Comparative study of India and UK
Doctors, owe their clients a duty to disclose any conflict of
interest that has arisen and to inform their clients. There are many ways in
which this may arise in practice—for example, if a doctor has conducted a
client's case negligently. Doctors are in breach of their professional code of
conduct if they fail to comply with these duties.
A patient approaching a doctor expects medical treatment with all
the knowledge and skill that the doctor possesses to bring relief to his
medical problem. The relationship takes the shape of a contract retaining the
essential elements of tort. A doctor owes certain duties to his patient and a
breach of any of these duties gives a cause of action for negligence against
the doctor. The doctor has a duty to obtain prior informed consent from the
patient before carrying out diagnostic tests and therapeutic. Though a doctor
may not be in a position to save his patient's life at all times, he is
expected to use his special knowledge and skill in the most appropriate manner
keeping in mind the interest of the patient who has entrusted his life to him.
Therefore, it is expected that a doctor carry out necessary investigation or
seeks a report from the patient. Furthermore, unless it is an emergency, he
obtains informed consent of the patient before proceeding with any major
treatment, surgical operation, or even invasive investigation. Failure of a
doctor and hospital to discharge this obligation is essentially a tortious liability.
A tort is a civil wrong (right in rem) as against a
contractual obligation (right in personam) – a breach that
attracts judicial intervention by way of awarding damages. Thus, a patient's
right to receive medical attention from doctors and hospitals is essentially a
civil right. The relationship takes the shape of a contract to some extent
because of informed consent, payment of fee, and performance of
surgery/providing treatment, etc. while retaining essential elements of tort.
The liability of a doctor arises not when the patient has suffered
any injury,
but when the injury has resulted due to the conduct of the doctor,
which has fallen
below that of reasonable care. In other words, the doctor is not
liable for every injury
suffered by a patient. He is liable for only those that are a
consequence of a breach of
his duty. Hence, once the existence of a duty has been
established, the plaintiff must
still prove the breach of duty and the causation. In case there is
no breach or the
breach did not cause the damage; the doctor will not be liable. In
order to show the
breach of duty, the burden on the plaintiff would be to first show
what is considered
as reasonable under those circumstances and then that the conduct
of the doctor was
below this degree. It must be noted that it is not sufficient to
prove a breach, to merely
show that there exists a body of opinion which goes against the
practice/conduct of
the doctor.
With regard to causation, the court has held that it must be shown
that of all
the possible reasons for the injury, the breach of duty of the
doctor was the most
probable cause. It is not sufficient to show that the breach of
duty is merely one of the
probable causes. Hence, if the possible causes of an injury are
the negligence of a
third party, an accident, or a breach of duty care of the doctor,
then it must be
established that the breach of duty of care of the doctor was the
most probable cause
of the injury to discharge the burden of proof on the plaintiff
.
However, in some cases like a swab left over
the abdomen of a patient or the leg amputated instead of being put
in a cast to treat the
fracture, the principle of 'res ipsa loquitur' (meaning thereby
'the thing speaks for
itself') might come into play. The following are the necessary
conditions of this
principle.
• Complete control rests with the doctor.
• It is the general experience of mankind that the accident in
question does not
happen without negligence. This principle is often misunderstood
as a rule of
evidence, which it is not. It is a principle in the law of torts.
When this
principle is applied, the burden is on the doctor/defendant to
explain how the
incident could have occurred without negligence. In the absence of
any such
explanation, liability of the doctor arises
Normally, a doctor is held liable for only his acts (other than
cases of vicarious
liability). However, in some cases, a doctor can be held liable
for the acts of another
person which injures the patient. The need for such a liability
may arise when the
person committing the act may not owe a duty of care at all to the
patient or that in
committing the act he has not breached any duty. A typical example
of a case where
such a situation may arise is in the case of a surgery. If a
junior doctor is involved as
part of the team, then his duty, as far as the exercise of the
specialist skill is
concerned, is to seek the advice or help of a senior doctor. He
will have discharged his
duty once he does this and will not be liable even if he actually
commits the act which
causes the injury. In such a case, it is the duty of the senior
doctor to have advised him
properly. If he did not do so, then he would be the one
responsible for the injury
caused to the patient, though he did not commit the act.
In India in the case of Dr. Laxman Balkrishna Joshi vs.
Dr. Trimbark Babu Godbole and Anr[1]., and A.S.Mittal v. State of U.P[2].,
the appellant had performed reduction of
the fracture, that in doing so he applied with the help of three of his
assistants excessive force, that such reduction was done without giving any anesthetic
but while the patient was under the effect of the morphia injection, that the
said treatment resulted in the embolism, or shock, which was the proximate
cause of death, that the appellant was guilty of negligence and wrongful acts,
and awarded Rs. 3,000 as damages.
It was laid down that when
a doctor is consulted by a patient; the doctor owes to his patient certain
duties which are:
(a) Duty of care in deciding whether to undertake the case,
(b) Duty of care in
deciding what treatment to give, and
(c) duty of care in the
administration of that treatment.
A breach of any of the
above duties may give a cause of action for negligence and the patient may on
that basis recover damages from his doctor. In the aforementioned case, the
apex court interalia observed that negligence has many manifestations – it may
be
1.) active negligence,
2.) collateral negligence,
3.) comparative negligence,
4.) concurrent negligence,
5.) continued negligence,
6.) criminal negligence,
7.) gross negligence,
8.) hazardous negligence,
9.) active and passive negligence,
10.) willful or reckless negligence,
11.) or negligence per se.
Black's
Law Dictionary defines negligence per se as “conduct, whether of action or
omission, which may be declared and treated as negligence without any argument
or proof as to the particular surrounding circumstances, either because it is
in violation of statute or valid Municipal ordinance or because it is so
palpably opposed to the dictates of common prudence that it can be said without
hesitation or doubt that no careful person would have been guilty of it. As a
general rule, the violation of a public duty, enjoined by law for the
protection of person or property, so constitutes.”
In the case of Samira Kohli vs. Dr. Prabha Manchanda and Ors[3]., the apex court held that consent given for
diagnostic and operative laparoscopy and “laparotomy if needed” does not amount
to consent for a total hysterectomy with bilateral salpingo opherectomy. The
appellant was neither a minor nor mentally challenged or incapacitated. As the
patient was a competent adult, there was no question of someone else giving
consent on her behalf. The appellant was temporarily unconscious under
anesthesia, and as there was no emergency. The respondent should have waited
until the appellant regained consciousness and gave proper consent. The
question of taking the patient's mother's consent does not arise in the absence
of emergency. Consent given by her mother is not a valid or real consent. The
question was not about the correctness of the decision to remove reproductive
organs but failure to obtain consent for removal of the reproductive organs as
performance of surgery without taking consent amounts to an unauthorized
invasion and interference with the appellant's body. The respondent was denied
the entire fee charged for the surgery and was directed to pay Rs. 25000/- as
compensation for the unauthorized surgery[4]. http://www.imlindia.com/content/Samira.Kohli.v.Dr.Prabha.Manchanda.pdf
Such cases bring to light the situations in
India and its patients and doctors how
much am I as a doctor under pressure and my patients need how much to consider
and trust me and my opinion, why so much emphasis on these areas why lack of
trust?
Why are the friendly neighborhood doctor
skipped and a surer specialist approached even for a minor headache? Why fancy
life insurances? And health and wellness packages available in corporate
hospitals and fancy clinics all over the globe?
One doctor travelling all over the globe and
handling maximum number of patients?
International and national consumer running towards
a handful few and expecting maximum care, how can an overworked doctor give
equal time to all his patients?
What about those who are below the poverty line
and cannot afford these treatments,
In India, majority of citizens requiring
medical care and treatment
Fall below the poverty line. Most of them are
illiterate they cannot comprehend medical terms, concepts, and treatment
Procedures. They cannot understand the functions
of various organs or the effect of removal of such organs. They do not have
access to effective but costly diagnostic procedures. Poor patients lying in
the corridors of
Hospitals after admission for want of beds or
patients waiting for days on the roadside for an admission or a mere examination,
is a common sight at all major hospitals all around Mumbai where I have worked
and experienced,
For them, any treatment with reference to rough
and ready diagnosis based on their outward symptoms and doctor’s experience or
intuition or so called expert judgment is acceptable and welcome so long as it is
free or cheap; and whatever the
Doctor decides as being in their interest, is
usually unquestioningly accepted. They are a passive, ignorant and uninvolved
in treatment procedures. The poor and needy face a hostile medical environment
- inadequacy in the number of hospitals and beds, non-availability of
Adequate treatment facilities, utter lack of
qualitative treatment, corruption, callousness and apathy. Many poor patients
with serious
Ailments (eg. heart patients and cancer
patients) have to wait for months
For their turn even for diagnosis, and due to
limited treatment facilities,
Many die even before their turn comes for
treatment. What choice do these poor patients have? Any treatment of whatever degree
is a boon or a favor, for them. The stark reality is that for a vast majority
in the
Country, the concepts of informed consent or
any form of consent, and choice in treatment, have no meaning or relevance. With
my personal experience since I have majorly worked in the area of chronic
disease and Cancer management, even the slightest hope of recovery makes the
patient rally behind me , being an ethical person I will always follow my
ethics and although sometimes when the clear picture of the condition is
communicated and found that the hospital hasn’t done anything but simply
relieving the symptoms doesn’t make any difference to the the patients although
they are spending over this unrequired treatment, this state makes me remember
the internship days when I was posted at the hospital IPD, where we are
supposed to be working in shifts for Day and Night , the one problem we would
face during our work was FAKE DISEASES, the patient would learn some classic
symptoms and present them to us and ask for admission in the hospital this was
a dilemma we would face ? The reason being that those were RAINY SEASON days
and there wasn’t any shelter from rains outside, thus these people would flock
towards hospitals and fake diseases symptoms and stay and occupy these beds!
The position we doctors face in Government and
charitable hospitals, is also unenviable. They are overworked, understaffed, with
little or no diagnostic or surgical facilities and limited choice of medicines
and
Treatment procedures. They have to improvise
with virtual non-existent facilities and limited dubious medicines. They are
required to be committed, service oriented and non-commercial in outlook. What
choice of treatment can these doctors give to the poor patients? What informed
consent they can take from them?
This condition was very beautifully portrayed
in an HINDI FEATURE FILM
Munna Bhai M.B.B.S. is a 2003 Indian comedy directed by Rajkumar
Hirani and produced by Vidhu
Vinod Chopra. The story involves protagonist Munna Bhai (Sanjay Dutt), a goon, going to medical school.
While
Munna Bhai's skills as a medical doctor are minimal, he transforms those around
him with the "Jadoo Ki Jhappi" ("magical hug") and the
compassion he shows towards those in need. Despite the school's emphasis on
mechanical, Cartesian, impersonal, often bureaucratic relationships between
doctors and patients, Munna constantly seeks to impose a more empathetic,
almost holistic, regimen.
IS THIS POSSIBLE IS YET A QUESTION MARK.
On the
other hand, we have the Doctors, hospitals, nursing homes and clinics in the
private commercial sector. There is a general perception among the middle class
public that these private hospitals and doctors prescribe avoidable costly
diagnostic procedures and medicines, and
subject them to unwanted surgical procedures,
for financial gain. The public feel that many doctors who have spent a crores for becoming a specialist, or nursing homes
which have invested several crores on diagnostic and infrastructure facilities,
would necessarily operate with a purely commercial and not service motive; that
such
Doctors and hospitals would advise extensive
costly treatment procedures and surgeries, where conservative or simple
treatment may meet the need; and that what used to be a noble service oriented
profession is slowly but
steadily converting into a purely business.
But
unfortunately not all doctors in government hospitals are paragons of service,
nor fortunately, all private hospitals/doctors are commercial minded. There are
many a doctor in government hospitals who do not care about patients and
unscrupulously insist upon ’unofficial’
payment for free treatment or insist upon
private consultations. On the other hand, many private hospitals and Doctors
give the best of treatment
without exploitation, at a reasonable cost,
charging a fee, which is reasonable recompense for the service rendered. Of
course, some doctors, both in private practice or in government service, look
at patients not as
persons who should be relieved from pain and
suffering by prompt and proper treatment at an affordable cost, but as
potential income-providers/
customers who can be exploited by prolonged or
radical diagnostic and treatment procedures. It is this minority who bring a
bad name to the entire profession.
What we
are considering in this case, is not the duties or
obligations of doctors in government charitable
hospitals where treatment is free or on actual cost basis. We are concerned
with doctors in private practice and hospitals and nursing homes run
commercially, where the
relationship of doctors and patients are
contractual in origin, the service is in consideration of a fee paid by the
patient, where the contract implies that the professional men possessing a
minimum degree of competence
would exercise reasonable care in the discharge
of their duties while giving advice or treatment.
Here arises a question of having a menu card
for a doctor is it possible to centralize the costs of treatments and diagnostics?
Even
the Clinicians who are engaged in research in a variety of ways, both directly
and indirectly are not out of this obligation. Ethical review and approval
should be obtained in all cases of research on human subjects. The primary
justification for research is the expected benefit in improved treatments or
prevention of disease. Thus, the justification is overwhelmingly utilitarian
and the ethical judgment involves assessment of likely benefits and potential
harms. All engaged in clinical trials have duties of care and should consider
how best these can be discharged.
In UK also the scenario is same. During the 1980s in England, the Department of Health
issued a circular allowing practitioners, under limited circumstances, to
discuss with and apply family planning procedures to minors (<16 years of
age) without the express consent of their parents. Mrs. Gillick, a mother,
challenged this in a court of law to get this advice declared illegal. The judgment
in Gillick v West Norfolk and Wisbech Area Health Authority [1984] was in favor
of the Health Authority ruling that a minor was capable of giving consent to
contraceptive therapy provided she was of sufficient mental maturity to
understand the implications. This ruling was overturned by the Court of Appeal
on consideration of the duties and rights of parents and their right to be
informed sufficiently to carry out these duties. The Department of Health with
the support of the British Medical Association (representatives of medical
practitioners in the UK) appealed to the House of Lords (The highest appeal
court in the UK) who backed the original judicial decision by a majority of 3:2
allowing practitioners to make a judgment about the maturity of a minor and to
give contraceptive advice and treatment without the consent of the parents
In 1982 Mrs.
Victoria Gillick took her local health authority (West Norfolk and Wisbech Area
Health
Authority) and the Department of Health and Social Security to court in an
attempt
to stop doctors
from giving contraceptive advice or treatment to under 16-year-olds without
parental
consent.
The case went
to the High Court where Mr. Justice Woolf dismissed Mrs. Gillick’s
claims. The
Court of Appeal reversed this decision, but in 1985 it went to the House of
Lords and the
Law Lords (Lord Scarman, Lord Fraser and Lord Bridge) ruled in favor of
the original
judgment delivered by Mr. Justice Woolf:
"...whether
or not a child is capable of giving the necessary consent will depend on the
child’s
maturity and understanding and the nature of the consent required. The child
must
be capable of
making a reasonable assessment of the advantages and disadvantages of
the treatment
proposed, so the consent, if given, can be properly and fairly described as
true
consent."
The
‘mature minor’ principle is now commonly referred to as ‘Gillick-competence’
and is widely applied in practice, although it is fraught with difficulties.
Essentially a practitioner may be justified in providing advice and treatment
without the expressed consent or knowledge of the parents where:
1) the
girl concerned is considered capable of understanding advice
2) she
could not be persuaded to inform her parents or to allow the doctor to inform
them (implicit in this is that the
practitioner should try to persuade her to inform her parents)
3) she
is very likely to have sexual intercourse with or without contraceptive
treatment or advice (withholding such treatment or giving it is unlikely to
influence her sexual behavior)
4)
Without contraceptive advice or treatment her physical and mental health is
likely to suffer (she is at risk of sexually transmitted disease or may become
pregnant)
5)
Overall it is considered to be in her best interest on the balance of probable
benefits and potential harms. The obligation is firmly imposed on the doctor to
attempt to persuade the girl to inform her parents or to allow him/her to do
so.
This
approach is an attempt to act in the ‘best interest’ of the girl considering
that where possible it is best that parents are involved. It balances this with
the right of parents to be informed to carry out the duty of care to their
child. The paramount concern, however, is the best interest and health of the
child.
In the
UK the healthcare system is not like India
Let’s
enumerate the differences and see what we achieve
Healthcare in
England is mainly
provided by England's public
health service, the National Health Service, that provides
healthcare to all permanent residents of the United Kingdom that is free at
the point of use and paid for from general taxation. Though the public system
dominates healthcare provision in England, private health care and a wide
variety of alternative and complementary treatments are available for those
willing to pay.
The National Health Service (NHS) is free at the point of use for the patient though there
are charges associated with eye tests, dental care, prescriptions, and many
aspects of personal care.
The NHS provides the majority of healthcare in England,
including primary care, in-patient care, long-term healthcare, ophthalmology and dentistry. The National Health Service Act 1946 came into effect on 5 July 1948.
quality of care and environment;
access to treatments, medicines and screening programmes; Respect, consent and
confidentiality; informed choice; patient involvement in healthcare and public
involvement in the NHS; and complaints and redress. The constitution:-
Defines rights regarding access
to health care which will be
·
free of charge
·
non-discriminatory
·
never refused on unreasonable grounds
·
assessed by the local NHS to meet locally assessed needs
and pledges that access to health care will be convenient and
easy to access within defined waiting times; based on decision making that will
be clear and transparent, and that transfers from one provider to another will
be as smooth as possible and that patients will be involved in all relevant
discussions.
With regard to rights regarding Respect,
consent and confidentiality the NHS gives patients the right to
·
be
treated with dignity and respect.
·
accept
or refuse treatment that is offered, and not to be given any examination or
treatment without valid consent.
·
be
given information about your proposed treatment in advance, including any
significant risks and any alternative treatments which may be available, and
the risks involved in doing nothing.
·
privacy
and confidentiality and to expect the NHS to keep their confidential
information safe and secure.
·
access
to their own health records. This will always be used to manage treatment in
the patient’s best interests.
And pledges that it will share with patients any
letters sent between clinicians about their care.
Patients are given rights in relation to informed
choice including the right to
·
choose
their own GP practice, and to be accepted by that practice unless there are
reasonable grounds to refuse
·
express
a preference for using a particular doctor within your GP practice and for the
practice to try to comply.
·
make
choices about their NHS care and to information to support these choices.
The NHS also pledges to
inform patients about the healthcare services available locally and nationally
and will offer easily accessible, reliable and
relevant information to enable patients to participate fully in their own
healthcare decisions and to support them in making choices. This includes
information on the quality of clinical services where there is robust and
accurate information available.
Doctors status in the UK
Doctors in training
Doctors in training earn a basic
salary and will be paid a supplement if they work more than 40 hours and/or
work outside the hours of 7am-7pm Monday to Friday.
In the most junior hospital trainee post (Foundation Year 1) the basic starting salary is £22,636. This increases in Foundation Year 2 to £28,076. For a doctor in specialist training the basic starting salary is £30,002. If the doctor is contracted to work more than 40 hours and/or to work outside 7am-7pm Monday to Friday, they will receive an additional supplement which will normally be between 20% and 50% of basic salary. This supplement is based on the extra hours worked above a 40 hour standard working week and the intensity of the work.
In the most junior hospital trainee post (Foundation Year 1) the basic starting salary is £22,636. This increases in Foundation Year 2 to £28,076. For a doctor in specialist training the basic starting salary is £30,002. If the doctor is contracted to work more than 40 hours and/or to work outside 7am-7pm Monday to Friday, they will receive an additional supplement which will normally be between 20% and 50% of basic salary. This supplement is based on the extra hours worked above a 40 hour standard working week and the intensity of the work.
Specialty doctors
Doctors in the specialty doctor
grade earn a basic salary of between £37,176 and £69,325.
Consultants
Consultants can earn a basic
salary of between £75,249 and £101,451 per year, dependent on length of
service. Local and national clinical excellence awards may be awarded subject
to meeting the necessary criteria.
General practitioners
Many general practitioners (GPs)
are self-employed and hold contracts, either on their own or as part of a
Clinical Commissioning Group (CCG). The profit of GPs varies according to the
services they provide for their patients and the way they choose to provide
these services.
Salaried GPs who are part of a CCG earn between £54,863 to £82,789 dependent on, among other factors, length of service and experience.
Salaried GPs who are part of a CCG earn between £54,863 to £82,789 dependent on, among other factors, length of service and experience.
Private Practice in UK
‘Independent Practice’ and ‘Private Practice’
are synonymous terms meaning practicing medicine out with the umbrella of the
NHS. Private practice existed long before the creation of the NHS, and it
continues today in parallel with the NHS.
Private practice does allow surgeons to
practice more independently of NHS targets and diktats. Private Practice allows
more direct one-to-one care for patients, without a need to rush. Private
practice can indeed be greatly rewarding, both emotionally and professionally,
but like most worthwhile things, it does require hard work and commitment.
Patients receiving private healthcare fall
into two groups: those with private medical insurance policies (about 80% of
patients) and those who self-fund (about 20%).
Of those doctors undertaking private practice,
the large majority also work in NHS Consultant posts, doing their private work
in their spare time, outside of and on top of their NHS commitments. A small
proportion of doctors work in full time private practice only.
The amount of private practice varies
considerably across the country, with the greatest density being around London
and the South-East.
Any registered medical practitioner can, in
theory, undertake work privately. However, in reality, there are a number of
practical barriers.
First, private medical insurance companies do
not have their own mechanisms for assessing quality and suitability of doctors
for being recognized as specialists. They therefore rely on specific
benchmarks, including the need to be on the GMC’s Specialist Register and to
have successfully gone through an Advisory Appointments Committee (AAC), which
is part of the NHS Consultant appointment process. Second, by law, private
hospitals have very strict criteria for awarding practicing privileges to
doctors using their facilities. These help assure patients that they are being
seen by experienced and fully trained registered specialists.
Balancing Private and NHS work
Whether a surgeon decides to undertake work in
the private sector is a personal decision, which can be influenced by many
factors.
Under the new consultant contract, there are
rules governing how you balance NHS work with private practice. If you do not
have 11 or more programmed activities in your job plan, you are expected to
offer the first portion of any spare time to the NHS in preference to any
private work.
There is a Code of Conduct for Private
Practice, jointly agreed by the DH and BMA. This code ensures that your private
work does not disadvantage NHS patients.
When a surgeon has patients under their care
within the NHS, the patients tend to be looked after by a large team, including
a variety of grades of trainees. Care in the private sector is generally
delivered entirely by the consultant. Private practice is therefore a
significant commitment, which has to be handled effectively on top of all the
many commitments of the busy NHS Consultant.
Factors such as geography and specialty can
also influence a surgeon’s decision to undertake private practice. Some
specialties have relatively low rates of private practice whilst others, such
as cosmetic surgery, feature very strongly.
I thus find a stark difference in the
conditions in UK and India in variety of areas which sums up to the total care
standards at both the places.
