CONSUMER PROTECTION ACT (CPA / COPRA) dr shabeelpn
CHARAKA’S OATH :
“ Thou shalt be free from envy, not cause anothers death, and pray for the welfare of all creatures.Day and night thou shalt not desert a patient,nor commit adultery, be modest in thy attire and appearance,not to be drunkard or sinful,while entering a patients house , be accompanied by a person known to the patient.The peculiar customs of the patients household shall not be made public”
An act to provide better protection of the interests of the consumers and for that purpose to make provisions for establishment of consumer councils and other authorities for the settlement of consumers dispute and for matters connected therewith.
The act was passed in 1986.
Section 2(1)(d)(ii) of the act
“ Consumer” means any person who hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment.
Section 2(1)(o)of the act
“ Service” means service of any description which is made available to potential users .Health care services will be service, if they are obtained for consideration.
Section 2(1)(o) of the act
… and that in the event of any deficiency in the performance of such services , the aggrieved party can invoke the remedies provided under the act by filing a complaint before the consumer forum having jurisdiction.
ADVANTAGES OF CPA OVER CIVIL COURT
Limited time is needed for decision and action (period of 3 months).
No court fee is payable
COMPLAINT & COMPLAINANT
Complaint: means any allegations in writing made by a complainant . Complainant: means (a) a consumer
(b) any voluntary consumer association registered under a company’s act or under any other law for time being in force.
Who can file a complaint
The patient who hires the services of a medical practitioner can file a complaint.
It should be in writing .
No oral complains can be filed .
Negligence consists in the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate human affairs , would do, or doing something which a prudent & reasonable man would not do.
What constitutes deficiency in service or negligence
Deficiency of service means any fault, imperfection ,shortcoming or inadequacy in the quality ,nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service .
What constitutes deficiency in service or negligence
Reaction of injection
Patient left unattended while there were complications.
Leaving patient in care of unqualified compounder.
Foreign material left inside during operation of leg.
Foreign material left in abdomen
Death during operation.
Post operative care.
Refusal to admit the patient.
What does not constitute deficiency in service or negligence
Performance of duty to the best of ability.
Adopting one out of two recognized schools of medicine.
Complainant failed to establish deficiency in service.
Patient having some medical history.
Patient of heart attack.
Decompression of spinal cord .
Death during glucose drip.
Chronic ectopic pregnancy.
Acute myeloblastic leukaemia.
Case of deviated nasal septum.
Cyanotic congenital heart disease with respiratory distress.
Hospital and its negligence
It is not only the medical practitioner who may be found negligent the hospitals are also bound by the law and in certain circumstances the hospitals are also found negligent or deficient in services.
WHO IS LIABLE TO CPA
Doctors with independent practice rendering only free services.
Private hospital charging all.
All hospital having free as well as paying patients , they are liable to both.
Doctors or hospitals paid by an insurance firm for treatment of a client or an employer for the treatment of an employee.
WHO IS NOT LIABLE TO CPA
Doctors in hospitals , which do not charge their patients.
Hospitals offering free services to all patients.
PROCEDURES FOR LODGING A COMPLAINT
The redressal agency have a three-tier structure.
1) District level : at this forum person can claim for compensation towards damage upto a maximum limit of Rs : 5 lakh .A district judge and 2 other members chair this of which one of whom shall be a women.
(2) State level: At this level the claim for compensation is enhanced to Rs: 5 – 20 lakhs & high court judge & 2 other members chair it.
(3) National level: Here the compensation claimed is more than 20 lakhs .This forum constitutes of a supreme court judge ,4 other members.
PROVISION FOR APPEAL
Within 30 days from the date of decision ,appeal can be filed in the higher commision
1. Appeal against district forum before state commision .
2.Appeal against state commision before national commision.
3.Against national commision before supreme court.
PREVENTIVE STEPS AGAINST LITIGATION
Precautions may be summarized as “Do’s & Dont’s”
-Mention your qualifications on the prescription.
-Mention date & timing of consultation.
-Mention age, sex, weight (child).
-In complicated cases record history of illness & physical findings about the patient.
-Avoid vague or nonspecific terminology.
-Record history of drug allergy.
-Mention additional precautions eg; food, rest.
-In case of any deviation from standard care , mention reason .
-Do not hesitate to discuss the case with your colleagues.
-Do not hesitate to discuss the case with patients or attendants.
-Do not write ayurvedic formulations.
-Do not allow substitutions.
-Do not examine a patient if you are sick, exhausted or under effect of alcohol.
-Do not adopt experimental method in treatment
Another major & important thing to do for a doctor is to obtain proper consent of a patient or attendant or relative.
The term consent is defined as “when two or more person agree upon the same thing in the same sense they are said to consent” (as per section 13 of Indian contract act ,1872)
TYPES OF CONSENT
Implied consent or tacit.
Proxy consent / substitute consent.
Most common variety of consent in both general practice & hospital practice.
Patient comes to doctor for an ailment implies that he is agreeable to medical examination in general sense.
Anything other than implied consent is expressed consent.
May be either oral or written.
Is obtained for relative minor examinations or therapeutic procedures , in the presence of a disinterested third party.
All major diagnostic procedure, general anesthesia, for surgical operation.
The concept of informed consent has come to the fore in recent years.
All information must be explained in comprehensible non medical terms preferably in local languages about the
Nature of treatment
Prospects of success.
Alternative methods of treatment.
Proxy Consent / Substitute Consent
All the above types of consent can take the shape of proxy consent.
Parent for child, close relatives for mentally unsound or unconscious patients etc.
When child suffer damage due to negligence of the hospital, nurse & doctor ,it was held that child & parent could claim compensation under CPA.
How consent should be obtained
The person obtaining the consent should see that
The patient understands in simple language what the medical treatment is, its purpose & why it is being proposed.
The patient should understand its principal benefits , risks & alternatives.
The patient should understand ,in broad terms, what the consequences would be of not receiving the proposed treatment.
Retain the information long enough to make an effective decision.
Make a free choice.
Who can give consent
For the purpose of clinical examination , diagnosis & treatment consent can be given by any person who is conscious, mentally sound & is of & above 12 yrs of age( section 88 & 90 of the IPC 1860).
However under section 11, those person who are & above 18 years of age are competent to enter into a contract.
Right to refuse consent
A competent adult has a right to refuse treatment even if others, including medical practitioners, believe that the refusal is neither in his best interest nor reasonable.
When consent is not valid
Consent given under fear, fraud or misrepresentation of facts, or by a person who is ignorant of the implications of the consent or who is under 12 years of age is invalid. (section 90 IPC)
Situations where consent may not be obtained
In case of person suffering from a notifiable disease , eg: AIDS .
Members of armed forces.
Handlers of food and diary men.
New admission to prisons.
In case of a person where a court may order for psychiatric examination or treatment.
After a medical mishap the following things should be done
Complete patients record & recheck the written notes.
Be frank enough & inform clearly of the mishap.
After these initial responses the doctor should contact some other doctor or protection organization to seek advice.
Model Form Of Consent
I……..son of………aged………resident of…….. being under the treatment of………(state here name of doctor/hospital/nursing home) do hereby give consent to the performance of medical / surgical /anesthesia/diagnostic procedure of ……….(mention nature of procedure /treatment to be performed etc) upon myself or upon ………aged……….who is related to me as ………(mention here relationship eg :son ,mother ,daughter).
I declare that I am more than 18 yrs of age .I have been informed that there are inherent risks involved in the treatment or procedure .i have signed this consent voluntarily out of my free will without any pressure & in my fell senses.
(To be signed by parent/guardian in case of minor)
Protection against false or frivolous complaints
Where a complaint instituted before the district forum ,sate commission ,the national commission, is found to be frevolous or vexatious , it shall, for reasons to be recorded in writing ,dismiss the complaint & make an order that the complaint shall pay to the opposite party such cost, not exceeding 10,000 Rs , as may be specified in the order.
Limitation period : the district forum ,the state commission or the national commission shall not admit a complaint unless it is filed within 2 years from the date on which the cause of action has arisen.
INTERNATIONAL CODE FOR MEDICAL ETHICS
Duties of Doctors in General
A Doctor must always maintain the highest standards of professional conduct.
A Doctor must practice his profession uninfluenced by motives of profit .
The following practices are deemed unethical
Any self advertisement except such as is expressly authorized by the national code of medical ethics.
Collaboration in any firm of medical service in which he or she does not have professional independence.
Receiving any money in connection with services rendered to a patient other than a proper professional care ,even with the knowledge of the patient.
Any act or advice that could weaken physical or mental resistance of a human being may be used only in his interest.
A doctor is advised to use great caution in divulging discoveries or new techniques of treatment.
A Doctor should certify or testify only to that which he has personally verified .
Duties of doctor to the sick
A Doctor must always bear in mind the obligation of preserving human life.
A Doctor owes to his patient complete loyalty & all resources of his science.
Doctors shall preserve absolute secrecy on all he knows about his patient because of the confidence entrusted in him.
A Doctor must give emergency care as a humanitarian duty unless he is assured that others are willing & able to give such care.
Duties of Doctor to each other
A Doctor ought to behave to his colleagues , as he would have them behave to him.
A Doctor must not entices patients from his colleagues .
A Doctor must observe the principles of “Declaration of Geneva”.
DECLARATION OF GENEVA
I will solemnly pledge myself to consecrate my life to the service of humanity.
I will give to my teachers the respect & gratitude which is their due.
I will practice my profession with conscience & dignity.
The health of my patient will be my first consideration.
I will respect the secret which are confided in me ,even after the patient has died.
I will maintain by all the means in my power the honor & the noble traditions of the medical profession.
My colleagues will be my brothers .
I will not permit considerations of religion, nationality, race, party politics, or social standing to intervene between my duty & my patient.
I will maintain the utmost respect for human life from the time of conception , even under threat .I will not use my medical knowledge contrary to the laws of humanity.
I make these promises solemnly ,freely & upon my honor.
Consumer Protection Act provide for better protection of the interests of consumer & for that purpose to make provision for the establishment of consumer councils & other authorities for settlement on consumers disputes & for matters connected therewith.
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