Ahmad Nabi vs State of Uttarakhand and others

RAJIV SHARMA, A.C.J. (ORAL)

MANOJ TIWARI, J.

A question of grave public importance has been raised in this petition.

Petitioner has filed a complaint before respondent no.3 to the effect that two hospitals namely B.D. Hospital Doraha Bazpur and Public Hospital

Sarkari Road Kela Khera, District Udham Singh Nagar were being run by persons without having any medical degree and without any registration

under the Clinical Establishments (Registration and Regulations) Act, 2010 (hereinafter referred to as the “Act, 2010â€). The operations were

being conducted by the persons having no medical degree in surgery. The Chief Medical Officer issued two notices to B.D. Hospital Doraha Bazpur

and Public Hospital Sarkari Road, Kela Khera on 21/22.03.2016. The matter was looked into.

The Chief Medical Officer has directed his sub-ordinate to hold the inquiry. The Medical Officer, Government Hospital Bazpur sent the inquiry

report to the Chief Medical Officer. It is mentioned in the report that ten patients were admitted for surgery in B.D. Hospital, Doraha Bazpur. No

doctor having MBBS degree was found to be practicing in the hospital.

Thereafter, the Chief Medical Officer sent the letter to respondent no.5 to seal both the hospitals i.e. B.D. Hospital Doraha Bazpur and Public

Hospital Sarkari Road, Kela Khera, Distrit Udham Singh Nagar.

It is shocking that the operations are performed by the doctors who are not holding any prescribed medical degree. The surgeries can only be

performed by the duly qualified surgeon.

The State authorities had earlier given provisional registration to B.D. Hospital Doraha Bazpur and Public Hospital Sarkari Road, Kela Khera,

District Udham Singh Nagar on the basis of two doctors having a degree of B.H.M.S. (Homeopathic Medicine Degree) and B.U.M.S. (Unani

Medicine Degree). However, no penal action has been taken against these two hospitals for flouting the law.

The case of the petitioner, in a nutshell, is that the State Government has not enforced the provisions of the Act and the Rules called the

Uttarakhand Clinical Establishments (Registration and Regulation) Rules, 2013 as well as the Operational Guidelines for Clinical Establishment Act

and Clinical Establishment Act Standard for Hospital (Leval 1A & 1B), Standard No.CEA/Hospital-001.

The State Government has filed the counter affidavit. It is stated in the counter affidavit that the necessary instructions have been issued vide

letters dated 08.08.2017, 05.05.2018 and 14.05.2018 by the Chief Medical Officer to the Medical Officers of their respective territories to take action

against the hospitals/nursing homes which were being run illegally within their respective jurisdiction.

The reply has been filed by the State Government to the effect that Indian Medical Association had requested to the authorities concerned to keep

the provisions of clinical re-establishment in abeyance, as the expenditure of the patient would be increase 5 times and therefore, the registration

should be kept in abeyance. The District Magistrate, Nainital has requested the Secretary, Medical to the State of Uttarakhand to keep the registration

pending till the matter is reviewed.

Once the enactment has been made, it must be implemented/ carried out in letter and spirit.

The Clinical Establishments (Registration & Regulation) Act, 2010 has been enacted to provide for the registration and regulation of clinical

establishments in the country and for matters connected therewith. The enactment was made to provide for the registration and regulation of clinical

establishments with a view to prescribe minimum standards of facilities and services which may be provided by them so that mandate of Article 47of

the Constitution for improvement in public health may be achieved.

Section 2(c) defines “clinical establishmentâ€​.

Section 2(m) defines “standardsâ€​.

Section 8 provides for State Council of clinical establishments.

Section 11 provides registration for clinical establishments.

The condition of registration is provided under Section 12. It reads as under:-

“(i)  the minimum standards of facilities and services as may be prescribed;

(ii)Â Â the minimum requirement of personnel as may be prescribed;

(iii)Â provisions for maintenance of records and reporting as may be prescribed;

(iv) such other conditions as may be prescribed.

(2) The clinical establishment shall undertake to provide within the staff and facilities available, such medical examination and treatment as may be

required to stabilise the emergency medical condition of any individual who comes or is brought to such clinical establishment.â€​

The procedure of registration is provided under Chapter IV.

Certificate of permanent registration is provided under Section 30.

Cancellation of registration is provided under Section 32.

Section 40 provides that whoever contravenes any provision of this Act shall, if not penalty is provided elsewhere, be punishable for the first

offence with fine which may extend to ten thousand rupees, for any second offence with fine which may extend to fifty thousand rupees and for any

subsequent offence with fine which may extend to five lakh rupees.

Section 41 provides for monetary penalty for non-registration.

Offences by Government Departments are covered under Section 45.

Section 52 empowers the Central Government to make rules.

The State Government is empowered to make rules under Section 54.

The Central Government has made the Rules called Clinical Establishments (Central Government) Rules, 2012.

The State Government has made the Rules called the Uttarakhand Clinical Establishments (Registration and Regulation) Rules, 2013.

Rule 3 provides for constitution of State Council for Clinical Establishments.

The mode of submission of application for registration of Clinical Establishments is provided under Rule 13.

Chapter V deals with penalties and appeals.

According to Section 10 of the Act, 2010, as quoted hereinabove, every clinical establishment is required to be registered.

The condition of registration is provided under Section 12.

Consequences of non-registration are imposition of monetary penalty.

The State of Uttarakhand has also framed the rules called the Uttarakhand Clinical Establishments (Registration and Regulation) Rules, 2015.

Rule 3 provides for constitution of State Council for Clinical Establishment.

Chapter III provides for District Registering Authority.

The grant of registration is provided under Rule 15.        Â

The display of information is required under Rule 20.    Â

It is not believable that the surgeries in the hospitals i.e. B.D. Hospital, Doraha, Bazpur and Public Hospital Sarkari Road, Kela Khera, District

Udham Singh Nagar are performed by doctors having B.H.M.S. (Homeopathic medicine degree) and B.U.M.S. (Unani Medicine Degree), The

surgery is very serious procedure and it can be performed only by duly qualified surgeon. In a hospital, in which, there was no surgeon, ten patients

were found to be admitted for surgery.

Right to Life includes medical facilities to be provided by duly qualified doctors with latest equipments. The patients in the private hospitals should

not be overcharged. They should get the medicines at the lowest rates. The rates of diagnostic tests and other tests shall be reasonable and not

exorbitant.

It is better to have no law than not to enforce it. The State Government cannot be permitted to keep the enforcement of the Act at abeyance. The

State Government has also adopted the Clinical Establishment Act Standard for Hospital (Level 1A & 1B), Standard No.CEA/Hospital-

According to the Clinical Establishment Act Standard for Hospital (Level 1A & 1B), Standard No.CEA/Hospital-001, there is categorization of

hospitals providing minimum standards for Allopathic hospitals under Clinical Establishment Act, 2010. According to it, the building shall have a board

displaying the name of the hospital at a prominent location. The name of the care provider with registration number is required to be displayed. The

access of the hospital shall be comfortable for the patient and/ or attendants/visitors. There shall be signage for “No Smoking†at prominent

places. The access shall be provided within the requirements of “Persons with Disabilities Actâ€​. The hospital shall be developed and maintained to

provide safe, clean and hygienic environment. The hospital should have 24 hours provision of potable water for drinking & hand hygiene. The hospital

should have clean public toilet(s). The minimum space shall be required as per Annexure 1. The indicative list of furniture and fixtures shall be

required as per Annexure 2. The hospital should have adequate medical equipment and instruments, commensurate to the scope of service and

number of beds. There shall be established system for maintenance of critical equipment. Equipment shall be kept in good working condition through a

process of periodic inspection, cleaning and maintenance. The list of medical equipment and instruments is to be provided as per Annexure 3. The

hospital should have adequate drugs, medical devices and consumables commensurate to its scope of services and number of beds. Emergency drugs

and consumables shall be available at all times. The drug storage shall be in a clean, well lit, and safe environment. The hospital is required to have

qualified/trained medical and nursing staff. The support/paramedical staff shall be qualified and trained. The personal record of qualified

doctors/paramedical staff is required to be maintained. There should be segregation, collection, transportation, storage and disposal of general waste,

as per law. The Medical Records is required to be maintained in physical and digital format. The hospital is required to maintain confidentiality,

security and integrity of records. The hospital is required to register all patients. The patient is required to be guided and informed about the

Patients’ Rights & Responsibilities. The billing shall be done as per the Hospital tariff list. Each patient is required to undergo an initial assessment

by qualified/trained personnel. Further management of patient shall be done by a registered medical practitioner. The patient and family shall be

treated with dignity, courtesy and politeness. The prescription shall include name of the patient, date, name of medication, dosage, route, frequency,

duration, name, signature and registration number of the medical practitioner in legible writing. The distance between beds shall be 1.0 metres. The

door width shall be 1.2 metres.

The labour room shall contain facilities for medication, hand washing, charting and storage for supplied and equipment. The labour room shall be

equipped with oxygen and suction.

Accordingly, the writ petition is disposed of by issuing following mandatory directions:-

A. The State of Uttarakhand is directed to seal all the clinical establishements which are not registered under the Clinical Establishments (Registration

and Regulation) Act, 2010 forthwith.

B. The State Government is directed to ensure that all the clinical establishments registered under the Act, 2010 follow the Operational Guidelines for

Clinical Establishments Act as well as Clinical Establishment Act Standard for Hospital (Level 1A & 1B).

C. All the Clinical Establishments throughout the State of Uttarakhand are directed that the patients are not unnecessarily put to diagnostic tests. Only

necessary diagnostic tests are ordered to be undertaken to access the clinical condition of the patient.

D. All the doctors throughout the State of Uttarakhand including government doctors and doctors serving in Clinical Establishments are ordered to

prescribe only generic medicines which are readily available. No patient shall be forced to buy branded medicines.

E. The State Government is directed to prescribe the rates for various diagnostic tests or procedures or surgeries or treatments extended by clinical

establishments, within one month from today.

F. The outer wall of the Intensive Care Unit (one of its side) shall be fitted with transparent glass, closed with cloth curtains to enable the attendants

of the patient to see the patient. The attendants of the patient shall be informed about the health/condition of the patient after every 12 hours and the

same is ordered to be videographed.

Pending application, if any, also stands disposed of accordingly.