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2011 Supreme(Raj) 116
[Citation : 2012(1) RLW 125 (Raj.)]
(Rajasthan High Court)
Vijay Mehta Vs. State of Rajasthan & Ors. (Mishra, CJ.)
HON'BLE ARUN MISHRA, CJ.
HON'BLE KAILASH CHANDRA JOSHI, J.
Vijay Mehta
Versus
State of Rajasthan & Ors.
D.B. Civil Writ Petition Nos. 3031 & 2991 of 2007, decided on 10.10.2011
M. Mridul, Sr. Advocate A/w A.K. Choudhary, for Petitioner in C.W.P. No.3031/2007;
Ashok Changani, for Petitioner in C.W.P. No. 2991/2007;
R.S. Saluja, V.K. Mathur, Y.P. Khileree, J.P. Joshi, Sr. Adv., A/w Tarun Joshi, for Respondents
Headnote:Indian Medical Council (Professional, Conduct, Etiquette, and Ethics) Regulations, 2002, Regulation 1.5; Medical Council of India Act, 1956, Secs. 20-A, 33(M), 15(2) — Not prescribing medicines by generic name — Medical practioners evolved a device of obtaining declaration from patients that they do not want to prescribe generic medicine — Branded medicines are offered at exorbitant price — Held — As per regulation 1.5 every medical practitioner is bound to prescribe generic medicines — The device of obtaining declaration, amounts to breach of professional ethics as contained in the Regulation which are binding and mandatory — Unholy link between doctor and pharmaceutical company — Ultimate sufferer is poor ailing person — Violation of Article 21 of the constitution of India — Required to be dealt with sternly. (Paras 24 to 29)
Writ petitions disposed of.
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Based on the provided legal document, the key points are as follows:
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The regulation mandates that all medical practitioners are required to prescribe medicines using their generic names as far as possible, with exceptions only for specific categories such as combination drugs and life-saving drugs (!) (!) (!) .
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Prescribing medicines by brand names or obtaining declarations from patients that they do not want medicines prescribed in generic names is considered a breach of professional ethics and the regulations framed by the Medical Council of India (!) (!) (!) .
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The practice of doctors obtaining declarations from patients to avoid prescribing generic medicines is unethical and amounts to a violation of the professional conduct standards. Such actions can lead to disciplinary proceedings against the practitioners (!) (!) .
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The regulations emphasize that prescribing medicines in generic names is essential for cost-effective healthcare and ensuring medicines are affordable for the public, especially those below the poverty line (!) (!) .
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The decision of the Medical Council of India, supported by the State Government, is that doctors should prescribe medicines in generic names, including for combination and life-saving drugs, with the only exceptions being explicitly allowed by the Council’s considered opinion (!) (!) .
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The practice of prescribing brand names for commercial reasons, and the unholy link between doctors and pharmaceutical companies, is discouraged and considered unethical, with a call for stern disciplinary action against violators (!) (!) .
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The regulations and directives are binding on all medical practitioners, whether working in government or private sectors, and compliance is mandatory to uphold the standards of the medical profession (!) .
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The authorities are directed to ensure strict adherence to these regulations and ethical standards, and any attempts to circumvent prescribed norms, such as obtaining declarations or prescribing in brand names unnecessarily, should be dealt with sternly (!) (!) .
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The overall goal is to promote rational prescribing practices that prioritize patient welfare, affordability, and ethical conduct, and to eliminate practices that compromise these principles (!) (!) .
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The directions issued by the Medical Council of India and the State Government are to be followed strictly, and efforts should be made to further expand the list of generic medicines prescribed, with the understanding that non-compliance can result in disciplinary action (!) .
These points reflect the core legal and ethical principles related to the prescription of medicines, emphasizing the importance of adhering to prescribed regulations to maintain professional integrity and public health interests.
2. C.W.P. No.3031/2007 has been filed by Mr. Vijay Mehta in which prayer has been made to direct the State of Rajasthan to ensure that he doctors pres-cribe medicines in their generic name and the doctors who fail to do so be appropriately dealt with by the Indian Medical Council and Rajasthan Medical Council. The Council be directed to take stern action against those doctors who act contrary to the provisions of the Indian Medical Council (Professional Conduct, Etiquette & Ethics) Regulation, 2002. Other prayers made in the writ application have not been pressed as such they are not being referred.
3. The petitioner is District President of All India Trade Union Congress. The writ application has been filed considering high rocketing unreasonable price of medicines. The medicines are becoming beyond the reach of the people living below the poverty line. The medicines are not available at reasonable cost. The medicines are not being prescribed by their generic name but by their brand names whereas the doctors cannot do so. They are bound by the Regulations framed by the Medical Council of India to prescribe the medicines by their generic names. The doctors are trying to adopt different mechanism to sidetrack and justify their action of not prescribing medicines by their generic names. Reliance has been placed by the petitioner on Rajasthan State Standard Treatment Guidelines, 2006 which have been prepared by the Medical, Health and Family Welfare Department of the Government of Rajasthan with the help of outstanding doctors of Rajasthan in different specialties. It has been mentioned with respect to the prescription form in the Guidelines of 2006 thus,
"The International Non-proprietary name of the drug should always be used. If there is a specific reason to prescribe a special brand, the trade name can be added. The Pharmaceutical form (for example 'tablet', 'oral solution', 'eye ointment') should also be stated."
4. The petitioner has also relied upon a Booklet containing Orders for Purchase of Stores (Drugs & Medicines) issued by the Directorate of Medical & Health Services, Government of Rajasthan in which generic names of medicines have been used.
5. The Medical Council of India with the previous approval of the Central Government and in exercise of the powers conferred under Section 20A read with Section 33(m) of the Indian Medical Council Act, 1956 (referred to hereinafter as 'the Act of 1956') has framed Indian medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 herein after referred to as 'the Regulations of 2002') which have been notified on 11.3.2002. Chapter-I of the Regulations of 2002 pertains to Code of Medical Ethics. Regulation 1.5 deals with the use of generic name of drugs and provides that every practitioner should as far as possible prescribe the drugs by their generic names. Regulations have been filed as Annex.3 to the writ application.
6. It is further averred in the writ application that strange mechanism is being resorted to frustrate the policy of Government of Rajasthan. Some doctors have resorted to the mechanism of making a patient write that he does not want medicines to be prescribed in generic name. Photocopies of two prescriptions (P/7 & P/8) have been filed. In one of them, patient Nand Kishore was asked to write "GENERIC DAVAI NAHI LAGWANI HAI". These types of declarations are obtained in ignorance and pressure. The action amounts to violation of professional ethics framed by the Medical Council of India with the approval of the Central Government.
7. There is no different sets of standard for same drugs. Sections 21, 22 and 23 of the Drugs and Cosmetics Act, 1940 (referred to herein after as 'the Act of 1940') have also been referred to. The Government is bound to keep the price control of drugs so that they are available at affordable prices. Prayer has also been made to dir
