The medical services are not free and patients and caregivers are left to contend with staggering costs and this coupled with the treatment received puts both parties in a worse off and uncertain position.
The purpose of consumer protection legislation and policy is to create a known, accessible, and speedy system of redress and compensation for wrongs committed against consumers. Laws and policies are in place to correct economic imbalances in the bargaining relationship between consumer and supplier, and to ensure the health and well-being of the consumer.
According to section 2(22) of the Consumer Rights Protection Act 2009, “service” includes any service of transport, telecommunication, water supply, sanitation, fuel, gas, electricity, construction, residential hotels and restaurants, and health which are made available to the consumers in exchange of a price, but this will not include free services.
What is in dire need of serious and concerted addressing is the supposed 'immunity' of the services provided by the medical profession from the ambit of consumer protection legislation and policy. We are no strangers to news regarding fatalities and injuries caused through misdiagnoses and careless mishaps or to stories about paternalistic behaviour where doctors fail to communicate and explain things to their patients leaving them doubtful and confused.
The medical services are not free and patients and caregivers are left to contend with staggering costs and this coupled with the treatment received puts both parties in a worse off and uncertain position. These are the problems for which consumer protection legislation and policy are made and yet, the medical profession is held to be above and beyond it all for reasons that are at best lofty and vague.
Whether the services rendered by medical professionals fall within the ambit of a 'service' was considered in the Indian case of Indian Medical Association v V.P. Shantha & Others (1996) AIR 550. The issue was considered in the light of the Indian Consumer Protection Act 1986 which is not so different from our own law. Justice Agarwal interpreted the definition of 'service' as stated in section 2(1)(o) of the Indian Consumer Protection Act into three parts, namely, the main part, the inclusionary part and the exclusionary part. The main part of the definition makes use of the word 'any' which is broad conveying a sense of non-exhaustivity. Having been used before the word 'description', it conveys the intent of the legislature to ensure that legislative reach is not limited.
The inclusionary part of the definition mentioned services for which a fee is charged. What are excluded are the services that are rendered for free or under a contract of service.
It was thus reasoned that services of a medical nature, such as consultation, diagnosis, and treatment, both in terms of medicine and surgery as the case may require, if provided in exchange for a fee for that service (whether it be sourced from insurance, or employee benefit schemes) would safely fall within the ambit of a consumer service. It was further contended that the medical services fall within the ambit of a contract of service rather than a contract for services and so fell outside section 2(1)(o) definition; the reason being as the Court stated that “[even though] the services rendered by the medical practitioner can be regarded as services of a personal nature, but since there is no relationship of master and servant between doctor and patient, the contract between the medical practitioner and his patient cannot be treated as a contract of personal services.”
The apparent insufficiency of statutory consumer rights councils to handle the complexities associated with medical complaints was raised in favour of why medical services should be kept out of the ambit of consumer protection legislation. It was argued that, the medical profession is best left to adjudicate upon such matters based on its internal guidance and standards. The Court, having acknowledged that there may be instances of complexities, there are still more instances where mishaps are caused due to obvious negligence, or willful omissions which can easily and speedily be dealt with under the procedures of the consumer councils. In addition, the Act does not prevent individuals from appearing before Civil Courts when matters of complexities, involving experts and technical evidence arise.
The case makes for essential reading and an opportunity to engage in constructive dialogue to bring about much needed change in the status quo. A good, actionable start would be to open up the avenue for less complicated medical complaints to be disposed of speedily by the existing redressal system and where appropriate to engage licensing and disciplinary bodies like the Bangladesh Medical and Dental Council and the Director General of Health Services in a more wholesome manner.
Alfred Christopher D'Silva is an Associate of The Legal Circle. email@example.comPublished by The Daily Star on July 17, 2018