Published in IJCP September 2019
Consensus statement
Consensus statement of padma awardee doctors’ forum Regarding exclusion of medical professionals from the Consumer protection act
September 10, 2019 | KK Aggarwal, Ak Bhalla, Ak Grover
     


KK Aggarwal, AK Bhalla, AK Grover, Anoop Misra, Arvind Lal, AS Soin, Ashok Seth, BN Sahi, DS Gambhir, Ganesh Mani, GK Khatri, Harsh Mahajan, Kalyan Banerjee, KK Sethi, KK Talwar, M Khalilullah, M Wali, Madan Mohan, Mahesh Verma, Malvika Sabharwal, Neelam Kler, Nikhil Tandon, Nitish Naik, NK Pandey, NM Shroff, NP Gupta, P Lal, P Venugopal, Raman Kapoor, Randhir Sud, RK Grover, Sanjeev Bagai, Saumitra Rawat, SC Manchanda, TS Kler, Upendra Kaul, Yash Gulati

The Consumer Protection Bill, 1986 was passed by both the Houses of Parliament and it received the assent of the President on 24th December 1986. It came on the Statutes Book as The Consumer Protection Act, 1986 (68 of 1986). The Legislature while drafting the Bill, 1986 had specifically not included the services provided by the medical professionals in the term of services. Also, there is no mention of medical professionals, doctors, etc., anyplace in the Consumer Protection Act, 1986.

The fact that there is a distinction between a profession and an occupation was the main reason for not including the medical professionals under the purview of Consumer Protection Act, 1986. A person engaged in an occupation renders service, which falls within the ambit of Section 2(1)(o) of the Consumer Protection Act, 1986; however, the service rendered by a person belonging to a profession does not fall within the ambit of the said provision. Accordingly, medical practitioners who belong to the medical profession are not covered under the Consumer Protection Act.

But, in the matter of “Indian Medical Association versus V P Shantha, AIR 1996 SC 550”, the Hon’ble Supreme Court of India held that the Consumer Protection Act, 1986 is applicable to services rendered by doctors and hospitals. The Apex Court also held that the services rendered to a patient by a medical professional are “service” within the meaning of the Consumer Protection Act, 1986 and the persons who hire or avail such services are therefore, consumers as defined under the Act with the exception that where the doctor/hospital renders service free of charge to every patient or under a contract of personal service, a patient availing of such free of charge services will not be a consumer.

Consumer Protection Act, 2019

The Consumer Protection Bill, 2019 has been passed by both Houses of Parliament i.e. Lok Sabha (30th July 2019) and Rajya Sabha (6th August 2019). Thus, a new law on consumer protection has been enacted i.e. the Consumer Protection Act, 2019. The new act does not include services rendered by medical professionals.

Earlier, when amendments to the Consumer Protection Act were introduced in 2015, there was no mention of “health care” in the list of examples of as to what constitutes “service”. The Bill said “service” means service of any description made available to potential users and includes, but is not limited to, the provision of facilities relating to banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information. It does not include the rendering of any service free of charge or under a contract of personal service.

The Bill had gone through the parliamentary committee. But in 2019, when the new Consumer Protection Bill was introduced in the Lok Sabha, “health care” was included in the list after telecom.

But later “health care” was removed from the list of services which had been specifically mentioned earlier under the definition of services in the draft Consumer Protection Bill.

Now, in the new Act of 2019, the terms “medical profession”, “health care”, “doctors”, etc. are not mentioned.

Legislative intent

While enacting both the Consumer Protection Act, 1986 and Consumer Protection Act, 2019, the draftsmen of the Legislature had specifically and intentionally not included the services rendered by medical professionals. In 2019, when the new Bill was presented, the term “health care” was included in the draft of the Consumer Protection Bill; however, the same was later removed from the Bill.

Even though, the landmark precedents as laid down by the Hon’ble Supreme Court of India cover the medical profession/health care under the purview of Consumer Protection Act, the Legislature never intended to cover the services rendered by the medical professionals under Consumer Protection Act.

It is also to mention that medical professional services are not covered under GST.

Lawyers do not come under the purview of Consumer Protection Act

In the matter titled as “D. K. Gandhi versus M. Mathias”, the State Commission of Consumer Disputes Redressal Forum, Delhi, held that services rendered by a Lawyer would not come within the ambit of Section 2(1)(o) of the Consumer Protection Act, 1986, as the client executes the power of attorney authorizing the Counsel to do certain acts on his behalf and there is no term of contract as to the liability of the lawyer in case he fails to do any such act. The State Commission held that it is a unilateral contract executed by the client giving authority to the lawyer to appear and represent the matter on his behalf without any specific assurance or undertaking.

However, this verdict of the State Commission was reversed by the National Consumer Disputes Redressal Commission (NCDRC) in the Revision Petition titled as D. K. Gandhi versus M. Mathias on the ground that lawyers are rendering a service. They are charging fees. It is not a contract of personal service and that there was no reason to hold that they are not covered by the provisions of the Consumer Protection Act, 1986. It was held that though a lawyer may not be responsible for the favorable outcome of a case as the result/outcome does not depend only on lawyers’ work, but, if there was deficiency in rendering services promised, for which consideration in the form of fee is received by him, then the lawyers can be proceeded against under the Consumer Protection Act.

However, the said judgment of the NCDRC has now been stayed by the Hon’ble Supreme Court in the matter titled as “Bar of Indian Lawyers vs. D. K. Gandhi”. The said case is still pending adjudication before the Hon’ble Supreme Court of India.

Thus, the question whether the lawyers are covered under the Consumer Protection Act or not is still pending before the Hon’ble Supreme Court of India.  However, as on date, the lawyers do not come under the purview of Consumer Protection Act.

Policy recommendations/clarification

The Padma Awardee Doctors Forum and the Heart Care Foundation of India (HCFI) would seek clarification and would also encourage the Government of India to issue clarification that the services rendered by the medical professionals are not covered under the Consumer Protection Act.

Also, if required, the Padma Awardee Doctors Forum and HCFI would seek clarification from the Hon’ble Supreme Court of India, Hon’ble High Courts of various states of the country that the services rendered by medical professionals are not covered under the Consumer Protection Act.

List of Authors

Name

Designation

Dr KK Aggarwal

President, Heart Care Foundation of India; President, CMAAO; Past National President, Indian Medical Association

Dr AK Bhalla

Co-Chairman, Dept. of Nephrology, Sir Ganga Ram Hospital, New Delhi

Dr AK Grover

Chairman, Dept. of Ophthalmology, Sir Ganga Ram Hospital, New Delhi

Dr Anoop Misra

Chairman, Fortis-C-DOC Centre of Excellence for Diabetes, Metabolic Diseases and Endocrinology, New Delhi

Dr Arvind Lal

Chairman and Managing Director, Dr Lal Path Labs, New Delhi

Dr AS Soin

Chairman, Institute of Liver Transplantation and Regenerative Medicine, Medanta-The Medicity, Gurgaon

Dr Ashok Seth

Chairman, Fortis Escorts Heart Institute, New Delhi and Head, Cardiology Council, Fortis Group of Hospitals, New Delhi

Lt General BN Sahi

Cardiologist, St. Stephen’s Hospital, DLF Phase III, Gurgaon

Dr DS Gambhir

Group Director, Cardiology, Kailash Hospital, Greater Noida

Dr Ganesh Mani

Chairman, Cardiothoracic and Vascular Surgery, Max Smart Super Specialty Hospital, Saket, New Delhi

Dr GK Khatri

Physician, Public Health Expert, Technical Advisor on Lung Health, World Lung Foundation

Dr Harsh Mahajan

President, Indian Radiology & Imaging Association (IRIA); Founder, Mahajan Imaging, Diagnostic Imaging Centre, New Delhi

Dr Kalyan Banerjee

Founder, Dr. Kalyan Banerjee Clinic, New Delhi

Dr KK Sethi

Chairman and Managing Director, Head of Cardiology, Delhi Heart and Lung Institute, Panchkuian Road, New Delhi

Dr KK Talwar

Chairman, Dept. of Cardiology, Max Healthcare Institute Ltd, Saket, New Delhi

Dr M Khalilullah

Cardiologist  and Cardiothoracic Surgeon, The Heart Centre, New Delhi

Dr M Wali

Internal Medicine Specialist, Sir Ganga Ram Hospital, New Delhi

Dr Madan Mohan

Founder- Chairman of the MM Eyetech Institute, New Delhi

Dr Mahesh Verma

Director and Principal, Maulana Azad Institute of Dental Sciences, MAMC Complex, New Delhi

Dr Malvika Sabharwal

Gynecologist, Apollo Spectra Hospitals, Karol Bagh, New Delhi,

Dr Neelam Kler

Professor and Chairman, Dept. of Neonatology, Institute of Child Health, Sir Ganga Ram Hospital, New Delhi

Dr Nikhil Tandon

Endocrinologist, Head of the Department (Endocrinology, Metabolism and Diabetes), AIIMS, New Delhi

Dr Nitish Naik

Cardiologist, AIIMS, New Delhi

Dr NK Pandey

Chairman and Managing Director, Asian Hospital, Faridabad, Haryana

Dr NM Shroff

Ophthalmologist/Eye Surgeon, Kailash Colony

Dr NP Gupta

Chairman Kidney and Urology Institute, Medanta-The Medicity, Gurgaon

Dr P Lal

Chairman, Metro Group of Hospitals; Director Interventional Cardiology, Cardiology & CTVS, Metro Hospitals and Heart Institute, Noida, Uttar Pradesh

Dr P Venugopal

Cardiovascular Surgeon and Hospital Administrator; Former AIIMS Director, New Delhi

Dr Raman Kapoor

Chairperson, Dept. of Acupuncture, Sir Ganga Ram Hospital, New Delhi

Dr Randhir Sud

Chairman, Institute of Digestive and Hepatobiliary Sciences, Medanta-The Medicity, Gurgaon

Dr RK Grover

Oncologist and Former Director and Chief Executive Officer, Delhi State Cancer Institute, New Delhi

Dr Sanjeev Bagai

Chairman and Managing Director, Nephron Clinic, New Delhi

Dr Saumitra Rawat

Chairman and Head, Dept. of Surgical Gastroenterology and Liver Transplant, Sir Ganga Ram Hospital, New Delhi

Dr SC Manchanda

Cardiologist and Senior Consultant, Sir Ganga Ram Hospital, New Delhi; Former Professor and Head, Dept. of Cardiology, AIIMS, New Delhi

Dr TS Kler

Chairman, PSRI Heart Institute, New Delhi

Dr Upendra Kaul

Chairman, Batra Heart Centre and Dean Academics and Research of BHMRC, New Delhi

Dr Yash Gulati

Senior Consultant Orthopedic Surgeon, Indraprastha Apollo Hospitals, New Delhi