Does the legal status of doctors change under the new Consumer Protection Act (CPA)? When it dropped "healthcare services", many doctors and associations heaved a sigh of relief, but as it turns out, the new CPA seems even more stringent and is no cause for celebration.

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The new Consumer Protection Act (CPA) 2019 was gazetted on 9th August 2019 but it came into force on 20th July 2020. The old consumer protection act was thereby repealed. Around that time, there was a sense of relief among the doctors due to the flood of messages on WhatsApp claiming that the medical profession is not under the ambit of the new Consumer Protection Act. Even when the bill was made and published for the new CPA, few doctors and local associations wrote thank you letters to the government for dropping 'healthcare services' from the definition in the 'new CPA'.

Why were the doctors included under CPA?

In the old consumer protection act (CPA) of 1986 also there was no mention of 'healthcare services' in any of its definitions. The definition of the consumer as in section 2 (d) (ii) of the old CPA 1986 was:

“Consumer” means any person who hires or avails of any services for a consideration and the word “service” was defined in section 2 (o). "Service" means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.

In the case of “Indian Medical Association VS V.P. Shantha & Ors” on 13 November, 1995 in the Supreme court, the advocate for the IMA argued that the services provided by a doctor to the client is “contract of personal service” and hence covered under the exclusion clause of the definition of word service in CPA so the services provided by the doctor should be outside the purview of the CPA. But the Apex court discussed the difference between ‘contract of services' and ‘contract for services' mentioning that a ‘contract for services' implies a contract whereby one party undertakes to render services e.g. professional or technical services, to or for another in the performance of which he is not subject to detailed direction and control but exercises professional or technical skill and uses his own knowledge and discretion.

A ‘contract of services' implies the relationship of master and servant and involves an obligation to obey orders in the work to be performed as to its mode and manner of performance. So, the expression "contract of personal service" is exclusionary; therefore the services rendered by an employee to his employer are not covered under the ambit of CPA.

But in the services rendered by the medical practitioner, there is no relationship of master and servant between the doctor and the patient, the contract between the medical practitioner and his patient cannot be treated as a “contract of service” but is a “contract for service” so the service rendered by the medical practitioner to his patient is not covered by the exclusionary part of the definition of `service' contained in Section 2(1)(o) of the Act. Hence, the medical services are within the ambit of CPA and doctors are liable to be challenged under CPA.

Why is there confusion?

Now when the new CPA bill was drafted, initially in the definition of “services”, along with various examples of services like banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement etc., the words “telecom” and “healthcare” were explicitly included.

After so much pressure from various medical associations, the “healthcare” word was dropped from the definition and now the definition of the “services” does not mention “healthcare” word in it. Many doctors overzealously celebrated that, but we must understand that the word “healthcare services” was never there in definition of “services” in the old CPA too.

Can removal of the word “healthcare” from the definition of services in the new CPA, change the landmark case law of the supreme court of considering medical services as “contract for personal services” and not falling in the exclusionary part of the definition of services?

One more point, the word “services” in the new CPA, mentions “service" means service of any description which is made available to potential users and includes, but is not limited to; that means the list of services mentioned in the definition is not exclusive but just a representative list. It has a scope of including many more services within its ambit.

Also, in the new CPA rules there are many rules pertaining to healthcare services and medical negligence. If “healthcare services” were excluded from the new CPA, then these words would not be used. So, the doctors have nothing to celebrate as of now. The provisions of the new CPA are more stringent, and we shall discuss those in a separate article.

Disclaimer- The views and opinions expressed in this article are those of the author's and do not necessarily reflect the official policy or position of M3 India.

The authors are Medico-legal Consultants from B & S medicolegal consultancies.