Ans.
1—The
notification that you are referring was published in the state gazette dated 25-11-1992
and it refers to section 33 (read with read with clause (fa) of section 2) of
the Maharashtra Medical Practitioners Act,1961. It states that-- “the AYURVEDIC
PRACTITIONERS enrolled on the State Register of Practitioners of Indian
Medicine holding qualification specified in Parts A,B,A-1 of the Schedule
appended to the said Act, shall be eligible to practise the modern system of
medicine which is known as allopathic system of medicine, to the extent of the
training they received in that system.”
2—The
above gazette notification is against existing laws as described below:
i)—It
is in violation of section of the Indian Medical Council Act, 1956, which is
reproduced below.
“RIGHT
OF PERSONS POSSESSING QUALIFICATIONS IN THE SCHEDULES TO BE ENROLLED.
(15)
(1) Subject to the other provisions contained in this Act, the medical
qualifications included in the Schedules shall be sufficient qualification for
enrolment on any State Medical Register.
(2)
Save as provided in section 25, no person other than a medical practitioner
enrolled on a State Medical Register:-
(a)
shall hold office as physician or surgeon or any other office (by whatever
designation called) in Government or in any institution maintained by a local
or other authority;
(b)
shall practice medicine in any State;
(c)
shall be entitled to sign or authenticate a medical or fitness certificate or
any other certificate required by any law to be signed or authenticated by a
duly qualified medical practitioner:
(d)
shall be entitled to give evidence at any inquest or in any court of law as an
expert under section 45 of the Indian Evidence Act, 1872 on any matter relating
to medicine.
(3)
Any person who acts in contravention of any provision of sub-section (2) shall
be punished with imprisonment for a term which may extend to one year or with
fine which may extend to one thousand rupees, or with both”
ii)—It
is in violation of the SC judgment in Dr. Mukhtiar Chand & Ors.
Vs. State Of Punjab & Ors., reported as AIR 1999, SC 468, (1998
(7) SCC 579). As per the judgment (para 43)—“A harmonious reading of Section 15
of 1956 Act and Section 17 of 1970 Act leads to the conclusion that there is no
scope for a person enrolled on the State Register of Indian medicine or Central
Register of Indian Medicine to practise modern scientific medicine in any of
its branches unless that person is also enrolled on a State Medical Register within
the meaning of 1956 Act.”
iii)--
It is in violation of the SC judgment in Poonam Verma vs. Ashwin Patel, (1996)
4 SCC 332:
"A
person who does not have knowledge of
a particular system of medicine but practices in that system is a quack
and a mere pretender to medical knowledge or skill,
or to put it differently, a charlatan."
3—The
reason for issuing the said gazette notification is not revealed in the
notification and would be known to the state government alone. However, it is
likely that it may be “close nexus between the State Government Health
Machinery and the unauthorised practitioners” to which the Hon’ble Allahabad HC
had referred in Rajesh Kumar Srivastava vs A.P. Verma (Chief Secretary, UP) and
Ors. (decided on 28 January, 2004) in the following words--
“8.
During the pendency of contempt petition this Court also directed inspections
of Community Health Centres at Koraon and Shankergarh at Allahabad as exemplars
to verify the complaint alleging that the unauthorised practitioners are
flourishing on account of wholly inadequate Primary and Secondary Medical care
provided by the State Government, and that there is a close nexus between the
State Government Health Machinery and the unauthorised practitioners.”
4—The
notification was issued more than 20 years ago. Nobody has challenged it so far
in the court. The IMA has to
do a lot of explaining for their abject inaction in this regard, even though
they never stop shedding crocodile tears about quackery. It is well
known that if AYUSH practitioners practice allopathy, they commit quackery.
5—The
question of allowing Ayurvedic practitioners to practice allopathy came before
the Ethics Committee of the MCI and was a part of the agenda for the meeting
held on 10-11 August, 2007.
“The
Ethics Committee went into an office Memorandum from the Directorate General of
Health Services, Ophtha/BC Section, Nirman Bhawan, New Delhi and decided to
formulate an answer to it as follows:-
Three
Ayurvedic postgraduate doctors namely Dr. Samir Raskar, Dr. Kaustuba More &
Dr. Chandrakant Gosavi have claimed that they should be recognized as
practicing surgeons for National Programme for Control of Blindness as they
have postgraduate degree of Ayurveda. An office Memorandum from the Directorate
General of Health Services, Ophtha/BC Section, Nirman Bhawan, New Delhi has
been received in the Council and it is stated that the Ministry have received a
letter from the above mentioned 3 doctors from Lions Mudhoji Eye Hospital,
Phaltan requesting this Ministry to recognized them as “Practicing Surgeons”
for National programme for control of blindness. It is requested that this
matter may please be considered at an early date for further necessary action.”
The
decision of the Ethics Committee was as follows:
“Section
1.1.3 of the Indian Medical Council (Professional Conduct, Etiquette and
Ethics) Regulations, 2002 states as under:-
“No
person other than a doctor having qualification recognised by Medical Council
of India and registered with Medical Council of India/State Medical Council(s)
is allowed to practice Modern system of Medicine or Surgery. A person obtaining
qualification in any other system of Medicine is not allowed to practice Modern
system of Medicine in any form”. 17
It
is very clear from the above that only a MBBS doctor is allowed to practice
modern system of Medicine and graduates from other system of Medicine (AYUSH)
not allowed to practice modern system of Medicine in any form.”
……………….
………………….
“As
such, any doctor who does not possess recognized MBBS degree along with
Postgraduate qualifications cannot do Surgery according to the law of the land.
Any attempt to allow anybody else to do this kind of procedure by any
authority under any pretext would be totally against the law i.e. totally
illegal. It will attract such penalties as prescribed by law. No
Government agency can recognize any doctor from stream other then modern system
of medicine to do this as long as the present law stands. To do so will be
totally illegal.”
……………………………..
……………………………….
“Further,
the Hon’ble Supreme Court, justice I Venkatanarayana in W.P.No.3003 of 1990
have said that “There can be no doubt about the fact that it is the duty of the
State to provide medical facilities to all the citizens. It is equally the
responsibility of the State not to permit quacks and other unqualified persons
to practice medicine and surgery. By permitting quacks, quality of health life
of the country would be degenerated and the manner in which they administer
drugs affects the health o the citizens. Cases are not ____ where quacks have
been performing surgery with crude instruments playing with the lies of the
citizen”. 18
In
view of above ruling of the Hon’ble Supreme Court of India and the Hon’ble High
Court, the claim of the postgraduate surgical diploma holder of AYUSH to be
called practicing surgeons and to do Eye Surgery cannot be entertained by any
authority. Doing so will be going against the letter of spirit of the judgement
of the Hon’ble Courts and who ever does so shall be responsible for the
consequences.
Further,
it is necessary at this point of time to comment also on certain notifications
issued by the Central Council of Indian Medicine, which create lots of
confusions amongst the public and also in the Governments level as well.
The
Central Council of Indian Medicine, (Institutional Area, Janakpuri, New Delhi)
in its notification No.F.No.8-5/2002-Ay.(MM), dated 22.1.2004 have stated that
rights of practitioners of Indian systems of Medicine are protected under Indian
Medicine Central Council Act, 1970 under Section 17(3)(B) which states as
under:- “Nothing contained in sub-Section (2) shall affect privileges
(including the right to practice any system of medicine) conferred by or under
any law relating to registration of practitioners of Indian Medicine for the
time being in force in any state on a practitioners of Indian Medicine enrolled
on a State Register of Indian Medicine.”
They
have further concluded “institutionally qualified practitioners of Ayurveda,
Siddha, Unani Tibb are eligible to practice respective Systems with modern
scientific medicine including surgery and Gynaecology Obstetrics.
Anaesthesiology, ENT, Ophthalmology etc. based on the training and teaching”.
The
Ethics Committee feels that this kind of interpretation and notifications are
totally against the law and against the rules laid down by the Hon’ble Supreme
Court & other Courts from time to time. It is well known that though many
modern investigative procedures of Pathology, Microbiology, Biochemistry &
Radiology and imaging have been incorporated into the curriculum and teaching
of different system other than Allopathy, the main point is that after taking
help of all these modern advances, the practitioners of these streams are only allowed
to practice their system of medicine along with the drug, medicine procedure
pertaining their system of medicine alone. This is the spirit behind using
modern advances in AYUSH. At no point of time in their teaching and training
these graduates are taught the treatment including differential diagnosis,
management, prescription of allopathic drugs, methodology of modern stream of
treatment and modern method of surgery as they are taught to allopathic
graduates and postgraduates. Otherwise, there has to be no justification in
continuing a separate modern allopathic system at all and all medical courses
would become an integrated course as claimed by the Central Council of Indian
Medicine.
Therefore,
if these doctors of AYUSH are allowed to treat patients in modern system of
medicine and are recognized to perform delicate of surgeries, the authorities
concerned who allow this shall be solely responsible for any untoward incidents
that may happen to the patients and will have to bear the responsibility thereof.
This
may be sent to the Executive Committee for necessary action including placement
of the above before the General Body, if it feels, necessary.”
It
is clear from the above that practice of “the modern system of medicine which
is known as allopathic system of medicine, to the extent of the training they
received in that system”, as stated in the impugned gazette notification, is
totally against law.
6—Besides
the IMA, it was also the duty of the MCI and the Maharashtra Medical Council to
challenge the notification dated 29-11-1992 but they clearly failed in such
duty.
7—Let
us hope that wiser counsel prevails and the impugned notification is withdrawn
/ quashed.
aasan tarike se mushkil cheez paane ka aasan tarika hai. Get any other degree & government any how will allow them to practice modern. Bekaar mein itna paisa or itni mehnat kari. !
ReplyDeleteDr. Rajesh Pawar
ReplyDeleteM.D.
As an Immediate Past President of The Association of Shalaki (India) it is my proud privilege to have a dialogue with all of you.
To let you know TAS (India) is an organization of specialists in Ophthalmology, Ear, Nose, and Throat & Dentistry in Indian System of Medicine.
Coming together to understand our Rights and to stand clear and fearless in our practices was one of the aims in the formation of TAS.
As a current practice there are many Streams in Ayurveda, like Principle Based treatment, surgical treatment, traditional treatment, every stream is on the top as far as their utility & outcome is concerned.
We need to assimilate all these streams into one big ocean.
Kerala state has traditional medicine. Maharashtra has developed surgical practices. Keeping mutual understanding we should exchange our expertise to make ourselves strong. We do have some legal bindings in implementing all these things but I am hopeful that together we can overcome all the obstacles.
As per the guidelines of central health department it is must for every medical practioner to keep updated for the continuation of the practice license i.e. registration of the council.
Soon we are starting ‘Credit Hours Rating System’ thro which every person will be updated during meetings workshops, live surgery demonstrations and conferences. This will effectively result into the betterment in the lifestyle of society at large.
During this exercise each and every Institute in India should keep in mind that they have to be well equipped in all aspects to sustain in the future.
As a practicing ophthalmologist my dream is to enter into ‘National Programme for Prevention of Blindness’ and other national programs.
Ayurveda can give a nationwide program in prevention and cure of blindness.
I request all the experts in the field of ophthalmology to study existing National Program & draft comprehensive program to submit to Central Health Department.
REASONS FOR INCLUSION OF ISM POST-GRADUATES IN NATIONAL PROGRAMME
1. SYLLABUS:-Under Graduate -a subject has two separate question papers where one paper is exclusively on Netra-Vidnyan.
Post-Graduate:-Exclusively study of the subject with work experience for three years.
2. Syllabus itself includes a study on National Program of Prevention of Blindness.
3. The Institutes where these post Graduate courses have been conducted are well equipped with O.P.D. and Indoor facilities like –a)-Diagnostic equipments)-Surgical equipments for the last 50 years.
4. In all institutes the subject is taught thoroughly up to the tune to practice ophthalmology clinically and surgically-for the last 26 years.
5. Each institute where post graduate course in ophthalmology is being taught performs every year more than 3000 cataract surgeries and other extra ocular surgeries too using all modern advanced equipments.
6. Under Graduate Degrees and Post Graduate Degrees are equivalent to allopathic degrees.
7. CCIM notification for the use of Modern Advances and Allopathic medicines.
8. FDA-2-e 3 Rule includes all ISM graduates-which permits the right to prescribe-use and store allopathic medicines.
9. It was the time when DBCS was not in action the majority ophthalmic work was done at ISM Institutes in metropolitan cities.
10. As a post graduate degree holder its` our fundamental right to get included in NPCB.
11. This is long standing pending demand of ISM Post Graduate Ophthalmologists.
Dear Dr. K K Agarwal sir,
ReplyDeleteYou tried very well to prove your legal knowledge on the notification by Maharashtra Government. Many peoples tried to prove the notification is illegal, but they failed. As per my knowledge famous lawyers of High courts & Supreme Court advised to IMA that not to challenge the notifications. Please refer the Supreme Court Judgment: petitioner: Dr. Mukhtiar Chand & Ors Vs. Respondent: The state of punjab & ors. Date of judgment: 08/10/1998, Bench: K .T .Thomas, Syed Shah Mohammed Quadri. It will clarify you the State Government having all rights. Also another thing has you seen the curriculum's of ISM faculty? As per curriculum's of ISM graduate & postgraduate courses they have been taught for Ayurved as well as Allopathy subjects including Anatomy, Physiology, Pharmacology, Surgery, etc. Especially as you mentioned the reference of NPCB did you know, they also taught for National Program for Control of Blindness. ISM postgraduate ophthalmologist receives good surgical experiences in their institutes. Please reexamine the legal things properly. Central Council Of Indian Medicine is also a statuary body like MCI & CCIM having all the rights to decide about the practicing conditions of ISM doctors. Then also if you feel is there any scope to challenge the notification of Maharashtra State Government please challenge it immediately don’t wait for MMC & MCI. Thanks.