Dr Sanjay Kumar Bhasin
In India, Private practice by Government doctors is forbidden in most of the state medical institutions, all Central government health institutions as well as autonomous institutions like PGIMER & AIIMS. Providing better healthcare to its citizens is the constitutional obligation of the Government; similarly, allowing or banning private practice of government doctors too is discretion of the Government. Issue of private practice by government doctors had always remained hot debate and it has once again gained momentum of new but repetitive narratives after one circular of H&ME department went viral on Whatsapp and some news papers started publishing stories of whether to ban private practice of Government doctors or not. Before jumping on to any conclusion, let us go into depth of the issue.
Private Practice in the Eyes of Courts:
In April 2011, two judges bench of Hon’ble Supreme court of India comprising Justices Markandey Katju and Gyan Sudha Misra quashed the FIR lodged against two Punjab Government doctors, who were charging Rs 100 per patient in an evening private clinic, under Prevention of Corruption Act and Section 168 of the Indian Penal Code, under which it is an offence for a government servant to engage in a trade. The bench ruled that government doctors defying the ban on private practice and charging consultation fee from patients in a clinic during spare time could neither be accused of indulging in trade nor be booked under the anti-corruption law. It could amount to breaching a government order making them liable for departmental action. Justice Misra, observed, “Corruption meant acceptance or demand of illegal gratification for doing an official act. The demand/receipt of a fee while doing private practice by itself cannot be held to be an illegal gratification as the same is obviously the amount charged towards professional remuneration.”
In another judgment by three Judge Bench headed by Chief Justice of India, Justice T.S Thakur (A.M Khanwilkar and Justice D.Y Chandrachud) on 24th Oct 2016, while remanding the proceeding back to the J&K State High Court, the Apex Court said, “apart from the issue pertaining to the issue of private practice by doctors, there are other and perhaps, more fundamental aspects, which would arise from the Public Interest Litigation instituted before the High Court”, adding, “the basic issue which requires to be addressed is the availability of infrastructure and facilities in Government hospitals across the State of Jammu and Kashmir and the facilities for the treatment of patients. We are of the view that the quality of medical care in Government hospitals across the State of Jammu and Kashmir is a matter which should receive attention and oversight in the exercise of the jurisdiction under Article 226”. The Bench identified five major areas of concern in the health sectors- (i) the availability of adequate infrastructure in Government Hospitals (ii) availability of essential equipment (iii) availability of medical and para medical staff (iv) essential medicines and (v) enforcement of conditions of hygiene to secure proper medical treatment facilities.
In March 2019, the Madras High court Justice S.M. Subramanian while advocating strict ban on private practice by government doctors observed “The skill acquired from and out of taxpayers’ money must be utilized for the people at large and it is under these circumstances that the government expects them to work in public hospitals at least for specified period…”
What MCI says about Private Practice?
Although the MCI has no strict/specific guidelines pertaining to issue of private practice by government doctors, yet a clue of its recommendations for private practice by doctors can be taken from, Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002. In Chapter 1 (Code of Medical Ethics) part B (Duties and responsibilities of the Physician in general), clause 1.8 (Payment of Professional Services), it says, “The physician, engaged in the practice of medicine shall give priority to the interests of patients. The personal financial interests of a physician should not conflict with the medical interests of patients. A physician should announce his fees before rendering service and not after the operation or treatment is under way. Remuneration received for such services should be in the form and amount specifically announced to the patient at the time the service is rendered. It is unethical to enter into a contract of ‘no cure no payment’. Physician rendering service on behalf of the state shall refrain from anticipating or accepting any consideration.”
Allegations against Private Practice
Advocatory of ban on Private Practice by government doctors are of the view that private practice has caused great harm to the medical profession in particular and the society in general. They blame absence of senior doctor at a teaching hospital after 4pm and deteriorating teaching standards in GMCs to private practice. They further add that fake drug industry is flourishing due to these unscrupulous doctors, whose only motto is money. There are allegations that government doctors behave better in their clinics rather than in government OPDs or wards.
But very vital aspects related to how private practice by government doctors helps avert crisis in government hospitals is never debated by anyone. They forget that fast ailing infrastructure including constantly decreasing manpower is creating crisis like situation in government hospitals that are overloaded in view of population explosion. They also forget that majority of doctors doing private practice out of duty hours are doing it so at the cost of their own health, family and their own comforts just to supplement healthcare delivery system. They also forget that doctors in spite of all odds in the government set up are volunteering themselves for working on meager salaries vis a vis their counterparts in private hospitals. Both public and people in administrative also forget that GMCs are Teaching Institutions and healthcare is secondary to teaching; whereas, healthcare delivery is the primary domain of peripheral health institutions.
Although allowing or banning private practice of government doctors is sole prerogative of the government, yet a holistic view of the issue needs to be taken before putting blanket ban on private practice of government doctors. Pertinently, neither court of law view private practice by government doctors as offence/ corruption/crime nor MCI has specific guidelines for private practice by government doctors.
Banning private practice of government doctors especially Teaching Faculty of GMC Jammu may see a temporary/short lived resentment from them. But if they are not compensated financially in terms of enhancement in Pay Structure, Perks, Special Allowances etc. many with good private practice amongst them may leave the government job over few months to year, depleting GMCs of already short and trained Teaching faculty. On the other hand, properly imposed ban with lucrative pay perks to doctors and proving them with better working atmosphere in terms of latest machinery/equipments and larger scope of their carrier progression shall enhance teaching and caring standards in GMCs.
In nut shell Private Practice by Government Doctors may be banned alongside providing them with ample opportunities of better working atmosphere, better carrier progression schemes and lucrative pay and perks. It shall not be bad idea to discuss the issue with HODs and HOUs of Clinical Department before putting blanket ban on private practice, this endeavor shall increase confidence of stake holders on the government.
(The author is Professor of Surgery
Honorary Secretary, JK Chapter of
Association of Surgeons of India)