Introduction
While “health is wealth” is a popular adage, some might suggest that clinical establishments like corporate hospitals and private clinics have taken it too literally by commercialising and monetising healthcare and related services. The question that remains is whether the means of promoting and publicising the establishments’ offerings are unfair and mislead consumers and the public at large. Statistics presented by the Advertising Standards Council of India (“ASCI”)[1], the only dedicated watchdog for advertising practices of companies in India, suggests that a big chunk of complaints regarding misleading advertisements is related to the health sector. To put things into perspective, ASCI reported 190 instances of misleading advertisements by clinics and hospitals – from lofty claims about their services, promises of curing chronic conditions, inadequate disclosure of actual costs of the services, etc., hospitals and clinical establishments have time and again appeared on the radar of advertisement regulatory authorities.
The issue is essentially this – hospitals and/ or clinical establishments like maternity homes, clinics, IVF centres, etc., being business entities, seek to gain visibility and customers through advertising, which may be normal business practice, but the problem becomes clear when one analyses the content and veracity of the advertisements made by such establishments. Often hospitals and clinical establishments make bold claims such as “high success rate”, “the best in the country”, “India’s No.1”, “most experienced doctors” and even “FDA approved”, “world’s most advanced technology” etc., without any corroborative evidence. Claims about costs of services and kind of services become the subject matter of misleading advertisements, thus resulting in patients enrolling for services that may not be what was displayed in the advertisements. Therefore, how corporate hospitals advertise, considering their leverage in the market, becomes a point of discussion and analysis. Further, in the technological era, when advertisements reach audiences in their homes, this easy access paves the way for more ill-informed decisions if the advertisements are misleading.
In this context, it would be interesting to understand the regulatory regime or the lack of it around advertisements by corporate hospitals and clinical establishments, and if there is a way forward that balances the activities of hospitals and clinical establishments as business entities and providers of healthcare on the one hand and patients as recipients of the intended information on the other. We had previously analysed the regulatory regime surrounding advertisements of drugs in India, and the judicial approach towards the same, which may be accessed here.
Are Hospital Ads Regulated – The Regulatory Muddle
The National Medical Council of India (erstwhile Medical Council of India) (“NMC”), being the statutory regulatory body that regulates medical education and medical professionals, vide the (Professional Conduct, Etiquette and Ethics) Regulations, 2002 (“Ethics Regulations”), provides a detailed framework for professional conduct and etiquette for registered medical practitioners here. The Ethics Regulations, in this context, also regulate the contours and the extent of advertisements that can be carried out by registered medical practitioners. While advertisement is not completely disallowed, a registered medical practitioner is not permitted to solicit patients directly or indirectly, invite attention to his professional position, skill, qualification, achievements, etc., and also cannot permit his name to be used for endorsement of drugs, medical devices, clinical, trials, etc. However, advertisements related to informing the masses of the commencement of practice, change of address, absence from duty, change in type of practice, etc., has been permitted under the Ethics Regulations.
While the Ethics Regulations provide for a check on advertisements carried out by registered medical practitioners, it does not explicitly regulate such activities when undertaken by hospitals or clinical establishments. Clinical establishments (including hospitals, nursing homes and clinics) in India fall within the purview of Clinical Establishments Act (Registration and Regulation) Act, 2010, and/ or relevant state legislations, wherein, more often than not, advertisements by clinical establishments are not regulated or curtailed. In this context, the regulatory lacuna becomes clear.
Interestingly, The NMC Registered Medical Practitioner (Professional Conduct) Regulations, 2023 (“2023 Regulations”), for the first time addressed the above-mentioned lacuna and imposed restrictions on advertisements carried out by corporate hospitals, nursing homes, private hospitals, etc. Such establishments were permitted to advertise only regarding information such as name of the institution, type of patients treated or admitted, kind of doctors and staff training and other facilities offered and the fees. However, the NMC later withdrew the 2023 Regulations. Thus, the question of what legislation will regulate ‘the what and the how’ of clinical establishments’ advertisements currently remains unanswered.
It is pertinent to mention here that localised attempts have been made to reign in advertisements by clinical establishments, eg., Punjab Medical Council in 2020 published Guidelines for Advertisements for Doctors and Hospitals[2] (“Punjab Guidelines”). The Punjab Guidelines were framed within the framework of the Ethics Regulations. It aimed to regulate advertisements by doctors, nursing homes, hospitals, clinics, pathology labs, diagnostic centres and healthcare institutions in Punjab. Specifically, with respect to clinical establishments, it is stated that advertisements shall not contain any guarantee of the treatment, comparison with other clinical establishments, unsubstantiated claims regarding cure and diagnosis, and any other misleading information. Further, soliciting of patients and putting up hoardings, except within the hospital premises, has been disallowed. The Punjab Guidelines further state that in case of any violations thereto, suo motu action will be taken by the Punjab Medical Council against the erring doctor/ hospital, without asking for any clarification/ explanation.
Judicial Outlook
On October 10, 2023, the Supreme Court issued a notice to the NMC, the Union of India, and the Ethics and Medical Registration Board, seeking regulatory interventions in advertisements by corporate hospitals. The said notice was issued following a writ petition, seeking regulation of advertisements by hospitals and doctors affiliated to corporate hospitals (“Writ Petition”).[3]
The Writ Petition arguments were based on unrestrained and unethical advertisement practices undertaken by hospitals, in the absence of a proper and adequate framework regulating it. Such practices, the Writ Petition stated, lead to patients taking ill-informed decisions. The regulatory lacuna of corporate hospitals not coming under the purview of the Ethics Regulations was also highlighted in the Writ Petition. Further, it was highlighted that while the Ethics Regulations apply to all doctors, irrespective of their workplace, advertisements soliciting patients by corporate hospitals indirectly provide unfair and undue advantage to doctors affiliated with such hospitals. Such an unfair advantage goes against the objects and reasons of the National Medical Commission Act, 2019, which seeks to promote equitable and universal healthcare and make services of medical professionals accessible to all citizens.
In pursuance of the notice issued by the Apex Court, an internal panel has been constituted by the NMC, which seeks to regulate advertisements undertaken by corporate hospitals. What is interesting to note is that the panel plans to regulate such advertisements on the lines of the 2023 Regulations, which were withdrawn following a backlash from the medical community. It appears that the regulatory body intends to bring corporate hospitals within its purview, at least as far as advertisements are concerned, thus filling the void in the regulatory space for reigning in lofty claims and misleading advertisements.
Conclusion
Corporate hospitals are business entities providing healthcare, and this is a confusing space when the regulator seeks to control the contours of advertising and solicitation. How much control would be too much, finding the right balance of control and regulation is a double-edged sword – as on the one hand is a profit-making entity, the corporate hospital, which pushes for state-of-the-art facilities, and on the other is the wellbeing of patients. While there does not appear to be a straitjacket formula for curbing the menace of misleading advertisements by corporate hospitals, the same cannot be left unattended. Need of the hour is striking a balance between business, ethical ways of promotion and advertising, and the wellbeing of patients. Whereas extreme restrictions on hospitals’ advertisements may not be prudent, regulations and guidelines for ethical advertisements with enough space for solicitation and even promotion could be the way forward – advertisements are needed, illusions, not really.
For further information, please contact:
Biplab Lenin, Partner, Cyril Amarchand Mangaldas
biplab.lenin@cyrilshroff.com
[1] https://www.ascionline.in/wp-content/uploads/2024/05/Annual-Complaints-Report-2023-24.pdf
[2] https://punjabmedicalcouncil.in/pmc/wp-content/uploads/2021/11/1595575505pdf_.pdf
[3] Narayan Aniruddha Malpani v. National Medical Commission And Ors Diary No. 34769-2023 PIL-W
