MH0049 – Legal Aspects in Healthcare Administration

Q1. Explain Consumer Protection Act in detail?

Sol –

To fulfil the objects of the Act the Central Government has established the Central Consumer
Protection Council, and the State governments have established the District forums and the
State Consumer protection Council in their respective states. A complaint may be made by
the consumer, the government, a recognised consumer society or by one or more consumers
having a common interest, within two years of the grievance arising.

A few instances when such a complaint may be made include losses caused to a consumer as
a result of unfair trade practice, defect in goods, deficiency in services, charging in excess of
price displayed etc. Once the complaint has been received the other party will be asked to
give their version of the case. If the matter pertains to defective goods, the same may be sent
to a laboratory for testing. If it relates to a service matter then both parties shall be asked to
produce evidence in support of their claims. If the authority is convinced that the complaint is
valid then it may order the producer to remove the defect, replace the goods, return the price
paid by the consumer, or pay an amount to the consumer as compensation for any loss or
injury suffered. An appeal may be made against such orders to the next highest authority If a
trader or any person against whom an order has been made, fails to comply with the order
then they may be fined or imprisoned. On the other hand if a complaint is found to be
frivolous or malicious then the complainant may be fined.

One of the major developments in the Consumer protection Act has been with respect to
whether services provided by the medical profession, especially when it is a free service as in
the case of government hospitals can fall under the act. It had been argued that technically
such professions do not provide any contracts ‘for services’. The courts however keeping in
mind the fact that the Act was intended to protect consumers have held that all professional
services whether free or paid for would render a person a consumer under the Act.

The procedures under the Act and under the Commissions are relatively simpler and more
informal than under normal litigation. In fact any consumer can appear before the
commission and need not even hire a lawyer to argue one’s case. Despite the simple
procedures there have not been too many consumer cases in India unlike the United States
where the courts are filled with consumer grievances. One of the reasons for this fact has
been the lack of adequate consumer awareness of their rights in India and the seemingly
intimidating structure of courts and the legal profession. However to its credit, it must be said
the Consumer Protection Act remains one of those rare laws which allows for a speedy and
simple protection of the rights of ordinary people, and judicious use of the same would foster
a greater consumer movement in India in this age where the market is flooded with more
products but not necessarily more information.

How is my right as a consumer protected under the Consumer Protection Act?

A. The rights of the consumers are invoked in the Indian Legal System through the
mechanism provided in the Consumer Protect Act (CPA). The CPA provides for
establishment of Consumer Protection Councils – Advisory and recommendation bodies The
Consumer Protection Councils exist at the National, State and District Level. They are
basically advisory bodies who meet at least 3 times a year to discuss and review consumer
protection measures and issues. Two thirds of the members of these councils are non-official

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including representatives of women and consumer organisations. Redressal Forums – Courts

The CPA provides for three-tier quasi judiciary machinery at the national, state and district
levels. The District Forum has jurisdiction to entertain complaints where the value of goods /
services complained against and the compensation claimed is less than Rs. 5 lakhs, the State
Commission for claims exceeding Rs. 5 lakhs but not exceeding Rs. 20 lakhs and the National
Commission for claims exceeding Rs. 20 lakhs.

Where should one complain?

A. If the value of the services and compensation asked for is a. < Rs 5 lakhs then one can
complain to the District Forum at the District Headquarter, b. > 5 lakhs and within Rs. 20
lakh the complaint can be filed before the concerned State Commission at the State Capital. c.
>20 lakhs the complaint can be filed before the National Commission. If the consumer is not
satisfied with the Judgment of the District Forum, he/she can file an appeal to the State
Commission. Similarly, appeal against an order of a State Commission lies before the
National Commission. Appeal against an order of the National Commission has to be filed
before the Supreme Court of India.

What is method of filing a complaint?

A. A complaint shall be instituted in the District Forum within the local limits of whose
jurisdiction the opposite party (or any one of the opposite parties where there are more than
one) or the defendant actually and voluntarily resides or carries on business, or has a branch
office or personally works for gain at the time of institution of the complaint provided that the
other opposite party/parties acquiescence in such institution or the permission of the Forum is
obtained in respect of such opposite parties; or the cause of action arises, wholly or in part.

Who is a consumer?

All of us are consumers of goods and services.

A consumer under the act is:

“One, who buys any goods, hires any service or services for consideration which has
been paid or promised or partly paid and partly promised or under any system of
deferred payment.

Note: A person is not a consumer if he purchases goods for commercial purpose or resale
purpose. However, a person is consumer if he purchases goods for the purpose of earning his
livelihood by means of self-employment.

Many acts enacted earlier are in force, whether enforced or not. Under any of these acts, one
can seek redressal through the courts of law. But, ‘Consumer Protection Act’ (Act 68 of
1986) provides for redressal through specially-constituted agencies at different levels

A glimpse of the provisions is presented herein below

1. It provides for the notification of Central and State Consumer Protection Councils by
the respective governments with a view to protect the rights of consumers such as,

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• the right to be protected (against hazardous goods)

• the right to be informed (about quality, quantity, against unfair trade practices, etc)
• the right to be heard (of complaints),
• the right to seek redressal (through appropriate agencies), and
• the right to consumer education

2. To promote and protect the rights of the consumers with regard to defective goods,
deficient services, overcharging or any unfair trade practices (as defined under MRTP ACT
1969). It includes false statement on quantity or grade of goods/services, false claims to
sponsorship, making false and misleading promises on the articles, false projection of the
needs for or usefulness of goods/services, giving warranty on products not based on adequate
or proper test, and the like, whether made orally or in writing or by visible representation.

Who can a file a complaint?

• A consumer (As above)

• Any registered voluntary consumer organisation
• The Central Government
• The State Government

When can a complaint be filed?

Under the Act, a complaint can be made in writing in the following circumstances:

• If you have suffered loss or damage as a result of any unfair trade practices adopted
by the trader.
• If the services hired/availed of suffer from deficiencies in any respect.
• If you have been charged a price in excess of the price displayed or fixed by or under
any law for the time being in force.
• If, the goods hazardous to life and safety, when used.

How can you file?

The complaint is to be filed within two years from the date on which cause of action has
arisen

There is no fee for filing a complaint. Even an affidavit does not need stamp papers. A
complaint can be sent by post or presented in person by complaint or his authorised agent.

Usually the Forums Require 3-5 copies of complaint.

What information should a complaint contain?

Complaint should contain the following information:

• Name and complete address of complainant

• Name and complete address of the opposite party or parties as the case may be.
• Date of purchase/service obtained.
• Amount paid for consideration.
• Items of goods with quantities/nature of service.

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• Whether the complaint relate to unfair trade practice/defective goods’ deficient

service/charging excess price.
• Copies of bills/vouchers/receipts and copies of correspondence made, if any.
• The relief sought-Under the Act.

Remedies

The forums/Commissions can order the following relief:

• Removal of defects from the goods

• Replacement of the goods
• Refund of the price paid.
• Award of compensation for the loss or injury suffered.
• Removal of defects or deficiencies in the services.
• Discontinuance of unfair trade practices/restrictive trade practices and directing not
repeating them.
• Withdrawal of the hazardous foods from being offered for sale.
• Award for adequate costs to practice.

Appeals against

District Forum ————– Within 30 days —— In State Commission

State Commission ——— within 30 days —— National Commission

National Commission —— within 30 days —— Supreme Court

There is no fee for filing appeals in the State and National commissions.

Procedure is the same as that complaint except that the application has to be accompanied by
the copies of the orders appealed against with reasons for filing appeals.

Why the Consumer Protect Act?

Because a consumer has a RIGHT to

• SAFETY
• INFORMATION
• CHOOSE
• BEHEARD
• REDRESSAL
• CONSUMER EDUCATION

CONSUMER ….. COMMERCIAL PURPOSE …. A DETAILED CASE STUDY

Consumer Protection Act can be described as common mans civil court. The Act is designed
to make available cheap and quick remedy to a consumer.

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The object of the act is to protect the consumer forum the exploitative and unfair trade
practices to provide inexpensive, easily accessible and speedy remedy. Basically consumer
protection is a social beneficial legislation.

Consumer protection Act is a beneficial legislation intended to confer some speedier remedy
from being exploited by unscrupulous traders.

The main object of the act is to provide for better protection of interests of consumer.

CONSUMER:

The intention and object of the Consumer Protection Act, is to provide a speedy remedy and
for better protection of interests of consumer.

The Consumer Protection Act, 1986 has defined the term CONSUMER. Only the
complainant who falls under the definition of Consumer can be benefited through Consumer
Protection Act. Hence the definition of CONSUMER is of much importance to determine the
applicability of the Act.

CONSUMER AS DEFINED U/SEC 2(1) (d) OF THE ACT:

“Consumer” means any person who-

Buys any goods for a consideration which has been paid or promised or partly paid and
partly promised, under any system of deferred payment, and includes any user of such
goods when such use is made with the approval of such person, but does not include
a person who obtains such goods for resale or for any commercial purpose.

Explanation: “commercial purpose” does not include use by a consumer of goods bought and
used by him exclusively for the purpose of earning his livelihood, by means of self-
employment;]

DEFINITON OF CONSUMER COVERS

• One who buys goods for a consideration for personal use

• One who obtains goods on hire purchase or lease
• One who uses such goods with the permission of buyer of goods
• One who buys goods exclusively for purpose of earning his lively hood as self
employment
• One who hire/ avails of any services for a consideration
• One who uses the services with permission of person who has hired the services
• One who obtains the services on deferred payment basis

COMMERCIAL PURPOSE:

We can observe from the definition of consumer that a person who obtains goods for resale or
for commercial purpose is not covered. Such person is not a consumer and he cannot be
benefited through Consumer Protection Act.

The act has also clearly given an explanation in regard to commercial purpose.

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The act provides that a person who bought goods for self employment will be eligible as
“Consumer”.

Example: A person buying one truck or tempo or sewing machine or one computer will be
considered as consumer for the purpose of this act.

But if a person buys 2 typewriters, out of which one is used by a person employed by him, he
will not be eligible under CPA as person is buying the goods for resale or commercial
purposes is not a consumer.

Q2. Explain Coroner’s Inquest?

Sol-

The coroner is a doctor or lawyer responsible for investigating deaths in particular situations
and can also arrange for a post-mortem examination of the body, if necessary. An inquest is a
legal inquiry into the causes and circumstances of a death.

When a death will be reported to the coroner

If death occurs in any of the following circumstances, the doctor may report it to the coroner:

• after an accident or injury

• following an industrial disease
• during a surgical operation
• before recovery from an anaesthetic
• if the cause of death is unknown
• if the death was violent or unnatural - for example, suicide, accident or drug or
alcohol overdose
• if the death was sudden and unexplained - for instance, a sudden infant death (cot
death)

In addition to this, if the deceased was not seen by the doctor issuing the medical certificate
after he or she died, or during the 14 days before the death, the death must be reported to the
coroner.
Anyone who is concerned about the cause of a death can inform a coroner about it, but in
most cases a death will be reported to the coroner by a doctor or the police.

What happens once a death is reported to the coroner

The coroner may be the only person able to certify the cause of death. The doctor will write
on the Formal Notice that the death has been referred to the coroner. The Formal Notice is
issued to you by the attending doctor and is a document which explains how you register the
death.
The coroner will then decide whether there should be further investigation into the death - and
the registrar cannot register the death until notified of the coroner's decision. This means that

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the funeral will usually also be delayed. Where a post-mortem has taken place, the coroner
must give permission for cremation.
Post-mortems
In some cases, the coroner will need to order a post-mortem. This is a medical examination of
the body to find out more about the cause of death. In these cases, the body will be taken to
hospital for this to be carried out.
You do not have the right to object to a post-mortem ordered by the coroner, but you should
tell the coroner if you have religious or other strong objections. In cases where a death is
reported to a coroner because the person had not seen a doctor in the previous 14 days (28 in
Northern Ireland) the coroner will consult with the deceased person's doctor and will usually
not need to order a post-mortem.
If a post-mortem shows that death was due to natural causes, the coroner will issue a
notification of this (called a Pink Form B - Form 100), so that the death can be registered. The
notification is usually sent directly to the registrar, but in some cases, it may be given to you
to deliver. If the body is to be cremated, the coroner will also give you the form which allows
this to take place (called Certificate of Coroner - Cremation Form 6).

Inquests

An inquest is a legal inquiry into the medical cause and circumstances of a death. It is held in
public - sometimes with a jury - by a coroner, in cases where the death was:

• violent or unnatural
• took place in prison or police custody

Or when

• the cause of death is still uncertain after a post-mortem

Coroners hold inquests in these circumstances even if the death occurred abroad (and the
body is returned to Britain). If a body is lost (usually at sea) a coroner can hold an inquest by
order of the Secretary of State if death is likely to have occurred in or near a coroner's area of
jurisdiction.
If an inquest is held, the coroner must inform:

• the married or civil partner of the deceased

• the nearest relative (if different from the above)

• the personal representative (if different from the above)

Relatives can also attend an inquest and ask questions of witnesses - these questions can only
be about the medical cause and circumstances of the death. Relatives can also ask a lawyer to
represent them, but there is no legal aid available for this.

It may be particularly important to have a lawyer to represent you if the death was caused by
a road accident, an accident at work, or other circumstances which could lead to a claim for
compensation. You cannot get legal aid for this.

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Q3. Explain MTP Act in detail?

Sol-

An Act to provide for the termination of certain pregnancies by registered Medical

Practitioners and for matters connected therewith or incidental thereto.

Be it enacted by Parliament in the Twenty-second Year of the Republic of India as

follows:-

1. Short title, extent and commencement –

(1) This Act may be called the Medical Termination of Pregnancy Act, 1971.

(2) It extends to the whole of India except the State of Jammu and Kashmir.

(3) It shall come into force on such date as the Central Government may, by
notification in the Official Gazette, appoint.

2. Definitions - In this Act, unless the context otherwise requires, -

(a) “Guardian” means a person having the care of the person of a minor or a
lunatic;

(b) “Lunatic” has the meaning assigned to it in section 3 of the Indian Lunatic
Act, 1912 (4 of 1912);

(c) “Minor” means a person who, under the provisions of the Indian Majority
Act, 1875 (9 of 1875), is to be deemed not to have attained his majority;

(d) “registered medical practitioner” means a medical practitioner who

possesses any recognized medical qualification as defined in clause (h) of
section 2 of the Indian Medical Council Act, 1956, (102 of 1956), whose name
has been entered in a State Medical Register and who has such experience or

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training in gynaecology and obstetrics as may be prescribed by rules made

under this Act.

3. When pregnancies may be terminated by registered medical practitioners -

(1) Notwithstanding anything contained in the Indian Penal Code (45 of

1860), a registered medical practitioner shall not be guilty of any offence
under that Code or under any other law for the time being in force, if any
pregnancy is terminated by him in accordance with the provisions of this Act.

(2) Subject to the provisions of sub-section (4), a pregnancy may be

terminated by a registered medical practitioner, -

(a) Where the length of the pregnancy does not exceed twelve weeks
if such medical practitioner is, or

(b) Where the length of the pregnancy exceeds twelve weeks but does
not exceed twenty weeks, if not less than two registered medical
practitioner are,

Of opinion, formed in good faith, that -

(I) the continuance of the pregnancy would involve a risk to the life of the
pregnant woman or of grave injury to her physical or mental health; or

(ii) There is a substantial risk that if the child were born, it would suffer from such
physical or mental abnormalities to be seriously handicapped.

Explanation 1 - Where any pregnancy is alleged by the pregnant woman to have been
caused by rape, the anguish caused by such pregnancy shall be presumed to constitute
a grave injury to the mental health of the pregnant woman.

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Explanation 2 - Where any pregnancy occurs as a result of failure of any device or

method used by any married woman or her husband for the purpose of limiting the
number of children, the anguish caused by such unwanted pregnancy may be resumed
to constitute a grave injury to the mental health of the pregnant woman.

(3) In determining whether the continuance of a pregnancy would involve

such risk of injury to the health as is mentioned in sub-section (2), account
may be taken of the pregnant women’s actual or reasonable foreseeable
environment.

(4) (A) No pregnancy of a woman, who has not attained the age of
eighteen years, or, who, having attained the age of eighteen years, is a lunatic,
shall be terminated except with the consent in writing of her guardian.

(b) Save as otherwise provided in clause (a), no pregnancy shall be

terminated except with the consent of the pregnant woman.

4. Place where pregnancy may be terminated - No termination of pregnancy shall be

made in accordance with this Act at any place other than -

(a) A hospital established or maintained by Government, or

(b) A place for the time being approved for the purpose of this Act by
Government.

5. Sections 3 and 4 when not to apply -

(1) The provisions of section 4, and so much of the provisions of sub-

section (2) of section 3 as relate to the length of the pregnancy and the opinion
of not less than two registered medical practitioners, shall not apply to the
termination of a pregnancy by a registered medical practitioner in a case where
he is of opinion, formed in good faith, that he termination of such pregnancy is
immediately necessary to save the life of the pregnant woman.

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(2) Notwithstanding anything contained in the Indian Penal Code (45 of

1860), the termination of a pregnancy by a person who is not a registered
medical practitioner shall be an offence punishable under that Code, and that
Code shall, to this extent, stand modified.

Explanation - For the purposes of this section, so much of the provisions of clause (d)
of section (2) as relate to the possession, by a registered medical practitioner, of
experience or training in gynaecology and obstetrics shall not apply.

6. Power to make rules -

(1) The Central Government may, by notification in the Official Gazette,

make rules to carry out the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing

power, such rules may provide for all or any of the following matters, namely -

(a) The experience or training, or both, which is registered medical

practitioner shall have if he intends to terminate any pregnancy under
this Act; and

(b) Such other matters as are required to be or may be, provided by

rules made under this Act.

(3) Every rule made by the Central Government under this Act shall be laid,
as soon as may be after it is made, before each House of Parliament while it is
in session for a total period of thirty days which may be comprised in one
session or in two successive sessions, and if, before the expiry of the session in
which it is so laid or the session immediately following, both Houses agree in
making any modification in the rule or both Houses agree that the rule should
not be made, the rule shall thereafter have effect only in such modified form or
be of no effect, as the case may be; so, however, that any such modification or

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annulment shall be without prejudice to the validity of anything previously

done under that rule.

7. Power to make regulations -

(1) The State Government may, by regulations -

(a) require any such opinion as is referred to in sub-section (2) of

section 3 to be certified by a registered medical practitioner or
practitioners concerned, in such form and at such time as may be
specified in such regulations, and the preservation or disposal of such
certificates ;

(b) Require any registered medical practitioner, who terminates a

pregnancy, to give intimation of such termination and such other
information relating to the termination as may be specified in such
regulations;

(c) Prohibit the disclosure, except to such purposes as may be

specified in such regulations, of intimations given or information
furnished in pursuance of such regulations.

(2) The intimation given and the information furnished in pursuance of

regulations made by virtue of clause (b) of sub-section (1) shall be given or
furnished, as the case may be, to the Chief Medical Officer of the State.

(3) Any person who wilfully contravenes or wilfully fails to comply with the
requirements of any regulation made under sub-section (1) shall be liable to be
punished with fine, which may extend to one thousand rupees.

8. Protection of action taken in good faith -

No suit or legal proceedings shall lie against any registered medical

practitioner for any damage caused or likely to be caused by anything, which is in
good faith done or intended to be done under this Act.

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