A Tale of Wasted Effort!

The bill to amend the Bombay Nursing Home Registration Act, recently passed in the state assembly, dampens the hopes of regulating clinical establishments in Maharashtra

Rita Dutta - Mumbai

Regulation and bureaucracy make strange bedfellows. Take for instance, the bill for Bombay Nursing Homes Registration (Amendment) Act 2005, which was passed by the Vidhan Parishad and Vidhan Sabha in Maharashtra recently and now awaits the Governor’s approval.

NGOs, consumer activists and stakeholders have brainstormed and lobbied for an overhaul of the archaic BNHR Act, 1949, including re-christening the Act. After the first draft was submitted in 2001 and a subsequent one in 2002 with approval of government health officials, the three-page bill that was ultimately tabled in the assembly in December 2005 has not taken into cognisance crucial suggestions listed in some 30-odd pages in the 2002 draft. The essence of the amendment got lost somewhere in the corridors of bureaucracy.

In the absence of a comprehensive regulatory body for clinical establishments, experts were pinning their hopes on this bill to introduce regulatory measures. The government has, however, crafted some “cosmetic changes” (read bureaucratic) in six sections pertaining to administration of the bill, dashing all hopes of introducing regulatory measures.

Expectation Vs Reality

In the 2002 draft, experts had suggested to re-christen the BNHR Act as Maharashtra Clinical Establishment Act aimed at expanding its purview to include clinics, day care centres, dispensaries, old age homes, diagnostic centres, labs, physical therapy establishments, in-vitro fertility clinics and radiological centres. Currently, it covers only nursing homes and hospitals.

The proposed Act was to bring under its purview medical institutions/centres of analogous establishments, by whatever name, where investigation, diagnosis and invasive procedures/curative medical treatment facilities are provided to the public. A demand was also made to expand the jurisdiction of the Act to cover the entire state. Besides, they had worked out details regarding constitution of a competent authority and apex body, minimum requirements and obligations of clinical establishments, display of fees, penalty for non-registration, cancellation of registration and so on.

The bill has, however, proposed to introduce a local supervisory authority led by the government, jettisoning experts’ suggestion of formation of an apex body called Clinical Establishment Registration Board, which was meant to lay down minimum standards, upgrade existing requirements periodically for different types of clinical establishments and suggest periodic revision of fees. Experts had pressed for participation of stakeholders in the board. In the six amendments made in the bill, the safety clauses suggested to protect doctors from total arbitrary powers of the authorities have been deleted.

Chandana Shetye, Research Officer, Centre for Health and Allied Themes (CEHAT) complains, “The only procedural change that has been made is a substantial hike in the penalty, and inclusion of power to prescribe different rates of registration fees for different types of nursing homes.”

Sidelining suggestions to set up mechanism to lay down standards for improving quality of services, the only mention of quality in the bill is found in the nurse-patient ratio and floor-space to patient ratio.

The only silver lining in the bill is the fact that now all nursing homes and hospitals within Maharashtra will have to be registered, point out experts. Extending jurisdiction of the Act to entire Maharashtra was in fact mentioned in G R notification on January 15, 2005. Earlier, the Act was restricted to Mumbai, Pune, Nagpur and Sholapur.

Why amend BNHR Act, 1949?

Dr Arun Bal, Founder Member, Association for Consumer Actions on Safety and Health (ACASH) feels, “Times have changed and the Act is now inadequate.” The Act is obsolete as it is more of a registration Act than a regulation one, without any reference to minimum standards with regard to space, facilities, staff employed, equipment and other supportive services.

While the realisation that quality of service in nursing homes in Mumbai was below the accepted norm was taking root, it was just incidental that a patient died in a Mumbai-based hospital in 1989 after he was transfused the wrong blood group in the presence of a homeopath. When the patient’s daughter did not get a fair hearing from the medical council where she made her complaint, she filed a PIL in the Mumbai High Court. The court observed: “The writ petition has served the purpose of activating the authorities concerned, who seem to have woken up and taken certain steps in the direction of implementation of various provisions of the law.” The court directed the formation of a committee of experts to look into the machinery implementing the BNHR Act.

Says Dr Sanjay Nagral, member of the committee appointed by HC, “We mainly suggested that nursing homes should be graded and some regulatory measures should be introduced.” (For further details of the committee report, see box)

A few years later, the World Bank decided to give a loan of Rs 700 crore to ramp up the healthcare system in Maharashtra, on condition that the government looked into the regulatory aspects of its healthcare establishment. The chaotic and unregulated healthcare system prompted NGOs to pursue the cause of modifying the obsolete BNHR Act, 1949 with the help of government officials and stakeholders. At the forefront of the amendment were NGOs such as CEHAT, ACASH and Forum for Medical Ethics, and medical associations like the Association of Medical Consultants (AMC) and Bombay Nursing Home Owners Association.

Over two years, several meetings were held between stakeholders, government officials and NGOs. The first draft, prepared by Sunil Nandraj who now works for WHO, was submitted in 2001. After whimpers of disagreements were heard, in July 2002 under the chair of the then secretary, Health & Family Welfare, MS Gill, a modified version of the draft was submitted to the government. Reportedly, government officials consented to all suggested changes. But now bureaucracy seems to have derailed all efforts of change.

"This is what we get to see after submitting the draft three years ago. Why was the government sitting on it for so many years?" -Ravi Duggal Consultant CEHAT

"It’s a complete letdown, a wash-out from the 2002 draft. The amended Act will only increase the power of bureaucracy. It is not a participatory approach." -Dr Anant Phadke Co-Convenor Jan Swasthya Abhiyan, Pune

Response

More than criticism, the bill has evoked anger and disappointment. Fumes Ravi Duggal, Consultant, CEHAT, “This is what we get to see after submitting the draft three years ago. Why was the government sitting on it for so many years?”

Dr Anant Phadke, Co-Convenor, Jan Swasthya Abhiyan, Pune, laments, “It’s a complete letdown, a wash-out from the 2002 draft.” Referring to local supervisory authority formed by government officials only, he opines, “The amended Act will only increase the power of bureaucracy. It is not a participatory approach.”

“The apathy of the government is shocking. Why did they waste our time and effort, when they went ahead and did what they wanted to? The bill is very far from progressive,” rues Lalit Kapoor, Chairman, Medico Legal Cell, AMC. According to Nagral, “The bill is a very watered-down version of what was proposed and discussed. It is probably a balancing act to keep everybody happy.”

Impact

"I am surprised at the non-inclusion of day care centres in the bill, as I am often asked by owners of day care centres on whether they need to be registered with BNHR Act. My answer is always in the affirmative." -Dr Sudha Sheth President Bombay Nursing Home Owners Association

Merely registering a nursing home is not enough; it may be the first step towards regulations and quality control, say experts. Dr Bipin Pandit, President-Elect, AMC avers, “The private sector caters to around 80 percent of Mumbai’s healthcare market, of which 80 percent is from nursing homes. Hence stricter regulation is required for nursing homes.” Mumbai boasts of some 1700-odd nursing homes, not all of them registered. It is a different issue altogether that some times applications for registering nursing homes do not receive any reply from the government.

The government has definitely lost an opportunity to regularise clinical establishments such as diagnostic centres, labs and day care centres, many of them being run sans standards, proper equipment and manpower, lament experts.

Dr Sudha Sheth, President, Bombay Nursing Home Owners Association is surprised at the non-inclusion of day care centres in the bill, as she is often asked by owners of day care centres on whether they need to be registered with BNHR Act. Her answer is always in the affirmative. “When they render medical service, why they should not be registered?” she asks. However, she rejoices that now re-registration is required after every three years in contrast to the present situation where the periodicity is annual.

Reasons Behind Non-inclusion Of Changes

Speculation is rife about the possible reasons behind non-inclusion of significant changes. One school of thought suspects the private sector lobby behind this. Dr Ketan Parikh, former President, AMC, and an active member involved in the draft, is dejected at the accusation. “How can we be accused of such a malicious thing, when we understand the importance of regulation for the private sector and have openly supported the changes? We are, in fact, planning to write to the government to re-think the bill to include all the necessary changes we have suggested before.”

According to another theory, the government has been too “lethargic” to work on the recommended changes. “The government does not want to increase their workload by expanding regulations to other clinical establishments,” opines an expert.

The second version is closer to the truth. Dr Prakash Doke, Director of Health Services, Government of Maharashtra says, “It would have been difficult for the government to handle the regulation of all clinical establishments at one go. We will be including all other clinical establishments phase-wise. We thought of starting with hospitals first (in January 2005) and then including other establishments in due course of time. We did not want to hurry up the whole thing and do a shoddy job.” Even if it means making several amendments to the Act? “Why not?” he replies. Asked about the time the amendment(s) would be made to include all clinical establishments, he says, “First, let us start implementing it for hospitals. Then, after a year, we will see.” Health activists are not ready to buy his version. When the first amendment with “peripheral changes” took three years, it’s anybody’s guess when the Act will undergo another amendment.

Dr Doke does not approve of changing the title of the Act, as he claims it entails inordinate delays. “Changing the entire Act requires takes a long time. We know the fate of bills which have tried changing names. They are still pending. So, we retained the original title,” explains Doke. About the delay of three years, Doke says, “The reason for the delay was that we were waiting for central legislation on the same lines. Besides, we were also exploring the options of whether to include all the clinical establishments at one go.”

Future Course of Action

Three years may have passed after the draft was submitted, but the momentum that the experts built to press the bill, is not yet lost. “We are thinking of coming together again to exert pressure on the government to involve us once again in the finalisation and implementation of this amended Act,” stresses Duggal. Stakeholders are also game for it. One can only hope that all is not lost yet; it is usually the sustained efforts of the participating parties which will bear fruit in the form of the agreed amendment act.

rita@expresshealthcaremgmt.com