Background note on Government Stand
1. Central Government is envisaging starting one year course for AYUSH doctors and allowing them to practice modern medicine. IMA attended a meeting convened by the Secretary, Ministry of Health and Family Welfare, Govt. of India on 22nd January, 2015 in his office at 6.00 P.M.
2. Mainstreaming of AYUSH doctors: Back Ground Note by the ministry
The Doctor Population Ratio as per WHO norms should be 1:1000, in India it is 1:1674. Thus, there is overall shortage of doctors in the country which is more pronounced in rural areas. As per MCI, the total number of doctors in India as on 30.09.2014 is 9.32 lakhs. There are 6,86319 AYUSH practitioners in the country out of which 4,46,051 are ASU doctors.
Section 15 of the Indian Medical Council Act, 1956 states that no person other than a medical practitioner enrolled on a State Medical Register shall practice medicine in any State. Any person who acts in contravention of this shall be punished with imprisonment of 1 year or fine of Rs 1,000 or both.
In the case of Dr. Mukhtiyar Chand us State of Punjab, the Hon’ble Supreme Court held that practice of modern system of medicine by ISM qualified professionals is possible provided such professionals are enrolled in the State Medical Register for practitioners of modern medicine maintained by the State medical Council. The respective State Government can notify and give recognition to qualifications eligible for registration in the State medical Register.
The Ministry requested all the State governments vide letters dated 29th May,2013 and reminders dated 20th Novembers, 2013 and 19th March,2014 to consider amending their respective State laws relating to registration of practitioners of modern scientific medicine and provide an enabling provision to allow the enrolment of an ISM professional in the State medical Register maintained for registration of the practitioners of modern medicine by the respective State Medical Councils. Comments were received from some of the States, which are as follows:
Govt. of Kerala doesn’t face any shortage of doctors of modern medicine for posting in PHCs as a large number of medical graduates will be passing out from the colleges in the state in the next few years.
Daman & Diu and Dadra & Nagar Haveli
There is no State/UT Medical Council and, hence, no enrolment of practitioners of modern medicine.
They strongly opposed the matter.
Initiating registration of AYUSH doctors in State medical Register will complicate matters and will dilute the efforts of brining them into the mainstream.
Under NRHM, services of AYUSH practitioners are utilized for providing essential new-born care services, managing common childhood illness, counseling on family planning methods and most importantly, they render their services as Skilled Birth Attendants (SBA).
Department of AYUSH in consultation with National Board of Examination (NBE) prepared one year curriculum, for bridge course to provide competency to ISM doctors to practice modern medicines in a limited way in rural areas. Ministry requested the MCI to vet the draft curriculum; MCI has vehemently opposed the move.
A meeting was convened to discuss the introduction of a bridge course for AYUSH Doctors on 10th September, 2014 in which it was decided that a bridge course may be prepared keeping in consideration the course curriculum of B.Sc.(CH). It was agreed that a 9 months course (6 months regular and 3 months internship) duration may be developed for this purpose.
Department of AYUSH vides their D.O. letter dated 23.09.2014 made the following objections:
a) The proposal to allow ASU doctors to only dispense and not prescribe modern medicines is not agreeable to them.
b) It will make ASU doctors subservient to Allopathic doctors.
c) The decision to develop a Bridge Course of 9 months on the lines of B.Sc. (CH) is a unilateral stand of DoHFW.
Now, on 10th November, 2014, Department of AYUSH has been made a separate Ministry with Sh. Shripad Naik, Minister of State (Independent Charge).
Discussion and IMA Point of view
Government wants that Ayush Graduates with a bridging course should be
1. entitled to practice and prescribe Modern Medicine Drugs
2. Also be entitled to be included in the State Register as registered medical practitioner upon incorporation of necessary enabling provisions in the governing State Act, in the light of pronouncement made by the Hon'ble Supreme Court in Muktiyarchand case.
3. Rajya Sabha Question on Ayush practicing modern medicine
AYUSH practitioners prescribing allopathic medicines: Rajya Sabha, information given by the Minister for Health & Family Welfare, Dr. Anbumani Ramadoss in a written reply to a question in the Rajya Sabha.
The matter regarding qualified practitioners of Ayurveda, Unani, Siddha and Homoeopathy systems prescribing allopathic medicines has been examined in depth by the Hon'ble Supreme Court of India in Civil Appeal No.89 of 1987 Dr. Mukhtiar Chand & Others versus State of Punjab & Others.
Representations have been received from time to time on this matter and accordingly Department of AYUSH entrusted the study of the contemporary acts on medical practice in the light of judgement of Hon'ble Supreme Court in 1987 Dr. Mukhtiar Chand & Others versus State of Punjab & Others and other similar judgements. Drugs can be sold and supplied by a Pharmacist or a Druggist only on a prescription of a Registered Medical Practitioner and who can also store them for treatment of patients.
According to Section 2 (ee) of the Drugs and Cosmetics Rules, 1995, Registered Medical Practitioner means a person -
(i) holding a qualification granted by an authority specified or notified under Section 3 of the Indian Medical Degrees Act, 1916 (7 of 1916), or specified in the Schedules to the Indian Medical Council Act, 1956 (102 of 1956); or
(ii) registered or eligible for registration in a medical register of a State meant for the registration of persons practicing the modern scientific system of medicine (excluding the Homoeopathy system of medicine); or
(iii) registered in a medical register (other than a register for the registration of Homoeopathic practitioners) of a State, who although not falling within sub-clause (i) or sub-clause (ii) is declared by a general or special order made by the State Government in this behalf as a person practicing the modern scientific system of medicine for the purposes of this Act.
Hon'ble Supreme Court upheld the validity of Rule 2 (ee) (iii) as well as the notifications issued by various State Governments there under allowing Ayurveda, Siddha, Unani and Homoeopathy practitioners to prescribe allopathic medicines.
In view of the above judgment, Ayurveda, Siddha, Unani and Homoeopathy practitioners can prescribe allopathic medicines under Rule 2 (ee) (iii) only in those States where they are authorized to do so by a general or special order made by the concerned State Government in that regard. Practitioners of Indian Medicine holding the degrees in integrated courses can also prescribe allopathic medicines if any State act in the State in which they are practicing recognizes their qualification as sufficient for registration in the State Medical Register. KR/SK/95 – RS :
http://pib.nic.in/newsite/erelease.aspx?relid=30117, 20th August 2007
- In the agenda item No. A-2 (a) : MENACE OF QUACKERY , the issue was discussed in the 75th Meeting of the Central Council of IMA held on December 27-28 December, 2014 on Govt. Sponsored Quackery. It was discussed that the Maharashtra Govt. has promulgated an Ordinance permitting AYUSH doctors to practice modern medicine. It was decided that IMA should publicize this as a social evil, malpractice and should take it as a very serious issue. At the same time IMA, along with MCI, should give stringent directions to hospitals and doctors not to appoint AYUSH doctors as RMO / Assistants and strong action taken against those violating the directions”.
- Following MCI Code of Medical Ethics and Regulations 2002 dis-allow such practices
1. “7.9 Performing or enabling unqualified person to perform an abortion or any illegal operation for which there is no medical, surgical or psychological indication”. The regulations clearly prohibits taking assistance from any un qualified person for surgery, especially abortions.
2. "7.10 A registered medical practitioner shall not issue certificates of efficiency in modern medicine to unqualified or non-medical person”: The regulation again clearly talks about that any allopathic doctor shall not appoint any non-allopathic doctor for any allopathic services. As appointing him/her, would amount to issuing a certificate of efficiency in modern medicine.
3. “2.4 The Patient must not be neglected: A physician is free to choose whom he will serve. He should, however, respond to any request for his assistance in an emergency. Once having undertaken a case, the physician should not neglect the patient, nor should he withdraw from the case without giving adequate notice to the patient and his family. Provisionally or fully registered medical practitioner shall not willfully commit an act of negligence that may deprive his patient or patients from necessary medical care”: The regulation clearly talks about that if there is any emergency, we have to take care of our patients ourselves. We cannot pass on this responsibility to a unqualified persons.
4. “7.20 A Physician shall not claim to be specialist unless he has a special qualification in that branch”: The above regulation clarifies that because Ayush Doctors do not have special qualification in allopathy they cannot be treated as allopathic practitioner.
5. “7.19 A Physician shall not use touts or agents for procuring patients”: As this regulation we should not use touts or agents for procuring patients. Any non allopathic doctor, if assist us in procuring patients, the same will be a violation of the above clause.
6. “7.18 In the case of running of a nursing home by a physician and employing assistants to help him / her, the ultimate responsibility rests on the physician.”: This regulation clearly mentions that if any MBBS doctor, appoints any Ayush Doctor, the responsibility will be of an MBBS doctor and not that of Ayush Doctor.
7. The Maharashtra FDA has recently issued guidelines regarding prescription where it clearly mentions that another doctor cannot sign on the prescription paper of treating doctor.
Provisions in Indian Medical Council Act, 1956
1. Section 2 (f) defines the word ‘medicine’ as ‘medicine means modern scientific medicine in all its branches and includes surgery and obstetrics but does not include veterinary medicine and surgery’.
2. Section 2(a) defines the word ‘approved institution’ as ‘a hospital, health centre or other such institution recognized by a University as an institution in which a person may undergo the training, if any, required by his course of study, before the award of any medical qualification to him’.
3. Section 2 (d) defines the word ‘Indian Medical Register’ as ‘Indian medical registers means the medical register maintained by the council’.
4. Section 2 (h) defines the word ‘recognized medical qualification’ as ‘recognized medical qualification means any of the medical qualifications included in the schedules’.
5. Section 2 (j) defines the word ‘State Medical Council’ which reads ‘State Medical Council means a medical council constituted under any law for the time being in force in any State regulating the registration of practitioners of medicine’.
6. Section 2 (k) defines State Medical register’ as ‘State Medical Registers means a register maintained under any law for the time being in force in any state regulating the registration of practitioners of medicine’.
7. Section 11 of the concerned Act deals with the ‘recognition of medical qualifications granted by Universities or medical institutions in India’ and that ‘MBBS qualification recognized by the Medical Council of India with reference to a concerned institution and examining University thereto duly incorporated in schedule A amounts to the registering medical qualification for the purposes of enrolment in the appropriate register maintained by a State medical council or the Medical Council of India as the case may be’.
8. Section 15 of the Act, deals with ‘Right of person possessing qualifications in the schedules to be enrolled’ and section 15(2)(d) clearly prescribes that “no person other than a medical practitioner enrolled on a State Medical Register shall practice medicine in any State”.
9. Vide provision included at section 21 the council is duty bound to maintain Indian Medical Register in a prescribed manner which shall contain the names of all persons who are for the time being enrolled in any State Medical register and who possess any of the recognized medical qualifications. The said provision has to be harmoniously read with the provisions incorporated at section23 of the very Act, which deals with ‘registration in the Indian Medical Register and mandates that the Registrar of the council may, on receipt of the report or registration of a person in a State Medical Register or on application made in the prescribed manner by any such person, enter his name in the Indian Medical register, provided that the registrar is satisfied that the person concerned possessed a recognized medical qualification’.
10. Resultantly, section 27 of the Act, provides for the ‘privileges of the persons who are enrolled in the Indian medical register’ to the effect ‘that every person whose name is for the time being borne on the Indian medical register shall be entitled according to his qualifications to practice as a medical practitioner in any part of India and to recover in due course of law in respect of such practice any expenses, charges in respect of medicaments or other appliances, or any fees to which he may be entitled’.
11. Modern medicine can be practiced exclusively by a person who possess recognized medical qualifications included in the appropriate schedule appended to the Indian Medical Council Act and is duly registered with a concerned State Medical Council and resultantly is included in the State Medical Register in terms of the explicit embargo as has been brought out in Section 15(2)(b) of the IMC Act, 1956. The said position has been fortified in several pronouncements made by the various judicial forums including the one brought out in Poonam Varma Vs. Ashwin Patel case by the Hon'ble Supreme Court in 1992.
12. The entitlement of the Ayush Graduates in the State medical register will have another problem. Who shall govern the disciplinary jurisdiction on them in regard to enforcement of ethical conduct and practice as contemplated in the code of medical ethics which is applicable to every registered medical practitioner possessing registering medical qualification in modern medicine.
Supreme Court and CPA Judgments that Ayush Doctors cannot prescribe allopathic drugs
1. NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI ORIGINAL PETITION NO.214 OF 1997, " When a patient is admitted in a hospital, it is done with the belief that the treatment given in the hospital is being given by qualified doctors under the Indian Medical Council Act, 1956. It is not within the knowledge of the relatives of the patient that the patient is being treated by a Unani Specialist. We hold that it is clear deficiency in service and negligence by the hospital for leaving the patient in the hands of Unani doctor.
" As laid down by Apex Court in the above case (Jacob Mathew case) , we feel it is high time that hospital authorities realize that the practice of employing non-medical practitioners such as Doctors specialized in Unani system and who do not possess the required skill and competence to give allopathic treatment and to let an emergency patient be treated in their hands is a gross negligence.We do not wish to attribute negligence on the part of Dr. Rehan alone while the patient was in his charge in terms of directing to pay compensation but solely on the hospital authorities for leaving the patient in his complete care knowing he is not qualified to treat such cases."
"Supreme Court came down heavily in cases where Homeopathic Doctors treated the patients with allopathic medicines. In Poonam Verma Vs. Ashwin Patel and Others (1996) 4 SCC 332 where a doctor holding Diploma in Homeopathic Medicine and Surgery (DHMS) and registered under Bombay Homeopathic Practitioners Act, caused the death of a patient due to administration of Allopathic medicine, the Supreme Court held him being not qualified to practice Allopathy, was a quake or pretender to the medical knowledge and skill as a charlatan and hence guilty of negligence per se. The facts being similar in this case, we hold that there is total negligence in treating the deceased patient."
"Thus, we feel that an amount of Rs.7,50,000/- would be appropriate amount of compensation in face of peculiar facts and circumstances. "
2. Dr. Mukhtiar Chand & Ors. Vs.State Of Punjab & Ors., decided by the Supreme Court on 08/10/1998, reported as AIR 1999, SC 468, (1998 (7) SCC 579) K.T. Thomas, Syed Shah Mohammed Quadri," A harmonious reading of Section 15 of 1956 Act and Section 17 of 1970 Act leads to the conclusion that there is no scope for a person enrolled on the State Register of Indian medicine or Central Register of Indian Medicine to practise modern scientific medicine in any of its branches unless that person is also enrolled on a State Medical Register within the meaning of 1956 Act."