GOVERNMENT OF KERALA
ABSTRACT
Health & Family Welfare Department - Judgment in Writ Petition (C) No.36941 of 2010, 25274 and 25387 of 2011 - Complied -Orders Issued
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HEALTH AND FAMILY WELFARE (K) DEPARTMENT
GO(Rt)No. 1958/2012/H&FWDDated, Thiruvananthapuram: 13.06.2012
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Read:1) Representation dated nil from Kerala State Physiotherapy Co-ordination Committee
2) Judgment dated: 09.06.2011 of the Hon’ble High Court of Kerala in Writ Petition (C) No.36941 of2010 filed by General Secretary, Kerala State Physiotherapists Co-ordination State ExecutiveCommittee, Chithira, Azhoor, Pathanamthitta
3) Representation dated 10.08.11 of the President, Indian Association of Physical Medicine andRehabilitation - Kerala Chapter, Sanjeevani, Church Road, Chovva, Kannur
4) Representation No. IMAKSB/SS/HQ/596/2010-11 dated 01.09.2011 of the State President, IndianMedical Association - Kerala State Branch, IMA State Headquarters, Anyara, Thiruvananthapuram
5) Judgment dated: 28.09.2011 of the Hon’ble High Court of Kerala in Writ Petition (C) No.25274 and25387 of 2011 filed by the President, Indian Association of Physical Medicine and Rehabilitation -Kerala Chapter, Sanjeevani, Church Road, Chovva, Kannur and the Secretary, Indian MedicalAssociation - Kerala State Branch, IMA State Headquarters, Anyara, Thiruvananthapuramrespectively
6) Interim Order dated: 12.04.2012 of the Hon'ble High Court of Kerala in IA No.5321 of 2012 in
WP (C) No.36941 of 2010
ORDER
In March 2010, Kerala State Physiotherapy Co-ordination Committee submitted representation, read as first paper above, to Government raising various demands including formation of Physiotherapy Council. While the representation was under consideration of the Government, in December 2010, the organisation filed writ petition (WP (C) no. 36941 of 2010) before the Hon'ble High Court of Kerala. The Hon’ble Court, as per paper read as second paper above, disposed the writ petition with a direction to Government to dispose the representation submitted by the organization to Government (i.e Exhibit P1 in the said writ petition) and pass appropriate orders in accordance with law after notice to the petitioner, within a period offive months from the date of receipt of a copy of the judgment. In the meanwhile, the President, Indian Association of Physical Medicine and Rehabilitation - Kerala Chapter and the State President, Indian Medical Association - Kerala State Branch submitted representation to Government vide papers read above as third and fourth raising various demands including not to form Physiotherapy Council. Latter two organisations also filed writ petition (W.P. (C) Nos. 25274 and 25387 of 2011) and the Hon’ble Court as per paper read as fifth above directed Government to hear the petitioners in W.P. (C) Nos. 25274 and 25387 of 2011 also before taking a decision on Ext.P1 (i.e., the representation filed by the Kerala Association for Physiotherapists Co-ordination State Executive Committee).
2.Copy of the judgment read as second paper above was received in Government on 14.07.2011 and therefore the last date for complying the Court direction was 14.12.2011. Since Government required more time to arrive at a decision on Exhibit P1, more time to comply judgment read as second paper above was sought and the Hon'ble Court as per paper read as sixth paper above granted extension up to 16.06.2012.
3.In compliance with the direction of the Hon'ble Court in aforesaid writ petitions a hearing in the matter was conducted on 30.11.2011 by the then Joint Secretary to Government, Health and Family Welfare Department. Shri R Gopakumar, ShriDeepu S Chandran, ShriSuhas K and ShriSreejith M Namboothiri represented Kerala Association for Physiotherapists Co-ordination State Executive Committee. Dr.Jayakrishnan. A.V, represented Indian Medical Association and Dr. N.George Joseph represented Indian Association of Physical Medicine and Rehabilitation, Kerala Chapter. Besides Adv.Anil K.G. was also present on behalf of the latter two organizations. Dr. V. Geetha, Director of Medical Education, Dr. Prabhachandran Nair, Deputy Director of Health Services (PMR), and Dr. Ashaletha.G., Joint Director of Medical Education were also present during the hearing.
4.The petitioner inW.P. (C) No. 36941/2010has contended as follows: -
i)Physiotherapists are undergoing a study period of 4½ years for achieving a bachelor’s degree. Most of them are having a post graduation in different specialties like Orthopedics, Neurology, Paediatrics, Gynecology, Sports, Physiotherapy etc…Therefore, they are competent enough to examine and treat patients for lifestyle diseases, mechanical disorders, over use syndromes, movement dysfunctions, sports injuries and the like.
ii)In almost all the developed countries like Australia, Canada, U.K., New Zealand etc., physiotherapists are the first contact practitioners and are having independent status.And therefore, physiotherapists are playing a major role in the health care delivery of those countries.
iii)They claim themselves as Health Professionals and declare that they are included in the category of Health Professionals by ISCO (International Standard Classification of Occupations).Also they claim that physiotherapists are considered to be independent practitioners in all the states of the country.
iv)The following are the four independent councils for physiotherapy existing in our country.
a.DelhiCouncil for Physiotherapy and Occupational Therapy.
b.Gujarat Council for physiotherapy
c.Maharashtra Council for physiotherapy
d.Rajasthan Council for physiotherapy
v)In the State of Madhya Pradesh, the physiotherapists have the legal entity to practice independently.
vi)Physiotherapy is involved in the preventive, curative, restorative and rehabilitative branches of the modern medical concept. Though the Physical Medicine and Rehabilitation Department was started in 1972 in Govt. Medical College, the Physiotherapy section had been functioning there since 1960.
vii)In Kerala, physiotherapy cannot be strictly stated as a part of modern medicine.Instead, it is associated with the other systems of medicine viz Ayurveda and Homeopathy.
viii)Physiotherapists are treating without using drugs and their evaluation is solely based on physical diagnosis. Thus their independent practice will help, in a way to minimize the rate of diseases due to over usage of drugs.Also it will help to reduce the expenses in this regard.Even surgeries can also be avoided by proper application of physiotherapy.
ix)Physiotherapists are giving home service to patients who are immobile and aged. In most cases, this will be a long term procedure. If independent status is denied to the physiotherapists, it will turn to be a violation of Disability Act.
x)It is reported that around 60,000 persons were fractured in road accidents in the previous year.In order to provide proper and continuous treatment to these patients, Physiotherapists need independent status.Thus, physiotherapists are competent to both diagnose and differential diagnose.
xi)Physiotherapists have determining role in sports medicine as well as health tourism.
xii)There should be a reasonable proportion between patient and physiotherapist.About 80% of the persons admitted in the Neurology and Orthopedic Departments require the service of physiotherapists. But only 10% of them are being referred for the physiotherapy treatment.
xiii)If physiotherapy is included under paramedical council, the modern physiotherapist loses his opportunity to use his skill and knowledge for the treatment of the patient. And thus the patients are denied of getting the benefit of proper physiotherapy treatment. This will also result in curtailing the normal graph of progress to be achieved in future.Finally, physiotherapists will have to remain as technicians for ever.
xiv)New course have to be created afresh in the Department considering the higher qualification level of the modern physiotherapy.
xv)Legal steps have to be taken to ban the practice of those who are not eligible and qualified for the purpose.
xvi)Steps may be taken for excluding physiotherapists from the category of paramedical technicians published in the website of the paramedical council.Physiotherapy is not included under the purview of paramedical council hitherto.
xvii)UGC norms should be followed in the appointment of teachers of physiotherapy courses.
xviii)Physiotherapists have both supplementary and complementary role in medical practice.Therefore, the service conditions of physiotherapists may be regularized in legal terms considering all the facts explained above.
xix)Physiotherapy is a branch of modern medical science, which includes examination, assessment, interpretation, physical diagnosis, planning, execution of treatment and advice to any person for the purpose of preventing, correcting, alleviatingand limiting dysfunction.
5.The petitioners inW.P. (C) No. 25274 & 25387/2011have together raised their arguments against the points highlighted by the representatives of Kerala Association for Physiotherapists Co-ordination State Executive Committee.Their main contentions are as follows: -
i.It is improper for any person to enter into the field of treatment of Modern Medicine without registration with the Medical Council of India as per the Indian Medical Council Act, 1956.A person cannot be allowed to treat the patient merely because Anatomy and Physiology are included in a curriculum of a course. Also the basic qualification of MBBS is a pre-condition for a candidate for being registered in the medical register.
ii.Unless and until the qualification of physiotherapy is recognized by the Medical Council of India as medical qualification, physiotherapists will not have any right to practice modern medicine and treat patients.
iii.The Supreme Court of India has clearly ruled in a judgment that only a person having a recognized qualification of the Medical Council of India and holds the registration alone can practice modern scientific medicine and physiotherapists without holding the registration with the Medical Council of India will not be able to treat patients for their ailment independently.
iv.Physiotherapy is not a recognized system of medicine in India and physiotherapy is not a qualification recognized by the Medical Council of India.Physiotherapists are also not entitled to diagnose, prescribe or decide treatment for any ailment. Physiotherapy can only be a modality of treatment of modern medicine used in its various specialties.Therefore, physiotherapists are not legally entitled for an independent council.
v.The only independent councils of Medicine in India are the Indian Medical Council under the Indian Medical Council Act for modern medicine, Indian Medicine Central Council for the Indian System of medicine and the Homeopathy Central Council for the Homeopathic system of medicine.The Dental Council is only an extension of the Indian Medical Council, for the branch of Dentistry. The Pharmacy Council and the Nursing Council are only Paramedical Councils. They are also called Allied Health Professionals.Therefore, the claim of the Physiotherapists for an independent council can never be entertained.If independent status is allowed for physiotherapists, the existing system in the Kerala Health Service will be uprooted.
vi.The categorization of physiotherapists as Allied Health Professionals (Para medicals) in India is detailed in the report of the W.H.O.
vii.The executive committee of the Medical Council of India held on 28.08.2008, has specifically decided that physiotherapy is neither a separate system of medicine nor a qualification to practice modern medicine and hence physiotherapists can only administer medically directed therapies to patients.
viii.In the States of Madhya Pradesh and Himachal Pradesh, a paramedical council is constituted by including physiotherapists in the Paramedical Council Bill and the Paramedical Council Act respectively.These Councils consist of Director of Medical Education and Director of Health Services along with various Heads of Departments of the specialties of modern medicine, and includes physiotherapists with other Allied Health Professionals.
ix.When the psychologists under Kerala Government Health Services claimed right to independent practice and asked to be allowed to run independent outpatient clinics in the Government hospitals, the Government of Kerala had rejected their claim as one not legally permissible, vide order number G.O.(Rt) 4148/2008/H&FWD dated 12.12.2008.
x.While framing laws and regulations for physiotherapists in India, foreign laws in other countries cannot be blindly absorbed because the structure of medical education and the laws relating to the practice of medicine in India are different from other countries.
xi.Even in countries where physiotherapy is having high standardization, physiotherapists are never granted equity with medical practitioners and are prohibited from diagnosing, prescribing and deciding treatment. The violation of these laws provides strict punishment under the laws of the respective countries.
xii.The Government of India, for regulating the profession of Modern Medicine, as contemplated in the List-I under item 65 (a) and in List – III under item 26 of the Constitution of India vide G.O.No.R/1405/25/96 dated 25-November, 2003, has fixed the existing systems of medicine in India under the said provisions of the Constitution of India.The State of Kerala, for these reasons will not be entitled to pass a legislation or confer any right for Physiotherapists, to diagnose prescribe, or decide treatment for diseases or ailments, there by encroaching upon the definition of Modern Medicine defined under the Indian Medical Council Act – 1956, or to consider Physiotherapy as an independent system of medicine only for granting the said rights for Physiotherapists.This principle of law was ruled by the Supreme Court of India in Dr. PreetiSrivastavavs State of Madhya Pradesh.
xiii.The medical graduates and post graduates, throughout their medical studies, are placed on high and tough standards to impart high degrees of diagnostic, prescriptive and treatment skills, to give the health sector the maximum potential to serve the community.
xiv.There are no statutory regulations or laws governing physiotherapy courses in India, at present.Whereas a MBBS student spends four and a half years for rigorous clinical training, examining thousands of patients under the guidance of well experienced teachers in the various specialties to acquire diagnosing, prescribing and treatment skills,the clinical exposure for physiotherapy students is practically nil. Most of the physiotherapy colleges do not have adequate hospital attachment. The physiotherapists are not equipped with the ability to diagnose or treat various ailments other than carry out the physiotherapeutic measure as ordered by a medical doctor after proper diagnostic and therapeutic considerations. There are definite indications and contraindications for physiotherapy which can be decided by proper clinical examination supported by relevant investigations. Administering physiotherapy without this understanding may result in irreparable damage or even loss of life to the patient.There are many instances where such complications have been reported.
xv.It will be highly illegal and unjust to place physiotherapy courses equal to that of medical courses. Physiotherapy is not a medical stream of specialty and is only an Allied Health service (paramedical) branch of modern medicine. Physiotherapy is not an independent system of medicine recognized any where in the world.
xvi.Physiotherapists being only Allied Health Professionals (Paramedical), the council which includes physiotherapists should be mandatorily headed by medical personneland should have representations from the specialities of Physical Medicine and Rehabilitation, Orthopedics, Neurology, Paediatricsetc for the reason that these specialties use the modality of Physiotherapy for the treatment of some diseases and ailments.An independent council consisting only of physiotherapists without medical personnel cannot be allowed for physiotherapy, for the reason that physiotherapy is not an independent system of medicine.A council for physiotherapy, without medical personnel from the specialties which use physiotherapy as a mode of treatment will only create chaos and confusion in the health sector by affecting the public health.
xvii.It will be only an unnecessary burden to the state exchequer, to create a separate paramedical council for physiotherapists, when there is another Paramedical Council for all other Allied Health Professionals (Paramedical). It will be only in the best interest of the state, the general public and the Health sector, to include physiotherapists along with other Para medicals (allied Health Professionals) in one Paramedical bill.
xviii.“Physiotherapymeans medically directed therapy through physical agents including heat, cold, light, water, massage, electricity or manual exercise to persons, with the aim of preventing or correcting any disability, disease or ailment”.“Physiotherapistmeans a paramedical person who possesses recognized physiotherapy qualification”.
xix.The physiotherapy course structure includes only the basic sciences, some clinical aspects & physiotherapeutic modalities based on Modern Medical Science and are offered in many paramedical institutions and in some private hospitals having least clinical facilities.The training given to them is to practice “physiotherapy” and to carry out physical modes of treatments prescribed by the physician.
xx.Scope of clinical & non-clinical subjects taught to ‘physiotherapy’ students is only relevant to the scope of imparting ‘physiotherapy’ education and not to the diagnostic and therapeutic aspects of ailments.Nowhere in the world are the physiotherapists allowed to treat the patient independently.Before coming to the treatment part, a patient has to be examined, his history has to be evaluated, investigations to be carried out and diagnosis to be done precisely by a medical practitioner.
xxi.Physiotherapy is a 60-70 years old paramedical discipline created to train the physiotherapy technicians.These physiotherapy technicians were trained to assist Army Physicians (Doctors) to treat war victims during and after the 2ndWorld War.
xxii.If the request to form a separate physiotherapy council is allowed, other paramedics like Nurses, Pharmacists, Radiographers, Medical laboratory technologists and Speech therapists etc. might also demand for independent council.
xxiii.In spite of all the above contentions, they have also illustrated two instances where the patients were died due to the interruption of the physiotherapists without any referral from doctors.
6.The Director of Medical Education, on behalf of the Department, has offered the following specific remarks, on medical grounds:-
i.Any speciality may be considered as Medical when practiced by a Doctor holding an MBBS degree / Post graduate degree.The Doctor is the person to decide and design the treatment and what the patients should practice during his recovering period and subsequent period. But he requires assistance from various angles to support his treatment regime. Such personnel who assist and support a doctor are collectively grouped as paramedical staff. Here comes the case of physiotherapy, who is a member of the rehabilitation team headed by a group of doctors.Hence physiotherapists are paramedical personnel who are to perform medically directed and supervised programme.In short, physiotherapy cannot be grouped as a medical speciality. The need and type of physiotherapy can be decided by only an experienced team of specialists. So physiotherapists should be registered under Paramedical Council like occupational therapist, speech therapist etc..