Hon. Supreme Court : "Incomplete "F" Form filling shows dishonesty of Doctors. 'F' form is not mere clerical work.
Case Details :
Before hon' Supreme Court of India
WRIT PETITION (CIVIL) NO.129 OF 2017
Federation of Obstetrics and
Gynecological Societies of India (FOGSI) V/s. Union of India
Coram : Hon'ble Arun Mishra and Hon'ble Vineet Sharan JJ.
Decided on " 03/05/2019
Judgment Link :
Facts in Brief.
1. In its 92 pages judgment, their Lordships have upheld the Constitutional Validity of the provision of F Form and criminal action U/sec.23 and 24 as envisaged in PCPNDT Act, the provision which the Doctors feel as dreadful.
2. The FOGSI challenged vires of these provisions as violative fundamental rights of Right to practice profession as well as Right to life, as envisaged under Constitution. It was contended that the main object of the Act of preventing sex determination techniques and curbing female foeticide is unquestionable, however problem is related to its implementation which is more in letter than its spirit. Inspite of the Act, there is no substantial progress in child sex ratio.
3. It was contended that equating clerical
errors on the same footing with the actual offence of sex determination shows the inherent weakness in the language of
the Act.
3. It is further contended the Appropriate Authority (AA) conducts raids and even there are few anomalies in F Forms, they seal the Sonography machines and thus genuine doctors are being targeted. It is unfair to treat some clerical mistakes with severe offense of Sex Determination. It was also contended that Section 23(2) of the Act is ultra vires the Constitution as it
assumes the guilt of the alleged accused Doctor even before his/her
conviction by a competent court. It was contended that presumption of innocence is a cardinal
principle of rule of law for which petitioner Society has placed
reliance on Article 14(2) of the International Covenant on Civil
and Political Rights, 1966,
The Senior Advocates Mr. Soli Sorabjee and Mr. Shyam Diwan vehemently argued the case on behalf of FOGSI.
4. The Govt. of India refuted all the allegations and argued in favour of constitutionality of the provisions of the Act as its a social and welfare legislation. It was stated that record keeping is important
for proper implementation of the Act and the stringent provisions
with regard to maintenance of records and punishment for
non compliance cannot be equated or considered as infirmity of
the Act. Moreover incomplete F Forms raises presumption of doubts.
Held :
1. Their Lordships after hearing of the parties and after going through various legal provisions, earlier judgments of Supreme court, dismissed the Petition and gave no Relief on F Form.
2. The Court also referred to various resolutions of UN General assembly which showed deep concern over decline in girl child ratio as well stats. report showing decline in girl child ration in India. The Court also took a glance of various provisions of PCPNDT Act and rules, amended from time to time. Rules for six months’ training in ultrasound for the MBBS doctors have been notified vide GSR 14(E) dated 10.1.2014. IT observed that there are only 586 convictions out of 4202 cases registered even after 24 years of existence.
3. Importance of maintaining Record : A Lesson for all the Doctors of all the branches :-
While rejecting the Doctors' contention that merely clerical errors in F Form cannot be equated with offences, the Court gave emphasis on importance of maintaining record by Medical Fraternity and referred to the provisions of Code of Ethics of Medical Council of India (MCI)
“1.3 Maintenance of medical records: 1.3.1 Every physician shall maintain the medical records pertaining to his / her indoor patients for a period of 3 years from the date of commencement of the treatment in a standard proforma laid down by the Medical Council of India and attached as Appendix 3. 1.3.2. If any request is made for medical records either by the patients / authorised attendant or legal authorities involved, the same may be duly acknowledged and documents shall be issued within the period of 72 hours. 1.3.3 A Registered medical practitioner shall maintain a Register of Medical Certificates giving full details of certificates issued. When issuing a medical certificate he / she shall always enter the identification marks of the patient and keep a copy of certificate. He / She shall not omit to record the signature and/or thumb mark, address and at least one identification mark of the patient on the medical certificates or report. The medical certificate shall be prepared as in Appendix 2. 1.3.4 Efforts shall be made to computerize medical records for quick retrieval.”
It then referred to Regulation 7.1 under Chapter 7 which deals with misconduct committed by a doctor by violating any provisions of the Regulations, whereas Regulation 7.2 provides that the failure to maintain the medical records of indoor patient for a period of three years and refusal to provide the medical record to a patient on request within 72 hours is a misconduct. Regulation 7.6 deals with misconduct relating to sex determination and termination of pregnancy.
It then referred to provisions of Pharmacy Practice Resolution, 2015 which also makes it mandatory for Pharmacists to keep record for 5 years and to make it available within 72 hrs when demanded. The provisions of Transplantation of Human Organs and Tissues Act, 1994 as well as MTP Act were also referred to in respect of maintenance of record. The Court agreed with the submission of the Govt. that there are different forms for record keeping prescribed under the Act and the Rules they are important and interlinked, operate in tandem with one another. These records have to be maintained only when the procedure or tests are conducted on pregnant woman or when patient may have been advised to use preconception diagnostic tools to conceive a child. It is required for Genetic Counselling Center advising the procedure/test with a potential of detecting or determining the sex of the foetus. The Court also agreed that maintenance of "referral slip" is also mandatory and these record keeping procedure has to be followed by Genetic Labs also. record keeping is meant to track/monitor and regulate the use of technology that has potential of sex selection and sex determination.
Non maintenance of record is spring board for commission of offence of foeticide, not just a clerical error. In order to effectively implement the various provisions of the Act, the detailed forms in which records have to be maintained have been provided for by the Rules.
It was further held that person conducting ultrasonography on a pregnant woman, is required to keep complete record of the same in the prescribed manner and any deficiency or inaccuracy in the same amounts to contravention of Section 5 or 6.
4. "F Form is not a mere Clerical Requirement, but legal duty cast upon Medicos :
When form has not been filled up, obviously the act is
dishonest, fraudulent and can be termed intentional also". :-
This was one of the defense of the Doctors. The Court scrutinised the contents of F Form and observed that details like : name and address of Genetic Laboratory and its registration number, name and age of a patient, name of husband/father to identify the patient, full address, details of her last menstrual period are very much important and if such information is kept vague, then the violation of the Act would be blatant and unchecked and offence can never be detected.
Regarding Invasive and Non-invasive procedure, details have to be mentioned.
It was held that non-maintenance of form/not reflecting correct medical condition is offence, not mentioning it would also be an offence or keeping it vague.
It was observed that if it is given a gobye under the guise of clerical error, the Act would be rendered otiose. "If he ( a responsible Doctor) cannot understand the form he is required to fill and the impact of medical findings and its consequences which is virtually the prerequisite for undertaking a test, he is not fit to be a member of a noble medical profession. Such culpable negligence is not warranted from a doctor"
( Contrary Judgments of Hon. Supreme Court ? )
(Pausing here for a moment, in the case of Dr. Radhakrishna V/s. State of Maharashtra, decided on 05/03/2019, another bench of Hon. Supreme Court, headed by Hon. Chief Justice of India gave relief to petitioner Doctor for mere non mention of words invasive and non invasive that by itself do not attract criminal action, when Doctor took remedial steps to include these words. You may read following block.
https://pcpndtreliefs.blogspot.com/2019/05/pcpndt-hon-supreme-court-gives-relief.html)
Thus it was held that it is not the clerical job to fill the form, it is condition precedent for undertaking test/procedure. Moreover it is a responsible job of the person who is undertaking such a test i.e., the Gynecologist/ Medical Geneticist/ Radiologist / Pediatrician / Director of the Clinic/Center/Laboratory to fill the requisite information. There is no other barometer or criteria to find out the violation of the provisions of the Act.
It was held that incomplete F form details e.g. incomplete name, wrong age, absence of signatures, wrong phone numbers,wrong obstetric and abortion history etc. all these lead to presumption that it was so mentioned to violate the provisions of the Act. (The question here arises as to if the patient gives wrong information, then who's at fault ? or now AADHAR is to be made mandatory ?.)
5. The Court also rejected the contention of Petitioners that in many cases though criminal cases were filed, acquittals were also recorded. The Court said provision of the law cannot be struck down on the ground of allegation of such exercise of power in arbitrary manner, especially when 0.46 million girls were stated to be missing at birth as a result of sex selective abortions.
The Court said, "We are not going into the minutes what can be treated as a simple clerical mistake that has to be seen case wise and no categorization can be made of such mistakes, if any, but with respect to what is mandatory to be provided in the Form as per provisions of various sections has to be clearly mentioned, it cannot be kept vague, obscure or blank as it is necessary for undertaking requisite tests, investigations and procedures."
6. The Court also underlined Duty of Society in improving girl child ratio :
The Court said that no fundamental rights Doctors are being violated by any of these provisions and then observed that The mischief sought to be remedied is grave and the effort is
being made to meet the challenge to prevent the birth of the girl
child. Whether Society should give preference to male child is a
matter of grave concern. The same is violation of Article 39A and
ignores the mandate of Article 51A(e) which casts a duty on
citizens to renounce practices derogatory to the to the dignity of women.When sex selection is prohibited by virtue of provisions of Section
6, the other interwoven provisions in the Acts to prevent the
mischief obviously their constitutionality is to be upheld.
7. "Doctors are not remedy-less :- There is inbuilt mechanism in PCPNDT Act to deal with complaints :
The Court rejected the contention of Doctors that they should be given a chance of being heard by mentioning that same care has already been take care of U/Sec.20(2)
The Court also rejected the submission that legal advice should be taken before prosecution and observed that the Appropriate Authority to consider each case on merits with the help of Advisory Body which has a legal expert.
8. Seizure of Sonography Machines cannot be said to be inappropriate :
The Court held that submission of Doctors that Seizure of Sonography Machines is inappropriate, is too tenuous and liable to be rejected. It was pointed out by the respondents that a “Standard Operational Procedure”, detailing the procedure for search and seizure has been developed by the Ministry of Health and Family Welfare.
It was further held that it is a settled proposition that when offence is found to be committed, there can be seizure and sealing of the premises and equipment during trial as no license can be given to go on committing the offence. The Court further held that these provisions constitute reasonable restrictions to carry on any profession which cannot be said to be violative of Right to Equality enshrined under Article 14 or right to practice any profession under Article 19(1)(g).
No Double-jeopardy
the Court rejected the allegations of Petitioner that seizure of machines and punishment amounts to Double Jeopardy as the concept of double jeopardy
would have no application here, as it provides that a person
shall not be convicted of the same offence twice, which is
demonstrably not the case here. Suspension is a step-in-aid to
further the intendment of act. It cannot be said to be double
punishment. In case an employee is convicted for an offence, he
cannot continue in service which can be termed to be double
jeopardy. This Judgement has created displeasure among Doctors fraternity. The legal maxim says "Law may good or bad, it has to be followed" . Henceforth Doctors will have to be extremely careful as whoever fills up the form, the legal liability will be fastened upon Doctros. So you may see lesser patients, but keep the record upright.
Not only about F Forms, but in any case / MLC, record plays pivotal role. It's said "NO RECORD IS NO DEFENSE AND POOR RECORD IS POOR DEFENSE.:
Review Petition ?
Now the earlier judgment of Dr. Radhakrishan (supra) seems to have not been referred to in this Judgment. So it may be the ground of Review Petition. The judgment of Dr. Radhakrishan (supra) though do not expressly gives F form relief, it has certainly given implied directions in F Forms, I feel.I have mentioned in my other blogs, but at the cost of repetition, I may again say :
If we want to achieve the main object of the PCPNDT Act i.e. to save the girl child, it cannot be done by whipping the Doctors alone. We as a society should change the mindset.
Merely saying on paper that यत्र नार्यस्तु पूज्यन्ते रमन्ते तत्र देवताः (meaning where women are honored, divinity blossoms there) is not going to help. Those Doctors who want to determine the Sex will do it even after completing all the F Form and other formalities. Therefore it is said that ,
IF MEN ARE PURE LAWS ARE USELESS
AND
IF MEN ARE CORRUPT LAWS ARE BROKEN.
Thanks and Regards,
Adv. Rohit Erande
Pune. ©
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