Legal understanding of the integration of ayurveda into modern medicine

By

Sakshi Shairwal

Kosha Doshi

Recent amendments have been made to the Indian Medicine Central Council (Post Graduate Ayurveda Education) Regulations, 2016, in line with the powers granted by Sections 36(1)(i), (j) and (k) of the Indian Medicine Central Council Act, 1970 and the Indian Medicine Central Council (Post Graduate Education) Regulations, 1979 and the Indian Medicine Central Council (Post Graduate Ayuuate Ayu). The reforms were acknowledged by the Central Council of Indian Medicine, a legislative body, with the approval of the Central Government.

While the modification to the Regulations noted in the Gazette Notice of 20 November 2020 was made as an effort to govern the education of postgraduate courses in the Ayurveda philosophy of medicine, the manner in which it was drawn up indicates that what it really aims to accomplish is at least to a limited degree the slow introduction of Ayurveda into Modern Medicine. In Ayurveda, recovery is promoted by the amalgamation of elements of nature, while in Allopathy, the illness is mainly handled and controlled with the aid of medications. Section 36(1) of the Indian Medicines Central Council Act, 1970 deals with the authority of the Central Council of Indian Medicines to make rules broadly relevant to the purposes of the Act. Pursuant to Section 36(2), the regulations so framed include the consent of both Houses of Parliament. Parliament can authorize, reject or change the Regulations. The aim of the Act is to promote the creation of the Central Council of Indian Medicines and the maintaining of the Central Registry of Indian Medicines and related matters.

The Act provides, inter alia, for specific rules on the structure of the Central Council and its committees; authorization for the creation of new medical schools, courses, etc.; acceptance of medical qualifications; revocation of recognition; minimum requirements for education in Indian medicine; professional conduct; rights, etc. Section 2(e) of the Act rejects Indian Medicine, including Ayurveda, Siddha. Section 36(1)(i) of the Act authorizes the Central Council to lay down guidelines on the courses and periods of research and practical instruction to be followed, the topics of review and the codes of practice to be defined in every university, board or medical establishment for the award of recognised medical qualifications. Similarly, Section 36(1)(j) of the Act empowers the Council to make regulations on the quality of staff, supplies, lodging, instruction and other services for education in Indian medicine; and sub-clause(k) provides for guidelines for the conduct of professional exams, the credentials of examiners and the requirements for admission to such examinations. However, the question asked is precisely where is the power of the Central Council to prescribe training requirements in surgical procedures in such a way as to allow PG scholars in Ayurveda to have an autonomous knowledge and practice of the surgical procedures referred to above in the disciplines concerned.

A CASUAL EXERCISE, NOT A CAREFUL DECISION

Any law-making exercise must be carried out by the legislative body of rationality, legality, propriety and proportionality. The validity of the power-making law must be determined not only by reference to its purpose, but also by reference to its influence on the class concerned. Power-making laws must be harmonized with the ideals of natural justice and due process in its substantive and procedural form. Instant reforms tend to have been implemented arbitrarily without effective coordination with stakeholders, including the general public, medical legislation, insurers, etc. The improvements appear to have been created in a mechanical fashion, without adequate use of the mind. No legal authorization for the incorporation of one system of medicine with the other could be traced back to the Indian Medicine Central Council Act, 1970.

In the legal sense, one cannot be blamed for assuming that it is a colorful exercise of statutory power or discretionary power, obviously for the reason that the related factors have missed the scope of the law-making body prior to the implementation of such a paradigm change in approach, which has far-reaching implications not just for medical practitioners but also for the pub.

Regulation 10 of the Central Council for Indian Medicine (Post Graduate Ayurveda Education) 2016 deals with the teaching process. The clause that caused the current controversy, namely Regulation 10(9), was added to the Regulations by a recent amendment and, during the study period, notes that the Post Graduate Scholars of Shalya and Shalakya would be technically trained to become acquainted with and independently carry out the activities mentioned so that, after completing the PG Degree, they would be able to conduct the activities themselves. Various surgical procedures forming part of General Surgery, Eye, ENT based operations and dental procedures fall under the separate categories so left open for individual surgical pursuit by Ayurveda PG Graduates of the above listed specialties.

Out of the delineated surgical procedures, 39 procedures are part of general surgery and 19 procedures include the eye, ear, nose, throat and teeth. These treatments include removal of metallic and non-metallic foreign organs from non-vital organs, simple-cyst or benign tumour excision of non-vital organs, gangrene excision/amputation, painful wound control, abdominal removal, squint surgery, cataract surgery, functional endoscopic sinus surgery, etc. The 58 types of surgical procedures thus referred to in the revised Regulations amount to a sudden shift of legislation which may adversely affect the interests of modern medicine practitioners and run contrary to their reasonable aspirations. The final question, though, is whether the reforms have a statutory foundation and what is the urgent necessity and the reasons for the changes. If it can be accepted by the nation and its people? Politics and policy are the domains of the Government and the Monarch. However, if the reform in the legislation on PG Medical Education is detrimental to the national interest and to the health and well-being of the general public, it calls for retrospective intervention.

SPECIAL RIGHT TO HEALTH AND CARE

The right to healthcare and treatment has been through various phases of development in order to attain the current state of acceptance and justice as a human right. Its creation is traceable from a jurisprudential and diplomatic viewpoint, and both have put a constructive responsibility on the State to safeguard human health and environmental health. However, the often-posed question is whether the 'State duty' is one that can quickly be eliminated. Legalistic philosophy would demonstrate that a citizen's life means not only a life, but a well-being. Existence, liberty, and the pursuit of happiness are, of course, eternal truths. It is to ensure the same thing that governments are formed by citizens, deriving their legitimate powers from the consent of the governed. There are statutory limits on the exercise of the powers of any of the institutions set up by the Constitution to make it enforceable by the Courts and to invalidate legislative and executive despotism and its in-built propensity towards authoritarianism. Inalienable and sacred individual human rights, such as the right to life, treatment, medical treatment and access, which are far superior to civil rights, would have to be adequately secured in the arms of the State. Rulers and politicians would do justice to the elderly, the undernourished, the needy and the disabled.

The awarding of the right to health and Medicare to subjects which is more essential than the other rights implies the accompanying responsibility on the State to exercise the right, i.e. to take preventive and curative steps by the State. Consequently, the State can need to refrain from behaving injuriously to the enjoyment of the physical and mental health of its citizens.

The State does not neglect meeting the basic duty with respect to welfare and medical services. General interest is the rule of law. The right to health is a hybrid right, which means the right to the most attainable level of physical and mental health, the human right to fair access to appropriate treatment and health facilities. Medical care should be available, inexpensive and of a qualitative quality. This should not be abused. Modern healthcare should follow the latest technologies and best practices without renouncing its identity.

ROLE OF JUDICIARY

Some time back clarification was obtained from the Medico-legal community of the Indian Academy of Pediatrics that Bonnisan liquid was detected and some doctors administered Liv-52 preparations. Will western medicine doctors, Modern Method Practitioners, administer ayurvedic medicines? The Medico-legal party stated: "The Supreme Court in Poonam Varma vs. Ashwin Patel ruled that if you follow any other scheme, it is Negligence per se. On the other hand, in many developed countries where rural health is relevant and skilled practitioners are not eligible, the authorities appoint community health workers. A national medical and legal debate is also required on this issue.

It has rightly claimed that the decision of the Supreme Court bars doctors of modern medicine from prescribing or delivering non-allopathic drugs (such as Ayurvedic, Unani, Siddha or Homoeopathy) by making them liable to indictment under both civil and criminal law leading to the cancellation of registration and/or incarceration. As such, they can be branded 'quacks' per se without further proof or argument. Paradoxically, certain High Courts, for example; Tamilnadu HC (Tamil Nadu Siddha Medical Graduates Association, Vs. Smt. Letika Saran, Cont. P. No. 775 of 2010, Decision dated 23.07.2010) and State Commissions (Manpreet Kaur Vs. Dr. Veena Ghumber I 2005 CPJ 63) have confirmed that an Indian medical practitioner can prescribe modern medicine drugs.

But since then, the general condition has not improved much, and cross-practice is not constitutionally permissible. In the judiciary, SC's ruling will now be binding on the lower courts unless and until SC appeals its decision. The health care services in our country are sore and far from adequate. There is a shortage of deployment of health care workers in urban and rural environments. Given the clear exception made by the medical profession in the broad government, the C.H.W. policy is being set up. This will proceed to the revocation of the theory set down by the Supreme Court. It would be wise for the Medical Organization and M.C.I. to file a P.I.L. with the Supreme Court to review the case in the light of these amendments. On 21 November 2010, the topic of cross-system medical practice was debated in Jamshedpur, Jharkhand, during the First National Conference of the Medical Legal Community of the Indian Academy of Pediatrics.

It is important for the Government, the judiciary and the Medical Councils to look at these crucial issues and to lay down specific guidance, bearing in mind the situation and facilities in our country. There should be no misunderstanding or paradox of legal, ethical or evidence-based scientific advice. This is critical in order to prevent/determine cases of medical malpractice and neglect in the future.

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