In this article, Nawlendu Bhushan of Campus Law Centre discusses what constitutes professional misconduct by doctors and law related to the same.
Professional Misconduct: Definition
Professional misconduct by doctors is such conduct which is considered disgraceful or dishonorable by other doctors of good repute and competence. [1] It is also called Infamous Conduct.
Law governing professional misconduct by doctors
The Indian Medical Council Act, 1956 empowers MCI (Medical Council of India) to make regulations for the professional conduct of doctors. The Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, notified by the MCI in 2002 governs the regulation of professional conduct, ethics, and etiquettes for registered medical professionals. [2]
Inclusive Definition of Professional Misconduct in the Regulation
The regulation prescribes an inclusive definition of professional misconduct. It means that the regulation does not contain all the instances of misconduct. So, different acts of misconduct given in the regulation are only extensive, not exhaustive.
Is professional misconduct different from medical negligence?
Medical negligence is a subset of professional misconduct.
A doctor has a duty of care in deciding whether to undertake the case or not, duty in deciding what treatment to give, the duty of care in the administration of that treatment, duty not to undertake any procedure beyond his or her control. It is expected that the doctor possesses a reasonable degree of skill and knowledge and exercises a reasonable degree of care. [3] Medical negligence is a breach of the duty of care resulting in damage or injury.
Professional misconduct is disgrace or dishonorable conduct of a professional and includes the breach of the duty of care.
What are the duties and responsibilities of a doctor?
Duties and responsibility of a physician are described in the Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations. It has been classified into the following categories:-
- Duties and responsibilities of a physician in general
- Duties of physicians to their patient
- Duties of physicians in consultation
- Responsibilities of physicians to each other
- Duties of physicians to the public and the paramedical profession [4]
Duties and responsibilities of physicians in general
Covers regulatory parts of duties. Pure character and diligence in caring for the sick, maintaining good medical practice, maintenance of medical records, display of registration numbers, use of generic names of drugs, exposing unethical conduct of other medical professionals, keeping patients interest above his/her own financial interest and following law of the land are prescribed in this category.
Duties of physicians to their patients
A physician is not bound to treat each and every person asking for his services, but he should always be ready to respond to the calls of injured and sick. He must show patience and delicacy towards his patients. Secrecy of medical dispositions of the patient must be maintained unless required to be revealed by law of the land. He should neither exaggerate nor minimize the gravity of patient’s condition. He should not neglect a patient once admitted.
Duties of physicians in consultation
In case of serious illness and in doubtful or difficult conditions, the physician should request a consultation. Such consultation should be in the interest of patient only and not for any other consideration. When a patient is referred to a specialist by the attending physician, a case summary of the patient should be given to the specialist. Consultation fees and other charges must be clearly displayed at the place of working.
Responsibilities of physicians to each other
Sometimes a physician is required to render services to other physicians as a consultant or substitute. In consultation, no insincerity, rivalry or envy should be indulged in. Normally, a consultant should not take charge of the case, especially on the solicitation of the patient or friends. A physician can request another physician to attend his patients during his absence. Professional courtesy requires the acceptance of such requests.
Duties of physicians to the public and the paramedical profession
Physicians should disseminate advice on public health issues. They should enlighten the public concerning measures for prevention of epidemic and communicable diseases. Recognition and promotion of paramedical services such as pharmacy and nursing fall under the responsibilities of physicians.
Unethical Acts
Advertising except on certain occasions, not making available patents or copyright for the interest of the larger population, running an open shop where drugs and appliances are sold by the physician fall under unethical acts. A physician should not receive any gift, gratuity, commission or bonus in consideration of referring, recommending or procuring any patient. Prescribing, manufacturing, promoting or selling any secret remedial drugs is unethical. Violation of human rights of the patient by inflicting, aiding or abetting any kind of physical and mental torture is also unethical. [5]
Stipulations for dealing with pharmaceuticals and allied healthcare industry
In dealing with pharmaceutical and allied healthcare industry, a medical practitioner should follow and adhere to stipulations given below:-
| Gifts:- Medical practitioners are barred from receiving any gifts from the allied healthcare industry. | Violation will lead to censure or removal from the medical register for a specified period. |
| Travel facility:- Doctors should not accept any travel facility provided by the pharmaceutical or allied healthcare industry. | Violation will lead to censure or removal from the medical register for a specified period. |
| Hospitality: Medical Practitioners should not accept any hospitality including hotel accommodation for self or any family member. | Violation will lead to censure or removal from the medical register for a specified period. |
| Cash or monetary grants:- No cash or monetary grants should be accepted for individual purpose in individual capacity under any pretext. | Violation will lead to censure or removal from the medical register for a specified period. |
| Research:- Practitioners are allowed to work in research projects being carried out by pharmaceutical and allied sector, but such projects should have necessary permissions, clearances, legal requirements. | Violation for the first time will attract censure. Subsequent violation will lead to the removal of name from the medical register. |
| Maintaining Professional Autonomy while dealing with pharmaceutical and allied healthcare sector | Violation for the first time will attract censure. Subsequent violation will lead to the removal of name from the medical register. |
| Affiliations:- only fully transparent affiliations, which are within the law, maintains professional integrity and freedom, as well as patients interest, are not compromised. | Violation for the first time will attract censure. Subsequent violation will lead to the removal of name from the medical register. |
| Endorsement:- Public endorsement of any drug or product of the industry by a practitioner is prohibited. | Violation for the first time will attract censure. Subsequent violation will lead to the removal of name from the medical register. |
What constitutes professional misconduct?
Violation of regulations and laws
The Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002 lays down certain duties and responsibilities of medical practitioners towards their patients, to the general public, towards each other and to paramedical professionals. Violation of any provision of the regulation is a ground for action under professional misconduct.
A medical practitioner shall not contravene the provisions of Drugs and Cosmetics Act and regulations made thereunder. Prescribing steroids and psychotropic drugs without absolute medical indication and selling schedule ‘H’ and ‘L’ and poison to general public falls under contravention of the act.
Violation of the guidelines of ICMR (Indian Council of Medical Research) related to clinical drug trial and other research on patients or volunteers constitutes misconduct. Consent taken from patients or volunteers for such trials and research must conform to the guidelines of ICMR.
Abuse of professional position
Committing adultery or improper conduct or maintaining an improper association with a patient constitute professional misconduct.
Registered medical practitioners are required to issue certificates, notification, report and other documents of similar character for subsequent use in courts or administrative purposes. Issuing false, misleading or improper certificates, notification, report or other document falls under professional misconduct.
Association with incompetent persons
Enabling an unqualified person to perform an abortion or any illegal operation without any medical, surgical or psychological indication is professional misconduct.
Issuing certificates of efficiency in modern medicine to unqualified or non-medical person constitutes professional misconduct.
Advertisement
A medical practitioner is open to writing to the lay press articles, deliver public lectures and give talks on various media on the matter of public health and hygienic living under his own name. But, contributing to the lay press articles and interviews related to diseases and treatments which may have the effect of advertising himself is professional misconduct.
Maternity home, nursing home, private hospital, rehabilitation centre or any type of training institution run by a medical practitioner may be advertised in the lay press, but such advertisements should not contain anything more than the name of the institution, type of patients admitted, type of training and other facilities offered and the fees.
Using an unusually large signboard and writing anything other than name, qualification, specialty, registration number and the name of State Medical Council under which he/she is registered is improper.
Not taking consent of patient
Performing an operation without taking the consent in writing from the husband or wife, parent or guardian in the case of a minor, or the patient himself as the case may be, constitutes misconduct. In an operation which may result in sterility, the consent of both husband and wife is needed.
Publishing photographs or case reports of patients without their permission, in any medical or other journals in a manner by which their identity could be made out is punishable.
In an operation which may result in sterility consent of husband and wife, both are needed.
Informed consent of female and her spouse must be taken before in-vitro fertilization or artificial insemination.
Absenteeism
Absence on more than two occasions of a physician posted in the rural area or in medical college as a teaching staff during the inspection conducted by concerned authorities is construed as a misconduct.
Other Grounds
- Not maintaining medical records of indoor patients and refusal to provide it Conducting sex determination test for the purpose of female foeticide
- Not displaying registration number on required places and documents refusal to treat a patient only on religious ground
- Using touts for procuring patients
- Conviction by court for offense related to moral turpitude or criminal acts
Consequences of professional misconduct
Consequences for professional misconduct by medical practitioner can be broadly categorized into three categories:-
- Criminal Liability
- Civil Liabilities
- Disciplinary Action
Criminal Liability for professional misconduct by doctors
Criminal liability for medical negligence may be imposed on one of the two findings:-
- the doctor was not possessed of the requisite skill which he professed to have possessed, or,
- he did not exercise, with reasonable competence in the given case, the skill which he did possess.
For imposing criminal liability a very high degree of negligence is required to be proved. [6]
Criminal liability is imposed generally in cases of medical negligence as per the provisions of the Indian Penal Code. Section 304A (Death due to negligence) [7], section 337 (causing hurt)[8] and section 338 (causing grievous hurt)[9] are often applied to deal with cases of medical negligence.
Prenatal sex determination except for the purpose of diagnosing abnormalities and diseases attracts an imprisonment up to three years. [10]
Civil Liability for professional misconduct by doctors
Simple lack of care by practitioner constitutes a civil liability.[11] An action seeking imposition of civil liabilities i.e. monetary compensation can be initiated by either the patient or his/her dependents before appropriate Civil Courts or consumer forums. Doors of Lok Adalats can also be knocked at by the complainant. [12]
Disciplinary Action
If a medical practitioner is found guilty of professional misconduct by appropriate Medical Council, it may award punishment which includes removal of name from the register of medical practitioner permanently or for a specified period. Deletion from the register is widely publicised through the local press as well as publications of different Medical Associations/Bodies/Societies. During the pendency of the complaint, the council may restrain the physician from performing the procedure or practice under scrutiny. [13]
Where to file a complaint of professional misconduct by doctors
For medical negligence, Prima facie evidence in the form of a credible opinion given by another competent doctor is needed to support the charge of rashness or negligence on the part of the accused doctor and file an FIR against the negligent doctor.[14]
For imposing civil liability, proceedings can be initiated before an appropriate civil court or consumer forum.
The civil court/consumer court and the criminal court usually refer cases of alleged medical negligence to the medical council to decide whether it is an act of negligence or not.[15]
Any complaint with regard to professional misconduct by doctors can be brought before the appropriate medical council for disciplinary action. Appropriate medical council for this purpose is State Medical Councils.
Post-complaint Procedures
The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion. It should be preferably from a doctor in government service qualified in that branch of medical practice who can be expected to give an impartial and unbiased opinion to the facts collected in the investigation. [16]
A doctor accused of negligence will not be arrested in a routine manner. An arrest can be made only for the purpose of furthering the investigation or collecting evidence. If the investigating officer is satisfied, that the doctor would not make himself available to face prosecution, the doctor may be withheld. [17]
Upon receipt of a complaint of professional misconduct, the appropriate Medical Council will hold an inquiry. During the inquiry, the medical practitioner will be given an opportunity to be heard in person or by pleader. A decision on the complaint has to be taken within six months from filing the complaint. If State Medical Council does not take a decision within six months of filing the complaint, Medical Council of India can impress upon the concerned State Council to decide the complaint in a time-bound manner. It can also withdraw the complaint to itself for expeditious disposal. [18]
What if professional misconduct is established?
The medical council can take following actions if professional misconduct is established during inquiry:-
- It may pardon the practitioner.
- Pleading guilty with an intention to get less punishment may result in being pardoned or merit a warning.
- It can order the practitioner to apologize publicly or to the aggrieved.
- It may award a compensation to the complainant.
- It may issue a warning to the practitioner.
- It may temporarily restrict the doctor from performing certain procedures or seeing certain types of patients.
- It may temporarily suspend the license to practice.
- It may permanently suspend the license to practice.
- It may refer the matter to the police for inquiry under relevant IPC sections [19]
Appeal and Limitation
A person aggrieved by the decision of State Medical Council can file an appeal to the Medical Council of India within 60 days from the date of receipt of the order passed by State Medical Council. Further extension may be granted by the MCI if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within 60 days. [20]
References
[1]http://icfmt.net/journal/vol1no1/ethics.htmb
[2]Ch 7, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002
[3]Laxman Balkrishna Joshi (Dr) v. Dr. Trimbak Bapu Godbole AIR 1969 SC 128
[4]Ch. 1,2,3,4,5; Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002
[5]Ch. 6, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002
[6]Jacob Mathew v. State of Punjab & Anr. (https://indiankanoon.org/doc/871062/)
[7]S.304A, Causing death by negligence, Indian Penal Code 1860
[8]S.337, Causing hurt by act endangering life or personal safety of other, Indian Penal Code 1860
[9]S.338, Causing grievous hurt by act endangering life or personal safety of others, Indian Penal Code 1860
[10]S. 4 (2), S. 23(1), Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994
[11]Jacob Mathew v. State of Punjab & Anr. (https://indiankanoon.org/doc/871062/)
[12]Amit Agrawal, Medical negligence: Indian Legal Perspective, v19 (supple 1), 2016 Oct, Annals of Indian Academy of Neurology
[13] Ch 8, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002
[14]Ibid, Jacob Mathew v. State of Punjab & Anr
[15]Dr.K.K.Agrawal, Legal Issues in Medicine, http://module.ima-india.org/ima/Legal_issuesinMedicine_Dr%20KK-Aggarwal.pdf
[16]Ibid, Jacob Mathew v. State of Punjab & Anr
[17]Ibid, Jacob Mathew v. State of Punjab & Anr
[18] Ch 8, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002
[19]Ibid, Dr.K.K.Agrawal, Legal Issues in Medicine
[20] Ch 8, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002
