Consumer Protection Consumer Protection Act, 1986Act, 1986

Aims Of CPA, 1986Aims Of CPA, 1986

This Act aims to provide better This Act aims to provide better protection to the interests of the protection to the interests of the consumersconsumers

To make provisions for the To make provisions for the establishment of consumer councils and establishment of consumer councils and other authorities to provide speedy and other authorities to provide speedy and cheap remedy to the consumers. cheap remedy to the consumers.

It safeguards the rights of consumersIt safeguards the rights of consumers..

TERMS AND TERMINOLOGY TERMS AND TERMINOLOGY USED IN CPA, 1986USED IN CPA, 1986

Complaint:Complaint: An allegation shall constitute An allegation shall constitute a complaint where the goods or services a complaint where the goods or services mentioned in the complaint suffer from mentioned in the complaint suffer from deficiency in any regard.deficiency in any regard.

Complainant: Complainant: Any consumer or voluntary Any consumer or voluntary consumer association registered under consumer association registered under the Companies act, 1956; or under any the Companies act, 1956; or under any other law for the time being in force; the other law for the time being in force; the central or state government central or state government

Consumer:Consumer: Any person who buys any Any person who buys any goods or avails of any service, for a goods or avails of any service, for a consideration which has been paid or consideration which has been paid or promised to be paid; either fully or promised to be paid; either fully or partially or in some form of deferred partially or in some form of deferred payment.payment.

Consideration:Consideration: Refers to fees or Refers to fees or payment paid to the doctor/hospital. payment paid to the doctor/hospital. This may be paid; either by the This may be paid; either by the patient or guardian any other person patient or guardian any other person on behalf of patient; and in case of on behalf of patient; and in case of death of a patient; his legal heir death of a patient; his legal heir

becomes the consumer.becomes the consumer.

Service: Service: “ means service of any “ means service of any description such as banking, financing, description such as banking, financing, insurance, transport, processing, supply insurance, transport, processing, supply of electrical or other energy board or of electrical or other energy board or lodging, entertainment, Amusement lodging, entertainment, Amusement or purveying of news or other or purveying of news or other information; but does not include the information; but does not include the rendering of any service free of charge rendering of any service free of charge or under contract of perosnal service.”or under contract of perosnal service.”

Consumer Dispute: Consumer Dispute: A dispute where a person A dispute where a person against whom a complaint has been made against whom a complaint has been made denies the allegation.denies the allegation.

Medical negligence: Medical negligence: Medical is falling short of Medical is falling short of reasonable medical care.reasonable medical care.

Defect: Defect: any fault, imperfection or shortcoming any fault, imperfection or shortcoming in the quality, quantity, potency, purity or in the quality, quantity, potency, purity or standard which is required to be maintained by standard which is required to be maintained by or under any law for the time being in force.or under any law for the time being in force.

Deficiency: Deficiency: Any fault, imperfection, Any fault, imperfection, shortcoming, or inadequacy in the shortcoming, or inadequacy in the quality, nature and manner of quality, nature and manner of performance which is required to be performance which is required to be maintained by or under any law for maintained by or under any law for the time being in force; or has been the time being in force; or has been undertaken to be performed by a undertaken to be performed by a person in pursuance of a contractperson in pursuance of a contract..

Consumer Protection CouncilsConsumer Protection Councils

Under the Act, consumer protection Under the Act, consumer protection councils have been established at councils have been established at central and state level.central and state level.

Central consumer protection councils Central consumer protection councils consists of 150 members, is chaired by consists of 150 members, is chaired by the minister incharge of food and civil the minister incharge of food and civil supplies in centre and must meet at supplies in centre and must meet at least thrice in a year: at such place and least thrice in a year: at such place and time as the chairman may think fit.time as the chairman may think fit.

State Consumer protection council is State Consumer protection council is chaired by Minister incharge of chaired by Minister incharge of Consumer Affairs or Food and civil Consumer Affairs or Food and civil supplies. The numbers of members in supplies. The numbers of members in the state council varies from state to the state council varies from state to state and it meets at least twice in a state and it meets at least twice in a year.year.

Consumer Dispute Consumer Dispute Redressal Agencies Redressal Agencies

Under the Act envisages setting up Under the Act envisages setting up a three tier quasi judicial redressal a three tier quasi judicial redressal

mechanism:mechanism: District forum: District forum: This is established by This is established by

State Government with at least one State Government with at least one forum in each district. Each forum consist forum in each district. Each forum consist of 3 members: of 3 members:

(a)(a)A person who has been, or is qualified to A person who has been, or is qualified to be a District Judge as the President.be a District Judge as the President.

(b)(b)A person of eminence in field of A person of eminence in field of education, trade or commerce.education, trade or commerce.

(c)(c)A lady social worker, each of whom hold A lady social worker, each of whom hold office office

for a term of five years or upto 65 years for a term of five years or upto 65 years of age .of age .

The pecuniary jurisdiction of this is up The pecuniary jurisdiction of this is up to Rs. 5 lakhs. Its territorial jurisdiction to Rs. 5 lakhs. Its territorial jurisdiction extends throughout the local limits of the extends throughout the local limits of the district. district.

Any person aggrieved by an order passed Any person aggrieved by an order passed by district forum may appeal to State by district forum may appeal to State Commissions within 30 days from date of Commissions within 30 days from date of issue of order. issue of order.

State Commission:State Commission: It is at the level of state and compromise It is at the level of state and compromise

of following members:of following members:

(a)(a) A person who is or has been a judge of A person who is or has been a judge of a High court shall be the president.a High court shall be the president.

(b) Two others members who shall be (b) Two others members who shall be persons of ability, integrity and standing persons of ability, integrity and standing and have adequate knowledge, or and have adequate knowledge, or experience of, or have shown capacity in experience of, or have shown capacity in dealing with problems relating to dealing with problems relating to economics, law, commerce, accountancy, economics, law, commerce, accountancy, industry, public affairs or administration; industry, public affairs or administration; one of whom has to be a woman. one of whom has to be a woman.

State Commissions has jurisdiction to State Commissions has jurisdiction to entertain complaints where value of entertain complaints where value of goods/services exceeds 5 lakhs rupees goods/services exceeds 5 lakhs rupees but is less than Rs. 20 lakhs.but is less than Rs. 20 lakhs.

Appeals against the orders of any District Appeals against the orders of any District Forum in the state.Forum in the state.

To call for case records of district forum To call for case records of district forum and pass appropriate orders in any and pass appropriate orders in any consumer dispute pending before or consumer dispute pending before or decided by district forum. decided by district forum.

Any person aggrieved by an order made Any person aggrieved by an order made by state commission may appeal to by state commission may appeal to National commission within 30 days.National commission within 30 days.

National CommissionNational Commission It is situated at New Delhi and consists of 5 It is situated at New Delhi and consists of 5

members as follows:members as follows:

(a)(a)A person who is or has been a judge of A person who is or has been a judge of supreme court shall be the president.supreme court shall be the president.

(b)(b)Four other members who shall be persons Four other members who shall be persons of ability, Integrity and standing and have of ability, Integrity and standing and have knowledge or experience of, or have shown knowledge or experience of, or have shown capacity in dealing with problems relating capacity in dealing with problems relating to economics, law, commerce, to economics, law, commerce, accountancy, industry, public affairs or accountancy, industry, public affairs or administration, of which has to be a administration, of which has to be a woman.woman.

Jurisdiction is to entertain complaints Jurisdiction is to entertain complaints where the value of goods/services and the where the value of goods/services and the compensation claimed is more than 20 compensation claimed is more than 20 lakhs. Appeals against the orders of any lakhs. Appeals against the orders of any state commissions; to call for the case state commissions; to call for the case records and pass appropriate orders in any records and pass appropriate orders in any consumer dispute which is pending/has consumer dispute which is pending/has been decided by any state commissions.been decided by any state commissions.

Any persons aggrieved by any order made Any persons aggrieved by any order made by National Commission may appeal to by National Commission may appeal to supreme court within 30 days of date of supreme court within 30 days of date of order.order.

Other salient featuresOther salient features Limitation period: Limitation period: The various redressal The various redressal

agencies shall not admit a complaint , unless agencies shall not admit a complaint , unless it is filed within 2 years from the date on it is filed within 2 years from the date on which the cause of action has arisen. It can which the cause of action has arisen. It can be entertained even after 2 years provided be entertained even after 2 years provided there is sufficient cause for the same.there is sufficient cause for the same.

Appeals:Appeals: Appeals will be entertained by both Appeals will be entertained by both State and National and also supreme courts State and National and also supreme courts even after the expiry date of thirty days, if it even after the expiry date of thirty days, if it is satisfied that there was sufficient cause is satisfied that there was sufficient cause for not filling within that period.for not filling within that period.

Dismissal of frivolous or vexatious Dismissal of frivolous or vexatious complaints: complaints: where a complaint before any where a complaint before any of the fora/ commissions is found to be of the fora/ commissions is found to be frivolous; it shall dismiss the complaint frivolous; it shall dismiss the complaint (reason to be recorded in writing) and (reason to be recorded in writing) and pass an order that complainant should pass an order that complainant should shall pay to opposite party such as cost, shall pay to opposite party such as cost, not exceeding an amount of Rs. 10,000.not exceeding an amount of Rs. 10,000.

Penalties: Penalties: a party or person failing to a party or person failing to comply with any order made by District comply with any order made by District Forum, state or National commissions, Forum, state or National commissions, shall be punishable :shall be punishable :

(a) With imprisonment for a term more (a) With imprisonment for a term more than month up to three years. than month up to three years.

(b) With fine not less than Rs. 2,000 to Rs. (b) With fine not less than Rs. 2,000 to Rs. 10,000.10,000.

Enforcement of orders:Enforcement of orders: every order made every order made by these three agencies may be enforced by these three agencies may be enforced by these as the case may be, in the same by these as the case may be, in the same manner as if it were a decree by the manner as if it were a decree by the corresponding civil court. In the event of corresponding civil court. In the event of its inability to execute its own orders, it its inability to execute its own orders, it should send such orders to the should send such orders to the corresponding court within the local corresponding court within the local limits of jurisdiction. Thereafter, the civil limits of jurisdiction. Thereafter, the civil courts shall execute the order, as if it was courts shall execute the order, as if it was a decree or order sent for execution.a decree or order sent for execution.

Implications in hospitalImplications in hospital

Application of Consumer Application of Consumer Protection Act In HospitalsProtection Act In Hospitals

As far as hospitals are concerned, As far as hospitals are concerned, the private hospitals or nursing the private hospitals or nursing homes or polyclinics which charge for homes or polyclinics which charge for the services provided, have been the services provided, have been included under the ambit of the Act.included under the ambit of the Act.

However government run or aided However government run or aided hospital have been exempted as hospital have been exempted as they do not charge the patients for they do not charge the patients for services provided.services provided.

Recent judgement of supreme Recent judgement of supreme courtcourt

A landmark judgement was delivered by the A landmark judgement was delivered by the Hon’ble supreme court in 1996,wherein the Hon’ble supreme court in 1996,wherein the following decisions were taken:following decisions were taken:

(a) Service rendered to a patient by a medical (a) Service rendered to a patient by a medical practitioner (except where the doctor gives practitioner (except where the doctor gives service, free of charge to every patient) by service, free of charge to every patient) by way of consultation, diagnosis or treatment way of consultation, diagnosis or treatment (both medical and surgical) will fall within the (both medical and surgical) will fall within the ambit of service. ambit of service.

The fact that medical practitioners belong The fact that medical practitioners belong to a profession and are regulated by to a profession and are regulated by Medical Council Of India, does not exclude Medical Council Of India, does not exclude them from this act.them from this act.

Service rendered at a non government Service rendered at a non government hospital/ nursing home where no charges hospital/ nursing home where no charges are taken from any person availing the are taken from any person availing the same and all patients (both rich and poor) same and all patients (both rich and poor) are treated free, will be outside the are treated free, will be outside the purview of service. Payment of a “token” purview of service. Payment of a “token” amount for registration purpose only will amount for registration purpose only will not alter the position.not alter the position.

Service rendered at a non goverenment Service rendered at a non goverenment hospital/nursing home where the charges hospital/nursing home where the charges are paid by those persons who are availing are paid by those persons who are availing the facilities and are able to pay and other the facilities and are able to pay and other poor patients are treated free of cost shall poor patients are treated free of cost shall also treated as ‘service’. Recipient of also treated as ‘service’. Recipient of “free” service would also be a consumer.“free” service would also be a consumer.

As regards government hospitals: those As regards government hospitals: those hospitals where no charge whatsoever is hospitals where no charge whatsoever is taken from any patient; rich or poor falls taken from any patient; rich or poor falls outside the purview of Act. Charging of a outside the purview of Act. Charging of a “token” amount for registration purposes “token” amount for registration purposes only will not alter the position. However, only will not alter the position. However, services rendered at services rendered at

government hospitals/dispensaries where government hospitals/dispensaries where some payment is taken from patients some payment is taken from patients who can pay and poor patients are who can pay and poor patients are treated free will also fall within the treated free will also fall within the purview of the Act.purview of the Act.

Service rendered by a medical Service rendered by a medical practitioner or hospital or nursing home practitioner or hospital or nursing home cannot be regarded as free of charge, if cannot be regarded as free of charge, if the person availing service has taken an the person availing service has taken an insurance policy for medical care, where insurance policy for medical care, where the charges for consultation, diagnosis the charges for consultation, diagnosis and treatment are borne by insurance and treatment are borne by insurance company.company.

In those cases where as a part of the In those cases where as a part of the condition of service, the employer condition of service, the employer bears the expenses of medical bears the expenses of medical treatment of an employee and treatment of an employee and his/her dependent members, this his/her dependent members, this would constitute “service” as per the would constitute “service” as per the act and could not be considered as act and could not be considered as being free of charge.being free of charge.

Implications For Health Implications For Health ProfessionalsProfessionals

The doctor patient relationship is a The doctor patient relationship is a “contract” under which the doctor must “contract” under which the doctor must continue to provide “reasonable” care as continue to provide “reasonable” care as long as the patient is being treated by long as the patient is being treated by him/her. There are some high risk which him/her. There are some high risk which need caution:need caution:

(a)(a)Failure to attend to patients: Especially Failure to attend to patients: Especially children with acute conditions.children with acute conditions.

(b)(b)Retention of objects in operation sites: Retention of objects in operation sites: Swabs, packs, instruments can be left behind Swabs, packs, instruments can be left behind if proper counting and retrieval is not done.if proper counting and retrieval is not done.

(c) Amputation of wrong limb or digit, (c) Amputation of wrong limb or digit, extraction of wrong eye or tooth: The extraction of wrong eye or tooth: The reasons are carelessness in hospital reasons are carelessness in hospital notes, errors in pre-operative skin notes, errors in pre-operative skin marking and failure to check the name marking and failure to check the name of patient in OT.of patient in OT.

(d) Therapeutic Hazards: These can be (d) Therapeutic Hazards: These can be avoided by administration of the right avoided by administration of the right drug in the right dose via the right drug in the right dose via the right route and informing patient/attendants route and informing patient/attendants of potential risk of treatment.of potential risk of treatment.

(e)Medical Case Records: It is extremely (e)Medical Case Records: It is extremely important to fill up the case sheets carefully important to fill up the case sheets carefully and properly; as these can be produced in and properly; as these can be produced in courts as evidence. In complicated cases, courts as evidence. In complicated cases, negative findings should be mentioned.negative findings should be mentioned.

(f) Consultations And referrals: These should (f) Consultations And referrals: These should be done in writing wherever required.be done in writing wherever required.

(g) Channels of communications: it has often (g) Channels of communications: it has often been found that lack or improper been found that lack or improper communication regarding patient communication regarding patient health/illness, leads to litigations. Hence, it health/illness, leads to litigations. Hence, it is important that patient or attendants is important that patient or attendants should be informed about the diagnosis, should be informed about the diagnosis, treatment and prognosis in treatment and prognosis in

Simple and understandable language.Simple and understandable language.

(h) Prescription of non (h) Prescription of non specific/Ayurvedic preparation: It is specific/Ayurvedic preparation: It is advisable not to prescribe non advisable not to prescribe non specific or Ayurvedic preparation; as specific or Ayurvedic preparation; as the knowledge regarding the knowledge regarding constituents is not known. constituents is not known.

How to avoid litigation?How to avoid litigation?

Preventive MeasuresPreventive Measures

PREVENTION AT PERSONAL PREVENTION AT PERSONAL LEVELLEVEL

1. True and M.C.I. approved qualification, 1. True and M.C.I. approved qualification, training & experience of recognized centers training & experience of recognized centers are the primary safeguards against any are the primary safeguards against any litigation. The prescription heads, signboards litigation. The prescription heads, signboards and advertisements should mention the and advertisements should mention the actual facilities available. We should refrain actual facilities available. We should refrain from claims of guarantee of results.from claims of guarantee of results.

2. Communication: This is the key to doctor-2. Communication: This is the key to doctor-patient relationship. Increasing crowds of patient relationship. Increasing crowds of patients and improper communication topatients and improper communication to

patient about diagnostics and treatment patient about diagnostics and treatment procedures, complications and claims of procedures, complications and claims of guarantee success are main reasons for guarantee success are main reasons for patient dissatisfaction.patient dissatisfaction.

Interpersonal behaviour: The human face of Interpersonal behaviour: The human face of medical care decides the patient's medical care decides the patient's /attendant's reaction towards on medical /attendant's reaction towards on medical mishap/untoward reaction. The whole mishap/untoward reaction. The whole system of medical establishment should system of medical establishment should made courteous, and polite. The special made courteous, and polite. The special training should be imported to staffs from training should be imported to staffs from HRD experts about dealing with HRD experts about dealing with patients/relatives under grievous mental patients/relatives under grievous mental stress due to some loss/injury.stress due to some loss/injury.

Academic & technical up gradation: To keep Academic & technical up gradation: To keep pace with fast changing scenario of technical pace with fast changing scenario of technical advancement, one should regularly attend advancement, one should regularly attend CMEs, workshops and other academic sessions CMEs, workshops and other academic sessions should also be organized to upgrade our junior should also be organized to upgrade our junior staff and nursing team.staff and nursing team.

Medical ethics laws: A through knowledge of Medical ethics laws: A through knowledge of medical ethics and laws is essential for all medical ethics and laws is essential for all medical professionals. Unless we know about medical professionals. Unless we know about something we can't improve/correct our practice something we can't improve/correct our practice standards so We should always try to get standards so We should always try to get feedback from our patients about our setup, our feedback from our patients about our setup, our staff, charges etc.staff, charges etc.

PREVENTION AT PRACTICEPREVENTION AT PRACTICE The reasonable skill & care: The reasonable skill & care: There are 3 aspects of reasonable There are 3 aspects of reasonable

skill and careskill and care1. Medical Aspect: First and foremost it is imperative for every 1. Medical Aspect: First and foremost it is imperative for every doctor/hospital/nursing home to exercise reasonable skill and care doctor/hospital/nursing home to exercise reasonable skill and care expected of an average person with equivalent qualification and expected of an average person with equivalent qualification and experience in similar circumstances.experience in similar circumstances.

2. Social 2. Social Aspect: Aspect: We should always exhibit our reasonable skill We should always exhibit our reasonable skill and care to the patient/ attendants/relatives, through expressions, and care to the patient/ attendants/relatives, through expressions, body body

language, actions and discussions. These must language, actions and discussions. These must be visibly palpable. We may be very sincere but be visibly palpable. We may be very sincere but failure to exhibit these gestures may lead to failure to exhibit these gestures may lead to doubts in the mind of patients and their doubts in the mind of patients and their relatives.relatives.

(3) Legal Aspects: This includes documentation (3) Legal Aspects: This includes documentation about exercising reasonable skill and care in about exercising reasonable skill and care in consultation, diagnosis and treatment.consultation, diagnosis and treatment.This can be done by making good clinical notes This can be done by making good clinical notes of findings on examination and treatment given.of findings on examination and treatment given.

(4) Proper Documentation:(4) Proper Documentation: Please make sure Please make sure that handwriting is legible.that handwriting is legible.

PREVENTION BY PREVENTION BY PROFESSIONAL INDEMNITYPROFESSIONAL INDEMNITY

Insurance cover: Insurance cover: Profession indemnity insurance is a Profession indemnity insurance is a tool which not only meets the claim of compensation tool which not only meets the claim of compensation awarded against doctor/hospital but also gives a sense awarded against doctor/hospital but also gives a sense of mental security that even if same negligence is of mental security that even if same negligence is proved the insurance company will take care of it.proved the insurance company will take care of it.

• Please clarify in detail about different individual Please clarify in detail about different individual premium rates of insurance in case of insurance, premium rates of insurance in case of insurance, Doctor/nursing home/hospital with qualified staff and Doctor/nursing home/hospital with qualified staff and unqualified but trained staff because at time of paying unqualified but trained staff because at time of paying compensation therecompensation there

are many such enquiries are made by are many such enquiries are made by insurance company.insurance company.

The insurance companies not only pay The insurance companies not only pay the compensation to other party but also the compensation to other party but also arrange for the legal help from advocates arrange for the legal help from advocates because they some time join hand with because they some time join hand with other party for monetary gains with an other party for monetary gains with an excuse that it’s the insurance not the excuse that it’s the insurance not the doctor who is to pay the compensation.doctor who is to pay the compensation.

GENERAL GUIDELINES FOR GENERAL GUIDELINES FOR LEGAL DEFENSELEGAL DEFENSE

Not defending yourself and hospital is Not defending yourself and hospital is negligence. We should always make all negligence. We should always make all possible points in defense in first instance possible points in defense in first instance of making a reply to the complainant. of making a reply to the complainant. Subsequent points during hearing of the Subsequent points during hearing of the case are liable to be rejected.case are liable to be rejected.

(a) TECHNICAL DEFENSES:(a) TECHNICAL DEFENSES: The medical service rendered was free of The medical service rendered was free of

charge (now, this is applicable in charge (now, this is applicable in certain situations only). certain situations only).

The complaints frivolous and vexatious and liable to be dismissed under section 26 of the Act. Inform your insurance company in writing with a copy of the complaint. Complaint is time-barred. Complaint is time-barred.

FACTUAL DEFENSESFACTUAL DEFENSES Mention your qualifications, training, Mention your qualifications, training,

experience, expertise etc. Support with experience, expertise etc. Support with relevant documents. relevant documents.

Mention hospitals infrastructure facilities, Mention hospitals infrastructure facilities, special facilities, back-up support, it with special facilities, back-up support, it with documents. documents.

Complainant has not come to the court with Complainant has not come to the court with clean hands i.e. he has suppressed material clean hands i.e. he has suppressed material facts, e.g. previous illness, treatment etc. facts, e.g. previous illness, treatment etc.

Inconsistence between notices sent directly Inconsistence between notices sent directly or through consumer groups and the or through consumer groups and the complaint made in the court.complaint made in the court.

Written evidence of consent of the Written evidence of consent of the patient/relative/attendant to assumption of patient/relative/attendant to assumption of inherent and special risks in the treatment.inherent and special risks in the treatment.

Circumstances of the case; viz. There was Circumstances of the case; viz. There was

emergency, lack of facilities (e.g. rural area) no emergency, lack of facilities (e.g. rural area) no one to give history of patient’s illness etc.one to give history of patient’s illness etc.

Consolation/treatment by patient from other Consolation/treatment by patient from other doctor/other systems of medicine doctor/other systems of medicine simultaneously.simultaneously.

Reasonable knowledge, skill and care Reasonable knowledge, skill and care exercised (Rely/quote standard text books exercised (Rely/quote standard text books with attested photocopies). with attested photocopies).