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An Open Letter to the Prime Minister

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eMediNexus    30 December 2017

Observations on the National Medical Commission Bill 2017

Composition of the National Medical Commission

It is a three tier composition: a) As per section (4) of the Bill, Composition of the National Medical Commission, which will have an effective membership of 25, of which only 5 members (Part Time) will be elected. b) As per section (11) of the Bill, Composition of an Advisory Body to be known as the Medical Advisory Council. Totally Medical Advisory Council shall consist of about 60 members. All are nominated members. c) As per section (16) of the Bill, Composition of 4 autonomous boards to be known as the UGME Board, PGME Board, MAR (Medical Assessment and Rating) Board and EMR (Ethics and Medical Registration) Board. Each board consists of 3 members only and all these members will be nominated by Central Government. Totally these four boards shall consists of 12 members. They will constitute further sub committees to assist them. As such it is evident that the proposed commission will have 10% elected members (part time) and 90% nominated members. It is for this reason that it will not have a desired ‘representative character’ with reference to ‘elected and nominated / appointed members’ whereas present Medical council of India has 75% elected members and 25% nominated members.

Functions of the Commission

As per section (10) of the Bill, the functions vested with the Commission under the Act are generic and cosmetic in character. Thereunder it is to exercise appellate jurisdiction with respect to decisions of the autonomous boards.

As per section 10(1)(i) of the Bill, commission would be framing guidelines for determination of fee in respect of such proportion of seats not exceeding 40% in the private medical institutions. This operationally means that the fee regulation would be limited to a maximum of 40% seats in the private medical institutions, which is difficult to understand as to why such a ceiling and furthermore it could be anything from nil up to 40%, which is paradoxical in nature. It also brings into fore as to what would be the chargeable fee for those percentage of seats for which no guidelines would be framed by the commission. This operationally will mean that the present 15%, which is available to private institutions including deemed universities for charging higher fee, would stand augmented to the entire remainder which could be anything between 60% or more which is a real travesty of its type.

Functions of the Autonomous Board

As per section 26(1)(b) of the Bill, all permissions to start medical college/PG/superspeciality courses or increase in seats in MBBS/PG/superspeciality courses will be granted by MAR board directly, which will have only 3 members and all would be nominated by the central Govt.

Licentiate Examination

As per section (15) of the Bill, provision is made for introduction of licentiate examination as mandatory after acquiring MBBS qualification. Without qualifying the licentiate examination, no person will be enrolled in the National register and would be entitled to practice and do further post graduate courses. Further the standard and level of licentiate examination would be such that the students belonging to backward communities would find it greatly difficult to clear the same easily and handily. This would cause a great harm to them because they would neither be able to practice nor would be able to take admission to PG courses. In addition, even the students learning in medical colleges situated in remote areas as well as backward areas/states would also suffer in a similar manner. This handicap would be equally applicable to the students passing out from north-east region as well. The net result would be that thousands of students passing their MBBS examination belonging to backward communities learning from backward areas including north-east region would not be able to practice timely and also seek admission to PG courses for want of clearance of the licentiate examination because of its higher standards.

As per proviso 2, section 33(1)(d) of the Bill, it stipulates that ‘the commission may permit a medical professional to perform surgery or practice medicine without qualifying the National Licentiate Examination, in such circumstances and for such period as may be specified by regulations’. This operationally means that without ascertaining the required levels and certification thereto, the commission would be permitting people to practice surgery and medicine in an open ended manner is nothing less than legalizing quackery in an operational sense and playing with lives of the people at large. Such sweeping powers are not only illegal but will give ample scope of manipulation and corruption.

Separate National Register

As per section 55(2)(zl) of the Bill, the EMR Board shall maintain a separate National Register including the names of licensed Ayush Practitioners, who qualify the bridge course devised by the Commission. By an explanation, Ayush Practitioner has been defined as a person who is a practitioner of Homoeopathy or a practitioner of Indian Medicine of the Indian Medicine Central Council Act, 1970.

This act contemplates bridge courses even for the practitioners of homoeopathy to enable them to prescribe such modern medicines at such level as may be prescribed. It is worthwhile to note that the names of the BAMS and BHMS graduates are already registered with their respective councils. On availing the bridge course, they would be incorporated in a separate register maintained by medical commission, which would mean that they would be having dual registrations with two registering councils, which is neither open nor permissible. Further, the disciplinary jurisdiction on such persons with reference to breach of ethics is not indicated in the proposed bill as they have dual registrations to their credit. In a way, a classical privileged group would stand created by virtue of the proposed Bill. As such, these are the floodgates that have been opened up in terms of the statutory provisions for backdoor entry into medical profession entitling practicing modern medicine.

Imposition of Penalty

As per section (26)(1)(f) of the Bill, it is provided that MAR Board take such measure, including imposition of monetary penalty, against a medical institution for failure to maintain the minimum essential standards specified by the UGME Board or the PGME Board, as the case may be. The material point for consideration is that all the three monetary penalties are not to be less than one half and not more than ten times the total amount charged by such institution for one full batch of students of undergraduate course or postgraduate course as the case may be. It yields such wide period and discretionary power to the Board and in the name of charging fine, the permissibility of the period turns out to be substantial before the closure is invoked meaning that during the impending period the learner would be taught and trained in compromised ambiance resulting in impoverished teaching and ending up in generation of half-baked health manpower, which would be ill conducive to the healthcare delivery system.

Discretionary Powers for Relaxing Prescribed Regulatory Conditions

As per section 29(b) of the Bill, the MAR board is to look into ‘whether adequate faculty and other necessary facilities have been provided to ensure proper functioning of the medical college or would be provided within the time limit specified in the scheme’ while granting permission to start Medical college or PG courses. This vests the board with a wide discretionary power to accord approval on a hypothetical assumptive presumption that the stipulated minimum requirements would be completed in due course of time. This by itself entitles the MAR Board to permit learners to be taught and trained in compromised conditions impacting and prejudicing the desired quality of medical education.

Added to this is that, as per proviso 2, section 29(d) of the Bill, the MAR Board can relax the criteria for opening of the medical colleges at its discretion with the previous approval from the Central Government, which yields not only a wide authority but also provides adequate scope for availing the discretion for extraneous considerations. More so the regulatory stipulations, which are mandatory in nature and binding in character cannot be open for any concession or condonation vide discretionary authority.

The said discretionary authority is not only vested with the autonomous board but is also with the Central Govt. as well. Such dual / double discretions to waive the applicability of statutory stipulations governing prescribed requirements per se is bad in the eyes of the law and will end up in providing ample scope for free-flowing corruption to dwell and get deep rooted.

Central Govt. Empowered to Issue Directions

As per section 44(1)(2) of the Bill, although, autonomy is expected to be a hallmark of the National Medical Commission Bill, 2017 and the Boards thereunder are called as, “Autonomous Boards” in reality the same is a misnomer as in the said proposed Bill, the Central Govt. would be entitled to give directions to the Commission and autonomous boards on all the questions of policy, which would be binding for the commission and autonomous Boards to comply with. Further it is clearly stipulated that the decision of the Central Govt. whether question is one of the policy or not would be final and is not open for any require of any type. As per section 45 of the Bill, the Central Govt. would be within its rights to give such direction it may deem necessary to the State Govt. for carrying out all or any of the provisions of this Act and State Govt. shall comply with such directions. This also undermines the authority of the State Govt. and is inconsistent with the cardinal principles governing the federal polity as stipulated in the Constitution of India. Similarly, as per section 10(1)(f) of the Bill, state medical councils also have to comply with all such directions/policy of the National medical commission.

Impact on Employees of the Medical Council of India

As per section 58(3) and proviso thereto of the Bill, under the caption repeal and saving at its sub-section 3 clearly brings out that ‘on the dissolution of the medical council of India the person appointed as Chairman of the Medical Council of India and every other person appointed as the member and any officer and other employees of the that council and holding office as such immediately before such dissolution shall vacate their respective offices and such chairman and other members shall be entitled to claim compensation not exceeding three months’ pay and allowances for the premature termination of term of their office or of any contract of service. This clause impacts the employees of the council in a very substantial manner in regard to their full time salaried status and permanence of employment in character. It impacts their future in a big manner by rendering their permanent employment to a nullity in a sudden manner and renders them to a struggle for their lives and living as a whole. As such, it has human angle specially in the context of Article 21 read with article 12 of the Constitution of India, in as much as article 12 vests entitlement to decent life and living as a fundamental right to every citizen and article 12 mandates a state (in the instant case Medical Council of India) to be an ideal employer.

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