12 Oct 2023 6:01 AM GMT
The Supreme Court on October 10 issued notice on a writ petition which seeks directions to regulate advertisements by corporate hospital. The petitioner highlighted that while private medical practitioners are prohibited from advertising, such a restriction is not applicable to corporate hospitals.A bench comprising Justices Sanjay Kishan Kaul and Sudhanshu Dhulia issued notice to the...
The Supreme Court on October 10 issued notice on a writ petition which seeks directions to regulate advertisements by corporate hospital. The petitioner highlighted that while private medical practitioners are prohibited from advertising, such a restriction is not applicable to corporate hospitals.
A bench comprising Justices Sanjay Kishan Kaul and Sudhanshu Dhulia issued notice to the National Medical Commission, the Union of India and the Ethics and Medical Registration Board in a Public Interest Litigation filed by one Narayan Aniruddha Malpani. The petitioner sought directions for framing comprehensive guidelines to be followed by Corporate Hospitals, to ensure safe and ethical advertising and in order to have a holistic solution to the problem of illegal advertising and to prevent indirect breach of the statutory regulations by doctors affiliated to Corporate Hospitals.
At the outset, the petitioner said that an the alarming situation has been created by unfettered advertising by Corporate hospitals and the newly emerged venture capital funded health care start-ups, which has created an arbitrary, intraclass distinction between medical professionals and encroaches upon patients’ right to make informed healthcare choices, which not only results in manipulating and misleading them but also is in flagrant violation of Articles 14, 19 and 21 of the Indian Constitution.
Based on this, it has been argued that these instances of unethical advertising and illegal direct/indirect solicitation of work by Corporate Hospitals is in direct contravention of Regulation 6.1.1 and 7.11 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 promulgated under the National Medical Commission Act, 2019, (NMC Act, 2019) which expressly prohibit direct or indirect solicitation of work by medical practitioners whether practising independently or as part of a clinic/hospital.
However, it is important to note that the corporate hospitals are beyond the purview of the NMC Act, 2019 and the Ethics Regulations therein, and instead fall within the jurisdiction of Clinical Establishments Act (Registration and Regulation) Act, 2010.
“That this dichotomy results in a situation wherein the National Medical Commission (NMC) possesses limited to no authority over the advertising strategies employed by Corporate Hospitals. Thus, it becomes evident that, despite the uniform application of the Ethics Regulations of 2002 to all physicians without discrimination, those in association with hospitals are unfairly advantaged due to the advertising tactics employed by hospitals, thereby contravening the fundamental principles embodied in Regulation 6.1.1 and 7.11 of the Ethics Regulation of 2002. That such arbitrary intra-class distinction is in gross violation of fundamental rights guaranteed under Articles 14, 19 and 21 of the Constitution.,” the petition argued.
Moreover, the petition also pens down the statement of Objects and Reasons of the NMC Act, 2019, and states that the same makes it clear that this Act is meant to promote equitable and universal healthcare by making the services of medical professionals accessible to all citizens.
“However, the unfair advantage that Corporate Hospitals have over private medical practitioners, is on the contrary are indirectly giving corporate health care a boost at the cost of driving up health care costs and making healthcare unaffordable to the majority of the citizens of India, thereby making them inconsistent with the object of the NMC Act.,” the petition elucidated.
Corporate hospitals cannot utilize the shield of freedom of speech as a pretext to violate the mandate provided under the Ethics Regulation of 2002.
Moving forward, the petitioner also argued that the right to advertise which comes under the ambit of Right to Freedom of Speech (Article 19(1)(A) of the Constitution), affording Corporate Hospitals the liberty to engage in advertising, are subject to reasonable restrictions imposed by State (Article 19(2)). Thus, Regulation 6.1.1 and 7.11 of the captioned regulations, falls within the scope of such ‘reasonable restrictions’. The rationale given for the same by the petitioner is that the primary concern in healthcare is the well-being of patients and excessive or misleading advertising by doctors can lead to patients making uninformed decisions about their healthcare and also erode the fiduciary relationship between doctors and patients.
To bolster the said observations, the petitioner also cited the landmark case of Tata Press Limited v. Mahanagar Telephone-Nigam, (1995) 5 SCC 139, wherein it has been opined that although commercial speech is a part of freedom of speech and expression guaranteed by Article 19(1)(a), commercial advertisements which is a form of commercial speech is protected under Article 19(1)(a) but subject to Article 19(2). Though public is benefitted by the information disseminated through such advertisements, commercial speech which is deceptive, unfair, misleading and untruthful would be hit by Article 19(2) and so can be regulated/prohibited by State. Thus, unethical advertisements by Corporate Hospitals would come under reasonable restrictions on commercial advertisements within the meaning of Article 19(2) of the constitution and they cannot claim immunity from the same.
In view of the same, petitioner pleaded:
“That while the erstwhile Medical Council of India, presently the NMC, has consistently imposed penalties on medical practitioners, however, within this framework, corporate hospitals have enjoyed immunity from enforcement, as the NMC Regulations of 2002 do not extend their purview to these corporate entities, thereby affording them latitude to devise unconventional advertising strategies. Consequently, it is imperative to promulgate rigorous guidelines to govern the advertising practices of hospitals.
Petitioner has also emphasised upon an urgent need to establish clear guidelines delineating the accountability of corporate hospitals governed by The Clinical Establishments Act, 2010, in cases of violation of Ethics Regulations, 2002. Moreover, there is a need to harmonize the NMC Act, 2019 with the Clinical Establishments Act (Registration and Regulation) Act, 2010 in order to ensure that physicians working with Corporate Hospitals do not directly or indirectly benefit through such loopholes.
The petitioner was represented by Ms. Mohini Priya, AOR and Ms. Gayatri Virmani, Adv.
Case Title: Narayan Aniruddha Malpani v. National Medical Commission And Ors Diary No. 34769-2023 PIL-W