Kerala High Court upholds law regulating clinical establishments

The Kerala High Court recently dismissed a batch of petitions filed by private medical associations challenging the constitutional validity of the Kerala Clinical Establishments (Registration and Regulation) Act, 2018 (Act). [Kerala Private Hospitals Association & anr v State of Kerala & ors and connected cases].Justice Harisankar V Menon observed that right to health is a fundamental human right, recognised under Article 21 (right to life) and Article 47 (Directive Principle mandating improvement of public health) of the Constitution.Against this constitutional backdrop, the Court proceeded to examine whether the State had the competence to enact such a legislation despite the existence of the Central Clinical Establishments Act, 2010.The judge noted that the Central Act was adopted following resolutions passed by some States under Article 252(1), but Kerala not being a sponsoring state, was under no obligation to adopt the central law and thus the state legislature had full competence to enact the 2018 Act under Article 246(3) read with Entry 6 of List II (State List) (public health and sanitation) of the Constitution.The Court clarified that just because parliament had enacted a central law on the same subject, the same would not prevent individual States from legislating independently, especially when they had not adopted the Central legislation."The Constitution nowhere provides that in the event of the Parliament legislating on a particular aspect falling under the State List on the basis of resolutions passed by the Legislatures of some of the States, the remaining States are bound to adopt the said legislation or are not empowered to legislate under Article 246 independently," the Court added..Multiple petitions were filed by various stakeholders in the healthcare sector, including the Kerala Private Hospitals Association (KPHA), Indian Medical Association (IMA), Kerala Private Hospitals Association (KPHA), Indian Dental Association, Kerala Private Clinics Association, and others, challenging various provisions of the 2018 Act and its accompanying rules, arguing that the law was arbitrary, vague, and conferred unchecked powers to authorities.The petitioners had primarily challenged Sections 16(2) and 39(2) and 39(3) of the Act, which dealt with mandatory registration of clinical establishments and the requirement to publicly display treatment fees and package rates for the services that were offered. The petitioners submitted that Section 39(2) of the Act mandating display of 'fee rate' and 'package rate', was vague since these terms were not defined properly and could lead to potential misuse by authorities.The provisions dealing with mandatory emergency treatment, penalties for non-compliance, and wide powers granted to authorities were also challenged as being unreasonable.The petitioners also took objection to Sections 14(3)(a) and (c), which empowered authorities to suspend or cancel registrations in the event of imminent danger to public health. It was claimed that inspection and data collection provisions in the 2018 Act violated their employees and patients privacy.Concerns were also raised over the inclusion of dentistry in the 2018 Act, especially when dentists were already governed by the Dentists Act, 1948 The petitioners also challenged the composition of the State Council and Executive Committee, which would include non-medical persons such as patient welfare organisation representatives..However, the counsel appearing for the State argued that the mere possibility of misuse could not be a ground to strike down a statute and defended the 2018 Act as a necessary regulatory framework to ensure transparency, ethical medical practices, and patient safety..The Court, in its detailed analysis, rejected the petitioner's arguments on multiple grounds.It first affirmed the State's legislative competence, reiterating that a law can be invalidated only if there is a lack of legislative authority or a violation of constitutional provisions, particularly fundamental rights.It stated that as the 2018 Act was intended to strengthen public health infrastructure and ensure accountability of clinical establishments. Thus, the requirement for clinical establishments to display their fee and package rates served public interest by promoting transparency and protecting patient rights.Referring to the division bench ruling of the Court in Sabu P Joseph v State of Kerala, where the same provision of displaying the fee rate was upheld, the Court pointed out that as several petitioners in the present case were parties to that earlier litigation, they could therefore not raise the same issue again.On the question of cancellation of registration, the Court emphasised that Section 25 requires issuance of a notice by authorities and an opportunity to be heard before any action was taken.Further, immediate suspension of license was also permissible only in exceptional cases where there was an imminent danger to patient's health and safety, and even then, the authorities have to record reasons in writing.Thus, the 2018 Act has adequate procedural safeguards in place, the Court said."Therefore, in my opinion, utmost care has been taken while conferring power for the cancellation of registration on the Authority. This Court further notices that under Chapter VII, an Appellate Authority under Section 34 and a revision to this Court under Section 35 have also been provided. Therefore, I am of the opinion that there is no uncanalised power bestowed on the Authority with respect to the cancellation of registration," the Court added.It also dismissed the challenge to the inclusion of representatives from patient welfare organisations in the State Council and Executive Committee, noting that including service recipients along with service providers was consistent with the inclusive and participatory framework of the legislation.The Court also held that the State had sufficient legislative competence to include dentistry within the scope of the Act, observing that dentistry, being a branch of medical science, could validly be regulated under the legislation..In conclusion, the Court found no merit in any of the constitutional challenges raised and dismissed the petitions. ..The petitioners were represented by Senior Counsel Kurian George Kannanthanam, George Poonthottam, KI Mayankutty Mather and advocates R Surendran, KM Sathyanatha Menon, Nisha George and others.The State was represented by state attorney N Manoj Kumar..[Read Judgment]