Healthcare Laws in Bangladesh Dr BELAL HUSAIN JOY Abstract The prime objects of this paper are to undertake stock of the laws that are in practice in Bangladesh, to guide the healthcare service providers and users, policy formulators and legislators. Towards these objects the researcher has undertaken detailed literature survey, discussed in groups with practising doctors specialising in Healthcare Administration, attended seminars and for latest data searched through appropriate internet addresses. The researcher has addressed the Healthcare Rights under Bangladesh Constitution, Laws for Medical Negligence & Legal Remedies, Health Policy, Consumer Rights Protection Ordinance, 2007, and a number of relevant issues and finally, made a number of recommendations to comply with the original research objectives. Major recommendations are: to protect the patients from malpractice of the health professionals and hospitals; the government must take criminal action against unauthorised medical practitioners; wider introduction of Legal-Aid; health service users – the members of public are needed to participate to achieve the constitutional goals and objective of ‘Health Care for All’; make wider publicity that the patients have legal rights as consumers to claim for injury and damages to their health made by the doctors and hospitals; Government must make available the minimum infrastructure and lifesaving drugs at every hospital or dispensary, particularly in villages, to respect and abide by the Code of Conduct of the BMDC and of course the government must give due recognition to ‘right to health care to comply with citizens’ fundamental right’. The researcher concluded the paper with a statement “Bangladesh must have its own modernisation program ‘for the application of appropriate knowledge, technology and management which constantly evolve by new innovations to achieve the national economic, social and political development goals in the midst of changing environment’; to help and support preparing an effective Road Map for a “Healthy Bangladesh”.
Introduction: Every year, we, in Bangladesh, observe World Health Day. On the day, esteemed dailies publish special supplements with messages of the Head of State, Head of Government, Health Minister/Advisor and other executives with articles and news. All is well for the Day, but not for rest of the year. Around the World Health Day, interested quarters hold seminars in national level and attract print and electronic media. In the year 2008, was of no exception. At least three seminars were organised, one by the Transparency International Bangladesh [TIB], the second one was by the National Committee of Health Rights Andolon and the third one was by Bangladesh Private Clinic Diagnostic Owners’ Association. I had the opportunity of attending them all. In all of them, most of the discussions concentrated on Health Care Rights, National Health Policy, Drugs Policy, Government and Private Health Care Services and facilities, and Health Budgets and allocation of funds, Contributions of NGOs and their lack of accountability, and over-all governance of the Government and Private Health Care institutions. In the year 2009, similar seminars with similar agenda were held. The discussants of the above seminars were Health Care professionals, economists, NGO executives, media personalities, representatives of the international health organisations and interested individuals. Noticeably, there was no participant representing the Homeopathic and Ayurvedic practitioners. There was no discussion about failure of the governments came into power to implement the constitutional obligation upon the state to secure the health of the people, even after 37 years of our independence. Sadly, 150 million general members of the public along side with the technocrats, bureaucrats, civil society and professionals; no one can deny the fact that we drink formalin milk; eat bird flu chickens, poisonous fish, forced ripen fruits, adulterated food; suffer from
severe shortage of safe drinking water; in addition, open sanitation & nutritional problems are our every day health hazard. We did not have any Consumer Rights Protection Act; only recently the caretaker government passed an Ordinance, which is found to be inadequate to service the people. Followed by the same, the present government has passed the consumer rights protection act this year, rule of business is still to be prepared and implemented. The Health Policy we have has been heavily criticised by the health practitioners and health service users and needs to be re-drafted. There was hardly any discussion on Health Care Laws, their importance, adequacy and implementations in Bangladesh, not only that, it is even more disappointing to note that the election manifestos declared by the major political parties for Parliamentary Election 2008 gave ‘no indication of how the problems in the health sector will be resolved or what steps will be taken to develop the sector’.1 All the above concerns made me interested to write this paper. Research Objectives: 1. To undertake stock of available laws in force in Bangladesh, in relation to Healthcare; 2. To help guide the Doctors, Hospital Managers, Policy Formulators and Legislators to be more effective in their individual professions and occupations; 3. To increase awareness among the NGOs and the other primary healthcare organisations; 4. To guide and help the patients and the medical service users keeping them update with their rights and laws available in their support; and 5. To increase awareness of the politicians in position and in opposition on their duties and obligations towards the citizens in relation to healthcare.
1
Political Parties Ignore Healthcare Issues, The Daily Star, Tuesday, December 23, 2008, p3
Research Methodology: 1. Relevant Literature Survey; 2. Group Discussion with the Doctors specialising in Healthcare Administration; 3. Research Papers; 4. Internet Data Search : domestic and international etc. Literature Survey: Healthcare Statistical Data: Bangladesh is an over-populated with highest population density of 881/sq km and a least developed country (LDC) in the world. Seventy seven percent people live in rural areas. Sixty per cent of the population live below poverty level. Maternity and child healthcare service is inadequate. Infant and maternal mortality rate is still very high. Protein deficiency and chronic malnutrition are widespread.2 Selected Health Infrastructure information: UHFWC 31-50 Bed UHC District Level Hospitals Government Medical College Hospitals Postgraduate Hospitals Specialist Hospitals Doctor to population ratio Nurse to population ratio Total Hospital beds Number of Nursing Institutes No. of Registered Nurses services) 3
2
3375 397 80 13 6 25 1:4719 1:8226 40,773 (over 290000 in GOB) 38 22,000 (14,686 Govt.
Health Policy of Bangladesh Health Policy of Bangladesh as mentioned in Dr Md Sharif Hasan, Case-Study on Healthcare Laws in Bangladesh, IBAIS University, Dhaka, 2006. 3
Some Health and FP Indicators: CDR Annual growth rate MMR IMR Under 5 MR TFR CPR Life expectancy at birth Fully immunised children TB (smear positive new) detection rate
5.2/1000 population 1.48 percent 3.92/1000 population 62/1000 live births 83/1000 live births 2.9 53.8% 68 (m) and 69 (f) 52% 31.2% 4
Health Legislation in Bangladesh: Health Legislation in Bangladesh can be divided into six groups, namely, (1) vital registration, (2) communicable disease control, (3) food and drugs control, (4) medical education, (5) health practice and (6) environmental health. Primary Laws for Healthcare Services in Bangladesh: To take the readers to the journey of Healthcare Laws, it is important to mention that the following laws are the primary laws for Healthcare services in Bangladesh: The Drug Act, 1940, The Pharmacy Ordinance, 1976, The Medical and Dental Council Act, 1980, The Medical Practice and Private Clinics and Laboratories (Regulations) Ordinance 1982, The Bangladesh Unani and Ayurvedic Practitioners Ordinance, 1983, The Bangladesh Homeopathic Practitioners Ordinance, 1083, The Bangladesh Nursing Council Ordinance, 1983, Bangladesh Drug Control Ordinance, 1982, BSTI Ordinance, 1984/85/88,5 and the likes. Pharmaceutical Industries produce drugs, Doctors prescribe appropriate medicines, Pharmacists sell the medicine to the patients, 4
Health Policy of Bangladesh as mentioned in Dr Athful Hai Shibli, Healthcare Academic Project, IBAIS University, Dhaka, 2006. 5 Bangladesh Code (Index), GOB, Ministry of Law, Justice and Parliamentary Affairs, June 2007
Entrepreneurs run the hospitals and clinics with the help of doctors, nurses and medical technicians and other experts and employees. And all these primary laws are applicable, as appropriate, to provide the above Healthcare services in Bangladesh. Regulations of Healthcare Professionals: Healthcare practitioners have been generally brought under: (i) The Medical and Dental Council Act, 1980, (qualifications and registration of medical practitioners and dentists); (ii) The Bangladesh Nursing Council Ordinance, 1983, (qualifications and registration); (iii) The Bangladesh Homoeopathic Practitioners Ordinance, 1983, (regulation of the qualifications and registration of practitioners); (iv) The Bangladesh Unani and Ayurvedic Practitioners Ordinance, 1983,6 (regulation of the qualifications and registration of practitioners). In addition to them, The Medical Practice and Private Clinics and Laboratories (Regulations) Ordinance, 1982 was enforced to regulate medical practice and functions of private clinic and laboratories i.e., charges & fees, maintenance of chambers & registers, licence to establish private clinic, inspection etc. Bangladesh Medical and Dental Council has its own Code of Medical Ethics, under which any practitioner convicted of false pretences, forgery, fraud, theft, indecent behaviour or assault, is liable to disciplinary action by the Council. But such Council actions are never heard of. Medical Wrongs and Negligence: In course of providing the aforesaid services, medical negligence is a common phenomenon. Numbers of such incidents are unknown in Bangladesh, as there is no accurate data recording system. However, in the newspapers, almost everyday, there is news on medical negligence of a kind or the other. In microscopic level, legal actions are seen to be taken. The forms of common medical wrongs/faults/negligence are: Wrong diagnosis, Wrong prescription, Wrong doses of medicine, Wrong or faulty medical equipments – 6
Ibid.
lack of maintenance, Prescribing extra medicine with business interest, Medical Corruption, Out-dated medicines, Medical Malpractice, Breach of Confidence by the Doctors and Nurses, False Medical Certificates, Lack of quality Care. Lame Excuses: When the above wrong doers are brought to attention, the authorities concern like hospital managers, doctors, nurses will invariably show reasons like: untrained or poor training of the technicians – lack of technical competence, Shortage of Doctors, Nurses and technicians, Health hazard in Health Care Institutions – poor waste management, Unlawful information access and use, No Consumer Rights – legal rights of the patients., No Tort Law – hardly any remedies for medical negligence, Lack of Social Skills of the Health Service professionals and providers, BMDC failed to manage and monitor the members’ professional & ethical duties, Lack of legal knowledge of the Doctors, Nurses, Technicians and Hospital Managers. Laws for Medical Negligence & Legal Remedies: To administer and monitor the healthcare services another set of substantial laws are also in action, they are: Constitutional Law, Law of Contract 1872, Penal Code 1860, Code of Criminal Procedure 1898, The Limitation Act 1908, Consumer Rights Protection Ordinance 2007, The Fatal Accident Act 1855, The Law of Evidence 1872, Law of Tort (we have limited tort law in our country) and so on. These are the laws available in our country to file suits against the medical wrong doers & negligent and for legal remedies. But the complainant must remember that the doctors are not always at the receiving end, in case of a frivolous complaint, penal provisions are available to ensure a statutory safeguard against false and chronic litigants or nuisance mongers. The doctors must be allowed to practise their profession without any unjustified fear of indictment. Hence, under Healthcare Law in Bangladesh, it is essential to discuss these areas of Law in brief for our readers and potential researchers.
Health Policy: The Health Policy confirms that every Citizen has the basic right to adequate health care, the State and the government are constitutionally obliged to ensure health care for its citizens. In deed, the goal of the National Health Policy (NHP) is to make necessary medical utilities reach people of all strata as per Article 15(A), and develop the health and nutrition status of the people as per Article 18(A) of the Bangladesh Constitution7. Health Policy is required to be re-drafted to be more compatible to the demands and expectations of the Heath service users – the patients and service providers of all different areas. The preparation committee may consist of Doctors, Health Care Managers, Economists, Lawyers, Stakeholders, Service users and relevant experts and consultants along side with the government administrative servants. Health experts and rights activists at a seminar rejected the National Health Policy 2008, saying that it has ignored several fundamental issues and that such a policy should be formulated by an elected government, not the caretaker government … no health rights activists were involved in the policy-making process … although the policy calls for health rights of all, it gives priority to private healthcare service … the role of NGOs in the health sector be made specific … the policy has given priority to medical technology, whereas prevention of diseases and primary healthcare service should be given priority … the policy does not have vision statement. 8 Legal Analysis: 7
Dr Belal Husain Joy, Constitutional History of Bangladesh, 2008, pp.350-351 & 353-354 8 Proposed Health Policy ignores basic issues, The Daily Star, Tuesday, September 23, 2008
Constitutional Rights to Healthcare: Article 32 of the Constitution of the People’s Republic of Bangladesh states that no person shall be deprived of life or personal liberty saves in accordance with law. What is Right to Life? To almost all of us, have every respect to the probable arguments, right to life includes (1) adequate safe and clear food, (2) safe drinking water, (3) public health - sanitation, (4) fairly comfortable sleeping accommodation, (5) medicine & Healthcare, and (6) security of life and property. They are all basic necessities of a life just for plain living. Article 15 of the Bangladesh Constitution confirms that it shall be fundamental responsibility of the State to secure those provisions of basic necessities … right to life is protected by law under Article 31 of the Constitution, stating that to enjoy the protection of law … is the inalienable right of every citizen … no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. This is clearly echoed in the Article 2 of the European Union of Human Rights Act 1998 saying ‘Everyone’s right to life shall be protected by law’.9 Medicine and healthcare is a basic necessity of a life and a fundamental right of a citizen. Law of Contract, 1872: Liabilities of Health Professionals under the Contract Act 1872,10 mainly depends on the express or implied terms agreed upon by the parties i.e., the patient or his representative, the doctor or the hospital concern. Law of Contract is based on the principles of ‘agreement between the parties for consideration’; although the liability of the health professional for breach of contractual obligation is very narrow comparing with the other legal options. The Act contains detailed provisions with regard to offer, acceptance, consideration, agreement, compensations, Agent & Principal, vicarious liabilities etc. Under this act, the patient or his representative can file a case 9
Dr Belal Husain Joy, Right to Life and Food Adulteration, New Nation, September 12, 2005 10 Law of Contract, 1872
claiming damages in the courts starting from sub-ordinate to High Court Division of the Supreme Court of Bangladesh depending on the amount of claim. ‘The provisions contained under the Contract Act are wide enough to cover even a breach or non-fulfilment of a contractual obligation resulting into mental disorder or loss to the patient. However, it is difficult to prove the allegations under this Act … The compensation or damages being granted by them is very high and stand at a different footing.’11 Penal Code, 1860: Provisions for imprisonment and fine are available in penal code,12 and these provisions are equally applicable to both the doctors and the patients (complainant). If a doctor or a nurse can be punished or fined for his/her negligence, a complainant shall not be spared if his complaint is found to be frivolous or vexatious. Such provisions are intended to check harassing complaints or actions initiated with oblique motives to achieve unlawful gains or unearned incomes. Sections 269 and 270 covers punishments for negligent act and malignant act likely to spread infection of disease dangerous to life respectively; Causing death by negligence is a criminal offence and it is punishable under s.304A13; causing miscarriage without women’s consent under s.313; death caused by act done with intent to cause miscarriage if act done without woman’s consent under s.314; an act done with intent to prevent child being born alive or to cause it to die after birth under s.315, and other relevant sections like Ss.316-318. In addition, acts not intended to cause death, done by consent in good faith for person’s benefit under s.88 can also be an essential provision for medical wrong cases.
11
Prof. SK Verma, Legal Framework for Health Care in India, 2002, p158 Penal Code, 1860 13 Dr Belal Husain Joy, Law Management Skills, 2005, p226 12
‘There is a fear in the minds of doctors/medical professionals that, they may be harassed by police or by the law courts particularly in medico-legal cases. This inhibits them in the handling of such cases. The judiciary and police should therefore, avoid summoning medical professionals for interrogation, unless it is absolutely necessary’.14 Code of Criminal Procedure, 1898: 15 Conditional order for removal of nuisance u/s133; Service or notification of order u/s134; Persons to obey or show cause u/s 135; and Consequences of failing to comply u/s136 are frequently used in cases of medical wrongs. The process of initiating such cases are quite similar to any criminal case, start with registering and FIR with the police, giving names of the accused, place of commission of offence, date & time etc., or can made complaint in writing to the Magistrate, or a petition may be filed before the High Court under Article 102 of the Constitution of Bangladesh16 if appropriate. The Limitation Act, 1908:17 For all suits, petitions, applications or complaints, maximum time limits are fixed by the Law of Limitation; a person has suffered any wrong must not waste time, or otherwise, it may signify laches or even prove that he has waived his rights or has acquiesced the wrong. Failing file suits, petitions, appeals, reviews, revisions and such other legal actions within the time allowed by law, the remedy will be time-barred, i.e., unenforceable by law. In so far as the writ jurisdiction, there is no limitation prescribed for filing a petition in the High Court, because of the peculiarity of facts and circumstances of individual cases, although, at time, the party concern, may be found guilty of laches.
14
Prof. SK Verma, Legal Framework for Health Care in India, 2002, p165 Code of Criminal Procedure 1898 16 Dr Belal Husain Joy, Constitutional History of Bangladesh, 2008, p462-463 17 The Limitation Act, 1908 15
There is hardly any time limit to trial the cases in Bangladesh, once the proceedings starts.18 Cases do continue for years for many different reasons. Such crucial areas got to be controlled under specific provisions. The Law of Evidence, 1872: 19 The basis of any decision pronounced by any court, inter alia, is evidence adduced by the parties. Facts showing existence of state of mind, or of body, or bodily feeling under s. 14 and facts bearing on question whether act was accidental or intentional under s.15 are the vital areas of evidence to be taken into consideration for any legal decision. After all, u/s1.2, Evidence is all things, statements or documents, made or produced before the Court to help it for receiving current decision on debated or argued or disputed facts in issue or relevant issue of a particular case.20 Law of Tort: 21 Tort, ‘a civil wrong for which he remedy is an action for damages, and which is not exclusively a breach of a contract or breach of a trust or other merely equitable obligation’ as defined by Sir John Salmond. Negligence is the core area of the Law of Tort, which involves (i) a legal duty to exercise due care (ii) breach of the duty, and (iii) consequential damages. The scope and dimension of the liability of the health professional for the acts of medical negligence is very wide, any person suffered may file a case claiming damages in the courts. The forum of filing the case will depend on the amount of damages claimed, again starting from sub-ordinate court to the High Court Division of the Supreme Court. ‘It is the duty of the doctor to extend medical assistance to save the life of patients. The doctors may follow the legal procedure after giving the necessary 18
Dr Belal Husain Joy, Law Management Skills, 2005, p239 The Law of Evidence, 1872 20 Dr Belal Husain Joy, Law Management Skills, 2005, p241. 21 Law of Tort. 19
medical aid’.22 We hardly have The Law of Tort in Bangladesh as an act but provisions are available and enforced under different acts as discussed above. Consumer Rights Protection Ordinance, 2007: Medical negligence with special reference to the newly passed Consumer Rights Protection Ordinance 2007,23 like every other statutory has the same sanctity of protection and enforcement of rights. But it must not be abused or used as a tool to blackmail one’s opponents for mercenary gains. Consumerism is still a new concept in Bangladesh. Consumer rights are integral part of Human Rights. It is important to clear who is a consumer by law? ‘A Consumer is a person who is not directly involved in a trade, but receives goods and services from a person who is occupied in the business.’24 Consumer right is the right to satisfy basic needs. It describes the legal foundations for consumer protection in Bangladesh. Consumer Rights are required to measure the protection of consumers from products, processes and services which are hazardous to their health25 In Bangladesh such rights and relevant legislations are scattered, hence, the consumers themselves cannot initiate any legal action against wrong-doers. In India, Consumer Protection Act 1986, modified in 1992,26 under which consumer courts were established all over the country to try cases instituted by the consumers for violation of their rights … instances are there that physicians had to compensate the patients for 22
23
Prof. SK Verma, Legal Framework for Health Care in India, 2002, p54
Consumer Rights Protection Ordinance, 2007 Emrana Amjad, Protecting Consumer Rights, Daily Star, March 3, 2007 25 Mizanur Rahman, Consumer Protection in Bangladesh : Law and Practice, Journal of Consumer Policy, Springer Netherlands, Thursday, January 26 Indian Consumer Protection Act 1986 24
medical negligence and wrong treatment. In Malaysia, Sri Lanka and even in Nepal consumer protection laws are in prevalence and implemented for the protection of consumer rights … There are some conventional laws in existence in the country, but these laws are so outdated that little or no protection is provided to the consumers. These laws are also inadequate and do not meet present needs. The Council of Advisers of the Caretaker Government, Sunday approved in principle the Consumer Rights Protection Ordinance, 2007, providing full-fledged legal cover for consumers interests … Punishment of different terms, with maximum imprisonment for 3 years and maximum fine of TK300,000 or both for the transgressors … If the manufacturers violate the rule of inscribing maximum retail price (MRP), date and expiry of the product on the packet, the defaulter will have to suffer one year in jail or pay a fine of TK50,000/- or both, it is stated in the punitive provision. 27 Recommendations: Considering the pros and cons of the existing Healthcare Laws, a number of recommendations can be made, they are: (i) to protect the patients from malpractice of the health professionals and hospitals, it may require to enact the Patients’ Right Act in the near future; (ii) the government must take the responsibility to identify and take criminal action against unauthorised medical practitioners; (iii) wider introduction of Legal-Aid and Advice Services is required in village, union, upazila and district level instead of just city-based such services as available at present in Bangladesh; (iv) health service users – the members of public are needed to participate to achieve the constitutional goals and objective of ‘Health Care for All’; (v) the government must formulate legislations and health policies facilitating public participation in health care; (vi) make 27
Bangladesh Government approves ‘Consumer Rights Protection Ordinance, 2007’, Dhaka, November 12, 2007, Asia Pulse.
wider publicity that the patients have legal rights as consumers to claim for injury and damages to their health made by the doctors and hospitals; (vii) The Medical and Dental Council is found to be ineffective in monitoring the performances of their members, it has its Code of Conduct, but never heard of punishing any doctor for his negligence or wrong doing; (viii) all hospitals, private or government, must provide medical assistance including whatever medicine and/or surgery needed, in emergency cases, without waiting for payment, where the patient cannot afford, s/he should be linked to the emergency legal-aid programme; (ix) all industry workers must undergo regular medical tests and be given appropriate treatment by the industry doctor; (x) Government must make available the minimum infrastructure and life-saving drugs at every hospital or dispensary, particularly in villages; and of course (xi) the government must give due recognition to ‘right to health care to be a fundamental right’. While making the above recommendations, the researcher appreciates the recent initiatives taken by Grameen Healthcare Trust ‘Grameen Healthcare Trust and GE Healthcare yesterday joined hands to establish a social business healthcare delivery model for Bangladesh. The new venture will jointly evaluate ways to improve Grameen Healthcare’s service delivery system and primary care clinics in rural Bangladesh. Under the initiative, the partnership will find ways and means to introduce easy, affordable and technically suitable machines for rural Bangladesh to diagnose different diseases at an early stage’.28 Concluding Remarks: Ideally, this piece of research work is an exercise of stock taking of the laws and remedies available in Bangladesh in relation to health care. Here a brief discussion took place covering the constitutional 28
Grameen teams up with GE Healthcare, The Daily Star, Business Report, Tuesday, December 23, 2008,
provisions in relation to health and consumer rights, criminal and civil liabilities of the doctors and health professionals along side with the existing health policy. Health policy needs to be updated with the effective participation of the members drawn from technocrats, bureaucrats, civil society and professional bodies. At the same time, almost all out-dated laws are also urgently in need of up-dating to handle present day problems, challenges to give effective remedies to the citizens. Apart from the above, politicians in position and in opposition must increase their awareness and be dutiful as per their own manifesto or agenda and play appropriate role to allocate adequate funds and to give best possible health care service to the people of all levels and locations. All doctors, dentists, nurses, technicians and other corporate and administrative personnel must respect and abide by their individual Codes of Conduct. For doctors and dentists, there is a specific Professional Ethics and Code of Medical Conduct designed, developed and supposed to be implemented by the Bangladesh Medical and Dental Council,29 but never heard of any disciplinary action taken in its tribunal against any of its members. Appropriate measures are needed to be taken to reduce number of complaints and litigations against the medical and dental professionals. Government should up-date its good offices of the public health with appropriate health strategy, development units (like planning, information, epidemiology, evaluation), technical support, consumer protection, health insurance and administrative units. Bangladesh must set its targets and indicators in relation to health care under the goals like poverty, hunger, education, gender, child health, maternal health, HIV/AIDS, Malaria/TB/Heart Disease, 29
BMDC-1980,, Professional Ethics and Code of Medical Conduct, p1-8.
sustainable development, safe drinking water and sanitation etc., which could be compatible to the Millennium Developments. Bangladesh must have its own modernisation program ‘for the application of appropriate knowledge, technology and management which constantly evolve by new innovations to achieve the national economic, social and political development goals in the midst of changing environment’;30 to help and support preparing an effective Road Map for a “Healthy Bangladesh”.
30
Health Policy in Thailand, Bureau of Policy and Strategy, Ministry of Public Health, 2006, P57
[Dr Belal Husain Joy, Barrister-at-Law, Supreme Court of Bangladesh; Adjunct Professor of Law, IBAIS University, Dhaka; Chairperson of the Bangladesh Institute of Legal Advancements]
