A well-implemented regulation will ensure that patient care improves, while also creating safeguards that don’t let private establishments put all the onus of error on a doctor.
Bob Dylan, the Nobel Prize winner for literature 2017, wrote a popular song following the death of boxer Davey Moore in a fight. It was called ‘Who Killed Davey Moore’. The wordings of the song are significant:
Who killed Davey Moore
Why an’ what’s the reason for?
“Not me,” says the gambling man
With his ticket stub still in his hand
“It wasn’t me that knocked him down
My hands never touched him none
I didn’t commit no ugly sin
Anyway, I put money on him to win
It wasn’t me that made him fall
No, you can’t blame me at all”
Pradipto Dasa (name changed), an average shopkeeper from the Kalibarhi area of Kolkata, came to us last year with a nagging knee pain which was treated in at least three different private hospitals in his city without much relief. Two of these three hospitals have a big name in Kolkata. He had undergone two key hole surgeries and one open surgery, only to be told that there is nothing wrong. The total expenditure incurred for knowing that “nothing” was wrong was close to Rs 2.5 lakh.
The young man harboured a benign tumour around the knee, which was completely missed by all three surgeons. It was easily cured by us with a simple, one-time surgery. Last week, he returned for a routine follow-up and happily told me that he was very happy to know that ‘Didi’ has tightened the screws against private hospitals in the state. He was vindicated for his missed tumour, he thought.
Mamata Banerjee, the chief minister of West Bengal, has brought in a new legislation called the West Bengal Clinical Establishments (Registration, Regulation and Transparency) Act, 2017, to regulate the working of private clinical establishments in the state. The said Act has been brought in after repealing the (existing) act of 2010. The provisions in Banerjee’s version of the Act call for stringent action against hospitals which stray from patient care. The Act has led to the creation of the West Bengal Clinical Establishment Regulatory Commission (WBCERC), which is a watchdog that will take care of hospitals not towing the ethical line.
The new legislation is already drawing flak from multiple corners, but mainly from private clinical establishments. Professional acquaintances and friends in Kolkata reveal that the medical fraternity is split down the middle, with equal support for and disapproval of the Act. Those who support the Act feel that there is an unfair attempt to paint the Act as being against doctors. According to them, the spirit of the Clinical Establishment Act of West Bengal is not against doctors per se, but against private clinical establishments only. Of course it will help in apprehending erring doctors, but it does not, in its provisions, specify methods to take direct action against doctors. The other group agrees with the fact that the Act is not directly against doctors, but the onus of an act of commission or omission will finally rest at the doorstep of the doctor. They feel that hospitals, in cases of neglect, will nonchalantly wash their hands, leaving the doctors to face the music. Both sides of this divide have a valid point which needs to be seen in a broader context.
Why was this Act necessary?
There isn’t an easier question to answer. We live in an extremely greedy neoliberal world, where everything and anything is up for sale. Healthcare too has not remained untouched by this unwavering attempt to capture wealth. The takeover of healthcare by private players (including big corporate groups) in India is nearly complete, with more than 78% of healthcare being delivered thorough the private system. Since so much of the healthcare sector is controlled by private enterprises, it is but imperative that the system will develop amoral flaws and hence need regulation. And there we see the need for an Act like the one introduced by the West Bengal government.
It won’t be wrong to conclude that the gradual dwindling of influence of the Medical Council of India (MCI) over the last decade or so has further necessitated the inception of such Acts. Embezzlement within the MCI by its past president(s) and other officials (some of whom were chargesheeted by the courts) is one of the worst tragedies in Indian medical practice. Not surprisingly, the muck within the MCI was so deep that the highest court had to intervene, undermining the role of an ethical body which is supposed to give “certificates of good standing” to its own doctors. The MCI, unlike its counterpart the General Medical Council (GMC) of the United Kingdom, has failed both in safeguarding the interests of its patients and in regulating doctors. There have been instances when the GMC has issued warnings to doctors for driving cars without proper insurance, as this is unbecoming of a responsible doctor. Compare that to the MCI, which has a very passive role in monitoring acts of neglect which appear now and then in the national media.
Having said this, the West Bengal (state) MCI still retains the power to act against doctors, as all complaints pertaining to medical impropriety will still be addressed to the state MCI either directly by the complainant or by the WBCERC.
I suppose Indian doctors and the Indian healthcare delivery system (both private and public) have committed enough faults in patient care to warrant the need for a more stringent body to look into the mess. The devil has been let loose for too long and Acts like the one in West Bengal are inevitable. What is surprising is that other state governments have not regulated medical practice through similar Acts, more so in the absence of a potent MCI. It is, therefore, wrong on the part of the medical fraternity to say that they are being targeted. They become targets in this kind of manner only because they are accountable to the people of this land, not by the virtue of an authoritative diktat but by their own misdeeds in patient care.
However, doctors’ concerns vis-à-vis the West Bengal Clinical Establishments (Registration, Regulation and Transparency) Act, 2017 are not without valid reasons. In big clinical establishments, say corporate hospitals, the doctors are only a small part of the money-making machinery. Most of these hospitals are run like profit-making businesses, with administrative controls on the doctors. To expect that such a hospital will take measures to safeguard the interests of its own doctors is laughable. The main aim of such a venal set up would be to put the onus of an error squarely on the doorstep of the doctor, jeopardising his/her career and hampering accountability and justice. It is thus imperative to build checks and balances within the Clinical Establishment Act, so that such hospitals do not get away with passing the buck to the doctor. With a good and distinguished panel of healthcare professionals (and not only bureaucrats) on the administrative bodies of the commission, such misappropriation can be taken care of.
A large part (in fact a majority) of clinical establishments in India are not run by corporate enterprises. They are run by individuals or a small group of doctors. Acts like the one in question are going to affect these hospitals (the so-called nursing homes) most profoundly. The owners of these clinical establishments seem to be the most perturbed by the establishment of the WBCERC. To be worried about accountability is often proof enough of dishonesty. The owners of such medical establishments need not be disquieted. There is a very simple way to get around this Act: Practice medicine with ethics! Stick to the tenets of the Hippocratic Aath and practice the art of medicine without fear or favour.
Like in Bob Dylan’s ‘Who Killed Davey Moore’, the crime must be owned up to. The onus of patient neglect cannot and should not be ignored. We, as doctors, have let the devil loose for too long. Immanuel Kant’s moralistic ethics of medical practice need to be retaught to the next generation of doctors, so that Acts like the one in question are not needed at all. But till that dawn breaks, there is no doubt that we need administrative and legal checks on doctors.
Shah Alam Khan is a professor in the Department of Orthopaedics at AIIMS, New Delhi. Views are personal.