[Co-authored with Shefali Malhotra]

The Parliament referred the National Medical Commission Bill, 2017 (NMC Bill) to the Standing Committee on 2 January, 2018. This is the thirteenth legislative attempt (bills and amendments) to reform the Medical Council of India (MCI). Due to concerns about its functioning, the MCI has required interventions by the legislature and the judiciary. In this series, we analyse some provisions of the NMC Bill in light of what the experience of professional regulation teaches us.

Composition of NMC (Section 4)

Section 4 of the NMC Bill lays down the composition of the proposed NMC. In comparison with the 104-member board of the MCI, the new NMC board will have only 25 members. This is a welcome move. Literature shows that smaller deliberative bodies are more efficient than larger bodies (Council for Healthcare Regulatory Excellence, 2011; Klimek et. al., 2009). However, the other problem, which persists, is the domination of doctors in the regulator (20 out of 25 members will be from the health profession). Only three members will be experts from other fields, not representing the health profession. Just like the MCI, there is a high probability of regulatory capture of the NMC leading to poor outcomes for patients.

Of the 25 members, there will be twelve ex-officio members, eleven part-time members, a Chairperson and a Member Secretary.

The twelve ex-officio members will be:

1. Four presidents (doctors) of other subordinate boards of NMC (which will carry out core functions of the NMC)

2. Six directors from medical institutes, like AIIMS, Tata Memorial Hospital and PGIMER

3. The Director General of DGHS

4. A representative from MoHFW

The eleven part-time members will be:

1. Three representatives from the Medical Advisory Council (an advisory body under the NMC Bill, dominated by doctors)

2. Five practising doctors

3. Three experts in other fields, like law, consumer or patient rights and economics

The Chairperson will be a doctor with 20 years of work experience, and the Member Secretary will be selected by the government.

Conservatively, 20 out of 25 members of the NMC will be doctors. This number may vary if the Member Secretary is a doctor as well. Only three part-time members will be experts from other fields.

There are additional ways in which doctors will dominate the functioning of NMC. As an example, all decisions of the NMC will be taken by a majority vote. In the event of a tie, the Chairperson (doctor) will have a casting vote (S. 9). The four subordinate boards under the NMC, which will carry out its core functions of setting and enforcing standards, will be composed of doctors predominantly (S. 17).

Evolving role of regulator

Professional regulators, around the world, have sought to restrict the supply of practitioners, thereby benefitting the existing practitioners. At the time of its inception, the primary objective of the MCI was also to control entry of doctors. Hence, the MCI was entrusted with two functions: (a) recognition of medical qualifications, which entitled individuals to practice the profession; and (b) maintaining a register of doctors to prevent unregistered individuals (or quacks) from practicing medicine. Since, doctors were considered best-placed to carry out the task of regulating entry, the MCI board comprised solely of doctors. Similarly, medical regulatory boards in other jurisdictions, like the UK and California, were also composed of doctors.

During the 1960s, there was growing criticism of the health profession due to increasing instances of poor clinical performance. For example, errors in diagnoses, errors in performing a procedure, under-informing or misinforming patients, use of outmoded tests or procedures, failure of peer networks to report poor practice, etc. Arrow, 1963, observed that medical care was plagued with market failures in the form of information asymmetry. Due to the complexity and uncertainty of medical treatment, patients were unable to evaluate the quality of service being provided. In turn, doctors exercised undue influence over patients. The academic understanding of regulatory capture (Stigler, 1971), public-choice theory (Black, 1948), and special interest groups (Grossman and Helpman, 2001) led to changes in legislation in the 1970s and 80s. From protecting the profession, the objective of legislation shifted to protecting and promoting patient safety. The Medical Act, 1983, in the UK, and the changes to the Medical Board of California in 1975 are examples of legislatures incorporating the academic understanding of professional regulation.

Removing regulatory capture

The new role also entailed a shift in the composition of the medical regulatory boards. A doctor-dominated board, designed to serve the interests of its peers, was no longer desirable. The new role entailed a fair, impartial and independent body to prosecute and adjudicate violations of minimum standards. This led to the demand for increasing representation of patient interest in medical regulatory boards (Baggott, 2002).

Over the years, health profession regulators started including representation from public members. For example, the General Medical Council (GMC) in the United Kingdom comprises equal number of doctors and public members. Seven out of fifteen members of the Medical Board of California (MBC) are public members. At least one-third of the members of the Australian Health Practitioner Agency (AHPRA) must be public members.

MCI remained outdated

In India, some attempt was also made to hold doctors responsible for malpractice and negligence. The Indian Medical Council (Second) Amendment Act, 1964 empowered the MCI to set up standards of medical profession. However, the MCI persisted with its outdated design. Other than eight members (to be nominated by the Central Government), the remaining members of the MCI must have medical qualifications. As of today, the MCI comprises of 104 members, all of whom are doctors (including the 8 nominated members). This has led to the regulatory capture of MCI.

The regulatory capture is reflected in MCI's reluctance to discipline doctors. The 1964 amendment empowered the MCI to prescribe the professional code of ethics. The first regulation were enacted in 2002: a gap of 38 years. The MCI has also shown a poor track record in investigating and punishing doctors accused of malpractice or negligence. A public interest litigation in 2000, revealed that there was no system for maintaining an updated database of complaints against doctors; some complaints were pending for more than 42 years; and not a single doctor's license had been permanently cancelled. A 2016 Parliamentary Committee report reviewing MCI, noted that between 1963-2009, just 109 doctors were blacklisted by the Ethics Committee of the MCI. In contrast, in 2016-17 alone, the MBC revoked or required surrender of 143 licenses and issued 86 public reprimands. Similarly, the GMC issued 11 warnings, suspended 93, and permanently debarred 70 doctors in 2016.

NMC will not change much

The proposed NMC is more diverse than the MCI. However, compared to other jurisdictions, the NMC has low representation of public members (See Table 1). Even the NMC as proposed by NITI Aayogwas more diverse (10 out of 20 members were from the health profession).

Table 1: Composition of medical regulatory boards

Way forward

Inclusion of government representatives is unique to NMC; other medical regulatory boards don't include government representatives, neither does the incumbent MCI. This raises some concern as the government plays an active role in health care delivery, through direct provision, as well as financing of health care in India.

Modern professional regulators are like the state, in so far as they incorporate legislative (by setting standards), executive (by enforcing prescribed standards) and judicial (by adjudicating violations of prescribed standards) functions. In the case of health professions, the regulator ought to be statutory. The statutory regulator should be designed with the same internal safeguards and processes as the state (OECD, 2014; Shah et. al., 2013; Price, 2002). One of these safeguards is a fair, independent and impartial regulator. The proposed NMC violates this basic principle, in so far it is dominated by health professionals. Consequently, doctors will continue to act as judges in their own cause. Like its predecessor, NMC will likely be a poor enforcer of minimum standards in the health profession.

Any regulator is the child of its constituent document. World over, professional regulators dominated by members of the profession are on their way out. This is also reflected in the composition of some other professional regulators in India. For instance, the Insolvency and Bankruptcy Board of India, constituted under the Bankruptcy Code, 2016, regulates insolvency professionals. It includes zero representation from insolvency professionals. A doctor-dominated MCI has functioned in an opaque and unaccountable manner. This has also eroded public confidence in the profession. In light of India's experience with MCI, the composition of NMC should not be dominated by doctors. A board with parity between professional and non-professional members (maybe even a slight majority of non-professionals) is a superior institutional design.

References

Ajay Shah et. al., From clubs to States: The future of self-regulating organisations, Ajay Shah's blog, December (2013).

Business and Professions Code, Division 2, Chapter 5 (California).

Council for Healthcare Regulatory Excellence, Board size and effectiveness: advice to the Department of Health regarding professional regulators, September (2011).

David Price, Legal Aspects of the Regulation of the Health Professions, In: Regulating the Health Professions, SAGE Publications (2002).

Duncan Black, On the Rationale of Group Decision-making, Journal of Political Economy, February (1948).

Gene M. Grossman and Elhanan Helpman, Special Interest Politics, Massachusetts Institute of Technology (2001).

General Medical Council (Constitution) Order, 2008 (UK).

George J. Stigler, The Theory of Economic Regulation, The Bell Journal of Economics and Management Science (1971).

Health Practitioner Regulation National Law (NSW) No. 86a (Australia).

Indian Medical Council Act, 1956.

Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002.

Kenneth J. Arrow, Uncertainty and the Welfare Economics of Medical Care, The American Economic Review, December (1963).

Linda A. McCready and Billie Harris, From Quackery to Quality Assurance: The First Twelve Decades of the Medical Board of California, Medical Board of California (February, 1995).

Medical Act, 1983 (UK).

National Medical Commission, 2017 (as introduced in the Lok Sabha).

NITI Aayog, A Preliminary Report of the Committee on the Reform of the Indian Medical Council Act, 1956 (August, 2016).

OECD, The Governance of Regulators, OECD Publishing, Paris (2014).

Parliamentary Standing Committee on Health and Family Welfare, The Functioning of Medical Council of India, Ninety-Second Report, March (2016).

Peter Klimek et. al., Parkinson's Law Quantified: Three Investigations on Bureaucratic Inefficiency, Journal of Statistical Mechanics Theory and Experiment, August (2008).

Rob Baggott, Regulatory Politics, Health Professionals and the Public Interest, In: Regulating the Health Professions, SAGE Publications (2002).

Siddhartha P. Kar, Addressing underlying causes of violence against doctors in India, The Lancet (May, 2017).

The authors are researchers at the National Institute of Public Finance and Policy.

The views expressed in the post are those of the author only. No responsibility for them should be attributed to NIPFP.