25 May 2015
Medical Council of India, Pocket 14, Sector 8,
Dwaraka, Phase 1, New Delhi 110077
Subject: Protest against and request to withdraw MCI Circular No. MCI - 211(2)(Gen)/2014-Ethics/103581 dated 22-4-2015 regarding strike by doctors.
The QPMPA (Qualified Private Medical Practitioners’ Association) is an all India association of the private Medical Institutions and individual private Doctors practising modern medicine. We have come across the referred circular written by the MCI to all SMCs (State Medical Councils). It has been widely circulated in the media.
In this connection, it is submitted as follows:-
1 — The circular refers to the Hon’ble Supreme Court’s order dated 11-11-2014 in Writ Petition (Civil) No. 253 of 2012, titled as People For Better Treatment (PBT) Versus Secretary, Indian Medical Association (IMA) & Ors. and advises the SMCs to take action against doctors going on strike in terms of the MCI’s Code of Ethics Regulations 2002.
2 — Para 5 of the above judgment reads as follows:
“5. The relief sought in this writ petition is commendable but difficult to either grant or if it is granted to enforce. Reliance must be placed upon the constitution bench decision in common cause, a registered society vs. Union of India & others (2006) 9 SCC 295, wherein this Court suggested that the Bar Council of India and State Bar Councils are the relevant authorities which must take disciplinary action against bar associations on a strike and sponsors of such boycotts. On a perusal of the aforesaid, we are of the considered opinion that the same analogy would be equally applicable in case of the doctors on strike and that the appropriate authority, i.e., the Medical Council of India and other State Medical Councils must be approached to take suitable action against such striking doctors.”
3 — it is clear that the Hon’ble Supreme Court asked the petitioner to approach the MCI in this connection. It has not asked the MCI to take any action on its own.
4 — it is also clear that there is no hierarchy between the MCI and the State Medical Councils, all of which have been established under different and independent central / state legislations. There is nothing in the IMC Act, 1956, that empowers the MCI to exercise an administrative, supervisory or even advisory power over the State Medical Councils.
5 — it is submitted that the said circular is without substance. All that it states is as follows:
“When a complaint is made to a State Medical Council against a striking doctor, action should be taken against him in terms of the Code of Ethics Regulations, 2002.”
It is clear that the circular says nothing new. Even otherwise, a State Medical Council is expected to hold an inquiry when a complaint is made against any doctor, whether he be on strike or on duty.
6 — it is submitted that the mere act of going on strike does not constitute violation of any law, including the Code of Ethics Regulations, 2002. As a matter of fact, strike is a fundamental right of every citizen. Moreover, a strike is perfectly legal as per the Industrial Disputes Act, 1947. It may be mentioned that hospitals are covered under the Industrial Disputes Act.
7 — it is a part of basic logic that the matter of strike per se is a matter only amongst the employer and the employees and no third person has any role in such contractual relationship. The employer has ample powers, including dismissal from service, in case of a striking employee. Strike per se is a service matter and not a matter of Ethics.
For example, there was a recent news item titled “Hindu Rao staff not paid for 8 months” in Times of India dated 29-3-2015. If such employees go on strike, it would be a peculiar and sad move on the part of the Medical Council to punish such doctors for no fault of their own.
8 — at another level, when a doctor has his own independent private practice, it is purely a matter of his own choice when he would open his clinic or not as long as he does not neglect his duties towards his patients. If he decides to observe strike for whatever reason, it is a matter purely between him and those who seek his service. If they have a grievance regarding deficiency in service, there are multiple redressal mechanisms available to him. This again shows that the mere act of going on strike does not constitute an act which calls for the Medical Councils’ intervention. It is precisely for this reason that the word “strike” does not occur anywhere in the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002.
9 — in view of the above, it is submitted that the said circular is vague, without substance and unnecessary and has been issued with ulterior motives. There is nothing in the said judgment and Regulations to hold that it is against law on the part of doctors to go on strike. As a matter of fact, it does not even tell the State Medical Councils as to which regulation restrains a doctor from striking work in pursuance of just demands that remain un-addressed by the authorities.
10 — it is submitted for your kind consideration that the said circular has created an unnecessary scare among doctors all over India because; coming from the MCI, an ordinary person feels intimidated by it. As a matter of fact, the QPMPA feels that, even though the circular is without legal basis, the possible intention of the MCI was to intimidate and frighten the medical community and to bias the decision making process of the State Council when a complaint is made before it against a strike by doctors.
11 — the scare among doctors about the circular is not imaginary. Doctors rarely resort to strike and when at all they do so, the reason is that there is no alternative to make the authorities listen to their just demands. Whenever they go on strike, certain elements are quick enough to file reflex PILs in courts against the strike. Two such PILs have been filed even in the Hon’ble Supreme Court as detailed in the referred judgment itself. The undesirable and even illegal consequences of the circular dated 22-4-2015 would be as follows:
i) SMCs (State Medical Councils), feeling dictated by the MCI, are likely to pass adverse and illegal decisions against the accused doctors.
ii) If an appeal is made to the MCI by a party aggrieved by the decision of the SMC, the MCI is likely not to decide the appeal on merits but to feel fettered by its own circular referred above and to decide the appeal in a biased and illegal manner.
12 — it is submitted that the said circular, in effect, tends to curb a fundamental right. It may be mentioned that, till today, there is no ban on strikes in India.
13 — it is further stated that the said SC judgment has drawn a parallel with the Bar Council of India and has suggested that all professionals, whether medical or legal, should be treated alike and should be judged by the respective professional council and not by the Hon’ble SC in a matter concerning strike. In this regard, it may be mentioned that a continuous 22 day strike was held by all lawyers in all district courts of Delhi in April-May, 2015, paralysing court work and harming the interests of clients, but the Bar Council has not taken any action against striking lawyers this time or even in earlier occasions. The medical councils, too, need to be circumspect and not unnecessarily pro-active in a like situation.
14 — it is stated that doctors’ strike are not peculiar to India but have taken place in other countries also, including USA and UK.
15 — in the circumstances, it is requested that the MCI may kindly review its own circular and may issue a clarification regarding the same in view of the points raised above. The QPMPA feels that it would be best to withdraw the above circular.
It is requested that the decision of the MCI may be communicated to QPMPA within 45 days.
Sd/- Dr. K. Kishore Kumar, Secretary, QPMPA
cc. The Presidents, All SMCs
Tail piece: Refer Ethics Regulation 6.3: An open shop or a closed shop is not the place to sell drugs!