AHMAD ALI J, Through the instant constitutional petition, filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner has prayed for the following relief: "It is, therefore, respectfully prayed that on acceptance of this W rit Petition: i. Declare the acts of the respondent No.2 for not taking concrete measures to regulate the rates of private laboratories, clinics and hospitals as illegal, against the Act of 2015, public policy and basin fundamental rights enshrined in the Constitution of Islamic Republic of Pakistan, 1973. ii. Director the respondent No.2 to regulate the rate of public as well as private sectors and also make it mandatory for private laboratories, clinics and hospitals that it be displayed in a visible place in their territory/building. iii. Direct the respondent No.2 to initiate strict action and a crackdown against quackery working in the medical field. iv. Any other order deemed appropriate in the circumstances of the case may also be passed. The petitioner may be allowed to put forwards any other argument/document at the time of hearing of this writ petition."
2. Facts necessary for the disposal of present writ petition are that the previously the nomenclature of respondent No.2 was Health Regulatory Authority however , owing to the promulgation of Khyber Pakhtunkhwa Healthcare Commission Act, 2015, Health Care Commission was established with the sole purpose to provide mechanism for banning quackery in all its forms and manifestations to improve patient safety and healthcare service quality in public and private sectors. However , the said commission was not performing its assigned duties as public and private sectors were charging fee of their own choice on providing health services and no uniform rate has been specified by the regulatory body . That respondent No.2 has failed to tackle the quacks working in the market particularly when fake doctors were arrested from Lady Reading Hospital (LRH) and Khyber Teaching Hospital
(KTH) and thus, it can be inferred that there might be a number of quacks in the private sector hospital and clinics.
The technicians in the market pretending as doctor use to operate patients and thereby they are playing with the lives of people. That recently the writ petition No.3254-P of 2017 filed by petitioner was allowed thereby uniform rates of Dangue Test, MP and CBC were fixed by the Heal Care Commission by issuing a public notice. However , the commission is not performing duties properly and no Rules/Regulations as provided under Section 31 & 32 of the Act, 2015, have been framed to tackle with the day-to-day issues. Thus, petitioner filed present writ petition with the above referred prayer .
3. Respondents were directed to file para-wise to the writ petition which have been so furnished by respondent No.2, wherein, issuance of the desired writ is opposed.
4. Learned counsel for the petitioner argued that the factum of arrest of fake doctors from the public sector hospitals i.e. LRH and KTH is alarming and if fake doctors invade in the public sector hospitals then the private hospitals and clinics are not aloof from such practise rather their private clinics and hospitals are safe haven for such quacks. But the respondent No.2 is not performing duties in accordance with the mandate of Khyber Pakhtunkhwa Healthcare Commission Act, 2015; nor efforts for framing rules & regulations under the command of said Act have been made. He prayed for the issuance of writ as prayed for .
5. On contrary , counsel appearing on behalf of respondent No.2, has vehemently rebutted the issuance of desired writ by arguing that the respondent No.2 is regulating all the private clinics and labs by issuing them license after fulfilling codal formalities and keep a check to ensure standard and maintaining good healthy environment.
However , fee structure of doctors and laboratories depend upon the expenses, staff, location and equipment, nevertheless, agenda for the uniform rates of different treatment, tests etc is in pipeline due to scarcity of funds.
The Commission is in contact with USAID+TRF to provides funds an expertise. The Commissioner has left no stone unturned in the performance of duties for the public welfare. He requested for the dismissal of writ petition.
6. Arguments heard and record gone through.
7. A meticulous sifting of the record reveals that the respondent No.2/Health Care Commission was established under Khyber Pakhtunkhwa Healthcare Commission Act, 2015 (hereinafter referred as the Act). The preamble of the Act runs as under: WHEREAS it is expedient to provide for the regulation of health care services on sound physical and technical footings in public and private sectors, make provisions for the safe and high quality health care services to the people of the Khyber Pakhtunkhwa and to set out actions needed to achieve the vision of excellent quality health care services in the Province of the Khyber Pakhtunkhwa; AND WHEREAS to promote and improve patient safety and health care service quality in public and private sectors, it is necessary to provide mechanism for banning quackery in all its forms and manifestations and to establish the Khyber Pakhtunkhwa Health Care Commission to regulate health care establishment in public and private sectors and for matters connected therewith and ancillary thereto:
8. It is clear from the above preamble that the aim and object of the Act is to ensure the quality of health services in the public as well as private sector and to improve patient safety and also to provide mechanism to ban quackery in all its forms and manifestations in public and private sectors.
6. Powers and functions of the Commission.--- (1) The Commission shall perform such functions and exercise such powers as may be required to ensure the safety of patient and health staff and to improve quality of public and private healthcare services.
(2) Without prejudice to the generality of the provisions of sub-section (1), the Commission shall,-
(a) set standards or requirements for registration and licensing of health care establishments that ensure patient and health staff safety;
(b) registration of all health care establishments and issuance of license defining scope and extent of services to be provided;
(c) enforce minimum standards of patient and health staff safety in public and private sectors;
(d) play technical and advisory , educative and disciplinary role to support the registered and licensed health care establishments to improve quality of services;
(e) regulate the registered and licensed health care establishments in public and private health sectors through health regulation tools; certification, peer review , clinical governance, self-regulation or any other tool nationally or internationally recognized and accepted;
(f) ---
(g) ---
(h) ---
(i) ---
(j) ---
(k) ---
(l) ---
(m) ---
(n) ---
(o) devise mechanism to deal with quackery;
(p) ---
(q) perform any other function assigned to it by Government from time to time.
9. The terms "healthcare establishment" as defined in Section 2(i) of the Act is a hospital, diagnostic centre, blood bank, medical clinic, nursing home, maternity home, dental clinic, homeopathy clinic, Tibb clinic, acupuncture, physiotherapy clinic or any other premises or conveyance (a) wholly or partly used for providing healthcare services in public and private sectors; and (b) declared by the Commission as a health care establishm ent; whereas, "healthcare services, mean the services provided in public and private sectors for diagnosis, treatme nt or care of persons suffering from any physical or mental disease, injury or disability including procedures that are similar to forms of medical, dental or surgical care but are not provided in connection with a medical condition and includes any other service notified by Government.
10. Thus the function of Health Care Commission is not limited to issue license and monitor the quality of healthcare services which cover a broad spectrum, including process and procedures, the medicine and staff, treatment and care. The Healthcare Commission has to ensure patient and health staff safety , define scope and extent of services to be provided, enforce minimum standards of patient and health staff safety in public and private sectors and to put the quackery in the health sector to an end.
11. There is no cavil with the proposition that a number of technicians, impostors, and unregistered medical practitioners are running medical clinics and same is the situation with the medical labs where untrained technicians are deceiving the general public with inaccurate and unauthentic medical tests. It is the statutory obligation of the Health Care Commissi on to have a strict check on public and private sector medical clinics, hospitals, blood banks, laboratories and other healthcare establishments to implement minimum standard quality of health services and provision of medical facilities.
12. Besides, the Commission has been empowered to register all healthcare establishments and issue license defining scope and extent of services to be provided and also to enforce minimum standards for patient and health staff safety in public and private sectors. Empowering Commission to enforce such standards also includes the powers to check the status, nature and quality of services corresponding to the charged fees. No doubt fee structure of doctors and laboratories depends upon the expenses, staff, location and equipment used; but owing to this reason, they cannot be left shutter-less to charge unbridled fees from general public. The fee structure should be in equilibrium with the quality of health care services. For this purpose, the Health Department and Health Care Commission, both are heavily responsible to provide a mechanism to bring uniformity in the fee structure and standards of health services in the public and private sector healthcare establishment and stop healthcare services providers from charging exaggerated fees from general public. It is very unfortunate that a period of four years has been passed but the agenda of Commission, as mentioned in their comments, is still in the pipeline and as such, commission cannot be allowed to take further indefinite time to bring their agenda out of the pipeline. Accordingly , this constitutional petition is allowed and respondent No.2 is directed to fix the rates of different laboratories in consultation with the Health Department Khyber Pakhtunkhwa. This practise should be completed within a reasonable time probably not later then three months.
13. The writ petition stands disposed of accordingly with no order as to cost.