AlPG 2nd Councelling SC WP(Civil) No.157/2005 2006 03 31

ITEM NO.2 COURT NO.3 SECTION X


S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS


I.A.No.3 in

WRIT PETITION (CIVIL) NO(s). 157 OF 2005


AMIT GUPTA & ORS. Petitioner(s)


VERSUS


U.O.I. & ANR. Respondent(s)


(With appln(s) for directions)

I.A.1 in I.A.3 (Appln. for impleadment)

I.A.2 in I.A.3 (Appln. for impleadment)

I.A.... in I.A.3 (Appln. for directions/clarification)


Date: 31/03/2006 This Petition was called on for hearing today.




CORAM :

HON'BLE MR. JUSTICE K.G. BALAKRISHNAN

HON'BLE MR. JUSTICE P.P. NAOLEKAR





For Petitioner(s) Mr. Vikram Mehta, Adv.,

Ms. Liz Mathew, Adv.

For Mr. Vikas Mehta,Adv.


For Respondent(s) Mr. Sunil Fernandes, Adv.

Mr. Saurabh Mishra, Adv.

For Mr. Maninder Singh,Adv.


M/S K.L. Mehta & Co. ,Adv


Mr. Gopal Subramanium, ASG

Ms. Sandhya Goswami, Adv.

For Ms. Sushma Suri ,Adv


Mr. Arun Jaitley, Sr. Adv.

Mr. M.C. Dhingra, Adv.


Mr. S. Balakrishnan,Sr. Adv.

Mr. Subramonium Prasad, Ad.


UPON hearing counsel the Court made the following

O R D E R




List on 3-4-2006.


(R.K. DHAWAN) (VEERA VERMA)

COURT MASTER COURT MASTER

Entrance Case on March 27th

As per Hindu in http://www.hindu.com/2006/03/09/stories/2006030920780800.htm

The Supreme Court on Wednesday decided to hear on March 27, the Tamil Nadu Government's special leave petition challenging a Madras High Court judgment quashing the legislation scrapping the Common Entrance Test for admission to undergraduate professional courses for 2006-2007.

Appearing for the State before a Bench of Justice B.N. Agrawal and Justice A.K. Mathur, senior counsel Mukul Rohatgi sought early listing of the petition, saying the appeal required examination as the Act scrapping the CET had been struck down by the High Court. Three weeks' time was required to hold the CET and the matter might be listed for hearing on March 10.

The Bench declined early listing and said: "Let it come in the normal course for hearing on March 27."

Senior counsel Nalini Chidambaram and K.M. Vijayan, who had appeared in the High Court for the petitioners, were present in the court ready to oppose if the matter was taken up on Wednesday.

Move justified


Assailing the judgment, the petition stated that Tamil Nadu Regulation of Admission in Professional Courses Act, 2006 dispensing with the CET for State Board students, was enacted under Article 15 (5) of the Constitution.

Considering the representations from the public, the Government enacted the law under which State Board students need not appear for the CET.

Instead, students from other Boards such as the CBSE needed to take a CET to bring them on a par with the State Board students.

The High Court had erred in holding that the legislation impinged on the field occupied by the Central law, i.e. MCI and AICTE Regulations.

Further, it failed to appreciate that to establish that the rural students were socially and economically backward, a high-level committee was constituted and found that urban students had advantage in the CET over rural students.

Minuscule section


It must be noted that in Tamil Nadu, only one per cent of the students who appeared for the CET belonged to non-State Board and 99 per cent of the students belonged to the State Board.

Therefore, the High Court ought to have seen that to achieve status on a par with State Board students, it would be possible to conduct a CET for other Board students.

Contending that important questions of law of public importance were involved, the petition sought quashing of the judgment and an interim stay on its operation.

State/Institute wise comparison of stipend and tuition fee#

# Data compiled by MARD http://mard-strike.blogspot.com/, confirmed by personal contact of the residents of the Individual states.
*NA – not available.

Second Highest Fees - Tamil Nadu
Lowest Stipend of Rs 5000 - Tamil Nadu (it is rumoured to have been rised to 8500)
Highest Fees to Stipend Ratio - Tamil Nadu

State/Institute wise comparison of stipend and tuition fees arranged in order of Highest Stipend First^#

	Institute/state	Stipend	Tution fees	Allowances
1	AIIMS	21800	250	2000 book, 5000 thesis
2	Delhi	21000	6000
3	JIPMER Pondicherry	18000	1000	3000 books, 6000 thesis
4	NIMHANS	17700	750
5	BHU	17000	1500
6	Haryana	15500	35,000
7	Jammu Kashmir	15400	1,200
8	Bihar	15000	30000
9	Punjab	14800	30,000
10	Uttar Pradesh	14500	16,000
11	Madhya Pradesh	14,000	35,000
12	Chhattisgadh	11800	0
13	Rajasthan	10500	2000
14	Kerala	10000	18500
15	Goa	9625	4600
16	Maharashtra	8340	18000
17	West Bengal	8250	12000
18	Orissa	7500	6000
19	Gujrat	7000	7000
20	Assam	6950	2500
21	Andhra Pradesh	6400	1500
22	Karnataka	6230	10000
23	Tamilnadu	5000	30000
24	Jharkhand	NA*	NA
25	Himachal Pradesh	NA	NA

# Data compiled by MARD, confirmed by personal contact of the residents of the Individual states.

*NA – not available.

State/Institute wise comparison of stipend and tuition fee arranged in order of Highest Fees First^#

	Institute/state	Stipend	Tuition fees	Allowances
1	Haryana	15500	35,000
2	Madhya Pradesh	14,000	35,000
3	Tamilnadu	9000	30000
4	Bihar	15000	30000
5	Punjab	14800	30,000
6	Kerala	10000	18500
7	Maharashtra	8340	18000
8	Uttar Pradesh	14500	16,000
9	West Bengal	8250	12000
10	Karnataka	6230	10000
11	Gujrat	7000	7000
12	Delhi	21000	6000
13	Orissa	7500	6000
14	Goa	9625	4600
15	Assam	6950	2500
16	Rajasthan	10500	2000
17	BHU	17000	1500
18	Andhra Pradesh	6400	1500
19	Jammu Kashmir	15400	1,200
20	JIPMER Pondicherry	18000	1000	3000 books, 6000 thesis
21	NIMHANS	17700	750
22	AIIMS	21800	250	2000 book, 5000 thesis
23	Chhattisgadh	11800	0
24	Jharkhand	NA*	NA
25	Himachal Pradesh	NA	NA

# Data compiled by MARD, confirmed by personal contact of the residents of the Individual states.

*NA – not available.

State/Institute wise comparison of stipend and tuition fee Ratio arranged in Order of State with high fees and low stipend first^#

	Institute/state	Stipend	Tution fees	Yearly Stipend	Fees to Stipend Ratio	Allowances
1	Tamilnadu	9000	30000	108000	0.277778
2	Madhya Pradesh	14,000	35,000	168000	0.208333
3	Haryana	15500	35,000	186000	0.188172
4	Maharashtra	8340	18000	100080	0.179856
5	Punjab	14800	30,000	177600	0.168919
6	Bihar	15000	30000	180000	0.166667
7	Kerala	10000	18500	120000	0.154167
8	Karnataka	6230	10000	74760	0.133761
9	West Bengal	8250	12000	99000	0.121212
10	Uttar Pradesh	14500	16,000	174000	0.091954
11	Gujrat	7000	7000	84000	0.083333
12	Orissa	7500	6000	90000	0.066667
13	Goa	9625	4600	115500	0.039827
14	Assam	6950	2500	83400	0.029976
15	Delhi	21000	6000	252000	0.02381
16	Andhra Pradesh	6400	1500	76800	0.019531
17	Rajasthan	10500	2000	126000	0.015873
18	BHU	17000	1500	204000	0.007353
19	Jammu Kashmir	15400	1,200	184800	0.006494
20	JIPMER Pondicherry	18000	1000	216000	0.00463	3000 books, 6000 thesis
21	NIMHANS	17700	750	212400	0.003531
22	AIIMS	21800	250	261600	0.000956	2000 book, 5000 thesis
23	Chhattisgadh	11800	0	141600	0
24	Jharkhand	NA*	NA
25	Himachal Pradesh	NA	NA

# Data compiled by MARD, confirmed by personal contact of the residents of the Individual states.

*NA – not available.

Should medical students resort to a strike?

Should medical students resort to a strike?
Thomas George at http://www.issuesinmedicalethics.org/082mi059.html
Indian Journal of Medical Ethics Apr-Jun2000-8(2)

The medical students, resident interns and post-graduate students of Tamilnadu were on strike from February 17 till March 4. Although there were 16 grievances, the two main demands were an increase in the stipend and a law to prevent the setting up of any more private medical colleges in the state. On February 25, the government offered an increase in the stipend but refused to give an assurance on the private medical college issue. The strike continued and five students went on a “fast until death”. The students demanded an audience with the chief minister, but he demanded that they first call off the strike. The opposition leader raised the matter in the legislative assembly. Finally the chief minister agreed to meet the students on March 4.

The government agreed to raise the stipend from Rs. 2,250 to Rs. 3,027 for the resident interns. For post-graduates, the amount would go from Rs. 2,500 to Rs. 4,400 for first year postgraduates, Rs.4,641 for the second year and Rs.4,883 for the third year. Those doing super-specialty courses would get Rs. 5,366. The government also agreed to a 10 per cent annual increase of the stipend to prevent future strikes on this score.

During the course of the strike it became clear that the students were extremely concerned about the possibility of new private medical colleges in Tamilnadu. This was because in the recent past one had been started in Salem. This college had obtained permission from the Medical Council of India and the central government, despite being refused permission by the state government. It had approached the Supreme Court and won a directive to the state government to accord permission. The students were informed that this entire drama had become possible due to an amendment to the Medical Council Act in 1993, which vested the power to sanction new colleges with the MCI.

They had obtained a legal opinion to the effect that if the state passed a law to prevent the setting up of any more medical colleges in the private sector,it would override any law of the Central Government, since education is on the concurrent list. The students were apprehensive that this point was not being brought to the attention of the chief minister and hence their insistence on meeting him.

Other than the Christian Medical College, there are three private medical colleges in Tamilnadu. All of them were opened during the governance of the late MGR. Two of them have got deemed university status and admit students after collecting exorbitant capitation fees. They conduct bogus entrance examinations to give a façade of fairness to the selection process, but it is an open secret that one has to pay a capitation fee if one wants to get seat.

This is not to suggest that the DMK has been correct in their approach to medical education. During their several stints in power, they completely corrupted the selection process and a large number of undeserving students got not only medical seats, but also post- graduate seats. Subsequently, many of them were appointed to faculty positions. Knowledge of the kind of people they have put into the teaching medical colleges is perhaps one of the reasons that politicians now hardly ever go to a state government institution for medical treatment. MGRwent to the USA for a renal transplant. Even his early treatment in Chennai was not at the so- called “premier” institution, the Madras Medical College, but at a private hospital. It was during the governance of MGR that an entrance examination was introduced for entry to the medical colleges. This was probably more a response to the number of writ petitions that went against the state government every year in the matter of medical admissions and the strictures of the court, rather than any desire for fair play.

The question arises: Should medical students resort to a strike, however just their demands? This has been debated many times. Some concerned people believe that doctors should not go on strike, although they agree that many of the grievances are genuine and that governments are unresponsive (1,2). It is amazing that in the two references given, one written in 1992 and the other in 1999, i.e. a full seven years later, the grievances of doctors remain similar.

This suggests that policy-makers do not care, and can be forced to respond only by an extreme act like a strike. It is true that the poor suffer the most when there is a strike in a public hospital. But this is equally true when, for example, transport employees go on strike. The fundamental problem is that the state is not sensitive to the needs of the poor. This is seen in so many ways, like the meagre allocations for education, while handing out tax cuts to the already filthy rich. Expecting doctors alone to always be ready to sacrifice is neither meaningful nor healthy. Society has to be structured in such a way that rewards are allotted in a just manner. Doctors, who put in a lot of hard work, as most interns do, certainly deserve better working conditions. Until they get them as part of their rights, such strikes are likely to recur. They are a symptom of a deep malaise in our society, of which one manifestation is that a few undeserving but powerful people grab much more than their share of the fruits of development, while the vast majority are left to scrounge for the remaining crumbs.

References:

1.Ashtekar A, Mankad D: MARD strike: our reservations. (Letter). Issues in Medical Ethics 2000; 8: 2.
2. Pandya S: Letter from Bombay. National Medical Journal of India 1992; 5: 44-45

Should doctors strike work?

Should doctors strike work? by Yash Lokhandwala at Indian Journal of Medical Ethics
Apr-Jun1996-4(2) http://www.issuesinmedicalethics.org/042ed047.html

Strike is a legitimate form of collective protest in a democracy. At the same time, the guiding principle of medicine is the alleviation of suffering. Thus the issue of whether doctors should ever strike work is contentious. Some have preached from an ivory tower and advocated against this form of protest (1) . Opinions have been expressed that the suffering caused by a strike of doctors violates the ‘raison d’etre’ of the medical profession.

Of course one cannot deny that patient care suffers during a strike by doctors. The scale of harm caused depends upon the role played by doctors in that particular health set- up, the type of cases under treatment, and, of course, the duration of the strike.

Issues prompting strike
It is important to analyse the issues at stake which prompt a strike if one is to make a ‘cost- benefit’ assessment. For if a strike, in the long run, is to result in better health for a large section of the people, the inconvenience caused to a few during the strike may be justifiable.

Let us consider a scenario where the medical profession is forced to become a passive or active accomplice of a tyrannical political system as when doctors are forced to participate in state torture of revolutionaries. Doctors may be made to examine the victims before torture, help decide the best means and degree of torture appropriate for each victim (2). In extreme cases, they may even be asked to participate in the torture process itself. The role played by senior German doctors in the torture and experimentation of Jews and communists in Nazi Germany is well documented. Even today, in some South American, African and Asian countries, when doctors were ordered to play such a role by the state against its political opponents, several doctors refused, at much personal risk. Individually, these doctors were hounded and persecuted

In other countries such as Pakistan the medical associations protested and even went on strike to highlight the issue. Obviously such a strike would be supported by all right- thinking people. Thus to say that it is unethical for doctors to strike work as a blanket statement is completely unrealistic.

Let us now consider a less extreme instance. In 1984, as a member of the Maharashtra Association of Resident Doctors (MARD), I was a participant in a month- long strike against the proposed setting- up of private capitation- fee medical colleges in Maharashtra. We held that these colleges would serve as a backdoor route of entry for the academically less- deserving rich into the medical profession. This would lead to rampant commercialisation of medicine by half- baked doctors sprouting forth from these colleges, out to recover their lakhs of rupees of investment at the expense of an unsuspecting public. Pleas in 1983- 84 by many, including MARD, to government and university authorities to refrain from permitting (and encouraging) private medical colleges (charging exorbitant fees) to start, fell on deaf ears. We had then pleaded that, if we really needed more doctors, more public medical colleges be started.

Each of these proposed private medical college trusts enjoyed strong political patronage. The colleges were to be used to enrich their patrons and enhance their political power. It is not surprising that MARD’s pleas were brushed aside. Left with no other option, MARD declared a strike, which unfortunately failed in preventing the setting up of these commercial colleges. The strike did succeed in getting guidelines established for maintaining academic standards in these colleges and also for reserving a portion of the seats for meritorious poor students. Over the years these guidelines were side-tracked and many more tinpot medical colleges have sprung up. Today, 12 years down the road, we are experiencing the disastrous consequences of this shameful policy. Poorly trained ‘doctors’ emerge from these colleges, their first objective being the recovery of hundreds of thousands of rupees that their parents have spent in educating them. Now these same armchair philosophers who lament the present morass, criticise efforts such as a strike (even if this is the only possibly effective means) to prevent a foreseen Greek tragedy.

MARD strike justified
Finally let us consider the most mundane, yet commonest reason for a doctors’ strike. Yes, I’m referring to strikes for economic demands, brought into focus by the recent MARD strike of resident doctors in public hospitals for pay rise and better living conditions. One need not go into the miserable conditions that resident doctors work under, since these have been repeatedly described in the lay press. Suffice it to say that their living and working conditions, coupled with a meagre salary, made it impossible for them to work efficiently and to live with dignity. Directly or indirectly, sooner or later, such oppressive working conditions are bound to result in suboptimal work quality and output. Numerous representations over the years to the authorities for provision of decent accommodation and realistic salaries have gone unheeded. Except for 1989, the state Government has never increased the salaries of resident doctors without a strike action by MARD.

If the recent predictable MARD strike had not occurred, the situation would have kept deteriorating towards a total system failure, i. e. a foreseeable breakdown of efficient patient care due to the inability of resident doctors to function properly. In fact, we frequently read about the shortage of faculty members in public hospitals due to poor salaries . It may not be alarmist to say that a breakdown of public health services is imminent. Yet our preachers from the pulpit would say, ‘Let things collapse but do not strike work. ’

References
1. Pandya SK: Letter from Bombay. Strikes in hospitals. British Medical Journal 1988; 297: 1278.
2. Jesani A: Supreme court judgement violates medical ethics. Medical Ethics 1995; 3: 38.
3. Amnesty International Report, 1986.
4. Jain K: Medical colleges face faculty shortage. Times of India 3 March 1996 page 7. 48

Yash Lokhandwala ,Member, Executive Committee, Maharashtra Medical Council, Member, Central Advisory Board of Education (New Delhi), Ex-member, Medical Council of India

Trends in public health

Read this old post written in 2000 at http://www.issuesinmedicalethics.org/081ed003.html by Arun Bal

It is still very relevant, even today

Resident doctors of public hospitals in Mahaharashtra were on strike again, demanding parity in their stipend with other states. This was their sixth strike in two decades. The usual pattern is that the strike is carried forward for two to three weeks and then withdrawn in the face of government coercion. The government does little to prevent such strikes, or to hold any meaningful discussion with the agitators once they begin. This is primarily because the people affected by the strike are poor and unorganised, and cannot put much pressure on the government. Also, the public’s health is a low priority for all political parties.

Resident doctors make up the backbone of public hospitals affiliated to teaching hospitals, and the government‘s assertion that the strike did not affect services in these hospitals is completely false. Resident doctors are post- graduate medical students who work as resident doctors as a part of their post- graduation. Keen on completing their post- graduate studies, they are usually up-to- date on recent developments in their subject. They are responsible for the efficient work culture and relatively high quality patient care in these hospitals — a contrast to district hospitals with facilities similar to teaching hospitals but with full- time doctors who are government employees.

Demands justified
There is a big gap in the stipend paid by the government of Maharashtra and that paid by other states. The government expects resident doctors to work 24 hours a day without the protection of any service rules because they are students. At the same time, it charges them hefty teaching fees for post- graduate courses.

The government also argues that resident doctors in Bombay are working in the best hospitals in the country, and will go on to earn lakhs in their private practices based on the experience they receive at these hospitals. This ‘good will’ justifies the low stipend that they receive. The government’s contribution towards this ‘good will’ is zero.

Resident doctors in Maharashtra work and live in abysmal conditions which are bound to affect patient care adversely. In times of medical crisis, they must depend on archaic communication systems. Discharge cards are still hand written, though computerising the record system would save significant time for patient care. Essentially, the government has always looked upon resident doctors as cheap labour for its public teaching hospitals.

In short, the demands of resident doctors in Maharashtra were justified.

Why the strikes fail
However, resident doctors have failed to garner public support for any of their strikes in the last 25 years. The reasons: the inherent weakness of the Maharashtra Association of Resident Doctors (MARD) as an organisation whose members and leadership change every three years, and the lack of social awareness about the critical role that resident doctors play in public teaching hospitals. The government has always exploited these facts to break the strike.

Both MARD and the medical profession at large have failed to create public awareness about the importance of resident doctors for public teaching hospitals. The medical profession’s general lack of political awareness contributes significantly to the current situation. The main demand in residents’ strikes has always been monetary. Instead, the focus of any negotiation should be the poor working conditions which affect patient care.

Any strike by health professionals which deprives people of basic care is unethical. MARD should have allied with other medical and social organisations to lobby the government, negotiate and arrive at an amicable solution. They should also have focused on the trends in health care responsible for the situation today.

Trends in public health
Investment in the care of seriously- ill patients as a percentage of investment in public health has been decreasing over the years, particularly after the World Bank / IMF’s structural adjustment programme pushed for privatisation of the public health system. The Maharshtra government’s recent Rs 771 crore loan from the World Bank to modernise the district and sub-district level health- care system is conditional on starting user fees and increasing the involvement of the private sector in the public health system. The government has already announced that private doctors will be hired on contract to improve the functioning of public hospitals. It is surrendering public hospitals to private medical colleges which don't have a hospital of their own, in order that these understaffed institutions run by politicians meet the Medical Council of India’s requirements. Finally, the entry of private health insurance companies is likely to reduce the importance of public teaching hospitals.

While these trends are not directly related to the resident doctors’ strike, the government is likely to use the strike as a excuse to take privatisation one step further. Its move to reduce the importance of resident doctors by reducing the seats for open category post- graduate registration, reserving some for full- time government doctors, will, in the long run, adversely affect patient care in public hospitals. Neither MARD nor other professional organisations in the state have taken note of this fact.
National standardisation of stipends to post- graduate students and resident doctors is unlikely unless the medical profession realises the political and social implications of health care privatisation and joins hands with like minded organisations to create public awareness on the issue. Such public protest — with the support of professional organisations — forced the British government to abandon similar plans in some National Health Service hospitals.

The recent resident doctors’ strike in Maharashtra is a symptom of a crumbling public health system. The medical profession’s ignorance of this fact will only help the government break the strikes.

--------------------------------------------------------------------------------

Arun Bal,Flat 6, Mallika, Makranth Housing Society, SVS Marg, Mahim, Mumbai 400016

Illegal working hours of junior doctors throughout the country

TO,

THE NATIONAL HUMAN RIGHT COMMISION
NEW DELHI


Sub: Illegal working hours of junior doctors throughout the country
And routine (!)Death of patients due to this forced negligence.

Sir,


This is to bring in to your notice the illegal and unhealthy working hours of junior doctors in the Government hospitals and teaching institutes throughout the country and the adverse effect it has on the safety of poor patients. Today in all other sector where continuous round the clock duty are required i.e. Telecommunication, Railways, Airlines, Travel, Forces etc., the norms of 48 hours/week or less and shifts and night duty norms are followed (compensatory off are given, if stretched any time beyond recommended limit). It is unfortunate, as well as inconsistent with their own principles, that the organizations most vitally concerned with the health of the community should in many cases show such DISREGARD for the health of their own employees. The issue of long working hours in medical and health services is particularly important, not only because the staff/doctor has not only to provide care, mostly on a round the clock basis, but also because THEIR WORK INVOLVES A HIGH LEVEL OF RESPONSIBILITY FOR THE HEALTH AND WELL-BEING, AND SOMETIMES THE SURVIVAL OF PATIENTS.

As per the directives of the Honourable Supreme Court in its judgment dated,25.9.87, in writ petition No. 348-352 of 1985, all the State Governments, Medical Institutions and Universities are required to amend their rules and regulations to introduce a uniform residency scheme by 1993.

THE HONOURABLE SUPREME COURT IN ITS ORDER STATED

“A uniform practice has to be evolved so that the discipline would be introduced. We
accordingly allow the present arrangement to continue for a period of five years
I.e. upto 1992 inclusive. For admission beginning from 1993 there would be only one
pattern. All Universities and institutions shall take timely steps to bring about
such amendments as may be necessary to bring statutes, regulations, and rules
obtaining in their respective institutions in accord with this direction before the end of
1991 so that there may be no scope for raising of any dispute in regard to the matter.
The uniform pattern has to be implemented for 1993. It is proper that one uniform system is brought into vogue throughout the country.”

In this connection Ministry of Health & Family Welfare, Govt. of India has sent directive to all states & U.T. administrations vide letter No. S-11014/3/91/ME (P) dated 05 June, 1992. Unfortunately many States in India refused to obey that orders till date.

Ministry of health and family welfare, Government of India sent consolidated instructions to all states and UT administration vide letter number S-11014/3/91 ME(P) regarding implementation of Uniform Central Residency Scheme after the directives of the Supreme Court in its judgment dt. 25.9.87 in writ petition No. 348-352 of 1985,
The instruction No.13 of this letter ‘Hours of Work', it is mentioned that
"Continuous active duty for resident doctors will not normally exceed 12 hours per day. Subject to exigencies of work the resident doctors will be allowed one weekly holiday by rotation. The resident doctors will also require to be on call duty not exceeding 12 hours at a time. The junior Residents should ordinarily work for 48 hours per week and not more than 12 hours at a stretch subject to the condition that the working hours will be flexible as may be decided by the Medical Superintendents concerned keeping in view the workload and availability of doctors for clinical work."
As we see, here total weekly hours of work (48 hrs/week) as well as the maximum hours in single stretch (12 hours) are clearly defined. Of course the authorities may remind us the flexibility given in above instruction. However we would like to state the following.
a) Any flexibility given by law or constitution should only be used as a special measure and must not be used as ROUTINE. Today Medical colleges in India are forcing Junior doctors to work continuous 24 Hrs (!) and this is being practised routinely for last many years.
b) That flexibility is given for 'Working hours' & not for hours of work that is, while authorities are free to post any doctor in day or night or in holidays, they must stick to the norms of "hours of work" that is Maximum 48 hours in a week and 12 hours Finally even if the total no. of doctors posted (when all posts are filled) are not able to cope with work load under normal working-hours-limit then the no. of post must be increased. In no case junior doctors to be forced to work more than what is permitted by law and various recommendations. in a single stretch.

The International Labour Organization, Geneva (India being the member of the same) as early as in 1962 in its recommendation No.116 concerning Reduction of hours of work in its General principle No. 4 states as
PRINCIPLE 4: Normal hours of works should be progressively reduced, when appropriate with a view to attaining the social standard indicated in the Preamble of this recommendation without reduction in the wages of the workers as at the time hours of work are reduced.
PRINCIPLE 6 states as - Where normal weekly hours of work are EITHER FORTY EIGHT OR LESS, MEASURES FOR THE PROGRESSIVE REDUCTION OF HOURS OF WORK in accordance with paragraph-4 should be worked out and implemented in a manner suited to the particular national circumstances and the conditions in EACH sector of economic activity.
Further in Determination of Hours of works 12(1) it states: The calculation of normal hours of work as on average over a period longer than one week should be permitted when special conditions in certain branches of activity or technical needs justify it.
Recently ILO in its Night Work Recommendation 1990 (No. 178) states that "the normal hours of work of night workers should generally be less on average than those of workers performing the same work to the same requirements by day."
Considering that today in India in 5 days week most of the office workers perform a 42-43 hours/week and the maximum limit is set as 48 hours/week for all including the health sector, the total hours of work of doctor (especially Junior doctors , interns) per week must be less than this (i.e. 48 hours/week) as they perform most (all) of the night duties.
Further in this recommendation it is clearly stated that IN NO CASE should two consecutive full time shifts be performed, except in cases of FORCE MAJEURE (The allowed hours of shift in a single stretch is MAXIMUM 12 hours) & In No case further extension of this limit (12 hours) should be done. Presently, we Junior doctors are forced to work continuous 24 Hours (!) in a single stretch. In many departments weekly hours (Normal average) are 65-80 hrs/week & it crosses even 100(!)Hrs/week.
Further it states that at least 11 hours of rest period should be granted between two shifts (One must remember, shift are of Maximum 12 hours) as far as possible.

Presently Resident doctors (Post graduate students in Medical colleges) in India are forced to work 85-105 hrs/week in most of the clinical departments without the protection of any service rules because they are students. This is done under the instruction of the Head of the Departments concerned. Junior doctors pursuing their post graduation course, whose final assessment are in hands of these authorities, i.e. HODs. There fore no one normally risks their career. This way exploitation of this floating population of junior doctors goes on and on the other hand patients suffer routinely and many times even die due to this forced negligence. While stretching duty hours our learned authorities simply forget the PROVEN FACT that errors and accidents increases sharply (An exponential graph) in mental and physical work, when duty hours are stretched beyond 10-12 hours continuous duty.

As the graph of errors and accidents increases steeply this 100% increase (24 hrs continuous duty in place of 12 hours maximum limit) in duty hours is sufficiently enough to do BLUNDERS AND ENDANGER human life.

"A doctor at his 20th-24th hour of continuous duty in Emergency ward, if not able to provide proper care to the patient for whom even a single minute can prove life saving or Fatal. This way if patients suffer than who will be HELD RESPONSIBLE, the Doctor on duty or the HOD or DME or the Govt.?”
Because doctor is performing unofficial extended hours, and he/she has the reason to state that doctor was not in his/her proper mental and physical condition due to chronic sleep deprivation and exhaustion. In fact this extended hour coincides with the mid night and early morning time, when all those patients who come to casualty irrespective of there diagnosis, feel that if they will delay till morning it may be harmful/fatal to them and most of the times indeed these emergencies are life threatening. With great hope in mid night when they visit hospital for proper care, they find a drowsy, tired, exhausted doctor, who is not even able to examine properly. The general impression becomes that doctor has neglected him, where as patient hardly knows doctor’s real condition. After all patients do deserve the proper and efficient care, especially when there is no scarcity of doctors and this duty regime is artificially motivated. The finding of Justice Ranganath Mishra, former National Human Rights Commission, about delay and negligence in treatment of accident victims, are actually related with this illegal duty hour practice. Under growing public demands for health quality services the question which involves life of human beings, cannot be left unanswered.

After approximately eighteen hours of work Doctors have got the equivalent psychomotor dysfunction as having a blood alcohol level of .05. So not only at .05 you're not allowed to drive but at the equivalent level of psychomotor dysfunction you're allowed to look after patients. And by the time you've worked for twenty-four hours you've got the equivalent of having a blood-alcohol level of .1 and that's just ridiculous.

In most of the countries there is a limitation on extra hours, the average over month or quarterly it must be with in norms, which varies 40 to 48 hours per week in different countries. In most of the states in India no duty hour’s norm exists. Most hospital authorities do not even bother how many hours a junior doctor has worked, and so it increases up to inhumane levels as high as 103 hours in a week.

One should also note that a number of countries have enacted duty hours regulations for doctors. In Denmark, Norway and Sweden, residents work only 37-45 hours per week. In Netherlands, residents’ duty hours are limited to 48 hrs per week. France has a 35 hour per week limit.

The unexpected death of Libby Zion, 18 yr old daughter of an attorney and writer for the New York Times, at New York hospital in 1984, led to series of investigation that resulted in profound changes in residency duty hours in USA.

In similar situation in London in December 1990 a junior doctor obtained a preliminary judgement from the court of Appeal on a claim for damages against Bloomsbury Health Authority. The court said that health authorities could not lawfully require junior doctors to work for so many hours that there was a foreseeable risk of injury to their health. The Vice-Chancellor, Sir Nicolas Browne-Wilkinson, said: “In any sphere of employment other than that of junior doctors, an obligation to work up to 88 hours in any one week would be rightly regarded as oppressive and intolerable." The doctor had served a writ on the health authority in March 1989 after working a 112-hour week which included a 49-hour shift over a weekend. He felt that his health had suffered so much that he resigned from his job at University College Hospital, London, and gave up medicine for a time.

Great public and media attention was drawn in September 1990 when two doctors in the neonatal pediatrics unit of the Southern General Hospital, Glasgow, were threatened with dismissal for refusing to carry on working 115 hours a week. After two sessions working the 115-hour week, the doctors said that chronic sleep deprivation was severely impairing their medical judgment and putting the lives of new-born babies at risk. In the same month a hospital patient in Middles borough died after a tired doctor gave her the wrong injection. The doctor had been on duty for 30 hours with just three hours interrupted sleep when she gave the fatal injection.

The comments of the acting coroner in the inquest into the death of a New Zealand woman, the innocent party in a car crash, reinforce the importance of addressing the issue of fatigue. The patient survived the accident, but died following a mishap while in hospital. A significant issue for the coroner was the extent to which the fatigue of one of her doctors may have played a part in her demise. The coroner remarked that there was a growing level of concern, both nationally and internationally, over the hours of work of doctors in hospitals, and suggested that the medical professional bodies address the issue of extended periods of work.

Hope in India, justice will not get delayed until some VIP will die. Negligence and irritative behaviour (due to chronic sleep deprivation) of doctors in government hospitals are known to every one and the death due to such forced negligence are nothing but routine (!) death of hospitals.

With great hope, that commission will look in to the matter and take necessary steps to end this violation of human rights of both patients and junior doctors.



March 5th 2006


Ref.
1. Honorable Supreme Court in its judgment dated, 25.9.87, in writ petition No. 348-352 of 1985
2. Letter No. S-11014/3/91/ME (P) dated 05 June, 1992.
3. Letter No. S-11014/25/89- ME(P).
4. Letter No. S-11014/39/80-ME(P)
5. Conclusion from general report (Latest), Standing technical committee for Health & Medical Services, ILO, Geneva.
6. ILO`s recommendation No. 178, 116.
7. Swan, N. Juniors' Hours: International Overview. BMJ 1990; 301: 830-832.
8. Olson LG, Ambrogetti A. Working harder -- working dangerously. Fatigue and performance in hospitals. Med J Aust 1998; 168: 614-616.
9. Williamson A. The effects of workload and long hours of work on medical officers. Sydney: National Institute of Occupational Health and Safety (WorkSafe Australia ), 1995.
10. Nocera A, Khursandi DS. Doctors' working hours: can the medical profession afford to let the courts decide what is reasonable? Med J Aust 1998; 168: 616-618.
11. Fein EB. Flouting law, hospitals overwork novice doctors. New York Times, 14 December 1997; 1.
12. Holmes G. Hospital medical officers: hours of work and workloads, A strategic approach to occupational health and safety. Canberra: Australian Medical Association, 1995.
13. Department of Transport. Investigation into the Kings Cross Underground Fire. London: HMSO, 1998.
14. Coroner's Court. In the matter of the death of Patricia Margaret Ross. Rotorua, New Zealand : 15-17 October 1997; 18-20.
15. Permanent Working Group of European Junior Hospital Doctors. Working conditions for doctors in training. Conference Proceedings, Executive Summary. Brussels: European Union Publications Office, December 1995.
16. European Union. Directive on Working Time, 93/104. Brussels: European Union Publications Office, 1993.
17. NHS Management Executive. Hours of work of doctors in training: guidance on regional task forces.London: Department of Health; 1991.
18. Neurosurgery 54:925-933,2004 Resident duty hours in American Neurosurgery.

1999 Maharashtra PG Strike

EXCERPT FROM PRESS RELEASE DURING RESIDENT DOCTOR'S STRIKE IN 1999, INDICATING WAFT SUPPORT .

NOVEMBER 25: The state government today issued an order empowering deans of all government medical colleges to recruit specialist doctors on a contract basis to counter the resident doctors' strike. Required on an urgent basis are: neurosurgeons, nephrologists and cardiologists among others. In lieu, the government has agreed to pay these superspecialists Rs 500 for every eight hours of work.
The government's announcement comes a day after a resolution passed on Wednesday by The Welfare Association of Full-Time Teachers at Nair Hospital suggested that they might eventually call upon the authorities to close down the hospital as they were finding it difficult to cope. In view of the strike, which entered its fourth day today, teachers have been manning emergency services in the city's municipal and government hositals.
T C Benjamin, secretary, state Medical Education and Drugs Department, told Express Newsline, that the move to hire doctors on contract was to ensure that superspeciality servicescould function smoothly. In the same breath, he added that health services in the city had not been really affected by the strike. A copy of this order has also been sent to Municipal Commissioner K Nalinakshan who could if he wished implement it in civic hospitals. In addition, the government has also requested the Ministry of Defence to dispatch reinforcements from the army medical corps.

Asked whether he saw any anamoly on spending on hiring these doctors rather than paying the residents more, Benjamin said that while the latter would incur an additional expenditure of Rs 25 crore per year, the sum spent on hiring doctors on contract was relatively meagre. ``How much would paying each doctor Rs 500 entail,'' he asked. ``Anyway, social considerations are our utmost priority?''

In a climbdown from the earlier position, Dr V L Deshpande, State Director for Medical Education and Research, said the authorities have even offered a hike of 45 per cent to the resident doctors as opposed to the 20 per centoffer earlier and have agreed on a salary of Rs 7,000 for a junior resident. ``It should be remembered that resident doctors are students and cannot be given the salary of a government employee,'' he pointed out.

But the residents are in no mood to relent. At a morcha at Azad Maidan today, they stressed that nothing short of central pay parity will do, even if continuing the agitation meant rustication.

Addressing a gathering of about 400 resident doctors, the MARD organising secretary, Dr Rajas Deshpande, claimed the authorities were trying to misinform the public that the hospitals are running smoothly. ``The deans are doing so for the love of their chair,'' he said, adding that they had thus betrayed their own resident doctors and no longer commanded their respect. He also said that the government had implemented the Fifth Pay Commission scales for medical teachers to prevent them from going on strike. ``The timing is not a coincidence,'' he added.

Patients continued to be a casualty of thisconflict. Outpatients departments of most hospitals were virtually empty and only emergency cases were admitted to the wards. A senior doctor from St George's Hospital admitted that even though they have been told to maintain services, the fact was that there was a complete collapse of patient care.

And if the government is not feeling the pinch of the resident doctors' strike, it is the teachers working in public hospitals who have been affected. WAFT president Dr Asha Pai Dhungat told Express Newsline that while AMOs from peripheral dispensaries were putting in a lot of work, ``They cannot handle situations where immediate treatment is required.. But they are sincere and hard-working.'' In its Wednesday resolution, WAFT has also said, ``Due to the large volume of emergency cases that we have to deal with in the absence of resident doctors, our best may not be enough to prevent patient morbidity and mortality. Medico-legal problems could thus arise for which we would not be responsible in anymanner.''

Copyright © 1999 Indian Express Newspapers (Bombay) Ltd.

All PGs are Equal - Supreme Court

PETITIONER:
DR. DINESH KUMAR & ORS. A
Vs.

RESPONDENT:
MOTILAL NEHRU MEDICAL COLLEGE, ALLAHABAD & ORS.

DATE OF JUDGMENT25/09/1987

BENCH:
MISRA RANGNATH
BENCH:
MISRA RANGNATH
DUTT, M.M. (J)
ACT:
Professional Colleges-Medical Colleges-Admission to
Post Graduate Courses-Structuring of courses-Common pattern
and uniform system-Necessity for-Holding of all India
examination for reserved seats-Directions by Court. C
JUDGMENT:
ORIGINAL JURISDICTION: Civil Misc. Petition No. 7667 of
1987.
In
Writ Petition Nos. 348-352 of 1985.
(Under Article 32 of the Constitution of India).
Madan Lokur for the Petitioners.
G. Viswanatha Iyer, P.K. Pillai, M.K.D. Namboodary for
the State of Kerala

B.R. Aggarwala, and Ms. S. Manchanda for Medical
Council of India.
D.N. Devedi, R.P. Srivastava, Mrs. Halida Khatun and
Ms. A. Subhashini for the Union of India.


The following order of the Court was delivered

Three aspects of the matter require consideration of
this Court apart from the question of finalising the
schedule relating to holding of the selection examination
and those are: (1) structuring the Post Graduate courses (2)
the question of diploma being a qualification for n
admission in Post Graduate course as prevailing in the State
of Tamil Nadu and (3) Provision in regard to super
specialities like MD and other higher degrees.

A uniform practice has to be evolved so that the
discipline would be introduced.
We accordingly allow the
present arrangement to continue for a period of five years
i.e. upto 1992 inclusive. For admission beginning from 1993
there would be only one pattern

All Universities and institutions
shall take timely steps to bring about such amendments as
may be necessary to bring statutes, regulations, and rules
obtaining in their respective institutions in accord with
this direction before the end of 199 1 so that there may be
no scope for raising of any dispute in regard to the matter.
The uniform pattern has to be implemented for 1993.

It is proper that one uniform system is brought into
vogue throughout the country. The justification for such a
course has been appropriately emphasised both in the main
judgment as also in the intermediate order made by us and
there is no necessity to reiterate the reasoning now


All directions necessary for the Post Graduate courses
are now complete. We direct the Union of India, the Medical
Council of India, H
356
the State Governments, Universities, Medical Institutions
and all other authorities that may be involved in
implementation of the scheme to give full effect to the
orders and direction made by this Court in the proper spirit
so that the scheme may become operative as directed. We make
it clear that no application for any modification of matters
already covered by our order henceforth shall ordinarily be
entertained.
A copy of this order shall be communicated forthwith
to the Chief Secretary of every State and Union Territory
for compliance. A copy of it be also sent to the Director
General, All India Radio and Doordarshan for appropriate
publicity of the order in general interest.
N.P.V.
357

Stipend for Post Graduates

As per the directives of the Honourable Supreme Court in its judgement dated,25.9.87, in writ petition No. 348-352 of 1985, all the State Governments, Medical Institutions and Universities are required to amend their rules and regulations to introduce a uniform residency scheme by 1993.
In this connection Ministry of Health & Family Welfare, Govt. of India has sent directive to all states & U.T. administrations vide letter No. S-11014/3/91/ME (P) dated 05 June, 1992.
The Medical council of India has also stated that “all candidates joining post graduate training programme must work as full time residents during the whole period of their training programme. The post graduate students shall be paid adequate remuneration irrespective of the status of the institution whether Government/Private/Autonomous”.