Aditi Iyer

CEHAT
(Centre for Enquiry into Health and Allied Themes)

Research Centre of Anusandhan Trust
519 Prabhu Darshan, 31 S. Sainik Nagar, Amboli
Andheri West, Bombay 400 058, India

Tel: (+91)(022) 625 0363,
Fax: (+91)(022) 620 9203

Email: amin@cehat.ilbom.ernet.in

(A slightly modified version of this paper has been published in the journal, Health for the Millions, Vol.22, No.4, July-August, 1996: New Delhi, under the title, "Crisis of Credibility, The tale of Medical Councils")

The debates succeeding the inclusion of medical services under the ambit of the Consumer Protection Act (CPA) have inevitably focused public attention on the question of accountability of the medical system and the institutional framework within which it operates. This concern is not unnatural when you consider the profession’s proximity to the delicate division between life and death, ill-health and physical well-being. Unlike other professionals, doctors and nurses tend to step into people’s lives when they are vulnerable and to quit after making some attempt to restore health and hope in them. This is an idealised conception at best but one that clearly contributes to their appeal and heroism.

However, this image gets tarnished when it is contextualised in the everyday world of medical practice. Considering the fact that an overwhelming majority of doctors (namely, practitioners of allopathy, homeopathy, ayurveda, unani and siddha) are employed in an individual capacity in the profit-orientated private sector, the sick do not receive medical care without making an on-the-spot payment. So central are monetary transactions to the healing process and so repeated is the experience of it, that doctors have begun to resemble traders in the public eye and the services they render are seen as commodities to be purchased at a price.

Accompanying this altered image are reports of medical negligence, malpractice and unethical practices that have increasingly made their way into the mainstream media. With aggrieved patients and/or their crusading relatives taking doctors through the orchestrations of civil and criminal lawsuits, the unquestioned trust that once underpinned the doctor-patient relationship, has all but disappeared.

It is at this juncture that the CPA, which admits medical suits into the speedier realm of consumer courts, has made its appearance. Reactions to the judgement have been sharp and a defensive medical leadership has been unable to intelligibly counter the charges that have come their way. It is obvious that the time for renewal has finally come however vehemently such change might be resisted.

Traditionally, the responsibility of regulating and disciplining the medical profession has been vested with the councils. Councils serve as gatekeepers between the state and the profession and between professionals and the public. How have they been utilising the powers vested in them? Why are they faced with a crisis of credibility? Since medical and nursing councils have not yet received the full attention of a sociological study in India, experiential accounts constitute the mainstay of conventional knowledge. The present article, which recounts a brief encounter with some of the councils located in the western Indian state of Maharashtra, only adds to this collective wisdom. The methodology that was employed was an uncomplicated one : a discussion based appraisal at one point in time. The key informants were the registrars and the President or vice President, wherever possible.

Medical Councils as Regulatory Bodies

The facility of regulation of the medical profession through the offices of a council originated in the mid-nineteenth century in England. As recounted by Waddington (1984), the General Medical Council (GMC), which was constituted under the dictates of the Medical Act of 1858, was the outcome of a protracted struggle for radical reform in a profession deeply divided between the economically and politically powerful group of consultants and the relatively disenfranchised group of general practitioners. The Act served to uniformly bring all qualified medical practitioners under the governance of a single law and to elevate the organisation of the profession to the national level. More importantly, it provided legal monopoly to these practitioners over all other healers. In return, the profession implicitly assured potential patients that the quality of services that they would receive would be good. The vehicle through which this promise was sought to be lived out was a professional code of ethics to be enforced by the newly constituted council.

The medical profession in India followed the example set in England. This is no surprise since many of the modern developments in the organisation of medicine and nursing were grafted into the Indian context through the instrumentation of colonial power. The early registration acts were legislated in Bombay, Bengal and Madras between 1912 and 1918. However, these were applicable only to practitioners of "western" medicine (viz., allopathy). The threat of non-recognition of Indian medical degrees by the GMC led to the creation of the Indian Medical council in 1933. For such a council to be looked upon favourably by the British, it soon became obvious that its membership would have to be largely nominated and official (Jeffery 1988). It was also evident that close association with indigenous practitioners would be incompatible with international recognition (ibid). Therefore, acts designed to cover practitioners of ayurveda, unani and homeopathy were legislated separately some 20 years after the first provincial acts. The decisions to have separate councils and nominees at the helm of affairs are historical precedents that have had a crucial bearing on the the framework within which regulation of the medical profession takes place.

To this day, each of the systems of medicine are governed by separate councils at the central and state level. In Maharashtra, for instance, allopathic practitioners are governed by the Maharashtra Medical Council (MMC), homeopathic practitioners are affiliated to the Maharashtra Council of Homeopathy (MCH), practitioners of the Indian Systems (namely, Ashtang Ayurveda, Sidda, Unani and Tibb) fall under the purview of the Maharashtra Council of Indian Medicine (MCIM) and dentists are grouped under the Maharashtra State Dental Council (MSDC). The Maharashtra Nursing Council (MNC) and Maharashtra State Pharmacy Council are bodies that regulate the para-medical professions.

Similiarly, all councils continue, to this day, to have a substantial proportion of nominated members, many occupying positions of power in the state bureaucracy. How ironic that by their very constitution, Indian councils short shrift the principles of democracy and autonomy upon which the reform movement leading up to the formation of its archetype - the GMC - was so solidly built.

Interactions with the Councils

It becomes apparent even after the most cursory interaction that councils are inaccessible bodies. The real gatekeepers between the lay public and the councils are the Registrars. However, the task of meeting them and acquainting them with the research under way was not easy. The reason for this is simple enough. Registrars are not easily found. This was particularly true of the MSDC where the Registrar remained elusive during six visits over three weeks. Even if Registrars are easily found, researchers are confronted with wariness, distrust and even active non-cooperation. This was the case with the MMC and MNC. Therefore, inaccessible personnel and inaccessible information make councils remote and difficult to study.

Although councils are separate entitites, they are not impervious to inter-professional dominance. This we discovered in the case of the MNC since its President is actually the vice-President of the MMC.

On reflection, the responsiveness of councils to our research agenda appear to bear some relationship to their status. This is why the ones that had little to lose by an interview (like the MCIM, the MCH and even the MSDC) were more forthcoming, at times dispensing with some of the usual formalities, to accommodate us.

Legislative Framework for Regulation

Councils are legally constituted bodies. Legislation defines the scope and limits of their funtioning. Since health appears on the concurrent list of the Indian constitution, the acts enacted by the central government complement - and coexist with - those legislated by the states. Legislation empowers councils to control the entry and exit of practitioners. This automatically brings into the picture, three major spheres of authority: medical education, registration and medical practice.

1. Medical Education:
   For medical education to be considered legitimate, universities (or medical institutions) and the courses offered by them need to be approved by the councils. All the acts, especially those governing the central councils, carry lists of approved qualifications and universities in three schedules. These schedules are not rigid but are open to new additions and removals. How this can be done has been mentioned in the acts and it appears as if the central and state level councils have dual responsibility vis-a-vis universities and colleges.
   

   Interestingly, councils have only recommendatory powers in the matter of medical education: the ultimate decision on recognition rests with the state and central governments. This is particularly so in the matter of post graduate education where the council’s role is restricted to that of an advisor.
   

   This is a limited role to say the least but one that is compounded in the case of the MCIM which is a council only in name. The precursors to the MCIM were the Board and Faculty of Ayurvedic and Unani Medicine which separately tackled the areas of medical practice (of registered practitioners) and medical education. Following an amendment to the Maharashtra Medical Practitioners’ Act in 1982, these bodies were dissolved to make way for a council with 19 members. Until the formation of such a council, the Administrator was expected to assume and retain all powers.
   

   It is 13 years since this radical restructuring and there is still no council in sight, despite periodic representation by the Registrar to the state government. What exists instead is the authority of the Administrator even though the persons who have occupied this seat have changed with unfailing regularity. According to the Act, the Administrator should be the Director of Ayurved, a technical person employed at the Directorate. However, due to a number of political manoeuvrings, the responsibility of such a post has been handed over to the Deputy Secretary of the Department of Medical Education. This has proved to be a politically expedient appointment.
   

   In the recent past, the number of non-aided Ayurvedic and Unani colleges in the state have been increasing at an alarming rate for reasons that are not hard to see. According to the Registrar, private colleges with less than optimum facilities get recognition through their connections with politicians who pressure the Deputy Secretary to turn in "favourable reports". Being a government employee, the Deputy Secretary cannot but oblige. Thus, the absence of a medical council has allowed the politician-private college nexus to thrive which has, in turn, produced doctors with indifferent training.
   

   The politician-private college nexus has worked in the instance of the course on "electropathy" too. The only difference is that the course continues to be unacceptable to all councils. When we met the Registrar, the MCIM was being pressured to grant the recognition that was not forthcoming from the other councils.
   

   
   
2. Registration of qualified practitioners:
   After successfully completing a recognised degree in a recognised institution, new entrants into the profession are registered with councils. Councils comply with legally ordained registration systems which show no uniformity. The MSDC, for example, levies an initial fee of Rs.100 and follows it up with an annual renewal fee of Rs.15 while the MCIM accepts a one-time payment of Rs.500 and follows it up with mailed questionnaires once every five years. These differences have no apparent rational basis and revisions in the law do not come easily. As a result, the rupee value of registration fees has been diminishing consistently and the loss of what could be a useful source of revenue has created permanent dependence on the state for monetary support. This loss was particularly brought to our notice by the Registrar of a cash strapped MSDC which barely manages to pay its two employees and to run its very modest establishment.
   

   An activity that routinely engages almost all clerical employees of the councils is the one of updating the register. Here the inclusion of names of newly qualified practitioners is a simple enough activity. What is more problematic is the maintenance of a credible register: although renewals are automatic upon payment of the renewal fee, deletion of members who may have expired or migrated does not routinely take place. The onus of informing the councils invariably rests with the practitioners and their families. Since there is virtually no price to be paid for lapses that might occur (de-facto deregistration can be easily remedied by the payment of a defaulters fee), practitioners tend to be lax about re-registering themselves in the state to which they have migrated. As a result, registers are not always reflective of the geographical location of practitioners. The implication of this lapse becomes more crucial during elections.
   

   Elections to councils take place by postal ballot with the register serving as the electoral list and the Registrar serving as the Returning Officer. The non-deletion of deceased or departed members from the register creates room for bogus voting. This was evident - and has been well documented - in the instance of the last elections of the MMC (Kamat 1993:1-3).
   

   Related to the maintenance of the register is the question of making this document accessible to the public. Here councils are expected to publish their register every year. This does not happen in practice. The reason revolves around the inadequacy of funds. The only councils that have attempted to publish their register (with all the inherent inconsistencies) have been the MCH and MMC, largely due to their somewhat recent elections. The MCIM and the MSDC have not been forced to do this because elections have not been held for a long time (since 1982 and 1984 respectively) and due to their financial stringency.
   

   
   
3. Medical Practice:
   The right to practice medicine, to hold office in institutions run by the government or local bodies, to sign or authenticate medical or fitness certificates and to give evidence at inquests or courts of law comes automatically to all duly qualified and registered professionals. To safeguard these rights, the central acts make provisions for punitive action against unqualified persons usurping them. However, this conviction has to be by a criminal court. The councils simply do not have the power to penalise unqualified practitioners. This is ironic since it runs contrary to their monopolistic intent.
   

   All acts enjoin the councils to prescribe standards of professional conduct and etiquette through the design of a code of ethics. This serves two purposes: it provides practitioners with professional guidelines and secondly, it sets the standard against which the nature and content of professional misconduct can be ascertained. However, the code of ethics remains, by and large, an unimplemented document. What is interesting is that even this document needs to be ratified by the Governor.
   

   All councils at the state level are empowered to discipline erring practitioners on their rolls and the inquiries that they hold enjoy the status of civil courts. This is the most dynamic aspect of their regulatory role. They can not only enforce court attendance and examination under oath but can also compel the production and submission of documents, and issue commissions for examination of witnesses. Disciplinary action may take place either through suo moto action instituted by the councils or in response to complaints from aggrieved patients. These have to be written and duly signed.
   

   According to the acts and their rules, inquiries are unnecessary if the practitioner has been convicted by a criminal court or under the Army Act (of 1950). In cases like these, the President is required to place before the council a copy of the judgement whereupon the Council decides the punishment to be meted out.
   

   In case an inquiry is felt to be essential, the council is required to serve notice on the charged practitioner with details of the charges and copies of all relevant documents. The practitioner is asked to furnish a written statement. All inquiries are held in camera where the onus of proof rests with the complainant.
   

   It is here that councils can be daunting. People who have approached councils for redress find themselves pitched against powerful lobbies, antagonistic court procedures, delayed judgements or summary dismissals. In a recent case filed in the MMC, the complainant maintained that the hearing of the case was conducted without reference to the medical records of the case. Not only that, he found that his statements had been altered to favour the accused doctors (Raheja 1996: 11). These sentiments are reflected in the narratives of others who have been bold enough to go to press with their stories too.
   

   However, when councils are asked about their disciplining role, they become notoriously tight-lipped. The MMC, which displayed uncommon hostility towards us, has particularly been singled out for attack from all corners. Health groups like the Medico Friend Circle (Bombay Group) that has had more sustained contact with the MMC maintain that the MMC has failed to produce a record of action taken against erring doctors, even when forced to do so in the past (Jesani and Nandraj 1994:26).
   

   Even the more obliging councils do not ordinarily divulge specific information about the charges made in each of the complaints coming to them, the suo moto action they might have instituted or the manner in which they might have handled their cases. What one is served instead are broad guidelines about the procedures which are mentioned in the acts.
   

   How many cases do councils handle in a year? How many have they had to deal with during the last five years? The Registrar of the MSDC, who has only recently been appointed, did not know the answer to this. However, discussions with the peon and clerk who have been there for a longer time revealed that an average of one case per year would have come up since 1990. The MCIM, on the other hand, has ceased to play any substantial role in the disciplining of members. According to the Registrar, the number of complaints have drastically declined due to the absence of a council. As a result, during the last five years, only two complaints were lodged. Finally, the President and vice President of the MCH reported that an average number of five to six complaints get lodged a year which are reviewed by the council and referred to the police whenever deemed necessary.
   

   On the whole, councils as disciplining bodies are neither accessible to the lay public nor tough on fellow professionals. They appear to lack the dynamic leadership that is willing and capable of bringing ethical issues into the core of everyday practice. Their apathy is evident through their silence on many of the burning issues of the day.

Concluding Note

Medical Councils are not really autonomous bodies when you consider their relative incapacitation vis-a-vis the powers assigned to the state. Further, councils and the legislation under which they are constituted cover only those practitioners who are part of the organised profession. Unqualified practitioners - quacks, as they are commonly called - are untouched by the law. This group includes not just unqualified doctors but nurses and other auxiliary workers too. Therefore, the laws are restrictive in their scope.

Whatever regulation takes place is passive. There appears to be no evidence of suo moto inquiries - or at least information of this nature is withheld - and the major form of disciplining is in response to written complaints. Even if complaints are put through the orchestrations of full-fledged inquiries, they rarely result in the enforcement of punitive measures. The in-camera proceedings rule out the possibility of public censure and de-registration rarely takes place. Therefore, the councils function more as guild bodies protecting the self-interest of the profession than as regulatory bodies which enforce some social accountability in the profession. Some activists have labelled them as "irresponsible trade unions" whose self-interest overrides public interest (Ravindra 1995:13), others wager that they (especially the MMC) have become "virtually defunct" (Marpakwar 1995:1-3).

No matter how defunct councils may be, it is clear that we need them. The limitation of having no council is painfully evident in the case of the MCIM. However, the need for a radical overhauling of the entire system is evident. If councils are to become credible entities they need to clean up their encrusted image.

Councils need to become more transparent and accessible to the public. The possibility of lay representation in the constitution of the council and a drastic reduction (if not total abolition) of state nominees and ex-officio members could be actively considered.

Perhaps the time has come to look towards the possibility of having a common council with proportionate representation for practitioners of the different systems. The existence of separate councils creates a divisive climate within which regulation takes place. Issues on the cutting edge - for example, mishaps arising out of cross-practice - tend to get passed from one council to another and unnecessily delayed.

This argument finds some support among the office bearers of the Homeopathic council who additionally feel that there should be a common course for all medical students. According to them, since the basic training in all the systems of medicine is virtually the same (save the aspect of therapeutics), there should be a common course with specialisations in homeopathy, allopathy or the Indian systems of medicine. They also endorse cross practice especially in rural areas where allopathic practioners are not easy to find. However they maintain that amendments proposed by them have never been taken seriously: only two out of 28 amendments submitted over the years have been accepted.

The possibility of decentralisation of councils from the state to the district level also needs to be considered. This will make the task of maintaining a credible register more manageable. Information gathered at the district level can then be fed into the state register.

The system of automatic renewal of registration needs a second look. Should it not be contingent upon performance or accumulation of credit in Continuing Medical Education programmes? Secondly, the registration fees need to be rationalised so that a realistic amount of revenue can be generated from within the profession. This will reduce their current dependence on the state.

Selected References

1. Jeffery R. (1988), The Politics of Health in India, University of California Press, Berkeley.
   
   
   
2. Jesani A. and S. Nandraj (1994), "The Unregulated Private Health Sector" in Health for the Millions, Vol.2, No. 1, February 1994, pp. 25-28.
   
   
   
3. Kamath M.S. (1993), "Elections : The True Story" in Medical Ethics, Vol. 1, No. 1, August-October 1993, pp. 1-3.
   
   
   
4. Marpakwar P. (1995), "State medical council constitutes panel to investigate kidney racket" in Indian Express, 19 March 1995, pp. 1,3.
   
   
   
5. Raheja R.G. (1996), "No justice from the medical council" in The Asian Age, 8 June 1996, pp. 11.
   
   
   
6. Ravindra R.P. (1995), "IMC Stand on sex-selective abortions sought" in The Times of India, (Bombay Edition), 26 July 1995, pp. 13.
   
   
   
7. Waddington J. (1984), The Medical Profession in the Industrial Revolution, Gill and Macmillan Ltd., Dublin.