Harvard commonly held myths about end-of-life issues

Myth: More care is always better.

Truth: Not necessarily. Sometimes more care prolongs the dying process without respect for quality of life or comfort. It’s important to know what interventions are truly important. It’s often impossible to know that in advance. That’s where the advice of a healthcare team is invaluable.

 Myth: Refusing life support invalidates your life insurance, because you are committing suicide.

Truth: Refusing life support does not mean that you are committing suicide. Instead, the underlying medical problem is considered to be the cause of death.

 Myth: If medical treatment is started, it cannot be stopped.

Truth: Not starting a medical treatment and stopping a treatment are the same in the eyes of the law. So you or your health care agent can approve a treatment for a trial period that you think may be helpful without fear that you can’t change your mind later. However, be aware that stopping treatment can be more emotionally difficult than not starting it in the first place.

 Myth: If you refuse life-extending treatments, you’re refusing all treatments.

Truth: No matter what treatments you refuse, you should still expect to receive any other care you need or want — especially the pain and symptom management sometimes called intensive comfort care.

 Myth: Stopping or refusing artificial nutrition and hydration causes pain for someone who is dying.

Truth: Unlike keeping food or water from a healthy person, for someone who is dying, declining artificial nutrition or intravenous hydration does not cause pain.

Hand, mouth, foot disease update

     ·        Person can remain infective for one week

·        No antibiotics are required

·        Can occur in adults

·        Rash is itchy as against dengue non itchy rash

·        Painful sores in mouth make swallowing difficult

Hand, foot and mouth disease

We have been seeing a rise in the number of cases of hand, foot and mouth disease in Delhi among school children. These may be mistaken for chicken pox.

Hand, foot and mouth disease: Salient facts

• Hand, foot and mouth disease is a viral illness most commonly caused by the Coxsackie virus A6.
• Enteroviruses 71 (EV71) can also cause hand, foot and mouth disease.
• Both adults and children can develop this infection. But young children below 5 years old are more susceptible.
• It is a moderately contagious illness.
• The incubation period is 5 days.
• The illness begins with fever, which lasts for 24-48 hours.
• Fever is followed by appearance of painful sores in mouth. They begin as small red spots that blister and then often become ulcers. Tongue is involved.
• There are peripherally distributed small tender non itchy rash with blisters on palms of the hands, and soles of feet and buttocks.
• The sores hurt on touch and swallowing is difficult.
• There is proximal separation of nail from the nail bed.
• The virus is present in mucus from nose, saliva, fluid from sores and traces of bowel movements.
• The virus spreads in the first week of infection.
• The infection spreads from person to person by direct contact with nasal discharge, saliva or blister fluid or from stool of infected persons.
• The virus can persist in the stool for weeks.
• The illness is not transmitted to or from pets or other animals
• The illness stays for 2-3 days. It is usually mild and self limited.
• Entero 71 virus is associated with brain involvement (meningitis and encephalitis), lungs and the heart.
• The patient remains infectious after the symptoms have gone.
• Test is not necessary.
• There is no specific treatment.
• Paracetamol tablet can be taken to relieve pain and fever.
• Aspirin is to be avoided in children.
• Dehydration should be avoided.
• Eat ice cream to numb the pain.
• Using mouthwashes or sprays that numb mouth
• Regularly wash your hands with soap and water.
• Avoid exposure to infected person.
• Maintain touch hygiene to reduce your risk of acquiring the infection.
• During first week of illness, the child should be kept in isolation.
• Schools should be closed.
• There is no vaccine currently available

Statins clear cholesterol at the risk of cataract

In the primary analysis of 6,972 matched pairs of statin users and nonusers, those taking the cholesterol-lowering medication had a 9% increased risk of developing cataracts said Dr Ishak Mansi, of the VA North Texas Health System at the University of Texas Southwestern in Dallas, and colleagues in JAMA Ophthalmology. In a secondary subgroup analysis of 33,513 patients (6,113 on statins) who had no comorbidity, based on the Charlson comorbidity index, the use of statins remained significantly associated with cataracts.

Why only surgical consent

Why only surgical consent

I believe all patients should sign a medical consent also. It can solve most of the medicolegal problems. I have designed one. Kindly send your inputs before I ask the association or the council to approve it.

Dr KK Aggarwal

MEDICAL CONSENT FORM

Date:

1.    Name:                                                2. Age:                                    3. Sex:           

4.  Email:                                            5. Mobile No:                        6. Address:

I, hereby give medical (general/specific) consent for my treatment under Dr _________________________

 I have read and understood the enlisted information and the same also has been conveyed to me in my own language and I have cleared all my doubts.

1)     I understand that my treating doctors _________ are honorary consultants and not hospital employees. 

2)     Being honorary consultants, they provide consultancy to their patients morning and evening at pre-defined times and they are on call for SOS consults.

3)     During their absence, the hospital provides cover through resident/floor doctors who are under the payroll of the hospital. 

4)     In emergencies, the hospital provides resident/Intensivist cover. They are qualified doctors specialized only in this job. They may shift the patient if need arises to the intensive care unit.  They are authorized to act independently as per the need of the situation.

5)     The night coverage is provided by the hospital residents/floor doctors. The treating consultants are available on phone in the night but for any emergency it is the hospital which provides the intensive care coverage to tackle any unforeseen event. The hospital will charge separately for these facilities.

6)     I understand that there may be situations when there is an emergency and the treating consultants may not be available for hours. In that case the hospital intensive care unit will provide necessary cover and take appropriate need based decisions.

7)     I understand that nursing care is provided by the hospital and is not under the direct charge of honorary treating consultants. 

8)     If there is any problem with the nursing care, I/my relations need to contact the floor nursing manager for the same. 

9)     I understand that Diet services are provided by the hospital through a hospital dietitian who can be approached through the nursing staff.  Treating doctors directly do not control the dietary services.

10) I have been told that doctors do not guarantee cure.  They only provide treatment and do investigations to the best of their skills, acumen and knowledge. 

11) I understand that there may be a situation may arise where even after days of admission, the diagnosis may not be made by my treating consultants and in that situation I hereby authorize by primary treating doctor/s to call upon other specialist to give a second opinion. The fee for these specialists will be charged separately.

12) I understand that my treating doctors have no objection to discuss my case with my primary referral doctor or a family physician.

13) I hereby authorize my treating doctor/s to investigate me to the best of their skill and knowledge and which should be in my best interest.

14) I understand that there is theoretical risk of sudden cardiac arrest in patients with uncontrolled blood pressure, uncontrolled diabetes, unstable heart blockages, morbid obesity, abnormal lipids, acute febrile illness (dengue, pneumonia,) etc. Sometimes while the patient is in the ward he or she may develop cardiac arrest due to lung clots ( pulmonary embolism) which may be life threatening. This usually happens when the person is lying on the bed for some time.

15) I understand that it is my responsibility to tell the doctors on a daily basis if I do not pass motion/flatus after 24 hours of stay in the hospital or if I do not pass urine in less than 8 hours on any day.

16) I understand that in spite of the best care by the hospital there may be an accident of fall from the bed. To prevent that except in the intensive care areas, I am supposed to provide and keep an attendant with me.

17) I hereby give permission and authority to my treating doctors for certain invasive procedures like fluid aspiration, dressing, internal cavity fluid aspirations, etc.   Each one of them may have some inherent complication rate including a rare mortality.

18) I understand that even giving intravenous fluids is not without any risk.  There are chances of developing inflammation, infection, drip reaction (fever and chills), oozing of blood, and swelling from the IV site.   

19) I hereby also give consent for any radiological investigation/s which may include ultrasound, CT scan, MRI, etc.  I understand that any x-ray or CT imaging involves radiation risk. 

20) I hereby authorize my treating doctor/s to go ahead with necessary investigations irrespective of the cost in the in the best interest of my condition.

21) I have been explained about the hospital charges including the policy of advance payment and will abide by the same.

22) I understand that a situation may arise where I may need a blood transfusion. I authorize hereby my treating doctors to arrange necessary blood from voluntary donors for transfusion. The hospital may ask for replace of the donor.

23) I understand that the blood bank is a hospital department and the blood is issued by them and transfused by the nurses under the supervision of the hospital resident/floor doctor/s.  The treating consultant/s’ role is only to decide whether a transfusion is required or not.  If any blood transfusion reaction occurs it is the responsibility of the hospital and not the treating doctors.

24) I understand that it is my duty to disclose on oath all my previous illnesses at the time of admission. Any false information added to Mediclaim may amount to a fraud.

25) I have declared my history of any drug allergy, history of pass illnesses and personal history including my habits and addition at the time of admission and same cannot be changed unless provided by proofs.

26) I have checked the spelling of my name, age and address at the time of admission as it may be difficult to change these parameters at the time of discharge or after the discharge.

27) There are certain medical procedures which are sometimes necessary in the medical treatment that may include putting in a ryles tube, urinary catheter, etc. I hereby give consent for the same.

28) I understand that nothing comes free in a corporate hospital.  I have to pay for all consumables which may include gloves, hand sanitizer, tissue paper, soaps, thermometer, etc.  I have the right to carry back these disposables which have been issued/billed to me. 

29) Many of the consumables may  not be covered by the Mediclaim policy/Public sector undertaking/Government units. For these I may be billed separately and may have to pay cash. It is my duty at the time of admission to clarify with the admission office as to which are the items which are not reimbursable.

30) I understand that hospital does not accept cheques and I have to pay either in cash or by demand drafts. 

31) I understand that if I pay by credit card, the charges may be extra.

32) I understand that being a corporate intuitions, there are no provisions for concessions. The treating doctor/s should not be embarrassed for the same as they may have no role.

33) I understand that hospital charges more money for inpatients for certain investigations/procedures compared to outpatients. 

34) I understand that hospital does not allow bringing any food from outside or buy medicine or devices from outside.

35) I understand that the hospital policy does not allow children to visit the hospital as relations.

36) I understand that there are strict visiting hours which my relations might have to abide.

37) I understand that hospital does not allow flowers to be brought within the hospital premises.

38) I understand that hospital is a smoking-free zone.

39) I understand that hospital will provide vegetarian healthy diet.

40) I understand that hospital will not permit me to buy medicines or procure devices from outside hospital pharmacy.

41) I understand there is a separate counter  in the hospital to assist for Mediclaim or PSU formalities. It is my/my relations’ duty to get Mediclaim farm issued from the counter and get it signed by the treating consultant and get it faxed to the TPA. It will be my duty (not my treating consultants) to follow it up with the TPA through the TPA desk. The TPA form needs to be submitted within 24 hours of admission. If there is a delay, the primary doctors will not be responsible or the same.

42) I understand that on the day of discharge it may take 6-8 hours by the Mediclaim counter or the TPA to process my queries and finally sanction the claim.

43) I understand that if I leave the hospital in the night, I may end up in cancellation of my Mediclaim policy.

44) For any ward leave, I need to contact the treating doctor/floor doctor/floor manager/floor nursing staff and need to provide the reasons for the same.

45) I understand that the Mediclaim insurance will cover only 1% of my insured amount as the room rent (2/% for intensive care). If I upgrade any room, my charges will increase for other services also and insurance company may reimburse me for my room/other services as per original entitlement.

46) I understand that the hospital charges may be different for different categories of patients.  It is not like a hotel where the difference is only in the room rent.  The charges of surgery, anesthesia, doctors fee, etc. may vary as per the bed category chosen.

47) I understand that at the time of admission, the doctor/s may admit you with a provisional diagnosis (disorder A) and may end up in getting a diagnosis (disorder B) for which investigations and treatment facilities may not be available in the hospital and hospital may ask for a transfer to other hospital.

48) I understand that the hospital may not have 100% facilities available in the world.

49) In case of sudden cardiac arrest in the hospital premises, the hospital policy is to Alarm Blue Code in which hospital intensive care team reaches the spot and provides resuscitative measures. The resuscitation may be done in the room or the patient may be shifted to the ICU.  During this emergency, the treating primary doctor/s may or may not be there.  Certain life threatening emergency procedures may be done at that moment.

50) I understand that there are certain unforeseen accidents which may occur in the hospital premises in spite of the precautions. These may include burn while taking steam, ECG electrode burn, electric monitor burn, fall from the bed, etc. etc. 

51) I understand that it is my responsibility to disclose about any drug allergy at the time of admission. I also understand that there may still be some drugs to whom I may be allergic and that may end up with drug reaction. Every unforeseen drug reaction carries a theoretical risk of mortality and morbidity.

52) I am/am not suffering from HIV, Hepatitis B and C positive.

53) I am/am not suffering from open Tuberculosis.

54) I understand that I need to declare if I have been treated by a quake in the recent past.

55) I understand I need to disclose if I am on Ayurvedic, Homeopathic, Unani or drugs from other traditional healers.

56) I have disclosed my smoking status (smoker/non-smoker)

57) I have disclosed my alcohol intake (yes/no)

58) I do understand that smokers may carry high mortality and morbidity when treated and their response to treatment may be poor.

59) It is my duty to disclose my past vaccination status and I have understood about my future vaccination suggestions.

60) I understand that the hospital has a policy to examine any female patient in the presence of a female attendant or in the presence of the husband/father.

61) While doing an ECG, X-ray or Echocardiogram, it may be possible that a male technician or the male doctor does the same in the presence of a female attendant.  I hereby permit for the same.

62) I understand that when I come for a checkup, there is an applied consent for physical and clinical examination which may involve examination of all parts of the body if clinically indicated

63) I understand that there are 5% chances of acquiring new infection in the hospital premises by me or my relations/friends visiting me.  Getting hospital acquired infection/s in spite of precautions may not mean a medical negligence on the part of the treating doctors.

64) Even after taking all the care, it is still possible to develop bed sore during the hospital stay depending upon my nutritional status and immunity of the patent.

65) I understand that ward boys and safai karamcharis may not be available in the ward all the time.  These services are provided by the hospital and not by treating consultant/s.  In case there is any delay in any such services, I may need to contact the floor manager to sort out the same.

66) I understand that primary treating consultant/s will see me twice a day. They are allowed to see me once more if the situation arises for which my treating doctor/s will be entitled for one more consultation. My treating doctors therefore are allowed two routine and one extra emergency consultation in a day.  On the day of admission and on the day of discharge two consultations may be charged.  Even a telephonic emergency consultation at odd hours is counted as a valid emergency visit as it involves change in medical treatment.

67) I understand that there is no Do Not Resuscitate Policy in India.  It is my duty to follow the legal obligations regarding end of life issues.

68) I understand that it is my right to get a refund of unused medicine and disposables at the time of discharge. 

69)  I understand that difference of opinion and error of judgment is not negligence. 

70) I understand that deviation from normal practice is not negligence.

71) I understand that medical accidents are known to occur and does not amount to negligence..

72) I understand that to error is human.  I understand that I have the right to choose my consultants.

73) I understand that at the time of discharge I will be given a copy of detailed discharge summary for my future records.

74) At the time of discharge I will be given radiological films, ECGs etc. However, in medico-legal cases, this may be the property of the hospital for legal purposes.

75) In an unforeseen situation like death I give/do not give permission to the hospital to initiate the process of an autopsy. 

76) I understand that the honorary treating doctors bill their professional fee from the doctors through the hospital and the same reflects clearly in the bill.  The fee includes hospital service charges for providing infra- structure for admitting the patients. All other charges are billed by the hospital and belong to them.  There is no system in which primary treating consultant get any cut or commission for admitting their patients in the hospital.  The billing is transparent and fee charged by the doctors is transparently reflected in the bill.

77) For certain facilities not available in the hospital, hospital may get these investigations done form empanelled diagnostic centres. the billing for the same is done by the hospital. For these services hospital charges may include some extra service charges.

78) For drugs and devices not available in the hospital, for procuring them from outside the hospital may include some extra service charges.

79) It may be possible that the hospital may provide devices/implants  at a higher costs than their purchase price as the Indian Government does not have an MRP on these items. The hospital may charge more to cover the cost of expiry, inventory, accidental fall, etc.  The treating consultant does not get any money out of these.

80) I have been made to understand that medi-claim does not mean 100% cashless facility.  They may deny 10% of the cases and ask to pay the bill and then get it reimbursed later.

81) I understand that Delhi medical Council does not allow doctors to provide a medical certificate for more than 15 days without a medical reason.   The hospital may charge money for issuing a certificate and the certificate is not valid without counter sign of the medical administrator and the patient.  

82) I understand that at the time of death the hospital has provisions for cold mortuary on chargeable basis.

83) I have been made to understand about the following;

a)     Provisional diagnosis

b)     Expected duration of stay

c)      Expected approximate hospital bill (the bill may increase if the hospital diagnose changes)

d)     Possible complications.

e)     Waiting time for my reports

84) In an unforeseen situation like death the hospital may ask to clear the bill before the death certificate is released.

85) At any stage, if I am dissatisfied with services of the hospital I need to inform the treating doctors/administration the same and not at the time of settling the bill.

86) I understand the hospital bill does not cover the follow up visits for which I may be billed separately

87) Hospital bills are computerized and may have computer errors. Its my duty to cross check the bill and get it sorted out with the billing department.

88) Its my duty to sign the bill and the discharge tickets at the time of discharge.

89)  I may be asked to separately sign specific consents forms in addition for example for any surgical procedure

90) I understand that with permission I am allowed to call my family doctor to discuss the case with the treating doctors.

91) That If I need a private nurse I need to tale from the hospital route.

92) That if I need an ambulance I need to tale from the hospital route.

93) I understand the split ACs are more source if infections than window ACs

94) I understand that cross infections may occur in intensive care units

95) I understand that I may be billed for disposable sheets, disposable gowns, disposable working gloves etc.

96) I understand that the hospital follows privacy policy and any information given by me is not disclosed to any other person without my permission.

97) In an unforeseen situation if I end up unconscious, paralyzed or I am not in a position to give a consent or specific consent or statement I hereby authorize __________________________ to give consent and take all decisions on my behalf.

98) I hereby authorize __________ to be briefed about me in routine/emergency situation.

99) I have declared my past history: diabetes (___ years), hypertension (___ years), asthma (___ years),  abnormal lipid (___ years),  COPD (___ years), cancer (___ years), heart blockages (___ years), paralysis (___ years), depression (___ years), acidity (___ years),  and ________________________________.

Signature of Patient:

Signature of Spouse:

Signature of Others:

Signature of Consultant(s):

Cabinet nod for fresh ordinance on MCI

The Union Cabinet has given  nod for issuance of a fresh ordinance for granting legality to the Board of Governors of Medical Council of India.  The cabinet gave its approval to the Health Ministry note for the draft ordinance in this regard which is likely to be issued by the President on Monday or Tuesday.

The need for a fresh ordinance came after the earlier ordinance issued on May 21 by the President, granting legality to its board of governors, lapsed and government failed to get it replaced with an Act.

In the wake of the earlier ordinance lapsing, the Centre had directed the apex medical regulator not to take any policy decisions or hold important meetings.

Under the rules, the ordinance lapses if Parliament does not pass the bill replacing it within six weeks of the first sitting since it was promulgated. The first sitting in the case of MCI ordinance was August 5 which was the first day of the Monsoon Session.

The need for issuance of an ordinance came as the Indian Medical Council (Amendment) Bill, 2013, which allows for an elected apex medical regulator, is yet to be passed by Parliament.

Though the MCI is functional till November 10 as per the previous Ordinance, it technically had no legal authority in the absence of an effective ordinance to take any decisions.  (Business Standard)

Common Surgery Practices That Should Stop

American College of Surgeons recommended the following 5 recommendations:

1.      Don't perform axillary lymph node dissection for clinical stages I and II breast cancer with clinically negative lymph nodes without attempting sentinel node biopsy.

2.      Avoid the routine use of 'whole-body' diagnostic computed tomography (CT) scanning in patients with minor or single system trauma.

3.      Avoid colorectal cancer screening tests on asymptomatic patients with a life expectancy of less than 10 years and no family or personal history of colorectal neoplasia.

4.      Avoid admission or preoperative chest x-rays for ambulatory patients with unremarkable history and physical exam.

5.      Don't do computed tomography (CT) for the evaluation of suspected appendicitis in children until after ultrasound has been considered as an option.

Common Orthopedics Surgery Practices That Should Stop

American Academy of Orthopaedic Surgeons made the following 5 evidence-based recommendations:

1.      Avoid performing routine post-operative deep vein thrombosis ultrasonography screening in patients who undergo elective hip or knee arthroplasty.

2.      Don't use needle lavage to treat patients with symptomatic osteoarthritis of the knee for long-term relief.

3.      Don't use glucosamine and chondroitin to treat patients with symptomatic osteoarthritis of the knee.

4.      Don't use lateral wedge insoles to treat patients with symptomatic medial compartment osteoarthritis of the knee.

5.      Don't use post-operative splinting of the wrist after carpal tunnel release for long-term relief.

             

Medical Council of India in Constitutional Crisis

The Indian Medical Council Amendment Ordinance 2013, notified on 21st May, which was introduced as Bill in the Rajya Sabha by the Central Government could not be passed in the monsoon session of the Parliament.

As per Article 123 of the Constitution of India, if an ordinance is not passed by the Parliament, it will lapse after six weeks of the commencement of the first parliament session after the ordinance is notified. As the Ordinance has not been ratified by the Parliament, it lapsed on 16/09/2013.

This is a very peculiar situation as technically the Board of Governors and thereby MCI has ceased to exist. What will the Government do now?

Mr. Sube Singh, Director MOH Govt. of India on 17^th September has written to Chairman BOG that the existing Indian Medical Council (Amendment) ordinance has ceased to operate on 16.09.13. That the government is proposing to promulgate a fresh ordinance so that the work already done by the board of governors of the council as per provisions of the earlier ordinance gets validated and may continue and until the fresh Ordinance is promulgated, the BOG is requested not to convene any meeting from 16.09.13 and not take any major decision.

Therefore the health ministry is proposing to promulgate a fresh ordinance but it may not be easy as the present President may not like to enter into a controversy especially at a time when the elections are near, as there is not a single instance since 1950 till today, wherein the President of India has re-promulgated any Ordinance after its expiry.

The current ordinance gave the new Board of Governors a period of six months and was to lapse on 12th November, 2013 subject to approval of both the Houses of Parliament.

If the President of India does not re-promulgate this ordinance, the present constitutional crisis presents limited options for the government, which includes letting it lapse and come out with other modified fresh ordinance or re-install the MCI, which preceded by the first ordinance in 2010.

The term of the present Board of Governors, which ends on 12th November, can also be extended for another six months by a fresh ordinance to be passed in winter session (again the president of India may not like to do that)

The lapsed Ordinance was passed on 21st May 2013 effective retrospectively from 15th May 2013 and carried nearly 40 amendments in the Indian Medical Council Act, 1956. 

It is not so that other Bills were not passed by the Parliament. It appears that most of the political parties other than the ruling one were not in favor of passing the amendment in its present state.

The present constitutional crisis has limited options for the Government, either to re promulgate the ordinance (which has not happened in the history since 1950 and the president may not like to enter in this controversy); come out with other modified fresh ordinance or re-install the MCI which was superseded by the first ordinance in 2010. The present Board of Governors term which ends on 12th November, can also be extended for another six months by a fresh ordinance to be passed in winter session.

The present Government any way has been able to carry what they wanted for over three years by carrying forward the ordinances (four till now and fifth if a new one is introduced), an action which may be considered somewhat unconstitutional. In the history of India, such a situation did arise when Supreme Court had to intervene to stop the Bihar Government from the practice of re-promulgating ordinances every six months.

The present amendment Ordinance /Bill, which is being opposed by the most of the political parties, takes away the entire autonomy of the council. If the present amendment bill is passed, the Central Government will be the final authority on each and every issue of MCI whether it relates to policy or not.

Sequence of events in MCI

1.                  15th May, 2010: MCI was superseded in exercise of the powers conferred by sub-section (1) of section 3A of the Indian Medical Council Act, 1956 (102 of 1956) and the President, Vice-President and all other Members of the said Council vacated their offices.

2.                  15th May, 2010: On supersession of the Council, the Central Government constituted the Board of Governors vide notification S.O.1123 (E) to perform the functions of the Council during the interregnum.

3.                  15th May, 2010: The health minister assured that within one year the MCI would be reconstituted but it did not happen and the term of the Board of Governors was extended to two years by the Indian Medical Council (Amendment) Act, 2011 (13 of 2011) and it was further extended up to three years by the Indian Medical Council (Amendment) Act, 2012 (20 of 2012), with effect from 15th May, 2010. It is significant to note that the Central Government had done nothing and had not initiated any measure to reconstitute MCI during this entire period of 3 years in spite of repeated assurances and promises.

4.                  14th May, 2013: The three year term of the Board of Governors expired.

5.                  19th March, 2013: The Indian Medical Council (amendment) Bill was introduced in the Rajya Sabha and is pending in that house.

6.                  21st May, 2013: To circumvent the above, the government brought Indian Medical Council (amendment) Ordinance 2013.

7.                  21st May, 2013: The board was reconstituted in accordance with the provisions of the Indian Medical Council (Amendment) Ordinance, 2013 (4 of 2013), which was promulgated by the President on the 21st May, 2013, which came into force with effect from the 15th day of May 2013.

8.                  Section 3AA of the said Act, as inserted by the said Ordinance, requires the Central Government to reconstitute the Council under sub-section (1) of section 3 within a period of one hundred and eighty days with effect from the 15th day of May, 2013.

9.                  The proviso to section 3AA provides that the Board of Governors constituted under sub-section (4) of section 3A shall continue to exercise the powers and perform the functions of the Council till the new Council is reconstituted or for a period not exceeding one hundred and eighty days with effect from the 15th day of May, 2013, whichever is earlier.

10.              The Indian Medical Council (Amendment) Ordinance, 2013 (4 of 2013) was to be passed in the monsoon session by both the houses of the parliament and but the same did not happen. 

11.              16th September, 2013: The present Ordinance lapsed thereby forcing a constitutional crisis as the Board of Governors and thereby the MCI has ceased to exist.

12.              16^th September, 2013: Sube Singh, Director MOH Govt. of India wrote to Chairman BOG, MCI [F No V 11011/1/2013-MEP-1(pt) dated 17^th September} “with reference to the above cited subject that the existing Indian Medical council (Amendment) ordinance, 2013 would cease to operate on 16.09.13. The government is proposing to promulgate a fresh ordinance so that the work already done by the board of governors of the council as per provisions of the earlier ordinance gets validate and may continue. In view of the forgoing, until the fresh Ordinance is promulgated the BOG is requested not to convene any meeting from 16.09.13 not take any major decision. This issues with the approval of joint secretary (VM).

The root cause of MCI illness

Going back to the history, the first amendment in 2010 came when the then president of MCI
Dr. Ketan Desai was taken into custody by CBI on 22nd April 2010 on the allegation of taking a bribe for recommending permission to Gian Sagar Medical College Patiala to admit 100 students of 4th Batch, in spite of having deficiencies.  On the very next day of the arrest of Dr. Desai, CBI had conducted spot verification with the team of expert doctors and videographers at Gian Sagar Medical College Patiala and interrogated number of officers and Doctors. Now, CBI has filed its report in the competent court along with the copy of videography and stated that college had all requisite facilities except deficiency of auditorium.  

Three days after Dr. Desai was taken into custody, on the direction of Union Health Minister Mr. Ghulam Nabi Azad, a high level committee of 3 members under the Chairmanship of present Health Secretary Mr. Keshav Desiraju along with Dr. Rani Kumar, Dean of AIIMS, New Delhi and Dr. A K Agarwal, Dean, Maulana Azad Medical College, New Delhi, was constituted to examine the validity/correctness of the recommendation and report made by MCI of this college.  This committee had conducted the Inspection on 29th April and submitted its report on 3rdMay 2010 to the Health Ministry.  This committee in its report had stated that the permission recommend by MCI was justified and also observed that the existing facilities and faculty in the College appear more than adequate for Undergraduate teaching.  The committee had also observed the nonexistence of auditorium in its reports.  This report was sent to Director, CBI by the Health Secretary on 11th of May 2010. The question which arises is that when the Inspection Report of the above hospital was found to be correct by both the CBI and Health Ministry and there were no other complaints against MCI or against any of its members than what was the need for the Central Government to supersede the Council at that juncture? However, the Government went ahead superseding the MCI and constituted a Board of Governors of six members under the chairmanship of Dr. Shiv K. Sareen. 

Thereafter, the Health Ministry had also requested the Board of Governors of MCI to review the report of MCI and take final decision.  Board of Governors had also conducted inspection and had also observed that college does not have auditorium and granted the permission for 4th Batch on 12th July 2010.  The officials of MCI had clarified that the utility of auditorium was for cultural programs and convocation ceremony held once or twice in a year and as per the rules it is required at the time of permission for 5th Batch whereas this college was recommended for 4th Batch. However Supreme Court had stayed all further proceedings in this matter on 3rd January 2013.

Further, CBI on the same day when Dr. Desai was taken into custody had conducted raids at various premises, Residence, Bank lockers, office etc., of Dr. Desai at Delhi and Ahmedabad. Very wide publicity in all media and TV channels was given for several days that Dr. Desai was caught red handed while accepting bribe and huge assets like 1800 Cr. or 1.5 Tonnes of Gold were found from Dr. Desai. However, as per CBI report the fact is that Dr was not at all caught red handed for accepting bribe and during these searches, as per CBI seizure memo, only total 53,600 rupees were found from all his premises and gold jewelry of about 3.5kg was found. Significantly, even CBI in its report after detailed investigations of over 2 years had stated that this 3.5 kg Gold was already declared to the Income tax department in the year 1997.

Immediately thereafter in May 2010, CBI registered a case of Disproportionate Assets for a period from 1997 to April 2010 (13 years) against Dr. Desai and his family members. Dr. Desai’s wife is also a Doctor and running her own Maternity hospital since last 22 years and his late father was in real estate business. While filing the FIR in the disproportionate assets case, CBI had projected assets of about 233% more than the income during this period of 13 years.  After detail investigation for almost 2 years, CBI in the month of May 2012 had filed the closure report with all documents and seizure memos in the competent CBI court in New Delhi.  Seizure memos of all premises revealed that no unaccounted cash money or bribe money was found either from Dr. Desai or from his office as well as from his residence at Delhi and Ahmedabad.  CBI in its report had stated that they have investigated all the income and assets of Dr. Desai and his family members for the period from 1/1/1997 to April 2010 (about 13 years) and came to the conclusion that Dr. Desai and his family are not in possession of any assets or financial resources disproportionate to their known and legal sources of income.  CBI in its report had also stated that while filing the FIR they had inadvertently made certain incorrect calculations and added the amount of shares worth of crores, which did not actually exist. CBI in its report had further stated that they had inadvertently not included the income from the known and legal sources including loan from Banks.    With these findings CBI had requested the competent court to accept the closure report. After number of hearings in December 2012, the CBI court had accepted report of CBI and ordered for release of all documents, Bank accounts and material seized. However, very little publicity was given to this fact and today there would be many people who would still have the old impression in their mind about earlier news of huge cache of gold and cash which was very widely publicized.

Subsequently, FIRs were filed by CBI against Dr. Ketan Desai linked to various medical colleges at Kolkata, Hyderabad, Chennai and at Lucknow. Preliminary inquiries were also started by CBI in many other medical colleges. After detailed investigations, CBI had filed closure repot in all preliminary inquiries as no irregularities were found. CBI had also filed a closure report giving clean cheat to Dr. Desai in cases of FIR's filed at Kolkata, Hyderabad and in both cases at Chennai.

MCI later suspended the license of Dr. Ketan Desai on the ground of pending criminal charges including DA case which is now closed. Another question which comes is, in the Gian Sagar Medical College case, why did the MCI take action only against Dr. Ketan Desai and not against Dr. Sukhvinder Singh and Dr. Suresh Shah against whom the charges were same and were co-accused in the same FIR?

Gujarat Medical Council did not agree to the decision of the MCI and did not suspend the license of Dr. Desai and this decision of GMC was conveyed to MCI on 21st December 2010 and till now has not been challenged/disputed by the MCI.

Questions which the Government must answer

The entire above narration clearly suggests that the Government is solely responsible for this sordid saga. Several questions come to my mind. It is high time that some forthright answers should come from the Government to these questions.

1.                  When Dr. Desai was arrested and his home and office were searched, wide publicity was given to apparently false figures of huge collection of cash and Gold. However, when nothing could be found and CBI had to file closure report which was accepted by the Court, almost none or very little publicity was given. Why such a discriminatory attitude?

2.                  MCI was superseded on the pretext of arrest of its President on the allegation of showing undue favors to a private college in Punjab – i.e. Gian Sagar Medical College, Patiala. However, three inspections were later conducted independently by teams of CBI, of Central Government headed by present Health Secretary Mr. Keshav Desiraju and of Board of Governors nominated by the Central Government within time frame of 3 months. All these 3 inspection teams of CBI, Central Government and the Board of Governors came to identical conclusion that the teaching facilities and infrastructure at this institute were adequate except for the auditorium, which was not required at this stage. The Board of Governors also granted renewal of permission for admission of new batch of students. This implies that the earlier findings of MCI inspection team were correct and no irregularity was committed. In this view of facts, why was the MCI superseded in the first instance? What was the necessity of superseding MCI when there were no allegations against any other member of MCI or when there was not even an iota of evidence against any other member of MCI?

3.                  Even after the MCI was superseded, the Health Minister had repeatedly promised that it would be reconstituted soon. Such assurances were also given on the floor of Parliament. However, nothing was done by Central Government for 3 years to reconstitute the MCI. If this is not flagrant violation of promises made to public and of assurances given on the floor of parliament, what else is it?

4.                  If the present amendment bill or the ordinance is passed, the Central Government will be the final authority on each and every issue of MCI whether it relates to policy or not. Why is the Government hell bent on destroying the autonomy of MCI?

Some Important Issues

Q: Under which powers can the President of India bring an ordinance?

A: Article 123 of the Constitution enables the President of India to promulgate an ordinance if neither House of Parliament is in session and “circumstances exist, which render it necessary for him to take immediate action”.  Every ordinance has to be laid before Parliament, and ceases to exist six weeks from the end of the next sitting of Parliament.

Since the Constitution mandates that Parliament be called into session at least once every six months, ordinances have a de facto expiration period of approximately seven and a half months. Article 213 gives the same power to the Governor of a State.

Q: When were these powers instituted?

Ordinance-making power is not a new feature added to the Indian Constitution. Articles 42 and 43 of the Government of India Act, 1935, gave the same power to the Governor General.

Q: Can these powers be misused?

Hriday Nath Kunzru and Professor K.T. Shah called for restricting the executive’s power to promulgate ordinances through greater oversight by legislatures. They were, however, overruled by Dr B.R. Ambedkar, who stated that ordinance-making powers were necessary since existing law might be deficient to deal with a situation “which may suddenly and immediately arise”. According to him, the only solution was to “…confer upon the President the power to promulgate a law which will enable the executive to deal with that particular situation because it cannot resort to the ordinary process of law…” when the legislature was not in session.

Q.: What is article 123?

Central Government Act: Article 123 in the Constitution of India 1949

123. Power of President to promulgate Ordinances during recess of Parliament

(1) If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinance as the circumstances appear to him to require

(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance

(a) shall be laid before both House of Parliament and shall cease to operate at the expiration of six weeks from the reassemble of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and

(b) may be withdrawn at any time by the President Explanation Where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause

(3) If and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void CHAPTER IV THE UNION JUDICIARY

Q: Can one misuse ordinances and bring them again and again?

D.C. Wadhwa v/s State of Bihar relates to the State of Bihar promulgating and re-promulgating ordinances on a “massive scale”. Between 1967 and 1981, as many as 256 ordinances were promulgated and re-promulgated, and some of them continued to exist this way for up to 14 years.

Q.: Can the court strike down an ordinance?

The power of review over ordinances was implicitly taken one step further in 1998 in the case of Krishna Kumar Singh v/s State of Bihar, where the court struck down a number of ordinances, stating that no basis for the exercise of ordinance-making power had been shown. It stated explicitly: “There is also no explanation offered for promulgating one ordinance after another.”

Q.: What can happen to an ordinance?

After the ordinance is notified it is to be laid before Parliament within 6 weeks of its first sitting. Parliament could either choose to pass the ordinance, disapprove it or it may lapse within the
6-week time frame. In addition, the President may chose to withdraw the ordinance.

Q.: What happens to an ordinance in ordinary course?

Once an ordinance is framed, it is to be laid before Parliament within six weeks of its first sitting. Parliament is empowered to either choose to pass the ordinance as law or disapprove it or let it lapse. Once the ordinance is laid in Parliament, the Government introduces a bill addressing the same issue. This is typically accompanied by a memorandum tabled by the government, explaining the emergent circumstances that required the issue of an ordinance. Thereafter, the bill follows the regular law-making process. If Parliament does not approve the ordinance, it ceases to exist.

Q.: Is there a Supreme Court Judgment on the matter of Government repeatedly re-promulgating the Ordinances?

In the 1980s, the Supreme Court was confronted with a case where a state government repeatedly re-promulgated ordinances that had lapsed in previous assembly sessions. This led the Supreme Court to examine the ordinance-making power of Government. The Supreme Court reasserted the constitutional principle that the primary law-making power rests with the legislature and not the executive. The executive is only given the legislative power to issue an ordinance to meet an "emergent situation".

Q.: Are there examples when the ordinances have lapsed as they were not passed by the government?

In 2004, a week after the winter session ended, the government issued an ordinance to give the Pension Fund Regulatory and Development Authority statutory powers as a regulator. Due to political opposition, the ordinance lapsed and, subsequently, the bill lapsed at the end of the 14th Lok Sabha.

Supreme Court of India; Dr. D.C. Wadhwa & Ors v/s State Of Bihar &Ors on 20 December, 1986 [Equivalent citations: 1987 AIR 579, 1987 SCR (1) 798], Bhagwati, P.N, J

1.                  The State of Bihar adopted a practice of re-promulgating the ordinances on a massive scale from time to time without their provisions being enacted into acts of the legislature.

2.                  The practice was that, after the session of the State Legislature was prorogued, the same ordinances which had ceased to operate were re-promulgated containing substantially the same provisions almost in a routine manner.

3.                  The petitioners challenged the validity of this practice and in particular they challenged the constitutional validity of three different ordinances issued by the Governor of Bihar.

4.                  These Ordinances suffered the same process of re-promulgation from time to time.

HELD

1.                  The Bihar Intermediate Education Council Ordinance 1983 which is still in operation is struck down as unconstitutional and void.

2.                  The Governor cannot assume legislative function in excess of the strictly defined limits set out in the Constitution because otherwise he would be usurping a function which does not belong to him. [818F-G]

3.                  In the instant case, the executive in Bihar has almost taken over the role of the Legislature in making laws not for a limited period but for years together in disregard of the constitutional limitations. This is clearly contrary to the constitutional scheme and it must be held to be improper and invalid. It is hoped and trusted that such practice shall not be continued in the future and that whenever an Ordinance is made and the Government wishes to continue the provisions of the Ordinance in force after the assembling of the Legislature, a Bill will be brought before the Legislature for enacting those provisions into an Act. There must not be Ordinance--Raj in the country.

4.                  The power conferred on the Governor to issue Ordinances is in the nature of an emergency power which is vested in the Governor for taking immediate action where such action may become necessary at a time when the Legislature is not in session.

5.                  The primary law making authority under the Constitution is the Legislature and not the Executive but it is possible that when the Legislature is not in session, circumstances may arise which render it necessary to take immediate action and in such a case in order that public interest may not suffer by reason of the inability of the Legislature to make law to deal with the emergent situation, the Governor is vested with the power to promulgate ordinances. But every ordinance promulgated by the Governor must be placed before the Legislature and it would cease to operate at the expiration of six weeks from the reassembly of the Legislature or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the legislative Council, if any. The object of this provision is that since the power conferred on the Governor to issue Ordinances is an emergent power exercisable when the Legislature is not in session, an Ordinance promulgated by the Governor to deal with situation which requires immediate action and which cannot wait until the legislature reassembles, must necessarily have a limited life.

6.                  The power to promulgate an Ordinance is essentially a power to be used to meet an extraordinary situation and it cannot be allowed to be "perverted to serve political ends". It is contrary to all democratic norms that the Executive should have the power to make a law, but in order to meet an emergent situation, this power is conferred on the Governor and an Ordinance issued by the Governor in exercise of this power must, therefore, of necessity be limited in point of time.

7.                  That is why it is provided that the Ordinance shall cease to operate on the expiration of six weeks from the date of assembling of the Legislature. The Constitution makers expected that if the provisions of the Ordinance are to be continued in force, six weeks time should be sufficient for the Legislature to pass the necessary Act. But if within this time the Legislature does not pass such an Act, the Ordinance must come to an end.

8.                  The Executive cannot by taking resort to an emergency power exercisable by it only when the Legislature is not in session, take over the law-making function of the Legislature. That would be clearly subverting the democratic process which lies at the core of our constitutional scheme, for then the people would be governed not by the laws made by the legislature as provided in the Constitution but by laws made by the Executive.

9.                  The Government cannot by-pass the Legislature and without enacting the provisions of the Ordinance in an Act of the Legislature, re-promulgate the ordinance as soon as the Legislature is prorogued.

10.              A constitutional authority cannot do indirectly what it is not permitted to do directly.

11.              If there is a constitutional provision inhibiting the constitutional authority from doing an act, such provision cannot be allowed to be defeated by adoption of any subterfuge. That would be clearly a fraud on the constitutional provision.

12.              When the constitutional provision stipulates that an Ordinance promulgated by the Governor to meet an emergent situation shall cease to be in operation at the expiration of six weeks from the reassembly of the Legislature and the Government if it wishes the provisions of the Ordinance to be continued in force beyond the period of six weeks has to go before the Legislature which is the constitutional authority entrusted with the law making function, it would most certainly be a colourable exercise of power for the Government to ignore the Legislature and to re-promulgate the Ordinance and thus to continue to regulate the life and liberty of the citizens through Ordinance made by the Executive. Such a stratagem would be repugnant to the constitutional scheme, as it would enable the Executive to transgress its constitutional limitation in the matter of law making in an emergent situation and to covertly and indirectly arrogate to itself the law making function of the Legislation.

13.              The question is not of satisfaction of the Governor in issuing an Ordinance. The only question is whether the Governor has power to re-promulgate the same Ordinance successively without bringing it before the Legislature. That clearly the Governor cannot do. [818B-C] Bharat Singh v. Empire, AIR 1931 PC 111; Rajaram Bahadur Kamlesh Narain Singh v. Commissioner of Income Tax, AIR 1943 PC 153; Laxmidhar Misra v. Rangalal & Ors., AIR 1950 PC 59 and R.C. Cooper v. Union of India, [1970] 3 SCR 530.

14.              It is significant to note that so far as the President of India is concerned, though he has the same power of issuing an Ordinance under Article 123 as the Governor has under Article 213, there is not a single instance in which the President has, since 1950 till today, re-promulgated any Ordinance after its expiry.

15.              There must not be Ordinance--Raj in the country.