The laws that govern the provision of medical advice in India play a major role in ensuring that the healthcare machinery is robust and the best interests of the patients are always kept at the forefront. Broadly, these laws attempt to ensure that general medical practitioners are free to tailor their medical advice to fit the requirements of their patients, and limit certain conduct to prevent the aforesaid discretion from resulting in adversities for the patients. One such limitation imposed on general practitioners is an absolute bar from accepting any kind of consideration for activities that could foreseeably dilute the credibility of their medical advice.

The National Medical Commission Act, 2019 ("2019 Act") is the most recent legislation that governs general practitioners in India. Although the 2019 Act repealed the Indian Medical Council Act, 1956, the Rules and Regulations framed thereunder are still effective1. The conduct of general practitioners during the rendition of medical services to patients (and all conduct ancillary thereto) is governed by the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 ("2002 Regulations").

The 2002 Regulations expressly classify certain acts by general practitioners as unethical2 and prescribe punishments and disciplinary actions commensurate with the gravity of such unethical acts. Medical councils across several states in India have gone on to model their codes of ethics on the 2002 Regulations. The receipt and/or payment of any consideration, whether monetary or otherwise by/to a general practitioner is also classified as unethical and the disciplinary actions for such an aforesaid violation may extend to the removal of such a practitioner from the register of practitioners altogether3. Additionally, the 2002 Regulations categorically prohibit general practitioners from aiding or committing the following:

(i) Taking any action to advertise or publicise themselves (or their services, accolades, specializations, competencies, etc.); and using any means to solicit patients;
(ii) Recommending or endorsing the properties or uses of any drug, remedy, appliance, commercial product, etc. in connection with their names, signatures, or photographs;
(iii) Printing their photographs or any other similar material that might be seen as self-promotional on their letterheads or displaying them within the clinical establishments;
(iv) Running an open shop for the sale of medical/surgical appliances or of medicines for dispensing prescriptions by other doctors;
(v) Giving, soliciting, or receiving (or offering to give, solicit or receive) any gift, gratuity, commission or bonus in consideration for referring, recommending or procuring (a) any patient for medical, surgical or other treatment; or (b) any person, specimen or material for studies or diagnostic purposes; or
(vi) Participating directly or indirectly in any act of division, transference, assignment, subordination, rebating, splitting or refunding of any fee for medical, surgical or other treatment

The bar on the receipt of consideration applicable to general medical practitioners is not only limited to external third-parties and patients but also extends to other members of the healthcare industry. The 2002 Regulations detail a code of conduct to regulate the relationship such general practitioners share with the pharmaceutical and allied healthcare industry ("Industry")4. The aforesaid code places express limitations on any act of endorsement of drugs or products of the Industry by medical practitioners5. The code also bars medical practitioners from receiving any of the following from representatives of the Industry:

(i) gifts;
(ii) travel facilities (whether domestic or international) through any mode, for themselves or their family members either for vacations or to attend seminars, workshops, etc.;
(iii) hospitality or hotel accommodation for themselves or their family members under any pretext; or
(iv) cash or monetary grants for an individual purpose in any individual capacity under any pretext6.

The 2002 Regulations place a strong emphasis on medical practitioners retaining their professional autonomy and put in place mechanisms to ensure that such autonomy of the medical professionals is not skewed as a result of financial inducements or other incentives that might colour the nature of their medical advice. The 2002 Regulations also lay down broader requirements to establish the necessary backdrop before which the said regulations must be read and applied-the focal need for the medical institution to remain autonomous, interests of the patients to remain uncompromised, and dealings of medical practitioners to remain transparent and legal. Further, Tax Tribunals across India have, on several occasions, held that expenses incurred by pharmaceutical companies to pay commissions to medical practitioners are illegal expenses and may therefore not be deemed as having been incurred for the purposes of business or profession.

Although the conduct of medical practitioners regarding the receipt of inducements, consideration or rewards is rather well formulated, similar laws are yet to be codified for private hospitals and corporate entities that operate clinics of general physicians. In stark contrast to the detailed regulations governing independent practitioners, corporate entities are left free to decide the best-practices with regard to inducements internally or by way of agreements. Limiting the consequences of such unethical practices solely to individual medical practitioners ensures that the accountability is localised, and the autonomy of such medical practitioners is not unreasonably encroached upon.

Footnotes

1 Section 61(2) of the 2019 Act.

2 Chapter 6 of the 2002 Regulations.

3 Clause 8.2 of the Regulations.

4 Clause 6.8 of the 2002 Regulations.

5 Clause 6.8.1(h) of the 2002 Regulations.

6 Clause 6.8.1 of the 2002 Regulations.

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