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2017 (8) TMI 1507 - HC - Indian LawsConstitutional validity - test of Article 14 - scope of medical profession of doctors - vires of West Bengal Clinical Establishments (Registration, Regulation and Transparency) Act, 2017 - maintainability of writ petition - scope of relief sought for / prayed for - whether the provisions of the act are arbitrary, unreasonable and irrational - Held that:- The prayer portion of the writ petition is not happily drafted. A member of the public would not be committing sacrilege, if such member was to observe that, the prayers made in the writ petition under consideration, imitates the level of diligence and care, the public have become accustomed to receive from the medical practitioners in the present day. However, it would be harsh to return a finding that, the writ petition is not maintainable as the prayers are not happily drafted. Even if the Court is to consider the challenges to the various provisions of the Act of 2017, notwithstanding the prayers as it stands in the writ petition, the Court would not be guilty of travelling beyond the pleadings. A medical consultation clinic will be used solely for the purpose of consultation and advice. The Act of 2017 does not take away the choice of an individual doctor to carry on its profession as a doctor and have a medical clinic or a medical consultation clinic. If a doctor is required to treat a patient in the course of consultation and advice, such a place would be considered as a medical clinic coming within the definition of clinical establishment under Section 2(c) of the Act of 2017 requiring such doctor to take a registration under the Act of 2017. Requirement to undergo a registration under the Act of 2017 by itself does not infringe or take away the right to carry on one's profession guaranteed under Article 19(1)(g). The right guaranteed under Article 19(1)(g) is not absolute and can be subjected to reasonable restrictions. The Act of 2017 does not militate against the right of the doctor to recover the reasonable and appropriate cost for the treatment advanced. It has been suggested that, the various provisions of the Act of 2017 which permits a service recipient to receive the service first and pay later will give rise to a situation where a service provider would not be in a position to recover the cost. With respect, such a view is contrary to the oath of a doctor. Moreover, the Act itself provides that, a doctor will be entitled to recover the costs from the service recipient or their representatives. What it essentially seeks to do is, address the malpractices obtaining in the health care sector. It can be said that the Act of 2017 is within the legislative competence of the State Government to legislate.
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