Case Study

MEDICAL NEGLIGENCE & APPOINTMENT TO PUBLIC OFFICE

Dr Kunal Saha v. Principal Secretary, Department of Health and Family Welfare, Government of West Bengal, WP No.17057(W) of 2017, Decided by the Hon’ble High Court at Calcutta on February 02, 2018

Facts: The petitions under Article 226 of the Constitution of India challenged the appointment of a senior doctor as a member of the West Bengal Clinical Establishment Regulatory Commission on the ground that the Hon’ble Supreme Court of India apparently held the second respondent guilty of medical negligence and primarily responsible for the death of petitioner’s wife. observing “It is also important to highlight in this judgment that the manner in which Dr Mukherjee attempted to shirk from his individual responsibility both in the criminal and civil cases made against him on the death of the claimant’s wife is very much unbecoming of a doctor as renowned and revered as he is.” “Since he is a senior doctor who was in charge of the treatment of the deceased, we are inclined to mention here that Dr Mukherjee has shown utmost disrespect to his profession by being so casual in his approach in treating his patient. Moreover, on being charged with the liability, he attempted to shift the blame on other doctors.”

Counter: The State relied on the recent judgments of the Hon’ble Supreme Court of India to rein in public interest litigation to ensure that personal causes are not espoused for oblique purpose or to blackmail any person, that there was no gap in either the said Act or the rules framed thereunder, that the State Government had acted within the bounds of its authority in nominating or appointing the second respondent in the first petition as a member of the regulatory commission, and that the second respondent was a doyen in the field of medicine who may have been found to be at fault on a solitary occasion but whose prowess as a doctor is unquestionable. The doctor respondent submitted that he should not be punished any more than he has already been, particularly since no judicial order found him to be unfit to continue in practice or expressed any reservation regarding his holding any office.

Observations: At the focus of the two petitions is the said Act of 2017, which seeks to provide for the registration, regulation and transparency of clinical establishments in the State and for matters connected therewith or incidental thereto. Section 2(c) of the Act defines a clinical establishment and such an establishment includes any place that provides medical facilities with or without beds, the building or premises of any hospital, maternity homes, nursing homes, dispensaries, clinics, polyclinics, clinical laboratories, physical therapy establishments and the like. Even a single doctor establishment can be regarded as a clinical establishment if the place is used or intended to be used for consultation and treatment by a registered medical practitioner. Under Section 5 of the Act all clinical establishments within any district are required to be registered with the Chief Medical Officer of Health of such district. Section 6 of the Act contemplates the issuance of a license to a clinical establishment to specify the terms of its operation. Chapter III of the Act deals with the procedure for registration and licensing and includes the power to cancel the registration and license. Chapter IV deals with contraventions and penalties. Chapter V of the Act envisages an adjudicating authority and the setting up of the West Bengal Clinical Establishment Regulatory Commission. Section 36 in Chapter V of the Act provides for the composition of the commission with a chairperson, a vice-chairperson and members not exceeding 11 in number. Section 36(2)(c) is the provision relating to the appointment of members on the commission and provides as follows: “(c). members not exceeding eleven in number, to be appointed by the State Government, selected from the fields of medicine including diagnostics, public health, academia, social services, law, finance, public administration, nursing and consumer interests.” Section 37(1) of the Act provides that the chairperson, vice-chairperson and the members of the commission “shall hold the office of the Commission during the pleasure of the State Government.” Later provisions in the Chapter V provide for, inter alia, the powers and functions of the commission and the like, which are not relevant for the present discussion. The submission put forth on behalf of the petitioner is also that guidelines be framed by this court to regulate appointments to the commission by the State Government.

Held: Just as in a matter of policy, courts are slow to entertain a challenge in a matter of choice of personnel for appointment to a public body. A constitutional court will not easily interfere with the choice. Though the submission of the State that such a matter is not justiciable cannot be accepted, it must also be said that a constitutional court would step in only when the choice appears to be bad to the meanest mind, almost being on the verge of defeating the purpose of the appointment. If the legislature does not deem it necessary to fix parameters for the selection, it would imply that an element of discretion is left to the executive. Unless such discretion is demonstrated to have been exercised in the most perverse manner that no reasonable person could have so done, the latitude given by the statute to the executive would not be curtailed by the court in fixing guidelines in such regard. A case for fixing guidelines would be made out if repeated choices are capricious and perverse and have no nexus with the object of the appointment or the purpose required to be served thereby. As to the choice of the second respondent as a member of the commission, there does not appear to be any room for interference. Even the Supreme Court judgment noticed that the second respondent was a respected and revered medical practitioner. The Supreme Court did not pass any order prohibiting the second respondent to be associated with any public body. The appointment of the second respondent as a member of the commission does not go against either the spirit or the letter of the relevant Supreme Court judgment and does not fall foul of Article 144 of the Constitution. In the event it was discovered upon the receipt of the present challenge to the nomination or appointment of the second respondent that the State was not aware of the Supreme Court judgment passed against the second respondent or the observations therein, there may have been a scope to suspect that some relevant considerations may not have been taken into account in making the choice; but, as it appears, the State was aware of the judgment and the State made a conscious decision to still nominate the second respondent as a medical practitioner of vast experience and great repute to be a member of the commission. It is a matter of the State’s perception and subjective satisfaction that the second respondent is suited for the position. Such decision and the choice do not reflect any egregious caprice or lack of wisdom for the court to interdict the same. Accordingly, WP 17057 (W) of 2017 and WP 217 of 2017 with GA 2402 of 2017 are dismissed as no steps are warranted to be taken on the basis thereof whether to interfere with the appointment of the second respondent as a member of the commission or for setting right the perceived lacuna in the said Act of 2017 apparently not taken care of in the rules framed thereunder.

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