India has faced criticism for not having nurtured its’ healthcare industry in the past. With this backdrop, a new law to regulate the “standards of education and services by allied and healthcare professionals” (namely the National Commission for Allied and Healthcare Professions Act, 2021) has been finalised.
The law seeks to regulate a wide range of allied healthcare professionals such as anaesthesia assistants, physiotherapists, dieticians, nutritionists, palliative care professionals, mental health support workers and medical transcriptionists.
Healthcare professionals have been clubbed in ten broad categories in the Act. They are subject to the “conditions and restrictions laid down in this Act regarding practice” and must register themselves in both the Central and State registers. A welcome aspect of the Act is the setting up of a separate “Professional Council” for each recognised category of allied healthcare professionals. Hopefully, these Councils will fulfil the mentoring needs of the respective healthcare professionals.
A National Commission and State Councils will exercise powers and discharge duties as detailed in the Act (within sixty days from the date on which the Act receives the Presidents assent an Interim Commission will be set up for this purpose). State Councils will set up four Autonomous Boards for regulating healthcare professionals, which will deal with educational standards, assessments, ratings and ethics.
An eye opener is the penalty prescribed for general contraventions of the Act or the rules/regulations made thereunder, (a fine ranging from one to five lakh rupees, or imprisonment of one to three years, or both).
A quick preview of the Act raises the following observations and concerns:
The National Commission is tasked with the “maintenance of the standards of delivery of services under this Act”. Penalties have been provided for any breach of the Act, or the rules and regulations made thereunder. Further, the cognizance of offences punishable under the Act (and presumably also offences under the yet unknown rules/regulations thereunder), are only permitted when a “complaint” is made by the Central/State Government, the Commission, or the State Council/s. Also, offences must first be tried by a Metropolitan or Judicial Magistrate. This raises various concerns. How will standards of service be monitored by the authorities where personal skill sets are involved? Can third parties initiate legal proceedings based on these standards? Proceedings which are initiated based on a “complaint” from the authorities would in essence be disciplinary proceedings. If healthcare workers are to be subjected to disciplinary action in connection with services provided, it would have been better if such matter were presided over by people with the requisite technical experience, (as is the case for other professions).
The (National) Commission can only make “regulations generally to carry out the purposes of this Act” with the previous approval of the Central Government, and the Central Government will have the right to direct the Commission to make /amend/ revoke regulations. The rationale behind the Central Government having these rights is unclear, especially because the Commission will comprise of numerous Central Government officers and nominees, and the Chairperson will also be a nominee of the of Central Government.
Every rule made by a State Government must be placed before each House of State Legislature, (one or two as the case may be). Could the State avoid this by claiming that subordinate ‘regulations’ (as opposed to ‘rules’) do not need any legislative intervention?
It would not be surprising if judicial intervention is sought on the following matters:
A heavy penalty has been prescribed for “whoever contravenes any of the provisions of this Act or any rules or regulations made thereunder”. This “one size fits all” approach may not be appropriate, especially for the yet unknown rules and regulations, (which would typically include those that would be made by each State). Also, since the Act, rules and regulations deal with the “standards of delivery of services”, they should also ideally classify potential violations as being technical/ minor/ major (gross negligence)/ compoundable/ curable. (On a side note, providing stiff penalties for breaches of any (and all) of the yet unknown rules and regulations, could easily be misused).
Further, while the Act provides that rules made by the Central Government, and regulations made by the National Commission, must be approved by Parliament, it also provides that such rules and regulations will have the force of law even if not approved, (but only till they are not approved). In essence, a law by whatever name called, will become a law without approval from Parliament, but will cease to have the force of law, only if and when it is not approved by Parliament. While the intent of such a provision may be laudable, the legality may at the same time be questionable, especially as it could be prone to being a precedent that is misused. Hence, it would be beneficial to know whether such a provision would be held to be constitutionally valid.
The current pandemic has underlined the need and dependency on allied healthcare professionals like never before. The new law therefore comes at the right time to provide a much-needed regulatory framework to cover, institutionalise, and fulfil the needs of allied healthcare professionals.
Vikram Raghani is a Partner at J Sagar Associates
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