Draft Recommendations to decide professional incompetence: Report of the Study Group
The present Study Group came to be constituted by the President Medical Council of India in response to a communication from National President Indian Medical Association Dr. K. K. Aggarwal addressed to her bringing to notice that Rule 8.6 in the Code of Medical Ethics Regulation 2002, which brings out that Medical Council of India has to prescribe guidelines with respect to judgment by a peer group pertaining to ‘professional incompetence’ of a professional.
Accordingly the Study Group critically debated and discussed the said issue and is pleased to observe as under:
Rule 8.6 of the Code of Medical Ethics Regulations 2002 reads as under:
“Professional incompetence shall be judged by peer group as per guidelines prescribed by Medical Council of India”
As such, it is evident that professional incompetence of a professional duly registered with the State Medical Council upon fulfilling the precondition of the eligibility of having acquired recognized medical qualifications from a University and duly incorporated in the concerned schedule appended to the Indian Medical Council Act, 1956, is required to be judged by a peer group in accordance with the guidelines prescribed by the Medical Council of India.
It is noted that as of now no such guidelines have been prescribed by the Medical Council of India as contemplated under Section 8.6 of the Code of Medical Ethics Regulation 2002 whereby the modality of the assessment of professional incompetence of a professional required to be dealt by the registering council through a peer group constituted for the said purpose is not in vogue for want of prescribed guidelines by the Medical Council of India.
In this context the Study Group noted that ‘professional incompetence, professional misconduct and professional incapacitation’ by and large are used interchangeably in a colloquial as well as operational sense on practically more occasions than not primarily because all the three within their fold include failure on part of the professional to take reasonable steps to safeguard the life and health of the person under his care. It is for this reason it is imperative that the distinction between the three needs to be taken note of.
Preamble: These guidelines shall be titled as ‘Guidelines governing assessment of professional incompetence by a peer group under Rule 8.6 of Code of Medical Ethics Regulation 2000 as amended from time to time.
1. These shall come into the force from date of its Notification by the Medical Council of India.
2. Extent and coverage: These shall be applicable for any medical trial jurisdiction at the institutional or at any council level. They shall not cover criminal aspect of professional negligence.
3. Definitions: Unless the context requires otherwise
a) ‘Adverse event’ means an unintended injury to patient that results from healthcare management (rather than the underlying condition of the patient), which results in measurable disability, prolonged hospitalization or both
b) ‘Bolam Test’ means the test evolved out of the judgment in the case of Bolam v Friern Hospital Management Committee  1 WLR 582 used to assess standard of care when deciding medical negligence.
c) ‘Clinical Establishment’ means an establishment as defined in the Clinical Establishment Act, notified by the Government of India.
d) ‘Guidelines’ means recommendations or standards notified by the Medical Council of India in terms of Section 8.6 of Code of Medical Ethics Regulation 2002.
e) ‘Institution’ means a medical college permitted / approved / recognized by the Medical Council of India/Non teaching Hospitals
f) ‘Medical accident’ means an unforeseen or unexpected medical event causing loss or physical damage or injury, brought about unintentionally, as a result of treatment or failure to treat appropriately due to ignorance or lack of knowledge.
g) ‘Medical Council of India’ means the council constituted in terms of section 3 of the Indian Medical Council Act, 1956.
h) ‘Medical error’ means the failure of a planned action to be completed as intended or use of a wrong, inappropriate, or incorrect plan to achieve an aim.
i) ‘Medical malpractice’ means negligent or improper or unreasonable lack of skill in the treatment of a patient, on the part of a health care professional or health care facility that causes harm, injury, or death to a patient or any act or omission by a physician during treatment of a patient that deviates from accepted norms of practice in the medical community and causes an injury to the patient. Or improper, unskilled, or negligent treatment of a patient by a Health Care professional. Or medical malpractice is the failure of a medical professional to follow the accepted standards of practice of his or her profession, resulting in harm to the patient.
j) ‘Medical mishap’ means an unfortunate accident
k) ‘Peer’ means a person who is equal in ability, standing, or rank with another
l) ‘Professional incapacity’ means inability to carry out professional activities and responsibilities/obligations due to a physical or mental condition/illness that may limit the capacity of a professional person to fulfill his/her professional responsibilities/obligations temporarily or permanently
m) ‘Professional incompetence’ means failure to exercise due care and diligence in professional responsibilities due to lack of knowledge, skill.
n) ‘Professional misconduct’ means unacceptable/dishonorable and unethical behavior by a professional person or noncompliance with the applicable laws and regulations
o) ‘Professional negligence’ means an act or omission (failure to act when there is a duty to act) which a reasonable man in the circumstances would do or an act of commission (wrong doing) by a medical professional, which a reasonable man in the circumstances would not do.
p) ‘State Medical Council’ means a council constituted and notified under the governing legislative enactment adopted by the concerned State legislature.
q) ‘Untoward event’ means an unfavorable or adverse event
4. Mandate: To judge professional / medical incompetence of a registered medical practitioner by a duly constituted peer group
5. Composition of the peer group:
a) Peer Group shall be constituted at Institutional / Clinical Establishment / State Medical Council / Medical Council of India level to judge the professional incompetency of a registered medical practitioner in a time-bound manner.
b) The peer group shall be a three-member committee with a chairman, one IMA nominee and one professional subject expert.
c) The peer group on receipt of any complaint shall examine the allegation in a time-bound manner, preferably within two weeks and forward its reasoned-out speaking order following the principle of natural justice and based on “Bolam’s Test” to the Institutional Head, Clinical Establishment Head / Chairman of the Ethics Committee of the State Medical Council / Chairman of the Ethics Committee of the Medical Council of India as the case may be.
Report submitted to the President, Medical Council of India, New Delhi, for needful.
Dr Vedprakash Mishra
Chairman, Academic Committee, MCI
& Convener Study Group
Dr KK Aggarwal Dr RN Tandon
National President, IMA Secretary General, IMA
Dr Vinay Aggarwal
Past National President, IMA
Place: New Delhi
Date: 23rd Sept. 2017