Consumer Bill Draft strikes off “Healthcare” from Services in the list: Implications for the Medical Profession & Health Care Services in India

Impact on the Medical Profession

The Consumer Protection Act, 2019 passed to address e-commerce and online trade challenges, product liability, and safety and dispensing consumer justice in alternative dispute redressal mechanisms. The amending law had a seminal bearing on the medical profession and health care system as apparent from the express verbis exclusion of healthcare from the purview of ‘service.’ This provision exonerates the doctors from liability for defective services, and negligence of duty is a moot question to be examined.

A careful perusal of the law reveals that it means service of any description made available to potential users to encompass the medical profession and health care service as well. The statutory interpretation and judicial enunciations are wide open in the context of the Indian Medical Association v. V.P. Shantha Case decided by the Supreme Court in 1996 also necessitated to be interpreted de novo. Under this backdrop, the paper takes a legal stance on the impact of the Consumer Protection Act, 2019 on the medical profession and health care delivery system in India.

The Paradigm Shift

More than three decades of working in the Consumer Protection Act, 1986 necessitated a paradigm shift in the post-globalization and digitization phase of India. The Consumer Protection Act, 2019, passed and received the president the assent on 9 August 2019, repealing the Consumer Protection Act, 1986, to strengthen consumer rights and dispensing consumer justice. It envisages a robust grievance redressal mechanism in the context of e-commerce and e-governance. The slew of legal measures entails the inclusion of e-commerce, Central Consumer Protection Authority (CCPA), alternative dispute resolution (ADR), suo moto action against unfair trade practices, pecuniary jurisdiction, amplifying of grounds of complaints, penalties to deceptive advertisements and product safety and liability. 

Verbis exclusion of healthcare

From the standpoint of the medical profession, it is worthwhile to inquire that the new law has excluded the health care system. The provision legislation has been targeted to appease the medical fraternity in a bid to assuage the medical fraternity, which has expressed apprehensions over its detrimental application. The medical profession is unnecessarily feeling excited about this change in the euphemistic tone of the Consumer Protection Act, 2019. On the contrary, a careful perusal reveals that there is ample scope of filing cases against the deficiency of health care services by aggrieved persons for medical negligence and redressal. The moot question is as to whether to express verbis exclusion of healthcare from the purview of ‘service’ did exonerate the doctor’s liability?

Secondly, the services provided free will seems to have excluded, which too is a question of fact and will have to be evaluated on a case to case basis. Thirdly the Consumer Protection Act, 2019, is spacious enough to include healthcare under ‘all goods and services’ as well? The assertion that ‘service of any description made available to potential users’ under the Consumer Protection Act, 2019 can be statutorily interpreted and liberally construed as a useful piece of legislation. In such a case, absolving doctors from the purview Consumer Protection Act, 2019 will be a travesty of consumer justice. One should not forget that the Consumer Protection Act, 2019 does not even bar the judicial enunciations in Indian Medical Association v. V.P. Shantha Case by Supreme Court in 1996 being a good piece of law.

Legal Pragmatism

The Consumer Protection Act, 2019, and its implications for the medical profession and health care services in India have discoursed in legal pragmatism. The study applies an analytical method of legal research by undertaking the legislative survey and scrutiny of consumer laws under the Parsonian Effect theory in the context of health care services. The Consumer Protection Act, 2019, is interpreted in the light of established canons of statutory interpretation with harmonious construction of a beneficial piece of legislation.

Healthcare Services – Couched with litigation labyrinths

One of the salubrious provisions under the Consumer Protection Act, 2019 is the expeditious consumer disputes resolution by courts as well as alternative dispute resolution (ADR) such as mediation, conciliation, and arbitration. This has wider ramifications for the medical profession by developing an inbuilt and in-house ADR mechanism in all hospitals to adjudicate medico-legal cases. The Consumer Protection Act, 1986 also promised for the expeditious consumer disputes resolution, but sordid experiences of the delay and latches are well known. The medical services being under essential services are often couched with litigation labyrinths, often resulting in undue harassment of medical fraternity.

Monetary penalties rise to deter vexatious litigants

On this count, the Consumer Protection Act, 2019 seems progressive in settlement of disputes by way of mediation. This opens the possibility of settlement at the stage of admission of a complaint by mutually acceptable terms between parties. As per the provision, a mediation cell will be attached to each district, state, and National Commission and its regional Benches for quick resolution of disputes. This is supplemented by the increasing the pecuniary jurisdiction of all three commissions. It is opined that the increase in the pecuniary jurisdiction will arrest the tendency of frivolous claims and fasten disposal of cases at appellate levels. The quantum of monetary penalty in case of defiance of any order of commissions has also been raised to deter vexatious litigants.

No intention to put a curtain on deficiency of services

Thus, according to the Consumer Protection Act, 2019 services which are provided for free per se will not be considered as a consumer and complaint against the deficiency of service cannot sustain generally. Even the services which are free are not barred by the judicial scrutiny if there is a severe miscarriage of consumer justice. On this analogy, the paid medical services to patients will automatically come under the purview of the Consumer Protection Act, 2019. The new law did not intend to put a curtain on the doctors-patient health services deficiency a dampener for medical negligence or malpractice.

In a nutshell

Law comes heavily on unfair trade practices, which will eventually allow private hospitals to undergo consumer auditing rigorously. At the same time, the Consumer courts need to undergo Wednesbury review as it is inherently ill-equipped to judge complex medico-legal litigation and often leads to a serious miscarriage of consumer justice to doctor and patient. According to an estimate, access to health care services is compounded by the high out-of-pocket expenditures of more than three-quarters of the population. These results in the increasing financial burden of health care and exacerbate poverty to about 39 million additional people falling into the poverty trap every year.

It raises the vital question of equity in health care services and public health delivery systems. It will be a misnomer to consider the Consumer Protection Act, 2019, as medical negligence blind law; rather it sets the tone for the ethical and patient-oriented medical professionalism to curb unfair medical practices and undue enrichment.

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