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The myth of an unregulated health system


Healthcare has finally found its deserving spot in the mainstream policy and political debates in the country for the past year. Reforms by the Government, launch of new programs, policy interventions and widely reported cases of violence against doctors and alleged negligence have made health more central to the societal discourse. For decades, health and its provisioning for all Indians have remained a challenge for those who provide it – Governments, providers and the not-for-profit sector and equally for those receiving it.

The myriad issues around health including its access, affordability, the issue of budgetary constraints, a leaky public health system that has not always done justice to its mandate, a private health system that has questions on cost to answer for and differing health policies at the Union and State levels have all hitherto been relegated to subject specialists or within the confines of policy and medical professional circles. The past year has witnessed a tectonic shift with a robust debate around affordability, quality, access, health as a fundamental right etc. becoming more mainstream. Patients, ‘consumers’, doctors, Governments and ordinary citizens may differ on many aspects of health policy but remain unified on the urgent need to address health as centrally as other issues of national importance like jobs, education and social security.

Amongst these complex issues, one notion that has gained particular currency has been the need to regulate the sector with more legislation and administrative interventions. It has often been made to seem that the spectre of a largely unregulated and unfettered health system has operated in the country, which needs to now be reined in. This myth has been perpetuated to become a central axiom in any debate around healthcare. This notion not only needs to be put in a suitable context, parts it needs to be rescinded from the larger debate around healthcare.

Most, if not all, aspects of healthcare fall under some legislation or regulation in our country. Through laws and rules facets such as doctor and patient rights, duties and responsibilities of doctors and hospitals, applicable laws to operate a health facility, punitive mechanics to address any malpractice, legal remedy & relief and police action thereof etc. all have applicability in healthcare. In fact, in many ways, healthcare seems to be the most regulated sectors in the country today.

Take, for example, the practice of medicine in the country. Wide-ranging laws such as the Nursing Homes Act, Consumer Protection Act, Clinical Establishments Act, the Drugs and Cosmetics Act, rules by the Medical Council of India on ethical practice and patient rights etc. all cover medical practice and provides remedies. Further, sections on Medical Negligence find mention in the Indian Penal Code and has actions defined thereof in the Code of Criminal Procedure. Therefore, unlike most other professional practices, a doctor can be tried under the Consumer Protection statues (i.e. for violating the rights of a “consumer”) and also tried under criminal law. These apart from rights available to sue for malpractice too exist under Indian law. One would be hard pressed to find any other sector that has such stringent regulations on the practice of any profession.

Commissioning, operating and managing hospitals too fall under an exhaustive set of regulations. From the Nursing Home Act to the Clinical Establishments Act, the Biomedical Waste disposal rules, the National Green Tribunal Act, Fire Safety to Food Safety acts are all fully applicable to hospitals. Statues under the IPC and CrPC too apply on hospitals along with other vicarious responsibilities that are applicable to hospitals.

Listed operators have to further operate within the confines of corporate law, statutes governing the stock exchanges and all need to make full disclosures to shareholders, auditors and regulators. These entities, therefore, are liable for scrutiny and punitive action like many cases in the past few years have shown. Similarly, Income Tax and other indirect tax regulations govern the financial actions of hospitals. These regulations have ensured that any deviations from the law are adequately reported and acted upon.

Given these stipulations in place, why is it that the health sector is considered unregulated? One, the better applicability of the law of the land is needed, but that is not restricted to healthcare and is true of many other settings and sectors. Second, while standalone laws to mandate accessibility and affordability do not exist, they are the essence of many of the aforementioned statutes. Therefore, separate laws for such mandates may only add laws but not improve the ground situation. On affordability, the Government has brought in capping and pricing regulations which while well-intentioned have only met with limited overall success. Thirdly, health is an emotional subject – and rightly so. The loss of life is deeply wounding. But it is also a reality. To counter any perceived inadequacies in medical practice with additional laws only help to make the situation worse. It can be argued that the talk of no regulation in healthcare has contributed to the rising incidence of violence against doctors and the prevailing environment of mistrust. One must have a robust debate on what law exists and what must be added to make healthcare more accountable. But beyond laws, health is a social contract. It needs to be built in an environment of compliance with the law and trust and belief. By focusing only on the former, one cannot achieve the latter. This bitter medicine is a reality that the debate around healthcare seems to be missing.

DISCLAIMER : Views expressed above are the author’s own.





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