Maharashtra has drafted a “Prevention of Cut Practice in Health Care Services Act, 2017”, the first Bill in India that aims to deter kickbacks in medical networks amongst doctors, pharmaceutical companies, diagnostic laboratories and hospitals. The draft Bill, the first formal recognition of the rampant practice of commissions in medical referrals across the country, was drawn up by an eight-member committee in only two months. The window for suggestions from the public closed on Wednesday.
What does the draft Bill propose?
The Bill authorises the Maharashtra Anti-Corruption Bureau (ACB) to investigate allegations of money exchange, ‘cuts’, commissions or material gifts offered in exchange for referral of patients. The Bill prohibits all “healthcare service providers” — hospitals, doctors, pharma companies, diagnostic labs, maternity homes, dispensaries and clinics — from demanding or accepting gratification through these means. Punishment ranges from a fine of Rs 50,000 to imprisonment up to five years. “Already, the Nanded and Nashik district medical associations have pledged to not give commission,” Dr Avinash Supe, a member of drafting committee, said. “This law, if given teeth, will be a deterrent to several doctors.”
How deep is this practice of ‘cuts’?
Privately, doctors, radiologists, and laboratories in Maharashtra say the ‘cut’ for advising an unnecessary medical consultation or examination could be between 20% and 40% of the fees. Anecdotal evidence suggests that while doctors take the Hippocratic Oath to abide by the ethics of the medical profession, several MBBS graduates do, indeed, look to quickly recovering their investment in medical education.
Over two decades ago, the veteran Mumbai cardiologist Dr P A Kale wrote in the Indian Journal of Medical Ethics, “A large majority of these cases (of commissions) are concentrated in urban areas with (their) attendant intense competition and battle for survival which favour cut practice. In the absence of a clear, logical, bold and community oriented health care policy on the part of the government and a lobby of strong, honest, clear thinkers representing the medical profession in the corridors of power, the present situation is unlikely to change in the near future.” [‘An objective look at ‘cut practice’ in the medical profession’, Kale: IJME Vol 4, No. 1 (1996)]
While the practice has indeed been continuing for long, the push for the draft legislation came after a debate began over hoardings put up by Asian Heart Institute in Mumbai this June, which read: “Honest opinion. No commission to doctors”. In July, the Maharashtra government’s Directorate of Medical Education and Research constituted an eight-member committee to draft the Bill.
What does the national regulator say?
The Medical Council of India (MCI), the central regulatory body of allopathic doctors, has been advocating ethical practices amongst doctors across states. MCI president Dr Jayshree Mehta told The Indian Express: “Professionalism and ethics must be there to curb this practice. It should be observed, we are active on this issue. Whatever malpractices we are seeing today must be stopped. We are trying to educate doctors in every state.” Dr Mehta said a central law may prove to be an effective deterrent to the practice.
Dr Randeep Guleria, director of the All India Institute of Medical Sciences, agreed that commissions or ‘cuts’ were a huge problem. “I am personally not aware of any discussions on such a law centrally. But taking ‘cuts’ is a widespread practice at multiple levels, so some steps have to be taken to deter it in some way. I do not know if a law is going to be successful in doing that, but it is a positive step because it is at least recognising that there is a problem,” Dr Guleria said.
What criticism has the draft Bill faced?
Suggestions have been received from over 200 people, drafting committee chairman Praveen Dixit said. The Indian Medical Association (IMA), an organisation of doctors, has expressed concern that since anyone can file a complaint, the law may be misused against honest doctors. Also, officials from the implementing body said cash kickbacks may be difficult to trace. While the objective of the Bill is to ultimately reduce the cost to the patient who pays fees that include the commission to the referring doctor, experts fear that doctors may simply find other ways to take their cuts, and the patient may end up paying the same.
Renowned general physician Dr Jehangir Sorabjee said, “Unless they (doctors who take cuts) feel morally obliged (to stop), no one can stop them.”
Also, how is it to be established that the prescription of a certain drug, manufactured by a certain company, was done for pecuniary gains? Who decides whether a test or consultation recommended by a doctor is unwarranted? The ACB, whose primary competence is in the investigation of corruption, will find it difficult to pursue technical or scientific inquiries, critics say. The ACB is already stretched, and the draft Bill gives it only three months to investigate a complaint. And even honest doctors might find their hands tied by the fear of prosecution.
“If we have a law, the attention of the clinician may be diverted from the patient to clerical work, and his concern will be to fend off allegations of cut practice. If a patient is unhappy with the treatment, he may register a complaint,” Dr Girish Maindarkar, an MCI member from Maharashtra, said.
Importantly, critics have pointed out, going by the definition of ‘cut’ practice in the draft Bill, even a system in which a doctor or clinic ties up with a diagnostic lab to share profits, can be investigated on technical grounds, even if no ‘cut’ has been paid. Also, the draft Bill is silent on medical tourism, which commonly works through an agent routing international medical patients to specific corporate hospitals for a commission.
Dixit, also a former Maharashtra Directorate General of Police, however, said, “Every bank transaction will leave a trail. We will check records of hospitals, clinics and doctors if such a complaint is made. If we prove a doctor has financially benefitted by such referrals, it is easy to pin them down.” A parallel inquiry will be undertaken by the medical council concerned, he said.
Do other countries have such a law?
The US passed the federal Anti-Kickback Statute in 1972, banning the offering or receiving of a bribe or kickback in federal healthcare programmes. The punishment is jail up to five years and a fine of $ 25,000. Violation of the Stark Law, which prohibits referrals from a physician for certain health services, attracts a fine up to $ 15,000. Canada sees cut practice as a violation of human rights. In the United Kingdom, “fee splitting”, if proved, can lead to a doctor losing his licence to practice. Article 22 of the French Code of Medical Ethics forbids fee sharing.