24 Jul 2010

Doctors cannot practice at residence: High Court

Being of the view that the advanced machines employed in medicine today are too much of a nuisance to the common folk and also that the garbage emanating from medical treatment is injurious if disposed generally, the Allahabad High Court in a recent decision has upheld the local body notification directing the doctors to stop particising in residential colonies even if they own the houses. The High Court thus directing seizure of activities involving various machinery by the doctors in residential complexes while allowing consultancy activities only in such premises.

The High Court inter alia observed as under;
 12. All the petitioners are qualified and registered medical practitioners. They have a right to run their private medical clinics for giving professional advice to the patients. A doctor's clinic run in a portion of the residential house, which may either be small and sufficiently big but which may not occupy the entire area with a waiting hall, a dispensary or even a small diagnostic facility may not convert the user of a premise from a residential user to commercial user. A non-nuisance professional activity running by doctors, lawyers, consultant, architect, chartered accountant, property consultants, government guides may also fall in the same category. The trouble starts when the doctor or any other consultants uses a substantial part of the building, for the activity including the incidental activities such as x-ray, ultrasonography, pathology, operation theatre and wards in which patients are admitted. These activities together with the consultancy, overreaches the limit of the user for professional use.
12. The counsels for the State and UP Awas Evam Vikas Parishad have not placed before us any bye laws or regulations made by UP Awas Evam Vikas Parishad, which may prohibit such activities. The condition of allotment/hire purchase/purchase, however, clearly provides that the dominant user of the building/plot on which the constructions are raised should be residential and that allottee/purchaser should not use the premises for business or commerce.
13. In the present case, we find that all the petitioners are using the residential houses for the purposes of running their clinics and have also converted the use of the dominant portion of the building for providing activities such as x-ray, ultrasonography, pathology, operation theatre, private wards and general wards. Some of these wards are so small, that they may hardly accommodate one bed in the room. The argument advanced by Shri Arvind Srivastava, that such user is incidental to medical practice, cannot be accepted. No reasonable person in such case can say that the user of the building has not been changed from residential to commercial.
14. In these writ petitions all the doctors have extended their consultancy to include the diagnostic techniques as well as admitting patients in the rooms and halls converted as wards. The professional activity in also these cases has converted the user of the house from residential to commercial for which all the doctors have therefor applied for and have electric connections for commercial purposes.
15. The rights given to carry on profession, including medical profession under Article 19 (1) (g) of the Constitution of India, are subject to reasonable restrictions in public interest. Such restrictions can be placed by the law made by the State under Article 19 (6) or may be imposed under an agreement to which the person may subscribe, in the interest of other residents. We do not find that a notice for cancellation of registration is a restriction on the right of a person to practice profession. The UP Awas Evam Vikas Parishad and Chief Medical Officer have not passed any such orders directing the petitioners to stop medical practice. They have only cautioned them to stop using the premises for commercial purposes. If they want to continue to use the diagnostic techniques and surgeries and admit patients, they should shift the place of their business to some other place, where such activity is permitted. The user of the premises by the professionals for a purpose other than the purpose for which it was allotted or purchased by him is not a restriction on the right to carry on the profession.
16. The medical professionals running nursing homes are also required to obtain registration for running ultrasound machines, permission from the Atomic Energy Commission for the use of x-ray plant and to dispose of the medical waste after obtaining registration and the facilities provided under the Bio Medical Waste Management Rules. There is nothing on record to show that the petitioners have obtained these permissions and licenses. 
17. The restrictions placed by the UP Awas Evam Vikas Parishad for using a residential accommodation allotted/purchased for any purpose other than residential purposes is also for maintaining a peaceful environment for other residents in the residential colonies. Any business or commercial activity involves these houses to be visited by patients and their relatives, use of motor vehicles, parking, and putting pressure of the civic amenities such as electricity, water, sewer and roads. It also affects the tranquility of the residential area used by the senior citizen and the children. The change of the dominant user of the building in a residential colony not only affects the immediate neighbors but all the residents of the colony and thus it is essential that in the residential colonies, the constructions should be used dominantly for residential purposes.
18. We do not find that the petitioners have been asked to stop their medical practice or to stop the patients visiting in their clinics. They have been simply asked to stop the use of diagnostic techniques including x-ray, ultrasonography, pathology, running of operation theatre, maternity centres and for using their houses for admitting patients. Such an activity is violative of the terms and conditions of purchase and constructions of the houses and the land use, and can be regulated by the UP Awas Evam Vikas Parishad both by giving notice of cancellation of the allotment or by taking steps to cancel the registration under which such activity is being carried out. The Chief Medical Officer, Etawah has registered the petitioners as medical practitioners, under a declaration given by them to run the consultancy clinics the petitioners. The petitioners are obliged to abide by their declarations.
19. Inspite of the repeated reminders given by the Court, the State Government has not made any law regulating the medical practice including the running of private nursing homes/diagnostic clinics and hospital. In the absence of any law covering the field the Court has to apply the test of reasonableness which may protect both the residents of the colony as well as patients visiting the doctors. It is inhuman for the patients to be given professional service in such small residential buildings. The size of the rooms of operation theatre, private wards and general wards would show that the doctors in order to earn money have converted small houses into nursing homes packing up the patients in unhygienic cubicles. A room measuring 9.5x9.5' can hardly be used as a hygienic private ward, and in any case a room measuring 15.1'x19' cannot be used as a general ward. The petitioners are apparently using the residential accommodation for running nursing homes putting their patients to serious inconvenience.
20. We do not find any good ground to interfere with the notices and the directions given by the Chief Medical Officer to the petitioners to shift their activities other than consultancy including diagnostic, surgical, and admitting the patients to a place other than the residential houses in the Awas Evam Vikas Colony. It will, however, be open to the petitioners to either shift the medical services, except the consultancy from their residential houses in the Awas Evam Vikas Colony to any other place, or to confine their activities in the colony only for consultancy. 

7 comments:

Shailendra Pal said...

hi Tarun!

Could You please find me a citation for the Judgement u elaborated on.

Tarun Jain said...

since the decision is recently delivered, i dont think it has been reported so as to have a citation.
however you can access the full decision from the link at the bottom of the post and use the petition number and date of decision to refer to the decision.

Pinaki said...

Hi Tarun,
I am sure this applies to dental practice as well (kindly validate!), but could you confirm if this judgment is only for state of UP or is the same valid for Gurgaon as well.
Regards,
Pinaki

Tarun Jain said...

Dear Pinaki,
If you see the essence of the decision, its relatable to all types of medical practice as the essence of maintaining the environment of a residential colony is relevant. So it must apply to dental practice as well.
As far as its applicability is concerned, in strict legal terms it applies only to State of U.P. its applicability to other States is not free from doubt.
Hope that helps :)

vijayasaradhi said...

the essence of decision is that professionals can practice at home in an area around 30percent of their floor area like doctors and lawyers. that does not come under commercial activity. Here the doctors have crossed the limit of 30 percent of floor area and gone to the extent of admitting patients which ofcourse not permissible.Ther3e are various judgements of supremedourt and various high courts that there is no bar for doctors , lawyers and chattered accountants to practice at flat as long as they do not use the substantial portion of the flat for profession.

alok singh said...

I would like to recommend you. I hope you will post again soon.Kind regard Villas in Sarjapur road

Prashant srivastava said...

Dear VijayaSaradhi

I am BHMS and i have recently purchased a flat in noida in a society.
Can i make a private practice / can i run my clinic in one room of my flat.
dose it need any registration in noida authority in commercial activity.