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People Without A Degree Performing Surgeries: Uttarakhand HC Directs State To Seal Hospitals Not Adhering To Clinical Establishment Act
It has to be said with immense satisfaction that in a landmark judgment with far reaching consequences, the Uttarakhand High Court in Ahmad Nabi v State of Uttarakhand and others in Writ Petition (PIL) No. 120 of 2016 delivered on August 14, 2018, the Uttarakhand High Court has passed several directions to the state government and hospitals/clinical establishments in the state to strictly adhere to the Clinical Establishment (Registration and Regulation) Act, 2010. The Division Bench of Acting Chief Justice Rajiv Sharma and Justice Manoj Tiwari passed several directions in a petition that was filed by Ahmad Nabi who among other things also pointed out how many hospitals and clinical establishments were not complying with the said Act.
Case Background
Before proceeding ahead, let us first jog our memory a little back to fully analyse and understand the intricacies involved in this case. The petitioner initially filed a complaint pertaining to two hospitals namely BD Hospital Doraha Bazpur and Public Hospital Sarkari Road Kela Khera, district Udham Singh Nagar. In the complaint, Nabi alleged that the two hospitals were being run by persons without having any medical degree and without any registration under the Clinical Establishments (Registration and Regulations) Act, 2010.
To be sure, he also further stated that operations were being conducted by the persons having no medical degree in surgery. Thereafter, the Chief Medical Officer issued two notices to the said hospitals in March 2016. An enquiry was conducted and a report was filed.
As it turned out, it was found that 10 patients were admitted for surgery in BD Hospital, Doraha Bazpur, however, no doctor having an MBBS degree was found to be practicing in the hospital. Thus, the two hospitals were sealed. The court noted that the State had given a provisional registration to these two hospitals on the basis of two doctors having a degree.
As things stood, while one had a degree in BHMS (Homeopathic Medicine) and BUMS (Unani Medicine). The petitioner, therefore, contended that the State has not adhered to the Uttarakhand Clinical Establishments (Registration and Regulation) Rules, 2013 as well as the Operational Guidelines for Clinical Establishment Act and Clinical Establishment Act Standard for Hospital (Levels 1A & 1B). The state government in its affidavit stated that necessary instructions have already been issued by the Chief Medical Officer to medical officers in respective territories.
Going forward, the state also sought to explain the non-compliance of Clinical Establishments (Registrations and Regulation). The court was informed that the Indian Medical Association had requested to the authorities concerned to keep the provisions of clinical establishment in abeyance, as the expenditure of the patient would increase five times. Thus, the District Magistrate, Nainital, had requested the Secretary, Medical to the State of Uttarakhand, to keep the registration pending till the matter is reviewed.
Final Order
Needless to say, the court clearly and convincingly stated that, “Once the enactment has been made, it must be implemented/carried out in letter and spirit.” The court further recorded its utter surprise at the irrefutable fact that surgeries were being performed by people with no degree! This is terrible! The life and safety of many patients are put in jeopardy due to all this!
It goes without saying that the life and safety of patients is supreme! Para 37 of this landmark judgment mentions categorically and convincingly that, “Right to life includes medical facilities to be provided by duly qualified doctors with latest equipments. The patients in the private hospitals should not be overcharged. They should get the medicines at the lowest rates. The rates of diagnostic tests and other tests shall be reasonable and not exorbitant.”
Truth be told, the court also held in para 36 of this landmark judgment that, “It is not believable that the surgeries in the hospitals i.e. B.D. Hospital, Doraha, Bazpur and Public Hospital, Sarkari Road, Kela Khera, District Udham Singh Nagaar are performed by doctors having B.H.M.S. (Homeopathic medicine degree) and B.U.M.S. (Unani Medicine Degree). The surgery is very serious procedure and it can be performed only by duly qualified surgeon. In a hospital, in which, there was no surgeon, ten patients were found to be admitted for surgery.” Moving ahead, para 38 further goes on to say that, “It is better to have no law than not to enforce it. The State Government cannot be permitted to keep the enforcement of the Act at abeyance. The State Government has also adopted the Clinical Establishment Act Standard for Hospital (Level 1A & 1B), Standard No.CEA/Hospital 001.” According to the said standard, every aspect of such clinical establishments has been looked into. The court reiterated those standards set in terms of medical infrastructure and other infrastructure that are mandatory.
Simply put, para 39 elaborates on with what all hospitals should be equipped. It points out that, “According to the Clinical Establishment Act Standard for Hospital (Level 1A & 1B), Standard No. CEA/Hospital – 001, there is categorization of hospitals providing minimum standards for Allopathic hospitals under Clinical Establishment Act, 2010. According to it, the building shall have a board displaying the name of the hospital at a prominent location. The name of the care provider with registration number is required to be displayed. The access of the hospital shall be comfortable for the patient and/or attendants/visitors. There shall be signage for “No Smoking” at prominent places. The access shall be provided within the requirements of “Persons With Disabilities Act”. The hospital shall be developed and maintained to provide safe, clean and hygienic environment. The hospital should have clean public toilet(s). The minimum space shall be required as per Annexure 1. The indicative list of furniture and fixtures shall be required as per Annexure 2. The hospital should have adequate medical equipment and instruments, commensurate to the scope of service and number of beds. There shall be established system for maintenance of critical equipment. Equipment shall be kept in good working condition through a process of periodic inspection, cleaning and maintenance. The list of medical equipment and instruments is to be provided as per Annexure 3. The hospital should have adequate drugs, medical devices and consumables commensurate to its scope of services and number of beds. Emergency drugs and consumables shall be available at all times. The drug storage shall be in a clean, well lit, and safe environment. The hospital is required to have qualified/trained medical and nursing staff. The support/paramedical staff shall be qualified and trained. The personal record of qualified doctors/paramedical staff is required to be maintained. There should be segregation, collection, transportation, storage and disposal of general waste, as per law. The Medical Records is required to be maintained in physical and digital format. The hospital is required to maintain confidentiality, security and integrity of records. The hospital is required to register all patients. The patient is required to be guided and informed about the Patients’ Rights & Responsibilities. The billing shall be done as per the Hospital tariff list. Each patient is required to undergo an initial assessment by qualified/trained personnel. Further management of patient shall be done by a registered medical practitioner. The patient and family shall be treated with dignity, courtesy and politeness. The prescription shall include name of the patient, date, name of medication, dosage, route, frequency, duration, name, signature and registration number of the medical practitioner in legible writing. The distance between beds shall be 1.0 metres. The door width shall be 1.2 metres. The labour room shall contain facilities for medication, hand washing, charting and storage for supplied and equipment. The labour room shall be equipped with oxygen and suction.”
Finally and most importantly, in the concluding part of the judgment, para 40 of this landmark judgment goes on to point out that, “Accordingly, the writ petition is disposed of by issuing following mandatory directions: -
A. The state of Uttarakhand is directed to seal all the clinical establishments which are not registered under the Clinical Establishments (Registration and Regulation) Act, 2010 forthwith.
B. The state government is directed to ensure that all the clinical establishments registered under the said Act follow the Operational Guidelines for Clinical Establishments Act as well as Clinical Establishment Act Standard for Hospital (Level 1A & 1B).
C. All the clinical establishments throughout the state of Uttarakhand are directed that the patients are not unnecessarily put to diagnostic tests. Only necessary diagnostic tests are ordered to be undertaken to access the clinical condition of the patient.
D. All the doctors throughout the state of Uttarakhand including government doctors and doctors serving in clinical establishments are ordered to prescribe only generic medicines which are readily available. No patient shall be forced to buy branded medicines.
E. The state government is directed to prescribe the rates for various diagnostic tests or procedures or surgeries or treatments extended by clinical establishments, within one month from today.
F. The outer wall of the Intensive Care Unit (one of its side) shall be fitted with transparent glass, closed with cloth curtains to enable the attendants of the patient to see the patient. The attendants of the patient shall be informed about the health/condition of the patient after every 12 hours and the same is ordered to be videographed.”
All said and done, the ball is now in the court of the Uttarakhand State Government. The Division Bench of Uttarakhand High Court comprising of Acting Chief Justice Rajiv Sharma and Justice Manoj Tiwari has clearly and convincingly in a landmark judgment issued mandatory directions which must be complied with by Uttarakhand State Government. All such hospitals which are not complying with the Clinical Establishment Act must be sealed and necessary action must be taken against them!
