Exclusion Of ‘Healthcare’ From The Definition Of ‘Service’: A Delusional Relief For Medical Professionals

Posted On - 11 August, 2020 • By - Smita Paliwal

Healthcare Not Classified as Service in the New CPA 2019

The Consumer Protection Act, 2019 (‘CPA 2019’) arrived in full glory and the Central government vide notification dated 15-07-2020[1] appointed 20-07-2020; and thereafter vide notification dated 23-07-2020[2] appointed 24-07-2020 to be the dates on which provisions of CPA 2019 shall come into force.

It is pertinent to note that the earlier draft of the Consumer Protection Bill that was passed by the Lok Sabha in 2018 had included “healthcare” under section 2(42) of the Consumer Protection Bill, 2018 (Bill No.1-C of 2018)[3]. However, the CPA 2019[4] in its current form does not include ‘healthcare’ under section 2(42) that provides the definition of ‘service’. The Healthcare Amendment, more popularly referred and claimed as a ‘technical amendment’ was introduced in the Parliament to remove ‘healthcare’ from the list of services.

The same was brought in in response to the hue and cry of the medical professionals and communities who have expressed strong apprehension that the CPA 2019 would be misused by the consumer against them if the healthcare services are brought under the ambit of the term ‘service’. The CPA 2019 created a loophole pertaining to the inclusion of healthcare as a service and leaves it open to judicial interpretation.

Change in the definition of ‘Service’

The term ‘service’ in the Bill of 2018 was earlier defined as hereunder:

(42) “service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, healthcare, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;

However, the same has been modified by deleting “healthcare” in the CPA 2019 which now prescribes as hereunder:

(42)”service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;

Evolution and inclusion of ‘healthcare’ under the Consumer Protection Act

Since 1957, after the case of Bolam v. Friern Hospital Management Committee[5], the thumb rule which is being followed for deciding the cases of medical negligence is the “Bolam’s Test”. The said test can be carried out to ascertain whether a doctor or other medical professional has breached their duty of care to a patient. If a professional who possesses the requisite skill-set, exercises the skill in a situation with a reasonable degree of caution and care, then the said professional cannot be said to be negligent.

The Hon’ble Supreme Court of India in Indian Medical Association v. V.P. Shantha[6] had reiterated that “Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of ‘service’ as defined in Section 2(1) (o) of the Act.”  Therefore, medical practitioners are also liable for deficiency in service under the Consumer Protection Act.

Furthermore, in Jacob Mathew v. State of Punjab[7], the Court had to decide on the issue pertaining to the criminal negligence of doctors under the Indian Penal Code. While reiterating the principle in Bolam case, the Hon’ble Supreme Court held that “For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree”.

Despite the caution expressed by the Hon’ble Supreme Court in Jacob Mathew case, the number of cases against doctors seems to be on the rise. In Martin F. D’Souza v. Mohd. Ishfaq[8] where the Supreme Court held that in both civil and criminal cases against the doctors, prior to issuance of notice to the concerned doctor, the court should refer such case to a competent doctor or committee of doctors and if the report given by them establishes a prima facie proof of negligence, only then, the court should issue a notice to the concerned doctor.

In recent years, the Bolam test has been discarded by the courts in England. In Bolitho v. City and Hackney Health Authority[9], a bench of five judges of the House of Lords held that[10]:

“… The use of these adjectives—responsible, reasonable and respectable—all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter.”

A five-judge bench of the Australian High Court in Rogers v. Whitaker[11] also held that:

“5. ….The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a “single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment”; it extends to the examination, diagnosis and treatment of the patient and the provision of information.”

More recently, the Hon’ble Supreme Court in the case of Maharaja Agrasen Hospital and others v. Master Rishabh Sharma and others[12] placing its reliance on its earlier pronouncement in the case of Savita Garg v. National Heart Institute[13], reiterated and ruled as hereunder:

“It is well established that a hospital is vicariously liable for the acts of negligence committed by the doctors engaged or empanelled to provide medical care. It is common experience that when a patient goes to a hospital, he/she goes there on account of the reputation of the hospital, and with the hope that due and proper care will be taken by the hospital authorities If the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify the acts of commission or omission on behalf of their doctors.”

Concluding Remarks

The Government officials have time and again assured that the said change in the definition of healthcare will not prevent the consumers in any manner to approach Consumer Forums in cases of medical negligence or deficiency in healthcare services.

Section 2(42) of the CPA 2019 contains the phrase “includes, but not limited to” and the same is an inclusive clause. It directly points out to the fact that ‘healthcare’ can still be included and interpreted under section 2(42) of the CPA 2019. Thus, this relief which is said to have been provided to the medical professionals by way of a craftily modified definition is nothing but a delusional relief which definitely will create several doubts and ambiguities in the interpretation of the said provision.

However, the recent change and deletion of the term ‘healthcare’ have created panic amongst the general public since there is an infamous apprehension with respect to the blanket exclusion of healthcare from the definition of ‘service’ under CPA 2019. As is the case with most laws and regulations in India, there is a dire need to frame guidelines to strike a balance between the protection of patients and safeguard the doctors from undue harassment and humiliation. The government, to date, has failed to come forward with any guidelines whatsoever with respect to the same and the most difficult task of striking the balance has been left to the Courts of Law.

Contributed by – Smita Paliwal & Gaurav Singh Gaur

King Stubb & Kasiva,
Advocates & Attorneys

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