Composition of the National Medical Commission
One of the sections of the proposed Bill provides for the composition of the National Medical Commission, which will have a) a chairperson b) 12 Ex-officio Members c) 11-part time members d) an Ex-Officio Member Secretary. Thus, it would have an effective membership of 25 along with the Chairman of which only 5 members will be elected (Part Time Members who will be elected by the registered medical practitioners from among themselves from such regional constituencies and in such manner as may be prescribed.
Therefore, the proposed commission will have 1/5th members (20% elected members and 80% appointed / nominated members). It is for this reason it will not have a desired ‘representative character’ with reference to ‘elected and nominated / appointed members’
The composition of the four autonomous boards (Ethics and Medical Registration [EMR] Board, Medical Assessment and Rating [MAR] Board, Postgraduate Medical Education [PGME] Board, Undergraduate Medical Education [UGME] Board) prescribed under the Bill does not include any elected member there under. Each board will have only three nominated members, one president and two members and that to with full powers to recognize or derecognize a medical college, powers today vested with 130 members.
The present MCI is a representative body with representatives from central government (8), state representatives (one from each state), state council’s professional doctors (one each), representatives from each health university etc. covering all stake holders.
Functions of the Commission
The functions vested with the Commission under the Act are generic, advisory and cosmetic in character. There under it is to exercise appellate jurisdiction with respect to decisions of the autonomous boards except that of the EMR Board as brought out in the proposed Bill. However, in one of the sections, it is stated that a medical practitioner or professional who is aggrieved by the decision of the EMR board may prefer an appeal to the Commission within 60 days of the communication of such decision, which is contradictory.
One of the sections of the proposed act provides an appellate jurisdiction exclusively to a medical practitioner or professional to prefer an appeal with the commission if aggrieved with the decision of the EMR Board. However, the said clause is absolutely silent in regard to providing appellate jurisdiction to the complainant, which is a substantial omission with reference to equity and providence for justice.
Functionally commission would be framing guidelines for determination of Fee in respect of such proportion of seats not exceeding 40% in the private medical institutions and deemed universities which are governed under the provisions of this Act. This operationally means that the fee regulation would be limited to a maximum of 40% seats in the private medical institutions and deemed universities, 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. This will also have political implications and can be a root cause of future corruptions.
Separate National Register
The Bill states that the EMR Board shall maintain a separate National Register including the names of licensed Ayush Practitioners who qualifies the bridge course referred in one of the sections in such manner as may be specified by Regulations. By an explanation, Ayush Practitioner has been defined as a person who is a practitioner of Homeopathy or a practitioner of Indian Medicine as defined in Clause (e) of Sub-section 1 of section 2 of the Indian Medicine Central Council Act, 1970.
One of the sections of the proposed Bill contemplates bridge courses even for the practitioners of homeopathy to enable them to prescribe such modern medicines at such level as may be prescribed. This is materially inconsistent with the definition of the word ‘medicine’ as depicted in one of the sections wherein it is defined as ‘medicine means modern scientific medicine in all its branches and include surgery and obstetrics but does not include veterinary medicine and surgery’.
As such these are the flood gates that have been opened up in terms of the statutory provisions for backdoor entry into medical profession entitling practicing modern medicine.
Dismantling Screening Test
In one section, the proposed Bill clearly stipulates that ‘no person who has obtained medical qualification from a medical institution established in any country outside India and is recognized as a medical practitioner in that country shall, after the commencement of this Act and the National Licentiate Examinations becomes operational, be enrolled in the National register unless he qualifies the National Licentiate Examinations.
It is strange that, a filter in the name of screening test, was placed to ensure that the degree holders from medical institutions outside country are tested in regard to their required level of knowledge and upon clearance of the screening test were required to do one-year internship for the hands-on training under supervision in a recognized medical college to ensure that he is capable of rendering healthcare services to the people at large in the Indian context. Upon the promulgation of the National Medical Commission Bill 2017, the Indian Medical Council Act, 1956 would stand repealed and therefore the clause 13 thereat prescribing screening test would be rendered to nullity.
The proposed bill stipulates in one of the sections that “The National Licentiate examination shall become operational on such date, within three years from the date of commencement of this act, as may be appointed by the Central Govt., by Notification. This operationally means that till such time the National Licentiate examination is notified, the Indian possessing foreign Medical qualification would be entitled to seek permanent registration and practice medicine without any screening rider or filter. As such, during the interregnum a vacuum would be created, and the same would be filled in what manner is not provided for anywhere in the proposed Bill. This may amount to backdoor entry of over one lakh foreign graduates.
It is imperative to note that there are several students who have sought admission to medical institutions outside India after procuring eligibility certificate by the Medical Council of India and therefore, are legitimately entitled to appear for the screening test after acquiring foreign graduate medical qualification. Further, the foreign qualifications which are there in the existing schedule in a limited number appended to the Indian Medical Council Act, 1956, with the annulment of the said Act would also become redundant.
By removal of the said filter and in the teeth of the liberal provision incorporated one of the sections of the Bill, it will open floodgates for the compromised degree holders to practice without they being tested for the desired levels and country will be flooded with half- baked and ill-equipped medical practitioners playing havoc with the health of Indian population at large.
UG-NEET exam will be in English or other languages with common counselling. There will be a uniform National Licentiate Examination operational within three years with no PG NEET and with common counselling.
Licentiate exam will be a hindrance to students who have passed MBBS from North East States and or who belong to SC/ST or other backward classes. They will never be able to pass such common exams. Also, there is no provision for AYUSH doctors practicing modern medicine to undergo licentiate exam. This amounts to restricting post MBBS students to practice and allowing half-baked AYUSH doctors to start practicing modern medicine with a ‘bridge course’.
Composition of Autonomous Board
One of the sections of the proposed Act stipulates that each autonomous board shall consist of President and two members. The composition does not provide for inclusion of any elected member therein which goes to indicate that the membership of the said Boards would be totally appointed / nominated without any representation of an elected member and thus they would not have any representative character as is desired and warranted.
Discretionary Powers for relaxing prescribed regulatory conditions
In one of the sections of the Bill, a proviso is provided, which entitles the MAR Board to 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 also is with the Central Govt. as well. Such dual / double discretions to waive the applicability of statutory stipulations governing prescribed requirements per seis bad in the eyes of the law.
Permission to practice without qualifying the National Licentiate Examination
Proviso to one of the sections 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 of the required levels and certification thereto the commission would be permitting people to practice surgery and medicine is nothing less than legalizing quackery in an operational sense.
Removal of embargo on Foreign Citizens practicing in India
‘A foreign citizen who is enrolled in his country as a medical practitioner in accordance with the law regulating the registration of medical practitioners in that country may be permitted temporary registration in India for such period and in such manner as may be specified by a Regulation’ as clearly stipulated in a proviso to one of the sections. An uninhibited permission to practice medicine by a foreign citizen without any reasonable restrictions is harboring intrinsic dangers in itself.
Imposition of Penalty
The Bill provides in one of the sections 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, in accordance with the regulations made under this Act.
It is further provided that the “medical institution which has been imposed a first-time monetary penalty fails to take any corrective action, the MAR Board may impose a second-time monetary penalty for continued failure which shall be higher than the first- time penalty and on continued failure, impose a third-time monetary penalty which shall be higher than the second-time penalty:
Provided further that all the three monetary penalties imposed under the first proviso shall not be less than one-half, and not more than ten times, the total amount charged, by whatever name called, by such institution for one full batch of students of undergraduate course or postgraduate course, as the case may be:
Provided also that even after the imposition of third-time penalty, if the failure continues, the MAR Board shall forward its report to the Commission recommending to withdraw the recognition granted to the medical qualification awarded by that medical institution.
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 a institution for one full batch of students of undergraduate course or postgraduate course as the case may be. Apart from the heavy computation the contemplation of batch of students of undergraduate course or postgraduate course fall short of indicating required specifics.
For example, the penalty can range from 5 crore to 100 crore, enough variation to have political implications or root cause for corrupt practices.
Also, a medical college which has not been compliant for want of financial resources how will the college pay the fine and if closes down what will happen to these students admitted for these three years.
Central Govt. empowered to issue directions
Although, autonomy is expected to be a hallmark of the National Medical Commission Bill, 2017 and the Boards there under are called as, “Autonomous Boards” in reality the same is a misnomer as under one of the sections 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.
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.
In one of the sections, the proposed bill further stipulates that 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 is also undermining the authority of the State Govt. and is inconsistent with the cardinal principles governing the federal polity as stipulated in the Constitution of India.
The proposed Bill takes away the autonomous status of state medical councils “(d) promote, co-ordinate and frame guidelines and lay down policies by making necessary regulations for the proper functioning of the Commission, the Autonomous Boards and the State Medical Councils; and (f) take such measures, as may be necessary, to ensure compliance by the State Medical Councils of the guidelines framed and regulations made under this Act for their effective functioning under this Act.