Implementation of Kerala clinical establishments Act will affect small hospitals, say private hospital forum and IMA

The decision of a division bench of the Kerala High Court upholding the validity of the Kerala Clinical Establishments (Registration and Regulations) [KCE] Act 2018 comes as a major win for the State government, whose attempt to bring in transparency and ethical standards in clinical practice through a regulatory framework was being stiffly resisted by the State’s private health sector.

However, the Kerala Private Hospital Association (KPHA) and the Indian Medical Association (Kerala Chapter) [IMA], whose writ appeals against an earlier High Court single bench ruling upholding the Act was thrown out by the court on Wednesday, continues to maintain that implementation of the Act could be the last nail on the coffin for small and medium hospitals in the State, which have begun to exit the health sector.

“We are not against the Act. But our concerns about the practical issues that stand in the way of its implementation have not been addressed, even though we have had several rounds of discussions with the government. Small and medium hospitals, which provide affordable health care to people, will have to shut shop if the government insists on going ahead with the implementation of the Act,” Hussain Koya Thangal, president of the KPHA, said.

The KCE Act primarily insists on mandatory registration of all clinical establishments and that every establishment maintains certain minimum standards based on the category in which they fall. It also says that hospitals display their rates for various procedures openly so that there is better transparency.

The KPHA and the IMA had argued in court that the mandate to publish “type of service” and “package rates” under Sections 39(2) and 39(3) was vague, impractical, and prone to arbitrary interpretation, violating rights under Articles 14 and 19(1)(g) of the Constitution. They also maintained that the Act imposed unreasonable burdens on private hospitals.

‘Will be overburdened‘

“We have 1,362 members, of whom only about 50 are super speciality hospitals. About 300 are medium hospitals with 100-200 beds. All the rest are hospitals with less than 50 beds. These small hospitals which are running with optimum staff will be overburdened if the Act is implemented the way the court has insisted upon. How can these hospitals take huge responsibilities such as stabilising accident victims and ensuring their safe transport?” asked Mr. Thangal

However, the division bench clearly pointed out that small clinics were only expected to screen, stabilise within capacity, and ensure safe transfer.

“There are practical issues in implementing this Act, mainly for small hospitals, which is why we had been requesting that hospitals with up to 50 beds be exempted from the provisions of the Act. Many other States have done it. Every death in a hospital is now alleged to be due to medical negligence by the public before an inquiry is conducted. We fear that the provisions of this Act will be used to persecute small hospitals and cancel their licence, said N. Sulphi, a member of IMA’s central working committee.

Sources at the Health department pointed out that there are no provisions in the Act which points to arbitrary action by the government without leaving room for grievance redressal or legal recourse for clinical establishments.

“They have consistently created hurdles in the way of the implementation of the Act because they do not want any scrutiny on them. There are complaints galore regarding many unhealthy practices in the private health sector, including the conduct of unlicensed procedures, over charging of patients, hidden costs and the qualifications of personnel employed. They fear that the implementation of the Act would open up all these to question. Or else why would they challenge even the simple act of registration under the Act?,” asked an official.

The court had pointed out that the Act does not require hospitals to do a “clairvoyant pre-pricing of every possible clinical contingency.” All that was required was display of baseline tariffs for identifiable services and packages

It said that the “practical difficulty in implementation cannot by itself destroy the validity of a law enacted in public interest.”

“The Act does not create new constraints; rather it operationalises the constitutional duties through a registration-cum-standards regime, a transparency mandate and enforceable minimum requirements for emergency care and stabilisation,” the court said.

Both the KPHA and the IMA claimed that they are not for confrontation with the government but that their concerns had to be addressed through consultations.