From the desk of Dr KK Aggarwal National President, IMA Generic drugs prescription The current Read more →
The Apex Court in the case of Bhanwar Kanwar Vs. R.K. Gupta and another reported in (2013) 4 SCC 252 has taken the view that wherein unauthorized medical treatment is administered, same is unfair trade practice and administering allopathic medicine by person who is qualified in Ayurvedic medicine cannot be approved of. Apex Court in the facts of case, enhanced the compensation amount from Rs.5 lacs to Rs. 15 lacs.
In the said judgment benefit has been sought to be taken of the Government Order dated 24.02.2003. Qua the same, Apex Court has mentioned that in connection with some cases, the High Court Allahabad has issued direction to take action against the quacks who are practising Allopathic medicine but not registered with Medical Council. In order to put restrain from practising modern medicine two further Government Orders have been issued by the State Government on 04.03.2008 and 08.06.2012 wherein State Government has clearly proceeded to issue guidelines mentioning therein that any incumbent who is authorized to practice under Indian Medicine Central Council Act, 1970 is not at all entitled and authorized to prescribe medicines under the Indian Medical Council Act, 1956. Said Government Orders still hold the field and same are in consonance with the repeated view taken by this Court and by the Apex Court that an incumbent who has obtained degree under 1970 Act cannot be permitted to prescribe modern medicine as provided for under 1956 Act. Under the scheme of things provided for it is clear and categorical that the definition as has been provided for under Rule 2(ee) of the Drugs and Cosmetics Rules 1945 will not at all come to the rescue and reprieve of the petitioner. Said definition has been used in different context and same does not authorize incumbent having qualification under the Indian Medicine Central Council Act, 1970 to start prescribing medicine which the incumbents registered under Indian Medical Council Act, 1956 only can administer.
Petitioner cannot be permitted to prescribe allopathic/modern
medicine as is provided for under Indian Medical Council Act, 1956, by any means, as a person having studied one particular system of medicine cannot possibly claim deep and complete knowledge about the drugs of the other system of medicine, and specially when right to health and medical care is fundamental right under Article 21 read with Articles 39(c), 41 and 43 of Constitution, as expressed by Apex Court, in the case of Consumer
Education and Research Centre Vs. Union of India, AIR 1995 SC 922, and by further providing that right to life includes protection of health and strength and the minimum requirement to enable the persons to live with dignity. Petitioner will have to practice in his own branch, and it would be a extremely grave situation, to allow petitioner to treat and prescribe a sick incumbent with allopathic medicine. The transgression into other branches of medicine as has been prayed for is not permissible, as same would tantamount to quackery and exposing petitioner to cancellation of registration and prosecution. Petitioner at last stated before this Court that there is dearth of doctors, in such a situation in this background such resources should be
This is not at all case of the petitioner that he has acquired degree or qualification as is provided for under the Indian Medical Council Act, 1956, and is registered in the State register, maintained in this regard then, in
such a situation and in this background, the petitioner cannot be permitted to administer the medicine connected with the modern medicine and it may be true on the ground that large number of poorer sections of the society, being rendered service by him and various other similarly situated but the same cannot be a criteria to flout the statuary provisions, the same being in the realm of policy decision of other constitutional functionaries. Apex Court in the case of Mumbai Vs. State of Maharashtra and another
reported in JT 2009 (3) SC 351 has repelled such an argument wherein plea has been raised that incumbent was rendering service to treat the poor people and there is dearth of Doctors, and accordingly, he should be
permitted to prescribe medicine.