Human Rights advocacy
Patient's right is also consumer's right
Syed Gouseuzzaman Haidari Ali
Patients receiving services from doctors or hospitals are also consumers. They consume medical services. Patients are one of the most important classes among the consumers. In Bangladesh patients belong to the most neglected sector of consumers. Patient's rights have never been thought of or taken into account seriously.
Patient's rights can be classified as right to life which is one of the most important among the fundamental rights. In Bangladesh Constitution, right to life is provided in article-32. Therefore, patient's right is also a fundamental right.
Patients pay good amount of fees to the doctors but they are not getting proper services from them. Section-28(i) of Medical and Dental Council Act 1980 provides when any medical practitioner or dentist is found guilty of misconduct in respect of his profession, the Council may refuse to permit registration of that person. The Council may also direct the removal of the name of any registered medical practitioner or dentist from the Registration, altogether or for a specified period, on account of professional misconduct. Section-5(a) of the Code of Medical Ethics provides that gross negligence of medical and dental practitioners in their duties to their patient may be regarded as misconduct sufficient to justify the suspension or the removal of their names from the Registrar.
Moreover, in the law of tort, there is a chapter on negligence, where there is a duty of care of a doctor towards his patient, a breach of which may give a right of action against the doctor for negligence to the patient. In Dr. L.B. Joshi vs. Dr. T.B. Godbole. Air 1969 S.C 128 at 131-132, the son of the plaintiff had fracture of the femur of his left leg. He was taken to the respondent's hospital for treatment. The doctor tried to reduce the fracture, and in doing so he did not give anaesthetic but only administered morphine injection to the patient. He used excessive force in going through his treatment by using three of his attendants for pulling the injured leg of the patient. The treatment resulted in shock and caused the death of the patient. It was held by the Supreme Court that the doctor was guilty of negligence.
Doctors also have a duty of care under section 2(1)(g) and section 14(1)(d) of the Consumer Protection Act 1986 of India. In the case of Haresh Kumer vs. Sunil Blood Bank 1992 1 CPJ 645, the complainant's wife was a patient who had to undergo blood transfusion. The blood was found to be contaminated with hepatitis virus. The patient got infected with hepatitis and subsequently, patient's husband who was a complainant also got infected with hepatitis. Held, there was negligence on the part of the doctor and of the blood bank. The complainant was awarded Rs. 20,000 as compensation.
Besides doctors, both private clinics and government hospitals owe duty of care to the patients. In private clinics and diagnostic centres, patients pay money for their treatment. Therefore, patients become consumers there and are entitled to get proper services. Section-9 of the Medical Practice and Private Clinics and Laboratories (Regulation) Ordinance 1982 of Bangladesh provides that conditions precedent for establishing a private clinic are, proper accommodation with hygienic environment for the patients, at least eighty square feet of floor space for each patient, air conditioned operation theatre, availability of all the essential equipments, adequate supply of life saving and essential medicines, required number of full-time registered medical practitioners, nurses and other staff and specialists for the operation, treatment and supervision of patients. Section-11 of the same Ordinance provides that the Director General of Health or any other officer authorized by him shall have the authority to inspect any chamber of registered medical practitioner, private clinic, private hospital or pathological laboratory whether they have contravened or failed to comply with any provision of this Ordinance. In case the Director General finds that they have contravened any provision of this Ordinance, he may recommend the government in case of medical practitioner to debar him from carrying on medical private practice, in case of private clinic or private hospital to cancel the licence in respect thereof and in case of pathological laboratory to close it down. In the case of M.L. Singhal vs. Dr. Pradeep Mathur H.I. R. 1996 Delhi 261, the plaintiff's wife suffered from anaemia, general weakness and problem of not passing urine. She was under the treatment of Dr. Pradeep Mathur privately. Afterwards she was admitted to a hospital. In the hospital as well she was under the treatment of Dr. Pradeep Mathur. The patient died within a few days. It was found that there was no negligence on the part of the doctor. There was negligence on the part of the nursing staff, there was leakage in the catheter and the bed was not proper for the patient. So, the patient developed bed sores. All these inadequate facilities hastened the death of the patient. Held, the hospital was liable and was directed to pay compensation to the plaintiff.
Regarding government hospitals, there is a controversy, whether the patients are consumers. In the case of Consumer Unity and Trust Society vs. State of Rajstan, (1991) 1CPR 241(NC) it was decided that the patients of the government hospitals are not consumers because they do not pay for the treatment. That is, they do not buy the medical service. But patients of a government hospital can be interpreted as consumers. Citizens are paying taxes to the government. In return the government is providing many kinds of facilities to citizens including medical facilities. Therefore, patients of a government hospital can be interpreted as consumers indirectly.
In Bangladesh, government hospitals are regulated by the Directorate General of Health. In the case of Rajmal vs. State of Rajsthan A.I.R. 1996 Raj. 80, the petitioner's wife died while she was undergoing surgery at Primary Health Care Centre. It was a government hospital. It was found that there was no negligence on the part of the doctor performing the surgery, nor his integrity or efforts could be doubted. The apparent cause of death of the patient was lack of adequate resuscitative facilities in the form of proper equipment, as well as trained and qualified anaesthetist. Held, there was negligence on the part of the hospital and the State Government was liable to pay compensation.
The fundamental principle is that patient's right to get proper treatment is a right to life. Whether the medical patient is a consumer or not is of less importance. Hence, there should be a comprehensive law for the protection of patient's right of getting proper treatment. The government should come forward to protect the rights of all kinds of patients, whether they are paying for their medical service or getting free treatment. The government should enact a new law, which can be called, Patient's Rights and Safety Act. This Act should bind with obligations, all who are related to health services. This Act should impose legal obligations upon medical practitioners, dentists, private clinics, private hospitals, pathological laboratories and also upon government hospitals.
The writer is Advocate of the Supreme Court of Bangladesh.