KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 07/2024

JUDGMENT DATED: 01.10.2024

(Against the Order in C.C. 222/2022 of DCDRC, Palakkad)

PRESENT:

HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR           : PRESIDENT

SRI. AJITH KUMAR D.                                                                 : JUDICIAL MEMBER

SRI. RADHAKRISHNAN K.R.                                                     : MEMBER

APPELLANT:

Amrutha, D/o late Purushothaman, Arun Nivas, V.T. Nagar, Anjumoorthymangalam, Vadakkancherry, Palakkad.

(By Adv. Narayan R.)

                                                Vs.

RESPONDENT:

Dr. Deepa Nair, Psychiatrist, Thankam Hospital, West Yakkara, Palakkad-678 701.

JUDGMENT

HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR  : PRESIDENT

The appellant is the complainant before the District Consumer Disputes Redressal Commission, Palakkad (“the District Commission” for short).

2.  The appellant is an employee in ‘Wipro’.  The appellant was given medical treatment by the respondent during December 2020 and January 2021.  She had no complaints of depression disorder or psychotic features. The appellant had come to know that the respondent had issued a certificate with the caption “To whomsoever it may concern”, certifying that the appellant was suffering from depression disorder with psychotic features.  The said certificate was issued to the husband of the appellant, against whom a case was pending before the Family Court, Palakkad.  The issuance of such a certificate would violate the confidentiality in doctor-patient relationship. It is also unethical.  The consequence of issuing such a false and frivolous medical certificate was well within the knowledge of the respondent.  If the certificate had been produced before the employer of the appellant, it would have affected her employment also.  The issuance of such a fabricated document had caused irreparable injury and hardships to the appellant.  There was deficiency in service on the part of the respondent, for which the appellant had claimed a compensation of Rs. 2,00,000/- along with costs of the litigation. 

3.  The respondent filed version stating that the appellant was an out-patient in the psychiatric department of Thankam Hospital.  The appellant came to the hospital along with her husband in December, 2020 and January, 2021.  The appellant did not follow up the treatment after that.  On 11.08.2021, the respondent issued a medical certificate to the husband of the appellant showing the details of the diagnosis in respect of the respondent.  The respondent had issued certificate to the husband of the appellant bonafide and in good faith.  The certificate was sought for continuation of the treatment elsewhere. The psychological evaluation had been done by the respondent on both the husband and the wife and there was no sign of preparation of divorce between them.  The certificate was issued in accordance with the accepted norms and clinical practice. 

4.  Both sides filed proof affidavit in lieu of examination-in-chief. Exhibits A1 to A4 were marked for the appellant. After evaluating the evidence, the District Commission dismissed the complaint, finding that it was frivolous and vexatious. The District Commission also directed the appellant to pay a compensation of Rs. 25,000/- and costs of Rs. 15,000/- to the respondent, against which this appeal has been filed. 

5.  Service is complete. However, there is no representation for the respondent.

 6.  Heard the learned counsel for the appellant and perused the records.

7.  It is not disputed that the appellant was treated as an out-patient by the respondent during December 2020 and January 2021.  It is also not disputed that the respondent had issued Exhibit A1 medical certificate to the husband of the appellant.  In Exhibit A1certificate, it was stated that the appellant had depression disorder with psychotic features.

8.  The appellant would contend that the respondent should not have issued Ext. A1 certificate without the consent of the appellant, as it was the bounden duty of the respondent, being a doctor who treated the appellant, to keep confidentiality regarding the ailment of the appellant.  The appellant would further contend that the appellant had no depression disorder with psychotic features as stated in the certificate.  It was further alleged that the certificate was issued to help the husband of the appellant for the purpose of producing the same before the Family Court where the dispute between the appellant and her husband was pending.  It is further contended that if the certificate had been produced before the company where the appellant was working, her job would have been in trouble.  The act of the respondent would amount to clear deficiency in service. 

9.  The respondent, as has been mentioned above, admitted the issuance of Ext. A1 certificate.  However, the respondent would contend that it was issued bonafide to the husband of the appellant for the purpose of further treatment of the appellant.   The respondent would further contend that the respondent was not aware about the strained relationship between the appellant and her husband. 

10.  It has been argued by the learned counsel for the appellant that the doctor's duty to maintain secrecy has a correlative right vested with the patient that whatever has come to the knowledge of the Doctor would not be divulged and it is this right which is being enforced through the present proceedings.

11.  The Indian Medical Council Act controls the medical education and regulates the professional conduct. In exercise of the powers conferred under section 20A read with section 33(m) of the Indian Medical Council Act, 1956(102 of 1956), the Medical Council of India, with the previous approval of the Central Government, made the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002, regulating the Professional Conduct, Etiquette and Ethics for registered medical practitioners. In chapter 2, there is a clause as 2.2, which is the provision to maintain the confidentiality, which reads as herein below:-

• Patience, Delicacy and Secrecy: Patience and delicacy should characterize the physician. Confidences concerning individual or domestic life entrusted by patients to a physician and defects in the disposition or character of patients observed during medical attendance should never be revealed unless their revelation is required by the laws of the State. Sometimes, however, a physician must determine whether his duty to society requires him to employ knowledge, obtained through confidence as a physician, to protect a healthy person against a communicable disease to which he is about to be exposed. In such instance, the physician should act as he would wish another to act towards one of his own family in like circumstances”.

       Chapter 7 of the above regulations deals with the acts of commission or omission on the part of a physician constituting professional misconduct rendering him/her liable for disciplinary action.

       The clause 7.14 is relevant in this case, which is extracted as hereunder:-

“The registered medical practitioner shall not disclose the secrets of a patient that have been learnt in the exercise of his / her profession except –

1. in a court of law under orders of the Presiding Judge;
2. in circumstances where there is a serious and identified risk to a specific person and / or community; and
3. notifiable diseases.

In case of communicable/notifiable diseases, concerned public health authorities should be informed immediately”.

       12.  It is thus clear that the medical information about a person is protected by the Code of Professional Conduct made by the Medical Council of India under S. 33(m) read with S.20A of the Act. The relevant provisions of the Code of Medical Ethics have already been reproduced above which contain an exception to the general rule of confidentiality, in as much as it provides that the information may be disclosed in a Court of law under the orders of the Presiding Judge.

13.  The Code of Medical Ethics also carves out an exception to the rule of confidentiality and permits the disclosure in the circumstances enumerated above under which public interest would override the duty of confidentiality, particularly where there is serious and identified health risk to others.

14.  The Hon’ble Supreme Court in Mr. ‘X’ Vs. Hospital ‘Z’ (1998 KHC 1256: AIR 1999 SC 495) held in paragraph 26 thus:- 

“26. Right of Privacy may, apart from contract, also arise out of a particular specific relationship which may be commercial, matrimonial, or even political. As already discussed above, Doctor patient relationship, though basically commercial, is professionally, a matter of confidence and, therefore, Doctors are morally and ethically bound to maintain confidentiality. In such a situation, public disclosure of even true private facts may amount to an invasion of the Right of Privacy which may sometimes lead to the clash of one person's "right to be let alone" with another person's right to be informed”.

15.  It was further held by the Hon’ble Supreme Court in paragraph 27 in Mr. ‘X’ Vs. Hospital ‘Z’(supra)  thus:-

“27. Disclosure of even true private facts has the tendency to disturb a person's tranquillity. It may generate many complexes in him and may even lead to psychological problems. He may, thereafter, have a disturbed life all through. In the face of these potentialities, and as already held by this Court in its various decisions referred to above, the Right of Privacy is an essential component of right to life envisaged by Art.21. The right however, is not absolute and may be lawfully restricted for the prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others”.

16.  In the case on hand, it is admitted by the respondent that the respondent had issued Exhibit A1 certificate to the husband of the appellant. In Exhibit A1 certificate, it was stated inter alia that the appellant had depression disorder with psychotic features. The respondent would contend that Exhibit A1 certificate was issued bonafide to the husband of the appellant for the purpose of further treatment of the appellant.

17.  The question now to be considered is as to whether Exhibit A1 certificate was issued against the norms of the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002. 

18.  The appellant was admittedly treated as an out-patient by the respondent during December 2020 and January 2021. Therefore, the appellant and the respondent had patient-doctor relationship. The respondent had admittedly issued Exhibit A1 certificate to the husband of the appellant.  In Exhibit A1 certificate, it was stated that the appellant had depression disorder with psychotic features. Exhibit A1 certificate was admittedly issued without the consent of the appellant.  It appears that Exhibit A1 certificate was issued with the caption ‘To whomsoever it may concern’.  The purpose for which Exhibit A1 certificate was issued is also not mentioned therein. It was also not contended that any exception to the general rule of confidentiality was available in the present case. From the above facts itself, it can be said that Exhibit A1 certificate was issued by the respondent against the doctor's duty of maintaining secrecy. In the doctor-patient relationship, the most important aspect is the doctor's duty of maintaining secrecy. A doctor cannot disclose to a person any information regarding his patient which he has gathered in the course of treatment nor can the doctor disclose to anyone else the mode of treatment or the advice given by him to the patient. The above discussion would clearly show that Exhibit A1 certificate was issued by the respondent against the mandates in the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002. 

19.  The Mental Health Act, 1987 does not provide any provision for issuing a certificate like Exhibit A1 in respect of a patient who is suffering from mental ailment.  Sec. 21 of the Mental Health Act would show that it contains the forms and contents of the medical certificate to be issued under Sec. 20 of the said Act.  Sec. 20 of the Mental Health Act deals with application for reception order.  Thus, it is seen that a medical certificate under Sec. 21 of the Mental Health Act can be issued only for the purpose of reception order under the Mental Health Act.  No other provision has been brought to our notice under the Mental Health Act to issue any other form of medical certificate. Thus, it appears that the Mental Health Act also does not contemplate issuance of a medical certificate like Exhibit A1 in respect of a patient suffering from mental ailment. For the said reason also, it cannot be said that Exhibit A1 certificate was issued in accordance with law and code of medical ethics. Even if the contents in Exhibit A1 certificate are true, even then issuing of such a certificate stating the mental ailment of the appellant cannot be justified.

        20.  The case sheet dated 14.12.2020 had been produced by the respondent.  However, the said document was not marked.  Even though the said document was not marked, since it was produced by the respondent, the same can be used against the respondent.  It is clear from the said case sheet that the appellant had marital disharmony with her husband and in laws.  Even then, the respondent issued Exhibit A1 certificate when the husband of the appellant alone approached the respondent. This being the situation, the contention of the respondent that the respondent was not aware that the appellant and her husband were not in good relationship, cannot be believed. However, that alone is not sufficient to hold that the respondent acted without bonafides and not in good faith.  Having gone through the relevant inputs, we are of the considered view that Exhibit A1 certificate was issued against the interest of the appellant/patient and contrary to the accepted medical ethics, even if the contention of the respondent, that she issued the said certificate bonafide and in good faith, is accepted as true.  Therefore, there was definitely deficiency in service on the side of the respondent.

21.  We have already found that Exhibit A1 certificate was issued against the interest of the appellant/patient and contrary to the accepted medical ethics.  The appellant was aggrieved by Exhibit A1 certificate issued by the respondent, as it contained a statement that the appellant was suffering from depression disorder with psychotic features.  Even if it is assumed that Exhibit A1 certificate was issued by the respondent bonafide and in good faith, that cannot be a ground to hold that Exhibit A1 certificate was legal and proper, if the respondent had violated the confidentiality of the doctor-patient relationship.  The District Commission did not incline to find out as to whether Exhibit A1 certificate was issued in violation of the provisions of the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002 or not.  Since the appellant was really aggrieved by the issuance of Exhibit A1 certificate by the respondent, the appellant approached the District Commission for the redressal of her grievances.  Since Exhibit A1 was a medical certificate issued by the respondent violating the confidentiality of the doctor-patient relationship, there was no justification in the finding by the District Commission that the complaint was frivolous and vexatious. That apart, the complainant had raised the question of legality of Exhibit A1 certificate in the complaint. When a question of law is to be answered in a complaint, that complaint cannot be dismissed as frivolous and vexatious. For the said reasons, the finding of the District Commission that the complaint was frivolous and vexatious cannot be sustained. 

22.  A vexatious complaint is dealt with under Sec. 26 of the Consumer Protection Act, 1986 (“the old Act” for short).  The said provision was deleted from the statute when the Consumer Protection Act, 2019 (“the new Act” for short) was enacted.  There is also no provision in the new Act corresponding to Sec. 26 of the old Act. The Consumer Protection Act is a beneficial legislation.  Probably, that may be the reason why there is no provision in the new Act, corresponding to Sec. 26 of the old Act, dealing with vexatious complaints.

23. Exhibit A1 certificate was issued on 11.08.2021, which was after the new Act came into force. The order impugned was passed on 15.12.2023, which was also when the new Act was in force.  In the said circumstances alone, the compensation and costs ordered by the District Commission, while dismissing the complaint, cannot be justified.  Even as per Sec. 26 of the old Act, the maximum costs which could be ordered while dismissing a vexatious complaint was only Rs. 10,000/-. There was also no provision even under Sec. 26 of the old Act to order any compensation. There is no provision in the new Act to order any compensation or costs while dismissing a frivolous and vexatious complaint.   Even though the Consumer Protection Act is a beneficial legislation to protect the interest of the consumers, the District Commission had lost sight of it and dismissed the complaint filed by the consumer with heavy penalty, even when there was no provision for doing so.   This being the situation, the District Commission was not justified in ordering the compensation and costs while dismissing the present complaint.

24.  The above discussion would show that the order passed by the District Commission cannot be sustained and consequently we set aside the same.

25.  It appears that the respondent is a lady doctor aged 38 years.  Even though the respondent had issued Exhibit A1 certificate against the medical norms, considering the fact that the respondent is a lady aged 38 years, who is still having long service as a doctor, we are taking a very lenient view and abstain from awarding any compensation or costs, particularly when no convincing material is available on record to indicate that the act of issuing Exhibit A1 medical certificate, by the respondent, was tainted with malice.  That apart, the appellant did not press for awarding compensation.  Moreover, we hope and wish that the respondent will be more vigilant in her profession in future.

In the result, this appeal stands allowed and the order impugned stands set aside. The parties shall suffer their respective costs.

JUSTICE B. SUDHEENDRA KUMAR: PRESIDENT

                                                                  AJITH KUMAR D. : JUDICIAL MEMBER

                                                                        RADHAKRISHNAN K.R.  : MEMBER

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