Transplantation Of Human Organs & Tissues Act No Bar To Enquiry For Professional Misconduct Under IMC Ethics Regulations 2002

The Kerala High Court recently considered the question of whether an authority under the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002 is empowered to issue notice and conduct enquiry on a complaint regarding alleged misconduct in transplantation of human organs, since the latter is governed by the Transplantation of Human Organs and Tissues Act, 1994, and answered the question in the affirmative. The Division Bench comprising Chief Justice S. Manikumar and Justice Shaji P. Chaly observed that the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002 (hereinafter, Ethics Regulations 2002) is a self contained code since it clearly specifies the procedure and manner in which disciplinary action has to be proceeded with, and no bar to this authority could be found in the provisions of the Transplantation of Human Organs and Tissues Act, 1994 (hereinafter THOTA 1994), either when there is any professional misconduct, or to conduct an enquiry on a complaint received in this regard. "..... going through the provisions of Transplantation of Human Organs and Tissues Act, 1994 and Ethics Regulations, 2002, we are of the opinion that the statutory authority was duty bound to conduct necessary enquiry or investigation when a complaint is received even from a third person, including a physician because, even that physician has a duty to expose unethical conduct on another physician and that the truth and reality of the allegations in the complaint can be found out only if an enquiry is conducted".As per the factual matrix, the appellants/writ petitioners in the instant case were doctors at Aster Medcity, Kochi. On 27th November 2011, they had received show cause notices from the 2nd respondent, Travancore-Cochin Council of Modern Medicine, Thiruvananthapuram, directing them to furnish explanation, in response to a complaint filed by the third respondent herein, alleging serious misconduct in the conduct of organ transplantation surgeries conducted in Aster Medcity Hospital on 5.3.2019 and 7.3.2019 on 5 persons. The Director of Medical Education (DME), which is the Appellate Authority, upon receipt of the complaint, initiated due proceedings to investigate the matter and issued an order dated 17th September 2019, informing Aster Medcity of the proposed steps that would be taken.While so, the 3rd respondent (Dr. S. Ganapathy), filed another complaint before 2nd respondent, which was a replica of the former. It was in this context that the appellants herein contended before the Single Judge vide writ petition that the 2nd respondent could not enquire into the allegations contained in the complaint since the enquiry and adjudication of such complaints can only be under the provisions of THOTA, 1994 and the rules framed thereunder.It had been contended before the Single Judge by the appellants herein, that the complaints filed were outright defamatory. It was contended that apart from THOTA, 1994, there was also Kerala Network for Organ Sharing (KNOS) which has been envisaged as an additional process for brain death certification process, and each of the steps therein had been followed by them. It was contended that the allegations levelled in the complaint were restricted to alleged contraventions of the provisions of THOTA, 1994 only. It was further contended before the writ court that the 2nd respondent could not enquire into the allegations in the complaint since enquiry into the same can only be done as per the provisions of THOTA, 1994 and the rules framed thereunder. The 3rd respondent on the other hand, contended that a writ court would not normally entertain a writ petition challenging a notice issued, and also that challenging an order passed by a competent authority appointing a competent person to enquire into a complaint was also unheard of. It was submitted that the notice was only for ascertaining their version on the allegations, and no penal action was even stipulated. It was further pointed out that effective alternative remedies were available to the petitioners. It was also contended that it was the professional misconduct of the doctors involved that led to the death of two persons. Under the Travancore - Cochin Medical Practitioners Act, 1953 also, the Travancore Cochin Medical Council is the appropriate authority to enquire into complaints of professional misconduct. The Registrar can conduct the enquiry, and any person aggrieved by the same were at liberty to file an appeal to the council, as provided under Section 33 and second appeal to the Government, as provided under Section 35 of the Act, respectively. It was further contended that the DME was the Appropriate Authority under the THOTA, and in case of violation of any provisions of THOTA, it could suspend or cancel the registration of hospital for transplantation alone as provided under Section 16. On this basis, he contended that the action under both...

Transplantation Of Human Organs & Tissues Act No Bar To Enquiry For Professional Misconduct Under IMC Ethics Regulations 2002

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