We wrote a piece for ibnlive.com on the major differences between the government’s Lok Pal Bill, 2011 and the Jan Lok Pal Bill drafted by Anna Hazare’s group. The note is reproduced below. The streets are witnessing a demand that the government’s Lok Pal Bill be replaced by the Jan Lok Pal Bill (JLP) as drafted by the team led by Anna Hazare. There are several significant differences between the two bills. In this note, we describe the some of these differences. (See here for more on the Lok Pal Bill). First, there is a divergence on the jurisdiction of the Lok Pal. Both bills include ministers, MPs for any action outside Parliament, and Group A officers (and equivalent) of the government. The government bill includes the prime minister after he demits office whereas the JLP includes a sitting prime minister. The JLP includes any act of an MP in respect of a speech or vote in Parliament (which is now protected by Article 105 of the Constitution). The JLP includes judges; the government bill excludes them. The JLP includes all government officials, while the government bill does not include junior (below Group A) officials. The government bill also includes officers of NGOs who receive government funds or any funds from the public; JLP does not cover NGOs. Second, the two Bills differ on the composition. The government bill has a chairperson and upto 8 members; at least half the members must have a judicial background. The JLP has a chairperson and 10 members, of which 4 have a judicial background. Third, the process of selecting the Lok Pal members is different. The JLP has a two stage process. A search committee will shortlist potential candidates. The search committee will have 10 members; five of these would have retired as Chief Justice of India, Chief Election Commissioner or Comptroller and Auditor General; they will select the other five from civil society. The Lok Pal chairperson and members will be selected from this shortlist by a selection committee. The selection committee consists of the prime minister, the leader of opposition in Lok Sabha, two supreme court judges, two high court chief justices, the chief election commissioner, the comptroller and auditor general, and all previous Lok Pal chairpersons. The government bill has a simpler process. The selection will be made by a committee consisting of the prime minister, the leaders of opposition in both Houses of Parliament, a supreme court judge, a high court chief justice, an eminent jurist, and an eminent person in public life. The selection committee may, at its discretion, appoint a search committee to shortlist candidates. Fourth, there are some differences in the qualifications of a member of the Lok Pal. The JLP requires a judicial member to have held judicial office for 10 years or been a high court or supreme court advocate for 15 years. The government bill requires the judicial member to be a supreme court judge or a high court chief justice. For other members, the government bill requires at least 25 years experience in anti-corruption policy, public administration, vigilance or finance. The JLP has a lower age limit of 45 years, and disqualifies anyone who has been in government service in the previous two years. Fifth, the process for removal of Lok Pal members is different. The government bill permits the president to make a reference to the Supreme Court for an inquiry, followed by removal if the member is found to be biased or corrupt. The reference may be made by the president (a) on his own, (a) on a petition signed by 100 MPs, or (c) on a petition by a citizen if the President is then satisfied that it should be referred. The President may also remove any member for insolvency, infirmity of mind or body, or engaging in paid employment. The JLP has a different process. The process starts with a complaint by any person to the Supreme Court. If the court finds misbehaviour, infirmity of mind or body, insolvency or paid employment, it may recommend his removal to the President. Sixth, the offences covered by the Bills vary. The government bill deals only with offences under the Prevention of Corruption Act. The JLP, in addition, includes offences by public servants under the Indian Penal Code, victimization of whistleblowers and repeated violation of citizen’s charter. Seventh, the government bill provides for an investigation wing under the Lok Pal. The JLP states that the CBI will be under the Lok Pal while investigating corruption cases. Eighth, the government bill provides for a prosecution wing of the Lok Pal. In the JLP, the CBI’s prosecution wing will conduct this function. Ninth, the process for prosecution is different. In the government bill, the Lok Pal may initiate prosecution in a special court. A copy of the report is to be sent to the competent authority. No prior sanction is required. In the JLP, prosecution of the prime minister, ministers, MPs and judges of supreme court and high courts may be initiated only with the permission of a 7-judge bench of the Lok Pal. Tenth, the JLP deals with grievance redressal of citizens, in addition to the process for prosecuting corruption cases. It requires every public authority to publish citizen’s charters listing its commitments to citizens. The government bill does not deal with grievance redressal. Given the widespread media coverage and public discussions, it is important that citizens understand the differences and nuances. This may be a good opportunity to enact a law which includes the better provisions of each of these two bills.
The National Medical Commission (NMC) Bill, 2017 was introduced in Lok Sabha in December, 2017. It was examined by the Standing Committee on Health, which submitted its report during Budget Session 2018. The Bill seeks to regulate medical education and practice in India. In this post, we analyse the Bill in its current form.
How is medical education and practice regulated currently?
The Medical Council of India (MCI) is responsible for regulating medical education and practice. Over the years, there have been several issues with the functioning of the MCI with respect to its regulatory role, composition, allegations of corruption, and lack of accountability. For example, MCI is an elected body where its members are elected by medical practitioners themselves, i.e. the regulator is elected by the regulated. In light of such issues, experts recommended nomination based constitution of the MCI instead of election, and separating the regulation of medical education and medical practice. They suggested that legislative changes should be brought in to overhaul the functioning of the MCI.
To meet this objective, the Bill repeals the Indian Medical Council Act, 1956 and dissolves the current Medical Council of India (MCI) which regulates medical education and practice.
Who will be a part of the NMC?
The NMC will consist of 25 members, of which at least 17 (68%) will be medical practitioners. The Standing Committee has noted that the current MCI is non-diverse and consists mostly of doctors who look out for their own self-interest over larger public interest. In order to reduce the monopoly of doctors, it recommended that the MCI should include diverse stakeholders such as public health experts, social scientists, and health economists. In other countries, such as the United Kingdom, the General Medical Council (GMC) responsible for regulating medical education and practice consists of 12 medical practitioners and 12 lay members (such as community health members, and administrators from the local government).
How will the issues of medical misconduct be addressed?
The State Medical Council will receive complaints relating to professional or ethical misconduct against a registered doctor. If the doctor is aggrieved by the decision of the State Medical Council, he may appeal to the Ethics and Medical Registration Board, and further before the NMC. Appeals against the decision of the NMC will lie before the central government. It is unclear why the central government is an appellate authority with regard to such matters.
It may be argued that disputes related to ethics and misconduct in medical practice may require judicial expertise. For example, in the UK, the GMC receives complaints with regard to ethical misconduct and is required to do an initial documentary investigation. It then forwards the complaint to a Tribunal, which is a judicial body independent of the GMC. The adjudication and final disciplinary action is decided by the Tribunal.
What will the NMC’s role be in fee regulation of private medical colleges?
In India, the Supreme Court has held that private providers of education have to operate as charitable and not for profit institutions. Despite this, many private education institutions continue to charge exorbitant fees which makes medical education unaffordable and inaccessible to meritorious students. Currently, for private unaided medical colleges, the fee structure is decided by a committee set up by state governments under the chairmanship of a retired High Court judge. The Bill allows the NMC to frame guidelines for determination of fees for up to 40% of seats in private medical colleges and deemed universities. The question is whether the NMC as a regulator should regulate fees charged by private medical colleges.
A NITI Aayog Committee (2016) was of the opinion that a fee cap would discourage the entry of private colleges, therefore, limiting the expansion of medical education. It also observed that it is difficult to enforce such a fee cap and could lead medical colleges to continue charging high fees under other pretexts.
Note that the Parliamentary Standing Committee (2018) which examined the Bill has recommended continuing the current system of fee structures being decided by the Committee under the chairmanship of a retired High Court judge. However, for those private medical colleges and deemed universities, unregulated under the existing mechanism, fee must be regulated for at least 50% of the seats. The Union Cabinet has approved an Amendment to increase the regulation of fees to 50% of seats.
How will doctors become eligible to practice?
The Bill introduces a National Licentiate Examination for students graduating from medical institutions in order to obtain a licence to practice as a medical professional.
However, the NMC may permit a medical practitioner to perform surgery or practice medicine without qualifying the National Licentiate Examination, in such circumstances and for such period as may be specified by regulations. The Ministry of Health and Family Welfare has clarified that this exemption is not meant to allow doctors failing the National Licentiate Examination to practice but is intended to allow medical professionals like nurse practitioners and dentists to practice. It is unclear from the Bill that the term ‘medical practitioner’ includes medical professionals (like nurses) other than MBBS doctors.
Further, the Bill does not specify the validity period of this licence to practice. In other countries such as the United Kingdom and Australia, a licence to practice needs to be periodically renewed. For example, in the UK the licence has to be renewed every five years, and in Australia it has to renewed annually.
What are the issues around the bridge course for AYUSH practitioners to prescribe modern medicine?
The debate around AYUSH practitioners prescribing modern medicine
There is a provision in the Bill which states that there may be a bridge course which AYUSH practitioners (practicing Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homoeopathy) can undertake in order to prescribe certain kinds of modern medicine. There are differing views on whether AYUSH practitioners should prescribe modern medicines.
Over the years, various committees have recommended a functional integration among various systems of medicine i.e. Ayurveda, modern medicine, and others. On the other hand, experts state that the bridge course may promote the positioning of AYUSH practitioners as stand-ins for allopathic doctors owing to the shortage of doctors across the country. This in turn may affect the development of AYUSH systems of medicine as independent systems of medicine.
Moreover, AYUSH doctors do not have to go through any licentiate examination to be registered by the NMC, unlike the other doctors. Recently, the Union Cabinet has approved an Amendment to remove the provision of the bridge course.
Status of other kinds of medical personnel
As of January 2018, the doctor to population ratio in India was 1:1655 compared to the World Health Organisation standard of 1:1000. The Ministry of Health and Family Welfare stated that the introduction of the bridge course for AYUSH practitioners under the Bill will help fill in the gaps of availability of medical professionals.
If the purpose of the bridge course is to address shortage of medical professionals, it is unclear why the option to take the bridge course does not apply to other cadres of allopathic medical professionals such as nurses, and dentists. There are other countries where medical professionals other than doctors are allowed to prescribe allopathic medicine. For example, Nurse Practitioners in the USA provide a full range of primary, acute, and specialty health care services, including ordering and performing diagnostic tests, and prescribing medications. For this purpose, Nurse Practitioners must complete a master’s or doctoral degree program, advanced clinical training, and obtain a national certification.
