Friday 17 February 2017

Public servants cannot show gifts as income from legal sources, says SC

Public servants cannot show gifts as income from legal sources, says SC In its judgement pertaining to the disproportionate assets case against Smt Sasikala Natarajan, the Supreme Court of India has ruled that presents could not be counted as income from lawful sources for public servants, reported Dhananjay Mahapatra in the Times of India, February 16, 2017. The Apex Court stated “Gifts to A1 (Jayalalithaa), a public servant in the context of Sections 161 to 165A IPC now integrated into the Act are visibly illegal and forbidden by law. The endeavour to strike a distinction between “legal” and “unlawful” as sought to be made to portray gifts to constitute a lawful source of income is thus wholly misconstrued." The Bench further said, “With the advent of the 1988 Act, and inter alia consequent upon the expansion of the scope of definition of the “public servant” and the integration of Section 161 to 165A IPC in the said statute, the claim of the defence to treat the gifts offered to A1 (Jayalalithaa) on her birthday as lawful income, thus cannot receive judicial imprimatur.” The defense of the counsel for Selvi J Jayalalithaa was also rejected by the Apex Court, which held that "To reiterate, disclosure of such gifts in the I-T returns of Jayalalithaa and orders of the I-T authorities on the basis thereof do not validate the said receipts to elevate the same to lawful income to repel the charge under Section 13(1)(e) of the PC Act." Accepting gifts has always posed an ethical dilemma for the doctors. They are required to maintain professional boundaries in their relationship with the patients as well as the pharmaceutical industry. Receiving gifts is one aspect of this relationship, which is fiduciary in nature. This judgement is important for doctors as it is also applicable to them, the government doctors in particular. The Medical Council of India has defined guidelines regarding this in section 6.8 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 especially in their relationship with pharmaceutical and allied health sector industry. The MCI has also defined the quantum of punishment for violation of these regulations. a) Gifts: A medical practitioner shall not receive any gift from any pharmaceutical or allied health care industry and their sales people or representatives. • Gifts more than Rs. 1,000/- upto Rs. 5,000/- : Censure • Gifts more than Rs. 5,000/- upto Rs. 10,000/-: Removal from Indian Medical Register or State Medical Register for 3 months. • Gifts more than Rs. 10,000/- to Rs. 50,000/- : Removal from Indian Medical Register or State Medical Register for 6 months. • Gifts more than Rs. 50,000/- to Rs. 1,00,000/- : Removal from Indian Medical Register or State Medical Register for 1 (one) year. • Gifts more than Rs. 1,00,000/-: Removal for a period of more than 1 year from Indian Medical Register or State Medical Register. b) Travel facilities: A medical practitioner shall not accept any travel Facility inside the country or outside, including rail, road, air, ship, cruise tickets, paid vacation, etc. from any pharmaceutical or allied healthcare industry or their representatives for self and family members for vacation or for attending conferences, seminars, workshops, CME Programme, etc. as a delegate. • Expenses for travel facilities more than Rs. 1,000/- upto Rs. 5,000/-: Censure • Expenses for travel facilities more than Rs. 5,000/- upto Rs. 10,000/-: Removal from Indian Medical Register or State Medical Register for 3 months. • Expenses for travel facilities more than Rs. 10,000/- to Rs. 50,000/-: Removal from Indian Medical Register or State medical Register for 6 months. • Expenses for travel facilities more than more than Rs. 50,000/- to Rs. 1,00,000/-: Removal from Indian Medical Register or State Medical Register for 1 year. • Expenses for travel facilities more than Rs. 1,00,000/-: Removal for a period of more than 1 year from Indian Medical Register or State Medical Register. c) Hospitality: A medical practitioner shall not accept individually any hospitality like hotel accommodation for self and family members under any pretext. • Expenses for Hospitality more than Rs. 1,000/- upto Rs. 5,000/-: Censure • Expenses for Hospitality more than Rs. 5,000/- upto Rs. 10,000/-: Removal from Indian Medical Register or State Medical Register for 3 months. • Expenses for Hospitality more than Rs. 10,000/- to Rs. 50,000/-: Removal from Indian Medical Register or State medical Register for 6 months. • Expenses for Hospitality more than more than Rs. 50,000/- to Rs. 1,00,000/: Removal from Indian Medical Register or State Medical Register for 1 year. • Expenses for Hospitality more than Rs. 1,00,000/-: Removal for a period of more than 1 year from Indian Medical Register or State Medical Register d) Cash or monetary grants: A medical practitioner shall not receive any cash or monetary grants from any pharmaceutical and allied healthcare industry for individual purpose in individual capacity under any pretext. Funding for medical research, study etc. can only be received through approved institutions by modalities laid down by law / rules / guidelines adopted by such approved institutions, in a transparent manner. It shall always be fully disclosed. • Cash or monetary grants more than Rs. 1,000/- upto Rs. 5,000/-: Censure • Cash or monetary grants more than Rs. 5,000/- upto Rs. 10,000/-: Removal from Indian Medical Register or State Medical Register for 3 months. • Cash or monetary grants more than Rs. 10,000/- to Rs. 50,000/-: Removal from Indian Medical Register or State Medical Register for 6 months. • Cash or monetary grants more than more than Rs. 50,000/- to Rs. 1,00,000/-: Removal from Indian Medical Register or State Medical Register for 1 year. • Cash or monetary grants more than Rs. 1,00,000/-: Removal for a period of more than 1 year from Indian Medical Register or State Medical Register. e) Medical Research: A medical practitioner may carry out, participate in, work in research projects funded by pharmaceutical and allied healthcare industries. A medical practitioner is obliged to know that the fulfillment of the following items (i) to (vii) will be an imperative for undertaking any research assignment / project funded by industry – for being proper and ethical. Thus, in accepting such a position a medical practitioner shall:- (i) Ensure that the particular research proposal(s) has the due permission from the competent concerned authorities. (ii) Ensure that such a research project(s) has the clearance of national/ state / institutional ethics committees / bodies. (iii) Ensure that it fulfils all the legal requirements prescribed for medical research. (iv) Ensure that the source and amount of funding is publicly disclosed at the beginning itself. (v) Ensure that proper care and facilities are provided to human volunteers, if they are necessary for the research project(s). (vi) Ensure that undue animal experimentations are not done and when these are necessary they are done in a scientific and a humane way. (vii) Ensure that while accepting such an assignment a medical practitioner shall have the freedom to publish the results of the research in the greater interest of the society by inserting such a clause in the MoU or any other document / agreement for any such assignment. First time censure, and thereafter removal of name from Indian Medical Register or State Medical Register for a period depending upon the violation of the clause. f) Maintaining Professional Autonomy: In dealing with pharmaceutical and allied healthcare industry a medical practitioner shall always ensure that there shall never be any compromise either with his / her own professional autonomy and / or with the autonomy and freedom of the medical institution. First time censure, and thereafter removal of name from Indian Medical Register or State Medical Register. g) Affiliation: A medical practitioner may work for pharmaceutical and allied healthcare industries in advisory capacities, as consultants, as researchers, as treating doctors or in any other professional capacity. In doing so, a medical practitioner shall always: (i) Ensure that his professional integrity and freedom are maintained. (ii) Ensure that patients interest are not compromised in any way. (iii) Ensure that such affiliations are within the law. (iv) Ensure that such affiliations / employments are fully transparent and disclosed First time censure, and thereafter removal of name from Indian Medical Register or State Medical Register for a period depending upon the violaton of the clause h) Endorsement: A medical practitioner shall not endorse any drug or product of the industry publically. Any study conducted on the efficacy or otherwise of such products shall be presented to and / or through appropriate scientific bodies or published in appropriate scientific journals in a proper way” First time censure, and thereafter removal of name from Indian Medical Register or State Medical Register Dr KK Aggarwal National President IMA and HCFI

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