Archive for October 2015

– Not many patients know that a code of ethics binds doctors. But the problem, medical experts tell Sonia Sarkar, is that errant doctors are seldom hauled up

Autumn is not always a time for celebration. In many parts of India, the rains and their aftermath leave behind a deadly trail. Ailments are rampant — and death from diseases such as dengue is common.

Still, the tragic death last month of a seven-year-old boy made news. The boy, who was suffering from dengue, died after he was denied admission by five hospitals in Delhi. Unable to cope with the loss of the child, his parents committed suicide.

The incident highlighted the apathy shown by hospital administrations. But it also underlined another fact — that hospitals and doctors violated Medical Council of India (MCI) guidelines when they turned the boy away.

The Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, states that no hospital can deny admission to critically ill patients. It says: “In case of emergency, a physician must treat the patient. No physician shall arbitrarily refuse treatment to a patient. A physician is free to choose whom he will serve. He should, however, respond to any request for his assistance in an emergency.”

Despite the guidelines, turning away patients is a common practice. “Doctors and hospitals have repeatedly failed to follow the code of ethics,” stresses Dr Ravindra Ghooi, a crusader of patient rights in India, and director, Scientia Clinical Services, which gives advice on clinical research and training.

According to the World Health Organization, the right of a patient is the same as the right of a human being. In the US, the right to medical records and right to privacy are considered basic rights but that’s not the case in India, where many hospitals deny patients access to their medical reports.

The code of ethics defines the obligations of physicians to their patients in India. But how does a patient know about his or her rights? The MCI rules state that every hospital should put up the list of rights at the front desk but that is not always done.

Not many patients, for instance, know that they have the right to know about a doctor’s qualifications. “If patients cannot evaluate [the qualification] by themselves, they should not hesitate to ask the doctors. Doctors are supposed to provide this information without being asked,” says another patient rights activist, Dr Shailesh R. Deshpande, who heads education and training at the Chellaram Diabetes Institute, Pune.

The MCI is supposed to take action when doctors violate the rules. There have been occasions when it has deregistered doctors for negligence. In 2013, for instance, the MCI said a Bangalore doctor had violated Indian Medical Council Regulations, especially Clause 7.16, which states that a physician should obtain written consent from a patient or kin before performing surgery. This was violated by the doctor, and the case came up after the patient died following the surgery.

But action is seldom taken against errant doctors, activists rue. And that, they say, is because the MCI itself consists of doctors.

In 2013, a report submitted by a parliamentary committee said: “All members of the MCI are medical professionals… There are reports that the medical professionals probing into allegations of medical negligence are very lenient towards their colleagues guilty of negligence and none of them is willing to testify (against) another doctor as negligent.”
Because of this, complaints of medical negligence are often taken to the Consumer Guidance Society of India (CGSI).

‘‘We step in to assist people to fight cases in consumer courts as our experience with MCI is very poor. Patients come to consumer courts for their rights because in the MCI doctors are setting laws for themselves,” says M.S. Kamath, honorary secretary, CGSI. “Patients have very many rights — but in reality, they are almost unenforceable.”

The MCI code of ethics, in any case, is not all encompassing, says Dr Ghooi. He explains that it doesn’t address the issue of what rights patients have when it comes to knowledge about their illness or medical records or about the risks and side effects of a treatment. “It just says that all physicians should give factual information to patients and their relatives. The rights mentioned in this document stem from the duties of the physician. But the guidelines issued by the CGSI are more patient-centric as they specify what all patients can ask their doctors,” he adds.

Most hospitals, he points out, are seldom keen to transfer their patients to another hospital. On the other hand, they are reluctant to take in serious or medico-legal cases and refer to them to government hospitals.

“Worse, private hospitals sometimes experiment with treatments, causing a lot of unnecessary expenditure to patients and then refer them to other hospitals, claiming inability to manage the condition,” he says.

The CGSI guidelines state that if patients are “discharged or moved to another hospital”, they have the right to be informed in advance so that they can choose their own hospital or nursing home, in consultation with their doctor.
The MCI guidelines also say that patients — or their relatives — have the right to be told in advance what an operation is for and the possible risks involved.

Often, patients are not told if there is an alternative to surgery that they can opt for. Doctors cite the case of hysterectomies — removal of the uterus — which can often be avoided. “Many hysterectomies are fraudulent, carried out by unscrupulous doctors to provide comfort to women and also as a means of family planning,” points out Dr Ghooi in a chapter in the book, Patient Rights, Ethical Perspectives, Emerging Development and Global Challenges, that he has authored with Deshpande. “The details of the line of treatment are not given to patients.”

But hospital administrations argue that there are not enough doctors to handle the burgeoning number of patients in the country. “We work under a lot of pressure as we cater to a large number of patients. It is not always possible to explain everything to every patient,” an official at a Delhi private hospital says.

A senior MCI official says that the council is now planning to induct non-doctors such as patients and social workers to resolve the issue of punishing negligent doctors. A new framework of ethical code is also being worked out, he says.
But as the situation stands today, most patients do not know about their rights. And if they do and believe that their rights are being violated there is little scope for redress. The situation will change only when — and if — the MCI wants change.

– The refugee influx into Europe has once again turned the spotlight on India. Sonia Sarkar wonders if it’s time for New Delhi to sign an international convention on refugees

Three-year-old Aylan Kurdi is a symbol of the horrors of displacement. The Syrian boy’s death – his small body was found on a Turkish beach earlier this month – underlined the plight of hundreds of thousands of people fleeing war in Asia to enter Europe.

The displaced people have often been referred to as migrants. But the United Nations High Commissioner for Refugees (UNHCR) states that those who are compelled to flee their countries because of well-founded fears of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion are refugees. Migrants, by contrast, are people who seek better economic opportunities in other countries.

“Syrians who are looking for shelter in other countries such as Greece, France, Ireland and UK are refugees,” says Shuchita Mehta, UNHCR’s spokesperson in Delhi. “They have no choice but to run for their lives and still cannot return home.”

Why then are they often referred to as migrants? “The use of the term ‘migrant’ is often a means of seeking to avoid duties towards refugees,” says James C. Hathaway, director, programme in refugee and asylum law in the University of Michigan.

The tragedy in Europe has once again reopened a debate on refugees and migrants in India. India is home to 4.5 lakh refugees from countries such as Tibet, Myanmar, Nepal, Bhutan, Sri Lanka, Pakistan, Afghanistan, Somalia, Congo, Iran, Iraq and Sudan. But it doesn’t have a legal framework to deal with refugees.

Yet India is not new to refugee influx. In 1959, the Dalai Lama and some 80,000 Tibetans fleeing Chinese oppression were given refuge in India. Over time, they were given basic facilities such as education and healthcare. Refugees also came to India following the Partition of India and later the liberation of Bangladesh.

Over the years, people from countries such as Myanmar, Sri Lanka and Afghanistan have also taken refuge in India because of oppression or insurgency in their own countries.

With India’s porous borders, hundreds of thousands of people have also come to India in search of jobs. The government holds that many of the foreign nationals living in India are not refugees but “economic migrants”. But the line between migrants and refugees is a thin one.

One reason there is little clarity on this issue is that India is not a signatory to the UN Refugee Convention, 1951, which was later amended to the 1967 Refugee Protocol. Human rights experts have for long been urging India to become a signatory.

India has taken recourse to its own laws – the registration of Foreigners Act of 1939, the Foreigners Act of 1946, and the Foreigners Order of 1948.

But the acts and the order, under which foreign nationals can be denied entry into India, have not been successful. Another law, the Immigrants (Expulsion from Assam) Act, 1950, was implemented to check illegal immigration into Assam, but there was a problem there too. The act allowed minority communities of Bangladesh to migrate to Assam on account of “civil disturbances”. But the state did not have an effective mechanism to ascertain who could be exempted.

Human rights experts rue that refugees are not treated equally in India. The UNHCR issues refugee identity cards to people coming in from non-neighbouring countries and also Myanmar. After receiving these cards, they can apply for stay and long-term visas. But people from neighbouring countries are handled directly by the ministry of external affairs.

“Buddhists from Myanmar, who came in large numbers 20 years ago, did not face the problems that Rohingya Muslims from the same country are facing now. The refugee identity cards of the latter have not been accepted by many government authorities. Plus, only a few have got long-term visas so far,” a UNHCR official says.

Tamils from Sri Lanka feel discriminated against too. “Many Sri Lankan refugees languish in prison-like conditions in camps,” states Priyanca Mathur Velath, a professor of political science in Bangalore who has been working on refugee issues.

“While India has accepted several refugees from countries in the region, there are concerns about the access that some refugees have to government services such as education and healthcare,” says Himanshi Matta, media officer, Amnesty International.

The government’s approach to refugees is also political, some activists point out. Recently, for instance, India said it would allow minority refugees from Bangladesh and Pakistan who entered India on or before December 31, 2014, to stay back. Muslims from Bangladesh, however, are referred to as illegal immigrants. “These are all political decisions,” a Supreme Court lawyer stresses.

A 1999 paper titled India’s Failure to Adequately Protect Refugees by H. Knox Thames at the American University Washington College of Law and the School of International Service states that the provisions in the Foreigners Order are ruthless. “Article 11 of the order allows India to control an individual’s place of residence, movement, ‘association with any persons or classes of persons’, and possession of any specified articles.”

The signatories of the UN Convention are barred from expelling refugees under Article 33, but India has also on many occasions expelled refugees, forcing the Supreme Court of India to intervene.

In 1992, the court stopped the deportation of 21 Burmese from the Andaman and Nicobar Islands. In 1996, on the intervention of the National Human Rights Commission, the apex court prevented the repatriation of Bangladesh Chakma tribals because they had lived in India for three decades and “to uproot them… would be both impractical and inhuman”.

Refugees in India cannot be refouled – or repatriated – because India is signatory to other international human rights treaties such as International Conventions on Civil and Political Rights, 1966, (especially Article 13), the Universal Declaration of Human Rights, 1948, the International Covenant on Civil and Political Rights, and International Covenant on Economic, Social and Cultural Rights.

“The principle of non-refoulement is part of customary international law, which means it is an obligation on all countries, even those that have not signed the convention,” explains refugee expert Jane McAdam, director of the Andrew & Renata Kaldor Centre for International Refugee Law, University of New South Wales, Australia.

New Delhi, however, doesn’t believe that it needs to fall in step with international law. “We are doing more than enough for refugees without having signed a convention. What else can we do,” an external affairs ministry official says.