Homeopathy In Current Pandemic: A Legal View Point - homeopathy360

Homeopathy In Current Pandemic: A Legal View Point

Homoeopathy In Current Pandemic: A Legal View Point

(A short summary of relevant acts and laws for Homoeopathic physicians in the COVID19)

Dr Himanshu Sekhar Tiwary M.D (Hom.) NIH[1]

Since the arrival of SARS-CoV-2 virus into humans, the lives and livelihoods has changed drastically and homeopathic physicians are no exception. The way we used to practice before the pandemic has changed enormously in last six months and is expected to be so in the near foreseeable future. As every cloud has a silver lining, this pandemic has also made the humans to think afresh on multiple fronts such as its assertiveness vs. vulnerability, economic growth vs. ecological growth, global vs. local etc. One such fascinating thought was recently published in the Lancet journal in the form of   Chatham House Commission[i] to holistically assess this pandemic. In fact they are of this opinion that Covid19 should be seen as global Syndemic and not just pandemic. This means that it’s not just the Virus that is killing us but the underlying chronic diseases exposed to the virus and its interplay is the cause behind the mortality. Thus dealing with the chronic diseases with minimum or no immunosuppressant is going to hold the key in current as well as future pandemics.  The role and responsibility of Homeopathic physicians having sound principles and tools to deal with the chronic diseases become very important here. To able to practice freely in this time of crisis one must be aware of the legalities involved here.

Though the author don’t claim of having any expertise on this topic, this effort must be seen as an initiative to begin the discourse on such a vital aspect which is ignored by the  academia so far. With this goal, let’s go through some of the most vital legalities applicable in the current time-

  1. International Health Regulations (IHR) 2005
  2. Epidemic Disease act 1897 and its state notifications and amendment
  3. Disaster Management Act 2005
  4. IPC of 1860 (chapter 14)-Section 269,270 and 271.
  5. Article 19 of Constitution of India  and civil liberty in the time of Pandemic
  6. The Homoeopathic Practitioners (Professional Conduct, Etiquette and Code of Ethics) Regulations, 1982 and its amendment 2014
  7. Telemedicine Practice Guidelines 2020 -Amendment in Homoeopathic Practitioners (Professional Conduct, Etiquette and Code of Ethics) Regulation 1982

                                                                                                                                                     1.International Health Regulations (IHR) 2005[ii]– This regulation was adopted by health assembly of WHO to prevent, control and provide a public health response to the international spread of disease. Under this regulation on 30th January 2020, the DG of WHO declared the COVID-19 outbreak a “public health emergency of international concern (PHEIC)” following advice from the IHR Emergency Committee. On 6th February 2020, UN Development Coordination Office (UNDCO) with WHO introduce the COVID-19 Strategic Preparedness and Response Plan (SPRP)[iii]. The SPRP outlines the public health measures that need to be taken to support countries to prepare for and respond to COVID-19. Each member country (including India) was advised to develop a COVID‑19 Country Preparedness and Response Plan (CPRP) which is supposed to be monitored using indicators based on those set out in the SPRP. Therefore most of responses adopted in our country are as per the guidelines of SPRP with some country specific variations.

2. Epidemic Disease act 1897This short but very important act of colonial era to contain the Plague epidemic in Bombay (1897) was advised to invoke by centre to all the states and UTs on 11th March 2020. This act has only four sections .Under section 2; it empowers the state to formulate any temporary regulations to contain the epidemic, if ordinary existing laws are not sufficient.  Therefore it is very important for each practicing Homoeopath to be well versed with their respective state’s notification regarding this act and shall practice according to its scope and limitation. Under Section 4 it gives protection to all the Officers and officials working in the pandemic from any legal proceedings against them. Therefore this act is meant to protect the health care workers including AYUSH doctors working in the pandemic so that they can implement the public health measures in the larger interest of the society.

Under section 3, we find the provision of penalty for anyone who violates the regulations under this act. It reads-“Any person disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable under section 188 of the Indian Penal Code (45 of 1860)”.Under section 188 there is provision of penalty of 200 Rs and /or 1 month of imprisonment and if causes danger to human life up to 1000 rupees and /or 6 months of imprisonment. [iv]

It will be pertinent to mention here that Govt. of India amended this act on 22nd April 2020 through Ordinance to add clause regarding violence against health care worker. Contravention of this provision is punishable with imprisonment between three months and five years, and a fine between Rs 50,000 and two lakh rupees. 

If an act of violence against healthcare service personnel causes grievous harm, the person committing the offence will be punishable with imprisonment between six months and seven years, and a fine between one lakh rupees and five lakh rupees.  These offences are cognisable and non-bailable.[v]

3. Disaster Management Act 2005-Since Epidemic disease act does not have provision for uniformity across the country, The Disaster Management Act was for the first time invoked by centre to implement nationwide lockdown as well as coordinated response to deal with the covid19 pandemic as disaster. This act is quite a big act to read having 11 chapters and 79 sections. This came into existence for the effective management of disasters all over the country. The Act calls for the establishment of National Disaster Management Authority (NDMA), with the Prime Minister of India as chairperson. The NDMA is responsible for laying down the policies, plans and guidelines for disaster management and to ensure timely and effective response to disaster. Under section 6 of the Act, it is responsible for laying down guidelines to be followed by the State Authorities in drawing up the State Plans and under section 10 to act as coordinating and monitoring body for disaster management. All State Governments are mandated under Section 14 of this act to establish a State Disaster Management Authority (SDMA) with Chief Minister as their chairperson. The SDMA is mandated under section 28 to ensure that all the departments of the State prepare disaster management plans as prescribed by the National and State Authorities. In a similar fashion in the chain the District Disaster Management Authority (DDMA) will be headed by Collector or District Magistrate for smooth implementation of the regulations.

It will be noteworthy to mention that this law provides a wide range of powers to the NDMA (as well as SDMA)   to seek any “men or material resources” for the purposes of emergency response across the entire country or any specific part of the country.[vi]

4. IPC of 1860 (chapter 14)-Section 268,269,270 and 271.-

The Indian penal Code of 1860 has following provisions regarding public health which every practicing doctor may find helpful in their practice – (Bold done by Author)

268Public nuisance.—A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. A common nuisance is not excused on the ground that it causes some convenience or advantage.

269. Negligent act likely to spread infection of disease danger­ous to life.—Whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.

270. Malignant act likely to spread infection of disease danger­ous to life.—Whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

271. Disobedience to quarantine rule.—Whoever knowingly disobeys any rule made and promulgated by the Government for putting any vessel into a state of quarantine, or for regulating the intercourse of vessels in a state of quarantine with the shore or with other vessels, or for regulating the intercourse between places where an infectious disease prevails and other places, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.[vii]

5. Article 19 of Constitution of India and civil liberty in the time of Pandemic-

It will be worth going through our constitutional position in present time and the status of civil liberty enjoyed by the doctors as common citizens of the country .Here I would like to cite two points one from the article 19 of Constitution of India and other from a Landmark judgment from Honorable Supreme Court of India which is not only relevant but important to know.

A. Article 19 of Constitution of India– Every citizen enjoys the fundamental rights under article 19 of Constitutionof India which says-

(1) All citizens shall have the right

(a) To freedom of speech and expression;

(b) To assemble peaceably and without arms;

(c) To form associations or unions;

(d) To move freely throughout the territory of India;

(e) To reside and settle in any part of the territory of India; and

(f) Omitted

(g) To practice any profession, or to carry on any occupation, trade or business”

But under article 19 only in the Para 5, State is empowered to impose reasonable restriction in the interest of general public. It reads-

“(5) Nothing in sub clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe”[viii]

B. Landmark Judgment of Honorable Supreme Court –In one of its landmark Judgment, the Honorable Supreme Court in a famous case of Mr. .X vs. Hospital Z[ix] observed that “right to live” is over and above the “right to Privacy” among the competing fundamental rights. Therefore even the right to privacy can be subsumed in some exceptional circumstances if it threatens the “right to live” of any other individual in the current pandemic.

6.  The Homoeopathic Practitioners (Professional Conduct, Etiquette and Code of Ethics) Regulations, 1982[x] and its amendment 2014[xi]

In CCH Gazette notification of 1982 as well as its amendment in 2014, it very well mentions the role of Homoeopathic Physician in the time of pandemic .This will be worth reading by one and all to remind ourselves regarding our responsibility in current time. Homoeopathic Practitioners (Professional Conduct, Etiquette and Code of Ethics) Regulations, 1982 reads in section VI (P-36) as following-

 “Practitioner of Homoeopathy engaged in public health work shall enlighten the public concerning quarantine regulations and measures for the prevention of epidemic and communicable diseases. At all time the practitioners shall notify the constituted public health authorities of every case of communicable disease under their care, in accordance with the laws, rules and regulations of the health authorities. When an epidemic prevails, practitioner of Homoeopathy shall continue his labors without regard to the risk to his own health.”

It is very important to note the last line esp. those who are engaged in public health directly as under this section we find fear of contracting the disease cannot be an excuse to refuse or not to treat the patient. Now ,If we see the CCH professional conduct, etiquette & code of ethics (1982)-2014 amendment we find the following as mentioned in point 12. A subsection C-

“Homoeopathic   doctor   shall act in aid of sanitary laws and regulations in interest of Public Health.”

7. Telemedicine Practice Guidelines 2020 -Amendment in Homoeopathic Practitioners (Professional Conduct, Etiquette and Code of Ethics) Regulation 1982[xii]-Since after the Judgment by Bombay High Court in 2018, the Tele consultation lost its impetus among the clinicians. But since the arrival of this pandemic, CCH formed a guideline for the same to give it a statutory basis. This amendment is well into circulation and most of us have gone through it. But before taking up Tele consultation following points are worth highlighting for day to day clinical practice:

1. One most important point that I would like to draw the attention of all my fellow physicians is that the very purpose of the guideline is to combat the pandemic. Therefore wherever the state regulations allows, homoeopathic physicians must give their best clinical service possible in this pandemic. At the very outset it reads-

“These guidelines have been prepared to combat the current need in the wake of COVID19 outbreak but the overarching principles would remain common to all future reference.”

2. During Tele consultation we must keep in mind that Homoeopathic practice is also governed by IT Act 2000, and the information technology (reasonable security practices and procedure and sensitive personal data or information) rules 2011. Therefore we must ensure the safety and privacy of the data.

3. Regarding Prescribing Medicines (3.7.4)

  • Registered Homoeopathic Practitioner may prescribe medicines via telemedicine ONLY when the Registered Homoeopathic Practitioner is satisfied that he/ she has gathered adequate and relevant information about the patient’s medical condition and the prescribed medicines are in the best interest of the patient.
  • Prescribing Medicines without an appropriate diagnosis/provisional diagnosis will amount to professional misconduct.

  4. It is the responsibility of the Registered Homoeopathic Practitioner to be cognizant of the current Data Protection and Privacy laws. (Note to- 3.8.1).

  5. Maintain Digital Trail/ Documentationof Consultation (3.8.2)

  6. Misconduct-

  • Registered Homoeopathic Practitioners insisting on Telemedicine, when the patient is willing to travel to a facility and/or requests an in-person consultation
  • Registered Homoeopathic Practitioners misusing patient images and data, especially private and sensitive in nature (e.g. Registered Homoeopathic Practitioner uploads an explicit picture of patient on social media etc.)
  • Registered Homoeopathic Practitioners are not permitted to solicit patients for telemedicine through any advertisementsor inducements.

  7. Patient Consent-Patient consent is necessary for any telemedicine consultation. The consent    can be Implied or explicit depending on the following situations:

3.4.1 If the patient initiates the telemedicine consultation, then the consent is implied

3.4.2 An explicit patient consent is needed if: A Health worker, Registered Homoeopathic practitioner or a Caregiver initiates a Telemedicine consultation.    

  8. Patient’s Information-(3.5.1)-Registered Homoeopathic Practitioners hall maintain all patient records including case history, investigation reports, images, etc. as appropriate.

DisclaimerThis is a short summary of all the acts as an introduction to the subject, it is advisable that each practitioner should read the relevant acts/law himself.

Author: [1] Medical Officer, CGHS New Delhi, Govt.Of India

[i] Rutter, Harry, et al. “The Lancet-Chatham House Commission On Improving Population Health Post COVID-19.” Lancet (London, England), vol. 396, no. 10245, 2020, pp. 152-153.

[ii] International Health Regulations (2005), 2nd edition. Geneva: World Health Organization; 2008..https://apps.who.int/iris/bitstream/handle/10665/43883/9789241580410_eng.pdf;jsessionid=B93BBF2576AF161B8C90BF10125757EB?sequence=1 accessed 18th August 2020

[iii] Strategic preparedness and response plan 14 April 2020 COVID-19: Critical preparedness, readiness and response https://www.who.int/publications/i/item/strategic-preparedness-and-response-plan-for-the-new-coronavirus accessed 18th August 2020

[iv] THE EPIDEMIC DISEASES ACT, 1897https://www.indiacode.nic.in/bitstream/123456789/10469/1/the_epidemic_diseases_act%2C_1897.pdf accessed 18th August 2020

[v] The Epidemic Diseases (Amendment) Ordinance, 2020 was promulgated on April 22, 2020, https://www.prsindia.org/billtrack/epidemic-diseases-amendment-ordinance-2020 accessed 18th August 2020.

[vi]THE DISASTER MANAGEMENT ACT, 2005 from the archive of Legislative Department, Ministry of Law and Justice, Government of India http://legislative.gov.in/actsofparliamentfromtheyear/disaster-management-act-2005 accessed 18th August 2020.

[vii] THE INDIAN PENAL CODE  pdf  from http://legislative.gov.in/sites/default/files/A1860-45.pdf accessed 18th August 2020.

[viii] Article 19 in The Constitution of India 1949 https://indiankanoon.org/doc/1218090/ accessed 18th August 2020.

[ix] http://www.legalservicesindia.com/articles/a1ds.htmaccessed 18th August 2020

[x]The Homoeopathic Practitioners (Professional Conduct, Etiquette and Code of Ethics) Regulations, 1982 https://www.cchindia.com/rules accessed 18th August 2020.

[xi] The Homoeopathic Practitioners (Professional Conduct, Etiquette and Code of Ethics) Regulations, amendment 2014https://www.cchindia.com/rules. accessed 18th August 2020.

[xii] Telemedicine Practice Guidelines 2020 -Amendment in Homoeopathic Practitioners (Professional Conduct, Etiquette and Code of Ethics) Regulation 1982 https://www.ayush.gov.in/docs/126.pdf accessed 18th August 2020.

About the author

Dr Himanshu Shekhar Tiwary