The legal rights of a patient by Raghav Arora

1. LEGAL RIGHTS OF THE PATIENT -RAGHAV ARORA

2. WHY PATIENT RIGHTS?? Health is a subject closer to everybody’s heart. Improvement of one’s health and health of one’s family is a universal aspiration. However health has been always given a low priority status in the nation’s political and social agenda. With the increasing privatization of the health care services in the country, the state is slowly abdicating its responsibility to provide health care to the people. Medical profession contributes to the healthcare to the extent of only 25-30%. Approximately 70% input in the health care is by various sectors like the pharmaceutical industry, hospitals, blood banks etc. This 70% inputs are mostly managed on a commercial basis and therefore patient as a consumer must have certain rights. These rights of a patient as a consumer are more important than the rights of a general consumer because patient usually has very little choice in the treatment.

3. WHAT ARE PATIENTS RIGHTS? Patients rights emanate from human rights, constitutional rights, civil rights, consumer rights, codes of ethics of medical and nursing profession. The Indian Constitution bestows certain rights on the citizens. One of them is Right to life. Right to a healthy life is an integral part of the Right to life. Basic optimal health care is the right of every Indian citizen and it is the responsibility of the state to provide it. The Government in the country has legislated certain laws to protect the citizens. Some of these are, The Drugs and Cosmetics Act, The Medical Council Act and The Consumer Protection Act. The codes of ethics of medical and nursing councils define the duties of the doctors and nurses towards the patients. Thus these duties form the basis of patient’s rights.

4. RIGHTS OF THE PATIENT Right to considerate and respectful care. Right to information on diagnosis, treatment and medicines. Right to obtain all the relevant information about the professionals involved in the patient care. Right to expect that all the communications and records pertaining to his/her case be treated as confidential Right to every consideration of his/her privacy concerning his/her medical care programme.

5. Right to expect prompt treatment in an emergency Right to refuse to participate in human experimentation, research, project affecting his/her care or treatment. Right to get copies of medical records Right to know what hospital rules and regulations apply to him/her as a patient and the facilities obtainable to the patient. Right to get details of the bill. Right to seek second opinion about his/her disease, treatment,etc.

6. WHAT PRECAUTIONS SHOULD PATIENTS TAKE TO PROTECT THEIR RIGHTS? In case of surgical treatment or invasive investigations and procedures, patient should ensure that he/she has understood the nature of the operation. Patient has the right to know the details of the surgery as well as the details like the expected time of post-operative recovery, expenses likely to be incurred for the surgery, the risks involved, whether there is any non-surgical treatment for your ailment etc. Patient should understand the consent form before he/she signs. The consent form should be in patient’s mother tongue or the language known to you. At the time of discharge, patient should take copies of all the relevant records. As per the decision of the Bombay High Court (RaghunathRaheja v/s Maharashtra Medical Council), every patient or his legal heirs have the right to get the copies of all the case papers on payment of relevant charges. At the time of discharge from the hospital, make sure that patient recieves the bills for all the payments made. Patient has the right to get details of the bill like details of drugs administered to him/her, the details of investigations etc.

7. In case of any treatment, patient has the right to ask for a second opinion. However, the second opinion should be taken ONLY with the consent of your physician. If patient has any doubts about the treatment he/she should request the doctor to clarify them. Doctor-Patient communication is of vital importance for the success of any treatment. Make sure that the doctor has given patient all the instructions for the medicines prescribed. Patient has the right to get all the relevant information about the drugs prescribed. In case of invasive/costly investigations, patient has the right to know of the alternatives as well as the necessity of the investigations.

8. As a patient, there is right to take second opinion and/or change the doctor. However, this right should be exercised very judiciously and cautiously. ‘Doctor Shopping is not in the interest of consumers and can cause serious harm due to irregular treatment. Always preserve all the bills of the purchase of medicines. If patient has any complaints about the treatment/investigations/drugs etc., first approach the concerned doctor/hospital. Many times the complaints are due to misunderstanding and failure in communication. These can be resolved at the local level. Many hospitals have their own patient redressal cell. You must first approach such Patient Redressal Cell. Patient’s grievance giving all the relevant details in a sequential format and take the advice of a Consumer Organisation in his/her area before taking any legal action. Remember that most of the times the complaints can be resolved at the hospital level.

9. In case of substandard drugs, preserve the drug packages with labels/cartons/boxes etc. The complaints about the drugs have to be lodged with the local Food and Drugs Administration. If patients are participating in any trial for drugs/therapeutic devise/treatment protocol, patient has the right to refuse to participate in the trial. Patient should understand all the details like duration, risks involved, the expected complications etc. Make sure that the doctor/hospital conducting the trial has agreed to treat completely any complication arising out of the trial, free of cost. Make sure that the consent form includes all the details. As a patient you have to expect the medical record pertaining to your illness be treated as confidential. If the details are to be used in a medical conference, make sure that your consent has been obtained by the doctor/hospital. In case of HIV positive patients, the details can only be disclosed with the patient’s permission. Patient has to be vigilant to see the HIV reports are not disclosed to the employers/friends/other unauthorized persons.

10. RIGHTS OF PATIENTS OF BREAST CANCER

11. While examining a female patient, a male doctor should always call for a female nurse/attendant to be present. If no such provision has been made by him, patient has a right to refuse being examined by him, till he calls for a female nurse/attendant or any of your female acquaintances to be present. The above rule also applies for a radiologist while he administers chemotherapy to you or performs any test. Patient has a right to treatment and medical services without discrimination based on race, age, religion, national origin, sex, sexual preferences, handicap, and diagnosis, ability to pay or source of payment. To receive the services of translator or interpreter to facilitate communication between patient and the hospital’s health care personnel. To give written consent prior to the start of specified non-emergency procedures or treatments, only after a physician has explained in terms that patient understands the specific details about the recommended procedure or treatment, the risks involved, the possible duration of incapacitation, and any reasonable medical alternatives for care and treatment.

12. To refuse for medication, after analysing the possible consequences of this decision, except in life-threatening situations and instances when medication or treatment is required by law. To be only included in experimental research only when you give informed, written consent to such participation, or when a guardian provides such consent for an incompetent patient in accordance with law and regulation. To be informed of the hospital’s policies and procedures regarding life-saving methods and the use or withdrawal of life-support mechanisms. To receive sufficient time before discharge to have arrangements made for health care needs after hospitalization. To be transferred to another facility only for one of the following reasons, with the reason recorded in the patient’s medical record:a) The transferring hospital is unable to provide the type or level of medical care appropriate for the your needs. orb) The transfer is requested by you, or by the patient’s next of kin or guardian when the patient is mentally incapacitated or incompetent.

13. To with courtesy, consideration, and respect for your dignity and individuality. To freedom from physical and mental abuse. To with courtesy, consideration, and respect for your dignity and individuality. To freedom from physical and mental abuse. To freedom from restraints, unless they are authorized by a physician for a limited period of time to protect you or others from injury. To have physical privacy during medical treatment and personal hygiene functions, such as bathing and using the toilet, unless you need assistance for your own safety.

14. RIGHTS OF PATIENTS OF HIV/AIDS

15. Three of the most important rights in the HIV scenario include: Right to Informed Consent The implications of HIV are very different from most other illnesses. Testing for HIV requires specific and informed consent of the person being tested and any research on data of HIV positive people. Right to Confidentiality A person has the right to keep information on HIV status confidential. People with HIV are often afraid to go to court to vindicate their rights for fear of their HIV status becoming public knowledge. However, they can take the help of Suppression of Identity under a pseudonym. This ensures that PLHA can seek justice without fear of social ostracism or discrimination. Right against Discrimination The right to be treated equally is a fundamental right whether it’s something as simple as using a public well or something more serious like denial of housing.

16. Efforts by the Indian Government Though all patients are sought to be treated equally in the eyes of law, cancer patients receive special consideration while travelling as laid down by the Indian Railways. Railways provide 100 per cent concession to cancer patients in sleeper and 3-AC classes. In 2-AC and 1-AC they enjoy 50 per cent concession. A matching concession is also extended to their escorts. There also exists a special quota on a lot of trains for cancer patients. The accommodation can be provided from general quota, if vacant at the time of booking, or from the cancer patient’s quota if available or from emergency quota of that class, to the extent available. On confirmation patients and their attendants are issued tickets from general waiting list. However, this facility is not available under tatkal scheme. Further in order to avail the scheme you must have a certificate issued by officer-in-charge of the concerned recognised hospital ready for reference at the time of booking.

17. Medical Malpractice and Legal Recourse in India In India medical malpractice is defined to be an act of negligence committed by a medical provider, who is generally a physician in most situations. The law attributes it to be doing something a medical provider of ordinary skill would not have done, or failing to do that which a medical provider of ordinary skill would have done. The basic 3 components that can be attributed to medical negligence can be said to include: The existence of a duty to take care, which is owed by the defendant (doctor) to the complainant (patient). The failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty and Damage, which is both causally, connected with such breach and recognized by the law.

18. It is an acceptable position of law that if anyone (or more) of the above elements is missing, then there cannot be a valid cause of action for medical malpractice. The India the laws provide for various instances where an individual may be subject to one of the various forms of medical malpractice whenever he or she seeks the care of a medical provider. Malpractice can be constituted by something as simple as failing to put the rails of a hospital bed in the upright position, to something as complex as improperly performing open heart surgery. A related issue in these cases is whether a patient has provided informed consent (discussed above) to a particular treatment. Under Indian law, action can be brought against doctors for medical malpractice both before the consumer courts and also before the criminal courts of the country. The Consumer Protection Act of the country clearly lays down that the services rendered to patient by a medical practitioner (except where the service is free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medical and surgical, would fall within the ambit of services dealt by the Act and hence in case of any malpractice, action can be brought by the patient against the doctor before the Consumer Courts of the land.

19. AVENUES FOR REDRESSAL OF PATIENTS COMPLAINTS MEDICAL COUNCILS: Medical Councils are statutory bodies created by an Act of the Parliament/legislature to monitor/govern the medical profession. The council has only ethical jurisdiction. The council cannot give compensation to the complainant or punish the doctors. The only punishment the councils are empowered to give is to cancel the registration either temporarily or permanently. The complainant has to file the complaint with the registrar of the Council and file a specific declaration as per the prescribed format. The council’s executive committee holds the preliminary hearing to find out the prima facie veracity of the complaint. At this meeting only the complainant and the doctor against whom the complaint is filed are allowed to present their sides. Lawyers are not allowed to be present. If the executive committee finds prima facie truth in the complaint, then the full council hears the case. The council meets only twice in a year. Therefore the complaints are not resolved speedily. Also the preliminary hearing is heavily weighed against the complaint who is usually a non medical person. Therefore councils have been very ineffective in resolving the complaints of consumers of healthcare.

20. CONSUMER COURTS: The complaints against the medical profession can be filed in the consumer courts. The complaint should be written on a simple paper giving all the details and the compensation demanded. These courts can only give compensation. Following are the monetary limits of compensation that can be granted by the consumer courts District Consumer Court Up to Rs 20 lakh State Commission Rs 20 Lakhs to Rs 1 Crore National Commission Above Rs 1 crore

21. CIVIL COURTS: The redressal of the patient’s complaints through the civil courts is lengthy, time consuming and many times counterproductive. There is a tremendous backlog of cases and the cases take anywhere between 10 to 15 years to complete. CRIMINAL COURTS: The redressal of the complaints under criminal law is not very common and recourse to this method should be taken only in exceptional cases.

22. RESPONSIBILITIES OF PATIENTS: To faithfully undergo the agreed therapy. To follow the doctors instructions diligently. To take necessary preventive measures in case of infectious diseases as per the doctors instructions. To be aware that doctors and nurses are also human beings and are amenable to mistakes and lapses. To make the payment for the treatment, wherever applicable, to the doctors/hospital promptly.

23. To respect the autonomy of the doctors and nurses. To treat doctors and nurses with respect. To be punctual to attend the clinics/hospital/dispensary for the treatment at the given time. To preserve all the records of one’s illness. To keep the doctor informed if the patient wants to change the hospital/doctor.