Has the medical services not been specifically and consciously excluded from CPA 2019 by the parliament?

The Consumer Protection Act was enacted by the parliament in 1986. Cases were filed under the Act for compensation for medical negligence cases. The basis for such complaints was that the treatment provided against payment was a service under the provisions of the Act, and the paying patient was a consumer entitled to the benefits of the Act. Since medical service were not specifically included in the definition of the Act, the medical profession disputed it. There were varying judgments of the High Courts and the National Commission in this regard. The Indian Medical Association approached the Supreme Court in 1995 in the matter. The Hon'ble Court ruled that medical services fell in the definition of Sec. 2(1)(o) of Act and all consumer courts had jurisdiction in the matter of medical services.

Over the years, 1986-2019) a sea change has occurred all over.

In the practice of modern medicine. Private hospitals have taken over. There is a rapid boom in the high-end medical facilities. Specialisation and super-specialisation is the desired trend. Capital intensive high tech sophisticated AI based equipment and devices provide care services. There is phenomenal increase in the cost of treatment. The number of 'services' diagnostic, therapeutic (treatment), monitoring, nursing and paramedical technical services that a patient today receives and pays for, in management of a single disease episode, in modern hospital, is legion.

Medical negligence jurisprudence too has greatly changed. Consecutive Supreme Court judgments (Jacob Mathew and Martin D'Souza et al) have highlighted the deficiencies in summary trial arbitration of medical negligence cases in the consumer forums. Guidelines have been issued to overcome the same. The deleterious impact that it has on professional conduct and the treatment received by the patient has been taken cognisance of by the judiciary.

Legislative thinking too has changed. A huge market of consumer goods have come up. Consumer goods and services have tremendously increased. The new Act of 2019 is an elaborate exercise to take care of this vast sector. The scheme, scope, extent and purpose of the new Act are completely changed. The legislators too have become aware of the special nature of the medical services. The Consumer Protection Act has been of particular concern of the legislators over the years. The Act was under scrutiny of the legislators in 2011, 2012, 2015, 2016, 2018 and finally 2019.

The Consumer Protection Bill 2018 was moved in the Lok Sabha in 2018 and after due deliberation it was passed by it. Sec. 2(42) of the bill, corresponding to Sec.2(1)(o) of the 1986 Act, that defined 'service' specifically included in its inclusion part 'health care' along with number of other services named in the section. The minister piloting the bill stated that inclusion of 'health care' in the proposed Bill was in deference to 1995 SC judgment in IMA v V P Shantha Case.

The Bill as passed by Lok Sabha ON 20.12.2018

Bill No. 1-C of 2018

The Consumer Protection Bill, 2018
to provide for protection of the interests of consumers and for the said purpose, to establish authorities for timely and effective administration and settlement of consumers' disputes and for matters connected therewith or incidental thereto. BE it enacted by Parliament in the Sixty-ninth Year of the Republic of India as follows:

Sec. 2(42) "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, healthcare, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;

The parliament was adjourned sine die and hence the bill could not be moved in Rajya Sabha . When the parliament next met in 2019 the same bill, now named Consumer Protection Act 2019, was moved in the Rajya Sabha. After due deliberation a number of amendments were moved, one of them being to exclude 'heath care' from Sec. 2(42) of the Bill.

After due deliberation and accepted amendments, CPA 2019 was passed by both the Houses of Parliament. The reasoning of consciously and deliberately excluding 'health care' from CPA was provided by the minister piloting the bill and approved by both houses of the Parliament.

The Consumer Protection Act, 2019
Arrangement Of Sections Last Updated: 17-9-2021
Sec. 2(42) "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, (deleted) boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;

Ministers statement in Rajya Sabha for excluding 'health care' from Sec. 2(42) from the CPA

The Consumer Protection Bill 2019
The Minister Of Consumer Affairs, Food And Public Distribution (Shri Ramvilas Paswan), moving the motion for consideration of the Bill,

"Some hon'ble members also objected. This objection was that health care has been added to it. In this regards, the Supreme Court said in its judgment in 1995 that health care should not be separated from it, but added to it. Barring free treatment providing hospitals or government hospitals, other hospitals should be included in it. After that, we had kept health care in that Bill on that basis, but many hon'able members had expressed doubts about it, so we have kept it secondary in it."

Health care was added to Sec. 2(42) of the 2018 CPA in deference to the judgment of the Supreme Court in IMA v V P Shantha 1995. It was specifically removed from the 2019 CPA on objection by the members of the parliament. The intent of the parliament is clear 'healthcare' is not to be equated with other consumer services..

Details of the parliament proceedings, including the statements of the minister piloting the bill, recommendations of the Select Committees and the objections of the members, are readily available on parliament sites.**

The Consumer Protection Act 1986 has been repealed. Its no more applicable.

Even though the language of Sec. 2(42) of CPA 2019 is virtually same as Sec.2(1)(o) of 1986 Act, its context is totally changed. It needs reconsideration of larger Bench of Supreme Court to sustain the validity of 1995 judgment in IMA v V P Shantha by which medical services had been read into the 1986Act.

The medical fraternity heaved a sigh of relief on the passage of the new Act as it feels the law makers have consciously excluded them from the excesses of the 1986 Act.

**Excerpts from the Proceedings of the Parliament

Government Bill
The Consumer Protection Bill 2019
The Minister Of Consumer Affairs, Food And Public Distribution (Shri Ram Vilas Paswa), moving the motion for consideration of the Bill, said: This is a very long pending Bill it is a non-controversial Bill. This Bill was also come in 2011. The Bill went into the Standing Committee and the Standing Committee gave its report in 2012. After that in 2015, when the NDA government was formed, the Bill was again sent to the Standing Committee in August 2015.

The standing committee gave its report in April, 2016 and the Standing Committee made 37 recommendation out of which except the five recommendation the rest were accepted. Some hon'ble members also objected. That objection was about an issue.

This objection was that health care has been added to it. In this regards, the Supreme Court said in its Judgement in 1995 that health care should not be separated from it. But added to it. Barring free treatment providing hospitals or government hospitals, other hospitals should be included in it. After that, we had kept health care in that Bill on that basis, but many hon'ble members had expressed doubts about it. So we have kept it secondary in it.

Written By: Dr.S. G.Kabra, MBBS, LLB, MSc, MS(Anatomy), MS (Gen Surgery)
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