary race and the best way to
do it was instilling a sense of awe in
Occidental civilisation through the medium
of western education. He wrote, in his
famous Minute on Education (circa 1835):
"... (is to be) interpreters between us and
• The middle class, chasing the big Indian dream are not satis
fied with low-interest yielding bank fixed deposits. They
are applying for primary market scrips buy enclosing the
full amount in cheque. These are immediately debited from
their accounts. In the mad
rush, most issues are
oversubscribed many times
over. So most applicants get
their refunds three months
later without interest. But
they consider themselves
lucky. Because half of them
never hear from the
company again.
• As a matter of irony,
investors’ associations,
formed over the past few
decades, are now winding
up. Reason : lack of funds
and manipulation by the big
brokers. Sebi, which
professes to guard the
investors’ interest, is largely
ineffective. Nadkarni now
wants investors to be
redefined consumers, and their complaints dealt with by the
Consumer courts where justice is speedier.
© Mutual funds are the biggest frauds. Most of the schemes
are quoting below par even when the market is booming.
But the fund managers add insult to injury by issuing
newsletters claiming credit for the high net asset value(NAV)
The simple investor is confused. What is the good in an
investment that gives no liquidity ? "All this talk about NAV
is hoax. They said Mutual Funds are quick return yielding.
Now we have been thoroughly suckered." says an investor.
the population.”
In today’s multinational way of doing
business, such a race of Indians is very
important. Highly paid young men and
women, drawing monthly salaries
The CUTS newsletter: 14th World Consumer Congress, Sept'94
traditional, not to mention corruption, they
better their counterparts of the last century.
A young MBA with a foreign bank or TNC,
is also the model before every young Indian.
A decade ago, the same status was accorded
to the youth qualified in the cheapest high
An Indian Story
“The changing lifestyle in India is a great
business opportunity “ — C.Boonstra, head of
operations (Asia), NV Philips.
Pravin Desai, a 49-year-old computer engineer in Delhi, is reasonably well placed in
life. But nine years to go before retirement, he is a worried man. He just cannot save
enough money for sending his son to the US for higher education.This is very impor
tant in middle class India today. He sometimes wishes he had been a civil engineer,
for he could have raised enough money ‘under the table’ against contracts. Plus he
could have built a house. The one he lives in is a company flat.
One of the reasons he cannot stash much away is his son. The college going fellow
wants new clothes every month. When Pravin was his son’s age, he just wore his
father’s old clothes to college. But his son will have none of that. He wants Benetton
T-Shirts, Levis jeans and Adidas sneakers. These are the ‘casual wear’ now promoted
heavily by TNC lifestyle advertisements. Most urban Indians believe they are now catching up with the West.
The 19-year -old also wants Pravin to pick up his motorbike fuel bills. Pravin used to get only bus fare. The generation gap is
getting very expensive. Bhel Puri, a simple and cheap Indian traditional roadside snack is out. Hamburgers and footlongs are
in. Two other things about this are worrying him. Motor bike ads on Indian TV these days feature male models zipping at top
speed, performing death defying deeds. Suppose his son emulates that in real life ? Second, those Hamburgers are “non
vegetarian “ ! And nobody in his family tree has ever touched meat.
Last year the financial papers were singing paens about Morgan Stanley and predicted overnight riches for subscribers to their
scheme. Pravin foolishly drew from his provident fund to buy hundreds of units. Nowadays he just scans the stocks page in his
newspaper. He will sell of his units the moment Morgan Stanley quotes at par (Rs. 10 or 30 cents).
education available in the world (it is a fact
that no country subsidises its technology,
management and generally higher studies
better than India )
who made his money
in the west. But now, the Indian who makes
six figure salaries a month sitting in India
is the prince charming. He is worshipped
by advertising copy and the journalism of
the day makes his PET bottle marketing feel
like commanding the Bismarck.
Within this tribe too, there are individuals
who keep their conscience intact by
questioning, even if to themselves, the
justification in all this. A young executive
with Citibank, who keeps in touch with
CUTS in his spare time, reflected one day :
“ I sometimes hate myself to be part of that
scene. I mean, I hear my own boss
sometimes sardonically remark ‘we are
agents of Uncle Sam.’ Its treacherous.... the
things we do to our own companies. On
some mornings, a few of my colleagues just
decide to k
f** Company X. Just makes a
few calls and soon he has five executives
on the other end eating out of his hand. The
other day, one chap in the office actually
chartered a helicopter to fly to a company’s
factory in the suburbs because the client will
pay for it.... ”
These reflections convince us, somewhere
time bombs must be ticking. The spirit of
questioning is not quite dead. The repeti
tive saga that is history, will take its own
course.
Indian versus Indian
or the first four decades, federal
governments swore by a policy of
uniform industrial development. Special
packages were given to private investors
who set up factories in uneconomical areas.
Because this rarely happened, government
distributed its own investment widely.
There were aberrations of course. Indus
trialist R P Goenka recalls that under the
license raj ministers promoted only their
constituencies. But generally uniform
development guided the industrial policy.
F
Not any more. Today, with sudden
government withdrawal from industry,
people in states far from raw material
sources and markets, with poor
infrastructure; are only reading in
newspapers as the maximum concentration
of new investment takes place in the south
west.The north and the east get the crumbs.
India has 25 states, and keeping the nation
The CUTS newsletter: 14th World Consumer Congress, Sept'94
together amidst more than 80 language and
three big religious groupings is a basic
problem for the federal government. But
now, a new nuisance is emerging.The
prosperous slates are inviting envy, and their
governments are even conducting
roadshows abroad and in other state capitals
laying out special incentives like sales tax
holidays and cheap power to woo
investment. “An unhealthy competition has
started which will lead to national
disintegration’’, says Jyoti Basu,
octogenarian chief minister of West Bengal.
“Unless the federal government intervenes,
uniform national development will be
impossible”.
There is a point here. The east and north
east are the most mineral rich and populous
rts. But it lacks roads, sufficient electricity
and is dotted with cities bursting with
people living under poor sanitary
conditions. In the fifties and sixties, the
federal government pumped a lot of money
into these states but most of these were
aimed at exploiting its huge reserves ol
petroleum, iron ore, copper, coal.
manganese,tea, etc. Its lush forests were
felled to supply the nation’s paper, coal
burnt to run the aluminium and steel plants.
But little was invested in people’s education
Ed
and sustainable economic planning. “ In the
liberalised scenario, industries are to come
up where markets exist. So the east is a lost
case and the west is the hope”, says J.J.Irani,
head of India’s largest privately owned steel
plant, Tisco.
As India discovers capitalism, the dominant
middle class feeling is “market forces must
lead”. But this perception is not shared
lower down. Militant groups have sprung
up in the north-east demanding secession
from India. Meanwhile, the rich of Bombay
and New Delhi enjoy themselves like never
before. They are blissfully ignorant about
the wider implications of this boom on their
society, their concept of nation.
The consumer in India is facing a peculiar
absorbed by the producers. At the behest of
the World Bank and other funders, the state
is no longer is withdrawing support
everywhere. The sceptre of paying at every
step as is commonplace in the north is
looming large before him. "The World Bank
will demand an interest which the
government will pass on to us. Next, the
private party executing the contract will
make us pay. Third, the local government
will demand its own share. We are to be
squeezed", is a common consumer
complaint.
The consumer movement in the
subcontinent had for long been working on
specific issues. For want of funds and
committed people, its scope has generally
on the ramifications of the rapid
industrialisation on the country's
environment, its politics and society.
There is another area requiring immediate
addressing. The'country's consumer
movement must quickly identify the areas
in which it can build bridges with the
factors directly affecting the economy.
Indian indusry, or instance, needs a friend.
which can bring it up to date with the
modern ideas on environment and
consumerism dominating the counties
where it seeks its markets.Besides, only a
neutral NGO network can provide it with
reliable information, a tool which is vital if
the onslaught of the TNCs has to be resisted.
A ‘Socialist’ Cola
he
socialist
politician,
George
Fernandes, as federal industries minister in 1977, or
dered Coca Cola to close down its Indian operations. The
TBC had refused to dilute its holding in the Indian com
pany as was the rule those days. Moreover it refused to
disclose its spe
cial formula
which was also
a must.
T
So for a few
years, India
was without a
Cola drink. But
the nation then
placed a greater
premium on the
spirit of self re| liance.
So,
oe§ within months,
J Parle devel3 oped a Cola
s drink, it named
it ‘Thums Up'. The accompanying sign suggested “ yes,
we too can do it”.
Pepsi was allowed to enter India against several condi
tions in 1989. But by then Thums Up was a market leader
dilemma. The reforms have certainly given
him greater say in the market place. Hitherto
arrogant government owned utilities are
now about to be gobbled up by TNCs
through their Indian operations. Prices of
everyday goods and services are crashing.
He never had it so good.
But this is an illusion as he is fast realising.
Liberalisation is making him bear the
burden of the subsidies that are no longer
and this TBC was content with niches. In the wake of lib
eralisation, there was talk of Coke being allowed to re
enter. Parle's Ramesh Chauhan, fearing a wipeout, went
to Atlanta and sold the product to Coke for a reported $
60 million. Today Thums Up is just another Coke brand.
Symbolic of the great spirit of self reliance.
Fernandes is angry again.As the two rival TBCs Fight
increasingly dirty battles in the marketplace, he announced
last month his plans fora 'Socialist Cola’. His party is to
take on the TBCs in two months time by raising capital
for the venture literally on the streets of Indian towns.
The appeal to Indian self respect, he believes, will be
enough. The cola will be bottled in the plants of the nu
merous former small operators who are on the brink of a
wipeout.
A side show : Formerly, only foreign tourists drank water
from PET bottles. Now ‘increased consumer
awareness’among India’s rich, is supposedly behind the
boom in PET bottled water sales. To meet the rising de
mand for this new status symbol. Pepsico, says Multina
tional Monitor, is collecting discarded PET bottles in the
US, and exporting them to its Indian operations, who in
turn sells them to the dozens of bottlers across the coun
try. Last month, the US Embassy’s lab in New Delhi found
traces of human excreta in one unopened PET bottle of
mineral water and banned all local bottlers.
been restricted to representing consumers
with their grievances before the telephone
department or the railways. The real issue
which is dominating his purchasing ability
is lost on the movement.
Clearly, the time has come for the
consumers to assert themselves as an
important factor in the economy. They have
totake the immediate advantages of
liberalisation with a pinch of salt and reflect
The CUTS newsletter: 14th World Consumer Congress, Sept'94
Indian PrimeMinister P V Narasimha Rao
told businessmen in Singapore : " We
cannot wish away multinationals anymore.
In these times 'multinational’ is no longer a
dirty word.". TNCs today are an essential
factor in a nation’s growth.
Liberalisation has empowered the consumer
movement with greater responsibilities. In
the absence of other forms of resistance it
is the consumers' lone battle ahead . 0
[~T7~|
■ TRANSNATIONAL CORPORATIONS
TOO BIG FOR RULES
PRADEEP S. MEHTA
Corrupt practices, abuse of environment, consumers, labour and sovereignty
have a brightfuture indeed.
rade is the new geopolitik affecting
every aspect of human life anywhere,
facilitating an expanding ‘universe’ of
Transnational Corporations(TNCs) with
increasing rights but reducing obligations.
More than 37,000 TNCs with 170,000
foreign affiliates control 70 p.c. of the
world trade, sales of $5.5 trillion, 90 p.c. of
all technology patents and account for
25 p.c. of the world’s gross national
product. If guided properly, they can play
a pivotal role in achieving sustainable
development, or otherwise, serve as major
impediments in the transition process.
T
After GATT’94, which will encompass
every possible socio-economic activity,
there is every reason to believe that TNCs’
role will increase in the coming
years, as developing countries
pursue growth through structural
adjustment programmes, market
reforms and liberalisation of foreign
direct investment regimes.
According to a 1992 report of the
UN Centre for TNCs (UNCTC),
more than 50 p.c. of the world’s
greenhouse gas emissions is
generated
by
TNCs.
Notwithstanding the fallout of the
Bhopal gas disaster.industrial
chemical production, including that
of highly toxic substances, is
dominated by TNCs - 94 p.c. of
world agro-chemical sales in 1990 was in
the realm of 20 transnational pesticide
manufacturers.
Over half of the world’s mining, refining
and smelting capacity in the energyintensive aluminum industry is in the hand
of TNCs. The list is endless. TNCs are
ubiquitous in all areas of economic activity
raising serious concerns on the
sustainable use of renewable and non
renewable natural resources, sustainable
consumption, disposal of hazardous
waste, new biotechnolgical interventions,
occupational and consumer health and
safety et al.
These questions were raised at the
UNCED prepcoms, but the developed
nations managed to obfuscate the issues.
Without any reference to TNCs, the
Agenda 21 has some 65 statements in two
sections on what business should do for
environmental protection, but there is no
recommendation for legislation to regulate
TNC environmental behaviour.
The NGO treaty prepared after Rio rightly
concluded : “ UNCED has abdicated
responsibility to take measures to control
TNC activities, instead promoting TNCs
... willingness to regulate themselves. The
UN has given up trying to develop a code
for TNCs and the UNCTC has been
weakened.”
In fact the UNCTC met with its demise
shortly thereafter when all its functions
and staff in New York were transferred to
Geneva as a programme on TNCs under
the UNCTAD.
HISTORY
millstone
around
their
necks,
international business ( read International
Chamber of Commerce) was in no mood
to accept the Code. It bickered and
scowled, and in the same year, plead the
US congress to pre-emptorily reject it.
In March 1991, the USA killed the Code
by scaring developing nations that any
support would send wrong signals to
TNCs whose money they were wooing to
buttress their impoverished economies.
It further advised them and fellow rich
nations, ‘that it maybe best to postpone
indefinitely negotiations on the Code. We
can accept a voluntary code as part of an
appropriate investment regime, as
witnessed by the fact that since 1975, we
have
supported
the OECD
Guidelines for Multinational
Enterprises.’
Evidently the North propelled by its
business was never interested in
having any kind of document under
the UN which could in anyway bring
any kind of curbs on their operations.
It suited them to see various other
‘codes and guidelines’ which would
have no bite. The ICC guidelines had
existed since 1974, the OECD
principles revised in 1991, and as
viewed by this writer, the next preeinptory step was the World Bank
guideline of 1992.
hen sovereignty was more
important than environment, the
fiasco over the political ‘interference’ of
International Telephones & Telegraph
(ITT) in Chile, in the 1960s, led to the
setting up of the UNCTC alongwith a UN
Commission on TNCs in 1974. Their
agenda: to address issues and problems
arising out of the global operations and
behaviour of TNCs and develop a Code
of Conduct to govern the same.
The proliferation of such FDI instruments
including several bilateral and regional
treaties only confused the scenario. In the
words of a noted scholar of these
developments, Prof. John Kline of
Georgetown University, Washington :
“These threaten to become a morass of
binding and non-binding
partial
instruments that overlap on some issues
while leaving broad areas of FDI policy
and transnational business activity
uncovered by effective regulations.”
Negotiations on the Code which began
in 1976, culminated in an omnibus
document in 1990 covering the entire
gamut of TNC operations impacting
environment, consumers, culture, human
rights, labour, corruption, competition etc.
Cheesed with UNCTC’s sterling work on
several exposures of global business and
faced with the alarming prospect of a
In the UNCTAD World Investment Report
1993 : TNCs and Integrated International
Production, Secretary General, Kenneth
Dadzie, says in the preface : "... policy
and regulatory frameworks need to adapt
to the emerging integrated production
system, if the benefits of regionalisation
and globalisation are to be spread as
widely as possible.”
W
The CUTS newsletter: 14th World Consumer Congress, Sept'94
18
But there is another side to this. Keeping
in mind the Bhopal gas tragedy. TNCs
today still take unfair advantage of their
elite status and exploit national laws and
economic policies tailored to attract
them - often with serious consequences
for people and the environment. This is
particularly true when countries are
competing to get FDI. The UNCTAD
report also points out that in 1991-92,
35 countries introduced 82 policy
changes specifically to attract FDI.
For instance, the Namibian ambassador to
the UN, Dr Tunguru Huaraka told this writer
that in the special economic zones of his
newly liberated country, the laws were
diluted and the local people left at the mercy
of business. For example, the labour has no
right to organise. The list is endless. Another
area of concern is the transfer of polluting
industries from the North to the South,
because they would be happy to be rid of
dirty factories which cannot comply with
their stiffer environment protection laws.
Simultaneously developing countries are
expected to incur enormous costs in
balancing development with environment
protection. The World Bank estimates that
such a full scale effort could require
anywhere between $75 and 125 billion
annually in extra aid. Its 1992 World
Development Report cautioned: “Industrial
countries must bear most of the costs of
addressing global problems, especially
when the required investments are not in
the narrow interests of developing countries
... such arrangements have the potential to
make all countries better off if the world’s
willingness to pay for policy changes
exceeds the cost of the changes.”
While recalling the unsuccessful debate
on the code since long last, the
statement, endorsed by the International
Council of Voluntary Agencies, the
Netherlands Committee of the IUCN
and the International Youth and Student
Movement for the United Nations,
further noted :
Asher made a strong pitch : “Some
guidelines (under the UN umbrella) to
regulate the conduct of TNCs should be
evolved. With the demise of the Code, the
fire among the proponents has died down,
but the embers are still there. Let’s rekindle
them.”
But rekindling was not possible. As a last
effort the IOCU, which had been
campaigning for the Code since
beginning, in the 20th meeting of the
Commission held in Geneva in May, 1994,
cautioned the assembly:
“Faced with the globalisation of the world
economy,
most
people
feel
powerlessness, mistrust and concern.
Approval by the UN of a single set of
Guidelines for the behaviour of global
business on aspects such as safety,
information, good labour practices,
environmental protection, commercial
policies including competition, relations
with host governments, good business
practices and others, would help dispel
those fears. Such guidelines would also
give citizens a concrete tool for monitoring
the activities of TNCs and give companies
greater investment confidence and clear
goals.”
RECENT HAPPENINGS
t the 19th meeting of the UN
Commission on TNCs in April,1993
the issue was kept barely alive due to
herculean efforts made by a long time
advocate of the code, Allan Asher of
Australia. After diluting a G-77 resolution,
the meeting agreed that an oral presentation
could be made at the next meeting by the
secretariat on guidelines, while institutions
like the World Bank and the OECD would
make presentations on guidelines for FDI
developed by them.
A
Just a few months before, at a conference
in New Delhi, February 14-15, organised
by the International Organisation of
Consumer Unions (IOCU) and Consumer
Unity & Trust Society (CUTS), the first ever
to take stock of the work on the guidelines,
The CUTS newsletter: 14th World Consumer Congress, Scpt'94
“IOCU supports proposals for a single
international instrument based on
voluntary codes and guidelines, such as
OECD’s and the International Chamber
of Commerce’s guidelines for multinational
enterprises, the Agenda 21 and the UN
Guidelines for Consumer Protection,
among others.These and other existing
instruments have a particular objective and
focus but none of them cover all aspects
concerning the activities of TNCs. Hence
the need for the proposed UN Guidelines
for TNCs."
‘YEARS OF DEBATE’
his initiative flopped when the US
delegate ‘ruled’ : “ There had been
years and years of debate on this issue. The
debate was closed in the past and for the
future. A Code of Conduct for TNCs was
irrelevant and should not be considered.”
There was not a whimper of protest in a
lackadaisical assembly, provoking the
IOCU to observe: “No government nor any
UN official wants to antagonise TNCs these
days.”
T
Only Pakistan intervened with the warning
that producers often abuse economic
freedom, therefore globalisation of
economy needs regulatory frameworks
which are global in scope. The G-77,
according to its Chairman’s statement, was
happy to explore other initiatives that are
taking place in other institutions.
The only ‘achievement’ of this meeting was
to rename the body, as the UN Commission
on International Investment and
Transnational Corporations. The new
agenda, for whatever it means, will
‘promote the exchange of views and
experiences among ... on issues relating to
international investment and transnational
corporations.’
Views and experiences known so far will
not encourage the promotion of any
globally recognised code or guidelines for
TNC conduct. Corrupt practices, abuse of
environment, consumers, labour and
sovereignty have a bright future, indeed □
■ CAMPAIGN
DELHI DECLARATION
ON FAIRPLAY IN GLOBAL BUSINESS
he following declaration presents
principal issues discussed and general
consensus emerging from the International
Conference on Fairplay in Global Business,
New Delhi, 14-15, February, 1994. although
not every participant necessarily supports
every word in this statement.
T
The global economy has fundamentally
changed in the last half century' with the
emergence of Trans National Corporations
as major actors, the largest of which are
larger than many nation states. Yet even the
minimal efforts by the international
community to monitor, let alone regulate,
these global giants have been all but
abandoned.
ON TNCs/MNCs
hose of us associated with consumer,
environment, labour, human rights and
other citizens groups and movements
around the world will work together to
create a new. dynamic system for
monitoring the performance ofTNCs while
simultaneously urging the United Nations
to resume and strengthen its monitoring
role.
T
Meaningful standards for the behaviour of
TNCs as they impact on consumer,
environment, labour and human rights are
critical tools for citizen organising and
mobilising to protect and assert these rights.
We therefore urge that a fresh attempt be
made through the United Nations
Commission
on
Trans-national
Corporations (meeting in May, 1994) and
other appropriate intergovernmental forums
to formulate the Guidelines for Global
Business, which will ensure fairplay for all
concerned.
We also propose that as a parallel effort,
concerned citizens groups should join
together in constructing performance
standards for TNCs, drawing on existing
guidelines and conventions, including those
of the International Chamber of Commerce,
the OECD, the Caux Principles etc., which
have already achieved widespread
acceptance in the international community.
ON GATT
e furthermore recognise the
opportunity presented by the
forthcoming meeting of GATT ministers in
April in Marrakesh, which will be settling
W
the GATT’s future work programme. It is
essential that this programme lays the
foundations for future GATT accords on
trade and the environment, andon the inter
relation between trade and competition
policy - an issue of the first importance if
abuses of market power by TNCs are to be
checked.
In both these areas, there must be full
consultation with consumer and other
public interest groups as the research and
debate proceeds. And the GATT’s work
programme must not shrink from evaluating
and correcting the effects on competition
of the Uruguay Round package itself,
especially in the context of the TRIPS
agreement.
Many of us are concerned that the Uruguay
Round accord will strengthen the role of
TNCs in the global political economy and
lead to extensive violations of consumer,
labour, human rights and abuse of the
environment.
We therefore declare our commitment to
work in different ways to counter these
effects of the trade agreement, particularly
of the most objectionable features such as
intellectual property rights provisions, some
of us through non-violent direct action and
others through legal and other channels.
We furthermore recognise the opportunity
presented by the forthcoming GATT
Ministerial meeting this April to lay the
groundwork for further stages of GATT
negotiations and we urge that all further
negotiations include active participation of
citizens Igroups and movements, greater
transparency in the negotiations and
changes in those elements in the Agreement
that foster monopolies and restrict
competition.
15 February, 1994
New Delhi, India
A report of the conference in English, French
Ambassador Farooq Sobhan speaking at the closing of the CUTS - iOCU
International Conference on TNC guidelines, New Delhi, February 15 '94
The CUTS newsletter: 14th World Consumer Congress, Sept'94
and Spanish:
"
Too
Big for
Rules/Trop Grands Pour des Lois/Detnasiado
Grande para Reglas", is available for USS
10. Orders to be sent to CUTS, 3-B, Canute
Street, Calcutta-700 016, India.
INTERNATIONAL CONFERENCE ON
COMPETITION POLICY IN THE CONTEXT OF
LIBERALISATION
New Delhi, India, January 20-21,1995
Theme: Liberalisation and Market Intervention
OBJECTIVES
RESOURCE PERSONS *
1. To assert consumers’ demand for a just Mr Allan Asher, Commissioner, Australian Trade
marketplace where true competition and fair Practices Commission
business practice prevails.
2 To identify and collate information on anti Mr Phillipe Brusick, Chief, Restrictive Business
consumer practices of global business such as Practices Unit, UNCTAD, Geneva
cartels, mergers and acquisitions.
3. To identify linkages of the impact of competition Dr. S.Sothi Rachagan, Dean, Faculty of Law,
University of Malaya, Kuala Lumpur.
on the environment.
4. To adopt recommendations for the World Trade
Mr Stephen Locke, Director, Policy, Consumers
Organisation to incorporate in their policies on
Asscn., London, U.K.
environment and trade, and competition and
investment.
Mr H.H. da Silva, Secretary General, Fair Trading
Commission, Colombo, Sri Lanka
WHO SHOULD ATTEND
International and national organisations concerned Mr Kyu, Uck Lee, Vice President, Korea Development
Institute and Commissioner, FairTrade Commission,
with the issues.
Seoul
Interested participants are encouraged to send reports
on the existing situation in their region with emphasis
on how these issues are being tackled and specific
problems associated with implementation and/or
policy.
Forfurther information please contact:
Pradeep S Mehta, General Secretary, Consumer-Unity & Trust
Society (CUTS), 3-B, Camac Street, Calcutta 700 016, India,
Phone: 91.33.29 7391/29 2786, Fax: 91.33.29 7665/76 2785
Mr David Harland, Challis Professor of Law,
University of Sydney, Australia
Dr. Rajiv Dhawan, Sr. Advocate, Supreme Court of
India and Director, Public Interest Litigation Support
& Research Centre, New Delhi
* Those who have confirmed till date.
The CUTS newsletter: 14th World Consumer Congress, Sept'94: Published by Consumer Unity and Trust Society, 3-B, Camac Street, Calcutta-700
016. composed by La Graphique, 24, Ray Street, Calcutta-700 020, and printed by Clarion Printing, Leonard Street. Hastings, Calcutta-700 027. India.
See Sei. Med. Vol^f, No. 12. pp. 13<7-1363. 1990
Pnniedgti Great fl? num. All nghts reserved
0277-9536/90 S3.00-0.00
Copyright C 1990 Pergimoa Press pic
PRODUCING HEALTH, CONSUMING HEALTH CARE
Robert G. Evans* and Gregory L. Stoddart3
'Department of Economics, University of British Columbia. Vancouver, B.C., Canada V6T 1W5 and
^Department of Clinical Epidemiology and Biostatistics, Centre for Health Economics and Policy
Analysis, McMaster University, Hamilton, Ontario, Canada L8S 4L8
INTRODUCTION
jgople care about their health, for good reasons; and
^by try in a number of ways to maintain or improve
it. Individually and in groups at various levels—
families, associations, work groups, communities and
nations—they engage in a wide range of activities
which they believe will contribute to their health.
People also attempt to avoid activities or circum
stances which they see as potentially harmful. Implicit
in such behaviour are theories, or more accurately
loosely associated and often inconsistent collections
of causal hypotheses, as to the determinants of
health.
In particular, but only as a sub-set of these healthoriented activities, modem societies devote a very
large proponion of their economic resources to the
production and distribution of ‘health care’, a par
ticular collection of commodities which are perceived
as bearing a special relationship to health. The ‘health
care industry’ which assembles these resources and
convens them into various health-related goods and
services is one of the largest clusters of economic
activity in all modem states (1,2). Such massive
efforts reflect a widespread belief.that the availability
and use of health care is central to the health of both
individuals and populations.
This concentration of economic effort has meant
that public or collective health policy has been pre
dominantly health care policy. The provision of care
mly absorbs the lion’s share of the physical and
ectual resources which are specifically identified
jalth-related, it also occupies the centre of the
stage when the rest of the community considers what
to do about its health.
K
•The rhetoric of‘prevention’ has penetrated the health care
system to a significant degree; reactive responses to
identified departures from health may be labelled sec
ondary or tertiary prevention insofar as they prevent
further deterioration of an adverse condition. But even
when components of the health care system move from
a reactive to a promouve strategy—screening for choles
terol. for example, or hypertension—the interventions
still consist of identifying departures from clinically
determined norms for particular biological measure
ments. and initiating therapeutic interventions. Elevated
blood pressure or serum cholesterol measurements be
come themselves identified as ‘diseases', to be ‘cured’.
♦The representation of menial illness is always trouble
some—where is the borderline between clinical de
pression. and the ‘normal’ human portion of
unhappiness? The difficulty of definition persists, how
ever. across the whole continuum: the WHO definition
of health does not imply perpetual bliss.
Health care, in turn, is overwhelmingly reactive in
nature, responding to perceived departures from
health, and identifying those departures in terms of
clinical concepts and categories—diseases, profes
sionally defined. The definition of health implicit in
(most of) the behaviour of the health care system, the
collection of people and institutions involved in the
provision of care, is a negative concept, the absence
of disease or injury. The system is in consequence
often labelled, usually by its critics but not unjustly,
as a “sickness care system”.’
Yet this definition of health was specifically re
jected- by the World Health Organization (WHO)
more than 40 years ago. Its classic statement, “Health
is a state of complete physical, mental, and social
well-being, and not merely the absence of disease or
injury" expressed a general perception that there is
much more to health than simply a collection of
negatives—a state of not suffering from any desig
nated undesirable condition.
Such a comprehensive concept of health, however,
risks becoming the proper objective for, and is cer
tainly affected by, all human activity. There is no
room for a separately identifiable realm of specifically
health-oriented activity. The WHO definition is thus
difficult to use as the basis for health policy, because
implicitly it includes all policy as health policy. It has
accordingly been honoured in repetition, but rarely in
application.
Moreover, the WHO statement appears to offer
only polar alternatives for the definition of health.
Common usage, however, suggests a continuum of
meanings. At one end of that continuum is well
being in the broadest sense, the all-encompassing
definition of the WHO, almost a Platonic ideal of
‘The Good’. At the other end is the simple absence
of negative biological circumstances—disease, dis
ability or death.!
But the biological circumstances identified and
classified by the health care disciplines as diseases are
then experienced by individuals and their families or
social groups as illnesses—distressing symptoms. The
correspondence between medical disease and per
sonal illness is by no means exact. Thus the patient's
concept of health as absence of illness need not match
the clinician’s absence of disease. Further, the func
tional capacity of the individual will be influenced but
not wholly determined by the perception of illness,
and that capacity too will be an aspect, but not the
totality, of well-being.
There are no sharply drawn boundaries between
the various concepts of health in such a continuum;
but that does not prevent us from recognizing their
1347
1348
Robert G. Evans and Gregory L. Stoddart
differences. Different concepts are neither right nor
wrong, they simply have different purposes and fields
of application. Whatever the level of definition of
health being employed, however, it is important to
distinguish this from the question of the determinants
of (that definition of) health (3).
Here too there exists a broad range of candidates.
from particular targeted health care services, through
genetic endowments of individuals, environmental
sanitation, adequacy and quality of nutrition and
shelter, stress and the supportiveness of the social
environment, to self-esteem and sense of personal
adequacy or control. It appears, on the basis of both
long-established wisdom and considerable more re
cent research, that the factors which affect health at
all levels of definition include but go well beyond
health care per se [4-9].
Attempts to advance our understanding of this
broad range of determinants through research have,
like the health care system itself, tended to focus their
attention on the narrower concept of health—absence
of disease or injury. This concept has the significant
advantage that it can be represented through quan
tifiable and measurable phenomena—death or sur
vival, the incidence or prevalence of particular
morbid conditions. The influence of a wide range of
determinants, in and beyond the health care system,
has in fact been observed in these most basic—nega
tive—measures.
Precision is gained at a cost. Narrow definitions
leave out less specific dimensions of health which
many people would judge to be important to their
evaluation of their own circumstances, or those of
their associates. On the other hand, it seems at least
plausible that the broad range of determinants of
health whose effects are reflected in the ‘mere absence
of disease or injury’, or simple survival, are also
relevant to more comprehensive definitions of health.
The current resurgence of interest in the determi
nants of health, as well as in its broader conceptual
ization. represents a return to a very old historical
tradition, as old as medicine itself. The dialogue
between Asclepios. the god of medicine, and Hygieia,
the goddess of health—the external intervention and
the well-lived life—goes back to the beginning. Only
in the twentieth century did the triumph of‘scientific’
modes of inquiry in medicine (as in most walks of life)
result in the eclipse of Hygieia. Knowledge has
increasingly become defined in terms of that (and
only that) which emerges from the application of
reductionist methods of investigation, applied to the
fullest extent possible in a ‘Newtonian’ frame of
reference [10].
The health care system has then become the
conventional vehicle for the translation of such
•This does not represent a rejection of rational modes of
enquiry, the universe is still seen as. on some levels, a
comprehensible and orderly place. But there appear to
be fundamental limits on its comprehensibility—not just
on our ability to comprehend it—and the relevant
concepts of order may also be less complete than was
once hoped. Whether or not Nietzsche turns out to be
right about the death of God [13], Laplace’s Demon
appears definitely defunct [12,14.15]. (But has he met
his maker?)
knowledge into the improvement of health—more,
and more powerful, interventions, guided by better
and better science. Nor have its achievements been
negligible in enhanced ability to prevent some dis
eases, cure others and alleviate the symptoms or slow
the progress of many more. Thus by mid-century the
providers of health care had gained an extraordinary
institutional and even more an intellectual domi
nance, defining both what counted as health, and how
it was to be pursued. The WHO was a voice in the
wilderness.
But the intellectual currents have now begun to
flow in the other direction. There has been a contin
uing unease about the exclusive authority of classi
cally ‘scientific’, positivist methods, both to defintf^
knowable and to determine how it may come
known [11,12], an unease which has drawn new
strength from developments in sub-atomic physics
and more recently in artificial intelligence and
*
mathematics.
In addition, the application of those
methods themselves to the exploration of the determi
nants of health is generating increasing evidence—in
the most restricted scientific sense—of the powerful
role of contributing factors outside the health care
system [16-20].
Simultaneously, the more rigorous evaluation of
the health care system itself has demonstrated that its
practices are much more loosely connected with
scientific or any other form of knowledge, than the
official rhetoric would suggest [21-24]. And finally.
the very success of that system in occupying the
centre of the intellectual and policy stage, and in
drawing in resources, has been built upon an extra
ordinarily heightened set of social expectations as to
its potential contribuuons. Some degree of disap
pointment and disillusion is an inevitable conse
quence, with corresponding concern about the
justification for the scale of effort involved—the
rhetoric of ‘cost explosions’.
There is thus a growing gap between our under
standing of the determinants of health, and the
primary focus of health policy on the provision of
health care. This increasing disjunction may be p^dv
a consequence of the persistence, in the policy
of incomplete and obsolete models, or intelle^Kl
frames of reference, for conceptualizing the determi
nants of health. How a problem is framed will .
determine which kinds of evidence are given weight, ‘
and which are disregarded. Perfectly valid data— t
hard observations bearing directly on important $
questions—simply drop out of consideration, as if
they did not exist, when the implicit model of entities
and inter-relationships in people’s minds provides no
set of categories in which to put them.
VJ
There is, for example, considerable evidence linking mortality to the (non)availability of social support mechanisms, evidence of a strength which House
[16] describes as now equivalent to that in the mid1950s on the effects of tobacco smoking. Retirement,
or the death of a spouse, are documented as import
ant risk factors. Similarly some correlate or combi
nation of social class, level of income or education,
and position in a social hierarchy is clearly associated
with mortality [4, 6], None of this is denied, yet no
account is taken of such relationships in the formu
lation of health (care) policy.
Producing health, consuming health care
Such policy is, by contrast, acutely sensitive to even
the possibility that some new drug, piece of equip
ment, or diagnostic or therapeutic manoeuvre may
contribute to health. That someone's health may
perhaps be at risk for lack of such intervention, is
prima facie grounds for close policy attention, and at
least a strong argument for provision. Meanwhile the
egregious fact that people are suffering, and in some
cases dying, as a consequence of processes not di
rectly connected to health care, elicits neither rebuttal
nor response.
The explanation cannot be that there is superior
evidence for the effectiveness, still less the cost-effec
tiveness, of health care interventions. It is notorious
that new interventions are introduced, and particu
larly disseminated, in the absence of such evidence
[21-23]. If (some) clinicians find it plausible that a
manoeuvre might be beneficial in particular circum
stances. it is likely to be used. The growing concern
for 'technological assessment’ or careful evaluation
before dissemination, is a response to this well-estab
lished pattern. But those who might wish to restrain
application, fearing lack of effect or even harm, find
themselves bearing the burden of rigorous proof. If
the evidence is .incomplete or ambiguous, the bias is
toward intervention.
This heavy concentration of attention and effort on
a sub-set of health-related activities, and de facto
dismissal of others, may be a product of the concep
tual framework within which we think about the
determinants of health. A simple mechanical model
captures the causal relationships from sickness, to
care, to cure. The machine (us) is damaged or breaks.
and the broken part is repaired (or perhaps replaced).
Although this mental picture may be a gross over
simplification of reality, it is easy to hold in mind.
By contrast, it is not at all obvious how one should
even think about the causal connections between
'stress’ or 'low self-esteem’, and illness or death—
much less what would be appropriate policy re
sponses. The whole subject has a somewhat
mysterious air. with overtones of the occult, in con
trast to the (apparently) transparent and scientific
process of health care.
*
There being no set of intellec
tual categories in which to assemble such data, they
are ignored.
In this paper, therefore, we propose a somewhat
more complex framework, which we believe is suffi
ciently comprehensive and flexible to represent a
wider range of relationships among the determinants
of health. The test of such a framework is its ability
to provide meaningful categories in which to insert
the various sorts of evidence which are now emerging
as to the diverse determinants of health, as well as to
permit a definition of health broad enough to encom
pass the dimensions which people—providers of care,
policy makers and particularly ordinary individ
uals—feel to be important.
•The actual interventions themselves may be very far from
transparent; ’medical miracles' are an everyday occur
rence. and the processes are presented as beyond the
capacity or ken of ordinary monals. But the application
of a high degree of science and skill is still within the
conceptually simple framework of a mechanical model—
fixing the damaged part.
ISM >1 i:—£
1349
Our purpose is not to try to present a comprehen
sive. or even a sketchy, survey of the current evidence
on the determinants of health. Even a taxonomy for
that evidence, a suggested classification and enumer
ation of the main heads, would now be a major
research task. Rather, we are trying to construct an
analytic framework within which such evidence can
be fitted, and which will highlight the ways in which
different types of factors and forces can interact to
bear on different conceptualizations of health. Our
model or precedent is the federal government’s White
Paper, A New Perspective on the Health of Canadians
[25], which likewise presented very little of the actual
evidence on the determinants of health, but offered a
very powerful and compelling framework for assem
bling it.
We will also follow the White Paper in offering no
more than the most cursory indication of what the
implications of such evidence might be for health
policy, public or private. Policy implications will arise
from the actual evidence on the determinants of
health, not from the framework per se. If the frame
work is useful it should facilitate the presentation of
evidence in such a way as to make its implications
more apparent. But there is of course much more to
policy than evidence; 'the art of the possible' includes
most importantly one's perceptions of who the key
actors are and what their objectives might be. We will
be addressing these issues in subsequent work, but
not here.
Finally, we must emphasize that the entities which
form the components of our framework are them
selves categories, with a rich internal structure. Each
box and label could be expanded to show its complex
contents. One must therefore be very careful about,
and usually avoid, treating such categories as if they
could be adequately represented by some single
homogeneous variable, much less subjected to math
ematical or statistical manipulations like a variable.
Single variables may capture some aspect of a par
ticular category, but they are not the same as that
category. Moreover, in specific contexts it may be Che
interactions between factors from different categories
of determinants that are critical to the health of
individuals and populations.
DISEASE AND HEALTH CARE: A (TOO) SIMPLE
FOUNDATION
We build up our framework component by com
ponent. progressively adding complexity both in re
sponse to the demonstrable inadequacies of the
preceding stage, and in rough correspondence to (our
interpretation of) the historical evolution of the
conceptual basis of health policy over the last half
century. The first and simplest stage defines health as
absence of disease or injury and takes as central the
relation between health and health care. The former
is represented in terms of the categories and capacities
of the latter. The relationship can be represented in
a simple feed-back model, as presented in Fig. 1,
exactly analogous to a heating system governed by a
thermostat.
In this framework, people 'get sick' or 'get hurt’ for
a variety of unspecified reasons represented by the
unlabelled arrows entering on the left hand side. They
Robert G. Evans and Gregory I_ Stoddart
1350
Need. Accee*
Cure, Care
Fig. 1
may then respond by presenting themselves to the
health care system, where the resulting diseases and
injuries are defined and interpreted as giving rise to
‘needs’ for particular forms of health care. This
interpretive role is critical, because the definition of
‘need’ depends on the state of medical technology.
Conditions for which (it is believed that) nothing can
be done may be regrettable, and very distressing, but
do not represent ‘needs’ for care. The patient feels the
distress, but the health care system defines the need.
Potential ‘needs' for health care are. however, pre
filtered before they reach the care system, an import
ant process which is reflected explicitly neither in
Fig. I nor in most of health policy.
*
Whether or not
people respond to adverse circumstances by contact
ing the health care system, seeking ‘patient’ status.
will depend on their perceptions of their own coping
capacities, and their informal support systems, rela
tive to their expectations of the formal system. These
expectations and reactions are thus included among
the ’other factors' that determine the environment to
which the health care system responds.
•To the extent that oven policy does recognize this process.
it tends to respond with marketing activities encouraging
people to seek cart. A surprising proportion of so-called
‘health promotion
*
includes various forms of ‘see your
*
doctor
messages, and might more accurately be called
‘disease promotion’. Measures to encourage ‘informal’
coping should inter alia include recommendations not to
contact the health care system in particular circum
stances; the latter are virtually unheard of.
tThe experience of. the United States is a clear demon
stration of the distinction between the resource and
admmistrative.'financxal dimensions of access. The
United States devotes a much larger share of its national
resources to producing health care than does any other
nation, and spends much more per capita [1,2]. Yet the
peculiarities of its financing system result in severely
restricted (or no) access for a substantial minority of its
citizens. On the other hand, nominally universal 'access
*
to a system with grossly inadequate resources would be
equally misleading.
♦Providers of care, particularly nurses, often emphasize
their ‘caring’ functions. The point here is not at all that
caring is without importance or value, but rather that it
is by no means the exclusive preserve of providers of
health care. Furthermore, the ‘social contract’ by which
members of a particular community undertake collective
(financial) responsibility for each other’s health narrowly
defined, does not necessarily extend to responsibility for
their happiness. ‘Caring’ independently of any contem
plated ‘curing’, or at least prevention of deterioration.
represents an extension of the ‘product line'—and sales
revenue—of the health care system. If collective buyers
of these services, public or private, have never in fact
agreed to this extension, its ethical basis is rather shaky.
The health care system then combines the functions
of thermostat and furnace, interpreting its environ
ment. defining the appropriate response and respond
ing. The level of response is determined by the ‘access’
to care which a particular society has provided for its
members. This access depends both on the combi
nation of human and physical resources available__
doctors, nurses, hospitals, diagnostic equipment,
drugs, etc.—and also on the administrative and finan
cial systems in place which determine whether par
ticular individuals will receive the services of these
resources, and under what conditions.t
The top arrow in Fig. 1 thus reflects the positive
response of the health care system to disease—jlje
provision of care. But the form and scale oMhr
response is influenced, through a sort of ‘two^^
system, both by the professional definition of needs—
what should be done to or for people in particular
circumstances, suffering particular departures from
health—and by the whole collection of institutions
which in any particular society mobilize the resources
to meet the needs, and ensure access to care.
Those organizing and financing institutions have
very different structures from one society to another,
but their tasks are essentially similar, as are the
problems and conflicts they face. The actual technol
ogies. and the institutional and professional roles, in
health care also show a remarkable similarity across
modem societies, suggesting that those societies share
a common intellectual framework for thinking about
the relationship between health and health care.
The feed-back loop is completed by the lower
arrow, reflecting the presumption that the provision
of care reduces the level of disease, thereby impro
ving health. The strength of this negative relation
ship represents the effectiveness of care. These
effects include: the restoration and maintenance of
health (providing ‘cures'); preventing further de
terioration; relieving symptoms, particularly pain;
offering assistance in coping with the inevitable;
and providing reassurance through authoritative
interpretation.
The important role of health care in provithjt
comfort to the afflicted fits somewhat ambiguous!]®^
this framework, since services which can clearly be
identified as making people feel good, but having no
present or future influence on their health status
however defined, can readily be seen to include a very
wide range of activities, most of which are not usually.
included as health care [26].
"V
The provision of services which are generally rec
ognized as health care should obviously take place in
a context that preserves a decent consideration for the
comfort of those served. There is no excuse for the
gratuitous infliction of discomfort, and patients
should not be made any more miserable than they
have to be. But for those services which represent only
comfort, it is important to ask both: Why should they
be professionalized, by assigning ‘official’ providers
of health care a privileged right to serve? and Why
should the clients of the health care system be
awarded privileged access to such services? There
are many people, not by any sensible definition ilU
who might nevertheless have their lives consider
ably brightened by comforting services at collective
*
expense.
Producing health, consuming health care
In this conceptual framework, the level of health of
a population is the negative or inverse of the burden
of disease. This burden of disease in Fig. I is
analogous to the temperature of the air in a house in
a model of a heating system. The health care system
diagnoses that disease and responds with treatment;
the thermostat detects a fall in air temperature and
turns on the furnace. The result is a reduction in
disease/increase in room temperature. The external
factors—pathogens, accidents—which ‘cause’ disease
are analogous to the temperature outside the house;
a very cold night is equivalent to an epidemic. But
the consequences of such external events are moder
ated by the response of the heating/health care
systems.
The thermostat can, of course, be set at different
target temperatures, and the control system of the
furnace can be more or less sophisticated depending
on the extent and duration of permissible departures
from the target temperature. Similarly access to care
can be provided at different levels, to meet different
degrees of’need’ and with tighter or looser tolerances
for over- or under-servicing.
The systems do differ, insofar as the house tem
perature can be increased more or less indefinitely by
putting more fuel through the furnace (or adding
more furnaces). In principle the expansion of the
health care system is bounded by the burden of
remediable disease. When each individual has re
ceived all the health care which might conceivably
be of benefit, then all needs have been met, and
‘health’ in the narrow sense of absence of (remedia
ble) disease or injury has been attained. Health is
bounded from above; air temperature is not. The
occupants of the house do not of course want an
ever-increasing temperature, whether or not it is
possible. Too much is as bad as too little. Yet
•Best attainable health begs the question of by which means
health may be attained. A hypothetical situation in
which the members of a population had each received all
the health care which might benefit them, might nevertheless be one in which the population fell well short of
‘
attainable health because other measures outside the
health care system were neglected.
tA classic example has been provided by the response of
paediatrics to the collapse of the baby boom in the
mid-1960s. The ‘New Paediatrics’—social and emotional
problems of adolescents—was discovered just in time to
prevent underemployment. At the other end of the
paediatric age range, progress in neonatology will
ensure a growing supply of very low birthweight babies
surviving into childhood, with a complex array of
medical problems requiring intervention. We do not
suggest that these system responses are the result of
conscious and deliberate self-seeking by providers; such
is almost certainly not the case. But (he outcome is what
it is.
tThe quotes arc needed because the health care system, and
the people in it. are not simply an ‘industry’ in the sense
of a set of activities and actors motivated solely by
economic considerations. But to the extent that they
are—and it is undeniable that economic considerations
do matter, even if they are not the exclusive motiv
ations—then this observation holds.
§If building environmental standards were set by fuel supply
companies, would we have similar problems with the
regulation of thermostats?
1351
no obvious meaning attaches to the words ‘too
healthy'. More is always better, a closer approxi
mation to the ideal of perfect, or at least best
attainable, health.”
The differences are more apparent than real, how
ever, since in practice the professionally defined needs
for care are themselves adjusted according to the
capacity of the health care system, and the pressures
on it. The objective of health, Rene Dubos’ mirage
(27], ever recedes as more resources are devoted to
health care. As old forms of disease or injury threaten
to disappear, new ones are defined. There are always
‘unmet needs’.f
Furthermore, obvious meanings do attach to the
words ’too much health care’, on at least three levels.
First, too much care may result in harm to health in
the narrow sense—iatrogenic disease—because po
tent interventions arc always potentially harmful. But
even if care contributes to health in the narrow
sense—keeping the patient alive, for example—it may
still be ‘too much
.
*
Painful interventions which pro
long not life but dying are generally recognized as
harmful to those who are forced to undergo them.
More generally, the side effects of‘successful’ therapy
may in some cases be. for the patient, worse than the
disease.
Second, even if the care is beneficial in terms
of both health and well-being of the recipient, it
may still represent ’too much’ if the benefits are very
small relative to the costs, the other opportunities
foregone by the patient or others. If health is an
important, but not the only, goal in life, it follows
that there can be ‘too much' even of effective health
care (28).
And finally, an important component of health is
the individual’s perception of his or her own sure. An
exaggerated sense of fragility is not health but
hypochondria. Too much emphasis on ±e number of
things than can go wrong, even presented under the
banner of ‘health promotion’, can lead to excessive
anxiety and a sense of dependence on health care—
from annual check-up to continuous monitoring.
This is very advantageous economically for the
‘health care industry’,£ and perhaps may contribute in
some degree to a reduction in disease, but does not
correspond to any more general concept of health
(29-31].
Unlike a heating system, however, health care
systems do not settle down to a stable equilibrium of
temperature maintenance and fuel use. The combi
nation of the ‘ethical’ claim that all needs must be
met, and the empirical regularity that, as one need is
met, another is discovered, apparently ad infinitum,
leads to a progressive pressure for expansion in the
health care systems of all developed societies. It is as
if no temperature level were ever high enough.
more and more fuel must always be added to the
fumace(s).§
CONCERNS ABOUT COST. EFFECTIVENESS AND
THE MARGINAL CONTRIBUTION OF
HEALTH CARE
The result is shown in Fig. 2, in which the top
arrow, access to health care, has been dramatically
1352
Robert G. Evans and Gregory L. Stoddart
the rate of increase of resources flowing to the health
care system. They are independent of the actual level
of provision of health care to a population, or of its
expense, let alone of the level of health, however
defined, of that population. They also appear to
develop independently of the particular form taken
by the payment system in a country.
Nor. as the American example shows, does it
matter whether the attempts to limit cost escalation
Heoun Car* Evaluation
are successful. Perceptions of crisis emerge from the
attempt, not the result. Accordingly one should not
Fig 2
expect to find any connection between the health of
a population, and allegations of‘crisis’ in the funding
of its health care—or at least not among the countries
expanded lo reflect a ‘health care cost crisis.’" A
comparison of international experience demonstrates of Western Europe and North America.
On the lower arrow, and intimately connected^P,
that the perception of such a crisis is virtually univer
the perceptions of ‘cost crisis’, we find increasing
sal. at least in Western Europe and North America.
It is interesting to note, however, that the countries concern for the effectiveness with which health care
which perceive such a crisis actually spend widely services respond to needs. The development and
differing amounts on health care, either absolutely or rapid expansion of clinical epidemiology, for
example, reflects a concern that the scientific basis
as a proportion of their national incomes [1.2].
underlying much of health care is weak to non-exist
Nevertheless, whether they spend a little or a lot.
ent. More generally, the growing field of health
in all such countries there is an expressed tension
between ever-increasing needs, and increasingly re services research has accumulated extensive evidence
strained resources. Even in the United Slates, one inconsistent with the assumption that the provision of
health care is connected in any systematic or scientifi
finds providers of care claiming that they face more
and more serious restrictions on the resources avail cally grounded way with patient ‘needs’ or demon
strable
outcomes (21-24. 33. 34). Accordingly, the
able to them [32], despite the egregious observation
greatly increased flow of resources into health care is
that the resources devoted to health care in that
perceived as not having a commensurate, or in some
country are greater, and growing faster, than any
cases any, impact on health status. Nor is there any
where else in the world.
We interpret this observation as implying that demonstrable connection between international vari
perceptions of ‘crises’ in health care finance arise ations in health status, and variations in health
spending (35).
from conflicts over the level of expenditure on health
If there were a commensurate impact, then pre
care (and thus by definiuon also over the levels of
incomes earned from its provision). Such conflicts sumably efforts to control costs would be less intense
develop whenever paying agencies attempt to limit (and perhaps more focussed on relative incomes). As
Culver (36] emphasizes. “... cost containment in
itself is not a sensible objective.” The rapid increase
“The rhetoric of 'cost crises' rarely if ever recognizes an
in spending on computers has not generated calls for
extremely important distinction between expenditures or
cost caps. A care system which could ‘cure’ upper
outlays, and the economist's concept of resource or
respiratory infections, colds and flu. for example,
opportunity costs. Expenditures on health care may rise
would have an enormous positive impact on b^?
(fall) either because more (fewer) resources of human
economic productivity and human happiness,
lime, effort, and skills, capital equipment and raw ma
would be well worth considerable extra expense, ou
terials. are being used in its production, or because the
would a ‘cure’ for arthritis. Offered such benefits, we
owners of such resources are receiving larger (smaller)
suspect that few societies would begrudge the extra
payments for them—higher (lower) salaries, fees, or
prices. The arrow from health care to disease represents
resources needed to produce them; indeed these re
a response in the form of actual goods and services
sources would to a considerable extent pay for them
provided—real resources. But much of the public debate
selves in higher productivity.!
over ‘underfunding’ and ’cost cnscs' is really about the
The combination of virtually universal concern
relative incomes of providers of care, not about the
over cost escalation, among payers for care, with ■
amount and type of care provided. For obvious political
steadily
increasing evidence from the international
reasons, income claims are frequently presented as if
research community that a significant proportion of .
they were assertions about levels of care (26, 32).
health
care
activity is ineffective, inefficient, inexplica
tThere might still, however, be quite justifiable interest in
ble, or simply unevaluated, constitutes an implicit
the patterns of prices and incomes generated by such
care (see § on p. 1351). A competitive marketplace can
judgement that the ‘expanding needs’ to which ex
generate intense pressures which automatically control
panding health care systems respond are either not of
prices and incomes, as the computer example has
high enough priority to justify the expense, or simply
demonstrated. Health care, however, is nowhere pro
not being met at all.
vided through such a market (not even in the United
It is not that no ‘needs’ remain, that the popu
States), and has not been for at least a hundred yean.
lations of modem societies have reached a stale of
There are excellent reasons for this [e.g. 26. 37], and the
optimum health—that is obviously not the case. Nor
situation is not in fact going to change in the foreseeable
is it claimed that medicine has had no effect on
future. It follows that other mechanisms, with associated
health—that too is clearly false. The concern is rather
controveny. will remain necessary to address issues of
income distribution.
that the remaining shortfalls, the continuing burden
Producing health, consuming health care
1353
of illness, disability, distress, and premature death.
tors outside the health care system is growing rapidly
are less and less sensitive to further extensions in in both quantity and quality.
health care—we are reaching the limits of medicine.
But the intellectual framework reflected in Figs 1
At the same time the evidence is growing in both
and 2 pushes these other, and perhaps more powerful.
quantity and quality that this burden may be quite determinants of health off the stage and into the
sensitive to interventions and structural changes out amorphous cluster of arrows entering from the left
side the health care system.
hand side of the diagram. By implication they are
These concerns and this evidence are by no means unpredictable, or at least uncontrollable, so there is
new—they go back at least two decades. Yet most of no point in spending a great deal of intellectual
the public and political debate over health policy energy or policy attention on identifying or trying to
continues to be carried on in the rhetoric of ’unmet
influence them. For most of the twentieth century.
needs' for health care. There is a curious disjunction
rapid advances in the scientific, organizational and
in both the popular and the professional ‘conven financial bases of health care have encouraged, and
been encouraged by, this dismissal. We have given
tional wisdom’, in that widespread concerns about
the effectiveness of the health care system, and accep almost all our attention to the heating contractor and
tance of the significance of factors outside that sys the fuel salesman, and have had no lime or interest
tem. co-exist quite comfortably with continuing to consider how the house is insulated.
worries about shortages and ‘underfunding’.
By the early 1970s, however, all developed nations
The current ‘shortage of nurses’ in Canada and had in place extensive and expensive systems of
indeed in much of the industrialized world/ provides health care, underpinned by collective funding mech
a good example. Nursing ‘shortages’ have been cause anisms. which provided access for all (or in the
for periodic concern in Canada for more than a
United States, most) of their citizens. Yet the result
quarter century,. Yet throughout that period, there ing health gains seemed more modest than some had
has been virtually uniform agreement among in anticipated, while the 'unmet needs’, or at least the
formed observers that utilization of in-panent beds
pressures for system expansion, refused to diminish.
Simple trend projections indicated that, within a
in Canada is substantially higher than ‘needed
*.
relatively short span of decades, the health care
and efforts have been on-going to reduce such use.
Taking both positions together, this suggests that
systems of modem societies would take over their
there is a ‘shortage’ of nurses to provide ‘unnecessary’
entire economies. As public concerns shifted from
care!
expansion to evaluation and control, the alternative
The significant point is not the validity or otherwise
tradition began to reassert itself. In such an environ
of either perception, but the fact that they do not
ment. a growing interest in alternative, perhaps more
confront one another. In terms of the thermostatic effective, hopefully less expensive, ways of promoting
model, public discussion still consists almost entirely health was a natural response.
of claims by providers (with considerable public
The resurgence of interest in ways of enhancing the
support) that the room temperature is not high
health of populations, other than by further expan
enough, or is in danger of falling, or that a severe cold sion of health care systems, was thus rooted both in
spell is on the way ... but in‘any case it is imperative
the observation of the stubborn persistence of illthat we install more and bigger furnaces immediately,
health. and in the concern over growing costs. The
and buy more fuel. Meanwhile payers—in Canada
latter development has been particularly important in
provincial governments—wring their hands over the ‘recruiting new constituencies’ for the broader view of
size of the fuel bill and seek, with very little external
the determinants of health. Financial bureaucrats.
both public and private, have become (often rather
support, ways of making the existing heating system
more efficient.
suspect) allies of more traditional advocates [38, 39].
A more efficient heating system is indeed a laudable
objective, although it is understandable that the
THE HEALTH FIELD CONCEPT: A NEW PERSPECTIVE
providers of health care, as the owners of the fuel
The broader view was given particularly compact
supply companies, may give it a lower priority than
and articulate expression in the famous Canadian
do those who are responsible for paying the bills. But
White Paper referred to above which came out.
there is a much more fundamental question. The
people who live in the building are primarily con presumably by complete coincidence, in the same
year as the first ’energy crisis’. Its ’Four Field’
cerned about the level and stability of the room
temperature, not the heating system per se. They framework for categorizing the determinants of
health was broad enough to express a number of the
become drawn into an exclusive focus on the heating
system, if they perceive that this is the only way to concerns of those trying to shift the focus of health
policy from an exclusive concern with health care. In
control the room temperature. But as was (re)leamed
Fig. 3 this framework is superimposed upon the
in North America after the oil shock of 1974, this is
earlier ’thermostat/fumace
*
model of health care and
not so.
Similarly the health care system is not. for the health.
The .Vew Perspective proposed that the determi
general population, an end in itself. It is a means to
nants of health status could be categorized under the
an end. maintenance and improvement of health [26].
headings
of Lifestyles, Environment, Human Biology
And while few have followed Ivan Illich [29] in
arguing that the health care system has no positive— and Health Care Organization. As can be seen in
and indeed net negative—effects on the health of Fig. 3, the first three of these categories provided
those it serves, nevertheless as noted above, the specific identification for some of the ’other and
evidence for the importance of health-enhancing fac unspecified’ factors entering on the left hand side of
1354
Robert G. Evans and Gregory L. Stoooart
Clinical Epidtmiolafly
H*olth Car* Evo loot i on
HMlth SorviCM R«»»ortft, ale
Fg. 3
Figs 1 and 2. By labelling and categorizing these
factors, the White Paper drew attention to them and
suggested the possibility chat their control might
contribute more to the improvement of human health
than further expansions in the health care system. At
the very least, the health field framework emphasized
the centrality of the objective of health, and the fact
that health care was only one among several forms of
public policy which might lead towards this objective.
The While Paper was received very positively; no
one seriously challenged its basic message that who
we are, how we live and where we live are powerful
influences on our health status. But the appropriate
policy response was less clear, because the document
could be read in several different ways. At one end of
the ideological spectrum, it was seen as a call for a
much more interventionist set of social policies, going
well beyond the public provision of health care per se
in the effort to improve the health of the Canadian
population and relieve the burden of morbidity and
mortality.
At the other end. however, the assumption that
lifestyles and to a lesser extent living environments
are chosen by the persons concerned could be com
bined with the White Paper framework to argue that
people are largely responsible for their own health
status—have in fact chosen it. If so, then the justifica
tion for collective intervention, even in the provision
of health care, becomes less clear." This appears to
have been far from the intention of the authors of the
paper, but the framework in Fig. 3 lends itself to
‘victim-blaming’ as well as to arguments for more
comprehensive social reform [38].
Whatever the original intent, however, the White
Paper led into a period of detailed analysis of individ
ual risk factors, i.e. both individual hazards and
individual persons, as contributors to ‘disease
*
in the
*Noi nonexistent There is no basis in ethical theory or
institutional practice for the proposition which creeps
into so much of normative economics, that individual
choice is the ultimate and even the only ground of
obligation (40).
tWe do not mean to imply that the authors of the White
Paper had the relatively limited view which we present
below, still less that all of their subsequent interpreters
have been so intellectually constrained. But it is our
perception that the principal impact of the White Paper
framework on debates about, and the development of.
health policy, has been limited in the way we describe.
traditional sense.t The potential significance of pro
cesses operaung on health at the level of groups and
populations was obscured, if not lost [41]. Smoking.
for example, was \-iewed as an individual act pre
disposing to specific diseases. Specific atmospheric
pollution contributes to lung disease. Genetic defects
result in well-defined genetic diseases. The central
thermostatic relationship is preserved, with health as
absence of disease, and health care as response to
disease in order to provide ‘cures’ or relieve symp
toms. individual by individual.
To illustrate the distinction, one can formulate
health policy to address cancer across a spectrum
from the individual to the collective. One can increase
facilities for the treatment of cancer patients, a wj^Hy
individualized, reactive response. One can im^H:
research on cancer treatment, an activity wflFa
‘collective’ focus only insofar as the specific recipients
of new treatments may not be known in advance. One
can launch anti-smoking campaigns, trying to induce
certain individuals whose characteristics are known—
they smoke—to change their behaviour voluntarily.
These campaigns may in turn be wholly individuaJized—paying or otherwise encouraging physicians to
provide counselling, for example—or advertising
campaigns aimed at the general population. Or one
can try to limit involuntary exposures by regulating
the presence of carcinogens in the environment, es
tablishing mandatory smoke-free zones (hospitals,
restaurants, aircraft, workplaces . ..) or regulating
industrial processes.
The focus on individual risk factors and specific
diseases has tended to lead, not away from but back
to the health care system itself. Interventions, particu
larly those addressing personal lifestyles, are offered
in the form of ‘provider counselling' for smoking
cessation, scat-belt use or dietary modification
[42.43]. These in turn are subsumed under a more
general and rapidly growing set of interventions
attempting to modify risk factors through trans
actions between clinicians and individual patients.
The ’product line’ of the health care system is thus
extended to deal with a more broadly defined set of
‘diseases’—unhealthy behaviours The boundan^k •
comes blurred between, e.g. heart disease as maiWF‘
in symptoms, or in elevated serum cholesterol
measurements, or in excessive consumption of fats.
All are ‘diseases’ and represent a ‘need’ for health
care intervention. Through this process of disease
redefinition, the conventional health care system has
been able to justify extending outreach and screening
programmes, and placing increased numbers of ,
people on continuing regimens of drug therapy and
regular monitoring.
The emphasis on individual risk factors and par
ticular diseases has thus served to maintain and
protect existing institutions and ways of thinking
about health. The ‘broader determinants of health’
were matters for the attention of individuals, perhaps
in consultation with their personal physicians, sup
ported by poster campaigns from the local public
health unit. The behaviour of large and powerfu
organizations, or the effects of economic and social
policies, public and private, were not brought under
scrutiny. This interpretation of the White Paper thus
not only fitted in with the increasingly conservative
Producing health, consuming health care
1355
Zeitgeist of the late 1970s and early 1980s. but
EXTENDING THE FRAMEWORK: HEALTH AND ITS
protected and even enhanced the economic position
BIOLOGICAL AND BEHAVIOURAL DETERMINANTS
of providers of care, while restricting sharply the
range of determinants, and associated policies, con
Yet in the years since the publication of the
sidered. Established economic interests were not
White Paper, a great deal of evidence has accumu
threatened—with the limited exception of the tobacco lated. from many different sources, which is difficult
industry.
or impossible to represent within this framework.
This tendency was reinforced by attempts to esti The very broad set of relationships encompassed
mate the relative contribution of the four different
under the label of 'stress’, for example, and factors
fields or sets of factors to ill-health. As Gunningprotective against ‘stress’ (17, 20], have directed atten
Schepers and Hagen [44] have pointed out, a simple
tion to the importance of social relationships, or their
partitioning of sources of mortality, morbidity or absence, as correlates of disease and mortality. Feel
care utilization into four discrete ‘boxes' is fundamen ings of self-esteem and self-worth, or hierarchical
tally misguided. Nevertheless, 'expert opinion’ position and control, or conversely powerlessness,
suggested that, of the three fields external to the similarly appear to have health implications quite
health care system, ‘Lifestyles’ had the largest and
independent of the conventional risk factors
most unambiguously measurable effect on health.
[4, 6, 16, 20].
‘Lifestyles’—diet, exercise, substance use—were also
These sorts of factors suggest explanations for
the factors most readily portrayed as under the the universal finding, across all nations, that mor
control of the individual. They thus lent them tality and (when measurable) morbidity follow a
selves to the politically innocuous, inexpensive, highly gradient across socioeconomic classes. Lower income
visible and relatively ineffective intervention of health
and/or lower social status are associated with poorer
education campaigns—earned on through the public
health, t
health arm of the health care system.
This relationship is not, however, an indication of
Smoking cessation provides a partial counter deprivation at the lower end of the scale, although it
example, which illustrates the difficulty of breaking
is frequently misinterpreted in that way. In the first
out of the disease-health care intellectual framework.
place, the socioeconomic gradient in health status has
Tobacco is not only toxic, but addictive, and addic been relatively stable over lime [9], although average
tion most commonly commences in childhood. Con income levels have risen markedly in all developed
sequently the presumption that users rationally and
societies. The proponion of persons who are deprived
voluntanly ‘choose’ smoking as a ‘lifestyle’ is particu of the necessities of life in a biological sense has
larly inappropriate. Furthermore, the observation clearly declined. But even more important, the re
that smoking behaviour is very sharply graded by
lationship is a gradient, not a step function. Top
socioeconomic class undercuts the argument that it people appear to be healthier than those on the
represents an individual choice, and indicates instead
second rung, even though the latter are above the
a powerful form of social conditioning.
*
population averages for income, status or whatever
Partly for these reasons, Canadian health policy
the critical factors are [6].
has gone beyond educatiorfal campaigns to spread
It follows that the variously interpreted determi
information about the ill effects of smoking and
nants of health which lie outside the health care
includes limitations on the advertising and marketing system are not just a problem of some poor, deprived
of tobacco products. The political resistance to these
minority whose situation can be deplored and ig
limitations has been much more intense, suggesting
nored by the rest of us. De te fabula narratur, we are
prima facie that the marketers of such products fear all (or most of us) affected. And that in turn implies
that they might be effective. But the broader question,
that the effects of such factors may be quantitatively
of the social determinants of tobacco use. is still left
very significant for the overall health status of mod
open.t
em populations. The issues involved are not trivial.
The intellectual framework of the White Paper, at
second- or third-order effects.
least as it has been applied and as represented in
Moreover, the fact that gradients in mortality and
Fig. 3, has thus supplemented the thermostatic model
morbidity across socioeconomic classes appear to be
of health as absence of disease, and health care as
relatively stable over long periods of time, even
response, but has failed to move beyond the core
though the principal causes of death have changed
relationship. Since as noted above, ‘disease’ is defined considerably, implies that the underlying factors
through the interpretation of individual experience by
influence susceptibility to a whole range of diseases.
the providers of health care, it is perhaps not surpris They are general rather than specific risk factors.
ing that the Health Care Organization field tended to
Whatever is going round, people in lower social
take over large parts of the other three, when they
positions tend to get more of it, and to die earlier—
even after adjustment for the effects of specific indi
were presented as determinants of disease.
vidual or environmental hazards [47].
This suggests that an understanding of the relation
•None of which is news to tobacco marketers.
ship between social position, or ‘stress’, and health,
tOne should note, however, that (he very limited expenence
will require investigation at a more general level than
in the early 1970s with anti-smoking advertising on
the aetiology of specific diseases. It also raises the
television appeared to be sufficiently successful that
possibility that disease-specific policy responses—
tobacco companies were willing voluntarily to abandon
through health care or otherwise—may not reach
this medium in order to get the ’opposition' off the air
deeply enough to have much effect. Even if one
JWilkins [45] and Wolfson [46] provide recent Canadian
‘disease’ is ‘cured’, another will take its place.
data.
Robert G. Evans and Gregory L. Stoddart
1356
Fig. 4
An attempt to provide a further extension to our
intellectual framework, to encompass these new
forms of evidence, is laid out in Fig. 4.
In Fig. 4. two major structural changes are in
troduced. First, a distinction is drawn between dis
ease, as recognized and responded to by the health
care system, and health and function as experi
enced by the individual person. Such a distinction
permits us to consider, within this framework, the
common observation that illness experienced by in
dividuals (and their families or other relevant social
groups) does not necessarily correspond to disease
as understood by the providers of care. Persons
with ‘the same' disease, from the point of view of
the health care system—similar biological par
ameters, prognoses and implications for treat
ment—may experience very different levels of
symptoms and distress, and very different effects on
their ability to function in their various social
roles. Arthritis, and musculo-skeletal problems
more generally, are leading examples of conditions
for which the patient’s sense of ’illness’ bears no
very close relationship to the clinician’s interpret
ation of ‘disease’.
This is not to say that one perspective is ’right’
and the other ’wrong’; the two modes of interpret
ation simply have different purposes. The clini
cian’s concept of disease is intended to guide the
appropriate application of available medical knowl
edge and technology, so is formulated in terms of
that knowledge and technology. The patient, on
the other hand, is ultimately concerned with the
impact of the illness on his/her own life. The
clinician’s disease may be an important part of
that impact but is by no means the only relevant
factor.
Moreover, from the point of view of the individ
ual’s well-being and social performance—including
economic productivity—it is the individual’s sense
of health and functional capacity which is determi
native—as shown in Fig. 4. The ’diseases’ diag
nosed and treated by the health care system are
important only insofar as they affect that sense of
health and capacity—which of course they do. But
health, even as interpreted by the individual, is not
the only thing in life which matters. Figure 4 intro
duces the category of ’well-being’, the sense of life
satisfaction of the individual, which is or should be
(we postulate) the ultimate objective of health pol
icy. The ultimate test of such policy is whether or
not it adds to the well-being of the population
served.
Going back to the original WHO definition of
health, we are relabelling that broad definition as
well-being. Our concept of health is defined, in
narrow terms but from the patient’s perspective, as
the absence of illness or injury, of distressing symp
toms or impaired capacity. Disease, as a medical
construct or concept, will usually have a significant
bearing on illness, and thus on health, but is not
the same thing. Illness, in turn, is a very important
(negative) influence on well-being—but not the
only one. The WHO broad definition of ’health’ is,
as noted above, so broad as to become the
tive, not only of health policy, but of all h^|.n
activity.
Hypertension screening and treatment gives a
clear and concrete example of this distinction, as
well as bringing out the limitations of the static
framework expressed in all the accompanying
figures. It is sometimes said that hypertension does
not hurt you. it only kills you. Target organ dam
age proceeds silently and without symptoms: a sud
den and possibly fatal stroke announces both the
presence of the long-term condition, and its conse
quences. Until that point the individual concerned
may have no illness, although a clinician who took
his/her blood pressure might identify a disease.
Studies of the impact of hypertension screening
and treatment programmes, however, have made it
clear that the fact of diagnosis, ‘labelling’, makes
the patient ill. in ways which are unambiguous and
objectively measureable [30]. Treatment exacerbates
the illness, through drug side effects, although
those who comply with treatment may suffer less
severe labelling effects. Screening and treatment of
hypertension thus spread illness among the benefi
ciaries and reduce their functional capacity, in a
real and literal sense, even as their disease is allevi
ated.
Of course such screening is not carried out from
clinical malice! The long-term consequences of hgpertension as a disease may be expressed in
definite forms of illness, including death. The^F '
mediate consequences of discovery and treatment
of disease may be increased illness: the longer term
consequences are reduction in illness, and very _
severe illness at that, for some of those under cart- ,;7
There is substantial evidence that screening and J,
treatment of moderate to severe hypertension haves
very significantly reduced both morbidity and mor- ;.
tality from stroke; this is widely regarded as one of t:
the leading ‘success stories' in clinical prevention’ k
[48]. But regardless of their relative strength, the
static framework of Fig. 4 does not reflect this
pattern of off-setting movements in different time
periods.
Indeed there is an implicit time structure to all
of the figures. ‘Cures’ are rarely instantaneous, so
health care has its negative effect on disease only
with a time lag of variable length. The lifestyle and
environmental factors displayed in Figs 3 and 4
have long-term and cumulative effects on health/
disease. But the extra problem in Fig. 4 arises be
cause the relationship being displayed may reverse
itself over time. Health care can have a negative
Producing health, consuming health care
effect on health in the short term, and a positive one
in the longer term.’
The possibility of ‘long-term gain’ may, but does
not necessarily, justify the ‘short-term pain’, and
analysts and evaluators of preventive programmes
are acutely aware of the necessity of weighing the
health benefits and health costs against each other.
Over-zealous intervention can do significant harm to
the health of those treated, even if at some later date
it can be shown to have ‘saved lives’, or more
accurately postponed some deaths.
The debate over cholesterol screening, and the
contradictory recommendations arising from ‘ex
perts’ in different jurisdictions is a current case in
point [31,50,51]. At issue are not merely differing
interpretations of the epidemiological evidence, or
different weightings of ‘lives and dollars’—pro
gramme resource costs versus mortality outcomes.
The prospect of converting a quarter of the adult
population of North America into ‘patients’ with
chronic illness requiring continuous drug therapy
gives at least some clinicians (and others!) pause.
The framework of Fig. 4 enables, indeed encour
ages, one to consider this distinction. Large-scale
cholesterol screening and drug therapy, in this frame
work. would represent an epidemic of new illness,
with negative impacts on health and function from
both labelling •effects and drug side effects. As the
hypertension studies remind us. these negative effects
are real and concrete, measurable in people’s lives.
Against this, there would be a reduction in disease, as
measured first in serum cholesterol, and subsequently
in heart disease. The latter would then contribute
positively to health, but the conflicting health effects
of disease reduction, i.e. deterioration in health now,
improvement later, must be weighed against each
other in assessing their net impact on well-being.
In addition to distinguishing explicitly ‘disease’
from ‘illness’. Fig. 4 extends the categorization of the
determinants of health provided in the White Paper
framework. This permits us to incorporate within the
framework the diverse and rapidly-growing body of
research literature on the determinants of health
which does not fit at all comfortably within the White
Paper categories.
’One might point out that this is true of much therapy
Surgery, for example, typically has a very powerful
negative effect on health and function in the immediate
intervention and recovery phase, while (when successful)
yielding later improvements. In the hypertension case.
however, healthy individuals arc introduced to pro
longed low-level illness, in order to receive large but
uncertain benefits in the farther future. Such a difference
of degree becomes one of kind.
For people with short time horizons, painful or dis
abling interventions with longer term payoffs may not be
justified. Elderly people, in particular, will quite ration
ally discount future benefits more heavily. The finding
that elderly cancer patients are more likely to choose
radiation treatment over surgery, even if the latter has a
greater five-year survival rate [49] illustrates the point.
The enthusiasm among dentists to provide •optimum'
oral health to residents of nursing homes, raises similar
concerns. Would you want to spend a day in a dentist’s
chair if you expected to die tomorrow? Next week? Next
month?...
1357
The key addition is the concept of the individual
‘host response', which includes but goes beyond the
usual epidemiological sense of the term. The range of
circumstances to which the organtsm/individual may
respond is also wider than is usually encompassed
within epidemiology [52]. This ‘host response’ now
includes some factors or processes which were pre
viously assembled under the labels of ‘Lifestyle' and
‘Human Biology
*.
The implications of this change can be seen when
one considers (yet again) smoking behaviour. In the
White Paper framework, tobacco use is labelled as a
‘Lifestyle’, from which one can draw the implication
that its use is an ‘individual choice’. That in turn leads
not only to victim-blaming, but also to an emphasis
on informational and educational strategies for con
trol, which are notoriously ineffective. The powerful
ethical overtones of ‘choice’, with its connections to
‘freedom’ and ‘individual self-expression’, introduce
not only political but also intellectual confusions into
the process of control of an addictive and toxic
substance.
Yet it is widely observed that tobacco use is
powerfully socially conditioned. Income, status and
prestige rankings in modem societies have become
strongly negatively correlated with smoking, such
that differential smoking behaviour is now a signifi
cant factor in the social gradient in mortality. This
was not always so: prior to the widespread dissemina
tion of information about its health effects, smoking
was positively correlated with status. It seems clear
that, far from being simply an ‘individual’ choice.
smoking is an activity engaged in—or not—by
groups of people in particular circumstances. Under
standing why some people smoke, and others do not.
and a fortiori developing successful strategies to
discourage this self-destructive behaviour, requires
that one explore these group processes, and their
conditioning circumstances. To treat smoking as
‘individual choice' is simply to throw away the infor
mation contained in the clustering of behaviour.
This is not to reduce the individual to an automa
ton. or deny any role for individual choice. Nor is
smoking the only activity which is socially con
ditioned—far from it. But the well-defined clustering
of smoking and non-smoking behaviour within the
population suggests that such behaviour is also a
form of ‘host’ (the smoker) response to a social
environment which does or does not promote smok
ing. Heavy tobacco advertising promotes, for
example, while legislated smoke-free environments
discourage, quite separately from the ‘individual
choice’.
The psychological dynamics of status and class
may have even more powerful, if subtler, effects. The
sense of personal efficacy associated with higher
social position encourages beliefs both in one’s ability
to break addictions, and in the positive consequences
of doing so. Beliefs in the effectiveness (or lack of it)
of one’s own actions are both learned, and reinforced
by one’s social position.
The distinction between social environment and
host response also permits us to incorporate concep
tually factors which influence health in much less
direct and obvious ways than smoking. It has been
observed that the death of a spouse places an
1358
Robert G. Evans and Gregory L. Stoodart
individual at increased risk of illness, or even death.
This may be due to a reduction in the competence of
the immune system, although the causal pathways are
by no means wholly clear. Evidence is accumulating
rapidly, however, that the nervous and immune sys
tems communicate with each other, each synthesizing
hormones that are ‘read’ by the other, so that the
social environment can, in principle, influence bio
logical responses through its input to the nervous
system. Data from animal experiments have shown
the power of these effects (17].
Biological responses by the organism to its social
environment are not restricted to the immune system.
Forms of stress which one feels powerless to con
trol—associated with hierarchical position, for
example—may be correlated with differences in the
plasma levels of reactive proteins such as fibrinogen
[53], or with the efficiency of the hormonal responses
to stress [20]. The adequacy or inadequacy of nutri
tion in early infancy may •programme’ the processing
of dietary fats in ways which have consequences
much later in life [54, 55]. The range of possible
biological pathways is only beginning to emerge, and
is at present still quite contentious, but it seems clear
that the sharp separation between ‘Human Biology’
and ‘other things’ is crumbling.
Accordingly we have in Fig. 4 unbundled that field,
and restricted it to the genetic endowment. This
endowment then interacts with the influences of the
social and physical environments, to determine both
the biological and the behavioural responses of the
individual [56]. Some of these responses will be
predominantly unconscious—few of us are aware of
how our immune systems are performing (unless they
are overwhelmed), much less can deliberately affect
them. Other responses will be behavioural—smoking,
for example, or buckling seatbelts. Both forms of
response, or rather the'continuum of such responses,
will influence the ability of the individual to deal with
external challenges, either to resist illness or to main
tain function in spite of it. They will also affect the
burden of disease, separately from illness, insofar as
the decision to seek care, compliance with therapy,
and response to therapy (or to self-care) are also part
of the host response.
An example of the significance of changes in such
host responses may be given by the decline in tuber
culosis in the United Kingdom over the last century.
This dramatic change in mortality patterns occurred
prior to the development of any effective responses
from either public health measures or medical
therapy [7], Sagan [57] notes that the decline was
apparently not due to a reduced rate of exposure to
the bacillus, as the majority of the population contin
ued to test positive for the TB antibody as late as
1940. The resistance of the population simply in
creased. McKeown offers improved nutrition as an
'Improved' nutrition is ambiguous. For impoverished and
deprived populations better is simply more, and more
nutritious. But for a high proportion of modem popu
lations better is probably less, and particularly less fats.
It is not clear when in the historical record ‘better'
shifted from more to less, for the majority of industrial
ized populations, such that (from a health perspective)
nutrition may have begun to deteriorate.
explanation, but the issue still seems to be open
*
[7,57].
The point for our purposes is that the
biological response of the organism is malleable.
Indeed, progress in genetics is also extending the
older picture of a fixed genetic endowment, in which
well-defined genetic diseases follow from single-gene
defects. It now appears that particular combinations
of genes may lead to predispositions, or resistances,
to a wide variety of diseases, not themselves normally
thought of as ‘genetic’. Whether these predispositions
actually become expressed as disease, will depend
inter alia on various environmental factors, physical
and social [56].
The insenion of the host response between en
vironmental factors, and both the expression of dfe'
ease and the level of health and function, provided
set of categories sufficiently flexible to encompass the
growing but rather complex evidence on the connec
tions between social environment and illness. Unem
ployment. for example, may lead to illness (quite
apart from its correlation with economic deprivation)
if the unemployed individual becomes socially iso
lated and stigmatized. On the other hand, if support
networks are in place to maintain social contacts, and
if self-esteem is not undermined, then the health
consequences may be minimal.
The correlation of longevity with hierarchical
status may be an example of reverse casuality—the
physically fitter rise to the top. But it is also possible
that the self-esteem and sense of coping ability in
duced by success and the respect of others results in
a ‘host response’ of enhanced immune function or
other physiological strengthening. The biological vul
nerability or resilience of the individual, in response
to external shocks, is dependent on the social and
physical environment in interaction with the genetic
endowment. While as noted the biological pathways
for this process are only beginning to be traced out,
the observed correlations continue to accumulate.
Figure 4 provides a conceptual framework within
which to express such a pattern of relationships.
In this extended framework, the relationship be
tween the health care system and the health of t^
population becomes even more complex. The sense #
self-esteem, coping ability, powerfulness, may con-J
ceivably be either reinforced or undermined by health
care interventions. Labelling effects may create a
greater sense of vulnerability in the labelled, which
itself influences physiological function. Such a pro-,
cess was an important part of Ivan Illich’s message."
Yet the initiation of preventive behaviour, or. of"
therapy, may also result in positive ’placebo’ effects,perhaps reflecting an increased sense of coping orcontrol, independently of any ’objective’ assessment
of the effectiveness of such changes.
The possibility that medical interventions may
have unintended effects is inevitable. Our framework
includes both placebo and iatrogenic effects in the
causal arrow from care to disease. But there is also
a potential effect, of ambiguous sign, from care to
host response.
Al yet another level, the protective sense of self
esteem or coping ability seems to be a collective as
well as an individual possession. Being a ‘winner,
being on a ’winning team’, or simply being associated
with a winning team—a resident of a town whose
Producing health, consuming health care
team has won a championship—all seem to provide
considerable satisfaction, and may have more objec
tively measurable influences on health.
A FURTHER EXTENSION: ECONOMIC TRADE-OFFS
and well-being
But there is still another feed-back loop to be
considered. Health care, and health policy generally,
have economic costs which also affect well-being.
Once we extend the framework, as in Fig. 4, to reflect
the fact that the ultimate objective of health-related
activity is not the reduction of disease, as defined by
the health care system, or even the promotion of
human health and function, but the enhancement
of human well-being, then we face a further set of
trade-offs which are introduced in Fig. 5.
Health care is not ‘free’; as noted above the
provision of such services is now the largest single
industry or cluster of economic activities in all mod
em societies. This represents a major commitment of
resources—human lime, energy, and skills, raw ma
terials and capital services—which are therefore un
available for other forms of production. To the extent
that health care makes a positive contribution to
health, it thereby contributes to human happiness
both directly and through the economic benefits of
enhanced human function and productivity.
The latter effect is frequently referred to as an
‘investment in health’; spending on health care may
•The operation was a success, but the patient died.
tThe common identification between private sector jobs as
by definiuon ‘real’, and public sector ones as ‘unreal’ is
however simply ideological nonsense—‘real’ and unreal'
exist in both sectors, wherever activity is being carried on
with no output, or none of any value. It includes, but is
not restricted to. the caricature of the lazy or obstruc
tionist bureaucrat.
A strong argument can be made, for example, that
most of the jobs in the private health insurance sector in
the United States—complex, demanding and highly
paid—arc not 'real jobs’, because they actually yield
nothing of value and in all other health care funding
systems are dispensed with. That is. of course, another
story, but one which emphasizes the invalidity of an
equation between ‘unreal jobs' and 'lazy public servants’.
One can work quite hard and conscientiously, both
individually and as a group, and yet be completely
useless or even get in the way. Parallels with public
bureaucracies in centrally planned economies are not
inapt.
1359
even pay for itself through increased capacity of the
population to work and produce wealth. The increas
ing concentration of health care on those outside the
labour force, the very elderly or chronically ill. has
however severely weakened this form of linkage. For
most health care now provided, the benefits must be
found in the value of the resulting improvements in
health, not in some further productivity gains.
Whatever the form of the pay-off to health care, the
resources used in its provision are inevitably a net
drain on the wealth of the community. The well-being
and economic progress of the larger society are thus
affected negatively by the extension of the health care
system per se. The fallacious argument frequently put
forward by the economically naive, that health care,
or any other industry, yields economic benefits
through the creation of jobs, rests on a confusion
between the job itself—a resource-using activity or
cost—and the product of the job, the output. It is in
fact an extension into the general economic realm of
a common confusion in health care, between the
process of care and its outcome."
Yet ‘job-creation’ is very easy; one can always hire
people to dig holes in the ground and fill them
in again. (Keynes suggested burying bottles filled
with banknotes, thereby creating opportunities for
profitable self-employment.) The creation of wealth.
however, depends upon the creation of jobs whose
product is valued by the recipient. This understanding
is implicit in references to ’real jobs', as distinct from
make-work, or employment purely for the sake of
keeping people busy—and remunerated. In a com
plex modem economy, large numbers of people can
be kept busy, apparently gainfully employed, and yet
adding little or nothing to the wealth of the popu
lation as a whole.t
This distinction between the cost of an activity, its
net absorption of productive resources, and the ben
efits which flow from it in the form of valued goods
and services, is not unique to health care. It applies
to any economic activity, as reflected in the generality
of the techniques of cost-benefit analysis. The situ
ation of health care is different, however, for a variety
of complex and interrelated reasons which are im
plicit in the chain of effects from health care, to
disease reduction, to improved health and function,
to well-being.
As a commodity, health care has characteristics
which make it intrinsically different from ’normal’
commodities traded through private markets, and
this is reflected in the peculiar and complex collection
of institutional arrangements which surround its pro
vision. As a consequence both of these intrinsic
peculiarities, and of the institutional responses to
them, the mechanisms which for most commodities
maintain some linkage between the resource costs of
a commodity and its value to users are lacking.
These problems are discussed in detail in the
literature on the economics of health care (e.g. 26.
Chap. 1-5]. For our purposes, however, the import
ant point is that over-expansion of the health care
system can in principle have negative effects not only
on the well-being of the population, but even on its
health. These dual effects are showm in Fig. 5.
The possible negative impact of over-provision on
well-being is straightforward. As emphasized, the
1360
Robert G. Evajb and Grigory L. Stoddaxt
provision of health care uses up economic resources
which could be used for other valued purposes.
Canadians spend nearly 9% of their national income
on health care—1 dollar in 12—and these resources
are thus unavailable for producing consumer goods
like clothing or furniture, or building rapid transit
systems, or improving the educational system, etc.
(expanding the capacity of the Toronto airport!). In
the United Slates, nearly 12% of national income is
spent on health care; in Japan, about 6%. The
Japanese correspondingly have a larger share of their
income available for other purposes, the Americans
a smaller proportion.
Less obviously, but implicit in Fig. 5, the expansion
of health care draws resources away from other uses
which may also have health effects. In public budgets,
for example, rising health care costs for the elderly
draw funds which are then unavailable for increased
pensions: rising deficits may even lead to pension
reductions. Increased taxes or private health in
surance premiums lower the disposable income of the
working population. Environmental clean-up pro
grammes also compete for scarce resources with the
provision of health care.
Once we recognize the importance and potential
controllability of factors other than health care in
both the limitation of disease and the promotion of
health, we simultaneously open for explicit consider
ation the possibility that the direct positive effects of
health care on health may be outweighed by its
negative effects through its competition for resources
with other health-enhancing activities. A society
which spends so much on health care that it can
not or will not spend adequately on other health
enhancing activities may actually be reducing the
health of its population through increased health
spending.
Two points of clarification may be helpful here,
along with one of qualification.
First, we are not referring to iatrogenesis, the direct
negative effects of health care on health. Powerful
interventions have powerful side effects; the growing
reach of medical technology often brings with it
increased potential for harm.’ Ginical judgement
includes the balancing of probabilities for benefit and
harm, the best care will sometimes work out badly.
Moreover, all human systems involve some degree of
error—inappropriate and incompetent care, or
simply bad luck. Expansion of the health care system
thus carries with it a greater potential for harm as
well as good, as a direct result of care, but that is not
the point here.
Second, the potential effects we are postulating are
the economist’s marginal effects. The global impact of
health care, on either health or resource availability,
is not addressed. Perhaps Ivan Illich is right, and the
health care system as a whole has a net negative
impact on the health of the population it serves. But
’Often, but not always. Improvements in the techniques of
diagnostic imaging, for example, have reduced the de
gree of risk and distress associated with earlier forms of
diagnostic imaging; and the substitution of lithotripsy
for kidney surgery has yielded similar benefits. On the
other hand, less risky or uncomfortable procedures tend
to be offered to many more patients.
we do not know that, and we do not know how one
could come to know it.
The point we are making is a much more limited
one, and one which within the framework of Fig. 5
may be self-evident. The health of individuals and
populations is affected by their health care, but also
by other factors as well. Expansion of the health care
system uses up resources which would otherwise be
available to address those other factors. (Whether
they would be so used or not, is another matter.) It
follows that an expansion of the health care system
may have negative effects on health. A health policy,
as opposed to policies for health care, would have to
take account of this balance.
The qualification, however, arises from the ^'7
that when we speak of the health of a population^
**
are aggregating across all (he individuals in it. Differ
ent policies benefit different individuals. A decision to
reallocate resources from health care to other health
enhancing or productivity-enhancing activities might
indeed result in a population which was in aggregate
both healthier and wealthier, but particular individ
uals in it will be worse off. Most clearly, of course,
these will include persons who either make or in
tended to make their living from the provision of
health care. But in addition, health care services
respond to the circumstances of identified individuals.
in the present. A more limited commitment of re
sources to health care might leave such persons worse
off. even though m future there might be fewer people
in their position.
Such trade-offs, between the interests of those who
are now ill. and those who may become so. may be
inevitable. In any case it is important to note their
possibility, because they are hidden from view in the
aggregate framework. But conversely, u should also
be noted that there is no obvious ethical, much less
prudential, basis for resolving this trade-off in favour
of more health care. We need to be clear as to whether
we have, as a community, undertaken a collective
obligation of concern, and support, for each other’s
health, or only for those aspects of health which can
be enhanced through health care. If the latter, we ma
find that we are as a society both poorer, and
healthy, than we could otherwise be. and we may
want to re-think the details of our (self-imposed)
ethical obligation.
In this context, as in so many others, the Japanese
experience is startling, and may provide an illus
tration of the feed-back loop from prosperity to
health included in Fig. 5. The extraordinary econ
omic performance of Japanese society is not a new
observation; the phenomenon goes back 40 years,
and indeed a similar period of extraordinary modern
ization and growth began after the Meiji restoration
in 1868. What is new, is that within the last decade
Japan has begun to shift from the very successful
copying of innovations elsewhere in the world, to
being increasingly on the leading edge of both econ
omic growth and technological change.
Over the same period there has been a remarkable
growth in Japanese life expectancy, which in the
1980s has caught up with and then surpassed that of
the rest of the developed world (58]. Like the
Japanese economy and per capita wealth, average life
expectancy is continuing to rise on a significantly
Producing health, consuming health care
faster trend (ban in other industrialized countries.
This experience is now setting new standards for the
possible in human populations.
On the other hand, (he Japanese health care system
absorbs one of the lowest shares of national income
in the industrialized world, and has been described by
a recent American observer as ‘an anachronism’ in
the context of modem Japanese society (59). And the
popular external image is that life in Japan is very
crowded, highly stressful and quite polluted. How
then does one explain the extraordinary trends in life
expectancy?
One causal pattern suggested in Fig. 5 would lead
from outstanding economic performance, to rapid
growth in personal incomes and in the scope and
variety of life, to the greatly enhanced sense of
individual and collective self-esteem and hope for the
future. A number of observers, concerned not with
comparative health status but with international
economic competitiveness, have noted the extraordi
nary Japanese sense of self-confidence and pride
arising from their rapid progress toward world econ
omic leadership. Individually and as a nation the
Japanese are seeing themselves as harder-working,
brighter, richer and just plain better than the rest of
the world; could this attitude be yielding health
benefits as well?
Conversely the centrally planned economies of
Eastern Europe and the Soviet Union have on most
measures of economic success performed dismally for
many years, to the extent that their rulers as well as
(heir populations have been willing to undertake a
massive and indeed revolutionary political restructur
ing. Corresponding to this extended period of econ
omic decline, measures of life expectancy in those
nations have been stagnant or even falling, in marked
contrast to the universal improvements- in Western
Europe [60].
Uncontrolled environmental pollution and un
healthy lifestyles are commonly cited explanations.
but the observation is at least consistent with the
hypothesis of a relationship between collective selfesteem and health—a relationship which could be
expressed in pan through unhealthy lifestyles.
"It would, of course, be quite possible for a nation to
maintain both high savings rates, and high spending on
health care—or the military—simply by cutting back on
consumption. But there is strong resistance at both
bargaining table and ballot box to a reduction in current
consumption through higher taxes or lower wages. Citi
zens do not want to accept a reduction in present living
standards to pay for more health care.
A neo-classical economist might argue that the living
standard is not reduced; what is given up in smaller
houses, poorer roads or fewer electronic gadgets is
gained in more cardiac bypass grafts, laboratory tests.
MR! procedures and months in nursing homes But the
average individual is. quite nghlly. unconvinced. Health
care, like military spending, is not valued for its own
sake. What, after all. are the direct satisfactions from a
tonsillectomy, or a tank? Each is simply a regrettable use
of resources, a service for which in a better world one
would have no need. Hence the tendency for health
spending increases to be drawn from savings, whether
through government budget deficits or reduced corpor
ate retained earnings.
1361
The factors underlying the shift in world economic
leadership are no doubt complex and diverse. One of
several recurring explanatory themes, however, is the
Japanese advantage in access to low-cost long term
capital, which is channelled into both research and
development, and plant and equipment investment
embodying the latest technology. This low-cost capi
tal is generated by the very high savings rates of the
Japanese people. The United States, by contrast.
repons a savings rate close to zero, and now relies
heavily on savings borrowed from the rest of the
world—particularly Japan.
To maintain a high savings rate, one must limit the
growth of other claims on social resources—such as
health care.
*
The difference between Japanese and
United States rates of spending on health care
amounts to over 5% of national income, and could
account for a significant proportion of the large
difference between Japanese and American aggregate
savings rates. (The difference in military spending
accounts for another large share.)
Very speculatively, then, one can suggest that by
limiting the growth of their health care sector, the
Japanese have freed up resources which were devoted
to capital investment both physical and intellectual.
The consequent rapid growth in prosperity, particu
larly relative to their leading competitors, has greatly
enhanced (already well developed) national and indi
vidual self-esteem, which has in turn contributed to
a remarkable improvement in health.
It must be emphasized that this is a rough sketch
of a possible argument, not a well developed case.
much less a ‘prooF. There are other candidate expla
nations for Japanese longevity—diet, for example, or
the peculiar characteristics of Japanese society which
may be protective against the ill effects of stress. (On
the other hand, there are different forms of stress, and
the stress of success is much less threatening to health
than the stress of frustration and failure.)
Equally problematic, there is good evidence that
environmental effects on morbidity and mortality
may operate with very long lags, so that present
Japanese life expectancies may reflect factors at work
over the past 50 years. And in any case, what has been
observed is that the Japanese live a long lime.
whether they are relatively healthy in any more
comprehensive sense is another matter. On the other
hand, the Japanese gains in life expectancy are occur
ring across the age spectrum, with both the world's
lowest infant mortality, and extended lives among the
elderly, consistent both with some contemporaneous
effects, and with more general increases in health.
Whatever the explanation, it is clear that some
thing very significant is happening (or has happened)
in Japan—something reflected in (rends in life expect
ancy which are remarkable relative to any other
world experience. These observations are at least
consistent with the rough sketch above A good deal
of closer investigation would seem warranted.
It is not our inient in this paper to lay 'The Decline
of the West’ at the feet of the health care system of
the United States, or even these of North America
and Western Europe combined. Rather our point is
to show that the framework laid out in Fig. 5 is
capable of permitting such a relationship to be raised
for consideration. Its network of linkages between
1362
Robert G. Evans and Gregory L. Stod dart
health, health care, the production of wealth and the
well-being of the population is sufficiently developed
to encompass the question, without overwhelming
and paralyzing one in the ‘dependence of everything
upon everything'.
FRAMEWORKS IN PRINCIPLE AND
IN PRACTICE
As noted above, the test of such a framework will
be the extent to which others find it useful as a set of
categories for assembling data and approximating
complex causal patterns. The understanding of the
determinants of population health, and the discussion
and formulation of health policy, have been seriously
impeded by the perpetuation of the incomplete, obso
lete and misleading framework of Fig. 1. There is a
bigger picture, but clearer understanding, and par
ticularly a more sensible and constructive public
discussion, of it requires the development of a
more adequate intellectual framework. The pro
gression to Fig. 5 is offered as a possible step along
the way.
In this paper we have suggested several important
features of such a framework. Il should accommo
date distinctions among disease, as defined and
treated by the health care system, health and func
tion. as perceived and experienced by individuals, and
well-being, a still broader concept to which health is
an important, but not the only, contributor. Il should
build on the Lalonde health field framework to
permit and encourage a more subtle and more com
plex consideration of both behavioural and biological
responses to social and physical environments.
Finally, it should recognize and fosier explicit
identification of the economic irade-offs involved in
the allocation of scarce resources to health care
instead of other activities of value to individuals and
societies, activities which may themselves contribute
to health and well-being.
To date, health care policy has in most societies
dominated health policy, because of its greater imme
diacy and apparently more secure scientific base. One
may concede in principle the picture in Fig. 5. then
convert all the lines of causality into ‘disease’ and
‘health and function’ into thin dotted ones, except for
a fat black one from ‘health care’. That is the picture
implicit in the current emphasis in health policy,
despite the increasing concern among health re
searchers as to the reliability and primacy of the
connection from health care to health.
One lesson from international experience in the
post-Lalonde era is that appropriate conceptual
ization of the determinants of health is a necessary.
but not a sufficient, condition for serious reform of
health policy. Intellectual frameworks, including the
one offered here, are only a beginning. Simply pul, to
be useful, they must be used.
Acknowledgements—We wish to thank colleagues in the
CIAR Population Health Program, the Health Polinomics
Research Workshop at McMaster University, and the
Health Policy Research Unit at the University of Bntish
Columbia for stimulating comments on earlier versions of
this paper. We take responsibility for remaining errors or
omissions.
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Marmor TR Eire ou ne pas etre en bonne sante: biologie et determinants sociaux de la
maladie (Chap 2).
John Libbey, Montrouge, France et Les Presses de 1’Universite de Montreal, Montreal,
Quebec.
^Release from Consumer Education and Research Society
Subject; Press Release from Consumer Education and Research Society
Date: Sal, 15 Dec 2001 15:04:53 +0530
From: cerc@wiJneton1ine.net
To: Darlcna David <cd.cmai@vsiil.coni>, Madan Katana <laugu@vsul.coni>,
Mathew Nampudakam <vltai@vsnl.com>. Maresh Agarwal <saveraindia@.rediffinail.com>.
Nina Shah <inika@icenet.net>, Phalgun Patel <sandesh@adl.vsnl.net.in >,
Praviena Shanna <pravi s@yahoo.com>, Ravi Narayan <sochara(®,vsnl.com>,
World Consumer ■e'roncinVztientelchile nof>
PRESS RELEASE
Rer:E&x/37/Legal/An/zuui
CORE rejects Oriental Insurance stand,
S
0
p Cl *
rs
M o <-4 4 /—I n 4 r»i
The Consumer Disputes Redressal b'orum, Ahmedabad City has upheld
the Consumer Education and Research Society (CERS)
claim that
Insurance
Oriental
D
lo 4 +- V” ivyi a
Suiyeiy
D
l<jl
Co. Ltd.,
C" ■ a 1%
1
should reimburse its
nv^'or, oo o
an eax axiiiieiiL unaex
i rir-ii rv-o/l
Or.
member,
f--n. ->"
i.nrirv-no'r.o
die Meaxulaiiti policy.
Oriental Insurance had declined to oav for the surgery under
no.licv
savin'?
that Pr.
Shah's ailment
was
the
"pre-existing"
and
therefore he was not entitled to reimbursement. It referred to
the findings of its panel doctor, Dr. Pravin N. Patel,
who
averred that based on x-ray and other case papers Dr.
Shah's
disease had existed since childhood. The insurance company in
suovort of its stand, further stated, that Dr. Shah had renewed, the
?2cuic±uxiu papacy after a gap
.3 months and, wr^hm ,.wo
months of the renewal, had undergone the operation.
Ln his rejoinder. Dr. Shah said he had undergone the operation
^■?r Ris
*
—harr'a in bis ri+ ' aar and that he had suffered the
ett-^ment for two montno ano not from chrldhood. He produced a
certificate in this regard from Dr. Mahendra Naik, a city ENT
surgeon. He also said that it was a "misconceived idea" to
diagnose ear diseases by mastoid x-ray,
which the insurance
<-3<s
** 2.d deno-
Tne Forum while rejecting rhe insurance company’s charge of preexisting disease,
came down heavily on Dr.
Patel,
the panel
doctor.
saying that he had "failed to discharge his legal and
qiv&n oy the ixisui’dixce cuiupdiiy."
It held that the reoudiation of the claims of the medical policy
holder
by Oriental
Insurance Co. was "illegal,
void and
without
application of mind" and ordered payment of P.s. 8,738 with 12 per
cent inlexesl and Rs.
3200 uunipensdlion for causing menial
agony
and harassment to Dr. Shah. It also awarded Rs. 10(10 as cost.
The Forum was headed by Its President Mr. K.D. Desai and attended
by Ms. Lccnobcn Desai and Mr. Malaybhai Kantharia, both members.
Advocate
Mr.
John Pinto appeared for the complainants
and
Mr.
12/18/01 11:09 AM
:ss Release from Consumer Education and Research Society
H.u.Shall for Oriental Insurance Co. Ltd.
'*
Date : 15-12-2001
Pl?.cei Ahr
* ° dcik
*
ad.
Lalita Meduri
Consumer P.elations Officer
Opinions, test results and research findings issued through this
Press Release cannot be used in any form directly or indirectly
for advertising, promotional or commercial purpose.
o\3i-ujR EDuCAT iOlx AND aEuEARCIi 30x.xc.TT
"Suraksha
Sankooi",
Thaitej, Ahmeaabad-Gandhinagar
Highway,
Ahmedabad- 380 054
(INDIA) Phone:
079-7483345-46,
Fax:
0737489947. E-mail: cerc@wilnetonline.net
>f2
12/18/01 11:09 AM
Consumer Corner
t is commonly known that the
manufacture of spurious and
substandard drugs has now
assumed alarming and gigantic
proportions in India, with parallel
institutions manufacturing such
items, with ramifications in every
state. A catalogue of spurious
and sub-standard drugs being
manufactured in India today
would req:.he several volumes.
I
Substandard drugs are those
drugs which lb not "conform' to
the standards as specified by the
Brugs and~Cosriietics~Act,~~1940.
S_puridus~drugs, on "the other
hana.~are~essentiallya-clandesr
ttne'operation which unlicensed
"manufacturers nr dealers indulge
in. Substandard drugs, ' cfrTThe
Other hand, can be manufactured
By~licensed producers as well.
Quality assurance is important
for drugs and pharmaceuticals
especially where the hazards to
life and health are high. In India,
nigh quality standards are being
maintained by very few national
and international companies. In
adequate machinery and infras
tructure in various states to en
force the requisite standards
have resulted in the proliferation
of several tiny and small units in
the country. These unit however,
have no quality control or testing
facility.
CALLOUS
QUALITY
NEGLECT
OF
cases — that the quality of drugs
purchased and used by the hos
pitals is poor.'
dealing in spurious drugs con
centrate their activities in states
where drug control is lax...."
Mr. K. Jayaraman (Member Indi
an Economic Service; Member
Tariff Commission; Consultant
Indian Drug Manufacturer's Asso
ciation; Consultant, Organisation
of Pharmaceutical Producers of
India, etc.) maintains," the
menace of spurious and substan
dard drugs has reached alarming
proportions in the country and
this has frequently drawn atten
On March 30 1982, there was dis
cussion in the Lok Sabha on spu
rious drugs. Members of Parlia
ment from almost all political
parties expressed their anguish
to the Health Minister over "inac
tion and lack of.seriousness in
dealing with the manufacturers
of spurious drugs." Evocative
epithets like "merchants of
death", "killers" etc., were rc-
SPURIOUS AND SUBSTANDARD DRUGS
BEWARE OF THE
SILENT
KILLERS
referential treatment being
By Anju D. Aggarwal
given to certain drug firms for
P
medical supply to Government tion and debate in the media as
portcdly used to describe such
hospitals within the slates, espe
cially Maharashtra, is also com
ing to light. The status of the
firms is ignored, the quality con
trol discipline exercised by them
is poor while in certain other
states, reportedly, there are firms
which wrest orders for their
clients from hospitals.
As the Hathi Committee way back
in 1975 observed. "Such paroc
hial tendencies in matters relat
ing to purchasers of drugs are
fraught with dangerous consequ
ences to the health of the people
and tend to make the public be
lieve — and rightly so in many
MIRROR, SEPTEMBER 1987
well as in Parliament." *
Even the Drug Controller of In
dia, in his presidential address at
the 31st Indian Pharmaceutical
Congress held on December 27,
1979, expressed ffls opinionjon
the subject as follows: "Even after
thirty years, only in a few states
the Drug control administration
is headed by qualified pharma
cists.... The main reason for the
ineffective enforcement of the
law is that in many states the
drug control machinery has not
been organised on proper
lines.... It has been our experi
ence that anti-social elements
illicit drugs. The Lok Sabha
spcakei had also called them
"murderers". It was even sug
gested that the national Security
Act which is a far-reaching puni
tive law and used only in extreme
cases of national danger, be
used now. Some instances of
spurious drug manufacture cited
during the Lok Sabha debate
were:
'Ij^Fungus-in tested glucose used
in a Kanpur hospital, and at the
All-India Institute of Medical Sci
ences (AIMS) in Hew Delhi;
jiT^black-listed firm was allowed
27
A family friend who suffered from
‘tennis elbow' was injected un
knowingly with a spurious injec
tion but his gangrenous arm was
saved in the nick of time from an
amputation. Such an accident is
iv) In a raid in Delhi on March 25, possible if the drugs have passed
1-982, the police had discovered their expiry dates, or are poorly
/a “factory" where life-saving stored.
drugs were being manufactured APPALLING INDIFFERENCE BY
without a licence. Thirty different AUTHORITIES
types of labels of popular medi
news item in an eveninger
cines of reputed companies,
dated June 15, reveals that
along with the raw materials were at a medico-legal seminar, orga
seized;
nised by the Bombay Council of
tocpnlinue to supply glucose to
tir/AIIMS;
jif) How did hospitals run by the
government and the Central Gov
ernment Health Scheme get spu
rious drugs remains a mystery;
A
v) Not long ago, in Calcutta, when Academicians and Professionals
a woman was operated upon for on June 14, a startling case of
severe abdominal pain, more how matters relating to drugs,
than 100 undissolved tablets suspected to be adulterated, arc
were found in the intestines). being handled by the concerned
Obviously, the quality was sub authorities was mentioned.
standard.
Dr. S.N. Deshmukh, Dean of the
The spurious drug menace has
been growing unabatedly. Con
sider the following cases which
reveal the glaring iniquity in the
health care system in India today.
The hearings by the Lentin Com
mission into the deaths of 14 pa
tients last year in Bombay's J.J.
Hospital run by the State Govern
ment, as a result of chemical
conlaminat on of the adminis
tered drug There was also a
close unhealthy nexus between
unscrupulous manufacturers of
drugs and corrupt politicians as
well as bureaucrats. The adulter
ated glycerol is not an isolated
case. Repo rted I v_tgdayJnJndia,
nearly Ta jjer_cent..of .the_drugs
marketed are_substandard or
spurious)
On June 8 a 27-year-old woman,
Mahananda Bhalchandra, a class
iv employee of the hospital at
Tiwasa in Amravati district died
at the same hospital after being
injected intravenously with sub
standard xy iocaine (an anaesthe
tic injection of two per cent
strength and one cc). This, de
spite the fact that after the Food
and Drugs Administration (FDA1
had certified the tested xylocaine
to be sub-standard. The com
plete batch (No. 101 delivered in
January 1987) was seized. And
the supply of this drug by the par
ticular firm had been only res
tricted to Amravati district.
20
faculty of medicine, Bombay Uni
versity, pointed out that follow
ing the J.J. Hospital tragedy last
year, the civic authorities had
issued a circular to all its hospit
als, including the one at Sion,
where he is an honorary physi
cian, that if they came across any
substandard drug, the author
ities should immediately be in
formed about it.
Dr. Deshmukh came across a
case in.the hospital where the pa
tient, suffering from fever, was
treated with all the precautions
but did not respond to treatment,
even after seven days. As he sus
pected the drug to be substan
dard, the vial was handed over to
the hospital dean who sent a
drug sample for analysis.
After some days, a letter was re
ceived by the Dean wherein it was
stated that Rs. 500 should be
senb’with the application for.the
analysis of the drug. However,
the dean found that he had no
power to send the amount in
such matters.
Thereafter all the relevant papers
were sent to the concerned Depu
ty Municipal Commissioner by
Dr. Deshmukh. However, no rep
ly has been received by him as
yet.
This reveals that the present drug
control infrastructure is inadequ
ate to weed out these unlicensed
units and also to inspect and con
trol the manufacture and dis
tribution of drugs. Datgan_effec-.
live campaign againstspurious
drugs, drug inspectors should be
made fully conversant with the
ihs'aiid outs of the manufacture
df~drugS and with the procedure
oricsting. It is for the govern
ment to educate the inspectors
atrourthese." The Govt) should
alsoeducatc inspectors in Acts
allied'to the' Drugs and Cosme
tics Act,-1940," such as the Drug
(Control) Ac(,~ 1950,. the. jjrugs
and Magic Remedies (Objection
able Advertisements) Act,_ 1954,
and the Indian EenaL.Code, the
Evidence Act, and the Criminal
Procedure Code etc. .
THE DRUGS & COSMETICS ACT
lso,the authorities should en
force all the provisions of the
A
Drugs and Cosmetics Act, 1940,
a consumer protection legisla
tion, which is mainly concerned
with the standards and purity of
the drugs manufactured in this
country and with the control of
the manufacture, sale and drug
distribution. Thus the main ob
ject is to prevent sub-standard
drugs so that high standards of
medicines and drugs can be
maintained.
This Act prohibits the manufac
ture and/or import, sale or ex
hibit for sale, distribution of any
cosmetic or drug which is either
substandard or misbranded or
may be injurious to health or any
patent/ medicine which is not dis
pensed in a prescribed manner
and does not contain a proper list
of ingredients.
Drugs and cosmetics cannot be
manufactured, sold, and distri
buted, without a proper license
for the purpose. This license is
granted usually by the Drug
Technical Advisory Board and a
Drugs Control Committee or any
similarly constituted board by the
Central Government to deter
mine the quality standard of the
drug or cosmetic.
A person who contravenes any of
the provisions of the Act relating
to drug import can be punished
with two years' imprisonment
and/or fine, and if he or she does
MIRROR, SEPTEMBER 1987
sed by a dealer. This prescribed
limit can, however, be altered by
the chief commissioner in certain
special cases.
As per the provisions of the Act, a
cash memo with all the details
must be given to the consumer
who makes purchases, so that
the dealer only supplies genuine
medicine to the consumer.
/
A detailed price list also has to be
maintained by each person
manufacturing every drug he
sells. With all the drugs that he
keeps for sales there also has to
be maintained list of sale price
for the consumer's benefit.
For the contravention of the pro
visions, imprisonment and/or
fine is the punishment.
The Drugs and Magic Remedies
(Objectionable Advertisements)
Act 1954, controls the advertise
ment of drugs in an objection
able manner. Misleading adver
tisements giving a false impress
ion to a consumer et al and
many other such examples (with
exceptions) are also quoted in
the Act. Punishment by way of
imprisonment or fine is laid
down for contravention.
not act in accordance with provisions relating to the manufac
ture aind sale of drugs, he may be
punistned with ten years' imprisonmernt and/or fine.
The Ciovernment appoints in
spectors to search any premises
where any kind of manufacturing
activity regarding any drug or
cosrr.ictic is going on or such
drugs and cosmetics are stocked
or exhibited for sale and if he
finds or has doubts about the off
ence having been commented
them either the premises, or the
drug/c:osmetic and/or the vessel
or vetnicle carrying such drugs
can bie confiscated.
A licence is required for the
maniufacture of ayurvedic or
unani: medicines also which has
to be: manufactured under the
prescribed conditions with prop
er amd genuine raw materials.
Imprisonment and/ or fine for the
MStSCMt, SEPTEMBER 1987
non-compliance of the above is
prescribed by the Act.
On notification, the Drugs and
Cosmetics (Amendment) Act,
1986, will suitably amend Sec
tion 26 and Section 32 of the
Drugs and Cosmetics 1940 Act
sef that consumer associations as
defined under the Act are confer
red with the powers to draw sam
ples legally and launch prosecu
tion.
THE DRUG (CONTROL) ACT
he Drug (Control) AcL 1950,
controls the distribution of
T
drugs. The chief commissioner
decides the maximum price of
any drug which is to be charged.
the maximum quantity that a
dealer can possess and the max
imum quantity that can be sold to
a person at a time.
Thus, any drug beyond the pre
scribed limit cannot be posses
It is now for the Food and Drug
Administration authority or any
similar authority enforcing the
above laws in each state to en
force the provisions of the Acts
mentioned above. They should
also educate the drug inspectors
and encourage them to maintain
close liaison with the public
health department authorities
and hospitals etc.
"Intelligence-cum-legal unit"- is
necessary in each slate. Howev
er, expecting for a few states like
Maharashtra, Gujarat. West Ben
gal and Union territory of Delhi,
other states have not made a
conscientious effort to organise
cells for counteracting fake
drugs. Even in states where the
cell had been set up, drug fakers
have hardly been effectively
bought to book as is apparent
from the probe being carried on
now-a-days by the Lentin Com
mission. Many spurious drugs
are being successfully marketed
even today.
29
some kind of a controversy over
the brand names versus
ow then can you guard
against being palmed off a^ . generics.
HOW TO BUY A DRUG
H
spurious drug? While buying anyl In any kind of drug therapy,
drug, shop only al reputable however, one cannot do without
chemists, one to whom you cany brand names as tliey
___ afford 11>e
get back to in case of a com-! greatest~asStJrance~Tn both replaint. The label should be ex-'. I iabi 1 i ty~arrd-111 rcturscCof
ss
an
take.
amined carefully and care should I trratmcnt-arritllie‘*c
be taken to see that it is well with WalKTldciltiflcatiorr Is a'responin the expiry date. A drug should /sibilty on The manufacturer to
have the manufacturer's name ’' market his product and help him
and address on it and also the£ achieve a high excellence level
on the tot^fperfarmance.
manufacturing license number.
Many times, consumers just pop
in a medicine given to them by an
allopath without knowing what it
really is. Sometimes general
practitioners give unlabelled
medicines.
'TVhy do general practioners give
unlabelled drugs? One, either he
is afraid that revealing the medi
cine name may lead the patient
to question the rationale behind
the drug administered and the
treatment. Two, the doctor feels
he might lose a patient if he dis
closes the drug’s name and also
other practitioners might get to
know lie treats a particular ail
ment. Three, the practitioner
must be overcharging and thus
making a huge profit on the
medicine; obviously'the practi
tioner would not like the patient
to know this. Tour, cheap generic
substitutes available at half price
or even less may be administered
and price for the original
_,char§ed.
Sometimes practitioners do not
even wait to diagnose the cause.
In case of complaints of fever,
pain, etc., they administer a fever
reducing drug an antibiotic, a
pain killer, an antihistamine or a
sleeping combination gives in
stantaneous relief without the
doctor having bothered to go to
the root of the problem. The pa
tient, meanwhile, gets hooked
onto the drug and the doctor.
Amongst branded drugs in the
market, it is
very few drug
manufacturers operating in trie
organised sector who bother to
market safe and reliable drugs.
Sometimes new drugs disco
vered abroad arc introduced in
the Indian market. This has led to
JO
If the brand name is abolished, it
will encourage even more spu
rious and substandard. drugs
cspcclall/imhe Indian markpl.
Tlie-necd'oniie hour is a strong
qualitatively efficient and vigilant
drug control administration,
which sadly is lacking in many In
dian states.
Even in the United States, re
portedly the FDA -— ’the largest
and the most professionally
organized regulatory' agency in
the world' — has not been able to
police the entire drug industry in
the country.' Also, there "gener
ics equivalence" has been diffi
cult to attain. In the U.S.A., Pakis
tan, Soviet Union and other Europcan countries "generics" have
been experimented within
varying degrees of failure and
they have had to go back to
"brands" finally.
One argument set forth by many
who are in favour of the introduc
tion of generics is that the drugs
will be available at a cheaper
prtce~as~ a conscquencc-of the
a b olition of tiig_br auiLna me.
This, anti-generics feel, is mis
placed. Drug prices and prolitsof
drug companies in India arc
already controlled whether the.
drug is sold under the brand or
the generic name. On tfic other
hand, those anti-gcncric feel that
one consequence of the brsHd
yielding to generics will cost the
nation dearly in terms ot boll)
standards and quality ot drugs
for which the
might have
to pay dearly.'
The government should especial
ly step up checks in hospitals to
avert (atal drugs living admiriis
tercd in future. I he need ot tin
hour is also to set up a large
number of testing labs at district
levels and locally so that tests on
more and more drugs can be car
ried out immediately and quickly
before the drugs are marketed.
In the past, many meaningful
legislations like the Drug and
Cosmetics Act, 1940, and the
Prevention of Food Adulteration
Act, 1954, have been unsuccess
ful mainly because of inadequate
lab facilities.
The Delhi administration's drug
control depar tment either sends
product samples to the Ghzy
*
ziabad's central laboratory or the
State laboratory at Bangalore/ in
Karnataka. Even otherwise, labs
take a long time over analysis qs
they are overburdened with work,
and the concerned departments'
sometimes receive the test re
ports alter two months.
Though consumers have legal re
course, the courts have to be
moved, thus involving a lot of ex
penditure and time. In the near
future, you could perhaps have
an inexpensive recourse in the
Consumer Protection Councils to
be set up in each state and the
Consumer Disputes Redressal
agencies to be set up soon at the
national, state and district level
under the Consumer Protection
Act.
But whatever it may be, it is time
for the Government to streamline
the functioning of its drug en
forcing authorities and take
harsh steps to enforce rigorous
standards in the industry. Offi
cials should be recruited on
merits and no favour shown on
sectoral consideration. To check
such cases in future there should
tie wide publicity oi rases unear
thed. Wheie the manufacturer
and the dealer have been indulg
ing in the sale of either sub
standard or spur ious drugs, even
deterrent punishment meted out
'-hi'iild be widely publicised. It
would lie unfair tor (lie goxernmerit to jeopardise the nation's
health or lor it to <ompromise on
extraneous or chauvinistic con
sideration!
first: After-sales service ot dissei\ ice?
i I'll MUI K‘ I'HI '
THE TIMES OF INDIA, BANGALORE
Unsafe intravenous fluids
BANGALORE:
Reports of inno
cent
patients
(consumers)
paying with thenlives due to un
safe and adulter
ated drugs are
not uncommon.
Sometime back
it was reported that several hun
dred patients had to lose their eye
sight as they were treated with a
particular batch of eye solution
which was later found to be conta
minated. Complaints against trans
fusion of infected blood have also
come to light.
Thirteen years ago when the
teen have found to be unsafe. Of
about 20 products marketed under
the IV fluids category, only four Normal Saline (NS), Dextrose In
glycerine tragedy took its tool of 14 jection (DI) Dextrose and Normal
patients at JJ. Hospital, Mumbai, it Saline (DNS) and Renger Lactate
was felt that things would improve. Injection (RLI) have a major
Tire Lentin Commission which share. Hence they were tested.
went into the details made several
Normal saline injection is a ster
revelations.
Yet unsafe drugs and medicines ile solution of sodium chloride. It
continue to be on the shelves of the contains no added substance. Dex
pharmacists as been proved by the trose injection is a sterile solution
tests of intravenous (IV) fluids of dextrose.
This is the most extensively used
conducted by Consumer Educa
tion Research Society (CERS), injection in hospitals. Dextrose and
Ahmedabad.
Normal Saline is a sterile solution
When a patient visits a private of dextrose and sodium chloride
nursing home or hospital the first given to patients with a low sodium
thing that is done is to administer level. Ringer Lactate injection con
IV fluids, irrespective of the need. tains potassium chloride, sodium
The use of IV fluids is estimated to
chloride and sodium lactate. It is
be 320 million units, which was 150
used to cure dehydration.
million units ten years ago.
The Sterility test is conducted to
Intravenous (IV) fluids includes
any fluid or drug whose delivery find the presence of micro organ
does not utilise the normal diges isms. Microbial contamination of
tive route. It is to be used in emer intravenous systems may occur at
gencies where normal oral intake several points from the time of
of food or medication becomes dif manufacture till its use in hospitals.
ficult like in case of accidents,
Administering such contaminat
burns, kidney failures, the patient ed fluids may result in blood poi
need IV fluids.
soning, causing fever, headache,
Considering the fact that IV flu nausea or diarrhoea. The samples
ids serve as the only way to rehy from the DNS category of M/s
drate and provide life-saving nutri Kokad Pharmaceuticals was found
tion, as well as to introduce differ
to be contaminated by bacteria.
ent drugs for treatment into the pa
Tire presence of foreign particles,
tients body, its quality and safety
although minute, may cause serious
needs priority.
But out of 41 brands of IV fluids consequences.
tested for various parameters, four
—CONSUMER RIGHTS—
Y.G. Muralidharan
. Il
The report says that this may re
sult in loss of blood supply to cer1 tain ratal tissues. The test for Partic
ulate Matter (presence of foreign
materials) has revealed that 14
brands of IV fluids did contain for
eign materials above the permissi
ble limits. The rest report published
in the recent issue of the society’s
magazine INSIGHT, says that
quite a few brands had particles
visible to the naked eye.
The quality of glucose used in
Dextrose injection decides the sta
bility and shelf life of the fluid. To
test the quality of glucose and its
decomposition, the brands were
put through a test (5-HMF). Ex
cept two brands all others fell with
in the maximum absorbance limit
of 0.25 specified in the Indian Pharmacopea.
The brands which passed the
basic tests have been rated. In the
normal Saline, six out of seven
brands have been rated.
Denis Chem with 90 per cent
tops the chart followed by Core
Healthcare (87%), Albert David
(86%),Wokhardt (84%) and Shree
Krishna Keshav (81%). In the case
.. of 5 per cent dextrose only 6 out of
10 brands passed in all the parameI ters.
J
The test has revealed that only
/ brands with glass containers car.' ried particles. All the brands in
plastic containers met the specifi
cation set by Indian Pharmacopea.
For a copy of the detailed report
write to CERS, Thaltej, Ahmedabad-Gandhinagar
Highway,
Ahmedabad 380 054 or visit
I http://www.indiatrade.com.cerc.
Consumer Awareness Series - 3
GUIDELINES FOR R. T. O.
PROCEDURES
Published by
GREAT
Consumer Rights, Education and
Awareness Trust (R)
239, 5th 'C Main, Remco Layout, Vijayanagar,
Bangalore-560 040
I OBLIGATIONS OF CREAT
Price Rs.
(including Postage)
1.
Directory of Civic Services(English)
2.00
2.
Directory of Civic Services (Kannada)
2.00
3.
Rights & Repsonsibilites of Paitents &
List of banned drugs (Kannada)
3.00
4.
Consumers and Environment (Kannada)
2.00
5.
Guidelines for RTO Procedures (English)
5.00
6.
Guidelines for filing complaints in
Consumer fora
5.00
Seminar Papers (English)
a)
Health, Drugs and Consumers
75.00
b)
Consumer Awareness
75.00 .
c)
Consumers and Drug Policy
50.00
Forth coming Publications (English)
1.
Guidelines for wise buying
2.
Domestic LPG safety code
3.
Guidelines for purchasing a Flat.
The above publications may be obtained in person
or by sending the amount through DD/ Cheques drawn
in favour of GREAT, Bangalore. Please add Rs. 10/- for
outsation cheques.
\
PREFACE
The Consumer Rights, Education and Awamess
Trust (CREAT) has launched a programme "Con
sumer Awamess Series" under which
it is
planned to publish a series of leaflets, booklets
and guides on various subject of interest to con
sumers. The objective of this series is to educate
^consumers, provide them with information and
to create an awamess about their rights and
responsibilttes.
CREAT belives that providing information to con
sumers is one way of creating a responsible
citizen who can always guard his rights and
take remedial measures in case they are violated.
So far five leaflets and two booklets have been
published in this series. Subjects for few more
booklets hctbe been identified and CREAT hopes
that the same will be made available at the
earliest.
^Our thanks to Mr. Vijay Vikram, Joint Commis
sioner
(Transport/Admn.)
for
having
gone
through the booklet and giving suggestions in
preparing this booklet.
Bangalore
April, 1995
Executive Trustee
(CREAT)
GUIDELINES TO R.T.O.
PROCEDURES
It is evferybodys experience that information about
the procedures to be followed and documents to be fur
nished for \«hous works, at the RTO is not known well
although the (fetails are made known over display boards.
An effort haSbeen made irHhe toSowinglines, to help the
public by providing broad guidelines to be followed for ob
taining the sffMces of RTO.
Every Regional Transport Office deals with all trans
actions relating to DriverX, Conductors, TravelAgents as
weH as Tran^jort yeNbleftxThefrn^ortant works in which
common mail is interested are:
A. Learners driving licence
B. Permanent driving licence
C. Renewal of driving licence
D. Registration of vehicles
>
A - LEARNSR’S LICENCE
Every person who wants to drive a vehicle should
possess a valid learners or permanent driving licence.
At the first irfetance, a person should obtain a learners
licence. The eligibility conditions for obtaining a learners
licence is as follows:
AGE LIMIT
1. Should not be less than 18 years for all Motor
Vehicles other than transport vehicles.
2.
Should have attained 16 years for Motor Cycles
without gears. A consent of the parent or guardian
should be obtained and produced.
3.
Should not beless then 20 years for transport
vehicles
1
APPLICATION
An application for grant of learners licence is to be
made in Form 2 to the RTO/ARTO having jurisdiction in
the area in which the candidate ordinarily resides or carries
on business or the school in which he is receiving or
has received instruction is situated.
DOCUMENTS TO BE ANNEXED
The following documents should be annexed along
with the application for grant of learners licence.
1.
2.
3.
4.
A medical certificate in Form IA, issued by a
Registered Medical Practitioner. This is only for
transport vehicles
Three copies of recent photographs of size 3 cm
X 6 cm. Photographs may be black and white or
colour
A fee of Rs. 15 (Rupees fifteen only) is to be remitted
in the Treasury Counter in the RTO and the challan
is to be submitted along with the application.
(Note down the number and date of the challan or
take a xerox and keep for your records)
Any document mentioned below, as proof of your
age and bonafide residential address
a) Ration card wherein your name is included
b) Electrol Roll slip or Voters Identity card
c) LIC policy with your address mentioned therin
d) Electricity or Telephone Bill
e) Pay Slip/Salary packet issued by your
employer, in case of State or Central Govern
ment employees
f)
House Tax receipt
g) Birth certificate issued by Corporation.
h) School certificate (S.S.L.C marks card)
2
Original marks card of SSLC should be produced
and taken back before leaving the RTO. Better you have
two xerox copies of the marks card duly attested by a
Gazetted Officer.
To have a driving licence you should not be suffering
form any disease or disability likely to cause your driving of
a motor vehicle a source of danger to the public or passenger.
If the application is proper in all respects and if all
the documents are submitted, you will be called for a
simple test. Users have the right to ask the concerned
officer to send the intimation regarding the date and time
of the test by post.
CONTENTS OF THE TEST
Granting of the learners licence involves passing of
a simple test in which you will be tested whether you
possess adequate knowledge and understanding on the
following matters:
a.
Traffic signs, traffic signals, rules and regulations
of the road
b.
Duties of driver when the vehicle is involved in an
accident causing, death, injury of a person or
damage to property or party
Precautions to be taken while passing unmanned
railway crossing
d. ' Documents the driver should carry while driving a
motor vehicle
The test will be conducted by the licencing authority
or Inspector of Motor Vehicles or through a computer'
Learners licence will be issued subject to pass in
the test. Vehicle users should follow the instructions to
avoid penalty or confiscation of the licence.
c.
3
1.
B - GRANTING OF
PERMANENT LICENCE
A permanent licence writ be issued to persons who
have a valid learners licence, subject^ other con
ditions. Eligibility conditions as far as- age in case
of getting learners licence is valid for getting a per
manent licence also.
2.
An application for a permanent driving licence should
be made in Form No.4 to the RTO/ARTO in whose
jurisdiction the applicant resides or carries on busi
ness or the school where he is receiving or has
received instructions is situated after the candidate
has held a learners, licence lor a period'of atleast
thirty days
■ >■
3.
The application should be accompanied by the fol
lowing documents.
a. Challans for remittance of the Test fee of Rs.
15/- (Fifteen only) and
b. Driving licence'fee of Rs. 20 (Twenty only)
c. Valid learners, driving licence in original
d. Three copies of the applicant’s recent
photographs of size 5 cms X 6 cms
e. Driving certificate in Form 5 issued by the
school "where the applicant received the in
structions, if any. This is not applicable in case
the user has learnt driving on his own
If the application and documents are proper in all
respects, the concerned RTO/ARTO will call the
user to appear for a test of competence to drive.
You should be ready to appear for the test with a
serviceable vehicle of the class for which you have
applied for licence. Uis nqt necessary that you should
be the owner ci th
* ve&£ie
4.
4
.
'
If you pass the test you will be granted with a per
manent driving licence which will be valid for a period
of 20 years or till you attain the age of 50 years
whichever is earlier in case of non- transport vehicles
and three years in respect of transport vehicles.
6.
In case you fail in the test you will have to reappear
after seven days upto three attempts. Thereafter it
is after 60 days. In such a case you will have to
remit the test fees once again. It is better you appear
I
for the test after you have acquired adequate
proficience and competence in driving.
C - RENEWAL OF DRIVING LICENCE
As a user of the vehicle you should remember that
a driver is expected to carry with him/her a valid driving
licence. The word 'valid' indicates that it is not expired.
Driving with an outdated licence attracts all penalties as
if driving without a licence . So watch the date of expiry
and apply for renewal without waiting for the last day.
The procedure for renewal is an follows:
5.
1.
Application for renewal of driving licence should be
made in Form No. 9.
2.
If the application for renewal is made within thrity
days from the date of expiry of the licence, the
licence will be renewed’ from the date of expiry.
For example if your licence expires on 1st March,
your licence will be renewed from 1st March if you.
apply within 30 March.
|
3.
If the application is made after thirty days of the
date of expiry of the licence, renewal will be made
from the date of renewal. If appication is made after
five years of the date of expiry the applicant will
have to appear for a re-test.
5
Fees for Renewal
a. If renewal of licence is made within thirty days
of the date of expiry Rs. 15/- (Fifteen only)
b. If renewal of licence is made thirty days after
the date of expiry Rs. 15/- (Fifteen only) plus
Rs. 10/- (Rupees ten only) will have to be
paid for dalay of one year or part thereof, reck
oned from the date of expiry
c. If you hold a licence for both Non-transport ■
and transport vehicles, separate fees is to be
*
paid for each category.
5.
The application for renewal of licence should be
accompanied by the following:
a. Challan of fees paid
b. Three copies of recent photograph of size 5
X 6 cms
c. The Driving licence
d. Medical Certificate in Form 1A
6.
In case of Non-transport vehicles the licence will
be renewed:
i.
For a period of 20 years or till the applicant
attains the age of 50 years
ii.
If the applicant has attained the age of 50
years, for a period of five years.
7.
In case of Transport vehicles licences will be
renewed .for three years only. If the applicant is ag
holder of a licence issued outside the region, such"
licences will be renewed after receipt of antecedent
from O.L.A.. or after fifteen days after the date of
application.
D - REGISTRATION OF VEHICLES
Every vehicle purchased, either new or old, has to
be registered and an R.C. book obtained.
4.
6
Application for registration of a motor vehicle should
be made in Form 20 to the Registering Authoring in whose
jurisdiction the applicant thas the residence or place of
business or where the vehicle is normally kept.
Application should be submitted within seven days
from the date on which the vehicle was purchased or
taking delivery of the vehicle. '
The present fee for registration of a motor vehicle
is as follows:-
Invalid carriage
Motor Cycle
Light Motor vehicle
Medium Goods/passenger vehicle
Heavy goods/Passenger vehicle
Imported vehicle
Imported motor vehicle
Any other vehicle
Rs.
10/30/100/200/300/100/100/150/-
In addition to registration fee, taxes at the rates
specified in part A of the schedule to Karnataka Motor
Vehicles Tax Act 1957 will have to be remitted.
The life time tax for motor cycles is as follows:
a. Below 75 cc Rs. 1000/b. Between 75 and 300 cc Rs. 2000/c. Above 300 cc Rs. 3000/The taxes in respect of motor cars other than imported
cars or cars owned by.companies is as follows:
a. Vehicle upto 800 cc Rs. 10.000/- (Life Time Tax).
b. Vehicle of 800cc to 1500cc Rs. 15,000/- (Life Time Tax)
c. Above 1500 cc Rs. 20,000 (Life Time Tax)
7
DOCUMENTS TO BE FURNISHED ALONG
WITH APPLICATION
1.
Sale certificate in Form 21
2.
Valid Insurance Certificate
3.
Proof of address by producing any one of the fol
lowing:
a. Ration card
b. Electrol roll or identity card
c. Life Insurance policy
d. Passport
e. Electricity or telephone Bill
f. Pay slip issued by State or Central Govt, offices
g. House tax receipt
h. School certificate
i. Birth certificate
4.
Temporary registration if any, or extract of From
19 if the vehicle is covered by trade certificate
5.
Roadworthiness certificate issued by the Manufac
turer in Form 22
Receipt for having paid Registration fee and tax
After filing the application along with the documents
detailed above, the vehicle should be produced for in
spection so that the Registering authority will satisfy that
the particulars contained in the application are true and
that the vehicle compleies with the requirements of M.V.
Act 1988 and rules made thereunder.
After satisfying that the particulars contained in the
appplication are true and the vehicle complies with the
requirements of the Act, the RTO will register the vehicle,
assign a registration mark and will issue registration cer
tificate (RC book)
6.
8
The applicant/owner should exhibit the registration
mark assigned on the vehicle in the manner prescribed
on black background with white letter in repect of Non
Transport vehicles and white background and black letters
in respect of Transport vehicles.
If the vehicle is covered by Hirepurchase/hypothecatidn/lease agreement the signature of the other party to
such agreement shall be obtained in the application in
the column provided for the purpose and additional fee
of Rs. 50/- (Fifty only) shall be remitted for recording
such agreement.
If the vehicle is to be registered as a Transport vehicle
a separate application in the prescribed form, with
prescribed fee should be filed for grant of fitness certificate
and permit
The certificate of registration of a motor vehicle other
than a transport vehicle will be valid for fifteen years and
is renewable.
GENERAL GUIDELINES
A driver of a vehicle should carry with him/her the
following documents in original or xerox copies duly at
tested by a State Government Gazetted Officer
1. Registration Certificate (RC Book)
2. Valid driving licence
3. Valid Insurance Policy or receipt of premium
The Traffic police can ask the driver to produce the
following documents within Corporation or Municipal limits:
1. Valid driving licence
The Regional Transport Officials can ask the driver to
produce the following document for verification:
9
1. Registration Certificate
2. Any other documents pertaining to he vehicle
LOCAL R.T.O. ADDRESSES
Bangalore City has five Regional Transport Offices,
the details of which are as follows:
Division
Address
Phone No.
North
Corporation Complex
Yeshwanthpur
BANGALORE-560 022
3376039
South Shopping Complex
Jayanagar IV Block
BANGALORE-560 011
6630989
East
BDA Shopping Complex
Indiranagar
BANGALORE-560 038
562726
West
BDA Shopping Complex
Rajajinagar II block
BANGALORE-560 010
3324288
Central BDA Complex
Koramangala
BANGALORE-560 035
5533525
Office of the Transport Commissioner
4th Floor, Multistoreyed Buildings
Dr. Ambedkar Veedhi
BANGLORE - 560 001
Phone No: 2253717
TRAFFIC CONTROL DEVICES
Traffic signs, signals and markings are designed to
regulate, warn and guide the flow of traffic. These devices
are standardised so they have the same meaning in
every State.
10
Traffic signs are used to convey specific information.Theytellyouaboutregulations.warnyouofhazardsorpo
tentialhazardsand helpyoufind your way.
Signs are divided into four basic categories:
Regulatory
Warning
Construction
Guide
Regulatory signs tell you what you can or cannot
do. They advice you on the regulations concerning speed,
the direction of traffic, turning restrictions and parking.
Warning signs tell you what you expect ahead. They
warn you about existing or potential hazards on or near
the roadway and are posted before the hazard so you
can be prepared.
Constructions signs indicate that some repair, con
struction or maintenance work is in progress
Guide signs tell you shere you are going and how
to get there. They provide information on intersecting
roads, help direct you to cities and towns and note points
of interest along the highway. Guide signs also help you
find hospitals, service stations, restaurants etc.
SEEING WELL AT NIGHT
It’s harder to see things at night than during the
daytime. Here are some things you can do to help you
see better.
Use your high beams whenever there are no on
coming vehicles. You can see twice as far with high beams
than with low beams. It's particularly important to use
your high beams when driving on unfamiliar roads, in
construction areas or where there may be people along
the roadside.
11
Dim your lights when following another car or when
car coming toward you.
Use low beams when driving in fog, snow or heavy
rain. Light from high beams will reflect and cause glare.
COMMUNICATING
Accidents often happen because one drived doesn’t
see another driver, or one driver does something the
other driver doesn’t expect. It’s important that drivers
COMMUNICATE.
Communicating means letting others know where you
ar and what you plan to do:
By using yours lights
By using your horn
By making sure your vehicle is seen
By using emergency signals
By positioning your vehicle
By signaling when changing directions
By signaling when slow or stopping
USING HORN
Your horn can get the attention of other drivers. Use
it whenever you suspect another driver or a pedestrain
doesn't see you, but don’t abuse it.
If there is a real danger, don’t be afraid to sound a
SHARP BLAST on your horn. For example use your horn
a. When a child is about to run into the street
b. When another vehicle is in danger of hitting you
c. When you have lost control of your vehicle
DRIVING ON A WET ROAD
While driing on a wet or slippery road be careful. If
the road is slippery, your tyres have less traction. Drive
slower on wet roads then you would on dry droads. Exercise
special caution on roads posted with warning signals.
12
At speeds upto 35 mph most tyres will wipe water
from the road surface similarly to the way a sindshield
wiper cleans water off the window. As you go faster,
your tyres cannot wipe the road as well. They start to
ride on a film of water like water skis. This is called
Hydroplaning.
In a heavy rain your tyres can lose all contact with
the road at higher speeds. Bald tyres lose contact more
readily. A slight change in direction or a gust of wind
could throw you vehicle into a skid. The best way to
prevent hydroplaning is to keep your speed down.
ALCOHAL AND DRIVING IMPAIRMENT
It is highly dangerous and illegal to drive when you
are under the influence of alcohal and drugs. No one
can drive safely no matter how long he or she has been
driving.
Alcohal is a depressant. It affects all the cells of the
body, especially the main and central nervous system.
As a resul, alcohol dulls your memory, concentration,
insight, perception and judgement
When high levels of alchol are absorbed into your
blood stream, it affects your ability to distinguish different
light intensities. This may be particularly dangerous when
driving. Your eyes taken longer to read just when exposed
to glare from bringt lights. It also impairs your eyes sen
sitivity to certain colours, especially red.
As the alcohol concentration increases in your blood,
so will you driving errors. You will reach slower and fluc
tuate between driving fast and driving slow. Your ability
to brake and drive will be impaired so that your vehicle
swerves and stalls. In general, your driving will become
careless after drinking.
13
You don't have to drink much to be affected by alcohol.
Studies indicate that driving skills begin to deteriorate at
blood- alcohol levels below 0.05 per cent.
Finally, it’s important to remember that alcohol gives
a driver a false sense of security. The driver thinks that
he or she is driving well. In reality the driver is endangering
himself and others on the roads.
Alchohol is not the only drug that can adversely in
fluence your driving performance. Many other drugs either
used alone or in combination with alcohol, increase your
risk of having an accident.
Every drug has some effect on the person using it.
Befoer taking a drug, find out from your doctor how the
particular drug might affect your sight, coordination, timing
and general ability to drive.
HEALTH
Some of the diseases or ailments may be dangerous
for driving. Persons with the following health problems should
be careful while driving. Better they do not drive alone.
Epilepsy - As long as it is under medical control, epilepsy
is not dangerous. Persons with known instances of epilep
sy should not drive alone
Diabetes - Diabetics on insulin should not drive when
there is any danger of going into shock. This danger
could result from skipping a meal or snack or from taking
amount of insulin. It is better, a friend or a relative drive
you. Diabetics should also have their eyes checked for
possible night blindness.
Heart condition - People with heart disease, Yiigh blood
pressure or circulation problems should be aware of the
impact of these conditions on ther driving ability. There
is danger of a black out, fainting spell or heart attack.
14
GOOD DRIVING HABITS
1. Drive slow and steady
2. Keep your engine healthy
3. Use brakes sparingly
" Let go of your clutch
5. Clean air filter regularly
6. Watch your tyre pressure
7. Stop fuel leaks
8. Stop the engine if you stop for more than 2 minutes
9. Use the right lubrication.
The information is based on the leaflets issued by
the Department of Transport, Government of Karnataka
and Pennsylvania manual for drivers published by Depart
ment of Transportation, Commonwealth of Pennsylvania.
GREAT
Established in December 1993, CREAT is a non politi
cal, non-profit, voluntary organisation devoted to the cuase
of consumer protection and welfare.
The objective of CREAT is to act as a platform for
consumers to raise their grievance on issues relating to.
consumer protection, environment, health, public issues etc.
To achieve its objectives CREAT has chalked out the fol
lowing programmes:
1.
2.
3.
4.
5.
To set up a consumer information centre
To publish books,, leaflets and other literature
To bring out a periodical
To set up a food testing laboratory
To arrange lectures, demonstrations, exhibitions,
seminars and workshops
6.
To arrange programmes to train consumer activists
7.
To take up individual/class cases for redressal
8.
To provide faculty, trainig material etc, for consumer
groups
9.
To conduct surveys, product evaluation studies and
print reports
CREAT is an organisation depending entirely on con
tributions from the general public, philonthropists and social
organisations. While the trust welcomes donations, interested
persons can join CREAT as donor members on payment of
Rs. 50/- (fifty only) per annum. For details contact:
Consumer Rights, Education and
Awareness Trust (CREAT)
239, 5th C Main, Remco Layout,
Vijayanagar, BANGALORE - 560 040
IN THE SUPREME COURT OF
INDIA
CIVIL
APPELLATE JURISDICTION
CIVIL
APPEAL NO.
688 OF 1993
Indian Medical
Association
...
Appellant
...
Respondents
VERSUS
V.P.Shantha X Ors.
[WITH C . A . NO . 6 8 9 / 9 3, WP(C)
4 665/9 4 , C.A.NO. 254 /9 4 AND
NO. 16/94,
C . A . N0S .
C.A.NO. 4 6 6 4 ^Q0.8.1./.1.0.0.5?-0?/95
(Arising out of S LP(C)NO s.
18497/93,
21755/94,
and
16445-73/94], SL P(C)NOs .
6885/92,
6950/92,
351/93,
21348/93 and 21349/93]
JUDGMENT
S^.C,.
ABlA.WALj J.
:
Leave
granted
in
SLP(C)
Nos.
Delay
condoned
and
leave
granted
These
appeals,
special
21755/94.
18497/93
in
and
SLP(C)
Nos.
18445-73/94 .
Writ
Petition
so,
in
what
regarded as
Consumer
raise
a
common
circumstances,
rendering
Protection
a
1986
petitions
viz.,
question,
'service’
Act,
leave
medical
and
the
whether
and,
if
practitioner,
can
be
Section
2(1)(o)
(hereinafter
referred
under
of
to
the
as
-:2:-
Act'].
'the
the
whether
be
Connected
service
regarded
These
as
questions
well
as
question
a
at
considered
been
the
National
question
the
home
can
2(1)(o)
of' the
Act.
various
High
by
Disputes
Consumer
to
referred
[hereinafter
is
hospital/nursirig
Section
under
have
by
Commission
rendered
'service'
as
this
with
Courts
Redressal
as
'the
National
of
India
(1992)
Commission’].
A. S. Chandr a
D r_.
I ri
Andhra Law Times 713,
Court
held
has
homes
must
be
2(1)(o)
services
are
2(1) (d)
of
the Act .
In
Dr .C .S .
438,
a
Bench
different
services
rendered
a
by
to
a
way
the
within
and
of
view.
by
been
It
has
a
medical
diagnosis
High
and
Section
( 1994)
Court
field
of!
such
availing
meaning
Madras
nursing
purpose
Kumaras^my & A nr . ,
the
of
the
persons
the
and
patient
of
for
by
consideration
hospitals
'service'
Sub ram an iian v.
Division
hospital
Act
'consumers'
taken
a
the
of
however,
by
as
construed
for
private
practitioners,
Section
MLJ
service- rendered
1
Andhra Pradesh High
a Division Bench of
that
medical
private
Union
v
has,
that
practitioner
treatment,
1
the
or
both
-:3 : -
medicinal
of
and surgical,
under
'service’
who
undergoes
and surgical,
the
meaning
under
Section
of
practitioners
and
similar
immunity
from
the
provisions of
within
them ,
by
ex tenL
of
the
such
per son availing o f
such
service
the
Act.
C.A.Nos.
Lhe
meaning of
a r i sing out
of
and
A p p e al s
Civil
filed
by
the
judgment of
No.
SLP(C)
Union
of
out
India
within
the
medical
filed
a
by
di rec ted
they
services
and
'service'
of
SLP(C)
of
claim
cannot
para-medical
be
para
providing
AcL and that
4664-65/94
are
but
a
''consumer'
within
and Civil
Appeal
the
Nos.
complainants
18445-73/94
against
the
said
the Madras High Court ,
The Na t i on al
dated
December
held
that
medical
would
21775/94
arising
'consumer'
the
definition
a
or
medicinal
both
categories
and
patient
practitioner
undertaking
kinds
rendered
a
Act;
all
the
and
Act
the
of
of
to
the
a
services
fall,
definition
treatment,
medical
would
the
to be
2(1) (d)
hospitals
or
within
medical
a
considered
be
cannot
of
and
diagnosis
of
come
2(1)(o)
Section
treatment
way
by
hospital
would not
15,
persons
treatment
1989
who
Commission by
in
avail
First
its judgment and order
Appeal
themselves
No,
of
2
the
of
19S9
has
facility
of
i n Government hospitals are not "consumers"
the
and
cannot
said
be
facility
offered
in
as
service
"hired"
regarded
It has been held
by; the
public
the
that
does
not
in
employee
other
the
constitute
"consideration"
Central
Scheme
similar
for
in the Government hospitals.
It
contribution
made
Government
Health
does
not
of
No.
18497/93
has been
filed
recognised
consumer
associat ion,
a
the National
him
make
meaning
Act.
taxes
or. indirect
paid
the
the
"consideration".
direct
that
held
been
also
for
hospitals
pay men I of
hiring the services rendered
has
Government
the
a
by
Government
a
such
"consumer"
within
SLP(C)
Civil
Appeal
arising
out
by
Consumer
Unity
Trust
this
against
or
Scheme
of
Society,
of
judgment
Commission.
By
judgment
dated
21,
April
1992
Appeal
in First
i
Nos.
48 and 94 of 1991,
the
activity
of
the National
Commission has held
for
assistance
medical
providing
carried on by hospitals and members of
that
payment
medical
profession
'service'
as defined
the
w
falls within the scope of
in
Section
2(1) Co)
deficiency
in
party
can
invoke
filing
a
the
of
the
the expression
Act
performance
the
complaint
and
of
remedies
before
that
such
in
service,
provided
the
event
the
the
under
Consumer
of
any
aggrieved
the
Forum
Act
by
having
- :5 : -
It
jurisdiction.
representatives of
in
treatment
the
are competent
filed
689/93
directed
th.e
filed by M/s
6950/92
said
The
National
by
the
November
16,
1992
filed
by
351/93
has
against
the said judgment
been
By
National
that
was
judgment
to
nursing home belonging
of
any
under
any
charge,
the
Act
and
relief under
the
the
are
21,
1992
its
judgment
of
8
was
dated
1991
[Dr.
Sr.
Ann.].
SLP
No.
and
Nursing
Home
Commission.
dated
May 3,
1993
in O.P.No.
93/92,
has
held
that
since
treatment
deceased
the
husband
the opposite party was
to
it did.
SLP(C)
April
Hospital
complainant's
the
and
the National
of
Commission
given
Josgiri
688/93 and
National
No.97
Pathumma
and
the
Appeal
Kannolll
Act
of
in
3mt.
Anr.v.
the
legal
Hospital
Cosmopolitan
Commission
First
in
undergoing
Association
dated
judgment
were
C.A.Nos.
judgment
said
the
the
under
'consumers'
Medical
Indian
that
who
patients
the
against
the
held
the complaint.
followed
8
are
been
to maintain
Commission.
Louie
deceased
hospital
by
and
6885
Nos.
also
has
not
constitute
complainant
Act.
C.A.No.
was
in
the
totally
free
'service'
not
as
entitled
defined
to
254/94 has been filed
seek
by
-:6:-
the
complainant
said
the
against
judgment
the
of
National
Commission.
,
Writ Petition No.
16 of 1994 has been
Article
32
of
the
Ltd.,
and
Dr.
K.Venogopolan
Nos.6885
and
6950/92]
assailed
the
validity
as
they
as
being
are
to
held
of
the
of
[petitioners
the
to
Articles
the
of
the
Act,
medical
(P)
SLP(C)
have
insofar
profession,
1 9 (1 ) ( g )
and
14
in
petitioners
said
provisions
applicable
be
violative
Nair
wherein
ft
Hospital
r
Cosmopolitan
by
Constitution
filed under
of
the
Cons t iLution.
Shri
Krishnaraani
Shri
A.H.Singhvi,
addressed
K. Parasaran,
the
the
hospitals
of
the
of
Shri
Rajeev
Dhavan
Before
we
would briefly
we
the scheme of
i
On
Shri
behalf
complainants.
contentions
and
on
court
and
Harish
Shri
take
the
to
note
ttie
have
profession
presented
proceed
of
Shri
S.Balakrishnan
medical
has
Salve,
deal
and
the
case
with
their
background
and
the Act.
April
United Nations,
9,
1985,
the
General
Assembly
by Consumer Protection Resolution No.
of
the
39/248,
the
adopted
Governments,
in
use
and
and legislation,
lines include assisting
adequate
protection
encouraging high levels
in
production and
the
hazards
meet
to
tive
consumer
the
Act
was
to
and
make
putes and
The
of
the
conduct
for
those
of
in
view
engaged
to
to
said
provide
establishment
authorities
for
the
settlement
for matters connected
therewith.
level,
Disputes
Lhe
from
consumers
of
the
the
Consumer
and
services
and
goods
for
the lowest
the
consumers
interests of consumers and
ances.
at
guide
as
Parliament
by
for
Forum';
said
the
population
protection
the
structure
Consumer
protection
in achieving or maintaining
ethical
three-tier
AL
cbjectives
Keeping
redress.
provision
other
to
consumer
distribution
include
enacted
protection of
countries,
developing
health and safety and availability of effec
their
to
for
strengthening
their
of
fra m ework
The legitimate needs which the guidelines are
the consumers.
intended
of
countries
for
a
provide
those
particularly
elaborating
policies
to
guidelines
next
the
higher
Disputes
Forum
level,
Redressal
for
better
purpose
consumer
councils
consumers'
dis
The Act sets up a
of
consumer
griev
level,
is the
'the
District
the District
known
i.e.,
the
that
for
of
redressal
i.e.,
Redressal
of
guidelines,
as
the
Commission
State
level,
is
as
'the
known
o : -
State
Commission.
Redressal
Consumer Disputes
ary
limit
lies
to
ofthe
[Section 15]
al
Commission
against
on
a
complaint
filed
order
passed by
the
to
contained
those
sumer
pending
dispute
[Section
17(b)]
revisional
and
these
is
on
the
Forum.
Section
made
an
in
CPC
decided
or
Commission
on
The
grounds
of
State
similar
to
relation
con
a
District
a
the
against
Forum
has
similar
a ■ consumer
dispute
Commission
respect
the
State
appeal
by
by
tl(e Nation
[Section 19].
National
in
the
appeal
to
lies
powers
115
before
jurisdiction
order
an
three
pecuni
An
in
or
it
National.
complainant.
by
made
revisional
the
based
and an appeal
District
in
of
against
before
exercise
Commission can
jurisdiction
the
order
an
the
by
Commission
District Forum
is
Agencies
made
claim
State
the
The
9],
[Section
level
highest
the
at
and
Commission'
I
before
pending
21(b)].
Court
or
Further,
from
an
or
mission.
[Section
complainant
the
consumer
trade
an
by
is
there
order
complaint
on
decided
by
made
appeal
a
By
in Section 2(1) (c),
practice
unfair
adopted
by
the
order
of
a
this
to
Commission
National
the
appeal
for
[Section
State
on
a
Com
virtue
of
the Act
affords protection to
trade
any
Commission.
provision
against
23].
against
State
a
the
practice
trader,
or
defect
definition
a
of
restrictive
in
the
goods
-:9»-
bought
agreed
or
servicej
the
availed
of
hired
be
hired
or
charging
by
trader
price
in
by
or
under
any
law
for
the
d i s p1 a y e d
on
the
goods
or
any
package
offering
for
sale
to
publ ■i c,
to
and
safety
fixed
in
f orce
containing such
be
or
goods
and
hazardous
contravention
the
of
any
traders
to
display
manner
and
effect
goods.
The
expression
2 (1) ( b) ,
is
comprehensive
any
force,
or
one
or
having
t hi e
more
or
appropriate
Central
consumers
same
the
13
of
well
where
Consumer
to
Disputes
the
prescribes
Act
the
which
State
Commission
and
time
information in
i
of use of such
consumer
as
well
under
as
the
the
time being
State
Government
numerous
consumers
for
before
Agency
the
and
the
con
is settled by the said
procedure
that
the
complaint
Redressal
in such complaint
the
for
in
Section
any
a
file
with
used,
in
are
there
goods
when
registered
or
Government
in accordance
as
the
time
defined
as
association
interest,
sumer dispute raised
agency
enable
to
law
1956 or under any other law
Companies Act,
in
’'complainant ”,
consumer
voluntary
life
a
of
force requiring
to the contents,
regard
or
of
provisions
in
being
in
to
price
being
deficiency
i
consumer,
agreed
consumer,
the
will
availed
or
the
of
the
bought by
by
excess
which
to be
laid
the
the
down
District
National
in
Section
Forum
[as
Commission]
-:10 : -
shall
have
under
the Code of Civil
the
as
power
same
enforcing attendance
vested
are
court
in respect of summoning and
Procedure
any
defendant
or
oath;
discovery
and
of
civil
a
in
examin
and
witness
of
any
document or other material
object producible as evidence;
the
reception
of
evidence
affidavits;
the
of
the
the
ing
report
pr i ate
on
witness
on
analysis
concerned
the
or
or
from
any
any commission
for
the
examination 0 f
which
may
be
for
the
nature
of
the
complainant
on
such a
complaint.
Act
are
rf
other
matter
provisions
addition
in
to
and
sions of jany other law for
requisitioning
appro-
source ;
issuing
any w i t n e s s ;
and any
from
relevant
prescribed.
Section
reliefs
can
that
time being
the
be
14
of
makes
granted
The provisions
derogation
in
not
of
the
test
1aboratory
other
production
the
in force.
of
to
the
provi
[Section
3] .
In this
group
only
of
cases
goods
and
we
are
Since
the
Act
gives protection
service
rendered
has
be
to
"consumer"
in
concerned
to him,
construed
the
Act.
we
the
to
concerned with
not
with
rendering
the
consumer
of
in
expression "service"
keeping
It
are
is,
in
view
the
therefore,
services.
respect
of
in
Act
the
definition
of
to
set
necessary
.11.
:
out the definition of the expression
Section
2(1)(d)
definite on
2(1)(o)
of
of
insofar
the
expression
the Act.
Section 2(1)(d)
re1 ates
as
contained
in
to
and
the
con tai ned
Section
'consumer'
'service
as follows
The said provisions
"consumer
means
:
any person who,
ora i t ted
h i res [or avails of] any s e rv ices .for, a
(ii)
p r p m i. s e.d
consideration which , has been. pa id'
partiy p a 1 d and partly pr on i s e d , o r u n d e r any
system o f d eferred p ay me n t and 1 n c 1 u d e s any
beneficiary of such services other than the person
s e r v ice
for
th e
who
hires
[or
avails
o f ]
paid and
consideration paid or promised,
j r under any system o f deferred
partly (promised,
availed o f w i t h the
payment, when such
approvalI of the first mentioned person.
Explanati on .
0 m i 11 e d
means service o f any
"Section 2(1)(o)
made
available
to
wh i c h
i s
the
descript i o n
i n elude s
the p r
s i on of
potential
use r s and
i n connect i o h with banking, f i nanc i ng
supp1 y of
i nsurance
process! n g ,
t ransport,
electrical
board
1 edging o r
other
energy,
construction],
ent e rtainment,
both,
[housing
amusement or the p urveyir.g of news or other
information, but does not include renderj ng wo_f. any
service free of charge or under a contract of
personal service;"
avails of"
The words
Section
2(1)(d)(ii)
and
the
words
after
the word "hires
"housing
construction"
in
- : 12 : -
inserted by
Section 2(1)(o)
def i n
The
onary
part
of
any
and
in
expl ana tory
Th e
P rov i s i o n
in
exclusionary
the
part.
which
is
made
available
part
facilities
1 n
to
i nc 1 udes
exp ress1
w i th
connection
n sura nee,
e 1 e c’t r i c a 1
other
construction,
entertainment,
amusement
information.
The
exclusionary
of
charge
other
rendering
of
any
transport,
energy-,
service
board
free
or
lodging
or
both
the
the
bank! n 9 ,
Supp1 y
in9 ,
or
potential
the
f i nanc i n9 ,
news
the
main
The
and defines service 'to mean
i n c 1 u s i o n ary
of
of
the main part
nature
description
u se rs .
in Sect ion 2(1)(o)
t i o n of
up
the Act can be spl
1993 .
the Act 50 of
0 f
housing
purveying
of
excludqs
under
a
contract
of personal
The
Section
2(1)(o)
definition
o f
'service'
the
has
been
const rued
v.
M_._K_l.Gu pjt a
of
in Lucknow Development
243 .
parts,
Act
Authori ty
After pointing out
that
the Court has observed
contained
by
the said definition
:
this
1994
is
Cou -t
(1)
in
SCC
three
- : 13 : -
"The main clause itself is very wide.
It applies
to any service made available to potential users.
The words 'any' and 'potential' are significant.
Both are of
wide
amplitude.
The
word
*
'any
dictionarily means;
one or some or all'.
In
Black's Law Dictionary it is explained thus, "word
'any' has a diversity of meaning and may be
employed to indicate 'all' or 'every' as well as
'some' or 'one' and its meaning in a given statute
depends upon the context and the subject- matter of
the statute".
The use of the word 'any' in the
context it has been used in clause (o) indicates
that it has been used in wider sense extending,from
one to all.
very wide.
'capable of
The other word 'potential' is again
In Oxford Dictionary it is defined as
coming into being, possibility''.
In
Black's Law Dictionary it is defined "existing in
possibility but not in act.
Naturally arid probably
expected to come into existence at some future'
time,
though not now existing;
for example,
the
future product of grain or trees already planted,
or Lhe successive future
instalments or payments
on a contract or engagement already made."
In
other words service which is not only extended to
actual users but those who are capable of using it
are covered in the definition.
The clause is thus
very wide and extends to any or all actual
or
potential users." [ p . 2 5 5)
The
Act
is
to
contention that
protect
the
the
consumer
entire
objective of
malpractices
against
business was rejected with the observations
the
:
"The argument proceeded on complete misapprehension
of the purpose of Act and even its explicit
language.
In fact the Act requires provider of
service
to be more objective and caretaking."
■xP.256)
in
Referring
j
it was. s a i d
to the inclusive pari
of
the
definition
:
"The inclusive clause succeeded in widening its
scope but nol exhausting the services which could
be covered in earlier part.
So any service except
when it is free of charge or under a constraint of
personal service is included in it." [p.257]
In
question
that
whether
the
case
housing
construction
service under
Section 2(1)Co)
was
in
pending
inserted
in
the
this
the
dealing
could
Act.
"housing
part
Holding that fiousing a c t i v i I y
the main part of
of
Court,
inclusive
was
Court
by
with
.
the
as
be' regarded
the
While
matter
construction"
Ordinance' No.
of
24
was
1993.
i s a service and was covered by
I he definition,
the Court observed
:
the entire purpose of widening the
definition is to include in it not only day to day
buying and selling activity undertaken by a common
man but even such activities which are otherwise
not commercial in nature yet they partake of a
character in which some benefit is conferred on the
consumer.” [p.256]
In
the
present
definition of "service"
case
the
inclusive
part
is not applicable and we are
of
the
required
— : 15 : —
to
with
deal
of
light
the
questions
falling
part
the
main
the
The
definition.
consideration
consultation,
or
diagnosis
is
found
that
and
treatment
a
of
the
the
definition
We
Act.
part of Section 2(1) (o).
light
in relation
We
(supra).
determine
whettier
homes
to medical
first
be
can
the main
in
observations
will
of
2(1)(o)
This determination has
aforementioned
Authority
Development
question
the
of
require
Section
hospitals/nursing
and
the
within
■I
in
to
of
falling
service
contained
the
practitioner
rendering a "service” as contemplated
regarded as
i n[ the
a
in
matter
the
in
medical
therefore,
have,
practitioners
medical
renders
part
will
part
it
a hospitai/nursing home
the main part of
exclusionary
exclusionary
if
only
and
consideration
for
to be
in
made
Lucknow
examine
this
practitioners.
•i
has
It
distinction
been
between
a
contended
profession
in
that
and
law
there
occupation
an
is
and
a
that
while a person engaged in an occupation renders service which
falls
ambit
of
a
person
belonging
within
the
ambit
of
medical
practitioners
who
the
2(1)(o)
Section
by
rendered
fall
the
within
said
belong
to
a
profession
the
service
does
not
and,
therefore,
medical
profession
provision
to
the
- : 16 : are
urged
oF
the
Act.
that
medical
practitioners
are
governed
by
the
provisions
the
Medical
Council
Act,
1956
arid
the
by
Medical
Council
of
Indian
Ethics
Code of Medical
Medical
the
by
action
Councils
It
has
been
India,
of
Indict under Section 3 of
1956
which
regulates
Medical
the.
their
profession and provides
the medical
conduct as members of
State
the
Act,
Council
Medical
disciplinary
made
the Government of
as approved by
Indian
provisions
the
by
covered
not
for
and/or
Counc i 1
of
India
per son
for
professional
re 1 uc tanc e
to
propound
against
a
misconduct.
expres sing
While
his
comprehensive defini t i on o f
a
said
present
the
'profession'
idea
of
intel 1ectual
1n
the
an
o c c up a t i o n
skill,
of
painting and
of
use
manual
as distinguished
of
1anguage
e q U l r 1 n g
surge ry ,
the operator,
substantial 1y
Scrutton L . J .
e i Lhe
the
intellectual
or
sale
of
commodities.
The
may vary
from
time
to
time.
'profession'
confined
to
the
three
sale
The word
learned
as
in
11
f r o m an occupation which
production
production
pu re1 y
control 1e d,
the
or
has
involves
skill
by
a
or
arrangement
line
professions
for
the
demarcation
of
used
the
to be
Church,
- : 17 : -
[See
Law,
and
Medicine
It
think,
Inland Revenue v.
Commissioners of
:
I
now,
has
a
meaning".
wider
Maxse,
1919 1 K.B.
647 at p.657 ] .
to Rupert M.
According
the
occupations
which
characteristics,
viz.,
the nature of
i)
and a substantial
general
duty
of
regarded
the work which
to
moral
honesty
and
as
wider
which
duty
to
transcend the duty
to a particular client
iii)
professional
which
seeks
to
iv)
four
go
beyond
community
the
which
or patient;
regulates admission and
the
profession
through
codes on matters of conduct
and ethics;
and
uphold
professional
of
have
Ilian manual;
may
associat-ion
John L.Powell
is skilled and specialized
principles
a
and
professions
rather
is mental
part
commitment
ii)
are
Jackson
high status
the
standards
in the community.
- : 18 : -
The
centtiry
twentieth
been
seeking
this
has
which
increasing
an
inevitably
led
traditionally
occupations.
In
to
Negligence
the
professional
status
seven
engineers
architects,
( i i i )
surveyors,
(vi)
barristers,
[See
brokers.
:
the
matter
case
and
beyond
rational
very
tht
of
approach
success
to
that
for
success
or
man's
the
features
from
other
relating
to
have
accorded
occupations,
namely,
(ii)
surveyors,
( i v )
(v)
solicitors,
and
insurance
(vii)
protection
to
professional
the
liability
Negligence,
achieved
be
failure
depends
control.
while
should
every
factors
a
devising
liability
consumer
n
upon
In
Lhe approach of
men
professions
reason that professions
cannot
professional
factors mentioned above,
require
the
on Professional
professional
professional
p i’o vide proper
the
often
and
3rd Ed.i.J.
spheres where
in
that
law
quantity
practitioners
differ from other occupations
operate
specific
Jackson 8 Powell
status
authors
learned
and
have
of
the
the
occupations
professions
of
accountants,
medical
paras 1-01 and 1-03,
In
the
context
to
of
blurring
some
P i’o f e s s i on a 1
Ci)
number
distinguish
the
that during
staled
"professional”
achieving
and
have
authors
learned
which
must
allowing
for
the courts
possess
a
s
to
certain
- : 19 : -
that
degree
of
competence
reasonable care
in
the discharge of
a professional
man
owes
to
his client
a duty
to
exercise
reasonable
care
minimum
as
in
or
performing
contract
paras
certain
The
trend
and
1-05
1-04,
by
services.
towards
available
longer
narrowing
enjoying
field
to mutual
complete
to
is' limited
category of pre-trial
transpires
in
court.
1-66;
Saif
Al_i
v.
Rees
v•
Sj_n_c l_a_i.r
iWraith
(1938)
81
valuers.
work
[See
S.i_dn.ey
done
:
of
Jackson
no
certificates
even
them
for
the
to
a
small
related
to
what
(supra),
para
and
Powell,
Co.,
is
it
barristers
court
X
X
interest.
Earlier,
directly
is
Mitcf[el_l
(1974)
A.L.R.
in
which
work
now
but
immunity
enjoyed
was
public
respect
in
advice
(supra),
Powell
of
well
as
giving
immunity and
such
architects
to
negligently given and
were
of
tort
in
&
In general,
from suit
grounds
the
exercise
should
in
Jackson
Immunity
1-56].
on
they
their duties.
:
[See
professions
is
and
(1980)
1
A.C.
198;
Giannarelli
1
N.Z.L.R.
180;
417],
Medical
practitioners
be
in
do
v.
not
i
any
enjoy
on
the
skill
immunity
ground
and
care.
that
and
they
they
can
have
sued
failed
to
contract
exercise
or
tort
reasonable
-:20 : -
would
thus
appear
belonging
to
the
medical
claim
damages
It
though
from
a
fact
that
they are governed by
and
are
subject
for
to
on
the
that
the
person
the
right of such person to seek
State
has
suffered
Referring
Lhe
relations fi ip
patients
in
Medical
and/or
to
of
are
due
Councils
their
redress
The
Council, Act
of
control
to
immune
not
negligence.
Indian Medical
disciplinary
to
who
ground
the
of
India
profession,
the
Council
practitioners,
medical
is
no
Medical
solace
negligence
and
is not affected.
the changing position with regard to
between
the
the Un i t e d Kingdom,,
medical
practitioners
it has been said
and
:
t a nd today
"Where , then, does the doc tor
n
r e1 at ion to society?
To some extent, h e
s a
servant of the public, a p u b 1 i c which
s widely'
informed
m e d i cal
well)
on
(though no t always
Society
is
conditioned
to
paternal ism and the modern medical practitioner has
little wish to be paternalistic.
The new talk is
of 'producers and consumers' and the concept that
'he
who
pays
the
piper
cal s
the
t une '
1 s
established both within the profession and i n i t s
r e1 ationships with patients.
The co m p e tent
patient's inalienable rights to understand h i s
treatment and to accept or refuse it are now well
established." (pp.16-17)
"Consumerism is now firmly established in medical
practice - and this has been encouraged on a wide
scale by government in the United Kingdom through
the
: 21
Lhe
introduction- of
'charters'.
Complaint
is
central to this ethos - and the notion that blame
must be attributed,
and compensated, has a high
priority." (p , 192)
Smith
[Mason X McCall
4th Edn. ]
45 7
US
332
=
73
formed
societies
two
two
foundations
for
alternative
Ethics,
Arizona
medical
and
to provide
to
existing
the
health
maximum
fees
that
par t i c i pa t i ng
doctors
as
payment
in
full
for
performed
under
agreement,
under
as
pl a n s .
price
I t
fixing
the Sherman Act.
It
was
to
promote
es tabl i shed
held
a
plans
the s c h e d u-1 e
agreed
for
to
accept
patients
that
the
maximum
are
per
se
agreements,
was observed
with
insurance
of
services
medical
community
amongst
the doctors
county
care
and by agreement
i n s ured
Socj_e_ty,
County Me_di.cal
48,
medicine
fee-for-service
competitive
L. Ed.(2d)
Medical
and
Maricopa
v.
In A r i_z o n_a
;Law
fee
unlawful
:
"Nor does the fact doctors - rather than non
professionals - are th.e parties to the price
fixing
agreements
support
the
respondents’
position. ... The respondents claim for relief from
the per se rule is simply that the doctors'
agreement not to charge certain insureds more than
a fixed price facilitates the successful marketing
of an attractive insurance plan.
But the claim
that the price restraint will make it easier for
customer’s to pay does not distinguish the medical
profession from any other provider of goods or
services." [pp. 3489
*
, 51-52]
We
merely
that
medi cal
because
profession
medical
provisions
unable
therefore.
are,
the
of
they
Act
to
subscribe
t0
practitioners
be1 on9
to
the
purv i ew
of
the
are
outside
the
the
services
rendered
and
practitioners are not covered by Section 2(1)(o)
is
Section
available
made
2(1)(o)
contemplated
of
expression
is
the
medical
is
really
all
who
seek
has
also
been placed on
to
avail
within
the
the
said
that
service
of
w[iich
available
in
sub-clause
'consumer'
contained
in
Section
unable
uphold
are
'hires'
in
Section
of
are
word
to
this
2(1) (d) (i i)
has
would be
evident
from
in
latter
as
availed
of'
the
(ii)
2(1)(d)
contention.
been
to
reliance
'hires'
the
law
the
type
institutional
context,
We
services
urged
not
this
Act.
such
covered
in
are
In
the
'when
contained
thereof.
of
'avails
expression
and
of
as
an
the
practitioners
kind
Act.
Medical
open
definition
sense
of
the
and
the
same
the
of
of
Indian
users'
be
has
to
medical
by
enterprise
of
word
to
’He
service
commercial
a
Act,
indicative
namely,
contemplates,
potential
Act.
the
regard
to
Parliament
by
provisions
the
of
for
appearing
that having
has urged
Association,
'which
Salve,
Harish
Shri
view
t he
used
in
the
The
the
words
part
of
-:23 : -
Section 2(1) (d)(ii) .
the
after
Act of
word
'hires'
of.
The
earli e r .
[See
:
word
of
'use'
6th
the
expression
users'
in
the
has
to
be
construed
of
users'
services
rendered
contemplated
Shri
having
it
by
cannot.,
by
to
Parliament
'service'
as contained
aL
that
as
'avails
was
implicit
oneself of'.
p.
available
and,
the
to
to
Section
in
'service'
regard
The
1541].
made
definition
if so construed,
it
the
use
be
inferred
that
the
practitioners
are
not
within
the
be
covered
of
the
word
in Section 2(1) (o) .
Harish
Salve
has
also placed
of
the
expression
deficiency'
of
the Act which provides as
Section 2(1)(g)
indicated
what
is
of
therefore,
medical
the
same sense
Edn . ,
From
services',
'potential
expression
definition
by
'to avail
'which
in Section 2 (1) ( d ) ( i i)
'availing
definition
also means
D i_c t i.qnar y ,
Law
the
clarifies
only
in
'user'
'consumer'
means
in
2 ( 1 ) ( d ) ( i i )
clearly
has
of'
'or avails
words
Section
Parliament
amendment
said
Bl_ack_'_s
in
has been used
The word
potential
2(1)Co)
1993,
the
inserting
'hires'
word
Amendment
the
By
reliance
as
on
the
contained
follows
:
in
- :24 : -
deficiency" means any fault,
"Section 2(1)(g)
imperfect ion, shortcoming or inadequacy i n the
quality, nature and manner of performance which i s
r e q u i red t o b e maintained by or under any law
the time b e i ng in force o r has been undertaken to
be performed by a person i n pursuance of a contract
o r otherwise in relation t 0 any service;”
The
clause
of
submission
deficiency
the
shortcoming
Shr i
ascertained
the
basis
quality,
nature
and
manner
services
rendered by
on
the
basis
cannot
practitioner
se r v ice
expression
unable
any
of
it would be
fixed
of
a
of
ain
norms
be
s a id
as
def i ri e d
in
relevant
to
Act
the
1take
in
Section
14
of
lhe
be
granted
on
a
complain t
of
d e f i c i e ncy
in
respec t
note of
to
be
relating
to
that
medical
cannot
be
judged
therefore,
a
medical
ed
scope
deficiency
the
We
2(1)(o)
the
by
of
the
in s e r v
the prov is ions contained
indicate
the
has
been
context o f
said
ini perfection,
n o r ns
Section
filed
the
ice
const ruing
which
servi c e ,
and,
to
1Wh i 1 e
the Act
provisions of
fau1 t ,
medical ■ p rac t i t i oner
a
agree.
to
to
n
on
under
regard
with
inadequacy
that
s
under
efs
the
the
Act.
following
re 1
In
e fs
that
can
respect
can
ue
granted :
i)
return of
the charges paid by
the complainant.
[Clause c))
-;25 : -
ii)
as may be awarded as compensation
payment of such amount
the
consumer
for
any
consumer
due
to
the
negligence
to
injury
suffered
by
of
opposite
party.
or
loss
the
the
I
(d)]
[Clause
i i i )
of
removal
services
defects
the
Section 1 4 (1) (d)
the
A
determination
about
test
medical
therefore,
direction
H a n..axemen t C.ornm £t t.e_e,
of
the
House
v.
Q°.r_dan,
Lords
1981
Regional
Healjth
Governors
of
in
(1)
( 1957)
is
required
from
by
McNair
J.
his
Bolan
582 ,
a
number
of
WLR
24 6;
Maynard
Authority,
Bethlem
down
1 WLR
Royal
1984
purpose
which
earn
i n
the
for
for
of
jury
party.
damages
standard
the
opposite
foi
The
to
the
action
an
laid
of
the
in
as
tha t
to be made by applying
applied
practitioners
indicate
injury suffered
service
is
as
negligence.
in
deficiency
of Section 2(1)(g) has,
same
for loss or
is
negligence
the
to
consumer due
i
therefore,
would,
the compensation to be awarded
by
the
(e)]
[Clause
in question.
in
deficiencies
or
v.
Friern
Hospital,
v.
WLR
accepted
by
Wh i tehouse
West
M Idlands,
634 ;
1985
Hospital
:
[See
cases.
(1)
been
has
in
AC
S.idaway
v.
871],
In
: 26 :
(supra)
Bp lam
McNair J has
said
:
"But where you get a situation which involves the
use of some special skill or competence, then the
test as to whether there has been negligence or not
is not the lest of the man on the top of a Clapham
omnibus, because he has not got this special skill.
The test is
the standard of the ordinary skilled
man exercising and professing to have L h a t special
skill.
A man need not possess the highest expert
skill;
it
is well
established law that
it
is
sufficient if he exercises the ordinary skill of an
ordinary competent man exercising that particular
art.” [p.586]
In
surgeon
this
an
action
Court,
B.apu Ggdbole & Anr_. ,
for
negligence
in Laxraan Balakrishna
1969
(1)
SCR 206,
in
tort
J_p_shi
against
v,
a
T r i mb ak
has field:
"The duties wliich a doctor owes to his patient are
clear.
A person who holds himself out ready to
give medical advice arid treatment
impliedly
undertakes
that
he
is possessed
of
skill
and
knowledge for the purpose.
Such a person when
consulted by a patient owes him certain duties,
viz., a duty of care in deciding whether to
undertake the case, a duty of care in deciding what
treatment to give or
a duty of
care
in tlie
administration of that treatment.
A breach of any
of those duties gives a right of action for
negligence lo the patient.
The practitioner must
bring to his task a reasonable degree of skill and
knowledge and must exercise a reasonable degree of
care.
Neither the very highest nor a very low
degree of care and competence judged in the light
of the particular circumstances of each case
is
what lhe law require. [p . 213]
therefore,
is,
It
view
of
the
definition
tion
2(1)(g)
medical
excluded
by
from
practitioners
appearing
counsel
for
the
of
the National
Commission
the
complex
further
bodies
for
arise
in
the
of
regard
to
the
contained
in
Section
President
of
the
been
professio
Forum,
rendered
urged
learned
the
to
exclude
the Act
State
by
medi
that the
is
Commission
and
fully appre
which
may
arise
determination
that
issues
of
claims
is
before
for
negligence
i
followed' by
these
them
suit
in
not
is
tlie
of
Act
which
a
person
the
be
respect
of
the
T h e provisions
practitioners.
of
shall
for
lhe complicated questions which
compos i t i on
Forum
service
tfiey cannot
procedure
10
be
that
services rendered by medical
with
has
the ambit of
the determination of
respect
the
to
treated
is such
issues
determination
for
able
that
that
medical
District
the
be
must
in
Sec
in
contained
as
and
Act
that
Section 2(1)(o).
from
practitioners
composition
and
the
contention
Another
ciate
of
ambit
Lhe
hold
to
possible
"deficiency”
is not covered under
them
cal
of
not
District
Forum
are
that
the
who
has
provides
who
been or is qualified to be a District Judge and
is
or
the other two
- : 28 : -
members
shall
having
adequate
capacity
be
knowledge
in dealing
commerce,
law,
of
persons
with,
problems
regard
to
the
is
provided
in
Section
the
Judge
of
a
consultation
the
that
integrity
other
and
two
a
person
who
is
by
members
shall
standing,
or
having
relating
to
economics,
having
shown
affairs or
woman.
The composition of
the Act
the
in
the National
which provides
in
Court
and
ability,
of
or
knowledge
them
Commission
that
experi
problems
with,
industry,
accountancy,
of
a
Government
persons
and one
of
been
has
High
deal.ng
it
President
who
or
of
commerce,
administration,
Similarly,
the
State
be
or
affairs
Commission,
the
adequate
capacity
law,
public
by Section 20 of
that
Justice
of,
ence
Act
shown
economics,
public
State
the
Chief
the
with
to
standing,
having
be a woman.
of
appointed
Court
High
relating
the
of
16
be
or
them shall
composition
shall
Commission
or,
industry,
accountancy,
administration and one of
with
experience
or
and
integrity
ability,
shall
be
a
is governed
the President of
i
t li e
Commission
Judge
of
the
shall
Supreme
a
person
Court
to
be
be
Government after consultation with
and
four other members shall
who
a
or
who
lias
been
appointed
by
the
Central
is
the Chief Justice of
be persons of ability,
India
integrity
- : 29 : -
and
having
standing
having
capacity
shown
commerce,
economics,
law,
affairs
or
administration
It
thus
will
dealing
in
seen
be
or
knowledge
adequate
problems
with,
them
Forum is required to be a person who
to
public
a
the
of
woman.
District'
is or who has been or
be
a
District
Judge
State Commission
is
required
to be a person who
been
of
the
High
Court
required
to
qualified
relating
be
shall
President
the
that
of
one
or
industry,
accountancy,
and
of,
experience
President
the
and
is
the
of
i
i
Judge
the
National
Commission
is
lias
been
a
the
the
Consumer
Judge
Disputes
is
who
person
of
well
experience.
or
that
in case
the
majority
is
to prevail
be
out-voted
by
the
is
there
be
in
law
It
of
will
as
true
that
all
headed
are
considerable
by
a
judi
opinion,
the
opinion.of
members
should
have
the
means
which
submitted
and
that
who
been
members
in dealing with problems
doubt
is or
however,
other
experience
no
person who
therefore,
that
is
the
has
and
quirement
the
of
President
Agencies
has,
difference
and,
a
Court,
Redressal
cial
legal
to
Supreme
versed
the
and
is or who has
the
that
President
may
is
no
re
knowledge
or
there
adequate
relating to medicine.
decisions of
the
District Forum
the State Commission and the National
It
as
Commission have
- : 30 : -
to
that
majority
taken by
be
and
the Preside n't may be
may
it
in minority,
person well
versed
law
as
the
ing
deliberations
of
these
regards
absence
of
knowledge
or
on
the
sions.
As
member
having
in
the
adequate
with
the problems
the
persons
relating
be
to
possible
be
President
and
Agencies
a
bear
their
deci
have
will
about
requirement
a
dealing
experience
in
may
stated
that
to
have
to
medicine
it
as
members
are
chosen
the presence of a
But
a
in some cases
be
required
knowledge and experience
in dealing with problems
relating to
various
with
object
of
protection
viz.,
Act,
connected
fields
the
the
of
interests
and
said knowledge and experiencewould enable
consumer
disputes
consonance with
members
field
to
must
requirement of
the
have
the
which
before
up
coming
adequate
knowledge
or
services,
goods
consumers,
the
The
them
to handle
the
for
settlement
in
them
the
purpose
and
Act.
To say
or
experience
in
respect
that
of
in
the
the
which
i
the
complaint
is
made,
At
one
are
related
would
lead
to
impossible
in
the
District Forum and
they would have knowledge or experience
in
two
fields
would
goods
or
situations.
which
services
time
there
mean
relating
to
will
that
be
members
two
complaints
other
fields
in
would
respect
be
of
beyond
- : 31 : -
of
purview
the
Commission
there
may
fields other
ence
in
the
District
mean
that
Forum
the
be
members
than
the
in which
fields
knowledge
or
or
services
in
goods
Forum can entertain
purview
of
the
State
respect
of
the
a
National
Same
will
experi-
It
would
which
the
ou t s i de
the
the
position
Since
the
goods
i n respect of which complaint can be f i led unde
Act may relate
to number of
L h e member
the
of
have expertise
in
Consume r
Dispute
Redressal
field
to which
the goods or
led,
related.
the
respect of which complaint
the
parties
fields
indicated
their
findings
therefore,
pules
edge
and
to deal
be
to
in
on
said
Redressal
experience
with
place
experience
and
knowledge
it cannot be expected
fields
the
It will
be
the
the
will
have
in
the
basis
of
since
medicine,
issues which may
must
and
Agencies
in
that
al
would
that
the
mater
Act
the
Agencies
or
nece ssa ry
the
which
of
be
will
Commission.
be
State
roembers
the
experience'.
complaint
Commission.
or
knowledge
having
have
District
in
the
Forum,
the
members
enable
material.
that
the
members
no t
required
they
arise
to
them
are
of
not
before
at
It
cannot,
the
to
in
them
Consumer
have
knowl-
a
position
in
proceed-
-:32 : -
ings
ice
out
arising
of
making,
role
the
of
referred to
White has
Prof.
deficiency
in
lay
persons
decision
practitioners.
rendered by medical
Discussing
their notions
that
they act as
and
'some
from
reality'.
are
not
'Claims
the
The
other
view,
lay
be
may
has
White
Tribunal,
.he
of
lay
is
makers
present
on
law
his
a
decision
that
far
since
they
very
real
a
in
accordance
adjudication
of
seen
as
rules
of
entitlement.
preference
for
a
prof.
model
too
diverge
is
as Chairman,
to
and
faith
claimant
the
legal
the
the
and
in
technicality'
resolved
be
not
whether
according
to develop
however,
on
indicated
opportunity
merits
may
not
of
than
composed of a lawyer,
a
good
and
does
rules
based
rather
law
decision
dispute
the
prescribed
deserving
Prof.
that
experts,
the
with
to professional
'an antidote against excessive
guarantee
that
danger
fairness
reasonableness,
of
One
standards of conduct,
the application of general
in
in
two divergent views.
view holds that lay adjudicators are superior
judges
serv
the
complaints about
of
making
and
two lay members.
White,
would
adjudication
wi th
Tribunal
legal
Such
present
that
an
combines
competence
and
- : 33 :
participation
confidence
in
social
experience
White
says
key
role of
do
not
the
process
and
represented by
the
decision
makers.
fairness
apart
their
from
lay members would
too
full
of
before
them
are
not
reduced
process
designed
C . A.
White
resolve
In
the
t hi e
State
matter
making by
litigants
spectators
[See
in
:
a
Prof.
Justice,
of
of
the
constitution
arid
the
compete rice
members having knowledge
with problems
relating
the
and
and
that
disputes.
Lheir
the
procedures
of
Commission
Act combines with legal
with
that
ensure
passive
Prof.
Administration
The
:
to
and
t hi e
widen
2nd
p. 345].
Edition,
Forum,
to
in ensuring
mystery
public
experience,
of
breadth
be
become
Robin
gene-al
tc
lead
would
of
the
that
members
lay
of
object
interests of
to
of
Commission
the merits of
and
the
which
Act,
the
lay decision
experience
fields
various
purpose
National
District
are
namely,
in
dealing
connected
protection
the consumers.
Moreover,
t fi e r e
is
a
further
safeguard
of
an
•i'
- : 34 : -
appeal
against
State
Commission
to
Commission
the
and
this Court against
It
Disputes
Consumer
them
As
agencies
for
in
proceed
the
opposite
'
it
to
evidence
the
Agencies
is
deficiency
the
matter
on
in
procedure
State
Commission.
as
such
to
render
arising
in
a
rendered
by
a
issues
service
the
of
composition
determination of
it
may
settle
the
to
party,
where
that
consumer
its
brought
the
stated
be
by
of
that
under
Section
the
shall
Forum
basis
of
complainant
and
the
on
denies
or
disputes
1
contained
in
thu
complaint,
or
(ii)
brought
to
its,
notice
by
the
complainant
evidence
where the opposite party omits or
represent
coming
the
party
opposite
/
issues
(i)
disputes
notice
the
District
the
these
followed by
to be
of
provided
is
allegations
basis
the National
that
adjudicating
regards
iconsideration
13(2) (b),
the
said
the
by
the
further appeal, to
Commission and a
Redressal
regarding
made
order
to
Forum
practitioner.
medical
up
the
be
for
unsuitable
complaint
against
the order made by
therefore,
cannot,
by
the National
District
lhe
made
order
his
case
within
the
fails
t !■ «e
to
given
on
take any action
by
the
Forum.
the
to
In
-:35:-
Section
13(4)
of
District
Forum
shall
the
civil
" (i)
[
is
have
the
same
the
Code
in respect
of
the
of
powers
Civil
Lhat
the
vested
in
provided
as
are
procedure
while
following matters:
the summoning and enforcing attendance of
any
defendant
or witness
and examining
the witness on oath;
the discovery
and production of any
document or other material object
producible as evidence;
(iii)
the
(i v)
the
requisitioning of the report of the
concerned
analysis or test from- the
appropriate laboratory
or from any other
relevantsource;
reception of evidence on affidavits;
issuing
of
any
commission
examination of any witness and
(Vi)
any other
same
provisions
the
for
(
1
matter which may be prescribed.”
apply
to
proceedings
before
the
Stale
the
National
Commission.
It
has
been
proceedings
involving
negligence
in
the
matter
Commission
that
it
( i i )
( v )
The
further
Act
under
court
trying a suit
the
rendering
complicated
and
services
by
questions
a
medical
requiring
practitioner
evidence
of
would
experts
urged
of
raise
to
be
in
nature
not
suitable
1s
no
consumer
of
determinaiion
the
basis
for determine tion of
compl
ori
trial
involving
doubt
that
recording
complaint
about deficiency
in
but
complicated
and
the
of
on
the
wrong
the
patient
One
or
other
in
all
complaints
se rv i ce s
by
a
which
do
not
raise
d e f i c i ency
in
s e r v ice
not
cases
be
so
injection
allergic
without
looking
1
swabs
a
giving
(1967)
of
of
by
based on
or
the
course
a
in
arise
may
the performance
or
limb
patient
card containing
Malaysia.
quest
medical
medical
such
may
be
faults which can b e ieasily established such as
the wrong
is
11
$ e r vices
re n d e r i n g
questions
questions.
ted
ground
would
be
and
the
med i c a 1
may
to obvious
removal
in
summary
affidavits
□f
experts
0f
in service
There
practitioner.
the
this
deficie ncy
about
evidence
rendering
practi tioner;
due
of
is
Act
the
c o mp 1 i c a t e d
somet i roes
requiring
negligence
under
disputes
an
warning
WLR
813
often reads about
of
such
into
[as
n Ch i nk e ow
P.C.)
use
anesthetic
items
of
or
of
leaving
operating
tncidents
the
an
a
drug
the
to
ou t
which
patient
Government
wrong
ns i de
equipment
in
operation
of
of
gas
during
the
patient
after
surgery.
newspapers.
The
- : 37 : -
issues
arising
Consumer
the
the
of
by
disposed
speedily
by
in
should
Act,
In
asked
of
to
Act
of
experts,
ci v i1
the
0f
the
Act
which
s hal 1
be
in
add i t i on
of
any
other
preserves
the
right
of
court
for' necessary
hold
that
Disputes
the
on
law
the
to
ground
of
Agencies
followed
is
determining
the
issues
arising
relief.
by
the
medical
included
in
the
expression
the
that
by
of
of
the
time
being
in
force,
approach
the
civil
to
unable
therefore,
of
on
the
the
said
before
service'
provisions
derogation
are,
or
be
in
practitioners are
rendered
the Act.
appropriate
composition
Redressal
which
for
consumer
We
requiring
can
the
for
the
complainant
not
and
in such
under
issues
no
the
prescribes
relief.
procedure
of
court
is
there
Agencies
be
followed
being
and
complicated
involving
can
n service
the
by
cases
is
that
Agencies
Redressal
provisions
2(1)(o)
procedure
adjudicated
evidence
approach
Section 3
11
the
be
not
such
in
regarding deficiency
complaints
recording
thp
Disputes
reason why co hi plaints
cases
complaints
as
Consumer
the
ground
of
the
Agencies
for
them,
not
to
the
service
intended
defined
in
to
be
Section
- : 38 : -
in
Keeping
’service'
of
definition
construed by
as
(supra),
view
from
services
ambit
the
Authori ty
width of
rendered by
a medical
the main
0f
2(l)(o)
Section
the
reason to cut
the
exclude
the
of
in Lucknow peyeloppent
wp find no pl aus i bl e
practitioner
amplitude
in the main part of
this Court
that part so as to
wide
the
down
Section
part
of
the
exclusionary
2(1)(o) .
>
t!We
part of
may
the definition to see whether such service
ed by the said part.
main part service
confidence and,
personal
2(1)(o)
the
well
it
recognised
from the
or
under
(ii)
relationship between
is
the patient
trust
of
in the nature of
and
contract
service
rendered by the
medical
is not
’service’
under
Section
contention of Shri
Salve
ignores
the
This
the
is
distinction
between
'contract
for services'.
of England,
4th Edn.,
Vol.
and
excludes
a
to the patient
the Act.
that
a
service'
Laws
of
and
therefore,
service and
practitioner
exclud
service.
practitioner
medical
is
free of charge;
(1)
Salve has urged
Shri
of
The exclusionary part
rendered
of' personal
a contract
a
t 0 consider
now proceed
16,
a
[See
para 501;
'contract
:
of
Halsbury’s
PharanPadhar^
- : 39: -
Works Ltd,
Chemical
p.
157].
whereby
one
professional
is not
control
and
uses
but exercises
p.
manner
of
1 K.B.
p.
performance .
543 ;
159]. .
p.
We
entertain
of
service"
chosen
^instead
the expression
the
Oxford
implies
to
its mode
:
Stroud's
Judicial
v.
He a
doubt
Laundry Cq .
Works
that
(supra)
Parliamentary
accepted distinction between
and "contract for
deliberately
of
Simmons
this well
skill
involves an obligation
See
no
:
service'
performed and as
[
54 0;
[See
and Dharangadhara Che B i c al
draftsman was aware of
"contract
to be
the
in
technical-
of
'contract
and servant and
5th Edn.,
Dictionary,
A
in the work
to obey orders
at
or
e . g.
direction
to detailed
subject
professional
1134].
relationship of master
(1910)
for another
his own knowledge and discretion.
Companion to Law,
and
to or
152 at
contract
a!
services
render
to
services,
or technical
implies
services'
for
undertakes
party
performance of which he
and
gtafc o f Saurashfra, 1957 SCR
v.
'contract
A
expression
'contract
'contract
for
and
services"
of
has
service'
services',
in
the
I
■ exc1 usionary
2(l)(o).
The
part of
reason
regarded as a consumer
his
employee
the definition of
'service'
an
employer
being
in
that
respect of
in purtuance of
in
Section
cannot
be
the services rendered by
a contract of
employment.
By
-:40s-
nature
The
’personal'
the adjective
affixing
to
the contracts which are excluded is
of
said adjective only emphasizes that what
excluded
of
is personal
personal
2(1) (o)
service only.
service"
must,
by an employee
rendered
services
I
construed
be
altered.
not
is'sought to
expression
The
in the exclusionary
therefore,
the
the word "service"
"contract
Section
of
part
as
be
excluding
to his employer
the
under
the•
I
contract of personal
It
medical
is no doubt
services
that
true
the
patient
and a
practitioner
certain degree of mutual
the
ambit of theIexpression
.
"service",?’’
a
service from the
confidence
rendered by
the
carries
between
within
and trust and,
medical
regarded as services of personal
relationship
it
therefore,
practitioner
can
nature but since there
be
is no
Relationship of master and servant between the doctor and the
patient the contract between the medical
patient
cannot be
practitioner
treated as a contract of personal
but
is a contract for services and the service
the
medical
contract
definition
Act.
practitioner
is
not
of
covered by
'service'
to
his
service
rendered
by
under
such
a
part
of
the
in Section 2(1)(o)
of
the
patient
the exclusionary
contained
and his!
- : 41: -
Rajeev Dhavan has,
Shri
the
'contract of
expression
of domestic servants only.
connotation and has been construed
known legal
right
to seek enforcement of
Specific Relief Act.
For
service has been held
to cover
The High Commissioner
7 5 I . A . 225 ;
L.R.
1959 SCR
if
1236].
there
for
a civil
and p r ■
(1949)
University
his
employer
from
"free
a
to
excluded
rendered
between-
in
be
other part
service
and
would
in the
personal
services
rendered by the doctor
purview
of
Pe1 hi ,
of
servant
services
under Section 2(1)(o)
[See
Satya Charpn Lan,
master and
the-
managing
L.R.
the
services
the
( 1948)
a contract of
the person availing his
The
well
the
I ,M ■ Lal 1 ,
S . B . Pu t, t v .
There can be
exclusionary clause
a
has
in the context
servant,
event
’service’
this
in the University.
India v .
is relationship of
doctor ’and.
in
such a contract under
R qa K i ssendas P h a n u k q v.
I.A.128;
77
employment
that purpose a contract of personal
agents of a company and a professor
:
service’
’personal
in
contained
find any merit
We do not
expression
The
submission.
the
service’
personal
that
submitted
2,(1) (o) of the Act has to be confined to
Section
of
however,
of
that
expression
the
the Act by virtue of
the
said definition.
of
exclusionary clause
of
charge".
relates
The
to
medical
: 42
:
practitioners, Government hospita 1s/nursA ng hones and private
homes
hospitals/nursing
hospitals") broadly
fall
(hereinafter
"doctors
called
in three categories
rendered free of charge to
the said services.
i)
where services are
everybody availing
ii)
where charges are required to be paid by
everybody availing the services and
iii)
where charges are required to be paid by
persons availing services but certain
categories of persons who cannot afford to
pay are rendered service free of charges.-
There
is no difficulty
in
respect
Doctors and hospitals who render
to
whatsoever
of
first
categories.
without any
service
every person availing
two
the service
within the ambit of "service" under Section 2(1)
the
Act.
The payment of
a
purposes only would not alter
and
concerned,
all
hospitals.
since
So
the service
token
the position
is
2(1)
(o)
of the Act.
and hospitals do provide
belonging
free
for
in
(o)
not
of
registration
respect of such
category
is
rendered on payment basis
to
far as
the persons they would clearly
Section
amount
charge
would
fall
doctors
and
the
fall
second
within the ambit
of
The third category of
doctors
service
patients
to the poor class but
to
some of
the bulk of
the
the
service
is
- : 43 : to
rendered
the patients on payment
incurred for providing
the
from
service
rendered
patients
undoubtedly
(o)
of
fall
income
patients.
The
within the
to
paying
Section
2(1)
hospitals
ambit of
the Act.
The question
service rendered
in
hospitals
for our consideration is whether
to patients
category
(iii)
opinion the question has
this context
of "coi^umers"
in
our
to be answered
in
the negative.
In
for
in mind that
to bear
the protection of
on April
the Act has
the
interests
the guidelines
contained
Resolution
passed
9,
These
1985.
by
their
population as consumers" and "encouraging high
conduct
distribution
of
protection
that
tection
for
for
goods
and services
is envisaged by
consumers
in the
those engaged
the
as a class.
to
the
Act
The
is,
the
guidelines
to "achieving or maintaining adequate
ethical
the
In
refer
of
of
the Act.
Protect!-on
Assembly
virtue
of
the background of
Consumer
U.N.General
charge by the doctors and
excluded by
is
the
(o)
is necessary
it
been enacted "to provide
the
fee of
clause "in Section 2(1)
exclusionary
in
the -paying
to
by such doctors and
service
the
free service are met out of
rendered
expenses
The
basis.
protection
for
levels
protection
and
consumers".
The
therefore,
pro
word
"users"
(in
- : 44 : plural),
of
in the phrase
'potential
users'
in Section 2(1)
(o)
the Act also gives an indication that consumers as a class
are contemplated.
The definition of
in Section 2(b)
the Act which
of
voluntary consumer association,
of
Section
association or
consumer
where there are numerous consumers,
on
and clauses
12 which enable a complaint
or
of
behalf
for
the
interested,
also lend support
to
the
protect
interests of
to
to be
having
of
the view
to
protection
would
though they are
is
difficult
achieve
those
only
be
the people
to conceive
such
a
result.
and
(c)
filed
by
any
consumers
the same
interest,
consumers
that the Act
to
so
seeks
hold
To
consumers as a class.
who can afford
denied
(b)
all
otherwise would mean that the protection of
available
(ii),
more
or
one
benefit
contained
under clause
includes,
any
recognised
'complainant'
the Act would
to
pay
those who cannot
and
be
such
afford,
so
It
who need the protection more.
that
the
legislature
Another consequence of
intended
to
adopting
a
i
construction,
which would restrict
to persons who can afford
to pay
for
the
to
those
and
deny
such protection
position
to pay
for such services,
them
and
quality
of service
the protection of
services availed
who are
would be
rendered at
an
Act
the
that
not
in
by
a
the standard
establishment
would
- : 45 : -
better
such
would
in a position to pay
quality for persons who are
the standard and quality of such
service while
the
service without payment.
who
avail
the services by doctors
category
(iii),
are
sons
footing
and others avail
service
the
the
fact
and
doctors and hospitals work on commercial
incurred for providing services
patients
who are not
met
from
out of
services
hospitals
overall
Act
the
may
rendered to paying patients.
not be commercial
would
not
be
the objectives
possible
hospitals
differently.
We
situation
the
belonging
persons
provided services
service
which
the
of
and
the
charge
to
charges
are
hospitals
The
Government
and
but
on
the scheme of
the
the
treat
the
Government
the view
that
in
to "poor
class”
to
are pf
free of charge are
is hired or
Most
and
that sense
in
in
same
the
lines
earned by such doctors
consideration of
it
on
free of
in a position to bear
income
per
All
free of charge.
expenses
Such
of them pay for the
that some
the same
for
hospitals
treated
required to be
irrespective of
pay
the object of the Act.
consequence would defeat
for
service
inferior for person who cannot afford to
be
such service and who avail
a
a higher standard and of
It would be of
cease to be uniform.
availed of
such
who
the beneficiaries of
by
the "paying
a
are
the
class".
46
We
are,
the
therefore,
falling
hospitals
and
doctors
opinion that service
of
that part of
in
irrespective of
the
free
of charge,
would nevertheless fall
the
expression ’’service"
the
Act.
(d)
who
are
the "beneficiaries" and
as
such
within the definition of "consumer" under Section
2(1)
free
further of
service are
in category
falling
charge
the service
charge,
does not
rendered at
fall
within the
fall
within
the
rendered by a medical
is not
rendering
the
where
availing
that
even
free
of
ambit of Section 2(1)(o)
of
is
ambit of
being
concerned,
-the
Section 2(1)(o)
officer employed
service
(Govern
i.e.,
Dhavan
the hospital,
in so far as the hospital
service would
(i),
everybody
to
it has been urged by Shri
services,
Act
the hospitais/nursing homes
rendered free of
are
though
who
the view
the Act.
services
is
of
that persons
We are
ment and non-Government)
it
within the ambit
of
In respect of
the
is rendered
(o)
of
the
the service
as defined
(iii)
category
in Section 2(1)
rendered
come
fact
by
rendered
in the
said
since
hospital
free of charge because
said medical
officer receives amoluments by way of salary
employment
I
in
the hospital.
tention. : The medical
officer
There
who
is no merit
is employed
in
in this
the
for
con-
the hospital
-:47:the service on behalf of the hospital
renders
and
if
fall
within
the ambit of Section 2(1)
the same service cannot be
Section 2(1)(o)
for
officer
medical
payment
hospital
the
reason that
the hospital
in
in the hospital.
employment
the-
as rendered by the hospital,
the service,
charge,
the
of
salary
The
administration
to
to
and
receives
paid
to whom
by
rendered to him.
service
employee
medical
continue
to be service
outside
service
is
hospital
cannot
be
the person availing the
to make
free of
availing
the person
in respect
rendered
officer to such a person would,
by
of
the
therefore,
charge and would
be
the purview of Section 2(1) (o) .
A contention has
Government
ices
the
officer
The service
rendered
by
the
the service a "consumer'’ under Section 2(1) (d)
the
for
salary
officer
medical
the employee medical
for his benefit so as
under
is no direct nexus between
regarded as payment made on behalf of
service or
of
it has been rendered by a
the person
is
not
free
treated as service
the
that
does
being
(o),
who
There
salary
administration
rendered.
administration
are
provisions
also been raised that even
in the
hospitais/health centres/dispens aries where
serv
rendered free of charge to all
of
the Act shall
apply because
the
the
patients
the
expenses
.of
running the said hospitals are
Consolidated Fund which
tax payers.
We Jo not
(i)
is
it
payer's
is an
and
upon
imposition
to pay .
capac i ty
Endowments
the
Mutt ,
ice
serving
tors
:
Sri
1akshmindra
service at
the
in
the
we
of
general 1-y
upon
his
Hindu
Reli q ious
The
service
serv
though
to be so because
a
- belonging
the
tax payer.
employed
and
that such
doc
doctors
the
by
hospital
charge for the
such
Sr i
tax paid
Government
hospita 1s/nursing
whether Government or private
tax'
of
to be
individual
are
the
to
quantum
a
and
it
reference
Th i r tha Swami a r of
not cease
the service happens
to
(ii)
the
at pp.104 0- 4 1 ].
1005
in the hospitals,
working
tax
The Commissioner ,
at the said hospital
Adverting
the
common burden,
tax payer depends
free of charge does
person availing
without
the payer o f
treated as a consideration or
rendered
rendered
the
availing the
person
cannot be
1954 SCR
that;
for public purpose w i thout
[See
Nadra s_ v •
are
is enforced by law;
t o b e conferred on
the
a tax
characteristics of
is part of
it
(i i i)
Shi r u r
benef i t
the
agree.
the payment
imposition made
the
taxes paid by
imposed under statutory power
consent and
any special
the
raised from
is
essential
The
met by appropriation from
view
homes/dispens aries/
to categories
(ii)
-:49 : and
above would be covered by the definition of
(ill)
of
to the provisions
the Act and as such are amenable
ice" under
the
the Act along with the management of
"serv
etc.
hospital,
jointly;and severally.
may,
There
taken
insurance policy
an
charges for consultation,
the
by
borne
receiving the
has
been
payment
under
the
for
the
which would be
practitioner
therefore,
'service'
in Section 2(1)
be
where as
of
made by
The
fall
(o)
a part of
Section 2(1)
practitioner,
insurance
the
company
said to be free of
of the Ac t .
medical
charge
the expression
So also there
may
service
the
the conditions of
f a m i 1 y members dependent
and wouldt
person
the
the service which
within the ambit of
to him by a medical
charge
the
the
rendering of such service by
cannot be
bears the expense of
ployee and hie
rendered
the medical
to him by
and would,
employer
In such a case
is a beneficiary of
treatment
all
has
treatment are
diagnosis and medical
insurance policy.
medical
cases
for roedi-care whereunder
insurance company.
rendered
case where a person
be a
however,
treatment of
on him.
the
The
service
practitioner would not be
therefore,
constitute
em-
service
free
under
(o).
Shri
A.M.Singhvi has
invited our attention to
the
7
-:50 : -
following observations of
Jordan 8 Anr ■ ,
(1980)
in Wh i tehouse
Lord Denning M . R .
1 All.E.R.
650
v.
:
"Take
heed
of
what has happened
in
the
United
States.
'Medical malpractice' cases there are very
worrying,
especially as they are tried
by
juries
who have sympathy for the patient and none for
the
doctor, who is insured.
The damages are
colossal.
The
doctors
insure but the premiums
become
very
high
: and these have to be passed on in
fees
to
the patients.
Experienced practitioners are
known
to have refused to treat patients for fear of being
accused of negligence.
Young men are even deterred
from
entering the profession because of the
risks
involved.
In the interests of all, we must
avoid
such
consequences
in England.
Not only
must
we
avoid
excessive
damages.
We must
say,
and
say
firmly,
that, in a professional man, an
error
of
judgment is not negligent." [p.658]
Relying
on these observations learned counsel
if
painted
a
brought
within the purview of
be
grim picture
increase
huge
in
that
medical
the Act
medical
as
medicine and
that medical
practitioners
to
emergencies
and
medical
against
frivolous
blackmail.
first
tremendous
there
increase
it
of
of
in defensive
refuse
may
would
account
to
attend
be
no
safeguards
and vexatious complaints
and
consequent
will
We do not entertain such an apprehension.
place,
observations
on
expenditure
insurance charges as well
are
practitioners
the consequence
has
stated
that
the
Lord Denning were
made
in
may
be
In the
aforementioned
the
context
of
:
: 51
i
substantive
of
negligence against medical
the House of Lords.
the
for compensation on
before
disputes
of
as .reported
in the All
relating
to medical
number.
[See
Upendra Baxi
the
factors
substantive
in the
law
the ground of negligence
such
Redressal
inexpensive
such claims.
a
the High
a
An analytical
a total Inumber of
Courts
India Reporter,
the
and
the period from 1975
Galanter reveals that
cases
Multinational
By
Agencies
360 cases related to claims under
:
appeal,
Disputes
were decided by
cases
tort
in
consumer
the .Consumer
to 1985 made by Prof.
One of
error
within the purview of
tort litigation in India during
study of
and
"an
E.R. 12 67] .
All.
The Act only provides an
the Act.
Court,
the
court would equally apply to
speedy remedy for adjudication of
416
too
to determination of
principles which apply
claim before the civil
under
(1)
no change is brought about
AcL
governing claims
and
1981
:
practitioners fall
that medical
holding
[See
ground
There
is not negligent" has not been approved,
judgment
the
practitioners.
in the said observations that
sentence
last
by
law governing actions for damages on tha
out
and
this
of
which
Motor Vehicles Act
and
malpractice were
only
three
and Thornes Paul,
Mass
Disasters
pp.
214-218].
liability,
The Bhopal
Case,
inhibiting
such claims
is
the
in
requirement
: 52
regarding court
action
court
the
Act
injury
that must be paid by
it would be possible
to
deficiency
for persons who
in service
conditions
prevailing
compared with those
As
malpractice
in
India
in England and
regards
litigation by
the
in
have
an
Since
flo
und^r
$
suffered
by
medica-l
to seek
[redress.
rendered
practitioners or at hospitals/nursing homes
The
in
paid on a complaint filed
is required to be
due
the plaintiff
ground of negligence.
damages on the
for
fee
fee
:
cannot,
therefore,
be
the United States.
criticism
of
the
the British judiciary
American
it has
said :
"Discussion of these important issues is
sometimes
clouded
by an over-simplistic
comparison
between
England
and
American
"malpractice"
litigation.
Professor
Miller
noted in 1986
that
malpractice
claims were brought in the United States nearly
10
times as often as in England, and that this is
due
to
a
complex combination
of
factors,
including
cultural
differences,
judicial
attitudes,
differences in the legal system and the rules about
costs.
She
points
to
the
deterrent
value
of
malpractice
litigation
and
resent
some
of
the
criticisms of the American system expressed by
the
British
judiciary.
Interestingly,
in
1989
the
number of medical negligence claims and the size q f
medical
malpractice insurance premiums started
to
fall in New York, California and many other states.
It
is
thought
that
this
is
due
in
part
to
legislation in a number of states limiting
medical
malpractice claims, an in part to improved
patient
care as a result of litigation."
been
: 53 :
[Jackson
X Powell’On Professional
Edn., para 6-25, p. 466]
Dealing
negligence cases
with
the
present
in the United Kingdom
Liability,
state
of
3rd
medical
it has been observed
”The:.legal system, then, is faced with the
classic
problem
of
doing justice to
both
parties.
The
fears of the medical profession must be taken
into
account while the legitimate claims of the
patient
cannot be i gnored .
Medical
negligence apart, in practice, the
courts
are increasingly reluctant to interfere in clinical
matters.
What was once perceived as a legal threat
to medicine has disappeared a decade later.
While
the
court
will
accept the absolute
right
of
a
patient to refuse treatment, they will, at the same
time,
refuse to dictate to doctors what
treatment
they should give.
Indeed, the fear could be
that,
if
anything,
the pendulum has swung
too
far
in
favour of therapeutic imraunity . "[p . 16]
"It
would
be a mistake to think
of
doctors land
hospitals
as
easy targets
for
the
dissatisfied
patient.
it is still very difficult to
raise
an
action of medical negligence in Britain; some, such
as
the
Association
of
the
Victims
of
Medical
Accidents,
would
say
that
it
is
unacceptably
difficult.
Not
only
are
there
practical
difficulties
in linking the plaintiff’s injury
to
medical
treatment,
but the standard
of
care
in
medical
negligence
cases
is
still
effectively
defined
by
the
profession
itself.
All
these
factors,
together
with
the
sheer
expense
of
bringing
legal action an.d the denial of 1 ?ga 1
aid
to all out the poorest, operate to inhibit
medical
litigation
in a way in which the American
system,
with
its
contingency
fees
and
its
sympathetic
juries, does not.
:
-:54 : -
It
is difficult to single out any one
cause
for
what increase there has been in the volume
of
medical
negligence actions in the United
Kingdom.
A
common
explanation
is that
there
are,
quite
simply, more medical accidents occurring whether
this
be
due
to increased
pressure
on
hospital
facilities,
to falling standards
of
professional
competence
or,
more
probably,
to
the
everincreasing complexity of therapeutic and diagnostic
methods." [ p . 191]
"A
patient
who
has been injured
by
an
act
of
medical
negligence has suffered in a way which
is
recognised by the law - and by the public at
large
as
deserving compensation.
This
loss
may
be
continuing
and what may seem like an unduly
large
award
may
be little more than that
sum
which
is
required to compensate him for such matters as loss
of
future earnings and the future cost of
medical
or nursing care.
To deny a legitimate claim or
to
restrict
arbitrarily
the size of an
award
would
amount to substantial injustice.
After all, there
is ino
difference
in
legal
theory
between
the
plaintiff
injured through medical
negligence
and
the
plaintiff
injured in an industrial
or
motor
accident." [pp. 192-93]
Ethics,
[Mason's Law and Medical
4th Edn.]
4
view
of
therefore,
We
are,
the
consequences
v.
be excluded
from the purview of
(supra)
On the basis of
the
following conclusions:
the
that
in
Denning
in
persuaded to hold
indicated
Whitehouse
Jorden
not
medical
by
Lord
practitioners
should
the Act.
above discussion we arrive
at
-:55s-
(1)
rendered to a patient by
Service
(except
practitioner
service
tation,
under
consul
personal
service),
by way of
diagnosis and
treatment,
both medicinal
surgical,
in Section 2(l)(o)
fact
(2)
The
the
medical
tbat medical
profession
disciplinary
and/or
Act would not exclude the
A
Council
of
Councils
constituted
Indian Medical
Prom
practitioner,
tine
practitioner
to
rendereid
Council
services rendered by
a
service'
'contract
absence of a
master and servant between
service'.
Medical
them
the Act.
In • the
services'.
service
the
'contra(Jt of -personal
distinguished
subject
to
the
the
'service'
practitioners belong to
Jtftte Medical
under the provisions of
and
the Act.
of
and are
of
control
from the ambit of
ambit of
within the
would fall
as defined
(3)
renders
doctor
the
to every patient or
free of charge
a contract of
India
where
medical
a
service
the
Suth (service
to
be
personal
for
relationship
of
patient and
medical
a
medical
rendered by
the patient cannot be
under a
has
'contract
is service
regarded
of
as
personal
rendered under a
-:56 : -
'contract for personal
clause
exclusionary
by
The expression
(4)
in Section 2(1)(o)
contracts
of
medical
rendered
service
the
employer unde r
Section 2(1)(o)
Service
(5)
of
medical
where
home
employer.
Th$
officer
his
to
employment would
'serv ice
*
defined
as
fre« of charge by a
to
a
be
in
a
service is are
to
defined
in Section 2(1)(o)
everybody,
for
of a
token amount
the
hospitai/nursing
medical
hospital/Nursing home or
officer employed in
charge
position.
of
the Act.
rendered
such
the
for the purpose
tj e d i c a 1
a
to
only
include
the
to
contract of
practitioner attached
a
would
officer
purvi ew of
the
outside
of domestic servants
service
by
service'
the Act cannot be confined
employment of a medical
rendering
of
of the Act.
of personal
expression
said
definition
the
'contract
for employment
the
and
of
in Section 2(1)(o)
contained
'service'
and is not covered
services'
hospital/Nursing
would not
of
free
of
"service"
as
rendered
be
the Act.
The payment
registration purpose only
at
homie
the
would
not
alter
-157:-
(6)
Service
rendered at a non-Government 1 hospi-
is made
tal/Nursing home'where no charge whatsoever
from
any
person
the
availing
all
and
service
patients
(rich and poor)
are given free service
is outside
the purview of
the
as
payment of
only
in Section 2(1) (o)
defined
at
'service’
expression
a token amount for
the
of
The
Act.
registration
purpose
the hospita 1/Nursing home would not
alter
the position.
Service
(7)
at
rendered
non-Government
a
hospital/Nursing home where charges are
required to
be paid by the persons
availing such services falls
within
the expression
the purview of
defined in Section 2(1)(o )
of
(8)
at
rendered
Service
'service'
as
the Act.
non - Government
a
hospital/Nursing home where
charges are required
be paid by persons who are
in a position, to pay and
persons
who
service free
of
of
service
afford to
of charge would
the expression
2(1)Co)
the
cannot
the Act
is
'service'
fall
pay
within the
irrespective of
rendered
rendered
are
as defined
the
to
in
ambit
Section
fact
free of charge to
that
persons
- : 58 : who are not
Free
in a position to pay
service,
would
also be
recipient a "consumer” under
(9)
' Service
for such services.
the
Act.
at
a
rendered
and
"service"
Government
hospital/heal th
centre/dispensary where no
whatsoever
made
is
services and all
free
from any person
is outside
service -
the
charge
are given
purview of
the
ex
in Section 2(1)(o)
pression
'service'
the Act.
The payment
of
a
tration
purpose only
at
the hospital/nursing
as defined
the
availing
(rich and poor)
patients
the
token amount
of
regis
for
home
would not alter the position.
(10)
Service
dered
Government
a
*
centre/dispensar
hospital/heal th
are
at
rendered
rendered on payment of charges and
free of charge
services would
fall
sion
'service'
Act
irrespective of
within
free of
for
service.
the
charge
the
fact
ren
also
persons availing such
ambit of
expres
the
in Section 2(l)(o)
as defined
rendered
such
to other
services
where
that
the
of
the
service
is
to persons who do not
Free
service
would
also
pay
be
- : 59 : ’’service"
and the
the
a "consumer" under
recipient
Act.
Service
(11)
rendered by a
hospital/nursing home
cannot be
regarded as serv i c e
if
person availing the
rendered free of charge,
has
service
the
insurance policy
taken an
the
whereunder
care
for
treatment
are borne
and medical
insurance
company
and
within the
ambit of
'service'
2 (1) (o)
the Act.
Similarly,
(12)
of
service,
medical
where,
treatment
members dependent
such
would
not be
'service'
In
judgment
of
on him,
free
of
as defined
or
a
of
the National
would
fall
in Section
the conditions
bea rs
the
expenses
family
to
rendered
members
by
hospita 1/nursing
would
of
conclusions
of
family
nis
and
serv i c e
charge and
the
the
of
under Section 2(1) (o)
view
by
a part
the
and his
practitioner
medical
as
medical
consultation,
service
an e m p 1 o y e e
of
employee
an
such
e m p1 oyer
the
for
charges
diagnosis
of
practitioner o r
medical
a
home
constitute
the Act.
aforementioned
Commission dated April
21,
1992
the
in
-:60:-
First
Appeal
Anr .
v.
No.
Sat .
November
v.
Louie & Anr.
activity
the
P .Nair]
and
in First Appeal
No.
Vasantha
1992
16,
[M/s Cosmopolitan
1991
48 of
of providing
[Dr.
Sr.
holding
that
97 of 1991
assistance
medical
w i thi n
the
scope of
defined
in Section 2(1)(o)
of
deficiency
any
party can
aggrieved
jurisdiction,
S . L . P.(Civi1)
and
filed
against
National
No.
the
the said
Commission
in
the Consumer
6885/92,
judgment have
charge
2(1)(o)
the
of
opposite party was
the Act.
The
question whether services
'service'
Tribunal
are
has
rendered
patients.avai1ing services
the
under
the
in
having
Nos.
688/93 and
and
351/93
dismissed.
1993
The
in O.P.
treatment that was given to
the complainant
it does not constitute
service
6950/92
to be
as
event
Forum
its judgment dated May 3,
deceased husband of
to
Appeal
and Civil
Nos.
such
remedies provided
93/92 has held that since the
belonging
the
in the
before
must be upheld
689/93
the Act and that
the
Invoke
by filing a complaint
Act
'service ’
performance of
in the
profession
expression
the
of
payment
for
carried on by hospi tais and members of the medical
falls
X
dated
judgment
Pathurama & Anr.]
Kannol il
Suit.
the
Hospitals
the
in the nursing
totally
free
as defined
not
of
home
any
in Section
considered
the
free of charge
to
all
said nursing
home
or
charge only
such services are
rendered free of
patients
rendered on payment of charges
of
and are
the patients.
Unless
rendered free of charge
at the nursing home,
all
'service'
the
Appeal
Civil
Act.
allowed
v.
the matter has
and
judgment of
(supra),
cal,
way of diagnosis and
would
not come within
Section 2(1)(o)
medical
be a
National
light of this
judgment.
'consumer'
within
well
21775/94
as Civil
and
judgment of
C. S.
that
the
both medicinal
by way
and surgical,
services
to be
the Madras High Court has
surgi
of
diagnosis
and
of
4664-65/9i]
S . L . P . (Civi1)
allowed
and
considered
Section 2(1)Cd)
to be
in
treatment under a
Appeals Nos.
Appeals arising out of
and
'service'
cannot be
the meaning of
18445-73/94 have
Sub r aman i am
practitioner or a hospital
the Act cannot be sustained and Civil
as
in P r.
and a patient who undergoes
both medicinal
be
the
to
the definition of
practitioner or a hospital
treatment,
to
t r ea t men t,
of
to
therefore,
holding
rendered to a patient by a medical
by
in Section 2 (1)(o)
remitted
to be
the Madras High Court
Kufnaragwamy & An r ■
are
that the said services
has,
254/94
for consideration in the
Commission
The
as defined
No.
rest
the patients availing services
it cannot be held
do not constitute
to the
is found that the services
it
to
to some of the
the
Nos.
said
set aside and the
-:62 : -
petitions disposed of
writ
dismissed.
December
The
in
that
services rendered
ered
by
2(1)(o)
the
of
the National
'service'
the extent as
arising out
in
the
judgment
the Kerala H i g h Court
filed on behalf of
services rendered by
ambit of Section 2(1)(o)
its entirety but
can
in conclusion No.9.
No.
18497/93 has to
remitted to the
light of
this
dated October 6,
State
judgment.
the hospitals do not
of
the Act.
of
Commission
the pendency of
(supra)
and
before
this Court.
Since
appeal
in
1993
within the
Petitions
regard to the
deci
Cosmopolitan
Hp s p i t a 1
the said
decision
against
the decision of the National
in Cosmopoli tan Ho sp i tai
Nos.
in
fall
The said Writ
sion
the National
the
the hospitals claiming that
dismissed by the High Court having
S . L . P . (Civi1)
Section
in
were
us,
cov
21348-21349/93 have been filed against
Nos.
mission
in
defined
to be
S.L.P.(Civil)
the
holding
as
of S.L.P . (Civi1)
for consideration
Writ Petitions
1989
be
dated
Commission
2 of
indicated
be allowed and the complaint has
of
No.
to
in Government hospitals are not
the Act cannot be upheld
Appeal
Commission
said judgment have
the
First-Appeal
expression
be upheld only to
Civil
by
judgment of
1989
15,
t
1
(supra)
21 3 4 8-21 34 9/93 have
Com
is being upheld
to be dismissed.
by
- : 63 : -
Writ Petition (Civil)
the
Hospital
Cosmopolitan
who
Nair
the
6950/92 against
April
21,
Ltd.
and Dr.
the
of
judgment
1992.
16/94 has been filed
filed S . L . P . (Civi1 )
also
have
(P)
Ho.
the
applicable
may
that
and
be
14 and 19(1)(g)
the
first part of
the
provisions
medical
service,
that
the
deficiency
the Act
as being
and
applicable
to
practitioners
and
the
The other prayer sought
regarding
the validity of
provisions of
are
seeking
the Act
reason
alleged
the
are
Act
the said prayer cannot
for
in
the
the provisi ons of
the Act
is
also
the
writ
ground
on
which
to
assail
the
validity
the composition of
be
Petition
Writ
The
is that
regards
matter
allowed.
peti tioners
As
of
in
the
rendered by med ica!
substance.
violative
deficiency
provisions of
for the same
same
to
and
any
the
be
of
we have already considered
in service
to
held
regarding the applicability
hospitals
without
are
of
medical
in
the Constitution.
of
the prayer
of
the provisions
profession and hospitals
declared as unconstitutional
writ
said
the
said provisions
the medical
to
Articles
found
if the
Commission dated
to alleged deficiency
Act are not applicable
service
that
and
6835/92
Nos.
National
petitioners have sought a declaration
Venugopalan
K.
Petition,
the Writ
In
by
of
the
the Consumer
-:64:-
by
said Agencies
the
adjudication of
to be , followed
Agencies and the procedure
Disputes Redressal
is such
the complex
it
that
not
is
issues arising
for
suitable
for consideration.
We have already considered this grievance urged on behalf
profession and have
the
medical
the
Consumer
procedure
Disputes
adjudication
medical
is
of
that
out
trariness
or
Articles
14 and 19(1)(g)
therefore,
suffers
unreasonableness
.no
merit
In
the
in
In our opinion,
the
from
so as
vice
the Writ Petition and
by
no case
a r b i -'
of
violative
be
to
of
rendered
the Constitution.
of
proper
out
arising
service
in
the
as
well
preclude a
disputes
to deficiency
the Act
the composition of
Agencies as
practitioners and hospitals.
made
that
them does not
consumer
the
relating
complaints
Redressal
followed by
to be
found
of
of
is,
There
it has
to
be
dismissed.
689/93,
and
dismissed.
plaints
in
result
Civil
Appeals
Nos.
688/93
and
Nos.
6885/92
and
6950/92
are
S . L . P . (Civi1)
The
State Commission will
the light of
this
judgment.
the
com
S.L.P.[Civil]
Nos.
351/93 and 21348-21349/93 and Writ Petition
are also dismissed.
the
judgment of
Civil
Appeal
the National
No.
with
deal
(Civil) No.
254/94
16/94
is allowed
Commission dated Nay 3,
199
and
]
-:65 : -
for
mission
Civil
to the National
Com
93/92
is
remitted
consideration
in
the light
of
4664-65/94
and Civil
Appeals arising
set aside and O.P.No.
Appeals Nos.
Nos.
of
S.L.P.(Civil)
and
the judgment of
1994
is set aside
this
2175 5/94 and 184 45-73/94
judgment.
are
out
all owed
the Madras High Court dated February
17,
the writ petitions disposed of by
the
and
said judgment of tIne High Court are dismissed and as a result
the Consumer Disputes Rcdressal
complaint
light
of
this
1 of
No.
1988
consideration
judgment.
18497/93
is
with
the
in
the
out
of
those writ petitions
petitions covered by
S.L.P.(Civil)
No.
Agencies would deal
Civil
Appeal
arising
is also allowed and Complaint Case
remitted
in the light of
to
the State Commission for
this judgment.
No order as
costs.
.............................................. J .
[
KULDIP SINGH ]
............................................................. J .
I S.C. AGRAWAL 1
......................................................... J .
[
New Delhi,
November 13,
1995.
B.L.
HANSARIA ]
to
BRIEFING PAPER
£ CUTS
CONSUMER UNITY
& TRUST SOCIETY
N°. 1/MAY, 1995
ACCESS TO THE CONSTITUTION
- A NEGLECTED RIGHT
Introduction
e. the People of India, have given ourselves a Constitution so that there is a rule of law to enable
good governance and proper conduct of one citizen against another, and the State. The
Constitution has been printed by the government in English and all major languages of the country.
The purpose of a written Constitution is that we can know about our country's structure and
governance, and our rights and duties by reading the text of the Constitution.
W
It is reasonably expected that a citizen, desirous of knowing about his or her constitutional rights
and duties, more particularly the fundamental rights, would only have to get hold of the text of the
Constitution, which, being a complete document, will give a fair understanding of the rights.
In addition to the Constitution, what the Supreme Court says is the law of the land. The Constitution
itself is not static. It is dynamic and can be amended by the State to give meaning to it according
to the need of the hour. Over 74 amendments have been carried out till now. The last two related
to empowering people by legislating better laws for local government i.e. panchayat raj and
municipal system.
Does the Constitution give a comprehensive idea about the rights as expanded by the apex court?
Is it a complete document ? It is not.
This Briefing Paper examines few keyjudgements and concludes by advocating why a comprehensive
amendment to Articles 19 and 21 of the Constitution is necessary to give proper meaning to the same
and empower citizens fully.
Fundamental Rights 2
here are several fundamental rights, but the
principal ones are:
T
• Art. 14 - the right to equality before law;'
• Art. 15 - prohibition against discrimination on
grounds of religion, race, caste, sex, or place of
birth;
• Art. 16 - equality of opportunity in matters of
public employment;
• Art. 17 - abolition of untouchability;
O Art. 19 - freedoms of speech etc.;
O Art.21 - protection of life and personal liberty ;
© Art.22 - protection against arrest and detention
etc.
Article 19(1) of the Constitution guarantees to the
citizens of India the six fundamental freedoms which
are exercisable by them throughout and in all parts of
tire Union of India. The enumerated freedoms are : (a)
freedom of speech and expression, (b) freedom of
assembly, (c) freedom of association, (d) freedom of
movement, (e) freedom of residence. [(0 'the right to
property was dropped by the 1st amendment in 1951]
and (g) freedom of profession, occupation, trade or
business.
the right to freedom of speech and expression includes
the liberty of the press. [ Sakai Papers (P) Ltd. vs.
Union of India, AIR 1962 SC 305; Express Newspapers
(P) Ltd. vs. Union of India. AIR 1958 SC 578; Brij
Bhusan vs. State of Delhi. AIR 1950 SC 129.]
"These rights are not exhaustive of all the rights
of a free man who has far more and wider rights”.
The Rajasthan High Court, in the matter of L.K. Koolwal
vs. State of Rajasthan [AIR 1988 RAJ 2| which
challenged the negligence of the city administration
for not ameliorating the unhygenic conditions
prevailing in Jaipur city, said: "Citizen has a right to
know about the activities of lhe State. The privilege of
secrecy which existed in the old times that lhe State is
not bound to disclose the facts to the citizens or lhe
State cannot be compelled by the citizens to disclose
lire facts does not survive now to a great extent. Under
Article 19(l)(a) of the Constitution there exists the
right of freedom of speech. Freedom ofspeech is based
on the foundation of the freedom of the right to know."
ruled the Supreme Court in A. K. Gopalan vs. State of
Madras [AIR 1950 SC 27, 110],
Are these rights justiciable ?
es. the fundamental rights are justiciable and the
Supreme Court can be approached under Art.32
for any violation of the rights by the State. Several
writs have been filed before the Supreme Court
particularly for violation of Lhe fundamental rights at
Articles 14. 19, 21 and 22.
Y
Most of the public interest cases relate to violation of
fundamental rights. “Article 32 is designed for the
enforcement of Fundamental Rights of a citizen
by the Apex Court. It provides for an extraordinary
procedure to safeguard the Fundamental Rights of
a citizen," said the Supreme Court in Subhash
Kumar vs. State of Bihar [AIR 1991 SC 420). Article
226 of the Constitution empowers a citizen to approach
a High Court for violation of the fundamental rights.
Though it creates a precedence, it is not the law of the
country, unless settled by the Supreme Court.
The Supreme Court, while interpretingsome provisions
oftheConstitution, haveoften extended the peripheries
of the Articles so as to include some rights which are
not there explicitly in lhe Constitution. And according
to the Constitution, interpretations by the Supreme
Court become binding on all the lower courts and
therefore become the law of the land.
Art.22 read with Art.21 gives protection against state
terrorism or tyranny in detaining a person without
due process of law through a habeas corpus petition.
Art. 19 has been expanded to include the right to
know, while Art.21. the right to satisfaction of basic
needs, the right to a healthy environment and the
right to health through various judgements. The
mockery of such rights, namely in the form ofignorancc
and non-enforcement. is another story.
In this paper we are focusing on only two of lhe
Articles in the Part III of lhe Constitulion, i.c. 19 and
21. expansion of which will undoubtedly show how
important it is to rewrite some of the provisions of our
Constitution.
The right to know
nlike the U.S. Constitution. Article 19(1)(a) does
not expressly mention the liberty of press, l.e. the
freedom to print and to publish what one pleases
without previous permission. But it is settled law that
U
The Government of India in the Ministry of Environment^
and Forests itself published a booklet in 1993
advocating the citizens’ right to know based on a
public interest litigation involving urban zoning plans
in Pune cantonment area. In an appeal concerning the
case: Bombay Environmental Action Group and others
vs. Pune Cantonment Board, decided by lhe Bombay
High Court, the Supreme Court ruled:
"We would also direct that any person residing within
the area of a local authority or any social action group
or interest group or pressure group shall be entitled to
take inspection of any sanction granted or plan
approved by such local authority in construction of
buildings along with the related papers and documents
if such individual or social action group or interest
group or pressure group wishes to take such inspection.
except of course in cases where in Hie interests of
security of such inspection cannot be granted.”
In M.C.Mehta vs. Union of India [AIR 1992 SC 382]
wherein the noted environmental lawyer sought.
directions propogating education on environmental'
pollution to the people through the government
controlled mass media, the apex court ruled: “We are
a democratic polity where dissemination of
information is the foundation of the system.
Keeping the citizens informed is an obligation of
the government.”
The Supreme Court in the famous case of S. P. Gupta
vs. President of India [AIR 1982 SC 149], popularly
known as lhe Judges case, which established the
locus standi of citizens to raise public interest issues
before the apex court, held:
"This is lhe new democratic culture of an open society
towards which every liberal democracy is moving and
our country is no exception. The concept of an open
government is the direct emanation from the right to
know which is implicit in the right of free speech and
expression guaranteed under Article 19(11(a).
Therefore, disclosures of information in regard to the
functioning of Government must be the rule and
secrecy and exceptionjustified only where the strictest
requirement of public interest so demands."
Article 21, the most flexible !
rticle 21 is. perhaps, the most flexible of the
fundamental rights provisions. The Supreme
Court held that right to life included the right to
means of livelihood and right to human dignity [SCC
1993 Vol.Ill p. 259, 584|. Can a person have the
slightest idea about this extended meaning of right to
life if he or she goes through Article 21 in its present
form?
A
Article 21 has been expanded in a number of cases to
safeguard the rights of specially positioned persons
and to include some special rights. Tire Article has
been invoked to protect the rights of prisoners, tire
rights of inmates of protective homes, right to legal
aid. right to speedy trial, right against cruel, inhuman
and unusual punishment, right of release and
rehabilitation ofbonded labour, right to compensation.
right to health and right to healthy environment.
In Francis Coralie vs. Union Territory of Delhi 1(1981)
1 SCC 608: AIR 1981 SC 746], it was held "that any act
which damages or injures or interferes with the use of
any limb or faculty of a person, eiher permanently or
even temporarily, would be within the inhibition of
Article 21".
To live with human dignity
I
n the same case, the noted activistjudge and former
Chief Justice of India. P.N.Bhagwati, said: We
think that the right to life includes the right to live
with human dignity and all that goes along with it,
namely, the bare necessaries of life such as adequate
nutrition, clothing and shelter over the head and
facilities for reading, wilting and expressing oneself
in diverse forms, freely moving about and mixing and
comingling with fellow human beings".
In early 1994. in a case involving capitation fees, the
Supreme court had ruled that under Art.21 read with
Art.45, every child upto the age of 14 has a right to free
education.
Again relying on Francis Coralie. in Bandhua Mukti
Morcha vs. Union of India [(1984) 3 SCC 161: AIR
1984 SC 802], where the question of bondage and
rehabilitation of some labourers was involved.
Bhagawati held:
“It is the fundamental right of cvciy one in this country...
to live with human dignity, free from exploitation.
This right to live with human dignity enshrined in
Article 21 derives its life breath from the Directive
Principles of State Policy and particularly clauses (e)
and (1) ofArticle 39 and Articles 41 and 42 and at least.
therefore, it must include protection of the health and
strength of the workers, men and women and of the
tender age of children against abuse, opportunities
and facilities for children to develop in a healthy
manner and in conditions of freedom and dignity,
educational facilities, just and humane conditions of
work and maternity relief. These are the minimum
requirements which must exist in order to enable a
person to live with human dignity, and no State has
the right to take any action which will deprive a person
of the enjoyment of these basic essentials.”
After some controversy on the issue ofright to livelihood.
Supreme Court has clearly held that “right to
livelihood is included in the right to life because
no person can live without the means of living,
that is, the means of livelihood". |Olga Tellis vs.
Bombay Municipal Corporation (1985) 3 SCC 545;
AIR 1986 SC 180.193.]
The right to healthy environment
n several public interest litigations our High Courts
and theapex court have held that Article 21 implicitly
includes the right to wholesome environment.
I
Attakoya Thangal, a resident of Lakshdweep Islands
off the coast of Kerala challenged the drinking water
augmentation scheme of tire government saying that
it will lead to disequilibrium causing saline water to
enter into fresh water aquifers and thus violate Article
21. The Kerala High Court [AIR KLT 580) held that:
"The administrative agency cannot be permitted to
function in such a manner as to make inroads into the
fundamental right under Art.21. The right to life is
much more than the right to animal existence and its
attributes are manifold, as life itself. A prioritisation of
human needs and the new value system has been
recognised in these areas. The right to sweet water.
and the right to free air. are attributes of the right to
life, for these are the basic elements which sustain life
itself."
Subhash Kumar of Bihar moved a writ petition under
Article 32 before the Supreme Court against the State
of Bihar [AIR 1991 SC 4201 to prevent the West Bokaro
Collieries and the Tata Iron & Steel Co Ltd from
discharging slurry/sludge from its washeries at
Hatotand Dt Hazaribagh, Bihar into the Bokaro river
and polluting it. Though the court dismissed the
petition with costs against the petitioner for it was a
personally motivated writ, it said:
"Right to live is a fundamental right under Article
21 of the Constitution and it includes the right of
enjoyment of pollution free water and air for full
enjoyment of life. If anything endangers or impairs
that quality of life in derogation of laws, a citizen has
right to have recourse to Art. 32 for removing the
pollution of water or air which may be detrimental to
the quality of life.”
The right to health
n the Bandhua Mukti Morcha case, the Supreme
Court had clearly held that Art.21 read with the
directive principles of state policy includes the right to
health.
I
In a recent case (Consumer Education & Research
Centre. Ahmedabad vs. Union of India decided in
February, 1995) involving the rights of workers in the
asbestos industry who unwittingly suffer from an
occupational debilitating disease, 'asbestosis', the
apex court ruled:
"The right to health and vigour to a worker while in
sendee or post-retirement is a fundamental right
under Article 21 and other related articles of the
Constitution. The right to health and care is a
fundamental right under Article 21 read with Articles
39(e). 41 and 43 of the Constitution and make the life
of workmen meaningful and purposeful with dignity
of person. Right to life includes protection of the
health and strength of the worker which is a minimum
requirement to enable a person to live with human
dignity."
Conclusion
eflection of the true extent of the Fundamental
Rights enshrined in the Constitution, and
expanded by the Supreme Court, is essential for not
only tire lay public but also the intelligentsia, legal
practitioners and judiciary. It has often been reported
R
that under the common law doctrine of Stare decisis
lower courts have not been able to Imbibe the apex
court pronouncements in situations where it should
have been done, thereby causing injustice to the
citizen seeking relief. Stare decisis means that courts
have to follow the precedents as established by higher
courts until they are over-ruled by a superior court.
This calls for quick and easy communication of all lawmaking decisions to every citizen in the country so
that they can be understood and followed. The easiest
way to keep students, social activists, lawyers and the
judiciary well informed of the latest interpretations is
to periodically update the text of the Constitution.
Again, updating of the Constitution is important from
another standpoint. Constitution is the 'ground-norm'
for our laws. This means that all laws derive their force
from the Constitution. Unless the epoch-making
decisions of the Supreme Court are followed by
adequate amendments to the Constitution, the general
public and students will not have a complete knowledge
about the laws and the Constitution of the land.
A periodical review of the Constitution may be arranged,
when the judicial interpretations be incorporated in
the Constitution, by either rewriting the relevant
provisions or by adding paragraphs to them. The
ultimate object of such review will be to keep the
Constitution always updated and complete. It is time
to give a serious thought and to start action, to inform
people of what they have given unto themselves, but
do not know.
Recommendations
CUTS recommends that the Constitution of India be amended by incorporating the judgements of the
Supreme Court so as to empower the citizens of India fully:
• Article 19(l)(a) should read as: “to freedom of information, speech and expression;"
O Article 21 should read as: “ Protection of the right to life and personal liberty. - No person shall
be deprived of his life or personal liberty except according to procedure established by law. To
live with human dignity every person shall have the right to satisfaction of basic needs, the
right to healthy environment, the right to education, the right to health and the right to health
care.
CUTS invites all to join in the campaign for the abovementioned amendments in the Constitution.
Comments on the Draft were received from Justice P. N. Bhagwati and Prof N. R. Madhava Menon. Both recommended that this needs to be
disseminated widely in well designed publications, while Justice Bhagwati did not agree that the Constitution should be amended.
This Briefing Paper has been researched and written by Pradeep 5. Mehta and Subic Bannerji of and for CUTS Published by Consumer
Unity & Trust Society (CUTS), 3-B, Camac Street, Calcutta 700 016, India. Phone: 29-7391/2786, Fax: 91-(0)-33.29-7665/76-2785
Monitoring medical
malpraxis
HEN doctors were brought under
the Consumer Protection Act, the
consequent fallouts were many. The
two most significant ones were: needless
investigations leading to a rise in the cost of
medical care and the seeking of judicial remedy
was responsible for a fall in the quality of
, doctor-patient relationship.
An analysis of the pattern of cases tried by
^various consumer panels at the State and
/ National levels in India reveal some disquieting
' features. Out of 143 cases tried, about 80 per
cent of the malpraxis cases were set aside and
’ thexnedical profession was held not guilty
i compendium of CPA and Medical
Judgments”-Niraj Nagpal. 1996). In the 13
cases referred to the National Consumer
Redressal Commission, only one case was
I established and, in the others, the doctors were
exonerated.
The majority of cases are possibly
I speculative. Il may be that the patient or his
relative did not have a proper legal guidance or
that the plaintiff has become more conscious of
1 his rights. There may be an element of
I dissatisfaction over the quality of service or the
1 behaviour of the medical profession may have
precipitated this emotional reaction. The
factors of failure in the doctor-patient
1 relationship on the one side and the presence of
• possible misleading ambulance chasers
(referred to by some as ten per cent lawyers)
may be responsible for this. This tends to have a
domino-effect. Unnecessary investigations,
I avoidance of risky investigations, adding of
legal expenses and cost of malpraxis insurance
to t hese expenses are just a few aspects of the
rise in the cost of medicare.
The other story is the mental agony of the
. doctor, the hefty compensation if he is held
guilty and the glare of publicity from the media
k - not matter how the judgment goes, his
W
practice, his source of living and reputation are
lost. Add to this the delay in justice which goes
well past the legal obligation of three or five
months before the case is decided. In no other
profession do we find such fallouts of a one-time
error as in the medical profession.
In these litigations, where frivolity may play
a part, would a filtering mechanism help the
two parties arrive at an out of court settlement?
And if no prima facie case is established, would
not advice to the patient to withdraw the
complaint help?
In the May ’97 issue of the Bulletin of the
American College of Surgeons, Dr. Kridelbaugh
and Dr. Palmisano have published an
interesting study - “A 20 year experience with
malpractice screening panels” - which refers to
the formation of screening panels in the U.S..
I S S U E S
some of which have been functioning since the
Sixties, a reaction to the increasing number of
malpractice action cases “filling the court
dockets". The concept of such a panel.
originated from various physicians’
organisations who were convinced that many
cases had no legal merit. The conclusion
apparently was not wrong either.
In 1996. 25 ofthe 50 States had such panels.
The functioning of the panels in New Mexico
and Louisiana have been studied. The panel
screening has been so successful that, in these
States, screening has been made mandatory,
before any malpractice case comes to court.
though the findings may not be binding.
A look at the figures is interesting. In New
■fxico. out of the 2141 cases heard during
^>62-76, as many as 1562 (72 per cent) were
settled out of court with 344 (18 per cent)
favouring ofthe plaintiff. Ofthe 577 cases
which went to trial only 30 cases (5.4 percent)
were allowed in favour ofthe plaintiff, the rest
were set aside, as medical negligence was not
established. In 20 of497 cases, the verdict was
reversed in favour of the plaintiff (five percent)
and. in 10 out 80 cases, in favour ofthe
defendant (12.5 per cent). These figures
suggest an element of fairness.
Why should we not emulate this system? It
may filter out frivolous cases. It may also help
in a quick settlement of deserving cases. Like
the Louisiana panels, the body may consist of
two doctors (or lawyers) - one each for the
plaintiff and defendant. The third member may
be a jurist. The plaintiff sand defendant's cases
are presented separatelyas are the replies to
their contentions. Queries on either side are
answered, the entire material scrutinised and
the opinion given.
If such a system is set up in our country, a
few points have to be considered: The cost of
the functioning of the panel has to be looked
into and arranged for. The parties will bear the
expenses; The acceptance of the verdict by both
sides need not be made mandatory. It.will be up
to either party to ignore the findings and go to
the court; Such a panel may be recognised and
made a statutory' filter, despite the lack of
mandatoriness of the verdict. This may help
quicker dispensation of justice and lessen the
work load of the consumer courts.
Tills system may be adopted in one or two
States and made all pervasive, if successful.
Most importantly, it may avoid unnecessary
and unfair glare of publicity on doctors. Apart
from the hefty compensation paid for a one
time error or negligence, what is not apparent
is the undue glare the doctor gets, with its own
fallouts, t^Wi spell a disaster. Q
"
M.S. VENKATAR AM AN
C
(
- 1-
Consumer Awareness Series - 2
Rights and Responsibilities
of Patients
&
List of Banned drugs
Published by
CREAT
Consumer Rights, Education & Awareness Trust
239, 5th C Main, Remco Layout, Vijayanagar, Bangalore-560 040
any neessary treatment or operation after a second opinion is
PATIENT’S RIGHTS AND RESPONSIBILITIES
obtained.
PART 1: PATIENT’S RIGHTS:
Section 1: RIGHT TO HEALTH CARE AND HUMANE TREATMENT:-
2.
A Patient has the right to refuse treatment to the extent permitted
by law and to be informed of the medical consequences of his
1.
Every individual shall have access to adequate and appropriate
health care and treatment.
2.
Every patient shall be treated with care, consideration, respect
and dignity without discrimination of any kind.
3.
A Patient has the right to be treated by fully qualified health
care professionals in private or public health care facilities.
Section 3: RIGHT TO INFORMATION:-
4.
A Patient has. wherever possible, the right to be treated at a
hospital of his choice and to be referred to a consultant of his
choice.
k
5.
Every individual shall have the right to prompt emergency treat
ment from the nearest government or private medical and health
facility.
6.
Patients have the right to humane terminal care and to die in
dignity.
7.
A Patient can be transferred to another health care establishment
only after an explanation of the need for this transfer and after
the other establishment has accepted the patient.
8.
A patient has the right to have all identifying information, results
of investigations, details of his condition and his treatment kept
confidential and not made available to anyone else without his
consent.
decision.
3.
1.
Before any treatment or investigation, a patient shall have the
right to a clear, concise explanation in lay terms of the proposed
procedure and of any available alternative procedure. Where
applicable, the explanation shall include information of risks,
side effects, or after-effects, problems relating to recuperation,
likelihood of success, and risk of death. Informed consent of
the patient must be obtained prior to the conduct for a treatment
or a procedure. In the case of a minor, consent has to be obtained
from the parent or guardian. If a patient is incapacitated and
any delay would be dangerous, a doctor is entitled to carry out
2
Information about health services (including recent developments
in the field) and how best to use them is to be made available
to the public in order to benefit all those concerned
2.
Information may be withheld from patients in cases where there
is good reason to believe that this information would affect the
patient's health adversely but, however, the information must
be given to a responsible relative.
3.
A patient has the right to know the identity and the professional
status of the individuals providing service to the patient and to
know which professional is primarily responsible for the patient's
care.
4.
Patients should have the right to seek a second opinion from
another physician.
5.
Patients should upon request, be able to obtain a copy of summary
of their diagnosis, treatment and care including diagnostic results
on discharge from a hospital or other establishment. They shallalso have the right to authorise another medical professional
to obtain a copy of the same and to inform the patient of the
contents.
Section 2: CONSENT:1.
Explicit, informed consent is a prerequisite for participation in
scientific experimentation. Experimentation must not be carried
out on any patient who is unable to express his will.
)
6.
A patient shall have the right to examine and receive an ex
planation of his bill after any treatment and consultation.
Section 4: THE RIGHT TO ADEQUATE PRESCRIBING INFORMATION:1.
While prescribing medication, the patient should be informed
about the following:Expected outcome, adverse and after effects, chances of success,
risks, cost and availability.
3
2.
All drugs dispensed shall be -of acceptable standards in terms
ot quality, efficinacy and safety.
3.
All medicines shall be labelled and shall include the pharmacologi
cal name of the medicine.
8.
Every individual has a responsibility to maintain his or her own
health and that of society by refraining from indulging in high
risk behaviour detrimental to health.
9.
Every individual has a responsibility to accept all preventive
measures sanctioned by law.
Section 5: RIGHT TO REDRESS GRIEVANCES:-
l.
A Patient shall have access to appropriate redressal procedures.
2.
A patient shall have the right to legal advice as regards any
malpractice by the hospital, the hospital staff or by a doctor or
other health professional.
Consolidated List of Drugs/fixed Dose combination of
Drugs Banned by The Central Government
Under Section 26A of the
Drugs And Cosmetics Act 1940
Section 6: RIGHT TO HEALTH EDUCATION:-
1.
Every individual shall have the right to seek and obtain advice
with regard to preventive and curative medicine, after care and
good health.
Fl.
Amidopyrine.
2.
Fixed dose combinations of Vitamins with antiinflamatoiy agents
and tranquillisers.
3.
Fixed dose combinations of Atropine in Analgesics and Anti
pyretics.
4.
Fixed dose combinations of Strychnine and Caffeine in tonics.
PART 2: PATIENT S RESPONSIBILITIES:
1.
The patient shall ensure that he or she knows and understand
what a patient’s rights are and shall exercise those rights respon
sibly and reasonably.
2.
The patient shall ensure that he or she understands the purpose
and cost of any proposed investigation or treatment before decid
ing to accept it.
5.
Fixed dose combinations of Yohimbine and Strychnine with Testosterose and Vitamines.
6.
3.
The patient shall accept all the consequences of the his/her
own informed decisions.
Fixed dose combinations of Iron with Strychnine, Arsenic and
Yohimbine.
7.
4.
The patient shall provide accurate and complete information
which the health professional requires about his or her health
and ability to pay for health services.
Fixed dose combinations of Sodium Bromide/Chloral hydrate
with other drugs.
7.
Fixed dose combinations of Iron with Strychnine, Arsenic Yohim
bine.
5.
6.
7.
The patient shall establish a stable relationship with and follow
the treatment determined by the health professional primarily
responsible for the patient's care
Phenecatin.
9.
Fixed dose combinations of Anti-histaminics with anti-diarrhoeals.
The patient shall inform the health professional if he or she is
currently consulting with or under the care of another health profes
sional in connection with the same complaint or any other complaint.
10.
Fixed dose combinations of Penicillin with Sulphonamides.
11.
Fixed dose combinations of Vitamins with Analgesics.
The patient shall so conduct himself or herself so as not to
interfere with the well being or rights of other patients or providers
12.
Fixed dose combinations of Tetracycline with Vitamin C.
13.
Fixed dose combinations of Hydroxyquinoline group of Drugs
except preparations which are used for tire treatment of diarrhoea
and dysentry and for external use only.
of health care.
4
5
14.
Fixed dose combinations of Corticosteroids with any other drug
for internal use.
15.
Fixed dose combinations of Chloramphenicol with any other drug
for internal use.
16.
Fixed dose combinations of Ergot.
17.
Fixed dose combinations of Vitamins with anti-T.B. drugs except
combination of Isoniazide with pyridoxine Hydrochloride
(Vitamin Be).
18.
Penicillin Skin/Eye Ointment.
19.
Tetracycline liquid oral preparations.
20.
Nialamide
21.
Proactolol.
22.
Methapyrilene, its salts.
23.
Methequalone.
24.
Oxytetracycline Liquid Oral Preparations.
25.
Demeclocycline Liquid Oral Preparations.
26.
Combination of Anabolic Steroids with other drugs.
27.
31.
The patent and proprietory medicines of fixed dose combinations
of essential oils with alcohol having percentage higher than 20%
proof except preparations given in the Indian Pharmacopoeia.
32.
All Pharmaceutical preparations containing Chloroform exceeding
0.
5%
w/w or v/v whichever is appropriate.
Fixed dose combination of Ethambutol with INH other than the
following:
______________ INH______________ Ethambutol_______________
33.
600 mg.
200 mg.
____________ 300 mg.____________ 800 mg.__________________
34. Fixed dose combinations of Containing more than one antihis
tamine.
35.
Fixed dose combinations of Anthalmintic with cathetric/purgative
except for piperazine.,
36.
Fixed dose combinations of Salbulamol or any other
bronchodilator with central acting anti-tussive and/or, antihis
tamine.
37.
Fixed dose combinations of Laxatives and/or, antispasmodic
drugs inenzyme preparations.
Fixed dose combinations of Oesterogen and Progestin (Other
than oral contraceptives) containing per table estrogen content
of more than 50mg. (equivalent to Ethenyle Estradiol) and of
progestin content of more than 3 mg. (equivalent to Norethisterone
Anetate)
38.
Fixed dose combinations of Metoclopramide with other drugs
except for preparations containing metoclopramide and aspirin/
paracetamol.
39.
Fixed dose combinations of Centrally acting, antitussive with
antihistamine having high atropine like activity in expectorant.
28.
Fixed dose combinations of Sedatives/hypnotics/anxiolytics with
analgesic- antipyretics.
40.
Preparations claiming to combat cough associated with asthma
containing centrally acting anti-tussive and/or antihistamine.
29.
Fixed dose combinations of Pyrazinamide with other anti- tubercules drugs except combination of Pyrazinamide with Rifampici"
41.
Liquid oral tonic preparations containing glycerophosphates
and/or other phosphates and/or central nervous system
stimulant and such preparations containing alchol more than
20% proof.
’
and INH as per recommended daily dose given below.
Drug
Minimum
Maximum
Rifampicin
450mg.
600mg.
INH
300mg.
400mg.
Pyrazinamide lOOOmg.
1500mg.
30. Fixed dose combination of Histamine H2-receptor antigonists
with antacids except for those combinations approved by the
Drugs Controller (India).
6
Fixed dose combinations of Containing Pectin and/or Kaolin
with any drug which is systemically absorbed from GI tract
except for combinations of Pectin and/or Kaolin with drugs not
systemically absorbed
44. Dovers Powder I.P.
45. Dovers Powder tablets I.P.
42.
46.
Chloral Hydmte as a drug
7
TIPS TO CONSUMERS
1.
Always buy drugs from a licenced dealer
2.
Avoid self modification. Consult qualified Doctors and obtain
prescription
3.
Insist on Cash bill. The dealer is required by law to issue cash
bill for every transaction.
4.
Check the drugs before leaving te counter and ensure that what
has been dispensed is the one that is prescribed. Preferably go
back to the Doctor to show the drug purchased
5.
Check expiry date and the maximum retail price printed on the
label/container
Certain drugs have to be stored in the refrigerator to preserve^
6.
potency. The storage condition will be mentioned on the label.
Refuse to accept if the storage is improper.
7.
Report any untoward reaction to your physician
8.
Follow the instructions while taking the drugs. Always complete
the course of treatment. Do not discontinue in the middle unless
advised by your physician
9.
Destroy the containers after use or destroy the label before dis
posing
10.
In case of doubt on the quality or price charaged do not hesitate
to report to the nearest office of the Assistant Drugs Controller
or Drugs Inspector
Bangalore Address:
Drugs Controller Office,
Palace Road, Bangalore-560 001
Phone No: 2264760
Based on the Resulations adopted at the Workshop on
Medicine, Media and Consumer Education held at Pondicherry
and guidelines issued by Drugs Controller, Karnataka
8
«
"
Consun.er Awareness Series - 3
CPHE
GUIDELINES FOR R. T. O.
PROCEDURES
Published by
CHEAT
Consumer Rights, Education and
Awareness Trust (R)
239, 5th ‘C Main, Remco Layout, Vijayanagar,
Bangalore-560 040
PUBLICATIONS OF GREAT
CPHF
Price Rs.
(including Postage)
1. Directory of Civic Services(English)
2.00
2. Directory' of Civic Services (Kannada)
2.00
3. Rights & Repsonsibilites of Paitents &
List of banned drugs (Kannada)
4. Consumers and Environment (Kannada)
3.00
2.00
5. Guidelines for RTO Procedures (English) 5.00
6. Guidelines for filing complaints in
Consumer fora
5.00
Seminar Papers (English)
a) Health, Drugs and Consumers
b) Consumer Awareness
75.00
c) Consumers and Drug Policy
50.00
75.00
Forth coming Publications (English)
1. Guidelines for wise buying
2. Domestic LPG safety code
PREFACE
The Consumer Rights, Education and Awamess
Trust (CREAT) has Launched a programme "Con
sumer Awamess Series" under which it is
planned to publish a series of leaflets, booklets
and guides on various subject of interest to con^imers. The objective of this series is to educate
consumers, provide them with information and
to create an awamess about their rights and
responsibilites.
CREAT belives that providing information to con
sumers is one way of creating a responsible
citizen who can always guard his rights and
take remedial measures in case they are violated.
So far five leaflets and two booklets have been
published in this series. Subjects for few more
booklets have been identified and CREAT hopes
that the same will be made available at the
girlie st.
3. Guidelines for purchasing a Flat.
Our thanks to Mr. Vijay Vikram, Joint Commis
sioner (Transport/Admn.) for having gone
through the booklet and giving suggestions in
The above publications may be obtained in person
or by sending the amount through DD/ Cheques drawn
in favour of CREAT, Bangalore. Please add Rs. 10/- for
outsation cheques.
preparing this booklet.
Bangalore
April, 1995
Executive Trustee
(CREAT)
GUIDELINES TO R.T.O.
PROCEDURES
It is everybodys experience that information about
the procedures to be followed and documents to be fur
nished for various works at the RTO is not known well
although the details are made known over display boards.
An effort has been made in the following lines, to help the
public by providing broad guidelines to be followed for ob
taining the services of RTO.
Every Regional Transport Office deals with all trans
actions relating to Drivers, Conductors, TravelAgents as
well as Transport Vehicles. The important works in which
common man is interested are:
A.
B.
C.
D.
Learners driving licence
Permanent driving licence
Renewal of driving licence
Registration of vehicles
A - LEARNER’S LICENCE
Every person who wants to drive a vehicle should
possess a valid learners or permanent driving licence.
At the first instance, a person should obtain a learners
licence. The eligibility conditions for obtaining a learners
licence is as follows:
1.
AGE LIMIT
Should not be less than 18 years for all Motor
Vehicles other than transport vehicles.
2. Should have attained 16 years for Motor Cycles
without gears. A consent of the parent or guardian
should be obtained and produced.
3. Should not beless then 20 years for transport
vehicles
1
APPLICATION
An application for grant of learners licence is to be
made in Form 2 to the RTO/ARTO having jurisdiction in
the area in which the candidate ordinarily resides or carries
on business or the school in which he is receiving or
has received instruction is situated.
DOCUMENTS TO BE ANNEXED
The following documents should be annexed along
with the application for grant of learners licence.
1. A medical certificate in Form IA, issued by a
Registered Medical Practitioner. This is only for
transport vehicles
2. Three copies of recent photographs of size 3 cm
X 6 cm. Photographs may be black and white or
colour
3. A fee of Rs. 15 (Rupees fifteen only) is to be remitted
in the Treasury Counter in the RTO and the challan
is to be submitted along with the application.
(Note down the number and date of the challan or
take a xerox and keep for your records)
4.
Any document mentioned below, as proof of your
age and bonafide residential address
a) Ration card wherein your name is included
b) Electrol Roll slip or Voters Identity card
c) LIC policy with your address mentioned therin
d) Electricity or Telephone Bill
e) Pay Slip/Salary packet issued by your
employer, in case of State or Central Govern
ment employees
f) House Tax receipt
g) Birth certificate issued by Corporation.
h) School certificate (S.S.L.C marks card)
2
Original marks card of SSLC should be produced
and taken back before leaving the RTO. Better you have
two xerox copies of the marks card duly attested by a
Gazetted Officer.
To have a driving licence you should not be suffering
form any disease or disability likely to cause your driving of
a motor vehicle a source of danger to the public or passenger.
If the application is proper in all respects and if all
the documents are submitted, you will be called for a
simple test. Users have the right to ask the concerned
officer to send the intimation regarding the date and time
of the test by post.
CONTENTS OF THE TEST
Granting of the learners licence involves passing of
a simple test in which you will be tested whether you
possess adequate knowledge and understanding on the
following matters:
Traffic signs, traffic signals, rules, and regulations
of the road
b.
Duties of driver when the vehicle is involved in an
accident causing, death, injury of a person or
damage to property or party
c.
Precautions to be taken while passing unmanned
railway crossing
d.
Documents the driver should carry while driving a
motor vehicle .
The test will be conducted by the licencing authority
or Inspector of Motor Vehicles or through a computer.
Learners licence will be issued subject to pass in
the test. Vehicle users should follow the instructions to
avoid penalty or confiscation of the licence.
a.
3
1.
2.
3.
B - GRANTING OF
PERMANENT LICENCE
A permanent licence will be issued to persons who
have a valid learners licence, subject to other con
ditions. Eligibility conditions as far as age in case
of getting learners licence is valid for getting a per
manent licence also.
An application fora permanent driving licence should
be made in Form No.4 to the RTO/ARTO in whose
jurisdiction the applicant resides or carries on busi
ness or the school where he is receiving or has
received instructions is situated after the candidate
has held a learners licence for a period of atleast
thirty days
The application should be accompanied by the fol
lowing documents.
a. Challans for remittence of the Test fee of Rs.
15/- (Fifteen only) and
b. Driving licence fee of Rs. 20 (Twenty only)
c. Valid learners driving licence in original
d. Three copies of the applicant's recent
photographs of size 5 cms X 6 cms
e. Driving certificate in Form 5 issued by the
school where the applicant received the in
structions, if any. This is not applicable in case
the user has learnt driving on his own
If the application and documents are proper in all
respects, the concerned RTO/ARTO will call the
user to appear for a test of competence to drive.
You should be ready to appear for the test with a
serviceable vehicle of the class for which you have
applied for licence. It is not necessary that you should
be the owner of the vehicle
4
If you pass the test you will be granted with a per
manent driving licence which will be valid for a period
of 20 years or till you attain the age of 50 years
whichever is earlier in case of non- transport vehicles
and three years in respect of transport vehicles.
6.
In case you fail in the test you will have to reappear
after seven days upto three attempts. Thereafter it
is after 60 days. In such a case you will have to
remit the test fees once again. It is better you appear
for the test after you have acquired adequate
proficience and competence in driving.
C - RENEWAL OF DRIVING LICENCE
As a user of the vehicle you should remember that
a driver is expected to carry with him/her a valid driving
licence. The word ‘valid’ indicates that it is not expired.
Driving with an outdated licence attracts all penalties as
if driving without a licence . So watch the date of expiry
and apply for renewal without waiting for the last day.
The procedure for renewal is an follows:
1. Application for renewal of driving licence should be
made in Form No. 9.
2.
If the application for renewal is made within thrity
days from the date of expiry of the licence, the
licence will be renewed1 from the date of expiry.
For example if your licence expires on 1st March,
your licence will be renewed from 1st March if you
apply within 30 March.
3.
If the application is made after thirty days of the
date of expiry of the licence, renewal will be made
from the date of renewal. If appication is made after
five years of the date of expiry the applicant will
have to appear for a re-test.
5.
5
4.
5.
6.
7.
Fees for Renewal
a. If renewal of licence is made within thirty days
of the date of expiry Rs. 15/- (Fifteen only)
b. if renewal of licence is made thirty days after
the date of expiry Rs. 15/- (Fifteen only) plus
Rs. 10/- (Rupees ten only) will have to be
paid for dalay of one year or part thereof, reck
oned'from the date of expiry
c. If you hold a licence for both Non-transpW
and transport vehicles, separate fees is to be
paid for each category.
The application for renewal of licence should be
accompanied by the following:
a. Challan of fees paid
b. Three copies of recent photograph of size 5
X 6 cms
c. The Driving licence
d. Medical Certificate in Form 1A
In case of Non-transport vehicles the licence will
be renewed:
i.
For a period of 20 years or till the applicant
attains the age of 50 years
ii. If the applicant has attained the age of 50
years, for a period of five years.
In case of Transport vehicles licences will Q
renewed .for three years only. If the applicant is a
holder of a licence issued outside the region, such
licences will be renewed after receipt of antecedent
from O.L.A.. or after fifteen days after the date of
application.
D - REGISTRATION OF VEHICLES
Every vehicle purchased, either new or old^as to
be registered and an R.C. book obtained.
6
Application for registration of a motor vehicle should
be made in Form 20 to the Registering Authoring in whose
jurisdiction the applicant thas the residence of place of
business or where the vehicle is normally kept.
Application should be submitted within seven days
from the date on which the vehicle was purchased or
taking delivery of the vehicle. '
The present fee for registration of a motor vehicle
is as follows:Invalid carriage
Motor Cycle
Light Motor vehicle
Medium Goods/passenger vehicle
Heavy goods/Passenger vehicle
Imported vehicle
Imported motor vehicle
Any other vehicle
Rs.
10/30/100/200/300/100/100/150/-
In addition to registration fee, taxes at the rates
specified in part A of the schedule to Karnataka Motor
Vehicles Tax Act 1957 will have to be remitted.
The life time tax for motor cycles is as follows:
a. Below 75 cc Rs. 1000/b. Between 75 and 300 cc Rs. 2000/, Above 300 cc Rs. 3000/c.
The taxes in respect of motor cars other than imported
cars or cars owned by.companies is as follows:
a. Vehicle upto 800 cc Rs. 10.000/- (Life Time Tax).
b. Vehicle of 800cc to 1500cc Rs. 15,000/- (Life Time Tax)
c. Above 1500 cc Rs. 20,000 (Life Time Tax)
7
DOCUMENTS TO BE FURNISHED ALONG
WITH APPLICATION
1. Sale certificate in Form 21
2.
Valid Insurance Certificate
3.
Proof of address by producing any one of the fol
lowing:
a. Ration card
b. Electrol roll or identity card
c. Life Insurance policy
d. Passport
e. Electricity or telephone Bill
f. Pay slip issued by State or Central Govt, offices
g. House tax receipt
h. School certificate
i. Birth certificate
4.
5.
Temporary registration if any, or extract of From
19 if the vehicle is covered by trade certificate
Roadworthiness certificate issued by the Manufac
turer in Form 22
.6.
Receipt for having paid Registration fee and tax
After filing the application along with the documents
detailed above, the vehicle should be produced for in
spection so that the Registering authority will satisfy that
the particulars contained in the application are true and
that the vehicle compleies with the requirements of M.V.
Act 1988 and rules made thereunder.
After satisfying that the particulars contained in the.
appplication are true and the vehicle complies with the
requirements of the Act, the RTO will register the vehicle,
assign a registration mark and will issue registration cer■tificate (RC book)
8
The applicant/owner should exhibit the registration
mark assigned on the vehicle in the manner prescribed
on black background with white letter in repect of Non
Transport vehicles and white background and black letters
in respect of Transport vehicles.
If the vehicle is covered by Hirepurchase/hypothecatidn/lease agreement the signature of the other party to
such agreement shall be obtained in the application in
the column provided for the purpose and additional fee
of Rs. 50/- (Fifty only) shall be remitted for recording
such agreement.
If the vehicle is to be registered as a Transport vehicle
a separate application in the prescribed form, with
prescribed fee should be filed for grant of fitness certificate
and permit
The certificate of registration of a motor vehicle other
than a transport vehicle will be valid for fifteen years and
is renewable.
GENERAL GUIDELINES
A driver of a vehicle should carry with him/her the
following documents in original or xerox copies duly at
tested by a State Government Gazetted Officer
1. Registration Certificate (RC Book)
2. Valid driving licence
3. Valid Insurance Policy or receipt of premium
The Traffic police can ask the driver to produce the
following documents within Corporation or Municipal limits:
1. Valid driving licence
The Regional Transport Officials can ask the driver to
produce the following document for verification:
9
1. Registration Certificate
2. Any other documents pertaining to he vehicle
LOCAL R.T.O. ADDRESSES
Bangalore City has five Regional Transport Offices,
the details of which are as follows:
Division
Address
Phone No.
Corporation Complex
3376039
Yeshwanthpur
BANGALORE-560 022
South Shopping Complex
6630989
Jayanagar IV Block
BANGALORE-560 011
East BDA Shopping Complex
562726
Jndiranagar
BANGALORE-560 038
West BDA Shopping Complex
3324288
Rajajinagar II block
BANGALORE-560 010
Central BDA Complex
5533525
Koramangala
BANGALORE-560 035
Office of the Transport Commissioner
4th Floor, Multistoreyed Buildings
Dr. Ambedkar Veedhi
BANGLORE - 560 001
Phone No: 2253717
North
I■
II
i
j
f
w
•
TRAFFIC CONTROL DEVICES
Traffic signs, signals and markings are designed to
regulate, warn and guide the flow of traffic. These devices
are standardised so they have the same meaning in
every State.
a
10
Traffic signs are used to convey specific information.Theytellyouaboutregulations.warnyouofhazardsorpo
tentialhazardsand helpyoufind your way.
Signs are divided into four basic categories:
Regulatory
Warning
Construction
Guide
Regulatory signs tell you what you can or cannot
do. They advice you on the regulations concerning speed,
the direction of traffic, turning restrictions and parking.
Warning signs tell you what you expect ahead. They
warn you about existing or potential hazards on or near
the roadway and are posted before the hazard so you
can be prepared.
Constructions signs indicate that some repair, con
struction or maintenance work is in progress
Guide signs tell you shere you are going and how
to get there. They provide information on intersecting
roads, help direct you to cities and towns and note points
of interest along the highway. Guide signs also help you
find hospitals, service stations, restaurants etc.
SEEING WELL AT NIGHT
h It’s harder to see things at night than during the
daytime. Here are some things you can do to help you
see better.
Use your high beams whenever there are 'no on
coming vehicles. You can see twice as far with high beams
than with low beams. It’s particularly important to use
your high beams when driving on unfamiliar roads, in
construction areas or where there may be people along
the roadside.
11
Dim your lights when following another car or when
car coming toward you.
Use low beams when driving in fog, snow or heavy
rain. Light from high beams will reflect and cause glare.
COMMUNICATING
Accidents often happen because one drived doesn’t
see another driver, or one driver does something the
other driver doesn’t expect. It’s important that drivers
COMMUNICATE.
Communicating means letting others know where you
ar and what you plan to do:
By using yours lights
By using your horn
By making sure your vehicle is seen
By using emergency signals
By positioning your vehicle
By signaling when changing directions
By signaling when slow or stopping
USING HORN
Your horn can get the attention of other drivers. Use
it whenever you suspect another driver or a pedestrain
doesn’t see you, but don’t abuse it.
If there is a real danger, don’t be afraid to sound a
SHARP BLAST on your horn. For example use your hotn
a. When a child is about to run into the street
b. When another vehicle is in danger of hitting you
c. When you have lost control of your vehicle
DRIVING ON A WET ROAD
While driing on a wet or slippery road be careful. If
the road is slippery, your tyres have less traction. Drive
slower on wet roads then you would on dry droads. Exercise
.special caution on roads posted with warning signals.
12
At speeds upto 35 mph most tyres will wipe water
from the road surface similarly to the way a sindshield
wiper cleans water off the window. As you go faster,
your tyres cannot wipe the road as well. They start to
ride on a film of water like water skis. This is called
Hydroplaning.
. In a heavy rain your tyres can lose all contact with
the road at higher speeds. Bald tyres lose contact more
readily. A slight change in direction or a gust of wind
could throw you vehicle into a skid. The best way to
prevent hydroplaning is to keep your speed down.
ALCOHAL AND DRIVING IMPAIRMENT
It is highly dangerous and illegal to drive when you
are under the influence of alcohal and drugs. No one
can drive safely no matter how long he or she has been
driving.
Alcohal is a depressant. It affects all the cells of the
body, especially the main and central nervous system.
As a resul, alcohol dulls your memory, concentration,
insight, perception and judgement
When high levels of alchol are absorbed into your
blood stream, it affects your ability to distinguish different
light intensities. This may be particularly dangerous when
driving. Your eyes taken longer to read just when exposed
to glare from bringt lights. It also impairs your eyes sen
sitivity to certain colours, especially red.
As the alcohol concentration increases in your blood,
so will you driving errors. You will reach slower and fluc
tuate between driving fast and driving slow. Your ability
to brake and drive will be impaired so that your vehicle
swerves and stalls. In general, your driving will become
careless after drinking.
13
You don't have to drink much to be affected by alcohol.
Studies indicate that driving skills begin to deteriorate at
blood- alcohol levels below 0.05 per cent.
Finally, it’s important to remember that alcohol gives
a driver a false sense of security. The driver thinks that
he or she is driving well. In reality the driver is endangering
himself and others on the roads.
Alchohol is not the only drug that can adversely in
fluence your driving performance. Many other drugs either
used alone or in combination with alcohol, increase your
risk of having an accident.
Every drug has some effect on the person using it.
Befoer taking a drug, find out from your doctor how the
particular drug might affect your sight, coordination, timing
and general ability to drive.
HEALTH
Some of the diseases or ailments may be dangeroub
for driving. Persons with the following health problems should
be careful while driving. Better they do not drive alone.
Epilepsy - As long as it is under medical control, epilepsy
is not dangerous. Persons with known instances of epilep
sy should not drive alone
GOOD DRJV8NG HABITS
1. Drive slow and steady
2. Keep your engine healthy
Use brakes sparingly
4. Let go of your clutch
5. Clean air filter regularly
6. Watch your tyre pressure
7. Stop fuel leaks
8. Stop the engine if you stop for more than 2 minutes
9. Use the right lubrication.
Diabetes - Diabetics on insulin should not drive when
there is any danger of going into shock. This danger
could result from skipping a meal or snack or from taking
amount of insulin. It is better, a friend or a relative drive
you. Diabetics should also have their eyes checked for
possible night blindness.
Heart condition - People with heart disease, high blood
pressure or circulation problems should be aware of the
impact of these conditions on ther driving ability. There
is danger of a black out, fainting spell or heart attack.
14
The information is based on the leaflets issued by
the Department of Transport, Government of Karnataka
and Pennsylvania manual for drivers published by Depart
ment of Transportation, Commonwealth of Pennsylvania.
CREAT
Established in December 1993, GREAT is a non politi
cal, non-profit, voluntary organisation devoted to the cuase
of consumer protection and welfare.
The objective of GREAT is to act as a platform for
consumers to raise their grievance on issues relating to.
consumer protection, environment, health, public issues etc.
To achieve its objectives GREAT has chalked out the fol
lowing programmes:
To set up a consumer information centre
To publish books, leaflets and other literature
To bring out a periodical
To set up a food testing laboratory
To arrange lectures, demonstrations, exhibitions,
seminars and workshops
6.
To arrange programmes to train consumer activists
7.
To take up individual/class cases for redressal
8.
To provide faculty, trainig material etc, for consumer
groups ‘
9.
To conduct surveys, product evaluation studies and
print reports
GREAT is an organisation depending entirely on con
tributions from the general public, philonthropists and social
organisations. While the trust welcomes donations, interested
persons can join GREAT as donor members on payment of
Rs. 50/- (fifty only) per annum. For details contact:
1.
2.
3.
4.
5.
Consumer Rights, Education and
Awareness Trust (GREAT)
239, 5th C Main, Remco Layout,
Vijayanagar, BANGALORE - 560 040
Position: 209 (12 views)