The Karnataka Private Medical Establishments Act 2007 was enacted even before the Clinical Establishment Act 2010, a central legislation, with the aim of registering private hospitals and monitoring their functioning. However, in the decade of its existence, the Act has been poorly enforced with only half the private medical establishments in the state being registered.

The spate of medically unwarranted hysterectomies by private hospitals in Kalburgi and several other districts across the Karnataka state exposed the legal and regulatory vacuum in general and of the Act in particular in protecting patient rights and curbing medical malpractices. The district administration tried in vain to use the Act to book private hospitals for a range of violations of medical and surgical protocols and ethics, for manipulation of clinical records and even outright intimidation.

Therefore the government’s move to amend the Act to make it “citizen-centric” and to “protect the welfare and ensure safety of citizens” in private hospitals was seen as a progressive one. An expert committee headed by Justice (Retd) Vikramjit Sen was constituted to recommend amendments to the Act. The amendments were to focus on strengthening regulation of private hospitals. The government’s proposal also suggested obtaining “first-hand information from persons that have faced hardship or have any sort of grievances with the present-day functioning of Private Medical Establishments in the State, to be able to incorporate deterrent provisions in the amended Act and to ensure that citizens do not endure these grievances in the future”. On April 28, the committee held its last meeting to finalise its recommendations to the government.

No citizens’ representation

The progressive intentions stated by the committee were not matched by its actions. The committee put together by the Department of Health and Family Welfare comprised a total of 30 members, of whom 12 members were health department officials, 17 members of private hospitals and their associations, professional bodies like the Indian Medical Association, the AYUSH doctors’ association, private research agencies and public-private partnerships. The committee to make the Act citizen-centric had only one member representing citizens’ groups.

Citizens’ groups representing marginalised women, urban deprived communities, farmers, unorganized workers, dalit groups, people living with HIV/AIDS, sexual minorities and others made several representations to the government to expand membership of the committee and urged that public consultations be held in different parts of the state on the issue to invite suggestions from citizens. The government refused to hold public consultations on the issue and made half–hearted attempts to expand membership to the committee.

For instance the “co-opted” citizens’ groups were grouped in one sub-committee on patient rights and grievance redressal. “Citizens groups have no competence on issues related to costing, standards, drugs and Standard Treatment Guidelines,” said a helth official on the committee.

Further, the health department had to be reminded to send meeting intimations to all the co-opted members whose names were not added to the list of committee members.

Private hospitals derail the process

The private hospital representatives who outnumbered others on the committee began seriously lobbying to derail the process. In a meeting on November 19, 2016, the private hospital representatives demanded that government health facilities also be brought under the Act. They suggested that all hospitals seek accreditation from the National Accreditation Board for Hospitals and then those with such accreditation be exempt from monitoring under the Act. The National Accreditation Board for Hospitals, a constituent board of the Quality Council of India, offers accreditation for a fee. This escalates healthcare costs for patients. By contrast the Indian Public Health Standards are norms government hospitals are expected to adhere to that are scientific, robust, and suited for resource-poor settings.

Waiting outside a hospital canteen. (Photo: Mr Thinktank/Flickr)
Waiting outside a hospital canteen. (Photo: Mr Thinktank/Flickr)

Meanwhile, the West Bengal Clinical Establishments Act passed in March this year caused alarm among committee members. This Act focusing only on private hospitals has a separate state-level commission to enforce the Act, and a strong redressal mechanism with stringent penalties for patient rights violations. Committee members opposed the provisions of the Act calling its measures draconian.

The Indian Medical Association’s prescription for the Karnataka Private Medical Establishments Act is to give private healthcare providers immunity from prosecution for violations and to let them access public funds. The association demanded that there be no penal clauses of imprisonment, that there should be only representation of professional bodies and no ex-officio members in the regulatory body, that there be no price regulation, that trade licenses be cancelled and finally demanded that hospitals registering under the Act “must be empanelled automatically under the Trust or other providers for all the health assurance schemes”.

On one hand, the private providers in unison and unequivocally made it clear that they were not going to let their profiteering business suffer. On the other, they wanted to subject the already starved public health centres to further pressure by claiming a share in the public programmes funded by the government treasury.

The committee has gone ahead and rejected all suggestions to regulate private hospitals such as a separate grievance redressal mechanism, cost control, adherence to ethical practices, protection of patient rights and stringent penalties for violations. Instead it decided to include the public health system under the ambit of the Act. That members from citizens’ groups were not invited for this meeting has only raised the suspicion that the committee was merely taking forward predetermined recommendations to suit the private sector vested interests.

Threat to public health

The expert committee recommendations have followed the National Health Policy, 2017, which has turned the discourse of health from being a social good to a private-market good. The committee recommendations have created an environment in which vested interests can demand closure of government hospitals on the pretext of “not meeting standards”.

Seen in this light, the demand to bring government facilities under the Act resembles the world-wide tactic of privatising healthcare. Decades of policy-induced, deliberate, chronic underfunding have left government hospitals in shambles, plagued by vacancies of doctors and other paramedical staff, medicine and consumable stock-outs and non-functional labs. Therefore it is no surprise that over the last decade, Karnataka has suffered a decline of 13% in use of public facilities for in-patient care in rural areas and and 11% in urban areas. When this system is brought under the ambit of an Act that demands adherence to standards, what follows echoes what Noam Chomsky said: “defund, make sure things don’t work, people get angry, you hand it over to private capital: that’s the standard technique of privatisation”.

Accountability in the public health system also needs to be strengthened, but the mechanisms cannot be the same as for the private sector. The public health system is mandated by the Constitution to provide not only curative care but also preventive and rehabilitative services and to promote health. It functions under the regulatory provisions and public accountability of health ministries and departments and is subject to review by legislative and judicial institutions. On the other hand, no regulatory or legal framework applies to the private health sector. It is imperative that each state enacts a stringent legislation and provides a legal framework for the accountability of private health care providers.

At this juncture, the committee has only submitted recommendations and the state government must understand the undercurrents. Citizens’ groups are mobilising across the state to put pressure on the government to reject these recommendations and to continue to focus exclusively on private hospitals. There is growing discontent even among government staff about the committee’s recommendations. This is perhaps an opportunity for citizens’ rights groups as well as those working in the public health system to come together to make a concerted effort to defend the public health system against the onslaught of profiteering interests.

Vijayakumar Seethappa and Akhila Vasan are health activists with the patients rights movement Karnataka Janaaroyga Chaluvali. Vinay Sreenivasa is a member of Alternative Law Forum. E Premdas Pinto is director of research and advocacy, Centre for Health and Social Justice.