THE CONSUMER PROTECTION ACT 1986 (CPA, COPRA)

 

The consumer protection Act was brought into existence for the protection of interests of the consumer and for settlement of consumer dispute, within a limited time frame and with fewer expenses. In April 1992, the National Commission, on appeal from the kerala State Commission decided that the medical services be covered under COPRA. This enable a consumer (patient) to make a complaint to a redressal forum in respect of a defective service, if the service has been paid for. Defective in the context of a doctor's services means negligent. Deficiency or negligence means faultm imperfection, shortcoming or inadequacy in quality, nature and manner of performance of the medical service rendered by a hospital and/or member of the medical profession. Several amendments in the Act have been passed in the Consumer Protection (Amendment) Act 1993.

            Consumer Disputes Redressal Forums have been established at three different levels as given below.

  1. ‘District Forum' by the State Government in each district of the state by notification. The jurisdiction to entertain complaints is limited to those where the value of the goods of services and the compensation, if any claimed, does not exceed rupees 20 lakhs.
  2. ‘State Commission' by the State Government in the state by notification. It compensation, if any, claimed exceeds rupees 20 lakhs but does not rupees 1 crore and appeals against the orders of any District forum within the state. It can call for the records and pass appropriate order in any consumer dispute which is pending before or has been decided by any District Forum within the state, where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularly.
  3. ‘National Commission' (National Consumer Disputes Redressal Commission) by the Central Government. It has the jurisdiction to entertain complaints, where the value of the goods or services and compensation, if any, claimed exceeds rupees 1 crore and appeals against the orders of any State Commission. It can call for the records and pass appropriate orders in any consumer dispute, which is pending before or has been decided by any State Commission, where is appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

 

dLimitation Period

 

The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen, unless the complaint satisfies the forum or the commission as the case may be, that he had sufficient cause for not filing the complaint within such period and the reason for condoning such delay is recorded.

            Any appeal preferred from the order of the district or the State Commission under the Act, must be filed within thirty days of the order.

            Under s 23 of the Act, any person, who is aggrieved by an order made by the National Commission whether in its original or appellate jurisdiction has a right to prefer an appeal to the Supreme Court within a period of 30 days will not stand as a bar, if the Supreme Court is satisfied that there has been a sufficient cause for not filing it in the period.

            A final order is required to be passed within 90 days of the issue of the notice or the receipt of the complaint filed by the opposite party if the goods forming subject matter of the dispute are not required to be sent to a laboratory for testing, and 150 days if such testing is required to be done. No time limit has been laid down for the disposal of an appeal or revision petition.

 

dPenalty

 

In case of dismissal of frivolous or vexatious complaints-where a complaint instituted before the District Forum, the State Commission or, as the case may be, the National Commission, is found to be frivolous or vexatious, it shall for the complainant shall pay as penalty to the opposite party such cost, not exceeding ten thousand rupees, as may be specified in the order.

            Thus, District Forums have original jurisdiction, while the State and the National Commission are vested with original, appellate and revisional jurisdictions.

            As per the judgment of the Supreme Court of India on 13 Nov 1995, the medical services delivered on payment basis, clearly fall, within the ambit of the Act. Similarly, the hospital or the nursing homes, which provide free service to some of the patients who cannot afford to pay the fees, but the bulk of the service is rendered to the patient on payment basis, are also covered under this treatment and all the charges for consultations, diagnosis and medical treatment are borne by the insurance company, the service rendered to him by a medical practitioner would not be free of charge and would, therefore, constitute service as defined in the Act.

            The Supreme Court judgment also enlarges the definition of negligence by enunciating that violation of an established law is also negligence and where a service provider is guilty of such negligence, no further proof is required to hold him liable for his action.

 

 

dCriminal Negligence

 

A careful medical man, will, in most cases, not be exposed to any legal action and also prove that reasonable care and diligence and necessary professional skill had been exercised in the course of treatment if he observes the following rules.

  1. Never criticize another colleague.
  2. Always confirm your diagnosis with generally approved methods such as laboratory tests and in bone or joint injuries always on X-rays and see that the plaster is not too tight
  3. Advise immunization whenever there us danger if infection-particularly tetanus.
  4. In diagnosing cancer, ask for a biopsy, X-ray etc, without any delay as loss of time may mean life or death.
  5. Always make sure of the preparation, before you inject or use otherwise. Never fail to give antibiotics, if indicated.
  6. It is the duty of every doctor to be well informed of developments in medical practice.
  7. The administration of an anaesthetic or the performance of an operation should not be undertaken without the consent of the patients, or his guardian, if he is minor or unconscious, after the nature and consequence of the operation have been explained to him or to his guardian. But in cases of accident or other emergency where delay in dangerous an operation may be performed without the consent of the patient or his relative or guardian, if the medical attendant thinks that the operation is necessary to save the life of the patient. Under s 92, IPC he is protected against any harm caused to a person in good faith.
  8. In a case where the surgeon is not sure what he would have to do during the operation owing to some obscure signs, he should obtain a written authority to use his discretion in doing what appears to him, to be in the best interests of the patient. In case of criminal wounding, an operation ought not to be performed, unless it is necessary.

In such a case, care should be taken to keep an accurate record of the state of the                                    patient before the operation is performed. It is also better, before performing any operation, to get opinion and help of another surgeon, if possible. Proper precautions should be taken to avoid operating on a wrong patients or the wrong part of a patient.

  1. Post-operative care of an operated patient is his legal responsibility-if necessary proper care by another consultant colleague must be arranged. He should never fail to attend an urgent call from a person whom he is treating.
  2. An anaesthetist should be a duly qualified man, and he should always administer a generally accepted anaesthetic, after he has examined the heart, urine etc, of the patient to prove that he had used reasonable care and skill in administering it. It must also be remembered that it is dangerous to anaesthetize persons with sickle cell trait as it precipitates sickling. Persons with helminthic infestations should be treated properly sicking. Persons with helminthic infestations should be treated properly before anaesthesia as ether acts as an irritant to nematodes and my result in death.
  3. In the case of death from anaesthesia, the surgeon or anaesthetist should at once report the matter to the police for holding a public enquiry.

Sudden death during anesthesia is of considerable medico-legal importance, one should death from anaesthesia, the surgeon or anaesthetist should at defective judgment of an anaesthetist. Any of the following factors may be responsible for death during anaesthesia:

  1. giving or repeating of drugs like morphia, atropine, Nembutal etc, before anaesthesia, at wrong time;
  2. vagal inhibition while putting an intratracheal tube;
  3. as a result of faulty use of relaxants and hypotensive drugs;
  4. accidents, which may cause obstruction of airway of spasm resulting in asphyzia;
  5. the amount and type of drug used for anaesthesia and duration of anaesthesia and duration of anaesthesia may have a fatal effect;
  6. hypotension, as a result of spinal anaesthesia;
  7. inadvertently giving a wrong gas during anaesthesia or rarely causing an explosion. Dangerous combination are oxygen and cyclo-propane or ether, which may be ignited by an accidental spark;
  8. shock due to operation itself, myocardial or coronary disease of the heart, fat or air embolism, hypothermia or incompatible blood transfusion may be other causes. While doing a postmortem, it is difficult to evaluate the cause of death, as usually there is no evidence of sudden fall of blood pressure, cardiac irregularities or glottic spasm, which may have been responsible for causing sudden death. Toxicological analysis may help.

 

 

dRIGHTS OF AN UNBORN CHILD

 

Law recognizes the foetus as a special aggregation of cell with a potential for independent life and in this way protects the rights of an unborn child. It has legal rights, such as the right to inherit, the right to sue, the right not to be harmed by drugs and the right to bring a tort action.51 So an abortion may be interpreted as killing a potential heir or a potential tort suit bringer. Abortion is a form of murder, in which the principal is almost never prosecuted, but the abortionist may be prosecuted. However, doctors treating any woman of child bearing age must be protected from the risk of being accused of harming a foetus.52 Some accepted examples of preconception injuries to parents leading to disabilities to their children are:

a)      Failure to give a rhesus negative woman anti-D gamaglobulin in the first 72 hours after the birth of her first Rh+ child;

b)      Radiation of genital organs causing genemutation, there could be liability if negligence were proved; or

c)      A congenital syphilitic child born as a result of negligent transfusion to the mother before conception, of a syphilitic donor.

However, the risk is limited if any of the parents are aware of a risk of a disabled child being born. Legally, the child is bound by mothers' exemption clauses but is unable to sure upon her contracts.

            It must also be remembered that the common law protects a prefessional man, who has acted in accordance with the standards of reasonably competent man.

 

 

THE TRANSPLANTATION OF HUMAN ORGANS BILL 1994

 

The Bill provides for the regulation of removal, storage and transplantation of human organs for therapeutic purposes, and for the prevention of commercial dealings in human organs and for matters connected therewith or incidental thereto.

            It has been called the Transplantation of Human Organs Act 1994 and came into effect 4 Feb 1995, with the Government of India Gazette notification. With the Act coming in force, brain death has acquired legal status in India. The Act has also caused the Ear Drums and Ear Bones Act 1982 and the Eyes Act 1982 to be repealed.

 

dAuthority for the Removal of Human Organs

 

If any donor had, in writing and in the presence of two or more witnesses (at least one of whom is a near relative of such person) unequivocally authorized at any time before his death, removal of any human organ of his body, after his death, for therapeutic purposes, the person lawfully in possession of the dead body of the donor shall, unless he has any reasons to believe that the donor had subsequently revoked the authority aforesaid, grant to a registered medical practitioner, all reasonable facilities for the removal, for the therapeutic purpose, of that human organ from the dead body of the donor.

            Where no such authority was made by any person before his death, but no objection was also expressed, the person lawfully in possession of the dead body of such person may, unless he has reason to believe that any near relative of the deceased person has objection purposes, authorize the removal of any human organ of the deceased person for its use for therapeutic purpose.

            Removal of the organ can be made by no person other than the registered medical practitioner, who shall satisfy himself that life is extinct in such body or, where it appears to be a case of brain-stem death, that such death has been certified.

            Where any human organ is to be removed from the body of a person in the event of his brain-stem death, such death is certified by a board of medical experts consisting of:

  1. The registered medical practitioner in-charge of the hospital in which brain-stem death has occurred;
  2. An independent registered medical practitioner being a specialist nominated by the appropriate authority;
  3. A neurologist or a neurosurgeon to be nominated by the registered medical practitioner from the panel of names approved by the appropriate authority;
  4. The registered medical practitioner treating the person whose brain-stem death has occurred.

Where the brain-stem death of any person, less than eighteen years of age occurs, any of the parents of the deceased person may give authority, for the removal of any human organ from the body of the deceased person . no such authority can be given by a person to whom such has been entrusted solely for the purpose of interment, cremation or other disposal.

            In case of a dead body in a hospital or prison no claimed within forty-eighty hours from the time of a death, the authority for the removal of any human organ may be given by the person in charge, for the time being of the management or control of the hospital or prison, or by an employer of such hospital or prison authorized in this behalf by the person in charge of the management or control there of.

            Where the body has been sent for postmortem examination, (medico-legal/pathological) the person competent under this Act to give authority for the removal of any human organ from such dead body may, if he has reason to believe that such human organ will not be required for the purpose for which therapeutic purpose, of that human organ of the deceased.

            No human organ removed from the body of a donor before his death shall be transplanted into a recipient unless the donor is a near relative of the recipient.

            If any donor authorizes the removal of any of his human organs before his death, for transplantation into the body of such recipient, not being a near relative, as is specified by the donor by reason of affection or attachment towards the recipient or for any other special reasons, such human organ shall not be removed and transplanted without the prior approval of the authorization committee.

            The eyes or the ear drums or the ear bones may be removed at any place, from the dead body of any donor, for therapeutic purposes, by a registered medical practitioner.

            No donor and no person empowered to give authority for the removal of any human organ shall authorize the removal of any human organ for any purpose othe than therapeutic purpose.

 

dOffences and penalties

 

Any person who renders his services to or at any hospital and who, for purposes of transplantation, conducts, associates with, or helps in any manner, in the removal of any human organ without authority, shall be punishable with imprisonment for a term which may extend to five years and with fine which whoever-

a)      Makes or receives any payment for the supply of, or for an offer to supply, any human organ;

b)      Seeks to find a person willing to supply for payment of any human organ;

c)      Offers to supply any human organ for payment;

d)      Initiates or negotiates any arrangement involving the making of any payments for the supply of, or for an offer to supply, any human organ;

e)      Takes part in the management or control of a body of persons, whose activities consist of or includes the initiation or negotiation of any arrangement referred to in clause (d), or

f)        Publishes or distributes a cause to be published or distributed, any advertisement-

                                 i.            Inviting person to supply for payment of any human organ;

                               ii.            Offering to supply any human organ for payment; or

                              iii.            Indicating that the advertiser is willing to initiate or negotiation of any arrangement referred to in clause (d), Shall be punishable with imprisonment for term of two to seven years and shall be liable to fine which shall not be less than ten thousand rupees but may extend to twenty thousand rupees.

Any offence punishable under this Act shall be tried in the court of a Metropolitan Magistrate or a Judicial Magistrate of the first class.

 

dDONATION OF CORNEA

 

Under the Bombay Corneal Grafting Act 1957, if any person either in writing at any time, or orally in the presence of two or more witness during his last illness, has expressed a request that his eyes be used for therapeutic purposes after his death, the person lawfully in possession of his body after his death may, authorize the removal of the eyes from the body provided the removal shall be effected objects to the removal. The Bombay Corneal Grafting (Amendment) Bill of 1976, now allows any qualified ophthalmologist to remove cornea in a private clinic after seeking Government's permission. Many other states have also passed such acts.

 

The following two Acts extends to the whole of the Union Territory of Delhi:

  1. The Eyes (Authority for use for Therapeutic purposes) Act 1982 (No 29 of 1982): To provide for the use of eyes of deceased persons for therapeutic purposes and for matters connected therewith.
  2. The Ear Drum and Ear Bones (Authority for use for Therapeutic purposes) Act 1982 (No 29 of 1982): To provide for the use of ears of deceased persons for therapeutic purposes and for matters connected therewith.

 

The Bombay Anathomy Act 1949: (Adapted and modified by the Adaptation of Laws Order, 1960) provides for the supply of unclaimed bodies of deceased persons to hospitals and medical and teaching institutions (for Therapeutic purposes or), for the purpose of anatomical examination and dissection.

 

Maharashtra Kidney Transplantation Act 1982: This Act has made provisions for use of kidneys of deceased persons, and for donation of kidneys, for therapeutic purposes. It extends to the whole of the State of Maharashtra.

 

 

 

THE DELHI ARTIFICIAL INSEMINATION (HUMAN) ACT 1995

This Act is applicable in the National Capital Territory of Delhi. It regulates the donation, sale and supply of human semen and ovum for the purpose of artificial insemination. It requires registration and yearly renewal by any person intending to carry on a semen bank. The semen bank before accepting the semen for artificial insemination shall test the donor for the presence of Human ImmunoDeficiency Virus Type 1 and 2 (HIV 1 and 2), antibodies by Enzyme Linked Immuno Sorbent (ELISA) Kit and screen for HIV surface antigen and if found negative, only then, the donor shall be allowed to donate. The donated semen shall be stored either by cryo-preservation of liquid nitrogen freezing or any other safe method for a minimum period of three months in order to exclude window period of HIV 1 and 2 infection in the donor. Second ELISA test is performed on the donor after three months, and if negative, the semen shall then be used. It is also required by the practitioner, under this Act to:

  • Seek the written consent of the husband and the wife, seeking artificial insemination (AI);
  • Test the recipient for HIV 1 and 2 and other sexually transmitted diseases before performing AI;
  • Not segregate the XX/XY chromosomes for AI;
  • Seek the written consent of the recipient for using the semen on the basis of only one ELISA test, being negative, where facilities for cryo-preservation and liquid nitrogen for semen are not available.