The Delhi High Court has called for framing of medical protocols at national level for guidance of medical practitioners doing aesthetic surgeries and hair transplantation procedures.
Justice Anoop Kumar Mendiratta directed the Centre as well as the Delhi Government to take steps for ensuring that "mushrooming Salons" carrying hair transplantation procedures under unprofessional hands without requisite qualification and in absence of medical supervision, are checked.
Stating that requisite safeguards need to be ensured for safety of the persons who undertake the said treatment, the Court observed thus:
"Also, the public at large needs to be made aware that such hair transplantation procedures/aesthetic surgeries can be fatal at the hands of unqualified professionals, which require strict medical supervision. In case any such medical protocols have not been established for guidance of medical practitioners, the same need to be framed at national level, in view of upcoming aesthetic surgeries and hair transplantation procedures."
The Court also directed the Commissioner of Police, Delhi to take necessary measures to ensure that incidents of medical malpractice are not repeated and action is taken against such Salons wheresoever the hair transplantation treatment or aesthetic surgery is being extended at the hands of technicians or unqualified professionals without any medical supervision in defiance of established protocols and norms.
The Court was dealing with a plea seeking directions to for transfer investigation in respect of death of one Athar Rasheed, brother of the petitioner, to Central Bureau of Investigation (CBI) or any other independent agency.
The deceased, aged about 35 years was stated to have expired due to sole negligence during the process of hair transplantation undertaken at a Hair Salon in city's Rohini area.
It was averred that after deceased returned back on taking treatment, he developed serious pain over his scalp followed by swelling on the face and shoulders and had to be admitted at Escorts Heart Institute and Research Centre.
On 26.06.2021, the deceased passed away during course of treatment. It was also submitted that none responded from the concerned Centre and further no action was taken by the police despite complaint being made and running from pillar to post.
The Court was of the view that on the face of record, there appeared to be gross negligence as it was only pursuant to the filing of the petition and directions issued by High Court that the criminal process was set into motion in respect of death of deceased.
The Court said that the deceased faced severe complications due to treatment at the hands of unqualified professionals.
"The matter has larger ramifications as number of such treatment Salons are mushrooming, wherein the self- proclaimed technicians are rendering the service of hair transplantation/aesthetic surgery which is completely in teeth of medical ethics and in defiance of standard protocol to be followed for the purpose of hair transplantation/aesthetic surgery," it added.
Furthermore, the Court added that hair transplantation being an aesthetic surgery needs to be performed by qualified dermatologists or trained surgeons with informed consent of the patient.
The Court also said that it is critical to evaluate the risk benefit ratio from the medical perspective and that it is imperative on the persons performing the transplantation surgery to be aware of the medico legal issues.
"The fact that hair transplantation surgeries are being carried out in the Salons with the aid of technicians is a matter of great concern since neither they are fully qualified nor any such procedures can be carried except under supervision of a trained surgeon or dermatologist. The case points out not merely a dereliction or negligence or standard of care required in such medical procedures but a complete medical malpractice, as the hair transplantation was not carried under medical supervision of trained and qualified professionals. The concern of this Court remains that no harm befalls on innocent patients undertaking such procedure without being aware that the same needs to be carried by professionals with requisite competence and knowledge of hair transplantation," the Court said.
The Court also opined that in the present case, there was neither an informed consent of deceased, nor the risk involved in the hair transplantation was disclosed to the deceased, which resulted in acute complications finally resulting in the death.
The Bench was of the opinion that medical malpractice needs to be checked even if the harm was not intentional, since the same was carried under unprofessional hands by merely delegating it to the technicians.
"The criminal liability in such circumstances is writ large and is much more than gross negligence or recklessness. Even if it is assumed that patient autonomy is to be accepted, it is writ large that most of the patients are still unaware that the process needs to be carried by the qualified professionals. In absence of professional medical supervision at Salons, the process may be a great risk which may lead to irreversible damage or even loss of life, as in the present case," the Court said.
It also observed that the public at large needs to be made aware as to the implications if one proceeds with hair transplantations along with standard protocols which are needed to be followed in this regard.
"The process may even require consultation and management with other specialists in case one has been suffering from co-morbidities or any other risk bearing complications. Filling up of the consent form in such cosmetic surgeries, as such, may be important to ensure that patients give an informed consent and are aware of the procedures to be followed," it said.
Accordingly, while passing directions to the Centre and Delhi Government, the Court directed that a copy of the order be forwarded to the Secretary, Ministry of Health and Family Welfare, Government of India as well as Secretary (Health), Government of NCT of Delhi, National Medical Commission, Delhi Medical Council and Commissioner of Police, Delhi for necessary action and filing of status report before the next date of hearing.
The matter will now be heard on July 27.
Title: AZHAR RASHEED v. STATE NCT OF DELHI AND ORS.
Citation: 2022 LiveLaw (Del) 440