Quacks thrive as anti-quackery bill gathers dust

According to a study conducted by Association of Medical Consultants (AMC) in 2009, there are around 2.5 million quacks in India, with Mumbai having as many as 20,000 and Delhi having 40,000 quacks. Interestingly, there are 95,000 quacks in Maharashtra as against 90,000 registered doctors in the state. A survey conducted by IMA (Indian Medical Association) shows that the number of quacks in our country exceeds the number of doctors. Even if one quack causes the death of one patient in one year due to wrong diagnosis and treatment, nearly 2.5 million silent murders take place across the country. And it is not only the quacks who are giving the authorities a tough time, people well versed in one system of medicine, like ayurvedic medicine, are also practising other forms of medicine. Many ayurveda doctors in the city are openly practicing the allopathic system of medicine. Over the last year, the Medical Council of India (MCI) has registered 41 FIRs in fake medical certificate cases across the country. The MCI authorities further admit that rates of conviction under the existing anti-quackery provisions are negligible. 
 Poor health infrastructure, expensive and inaccessible private health care and the withdrawal of the welfare State combined with poverty, ignorance, mistrust of allopathy and ineffective regulation provide a rich breeding ground for the proliferation of ‘quacks’. Quacks are unqualified practitioners who falsely claim to possess a degree in medicine and prescribe drugs, licensed or unlicensed. Hidden quackery occurs in ‘doctors’ clinics that acquire legitimacy through fake degrees and registration acquired through bribery, etc. So, spurious and adulterated drugs proliferate, and licensing, accreditation and regulatory systems are subverted. Pharmacists sell their licences to unqualified persons to run chemist shops.
In Poonam Verma vs. Ashwin Patel, the Supreme Court made its famous observation: A person who does not have the knowledge of a particular system of medicine but practises in that system is a quack and a mere pretender to medical knowledge or skill, or to put it differently, a charlatan. The Court went on to observe that no person can practise a system of medicine unless he is registered either under the Central Indian Medical Register or the State Register to practise that system of medicine; and only such persons as are eligible for registration and possess recognised degrees as specified under the concerned Central and State Act may so practise. The mere fact that during the course of study some aspects of other systems of medicine were studied does not qualify such practitioners to indulge in the other systems.
In Private Medical Practitioners Association of A.P. vs. State of Andhra Pradesh, the State Government issued a notification prohibiting all unlicensed practitioners from practising medicine. The association representing the unlicensed practitioners challenged the notification in the high Court. Its contention was that they were mainly practising in rural areas and were of great help to the poor villagers. The high court, however, dismissed their petition holding that unless a person had the qualifications prescribed under one of the medical laws he did not have the right to practice medicine.
 The Drugs and Cosmetics Act, with all its provisions to regulate the manufacture, distribution and safe use of the myriad products of one of the largest industries in the country - the pharmaceutical industry - is followed only for its money-spinning licensing provisions. Even this is in a distorted form. The state drug controllers, the implementing agencies of the Act, operate only as licensers. Under the loan licensing provisions, the State Drugs Controller can license anybody to prepare and market a medicine. As a result, one can see ‘tonics’, ‘herbal medicines’ and other such substances being prepared.Under this Act, no drug shall claim to prevent or cure ‘AIDS’ and drugs may be sold or supplied by a pharmacist only on the prescription of a “registered medical practitioner.” Legal restrictions have also been imposed on advertisements, which mislead or give false impressions of a drug or make a false claim for it under the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954. The provisions of this Act specifically prohibit advertisements that claim cures, treatment or prevention of AIDS.
  India is a place where various systems of medicine are practised. The legislature however recognises five main systems, namely allopathy, ayurvedic, unani, siddha and homeopathy. In order to practice medicine, the practitioner has to have a recognised qualification from a recognised institute. In all other cases, the practice of medicine is prohibited. The law does not recognise an inherent right to practice medicine, but is subject to national and state laws.
 An interesting issue that has not come up concerns specialisations. There is no law that prevents a person who has only an MBBS (and not MD or MS) degree from practising and even setting up as a specialist in cardiology or ENT, etc. Of course, if a case of negligence is filed against the practitioner, he may be held guilty on account of holding himself out to be an expert in a subject in which he has not acquired such an expertise. But that is only if a case of negligence is filed against him. On the other hand, not having the basic recognised qualification disentitles a person altogether from practising that branch of medicine and this will not be contingent upon any case being filed against him.
 In M. Jeeva vs. R. Lalitha, the National Consumer Commission has dealt with the case of a woman running a gynaecological hospital for 40 years. The complainant gave birth to a dead child and her uterus was removed. The person running the hospital and performing procedures and administering treatment was a qualified nurse and midwife but not qualified to practice medicine. The complainant was awarded a compensation of ` 2 lakh.
 The courts have been mainly concerned with cross practice and of certain non recognised systems of medicine. Cross practice has not largely been allowed though there are certain exceptions. Similarly, uniformly the courts have come down heavily against unrecognised degrees or qualifications granted by unrecognised institutions.
The courts have also refused to recognise other systems of medicine such as electropathy, etc. Every medical practitioner has a “right to treat” and every patient has a right to say: “treat me, treat me well.” That depends on one’s qualification, knowledge, skill and experience. A degree for qualification is no guarantee of knowledge or skill.
For years, India has been known as a “warehouse for kidneys” or a “great organ bazaar” and has become one of the largest centres for kidney transplants in the world, offering low costs and almost immediate availability.  Amit Kumar, the kingpin of the multi-million-rupee kidney racket busted in 2008 in Gurgaon, too was a quack. According to the police, Amit and other quacks in his group had performed at least 600 illicit kidney transplants over the past decade for profits running into billions of rupees. The organ trade has been fuelled by poverty; poverty drives people to fall into the trap set by unscrupulous elements who lure them with offers of money and jobs in exchange for a kidney. At the same time, voluntary donation of human organs is not properly promoted or utilised because of poor hospital infrastructures, inefficient transportation systems for the timely revival of organs, and a shortage of cadaveric transplant surgeons. Because of the shortage of cadaver donors, doctors, donors and patients waiting for transplants collude in illegal practices.
 The Transplantation of Human Organs Act, 1994 regulates the removal, storage and transplantation of human organs for therapeutic purposes and prohibits commercial trade in human organs. Despite a regulatory framework, cases of commercial dealings in human organs were reported in the media. In 2004, the Delhi High Court issued orders to constitute a committee to review the efficacy, relevance and impact of the legal provisions contained in the 1994 Act. The committee submitted its report on May 25, 2005. Taking into consideration this report and the Draft Guiding Principles of Organ Transplantation of the World Health Organisation, the Transplantation of Human Organs (Amendment) Bill, 2009 was introduced. The Act permits donations from living persons who are near relatives. The Bill expands the definition of “near relative” to include grandparents and grandchildren in addition to parents, children, brother, sister and spouse. Any commercial trade in human organs is prohibited. The 2009 Bill: (a) includes donation of tissues; (b) makes it mandatory for a doctor in an Intensive Care Unit (ICU) to ascertain if a patient wants to donate organs; (c) allows organ swapping; and (d) enhances penalties.

 CONCLUSION 
There is an urgent need to pass the first comprehensive anti-quackery legislation prepared way back in 2003. The draft bill, which since then has been gathering dust in the health ministry, proposes to cover all three forms of medicine in India – allopathy; homeopathy and ayurveda – and recommends exemplary punishment. The Medical Council of India has  proposed stringent punishment under the draft bill. Anyone found committing the first offence would be charged a fine of `1 lakh and sentenced to a rigorous imprisonment of one year. On the second offence, the fine should be raised to ` 5 lakh and the rigorous imprisonment to 3 years or both. Also, MCI has recommended similarity in the treatment of quackery cases irrespective of the system of medicine involved.

The writer is an expert in gender, health and human rights issues.

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