Bitter medicine

The West Bengal government passes a Bill to rein in private hospitals, but the health care industry says the proposed law is meant to hide the government’s failure to increase and improve the infrastructure in government hospitals.

At a private hospital in Kolkata.

IN the face of an increasing number of complaints from the general public against cases of malpractice and corruption in private health care facilities in West Bengal, the Trinamool Congress government, on March 3, hurriedly passed the West Bengal Clinical Establishments (Registration, Regulation and Transparency) Bill, 2017. The Bill’s Statement of Objects and Reasons states: “The government is deeply concerned about the lack of transparency in the functioning of clinical establishments in general and private hospitals or nursing homes in particular, resulting in unnecessary and avoidable harassment and exploitation of patients (service recipients). It is logical that the clinical establishments would levy fees and charges for the services they provide. But such charges should be reasonable with the objective of covering the cost of provision of services besides generating a decent surplus.”

While a section of society has welcomed the proposed legislation, many view it as nothing more than a populist move which merely involved the rehashing of the West Bengal Clinical Establishment (Registration and Regulation) Act, 2010, introduced by the Communist Party of India (Marxist)-led Left Front government.

The new Bill, while laying down strict rules for private hospitals and nursing homes, also proposes stringent measures against institutions found guilty of violating rules.

Among the most common complaints against private medical facilities are inflated medical bills and the inhuman measures they adopt to recover dues. Seeking to end this practice, the new Bill states: “Every clinical establishment shall provide necessary medical treatment to victims of road traffic accident, persons suffering from sudden calamities, acid attack victims, and rape victims irrespective of their ability to bear the treatment cost at the relevant time” and that “there should be no delay in releasing the dead body of patients or service recipients to their representatives due to billing or other issues, including inability to pay the treatment cost.” However, the Bill gives the clinical establishments “the right to recover the cost from the service recipients or his representatives in due course of time”.

Private hospitals will now have to follow fixed rates and charges and provide “proper estimates for treatments not covered in fixed rates and charges, including the package rates, to service recipients or representatives of service recipients during initiation or due course of treatment, and final bills shall not exceed estimates by a certain percentage, as may be prescribed by the government”. The Bill also makes it compulsory for these establishments to maintain a public grievance cell to help service recipients lodge complaints about treatment, improper billing and other issues.

The Bill has directed private hospitals that have received land or other facilities from the government to provide “absolutely free treatment” to 20 per cent of the outpatients and 10 per cent of the inpatients.

The 2010 Act has provisions for compensation to be paid to service recipients in cases of negligence by hospital personnel: for simple injury Rs.1 lakh, for grievous injury Rs.3 lakh, and in case of death Rs.5 lakh. These have been increased to Rs.3 lakh, Rs.5 lakh and Rs.10 lakh respectively.

Regulatory commission

The government will also set up a West Bengal Clinical Establishment Regulatory Commission “for the purpose of regulation and supervision of the functioning and activities of the clinical establishments licensed under this Act for ensuring accountability and transparency in dealing with patients”. The Bill confers absolute powers on the commission: “No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an adjudicating authority or the West Bengal Clinical Establishment Regulatory Commission is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.”

The move to table the Bill began on February 22 when Chief Minister Mamata Banerjee, who also holds the Health portfolio, held a meeting with representatives of corporate medical establishments and chastised them for their lack of humaneness in dealing with patients and for overcharging them.

“In certain places there is tremendous negligence. Certain places charge so much money that families of the deceased patients have to sell off their personal belongings just to take possession of the dead body from the hospital; sometimes they are not even able to do that,” she said, naming one hospital after another, much to the discomfort of those present.

The Chief Minister’s criticism opened a can of worms, as people immediately began airing their complaints. An incident that took place two days after the meeting perhaps hastened the framing of the Bill. Apollo Gleneagles Hospital, one of the premier private hospitals in Kolkata, was accused of forcing a patient’s family to submit their fixed deposit documents and property deeds in order to release the patient so that he could be shifted to another hospital. The hospital ran up a huge bill for its services, which the family was unable to pay immediately.

The patient, Sanjoy Roy, met with an accident on February 16 and was admitted to Apollo Gleneagles. When the hospital presented a bill of Rs.7.23 lakh for six days of treatment, Roy’s family decided to shift him to the State-run SSKM Hospital as the cost of treatment at the private hospital became beyond their reach. Roy died within a few hours after being admitted to SSKM Hospital. Apollo Gleneagles had allegedly refused to release the patient until the family handed over their fixed deposit receipts and other financial papers to cover the remaining dues. “The hospital authorities could have been more humane in their approach. They held back the patient until the family paid the dues,” Health Secretary R.S. Shukla reportedly said.

“This incident opened our eyes,” Mamata Banerjee said.

Following mounting public outrage, Rupali Bose, the chief executive officer of Apollo Gleneagles, resigned from the post.

The new Bill may have all the requirements to ensure its popularity among the masses, but it has glaring similarities with the 2010 Act. Senior CPI(M) leader and Member of the Legislative Assembly Sujan Chakraborty told Frontline that “the State government plagiarised 90 per cent of the content of the 2010 Act. Why did they not enforce the Act after coming to power in 2011? The only addition to the new Bill is the word ‘Transparency’. This is a blatantly populist move designed only to score political points.” Stating that he was not opposed to the Bill “in spirit”, he said it was the government’s failure to increase and improve the infrastructure of government hospitals that compelled the public to go to private hospitals for treatment.

Mamata Banerjee described the Bill as “historic” and as a “model for the rest of the country”, but the Indian Medical Association Hospital Board of India rejected it, saying it was a case of misuse of state power and an example to other States of what a legislation ought not to be. In a strongly worded statement, the board said: “It is a law given to populism and without indication of any mind application. Having failed in all fronts in public health and with worst health parameters in the country, the State government has taken vengeance against the private hospitals to hide its monumental failures.”

Lacunae in the Bill

The noted criminal lawyer practising in the Calcutta High Court Jayanta Narayan Chatterjee is of the opinion that there is little that is new about the Bill. “We were expecting the State government to come up with something new, unique and forceful, but instead some views of the Supreme Court and the 2010 Act were practically rehashed and presented with great publicity,” he told Frontline . He and several other legal experts are of the opinion that there are many “grey areas” in the Bill, which may not stand scrutiny when challenged in courts of law.

“There are many areas in the Bill that do not make sense. For instance, the Bill states that hospitals cannot charge beyond a package rate, so what will happen if a patient’s condition deteriorates? It is not possible to restrict doctors to carry out treatment within a particular cost frame,” he said. On the clause which directs payment of compensation of Rs.3 lakh for “small injury”, and Rs.5 lakh for “grievous injury”, Chatterjee said: “There is nothing here to define what small or grievous injury is. For an 80-year-old man, losing a finger can be a small injury, but for a 24-year-old factory worker it is a grievous injury as it affects his livelihood.” Referring to the fact that there is no provision in the Bill for appeal to a court of law, Chatterjee said: “Provision of appeal is an inalienable constitutional right and it cannot be curtailed.”