After the enactment of the New Consumer Protection Act 2019, there is a debatable question among, legal practitioners, medical practitioners, Judicial and quasi-judicial platforms that whether medical practitioners or doctors come under the preview of New Consumer Protection Act 2019 and consumer complaint can be filed against them for any deficiency in service. This question has arisen because of the new definition of “services” in the new Act 2019 and the word “healthcare” was dropped from the definition which was present in the Consumer Protection Bill presented before Parliament. However, the Bombay High Court recently decided in a PIL filed by the Medicos Legal Action Group, a trust from Chandigarh that services performed by healthcare service providers in lieu of fees/charges would fall well within the purview of the new Consumer Protection Act, 2019.
WHAT WAS HELD BY THE BOMBAY HIGH COURT?
The bench of Chief Justice Dipankar Dutta and G.S Kulkarni held;
We, therefore, hold that mere repeal of the 1986 Act by the 2019 Act, without anything more, would not result in exclusion of ‘health care’ services rendered by doctors to patients from the definition of the term “service”.
MERIT OF THE PIL:
The petitioning Trust, registered in Chandigarh, was seeking a declaration from this Court that services performed by healthcare service providers are not included within the purview of the Consumer Protection Act, 2019 on the ground that parliamentary debates on the Consumer Protection Bill, 2018 preceding to the 2019 Act led to exclusion of ‘healthcare’ from the definition of the term “service” as defined in the Bill. Petitioner also sought an order directing all consumer fora within the jurisdiction of High Court to not accept complaints filed under the 2019 Act against health care providers. It was the case of the Petitioner that section 2(42) of the 2019 Act states services that are covered under the act where the term ‘healthcare’ was dropped from the definition which was present in earlier Bill presented before Parliament. Therefore the removal of ‘healthcare’ from the list of services means consumers could no longer move a consumer court for medical negligence and file complaints against doctors.
POSITION OF MEDICAL PRACTITIONERS BEFORE THE NEW CONSUMER PROTECTION ACT 2019:
If we see the definition of “service” under section 2(1)(o) of the old Consumer Protection Act 1986 [the 1986 Act] there was no place to the healthcare services under the 1986 Act. However, Hon’ble Apex Court in the year 1995 in the case of Indian Medical Association v. V.P. Shantha reported in (1995) 6 SCC 651 considered the Healthcare Services under the preview of the 1986 Act and all consumer fora/commissions were entertaining the complaints filed under the 1986 Act again the deficiency in service by the medical practitioners.
WHAT IS DECIDED BY THE BOMBAY HIGH COURT?
The Hon’ble High Court observed and decided that merely because of enactment of the 2019 Act upon the repeal of the 1986 Act as well as the parliamentary debates referred to by the petitioning Trust, the efficacy of the law laid down in the decision in Indian Medical Association v. V.P. Shantha reported in (1995) 6 SCC 651 as a binding precedent would not stand eroded.
Hon’ble Bench further held that the definition of “service” in both the enactments (repealed and new) are more or less similar and what has been said of “service” as defined in section 2(1)(o) of the 1986 Act would apply ex proprio vigore to the definition of the terms “service” in section 2(42) of the 2019 Act. Therefore, we have little reason to hold that services rendered by doctors in lieu of fees/charges therefore are beyond the purview of the 2019 Act.
HOW DOES THIS ORDER STAND BENEFICIAL TO THE CONSUMERS?
By this very order of the Bombay High Court has turned out to be a better understanding with respect to the legislation. Since patients while in pain approach the doctors for their treatment with a simple hope of speedy recovery. However, sometimes there are situations where the treatment does not go as planned, it may be because of the natural course of life or due to the doctor’s fault. One thing which should be kept in mind is the fact that even they are humans and prone to making mistakes. However, any harm due to the negligent act on part of the doctor or medical staff shall attract liability, which is why the inclusion of ‘healthcare’ within the definition of service is an important point of consideration.